Bombay High Court
Dr. Meenakshi Samir Mane And Others vs City Of Nagpur Corporation, Through The ... on 10 November, 2022
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
J-wp6033.19.odt 1/41
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.6033 OF 2019
1. Dr. Meenakshi Samir Mane,
Aged about Major, Occupation : Service,
Resident of 634, Utkarsha Model Town,
Indora Square, Nagpur-440 009.
2. Dr. Bakul Nikhil Pande,
Aged about Major, Occupation : Service,
R/o. 10-A, Ravindra Apartment,
R.P.T.S. Road, Surendra Nagar,
Nagpur-440 015.
3. Dr. Megha Natthulal Jaitwar,
Aged about Major, Occupation : Service,
R/o. Plot No.23, Sant Namdeo Nagar,
Manewada, Road, Nagpur-440 024.
4. Dr. Samina Anjum Abdul Khalique,
Aged about Major, Occupation : Service,
Resident of C/o. Khalique Master,
Bharat Decorators, Buddhu Khan Ka Minara,
Gandhibagh, Nagpur.
5. Dr. Manjusha Vivekanand Mathapati,
Aged about Major, Occupation : Service,
R/o. C/o. Dr. Vivekanand M. Mathapati,
A-1, Balaji Anandam, Flat No.203,
Behind Bhagwati Lawn, In front of Yashoda
High School, Renghe Nagar,
Trimurti Nagar, Nagpur-440 022.
6. Dr. Sarla Punjabrao Lad,
Aged about Major, Occupation : Service,
R/o. Plot No.18, Sant Tukadoji Nagar
Narsala Road, Dighori, Nagpur.
J-wp6033.19.odt 2/41
7. Dr. Preeti Deokumar Zararia,
Aged about Major, Occupation : Service,
R/o. Plot No.22, Mangalmay Society,
Manish Nagar, Nagpur.
8. Dr. Arifa Ali w/o. Syed Hamid Ali,
Aged about Major, Occupation : Service,
Near Bajeriya Masjid, Kesri Patel Road,
Bajeriya, Nagpur.
9. Dr. Snehal A. Pandao,
Aged about Major, Occupation : Service,
R/o. Plot No.51, Teachers, Colony,
Panjra, Koradi Road, Koradi, Nagpur.
10. Dr. Vasundhara Pundlikrao Charde,
Aged about Major, Occupation : Service,
R/o. A 2/2, 7-D, Nirmal Nagari,
Near Shitla Mata Mandir, Umred Road,
Nagpur. : PETITIONERS
...VERSUS...
1. City of Nagpur Corporation,
Through the Municipal Commissioner,
Civil Lines, Nagpur-440 001.
2. Deputy Municipal Commissioner,
Health Department,
Nagpur Municipal Corporation,
Civil Lines, Nagpur-440 001. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri M.V. Samarth, Senior Advocate with Shri V.P. Ingle, Advocate for
Petitioner.
Shri J.B. Kasat, Advocate for Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : A.S.Chandurkar & Urmila Joshi-Phalke, JJ.
Arguments heard on : 27th September, 2022.
Judgment delivered on : 10th November, 2022.
J-wp6033.19.odt 3/41
ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)
1. By this writ petition the petitioners seeking directions to the Municipal Corporation to regularize their services in the post of Medical Officer and to grant them benefits of permanency. They have also challenged the communication issued by the Deputy Municipal Commissioner (Health) dated 15.3.2017 by which their representation to consider them for the benefit of permanency was rejected.
2. The petitioners are qualified doctors. The respondent No.2 Deputy Municipal Commissioner (Health Department) published advertisement in daily newspaper 'Navbharat' and 'Lokmat' calling applications to fill up 15 posts of Lady Medical Officer, 16 posts of Public Health Nurse and 60 posts of Nurse Mid-wife. The petitioners, who are qualified for the posts of Lady Medical Officer applied for the said post. As per the advertisement 15 posts of Lady Medical Officer were shown to be vacant, out of which 2 posts were reserved for Scheduled Caste, 1 post for Scheduled Tribe, 2 posts for V.J.N.T. and 3 posts for Other Backward Classes and 7 posts were unreserved. As per the contention of the petitioners on 30.4.2010 there were in all 23 posts of Lady Medical Officer, out of which 16 posts were already filled in and 7 posts were vacant, whereas there were in all 33 posts of J-wp6033.19.odt 4/41 Medical Officer, out of which 14 posts were already filled in and 19 posts were vacant. The posts of Lady Medical Officer and Medical Officer are inter-changeable. However, in respect of some dispensaries which are run specifically for women by the Nagpur Municipal Corporation, only Lady Officers are to be posted. They have also relied upon seniority list of Medical Officers as on 1.1.2010. It is the contention of the petitioners that the said seniority list of Medical Officers carry the pay scale of Rs.8000-13500/-. Thus, there are in all 23 sanctioned posts, out of which 15 posts were already filled in and 8 posts were vacant.
