Madalsa Bargotra, Dr. vs State of J&K and Others

The petitioner was appointed as Demonstrator in the Department of Pathology, Govt. Medical College, Srinagar on 2.12.1972 where she

worked till 8.7.1976 when she was transferred to Govt. Medical College, Jammu. It was during her tenure of service as Demonstrator in the Govt.

Medical College, Jammu that she acquired the additional academic qualifications of Diploma in Clinical Pathology in Jan. 1978 and 'MD' in

Pathology from the University of Jammu in July 1982. Vide Govt. Order No. 458HME of 1993 dated 12.8.1993, the petitioner was appointed as

adhoc lecturer in Pathology in Medical College, Jammu and she continued to work as lecturer on adhoc basis till 27 July 1987 when she was

appointed as a lecturer on regular basis after her selection by the Public Service Commission. It is of course noteworthy that between 1983 and

1987, the petitioner did suffer some breaks during her adhoc service as lecturer.

Consequent upon the issuance of advertisement, Public Service Commission invited applications from the eligible candidates for appointment to

the post of lecturers in the Department of Pathology.

The petitioner and respondents No. 3 and 4 applied for consideration. Consequent upon the completion of selection process, Govt. order No.

271ME of 1987 dated 27.7.1987 was issued by the Secretary to Govt. Medical Education Deptt. whereby the petitioner and respondent No.3

were appointed as lecturers in Pathology Department on regular basis. This order contained a stipulation that the appointees shall report to the

Principal, Medical College, Jammu within 15 days from the date of issue of the order failing which their appointment would be cancelled. It shall be

advantageous to reproduce this Govt. order as under:

Govt. Order NO: 271MEof 1987 Dated: 27.7.1987

Sanction is accorded to the temporary appointment of the following doctors as Lecturers in Pathology Department against the available vacancies

in Medical College, Jammu in the scale of Rs. 10002000:

1/ Dr. Kuldip Chander Goswami,

S/o. Vasu Dev Goswami

Lecturer in SKIMS Soura.

2/ Dr. Madalsa Magotra,

D/o. Lok Nath Magotra

Rama Lane, Talab Tiloo, Jammu.

The appointees will report to the Principal Medical College Jammu within 15 days from the date of issue of this order failing which their

appointment will be cancelled. The new appointees will not undertake any private practice. By order of the Government of Jammu and Kashmir"".

It is the admitted case of the parties, that whereas the petitioner joined within fifteen days pursuant to the aforesaid Govt. order, respondent No. 3

did not join during this period and he in fact joined on 31st Jan. 1988. It is relevant to mention here that the Govt., despite the stipulation of joining

within 15 days from the date of issuance of Govt. Order dated 27.7.1987, issued two orders dated 28.8.1987 and 20.1.1988being Govt. Order

No. 376ME of 1987 and 45ME of 1988 respectively whereby the time for joining was extended for respondent No. 3, initially for two months

and subsequently uptill 31st Jan. 1988. The text of these two orders is reproduced as below:

Government order NO. 376ME of 1987

Dated: 28.8.1987.

In partial modification to Government order No. 271ME of 1987 dated 27.7.1987, the joining time in favour of Dr. K.C. Goswami Lecturer,

Pathology, is extended by two months from the date of issue of this order.

By order of the Government of Jammu and Kashmir "".

******************

Government Order No. 45ME of 1988 Dated: 20.1.1988.

In continuation to Government Order No. 376ME of 1987 dated 28.8.1987, the joining time of Dr. K.C. Goswami, Lecturer, Pathology is further

extended upto 31st January, 1988. In case the doctor fails to join the Medical College, Jammu within stipulated period his appointment as Lecturer

Pathology shall be treated as cancelled.

By order of the Government of Jammu and Kashmir"".

Even though respondent No.4 had appeared along with the petitioner for appointment on the post of lecturer, as is evident, her name did not

figure in the appointment order dated 27.7.1987.

