Andhra HC (Pre-Telangana)
P. Kalavathi vs The Director, Nizam'S Institute Of ... on 23 November, 1994
Equivalent citations: 1995(1)ALT181
ORDER S.V. Maruthi, J.
1. This Writ Petition is filed for a direction to call for the records relating to Circular Re. No. 4/ 197/89-E1, dt. 7-11-1991 and also for a consequential order to the effect that the promotion of the 2nd respondent as Senior Lab-Investigator issued in proceedings Rc.No. 4/260/NIMS/92-E2, dt. 11-3-1992, is arbitrary, discriminatory and violative of the principles of natural justice.
2. The petitioner was appointed pursuant to an advertisement dt.26-2-1988 as junior lab investigator in the Nizams Institute of Medical Sciences. The educational qualifications prescribed for the post of junior lab-investigator are-B.Sc. with Botany, Zoology, Chemistry subjects and a Diploma/Certificate course in Medical Lab-Technology from a Medical College. The petitioner passed M.Sc., with Chemistry and possess Diploma in preventive medicine. In addition to that, she had practical experience in the Laboratory tests for more than a year. She was called for the interview along with the other eligible candidates on 17-9-1988. She was selected and placed as No. 1 in the list of candidates selected on that day. Punishment to the selection, an appointment order was issued on 28-9-88. She joined duty on 15-10-1988. The appointment was made on a consolidated pay of Rs.800/-. With effect from 12-5-89 she was paid the time scale to the said post. The services of the petitioner were regularised with effect from 15-10-88 by order dt. 7-9-90. On her appointment, the petitioner was placed on probation for a period of two years within a continuous period of three years from 15-10-1988. She had completed her probation. On 26-9-91, the first respondent issued a seniority list of junior lab-investigators of the Institute. According to the said seniority list, petitioner was shown at Sl. No. 15. The date of regularisation was shown as 1-4-1989 instead of dated 7-11-91 changed the seniority list of junior lab-investigators fixed earlier, by circular dt. 26-9-91 and placed the 2nd respondent at Sl. No. 15 i.e., above the petitioner without any notice to her. The 2nd respondent joined duty on 21-10-1988 as junior lab-investigator, whereas the petitioner joined on 15-10-1988 and her services were regularised with effect from that date. It is her submission that the 2nd respondent should not therefore be given seniority over the petitioner. The 1st respondent also created 15 posts of senior lab-investigators by proceedings dt.20-2-1992. The 1st respondent by his proceedings dt. 11-3-92 promoted the 2nd respondent as senior lab-investigator along with 14 other junior lab-investigators. Since the 2nd respondent is junior to the petitioner, the petitioner contends that the 2nd respondent is not entitled to be promoted. Hence the Writ Petition.
3. The first and 2nd respondents filed counter-affidavits. In the counter-affidavit filed by the 1st respondent, it is stated that the 2nd respondent applied for the post of Junior lab-investigator in pursuance of the notification issued by the Institute and he was also interviewed on 17-9-1988 by the Selection Committee. On the basis of the recommendation of the selection committee, he was appointed on 28-9-1988. The Selection Committee placed the 2nd respondent as No. 1 in the merit list whereas the petitioner was shown as No. 2 in the merit list. Though the petitioner and the 2nd respondent were appointed on 28-9-88, relying on the ranking given by the selection committee, the 2nd responds it was treated as senior. In the provisional seniority list dt.25-9-91, the petitioner was shown as No. 15 and the 2nd respondent was shown as No. 33. However, on objections received by both the 2nd respondent as well as the petitioner, the seniority list was corrected by proceedings dt.7-11-91, in which the petitioner was shown as Sl. No. 16 and the 2nd respondent was shown as Sl. No. 15, basing on the ranking given by the Selection Committee. To the same effect is the counter filed by the 2nd respondent.
4. The main argument of the learned Counsel for the petitioner is that in the order of appointment the petitioner was shown as No. 1, which indicates the rank in the merit list and her services were regularised by the proceedings dt.7-9-90 with effect from 15-10-1988 and in the seniority list dt. 26-9-91 she was shown at Sl. No. 15 and the 2nd respondent was shown at Sl. No. 33. But in the revised seniority list petitioner was shown at Sl. No. 16 and the 2nd respondent at Sl. No. 15. This petitioner submits that it was done without any notice to her and is in violation of principles of natural justice. It is her further submission that a notice ought to have been issued to her and in the absence of the same, the revised seniority list cannot be given effect to and is liable to be set aside. In support of the above contention, counsel relied on Union of India v. Madanlal Patiala, 1971 (2) SLR 51, Abdul Rashid Kadiri v. State of J & K 1973 (2) SLR 184, S.K. Ghosh v. Union of India, and N. Chandmmouli v. Chiklakkaiah, 1980 (1) SLR 849. Counsel also submits that the ranking in the merit list is irrelevant, when once regularisation is made with effect from the date from which she was appointed.
5. The 1st respondent produced the record before me. According to the record, a press note was issued on 26-2-88 calling for applications for the appointment of Laboratory investigators. The minimum qualifications required are-B.Sc., (MFC) I Class or M.Sc. (Physics) or an equivalent qualification. It also stated that selected candidates for laboratory investigators will be given training for a period of six months on payment of a consolidated salary of Rs. 800/- per month, and on completion of satisfactory training, the selected candidates will be considered for regular post of laboratory investigator. The qualifications possessed by the petitioner and the 2nd respondent are-
Petitioner-B.Sc. (2nd class) from Osmania University, M.Sc. (2nd class) from Kanpur University.
