Madhya Pradesh High Court
Dr. Geeta Rani Gupta vs The State Of Madhya Pradesh Judgement ... on 13 August, 2013
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.11816/2010(S)
Dr. Geeta Rani Gupta
Vs
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Siddharth Gulati, learned counsel for the
petitioner.
Shri Sanjeev Singh, learned Govt. Advocate for the
respondent No.1 and 2.
Shri V.S. Shroti, learned Senior counsel assisted by
Shri Vikram Johri, for the respondent No.4.
ORDER
( .8.2013) Calling in question the order dated 7.5.2010, passed by the respondents, granting promotion to the respondent No.4 on the post of Joint Director of Medico Legal Institute, Gandhi Medical College, Bhopal, the present writ petition has been filed. It is contended by the petitioner that before constitution of the services in terms of the provisions of the Rules, the respondent No.4 was appointed temporarily as Junior Medical Officer (Medical) without following any procedure as prescribed in M.P. Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as Rules of 1961 for brevity). The post was not one which falls within the purview of M.P. Regularisation of Adhoc Appointment Rules, 1986 (hereinafter referred to as Regularisation Rules for short) nor there was any consultation with the M.P. Public Service (Limitation of Functions) Regulations, 1957 (hereinafter referred to as 2 Regulations of 1957 for brevity). The respondent No.4 was not to be granted the benefit of regularisation with retrospective effect. The services of the department were governed by the Rules which were framed in the year 1987 and which came in force on their publication in the Gazette on 5.2.1988. The Rules in title are M.P. Medico Legal Institute (Gazetted) Service Recruitment Rules, 1987 (hereinafter referred to as Rules of 1987 for short). It is contended that the petitioner has approached the M.P. Administrative Tribunal against the matter of regularisation and grant of promotion to one of such person who was appointed on adhoc basis. The said original application was dismissed by the Tribunal against which a writ petition was filed before the Division Bench of this Court being W.P.No.4203/2001. The said writ petition was allowed on 19.5.2003. It was categorically held that such a person who was appointed on adhoc basis was not entitled to regularisation with retrospective effect de hors the Rules and such order of regularisation of one such person was quashed. The direction was given to refix the seniority of the petitioner vis-a-vis such person. Against the order passed by the Division Bench of this Court, Special Leave Petition was filed, but the Apex Court dismissed the SLP as no infirmity was found in the judgment and order passed by the Division Bench of this Court, by the Apex Court. The representation was made by the petitioner on the strength of such a decision seeking seniority over and above the respondent No.4, but since the matter was not being considered, on the other hand, the respondent No.4 has been promoted on the next higher post ignoring the claim of the petitioner, the writ petition is required to be filed.
2: Contesting the claim made by the petitioner, the official respondents No. 1 and 2 have filed a return. It is 3 contended that the respondent No.4 was regularised way back in the year 1989. He was granted promotion in the year 2002 and recently in the year 2010. The petitioner has no locus to challenge such regularisation of the respondent No.4, nor she is affected by promotion of respondent No.4 on the higher pay scale. In fact, the respondent No.4 was appointed on 11.10.1982 in the Medico Legal Institute, Gandhi Medical College, Bhopal, even when the petitioner was not born in the department. The petitioner has challenged fixation of her seniority before the Tribunal in an Original Application which was dismissed against which Writ Petition No.4203/2001 was filed before this Court. There was no challenge to the regularisation of the respondent No.4 in the said case, inasmuch as, the petitioner has not arrayed the said respondent a party in the petition nor has claimed any relief in that respect. In the said Original Application No.776/1999 only two persons, namely, Dr. Chandrashekar Jain and Dr. Basant Kumar Athwal were made respondents and the petitioner has claimed the relief only for grant of seniority and for consideration of her claim for promotion on the post of Junior Forensic Specialist. The said Original Application having been dismissed by the Tribunal when the writ petition was filed, again in the said writ petition, the respondent No.4 was not arrayed as a party. After coming into force of the Rules of 1987, Original Application No.13/2003 was filed by the petitioner before the Tribunal which was transmitted to this Court and after closure of the Tribunal, was registered as Writ Petition No.26959/2003. The said writ petition was disposed of by order dated 23.2.2011 giving an opportunity to the petitioner to make a representation before the competent authority of the respondents which authority shall pass a reasoned order within a period of three months, taking into consideration 4 the order passed in Writ Petition No.4203/2001. However, it was observed by this Court that certain co-employees have challenged the promotion of the petitioner on the post of Junior Forensic Specialist, which was pending in other writ petition, it was directed that such writ petition would be decided indepedently and any observation made by the Court in the order passed on 23.2.2011 would not come in the ways of claim made in the said writ petition. After making of the representation since the same has been decided, the petitioner is not entitled to any relief.