It appears that respondent No. 4 had some problem for being considered and accordingly she filed writ petition No. 799/ 86 at Srinagar wing of

this court and vide order dated 22.7.1986, she was permitted to appear in the interview, but it was also directed that her result would not be

declared without previous permission of the court. On 3.3.1987, however, this petition was dismissed as withdrawn because the petitioner had

reported to the court that she had been assured relief outside the court. Ultimately Govt. Order NO. 876HME of 1988 dated 3rd Oct. 1988 was

issued by the Health and Medical Education Deptt. whereby sanction was accorded to the appointment on regular temporary basis of respondent

No.4 as Lecturer, Pathology, Govt. Medical College, Srinagar against the available vacancy from the date the petitioner and respondent No.3

stood appointed. It was also mentioned in this order that respondent No. 4 will figure between respondent No.3 and the petitioner in the seniority

list. The text of this order is reproduced hereunder:

Government Order No: 876HME of 1988 Dated: 3.10.1988.

Sanction is hereby accorded to the appointment on regular temporary basis of Dr. Asif Rukhsana as Lecturer (19004000) in the Department of

Pathology, Medical College Srinagar against available vacancy from the date Dr. Kuldip Chander Goswami and Dr. Madalsa Magotra were

appointed as Lecturers vide Government Order No.271ME of 1987 dated 27.7.1987. Further, Dr. Asif Rukhsana will figure between Dr. Kuldip

Chander Goswami and Dr. Madalsa Magotra in the seniority list.

By order of the Government of Jammu and Kashmir"".

On March 2, 1990, the Government issued a tentative seniority list of lecturers in the Department of pathology in which the petitioner figures at

S.No.8 whereas respondents No. 3 and 4 figure at S.No. 6 and 7 respectively. Date of appointment of all three of them has been mentioned to be

27th July 1987.

The petitioner claims that she is senior to both the respondents No. 3 and 4 and, therefore, the impugned seniority list dated 2nd March 1990

be quashed and modified to the extent that she be shown as senior to respondents No. 3 and 4 and a writ of mandamus may also be issued

declaring her to be senior to respondents No. 3 and 4 and directing respondents No. 1 and 2 to pass consequential orders giving benefit of such

seniority to her. The petitioner is basing this claim visavis both respondents No. 3 and 4 on the following two grounds:

(i) That the Govt. order dated 27.7.1987 clearly enjoined respondent No. 3 to join on the post of lecturer within 15 days from the date of issuance

of that order; and if respondent NO. 3 did not join within this period of 15 days, as per order itself, he forfeited his right even though appointed as

lecturer and in any case he lost his seniority over the petitioner. Particular reference was invited to rule 24 of the Civil Services (Classification,

Control Appeal) Rules, 1956 and it was contended that the two orders granting extensions uptil 31st Jan. 1988 in favour of respondent No. 3 run

contrary to rule 24 of 1956 Rules and the Govt. had no jurisdiction or power to extend the time. It was alternatively contended that even if

respondent No.3 was allowed to join on the force of aforesaid two extension orders, on a plain reading of proviso to rule 24, he lost his right to be

senior to the petitioner because he joined much later than the petitioner.

(ii) In so far as respondent No. 4 is concerned, the argument is that the petitioner and respondent No.3 were simultaneously appointed vide order

dated 27.7.1987 and they could together be clubbed for determining their interse seniority subject to the provisions of rule 24, but this could not

apply in the case of respondent No. 4 because she in any case was not appointed along with the petitioner and respondent No. 3 on 27.7.1987,

but was appointed much later on 3.10.1988. If the respondent No. 4 had not physically worked as lecturer before 3.10.1988, how could she be

given the benefit of this period, asks the petitioner. On this ground, therefore, the placement of respondent No. 4 above the petitioner has also

been challenged.

