CHHAJJU RAM GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner seeks quashing of Govt. Order No: - 227 AYD/MD dated 27 -6 -1978 as a consequence of which his seniority as a vaid has been redetermined to his dis -advantage, as well as notice No: AYD/Unani/33/73 dated 25 -7 -1977 preceding the same, and a consequential writ of mandamus directing the State, respondent No. 1, to declare him senior to respondent No. 2.

(2.) THE petitioner and respondent No. 2 were appointed as Vaids on 31 -10 -1961 in the pay scale of 70 -6 -130 vide Govt. Order No. 431/MD/G of 1961. Whereas the petitionerâ„¢s name figured at serial No. 5 the name of respondent No. 2 figured at serial No. 3 in the aforesaid order. This appointment was, however, made in anticipation of their G. A. M. S. course result which was declared by the University of Punjab on 25 -11 -1961 and both of them were declared successful. Whereas the petitioner had obtained 790 marks, respondent No. 2 had obtained 8 -24 marks in the said examination. Vide SRO 160 dated 6 -8 -1962 the grade of Vaids and Hakims was revised to 200 -400 and in the tentative seniority list of Vaids and Hakims for the year 1964 also respondent No. 2 was shown at serial No. 2. The name of the potitioner, however, did not figure in this list as in the meantime he had been appointed as a Demonstrator in grade of 150 -250 vide order of the Director of Health Services No. Est -30 -V -1/ 7518 -21 dt. 13 -2 -1962. This grade was initially revised to ISO -350 and later on to 200 -400 vide Govt. Order No. 82 -MD/G of 1965 dated 3 -3 -196.). Consequently, a tentative seniority list of Demonstrators in the grade of 200 -400 for the year 1965 was also circulated in which the petitioners name figured at serial No 4, whereas that of respondent No. 2 did not figure at all. His name, however, figured at serial No. 15 in another seniority list of 1965 pertaining to Vaids and Hakims. Later on the seniority of Hakims and Demonstrators was combined and a final seniority list was published by the Director of Health Services on 19 -1 -1966 after considering the representations made by the aggrieved persons in which the petitioner was shown at serial No. 19, whereas respondent No: 2 was shown at serial No: 25. In the year 1967, a Board consisting of Director Health Services, Deputy Director Health Services, Jammu Province and Assistant Director Indian Medicines interviewed forty persons, including the petitioner and respondent No; 2, for selecting twelve persons for the posts of A.D.M.Os. carrying the grade of 250 -500. Whereas the petitioner was selected for one of such posts, respondent No. 2 was rejected. This appointment was later on approved by the Public Service Commission as well and another Govt. Order being No: 209 -MD/G dated 2 -5 -1974 came to be passed against which an appeal too was taken by respondent No. 2. In the meantime another seniority list of Vaids and Hakims in the old grade of 200 -400 on their confirmation with effect from 1 -4 -1967 was published vide Govt. Order No. 81 -MD/G of 1971 dated 22 -1 -1971 in which the petitioner and respondent No: 2 figured at serial Nos. 18 and 23 respectively. In the year 1972 however, Vaids and Hakims with G. A. M. S. qualification were also given the benefit of a higher grade of 150 -250 retrospectively with effect from

(3.) -8 -1961 but it was once again made clear that this would not affect their inter seniority already fixed under rules. A notice being AYD/Unani/33/73 was issued to the petitioner on 25 -7 -1977 by the Secretary to Government, Health Department to show cause as to why he may not be shown at serial No; 19 in the seniority list of 1971 wherein he originally figured at serial No: 18. The petitioner submitted his reply defending his 18th position in the seniority list. The Government on accepting the recommendations of the Review Committee constituted for the purpose accepted the representation made by respondent No. 2 against the seniority of the petitioner and vide its order dated 27 -6 -1978, impugned in the writ petition, assigned him the place at serial No. 19 in the seniority list of 1966 published on 19 -1 -1966 which had till then been occupied by the petitioner The petitioner has challenged the aforesaid order as well as the notice preceding the same on the grounds ; that the Government had no power to alter his seniority declared by virtue of the order passed in the years 1966 and 1971 which were never challenged by respondent No. 2, that the Review Committee has exceeded its jurisdiction in accepting the alleged representation made by respondent No:. 2 inasmuch as it had been constituted to decide only those seniority disputes which had arisen between 1 -6 -1968 and 12 -6 -1974; that the impugned order was violative of principles of natural justice in as much as neither the Review Committee had heard the petitioner before making its recommendations nor was the report of the Review Committee or the grounds upon which it had made its recommendations supplied to the petitioner before passing the impugned order, that the impugned order was at variance with the notice preceding the same inasmuch as the petitioner was called upon to show cause as to why his place in the seniority list of 1971 be not altered whereas his place in the seniority list of 1966 had in fact been altered, that the impugned order is not a speaking one; that the Government had made up its mind to disturb the petitioners seniority to his detriment even before the impugned order actually came to be passed; and that the impugned order is violative of Article 14 and 16 of the Constitution. 3. The respondents have denied either that the petitioner is senior to respondent No; 2 or that the latter did not challenge the seniority lists of 1906 and 1971. Their case is that respondent No; 2 had on every occasion made a timely representation and that all the representations were referred to the Review Committee which found a case in favour of respondent No: 2 after considering the entire material available. The Government, according to them, could have at any time reviewed the earlier orders of 1966 and 1971, which had been passed erroneously, to rectify the errors therein. The Review Committee, according to them, was only an advisory body and its recommendations were accepted by the Govt. after affording full opportunity to the petitioner to make representation against the same which he did make and which was duly considered by the Government before passing the impugned order. They have denied that the Government had already made up its mind to re -fix the petitioners seniority. The notice, according to the respondents, was not at variance with the final order succeeding the same. They have denied that the impugned order is violative of Articles 14 and 16 and have further contended that no writ petition lay against an order fixing or re -fixing seniority simpliciter,