3: The respondent No.4 has filed an exhaustive return independently and had contended that the entire claim made by the petitioner is misconceived. The Rules of 1987 were later on framed, but before that the services were constituted in the Medico Legal Institute. It was necessary to appoint certain persons to discharge the functions of the said Institute. The respondent-State decided to fill in the posts, which were earlier treated to be Class-III post. This is how the respondent No.4 was appointed as Junior Medical Officer (Non-Medical) in the year 1982. The institute itself was established in the year 1977 with specific sanction of post of Director, Joint Director, Senior and Junior Forensic Specialist (Medical and Non-Medical), Senior and Junior Medical Officer (Medical and Non-Medical) and other administrative posts. However, since there were no recruitment Rules in force at the relevant time and only the Director of the Institute was the competent authority to make recruitment on Class-III post, after making selection pursuance to the advertisement so issued, the respondent No.4 was appointed. The advertisement itself was issued on 15.5.1982 indicating the required qualification for appointment on the said post. Since the respondent No.4 has made an application being fully eligible to be appointed 5 on the said post, was selected, an order of appointment was issued on 11.10.1982. In the like manner, the earlier appointments were also made and one Dr. R.P. Soni was appointed as Junior Medical Officer (Medical) on 26.10.1979. Dr. Pankaj Kulshrestha was appointed on 11.10.1982, Dr. V.K. Sharma, Medical Officer was appointed on 1.1.1986, Dr. Prabha Badkul, Medical Officer was appointed on 19.2.1986 and Dr. C.S. Jain, Medical Officer was appointed on 26.5.1982. Thus, in fact, the provisions of Rules of 1961 were fulfilled by advertising the posts, constituting a selection Committee, making a selection and then making appointment by the competent authority. Later on, the State Government changed the designation of the post of Junior Medical Officer and Senior Medical Officer and amalgamating them made a single cadre post of Medical Officer on 24.1.1985. Those who were initially recruited on the said amalgamated post, became Medical Officer after amalgamation of the post.
4: It is contended by the respondent No.4 that for the first time, the Gazetted Rules were made in the year 1987, which came in force on 5.2.1988. Rule 4 of the Rules of 1987 specifically prescribes constitution of the service, including the persons, who at the commencement of the Rules were holding substantively or in an officiating capacity the post specified in Schedule-I of Rules of 1987. The said respondent No.4 was, thus, became a member of the service on its constitution with effect from 5.2.1988 under the provisions of Rule 4 of Rules of 1987. However, since a formal regularisation of services of the respondent No.4 was necessary, the memo was sent to the M.P. Public Service Commission (hereinafter referred to as the PSC for brevity) by the State Government pursuance to a memo written by the Director of the Institute. The PSC sought 6 certain information from the Government and as there was no provision made with respect to the mode of recruitment by regularisation of services, the PSC suggested that the recruitment Rules may be relaxed and action may be taken for regularisation of those who were inducted in service prior to coming into force of Rules of 1987. That being so, the matter was put up before the Cabinet of Ministers, relaxation was obtained, again the information was sent to the PSC and when the approval was granted by the PSC, order of regularisation of the respondent No.4 was issued. The regularisation of services of persons like respondent No.4 was neither initiated under the Adhoc Regularisation Rules nor there was any question of application of said Rules. Further, once the persons like respondent No.4 became the member of the service on the constitution of the service in terms of Rule 4 of Rules of 1987, it was not necessary for regularisation of adhoc appointment.
