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Bansilal Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 78/80
Judge
Reported in1981WLN(UC)450
AppellantBansilal
RespondentThe State of Rajasthan and ors.
DispositionAppeal dismissed
Cases ReferredDr. Amarjeet Singh v. State of Punjab
Excerpt:
.....cas on 23-4-1966--held, order dated 19-7-1963 is effective from 23-4-1966.;the appellant joined as civil assistant surgeon only on 23rd april, 1966. the appellant can, therefore, be said to have been appointed on the post of civil assistant surgeon only on 23rd april, 1966 and, therefore, his year of substantive appointment can only be 1966 and could not be 1963 as claimed by shri mridul.;an order of appointment may be of three kinds: it may appoint a person with effect from the date he assumes charges of the post; or it may appoint him with immediate effect; or it may appoint him simplicitor without saying as to when the appointment shall take effect. in the said case it has been held that if the appointment is of the first kind, the appointment would be effective only when the person..........of rajasihan issued an advertisement inviting applications for appointment on the posts of civil assistant surgeons. the appellant submitted his application for the aforesaid post of civil assistant surgeon and the selection for appointment on the said port was held by the rajasthan piiblie service commission. on the basis of the recommendations of the rajasthan public service commission, the government of rajasthan issued an order dated 19th july, 1963, whereby j23 persons, including the appellant and dr. g.n. saxena, respondent no. 3, were appointed as civil assistant surgeon on probation for a period of one and a half year with effect from 10th june, 1963 or from the date they take over as civil assistant surgeon. at the time of the aforesaid selection for the post of civil.....
Judgment:

S.C. Agrawal, J.

1 This special appeal has been filed against the order dated 7th January, 1980 pass by the Learned Single Judge in S.B. Civil Writ Petition No. 99/78 where by the aforesaid writ petition tiled by the appellant has been dismissed.

