Dr. Bhartesh Kumar Jain vs State Of Madhya Pradesh & Ors And Others

In this petition filed under Article 226 of the Constitution, the petitioner and the respondent No.4 are at loggerheads on the question of seniority and for

occupying the post of District Ayush Officer on officiating/current charge basis.

The admitted facts between the parties are that the petitioner, respondent No.4 and other candidates were selected pursuant to a selection

conducted by M.P. Public Service Commission (P.S.C.) for the post of Ayurved Chikitsa Adhikari. As per select list prepared by P.S.C. for the post

of Ayurved Chikitsa Adhikari dated 23-10-1990 (Annexure P/1) the name of respondent No.4 finds place at S.No.69 whereas petitioner’s name is

at S.No.105. The petitioner was appointed on the said post by order dated 28-011991 (Annexure P/2) whereas the respondent No.4 was appointed on

the said post on 14-02-1991 (Annexure P/3).

Shri Bhatti, learned counsel for the petitioner submits that petitioner’s appointment order was issued prior in time and the petitioner joined the

services on 04-02-1991 whereas the respondent No.4 admittedly joined duties on 18-03-1991. By taking this Court to the gradation list showing the

post as on 01-04-2002 (Annexure P/4) and 01-04-2013 (Annexure P/5), learned counsel for the petitioner submits that petitioner’s name is shown

over and above the name of respondent No.4. In Annexure P/4, petitioner’s name is at S.No781 whereas private respondent is at S.No.827.

Similarly, in the subsequent seniority list (Annexure P/5), petitioner’s name is at S.No.267 and name of respondent No.4 is at S.No.305. Since the

petitioner was consistently shown senior for more than two decades, as per government circular dated 04-111996, the petitioner had a preferential

right to occupy the post of District Ayush Officer on current charge basis being senior to respondent No.4. Accordingly, petitioner was given the

current charge of post of District Ayush Officer by order dated 06-01-2016 (Annexure P/8).

Shri Bhatti submits that the respondent No.4, who never raised any objection regarding seniority of petitioner for more than two decades, suddenly

awake from his deep slumber and filed WP. No.784/16 before this Court. He felt aggrieved for the first time because the current charge of the post

of District Ayush Officer was given to the petitioner. This Court by order dated 19-07-2016 (Annexure P/11) disposed of the said petition by directing

the respondents to undertake an exercise in a particular manner. The respondents immediately thereafter passed an order dated 25-072016 and on the

basis of provisional gradation list, granted the current charge of the post of District Ayush Officer to the respondent No.4. Thereafter, the objection

regarding seniority was decided by order dated 08-09-2016 (Annexure P/12-A). It is urged that this order dated 08-09-2016 is based on the decision

dated 2101-2016 (Annexure P/12-B). The decision dated 21-01-2016 was already there when aforesaid WP was pending before this Court. The

respondents were required to undertake the exercise to (i) consider the representation of the parties regarding seniority, (ii) finalize the seniority list;

and (iii)Â post the senior person on officiating basis on the promotional post of District Ayush Officer. Shri Bhatti submits that the action of

respondents is like putting the cart before horse. They first passed the order dated 25-07-2016 and provided the additional charge to the private

respondent and thereafter decided the question of seniority. Thus, the impugned orders are bad in law. It is submitted that the State Government by

order dated 03-10-2017 (Annexure AR/1) reiterated the same stand and treated the private respondent as senior to the petitioner. By placing reliance

on 2016 (4) MPLJ 180 (Surendra Singh Bhandari vs. State of M.P.), Shri Bhatti submits that the petitioner was admittedly shown senior to private

respondent for more than 25 years. The said seniority cannot be altered after 25 years by taking shelter of Court order or relevant rules. The seniority

once finalized cannot be altered to the detriment of the petitioner. It is submitted that in the manner the charge was given to the private respondent, it

shows that the action is capricious and arbitrary in nature. Â

Per Contra, Shri R.K. Verma, learned Additional Advocate General supported the impugned order. He submits that admittedly the petitioner's rank

is below the rank of respondent no.4 in the select list dated 23.10.1990. As per the Rule 12 of M.P. Civil Service (General Conditions of Service

Rules) 1961, the person who is more meritorious in the select list will be ranked as senior in the seniority list in spite of the fact that said person has

been appointed and joined the post subsequently.

Putting it differently, it is common ground taken by Shri Verma and Shri R.N. Singh, learned senior counsel for the respondent no.4 that by

operation of Rule 12 coupled with stipulation contained in select list merely because the petitioner's name was wrongly shown in various seniority list

above the respondent no.4, he has no legal right whatsoever to be placed over the respondent no.4. Even if, petitioner was appointed and joined the

service prior to respondent no.4, by operation of Rule 12 of the Rules 1967, the petitioner will occupy the position in the seniority list below the

respondent no.4.