5: However, in view of the order passed by the respondent regularising the respondent No.4 from the initial date of appointment, in terms of the Rules of 1987, the claim of respondent No.4 was considered for promotion on the post of Junior Forensic Specialist (medical). As the respondent No.4 was found fit for such promotion, an order was issued promoting him on the said post on 8.8.1990. The respondent No.4 was confirmed on the said post with effect from 9.8.1992. In due course, after putting in requisite years of service, the respondent No.4 was promoted on the post of Senior Forensic Specialist (Medical) vide order dated 1.8.2002. On due course, as he has completed the requisite years of service for the next higher promotion, the respondent No.4 is promoted on the post of Joint Director, Medico Legal Institute, Bhopal. It is contended that the petitioner has challenged the action of 7 official respondents in the matter of not granting her the seniority and considering her claim for promotion by way of filing the Original Application which was dismissed by the Tribunal and in a writ petition filed against one Dr. C.S. Jain, only relief claimed was with respect to fixation of seniority of petitioner, but the Division Bench of this Court considered the aspect whether the respondent No.4 in that petition could have been regularised or not on the post of Medical Officer with retrospective effect and holding that no such documents were placed before the Court or before the Tribunal by respondents indicating that concurrence of the PSC was obtained before regularising the adhoc services of the said person, quashed the regularisation of Dr. C.S. Jain. However, since the case of the respondent No.4 herein is distinguishable on facts, he could not be denied the benefit of seniority from the date of regularisation of his adhoc appointment and, therefore, cannot be treated as junior to the petitioner and, as such, the writ petition filed challenging the order of promotion of respondent No.4 is liable to be dismissed.
6: Though the rejoinders have been filed by the petitioner, but not much is said except whatever is stated in the writ petition. However the order of establishing the Medico Legal Institute has been placed on record, certain orders creating the posts have also been annexed, but nothing has been placed on record to indicate that any method of recruitment was specifically prescribed for making appointment on the said created post. One such memo sent by the Director of the Institute seeking regularisation of the adhoc appointees by making insertion of the post in the Adhoc Regularisation Rules has also been placed on record.
87: Heard learned counsel for the parties at length and perused the record.
8: First of all, the effect of the Division Bench decision rendered in the case of the petitioner is to be taken note of. Much is said by the learned counsel for the petitioner that when the Division Bench of this Court has examined the correctness of the action taken for regularisation of the adhoc appointment of persons like respondent No.4 in light of the Rules of 1987, and in light of the fact that there were no Rules when the adhoc appointments were made, specially the provisions of Rules of 1961 and Regularisation of 1957, and has categorically held that the appointment of persons like respondent, namely, one of the person so appointed Dr. C.S. Jain, was not to be regularised with retrospective effect and has quashed the order of regularisation of adhoc appointment, no scope was left with the official respondents to continue to treat the respondent No.4 as regularised from the date of his initial adhoc appointment. That being so, the respondent No.4 was not to be accorded seniority in any manner. This Court is required to examine whether the appointment was to be made in terms of the provisions of the Rules of 1961 or not. It is to be examined whether the Rules of 1961 prescribe any method of recruitment or not. Rule 2 of the aforesaid Rule is definitions, Rule 3 is Scope of application of the Rules, Rule 4 is the Classification of the posts within the State, Rule 5 is the Eligibility for appointment, Rule 6 is the Disqualification for such appointment and Rule 7 is the Methods of recruitment. Likewise Rule 8 of the Rules aforesaid deals with Probation, Rule 9 is for Trial for suitability of officiating Government servants, Rule 10 is Gradation list and Rule 11 deals with the Gradation list prepared in accordance with State Re-organisation. Rule 12 of the Rules aforesaid deals with Seniority, Rule 13 deals 9 with promotion, Rule 14 deals with Reversion and appointment, Rule 15 deals with Safeguards, Rule 16 deals with Relaxation, Rule 17 deals with Interpretation and Rule 18 deals with Repeal and saving. There is no procedure of recruitment prescribed in the Rules of 1961, therefore, if a direct recruitment is to be made in any of the post, as prescribed by the State Government under the administrative instructions, the procedure has to be followed. If a recruitment is made in absence of any statutory provisions of the recruitment process on the basis of administrative instructions, it cannot be said that such recruitment is de hors any Rule.