3. The petitioners were selected after following due process of interview as per the criteria fixed and appointed in July 2010 on various dates. As per the terms and conditions of the appointment order they were appointed as a Lady Medical Officer in the establishment of the Municipal Corporation in the pay scale of Rs.8000-13500/- along with other allowances. They were appointed for six months on probation. As per the terms and conditions incorporated in the appointment order that the Municipal Corporation had right to remove them from service. One of the conditions was that the candidates would have to obtain the certificate of having passed MS-CIT within a period of two years from the date of their J-wp6033.19.odt 5/41 appointment though their appointment was for six months, on failure to pass MS-CIT their services shall be liable for termination. The grievance of the petitioners is that although the said appointments in respect of the all petitioners had been shown to be only for six months but the condition that the candidates would have to obtain the certificate of having passed MS-CIT Examination within a period of two years from the date of their appointment makes it clear that their appointment was on a permanent post. The said order of appointment thus makes it clear that the petitioners were appointed on permanent establishment of the Municipal Corporation, their appointment was made in clear and vacant posts and their appointment was made on probation at the first instance for a period of six months. It is the contention of the petitioners that though appointment was shown to be temporary, but actually their appointment was permanent. They had already completed 4 years of service at the time of filing of the petition and they are still continued in service. All the petitioners had made representation on 19.5.2014 to the respondents contending that they had already worked for four years after completion of the period of probation, however, they were not given any order of confirmation from the date of their first appointment. Thereafter repeatedly petitioners had made various J-wp6033.19.odt 6/41 representations including representation dated 20.2.2015. But their representations were neither considered nor rejected by the respondents. The respondents vide Resolution No.301, dated 20.7.2016 approved the absorption of all the petitioners as Medical Officer in the pay scale of Rs.15600-29100 with Grade Pay of Rs.5400 giving right to the Municipal Commissioner to take final decision. Said absorption in view of the Resolution also did not refer the confirmation of the petitioner but fresh appointment was shown as a Medical officer. As per the contention of the petitioners that though the petitioners had made representations to consider their claim to grant permanency but the respondents issued fresh orders of appointment on 28.9.2016 ignoring their last six years of service appointing them on probation for two years with same condition that they have to obtain MS-CIT certificate within two years. The petitioners had already obtained said MS-CIT certificate but ignoring the same again same condition was put on the petitioners and they were again appointed on probation. When petitioners made several requests regarding their representation the respondent Municipal- Corporation by passing order on 15.3.2017 rejected the representation and communicated with the petitioners that their claim regarding permanency could not be considered and their service would be J-wp6033.19.odt 7/41 counted from 28.9.2016 as per the subsequent appointment order and as per the terms and conditions implied therein. Again petitioners have made their representation on 20.7.2019 to re-consider their claim but as respondents had ignored the same, petitioners have filed this writ petition and have challenged the communication dated 15.3.2017 and also claimed declaratory relief that their services be declared as permanent and that they were appointed on clear and vacant posts.
4. In response to the notice the respondent Nos.1 and 2 opposed the writ petition on the ground that the writ petition filed by the petitioners suffers from unexplained delay and laches as the petitioners have approached this Court after period of more than two years and therefore, it deserves to be dismissed. It is further contention of the respondents that the State of Maharashtra by Government Resolution dated 18.8.1988 approved family welfare programme setting up 21 Health posts of Type D in the area of Nagpur Municipal Corporation, Nagpur. The respondent Municipal Corporation received the communication dated 8.6.2009 from the Office of State Family Welfare Department, Pune by which they were directed to re-start 15 Urban Health Centers for which 100% grants would be provided by the State Government. In view of the aforesaid J-wp6033.19.odt 8/41 communication dated 8.6.2009, the Nagpur Municipal Corporation issued advertisement for re-starting 15 Urban Health Centers for the post of Type D. In response to the said advertisement petitioners applied and undergone the interview. As the petitioners were successful candidates they were issued appointment orders, wherein it was specifically mentioned that the candidates appointed on posts of Lady Medical Officer were appointed temporarily for the period of six months. Thus, the appointment of the petitioners was on temporary basis against the Health post Type D. It is further contended that perusal of the above said appointment order would show that no post of Lady Medical Officer on the sanctioned establishment of the Nagpur Municipal Corporation was ever vacant. The petitioners were working as Lady Medical Officer on Health post Type D since 2010 and therefore their case has been considered sympathetically as a special case on their request for absorption on the establishment of the Nagpur Municipal Corporation on the sanctioned vacant post of Medical Officer. The proposal to absorb 10 Medical Officers i.e. the petitioners on the regular establishment of the Corporation as "Medical Officer" was accorded sanction by the General body of the Corporation as per Resolution No.301 dated 20.7.2016, as such petitioners were issued fresh appointment orders on the regular J-wp6033.19.odt 9/41 establishment of the Corporation as Medical Officers as per the order dated 28.9.2016 and their appointment was not on regular establishment of the Nagpur Municipal Corporation. It is further contended by the respondents that the representation made by the petitioners dated 17.11.2016 was duly considered and rejected on 15.3.2017. The case of the petitioners cannot be equated with that of Dr. Savita Meshram or Dr. Chhaya Lanjewar as they were appointed temporarily by the Corporation on their establishment, whereas the petitioners were appointed on temporary basis on Health post Type D as per the Scheme. The contention of the respondents is that the petitioners cannot be equated with that of the petitioners in Writ Petition No.3973/2012 and Writ Petition No.24/2011 as the issue involved in the said petition pertains to the notification dated 2.2.2009 which became applicable to the Medical Officers, who had completed three years of service on 31.12.2007 and who were in service on 2.2.2009, whereas the petitioners were appointed on temporary basis on establishment of Health post Type D as per the Scheme. Thus, it is the contention of the respondents that the petition is devoid of merit and is liable to be dismissed.
