FARIDA BEGUM Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notification dated 9.3.94 promoting and appointing the Respondent No. 5 to officiate as Associate Professor of Obstetrics & Gynaecology and for directing the respondents to fix interse seniority of the petitioner above the respondent Nos. 5,6 and 7 and to correct the date of entry of the petitioner in Government service and the date of birth of the petitioner in the gradation list dated 8.2.91.

(2.) The relevant facts briefly are that by notification dated 27.2.74 of the Government of Assam, FP(B) Department, the petitioner was initially appointed for a period of 4 months as Registrar of Anaesthesialogy under Regulation 3(f) of the Assam Public Service Commission (Limitation and Function) Regulations, 1951 (for short "APSC (L&F) Regulations, 1951") with effect from the date of taking over charge and posted at the Medical College, Guwahati. Pursuant to said notification, the petitioner joined and took over charge as Registrar of Anaesthesialogy on 5.3.74. Thereafter her appointment as Registrar of Anesthesialogy was regularised in consultation with the Assam Public Service Commission (for short "the APSC") by notification dated 6.11.74 of the Government of Assam, Health Department. The respondent Nos. 5 and 6 were appointed as Registrar of Obstetrics & Gynaecology (for short "O&G department") by notification dated 14.11.74 and posted at the Assam Medical College and the Silchar Medical College respectively an the recommendation of APSC. True respondent No. 5 joined on 28/11/74 and the respondent No. 6 joined on 7.12.74 as Registrar in O&G Department pursuant to the said notification. The petitioner was then appointed as Registrar of O&G Department for a period of 4 months under Regulation 3(f) of the APSC (L&F) Regulations. 1951 and posted at the Medical College, Guwahati and pursuant to the said appointment she took over charge on 1.9.75 as Registrar of O&G Deptt. The petitioner then applied for regular appointment to the said post of Registrar O&G Department. The respondent No. 7 who had also been appointed under Regulation 3(f) as Registrar, O&G Department, Medical College, Guwahati by notification dated 10.9.75 also applied for regular appointment to the said post. The selection was conducted by the APSC for the post of Registrar of O&G Department and the APSC recommended; and placed the respondent No. 7 above the petitioner in the merit list for selected candidates and pursuant to the said recommendation both the respondent No. 7 and the petitioner were appointed as Registrar of O&G Department by notification dated 7.7.76 of the Government of Assam, Health and FP(B) Department. Pursuant to the said notification dated 7.7.76, the petitioner and the respondent No. 7 continued as Registrars of O&G Department, Medical College, Guwahati. Thereafter, with effect from 25.1.87, the respondent No. 5 was promoted and appointed to officiate as Assistant Professor of O&G Department. Similarly, with effect from 20.11.87, the respondent No. 6 was promoted and appointed to officiate as Assistant Professor in O&G Department. The petitioner and the respondent No. 7 were promoted and appointed to officiate as Assistant Professors in O&G Department with effect from 11.2.88. The promotions of respondent Nos. 5,6 and 7 and the petitioner to the post of Assistant Professor were regularised with retrospective effect from the date of taking over charge as Assistant Professor with the approval of APSC by order dated 2.8.90. On 8.2.91 a notification was issued by the Government of Assam, Health and FW(B) Department, approving the provisional gradation list of Assistant Professors of O&G Department in Medical College of Assam and in the said gradation list the respondent No. 5 was shown in 3rd position, the respondent No. 6 was shown in the 4th position, the respondent No. 7 was shown in the 6th position and the petitioner was shown in the 7th position. Aggrieved, the petitioner submitted an objection dated 7.2,92 to the said provisional gradation list of Assistant Professors of O&G Department. In the said objection, the petitioner inter alia stated that her date of birth was shown in the gradation list as 1.3.49 but according to her HSLC Examination Certificate her date of birth is 10.12.49. In the said objection dated 7.2.92, the petitioner further stated that her date of entry into Govt. service in the said gradation list has been shown as 1.9.74 but it should have been 5.3.74 as she joined as Registrar of Anaesthesialogy on 5.3.74. The petitioner also pointed out in her said objection dated 7.2.92 that since she joined Government service on 5.3.74, she should have been placed just below Dr. Mukul Chandra Das who had joined the service on 18.5.73. She further contended in her said objection dated 7.2.91 that one Dr (Ms) Kabita Baruah had similarly joined on 10.10.72 as Demonstrator in Anaesthesialoey but later on was appointed as Registrar, E&T Department on 21.7.82 and her date of entry into Government service was taken as 10.10.72 and she was given seniority accordingly. The petitioner, therefore, made a request in her said objection dated 7.2.92 that her seniority in the rank of Assistant Professor in O&G Department should have been determined after counting her service under the Govt. in the Anaesthesialogy Department with effect from 5.3.74 and not from 1.9.74 which was the date on which she joined as Registrar in O&G Department. As no orders were communicated to her on the said objection dated 7.2.92, the petitioner submitted a representation dated 7.4.93 reiterating the aforesaid objections to the fixation of seniority in the rank of Assistant Professor but no orders were communicated by the Government to the petitioner on the said representation also. In the circumstances the petitioner sent a reminder dated 24.12.93 to the Secretary and yet no orders were communicated to her. Thereafter by notification dated 9.3.94, the Respondent No. 5 was promoted temporarily and appointed to officiate as Associate Professor of O&G Department under Regulation 4(d) of the APSC (L&F) Regulations, 1951. Aggrieved, the petitioner has filed the present writ petition for appropriate relief.

