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PETITIONER: DR. J.S. CHHABRA ETC.STATE OF M.P. & ORS.

       Vs.

RESPONDENT: STATE OF M.P. & ORS. ETC.DR. S.M. TIWARI

DATE OF JUDGMENT:       28/11/1996

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF NOVEMBER, 1996 Present:               Hon’ble Mr. Justice S.C. Agrawal               Hon’ble Mr. Justice G.T. Nanavati Mr.  Shyoala   Pappu,  K.B.   Sinha,  Sr.   Advs.,  Rajendra Srivastava,  Niraj  Sharma,  Krishnamurthi,  Pramod  Sharma, ShivSagar Tiwari,  Sakesh  Kumar,  S.K.  Agnihotri,  Amitabh Verma, Prakash Srivastava, Advs. with them for the appearing parties.                       J U D G M E N T The following Judgment of the Court was delivered:                             WITH                CIVIL APPEAL NO. 6592 OF 1995                       J U D G M E N T NANAVATI, J.      These three appeal arise out of the common order passed by the Madhya Pradesh State Administrative Tribunal, Gwalior in T.As. No. 75 and 91 of 1991.      Dr. Tiwari,  Respondent herein, was initially appointed as a  Research Assistant  on  25.3.68.  On  1.12.69  he  was appointed as  a Demonstrator  in  Surgery  in  G.R.  Medical College of  Gwalior. By  a Government order dated 11.8.71 he was appointed  along with  some other  doctors to  officiate temporarily as  a Causualty Medical Officer (Lecturer Grade) in Madhya  Pradesh Medical Service Class II in the pay scale of Rs.360-700. This appointment was subject to his selection by the  Madhya Pradesh  Public Service  Commission. Claiming that as  a CMO he was also doing the work of teaching in the Medical College  and like  other lecturers  he was also paid non-practising allowance,  he made  a representation  to the Government on  17.1.84 for  being absorbed  in the post of a lecturer and  for counting  his seniority as a lecturer from 11.8.71.  As   the   Government   did   not   consider   his representation and  further representations  made thereafter he filed a petition in the Madhya Pradesh High court in 1987 for obtaining  the said reliefs. During the pendency of that petition the services of seven Ad-hoc CMOs (Lecturer Grade), including the  respondent, were  regularised under  the M.P. Regularisation of  Ad Hoc Appointment Rules, 1986 and he was appointed on  the same  post of  temporary basis. On 21.7.89

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the Government  passed an  order declaring him as a lecturer in Surgery.  In view  of these  subsequent developments  the Madhya  Pradesh   High  court   dismissed  his  petition  as infructuous. As his seniority as a lecturer and also because his name was not included in the gradation list of lecturers published on  9.6.89, he first approached the Government and then the High Court by way of a writ petition. That petition was  subsequently   transferred  to  the  Tribunal  and  was numbered as T.A. No. 91 of 1991. Dr. J.S. Chhabra (Appellant in Civil  Nos.6590-91 1995) had applied to intervene in that petition and  his application  was  granted.  Thereafter  on 15.9.90 he  filed a  substantive petition  (M.P. 2265/90) in the High  Court challenging  recognition of  Dr. Tiwari  and others as lecturers. It was also transferred to the Tribunal and numbered as T.A. No.75 of 1991.      The Government  and Dr. Chhabra opposed the application filed by  Dr. Tiwari  on the  ground that appointment of Dr. Tiwari was  as an  ad-hoc CMO  and not  as a lecturer, which post is  required to the filled up by hundred percent direct recruitment through  the Public  Service Commission.  It was also contended  that as  a CMO  Dr. Tiwari  was required  to perform mainly  the casualty duties and only additionally he was permitted  to work  in the  Surgical Ward  and  do  some teaching also.  Dr. Tiwari  had appeared  before the  Public Service Commission  for selection  and appointment  for  the post of  a lecturer in 1977 and 1981 but was not successful. On this  ground they  justified the action of the Government in not  giving him  seniority from 14.8.71 and not including his name  in the  seniority list  of Lecturers  published on 9.6.89.      The  Tribunal   was  much   impressed  by   the   three circumstances namely,  (1) Dr.  Tiwari was  a duly qualified doctor and  right from the date of his appointment as CMO he was assigned  teaching work  (2) he  was paid non-practising allowance, and  (3) the  object behind upgrading the post of CMO on  which Dr.  Tiwari was  appointed. It was of the view that  these   three  circumstances   could  not   have  been overlooked and  the Government  could not  have subsequently changed the  position to  the prejudice  of such  CMOs.  The doctors  who   were  appointed   as  CMOs   could  not  have anticipated then that they would be treated differently from lecturers in  future  in  matters  of  promotion  and  other service benefits.  It held  that  after  regularising  their services  and   giving  them   the  status  of  full-fledged lecturers it  was improper  and unfair  on the  part of  the Government not  to treat  them as  lecturers.  Invoking  the principle of  continuous officiation  it further  held  that such CMOs  became entitled  to seniority  from the  date  of their  continuous   officiation.  The  Tribunal,  therefore, allowed the application filed by Dr. Tiwari and directed the authorities to  give him  seniority in  the post of lecturer with effect  from the  date he  had started  working as  CMO (Lecturer Grade).  The inconsistent  condition regarding the date from which his seniority is to be counted, contained in the order dated 21.7.89, has also been quashed. The Tribunal also directed  the authorities to consider him for promotion to the  post of  a Reader.  T.A. No.75  1991, filed  by  Dr. Chhabra was  dismissed. Therefore, Dr. Chhabra has filed two appeals, one  against the  order whereby  the T.A.  No.91 of 1991 has  been allowed  and  the  other  against  the  order whereby T.A. No.75 of 1991 has been dismissed. The State has also filed Civil Appeal No.6592 of 1995 feeling aggrieved by the order passed by the Tribunal in T.A. No.91 of 1991.      The learned  counsel for Dr. Chhabra has challenged the order of  the tribunal  on the ground that as recruitment to

