VYANKATACHARYA DWIVEDI Vs. STATE OF M P

JUDGEMENT

(1.) This Petition under Article 226 of the Constitution of India is directed seeking a Writ of Mandamus commanding the respondents to fix the seniority of petitioner w.e.f. 24-4-1980 the initial date of appointment in service and to correct the gradation seniority list. It is contended by the petitioner that he took part in the selection for appointment on the post of Veterinary Assistant Surgeon which was advertised by the Public Service Commission in the year 1979-80. On account of selection by the Public Service Commission, an order was issued by the Director Veterinary Services on 24-4-1980 appointing the petitioner on the said post. The name of the petitioner was mentioned at serial No. 52 of the said order and he was posted in Sagar Division. The petitioner joined the services and started working. However, on account of his personal reason he tendered a resignation on 30th October, 1980 giving a month's notice stating that he will relinquish the post on 30th November, 1980. Nothing was intimated to the petitioner whether his resignation was accepted or not. On 12-4-1982 the petitioner made an application seeking withdrawal of his resignation as the same was not accepted by that time nor any order was communicated to the petitioner. Since such an application was made, an order of appointment was issued on 28th August, 1984 appointing the petitioner on ad hoc basis for a period of six months as Veterinary Assistant Surgeon and the petitioner was posted in Shahdol District. Though it was mentioned in the order that the petitioner was required to appear in the selection afresh, but the said order was not to be treated as an order of ad hoc appointment as in fact the petitioner should have been reinstated in service in terms of withdrawal of his resignation. The petitioner took part in the selection initiated by Public Service Commission, was again selected and was appointed vide order dated 29-11-1986 on regular basis as Veterinary Assistant Surgeon. Subsequently when the gradation seniority list was issued, the initial date of appointment of the petitioner was shown to be the first appointment i.e. the appointment made in the year 1980 and thereby seniority of the petitioner was maintained. However, no change was made in the seniority of the petitioner even when an order of confirmation was issued in his respect on 28th May, 1990. The petitioner was said to be confirmed w.e.f. 10-12-1988. Subsequently a gradation seniority list in the year 1997 was issued and in the said list no details of petitioner were shown, therefore, the petitioner was of the opinion that his seniority is properly maintained. However, seeking redressal in respect of fixation of seniority the representation was made by the petitioner which was referred to the higher authorities. Nothing was done, the petitioner was not given the seniority from the date of his first appointment, therefore, after making the last representation in the year 2008 the writ petition was required to be filed. On the basis of these allegations the petitioner has sought the relief in the following manner:--

(2.) Upon issuance of the notice of this writ petition, the respondents have filed their return and have categorically contended that the petitioner relinquished his post on which he was appointed vide order dated 24-4-1980 on his own after giving a month's notice which according to general condition of service rules was permissible. That being so, there was no question of permitting withdrawal of such a resignation after such a long time. Only when the application was made by the petitioner, considering the same sympathetically, he was given an ad hoc appointment with a specific condition that he was required to face the Public Service Commission once again and only after his selection by the said Commission, the petitioner would be entitled to get the regular benefit of service. This order was accepted by the petitioner without any demur and he took part in the selection afresh, was selected by the Public Service Commission and a fresh appointment was given to him on 29-11-1986. The petitioner would be entitled to count the seniority only from the date of his fresh appointment and not otherwise. That being so, it cannot be said that the petitioner was entitled to get the benefit of seniority from the date of his first appointment and such claim made by the petitioner is not to be granted. It is further contended that in terms of the provisions of the Rules, since there was no question of withdrawal of such a resignation after its implementation by the petitioner himself, the claim made by the petitioner is liable to be rejected.

(3.) A rejoinder has been filed by the petitioner by which certain orders have been placed on record and it is contended that in similar circumstances the resignation of one Dr. S.M.H. Zaidi was permitted to be withdrawn and he was permitted to continue in the employment. In fact, the order was passed in that respect in an original application and since the similar are the circumstances, the petitioner would also be entitled to the similar benefit. It is thus contended that entire stand taken by the respondents is liable to be ignored and discarded and the petitioner would be entitled to the relief claimed.