2. The appellant had joined the service of the Government of Rajasthan on January 1, 1960 as Senior Demonstrator in SMS Medical College Jaipur. While the appellant was working as Senior Demonstrators the Government of Rajasihan issued an advertisement inviting applications for appointment on the posts of Civil Assistant Surgeons. The appellant submitted his application for the aforesaid post of Civil Assistant Surgeon and the selection for appointment on the said port was held by the Rajasthan Piiblie Service Commission. On the basis of the recommendations of the Rajasthan Public Service Commission, the Government of Rajasthan issued an order dated 19th July, 1963, whereby J23 persons, including the appellant and Dr. G.N. Saxena, respondent No. 3, were appointed as Civil Assistant Surgeon on probation for a period of one and a half year with effect from 10th June, 1963 or from the date they take over as Civil Assistant Surgeon. At the time of the aforesaid selection for the post of Civil Assistant Surgeon and on the date of issue of the aforesaid order dated 19th July, 1963, the appellant was studying for the M D. course of the University of Rajasthan at Jaipur. The appellant, by his representation dated 30th April, 1963 addressed to the Secretary, Medical and Health Department of the Government of Rajasthan, requested that in the event of his selection for the post of Civil Assistant Surgeon, he may be posted at Jaipur as it would greatly facilitate his studies for the M.D. course. The appellant submitted another similar representation dated 17th June, 1963 to the Secretary, Medical and Public Health Department of the Government of Rajasthan. The Director, Medical Health Services Rajasthan by his communication dated 10th May, 1963 addressed to the Principal, S.M.S. Medical Coliege, Jaipur intimated that the appellant may be informed that there was no post of Civil Assistant Suregon lying vacant at Jaipur. The case of the appellant is that he had submitted another representation dated 9th September, 1963 addressed to the'Secretary, Medical and Public Health Department of the Government of Rij isthan wnerein he referred to the fact that no order for posting of the appellant in p irsuance of the order of appointment dated 19th July, 1963 had been issued and he requested that an order may be issued for posting the appellant in any hospital or dispensary at Jaipur in order to facilitate his further studies The receipt of the aforesaid representation has, however, been denied by the State Government. Thereafter, no further steps were taken by the appellant with regard to his posting in pursuance of the order for aopointment dated 19th' July, 1963. The appellant completed his studies for the M.D. course in October, 1965 and on 11th November, 1965, he addressed a letter to the Secretary, Medical and Public Health Department of the Government of Rajasthan wherein he stated that he was working as officiating Senior' Demonstrator in Pathology at S.M S. Medical College, Jaipur since 1st July, 1960 and that he had passed the M.D. (Medicine) examination in October 1965 and that he had no further chance of promotion m the non-clinical; department with his post graduate qualification in Medicine and he requested that he may be transferred to the post of Civil Assistant Surgeon. There after the State Government issued an order dated 29th December, 1965 where by the appellant was appointed as Civil Assistant Surgeon at General Hospital, Dungnrpur with effect from the date he took over the charge there. The aforesaid order was however, not given effect to and on 20th April, 1966, another order was issued whereby the appellant was appointed as Civil Assistant Surgeon at M.B.S. Hospital, Kota instead of Dungarpur with effect from the date he took overcharge there. In pursuance of the aforesaid order, the appellant joined as Civil Assistant Surgeon at M.B.S. Hospital, Kota, on 2rd April, 1966. While he was working as uivil Assistint Surgeon the appellant was promoted on ad-hoc basis as Junior Specialist by the order of the State Government dated 8th January, 1971. Subsequently, however, by order dated 4th June, 1973, the appellant was reverted to the post of Civil Assistant Surgeon. The appellant filed a writ petition, (S.B. Civil Writ Petit on No. 948 of 1973) in this Court where in he challenged the aforesaid order dated 4th June, 1973 whereby he was reverted from the post of Junior Secialist to the post of Civil Assistant Surgeon but the said writ petition was dismissed by the order of this Court dated 24th August, 1973. By order dated 31st December, 1977, Dr. G.N. Saxena, respondent No. 3, Who had been appointed as Civil Assistint Surgeon by order dated J 9th July, 1963 and whose name was shown below the name of the appellant in the said order and Dr. P.C. Joshi, respondent No. 4 who had been appointed as Civil Assistant Surgeon subsequent to the passing of the order dated 19th July, 1963 were appointed as Junior Soecialists in Medicine for a period of six months or till regularly selected candidates in accordance with the method prescribed under the RajaUhan Medical and Health Service Rules, 1960 were available, whichever was earlier. In the matter of seniority in the cadre of Civil Assistant Surgeon, a final seniority list of Civil Assistant Surgeons as on 26th November, 1963 was issued by the State Government vide notification dated December 15, 1971 published in the Rajasthan Gazette dated 20th April, 1972. In the Said Seniority list, the name of the appellant was shown at serial number 751 whereas the name of respondents No. 3 and 4 were shown at serial numbers 764 and 765 respectively. On 7th October, 1972, another seniority list of Civil Assistant Surgeons, as on 31st December, 1971, was issued and in the said seniority list, the name of appellant was at serial number 456 where as the names of respondents No. 3 and 4 were showi at serial No. 465 and 466 respectively. Subsquently, by order of the State Government dated 16th December, 1975, the appellant was assigned seniority in the cadre of Civil Assistant Surgeon after the batches of 1963 and 1964 selected by the Public Service Commission, AJmer and his name was downgraded to serial No. 634-A in the seniority list for Civil Assistant Surgeons that was issued vide notification dated 7th October, 1972. The appellant filed the writ petition giving rise to the present special appeal on 22nd February, 1978 and in the said writ petition, the apsellant prayed thu the order dated 31st December, 1977 with regard to the appointment of respondents No. 3 and 4 on the post of Junior Specialist may be quashed and respondents No. I and 2 may be directed to consider the case of the appall tnt for appointment to the post of Junior Specialist in Medicine and to appoint him as such and from the date respondents No, 3 and 4 had been appointed with all consequential benefits. In the said writ petition, the appellant also prayed that respondents No. 1 and 2 may be restrained from taking any steals to change the seniority of the appellant and that it be declared that the seniority of the appellant should be as per the order of appointment dated 19th July, 1963 and as assigned in the Beniority list that was published vide notification dated December 15, 1971. In the wit nefitioi aforesaid, thie apiellant has claimed that he had been appointed on the post of Civil Assistant Surgeon by order dated 19th July, 1963 and that the seniority in the cadre of Civil Assistant S irgcon has to be determined on the basis that the appellant had been appointed on the post of Civil Assistant Surge on on 19th July, 1963 and that respondents No. 3 and 4 could not be assigned seniority over the appellant.