9: The other aspect is that Regulations of 1957 are made for the purposes of prescribing the posts which are required to be filled in after consultation of the PSC. The appendix with the Regulations, prescribes consultation of the PSC would be necessary only in case such a post is enumerated in the appendix. Though the post of Lecturer Medical Colleges is included in the schedule of the appendix, but the posts sanctioned in the Medico Legal Institute are not mentioned in the said Schedule, therefore, consultation of the PSC was not necessary when the initial recruitment process was started. Yet another aspect is that initially the post against which the respondent No.4 was appointed was only a non-gazetted post and, therefore, the appointment of respondent No.4 could have been made even on regular basis without consulting the PSC. Therefore, to say that the adhoc appointment of respondent No.4 was bad in law and was not to be accepted at all, is not correct or justified. These aspects were not taken into consideration by the Division bench where only the claim of seniority of the petitioner was being adjudicated by the Court though some reference has 10 been made in that respect. What has been pointed out by the Division Bench is the Rule 8 of Rules of 1961, which deals with the probation in case of a direct recruitment on regular basis and all other provisions have been taken from the Rules of 1987. Admittedly, the Rules of 1987 were not in vogue when the initial adhoc appointment of respondent No.4 was made and, therefore, it is not correct to say that the adhoc appointment of the respondent No.4 was de hors any of the provisions of the Rules of 1987. With great respect, it is to be noted that the Regulations of 1957 were not at all to be looked into as the case of the respondent No.4 was considered for recruitment on non-gazetted post as then it was. As has been stated above, the Regulations would be applicable only in the case of recruitment on the gazetted post.
10 : Now since it has been put forth by the petitioner that once a similarly situated person appointed in the like manner as respondent No.4 was appointed in the services of the Department, has been found to be illegally appointed by the Division Bench of this Court and it has been held that subsequent regularization of the said person on the post as was done by the respondents-State on the approval of the Public Service Commission was bad in law and the said regularization was quashed, the same is the situation with respect to appointment of respondent No.4 and, therefore, his appointment should also be treated to be bad in law and he should not be granted the benefit of regularization of period of adhoc service. The aforesaid consideration with respect to order passed by the Division Bench has been done in the context of these claims made by the petitioner. Though as is claimed, the provisions of the Adhoc Appointment Regularization Rules would not be attracted at all but with great respect since fresh 11 consideration is to be done in the matter of regularization of adhoc period of appointment of respondent No.4, the findings reached by the Division Bench in the earlier writ petition of the petitioner has been perused. As has been put forth by the respondents, more particularly by the respondent No.4, in fact he was appointed on adhoc basis on his selection on the basis of the process of recruitment started vide notice dated 15th May, 1082.
