AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2234 OF 2008 Dr. Anjali C. Dhamangaonkar, working as an Associate Professor, Department of Anatomy, Seth G.S. Medical College, Parel, Mumbai – 400 012. ) ) ) ) ) ... Petitioner Versus 1. Municipal Corporation of Greater Mumbai, having its office at Municipal Corporation Building, Mahapalika Marg, Mumbai - 01. ) ) ) ) 2. The Additional Municipal Commissioner, having its office at, Municipal Corporation Building, Mahapalika Marg, Mumbai - 10. ) ) ) ) ) AJN 2 3. Seth G.S. Medical College, Parel, Mumbai – 400 012 represented through its Dean. ) ) ) 4. Dr. M. Natarajan, working as a Professor, Department of Anatomy, Seth G.S. Medical College, Parel, Mumbai – 400 012. ) ) ) ) 5. The State of Maharashtra through its Secretary, Medical, Education & Drugs Department, Mantralaya, Mumbai - 400 32. ) ) ) ) ... Respondents Mr. Rajendra Bhagattjee for the petitioner. Mr. K.K. Singhvi for the B.M.C. Mr. Rahul Nerlekar for respondent 4. Mr. D.A. Nalawade, Government Pleader for respondent 5. CORAM : SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 18TH NOVEMBER, 2009. DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 2ND DECEMBER, 2009. AJN 3 JUDGMENT :- (Smt. Ranjana Desai, J.) 1. Rule. Respondents waive service. By consent of the parties, taken up for final hearing forthwith. 2. The petitioner is presently working as an Associate Professor at Seth G.S. Medical College, Parel, Mumbai, who is respondent 3 herein. Respondent 1 is the Municipal Corporation which runs respondent 3-Medical College. Respondent 4 is also working as a professor at respondent 3-Medical College. Respondent 5 is the State of Maharashtra, represented through the Secretary, Medical Education & Research Department, which exercises overall control over respondents 1 to 3. 3. The case of the petitioner as stated in the petition must be shortly stated: The petitioner joined the Department of Anatomy of respondent 3-College as a Tutor on 22/6/1983 and worked on the said post continuously till she was promoted as an AJN 4 Associate Professor in the Department of Anatomy of respondent 3 on 21/2/1994 and is continuously working on the said post since then. At the time of her appointment to the post of Associate Professor, the petitioner was told that her appointment is on provisional basis and it will be confirmed after nine months. Because of her satisfactory performance, the petitioner was continued beyond the period of six months. However, no formal order was passed, though the petitioner ought to have been promoted to the post of Professor. 4. Contrary to the terms of appointment, in June, 1996, the vacant posts of Associate Professor in respondent 3- College were advertised by the Municipal Medical Staff Selection Board (for short, “MMSS Board”). The petitioner was forced to apply for the said post even though she had completed 2½ years on the said post. It was represented to her that for promotion to the post of professor, formal interview from MMSS was essential. Upon enquiry, she was informed that these exams are a mere formality and AJN 5 her appointment as professor was imminent. In good faith, the petitioner appeared for the interview. To the petitioner's surprise, she ranked second and respondent 4, who was junior to her ranked first. 5. The petitioner then addressed a letter dated 18/1/1997 to respondent 2 recording her objection to the said seniority list and requesting that her seniority be retained form the date of her provisional appointment. On 24/11/1998, the petitioner was served with three office orders dated 25/6/1996 stating that the appointment of the petitioner to the post of Associate Professor is on ad- hoc basis and she had been given technical breaks for periods mentioned in those orders. By letter dated 24/11/1998, the respondents informed the petitioner that her seniority is fixed on the basis of ranking given by MMSS Board. Thereafter, the petitioner made various representations but to no avail. By letter dated 9/10/2002, the petitioner requested respondent 3 to consider her name for the post of professor in Anatomy AJN 6 which was going to be vacant from 1/12/2002. Respondent 3 vide its letter dated 13/12/2005 denied the promotion to the petitioner on the ground that she was ranked second by the MMSS Board and that ad-hoc experience was not considered for promotion. 6. The petitioner thereafter filed appeal before respondent 2. The said appeal was rejected on 8/2/2008. By order dated 7/8/2009, respondent 3 communicated this fact to the petitioner. Being aggrieved by the denial of promotion to her, the petitioner has filed the present petition. The petitioner has inter alia prayed that the respondents be directed to promote her to the post of Professor of Anatomy with retrospective effect from December, 2002. 