3. The aforesaid writ petition was contested by respondents No. 1 and 2 as well as respondent No. 3. In the reply that was filed on bahalf of respondents No. 1 and 2, it was pleaded that the appellant could not claim his seniority in the cadre of Civil Assistant Surgeon from the date of the order dated 19th July, 1963 in as mash as he had not joined the post of Civil Assistant Surgeon in pursuance of the said order and that since the appellant hid joined as Civil Assitant Surgeon only on 23rd April, 1966, he could not claim seniority over respondents DO. 3 and 4 as well as other persons, who had been appointed as Civil Assistant Surgeon in the years 1963 and 1964. Tn the said reoly, it was further stated that the appellant did not himself ivatl of the appointnunt unier the order dated 19th July, 1963 for the reason that at that time he was carrying on his studies for the M.D. course and it did not suit him to join as Civil Assistant Surgeoa in as much as there was no vacancy for the post of Civil Assistant Surgeon at Jaipur and that if he hid joined as Civil Assistant Surgeon in pursunce of the order dated 19th July, 196? he would hive been posted somewhere outside Jaipur and this would have interfered with his studies and further that at the time when the order dated 19th July, 1963 was issued, Jhe appellant was working as Senior Demonstritor and as the pay for the post of Civil Assistant Surgeon was lower than that of Senior Demonstrator, the appellant would have suflfered financial loss if he had joined as Civil Assistant Surgeon.

4. The learned Single Judge by his order dated 7th January, 1980 held that the aooellant could not be considered to have been appointed on the Dis: of Civil Assistant Sirgexi on July 19, 1963 and that the appointed should be treated to hive been apoointei on the post op Civil Assistant Suraeon when he took over charge as Civil Assistant Surgeon at Kota i.e. on 23rd Aoril. 1966, and, therefore, the appellant could not be treated is senior to rcoondents No. 3 and 4 and other appointees of the years 1963 and 1964. Being aggrieved bv the aforesaid order of the learned Singled Judge, the appelant has filed this special appeal.

5. We have h >ard Shri M. Mridul, the learned Counsel for the appellant and Shri A.K. Muthur, the learned Counsel for respondent No. 3, who has entered caveat.

6. The only question which arises for consideration in this special appeal is whether the fixtion of the sentority of the appellant in the cadce the Civil Assistant Surgeon below respondents No. 3 and 4 and persons who were appointed as Civil Assistant Surgeon in 1963 and 1964 is incorrect. The post of Civil Assistant Surgeon forms part of the Rajasthan Medical and Helth Service and the said service is governed by the Rajasthan Medical and Health Services Rules, 1963 (hereinafter referred to as 'the Rules'). Rule 27 of the Rules, provides for seniority and reads as under:

27. Seniority.--Seniority in the Service shall be determined in each category of the Service by the year of substantive appointment.

Provided-

(1) that the seniority inter se of the persons appointed to the Service before the commencement of these Rules and/or in the process of integration of the services of the pre-Reorganisation State of Rajasthan or the Services ofthanew State of Rajasthan ctabli-shed by the State Re organisation Act, 1956, shall be determined modified or altered by the Government on an ad hoc basis.

(2) that if two or more persons are appointed to posts in the same category in the same year, a person appointed by promotion, shall be senior to a person appointed by direct recruitment.

(3) that the seniority inter se of persons appointed to posts in a particular category by direct recruitment on the basis of one and the same selection, except those who do not join service when a vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the Commission under rule 20.

(4) 'that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a lesult of subsequent selection. Seniority Inter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selection shall be the same as in the next below grade.'

(5) that the seniority of a Junior Specialist in the speciality to which he is appointed by transfer under these rules shall be determined from, the date of his appointment in such speciality by transfer.

According to the main part of Rule 27, seniority in the Service is to be determined in each category of the Service by the order of substantive appointment. It is, therefore, necessary to determine the year of substantive appointment of the appellant in the cadre of Civil Assistant Surgeon. According to Shri Mridul the year of substantive appointment of the appellant in the cadre of Civil Assistant Surgeon was 1963 in as much as the appellant was appointed on the post of Civil Assistant Surgeon by order dated 19th July, 1963, We are unable to accept the aforesaid contention of Shri Mridul. The order dated 19th July, 1963 whereby the appellant was appointed on the post of Civil Assistant Surgeon expressly states that the appointment was to be 'with effect from 10th June, 1963 or from the date they take over as Civil Assistant Surgeon'. In other words, according to the said order persons who were not working as Civil Assistant Surgeon on the date of the passing of the said order would be deemed to have been-appointed as Civil Assistant Surgeon from the date they take over as Civil Assistant Surgeon and the order of appointment would be operative from the date of person so joins as Civil Assistant Surgeon. In the present case, there is no dispute that the appellant joined as Civil Assistant Surgeon only, on 23rd April, 1966. The appellant can, therefore, be said to have been appointed on the post of Civil Assistant Surgeon only on 23rd April, 1966 and, therefore, his year of substantive appoinment can only be 1966 and could not be 1963 as claimed by Shci Mridul. The decision of the Supreme Court in Dr. Amarjeet Singh v. State of Punjab 1975 (1) SLR 171 on which reliance has been placed by Shri Mridul, does not lend assistance to his contention that the appellant should be treated to have been appointed on the post of Civil Assistant Surgeon on the date of the issue of the said order i.e. on I9th July, 1963. In Dr. Amarjeet Singtes case (supra), the Supreme Court has pointed out that an order of appointment may be of three kinds : it may appoint a person with efflctfrom the data he assumes charge of the post; or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. In the said case it has been held that if the appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment in the present case, the order dated J9th July, 1963 whereby the appellant was appointed on the post of Civil Assistant Surgeon falls in the first category and, therefore, the said appointment became affective only when the appellant joined as Civil Assistant Surgeon on 23rd April, 1966 and the date of appointment of the appellant on the post of Civil Assistant Surgeon was, therefore, 23rd April, 1966.