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the post  of lecturer  is by direct selection through Public Service Commission,  it was not open to the State Government to declare  CMOs (Lecturer  Grade) as lecturers and thus act in contravention  of the  relevant  recruitment  rules.  The tribunal in  upholding the said action of the Government has committed a  grave error  of law.  In the alternative it was contended on  behalf of  Dr. Chhabra and also by the learned counsel appearing  for the  State that CMOs thus regularised and designated  as  lecturers  could  not  have  been  given seniority from  an earlier  date and  the direction given by the tribunal  is not  only  improper  ad  unjust  but  being contrary to  Rule 12  of the  M.P. Regularisation  of Ad hoc Appointment Rules 1986 is also illegal.      From the material placed on record it is now clear, and therefore it  is not  disputed, that the post of lecturer is the lowest  post in  the set up of teaching staff of medical colleges in the State of M.P. and that the posts of CMOs are not a  part of  the cadre of lecturers. It also appears that sometime  in  1971  the  Government  decided  to  strengthen casualty services  in the  medical  college  hospitals  and, therefore, by  a letter  dated 29.4.1971 it informed all the Deans of the medical colleges that it was decided to appoint CMOs in  the scale  of Rs.360-700  (same  as  the  scale  of lecturers) in  each medical  college. By the said letter all the Deans were directed to propose names of suitable doctors possessing post-graduate  qualifications i.e.  M.S./M.D.  in clinical  subjects   with  there   years  experience.  After upgrading 24  posts of CMOs in M.P. Medical Service Class II in the  pay scale  of Rs.  360-700. They  were appointed  to officiate  on   the  said   post   temporarily   and   their appointments  were  made  subject  to  selection  by  Public Service Commission.  Dr. Tiwari  was one of the doctors thus appointed as  a CMO.  Though  the  original  object  of  the Government was  to appoint lecturers in medicine and surgery with post-graduate  qualification on  those upgraded  posts, for some  reasons, it  could not  appoint lecturers on those posts. It,  therefore, appointed  doctors with post-graduate qualifications on  all those  posts. AS  they were till then not recruited  as lecturers  their  appointments  were  made subject to  selection by  the Public Service Commission. But to achieve  the desired  object the Government by its letter dated 20.11.1971  informed all  the  Deans  of  the  medical colleges that  it was  desirable  to  give  such  CMOs  some teaching work  so that  they could  keep in touch with their subject. The  Government also made them eligible for getting non-practising allowance  like other  lectures. Pursuant  to those general  directions Dr.  Tiwari was  assigned teaching work in the department of surgery from December 1971 and was also given  non-practising allowance.  Dr.  Tiwari  appeared before the  Public Service  Commission for  selection  as  a lecturer in 1977 and 1981 but on both those occasions he was not selected  and,  therefore  he  continued  to  be  a  CMO (Lecturer Grade)  on an  ad hoc  and officiating basis right upto the date on which his services came to be regularised.      In the  context of  this factual and legal position the contention raised  on  behalf  of  the  appellant  that  the regularisation of Dr. Tiwari’s services and declaring his as a lecturer  was improper  and  illegal  is  required  to  be considered. As  pointed  out  earlier  when  the  Government upgraded 24  posts of  CMOs that  was done  with a  view  to improve the  casualty services  in the hospitals attached to the medical colleges by appointing lecturers on those posts. For reasons  beyond its  control the  Government  could  not appoint lecturers  or persons selected by the Public Service Commission for  the posts  of lecturers. Though the cadre of

