S K SAXENA Vs. STATE OF M P

JUDGEMENT

(1.) The petitioners, two in number working as Surgical Specialist in Public Health and Family Welfare Department of Government of Madhya Pradesh, have approached this Court by way of filing this writ petition, challenging the correctness of the order dated 27-11-2006 (Annx. P/11), by which the private respondents have been regularised on the administrative promotional post of Chief Medical and Health Officer/Deputy Director, as also the order dated 7-2-2007, by which the representation made by the petitioners has been rejected, denying them the benefit of seniority with retrospective effect and the order dated 10-5-2007, by which again certain persons have been promoted on the nest higher post, giving them the benefit of notional promotion, on the grounds that the petitioners were senior to the private respondents No. 3 to 5 on the post of Assistant Surgeon. According to the petitioners, their claims were to be considered for promotion on the post of Specialist, but instead of considering the cases of petitioners, such juniors were promoted only because in their speciality, the vacancy was available and, as such, they were promoted on the post of specialist. However, the respondent No. 3 was given the benefit of ad hoc promotion and that period has been regularized by the impugned orders treating as if the said respondent was promoted on regular basis. This is how the petitioners have been superseded in the matter of promotion and, therefore, they made a representation before the competent authority. Earlier the benefit of seniority was granted to the petitioners, but because of making of representation by the private respondents and some others, the petitioners have been again lowered down in the seniority list by rejection of their representation. According to the petitioners, the issue has already been raised in the case of State of A.P. vs. Dr. N. Ramchandra Rao and others, 1990 14 ATC 780, wherein it was held that a junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality. The juniors who get the accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancy in such speciality should not be allowed to march over their seniors for appointment to administrative post. It is contented by the petitioners that since this law is very clear, even if the private respondents were promoted on the post of Specialist prior to the promotion of petitioners, their seniority of the feeder post of Assistant Surgeon should have been maintained and, accordingly, the claim of petitioners should have been considered for promotion on the next higher post. It is contended that since this aspect has been totally overlooked, the action of rejecting the representation of the petitioners and granting benefit of promotion to the juniors on administrative post by subsequent orders, is per se illegal.

(2.) Refuting the allegations made in the petition, a return has been filed by the respondents No. 1 and 2 and they have contended that the posts of Assistant Surgeon were to be filled in by direct recruitment through M.P. Public Service Commission. The petitioner No. 1 though was selected in the year 1974, could join the post only after grant of extension of joining time in the year 1976. The petitioner No. 2 was selected in the year 1974 and had joined the services in the same year. The private respondents were selected in the year 1977 and 1979 by the M.P. Public Service Commission and, accordingly, the seniority list was prepared showing the private respondents below the petitioners in the order of appointment on the post of Assistant Surgeon. The gradation seniority list was never challenged by any such junior persons. However, the promotion on the post of Specialist was done in the year 1994. The petitioners were shown senior to the respondent No. 3. However, in the year 2000, the gradation list was issued taking into consideration the period for which the respondent No. 3 had worked as Incharge Specialist. It is contended that the ad hoc promotion of respondent No. 3 was done only because a vacancy was available in the speciality in which the respondent No. 3 had obtained the degree of Post Graduation. He being the fit person to be considered for promotion, ad hoc promotion was done only because at the relevant time the post of Specialist was to be filled in 100% by direct recruitment. Since the direct recruitment was to take some time, ad hoc posting of respondent No. 3 was alone, keeping in view the educational qualification prescribed under the Rules. It is contended that subsequently the vacancies on the post of Specialist again became available for persons like respondents No. 4 and 5 and after their consideration, they too were given the posting as specialist on ad hoc basis. The Rules came into force in the year 1988 and since a quota of promotion was prescribed, it was decided to consider the cases of persons like respondents No. 3 to 5 for regularization of such ad hoc promotion and the orders in that respect were issued. This being the situation, the petitioners who were not having specific speciality, in the education for that particular post, if the claims of persons like petitioners were not considered in that particular year, or they were subsequently promoted as Specialist in their particular speciality, on availability of the vacancies, it cannot be said that wrong was committed. It is contended that in one of the cases filed by one Dr. M.K. Joshi, the directions were given by the M.P. Administrative Tribunal to count the services rendered by him on ad hoc basis as Specialist for the purposes of fixing the seniority in the cadre of Specialist and in compliance of the said order, benefit was extended to the persons like respondents No. 3 to 5. It is contended that at no point of time any representation was made in that particular year even when the Special Leave Petition filed by the State Government against the order passed by the Tribunal, was disposed of observing that adequate safeguards have been provided by the Tribunal in its order to the persons who are aggrieved by such fixation of seniority. In case the petitioners were aggrieved by the fixation of seniority of private respondents, it was necessary on their part to approach the departmental authorities or the Court of law at the relevant time. Having failed to do so, at such a belated stage, if a representation is made and the same has been dismissed, it cannot be said that the right of the petitioners is jeopardised. It is contended that the law laid down by the Apex Court in the case of Dr. N. Ramchandra Rao would not be attracted in the present case, inasmuch as, the claim of the petitioners is with respect to fixation of seniority on the post of Specialist and not promotion on any administrative post, therefore, the entire petition is misconceived and is, thus, liable to be dismissed. It is contended by the respondents that no such relief as claimed can be granted to the petitioners.

(3.) The private respondents though have filed the returns, but have virtually adopted the return of the State respondent and they have not put forth any new ground except that the settled position of seniority is not required to be disturbed at such a belated stage. It is contended that because of the lapses and delay caused on the part of the petitioners, the claim made by the petitioners in such a belated petition cannot be granted. It is contended that considering all such factors, the representation of the petitioners has rightly been rejected. It is contended that the private respondents have virtually worked on the post of Specialist from the date of their ad hoc promotion and, therefore, they are entitled to grant of seniority on the said post from the date the ad hoc promotion was made on the post of Specialist. The respondents have thus contended that the petition is liable to be dismissed.