Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 7038 of 2001
PETITIONER:
DR.KIRPA RAM MATHUR
Vs.
RESPONDENT:
STATE OF U.P. & OTHERS
DATE OF JUDGMENT: 08/10/2001
BENCH:
M.B. Shah & R.P. Sethi
JUDGMENT:
SETHI,J.
Leave granted.
Aggrieved by the order dated 10.12.1998 (Annexure P-7) passed by
respondent No.1, the appellant herein filed a writ petition in the High
Court challenging the fixation of his seniority by showing respondent
No.4 as senior than him. Finding no merit, the High Court dismissed
the petition filed by the appellant vide the order impugned in this
appeal. Alleging that the order of the High Court was against law and
the Uttar Pradesh Regularisation of Ad-hoc appointments (on posts
within the purview of the Public Service Commission) Rules, 1979,
(hereinafter referred to as "the Rules") the appellant has contended
that the order of the Government (Annexure P-7) and the impugned
judgment of the High Court are liable to be set aside.
The facts leading to the filing of the present appeal are that
the appellant and the respondent No.4, along with others, appeared at
the interview held by the Selection Committee appointed by the
respondent No.1 for the ad-hoc appointment on the post of Lecturers in
Pathology in the State Medical Colleges of Uttar Pradesh. He claimed
that as he was higher in merit and ranking than the respondent No.4,
his appointment letter No.3496-Sec.5-RA-18-84/Medical Sec.I U.P. Govt.
dated 4.5.1984 was issued and as respondent No.4 was allegedly lower in
merit, letter of appointment No. 3497-Sec.5-RA-18-84/Medical Sec.I U.P.
Govt. dated 4.5.1984 was issued in his favour. Issuance of letter
bearing No.3496 being first in time than the letter No.3497 issued in
favour of respondent No.4 is stated to be the reflection of the merit
determined by the Selection Committee after the interview.
Posts for Lecturer in Pathology in the State Medical Colleges of
Uttar Pradesh were advertised by the Public Service Commission of the
State in January, 1989 for the purpose of regular appointment to the
aforesaid post. Both the appellant as well as the respondent No.4
applied for the same and their candidature was recommended by the
Public Service Commission. On 7.8.1989 the Rules were issued which
applied to persons like the appellant and the contesting respondent.
On 31st December, 1990, the respondent-State regularised services of
both the appellant and respondent No.4. In the order (Annexure P-4) it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
was mentioned that inter se seniority of the persons mentioned in the
list would be decided under the Rules later on. As the name of the
appellant was allegedly wrongly shown below respondent No.4, he is
stated to have made a representation to the State Government which was
accepted vide order No.282/Sec.I-5-93-Code-14-Medical Sec.I Govt. of
U.P. Lucknow dated 21.7.1993 by placing the appellant above the
respondent No.4 in the seniority list. Aggrieved by the aforesaid
order, the respondent No.4 filed Writ Petition No.3609 of 1995 in the
High Court which was allowed by a Division Bench on 24.4.1997 (Annexure
P-6). After quashing the order dated 21.7.1993 (Annexure P-5), the
High Court directed that a fresh seniority be determined in accordance
with the Rules, particularly Rule 7(2) of the Rules. Consequently,
order impugned in the writ petition (Annexure P-7) dated 10.12.1998 was
issued which was challenged by the appellant and his petition dismissed
vide the judgment impugned in this appeal.
The facts being not seriously disputed, the controversy between
the contesting parties centers around the interpretation of Rule 7(2)
of the Rules in the light of determination of a merit of the parties at
the time of selection. Both the appellant as well as the respondent
No.4 claimed that they were shown senior than the other by the
Selection Committee at the time of making the selection. The appellant
has contended that as the respondents have not placed before this Court
the exact numbers assigned to the appellant and the respondent No.4 at
the time of making selection, he having been issued appointment letter
first in point of time be deemed to have secured better merit and
ranking in the selection after interview. He has also contended that
as the respondent-State has not complied this Court’s order dated
26.2.2001, it should be presumed that the State has withheld the
requisite record allegedly showing respondent No.4 better in merit and
ranking. Vide order dated 26.2.2001, this Court had directed the State
of Uttar Pradesh to produce the minutes of the proceedings of the
Selection Committee for the year 1989. In response to the direction,
affidavit of Shri R.S. Dubey, Special Secretary, Medical Education of
respondent-State has been filed stating therein that:
"That in obedience of the orders passed by this Hon’ble
Court on 08.01.2001 and 19.09.2001 a thorough and deligent
search of the "record of the marks" obtained by the
petitioner and respondent No.4, during their selection held
on 29.03.1984 was made both at the level of the Secretariat
and Directorate General of Medical Education but, no
"records of marks" obtained by the petitioner and the
respondent No.4 at their selection on 29.03.1984 was found.
A close and careful perusal of the proceedings of the
Selection Committee shows that the Selection Committee
evolved the methodology and criteria, applied the same
itself to the candidates appearing before it and itself
assigned the order of merit, to the candidates; no separate
marksheet perhaps was prepared.
That various seniority list were issued by the State Govt.
from time to time, which invariably shows respondent No.4
to be senior to the petitioner and inspite of circulation
thereof the petitioner never challenged the said seniority
lists."
