Madhya Pradesh High Court
Dr. Anoop Kumar Vyas And 3 Anr. vs Principal Secretary State Of M.P. And 2 ... on 4 January, 2016
W.P.No.6356/2012
05.01.2016
Shri L.C. Patne, learned Counsel for the petitioners.
The petitioners before this Court are serving as
Professors under the Department of Higher Education of the
State of Madhya Pradesh. They are aggrieved by final
gradation list published by the State Government (Annexure
P/9).
The facts of the case reveal that the petitioners were
appointed initially on ad-hoc basis in the Department of
Higher Education on the post of Assistant Professors on
25/09/1980, 19.07.1980, 19.12.1981 and 04.11.1980
respectively. After their appointment on ad-hoc basis, they
continued in the service uninterruptedly, till their
regularisation.
The Governor to the State of Madhya Pradesh in order
to regularise ad-hoc appointees in exercise of powers
conferred by the proviso to Article 309 of the Constitution
of India, Government has made the M.P Regularization and
Adhoc Appointment Rules 1986 and after taking in to
account the Rules 1986, the petitioners were also
considered for regularization.
It is an undisputed fact that a committee was
constituted for the purpose of regularization of the
petitioners and they were regularised by the order dated
17/03/1987 as Assistant Professors. Petitioners were
granted seniority initially taking into account Rule 7 read
with Rule 12 of the Madhya Pradesh Regularization of
Ad-hoc Appointment Rules, 1986. However, a provisional
gradation list was issued by the respondents (Annexure P/8)
dated 10/02/2012 and the petitioners were granted time to submit a representation against the provisional gradation list.
The petitioners grievance is that without considering their representation, a final gradation list has been issued and in the final gradation list which is challenged in the present writ petition, the inter se seniority of regularised Assistant Professors has been disturbed.
Shri L.C. Patne, learned Counsel for the petitioners has vehemently argued before this Court that the respondents while issuing final gradation list have taken into account the judgment delivered by the Division Bench of this Court in the case of Prantiya Shaskiya Mahavidyalayeen Pradhyapak Sangh and another Vs. State of M.P. & Others in W.P. No 1704/2009 (s) decided on 11/03/2010. He has further stated that the aforesaid judgment was in respect of inter se seniority despite of persons who are appointed by mode of direct recruitment and by mode of promotion.
He has vehemently argued that the aforesaid judgment could not have been made applicable in the case of the present petitioners i.e., in the case of Assistant Professors who have been regularised under the provisions of M.P. Regularisation of Ad-hoc Appointment Rules, 1986 and 1990 so far as their inter se seniority is concerned. He has prayed for issuance of an appropriate writ, order or direction directing the respondents to revise the gradation list.
On the other hand a detailed and exhaustive reply has been filed by the State Government and the contention of the State Government is that they have revised the gradation list on the basis of judgment delivered by this Court in W.P. No. 1704/2009 and Review Petition No. 267/2010.
The stand of the respondents-state is that once Division Bench of this Court delivered a judgment, they have rightly granted seniority to the petitioners. Hence, the question of interference of this Court does not arise.
Heard learned Counsel for the parties and perused the record.
It is an undisputed fact that the petitioners were appointed on Ad-hoc basis on the dates (25/09/1980, 19.07.7980, 19.12.1981 and 04.11.1980 respectively). The petitioners were considered for regularization under the Rules of 1986. Rule 7 and Rule 12 of the Madhya Pradesh Regularization of Ad-hoc Appointment Rules, 1986 reads as under:-
7. Preparation of Selection List: (1) The committee shall prepare a selection list after scrutinizing the cases of the person appointed on ad-hoc basis on the post mentioned in the Schedule in accordance with the provisions of these rules and the criteria determined by the appointing authority.
2. While scrutinizing the cases the suitability of the person concerned shall be assessed on the basis of their confidential records maintained, if any, and their conduct.
3. The names of the persons, in the selection list, shall be arranged in order of their seniority in the ad-hoc appointment. (The seniority shall be assessed on the basis of the total length of service rendered as ad-hoc appointee irrespective of break in service). If two or more persons have been appointed together, their seniority shall be assessed in that order in which their names appear in the appointment order.
12. Seniority:(1) A person appointed under these rules shall be entitled to seniority only from the date of the order of regular appointment and shall be placed below the persons appointed in accordance with the relevant recruitment rules prior to the appointment of such person under these rules.
(2) If two or more persons are appointed together, their seniority inter se shall be determined in the order mentioned in the order of appointment.
