(Mrs.) Pushpa Vishnu Kumar Gurtu Vs. State of Maharashtra & Ors  INSC
131 (14 February 1995)
N.P. (J) Singh N.P. (J) Sawant, P.B. N.P. Singh, J.;
1995 AIR 1346 1995 SCC Supl. (2) 276 JT 1995 (3) 518 1995 SCALE (1)781
granted in both the SLPs.
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.
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.
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.
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 Medical College, Nagpur, which post she joined on 22.10.198
was the senior most Associate Professor in the said college, in the department
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.
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.
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.
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.
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.
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.
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 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.
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.
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
"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.
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.
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
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.
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, 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.