11 : The qualifications required for such appointment on the post of Junior Medical Officer were categorically indicated. It was mentioned as to how many posts were available in non-medical category and how many posts were available for appointment of Medical Graduates candidates only. The respondent No.4 made application, the said application was duly considered, he was selected and was appointed as Junior Medical Officer (Medical) on 11th October, 1982. This order of appointment was issued on temporary basis. There were no rules framed at the relevant time and, therefore, the pay scale was given to respondent No.4, which was applicable to a Class-III post. The order of appointment was rightly issued by the competent authority. The post was thereafter continued. Since the Adhoc Appointment Regularization Rules were made, a proposal was made to include the post of respondent No.4 as well for the purposes of consideration of claim of regularisation. The consideration, as done, was indicated by the respondent No.2 and sent to the State Government. A reminder was sent in this respect on 14.07.1986. In the year 1988, a reminder was sent indicating that after due selection the candidates like respondent No.4 were appointed and, therefore, they be granted regularization. It was pointed out that, at the relevant time no rules were framed. Some correspondence 12 was done in respect of regularization of the services of respondent No.4 with the Public Service Commission and when Gazetted Rules were framed in the year 1988, when again the matter was placed before the Public Service Commission, it was said that the Gazetted Rules may be relaxed for the purposes of considering the case of respondent No.4 for regularization. When this correspondence was going on, till that time the petitioner herein was never born in the department as she was appointed only on 3rd November, 1989.
12 : After passing of resolution by the Cabinet of Ministers relaxing the rules, the matter was sent to the Public Service Commission and when such an approval was granted after screening of the record of the persons like respondent No.4 on 3rd August, 1989, the orders of regularization regularizing the persons like respondent No.4 were issued with effect from the date of initial appointment. The said order was issued on 1st September, 1989. It is contended that till that time also the petitioner was not in the department as she was appointed only on 3rd November, 1989. This being so, the claim made by the petitioner for declaring that the order passed in respect of respondent No.4 was equally bad as was held by the Division Bench of this Court in the case of Dr. C.S. Jain, is totally misconceived. The relief claimed in this respect, therefore, cannot be granted. Reading the entire order passed by the Division Bench, it has been again stated that the Division Bench has not looked into the facts of the case of each and every such persons, who were regularized with retrospective effect and, therefore, even if findings are recorded in respect of a person similarly appointed, the entire appointment of respondent No.4 and his subsequent regularization was not to be annulled in the similar manner 13 and no relief whatsoever was to be granted to the petitioner.
13 : If these documents are taken into consideration, reading the provision of Rule 4 of the Gazetted Rules, it would be clear that the respondent No.4 was rightly regularized in the service. Whether he could be given the benefit of retrospective regularization from the initial date of adhoc appointment or not or whether he would be entitled to the seniority only on the date when the Gazetted Rules were published in the Gazette and were brought in force, are required to be considered. These aspects are to be considered in view of the fact that if it is ultimately held that respondent No.4 would not be entitled to claim seniority from the initial date of appointment on adhoc basis because of the rules which came into force in the year 1988, even then the respondent No.4 has to be treated as senior to the petitioner herein. Rule 4 of the Gazetted Rules specifically contemplates the constitution of service. It is not the constitution of the post, which has been mentioned in the rules. The constitution of service means something else and it cannot be said that constitution of service will not mean the inclusion of those who were appointed prior to coming into force of the said rules. A perusal of Rule 4 of the Rules makes it clear that while constituting the service, the posts were not alone included but the constitution of service means by adding the persons, who at the commencement of the Rules were holding substantively or in officiating capacity the post specified in Schedule-1. Schedule-1 consists of the posts including the post of Medical Officer, Medical and Non- Medical both. This was said to be a Class-II post. The mode of filling the said posts was mentioned. These posts were to be filled in by recruitment by competition in 14 selection. If suitable candidates are not available then by transfer. The educational qualifications were prescribed in Schedule-3, which were M.B.B.S. or B.D.S. Degree and one year's experience in the field relevant to the subject. It is not the case that the respondent No.4 was not holding these qualifications. It is also to be seen from the order passed in respect of respondent No.4 that his appointment was made temporarily, that means he was officiating on the post which was included in Schedule-1 of the Gazetted Rules and, therefore, he falls within the category-1 of Rule 4 of the Rules and became a member of the service immediately after coming into force of the Gazetted Rules on 5th February, 1988. That being so, since still he was senior to petitioner and his seniority has to be counted from that day when the Rules have come into force, at no rate could it be said that the petitioner was to be treated as senior or that the regularization of adhoc appointment of respondent No.4 was to be declared as bad in law and his regularization was liable to be quashed.
