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Judgment
Petitioner was appointed a Dental Asstt. in the Health Department on 29.1.1972. It appears that the Health Department was bifurcated in 1977
resulting in creation of two separate departments vis: Health Department and the Medical Education Department.
Petitioner was working at Primary Health Centre, Nowshera at the relevant time when his services were transferred to the Medical Education
Department by Govt. Order No. 186HME of 1983 dated 8.3.1983 which, however, provided that he shall retain his lien and promotional
prospects in the Health Department. Pursuant there to, he joined in the SMGS Hospital (Medical Education Deptt) on 23.3.1983. Meanwhile he
found his name missing in the seniority list of Dental Assistants issued by the Health Department in 1983. He consequently asked for shifting of his
lien from Health Deptt. to Medical Education Deptt. He was told to give his consent in this regard which he did. No action, was taken in the matter
till 1986 when Govt. Order N0.242GR of 1986 dated 14.4.1986 was issued shifting his lien from Health Deptt. to Medical Education Deptt. but
with effect from the date of issue of the order"". Resultantly when the Medical Education (ME) Department formulated its seniority list, he was
shown figuring behind private respondents 3 & 4 in the tentative seniority list as his service in this department was reckoned from 14.4.1986 when
his lien was ordered to be shifted. He filed objections against his placement in the tentative seniority list but all the same seniority position was
finalised and it was maintained by showing him junior to private respondents 3 & 4. He naturally felt aggrieved and filed SWP194/89 way back in
1989 seeking quashment of the seniority list dated 17.5.1989 and also Govt. order No. 242GR (HME) OF 1986 DATED 14.4.1986 Which
Provide that his lien was being shifted from the date of issue of this order.
Petitioner's grievance in this writ petition is that the impugned action had caused prejudice to him on all counts. Firstly, because he had foregone 10
years service rendered in the He ""the Department as a consequence of his transfer to the Medical Education Department and to cap it all, his
services rendered from the date of transfer to the date of order of shifting his lien in the Medical Education Department for more than three years,
was also going unaccountable because of the interpretation placed by the respondents on their own Order No. 242 GR (HME) of 1986. It is
submitted that if nothing, his service in the medical Education Deptt,. was liable to be reckoned from the date of his joining there (23.3. 1983)
otherwise it would tent amount to forfeiture of his service rendered in the Govt. for as good as 13 years.
On this premises it is further projected that since private respondents 3 & 4 were admittedly appointed as dental assistants in the Medical
Education Deptt,. after March 1993, they would naturally rank in seniority behind him and not a head of him.
In the reply filed by the official respondents, it is admitted that the petitioner felt dissatisfied with the terms of Govt. Order No. 242GR (HME) of
1986 and made representation to respondent No. 3 and Advisor to Governor, praying for treating the shifting of his lien from the date of his joining
the Medical Education Deptt. But, he was informed wide letter dated 18.9.1986 that it was not acceptable to the Government and in case he
wanted his lien could be shifted back to the Health Department and that he would be reverted back to that department. It is also conceded that the
seniority position of the rival contenders was determined on the basis of the petitioner's service having been reckoned from the date of shifting of
his lien (14.4.1986) and since private respondents 3 & 4 were admittedly appointed prior to this, they were rightly placed a head of him,
Petitioner filed a rejoinder to the reply filed by the respondent which is more by this way of a repeat exercise than anything else. He, however,
explained in this that since there was no post of Dental Assistant available in the Health Deptt. at the relevant time, therefore, he could not exercise
his option of returning to that department.
In the circumstances all that remains to be seen is: whether petitioner's shifting of lien should date back to his joining in the Medical Education
Deptt. as a consequence of his transer to this department vide Govt. Order No. 193 of 1986 or from the date his lien was formally shifted by
Govt. Order No. 242GR (HME) of 1986 dated 14.4.1986?
It transpires that the petitioner was being shuttled from Health Deptt. to medical Education Deptt. as comes out from his second writ petition
(SWP 444/93) where in he questions his repatriation to the Health Deptt. After all there is a limit to cavalier approach to the treatment meted out
to an employee. So long as his service conditions are governed by the rules and regulations, he could not be treated as a rolling stone and pushed
around at whim and caprice in disregard to the prejudice that may be liable to be caused in the process. Admittedly, the petitioner was borne on
the Health Department and was transferred to the Medical Education Deptt. by govt. Order No 23.3.1983 even though his lien was directed to be
retained in the Health Department. He should have then figured in the seniority list of the Health Department to become claimant to his future
promotional prospects. But, once that was not done and he continued to render his services in the ME Department from 23.3.1983 and went on
clamoring for shifting of his lien to this department and if it took the state respondent more than 3 years to take action in his case, how could he be
held responsible for this and deprived of his services in the ME Deptt. for as good as three years. If it took the Government three years to decide
on shifting of his lien, it should have followed as a natural corollary that such shifting would take effect from the date he joined in the M.E
department . Otherwise it would make no sense to treat him in that department from the date of the order which shifted his lien which was passed
three years later resulting in forfeiture of his service for these three years. The reform, by no logic, could he be treated to be in the M.E. deptt. from
14.4.1986 when his lien was shifted or his services reckoned from that date. He was entitled to be treated in service in this department from
23,3.1983 and his order of shifting the lien he became a member of the Medical Eduaction (subordinate) Service from this date and his seniority in
this service was also to be computed from this date. As such if private respondents 3 & 4 were appointed after him, they would naturally rank
junior to him . It is not the case of the State respondent that any rule, law or circular governing such cases warranted his placement after the private
respondents.
In the result, I hold that the petitioner was entitled to be treated in service of the Medical Education Deptt. from 23.3.1983 when he joined there
pursuant to Govt. Order No. 186HME of 1983 for all purposes related to his service benefits including the determination of his seniority etc. and
that his seniority was liable to be computed from this date and not from the date of order shifting his lien was passed (14.4.1996).
Accordingly this petition succeeds and the impugned seniority list circulated by respondents no.2 dated 17.5.1989,shall stand quashed to the
extent indicated. The official respodents are directed to take steps to determine the seniority of the petitioner and private respodents 3 and 4 in
accordance with rules.
(SWP): (444/93)
Petitioner's second petition (swp 4447 93) was the offshoot of his first petition. It appears that during the pendency of his first petition, he was
again asked to go back to the Health Deptt. vide Govt. order no. 290HME of 1993 dated 23.3.1993..He questions this on the ground that once
he had been absorbed in the Medical Education Deptt., he could not be repatriated to the Health Deptt. Without his consent and that this was
designed to deprive him of the promotional benefits in the M.E. Deptt. The impugned order in this writ petition was stayed on 8.4.1993. But,
during the pendency of this petition, petitioner was promoted as Prosthetic Mach (Dental) by order no.852 of 1994 dated 30.11.1994 which is
suggestive of the fact that the staterespodent had allowed him to remain in the Medical Education Department taking the sting out of his case. Even
otherwise, his plea for retention in the Medical Education Deptt. was liable to be accepted because once he was absorbed in this department, he
could be sent to a different department only with his consent or on deputation. This was not the case and there fore, the impugned action in this
writ petition in any case would not sustain.
In the premises this petition is disposed of by quashing Govt. order no.290 of 1993 dated 23.3.1993 in so far as it redirects petitioner's transfer to
the Health Department. But, this shall not prevent the staterespodent from dealing with the petitioner's posting in accordance with rules.