5. Heard Senior Advocate Shri M.V. Samarth, for the petitioners. He submitted that the action of the respondent J-wp6033.19.odt 10/41 Corporation appointing the petitioners again on temporary basis by mentioning period of probation of two years when the petitioners had already completed probation period itself is illegal. In response to the advertisement issued by the Nagpur Municipal Corporation all the petitioners had applied and after facing interview conducted by the interview Committee they were selected, they had rendered unblemished service for more than five years, but they were not confirmed in service by giving them benefit of permanency. In fact, after completion of probation, order of permanency was to be issued which was not issued by the respondents. Therefore, petitioners had made representation contending that they had already completed service as a Lady Medical Officer for more than four years, they had served unblemished service inspite of that they were not considered and confirmed for permanency. They requested that their claim of permanency be considered and annual increment as well as benefit of permanency be granted to them. Said representation was made by the petitioners initially on 19.5.2014 and thereafter time to time and lastly on 20.2.2015. The respondent Municipal Corporation passed Resolution No.301 in their general body meeting and decided to absorb the petitioners on the post of Medical Officers in the pay scale of Rs.15600-39100/-. It is further mentioned in the said Resolution J-wp6033.19.odt 11/41 that final decision would be taken by the Commissioner. Thereafter on 15.3.2017 the representation made by the petitioners was rejected while assigning the reason that they were appointed on a temporary posts under the Scheme of Health post Center. No grants are issued by the Government and therefore the claim of the petitioners could not be considered. After receipt of the said order dated 15.3.2017 again the petitioners had made representation on 20.7.2019 requesting to re-consider their proposal. As Municipal Corporation had not considered the same, they had approached the Court. It is submitted by the learned Senior Advocate that once the probation period was successfully completed the petitioners could not have been appointed again on probation. There was no explanation for the same from the Municipal Corporation. The action of the respondent Corporation rejecting the representation of the petitioners itself is arbitrary and illegal. He submitted that some of the Medical Officers in view of the order passed by this Court were granted the benefit of permanency though they were appointed initially on a temporary basis. As the petitioners are similarly situated, they are entitled for the said benefit. Hence, the writ petition be allowed.
6. In support of the contention he relied upon the case of the State of Punjab vs. Dharam Singh, reported in AIR 1968 SC 1210, J-wp6033.19.odt 12/41 wherein it is held by the Hon'ble Apex Court that, "Where, the service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication." He further placed his reliance in the case of S.B. Patwardhan and another vs. State of Maharashtra and others, reported in AIR 1977 SC 2051, wherein it is held that, "if the quota system cannot operate upon their respective confirmation in that cadre, is there any valid basis for applying different standards to the members of the two groups for determining their seniority ? Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in their respective assignments. And yet Clause (iii) of Rule 8 provides that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year". He also relied upon the decision of this Court in the case of Nilesh s/o. Namdev Gurav and others vs. The State of Maharashtra and others, reported in 2021 (6) ALL MR J-wp6033.19.odt 13/41
351. The decisions of the Hon'ble Apex Court in the cases of Rudra Kumar Sain and others vs. Union of India and others, reported in AIR 2000 SC 2808, Dr. Chandra Prakash and others vs. State of U.P. reported in AIR 2003 SC 588, Somesh Thapliyal and another vs. Vice Chancellor, H.N.B. Garhwal University and another, reported in AIR 2021 SC 4158. Relying upon the abovesaid decisions learned Senior Advocate submitted that as the petitioners had completed more than 6 to 7 years service on the establishment of Nagpur Municipal Corporation they had rendered unblemished service. Similarly, situated employees received the benefit of permanency, same treatment is to be given to the petitioners.
7. On the other hand, learned Advocate Shri J.B. Kasat for the respondents submitted that the appointment of the petitioners was in view of Scheme under State Family Welfare Department. Under the said Scheme advertisement was issued and petitioners were selected and appointed on post Type D after the interview. They continued on the said post from their appointment till 28.9.2016. Considering their services they were sympathetically considered for absorption and by passing Resolution they were absorbed on the establishment of Nagpur Municipal Corporation. He further submitted that in view of the notification dated 2.2.2009 petitioners J-wp6033.19.odt 14/41 cannot be equated with the petitioners in Writ Petition No.3973/2012 and Writ Petition No.24/2011. The petitioners in the said writ petitions were granted permanency as the said notification dated 2.2.2009 was made applicable to the Medical Officers, who had completed 3 years of service on 13.12.2007. The petitioners are not appointed in the said criteria and therefore they were not entitled for the benefit. He further submitted that if the posts of petitioners are considered permanent, financial burden would be there on the Nagpur Municipal Corporation. He further submitted that the petitioners were appointed on the temporary posts and therefore they are not entitled for the said benefit. Hence, writ petition deserves to be dismissed.
8. Heard both the sides. Perused the record. The facts which are evident on record are that the petitioners are qualified to hold the post of Medical Officer. The Municipal Corporation, Nagpur had issued advertisement in daily newspaper 'Navbharat' and 'Lokmat' on 21.7.2009 calling the applications for the post of Lady Medical Officer and educational qualification prescribed was M.B.B.S. The posts of Lady Medical Officer advertised were 15. In the said advertisement applications were also called for the post of Public Health Nurse and Nurse Mid-wife. In view of the said advertisement petitioners had J-wp6033.19.odt 15/41 applied for the said posts. The respondents had constituted a Committee for conducting the interview and selection of Lady Medical Officers. As per the said advertisement 2 posts were reserved for Scheduled Caste, 1 post for Scheduled Tribe, 2 posts for V.J.N.T. and 3 posts for Other Backward Classes and 7 posts were Open. Accordingly, petitioners were selected after they undergone the interview before the Committee. The petitioners were appointed by issuing appointment orders on various dates in July 2010. As per the terms and conditions of the said appointment order the appointment of the petitioners on the post of Medical Officer was temporary for six months and said six months to be counted from the date of joining. The respondent Municipal Corporation reserved their right to remove the candidates from service, if they found the work unsatisfactory. It is further stipulated in the appointment letter that the candidates have to pass MS-CIT Examination within two years from the date of appointment. As per conditions, if the post of Lady Medical Officer was abolished then the petitioners would be removed from the service. The relevant terms and conditions are re-produced for reference.
