Dr. Surinder Kumar Bali vs State and Others

R.C. Gandhi, J.—Petitioner seeks issuance of writ of Certiorari to quash Government Order No. 277-HME of 2001 dated 16.04.2001

whereby his assigned seniority at serial No. 15 of the seniority list in the discipline of Medicines, issued by the respondents vide Government Order

No. 55-HME of 2000 dated 16.2.2000 has been altered by adjusting respondent No. 3 at serial No. 14-A of the seniority list, and also seeks to

quash letter No. ME-GM-128 dated 4.6.2002, issued by respondent No. 1, confirming the adjustment of the respondent No. 3 as Lecturer in

Government Medical College, Jammu by the Principal, Government Medical College, Jammu, being incompetent. He further seeks issuance of writ

of Mandamus commanding the respondents 1 and 2 to treat the petitioner senior to respondent No. 3.

The petitioner and respondent No. 3 were selected by the J&K Public Service Commission (hereinafter ""the Commission"") and recommended

for appointment vide letter dated 1.8.1994 against the posts referred to the Commission, in the year 1994. The petitioner appeared at serial No.

12 whereas respondent No. 3 at serial No. 11 of the merit list prepared by the Commission. Respondent No. 3 was appointed as Lecturer

Medicines vide Government Order No. 706-HME of 1994 dated 22.11.1994 and posted in Government Medical College, Srinagar, against an

available vacancy of Chest Disease. The appointment order stipulated a condition, among others, that the appointee will join the department within

a period of 21 days from the date of issue of the order failing which his appointment shall be cancelled. Respondent No. 3 submitted his joining

report to the respondent No. 1 on 28.11.1994 expressing therein his unwillingness to join at the place of posting seeking also permission to join at

Medical College, Jammu. The petitioner was not permitted to join. He remained working with the Health Department as B-Grade Specialist,

where he was working prior to his appointment as Lecturer. He preferred SWP No. 1452/1994 and pursuant to interim direction dated 1.7.1996

he was permitted to join in Government Medical College. Jammu, as Lecturer by the Principal, Medical College, Jammu, vide his order dated

3.6.1997, subject to confirmation by the Administrative Department, which was confirmed vide communication dated 4.6.2002.

Respondents issued seniority list vide Government Order No. 55-HME of 2000 dated 16.2.2000, showing the petitioner at serial No. 15.

Respondent No. 3 was not figuring in the said seniority list. Subsequently on the representation of the respondent No. 3 impugned Government

order No. 277-HME of 2001 dated 16.4.2001, placed the respondent No. 3 at serial No. 14-A of the said seniority list, above the petitioner.

The petitioner has challenged the impugned order on the grounds that the petitioner joined the post of Lecturer on 22.4.1997 whereas the

respondent No. 3 joined on 3.6.1997, the impugned order, therefore, is bad in law and that the provisional appointment of respondent No. 3 was

confirmed on 4.6.2002 but the respondent No. 3 has been placed above the petitioner vide impugned order dated 16.4.2001 in anticipation of his

confirmation. It is also stated that petitioner has filed an appeal/representation against the change of his placement in the seniority, indicating therein

that principles of natural justice have not been observed by providing an opportunity of hearing to him before altering his assigned place in the

seniority list as the seniority has been fixed in terms of Rule 24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (for short

rules of 1956"" hereafter). It is further stated that the appeal of the petitioner was accepted but unfortunately the impugned order has not been

rescinded by the respondent No. 1.

Respondents 1 and 2 have filed their objections. Respondent No. 3 has also filed objections separately. They have stated that the seniority has

been fixed in terms of Rule 24 of rules of 1956. It is also stated that appointment of the petitioner is bad as the life of the panel was only one year

commencing from 1.8.1994, and without extension of the panel petitioner has been appointed and his appointment being bad, he is not entitled to

the seniority above the respondent No. 3. Respondent No. 3 has joined the post of Lecturer, pursuant to his appointment on 28.11.1994 and is

entitled to seek seniority from that particular date.

Heard learned Counsel for the parties and perused the record.

Learned Counsel for the parties have submitted that since the pleadings are complete, the petition may be taken up for final disposal. Petition is

admitted to hearing and at their request is taken up for final disposal. At the request of learned Counsel for the petitioner, official respondents were

directed to produce the relevant record, which has been made available.

