Allahabad High Court
Dr. Rita Wahal vs Chancellor, King George'S Medical ... on 10 May, 2017
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved 1. Case :- SERVICE BENCH No. - 346 of 2014 Petitioner :- Dr. Rita Wahal Respondent :- Chancellor, King George'S Medical University,Lucknow & 3 Ors Counsel for Petitioner :- Sandeep Dixit Counsel for Respondent :- K. Chandra,Anurag Kumar Singh,Gaurav Mehrotra,Prakhar Kanakan,Prakhar Kankan,Sameer Kalia,Saurabh Lavania 2. Case :- SERVICE BENCH No. - 637 of 2014 Petitioner :- Dr. Gyan Prakash Singh Respondent :- King George'S Medical University Through Vice Chancellor Lko Counsel for Petitioner :- Sandeep Dixit Counsel for Respondent :- K.Chandra,Gaurav Mehrotra,Saurabh Lavania Hon'ble Shri Narayan Shukla,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. Heard Mr. Sandeep Dixit, learned counsel for the petitioner, Mr. Sameer Kalia, learned counsel for the respondent no.1, Mr. Saurabh Lavania, learned counsel for the King George's Medical University, Lucknow, Mr. Asit Kumar Chaturvedi, learned Senior Counsel Assisted by Mr. Prakhar Kankan, learned counsel for the respondent no.4 and Mr Gaurav Mehrotra, learned counsel for the respondent nos.6 to 8.
2. By means of Writ Petition No.346 (SB) of 2014 filed under Article 226 of the Constitution of India the petitioner has challenged the resolution of the Executive Council dated 06.05.2013, Seniority Committee's recommendation dated 10.05.2013, resolution of the Executive Council dated 13.05.2013 and subsequent office order dated 14.05.2013 and Chancellor's order dated 19.09.2013. It has further been prayed that by means of issuing a writ, order or direction in the nature of mandamus the respondents be directed to implement the recommendation of the Seniority Committee dated 29.08.2012 and appoint the petitioner Dr. Rita Wahal as Head of Department of Anesthesia as per recommendation of the Committee.
3. By filing subsequent writ petition bearing Writ Petition No.637 (SB) of 2014, the petitioner Dr. Gyan Prakash Singh has also assailed the resolution of the Executive Council dated 06.05.2013 and subsequent all other orders which are part of Writ Petition No.346 (SB) of 2014 including the prayer to quash the resolution of the Executive Council dated 13.09.1998 and further to issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect to the resolution dated 06.05.2013 and subsequent Executive Council's resolution dated 13.05.2013. Petitioner Dr. Gyan Prakash Singh has further prayed for issue a writ, order or direction in the nature of mandamus to declare him senior to respondent nos. 3 to 7.
4. Since in both the petitions same orders have been challenged therefore they are being decided by a common order.
5. Brief facts giving rise to filing of the aforesaid writ petitions are that King Georges Medical College, Lucknow (KGMC) is the constituent college of Lucknow University and appointments were to be made in accordance with the provisions of U.P. State Universities Act, 1973 and the statutes framed there under. After taking over Act of 1983 the college was to be maintained by the State Government and with effect from 18.07.1981 the KGMC was to be fully owned, controlled and managed by the State Government and all appointments in the college were to be made by the State Government in accordance with the procedure applicable at the time. After the KGMC, Lucknow was taken over by the State Government, the service rules framed by the State Government became applicable to all existing posts of KGMC. Before 1986, there were nine posts of Whole Time Anesthetist (for short WTA) in KGMC Lucknow. The Secretary, Medical, Health and Family Welfare vide his report dated 04.06.1987 sent a proposal to the Government for conversion of the posts of WTAs into the posts of Lecturers and the State Government granted its approval for conversion of five posts of WTAs in order of seniority and issued Government Order on 07.08.1987. After issue of the Government Order consequential appointment letters/orders of five WTAs were issued in accordance with seniority. In respect to remaining four posts of WTAs a further recommendation was sent to the Government and vide Government Order dated 04.06.1988 the Government granted sanction for conversion of remaining four posts of WTAs into Lecturers. The sanction was to be operative from the date of issue of the said Government Order or from the date the charge was taken over of the converted post, whichever be later. The said sanction was made subject to condition that two temporary posts of Lecturers in the department sanctioned and created vide Government Order dated 27.10.1986 and the posts of Lecturers which were likely to fall vacant on account of promotion to the post of Reader/Professor shall stand abolished and no appointment on the post of WTA shall be made in future in KGMC Lucknow or its associated hospitals and the teaching staff would also look after the job of anesthesia in the operation theater.
6. In the meantime the Government Order dated 04.06.1988 was cancelled by the State Government in September, 1988 for the reasons that Public Service Commission had issued an advertisement for the recruitment of two posts of Lecturers in anesthesia. Dr. Rita Wahal appeared before Public Service Commission. Dr. Shobhna Jafa was appointed as WTA in the year 1983 for a specified period or till duly selected candidate is appointed by the Public Service Commission.
7. In light of the order dated 10.08.1987/11.08.1987, the following persons joined the department:-
Sl.No. Name Date of Appointment 1 Dr. Gurumeet Singh 11.08.1987 2 Dr. Jaishree Bogra 11.08.1987 3 Dr. Shashi Bhushan 11.08.1987 4 Dr. V.K. Bhatia 11.08.1987 5 Dr. Anita Malik 11.08.1987 6 Dr. Shobhna Jafa 07.06.1988 7 Dr. Rita Wahal 04.11.1988/13.12.1988 8 Dr. G.P. Singh 10.10.1990
8. Dr. Rita Wahal was previously appointed on 04.11.1988 but her appointment was challenged before the Court in Writ Petition No.4765 of 1988 and the connected matters and vide order passed in the aforesaid writ petition, the conversion of the post of Lecturer relating to appointment of Dr. Rita Wahal was made subject to scrutiny and on certain conditions the State Government was directed to consider the retention of Dr. Rita Wahal by creating a post. In the meantime, vide Government Order dated 17.10.1989 Dr. Rita Wahal was appointed with the consultation of the Public Service Commission and she joined on 13.12.1988. The petitioner Dr. Rita Wahal has challenged the order of the respondents on the ground that the appointments of rest of the respondents are dehors the rules and appointments were made without consultation of Public Service Commission. Thus, they cannot be said to be senior to the petitioner and the seniority may be fixed accordingly and the previous order passed by the Executive Council relating to seniority be quashed. A similar prayer has been made by Dr. G.P. Singh on similar ground challenging the seniority list determined by the Executive Council vide resolution dated 13.05.2013.