14 : Thus, in my considered opinion, these aspects if would have been examined by the Division Bench, the matter would not have been decided in the manner it has been. Since the appeal filed against such an order of the Division Bench was dismissed by the Apex Court in limine, the Division Bench order became final and, therefore, it has the binding force but in view of the findings reached herein above, it is difficult to accept the correctness of the said order. This Court would not be in a position to say that the theory of per incuriam would be applicable as the specific provisions were not discussed or brought to the notice of the Division Bench while the matter was being heard. It is to be seen that the Apex Court has deprecated such practice if the decisions of Division Bench are ignored by 15 the Single Judge of the same Court. In the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694, the Apex Court has considered these aspects and has said that the Rule of Per Incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. It is further held that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions and enables an organic development of the laws, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs and, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court. In yet another case of Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another, (2005) 2 SCC 673, it has been observed by the Apex Court that the law laid-down by the Apex Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. That being so, it has to be seen that the law as laid-down by the Division Bench of this Court would be binding on Single Bench. However, it has been observed by the Apex Court in the case of State of Bihar vs. Kalika Kuer alias Kalika Singh and others, (2003) 5 SCC 448, that the theory of a decision being per incuriam is based on the principle that when a decision is given by any Court in ignorance of the terms of statute or rule having statutory force, the same is not required to be followed blindly. Ignorance of some statute or binding authority, has to be re-examined. However, while making the Rules, this Court has taken care of such a situation and has specifically prescribed in Chapter-IV Rule 8 of the High 16 Court of Madhya Pradesh Rules, 2008 for making a reference to a larger Bench, which reads thus :-
"8. Reference to a Larger Bench :
(1) A single bench or a division bench may refer any proceeding, pending before it, to the Chief Justice with a recommendation that it be placed before a larger bench where it involves a substantial question of law of general importance.
(2) In such proceeding, the referring Judge(s) may formulate question(s) and may either refer such question(s) for opinion or may request that entire proceeding be heard and decided by a larger bench.
(3) Where a Judge sitting alone while hearing a case is of the opinion that for the decision of that case, an earlier decision of coordinate or larger bench of this Court needs reconsideration, he may formulate question(s) and refer the same to the Chief Justice with a recommendation that it be placed before a larger bench."
15 : Accordingly, while making a reference, I propose the following questions to be considered by a larger Bench :-
(A). Whether the decision given by the Division Bench in W.P.No.4203 of 2001 Geeta Rani Gupta Vs. State of M.P. decided on 19.5.2003 is a correct law, in view of the fact that Rule 4 of M.P. Medico Legal Institute (Gazetted) Services Recruitment Rules, 1987 were not considered at all in their right perspective ?
(B). Whether the Division Bench was right in holding that the services of persons like respondent No.4 in said case could not be regularised as the 17 said appointments were made de hors the aforesaid Gazetted Rules, though such Rules came in force much after the appointments made ?
(C). Whether a temporary appointment was rightly said to be bad only because such appointment was not made on probation ?
16 : Therefore, in my considered opinion, the matter is required to be placed before Hon'ble the Chief Justice for consideration and for constituting a larger Bench to consider the aforesaid questions. The Registry is directed to place the matter before Hon'ble the Chief Justice for consideration immediately.
(K.K. TRIVEDI) Judge A.Praj.
18HIGH COURT OF MADHYA PRADESH : JABALPUR.
SB: HON'BLE SHRI K.K. TRIVEDI, J.
WRIT PETITION NO.11816/2010(S) Dr. Geeta Rani Gupta.
Vs. State of Madhya Pradesh and others.
Whether approved for reporting : Yes/No.
Order Post for /08/2013
(K. K. Trivedi)
Judge