Sailendra Nath Goswami vs Mukul Chandra Das and Others

A.K. Patnaik, J.—This is an appeal against the common judgment and order dated 17.12.93 of the learned Single Judge in Civil Rule Nos. 1090/93,1216/93 and 1726/93.

The undisputed facts as indicated in the impugned judgment of the learned Single Judge are mat Respondent No. 1, Dr. Mukul Chandra Das was appointed as a Registrar with effect from 17.5.73 in the Guwahati Medical College, Guwahati. The Respondent 1A, Dr. Prabinendra Nath Nobis was appointed as a Registrar with effect from 28.11.74 in the Assam Medical College, Dibrugarh. The Respondent No. 1B, Dr (Mrs) Hasna Hana Choudhury was appointed as a Registrar with effect from 14.11.1974 in the Silchar Medical College, Silchar. The Appellant, Dr. Sailendra Nath Goswami was appointed as Antenatal Medical Officer-cum-Lecturer equivalent to Registrar with effect from 1.9.76 in the Silchar Medical College. Thereafter, the post of Antenatal Medical Officer held by the Appellant was upgraded as Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor in the Obstetrics & Gynaecology Department (for short, "O&G Department") in the Silchar Medical College by notification dated 11.10.85 and simultaneously by notification dated 11.10.85 the Appellant was promoted temporarily and until further orders and appointed to officiate as Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor of Gynaecology (under O&G Department) in the Silchar Medical College, Silchar. In the said notification dated 11.10.85 appointing the Appellant to officiate as Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor (Gynaecology), it was expressly stipulated that the Appellant would have no claim of seniority and promotion in the main stream of the O&G Department in future. Aggrieved by the said promotion of the Appellant to the rank of Assistant Professor of Gynaecology, the Respondent No. 1 submitted a representation claiming that he being senior to the Appellant ought to have been offered the upgraded post No orders however appear to have been passed on the said representation of the Respondent No. 1, but he was promoted and appointed to officiate in the post of Assistant Professor of O&G Department on and from 28.8.86. Thereafter, the Respondent No. 1A was promoted and appointed to officiate in the post of Assistant Professor on and from 24.1.87 and the Respondent No. 1-B was promoted and appointed to officiate in the post of Assistant Professor on and from 28.11.87. The said promotions of Respondent Nos. 1, 1A and IB in the posts of Assistant Professor of O&G Department in the Medical Colleges of Assam were regularised with retrospective effect from the date of taking over charge as Assistant Professor on the recommendation of the Assam Public Service Commission by order dated 2.8.90. Thereafter, a notification dated 8.2.91 was issued by the Government of Assam in the Department of Health & Family Welfare (B) approving a provisional gradation list of Assistant Professors of O&G Department in the Medical Colleges of Assam. In the said notification, it was stated that the gradation list was circulated for information of all concerned and objections, if any, were to be submitted within 30 days of the date of publication of the gradation list. The Respondent Nos. 1, 1A and IB were shown in the 2nd, 3rd and 4th position respectively while the Appellant was shown in the 8th position in the seniority list of Assistant Professors of O&G Department as on 5.2.91. The promotion of the Appellant to the upgraded post of Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor of O&G Department in the Silchar Medical College was also regularised with effect from the date he took over the charge on the recommendation of the Assam Public Service Commission by notification dated 9.5.91. In the said notification dated 9.5.91 of the Government of Assam, Health & Family Welfare (B) Department, however, it was stipulated that the regular promotion of the Appellant to the post of Antenatal Medical Officer-cum-Lecturer of O&G Department was on the same condition as envisaged in the notification dated 11.10.85 by which he was initially promoted to the post of Antenatal. Medical Officer-cum-Lecturer of O&G Department. On 5.5.93 the Government of Assam, Health & Family Welfare (B) Department issued a notification deleting the condition in the notification dated 11.10.85 under which the Appellant was promoted and appointed as Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor of O&G Department that he would have no claim of seniority and promotion in the main stream of O&G Department in future.