9. While submitting separate counter affidavit by the respondents, it has been submitted that two posts of Lecturers were created vide order dated 27.10.1986 and five posts of WTAs were converted to the posts of Lecturers vide order dated 07.08.1987 and first five persons were adjusted against the posts of WTAs vide order dated 10.08.1987 and the respondents as mentioned from Gurumeet Singh to Anita Malik joined the services in accordance with rules on 11.08.1987 and accordingly they are senior to the petitioners.
10. It is admitted fact that the petitioners as well as the respondents while working in the Medical College were treated by the authorities as regular appointees and after that they were posted as Assistant Professors, later on promoted as Associate Professors and Professors and are continuously working in KGMC without any interruption and the appointment made in 1987 has never been challenged by the petitioners or these appointments have never been questioned or held to be in contravention of the then existing rules. The question to be determined by the Court in these writ petitions is as to whether the appointments of the respondents are dehors the rules and the seniority as determined by the Executive Council is arbitrary, malafide or is not in accordance with prescribed procedure.
11. Learned counsel for the petitioners has argued that the seniority of the respondents should be separately maintained treating the posts as ex-cadre posts and reliance has been placed on the following pronouncements:-
i. (1995) 3 SCC 653 - Dr. Rashami Srivastava v. Vikram University.
ii. (2004) 8 SCC 599 - Satchidanand Mishra v. State of Orissa and others iii. (2013) 2 SCC 516 - Bhupendra Nath Hazarika and others v. State of Assam and others.
In Paragraph 18 of the first referred case there is provision to determine the seniority on the basis of order of merit or from the date of appointment or promotion to the post. Here in the present cases, there is not the case of fixing seniority of ex-cadre posts. It is the appointing authority/department concerned/ Executive Council of the University to make an appointment and if appointment has been made on a substantive post, by interpretation as suggested by the petitioners, the Court cannot treat the appointment as the appointment on ex-cadre post only.
12. The bone of contention in the present matter relates to the post of WTA of the respondents, which was converted into the post of Lecturer in Anesthesiology Department. The Government Orders dated 4.6.1988 and 6.9.1988 were challenged before the Court in which interim order was passed and the respondents were permitted to continue on the post of Lecturer and the relevant orders were issued. Again a writ petition was filed in the year 1988 by one Dr. Reeta Wahal and Others, which was decided by this Court vide order dated 5.7.1989 where it was held that cancellation of Government Order, had the effect of creating a group and as such the same has to be considered by the competent authority. Aggrieved by the aforesaid order, a Special Leave Petition was filed before the Hon'ble Supreme Court bearing Special Leave Petition (C) No.-13264 of 1989 ( Dr. Shobhna Jafa Versus The State of Uttar Pradesh and Others), in which after considering the submissions of learned Counsel for the parties, the Hon'ble Supreme Court has held as under:-
" King George Medical College, Lucknow. It is thus obvious that initially under the orders of the High Court and thereafter under the interim order of this Court the petitioner has been working as Lecturer and thereafter as Assistant Professor regularly. We are of the view that it would be in the interest of justice to direct the petitioner be deemed to be regularly working as a Lecturer and thereafter as Assistant Professor. We order accordingly.
The appeal is allowed. No cost."
13. In the light of directions of Hon'ble Apex Court, the respondents were regularly working as Lecturer and thereafter as Assistant Professor, thus the dispute regarding the appointment of respondents had been finally settled by the order of Hon'ble Apex Court. After the decision of the Hon'ble Apex Court dated 21.4.1995, the petitioners as well as the respondents were promoted on the post of Assistant Professor and Professor in the year 1997 and 1999 respectively, on the basis of seniority list prepared by the University and now challenging the seniority list as settled between the parties and resolved by the Executive Council of University.
14. Learned Counsel for the petitioners has challenged the jurisdiction of the Seniority Committee dated 06.5.2013, on the basis of the appointment made in the year 1986-87.
15. Learned Counsel for the respondents has submitted that the appointment order, which has been finally settled by the Executive Council and the various writ petitions, now cannot be challenged by way of taking shelter of seniority. The settled legal preposition is with the consequential orders without challenging the basic order and statutory provisions on the basis of which the orders have been passed, cannot be entertained. In support of his submission, learned Counsel for the respondents has placed reliance from the following citations:- Edukanti Kistamma Versus Venkatareddy, (2010)1 SCC 756, P.Chitharanja Menon Versus A.Balakrishnan, (1977) 3 SCC 255, H.V. Pardasani Versus Union of India, (1985) 2 SCC 468, Government of Maharashtra Versus Deokar's Distillery, (2003).
16. The issue of challenging King George's Medical College and the Gandhi Memorial and Associated Hospitals, employees transferred to the Government Service Rules 1984 deals with the service conditions of the employees of the college and hospital. It is also submitted that Rule 3(1) provides that "Every employee who continues to be in service on the date of commencement of these Rules may, within forty five days from the date of commencement of these Rules, in writing signed by him. Opt to continue to be governed by the University Rules in respect of his service conditions." Rule 4 provides that "Application of Government service Rules- Every employee who continues to be in Service on the date of commencement of these Rules other than an employee who has opted for being governed by the University Rules under rule 3, shall, with effect from the expiration of 45 days from the commencement of these Rules, be governed by the Fundamental Rules, leave rules, retirement benefit rules, conduct rules and all other rules relating to Service matters which are applicable to the government servants generally serving in connection with the affairs of the State anything to the contrary in the University Rules notwithstanding: and to that extent the terms and conditions of their service shall stand altered.
Provided that an employee, whose age of superannuation is reduced to 58 years due to application of Fundamental Rules as aforesaid, and who attains the age of 58 years at any time before the expiration of 45 days from the commencement of these Rules may, on his application in writing to that effect, be allowed to continue in service till the attains the age of 60 years on the conditions that no gratuity shall be admissible to him and the pension of family pension admissible in his case shall be computed on the basis of service rendered by him till the age of 58 years only."
17. Government order dated 10.8.1987 provides the order of seniority through which the Government has converted five posts of WTA to the post of Lecturer in Anesthesiology.
18. It has been submitted by learned Counsel for the respondents that Dr. Gurmeet Singh, who was placed at serial no.-1 and had joined as Superintendent of Hospital and as such ceased is to be faculty Member of the Department of Anesthesiology.
19. Learned Counsel for the petitioners has submitted that the appointment on the post of Professor or Associate Professor and Assistant Professor is contained in Chapter X of Classification of Teachers Rule 10.01-A and 10.02, which reads as under:-
"10.01-A- In the faculties of Medicine and Dental Sciences there shall be following classes of teachers:
(1) Professor (2) Associate Professor (3) Assistant Professor/Lecturer A- Lecturer having 3 years teaching experience as such or as Chief Resident/ Senior Resident/ [Tutor/Demonstrator/Registrar] or equivalent after obtaining requisite recognized Postgraduate qualification shall automatically become Assistant Professor. (Also, 50% of the time served as Research Associate or equivalent in ICMR or CSIR research scheme upto maximum of 18 months will count as teaching experience for this clause).