ß2- T;k mesnokjkaph L=h oS|dh; vf/kdkjh ;k inkph fu;qDrh vLFkk;h Lo#ikph dsoG 6 efgU;kaP;k dkyko/khdjhrk jkghy] dkyko/kh gk J-wp6033.19.odt 16/41 #tw >kY;kP;k fnukadkiklwu x.k.;kr ;sbZy- lnj ifjfo{kk dkyko/kh e/;s R;kaps dke o orZ.kwd vlek/kkudkjd vk<Gwu vkY;kl] R;kauk lsosrwu dk<wu Vkd.;kps vf/kdkj e-u-ik- ukxiwj yk jkgrhy-
3- egkjk"Vª ukxjh lsok ¼lax.kd gkrkG.ks@okijkckcrps Kku vko';d Bjfo.;kckcr½ fu;e&1999 vUo;s 'kklukus fuxZfer dsysY;k 'kklu fu.kZ; dzekad izf'k{k.k&2000@iz-dz-&61@2001@39] fn-19 ekpZ 2003 uqlkj lax.kdkP;k Kkuklaca/kh "D O E A C C" lkslk;VhP;k vf/kd`r "C C C" fdaok "O" Lrj fdaok "A" Lrj fdaok "B" fdaok "C" LrjkiSdh dks.krhgh ,d ijh{kk mRrh.kZ >kY;kps izek.ki= fdaok egkjk"Vª jkT; mPp o ra= f'k{k.k eaMG] eqacbZ ;kaps "MS-CIT" ijh{kk mRrh.kZ >kY;kps izek.ki= fu;qDrhP;k fnukadkiklwu nksu o"kkZaP;k vkar ojksYys[khr mesnokjkauh izkIr dj.ks vko';d vkgs- vU;Fkk R;kaP;k lsok lekIr gksrhy-
5- ukxiwj egkuxjikfydk vkjksX; foHkkxkP;k vkLFkkiusojhy L=h oS|dh; vf/kdkjh gs in deh >kY;kl vFkok e-u-ik- ukxiwj ;kauk mesnokjkaP;k lsosph vko';drk ulY;kl R;kauk e-u-ik- P;k lsosrwu deh dj.;kar ;sbZy-Þ
9. It is an admitted position that since the date of appointment till 2014 the petitioners continued in service as Lady Medical Officers. On 19.5.2014 they had firstly made a representation that though they had completed more than four years J-wp6033.19.odt 17/41 of continuous service the benefit of permanency was not granted to them. They requested that their services be considered on the permanent posts by granting them the benefit of permanency. Prior to that Municipal Corporation by passing Resolution absorbed them on the establishment of Health Department of Municipal Corporation. On 15.3.2017 the representations of the petitioners were rejected by assigning the reason that they were appointed on temporary posts under the Scheme of Family Welfare and no grants were received from the Government as other posts advertised in the same advertisement are not filled. The petitioners prior to 15.3.2017 were again appointed on the same post by issuing fresh orders. As per fresh orders issued to them they were again appointed on probation for a period of two years with the condition that they had to obtain the certificate of MS-CIT. The respondent Municipal Corporation raised the issue that as the petitioners were appointed under the Scheme of Government of Maharashtra Public Health Department, it was a temporary post. The Municipal Corporation had considered their services for more than four years and sympathetically absorbed them on the establishment of their Health Department. They could not be equated with the other Medical Officers whom this Court had granted the benefit of permanency in view of order passed in Writ Petition J-wp6033.19.odt 18/41 No.24/2011. As per the contention of the respondents, the petitioner who had filed Writ Petition No.24/2011 was considered as a Medical Officer and benefit of permanency was granted to them in view of notification dated 2nd February, 2009. The notification dated 2nd February, 2009 shows that said notification is issued by the Public Health Department Mantralaya, Mumbai in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India. By this notification the rules for one time absorption of the Medical Officer working on ad-hoc basis were framed. These rules are called as a Medical Officer in the Maharashtra Medical and Health Services Group-A (One time absorption of Medical Officer appointed on ad-hoc basis in Maharashtra) (Special) Rules, 2009. Rule 3.(1) is reproduced as under :
3.(1) Notwithstanding anything contained in these rules, every such ad-hoc Medical Officer who is continued as such on the date of commencement of these rules shall with effect from such date of commencement be absorbed on the post of Medical Officer with a pay scale specified for the post in the Maharashtra Medical and Health Services."
10. Admittedly the petitioners in the present petition are not appointed on ad-hoc basis. It is nowhere the contention of the petitioners that they were appointed on ad-hoc basis. Neither it was the contention of the Municipal Corporation that petitions were J-wp6033.19.odt 19/41 appointed on ad-hoc basis. It is an admitted position that the petitioners applied in view of the advertisement issued by the Municipal Corporation on 21.7.2009. As per the contention of the respondents said advertisement was issued in view of the letter of the Government of Maharashtra dated 18th August, 1988 and the communication from the Family Health Department, Pune asking the respondents to fill up the posts to work in the Urban Health Centers for which 100% grants would be provided by the State Government. After perusal of the advertisement it is apparent that said advertisement nowhere discloses that posts are to be filled in view of scheme of the State Family Welfare Department to fill up the posts of Lady Medical Officer in Urban Health Centers. The recitals of the advertisement shows that advertisement was issued by the Nagpur Municipal Corporation to fill up the post in their Health Department and the posts are Type D. After due process the petitioners were selected and appointment letters were issued to them. The appointment letters also disclose that if the post of Lady Medical Officer on the establishment of the Health Department of Municipal Corporation were reduced or cancelled then the petitioners would be removed from service. The appointment letters nowhere disclose that the appointment of the petitioners was in view of the Scheme run by J-wp6033.19.odt 20/41 the State Family Welfare Department, Pune or under the Scheme of Urban Health Centers. The appointment letters specifically state that the petitioners were appointed as Lady Medical Officer on the establishment of Municipal Corporation in the Health Department. The subsequent orders of appointment issued by the respondent dated 28.9.2016 also state that 10 Lady Medical Officers were appointed on vacant posts on the establishment of Municipal Corporation on a pay scale of Rs.15600-39100/- along with Grade Pay of Rs.5400/-. Thus, the subsequent appointment orders also nowhere disclose that their appointment was under the Scheme of Urban Health Centers run by the Family Welfare Department, Maharashtra State, Pune. The contention of the Municipal Corporation that the posts on which the petitioners were appointed were temporary posts created under the Scheme of Urban Health Centers run by the Family Welfare Department, Maharashtra State, Pune is not substantiated by any document. On the contrary, the documents on which the respondents have relied upon i.e. appointment order dated 14.7.2010 as well as subsequent appointment order dated 28.9.2016 show that the appointment of the petitioners was on temporary basis on the establishment of Health Department of Municipal Corporation. Clause (5) of the appointment order dated 14.7.2010 of petitioner No.1 - J-wp6033.19.odt 21/41 Meenakshi Samir Mane and other petitioners of the respective dates and the order dated 28.9.2016 issued by the Assistant Commissioner shows that the appointment was on the establishment of Health Department of Nagpur Municipal Corporation. Paragraph No.3 and Condition No.4 of the order dated 28.9.2016 are re-produced here for the reference.