Rule 7 makes it very clear that while preparing the selection list, initial date of appointment has to be taken into account and initially the same was rightly done by the respondent-State. Not only this, clarification was also issued by the State Government which is also on record as Annexure P5. The same reads as under:-
e/;izns'k 'kklu mPp f'k{kk foHkkx dz-3111@38&1@90 Hkksiky fnukad 10 vxLr 1990 izfr] vk;qDr] mPp f'k{kk foHkkx] lriqM+k Hkou] HkksikyA fo"k;% uofu;fer lgk;d izk/;kidksa ds e/; foj"Brk dk fu/kkZj.kA e/;izns'k rnFkZ fu;qfDr;ksa dk fu;ferhdj.k fu;e&1986 rFkk e-iz- rnFkZ ,oa vkikrh fu;qfDr;ksa dk fu;ferhdj.k fu;e 1990 ds v/khu ftu lgk;d izk/;kidksa dk le;≤ ij tkjh vkns'kksa ls fu;ferhdj.k fd;k x;k gS] muds e/; ofj"Brk dk fu/kkZj.k fuEukuqlkj fd;k tkosxk%& 1- ofj"Brk fu/kkZj.k ds fy, 1986 ds fu;eksa vkSj 1990 ds fu;eksa ds v/hu fu;fer fd, x, lgk;d izk/;kidksa dks ,d lewg dk ekuk tkosxkA bu lgk;d izk/;kidksa dk fu;ferhdj.k fnukad ls iwoZ dh yxkrkj fcuk VwVh dh lsok ftl fnukad ls izkjaHk gqbZ gS og ofj"Brk ds fu/kkZj.k ds vk/kkj gksxhA mnkgj.k% ,d lgk;d izk/;kid **d* dk fu;ferhdj.k fnukad 10-10-87 ls fd;k x;k gS] fdUrq og 20-09-85 ls yxkrkj lgk;d izk/;kid ds in ij dk;Zjr gS vkSj nwljk lgk;d izk/;kid **[k** dk fu;ferhdj.k 30-06-90 ls fd;k x;k gS fdUrq og 05-11-82 ls fujUrj lgk;d izk/;kid ds in ij dk;Zjr gS] rks **[k** **d** ls ofj"B gksxk vkSj rnkuqlkj ofj"Brk lwph esa **[k* dk uke **d** ds Åij vk;sxkA 2- ;fn fcUnq dzekad 1 vuqlkj fu/kZj.k esa nks ;k vf/kd lgk;d izk/;kid dk ofj"Brk fu/kkZj.k gsrq ,d gh fnukad gS rks ,slh fLFkfr esa vf/kd vk;q okyk O;fDr ofj"B gksxkA Li"Vhdj.k dzekad 01%& rnFkZ fu;qfDr ds nkSjku fu;ekuqlkj 89 fnol ds i'pkr rhu fnol dh VwV dh vof/k dks ek= bl ofj"Brk fu/kkZj.k gsrq fujUrj lsok ekuk tkosxkA rhu fnol dks bl VwV dh vof/k ls owoZ esa ;k ckn esa yxk gqvk@yxs gq, lkoZtfud vodk'k ds ifj.kkeLo:i ;g vof/k c<+us ij Hkh fujUrj lsok ekuh tkosxhA Li"Vhdj.k dzekad 02%& lkisf{kd ofj"Brk fu/kkZj.k dk ;g ekin.M mi;qZDr fu;eksa ds vUrxZr fu;fer fd, x, lgk;d izk/;kidksa ds izdj.k ea buds e/; ofj"Brk fu/kkZj.k ds fy;s gh ykxw gksxkA vU; lgkd izk/;kidksa ds ofj"Brk fu/kkZj.k ds izdj.k bl ekin.M ls fofuf'pr ugha fd;s tkosxsA Li"Vhdj.k dzekad 03%& bl ekin.M ds vuqlkj fu/kkZfjr dh xbZ ofj"Brk dk lacaf/kr lgk;d izk/;kid dks izkIr gks jgs osru]] HkRrs vkfn ij fdlh izdkj dk izHkko ugha gksxkA fu;fer osrueku esa osruo`f);ka fu;fer fd;s tkus ds vkns'k ds fnukad ds lanHkZ esa gh ns; gksxhA os lgk;d izk/;kid tks vHkh ijhoh{kk vof/k esa gS] ds uke ds vkxs rkjk ¼*½ yxkdj ofj"Brk lwph esa o;Dr fd;k fd ofj"Brk dk fu/kkZj.k ofj"Brk ijhoh{kk vof/k lekIr gksus ij fd;k tkosxkA gLrk{kj% ¼vkj-ds-ekFkqj½ voj lfpo e/;izns'k 'kklu] mPp f'k{kk foHkkx Rule 7 read with the aforesaid clarification of the State Government makes it very clear that so far as inter se seniority of ad-hoc appointees is concerned, the date of initial appointment has to be taken into account. The judgment over which heavy reliance has been placed upon the State Government was relating to a case regarding seniority of Professors appointed through direct recruitment and Professors appointed by virtue of promotion keeping in view M.P. Education Service, Collegiate Branch, Recruitment Rules 1990 and therefore, in the considered opinion of this Court, so far as inter se seniority of Professors is concerned, the same has to be fixed, keeping in view the judgment delivered by the Division Bench. However, the inter se seniority of persons who have been regularised on account of Rules of 1986 has to be fixed, keeping in view the Rules of 1986 read with Rules of 1990, meaning thereby, the initial date of appointment on ad-hoc basis has to be taken into account while fixing inter se seniority of Assistant Professors who have been regularised later on keeping in view the Rules of 1986.
Resultantly, the writ petition stands allowed. Respondent-State is directed to review the gradation list of all those persons who have been appointed on ad-hoc basis and who have been regularised keeping in view the Rules of 1986. The exercise of revising the gradation list be concluded within a period of four months from the date of receipt of certified copy of this order.
Respondents are directed to consider the cases of the petitioners as well as all other identical persons only after gradation list is revised for the purpose of promotion.
With the aforesaid, the writ petition stands allowed. No order as to costs.
Certified copy as per rules.
(S.C. Sharma) Judge Karuna