Clause of Equivalence between 10.01 and 10.01-A Readers, mentioned in 10.01 Supra will mean mentioned in 10.01 supra will mean Assistant Professors mentioned in 10.01 A. 10.02- Teachers of the University shall be appointed in the subjects on whole-time basis in the scales of pay approved by the State Government:
Section 31 & 49(d) Provided that part-time lecturers may be appointed in subjects in which, in the opinion of the Academic Council such lecturers, are required in the interest of teaching or for others reasons. Such part-time lecturers may receive salary ordinarily not exceeding one-half If the initial salary of the scale for the post to which they are appointed. Persons working as Research fellows or as Research Assistants may be recalled upon to act as part time lecturers."
20. In District Mining officer vs. Tata Iron and Steel co. (2001) 7 SCC 358, Hon'ble Supreme court has held that function of the court is only to expound the law and not to legislate. A statute has to be construed according to the intent of them and make it the duty of the court to act upon true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose the interpretation which represents the true intention of the legislature.
21. In Krishna vs. state of Maharashtra (2001)2 SCC 441: Hon'ble Supreme court has held that, in absence of clear words indicating legislature intent, it is open to the court ,when interpreting any provision , to read with other provision of the same statute.
22. In Essen Deinki vs. Rajiv Kumar (2002)8 SCC 409, it has been observed that it is the duty of the court to give broad interpretation keeping in view the purpose of such legislation of preventing arbitrary action however statutory requirement can not be ignored.
23. In Grasim industries ltd. vs. Collector of Custom (2002) 4 SCC297, it has been held that while interpreting any word of a statute every word and provision should be looked at generally and in the context in which it is used and not in isolation.
24. In Bhatia international vs. Bulk trading S.A. (2002)4 SCC 105, it has been held that where statutory provision can be interpreted in more than one way , court must identify the interpretation which represents the true intention of legislature. While deciding which is the true meaning and intention of the legislature, court must consider the consequences that would result from the various alternative constructions. Court must reject the construction which leads to hardship, serious inconvenience, injustice, anomaly or uncertainty and friction in the very system that the statute concerned is suppose to regulate.
25. In S.Samuel M.D. Harresons Malayalam vs. UOI (2004)1 SCC 256, it has been held that when a word is not defined in the statute a common parallence meaning out of several meanings provided in the dictionaries can be selected having regard to the context in which the appeared in the statute.
26. In M. Subba Reddy vs. A.P. SRTC (2004) 6 SCC 729, it has been held that although hardships can not be a ground for striking down the legislation, but where ever possible statute to be interpreted to avoid hardships.
27. In Delhi Financial Corpn. Vs. Rajiv Anand (2004)11 SCC 625, it has been held that legislature is presumed to have made no mistake and that it intended to say what it said. Assuming there is a defect or an omission in the words used by the legislature , the court can not correct or make up the deficiency , especially where a literal reading there of produces an intelligible result .the court is not authorized to alter words or provide a casus omissus.
28. In Deepal Girish bhai soni vs. United India insurance ltd. (2004) 5 SCC 385, it has been held that statute to be read in entirety and purport and object of Act to be given its full effect by applying principle of purposive construction.
29. In Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551, it has been held that interpretation of a statute depends upon the text and context there of and object with which the same was made. It must be construed having regard to its scheme and the ordinary state of affairs and consequences flowing there from - must be construed in such a manner so as to effective and operative on the principle of "ut res magis valeat quam pereat". When there is to meaning of a word and one making the statute absolutely vague, and meaningless and other leading to certainty and a meaningful interpretation are given, in such an event the later should be followed.
30. In Bharat petroleum corpn.ltd. vs. Maddula Ratnavali (2007) 6 SCC 81, it has been observed that Court should construe a statute justly. An unjust law is no law at all. Maxim "Lex in justa non est."
31. Deevan Singh vs. Rajendra Pd. Ardevi (2007)10 SCC528, it has been held that while interpreting a statute the entire statute must be first read as a whole then section by section , clause by clause , phrase by phrase and word by word .the relevant provision of statute must thus read harmoniously.
32. In Japani sahoo vs. Chandra shekhar mohanty (2007) 7 SCC 394, it has been held that a court would so interpret a provision as would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconditional by adopting rule of literal legis.
33. In 2010 (9) SCC 280, Zakiya Begum Vs. Shanaz Ali, it has been held that an Explanation to a section should normally be read to harmonise with and clear up any ambiguity in the main section and normally not to widen its ambit.
34. In 2010 (7) SCC 129, Bondu Ramaswamy Vs. Bangalore Development Authority, it has been observed that an interpretation that would avoid absurd results should be adopted - When the object or policy of a statute can be ascertained, imprecision in its language not to be allowed in the way of adopting a reasonable construction which avoids absurdities and incongruities and carries out the object or policy.
35. Mr. Gaurav Mehrotra, learned counsel for the respondents, has submitted that once cadres have been merged or a post is merged in another cadre, the same loses its birthmark and becomes equal to the cadre with which it has been merged and the employee concerned has a right to get positioned appropriately in the merged cadre. Reliance has been placed on the following citations:-
i. (2014) 5 SCC 101 - Panchraj Tiwari v. Madhya Pradesh State Electricity Board and others.
ii. (2013) 7 SCC 335 - S. Sivaguru v. State of T.N.
36. It has further been submitted on the following law points that if there is no difference in the nature of duties being performed by two different cadres, then two cadres can be merged to provide them the same service benefits.
i. (2013) 7 SCC 335 - S. Sivaguru v. State of T.N. ii. (2000) 1 SCC 644 - Sub- Inspector Rooplal v. Lt. Governor
37. A question of fixing the seniority has also been raised by learned counsel for the petitioners which was contested by the respondents. The version of the petitioners is that the seniority shall be counted from the date of substantive appointment and the petitioners have argued that the appointments of the respondents are not substantive appointments.
38. Let us deal the settled proposition of law determining the seniority in the service cadre.
39. In the State of Uttaranchal and another versus Dinesh Kumar Sharma (2007)1 SCC 683, Hon. Supreme Court ruled that the seniority should be reckoned from the date of substantive appointment and not from the date of occurrence of vacancy. The provisions contained in the Rules cannot be ignored. While dealing with the matter with regard to Service Rules of U.P. Agriculture Group B, their Lordships further held that there can be no automatic appointment /promotion on mere recommendation of PSC unless Government sanctions such appointment/promotion.