Para (3) :
R;kvFkhZ [kkyhy 10 L=h oS|dh; vf/kdk&;kauk e-u-ik-rhy fjDr vlysY;k oS|dh; vf/kdkjh ;k inkoj osrueku #-15600&39100 xzsM is 5400 e/;s vf/kd R;koj fu;ekuqlkj feG.kk&;k brj oktoh HkRR;koj R;kps ukokleksj n'kZfoysY;k vkjksX; foHkkxkP;k vkLFkkiusojhy fjDr inkoj ;k vkns'kkP;k fnukadkiklwu [kkyhy vVh o 'krhZuqlkj vLFkk;h fu;qDr dj.;kr ;srs-
Condition no. (4) :
4- egkjk"Vª ukxjh lsok ¼lax.kd gkrkG.ks@okijkckcrps Kku vko';d Bjfo.;kckcr½ fu;e&1999 vUo;s 'kklukus fuxZfer dsysY;k 'kklu fu.kZ; dzekad izf'k{k.k&2000@iz-dz-&61@2001@39] fn-19 ekpZ 2003 uqlkj lax.kdkP;k Kkuklaca/kh "D O E A C C" lkslk;VhP;k vf/kd`r "C C C" fdaok "O" Lrj fdaok "A" Lrj fdaok "B" fdaok "C" LrjkiSdh dks.krhgh ,d ijh{kk mRrh.kZ >kY;kps izek.ki= fdaok egkjk"Vª jkT; mPp o ra= f'k{k.k eaMG] eqacbZ ;kaps "MS-CIT" ijh{kk mRrh.kZ J-wp6033.19.odt 22/41 >kY;kps izek.ki= fu;qDrhP;k fnukadkiklwu nksu o"kkZaP;k vkar ojksYys[khr mesnokjkauh izkIr dj.ks vko';d vkgs- vU;Fkk R;kaP;k lsok lekIr gksrhy-
11. The learned Senior Advocate for the petitioners submitted that initial appointment of the petitioners as Lady Medical Officer was issued in the year July 2010 on various dates. As per the said appointment order the probation period was fixed as six months. The clause (2) of the said appointment order states that Lady Medical Officers are appointed on a temporary post for six months and said six months period is the probation period. Subsequent order was issued on 28.9.2016. Clause (3) of the order dated 28.9.2016 also shows that the petitioners are appointed as a Medical officers for two years on probation period. He submitted that after completion of initial six months' probation period, petitioners continued with service from 2010 to 2016. In the meantime on 20.7.2016 by passing Resolution bearing No.301 the petitioners were absorbed on the post of Medical Officer on the establishment of Nagpur Municipal Corporation. He submitted that when petitioners have completed initial six months' probation period and continued for 4-5 years after completion of said probation period no confirmation order was issued to them. There is no rule as to the maximum probation period and therefore they are J-wp6033.19.odt 23/41 entitled for the benefit of permanency.
Admittedly, the initial appointment orders state that probation period of the petitioners would be six months. Thereafter the petitioners were continued in service without any break. The Lady Medical Officers were absorbed on the post of Medical Officer on the establishment of Nagpur Municipal Corporation in view of Resolution dated 20.7.2016. It is submitted by the learned counsel for the respondent-Municipal Corporation that there are no vacant posts. But the subsequent order dated 16.9.2017 clearly shows that they were appointed on the vacant posts of Medical Officers on the establishment of Municipal Corporation. The order dated 28.9.2016 itself shows that the appointment was being made on vacant posts. Now question is whether the employees who have already completed the probation period mentioned in the appointment letter could be put again on the probation when there is no specific rule regarding the maximum period of probation. The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should have satisfactorily performed his duties and functions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. The authority has to J-wp6033.19.odt 24/41 consider the suitability of the probationer to the post on which he is appointed and take a conscious decision whether he is suitable to hold the post and issue an order declaring that the probationer has satisfactorily completed his period of probation.
12. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter before the Hon'ble Apex Court in case of High Court of Madhya Pradesh vs. Satya Narayan Jhavar, reported in (2001) 7 SCC 161. The Hon'ble Apex Court considered the issue of deemed confirmation having recorded that one line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. The other line of cases is that where there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order J-wp6033.19.odt 25/41 of termination has not been passed. In Wasim Beg vs. State of Uttar Pradesh and others, decided on 5.3.1998, wherein the question before the Hon'ble Apex Court was that whether an employee at the end of probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of the employer confirming the employee is necessary, will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. It is further held by the Hon'ble Apex Court that, there are broadly two sets of authorities of this Court dealing with this question. In those cases where the Rules provide for a maximum period of probation beyond which probation cannot be extended, this Court had held that at the end of the maximum probationary period there will be deemed confirmation of the employee unless Rules provide to the contrary. In the case of Dayaram Dayal vs. State of M.P. and another, reported in AIR 1997 SC 3269, held that if in the rule or order of appointment a period of probation is specified and a power to extend probation is also specified and the officer is continued beyond the prescribed period of probation, he cannot deemed to be confirmed, and there is no bar on the power of termination of the officer after the expiry of the initial period of probation. The Hon'ble Apex Court had referred several judgments in J-wp6033.19.odt 26/41 the said decision. In the case before a Constitution Bench of Apex Court in Sukhbans Singh vs. State of Punjab, reported in (1963) 1 SCR 416. Rule 22 of the relevant rules provided a period of probation and contained a provision for extension of probation. It was held that a probationer cannot automatically acquire the status of a permanent member of a service, unless of course the rules under which he is appointed expressly provides for such a result. Another judgment referred was G.S. Ramaswamy vs. I.G. of Police, Mysore, reported in AIR 1966 SC 175, State of U.P. vs. Akbar Ali Khan, reported in AIR 1966 SC 1842, wherein Court held that on completion of 2 years of probation as per rules, the officer continued to be a probationer until an order of confirmation was passed. By following the judgment of Sukbhams Singh's case, reported in AIR 1962 SC 1711, it was held that unless the order of appointment or the rule said that at the end of the probationary period, if no order was passed, the officer continued to be on probation. The Hon'ble Apex Court also referred the judgment of Kedar Nath vs. State of Punjab, reported in AIR 1972 SC 373, In Dhanjibhai Ramjibhai vs. State of Gujarat, reported in AIR 1985 SC 603, wherein also the period of probation fixed under the Rules was two years and there was also provision for extension but no maximum period was prescribed. The view was taken that there J-wp6033.19.odt 27/41 could be no automatic confirmation at the end of two years and that the termination after 2 years was valid.
13. The Hon'ble Apex Court in Dayaram Dayal vs. State of M.P. and another (supra) also discussed the other line of cases where it is held that while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. Question as to its effect arose before the Constitution Bench of the Hon'ble Apex Court in State of Punjab vs. Dharam Singh reported in AIR 1968 SC 1210, on which petitioners placed reliance wherein the relevant rule there provided initially for a one year probation and then for extension thereof subject to a maximum of three years. The petitioner in that case was on probation from 1.10.1957 for one year and was continued beyond the extended period of three years. The Constitution Bench referred the cases of Sukbhams Singh and G.S. Ramaswamy and distinguished the same as cases where the rules did not provide for a maximum period of probation but that if the rule, as in the case before them provided for a maximum, then that was an implication that the officer was not in the position of a probationer after the expiry of the maximum period. The presumption of his continuing as a probationer J-wp6033.19.odt 28/41 was negatived by the fixation of a maximum time-limit for the extension of probation. The termination after expiry of four years, that is after the maximum period for which probation could be extended, was held to be invalid. This view has been consistently followed in Om Prakash Maurya vs. U.P. Co-opertive Sugar Factories Federation, reported in AIR 1986 SC 1844, M.K. Agrawal vs. Gurgaon Gramin Bank reported in AIR 1988 SC 286 and State of Gujarat vs. Akhilesh C. Bhargav, reported in AIR 1987 SC 2135, which are all cases in which a maximum period for extension of probation was prescribed and termination after expiry of the said period was held to be invalid inasmuch as the officer must be deemed to have been confirmed. On the basis of abovesaid decisions Hon'ble Apex Court in Dayaram Dayal vs. State of M.P. and another (supra) held that it is, therefore, clear that the present case is one where the Rule has prescribed an initial period of probation and then for the extension of probation subject to a maximum, and therefore the case squarely falls within the second line of case, namely, Dharam Singh's case and the provision for a maximum is an indication of an intention not to treat the officer as being under probation after the expiry of the maximum period of probation. It is also significant that in the case before us the effect of the rule fixing a maximum period of probation is not whittled J-wp6033.19.odt 29/41 down by any other provision in the rules. The Hon'ble Apex Court in Municipal Corporation, Raipur vs. Ashok Kumar Misra, reported in (1991) 3 SCC 325 held that exercise of the power to extend the probation is hedged with the existence of the rule in that regard followed by positive act of either confirmation of the probation or discharge from service or reversion to the substantive post within a reasonable time after the expiry of the period of probation. If the rules do not empower the appointing authority to extend the probation beyond the prescribed period, or where the rules are absent about confirmation or passing of the prescribed test for confirmation of probation then inaction for a very long time may lead to an indication of the satisfactory completion of probation. The period of probation is subject to extension by order in writing for another period of one year. Passing the prescribed examination and successful completion of probation and to make an order of confirmation are condition precedent. Here in the present case also Hon'ble Apex Court has referred the case of State of Punjab vs. Dharam Singh (supra), wherein it is held that the effect of continuing a probationer in service after the period of probation was completed, there was no rule for the extension of probation. Thus, in the above case there was no power to extend the probation in the rules beyond the specified J-wp6033.19.odt 30/41 period. It was held that the initial period of probation of the respondents ended on October 1, 1958. By allowing the respondents to continue in their posts thereafter without any express order of confirmation, the competent authority must be taken to have extended the period of probation up to October 1, 1960 by implication. But under the proviso to Rule 6(3), the probationary period could not extend beyond October 1, 1960. In view of the proviso to Rule 6(3) it is not possible to presume that the competent authority extended the probationary period after October 1, 1960, or that thereafter the respondents continued to hold their posts as probationers and accordingly it was held that the respondent therein was deemed to have been confirmed.
