''- CF0000283227 (^jfS ^3i3l/°? ^ ci^ 3K_THE,STAIrE ADMINZSTRATIVE TRIBUN&L^ MADHX^ PRM>ESH, J A B A L P U R C&SE N0. G.A, (^!4 (- O "•^•to- 23)^6" OF 1990. 1 B ET WS EN D»t3r^S» Bagfeiel^ S©m©fStei CMiraBjeey Siiigh BagMel^ Aged ab^ut- 35 years^ Labii^Tech^ioia^, P ^ H<5Z?»^ Bta.c'ayaiigur^ •J^G&ALPUR, Di;Stt«T^^STER ( H.P.)< A N D 1» The State ef Madhya Pradesh^ THROUGH TMe Secretary^ G@Terxime^t ef Madfaya Prades^ B^3lic Healfeh Dega^taaeBt, Madfoya pradesh^ BHOPAL. 2. The DlEeGfe©r©fP-abliG - HealfcM DepartE^e^t^ Madhya pradesh^ BHGPAI,. APPLIC&NTt A^ •^r-^^ v^ ^' i;^/- ^n i^^ 3o The Jei^fe ©irect^r€>f - P^blic Health Departme^fc^ Basfcer DlTisl@B^ •J^GDAZJ'UR ( M«P»)• ' .4» SeB^Agra^a^:.. ' • , ' . ,,. . Biochernist^ . : ' . •;. :: •- • Maharani Hp'spital,; , ,Jagdalpur,M»P» 5»Shri Dalj'it singh^ 'LabsTechnicianC Malaj c/o'District Mal.aria Officer, Kanker•Qistrict-Bastar ^ ^ RESPOHDENTSs ^-^^'^—Lab.Techni ^--^.^y-^\ ^. Pathology ^Sy^^y Mah^rani'K %^:^-<I! Jagd^ur , •-""^^ >te7"cx^ ' Di ^t-Ba st \v 6, Shri CaR, Dewaagan ^ Lab.Technician^ Pathology r Maharani I^spital^ Bastar (M<P«) i .": fc HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : H^^^BL£^HRLMA^H^[DRAigOHAN^ WRIT PETITION (S) N0.231/2005 APPL1CANT D.J.S.Baghet -^ RESPQMDENTS Versus State of Madhya Pradesh and others FOR PRONOUNCIVIEN7LOFORDER Sd/- Manindra Mohan Shrivastava Jude \. 1 h..i -^ %.^^-' s %^B5^ '-''^'^,'. A' i. HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.231/2005 APPLICANT D.J.S.Baghel Versus State of Madhya Pradesh and others RESPONDENTS * Sinaie Bench: Hon'ble Shri Manindra Mohan Shrivastava.J, Present: - Shri Parag Kotecha, counsel for the petitioner. Shri Satish Gupta, Govt. Advocate for the State/respondents No.1 & 3. Ms. Sharmila Singhai, counsel forrespondents No.4 to 6. ORDER (Passed on this JS^day ofjune, 2010) By this petition, the petitioner seeks to assail legality and validjty of order of promotion of respondent No.4, dated 04-10-1989, as Bio-chemist. Along with the petition, the said order was not placed on record, as the petitioner has alleged that in spite ofdemand, acopy ofthat order has not been suppljed. Later on, respondents No.1 to 3 along with their return filed the said order asAnnexure R-1 and respondent No.4 has also filed the same as Annexure R-4/5. These two documents show that respondent No.4 was promoted as Bio-chemist vide order dated 04-10-1989. The petitioner is also aggrieved by common gradation list of Lab Technician and has prayed for issuance of direction to the respondent authorjty for preparation of gradation list of Lab Technicians separately cadre wise and also that he may be promoted to the post of Bio-chemist. The petitioner has also sought for quashing of gradation !ist of the year 1998 of Lab Technicians, by which, respondent No.6 has been placed over and above the petitioner. After filing of the petition, the petitioner submitted several amendment applications and also placed on record various documents from time to time. Finally, amended copy of the petition has been filed ^'^ ^ (3) Case of the petitioner is that he was initially appointedas Class-111 Technica! Employee vide order dated 28-03-1980 (Annexure A-2) and thereafter vide order dated 07-04-1980 (Annexure A-3), he was appointed as Lab Technjdan. The petitioner was entrusted with the duties of Lab Technician in the department of Pathology. There were other technicians, who were also working in various wings like Ma^ria etc. When the petitioner was so workmg as Lab Technician in the Pathoiogy Department, respondent No.4, who was working as Lab Technician in Malaria vving, was promoted as Bio-Chemist vide order dated 04-10-1989, filed by the respondents No.1 to 3 along with their return as Annexure R-1. Aggrieved by the aforesaid promotion order, the petitioner served a legal notice dated 08-11-1989 (Annexure A- 5). Further case of the petitioner is that in the gradation IJst of 1989 (Annexure A-9), respondents No.4 & 5 have been iliegally shown over and above the petitioner. The said gradation list was prepared on the basis of iength of servjce in violatJon of the Rufes of Madhya Pradesh Pubtic Health and Family Welfare Department Non- Ministerial (related to the Directorate of Health Services) Class-111 service Recruitment rules, 1989 (For short "the Rules of 1989") published on 10-08-1989, as the gradation list of Lab Technician is