40. In the case of Roshan Lal Tandaon vs. Union of India - AIR 1967 SC 1889, it was held that it is the length of actual service that must be the determining factor in the matter of promotion and consequential seniority.
41. In Arvinder Singh Bains vs. State of Punjab and others - (2006) 6 SCC 673, the ratio as laid down by the Court was as under:-
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to, the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised, that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
42. The view of the Court may be considered in light of H.C. Mathur (Dr.) v. State of U.P. - 1991 Lab IC 1846 (All.) and Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25 where in Paragraph 20 it was held that in service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed 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 fortuitous or purely ad hoc.
43. Learned counsel for the respondents has relied upon the case of Prafulla Kumar Swain v. Prakash Chandra Misra and others - 1993 Supp. (3) SCC 181, where it was held that services will be counted from the date of appointment to the service.
"38. The gradation list has been in operation over several years. We see no reason to unsettle the settled position. In this behalf we draw support from the judgment of this Court In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. We may also note that though the same question was before this Court a little before the petition was made by respondent I before the Tribunal, no effort was made by respondent 1 to intervene and place before this Court his point of view. It is inconceivable that he would not have known that the same question was before this Court."
44. In Bimlesh Tanwar v. State of Haryana and others - AIR 20003 SC 2000, it was held that determination of seniority should be based on basis of merit in terms of merit list or on the basis of date of joining of the post.
45. Hon'ble the Apex Court while deciding the case of B.S. Mathur and another v. Union of India and others - (2008) 10 SCC 271, held that determination of inter-se seniority by applying the principle of continuous length of the service in accordance with seniority rules is proper procedure. It may be pertinent to mention that steps for appointment of direct recruitment through Public Service Commission were actually taken by the respondent State many years before their appointment actually took place but the appointment came in place only after considerable delay. Though as per law the direct recruits cannot be blamed or faulted for the delay because in their appointments, the fact remains that delay in appointment should not cause any disadvantage to the incumbents appointed in the service and the service shall be deemed to be continued from the date of their appointment.
46. Further it has to be kept into consideration that seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises.
47. As contended by learned counsel for the respondents that the seniority list prepared on the basis of the principle of continuous length of service clearly demonstrates that in case the seniority of the officers is fixed by reference to their date of appointment, then nobody would suffer any injustice. Each and every officer would get due weightage of the service rendered by him or her in the cadre. If inter-se seniority is finally decided by applying the principle of continuous length of service, it may bring an end to litigation between the officers of two groups. Therefore, the principle of continuous length of service should be applied for determining the inter-se seniority of the officers. (R.K. Sabharwal and others v. State of Punjab - MANU/SC/0259/1995)
48. In Rudra Kumar Sain v. Union of India - (2000) 8 SCC 25, it was held that the seniority of the officers should be decided on the basis of continuous length of service.
49. The best solution to the situation is to have continuous officiation against the sanctioned and available vacancies ought to receive due recognition in fixing the seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities.
50. Learned counsel for the respondents has submitted that even the recruitment of the respondents have been made in accordance with the procedure of recruitment rules and after due approval of the competent authority and the incumbents were duly qualified for being promoted, the appointment cannot be said to be ad-hoc appointments or stopgap arrangement.
51. It has been argued that the appointment of the respondents is within the category of ad-hoc appointment. But perusal of the submissions made by the parties and the condition of appointment reveal that it is not a case of ad-hoc appointment. The respondents were eligible to be promoted on the post and they were considered by the competent committee and after due approval of the competent authority they were promoted on the substantive posts. Thus, their appointments can never be said to be ad-hoc appointments.
52. The three terms 'ad hoc', 'stop gap' and 'fortuitous' are in frequent use in Service Jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made under Recruitment Rules, after due consultation with the competent authority and the appointee possesses the prescribed qualification for such appointment provided in Rule and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law dictionary, the expression "fortuitous" means "occurring by chance", '"a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only, by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stop-gap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need".
53. In Oxford Dictionary, the word 'ad hoc' means for a particular purpose; specially. In the same Dictionary, the word 'fortuitous' means happening by accident or chance rather than design.
54. In P. Ramanatha Aiyer's Law Lexicon (2nd Edition) the word 'ad hoc' is described as "for particular purpose, made, established, acting or concerned with a particular and or purpose'. The meaning of word 'fortuitous event' is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God'.
55. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding Cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made without applying the procedure of appointment then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter-se seniority of officers in the Cadre.
56. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which, the appointment of the officers promoted in the service in the case in hand was argued to be 'fortuitous/ad hoc/stop-gap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
57. The question that the recruits should be alloted vacancy of the year has been replied in Suraj Prakash Gupta and others v. State of J & K - MANU/SC/0337/2000 in paragraphs 81 and 82 as under:-
"81. We have next to refer to one other contention raised by the respondents-direct recruits. They claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under direct recruitment quota.
82. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service Jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat- [1977]1SCR1037 Krishna Iyer, J. stated:
later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service.
Again, in A. Janardhana v. Union of India - (1983)IILLJ175SC it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secretary to the Government - (1987)IILLJ140SC at p. 767 that slots cannot be kept reserved for the direct recruits for retrospective appointments."
58. In S.B. Patwardhan Vs. State of Maharastra, AIR 1977 SC 2051, the Apex Court held that the period of continuous officiation in government service, after appointment of an employee by following the Rules applicable for substantive appointment has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the available eligible candidates and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal, which would violate the equality clause. If the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly and basic appointment was in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority.
59. Same view has been reiterated in Baleshwar Dass & Ors. Vs. State of U.P. & Ors., AIR 1981 SC 41; and Delhi Water Supply and Sewage Disposal Committee & Ors. Vs. R.K. Kashyap, AIR 1989 SC 278.
60. In Narendra Chadha Vs. Union of India & Ors., AIR 1986 SC 638, the Hon'ble Supreme Court examined the case of officers promoted without following any procedure prescribed under the Rules but had continuously worked for 15-20 years on the posts without being reverted. The Court directed for counting the said officiating period for seniority observing that any other view would be arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution. The Court observed as under:-
"......But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results............... where there is no dispute regarding the entry of the officers concerned into the same Grade."
61. The facts of the present case reveal that the appointment of the respondents are in accordance with the procedure as prescribed in the service rules.
62. A Constitution Bench of the Supreme Court in the case of Direct Recruit Engineer's case, considered whether the ad hoc service followed by regular service could be counted for the purposes of seniority and in this context the Supreme Court observed in paragraph 44 as follows:-
"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted."