Learned Counsel for the petitioner has reiterated the grounds set out in the petition for quashing the impugned order. He has disputed the joining

of the respondent No. 3 on 28.11.1994, submitting that the respondent No. 3 was working as B-Grade Specialist in Health Department. He

joined as Lecturer on 3.6.1997 by the order of Principal Government Medical College. Jammu and is entitled to the seniority from 3.6.1997. This

argument, however, has been disputed by learned Counsel for respondent No. 3. submitting that respondent No. 3 was working in Government

Medical College, Jammu, with effect from the date of his joining i.e. 28.11.1994 and drawing pay also there from.

Respondent No. 3, undoubtedly, submitted his joining report to the Commissioner-Secretary to Government, Health and Medical Education

Department, on 28.11.1994 with the request that "" as for the reasons given in the representation separately, it is not feasible for me at the moment

to join at Srinagar. I may be allowed to join my duties at Jammu."" Perusal of the record reveals that the Commissioner/Secretary to Government,

Health and Medical Education Department, has not accepted the request of respondent No. 3 as there was no post available in Jammu Medical

College. He went back to his Department. Under such circumstances, the respondent No. 3 filed SWP No. 1452/1994, seeking relief of his

aposting in Jammu Medical College. The Court on 22.12.1994 passed the following interim order:

Till the next date in the court, it is directed that, if a vacancy in the Medical Education Department is available in Jammu in the Department of

Medicine, the petitioner shall be allowed provisionally to join duty against such an available vacancy pursuant to the aforesaid Government order

dated 22nd Nov. 1994 whereby he was appointed. If. however, there is no clear vacancy available, as indicated above, he shall have no option,

but to comply with the aforesaid government order.

Since there was no vacancy, respondent No. 3 could not join and remained working in Health Department as B-Grade Specialist. The Court

again passed an interim order on 1.7.1996, which reads as;

Post the matter after six months along with connected petitions. In the meantime, petitioner be adjusted in Jammu in case post of Lecturer in

Medicines is available or becomes available and the petitioner will be at liberty to point out above such a vacancy to the Principal, Medical

College, Jammu as well as Secretary to Health and Medical Education Department, J&K.

Pursuant to this order respondent No. 3 was adjusted as Lecturer in the Department of Medicines in Government Medical College, Jammu,

provisionally vide order No. 166 of 1997 dated 3.6.1997 issued by Principal, Government Medical College, Jammu subject to confirmation by the

Administrative Department. This position was further disputed by learned Counsel for the respondent No. 3 insisting that the respondent No. 3

was drawing his salary from Jammu Medical Colege against the post of Lecturer Medecines. To resolve this factual dispute learned Counsel for

the official respondents was directed to produce the record to find out as to where the respondent No. 3 was working and drawing his salary

against which post in Medical College, Jammu. Record has been produced, perusal whereof reveals that respondent No. 3 was posted in Central

Jail, Jammu on 17.3.1994 by Director Health Services, Jammu. Thereafter he was posted with the Chief Medical Officer, Jammu, for providing

specialist services to the migrants. He has drawn his salary against the post of B-Grade Specialist till 3.6.1997 from the Department of Health and

not from the Department of Health & Medical Education. Respondent No. 3 on 4.6.1997 has submitted his departure report to the Director

Health Services, Jammu to join Medical College, Jammu as Lecturer Medicines, pursuant to the order dated 3.6.1997 passed by Principal

Government Medical College, Jammu. It is thus made out that statement made at the Bar by respondent No. 3 that he was working and drawing

his salary against the post of Lecturer in Government Medical College, Jammu, is found false on examination of the relevant record. It is also made

out that the respondent No. 3 practically and physically joined against the post of Lecturer on 4.6.1994.

Learned Counsel for the respondent No. 3 has further submitted that respondent No. 3 has joined by submitting his joining report to the

Commissioner-Secretary, Health & Medical Education Department, on 28.11.1994, as required in terms of condition No. 2 of the appointment

order. To appreciate the argument of learned Counsel, para 2 of the appointment order is reproduced as under:

He will join the department-within a period of 21 days from the date of issue of this order failing which his appointment shall be cancelled.

The specific plea of learned Counsel for the respondent No. 3 is that respondent No. 3 was required to join the department within 21 days

and he has joined the department, which means the department of Health and Medical Education Department. I disagree with this plea of learned

Counsel. Respondent No. 3 was to submit his joining report against the post of Lecturer in medicine Department of the Government Medical

College, Srinagar and not in the Administrative Department. A doctor has not to perform his duties in the Administrative Department. In the

appointment order itself the post has been shown where he was to join. This excuse coined by the respondent No. 3 of his joining is rejected as

the respondent No. 3 was required to join against the post of Lecturer in Medicine Department of the Government Medical College, Srinagar.

