Full Judgment Text
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PETITIONER:
DR. (MRS.) PUSHPA VISHNU KUMAR GURTU
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT14/02/1995
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
SAWANT, P.B.
CITATION:
1995 AIR 1346 1995 SCC Supl. (2) 276
JT 1995 (3) 518 1995 SCALE (1)781
ACT:
HEADNOTE:
JUDGMENT:
N.P. SINGH, J.;
1.Leave granted in both the SLPs.
2.The appeal arising out of SLP(C) No.1628 of 1994 has been
filed against order dated 8.7.1993 passed by the Maharashtra
Administrative Tribunal,
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Nagpur Bench, dismissing the Writ Petition filed on behalf
of the appellant, before the Nagpur Bench of the High Court
of Bombay which was later transferred to the aforesaid,
Tribunal. By the petition aforesaid, the appellant
questioned the validity of the seniority list dated
29.4.1989, so far as it changed the position of respondent
No.4 (hereinafter referred to as ’the respondent’) from
Serial No. 20 to Serial No. 11. The appellant also sought
quashing of the order dated 5.7.1989 promoting the
respondent to the post of Professor, Department of
Obstetrics and Gynaecology, on the basis of the seniority
list aforesaid by another application filed before the Tri-
bunal.
3.The appellant passed the M.B.B.S. examination in the year
1967. She obtained her Post-Graduate Degree in Obstetrics
and Gynaecology from Allahabad University in April, 1972.
She was appointed as Lecturer in the Department of
Obstetrics and Gynaecology by a Government Order dated
19.1.1977, at Government Medical College, Nagpur, after she
was selected by Maharashtra Public Service Commission. She
joined the said post on 11.2.1977. She was appointed by a
Government Order dated 6.10.1977, as Reader in the Depart-
ment of Obstetrics and Gynaecology at Government Medical
College, Nagpur, after her selection by the Maharashtra Pub-
lic Service Commission. She joined the post of Reader on
11. 10. 1977 and continued on the said post till 21.10.1981.
In the meantime, by a Government Order dated 15.10.1981, the
appellant was appointed as Associate Professor in the De-
partment of Obstetrics and Gynaecology at the aforesaid
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Medical College, Nagpur, which post she joined on 22.10.198
1. She was the senior most Associate Professor in the said
college, in the department aforesaid.
4. So far as the respondent is concerned, she passed her
M.B.B.S. examination in the year 1967 but obtained her Post-
Graduate Degree in Obstetrics and Gynaecology in 1975. She
was promoted as Reader on 2.7.1979 in the Indira Gandhi
Medical College, Nagpur, which was then under the control
and management of the Nagpur Municipal Corporation.
However, the State Government took over management and
control of the Indira Gandhi Medical College w.e.f 1.4.1981
from the Nagpur Municipal Corporation.
5. A provisional seniority list of Readers was published
on 21.11.1986 and objections were invited. In this
seniority list, the appellant was placed against Serial No.
13, whereas the respondent was placed against Serial No.20.
The date of appointment of the appellant as Reader was shown
as 11.2.1979, whereas that of respondent as 2.7.1979. In the
final seniority list, the position of the appellant was
shown against Serial No. 14, whereas that of respondent
against Serial No.20. It is said that in both the draft and
final seniority lists, it was mentioned against the name of
the respondent that she belonged to the then Non-Government
Institution viz. Indira Gandhi Medical College under Nagpur
Municipal Corporation and her date of appointment as Reader
was accepted as 2.7.1979 because it was on that day, she had
been promoted as Reader in that Institution. However, the
State Government published another seniority list on
29.4.1989 in which the name of respondent was shifted from
serial No.20 to Serial No. 11 and the date of appointment of
respondent was changed from 2.7.1979 to
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19.1.1977.Thereafter by an order dated 5.7.1989, the
respondent was promoted to the post of Professor of
Obstetrics and Gynaecology on the basis of the aforesaid
seniority list, The, alteration of the position of the
respondent in the seniority list was challenged by the
appellant, before the High Court, by a Writ Petition which
as already mentioned above, was transferred to the Tribunal.
6.The Indira Gandhi Medical College, Nagpur, which was under
the control and management of the Nagpur Municipal Cor-
poration, had been taken over by the State Government w.e.f
1.4.1981 and thereafter the State Government was required to
refix the seniority of Lecturers, Readers and other teachers
of the said college, in terms of Rule 6 of G.R. of 1.4.1981.
Rule 6 is as follows:-
"The seniority of persons in the posts in
which they are absorbed shall be determined on
the basis of the period of continuous service
rendered by them in the corresponding posts
under the Corporation prior to the appointed
day. For this purpose, the service rendered
in the corresponding posts shall be counted
from the date from which the absorbed persons
would have been eligible for appointment to
the posts if the recruitment rules of Govt.
then in force were to govern their
appointment- "
The recruitment rules for the post of Reader issued in the
year 1972 provides the qualification for the post, the
relevant part whereof has been reproduced in the order of
the Tribunal as follows:-
"A post graduate degree in Obstetrics and
Gynaecology such as M.D., M.S., M.O. of a
statutory University or M.R.D.O.G. or the
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qualification awarded by the Speciality Board
of Obstetrics and Gynaecology (U.S.A.) or
F.R.C.S./ M.R.C.P. with Obstetrics and
Gynaecology as a Special subject or a post
graduate degree in Medicine or Surgery of the
M.R.C.P./ F.R.C.S. qualification with D.G.O.
for the post of Reader in Obstetrics and
Gynaecology; and possess experience for not
less thin three years of teaching the subject
concerned as Registrar or Lecturer or in an
equivalent post in a teaching institution."
