Madhya Pradesh High Court
Dr. (Mrs.) Neelima Singh vs State Of M.P. And Others on 30 October, 2000
ORDER S.P. Srivaslava, J.
1. Heard the learned counsel for the petitioner as well as the Additional Advocate General representing the respondents 1 and 2.
Perused the record.
2. Feeling aggrieved by the order passed by the M.P. Administrative Tribunal, Gwalior, whereunder the Tribunal has refused to quash the order promoting the respondent No. 3 to the post of Reader and has rejected the petitioner's claim for the said post holding that she could not be deemed to be senior to the respondent No. 3, she has now approached this Court seeking redress praying for the quashing of the said order.
3. The evidence and material brought on record indicates that the petitioner had been initially appointed on a purely temporary/ad-hoc basis for a period of six months or till the regular selectee from the Public Service Commission after selection was available, whichever was earlier, for appointment as against the post of Lecturer in Biochemistry. Though the period, for which the petitioner had been appointed, was initially limited to only six months, yet she was allowed to continue and ultimately granting her benefits available under the Madhya Pradesh Regularisation of Ad-hoc Appointment Rules, 1986, her appointment was regularised vide the order dated 4-4-1987. During the intervening period, it appears that a selection on regular basis for appointment of Lecturer in the subject of Biochemistry look place under the provisions of Madhya Pradesh Health Services Recruitment Rules, 1967, whereunder the respondent No. 3 was selected taking recourse to the method of direct recruitment and was appointed as Lecturer in the subject of Biochemistry in the year 1982.
4. The Public Service Commission had issued an advertisement inviting applications for appointment as against the post of Lecturer in Biochemistry (Nephrology) on 8-12-1980 and after completing the selection process, accepting the recommendation of the Commission, the appointment order had been issued the respondent No. 3 in the year 1982.
5. The vacancy in dispute in the post of Reader had occurred in the year 1987. Accepting the recommendations of the Departmental Promotion Committee, the promotion was granted to Dr. (Smt.) Sneh Shukla, the respondent No. 3, vide the order dated 15-7-1988. It was this order which had been challenged by the petitioner before the Tribunal.
6. It may be noticed further at this stage that the feeding cadre of the promotional post was the cadre of Lecturers. This is apparent from perusal of Schedulc-I to M.P. Medical Education (Gazetted) Service Recruitment Rules, 1987. The petitioner had been regularised as against the post of Lecturer in Biochemistry. The respondent No. 3 was directly recruited as against the post of Lecturer in Biochemistry (Nephrology).
7. The Tribunal noticing the aforesaid facts had come to the conclusion that the petitioner could not by any stretch of imagination claim seniority over the respondent No. 3 and in her presence she was disentitled for being considered for appointment as against the post of Reader in question.
8. The fact that the petitioner had accepted the regularisation of her services under the M.P. Regularisation of Ad-hoc Appointment Rules, 1986 is not disputed.
9. Rule 12 of the aforesaid Rules specifically provides that a person appointed under those rules shall be entitled to seniority only from the date of the order of regular appointment shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the regular appointment of such person under these rules.
10. On the basis of the aforesaid specific provisions as contained in the Rules, there could be no occasion for the petitioner to claim seniority over and above the respondent No. 3, who had been appointed as a Lecturer in Biochemistry taking recourse to the method of direct recruitment as provided under the Rules. In any view of the matter, the initial appointment of the petitioner as against the post of Lecturer in Biochemistry could not be taken to be on regular basis. She joined the regular stream much later than the date when the respondent No. 3 had joined that stream.
11. In the circumstances, the ratio of the decision of the Apex Court in the case of Shitala Prasad Shukla Vs. State of U.P. and others, reported in (AIR 1986 SC 1859) stands clearly attracted. In its aforesaid decision, the Apex Court had clearly indicated that in such cases, the relevant date for determining the seniority has to be taken to be that date when the irregular appointee joined the stream of regular appointees. It was observed by the Apex Court as follows :--
"9. An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularised by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularisation, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue....."
12. In the aforesaid view of the matter, there could be no escape from the conclusion that the petitioner had to be treated to be junior to the respondent No. 3 as she had joined the regular stream much later than the said respondent.
13. The learned counsel for the petitioner has strenuously urged that before the Tribunal the petitioner had also challenged the validity of the appointment of the respondent No. 3 as a Lecturer in the subject of Biochemistry as well as on the post of Reader on the ground of her being ineligible for being considered as she did not have to her credit the minimum requisite educational qualification.