(3.) At the hearing, Mr A.K. Bhattacharjee, learned counsel for the petitioner submitted that the petitioner joined in Government service as Registrar, Anaesthesialogy on 5.3.74 pursuant to her appointment under Regulation 3(f) of the APSC (L&F) Regulations 1951 by notification dated 27.2.74 and her said service was also regularised in consultation with the APSC by notification dated 6.11.74. The petitioner, therefore, joined in Government service as Registrar much before the respondent Nos. 5, 6 and 7 who joined as Registrar in O&G Department on 28.11.74, 7.12.74 and 7.7.76 respectively. Hence the petitioner should be treated as senior to the respondent Nos. 5, 6 and 7 in the cadre of Registrar. But in the gradation list circulated by the notification dated 8.2.91, the entry of the petitioner in the Government service has been wrongly shown as 1.9.74 presumably because she joined as Registrar in O&G Department on 1.9.74. According to Mr Bhattacharjee, the service rendered by the petitioner from 5.3.74 to 31.8.74 as Registrar, Anaesthesialogy should be counted for the purpose of determining the seniority in the cadre of Registrar in O&G Department. He further submitted that there were no statutory Rules for fixation of seniority of Doctors in the Medical Colleges of Assam. But there are executive instructions notified in the notification dated 5.2.54 of the Govt of Assam laying down the principles for fixation of seniority and the Supreme Court has held in the case of Dr. Satyabrata Dutta Choudhury- Vs-State of Assam, AIR 1976 SC 487, that in the absence of statutory Rules, the said notified instructions, regarding seniority will hold the field. Mr Bhattacharjee pointed out that the aforesaid notified Government instructions have been ignored while fixing the interse seniority of the petitioner vis-a-vis the respondent Nos. 5, 6 and 7 in the cadres of Registrar as Assistant Professor. He also cited the decision of the Supreme Court in the case of State of Andhra Pradesh-Vs-Dr. N. Ramachandra Rao (1990) 3 SCC 590, wherein it was held that promotions to administrative posts such as Additional Director of Medical and Health Services should not be on the basis of seniority determined in concerned speciality. According to Mr Bhattacharjee, therefore, the seniority in the present case should not be determined on the basis of the service rendered in the speciality of O&G Department but on the basis of service rendered under the Government and since the petitioner had put in longer period of service under the Government than the respondent Nos. 5,16 and 7 he should be treated as senior to the said respondents as Registrar and Assistant Professor. Mr Bhattacharjee further pointed out that, as a matter of fact, the order dated 22.9.93 of the Government annexed to the Affidavit in opposition filed by the respondent Nos. 5 and 7 as Annexure-B would show that the Government had itself fixed the seniority of Dr (Ms) Kabita Baruah in E&T Department who had initially joined as Demonstrator in Anatomy Department on 10.10.72 and thereafter transferred to E&T Department as Registrar on 21.7.82 counting her service from 10.10.72. He vehemently argued that the adoption of a different stand by the Government in the case of the petitioner will amount to discrimination against the petitioner.