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CMO was different from the cadre of lecturers the Government by  upgrading   21  posts  of  CMOs  desired  to  make  them equivalent to  the posts  of lecturers so that the lecturers could  be   appointed  on  those  posts.  The  qualification required for  appointment on  those upgraded  posts of  CMOs were the  same as  required for appointment as lecturers. If the doctors  who were  appointed as  CMOs on  those upgraded posts had  been selected  by the  Public Service  Commission then the  appointments would  have been  regular  and  there would have  been no  necessity to regularise their services. Because their appointments were not regular and as they were serving since  many years  as ad  hoc CMOs,  their  services deserved to  be regularised.  Therefore, the  Government  in exercise  of   the  power   available  to   it   under   the regularisation  rules   framed  under  Article  309  of  the Constitution regularised  the services of some CMOs. It is , therefore, difficult  to appreciate  how the  action of  the Government in  regularising their  services as  CMOs can  be regarded either  as improper or illegal. Once their services were regularised  they were  required to  be treated as CMOs holding the  posts equivalent  to the posts of lecturers. As the required qualification for both the posts as same and as those CMOs  had also  teaching experience it was open to the Government to redesignate those posts or merge them into the cadre of  lecturers. The  learned counsel  for the appellant Dr. Chhabra  was not able to point out how it was beyond the power of  the Government to declare those CMOs as lecturers. Therefore, the  first contention raised on his behalf has to be rejected.      What is  required to  be considered  next is from which date seniority of Dr. Tiwari whose services were regularised on 4.4.1987  and was  declared/redesignated as  lecturer  on 21.7.1989 should  be considered as a lecturer. Accepting his contention the  tribunal has  granted  him  seniority  as  a lecturer right  from the  date he  started  working  as  CMO (Lecturer Grade)  in 1971.  As against  that the  contention raised on  behalf of  Dr. Chhabra  is that  in any  case Dr. Tiwari could  not have  been granted seniority from the date earlier than  21.7.1989. The  contention raised on behalf of the State  is that  it has  rightly given him seniority from 4.4.1987. The  services of Dr. Tiwari were regularised under the M.P.  Regularisation of  Ad hoc  Roles 1986.. Rule 12 of the said  provides that a person appointed under those Rules shall be  entitled to  seniority only  from the  date of the order of  regular appointment  and shall be placed below the persons already  appointed in  accordance with  the relevant recruitment rules.  Dr.Tiwari  accepted  his  regularisation under those  Rules. Neither at the time of regularisation of his services  nor at  any subsequent  time he challenged the validity of  the said  Rules. Therefore,  he could  not have been given  seniority as  CMO (Lecturer  Grade) from  a date earlier than  the order  of  his  regular  appointment.  The tribunal  was,   therefore,  wrong  in  directing  that  his seniority as  a lecturer  should be counted from the date he has started  working as  CMO (Lecturer  Grade). The tribunal failed to appreciate that the said direction was contrary to the statutory  rules and  for that  reason no benefit on the basis of principle of continuous officiation could have been given to  him. As the services of Dr. Tiwari was regularised on 4.4.1987 and he was appointed regularly from that date on an equivalent post the Government has rightly determined his seniority as  a lecturer  from that date. Merely because the Government declared him as a lecturer on 21.7.1989, it would not have  been fair  and just  to grant  him seniority  as a lecturer only  from that date. The contention to that effect

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raised on  behalf of  the appellant  Dr. Chhabra has thus no substance and has to be rejected.      In the  result the  appeal filed by Dr. Chhabra against the order  of the  tribunal  in  T.A.  No.  75  of  1991  is dismissed. The  appeal filed by him against the order passed by the  tribunal in  T.A. No.  91 of 1991 is partly allowed. Civil appeal No. 6592 of 1995 filed by the State is allowed. However, in  the facts  and circumstances  of the case there shall be no order as to costs.