7. It must be stated at this stage that the respondents did not communicate order dated 8/2/2008 to the petitioner till 7/7/2009. Respondent 1 has filed affidavit explaining the lapse. However, the said explanation did AJN 7 not find favour with the bench presided over by Justice J.N. Patel. Respondent 1 was directed to pay costs of Rs. 25,000/- to the petitioner. We are informed that the costs have been paid. 8. We have heard, at some length, Mr. Bhagattjee, learned counsel appearing for the petitioner. He submitted that the petitioner has been working with respondent 3 from 1983. The petitioner joined the Department of Anatomy as a tutor on 22/6/1983. She worked there till 30/11/1990. Thereafter, the petitioner worked as a lecturer in Anatomy Department from 1/12/1990 to 20/2/1994. She has been working as Associate Professor in Anatomy Department from 21/2/1994 till date. Learned counsel submitted that there are no breaks in the petitioner's service. In this connection, he relied on Ex-I which is the certificate dated 12/6/2009 issued by the Director (ME & HH) of respondent 3. He submitted that ad-hoc appointment of the petitioner is per se illegal. He submitted that in view of AJN 8 Clause 24 of the appointment order dated 23/2/1994, the petitioner should have been confirmed after a period of nine months. He further submitted that the petitioner was performing the same task which respondent 4 i.e. Dr. Natarajan was performing. He submitted that the petitioner was forced to appear for interview and, hence, that she appeared for the interview cannot be taken against her. In any case, the interview was a formality. Learned counsel placed heavy reliance on the judgment of the Supreme Court in Rudra Kumar Sain & Ors. v. Union of India & Ors. (2000) 8 SCC 25 in support of his submission that when a person possesses the requisite qualification and if he is appointed to a particular post with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be stopgap or ad-hoc appointment. Learned counsel also relied on O.P. Singla & Anr. v. Union of India & Ors. (1984) 4 SCC 450. Learned counsel submitted that respondent 4 was given first rank because, the petitioner was allegedly AJN 9 an ad-hoc appointee. He submitted that the entire selection process is, therefore, flawed. Learned counsel further submitted that it is wrong to contend that the petition suffers from laches. He submitted that interview for Associate Professor's post took place in 1996 where respondent 2 ranked first and the petitioner ranked second. However, respondent 2 was promoted as Associate Professor only in 2005. Learned counsel submitted that the petitioner had sent several representations to the respondents. She had preferred appeal to the respondents which was rejected on 8/2/2008. The petitioner was aggrieved when her representations were rejected. Therefore, there is no delay in approaching this court. In this connection, he relied on Kuldip Chand v. Union of India & Ors. (1995) 5 SCC 680. He also relied on the judgment of this court in Valsamma Mamachan v. Union of India & Ors. 2001 (4) Mh.L.J. 270. Learned counsel submitted that having worked for a long period without breaks, the petitioner legitimately expected that she AJN 10 would be promoted. Doctrine of legitimate expectation is attracted to this case. Learned counsel submitted that it is, therefore, necessary to make the Rule absolute. 9. Mr. Singhvi, learned counsel for respondents 1 and 2 on the other hand submitted that the petitioner is not entitled to any reliefs. He submitted that the petitioner's appointment was on provisional basis or ad-hoc basis and, this is mentioned in her appointment order dated 23/2/1994. The post of Associate Professor was to be filled in by selection and, therefore, the petitioner herself appeared for MMSS Board interview in which respondent 4 ranked above her. Mr. Singhvi submitted that the petitioner's case that she was forced to appear for MMSS Board interview is false and an afterthought. Mr. Singhvi submitted that certificate dated 12/6/2009 on which the petitioner has placed reliance was issued for the purpose of inspection to be conducted by the Medical Council of India. This certificate does not state whether the employee is an ad-hoc or a regular employee. Mr. Singhvi AJN 11 submitted that the petition suffers from gross laches. Interview for the post of Associate Professor took place in 1996 and the petitioner has filed the petition in June, 2008. The petitioner went on making representations to respondent 3. She filed an appeal which was not maintainable. Mr. Singhvi submitted that by making repeated representations, the petitioner cannot get over laches. Mr. Singhvi submitted that selection of Dr. Natarajan was on merit. The petitioner is in effect challenging his selection. His selection cannot be challenged by the petitioner who also appeared for interview and was ranked below him by filing a belated writ petition. 