The justification, which has been given on behalf of the
State, for altering the date of promotion of the respondent
as a Reader from 2.7.1979 to 19.1.1977, is Rule 6. The
Tribunal on the basis of Rule 6 aforesaid has come to the
following conclusion.
"We, therefore, hold that the interpretation
of rule 6 by the Govt. is in order and correct
and are unable to agree with the
interpretation of the learned Advocate for the
petitioner, Clearly on the appointed day, Dr.
Guhe was a Reader and was absorbed as such,
her seniority has to be fixed on the strength
of Rule 6 read with the recruitment rules of
Govt. for the post of Reader, then in force.
She has rightly been given the benefit of her
acquisition of requisite qualifications (M.D.
in the year 1975) and continuous service in
the post from which she could have been
promoted as a Reader. It is obvious that,
second part of Rule 6 is clearly intended to
give benefit of continuous service in the
eligibility grade for the determination of
seniority in the absorbed grade. These rules
are the rules of merger and absorption and
binding on the Govt. Because, it is only on
the foundation of these rules that merger
could take place. We therefore, find no
substance in the arguments of the petitioner
on this count. Otherwise, the edifice of
merger crumbles."
7.Rule 6 says that seniority of persons in the posts in
which they are absorbed shall be determined on the basis of
the period of continuous service rendered by them in the
corresponding posts under the Corporation prior to the
appointed day i.e. 1.4.1981. There is no dispute so far as
the first part of Rule 6 is concerned. The dispute is in
respect of the second part which says that for the purpose
of the said rule the service rendered in the corresponding
posts shall be counted "from the date from which the
absorbed persons would have been eligible for appointment to
the posts if the recruitment rules of Govt. then in force
were to govern their appointment." Factually, respondent was
promoted as Reader in the Indira Gandhi Medical College,
Nagpur, then under the management and control of the Nagpur
Municipal Corporation on 2.7.1979. But a notional and
fictional date of promotion as Reader for the purpose of her
seniority has been given on the basis of the second part of
Rule 6 w.e.f 19.1.1977 saying that on that date she was
eligible to be appointed as Reader having fulfills the
qualifications prescribed for appointment of the Reader re-
ferred to above. According to us the second part of Rule 6
has not been read in its proper "text and spirit either by
the State Government or by the Tribunal. In the said Rule 6
emphasis is not on the eligibility for the post but on the
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"period of continuous service rendered by them in the
corresponding posts." In other words, the period for which
the persons who are being absorbed had rendered continuous
service in the corresponding posts. Out of such period only
that period will be taken into consideration, since when the
persons concerned were eligible to be appointed under the
recruitment rules of the Government then in force, This can
be illustrated by giving an example. In one case, a person
without a post-graduate degree might have been appointed as
a Reader in a Non-Government College and lie obtains the
post-graduate degree later, Similarly, in another case a
person might have been appointed as a Reader without three
years’ experience, as a Registrar or Lecturer in a private
institution. While absorbing such person after the take
over, only the continuous service rendered by him in the
corresponding post shall be taken into account which
commences from the date he fulfilled all the requisite
qualifications for being appointed to the post of Reader.
Rule 6 does not purport to give any notional or fictional
seniority as a Reader. It need not be pointed out that if
this interpretation of Rule 6 is accepted the teachers of
the non-government medical colleges shall affect the
seniority of the persons who had already been appointed as
Readers in Government Medical Colleges. In a series of’
judgments of this Court, fixation of seniority by conferring
notional seniority has been deprecated. In this connection,
it will be suffice to refer to the judgment of the
Constitution Bench in the case of Direct Recruit Class 11
Engineering Officers’ Association v. State of Maharashtra
and others 1990 (2) SCC 715, where it is stated that
once an incumbent is appointed to a post according to rule,
his seniority has to be counted from the date of his
appointment. Even the claim that seniority was linked to
the date of confirmation was negatived. We do not,
therefore. understand how any notional seniority could have
been conferred by the State Government with reference to the
date of eligibility, although such person was not holding
any such post either by direct recruitment or by promotion.
In the present case, there is no dispute that respondent
never held
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the post of Registrar in the Department of Obstetrics and
Gynaecology any time period to 2.7.1979 when the college was
under the management of the Corporation. Hence her mere
eligibility on 19.1.1977 to be appointed as Registrar,
cannot be a ground to antedate her promotion as a Reader, so
as to affect seniority of the appellant, who had been
appointed as a Reader in the Department of Obstetrics and
Gynaecology at Government Medical College, Nagpur, by the
Government Order dated 6.10.1977 which post she had joined
on II. 10. 1977. The object of changing the date of senior-
ity as Reader, so far as respondent is concerned, appears to
be to make her senior to the appellant. This benefit could
not have been conferred on her, even if she was from the
very beginning in any of the Government Colleges. In the
process of absorption, she cannot affect the seniority of
those, who were already in the cadre of the State Government
as Readers.
8. Hence, the appeal is allowed and the impugned seniority
list, so far it fixes the seniority of the respondent w.e.f.
19.1.1977, is quashed.
9. The appeal arising out of SLP (C) No. 1629 of 1994
which had been filed on behalf of the appellant, questioning
the validity of the Order promoting the respondent as
Professor in the Department of Obstetrics and Gynaecology,
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on the basis of the aforesaid seniority list is also
allowed, The State Government is directed to work out the
promotion to the post of Professor of Obstetrics and
Gynaecology taking into consideration the case of the
appellant and the respondent with reference to their inter
se seniority as determined above. In the facts and
circumstances of the case, there will be no order as to
costs.
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