On 5.5.93, the Respondent No. 1 also filed a writ petition numbered as Civil Rule No. 1090/93 and the learned Single Judge of this Court while issuing Rule passed an interim order directing that the posts of Assistant Professor in O&G Department in the Medical Colleges of Assam would not be filled up until further orders. The said interim order however was vacated on 11.6.93 in Misc. Case No. 318/93. Soon thereafter, by notification dated 17.6.93 the Appellant was promoted temporarily and until further orders for a period of one year only and appointed to officiate as Associate Professor of O&G under Regulation 4(d) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951, with effect from the date of taking over charge and posted in the Silchar Medical College, Silchar. The Respondent No. 1 amended his writ petition in Civil Rule No. 1090/93 and challenged the aforesaid notifications dated 5.5.93 and 17.6.93. The State-Respondents did not file any counter- affidavit but die learned Government Advocate produced the records before the learned Single Judge at the time of hearing of the writ petition. The Appellant who was the Respondent No. 4 in the writ petition filed his counter-affidavit. The aforesaid Civil Rule No. 1090/93 was heard along with Civil Rule Nos. 1216/93 and 1726/93 filed by the Respondents No. 1A and 1B respectively and by the common impugned judgment dated 17.12.93 the learned Single Judge allowed the three writ petitions and set aside the orders/notifications dated 5.5.93 and 17.6.93. Aggrieved by he said judgment and order of the learned Single Judge, the Appellant has filed the present writ appeal.

At the hearing of the appeal, Mr. K.H. Choudhury, learned Counsel for the Appellant, submitted that the order/notification dated 5.5.93 was issued by the Government for the purpose of restoring the seniority of the Appellant in the rank of Assistant Professor. He explained that the Appellant was promoted to the rank of Assistant Professor by notification dated 11.10.85 much before the Respondent Nos. 1, 1A and 1B were promoted to the post of Assistant Professor. This would be clear from the gradation list circulated by notification dated 8.2.91 of the Government of Assam, Health & Family Welfare (B) Department in which it has been shown that while the Appellant was appointed as Antenatal Medical Officer-cum-Lecturer equivalent to the rank of Assistant Professor on 14.10.85, the Respondent Nos. 1, 1A and 1B were promoted as Assistant Professors in August, 1986 25.1.1987 and 20.11.1987 respectively. According to Mr. Choudhury, therefore, it was very unfair on the part of the Government to have retained the condition in the notification dated 11.10.85 that the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future. He further submitted that the letter dated 11.10.85 of the Government of Assam, Health and Family Welfare (B) Department to the Director of Medical Education upgrading the post of Antenatal Medical Officer under the O&G Department in Silchar Medical College, Silchar to that of Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor did not contain any such stipulation and, therefore, it was not proper on the part of the authorities to have made the stipulation in the notification dated 11.10.85 that the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future. Mr. Choudhury vehemently argued mat though in the gradation list circulated by notification dated 8.2.91 of the Government of Assam, Health and Family Welfare (B) Department the position of the Appellant in the seniority list of Assistant Professors was shown as junior to Respondent Nos. 1, 1A and 1B, the Appellant had submitted a representation dated 14.2.91 objecting to the fixation of interse seniority in the said gradation/seniority list circulated under me ratification dated 8.2.91, but unfortunately the learned Single Judge has held that the said representation dated 14.2.91 was not an objection against the fixation of interse seniority in the rank of Assistant Professor under the notification dated 8.2.91 and has further held that the Government also has not considered the said representation dated 14.2.91 as an objection to such fixation of interse seniority by notification dated 8.2.91. Mr. Choudhury further argued that it was only on account of said representation dated 14.2.91 of the Appellant that the order/notification dated 5.5.93 was issued by the Government deleting the aforesaid condition from the notification dated 11.10.85 that the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future. He further pointed out that after the order/notification dated 5.5.93, the Government of Assam, Health & Family Welfare (B) Department also issued a notification dated 4.12.93 deleting the condition in notification dated 9.5.91 under which the Appellant was regularly promoted as Assistant Professor on the recommendation of the Assam Public Service Commission that the promotion would be on the same condition as envisaged in the notification dated 11.10.85, but this notification dated 4.12.93 has not been challenged by the Respondents in their respective writ petitions. Mr. S.S. Dey, learned Counsel for the Respondent No. 1, Mr. A. Choudhury, learned Counsel for the Respondent No. 1A and Mr. B.K. Sharma, learned Counsel for the Respondent No. 1B, on the other hand, supported the impugned judgment and order of the learned Single Judge and the reasons given therein for quashing the notification/order dated 5.5.93.

