Dr. A.R Sircar v. State Of U.P And Others

Order

1. Special leave granted.

2. The respondents 4 and 5 Dr B.N Singh and Dr S.N Pandeya were appointed in 1982 and 1983 respectively as Professors of Medicine on ad hoc basis in King George's Medical College, Lucknow. This College was under the management of the Lucknow University. In December 1984, the post of Professor of Medicine was advertised to fill in the vacancy of the year 1982-83 on a regular basis by the direct selection. The appellant as well as the aforesaid two respondents and one Dr S.S Aggarwal were amongst those who applied for the said post. In the meantime the appellant Dr A.R Sircar was also appointed as a Professor of Medicine in the said college on ad hoc basis w.e.f April 2, 1985. Pursuant to the advertisement issued in December 1984 interviews were held on February 24, 1986. It will thus appear that at the date of the interview the appellant as well as respondents 4 and 5 were serving as Professors of Medicine in the college on ad hoc basis. After the interviews were completed the result disclosed that Dr S.S Aggarwal was placed at serial No. 1 and the appellant Dr A.R Sircar at the serial No. 2 on the select list. Respondents 4 and 5 were not selected. Before appointments could issue on the basis of the said selection, the aforesaid two respondents and others filed a Writ Petition No. 1545 of 1986 challenging the selection list prepared pursuant to the interviews and sought an interim order against the implementation thereof. An interim order staying the implementation of the select list was granted by the High Court. Consequently the appointment of Dr Aggarwal or the appellant could not take place. Subsequently in October 1986 one Dr Bhatia was appointed as Professor of Medicine in the said college in the promotees' quota in the vacancy of 1982-83 which was to be filled by a direct recruit. That was because the implementation of the select list had been stayed by the High Court and no other direct recruit could be appointed to the said post. It may also be mentioned that the appellant was not impleaded as a respondent in Writ Petition No. 1545 of 1986 wherein the interim stay against the implementation of the select list was granted. The appellant, therefore, made an application in September 1988 for being impleaded as a party and for vacation of the stay order. While that application was pending, by notification rules for regularisation of ad hoc promotees came to be issued. Soon thereafter Writ Petition No. 1548 of 1986 was dismissed on July 24, 1989. On August 14, 1989 the appellant moved an application in the said writ petition for a direction to the authorities to implement the select list. The High Court directed that Dr S.S Aggarwal be offered an appointment and if he refuses the same, it should be offered to the appellant Dr A.R Sircar. As the matter was being delayed for one reason or the other, the appellant applied to the High Court for appropriate directions, whereupon the High Court ordered that since Dr S.S Aggarwal had not joined within the stipulated time, an order appointing the appellant who was No. 2 on the select list should issue within a week's time. Thereupon an appointment latter dated October 31, 1989 was issued appointing the appellant as Professor of Medicine on the basis of his selection made on February 24, 1986 in the vacancy of 1982-83 meant for direct recruits. In the meantime certain other developments had taken place. Respondents 4 and 5 filed a Writ Petition No. 8424 of 1989 for a direction to the State Government for regularising their services under U.P Regularisation of Ad Hoc Promotions (on the posts within the purview of the PSC) Rules, 1988 and for staying the implementation of the select list. In that petition the High Court ordered that the question of regularisation of the said respondents herein should be considered by the State Government and in the meanwhile any appointment made by virtue of the selection made on February 24, 1986 shall be treated as provisional. It will thus be seen from the above facts that respondents 4 and 5, had competed for the post of Professor of Medicine advertised in December 1984. They had appeared in the interview held pursuant thereto but were not selected, whereas Dr Aggarwal and the appellant Dr Sircar were selected and placed at serial Nos. 1 and 2 in the select list. But for the stay granted by the High Court in Writ Petition No. 1545 of 1986 filed by respondents 4 and 5, the appellant would have been appointed in the vacancy of 1982-83 meant to be filled by direct recruitment: Since that vacancy could be filled by appointing a direct recruit in view of the interim order of the High Court Dr Bhatia came to be appointed by promotion in the said vacancy sometime in October 1986. The first attempt of respondents 4 and 5 having failed on the dismissal of their Writ Petition No. 1548 of 1986, they made a second attempt by filing a Writ Petition No. 8424 of 1989 for regularisation of their appointment under the rules framed in 1988 and for restraining the implementation of the select list. The regularisation of the promotion of respondents 4 and 5 under the 1988 Rules pursuant to the order passed by the High Court in Writ Petition No. 8424 of 1989 was secured in the vacancies of 1983-84 and 1986-87, respectively, prior to the regular appointment of Dr Sircar on the strength of the letter of appointment dated October 31, 1989. Two things become abundantly clear from these undisputed facts, namely, (1) that the appointment of the appellant who was at serial No. 2 in the select list could not be made on account of the interim stay granted by the High Court in Writ Petition No. 1548 of 1986 and even thereafter, for one reason or the other, the authorities took time to clear the appointment, and (2) the regularisation of the promotion of respondents 4 and 5 was effected in the meantime under the 1988 Rules. The question as to whether this regularisation, albeit prior in point of time to the appointment of Dr Sircar, would entitle the respondents 4 and 5 to claim seniority over the appellant Dr Sircar.