Medical Lab Technician Course, 1987 from Institute of Preventive Medicine, Narayanaguda.
She has experience in Medinova Coastal Cardiac Centre, Vijayawada from July, 1987 till the date of interview.
2nd respondent: B.Sc. (1st class) and M.Sc. (1st class) from Madras University. He had the experience as Junior Scientific Assistant into projects of W.H.O./ICMR at IISC Bangalore, under guidance of Prof. Dr. Mondgal.
The Selection Committee interviewed the candidates and placed them in the order of merit. In the merit list, the 2nd respondent was shown as No. 1 and the petitioner as No. 2.
6. Pursuant to the selection made by the selection committee, orders of appointment were issued. The order of appointment was issued to the 2nd respondent on 28-9-88 and he was appointed on a consolidated pay of Rs. 1,400/- per month for a period of one year from the date of joining the Institute. The petitioner was also issued the appointment order on 28-9-88 and she was placed on a consolidated pay of Rs. 800/- per month for a period of six months from the date of joining the Institute. It appears from the record that the 2nd respondent was placed on a consolidated pay of Rs. 1,400/- whereas the petitioner at Rs. 800/- by cesolidated pay, Though reason for giving a higher consolidated pay, it appears the authorities have given a higher consolidated pay to the 2nd respondent on account of the fact that he possessed first class degree from the Madras University and also perhaps on account of his association with the World Health Organisation and ICMR at 11SC, Bangalore. On the basis of the ranking, the seniority list appears to have been communicated on 26-9-91 wherein the petitioner was shown at Sl. No. 15 and the 2nd respondent at Sl. No. 33 and the date of regularisation of the petitioner was shown as 1-4-1989 and that of the 2nd respondent as 20-10-89.On the basis of the objections received, the seniority list appears to have been modified; in which the 2nd respondent was shown as Sl.No. 15 and the petitioner was shown as Sl. No. 16.
7. Admittedly, the revision of seniority is on the basis of ranking given by the selection committee which indicate that the 2nd respondent was placed at No. 1 and independent order of appointment was issued to him with higher consolidated pay - perhaps on account of his higher qualifications; whereas a different order of appointment was issued to the petitioner and she was placed on a lesser consolidated pay. Admittedly, the seniority list prepared on 26-9-91 and communicated to the petitioner as well as the 2nd respondent was without taking into account the order of ranking given in the merit list. Therefore, on receipt of objections, the same has been rectified by the seniority list dated 7-11-1991 and the seniority list dated 7-11-1991 reflects the correct position viz., ranking given in the merit list.
8. The argument of the learned Counsel for the petitioner is that the revision of seniority list dated 7-11-1991 is without any notice to the petitioner and therefore it is liable to be set aside. There is no substance in the argument of the learned Counsel. The seniority list dated 26-9-1991 is provisional which was communicated to all the persons concerned. The petitioner as well as the respondent submitted their objections. On the basis of the objection, the revised seniority list was prepared on 7-11-1991, which reflects the correct position. The seniority list prepared on 26-9-1991 is without reference to the merit list prepared by the selection committee. The fact that the petitioner was shown at Sl. No. 15 does not confer any right on her to claim that seniority as it is not in accordance with the merit list prepared by the selection committee. The seniority list dated 26-9-1991 was communicated to her and objections were called for and on a consideration of the objections filed by the petitioner as well as the respondents, the seniority list was rectified. There cannot be any dispute about the proposition that in the case of an administrative order resulting in civil consequences the principles of natural justice should be satisfied. As pointed out earlier, the original seniority list dated 26-9-1991 is based on incorrect position and not in accordance with the merit list prepared by the selection committee. Therefore the question of giving notice to the petitioner does not arise. Even otherwise, the petitioner was notified the seniority list dated 26-9-1991 by calling for objections. Therefore there is compliance with principles of natural justice. Since the promotion of the 2nd respondent was made on the basis of the seniority and on the basis of ranking obtained in the selection of Junior Lab-Investigator, there is no illegality or irregularity in promoting him.
9. The other contention raised by the petitioner is that her services were regularised with effect from 15-10-1988 whereas the services of the respondent were regularised on 20-10-1989. Therefore, if the date of regularisation is taken into account, admittedly, the 2nd respondent is junior to the petitioner and therefore he ought not to have been considered for promotion or he could not have been shown as senior to the petitioner. The regularisation of service is irrelevant for the purpose of fixing seniority, as the rank assigned in the merit list is the only relevant factor. Therefore, this contention of the learned Counsel for the petitioner is rejected.
10. Regarding the aspect of revising seniority without issuing notice as arbitrary, I have already dealt with this aspect in the earlier paragraphs.
11. As regards the decision referred to by the learned Counsel for the petitioner, there cannot be any dispute about the propositions referred to in the judgments. But the question is whether the said propositions are applicable to the facts of the Present case. I am of the view that having regard to the facts of this case, the question of violation of principles of natural justice or giving an opportunity to the petitioner does not arise. It is always open to the authorities to rectify the error/mistake committed in the preparation of the seniority list.
12. In view of the above, the writ petition has no merit and it is accordingly dismissed. In the circumstances of the case, no costs.