On a perusal of the impugned judgment and order of the learned Single Judge, we find that the learned Single Judge has taken a view that since the Respondent Nos. 1, 1A and IB were senior to the Appellant in the cadre of Registrar, O&G, promotion of the Appellant to the upgraded post of Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor by notification dated 11.10.85 without considering the cases of Respondents-1, 1A & IB would be arbitrary and discriminatory and in violation of Articles 14 and 16 of the Constitution. Thus, to protect die rights of the Respondents-1, 1A and IB who were senior to the Appellant in the cadre of Registrar, O&G, a condition was stipulated in the notification dated 11.10.85 promoting the Appellant to the post of Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor that he would have no claim of seniority and promotion in the main stream of O&G Department in future. In view of the said stipulation, the Respondents-1, 1A and 1B were kept satisfied and they did not challenge the notification dated 11.10.85 promoting the Appellant to the rank of Assistant Professor and this position remained for long 8 years. After such long 8 years, the Government would cause prejudice to the Respondents-1, 1A and 1B, if it resiled from the said position and deleted the aforesaid condition from the notification dated 11.10.85 that the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future. Such deletion made by the Government by notification dated 5.5.1993 after long 8 years has thus unsettled the settled position and has given rise to various complications, and was arbitrary and unjust and liable to be set aside.

We find no good reasons to differ from the aforesaid views of the learned Single Judge in the impugned judgment. Admittedly, the Respondent Nos. 1, 1A and 1B were senior to the Appellant in the rank of Registrar, O&G. Thus, the Appellant could not be considered for promotion to the rank of Assistant Professor of Gynaecology until the Respondents-1, 1A and 1B were considered for such promotion, rather the promotion of the Appellant to the rank of Assistant Professor before considering the cases of Respondents-1, 1A and 1B for such promotion would be violative of the rights of the said Respondents under Articles 14 and 16 of the Constitution. In the exigencies of public service, however, the Appellant though junior to Respondents-1, 1A and 1B could only be allowed to officiate in the higher rank of Assistant Professor of Gynaecology till regular promotion was made on the basis of recommendation of the Departmental Promotion Committee. But such officiation of the Appellant could not confer any claim or right to seniority over the Respondents-1, 1A and 1B who though senior to the Appellant in the rank of Registrar had not been allowed to officiate in the higher rank of Assistant Professor. It was for this reason that a condition was stipulated in the notification dated 11.10.85 appointing the Appellant to officiate as Antenetal Medical Officer-cum-Lecturer in the rank of Assistant Professor of Gynaecology that the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future. By such stipulation in the notification dated 11.10:85, the rights of the Respondents-1, 1A and 1B under Articles 14 and 16 of the Constitution for consideration for promotion to the rank of Assistant Professor of O&G Department were protected, and, it was not necessary at all for the said Respondents-1, 1A and 1B to challenge the notification dated 11.10.85. But as soon as the said condition was deleted by notification/order dated 5.5.93 of the Government, the rights of the Respondents-1, 1A and 1B under Articles 14 and 16 of the Constitution which were protected by the said condition were straightway affected. Learned Single Judge therefore was right in coming to the conclusion that the deletion of the aforesaid condition by notification dated 5.5.93 of the Government was ex-facie arbitrary and unjust and the said notification was liable to be set aside.