required to be published separately for different wings of Leprosy Control Programme, National Blindness Prevention Programme, National Malaria & Fiiaria Control Programme, Blood Bank & La.boratory Ser/ices and Pathology Department. Respondents No.4 & 5 were seiected only on 27- 02-1984 vide Annexure A-12 to undergo Pathotogy Technical Training as they were not trained, and thereafter, they were gjven a fresh appointment vide order dated 21- 01-1985 (Annexure A-8). Therefore, they could not be treated seniorto the petitioner as trained Lab Technician. Further case of the petitioner is that in the gradation IJst of Lab Technician prepared on 19-10-19^ (Annexure A-10), respondent No.6- C. R. Dewangan was placed at S.No.11 whereas the petitioner was placed at S.No.3, but in the gradation list subsequently published on 26-05-1998 (Annexure A-35), fy respondent No.6 has been shown at S.No.2 whereas petitioner has been shown at S.No.3. Against the gradation list ofyear 1989 (Annexure A-9) bywhich respondents No.4 & 5 were shown over and above the petjtioner, the petitioner submitted representation on 03-11-1989 (Annexure A-1 1). Aggrieved by the gradation list of 26- 05-1998 (Annexure A-35), by which, respondent No.6 was placed above the petjtioner, the petitioner preferred representations on 17-07-1998, 05-08-1998, 22- <•• 09-1^8 and 05-11-1998, which have been placed on record as Annexure A-37 to Annexure A-40 respectively. (4) Submission of learned counsel for the petitioner is that the post of Bio-Chemist lying vacant since 01-03-1986 could not be filled up from amongst Lab Technicians of Maiaria wing or from any other wing except Pathology wing, to which, the petitJoner belongs. !t is submitted that the respondent No.4, who was injtialiy appointed in the year 1961 as SurveiIIance Worker and then as Lab Technician (Malaria), is not a science graduate nor was trained in Pathology. It is argued that in the department of heaSth services, there are different cadre of Lab Technicians according to their own wings/departments and the posts of Lab Technicians of Pathology wing alone constitute feeder post for promotion to the post of Bio-Chemist. As the petitioner is a science graduate and pathology trained, he ought to be promoted in place of respondent No.4. It is also argued that the respondent No.4 had undergone pathology trainjng only in the year 1984 and thereafter, he was given fresh appointment vide order dated 21-01-1985, as such, he could not be treated as senior to the petitioner, as the petitioner was substantively appointed as Lab TechnJcian vide order dated 07-04-1980 (Annexure A-3). Learned counsel for the petitioner in his second !imb of argument contended that respondents No.5 & 6 were iilegally placed over and above in the gradation list issued in the year 1989 and 1998 respectively. Respondent No.5 had also undergone training in the year 1984-1985 andwas given fresh appointment as Lab Technidan vide order dated 21-01-1985, and therefore, he ^M^ could not be placed over and above the petjtioner, as the petjtioner was appointed in the year 1980. It is urged that in the gradation list of Lab Technician prepared on 19- 10-1^9 (Annexure A-10), respondent No.6- C. R. Dewangan was shown at S.No.11 and the petitioner was at S.No.3, but in the subsequent gradation list dated 26-05- 1998 (Annexure A-35 & Annexure A-36), the petjtioner was illegally shovvn below ^ resRondent No.6. Leamed counsel for the petitioner argued at !ength and submitted that there were separate departments under the Department of Heatth Seivjces and Lab Technician (Malaria) cou!d not be clubbed with Lab Technidan (Pathoiogy) nor a common gradation !ist could be prepared. Refemng to the statutory scheme of the Rules of 1989, it has been submitted that the respondent No.4 did not fulfit! the minimum eligibility criteria for promotion to the post of Bio Chemist nor was the post of Bio-Chemist available for promotion from amongst Lab Technician (Mataria). It is submitted that the post of Lab Technician in various wings viz. Leprosy Control Department, National Blindness Prevention Programme, Nationai Maiaria & Filaria Control Department, Blood Bank, Department of Labpratory Services and Pathotogy Department, under the statutory scheme of Rutes of 1989, have been classified separately. Post of LabTechnician in different wings could not be equated with each other.It is