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PETITIONER: DR. (MRS.) PUSHPA VISHNU KUMAR GURTU

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT14/02/1995

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) SAWANT, P.B.

CITATION:  1995 AIR 1346            1995 SCC  Supl.  (2) 276  JT 1995 (3)   518        1995 SCALE  (1)781

ACT:

HEADNOTE:

JUDGMENT: N.P. SINGH, J.; 1.Leave granted in both the SLPs. 2.The appeal arising out of SLP(C) No.1628 of 1994 has  been filed against order dated 8.7.1993 passed by the Maharashtra Administrative Tribunal, 520 Nagpur  Bench, dismissing the Writ Petition filed on  behalf of the appellant, before the Nagpur Bench of the High  Court of  Bombay  which was later transferred  to  the  aforesaid, Tribunal.    By  the  petition  aforesaid,   the   appellant questioned   the  validity  of  the  seniority  list   dated 29.4.1989,  so far as it changed the position of  respondent No.4  (hereinafter  referred to as  ’the  respondent’)  from Serial  No. 20 to Serial No. 11. The appellant  also  sought quashing   of  the  order  dated  5.7.1989   promoting   the respondent   to  the  post  of  Professor,   Department   of Obstetrics  and Gynaecology, on the basis of  the  seniority list aforesaid by another application filed before the  Tri- bunal. 3.The appellant passed the M.B.B.S. examination in the  year 1967.   She obtained her Post-Graduate Degree in  Obstetrics and  Gynaecology from Allahabad University in  April,  1972. She   was  appointed  as  Lecturer  in  the  Department   of Obstetrics  and  Gynaecology  by a  Government  Order  dated 19.1.1977, at Government Medical College, Nagpur, after  she was selected by Maharashtra Public Service Commission.   She joined  the said post on 11.2.1977. She was appointed  by  a Government  Order dated 6.10.1977, as Reader in the  Depart- ment  of  Obstetrics and Gynaecology at  Government  Medical College, Nagpur, after her selection by the Maharashtra Pub- lic  Service Commission.  She joined the post of  Reader  on 11. 10. 1977 and continued on the said post till 21.10.1981. In the meantime, by a Government Order dated 15.10.1981, the appellant  was appointed as Associate Professor in  the  De- partment  of  Obstetrics and Gynaecology  at  the  aforesaid

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Medical College, Nagpur, which post she joined on  22.10.198 1.  She was the senior most Associate Professor in the  said college, in the department aforesaid. 4.   So  far as the respondent is concerned, she passed  her M.B.B.S. examination in the year 1967 but obtained her Post- Graduate Degree in Obstetrics and Gynaecology in 1975.   She was  promoted  as Reader on 2.7.1979 in  the  Indira  Gandhi Medical  College, Nagpur, which was then under  the  control and   management  of  the  Nagpur   Municipal   Corporation. However,  the  State  Government took  over  management  and control of the Indira Gandhi Medical College w.e.f  1.4.1981 from the Nagpur Municipal Corporation. 5.   A  provisional seniority list of Readers was  published on   21.11.1986  and  objections  were  invited.   In   this seniority list, the appellant was placed against Serial  No. 13, whereas the respondent was placed against Serial  No.20. The date of appointment of the appellant as Reader was shown as 11.2.1979, whereas that of respondent as 2.7.1979. In the final  seniority  list, the position of  the  appellant  was shown  against  Serial No. 14, whereas  that  of  respondent against Serial No.20. It is said that in both the draft  and final seniority lists, it was mentioned against the name  of the respondent that she belonged to the then  Non-Government Institution viz.  Indira Gandhi Medical College under Nagpur Municipal Corporation and her date of appointment as  Reader was accepted as 2.7.1979 because it was on that day, she had been  promoted as Reader in that Institution.  However,  the State   Government  published  another  seniority  list   on 29.4.1989  in which the name of respondent was shifted  from serial No.20 to Serial No. 11 and the date of appointment of respondent was changed from 2.7.1979 to 521 19.1.1977.Thereafter   by  an  order  dated  5.7.1989,   the respondent  was  promoted  to  the  post  of  Professor   of Obstetrics  and  Gynaecology on the basis of  the  aforesaid seniority  list,  The,  alteration of the  position  of  the respondent  in  the  seniority list was  challenged  by  the appellant,  before the High Court, by a Writ Petition  which as already mentioned above, was transferred to the Tribunal. 6.The Indira Gandhi Medical College, Nagpur, which was under the  control  and management of the  Nagpur  Municipal  Cor- poration, had been taken over by the State Government  w.e.f 1.4.1981 and thereafter the State Government was required to refix the seniority of Lecturers, Readers and other teachers of the said college, in terms of Rule 6 of G.R. of 1.4.1981. Rule 6 is as follows:-               "The  seniority  of persons in  the  posts  in               which they are absorbed shall be determined on               the basis of the period of continuous  service               rendered  by them in the  corresponding  posts               under  the Corporation prior to the  appointed               day.   For this purpose, the service  rendered               in  the corresponding posts shall  be  counted               from the date from which the absorbed  persons               would  have been eligible for  appointment  to               the  posts if the recruitment rules  of  Govt.               then   in   force   were   to   govern   their               appointment- " The  recruitment rules for the post of Reader issued in  the year  1972  provides  the qualification for  the  post,  the relevant  part whereof has been reproduced in the  order  of the Tribunal as follows:-               "A  post  graduate degree  in  Obstetrics  and               Gynaecology  such  as M.D., M.S.,  M.O.  of  a               statutory  University  or  M.R.D.O.G.  or  the