10. In support of his submissions Mr. Singhvi relied on State of Madhya Pradesh & Anr. v. Bhailal Bhai & Ors. AIR 1964 SC 1006, M/s. Tilokchand Motichand & Ors. v. H.B. Munshi & Anr. AIR 70 SC 898 and Secretary, State of Karnataka & Ors. v. Umadevi & Ors. AIR 2006 SC 1806, AIR 199 SC 1607. AJN 12 11. Mr. Nerlekar, appearing for respondent 4, adopted the submissions of Mr. Singhvi. He submitted that the petition suffers from laches. He submitted that merely by sending repeated or delayed representations, the petitioner cannot get over the delay in filing the petition. In this connection, he relied on Amrit Lal Berri v. Collector of Central Excise, New Delhi & Ors. (1975) 4 SCC 714. Learned counsel submitted that unless the initial recruitment of an ad-hoc employee is regularized through a prescribed agency, he cannot be granted regularization. In support of this submission, learned counsel relied on Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan (2003) 3 SCC 485. Learned counsel submitted that respondent 4 has been selected on merit by a duly constituted selection committee and, hence, his appointment cannot be set aside. Learned counsel submitted that there is no substance in the petition and the petition may be dismissed. AJN 13 12. The petitioner was appointed on ad-hoc basis as Associate Professor on 23/2/1994. A copy of the appointment order is annexed to the petition. It is clearly stated in the appointment order that the petitioner's appointment is initially for a period of six months subject to the sanction of the Corporation. Clauses 1(a), 1(b) and 1(c) thereof are material. We may quote them. “1(a) His/Her appointment is initially for a period of six months subject to the sanction of the Corporation. (b) His/Her appointment is on ad-hoc basis, provisional basis, pending filling in the post on regular basis. (c) His/Her appointment is on probation for a long period of one/two year on promotion/selection basis excluding leave other than C.L. subject to concurrence of the M.P.S.C./sanction of the Corporation on long term basis.” Clause 24 thereof reads as under : “24. Appointment is subject to special report as regards work conduct to be submitted by the Dean to the Promotion Committee after appointment of 9 months as Assoc. Prof.” AJN 14 13. The above terms of the appointment order make it clear that the petitioner was provisionally promoted to the post of Associate Professor in the Anatomy Department on provisional basis from 21/2/1994 pending filling of the post on regular basis as Associate Professor. Affidavit of Ms. Gayatri Pai, Administrative Officer of respondent 3 states that in the year 1993, six posts of Associate Professor in Anatomy were advertised through M.P.S.C. Out of them, two were open posts. In response to the advertisement, the petitioner had applied through M.P.S.C. for open category. The petitioner was not selected. For the two open posts, Dr. Bhuiyan and Dr. Vasudevan were selected. In 1993, the vacant posts were again advertised through M.P.S.C. However, after the grade revision with effect from January, 1996, the selection of Associate Professor was in the purview of MMSS Board. In June, 1996, again two vacancies of Associate Professor were advertised through MMSS Board. In that interview, respondent 4 ranked first and the AJN 15 petitioner ranked second. From these facts, it appears to us that it is obvious that the petitioner knew that her appointment was on ad-hoc or provisional basis and had to be regularized. Therefore, she voluntarily appeared for the interview. The petitioner is trying to explain this by saying that she was forced to appear for interview. It is not possible for us to accept this. This explanation is clearly an afterthought. The petitioner is an experienced doctor and not a laywoman. It is difficult to accept that she was forced into appearing for interview. Her conduct establishes that she was aware of the fact that she was an ad-hoc appointee and that her appointment must be got regularized. Having appeared for interview, she is now estopped from contending that it was not necessary for her to appear for the interview and that she should have been otherwise also appointed as Associate Professor by taking into account her long service. Selection of respondent 4 is on merit by a duly constituted selection committee. It cannot be set aside