3. The King George's Medical College was under the management of the Lucknow University till July 18, 1981 when the same was taken over under the Gandhi Memorial & Associated Hospitals (Taking over) Ordinance, 1981, now Act of 1983. Section 5 of the said Act, inter alia, provided that every whole time officer (including a teacher) or other servant of the University duly employed in connection with the affairs of the institution and serving the institution immediately prior to this take over shall become an officer or servant of the State Government and shall hold office by the same tenure and upon the same terms and conditions and with the same rights as to retirement etc., as he would have held under the University. Section 6 of the Act declared the every officer or other servant whose services were transferred to the State Government under Section 5 shall, notwithstanding anything contained in other provisions of the Act be liable to be transferred and posted to any other medical college or hospital attached to a medical college under the control and management of the State Government. In Writ Petition No. 4919 of 1991 the High Court held that Sections 5 and 6 of the Act were ultra vires Articles 14 and 300-A of the Constitution and as such the entire structure of the Act collapsed. Against this decision the State of U.P filed a special leave petition in the Court and by an interim order dated May 1, 1991 an ex parte stay against the operation and implementation of the High Court judgment was secured subject to certain conditions. The effect of this order was that the provisions of the impugned Act continued to apply.

4. In exercise of powers conferred by the proviso to Article 309 of the Constitution the Governor of the State was pleased to make the Uttar Pradesh State Colleges Medical Teachers Service Rules, 1990 for regulating the recruitment and the conditions of service of persons appointed to the State medical colleges. Rule 20 made provision in regard to the seniority. The relevant paragraph thereof reads as under:

“20. Seniority.— (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order:

Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of order.”

Pursuant to this rule the State Government prepared a provisional seniority list in which the appellant was shown senior to the respondents 4 and 5. After considering the objections received against the proposed seniority in the provisional list, the State Government published a final seniority list on March 23, 1991 wherein also the appellant was shown senior to respondent 4 the name of respondent 5 did not find a place as he had since retired. A further scrutiny of this seniority list was made and the aberrations, if any, were corrected and the same was finalised by the State Government. Even in the finalised seniority list the appellant was shown senior to respondent 4.

5. The High Court by the impugned order came to the conclusion that since the appointment order of the appellant dated October 31, 1989 did not state that his seniority will be counted from a back date nor did it specify any particular date from which it should be effective, the appellant could claim seniority only from the date of his actual appointment. The High Court also came to the conclusion that since the promotion of respondents 4 and 5 under the 1988 Rules had been regularised prior to the appointment of the appellant on October 31, 1989, the appellant could not claim seniority over respondents 4 and 5 notwithstanding the fact that his selection was for filling up the 1982-83 vacancy meant for direct recruits. In this view of the matter the High Court allowed the writ petition and quashed the seniority list insofar as it related to the appellant and respondent 4 and directed that their inter se seniority should be determined afresh in the light of the observations made in the judgment and on the premiss that the age of superannuation for the appellant as well as respondent 4 will be 60 years, subject of course to any direction that this Court may give in the special leave petition pending before it. It may however be mentioned that learned counsel for the State Government informed us in the course of the hearing of this appeal that the State Government had withdrawn the special leave petition and had acquiesced in the judgment of the High Court striking down the Act as ultra vires Articles 14 and 300-A of the Constitution. In view of this development of which the High Court was not seized it was argued that the question of seniority has to be determined as if the provisions of the Act and the Rules made thereunder had no effect.