Learned counsel for the respondent No. 3 also submitted that appointment of the petitioner is bad for the reason that select list was valid only for

one year. He is correct to the extent that recommendation made by the Commission was valid for a period of one year only commencing from

1.8.1994. But from the perusal of the record it is seen that it is recorded in Note No. 32, maintained in the file of the petitioner that, ""the life of the

panel has been extended by Hon'ble Supreme Court of India in S.S. Jamwal's case."" In such circumstances the appointment of the petitioner

cannot be said to be invalid.

Learned Counsel for the petitioner, attacking the appointment of respondent No. 3, has submitted that appointment of respondent No. 3 is

invalid as the Principal, Medical College, Jammu, was not competent to appoint and adjust the respondent No. 3 as Lecturer as it was to be done

by the administrative department or the General Administrative Department.

It is seen from the record file (Note 165) that respondent No. 3 was allowed to join by the Principal, Government Medical College, Jammu,

on 4.6.1997. For the period 4.6.1997 to September. 1999, he has been paid salary against the post of Lecturer Ophthalmology and from

October, 1999 onwards against the post of Lecturer Medicine. It is made out that at the time of adjustment of respondent No. 3 as Lecturer

Medicine i.e. 4.6.1997, there was no post of Lecturer Medicine in Government Medical College, Jammu, till September, 1999. The post became

available only in October, 1999 as per the official record of the respondents 1 and 2. To save the appointment of respondent No. 3,

Commissioner-Secretary has recorded the following notes on 24.7.2000:

The Principal, Medical College, Jammu who can asked to explain as to how Dr. Vinay Rampant was allowed to join has stated that the

matter was disused with the then Commrl Secretary to Government, Health and Medical Education Department in which it was pointed out that

the orders of the Hon'ble High Court have stood unmodified and have become final. The candidate was allowed to join consequent upon these

discussions in pursuance of the court orders subject to formal confirmation of the Administrative Department which is yet to be conveyed.

The Lecturer has challenged the seniority list issued by the Government because keeping in view the nature of his adjustment and non-

confirmation orders by the Government, his name in the seniority list does not exist.

The matter could be agitated again in the Hon'ble High Court. The fact, however, remains that the 4 candidates junior to him in the merit list

have also been appointed and are working in the Department. They have been included in the Seniority list. It would, therefore, be unfair to give

him a different treatment. It is, therefore proposed that his appointment as Lecturer on the basis of the selection of Public Service Commission and

in pursuance of the High Court orders may be confirmed and orders issued.

The file was sent to the Minister Incharge of the Department of Health and Medical Education. The Minister in Note 171 has recorded as

under on 27.7.2000:

In the first instance, I would like to know, as to how PMC Jammu allowed the Doctor to work against the post of Lecturer Pathology without

prior approval of Administrative Deptt.

The provisional appointment of the respondent No. 3 thereafter has been confirmed by the official respondents vide communication dated

4.6.2002. It is evident from the factual record position that though the impugned order was issued on 16.4.2001, yet the appointment of the

respondent No. 3 had not been confirmed. He was having the status of provisional appointment. Official respondents have not taken notice of it

that unless a public servant is apointed substantively or in a temporary capacity, against a post, he does not become a member of the service to

claim seniority. Seniority is the condition of service. Unless a person is a member of the service he cannot ask for the seniority.

Learned Counsel for the petitioner has also submitted that in the department of Health and Medical Education, there are other cases also such

as of Dr. Suresh Saraf belonging to department of Surgery and Dr. Vijay Khajuria of the department of Pharmacology. Both these doctors were

higher in merit and joined subsequent to those who were lower in merit. These doctors were not given the seniority from the date of original

appointment but from the date of their joining and they became junior to the doctors who were lower in merit and joined prior to these doctors.

This position has not been denied by learned Counsel for the official respondents.

From perusal of the record file, (Note No. 71) it is also seen that while dealing with the appeal filed by the petitioner before official

respondents for withdrawing the impugned order, reference has been made in the course of consideration, to the dispute between Dr. Ranbir Singh

and Dr. Ghanshayam. Dr. Ghanshayam was lower in merit to that of Dr. Ranbir Singh. They were offered appointments. Dr. Ranbir Singh joined in

February, 1992 whereas Dr. Ghanshyam joined in July, 1991. Dr. Ranbir Singh sought seniority from the date of his appointment. Respondents

framed the seniority list, showing Dr. Ranbir Singh above to Dr. Ghyansham. Dr. Ghanshayam represented for his placement in the seniority list

from the date of joining. The case was referred to the Law Department who opined as under:

Rule 24 of Classification Control and Appeal Rules is more than clear. Even otherwise question of seniority of a Gout. Servant has always to date

back to the date when he joins Government Service. It is not comprehensible to have a seniority without joining Government service. Appointment

order does not give the appointee Right to be listed in a seniority list if he does not join Government service. Mere fact that he stands appointed

does not entitle him to be listed in the seniority list at a given position unless he has in, fact joined Gout, service. The fact that Dr. Ranbir Singh was

appointed on 27th June 1991 would have been relevant for his seniority if in pursuance thereof he had joined Government service at any date

convenient to him and his seniority would certainly have been above doctor Ghyansham or even simultaneously with Dr. Ghyansham on the same

date. It is in the latter case that the question of determining seniority on the basis of position in the merit list would have arisen and in the regard Dr.

Singh would have ranked senior to Dr. Gansham. But for good, bad or indifferent reasons Dr. Ranbir Singh did not join Govt. service till as late as

Feb. 1992, when he joined in pursuance of the orders of the Hon'ble Court dated December, 1991. It is not rational to say that having joined thus

he can rank higher in the seniority list over Dr. Ghyansham who has admittedly joined in July, 1991 in pursuance of the appointment order passed

in June, 1991.

Accepting the legal opinion, government amended the seniority list and Dr. Ghanshayam was placed in the seniority list above Doctor Ranbir

Singh vide Government Order Bno. 572-HME of 1997 dated 16.6.1997.

These aforesaid three cases of similar nature, decided by the official respondents have come to light on perusal of the record. The case of the

petitioner has been dealt with contrary to it. When the dispute of the petitioner and respondent No. 3 was also referred to the Law Department

who tendered the following opinion:

Dr. Vinay Ramped is entitled to seniority from the date he has joined, as Lecturer that is 3.6.1997 pursuant to orders of the Principal,

Government Medical College, Jammu which action has been confirmed by the Government vide Government Order dated 4.6.2002. His fixation

of seniority at Sr. No. 114-A in the cadre of Lecturers is not in accordance with the rules. He can not derive any benefit from the order of

appointment dated 20.11.1994 when he did not join pursuant to such appointment order.

On receipt of the opinion from the Law Department, the case was processed for withdrawing the impugned Government order. The relevant

note (Note No. 86) of the record written by Commissioner-Secretary is extracted as below:

In pursuance of Rule 24 of J&K Civil Services (Classification Control and Appeal Rules) and the opinion of the Law Department, the department

has to refix the seniority Dr. Vinay Rampal from the date she actually joined the Department i.e. from 3.6.1997. In view of the above position it is

proposed that we may:

(i) rescind Government Order No. 277-HME of 2001 dated 16.4.2001 whereunder the seniority of Dr. Vinay Itempal was fixed at Sr. No. 14-A

in the category of lecturer in the seniority list issued vide Government Order No. 55-HME of 2000 dated 16.2.2000.

(ii) Re-fix seniority of Dr. Vinay Ram at S.No.V-A i.e. below Dr. M.A. Lone and above Dr. Abdul Samad instead of S. No. iii figuring in the

seniority list of lecturers of Medicine issued vide Government order No. 329-HME of 2005 dated 1.5.2005.

It is established from the record that the plea of learned Counsel for the petitioner that on consideration of his appeal official respondents have

formed an opinion to withdraw the impugned order. Why thereafter it was not withdrawn by passing a formal order is known to the wisdom of the

respondents.

Lastly it is to be examined as to whether the seniority of respondent No. 3 fixed at 14-A by the official respondents, assigning the place to him

above the petitioner is in accordance with law.

The seniority of the government employee has to be fixed in terms of Rule 24 of rules of 1956. Rule 24 reads as under:

Seniority:- (1) The seniority of a person who is subject to these rules has reference to this service, class, category or grade with reference to

which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as

the case may be.

Provided that the inter se seniority of two or more person appointed to the same service, class, category or grade simultaneously will,

notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, be

determined-

(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade:

(b) In the case of those recruited direct except those who do not join their duties when vacancies are offered to them, according to the positions

attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc., in

case no such examination is held for the purpose of making selections:

(c) As between those promoted and recruited direct by the order in which appointments have to be allocated for promotion and direct recruitment

as prescribed by the rules.

