Dr. Kirpa
Ram Mathur Vs. State of U.P. & Ors [2001] Insc 529 (8 October 2001)
M.B.
Shah & R.P. Sethi Sethi,J.
Leave
granted.
Aggrieved
by the order dated 10.12.1998 (Annexure P-7) passed by respondent No.1, the
appellant herein filed a writ petition in the High Court challenging the
fixation of his seniority by showing respondent No.4 as senior than him.
Finding no merit, the High Court dismissed the petition filed by the appellant
vide the order impugned in this appeal. Alleging that the order of the High
Court was against law and the Uttar Pradesh Regularisation of Ad-hoc
appointments (on posts within the purview of the Public Service Commission)
Rules, 1979, (hereinafter referred to as "the Rules") the appellant
has contended that the order of the Government (Annexure P-7) and the impugned
judgment of the High Court are liable to be set aside.
The
facts leading to the filing of the present appeal are that the appellant and
the respondent No.4, along with others, appeared at the interview held by the
Selection Committee appointed by the respondent No.1 for the ad-hoc appointment
on the post of Lecturers in Pathology in the State Medical Colleges of Uttar
Pradesh. He claimed that as he was higher in merit and ranking than the
respondent No.4, his appointment letter No.3496-Sec.5-RA-18-84/Medical Sec.I
U.P. Govt. dated 4.5.1984 was issued and as respondent No.4 was allegedly lower
in merit, letter of appointment No. 3497-Sec.5-RA-18-84/Medical Sec.I U.P.Govt.
dated 4.5.1984 was issued in his favour. Issuance of letter bearing No.3496
being first in time than the letter No.3497 issued in favour of respondent No.4
is stated to be the reflection of the merit determined by the Selection
Committee after the interview.
Posts
for Lecturer in Pathology in the State Medical Colleges of Uttar Pradesh were
advertised by the Public Service Commission of the State in January, 1989 for
the purpose of regular appointment to the aforesaid post. Both the appellant as
well as the respondent No.4 applied for the same and their candidature was
recommended by the Public Service Commission. On 7.8.1989 the Rules were issued
which applied to persons like the appellant and the contesting respondent.
On 31st December, 1990, the respondent-State regularised
services of both the appellant and respondent No.4. In the order (Annexure P-4)
it was mentioned that inter se seniority of the persons mentioned in the list
would be decided under the Rules later on. As the name of the appellant was
allegedly wrongly shown below respondent No.4, he is stated to have made a
representation to the State Government which was accepted vide order
No.282/Sec.I-5-93-Code-14-Medical Sec.I Govt. of U.P. Lucknow dated 21.7.1993
by placing the appellant above the respondent No.4 in the seniority list.
Aggrieved by the aforesaid order, the respondent No.4 filed Writ Petition
No.3609 of 1995 in the High Court which was allowed by a Division Bench on
24.4.1997 (Annexure P-6). After quashing the order dated 21.7.1993 (Annexure
P-5), the High Court directed that a fresh seniority be determined in
accordance with the Rules, particularly Rule 7(2) of the Rules. Consequently,
order impugned in the writ petition (Annexure P-7) dated 10.12.1998 was issued
which was challenged by the appellant and his petition dismissed vide the
judgment impugned in this appeal.
The
facts being not seriously disputed, the controversy between the contesting parties
centers around the interpretation of Rule 7(2) of the Rules in the light of
determination of a merit of the parties at the time of selection. Both the
appellant as well as the respondent No.4 claimed that they were shown senior
than the other by the Selection Committee at the time of making the selection.
The appellant has contended that as the respondents have not placed before this
Court the exact numbers assigned to the appellant and the respondent No.4 at
the time of making selection, he having been issued appointment letter first in
point of time be deemed to have secured better merit and ranking in the
selection after interview. He has also contended that as the respondent-State
has not complied this Court's order dated 26.2.2001, it should be presumed that
the State has withheld the requisite record allegedly showing respondent No.4
better in merit and ranking. Vide order dated 26.2.2001, this Court had
directed the State of Uttar Pradesh to produce the minutes of the proceedings
of the Selection Committee for the year 1989. In response to the direction,
affidavit of Shri R.S. Dubey, Special Secretary, Medical Education of respondent-State
has been filed stating therein that:
"That
in obedience of the orders passed by this Hon'ble Court on 08.01.2001 and
19.09.2001 a thorough and deligent search of the "record of the
marks" obtained by the petitioner and respondent No.4, during their
selection held on 29.03.1984 was made both at the level of the Secretariat and
Directorate General of Medical Education but, no "records of marks"
obtained by the petitioner and the respondent No.4 at their selection on
29.03.1984 was found.