argued that promotional channel forthe various post could not have been clubbed together as there were dJITerent cadres, different training and quafifjcation for the posts are different. (5) Per contra, submission of learned counsel for respondents No.1 to 3 is that respondent No.4 was appointed as Lab Technician in the year 1961 i.e. 19 years before the petitioner's appointment. It is argued that the case of the petitioner was also considered. As he was junior, respondent No.4 being senior was promoted on adhoc basis vide order dated 04-10-1989 (Annexure R-1). It is also argued that entire case of the petitioner rests on the submission that the Rules of 1989 were not foliowed whrle making promotion whereas at the time when respondent No.4 was ^ ^ promoted, the Rules of 1989 had not come into existence, as respondent No.4 was promoted on 04-10-1989 whereas recruitment rules of 1989 came in.to existence only upon their publication by way of notification dated 10-08-19^ published in oificia! gazetteon 20-10-1989. (6) Submission of learned counse! for the respondents No.4 to 6 is that respondent No.4 was appointed as Lab Technician vide order dated 05-03-1962 (Annexure R-4/1). At that point of time, there were no rules in existence and any candidate having academic qualification of Higher Secondary in Science subject was entitled to be appointed as Lab Technician. It is also argued that the post of Bio- chemist was promotiona! post of Lab Technician working in the Department of Health Services irrespective of any further classjfication as Lab Technician (Pathology) or Lab Technician (Malaria) or any other branch. In the absence of recruitment ruies, the Directorate, Health Services. vide its circular dated 24-09-1980 (Annexure R-4/2) directed that Lab Technicians may be promoted as Bio-chemist on the basis of their seniority on the post of Lab Technician. further darilying that academic quatification of^.Sc. or B.Sc. Part-1 is not necessary, therefore. ail the Lab Technicians, who were working as Lab Technician (Malaria) or Lab Technician (Pathology) were entitled to be considered for promotion to the post of Bio-chemist and on the date of promotion of respondent No.4 on adhoc basis, it was in accordance with the directorate's circular dated 24-09-1980 and there were no question of violation of Rules of 1989, which came into existence after issuance of the promotion order of respondent No.4. It is also argued that underthe statutory Rules of 1989, seniority of Lab Technicians are to be maintajned at state level and the rules do not contemptate separate cadre of Lab Technician posted at different discipline. It is also argued that according to the provisions contained in Schedule-111 appended to the Rules of 1989, theacademic qualification of Lab Technician under Leprosy Control Programme, Nationa! Blindness Prevention Programme, National Malaria and Filaria Control Programme, ^^^ li!i€.,rf^il <^;^i^^ 'f ^ |:i^ ^iy j^ c.^h Blood Bank and Department of Laboratory Services are identical. Learned counsel for respondents No.4 to 6 submite that the rules did not contemplate that the post of Bio-chemist was to be filled up only from amongst Lab Technjcians (Mlalaria) and there is no such express stipulation to that effect. Referring to memo dated 26-05- 1965 (Annexure R-4/6), it is submitted that academic qualification prescribed for a partic^lar post for the purpose of recruitment were not necessary nor could be treated as eligjbljity quaJification, in case the post is to be filled up byway of promotJon. It js also argued that atthe time when the petition was filed before the Tribunat, in so far as challenge to the promotion dated 04-10-1989 is concerned, it was barred by limitation and the order was subsequently challenged by way of amendment in the year1992. (7) No separate return has been fded by respondente No.5 & 6. (8) From the pleadings of the parties and the records of the case, it is clear that respondent No.4 was appointed as Lab Technician on 05-03-1962 (Annexure R-4/1) whereas according to the petitioner himself. he was appointed as Lab Technician on 28-03-1980 (Annexure A-2), thus, respondent No.4 was much senior to the petitioner as Lab Technician. True it is that vide order dated 27-02-1984 (Annexure A-12), respondent No.4 was sent for training, however, vide order dated 21-01-1985 (Annexure A-8), he was granted all the benefits