Coming now to the question of seniority between the Appellant and the Respondents-1, 1A and 1B in the rank of Assistant Professor, the case of the Appellant is that he was senior to Respondents-1, 1A and 1B in the rank of Assistant Professor as he was appointed and allowed to officiate as Assistant Professor from 11.10.85 whereas the Respondents-1, 1A and 1B were appointed and allowed to officiate as Assistant Professors much later from 28.8.86, 24.1.87 and 28.11.87. But it has been held by the Supreme Court in Keshav Chandra Joshi and others etc. Vs. Union of India and others, that where the initial appointment is only ad hoc and not according to rules and is made as a stop-gap arrangement, the period of officiation in such post cannot be taken into account for reckoning seniority. In the said decision, the Supreme Court has further observed that the quintessence of the proposition is that the appointment to a post much be according to rules and not by way of ad hoc or stop gap arrangement made due to administrative exigencies and if the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for seniority. The appointment of the Appellant to the rank of Assistant Professor under the notification dated 11.10.85 was not made in accordance with the rules or the administrative instructions inasmuch as the appointment had not been made on the basis of recommendation made by the Departmental Promotion Committee/Selection Committee and on the approval of the Assam Public Service Commission. The said appointment of the Appellant under the notification dated 11.10.85 had been made to meet the administrative exigencies pursuant to the upgradation of the post held by him in the Silchar Medical College. Thus, the period of officiation in the post of Assistant Professor from 11.10.85 will not count towards seniority of the Appellant in the rank of Assistant Professor and, therefore, the Appellant cannot be held to be senior to Respondents-1, 1A and 1B only because he was allowed to officiate in the rank of Asstt. Professor by notification dated 11.10.85 before the said Respondents were allowed to officiate in the rank of Assistant Professor. On the other hand, Respondents-1, 1A and 1B were appointed regularly as Assistant Professors in accordance with the rules on the recommendation of the Departmental Promotion Committee/Selection Committee and on the approval of the Assam Public Service Commission by order dated 2.8.90, whereas the Appellant was appointed regularly in accordance with the rules as Assistant Professor on the recommendation of the Departmental Promotion Committee/Selection Committee and on the approval of the Assam Public Service Commission later, that is by order dated 9.5.91. Mr. K.H. Choudhury, learned Counsel for the Appellant, submitted that the Appellant was selected by the Departmental Promotion Committee/Selection Committee for such regular appointment to the post of Assistant Professor in 1986 whereas the Respondents-1, 1A and 1B were selected for regular appointment to the posts of Assistant Professor by the Departmental Promotion Committee/Selection Committee in the year 1990 and, therefore, the Appellant should be treated as senior to Respondents-1, 1A and 1B in the rank of Assistant Professor. We are unable to accept the said submission of Mr. Choudhury as under the Rules/administrative instructions, regular appointment or promotion to the post of Assistant Professor could be made only with the approval of the Assam Public Service Commission and while the approval was granted for regular promotion of the Respondents-1, 1A and 1B in the year 1990, approval was granted by the Assam Public Service Commission to the regular promotion of the Appellant in April, 1991 by letter dated 19.4.91, annexed to the writ appeal as Annexure-K. Hence, the Respondents-1, 1A and 1B were regularly promoted to the rank of Assistant Professors in accordance with the rules earlier than the Appellant and, therefore, the Respondents-1, 1A and 1B were senior to the Appellant in the rank of Assistant Professor of O&G Department. Thus, even if it is held that the representation dated 14.2.91 of the Appellant was an objection to the fixation of interse seniority in the rank of Assistant Professor of O&G Department by notification dated 8.2.91 of the Government of Assam, Health & Family Welfere (B) Department, the Government could not have possibly allowed the said representation and placed the Appellant above Respondents-1, 1A and 1B in the rank of Assistant Professors in the seniority list. Further, since under law, as discussed above, the Respondents-1, 1A and 1B were senior to the Appellant in the rank of Assistant Professor of O&G Department, the notification dated 5.5.93 and 4.12.93 deleting the condition in the orders of officiating and regular promotion of the Appellant to the rank of Assistant Professor that by such promotion the Appellant would have no claim of seniority and promotion in the main stream of O&G Department in future would have no legal consequence. In our considered opinion, therefore, even if the said notifications dated 5.5.93 and 4.12.93 are not set aside by the Court, the Respondents-1, 1A and 1B would be senior to the Appellant in the rank of Assistant Professor of O&G Department as per law discussed above.