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             qualification awarded by the Speciality  Board               of  Obstetrics  and  Gynaecology  (U.S.A.)  or               F.R.C.S./   M.R.C.P.   with   Obstetrics   and               Gynaecology  as  a Special subject or  a  post               graduate degree in Medicine or Surgery of  the               M.R.C.P./  F.R.C.S. qualification with  D.G.O.               for  the  post  of Reader  in  Obstetrics  and               Gynaecology;  and possess experience  for  not               less thin three years of teaching the  subject               concerned  as Registrar or Lecturer or  in  an                             equivalent post in a teaching institution." The  justification,  which has been given on behalf  of  the State, for altering the date of promotion of the  respondent as  a  Reader  from 2.7.1979 to 19.1.1977, is  Rule  6.  The Tribunal  on the basis of Rule 6 aforesaid has come  to  the following conclusion.               "We,  therefore, hold that the  interpretation               of rule 6 by the Govt. is in order and correct               and    are   unable   to   agree   with    the               interpretation of the learned Advocate for the               petitioner, Clearly on the appointed day,  Dr.               Guhe  was a Reader and was absorbed  as  such,               her seniority has to be fixed on the  strength               of  Rule 6 read with the recruitment rules  of               Govt.  for the post of Reader, then in  force.               She has rightly been given the benefit of  her               acquisition of requisite qualifications  (M.D.               in  the year 1975) and continuous  service  in               the  post  from  which  she  could  have  been               promoted  as  a Reader.  It is  obvious  that,               second  part of Rule 6 is clearly intended  to               give  benefit  of continuous  service  in  the               eligibility  grade  for the  determination  of               seniority in the absorbed grade.  These  rules               are  the  rules of merger and  absorption  and               binding  on the Govt.  Because, it is only  on               the  foundation  of these  rules  that  merger               could  take  place.   We  therefore,  find  no               substance  in the arguments of the  petitioner               on  this  count.  Otherwise,  the  edifice  of               merger crumbles." 7.Rule  6  says that seniority of persons in  the  posts  in which they are absorbed shall be determined on the basis  of the  period  of continuous service rendered by them  in  the corresponding  posts  under  the Corporation  prior  to  the appointed  day i.e. 1.4.1981. There is no dispute so far  as the  first part of Rule 6 is concerned.  The dispute  is  in respect  of the second part which says that for the  purpose of  the said rule the service rendered in the  corresponding posts  shall  be  counted  "from the  date  from  which  the absorbed persons would have been eligible for appointment to the  posts if the recruitment rules of Govt. then  in  force were to govern their appointment." Factually, respondent was promoted  as  Reader in the Indira Gandhi  Medical  College, Nagpur, then under the management and control of the  Nagpur Municipal  Corporation  on  2.7.1979.  But  a  notional  and fictional date of promotion as Reader for the purpose of her seniority has been given on the basis of the second part  of Rule  6  w.e.f 19.1.1977 saying that on that  date  she  was eligible  to  be  appointed as Reader  having  fulfills  the qualifications prescribed for appointment of the Reader  re- ferred to above.  According to us the second part of Rule  6 has  not been read in its proper "text and spirit either  by the State Government or by the Tribunal.  In the said Rule 6 emphasis  is not on the eligibility for the post but on  the

