BANSILAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS special appeal has been filed against the order dated 7th January, 1980 pass by the Learned Single Judge in S.B. Civil Writ Petition No. 99/78 where by the aforesaid writ petition tiled by the appellant has been dismissed.

(2.) THE appellant had joined the service of the Government of Rajasthan on January 1, 1960 as Senior Demonstrator in SMS Medical College Jaipur. While the appellant was working as Senior Demonstrators the Government of Rajasihan issued an advertisement inviting applications for appointment on the posts of Civil Assistant Surgeons. The appellant submitted his application for the aforesaid post of Civil Assistant Surgeon and the selection for appointment on the said port was held by the Rajasthan Piiblie Service Commission. On the basis of the recommendations of the Rajasthan Public Service Commission, the Government of Rajasthan issued an order dated 19th July, 1963, whereby J23 persons, including the appellant and Dr. G.N. Saxena, respondent No. 3, were appointed as Civil Assistant Surgeon on probation for a period of one and a half year with effect from 10th June, 1963 or from the date they take over as Civil Assistant Surgeon. At the time of the aforesaid selection for the post of Civil Assistant Surgeon and on the date of issue of the aforesaid order dated 19th July, 1963, the appellant was studying for the M D. course of the University of Rajasthan at Jaipur. The appellant, by his representation dated 30th April, 1963 addressed to the Secretary, Medical and Health Department of the Government of Rajasthan, requested that in the event of his selection for the post of Civil Assistant Surgeon, he may be posted at Jaipur as it would greatly facilitate his studies for the M.D. course. The appellant submitted another similar representation dated 17th June, 1963 to the Secretary, Medical and Public Health Department of the Government of Rajasthan. The Director, Medical Health Services Rajasthan by his communication dated 10th May, 1963 addressed to the Principal, S.M.S. Medical Coliege, Jaipur intimated that the appellant may be informed that there was no post of Civil Assistant Suregon lying vacant at Jaipur. The case of the appellant is that he had submitted another representation dated 9th September, 1963 addressed to the'Secretary, Medical and Public Health Department of the Government of Rij isthan wnerein he referred to the fact that no order for posting of the appellant in p irsuance of the order of appointment dated 19th July, 1963 had been issued and he requested that an order may be issued for posting the appellant in any hospital or dispensary at Jaipur in order to facilitate his further studies The receipt of the aforesaid representation has, however, been denied by the State Government. Thereafter, no further steps were taken by the appellant with regard to his posting in pursuance of the order for aopointment dated 19th' July, 1963. The appellant completed his studies for the M.D. course in October, 1965 and on 11th November, 1965, he addressed a letter to the Secretary, Medical and Public Health Department of the Government of Rajasthan wherein he stated that he was working as officiating Senior' Demonstrator in Pathology at S.M S. Medical College, Jaipur since 1st July, 1960 and that he had passed the M.D. (Medicine) examination in October 1965 and that he had no further chance of promotion m the non -clinical; department with his post graduate qualification in Medicine and he requested that he may be transferred to the post of Civil Assistant Surgeon. There after the State Government issued an order dated 29th December, 1965 where by the appellant was appointed as Civil Assistant Surgeon at General Hospital, Dungnrpur with effect from the date he took over the charge there. The aforesaid order was however, not given effect to and on 20th April, 1966, another order was issued whereby the appellant was appointed as Civil Assistant Surgeon at M.B.S. Hospital, Kota instead of Dungarpur with effect from the date he took overcharge there. In pursuance of the aforesaid order, the appellant joined as Civil Assistant Surgeon at M.B.S. Hospital, Kota, on 2rd April, 1966. While he was working as uivil Assistint Surgeon the appellant was promoted on ad -hoc basis as Junior Specialist by the order of the State Government dated 8th January, 1971. Subsequently, however, by order dated 4th June, 1973, the appellant was reverted to the post of Civil Assistant Surgeon. The appellant filed a writ petition, (S.B. Civil Writ Petit on No. 948 of 1973) in this Court where in he challenged the aforesaid order dated 4th June, 1973 whereby he was reverted from the post of Junior Secialist to the post of Civil Assistant Surgeon but the said writ petition was dismissed by the order of this Court dated 24th August, 1973. By order dated 31st December, 1977, Dr. G.N. Saxena, respondent No. 3, Who had been appointed as Civil Assistint Surgeon by order dated J 9th July, 1963 and whose name was shown below the name of the appellant in the said order and Dr. P.C. Joshi, respondent No. 4 who had been appointed as Civil Assistant Surgeon subsequent to the passing of the order dated 19th July, 1963 were appointed as Junior Soecialists in Medicine for a period of six months or till regularly selected candidates in accordance with the method prescribed under the RajaUhan Medical and Health Service Rules, 1960 were available, whichever was earlier. In the matter of seniority in the cadre of Civil Assistant Surgeon, a final seniority list of Civil Assistant Surgeons as on 26th November, 1963 was issued by the State Government vide notification dated December 15, 1971 published in the Rajasthan Gazette dated 20th April, 1972. In the Said Seniority list, the name of the appellant was shown at serial number 751 whereas the name of respondents No. 3 and 4 were shown at serial numbers 764 and 765 respectively. On 7th October, 1972, another seniority list of Civil Assistant Surgeons, as on 31st December, 1971, was issued and in the said seniority list, the name of appellant was at serial number 456 where as the names of respondents No. 3 and 4 were showi at serial No. 465 and 466 respectively. Subsquently, by order of the State Government dated 16th December, 1975, the appellant was assigned seniority in the cadre of Civil Assistant Surgeon after the batches of 1963 and 1964 selected by the Public Service Commission, AJmer and his name was downgraded to serial No. 634 -A in the seniority list for Civil Assistant Surgeons that was issued vide notification dated 7th October, 1972. The appellant filed the writ petition giving rise to the present special appeal on 22nd February, 1978 and in the said writ petition, the apsellant prayed thu the order dated 31st December, 1977 with regard to the appointment of respondents No. 3 and 4 on the post of Junior Specialist may be quashed and respondents No. I and 2 may be directed to consider the case of the appall tnt for appointment to the post of Junior Specialist in Medicine and to appoint him as such and from the date respondents No, 3 and 4 had been appointed with all consequential benefits. In the said writ petition, the appellant also prayed that respondents No. 1 and 2 may be restrained from taking any steals to change the seniority of the appellant and that it be declared that the seniority of the appellant should be as per the order of appointment dated 19th July, 1963 and as assigned in the Beniority list that was published vide notification dated December 15, 1971. In the wit nefitioi aforesaid, thie apiellant has claimed that he had been appointed on the post of Civil Assistant Surgeon by order dated 19th July, 1963 and that the seniority in the cadre of Civil Assistant S irgcon has to be determined on the basis that the appellant had been appointed on the post of Civil Assistant Surge on on 19th July, 1963 and that respondents No. 3 and 4 could not be assigned seniority over the appellant.

(3.) THE learned Single Judge by his order dated 7th January, 1980 held that the aooellant could not be considered to have been appointed on the Dis: of Civil Assistant Sirgexi on July 19, 1963 and that the appointed should be treated to hive been apoointei on the post op Civil Assistant Suraeon when he took over charge as Civil Assistant Surgeon at Kota i.e. on 23rd Aoril. 1966, and, therefore, the appellant could not be treated is senior to rcoondents No. 3 and 4 and other appointees of the years 1963 and 1964. Being aggrieved bv the aforesaid order of the learned Singled Judge, the appelant has filed this special appeal.