We shall take up the case of respondent No. 3 first on both the grounds, viz; regarding the challenge to his eligibility for appointment and the

dispute relating to his seniority visavis the petitioner. The petitioner's case is that this respondent was not eligible to be appointed to the post of

Lecturer because he did not possess requisite experience as was prescribed in the notification, viz; three years teaching experience as

demonstrator/tutor in Pathology. If one goes to reply of this respondent as contained in reply to ground (a) in para30 of his objections and if one

considers the annexures Rule

5 and Rule 6 filed with the objections, one would have no doubt that respondent No.3 did not suffer from the vice of in eligibility and that he was

eligible for appointment as lecturer. Annexures Rule 5 and Rule 6 are the testimonials issued by SheriKashmir Insitutute of Medical Sciences,

Srinagar. Annexure Rule 5 dated 21.7.1986 issued by the Dean of Medical Faculty and Annexure Rule 6 dated 22.7.1986 issued by the Medical

Superintendent are reproduced as under :

This is to certify that Dr. Kuldip Chandra Goswami is working as Lecturer in the Department of Pathology, SheriKashmir Institute of Medical

Sciences, Srinagar since June 16, 1984 (A.N.) till date. The SherIKashmir Institute of Medical Sciences, Srinagar is a Post graduate Teaching

Institute recognized by Medical Council of India"".

Certified that Dr. Kuldip Chandra Goswami, (Code No.40 531) has served as Sr. Resident in the Department of Pathology, SheriKashmir

Institute of Medical Sciences, Srinagar, from February 01.1992 to June 16 (F.N.) 1984. His work and conduct during this period was excellent"".

Having settled the question of eligibility of respondent No. 3, let us now examine the question of his seniority visavis the petitioner in the light of

order dated 27.7.1987 issued by the Government whereby both of them were appointed as lecturers. There is no doubt that respondent No.3

figured at S.No. 1 in this order and the petitioner was below him figured at S.No.2. Undoubtedly, it must have been because in the order of merit,

the petitioner would have been lower than respondent No.3 and it was only because of this reason that her name was shown at S.No.2 in the

appointment order. That however, is not the all. The operative part of the appointment order clear stipulated that the appointees will report to the

Principal Medical College, Jammu within 15 days from the date of issue of the order failing which their appointments would be cancelled. If one

reads this stipulation in the order, one should have no doubt that what the government clearly, unequivocally and unmistakenly meant was that both

the appointees were required to join on their places of posting within 15 days from the date of issuance of this order and that if either of them failed

to do so, his/her appointment should be deemed to be cancelled. In fact such a stipulation was in consonance and harmony with Rule 24 of the

Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (1956 Rules). For ready reference proviso to subrule1 of rule

24 of the 1956 Rules may be reproduced which thus reads:

..............Provided that the interse seniority of two or more persons 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............

Was it not obligatory upon respondent No.3 to have joined on the vacancy offered to him upon his recruitment within 15 days and if he did not

so, would he not suffer adverse consequences of losing his appointment? Was the Government well within its right and competence to extend the

period, not once, but twice for allowing respondent No.3 to join? Even if the Government was competent to do so, could the petitioner be allowed

to suffer as a consequence of either of the two aforesaid eventualities and could she be denied the benefits which would have accrued to her

because of nonjoining of respondent No. 3? These are three questions which fall for determination in this case.

A clear reading of clause(b) of the proviso in rule 24 suggests that once a person has been recruited directly along with 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 [SIC] 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. Because in that eventuality, the only one person out of two would be presumed to have been validly appointed to the post and the

other one having lost the right of appointment. The first Government order granting extension of two months for respondent No.3 to join was

issued on 28th Aug. 1987 and the second order granting extension uptill 31st Jan. 1988 was issued on 20 Jan. 1988. As would be seen both these

orders were issued beyond the period originally prescribed for joining. Whereas order dated 28th Aug. 1987 was issued exactly a month after

27.7.1987 (the original order of appointment). Order dated 20.1.1988 was issued almost five months after the issuance of first extension order. As

would be also noticed the original period of 15 days stipulated in the order dated 27.7.1987 expired on 11.8.1987 whereas the first extension of

two months was granted on 28.8.1987. Similarity two months extension granted on 28.8.1987 expired on 28.10.1987, but the order granting

extension uptil 31 Jan. 1988 was issued almost two months thereafter, i.e.; 20.1.1988. Not only this, under rule 5 of the 1956 Rules, even though