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"period  of  continuous  service rendered  by  them  in  the corresponding  posts." In other words, the period for  which the  persons who are being absorbed had rendered  continuous service in the corresponding posts.  Out of such period only that period will be taken into consideration, since when the persons  concerned were eligible to be appointed  under  the recruitment rules of the Government then in force, This  can be illustrated by giving an example.  In one case, a  person without a post-graduate degree might have been appointed  as a  Reader  in a Non-Government College and lie  obtains  the post-graduate  degree  later, Similarly, in another  case  a person  might have been appointed as a Reader without  three years’  experience, as a Registrar or Lecturer in a  private institution.   While  absorbing such person after  the  take over,  only  the continuous service rendered by him  in  the corresponding  post  shall  be  taken  into  account   which commences  from  the  date he fulfilled  all  the  requisite qualifications  for being appointed to the post  of  Reader. Rule  6 does not purport to give any notional  or  fictional seniority  as a Reader.  It need not be pointed out that  if this  interpretation of Rule 6 is accepted the  teachers  of the   non-government  medical  colleges  shall  affect   the seniority  of the persons who had already been appointed  as Readers  in  Government Medical Colleges.  In a  series  of’ judgments of this Court, fixation of seniority by conferring notional seniority has been deprecated.  In this connection, it  will  be  suffice  to  refer  to  the  judgment  of  the Constitution  Bench in the case of Direct Recruit  Class  11 Engineering Officers’ Association  v.  State of  Maharashtra and others     1990  (2)  SCC 715, where it is  stated  that once an incumbent is appointed to a post according to  rule, his  seniority  has  to  be counted from  the  date  of  his appointment.   Even the claim that seniority was  linked  to the  date  of  confirmation  was  negatived.   We  do   not, therefore. understand how any notional seniority could  have been conferred by the State Government with reference to the date  of eligibility, although such person was  not  holding any such post either by direct recruitment or by  promotion. In  the  present case, there is no dispute  that  respondent never held 523 the  post of Registrar in the Department of  Obstetrics  and Gynaecology any time period to 2.7.1979 when the college was under  the  management of the Corporation.  Hence  her  mere eligibility  on  19.1.1977  to be  appointed  as  Registrar, cannot be a ground to antedate her promotion as a Reader, so as  to  affect  seniority of the  appellant,  who  had  been appointed  as a Reader in the Department of  Obstetrics  and Gynaecology  at Government Medical College, Nagpur,  by  the Government  Order dated 6.10.1977 which post she had  joined on II. 10. 1977.  The object of changing the date of senior- ity as Reader, so far as respondent is concerned, appears to be to make her senior to the appellant.  This benefit  could not  have  been conferred on her, even if she was  from  the very  beginning in any of the Government Colleges.   In  the process  of absorption, she cannot affect the  seniority  of those, who were already in the cadre of the State Government as Readers. 8.   Hence, the appeal is allowed and the impugned seniority list, so far it fixes the seniority of the respondent w.e.f. 19.1.1977, is quashed. 9.   The  appeal  arising out of SLP (C) No.  1629  of  1994 which had been filed on behalf of the appellant, questioning the  validity  of  the Order  promoting  the  respondent  as Professor  in the Department of Obstetrics and  Gynaecology,

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on  the  basis  of  the aforesaid  seniority  list  is  also allowed,  The State Government is directed to work  out  the promotion  to  the  post  of  Professor  of  Obstetrics  and Gynaecology  taking  into  consideration  the  case  of  the appellant  and the respondent with reference to their  inter se  seniority  as  determined  above.   In  the  facts   and circumstances  of  the case, there will be no  order  as  to costs. 524