on the grounds alleged by the petitioner. As regards certificate dated 12/6/2009 AJN 16 on which reliance is placed by the petitioner to contend that she is working with respondent 3 without a break, Ms. Pai – Administrative Officer of respondent 3 has stated that that certificate is issued for the purpose of inspection of Medical Council of India and it does not state whether the petitioner is an ad-hoc or a permanent employee. We are inclined to accept this explanation. In any case, even if this explanation is rejected, the fact remains that the petitioner went for interview and was ranked second and respondent 4 ranked first. By appearing for interview, she accepted that her appointment was ad-hoc and selection was to be on merit by a duly constituted selection committee. 14. Besides, the petition suffers from gross laches. According to the petitioner as per Clause 24 of the appointment order dated 21/2/1994, she should have been confirmed after nine months. The petitioner did not challenge her non-confirmation after nine months. On 26/6/1996, MMSS Board interviewed the petitioner and AJN 17 respondent 4 and, respondent 4 ranked first and the petitioner ranked second. The petitioner never challenged this selection. On 13/1/1997, the petitioner addressed a representation to the Deputy Municipal Commissioner of respondent 1. The petitioner addressed another representation to the Dean of respondent 3 on 9/10/2002. She again sent another representation on 17/10/2002. According to the petitioner, thereafter, she made several representations. On 17/10/2002, the petitioner once again made representation and requested them to regularize the post of Associate Professor. Respondent 4 was promoted as Associate Professor with effect from September, 2005. By letter dated 13/12/2005, the petitioner was informed that she was ranked second by MMSS Board after interview and, hence, she cannot claim seniority over respondent 4. The petitioner did not challenge respondent 4's selection or his being chosen over her. According to her, she had rendered long continuous service without a break and, was entitled to claim seniority. Instead of challenging the denial of AJN 18 seniority to her, she filed an appeal on 12/9/2007 before the Additional Municipal Commissioner (E.S.), M.C.G.M., Mumbai which was not maintainable. She filed a belated petition in this court on 3/6/2008. In our opinion, sheer delay dis-entitles the petitioner from getting any relief from this court. 15. In Amrit Lal Berry's case, the petitioner's grievance was that they were illegally discriminated against, by the respondents inasmuch as they were not promoted when they ought to have been promoted. It was urged that the petitions were barred by the principles of laches and acquiescence. The case of the petitioner - Amrit Lal Berry was that he had made representations to the respondents and, hence, there was no delay in approaching the court. The Supreme Court held that merely by filing repeated or delayed representations, the petitioner cannot get over the obstacles which delay in approaching the court creates because equitable rights of others have arisen. The Supreme Court observed that AJN 19 although it may not be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment yet, if a petitioner has been so remiss or negligent as to approach the court for relief after an inordinate and unexplained delay, he certainly jeopardizes his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce a fundamental right to the detriment of others. 16. In P.S. Gopinathan v. State of Kerala & Ors. (2008) 7 SCC 70, the High Court had on administrative side committed a mistake in treating the appointment order of the appellant dated 14/1/1992 as a temporary appointment. The Supreme Court observed that the appellant accepted his posting order without any demur, his subsequent order of appointment dated 15/7/1992 had not been challenged by him. Once, he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. The Supreme Court observed that the appellant could have opted not to AJN 20 join at all but he did so, now it does not lie in his mouth to clamour regarding the cut off date or for that matter any other condition. 17. Although there is no period of limitation prescribed for filing a writ petition under Articles 226 and 227 of the Constitution, a person is expected to adopt this extra ordinary remedy expeditiously. In Bhailal Bhai's case (supra) while dealing with this issue, the Supreme Court observed as under: “It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art.226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.” AJN 21 It can be gathered from the above judgments that this court must be circumspect while dealing with a writ petition which suffers from laches as it is likely to work injustice to others on account of altered circumstances. 