14. Thus, it appears that there are two types of cases which are dealt by the Hon'ble Apex Court. In one line of cases where the Rules prescribes maximum period of probation, if there is further provision in the rules for confirmation of such probation beyond the maximum period, the Courts have made an exception and said that there will be no deemed confirmation in such cases and the probation period will be deemed to be extended. In another line of cases it is held by the Hon'ble Apex Court that where the rules provided for maximum period of probation beyond which probation cannot be J-wp6033.19.odt 31/41 extended and the Court held that at the end of maximum probationary period there will be deemed confirmation of the employee unless rules provide to the contrary.
15. In the present case, the petitioners were appointed initially in the year 2010 as a Type D Lady Medical Officers initially on probation for six months on various terms and conditions. One of the terms and conditions was that they have to obtain MS-CIT certificate within two years from joining of the service and on failure of the same they would be terminated from the service. Each petitioner has obtained such certificate. The petitioners continued to work as a Lady Medical Officer till 20.7.2016 for six years. On 20.7.2016 Nagpur Municipal Corporation passed a Resolution bearing No.301 and absorbed them on the post of Medical Officer on vacant posts on the pay scale of Rs.15600-39100/- after considering the fact that they had been appointed on the post of Lady Medical Officer pursuant to the earlier recruitment process in 2009. Section 50 of the City of Nagpur Corporation Act, 1948 deals with the appointment of other officers and servants. In the said provision there is no rule prescribed regarding minimum or maximum period of probation. Similarly, the Rules framed under Section 420 read with Sections 49 and 50 also do not indicate prescription of any specific period of probation while J-wp6033.19.odt 32/41 making an appointment. Thus, in the light of the observations of the Hon'ble Apex Court, especially observations of the Apex Court Constitution Bench in State of Punjab vs. Dharam Singh (supra), wherein it is held that where the rules provided for maximum period of probation beyond which probation cannot be extended, at the end of the maximum probationary period there will be deemed confirmation of the employee unless Rules provide to the contrary. In this factual backdrop, the case of the petitioners is to be considered.
16. It is crystal clear that as per the initial appointment order and the subsequent order dated 28.9.2016 the appointment of the petitioners though temporary but was on the establishment of Health Department of Nagpur Municipal Corporation. Now, the question before us is that whether the benefit of earlier service rendered could be granted to the petitioners in the light of the decision of this Court. In Writ Petition No.24/2011 the petitioner therein Dr.(Smt) Sarita w/o. Viral Kamdar was granted the benefit of earlier service rendered. The facts of the said petitioner's writ petition shows that she was also appointed on temporary basis for one year and subsequently she was continued and treated as a Locum candidate, wherein this Court recorded the finding that the petitioner held qualification of M.B.B.S. She came to be initially appointed by the J-wp6033.19.odt 33/41 respondents Corporation as Locum. The advertisement was issued inviting applications for appointment of doctors on contract basis on a fixed salary of Rs.8,000/- per month. The petitioner was aggrieved by such an advertisement. This Court held that there were 20 posts of Medical Officer and only 18 could be filled in. This Court also held that the petitioner had continued in service prior to 1999 when she was appointed as a Health Officer on 2nd February, 1996 and came to be appointed as Medical Officer on 22nd June, 1998. She then was appointed as Medical Officer on temporary basis for one year. The status of the petitioner was purely as Locum or contractual appointment to fill in certain contingency and not a temporary appointment or ad-hoc appointment under the Rules of 2009. It is further held by this Court that the petitioner could not be denied the benefit of Government Resolution dated 2.2.2009 or Rules of 2009. Admittedly, in the present case petitioners are not the ad-hoc employees. Considering the fact that the petitioners were not appointed on contract basis but were appointed by following due process by advertising the posts by taking the interview etc., such manner of appointment cannot be ignored. The appointment orders issued to them shows that they were appointed on temporary basis initially for six months and thereafter they are continued on the said J-wp6033.19.odt 34/41 posts for almost six years. The appointment order issued initially and the order issued on 28.9.2016 nowhere states that their appointments were in view of the Scheme of Urban Health Center run by Family Welfare Department. Though respondents invited the attention towards the communication dated 8.6.2009 by Additional Director, Health Department Family Welfare but said communication is in respect of 15 Urban Health Centers to be re-started. As per the contention of the respondents in view of the said communication advertisement was published, but the advertisement nowhere discloses that said posts are to be filled in and the candidates have to work in Urban Health Centers. On the contrary, the advertisement states that the posts are to be filled in Health Department of Municipal Corporation i.e. on the establishment of Health Department of the Municipal Corporation. Admittedly, petitioners have served for more than 12 years. They are appointed after issuance of advertisement and after being interviewed. Considering the long and uninterrupted service on the establishment of Municipal Corporation they are entitled to the benefit of earlier service rendered. The order issued by the respondents appointing them again on the probation appears to be unjustified when they had already completed the period of probation and also complied with the condition of obtaining of MS-CIT J-wp6033.19.odt 35/41 certificate. Another relevant aspect having material bearing is that the post of Lady Medical Officer and Medical Officer carry the same pay scale of Rs.8,000-13,500 with pay band of Rs.15,600-39,100. The appointment orders initially issued for the post of Lady Medical Officer as well as the appointment orders issued in 2016 on the post of Medical Officer are on the same pay-scale. The appointment orders of 2016 are issued on vacant posts available with the Corporation. Further, as per the initial order of appointment issued to each petitioner the MS-CIT examination was required to be passed. Each petitioner has already passed the said examination after being initially appointed on the post of Lady Medical officer. Despite that, in the fresh appointment orders this requirement was again mentioned.
All these aspects definitely support the prayer of the petitioners of seeking benefit of the initial appointment and subsequent continuation for all these years.