Mr. K.H. Choudhury, learned Counsel for the Appellant, vehemently argued that even if the Appellant was treated junior to Respondents-1, 1A & 1B in the rank of Assistant Professor of O&G Department, the promotion of the Appellant in the rank of Assistant Professor under order dated 17.6.93 could not be quashed as the Appellant had been placed above the Respondents-1, 1A and 1B by the Departmental Promotion Committee on the basis of seniority alone. He referred to paragraph 28 of the impugned judgment in which the learned Single Judge has observed that the records produced before the Court revealed that the Departmental Promotion Committee/Selection Committee in consideration of seniority, merit and experience recommended five Assistant Professors for promotion to the rank of Associate Professor of O&G Department and in the order of preference placed the Appellant above the Respondents-1, 1A and 1B. According to Mr. Choudhury, therefore, since the Appellant was placed above the Respondents-1, 1A and 1B on the basis of his merit and experience, the fact that the Appellant was junior to Respondents-1, 1A and 1B in the rank of Associate Professor would not have in any way altered the recommendation of the Departmental Promotion Committee/Selection Committee placing the Appellant above Respondents-1, 1A and 1B for the purpose of promotion to the rank of Associate Professor of O&G. The aforesaid contention of Mr. Choudhury was also adopted by Mr. B.C. Das, learned Additional Senior Government Advocate, Assam. Mr. S.S. Dey, learned Counsel for the Respondent No. 1, Mr. A. Choudhury, learned Counsel for the Respondent No. 1A and Mr. B.K. Sharma, learned Counsel for the Respondent No. 1B, on the other hand, argued that the Departmental Promotion Committee/Selection Committee placed the Appellant above the Respondent Nos. 1, 1A and 1B because they treated the Appellant as senior to Respondents 1, 1A and 1B in the rank of Assistant Professor.

Mr. B.C. Das, learned State-counsel was not in a position to produce the records of the Departmental Promotion Committee/Selection Committee and the records of the Government relating to the case. The said records however were produced before the learned Single Judge. Paragraphs 22 and 28 of the judgment of the learned Single Judge in which he has discussed about the records of the Government as well as Departmental Promotion Committee/Selection Committee are quoted herein below:

From the records produced by the Government Advocate on the basis of which he made his submission, it appears that while considering the representation of Respondent No. 4 dated 14.2.91, Government of Assam, Personnel ''B'' Department opined that the upgraded post of Antenatal Medical Officer-cum-Lecturer in the rank of Assistant Professor having been redesignated as Assistant Professor of Obstetrics and Gynaecology Department and encadered, although cases of none of the seniors of Respondent No. 4 was considered at die time of promoting him to the upgraded post by order dated 11.10.1985, the promotion was made in the interest of public service and Respondent No. 4 having rendered service in the rank of Assistant Professor from 11.10.85, his seniority in the rank of Assistant Professor should be fixed counting his service from the date of appointment with effect from 11.10.85. It also appears that the Government of Assam in the Health & Family Welfare Department found it difficult to resile from the stand consistently taken all along and to accept the opinion of the Personnel Department and ultimately it was decided to place the matter with the observation of the Personnel Department before the Selection Committee. Thereafter, the Government issued the impugned notification dated 5.5.93.