6. The decision of the High Court is primarily based on the proviso to Rule 20(1) extracted earlier which clearly states that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be the date of his substantive appointment, otherwise the relevant date will be the date of the order of appointment. The order of October 31, 1989 which has been reproduced in the judgment of the High Court does not specify any back date and, therefore, ordinarily the appellant's appointment would be taken as from the date of issuance of the order. But the order clearly states that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter-affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on October 31, 1989, it related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December 1984 was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545 of 1986, the appellant would have been appointed long before the regularisation of promotion of respondents 4 and 5 under the 1988 Rules. Respondents 4 and 5 who were instrumental in seeking the interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong. The dismissal of their petition on July, 24, 1989 goes to show that they had successfully blocked the regular entry of the appellant on a substantive vacancy of the year 1982-83 by filing an untenable writ petition. The interim order passed by the High Court kept the appellant out from securing a regular appointment on a substantive vacancy and in the meantime respondents 4 and 5 by virtue of the 1988 Rules secured regularisation of their ad hoc appointments as Professors of Medicine. It is, therefore, obvious that on the one hand they precluded the appellant from occupying the substantive vacancy of the year 1982-83 and on the other they got their ad hoc appointments regularised under the 1988 Rules. If the intervening stay order had not prevented the appellant's appointment to the substantive vacancy, there can be no doubt that the appellant would have occupied that post earlier in point of time if Dr Aggarwal was not prepared to join. In that case the appellant would have been senior to respondents 4 and 5. One cannot loose sight of the fact that respondents 4 and 5 had competed along with the appellant for selection to the post as a direct recruit but had failed. It, therefore, stands to reason, both in principle and in equity that respondents 4 and 5 are not permitted to take advantage of the situation of their creation. Even if the Act is taken as non-est and the rules framed thereunder are ignored, on first principles also, there is no reason why the appellant should be denied the benefit of appointment in the vacancy of 1982-83 on Dr Aggarwal declining to join. Throughout in the seniority list prepared by the State authorities the appellant was shown to be senior to respondents 4 and 5. The High Court, however, went strictly by the language of the proviso to Rule 20(1) and concluded that since the appointment order of the appellant did not specify the back date, the seniority of the appellant must be reckoned from the date of the order of appointment. But the High Court failed to realise that the selection of the appellant was for the vacancy of 1982-83 meant for direct recruits. The appellant was appointed under the order of October 31, 1989 pursuant to his selection and empanelment in the select list. Therefore, the appellant's appointment must relate to the vacancy of 1982-83. Even the appointment order specifically states that the appointment is ‘on the basis of the selection by direct recruitment’. The draftsman had, therefore, the vacancy of 1982-83 in mind. It is true that the appellant was at serial No. 2 and could claim placement in the slot of 1982-83 only if Dr Aggarwal declined to join. Unfortunately because of the intervening stay order the wish of Dr Aggarwal could not be ascertained till after the dismissal of the writ petition on July 24, 1989. We are, therefore, of the view that the High Court was not right in fixing the date of entry of the appellant into the regular service as October 31, 1989.

7. We have dealt with the question of the appellant's seniority both under Rule 20(1) and also de hors the said Rules on the assumption they are non-est on the statute being declared ultra vires. This is on the premiss that generally decisions taken bona fide under any law or rule in force which is later declared unconstitutional are saved on the de facto doctrine for otherwise even the regularisation of respondents 4 and 5's promotion would have to be invalidated.

8. In the result we allow this appeal and set aside the order of the High Court. We direct the University to fix appellant's seniority between the actual date of appointment of Dr Bhatia and the regularisation of the ad hoc promotions of respondents 4 and 5. The University will determine the point of time when the appellant could have been appointed on the substantive post of Professor of Medicine had there been no prohibition against the implementation of the select list. The University will decide on the premise that had there been no intervening stay against the implementation of the select list prepared pursuant to the advertisement of December 1984 what would have been the date of appointment of the appellant. Needless to clarify that the date so fixed will be between the date of appointment of Dr Bhatia and the date of regularisation of services of respondents 4 and 5. There will be no order as to costs.