7. Shri Mridul has, however, placed reliance on proviso (3) to Rule 27 and has submitted that in view of the said proviso, respondent no 3, could not be assigned a place higher than the appellant in as much as the appellant and respondent No. J had both been appointed as Civil Assistant Surgeons by direct recruitment on the basis of the same selection and their seniority had to be determined on ihe basis of the order in which they had been placed in the list prepared by the Public Service Commission under Rule 20 and as, in the said list, the appellant was placed above respondent on. 3, the appellant could not be shown junior to respondent No. 3. In this context it may be observed that the words 'except those who do not join Service when a vacancy is offered to them' used in proviso (3) indicate that the benefit of the proviso cannot be availed by a person who does not join service when a vacancy is offered to him. The appellant can invoke the said proviso only if he can show that he does not fall within the aforesaid exception clause. According to Shri Mridul, it cannot be said that the appellant had failed to join service when the vacancy was offered to him because the failure to join service could trise only after the posting order had been issued in pursuance of the order dated 19th July, 1963 and since no posting order was issued to the appellant, it could not be said that the appellant had failed to join service when a vacancy was offered to him. We are unable to accept the aforesaid contention of Shri Mridul. It is established from the record that at the time when the appellant was selected by the Rajasthan Public Service Commission for the post of Civil Assistant Surgeon in 1963, the appellant was continuing his studies for the M. D course and he wanted that he may be posted at Jaipur and he had made a request to the effect in his leprssent-ations dated 30th April, 1963 and 17th June, 1963 submitted before the issue of the order of apoointment dated 19th July, 1963. The said request of the appellant could not be accepted as their was no vacancy on the post of Civil Assistant Surgeon at Jaipur. The appellant kept quite for a period of more than two years and continued his studiej for the M. D. course till he passed the M. D. examination in October, 1965 and soon thereafter, he sent the letter dated 11th November, 1965 wherby he requested that he should be transferred to the post of Civil Assistant Surgeon ss he had no future chance of promotion in the non-clinical department of Pathology in which he was working at that time, ft can not also be ignored that the postofseinor Demonstrator on which the appellant was working at the time when the order of appointment dated 19th July, 1963 was issued carried higher scale of pay than the pay for the post of Civil Assistant Surgeon in as much as the appellant himself in para 8 of the writ petition has stated that the pay scale of Demonstrator started at Rs 285/- while that of Civil Assistant Surgeon started at Rs. 225/-. Moreover, at the time of the the passing of the order appointing the appellant on the post of Civil Assistant Surgeon in 1963, there were departmental restrictions on further studies, like, M.D and a person who had not done rural service for three years was not given permission for M.D. etc. end if the petitioner had joined as Civil Assistant Surgeon, he would have been required to obtain permission from the Directorate and would have been required to do rural service for three years before he could proceed with his studies for the M.D. course. Taking into consideration the circumstances referred to above, we are of the opinion that the appellant deliberately did not avail the appointment on the post of Civil Assistant Surgeon offered to him by order oated 19 th July, 1963 and did not approach the Director of Medical and health Services or the State Government for obtaining posting orders and he approached the authorities concerned for posting orders only in November, 1965 after he had completed his studies for the M.D. course. In the circumstances, it can be said that the appellant did not join service when the vacancy had been ofered to him in 1963 by oraer dated 19th July 1963 and he is not entitled to invoke the provisions of proviso (3) to Rule 27 to claim seniority over respondent No. 3 who joined service in 1963 in pursuance of the order dated 19th July, 1963.

8. We are in agreement with the order of the learned Single Judge dismissing the writ petition of the appellant and we find no reason to interfere with the same. The special appeal is, therefore, dismissed summarily.


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