HIGH COURT OF CHHATriSGARHAT BH.ASPUR DIVISION BENCH Coram : Hon'bte Shri H. L. Dattu, CJ. and Hon'ble Shri Dilip Raosaheb Deshmukh, J. W.P.No.SSof2003 Petitioner f'" f. Resoondents 3. 4. 5. Dr. Suraj Agrawal @ S.K. Agrawral, Aged about 55 years, son of late Sri Sadhoo Ram Agrawal, Professor Pharmacology, posted at Pt. J.N.M. Medical College, Raipur, Resident of HIG C/72, Shaitendra Nagar, City, Tahsil & District Raipur, Chhattisgarh. vers.us State of Chhattisgarh, Through Secretary Department of Health & Public Welfare, DKS Bhawan Mantralay, Raipur, Chhatti^arh. Director, Medical Education, Bhopal Now Director Medical Eduoation, Raipur Chhattisgarti. State of Madhya Pradesh, Through Department of Health & Family Welfare. The Dean, PT. J.N.M. Medical College, Raipur, Chhattisgarh. M.P.State Administrative Tribunal, Through its Registrar, Raipur, Chhattjsgarh. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDJA FOR THE ISSUANCE OF APPROPRIATE WRIT / WRITS, ORDERS, DIRECTION ETC. W.P.No^1182of2<»2 PeUtioner ResRondents Dr. G.B. Gupta, Professorof Medicine, S/o Shri R.S.Gupta, Aged about 51 years, Medical College, Raipur, R/o Shailendra Nagar, Raipur Versys 1. M.P.Stste Administrative Tribunal, Through Raipur Bench. 2. The State of M.P. Through Chief Seoretafy, Vallabha Bhawan, Btiopal. 3. The Director, Medical Education, Bhopal (MP) 4. Dean, Pandit Jawaharlal Nehru, Medical College, Raipur (C.G.) 5. State of Chhatti^arh, Through Secretary (Health) DKS Bhawan Raipur. 2- WR!T PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR GRANT OF MANDAMUS, CERTIORARI OR DIRECTION OF LIKE NATURE- Present: Shri Manindra Shrivastava, Sr. Advocate with Shri Devendra Patet, counsel forthe petitioner inW.P.No. 98 of 2003. Shri N.K. Vyas, counsel for the petitioner in W.P.No.1182 of 2002. Shri Rajeev Shrivastava with Shri Indrasen Sahu, counsel for respondents No. 2 & 3 in W.P.No. 1182 of 2002. Shri G.O.Vaswani, Government Advocate for the State in both writ petitions. ORAL ORDER (Passedon07nl May, 2007) The following oral order of the Court was passed by H.L.Dattu,C.J. Since a common question of fact and law is involved in the aforesaid writ petitions, they are clubbed together, heard and disposed of by this common order. 2 The Director of Medioal Eduoation had issued an advertisement dated 22" September 1976 for the purpose of making emergency appointments to the post of lecturers in medical colteges of Madhya Pradesh. 3. Pursuant to the afbresaid advertisement, the petitioners in these writ petitions had applied and they were also selected for the post of lecturers in different faculties by the respondent - Director, Medical Education. The tetter of appointment, that was issued to the j^titioners, cteariy indioat&.that the appointment was purely temporaiy for a period of six months or in the altemative till regutar selections are made by the State Publio Servioe Commission. The initial appointment that was made for a period of six monttis was continued from time to time for a further period of four yeare by issuing separate letters of appointment. ~~~ JS 4. For the first time, the petitioners were seleoted by the Public Service Commission and appointed by the Sfate Government to the substantive posts of lecturer in different faculties on 16.06.1982. 5. Since the period ofservice between 20.01.1977 till 16.06.1982 waa not counted for the pufpose of calculating the seniority of the petitioners, they had approached the Tribunal in O.A.No.1093 of 1991. The Tribunal by its order dated 08.04.2002 had rejected the apptication, that is how, the petittoners are before us in these petitions filed under Artcle 227 of Conditution of India. 6. Shri Manindra Shrivastava, tearned Sr. Advocate and Shri N.K.Vyas, learned counsel appearing for ttie petitionere would contend that since the appointment of the petitionera was made by the State Govemment and was regularized on a later date by the Pubtio Sen/ice Commission, their period of service between 20.01.1977 till 16.6.1982 requires to be counteri for the purpose of calculating the seniority of the petitioners. In support of that contention, teamed Sr. Advocate reties upon the observation made by the Apex Court in the case of Direct Recruit dass II Enginewing Officas' Assocfaffonv. State offtfaharashfta and offiere, (1990) 2 SCC 715 and the also the decision of the Apex Court in the case of Or. A. K. Jam and offiers v. Uman oflndia and otfters, 1987 (Supp) SCC 497. 7. Per oontfa, leamed counsel appearing for the respondents would justify the orders passed by the Tribunat. 