Government has power to relax any term in any of the rules, it could do so by reasons to be recorded in writing. A casual glance at the two orders

dated 28.8.1987and 20.1.1988 would show that no reasons whatsoever have been recorded by the government as to why a departure was made

from the general position of law regarding the joining as contained in rule 24 and as to why respondent No.3 was granted extension, despite the

stipulation to the contrary contained in the order dated 27.7.1987. The net result of the discussion, therefore, is that had the respondent No.3

joined within 15 days from 27.7.1987, 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. That being the case, if respondent No.3 joined

in Jan. 1988 pursuant to two extension orders, all that he could claim would be the benefit of appointment from the date of his joining and not from

retrospective date, i.e.; as is the clear intention of rule 24 of 1956 Rules. Any other interpretation would be doing violence to the plain reading of

this rule. Perhaps in normal circumstances, one could have even gone as far as to hold that the appointment of respondent 3 pursuant to two

extensions granted to him was not wholly valid and constitutional, but I would not venture into that area for the simple reason that respondent No.3

has been holding the post of lecturer for more than six years now and to order his oust at this juncture might play havoc with his career and would

operate unduly harsh to him. Suffice is to say that the only relief that I can grant to the petitioner is a declaration that she ranks senior to respondent

No.3 on the post of lecturer to which both were appointed vide order dated 21.7.1981.

Coming to case of respondent No.4, both with regard to eligibility as well as of fixation of seniority visavis the petitioner, one finds that one is

dealing with a very simple straight matter. On her own showing, respondent No. 4 became a MD on 25.3.1985 when the notification granting her

MD was issued by the University of Kashmir. IN parac of preliminary objections in the objections filed by her, it has clearly been stated that she

was awarded the degree of MD in Pathology on March 25, 1985. ParaC is reproduced as Under:

C. That even on the score of seniority the petitioner has no legal right as according to notification dated 25.3.1985 bearing No. F.H (MD/MS/3)

Sec/KU/85 issued by controller of Examinations, the petitioner has been declared to have been awarded MD Degree in the Faculty of Medicine

(Pathology) under Roll NO. 15 in June, 1984. The aforesaid order is reproduced as under :

In continuation of this office Notification No. F(MD/MS1) 84/Sec/KU/85/ dated 14.8.1984, it is hereby notified that Asif Rukhsana D/o Gulam

Mohammad, Registration NO. 2762W64 who presented a thesis entitled ""Clinico pathological study of Tubercular Endoretrtities in Kashmiris and

its contribution to Sterility for the award of MD Degree in the Faculty of Medicine (Pathology) under Roll No. 15 is declared to have passed the

examination held in June, 1984"".

Mr. Raina's contention that because examination was held in June 1984, respondent No. 3 be deemed to have passed MD in June 1984,

cannot be accepted because it is fallacious on its very face. A person is deemed to be possessed of academic qualification on the date his/her

result is declared or on the date the notification declaring such result or granting Degree is issued by the University. No one can be allowed to claim

that he/she should be deemed to be possessed of the academic qualification as on the date of taking of examination. The taking of examination is

an entirely different matter from the declaration of result of examination. A person shall be deemed to be qualified in a particular post only on the

declaration of his/ her result and on no date prior to that. In the case of respondent NO. 4, therefore, there is no difficulty in holding that she could

be deemed to be a MD in Pathology with effect from 25.3.1985 when the notification to this effect was issued by the University of Kashmir. That

being the case, she could not be considered to be eligible for appointment as lecturer pursuant to the advertisement issued by the Public Service

Commission in 1985 because the eligibility of one year teaching experience after possessing PostGraduate Degree was clearly lacking in her case.