The mandate of law contained in the aforesaid provision of law is clear and unambiguous. The answer to the dispute raised by the parties lies in

sub para (b) of para 1 of Rule 24. If a selectee joins the post when offer of appointment is made to him according to his merit, to join within

stipulated time, seniority of such selectee and appointee has to be maintained as per his merit attained and reflected in the merit list. Para (b)

(Supra) has been enacted to keep those selectees, who are above in merit and do not join the post on offer of appointment within the stipulated

period, out from the zone of such placement of the merit list. It is so for the reason that such a selectee loses his right, because of the condition of

the appointment order, to join the post within the prescribed stipulated period. Therefore, the date of appointment becomes irrelevant for those

meritorious who do not join against the post when appointment is offered to them.

Respondent No. 3 was to join the duties in terms of the appointment order within 21 days. To join against the post is a condition of the

appointment order. If the appointee do not join within the stipulated period, in that situation, respondents are within their right to cancel! the

appointment. It is also seen from the record file that besides respondent No. 3, some more doctors, namely, Pardeep Kumar Khajuria, Dr. Ram

Kumar Gupta, Dr. Baldev Raj Sharma, Dr. Suresh Saraf, Dr. Vinod Kumar Koul and Dr. Sangeeta Choudhary, were also appointed as Lecturers

in various disciplines against the vacant posts in Government Medical College, Srinagar. These doctors did not join in compliance to the condition

of appointment order within the stipulated time. Their appointment orders were cancelled by the respondents vide Government Order No. 556-

HME of 1997 dated 5.6.1997, though the cancellation order of Dr. Suresh Saraf was subsequently rescinded.

Respondents have considered the cases of Dr. Suresh Saraf, Dr. Vijay Khajuria and Dr. Ranhir Singh. They were not granted the relief as has

been extended to respondent No. 3 vide impugned order. The official respondents have dealt the case of the petitioner with double standards

which is discriminatory as evident from the cases of the aforesaid three doctors. It is not expected from the employer to apply double yard sticks

to decide a similar situation. The opinion of the Law Department is in accordance with Rule 24 of the 1956 rules. It is made out that respondent

No. 3 joined against the post of Lecturer of another discipline because of nonavailability of the post and not as Lecturer Medicine. Rejoined the

post of Lecturer Medicine only in October, 1999 when such post became available.

Be that as it may, the Court is concerned with the dispute raised by the parties. The official respondents are under obligation to fix the seniority

in terms of Rule 24. Sub-para (b) of Para 1 of Rule 24 which is specific and clear. Those who do not join the post when the appointment is

offered, they thereafter cannot be heard making grievance that seniority should be given to them from the date of appointment. The seniority in such

situation has to be assigned to an employee from the date of his joining the post, becoming the member of the service. Impugned order, therefore,

being contrary to Rule 24 of rules of 1956, cannot stand the test of law.

In an identical case titled Dr. Mrs. Madalsa Bargotra v. State and Ors. reported in 1995 S.L.J. 11, wherein the petitioner claimed her seniority on

the basis of the merit position and the date of appointment order though said petitioner joined subsequent to the appointments of those who were

figuring below in the merit in the select list. The Court, while dealing with this proposition of fixation of seniority observed in para 8 of the judgment,

relevant portion of which is extracted below:

A clear reading of Clause-(b) of the proviso in Rule 24 suggests that once a person has been recruited directly alongwith others, he is supposed to

join when a vacancy is offered to him within the period stipulated in the appointment order within a reasonable time after the issuance of the

appointment order. Why in the proviso itself, it is clearly mentioned that the delay in joining by one or another may not be fatal if the delay occurs

by reason of different persons being posted at different stations. This can be a case of a reasonable delay and if a cloud is cast, the person joining

late is entitled to explain the delay with reference to his being prevented from joining on account of posting at station different than the one who

joined earlier. In the case before us, however, the matter is entirely different because the government had chosen specifically and emphatically to

mention the period of 15 days as the ultimate period within which both appointees were to join on their postings and it was also mentioned that the

failure to join would result in the adverse consequences of the appointment being cancelled. With this clear stipulation, therefore, the person who

joined within 15 days would surely be entitled to steal a march over the person who would not have joined within the period of 15 days because

the fact of not joining in this period would have resulted in the loss of appointment and that being the case, even if the person who joined within the

period prescribed would be senior to the person who would have not joined, the question of seniority would be rendered inconsequential...

The net result of the discussion, therefore, is that had the respondent No. 3 joined within, 15 days from 27.07.1987, he would have ranked senior

to the petitioner, but because he failed to do so, he lost his appointment since it stood cancelled by reasons of the operative part of this order and

once his appointment stood cancelled a vested right stood accrued in favour of the petitioner to be the only eligible person to have been validly

appointed on the post of lecturer.

For the aforesaid reasons, writ petition is allowed. The impugned order is set aside and the seniority of the petitioner is restored

No order as to costs.