8. The one arri only question that arises for our consideration in these petitions is that whether the Tribunal was justifiaJ in rejecting the request madebythepetitionersinO.A.No. 1093of1991. -- ^ 9. The facts are not in disfxite, in the sense that the initiat appointment of the petitionera was done by the State Government pureuant to an advertisement issual on 22.09.1976. The appointment that was made pursuant to the advertisement was an emergency appointment in the sense the appointment was onty for a period of six months or inthe alternative till regular selections are made by the Publio Service Commission. 10. The Madhya Pradesh Health Semce Recruitment Rules, 1967 (for short 'the Rules, 1967') define the meaning of expression of "Appointing Authority", "Commission" etc. 11. Rute 2(a) of the Rules, 1967 speaks of "Appointing Authority" means the Govemment of Madhya Pradesh, in the Pubtic Health Department. Rute 2(b) speaks of "Commission" to mean the Madhya Pradesh Public Service Commissicn. Rule 11 of the Rules, 1967 provides for Direot Recruitment of selection for recruitment to the sen/ice under the Health Department. The Rules specificalty state that it is the State Public Service Commission which Would make selections for appointment in the Health Department. The Appointing Authority after suoh seteotion is the State Government. 12. In the instant case, as we have already notioed, the appointmait of the petitioners was made by the State Government but those appointments were callal emergency appointments. For the firet time, they were selected and appointed under the Rules only on 16.06,1982 by the State Gowmment. 13. Keeping this factual matrix in view, we apply the principles lakl by the Apex Court in Direct Reisuit Cla^s II Engmeering OfScers' Assaciation v. State of Maharashlra amS othws (supra). The period of semce between 20.01.1977 till 16.06.1982 cannot be counted for the purpose of counting the seniority ofthe petitionera in the Health Department. However, Shri Manindra 5' Shrivastava, learned Sr. Advocate would submit that clause (B) of paragraph 47 of the said decision woutd apply to the facts and ciroumstances of the present case. To appreoiate the stand of learned Sr. Advocate, we extract the said clause (B) and then explain what is the purport of the said clause. The said olause (B) reads as under: "(B) If the initial appointment is not made by following the procedure laid down by the rules but the ap|X)intee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating seroice will be courrted." 14. An anatysis of the aforesaid olause w)Ufcl indicate the following: First and foremost, the initial appoirtment, if it is not made as provided in the Rules, but the appointee continues in the post without any interruption, on a later date the Appointing Authority shall r^ularize his sen/ices, as required under the Rules, then the period of officiating service will be counted. 15. In the present case, the initial appointment was not made in accordance with the Rutes. It was made by the State Qovemment to meet out S;tv-^t,n.lj[^ certain emergency si'eatipqa. Since the initial appointment was not made by a pereon who was authorized to do so under the Rules, 1967, even if the same was regularized on a later date, the petitioners eannot be takirg benefit of clause (B) of paragraph 47 of the deofeion rendered in Direct Recrwt Cfess II Engineering OtBcers' Associatton v. State of Maharashtia and o e»s (supra). 16. Shri Manindra Shrivastava, leamed Sr. Advooate atso relies on the deoision of the Apex Court in Dr. A. K. Jain amt atheis v. Umon of/ndta » and offiers (supra). That was the case where Adhoc appointments were made by the Raihways and those appointments for a period of six montte and they were continuaifrom time to time for a period of four years. On a tater - -.• -^;-.^^^^?^ bw&f' i~. date, their appointments were cancelled on various grounds. When the matter reached the Supreme Court, the Supreme Court in exercise of its powers under Artiole 142 of the Constitution of India observed that adhoc appointments made between 1984 till regular selections are made, their services can atso be regularized. In our opinion, the said decisiCTi on which reliance is placed would not come to aid the contentions of leamed counsel appearing for the petitioners. In that view of the matter, in our opinion, the Tribunal was justifiecr in rejecting the application filed by the petitioners. Accordingly, the following: ORDER i) Both the writ petitions are rejected. ii) In the facts and circumstances of the case, the parties are directed to beartheir own costs in both the petitions. iii) Ordered accordingly. Sd/- ChiefJustice Sd-/ Raosaheb Deshmukh Judge