PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA DB: Hon’ble Shri Satish K. gnihotri 85 Hon’ble Shri Prashant Kumar Mishra JJ Shri Shri Maoj P. K. Paranjpe, aduri, Panel Advocate Lawyer for for th th respondent petitioners. No. 1. l . ( assed on this 16th day of Deceer, 2009 P mb ) Per Stish K. Agnihotri J. Heard. V 1. By this petition, the petitioners/State question the legality and validity of the order dated 13.5.1998, passed by the adhya Pade'sh Ste Admistrative Tribunal, Jaalpu i Original Aplicion No. 1125/ 1991 ( Dr. s. K. Sinha Vs. State of M.P. & others), whereby and wherender, the petitioners were diected to assign seniority to the respondent No.1 (Dr. S. K. Sinha) w.e.f. 14.6.1971 i.e. the date on which the respondent joined the post of Astant rgeon, in M.P. Medical Services, Class—II, on ad hoc bais for a period of six months. 2‘. e Th respondent No.1 along with other three candidates was appointed by order ated 22nd May, 1971 (Annexure P/ 1) on the post o Assitant Surgeon, i M.P. Medical Services, Class—II, temporarily for a period of six months or till the posts were advertise by the Public Service Commission, whihever was earlier. Thereafter, the services of the respondent No.1 was regularized after concurrenc of the Public Service Comissn, Vide order dated 10.6.1987 (Annexure P/3). The respondent No.1 was regularly apponted on two year’ \ l A , n Bh e e l N I ' ORDER (Oran a M r ta ni br n pat u r No.1 ssi Su s d f s n d c e mio i s ‘\ ‘:WLM HIGH COURT OF CHHATTISGARH : BILAa’éPUR ' Writ Petition No. 3790 of 1999 Petitioners State of Madhya Pradesh (now Chhattisgarh) another Versus Respondents Dr. Suresh Kumar Sinha (since dead), through Dr. (Smt.) C13” probation. Accordingly the seniority was assigned to the petitioner from the date of regularization. The respondent No.1 preferred O.A.No. 1125/1991 (Dr. S. K. Sinha Vs. State of M.P. 85 another), seeking seniority from the date of his initial appointment on temporary basis W.e.f. 14.6.1971 on the basis of the continuous service. It appears that the Tribunal, Without examining all the facts of the case, relying on a decision of the Supreme Court in Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra and othersl, directed the petitioners/State to assign seniority to the respondent No. 1, from the date of initial appointment on temporary basis W.e.f. 14.6.1971, with all c0nsequentia1 benefits, including promotion, if found fit. On perusal of the appointment order it is not clear asto whether the respondent No.1 was appointed through any selection process or on the basis of an advertisement, inviting application from the other similarly situated candidates. Indisputably, the respondent No.1 was appointed on temporary basis on the post of Assistant Surgeon, in M.P. Medical Services, Class~II for a period of six months or till the post was advertised by the Public Service Commission, whichever was earlier. It was further stated in the appointment order that the respondent No.1 was liable to serve for a period of four years, x including the period spent on training in defence services or on works relating to the defence efforts, anywhere in India or abroad, if so required. The respondent No.1 joined the duty on 14.6.1971. Thus, it is evident that the appointment of the petitioner was not in accordance with the constitutional scheme of employment and not in accordance with the rules, as the appointment of the respondent No.1 1 (AIR 1990 SC 1607 = 1990) 2 SCC 715 on the post of Assistant Surgeon, Grade-II, requires consultation of the Public Service Commission under the provisions of Riggle 6 of the M. P. Health Service Recruitment Rules, 1967, gazetted on 11th May, 1970 (Annexure P/2). Thus, the initial appointment of the respondent No.1, in the year 1971, was not in accordance with the Rules. 5. Subsequently, after concurrence and consultation of the Public Service Commission, the respondent No.1 was regularized under the provisions of M.P. Regularization of Ad hoc Appointment Rules, 1986 r 3’ (for short the Rules, 1986’), on probation for a period’of two years. Rule 12 of the Rules 1986 provides fOr grant of seniority from the date of regularization, not prior to that on the asis of the temporary continuous service. Rule 12 of the Rules, 1986 came into consideration before the Supreme Court in J. S. Chhabra (Dr.) v. State of M.P. and othersz, wherein it is held that : “8. date What seniority is required 9f Dr. Tiwari to be whose considered services next were is from regularized which on 21.7.1989 4.4.1987 should and was be considered declared/redesignated as lecturer. as Accepting lecturer his on contention the Tribunal has granted him seniority as a lecturer right from the date he started working as CMO raised (Lecturer on Grade) behalf in of Dr. 1971. Chhabra As against is that that in the any contention. case Dr. Tiwari could not have been granted seniority from the date earlier than 21.7.1989. The contention raised on behalf of the 4.4.1987. State The is that services it has of Dr. rightly Tiwari given were him regularized seniority under from the Rule M.P. 12 of Regularisation the said Rules of Ad provides hoc Appointment that a person Rules, appointed 1986. under date of those the order Rule of shall regular be entitled appointment to seniority and shall only be from placed the below relevant the recruitment person already rules. appointed Dr. in Tiwari accordance accepted with the his regularization under those Rules. Neither at the time of could not have been given seniority as CMO (Lecturer Grade) appointment. from a The date Tribunal earlier than was, the therefore, order of his wrong regular in directing that his seniority as a lecturer should be counted from the date he has started working as CMO (Lecturer regularization did he challenge of the his‘ validity services of nor the at said any Rules. subsequent Therefore, time he / \ 2 1997 (2) JLJ 37 \ b CH Grade). Te Tribunal failed to appreciate that the said direction was contraly to the statutory rules and for that reason no benefit on the basis of principle of continuous officiation could have been given to him. As the services of Dr. Tiwari were regularized on 4.4.1987 and he was appointed regularly from that date on an equivalent post the Government has rightly determined his seniority as a lecturer from back date. Merely because the Government declared him as a lecturer on 21.7.1989, it would not have been fair and just to grant him seniority as a lecturer only from that date. The contention to that effect raised on behalf of the appellant Dr. Chhabra has thus no substance and has to be rejected.” In Direct Recruit Class II Engineering Officers’ Association (supra) it was observed that where initial appointment is only on’ad hoc basis and not in accordance with rules and made as a stopgap arrangement, the ofiiciation on such post cannot be taken into account for considering seniority. For the reasons recorded hereinabove and applying the well settled provisions of law to the facts of the case, we are of the considered opinion that the Tribunal erred in coming to the conclusion that the respondent No.1 is entitled to regularization wef. the initial date of appointment i.e. 14.6. 1971 on temporary basis. Accordingly, the petition is allowed and the impugned order 13.5. 1998 (Annexure P/5) is quashed. Original Application No. 1125/91 flled before the Tribunal is dismissed. No order asto costs. Sd/— Prashant Kumar Mishra Judge Thakur h