Shri R.N. Singh, learned Sr. Counsel further contended that the charge was handed over to the respondent no.4 on 25.7.2016. The present petition

is filed subsequent to the said date yet the the petitioner has shown his designation in the cause title as District Ayush Officer. Thus, the petitioner has

not approached this Court with clean hands. Moreso as per Annexure R-4/C, he was relieved before filing of the present petition. The government has

every right to take a final decision on the aspect of seniority list. When such decision is taken in consonance with the mandate of Rule 12 of the Rules

1961, no interference is warranted.

Learned counsel for the respondent no.4 further contended that if petitioner succeeds, the seniority of various persons will be adversely affected.

The petitioner has not impleaded all such persons in the array of respondents. Thus, because of nonjoinder of parties, petition must fail. In this regard,

he has placed reliance on the judgments reported in (2014) 16 SCC 187[Ranjan Kumar and Ors. Vs. State of Bihar and Ors.], 2013 (4) MPLJ

432[Sitaram Baghele Vs. State of M.P. And Another], 2017 SCC online MP 571 [Manoj Kumar Dwivedi and Ors. Vs. State of M.P. & Another].Â

In addition, it is contended that petition suffers from delay and laches and is liable to be thrown over board on this ground alone. For this purpose,

judgement reported in (1998) 2 SCC 523 [B.S. Bajwa and Another Vs. State of Punjab and Ors.] and (2010) 12 SCC 471 [Shiba Shankar Mohapatra

and Ors. Vs. State of Orissa and Ors.] were relied upon.

No other point is pressed by counsel for the parties.

I have heard learned counsel for the parties at length and perused the record.

Before dealing with the rival contentions, it is apposite to refer relevant portion of Rule 12 of the Rules, 1961 which reads as under:

“12. Seniority.-The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance

with the following principles, viz,(1) Seniority of Direct Recruits and Promotees.-(a) The seniority of persons directly appointed to a post according to

rules shall be recommended for appointment irrespective the date of joining. Persons appointed as a result of a subsequent selection.â€​

A plain reading of this rule makes it clear that the inter se seniority of direct recruittee selected through same selection will be determined on the basis

of their merit position in the select list prepared by the selecting authority. The merit of candidate or in other words his ranking in the select list will

determine his seniority irrespective of the fact where a more meritorious candidate was appointed and joined subsequent to a candidate whose merit

position is below. Thus, as per said principle of determining seniority ingrained in Rule 12, undoubtedly, the respondent No.4 must secure a march

over and above the present petitioner in the ladder of seniority. Pertinently, to wriggle out of this position, Shri M.S. Bhatti placed heavy reliance on

the judgment of this court in the case of Surendra Singh Bhandari(supra). Putting it differently, Shri Bhatti contended that since seniority cannot be

altered after 25 years, question of applying any rule at this stage does not arise. This argument requires serious consideration.

No doubt, in Surendra Singh Bhandari(supra) this court framed three points for determination. The first point regarding justification in altering

the seniority after 26 years whereas other points were relating to merits of the case. For ready reference, the points considered in the said case are

as under:

“(1) Whether the respondents were justified in altering the seniority after 26 years ?

(2) Whether the post of Assistant Research Officer belongs to one cadre or posts mentioned in the advertisement belong to different discipline wise

cadres.

(3) Whether the seniority of the parties herein are rightly determined by order Annexure P/13 dated 27.04.2013.â€​

This Court in the said case answered the Q. No.1 in favour of the petitioner therein and opined that in view of said answer the other points need

not be decided. The question is whether the said judgment can be made applicable in the present case ? In the case of Surendra Singh Bhandari

(supra), the seniority list was lastly drawn way back on 26.7.2001 showing the position as on 01.04.1999. On the basis of the said seniority list

wherein Shri Bhandari was shown above private respondent, he has secured two promotions on the post of Joint Director and Additional Director in

the year 2002 and 2006, respectively. Thus, this court opined that a final seniority list in the said case which was operated twice for the purpose of

grant of promotion cannot be altered after 24/26 years.

It is apposite to mention that this court considered the judgments of Supreme Court in the case of AIR 1975 SC 1269 (Malcom Lawrence Cecil

D’Souza vs. Union of India and others), 1986 (4) SCC 531 (K.R. Mudgal and others vs. R.P. Singh and others), (2010) 4 SCC 301 (H.S. Vankani

and others vs. State of Gujarat and others) and (2010) 12 SCC 471 (Shiba Shankar Mohapatra and others vs. State of Orissa and others).