Under category (A) it has been expressly provided that where the initial appointment is not according to rule but is only ad hoc and made as a stop-gap arrangement, the period of officiation on such post cannot be counted for the purpose of seniority.
63. In Keshav Chandra Joshi & Ors. Vs. Union of India & Ors., AIR 1991 SC 284, the Hon'ble Supreme Court explained the scope of proposition "B" in Direct Recruit Class II Engineers (supra) observing as under:-
"Propositions ''A' and ''B' cover different aspects of one situation. One must discern the difference critically. Proposition ''B' must, therefore, be read along with para 13 of the judgment wherein the ratio decidendi of Narendra Chadha was held to have considerable for. The latter postulated that if the initial appointment to a substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to 20 years without reversion and still the date of regularisation of the service in accordance with the rules the period of officiating service has to be counted towards seniority. This Court in Narendra Chadha's case was cognizant of the fact that the rules empower the Government to relax the rule of appointment. Without reading paragraph 13 and Proposition ''B' and Chadha's ratio together the true import of the proposition would not be appreciated................ If the concerned rules provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner."
The Court also held that the appointment must be in substantive capacity and according to the Rules and within the quota of a substantive vacancy as there is a marked distinction between the appointment in substantive capacity and appointment to the substantive post. The officiation to post must be by an order of appointment and if the appointment on the post is validly made by the competent authority then only an employee becomes a member of the service. If the regularisation of an employee is not in accordance with the statutory provisions, officiation will not be reckoned for the purpose of seniority or promotion.
64. In State of West Bengal & Ors. Vs. Aghore Nath Dey & Ors., (1993) 3 SCC 371, the Apex Court elaborately explained the scope of the propositions (A) and (B) as set out in the aforementioned Direct Recruit case observing as under:-
"There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ''according to rules'. The corollary set out in conclusion (A), then is, that ''where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority...............We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).
In our opinion, the conclusion (B) was added to cover a different kind of situation wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ''if the initial appointment is not made by following the procedure laid down by the ''rules' and the latter expression ''till the regularization of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements, of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules........"
65. Similar view has been reiterated in U.P. Secretariat U.D.A. Association Vs. State of U.P. & Ors., JT 1997 (2) SC 461.
66. It has, therefore, to be ascertained from the facts of each case as to whether the case of the petitioners will fall under category (A) or (B) indicated by the Supreme Court in the Constitution Bench decision in the case of Direct Recruit Engineer's case.
67. The Supreme Court in the case of Masood Akhtar Khan Vs. State of M.P., (1990) 4 SCC 24; Excise Commissioner, Karnataka & Ors. Vs. V. Sreekanta, 1993 Supp. (3) SCC 53; Anuradha Bodi (Dr.) Vs. Municipal Corpn. of Delhi, (1998) 5 SCC 293; Keshav Deo Vs. State of U.P., (1999) 1 SCC 280; L. Chandrakishore Singh Vs. State of Manipur, (1999) 8 SCC 287; T. Vijayan & Ors. Vs. Divisional Railway Manager & Ors., AIR 2000 sc 1766; State of Bihar Vs. Kameshwar Prasad Singh, AIR 2000 SC 2306; and Santosh Kumar & Ors Vs. G.R. Chawla & Ors., AIR 2003 SC 3304, after considering the Constitution Bench decision in Direct Recruit Engineer's case, held that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
68. In Syed Khalid Rizvi & Ors. Vs. Union of India & Ors., 1993 Supp (3) SCC 575, the Apex Court while resolving the dispute of seniority between promotees and direct recruits in Indian Police Service, held that as determination of seniority has been interlinked with the recruitment of the promotee officers to the Indian Police Service, to satisfactorily solve the problem, the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.
69. It was so held observing that seniority, though normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the IPS by promotion, which should be strictly complied with before becoming eligible for consideration for promotion, and are not relaxable. In absence of the Rules, ordinarily the length of service is taken into account.
70. Similar view has been reiterated in A.K. Bhatnagar & Ors. Vs. Union of India & Ors. (1991) 1 SCC 544; Indian Administrative Service (SCS), Association U.P. & Ors. Vs. Union of India & Ors., 1993 Supp (1) SCC 730; and Prafulla Kumar Das & Ors. Vs. State of Orissa & Ors., (2003) 11 SCC 614, observing that seniority is an incidence of service and when rules prescribe the method of computation, it is squarely governed by such Rules. No one has vested right to promotion.
71. In Dr. M.A. Haque & Ors. Vs. Union of India & Ors., (1993) 2 SCC 213, the Supreme Court held that expression used by the Constitution Bench in Direct Recruit Engineer's case means "the Rules of recruitment and not the special procedure laid down by the Court". Therefore, the Apex Court emphasized that a case has to be examined giving paramount importance to the statutory Rules. If the appointments had been made without following the procedure prescribed under the statutory Rules, the question of reckoning the officiating period for determining the seniority will not arise.
72. In Md. Israils & Ors. Vs. State of West Bengal & Ors., AIR 2002 Sc 468, the Hon'ble Apex Court reiterated the same view and while deciding the case, reliance had also been placed upon the earlier judgments in Suraj Parkash Gupta Vs. State of J & K, AIR 2000 SC 2386; and M.K. Shanmugam Vs. Union of India, AIR 2000 SC 2704 wherein it has been held that the particular statutory Rules governing the services of an employee have to be kept in mind and in case the promotion was in accordance with the said Rules, reckoning the period of officiation for the purpose of seniority and promotion would not be questioned. The Court must also examine as to whether the authority had a power to grant relaxation under the said Rules and if relaxation is so granted, it should be in accordance with the said Rules.
73. Learned counsel for the petitioners has submitted that in light of the above reasons it requires relaxation by the competent authority and in case there is no relaxation the appointment of the respondents can be said to be within the purview of appointment dehors the rules. Here is not the case of non-compliance of the statutory rules. The appointment of the respondents was in accordance with rules prescribed in the service rules and after the decision of the Departmental Promotion Committee the appointment letter was issued by the competent authority after due approval. Thus, the grant of relaxation of any condition was not required while issuing appointment order to the respondents. The Government order issued clarifies the position of relaxation if any with seniority in order of merit.
74. In Ram Janam Singh v. State of U.P. and Anr. - (1994) 2 SCC 622 , Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309.
75. A two-Judge Bench of the Court in Jagdish Ch. Patnaik - (1998) 4 SCC 456, while construing the word 'recruited' occurring in Orissa Service of Engineers Rules, 1941, held that a candidate is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what the Court said:
34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the intervenors, to the effect that the expressions "recruitment" and "appointment" have two different concepts in the service jurisprudence and, therefore, when Rule uses the expression "recruited" it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the rule-makers in Rule. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression "recruited" should be interpreted to mean when the selection process really started. That apart the said expression "recruited" applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule....