of his service from the date of his initialappointment either from the date of completion of training or from the date of order j.e .21-01-1^5. Submission of learned counsel for the petitioner that as respondent No.4 had undergone training much afler the petitioner, therefore, he ought to be placed beiow the petitioner and treated as Junior cannot be accepted. There is nothing on record to show thatat the time when respondent No.4 was appot'nted as Lab Technician in the year 1962, there was any such requirement of training. On the contrary, prior to promulgation of the recruitment rules of 1989, 'i. circufar dated 04-10-1980 (Annexure R-4/2) was in force which cleariy provlded that senior Laboratory Technidans are entitled to be promoted on the basis of their seniority and they are not required to possessed of B.Sc. or B.Sc. Part-1 passed certificate. It appears that subsequently pathology training was made essential, and therefore, respondent No.4 was sent for training vide order dated 27-02-1984 (Annexure A-12) which he successfully completed as is reflected from the order dated 21-01 -1985 (Annexure A-8). (9) !t is not in dispute that there was no statutory rule goveming promotion from the post of Lab Technician to the post of Bio Chemist until promulgation of the Rules of 1989. These rules were first published in the official gazette dated 20-10-1989. This factual aspect relating to promulgation of recruitment rules has not been disputed by the petitioner. Therefore, in the absence of statutory rules framed bythe government in exercise of powers conferred under Article 309 of the Constitution of India, the executive instructions held the field. Vide circular dated 24-10-1980, the Direotorate, Heaith Semces, Madhya Pradesh laid down that promotion on the post of Bio Chemist is to be made on the basjs of seniority from amongst Lab Technicians. In this circular, it was nowhere stated that the post of Bio Chemist is to be filied up only from amongst Lab Technician (Pathology). It also does not suggest that for the purpose of promotion to the post of Bio Chemist, Lab Technicians (Mataria) or other branches were to be exduded from consideration. It is not in dispute that the respondent No.4 was promoted vide order dated 04-10-1980 (Annexure R-4/5) as Bio Chemist on adhoc basis. On that date, the executive instructions dated 24-09-1980 (Annexure R-4/2) held the fjeld. The entire case of the petitioner rests on the submission that according to the provisions contained in the Rules of 1989, post of Bio Chernist could be filted up only from amongst Lab Technician of Pathology branch. However, it is clear that on the date when the respondent No.4 was promoted though on adhoc basis as Bio Chemist, the Rules of 1989 were not Jn force ^^.-. °7^' ^ but the administrative instructions dated 24-09-1980 (Annexure R-4/2) were in existence and there was no bar. This Court is therefore unable to uphold the contention of learned counsel for the petitioner that the posts of Lab Technicians (Pathology) alone constitute feeder posts for the purpose of promotion to the post of Bio Chemist to the complete exclusion of Lab Technician of other branch inctudlng Lab^Technidans (Malaria). It is not in dispute that on the date of promotion, respondent No.4 was a trained technician having undergone pathology training as reflected from order dated 21-01-1985 (Annexure A-8). Therefore, this Court Js of the considered opjnion that there was no violation of any statutory rutes or guidelines while promoting respondent No.4 as Bio Chemist vide order dated 04-10-1980. This was done in accordance with the adminjstrative instructions contained in the Directorate's cjrcular dated 04-10-1980 (Annexure R-4/2). (10) In so far as the petitioner's grievance relating to placement of respondent No.S-Shri Daljit Singh over and above him in gradation list (Annexure A-9) shown senjority position as on 01-06-1989 is concerned, respondents No.1 to 3 have not sta^ed anything in their return. Respondent No.5 has not filed it's separatereturn. However, from gradation list (Annexure A-9) published vide covering memo dated 19-09-19^ (Annexure A-10), it is found that dMsional seniority of Lab Technicians has been shown as on 01-06-1989. From the said list, it is clear that respondent No.4 was appointed on the post of Lab Technician on 10-11-1961 whereas the petitioner has been shown to