The records produced reveal that the DPC/Selection Committee in consideration of seniority, merit and experience, recommended five Assistant Professors for promotion to the post of Associate Professor in the Obstetrics and Gynaecology Department, in order of preference as follows:

(1) Dr S.N. Goswami- (Respondent No. 4)

(2) Dr. Mukul Chandra das (Petitioner in Civil Rule No. 1090/93)

(3) Dr. P.N. Nobis (Petitioner in CR No. 1216/93)

(4) Dr (Ms) Hasna Hana Choudhury (Petitioner in CR 1726/93)

(5) Dr. (Mrs) K.L. Mazumdar.

It is clear from para-22 of the judgment of the learned Single Judge quoted above that while considering the representation dated 14.2.91 of the Appellant, the Personnel (B) Department of the Government of Assam had opined that since the promotion of the Appellant had been made in the public interest and the Appellant had rendered service in the rank of Assistant Professor from 11.10.85, his seniority in the rank of Assistant Professor should be fixed counting his service from the date of appointment with effect from 11.10.85 and that it was decided that the matter with the observation of the Personnel (B) Department be placed before the Selection Committee. It is thus clear that the observation of the Personnel (B) Department that the seniority of the Appellant in the rank of Assistant Professor should be counted from 11.10.85 was placed before the Departmental Promotion Committee/Selection Committee. It further appears frompara-23 of the judgment of the learned Single Judge quoted above that the records revealed that the Departmental Promotion Committee/Selection Committee considered not only the merit and experience but also seniority and recommended five Assistant Professors for promotion to the posts of Associate Professor of O&G Department and in the order of preference placed the Appellant above Respondents-1, 1A and 1B. It is therefore difficult to hold that the observation of Personnel (B) Department that the seniority of the Appellant in the rank of Assistant Professor should be counted from 11.10.85 had not been taken into consideration by the Departmental Promotion Committee/Selection Committee while placing the Appellant above Respondents-1, 1A and 1B in the order of preference for promotion to the rank of Associate Professor of O&G Department. Since we have already held that the seniority of the Appellant in the rank of Assistant Professor could not be counted with effect from 11.10.85 and that the Respondents No. 1, 1A and IB who had been promoted on officiating basis on 28.8.86, 24.1.87 and 28.11.87 respectively were senior to the Appellant in the rank of Assistant Professor, placement of the Appellant above Respondents-1, 1A and 1B by the Departmental Promotion Committee/Selection Committee cannot be sustained. The result is that the Appellant could not be promoted to the rank of Associate Professor before the Respondent Nos. 1, 1A and 1B.

Mr. Choudhury, learned Counsel for the Appellant however submitted that by the impugned judgment, the learned Single Judge has set aside the order dated 17.6.93 promoting the Appellant to the post of Associate Professor of O&G Department But on account of the interim orders passed by the Division Bench in the present writ appeal on 11.3.94 directing that the Appellant be allowed to continue as Associate Professor of O&G Department until further orders, the Appellant continued as Associate Professor. Mr. Choudhury further submitted that in the meanwhile the Respondents-1, 1A and 1B have also been promoted as Associate Professors. The dispute, therefore, is only one of seniority between the Appellant and the Respondents-1, 1A and 1B in the rank of Associate Professor. He contended that on these facts, the impugned judgment of the learned Single Judge in so far as it set aside the promotion of the Appellant to the post of Associate Professor of O&G Department should be set aside.

Since the Respondent Nos. 1, 1A and 1B have also been promoted to the posts of Associate Professor of O&G Department in the meanwhile and the dispute between the said parties which remains is one of seniority only, we hold that by virtue of the impugned judgment of the learned Single Judge setting aside the order dated 17.6.93 of the Government promoting the Appellant to the post of Associate Professor, the Appellant will not be reverted to the rank of Assistant Professor but will be treated as junior to Respondents-1, 1A and 1B in the rank of Associate Professor of O&G Department.

With the aforesaid observations, this writ appeal stands disposed of. However, considering the entire facts and circumstances of the case, the parties shall bear their own costs.