76. The Court emphasized in the case of Uttaranchal Forest Rangers' Association that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. - (1991 (suppl.) 1 SCC 334 and Jagdish Ch. Patnaik - (1998) 4 SCC 456.
77. In the case of Dinesh Kumar Sharma , the Court was concerned with U.P. Agriculture Group 'B' Service Rules, 1995 and the 1991 Rules. With reference to Rule 8 of the 1991 Rules, the Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy.
78. The Constitution Bench of Apex Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715 stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The legal position with regard to determination of seniority in service was summarized by the Apex Court as follows:
"(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.
79. The latest pronouncement of Hon'ble the Apex Court decided on 14.02.2017 is Union of India and others v. N.C. Murali and others - MANU/SC/0302/2017, which provides better procedure to be adopted at the time of promotion from two sources. Relevant paragraphs are quoted below:-
"10. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava (supra) reported in - (2014) 14 SCC 730 in which Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows:
24. The learned Senior Counsel for the Appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh - (2011) 3 SCC 267 : (2011) 1 SCC (L & S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp. 281-82, para 45)
45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
XXX XXX XXX
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
11. Learned Counsel appearing for the Appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and Ors. and connected matter reported in - (2008) 14 SCC 29. Paragraph 7 of the judgment reads as follows:
"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera -1989 Supp. (2) SCC 625 : 1990 SCC (L & S) 127, State of Uttaranchal v. Dinesh Kumar Sharma - (2007) 1 SCC 683 : (2007) 1 SCC (L & S) 594, K.V. Subba Rao v. Govt. of A.P. - (1988) 2 SCC 201 : 1988 SCC (L & S) 506 : (1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar -(2004) 10 SCC 734 : 2005 SCC (L & S) 169 etc."
80. Learned counsel for the respondents has also placed reliance on the following cases:-
i. (2010) 4 SCC 301 - H.S. Vanikani & others v. State of Gujarat and others.
ii. (1998) 2 SCC 523 - B.S. Bajwa v. State of Punjab and others.
iii. (1986) 4 SCC 531 - K.R. Mudgal and others v. R.P. Singh and others.
iv. (1976) 1 SCC 599 - Malcom Lawrance Cecil D'Souza v. Union of India and others It has been argued that the question of seniority should not be reopened after the lapse of reasonable period (3-4 years) because that results in disturbing the settled position which is not justifiable.
81. It has further been submitted by learned State counsel that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his right and acquiesces into the situation, his writ petition cannot be heard after a lapse of years and the writ petitions are liable to be dismissed because the same suffer from inexplicable delay and laches. Reliance has been placed on the following pronouncements:-
i. (2015) 6 SCC 600 - Union of India and others v. Sri Hanuman Industries and another.
ii. (2015) 1 SCC 347 - State of U.P. and others v. Arvind Kumar Srivastava and others.
iii. (2009) 2 SCC 479 - S.S. Balu and another v. State of Kerala and others.
iv. (2006) 11 SCC 464 - U.P. Jal Nigam and another v. Jaswant Singh and another.
82. Learned Counsel for the respondents has argued that the petitioners has challenged the orders issued in the year 1986-87, which has been finally decided by the Courts in different writ petitions and has been finally settled by the order of Hon'ble Apex Court and it was placed before the Executive Council of the University dealing with the matter and competent to decide the matter in the year 1998 and the petitioners challenged the resolution dated 13.9.1998 directly or indirectly passed by the Executive Council of the Lucknow University at the belated stage without any explanation regarding the inordinate delay and laches in challenging the said resolution dated 13.9.1998 and the writ petition on this very ground is not maintainable. The decision of the Executive Council dated 13.9.1998 settled the issue of appointment and the seniority finally and it was incumbent upon petitioners to have challenged the same in the year 1998 or within a reasonable time, if the petitioners feeling aggrieved by the order. However, the petitioners chose not to challenge it within time and allow the same to attain finality and be acted upon and the petitioners has acquiesced themselves in the same and they cannot challenge it at such a belated stage.
83. It has also been submitted that the issue of challenging the seniority, which has continued to be in existence for a long time, was considered by the Hon'ble Supreme Court of India in the matter reported in AIR 1986 SC 2086 IN Re: K.R. Mudgal & Others Versus R.P. Singh & Others, in which it was held that:
"A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and with any sense of insecurity....
Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servant created by writ petitions filed after several years as in this case. It is essential that anyone who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties........ in these circumstances. We consider that High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.
84. It has further been submitted that while deciding the above case, Hon'ble Supreme Court of India had also placed reliance upon its earlier judgment as reported in AIR 1975 SC 1269 IN RE: Malcolm Lawrence Cecil D'Souza Versus Union of India & Others, wherein it had observed as under:
"Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible, to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
85. It has further been submitted that aforesaid view was reiterated by the Hon'ble Supreme Court in the matter reported in AIR 1999 SC IN RE: B.S.Bajwa Versus State of Punjab and Others, while deciding the similar issue the Hon'ble Supreme Court had observed that:-
" It is well settle that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance."
86. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for reasonable period, any challenge to the same should not be entertained.
87. It has further been submitted that in K.R. Mudgal (Supra), the Hon'ble Supreme Court of India has laid down in explicit terms that inter-se seniority which remains in the existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3 to 4 years is a reasonable period for challenging the seniority.
88. It has further been submitted that similar view has been expressed by the Hon'ble Supreme Court of India, in the matter reported in (2010) 4 SCC 301 IN RE: H.S. Vanikani & Others Versus State of Gujarat & Others. For the ease of perusal and kind consideration of this Hon'ble Court the relevant extract of the aforesaid report is as follows:-
"38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to limitative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls departmental action. Legal principles have been reiterated by this Court in Union of India and Another v. S.K. Goel and Others IN RE: (2007) 14 SCC 641, T.R. Kapoor v. State of Haryana IN RE: (1989) 4 SCC 71, IN RE: Bimlesh Tanwar v. State of Haryana IN RE: (2003) 5 SCC 604. In view of the settled law the decisions cited by the appellants in G.P. Doval's case (supra), Prabhakar and Others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case."