Our attention has been drawn to the proceedings of the Selection
Committee held on March 28-29, 1984 for making adhoc appointments of
lecturers in various specialities (Annexure R-1). The Selection
Committee meeting was attended by Director of Medical Education and
Training, U.P. (Chairman), Principal, LLRM Medical College, Meerut,
Principal, MIB Medical College, Jhansi, Joint Director of Medical
Education & Training, U.P. (Member Secretary). In its proceedings, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
Selection Committee has recorded as under:
"In every specialities two Technical Advisers wre called
for the purpose of selection of the candidates. Their
names have been mentioned against each speciality.
In order to eliminate the possibility of a handicap
to a candidate who gets more than 80% of the total
aggregate of 10 subjects of MBBS course, 50 marks have been
allotted for the purpose. Rest of the marks are to be
calculated as follows:
Ist four positions etc., have been calculated with 10
marks.
a) Total of the passing marks obtained in all the ten
subjects will be made. The percentage will be thus
calculated.
b) Of this 1 (one) mark perfailure per subject will be
deducted. This figure will be marks obtained out of 50.
2. The rest of the pattern will be as follows:
a) MS/MD/Ph.D./Mch/MAMS - 10 marks:
1st attempt - 10
IInd attempt -6
IIIrd attempt -3
b) Teaching experience: 10 marks, 3 marks for each year
with a maximum of 10 marks.
c) Research Paper - 5 marks.
d) Interview - 15 marks.
Marks are to be rounded off upto Ist decimal place.
In case one or more candidates are bracketed 2nd decimal
will be considered.
The following candidates were selected by the
Committee in the speciality noted below......
XXX XXX XXX
PATHOLOGY: STATE MEDICAL COLLEGES:
1. xx xx
2. xx xx
3. xx xx
4. Dr.Rajiv Kumar Misra
5. Dr.Kripa Ram Mathur."
The minutes of the proceedings of the Selection Committee leave
no doubt in our mind that the merit of the candidates appearing in the
interview was determined according to the procedure prescribed and
having regard to the marks obtained by each one of them, their merit
was determined. After due process of selection, the appellant was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
shown junior than respondent No.4.
Learned counsel appearing for the respondent No.4 submitted that
Vide Annexure R-1, the Selection Committee had not determined the merit
and ranking of the persons appearing before it but had only mentioned
their names at random. It is contended that if the determination was
on merit, the Committee must have mentioned the numbers obtained by
each one of the candidates shown therein. Referring to Annexure P-5,
he has contended as name of Dr.Prem Kumar Singh and Smt.Sneh Lata are
mentioned as junior than the appellant and the respondent, the list
cannot be held as based upon the determination of the merit. The
argument cannot be accepted inasmuch as Annexure P-5 stands already
quashed by the High Court vide it judgment dated 24.4.1997 (Annexure P-
6). The reference to the procedure adopted for determining the merit
by the Selection Committee unequivocally indicates that the selection
was based upon merit and ranking to the concerned was given
accordingly. Merely because the respondent-State has failed to produce
the marks at this belated stage cannot make the selection process
either doubtful or be termed as no based upon the comparative merits of
the candidates appearing before the Selection Committee. The
presumption of genuineness of the official acts done in the due course
of performance of the duties is attracted in the case particularly when
the appellant accepted the position of determination of the merit and
ranking for a period of over 8 years as is evident from Annexure P-5,
mentioning that the appellant had submitted his representation only on
25.11.1992.
While disposing of Writ Petition No.3609 of 1995, the High Court,
on facts found that the seniority of the respondent No.4 had been
changed by completely ignoring Sub-rule (2) of Rule 7 of the Rules.
After referring to the Rule, the High Court held:
"The relevant Rule 7(2) of the Rules envisages that if two
or more persons are appointed together, their seniority
inter se shall be determined in the order mentioned in the
order of appointment. Thus, whenever, the question of
determination of seniority arise, this sub-rule (2) of Rule
7 of the Rules cannot be lost sight of. It appears, may be
due to inadvertence or by any reason, sub-rule (2) of Rule
7 of the Rules has not been taken into consideration and
contrary to that Annexure 1C dated 21.7.1993 has been
passed, which in our opinion, cannot be allowed to stand.
This legal position cannot be disputed that no
employee has a right to promotion, but he has only right to
be considered for promotion according to the Rules (see
Syed Khalid Rizvi v. Union of India, Judgment Today 1992
(Supplementary) 169). This being so, the impugned order,
determining the seniority inter se between the petitioner
and the respondent No.3, is hereby quashed...."
It may be mentioned herein that the appellant was a party-
respondent in that case and despite service of notice opted not to file
any counter affidavit. It is also acknowledged that no appeal was
filed against the aforesaid order which attained finality so far as the
rival claims between the parties to the aforesaid writ petition are
concerned. The High Court had found the order dated 21.7.1993 to be
against facts as well as the Rules.
The official record also revealed that respondent No.4 was all
along treated better in merit than the appellant and rightly placed
senior to him. The appellant wants this Court to re-appreciate the
merit of the persons who appeared before the Selection Committee at
this belated stage afresh merely on the failure of the respondents to
produce the actual marks assigned each one of the candidates. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
arguments appears to be an after-thought besides being stale at this
belated stage.
We do not find any illegality in the order of the High Court
impugned in this appeal and the order of respondent No.1 dated
10.12.1998 by which respondent No.4 was shown senior than the
appellant. There is no merit in this appeal which is accordingly
dismissed without any order as to costs.
.......................J.
(M.B. SHAH)
.......................J.
(R.P. SETHI)
OCTOBER 8, 2001