14. As has already been noticed hereinabove, the respondent No. 3 had been appointed in accordance with the statutory rules taking recourse to the method of direct recruitment and she had been selected by the State Public Service Commission. The selection process had been started by the Commission in the year 1980 and accepting the recommendations of the Ayog, the State Government had granted the appointment to the respondent No. 3 in the year 1982. The claim petition under Section 19 of the M.P. Administrative Tribunals Act was filed in the month of December, 1988. The period of limitation prescribed under the Act for challenging the order of appointment of the respondent No. 3 had expired long before the filing of the claim petition.
15. In Paragraph 6 (vi) of her claim petition, the petitioner had asserted that the respondent No. 3 had to her credit a degree of M.Sc. in Biochemistry at the time when she had been appointed as Lecturer and later on she had acquired a Ph.D. Degree in Chemistry before her promotion but she did not possess the qualification prescribed in the advertisement. The assertion was that the present respondent No. 3 did not possess the required qualification in the subject of Biochemistry which might entitle her to be considered for appointment against the post of Lecturer (Biochemistry). In Paragraph 6 (xiv) of her claim petition, it had been asserted that according to the Medical Council of India Regulations for appointment on the post of Lecturer, a candidate must have a Master's Degree in the subject concerned and for higher teaching post, Ph.D. Degree in the subject concerned was essential. But since the present respondent No. 3 did not possess any qualification in Biochemistry, she could not have been appointed or promoted in the Department of Biochemistry. It was further asserted that the respondent No. 3 had no teaching experience at all.
16. In the counter-affidavit which had been filed by the respondent-authorities in opposition to the claim petition, it had been asserted that the petitioner had not been appointed after following the due procedure prescribed for the recruitment and her appointment was purely on ad-hoc basis for a fixed period of 6 months or till the selection by the Public Service Commission whichever was earlier. It was further asserted that the present respondent No. 3 possess the requisite qualification for the appointment of Lecturer in Biochemistry. She was selected by the Public Service Commission and accepting the recommendations of the said Commission, she was appointed on the post of Lecturer in Biochemistry. The respondent-authority categorically denied the assertion of the petitioner that the present respondent No. 3 did not possess the requisite educational qualification for appointment as against the post of Lecturer in Biochemistry (Nephrology). Denying the assertions made in Paragraph 6 (xiv) of the claim petition by the petitioner, it was asserted that the present respondent No. 3 had been attached to the Medical College and was rightly considered for promotion to the post of Lecturer in Biochemistry.
17. In her claim petition the petitioner had not impleaded the State Public Service Commission accepting whose recommendations, the present respondent No. 3 had been initially granted the appointment on the post of Lecturer in Biochemistry (Nephrology). The eligibility and suitability of the respondent No. 3 had been accepted by the Competent Statutory Body constituted under the Relevant Statutory Rules to which a reference has already been made hereinabove. The counsel for the petitioner has not been able to demonstrate that the respondent No. 3 was not duly qualified for being considered for appointment as against the post of Lecturer in Biochemistry (Nephrology) against which she had been appointed in the year 1982.
18. Before the Tribunal, a claim had been raised by the petitioner that in her case there was no necessity for taking any action under the Regularisa-tion Rules and the date of regularising the service was not material as her case had already been considered by the Commission who had recommended her appointment on the post of Lecturer (Biochemistry) from the date much before the date of appointment of the respondent No. 3. This contention has been negatived by the Tribunal holding that the State Government had given cogent reasons for not accepting the recommendations of the Commission and had not issued any appointment letter to the petitioner on the basis of the aforesaid recommendations.
19. In the aforesaid connection, it may be noticed that the petitioner had not challenged the action of the State Government in rejecting the recommendations of the Commission and had further accepted without any objection appointing her on regular basis exercising the jurisdiction envisaged under the Regularisation Rules. In such circumstances, the finding of the Tribunal on the question relating to the inter se seniority vis-a-vis the petitioner and the respondent No. 3 cannot be held to be vitiated in law.
20. The findings returned by the Tribunal against the petitioner are amply supported by the facts and circumstances brought on record. No justifiable ground has been made out for any interference therein while exercising the extra-ordinary jurisdiction as envisaged under Article 227 of the Constitution of India.
21. The writ petition is devoid of any merits and is accordingly dismissed.
22. Writ Petition dismissed.