89. A Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shanker Deodhar & ors. Vs. State of Maharashtra & ors., AIR 1974 SC 259, considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. While deciding the said case, the Apex Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reasons of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
90. The Apex Court also placed reliance upon its earlier judgment in R.N. Bose Vs. Union of India & ors., AIR 1970 SC 470, wherein it has been observed as under:-
"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
91. In R.S. Makashi Vs. I.M. Menon & ors., AIR 1982 SC 101, the Apex Court considered the entire aspect of limitation, delay and laches in filing the writ petition. The Court also referred to its earlier judgment in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed 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 the remedy under Article 226 of the Constitution can be measured. The Court further considered the issue and held as under:-
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years...... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the court with the challenge against the seniority principles laid down in the Government Resolution of 1968..... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government Resolution, should have been dismissed."
92. The issue of challenging the existing seniority list, which continued to be in existence for a long time, was again considered by the Hon'ble Apex Court in K.R. Mudgal & ors. Vs. R.P. Singh & ors., AIR 1986 SC 2086 and the Apex Court held as under:-
"Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.......In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."
93. While deciding the case, the Apex Court placed reliance upon its earlier judgment in Melcom Lawrance Cecil D'Souza Vs. Union of India & ors., AIR 1975 SC 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
94. In B.S. Bajwa Vs. State of Punjab & ors., (1998) 2 SCC 523, the Hon'ble Apex Court has taken the same view, observing as under:-
"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition."
95. In Dinikar Anna Patil & Anr. Vs. State of Maharashtra, (1999) 1 SCC 353, the Hon'ble Supreme Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the court regarding delay, the case may be considered.
96. In K.A. Abdul Majeed Vs. State of Kerala & ors., (2001) 6 SCC 294, the Hon'ble Supreme Court held that seniority assigned to any employee could not be challenged after a lapse of seven years; though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
97. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. (Vide Aflatoon & ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077; State of Mysore Vs. V.K. Kangan & ors., AIR 1975 SC 2190; Pt. Girdharan Prasad Missir Vs. State of Bihar & ors., (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union ofIndia, AIR 1992 SC 1414; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; Ram Chand Vs. Union of India, (1994) 1 SCC 44; State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. (P) Ltd. & ors., (1996) 11 SCC 501; Padma Vs. Dy. Secy. to the Govt. of Tamil Nadu, (1997) 2 SCC 627; Hindustan Petroleum Corp. Ltd. Vs. Dolly Das, (1999) 4 SCC 450; Life Insurance Corporation of India Vs. Jyotish Chandra Biswas, (2000) 6 SCC 562; L. Muthu Kumar & Anr. Vs. State of Tamil Nadu & ors., (2000) 7 SCC 618; Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & ors., AIR 2000 SC 671; and Inder Jit Gupta Vs. Union of India & ors., (2001) 6 SCC 637.
98. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., (1983) 2 SCC 1, wherein the Apex Court has observed as under:-
"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."
99. Similarly, in State of U.P. Vs. Raj Bahadur Singh & Anr., (1998) 8 SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."
100. In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystallized.
101. In Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335, the Hon'ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.
102. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) "The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
103. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows:
"9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
104. In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
105. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395):
"12......In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
106. While deciding the seniority of litigating parties, the Executive Council had resolved in the year 2013, reiterating the decision of the Executive Counsel taken in the year 1998 and the resolution and decision were passed on the Government Orders and the appointments were made in 1986 and 1987. On this basis, learned counsel for the respondents has further argued that only by challenging the order impugned resolved in the year 2013, the petitioners want to challenge the order and resolution passed in 1986, 1987 and 1998 and unless and until the original orders are not challenged, simply challenging the consequential order has no significance. Even if the resolution passed in 2013 and consequent office memorandum are challenged, the original order passed in the year 1998 and the previous orders relating to the terms of appointment and Government Orders remain intact, not disturbing the very appointment and seniority of the contesting parties. Reliance has been placed on the following pronouncements:-
i. (2010) 1 SCC 756 - Edukanti Kistamma v. S Venkatareddy.
ii. (2003) 5 SCC 669 - Govt. of Maharashtra v. Deokar's Distillery.
iii. (1985) 2 SCC 468 - H.V. Pardasani v. Union of India.
iv. (1977) 3 SCC 255 - P. Chitharanja Menon v. A. Balakrishnan.
107. The matter regarding seniority and pay scale of respondent Dr. Reeta Wahal was finally decided by the competent authority and communicated vide order dated 10.7.2006 which was decided as follows:
(1) Assistant Professor on 13.12.1988 (2) Associate Professor on 16.4.1997 (3) Professor on 16.4.1999
108. Writ Petition no.-1689(SB) of 2006 filed by Dr. G.P. Singh Versus KGMU and the Registrar, KGMU, was decided on 8.12.2006 directing the Vice Chancellor, KGMU, to decide the representation of Dr. G.P. Singh, Professor of Anesthesia, with regard to seniority and the matter of seniority of the petitioners as well as respondents were decided and communicated to all concerned vide order dated 13.3.2007. In another writ petition no.-306(SB) of 2007 filed by Dr. Rita Wahal and another Versus King George's Medical University, Lucknow and Others, which was finally decided by this Court vide order dated 19.4.2012,the following observations have been made, which reads as under:-
"Considering the peculiar facts and circumstances of the case and also without entering into the merits of the case, the Vice-Chancellor of the CSMMU, Lucknow is hereby directed to constitute a Seniority Committee in accordance with First Statutes of the CSM Medical University within a month from the date of receipt a certified copy of this order. We hope and trust that the Seniority Committee so appointed by the Vice-Chancellor in compliance of this order shall decide the seniority, after affording opportunity to all concerned parties, in accordance with law as well as Act and statutes applicable in the CSMMU, Lucknow.
It is clarified that while determining the final seniority, the authorities shall apply their own independent minds and shall not be influenced by the impugned order dated 13.3.2007 passed by the Vice-Chancellor. The above exercise shall be completed within a period of three months from the date of appointment of Seniority Committee by the Vice-Chancellor."
109. In compliance of order dated 19.4.2012 passed in writ petition no.- 306(SB) of 2007, Vice-Chancellor constituted a Committee consisting four officers of the department and they have submitted a report fixing the seniority according to their service records in the light of Rule 10.01-A. Thereafter, emergency meeting of the Executive Council of KGMU was called on 6.5.2013 and it was unanimously decided that status-quo position about the substantive date of appointment of petitioners as well as respondents be maintained in the light of resolution of Executive Council of Lucknow University dated 13.9.1998 with direction to the seniority date to prepare seniority list afresh. Seniority Committee further submitted a report dated 10.5.2013 which was placed before the Executive Council on 14.5.2013 and after considering the report, it was approved vide Office Order dated 14.5.2013. The decision of Executive Council regarding seniority of all seven faculty members of the department of Anesthesiology was communicated as under:-
Sl.No. Name Date of substantive appointment of Assistant Professor as approved by E.C. of Lucknow University
1.