18. In support of his submission that the petition cannot be dismissed on the ground of laches, learned counsel for the petitioner relied on Kuldip Chand's case. In that case the petitioner had filed writ petition against wrong declaration of seniority. His grievance was about the seniority lists dated 23/12/1982. Representations against the seniority list were dated 10/1/1983 and 1/8/1983. The representations were rejected and the petitioner filed writ petition in the year 1991 after supercession. It was urged before the Supreme Court that the petitioner's representations had been rejected. Therefore, the seniority list had become final. The petitioner did not challenge the same till the post of accountant became vacant. He filed writ petition after his representations were rejected. Therefore, there was considerable delay in AJN 22 claiming his seniority over the appellant. On the facts of that case, the Supreme Court held that the seniority list was prepared as early as 23/12/1982 but no vacancy had arisen thereafter and, therefore, mere rejection of claim for seniority does not dis-entitle the petitioner to claim his seniority over the appellant. The Supreme Court further observed that the petitioner did not challenge the seniority list till he was aggrieved by non-consideration of the claim to the post of accountant. Therefore, delay was of no consequence for consideration of the claim of the petitioner for the post of accountant. In our opinion, this judgment will have to be confined to its own peculiar facts. In that case, since no vacancy had arisen after the seniority list was prepared, there was no reason for the petitioner therein to file a petition. After he was aggrieved by supercession he filed a petition and, hence, the Supreme Court overlooked the delay. In this case, in the year 1996, the petitioner and respondent 4 appeared for interview. Respondent 4 ranked first and the petitioner ranked second. The petitioner did not AJN 23 challenge the selection. After selection, respondent 4 was promoted in 2005. Even thereafter, the petitioner filed the petition in 2008. It would be difficult to hold that in such cases, delay in approaching this court would be of no consequence because the petitioner made representations. Kuldip Chand's case is not applicable to the present case. 19. In Valsamma Mamachan's case, the petitioner's case was covered by a judicial pronouncement. However, the benefit of the said pronouncement was not extended to her. She had not preferred a separate application along with others before the Tribunal for regularization of her services and consequential benefits. It is in these circumstances that the Division Bench of this court observed that merely because the petitioner had not preferred a separate application before the Tribunal along with others, it cannot be said that she had waived her claim because there is no waiver unless specifically proved and pleaded. Besides, the petitioner had made a AJN 24 representation which was entertained by the respondents. After the representation, her case was recommended. She was informed that her case was taken up with the Ministry of Defence. Her case was recommended again when she made another representation. This court, therefore, observed that the petitioner therein had reasonable expectation. Such are not the facts here. The petitioner voluntarily went for interview in 1996. She did not succeed in the interview. Thereafter, she went on filing repeated representations. She also filed an untenable appeal. Even after respondent 4 was promoted in 2005, she kept quiet for three long years and filed this petition in 2008. The petitioner is not a rustic woman unaware of the implications of her action. She is a doctor who has been working with respondent 3 for considerable period. In our opinion, it is not possible to hold that her case is covered by Valsamam Mamachan's case. 20. At the cost of repetition, it must be stated that the petitioner was aggrieved first in 1996 when in the AJN 25 interview conducted by MMSS Board, respondent 4 ranked above her. She did not challenge the selection. Even after respondent 4 was promoted as Associate Professor in 2005, she did not challenge his promotion. She went on making representations. She filed an appeal which was not maintainable and filed writ petition on 3/6/2008. Applying the principles laid down by the Supreme Court in Amrit Lal Berri, P.S. Gopinathan and Bhailal Bhai, the petition will have to be dismissed on the ground of laches. 21. Learned counsel for the petitioner has relied on the