In Malcom Lawrence Cecil D’Souza(supra), the Apex Court held that seniority list after having been settled for once should not be liable to be

reopened after lapse of many years. In K.R. Mudgal and others(supra), the Apex Court opined that there should be no sense of uncertainty amongst

government servants after several years. In H.S. Vankani and others(supra), it was poignantly held that seniority once settled is decisive in the

upward march in one’s chosen work or calling and gives certainty, assurance and boosts the morale to do quality work. Similarly, in Shiba

Shankar Mohapatra and others(supra), it was held that when right of a party is crystallized, the seniority should not be altered after a long period. It

is important to note here that during the course of hearing, learned counsel for both the sides have fairly admitted that the seniority lists issued time to

time on which reliance is placed by the petitioner were provisional seniority lists. In other words, Shri Bhatti on a specific query from the Bench

fairly submitted that seniority lists in which petitioner is shown senior to private respondent are provisional seniority lists. In the case of Surendra

Singh Bhandari (supra), the seniority position of petitioner and private respondent therein was crystallized by drawing a final seniority list and; on the

basis of said final seniority list, petitioner therein was promoted twice to the detriment of private respondent therein. In the instant case, no such

right is crystallized because prior to issuance of impugned order the inter se seniority of petitioner and private respondent was not crystallized/finalized.

Admittedly, no promotion has taken place on the basis of any provisional seniority list. Thus, principle laid down in Surendra Singh Bhandari (supra)

cannot be pressed into service in the present case.

So far the argument of petitioner that respondents passed the order dated 25.7.2016 and then decided the question of seniority is concerned, in the

considered opinion of this court, the said point has no merits. Once it is held that respondent No.4 is senior to the present petitioner, the order

granting officiating charge dated 25.7.2016 does not require any interference. Apart from this, this is trite law that no writ of mandamus can be

issued to grant current charge of a post. AIR 1993 SC 2273 (State of Haryana vs. S.M. Sharma and others), the Apex Court held as under:-

“11. We are constrained to say that the High Court extended its extraordinary jurisdiction under Article 226 of the Constitution to a frivolity. No

one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma.

He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the Court.â€​

The said judgment is followed by this Court in 2016 (3) MPLJ 152 (Dr. V.B. Singh Baghel vs. State of M.P. and others).

The relevant portion of the said judgment reads as under:-

“9. The question is whether this executive instructions can be enforced in a writ petition. This aspect is no more res-integra. A five judge bench

judgment of Supreme Court in AIR 1965 SC 1196 (State of Assam & Another vs. Ajit Kumar Sarma & Others) held that executive instructions

confer no right of any kind and the same cannot be a reason for the High Court to issue mandamus against the State Government. It is relevant to

note here that the petitioner has not alleged and argued that the impugned order is malicious in nature. The Government is the best judge to decide the

question of posting of an officer at a particular place. Unless such posting runs contrary to any statutory provision or infringes any fundamental or

statutory right of an employee, no mandamus can be issued. A Division Bench of this Court in 2007 (4) MPLJ 548 (Bhartiya Kishan Sangh District

Bhind vs. Union of India & Others) held that existence of legal right and public duty to be performed by either side coupled with statutory duties are

the necessary ingredients for issuance of writ of mandamus or for the purpose of administrative functions. In AIR 1975 SC 2135 (Isha Beevi &

Others vs. Tax Recovery Officer & Others), the Apex Court held that 'No occasion for the issue of writ of mandamus can arise unless the applicants

show non-compliance with some mandatory provision and seek to get that provision enforced because some obligations towards them is not carried

out by the authority alleged to be flouting the law. In AIR 1993 SC 2273 (State of Haryana vs. S.M. Sharma & Others), the Apex Court held that the

High Court extended its extraordinary jurisdiction under Article 226 of the Constitution to a frivolity. It was held that no one has a right to ask for or

stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to the employee. He had no cause of

action whatsoever to invoke the writ of jurisdiction of the High Court. The Apex Court observed that it was a patent misuse of process of the Court

by the High Court. (Para 11)

In the said case also, the petitioner was claiming the charge on officiating/current charge basis. In view of aforesaid, in my view, no legal vested,

statutory or constitutional right of the petitioner is infringed by the respondents. The respondents cannot be compelled to implement the circular

(Annexure P/3) by issuing a writ of mandamus. The decision taken by the government is in public interest and for public good need not be interfered in

discretionary jurisdiction of this Court under Article 226 of the Constitution unless it is proved that the said order is malicious in nature or infringes any

fundamental/statutory or vested right of the employee. For these reasons, no interference can be made in this petition.â€​        Â

(Emphasis supplied)

This court is of the considered view that because of grant of officiating charge to private respondent the petitioner’s service conditions are not

adversely affected. No legal, vested, statutory or constitutional right of the petitioner is infringed. Thus, no interference is warranted in the

present case.

The petition fails and is hereby dismissed.