Dr. Jaishree Bogra 11.08.1987
2. Dr. Shashi Bhushan 11.08.1987
3. Dr. V.K. Bhatia 11.08.1987
4. Dr. Anita Malik 12.12.1987
5. Dr. Shobhna Jafa 07.06.1988
6. Dr. Rita Wahal 13.12.1988
7. Dr. G.P. Singh 10.10.1990
110. Learned Counsel for the respondent-university has further submitted that Section 56(a) of the King George's Medical University Act 2002 provides to deal the similar situation wherein it is stated that notwithstanding the transfer of the institutions from Lucknow University to KGMU, all appointments made, orders issued, degrees or diplomas conferred or certificates issued, privileges granted or other things clone under any such enactment, shall be deemed to have been respectively made, issued , conferred, granted or done under the corresponding provisions of this Act and except as otherwise provided by or under this Act, continue in force unless and until they are superseded by any order made under this Act. It has further submitted that Section 9 of the King George's Medical University Act, 2002 provides that every teacher or other servant of the Lucknow University duly appointed in connection with the affairs of the institutions and serving the institution as such immediately before the appointed date shall become teacher or other servant of KGMU and shall hold his office by the same tenure and by the same terms and conditions and with the same rights as to retiral benefits and other matters as he would have held under the Lucknow University if this Act has not been passed and shall continue to do so until his employment. By the provisions made above it is clear that the date of substantive appointment of teachers in question, which has been fixed by resolution dated 13.09.1998 of the Executive Council referred above, has to be adhered to by the KGMU as well.
111. Considering the above submissions made by learned Counsel for the petitioners as well as learned Counsel for the respondents, it is crystal clear that the Executive Council of the university has finally decided the nature of the appointment and date of substantive appointment which reaches to its finality.
112. While filing Writ Petition No.637 (SB) of 2014 Dr. G.P. Singh, who was appointed on 24.10.1989, has challenged the decision of the Executive Council claiming him to be the senior to the respondents on the basis of similar ground taken by the petitioner of the first writ petition. The petitioner of the second writ petition has also taken ground that the appointments of the respondents 5 to 7 of the second writ petition were dehors or their appointments should be treated to be the appointments in ex cadre post and in light of the above facts the seniority as decided by the Executive Council is based on erroneous facts and requires to be set-aside.
113. In both the writ petitions it should be taken into account that none of the petitioner has challenged the very appointments of the respondents which were made in 1986 on wards. It is settled proposition of law that creation, abolition and merger of the post and fixation of pay, salary and allowance are within the domain of the State Government. While explaining the history of the KGMC, learned counsel for the respondents 5 to 7 of the second writ petition, Mr. Gaurav Mehrotra, has submitted that it is in 1973 when KGMC became a constituent college of Lucknow University and on 10.04.1981, respondent no.5 was appointed as WTA in KGMC. Similarly respondent no.6 was appointed on 18.12.1982 and respondent no.7 was appointed on 29.04.1983 after applying the due procedure of appointment rules as WTA in KGMC. In the meantime, KGMC and Gandhi Memorial Hospital were taken over by the State Government in 1983. Vide Government Order dated 07.08.1987, five posts of WTAs were converted and merged into Lecturers and all five persons already working in KGMC were appointed as Lecturers in order of seniority. On 04.06.1988, two posts of WTAs were merged into Lecturers in Anesthesia and respondent no.7 was also appointed on the post of Lecturer on 07.06.1988. Dr. Rita Wahal was initially appointed on 04.11.1988, as already discussed above, on ad-hoc basis in dental faculty against which a petition was filed before this Court and certain directions were issued to re-consider the question of conversion of respondent no.7. Virtually the petitioner Dr. G.P. Singh was appointed on 24.10.1989 and on the basis of this respondents have submitted that the last appointee in the series of appointments is the petitioner Dr. G.P. Singh and the Executive Council has rightly considered and determined the seniority of the litigating parties. Further the controversy regarding appointments of WTAs into converted posts of Lecturers was set at rest by an order of Hon'ble the Supreme Court as mentioned above. Statute 10.01-A provides the grant of pay scale of Assistant Professor and on the basis of the recommendation of the then Head of Department the pay scale was fixed as per the rules and vide recommendation of the Executive Council it finds approval on 18.12.1995 and 23.08.1996.
114. After Repeal Act 1998, every appointment made, order issued, post created and action taken by the State Government under the Taking Over Act, were deemed to have been done by the Lucknow University under Section 2(2) of the Repeal Act and Section 31-C of the Act protects all appointments and promotions made in KGMC from 1981 to 1992 with cut off date.
115. Vide resolution of the Executive Council of the Lucknow University held on 13.09.1998 vide item no.7 the confirmation and substantive appointment as well as seniority have been settled and finally decided. Now, in light of the provisions contained in Section 31-C, which provides that "Notwithstanding anything to the contrary contained in any other provision of this Act and in any other law for the time being in force, any Assistant professor, Associate Professor or Professor who was appointed directly or by promotion on or after July 18, 1981 but no later than August 10, 1992 on ad hoc basis in the King Georges Medical College and the Gandhi Memorial & Associated Hospital, Lucknow and is continuing in service as such on the date of the commencement of the King Georges's Medical College and the Gandhi Memorial and Associated Hospitals (Taking Over) (Repeal ) Act, 1998 and possessed requisite qualification for regular appointment at the time of such ad hoc appointment shall be deemed to be substantively appointed from the date of such ad hoc appointment", the service conditions of the litigating parties are protected.
116. Further in view of the decision of the Executive Council's meeting held on 13.09.1998 vide item no.37 and further recommendation of the Committee and after resolution of the Executive Counsel dated 14.05.2013 the matter of inter-se seniority between the litigating parties has settled at rest and matter requires no interference because the order, decision, appointment and promotion were within the domain of the competent authority having power to decide it at the relevant point of time, unless and until it is shown that the decision hits the provisions of Articles 14 and 16 of the Constitution of India. There is nothing to show that the decision taken by the Executive Counsel is in violation of any of the provisions of service rules or violative of Articles 14 and 16 of the Constitution of India. The matter has already been settled by various decisions of this Court as well as reached to its finality up to the Supreme Court and no interference is required to disturb/unsettle the settled seniority after 31 years.
117. After considering the rival submissions of learned counsel for the parties and on the basis of record, we are of the view that the decision taken by the Executive Council and subsequent orders passed, which are under challenge, are in accordance with law and we are not inclined to interfere in the decision taken by the Executive Counsel of the University. The petitions lack merits and deserve to be dismissed. Resultantly, both the writ petitions are dismissed. Parties shall bear their own costs.
Order Date :-10.05.2017
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)
A. Katiyar