have been appointed as Lab Technician on 11-04-1980. Respondent No.4 was therefore senior to the petitioner. Submission of learned counss! for the petitioner that the respondent No.4 subsequently obtained pathology Sraining and was appointed vide order dated 21-01-1985 (Annexure A-8), and therefore, he was liable to be treated as junior to the petitioner, cannot be accepted, as order dated 21-01-1985 clearly records that all those Lab Technicians who appointed earlier and who have obtained training, woyld be entitled to the benefits 1; with effect from their initial date of appointment. In so far as petitioner's grievance against respondent No.6 is concerned, neither respondents No.1 to 3 have made any averment in this regard nor respondent No.6 has filed any separate return. From the gradation list (Annexure A-9), itis found that respondent No.6 was placed at S.No.11 as he has been shown to have been appointed on the post of Lab Technician on 19- 09-1^0 i.e. subsequent to appointment of the petitioner. However, from a perusal of gradation list published on 26-05-1 ^8 (Annexure A-35), it is clear that respondent No.6-C. R. Dewangan was shown to have been appointed as Lab Technician on 01- 03»1^0. Petitioner has made representation to the respondent authority which is annexed as Annexure A-37. There is nothing on record to show that the respondents have ever considered this aspect of petitioner's claim of seniority over and above respondent No.6. (11) I may hasten to add that after promulgation of the Rutes of 1989, promotion to the post of Bio Chemist are required to be made strictly in accordance with the provisions ofthe Rules. Petitioner has claimed that underthe Rules of 1989, common gra^ation list of Lab Technicians cannot be prepared and separate iist of Lab Technicians of different branches is required to be prepared. Respondents have prepared a common gradation list of Lab Technicians in the year 1998 which is placed on record as Annexure A-35. Though, examination of Schedule-1 to 3 appended to the Rules of 1989 shows that post of Lab Technicians have been created for various wings namelyLeprosy Control Programme, National BIindness Prevention Programme, National Malaria and Filaria Control Programme & Blood Bank and Laboratory Services and different qualifications prescribed for Lab Technicians of different branches/wings. ScheduJe-IV referable to Sub Rule (2) to Rule 14 prescribes that post pf Bio Chemist would be filled up by way of promotion from amongst Lab Technicians. Neither any of the provisions in the Rule nor the provisions contained in all the schedule including Schedule IV, prescribe that for the ^ ;^ 10 ^ I ^ purpose of promotion to the post of Bio Chemist, Lab Technicians of Blood Bank and Laboratory Services wing alone would constitute feeder post. In the absence of any such provision in the Rules, it cannot be held that the Lab Technicians of Blood Bank and Laboratory Services wing alone are eligible for the purposes of promotion to the post of Bio Chemist. Merely because the post of Bio Chemist has been created in the Bloocl Bank and Laboratory Services wing, it cannot be assumed by impljcatjon that Lab Technicians of Blood Bank and Laboratory Services wing alone are eligible to be promoted as Bio Chemist to the exclusion of Lab Technicians of other wings namely Leprosy Controt Programme, National Blindness Preventjon Programme, Nationai Malaria and Filaria Control Programme. Therefore, no exception can be taken to preparation of common gradation list of Lab Technicians ofvarious wings. Contention of learned counsel for the petitioner is therefore cannot be accepted and is iiabte to berejected. (12) !n the final analysis, petitioner's challenge to adhoc promotion of respondent No.4 vide order dated 04-10-1989 and challenge to daim of seniority over and above respondent No.5 fails. However, in so far as claim of seniority over and above respondent No.6 is concerned, respondents are directed to consider petitioner's clajm for seniority over and above respondent No.6 and take appropriate decision on his representation (Annexure A-37) and pass appropriate orders within three months from the date ofreceipt of a copy of this order. (13) In the result, the petition is partly allowed to the extent indicated above. There shall be no order as to costs. Sd/- Manindra Mohan Shrivastava Jude ".^"iSSSiS ^'ff'^&i^ --M^iiia^