17. Another issue raised by the respondents is that the writ petition deserves to be dismissed as it suffers from delay and laches. Admittedly, the representation of the petitioners rejected on 15.3.2017. Thereafter, again petitioners had approached to the Municipal Corporation for re-considering their claim. Admittedly, no orders are passed by the respondents on the said representation dated J-wp6033.19.odt 36/41 20th July, 2019. It is submitted by the learned counsel for the respondents that the claim putforth by the petitioners is hit by the doctrine of delay and laches. The representation was rejected on 15.3.2017 and petitioners approached to the Court by filing this petition on 6.8.2019. The filing of the writ petition on 6.8.2019 cannot be said to be so belated so as to deny the petitioners consideration of their grievances.
18. In Narayani Devi vs. State of Bihar, C.A. No.140 of 1964 decided on 22.9.1964 (unreported) Hon'ble Apex Court that ;
"No hard and fast Rule can be said to be laid down as to whom the High Court should exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is the matter which must be left to the discretion of the High Court and litre all matters left to the discretion of the Court. The discretion must be exercised judiciously and reasonably."
19. In Tehri Rohtas Light Railway Company Limited vs. District Board Bhojpur and others, reported in AIR 1993 SC 502. Following Tilokchand Motichand vs. H.B. Munshi, reported in AIR 1970 SC 898 reiterating the settled principles emphasizing on the real test of laches and negligence. The Hon'ble Apex Court observed under :
J-wp6033.19.odt 37/41
"The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches."
If the cause of action is continuous in nature and the nature of injury caused to the petitioner subsists till it is remedied or some relief is granted in his favour the Court may entertain the petition and decide it on merits. Here in the present case till filing of petition no benefit of permanency granted to the petitioners, cause of action is continuing one. Thus, it appears that they approached this Court within reasonable time. Therefore, contention of the respondents that petition suffers from delay and laches is not acceptable.
20. Learned Senior Advocate for the petitioner relied upon various judgments of the Hon'ble Apex Court wherein the service conditions are discussed. The judgments on which the learned Senior Advocate relied upon are regarding the seniority list and grievances J-wp6033.19.odt 38/41 about the seniority list. Here, the seniority list is not in question. Therefore, said decisions are not helpful. The petitioners placed reliance in the case of State of Punjab vs. Dharam Singh (supra), wherein it is held by the Hon'ble Apex Court that the service rules fixed a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. Here also in the present case initially the petitioners were appointed for six months on a temporary basis but on probation. The terms and conditions shows that during the probation period if the work is not found satisfactory, Nagpur Municipal Corporation reserved the right to remove them from service. However the petitioners were continued in service for more than four years and no communication was issued to them indicating that they had not satisfactorily completed the probation period. Inference can only be drawn that they had successfully completed the probation period. No adverse material has been placed before the Court even at this stage. Once they had completed the probation as Lady Medical Officers successfully there does not appear to be any justification in again J-wp6033.19.odt 39/41 appointing them on probation on the post of Medical Officer. As noted above, the post of Lady Medical Officer and Medical Officer are in the same pay scale of Rs.8,000-13,500 with pay band of Rs.15,600- 39,100. Though the respondents claimed that there is no vacant post to accommodate the petitioners, their subsequent appointment order dated 28.9.2016 states otherwise and is re-produced as under :
Para (3) ßR;kvFkhZ [kkyhy 10 L=h oS|dh; vf/kdk&;kauk e-u-ik-rhy fjDr vlysY;k oS|dh; vf/kdkjh ;k inkoj osrueku #-15600&39100 xzsM is 5400 e/;s vf/kd R;koj fu;ekuqlkj feG.kk&;k brj oktoh HkRR;koj R;kps ukokleksj n'kZfoysY;k vkjksX; foHkkxkP;k vkLFkkiusojhy fjDr inkoj ;k vkns'kkP;k fnukadkiklwu [kkyhy vVh o 'krhZuqlkj vLFkk;h fu;qDr dj.;kr ;srs-Þ Condition (3) ßT;k mesnokjkaph oS|dh; vf/kdkjh ;k inkph fu;qDrh nksu o"kkZP;k ifjfo{kk/khu dkyko/khlkBh jkghy o ifjfo{kk dkyko/kh #tw >kY;kP;k fnukadkiklwu x.k.;kr ;sbZy- lnj ifjfo{kk dkyko/kh e/;s R;kaps dke o orZ.kwd vlek/kkudkjd vk<Gwu vkY;kl R;kauk lsosrwu dk<wu Vkd.;kps vf/kdkj e-u-ik- ukxiwj yk jkghy-Þ
21. It is specifically mentioned that 10 Lady Medical Officers J-wp6033.19.odt 40/41 are appointed on a temporary basis on a vacant post of Medical Officers. This recitals of the order itself are sufficient to show that the petitioners were appointed on a vacant posts of Medical Officer. In view of that, it is very well can be inferred that the petitioners could be accommodated on the said posts and benefit of service rendered as Lady Medical Officer deserves to be granted to them. In such circumstances, we are of the opinion that the petitioners are entitled to the benefit of their earlier service by setting aside the communication dated 15.3.2017. Therefore, we proceed to pass following order :
ORDER
(i) The Writ Petition is allowed.
(ii) The communication dated 15.3.2017 is quashed and set aside.
(iii) The respondent Nos.1 and 2 are directed to grant benefit of the service rendered by the petitioners from the date of their initial appointment as Lady Medical Officer. Though the petitioners would not be entitled to any monetary benefits in the form of arrears flowing from this direction, the service rendered earlier shall be taken into consideration J-wp6033.19.odt 41/41 for all other purposes.
22. Rule is made absolute in the aforesaid terms. No costs.
(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.)
okMksns002
Signed By:DEVENDRA
WASUDEORAO WADODE
PA to the Hon'ble Judge
Signing Date:11.11.2022 12:38