One year teaching experience after postgraduate degree in the month of June 1985 was a necessary prerequisite for being eligible for appointment

and because respondent No.4 became a MD in Pathology only in March 1985 by no mathematical calculation she could be deemed to have

possessed one year teaching experience after MD in Pathology, she was therefore, not eligible for appointment to the post of lecturer at all. That is

one aspect of the matter. The other equally untenable aspect is her appointment as a lecturer in the year 1988, but giving it effect from the date the

petitioner and respondent No. 3 were appointed; viz, 27.7.1987. Government order dated 3.10.1988, reproduced in the earlier part of this

judgment is one which is under challenge wherein respondent NO.4 has been appointed as lecturer, but her appointment has been given effective

from 27.7.1987. Because respondent No.4 was not even eligible for appointment, it is not understood as to how did the Government appoint her

on the basis of notification issued by the Commission in 1985. That apart, it is also not understood as to how the government could operate her

appointment retrospectively. There is no law, rule or regulation whereby the government has power, authority or competence to order the

appointment of a person from retrospective effect than the date of issuance of order or the date when the person appointed actually assumes

charges.

Especially when the retrospective operation of such an appointment order tends to adversely effect the seniority position of persons appointed

earlier than the one sought to be appointed retrospectively. Now the basic concept and principle of service jurisprudence has been well settled and

entrenched. This principle is that the appointment of the civil servant takes effect from the date of issuance of order or from such prospective date

as the order might indicate. It does not and cannot be given retrospective effect because such an action of the government may prejudice and

adversely effect the seniority of persons appointed earlier. That part of the order whereby respondent 4 has been appointed with effect from

27.7.1987 is, therefore, patently unconstitutional and illegal and cannot be allowed to be sustained.

There is another angle to the controversy. Apart from ordering the appointment of respondent 4 retrospectively from 27.7.1987, the

Government even determined and fixed her seniority above the petitioner and below respondent No. 3. How could that be done and why was that

done has gone totally unexplained either in the pleadings of the parties or with reference to any record which the respondents could have produced

in the court. As if one sin of retrospective appointment was not enough, the Government committed yet another one by placing respondent No.4

senior to the petitioner and that too without disclosing either in the order dated 3.10.1988 or in the pleadings before the court as to why and how

was she ordered to rank senior to the petitioner. It was entirely upto the State, the Commission and respondent 4 to have clearly, unequivocally

and unambiguously pleaded in their pleadings in the court as to why and how could respondent 4 be placed senior to the petitioner and as to what

was the background of such placement and ranking. Alternatively the record could have been produced in support thereof. Even that was not

done. Since they are all totally silent on the subject and also because the Government order dated 3.10.1988 is silent too on the subject, I have no

hesitation in declaring and holding that even this part of Government order dated 3.10.1988 was wholly invalid, unconstitutional and illegal.

In normal circumstances, the appointment of respondent No. 4 ought to have been quashed by me, but on the analogy of sustaining

appointment of respondent 3 which I have proposed earlier in this judgment on the ground of having served already for about six years, and

applying the same parameter and yardstick to the case of respondent NO.4, I refrain from quashing her appointment. However, since the

respondent No. 4 was appointed on 3.10.1988, and because I have proposed to quash that part of the order whereby retrospective effect was

given to her appointment, it is declared that the appointment of respondent No.4 as lecturer in the department of Pathology shall take effect from

the date of issuance of the order dated 3rd Oct. 1988 and from no earlier date, and that being the case, she would rank junior to the petitioner and

to all other persons who might have been appointed before her.

In the ultimate analysis, therefore, this petition is allowed. The following reliefs are granted:

(i) By issuance of writ of mandamus respondents No.l and 2, particularly respondent No. 1 are directed and ordered to treat the petitioner as

senior to respondents 3 and 4 on the post of Lecturer in the Department of Pathology in the Medical Education Department of the State and to

accordingly fix her seniority visavis other persons;

(ii) Thus treating the petitioner to be senior to respondents No.3 and 4 to grant her all consequential benefits; (iii) To treat respondent NO.4 to

have been appointed on the post of Lecturer in the Department of Pathology from 3.10.1988, the date of issuance of the Government Order No.

876HME of 1988 and to fix her seniority on that post from that date and from no other date, (iv) In the light of directions contained in 3 above a

writ of certiorari is accordingly issued whereby Government order NO. 876HME/1988 dated 3.10.1988, in so far as it pertains to retrospective

appointment of respondent NO.4 and fixation of her seniority is quashed with all consequences.

No order as to costs.