A
close and careful perusal of the proceedings of the Selection Committee shows
that the Selection Committee evolved the methodology and criteria, applied the
same itself to the candidates appearing before it and itself assigned the order
of merit, to the candidates; no separate marksheet perhaps was prepared.
That
various seniority list were issued by the State Govt. from time to time, which
invariably shows respondent No.4 to be senior to the petitioner and inspite of
circulation thereof the petitioner never challenged the said seniority
lists." Our attention has been drawn to the proceedings of the Selection
Committee held on March 28-29, 1984 for making adhoc appointments of lecturers
in various specialities (Annexure R-1). The Selection Committee meeting was
attended by Director of Medical Education and Training, U.P. (Chairman),
Principal, LLRM Medical College, Meerut, Principal, MIB
Medical College, Jhansi, Joint Director of Medical
Education & Training, U.P. (Member Secretary). In its proceedings, the
Selection Committee has recorded as under:
"In
every specialities two Technical Advisers wre called for the purpose of
selection of the candidates. Their names have been mentioned against each speciality.
In
order to eliminate the possibility of a handicap to a candidate who gets more
than 80% of the total aggregate of 10 subjects of MBBS course, 50 marks have
been allotted for the purpose. Rest of the marks are to be calculated as
follows:
Ist
four positions etc., have been calculated with 10 marks.
a)
Total of the passing marks obtained in all the ten subjects will be made. The
percentage will be thus calculated.
b) Of
this 1 (one) mark perfailure per subject will be deducted. This figure will be
marks obtained out of 50.
2. The
rest of the pattern will be as follows:
a)
MS/MD/Ph.D./Mch/MAMS - 10 marks: 1st attempt - 10 IInd attempt -6 IIIrd attempt
-3
b)
Teaching experience: 10 marks, 3 marks for each year with a maximum of 10
marks.
c)
Research Paper - 5 marks.
d)
Interview - 15 marks.
Marks
are to be rounded off upto Ist decimal place.
In
case one or more candidates are bracketed 2nd decimal will be considered.
The
following candidates were selected by the Committee in the speciality noted
below......
XXX XXX
XXX
PATHOLOGY: STATE MEDICAL COLLEGES:
1. xx xx
2. xx xx
3. xx xx
4. Dr.Rajiv
Kumar Misra
5. Dr.Kripa
Ram Mathur."
The
minutes of the proceedings of the Selection Committee leave no doubt in our
mind that the merit of the candidates appearing in the interview was determined
according to the procedure prescribed and having regard to the marks obtained
by each one of them, their merit was determined. After due process of
selection, the appellant was shown junior than respondent No.4.
Learned
counsel appearing for the respondent No.4 submitted that Vide Annexure R-1, the
Selection Committee had not determined the merit and ranking of the persons
appearing before it but had only mentioned their names at random. It is
contended that if the determination was on merit, the Committee must have
mentioned the numbers obtained by each one of the candidates shown therein.
Referring to Annexure P-5, he has contended as name of Dr.Prem Kumar Singh and Smt.Sneh
Lata are mentioned as junior than the appellant and the respondent, the list
cannot be held as based upon the determination of the merit. The argument
cannot be accepted inasmuch as Annexure P-5 stands already quashed by the High
Court vide it judgment dated 24.4.1997 (Annexure P- 6). The reference to the
procedure adopted for determining the merit by the Selection Committee
unequivocally indicates that the selection was based upon merit and ranking to
the concerned was given accordingly. Merely because the respondent-State has
failed to produce the marks at this belated stage cannot make the selection
process either doubtful or be termed as no based upon the comparative merits of
the candidates appearing before the Selection Committee. The presumption of
genuineness of the official acts done in the due course of performance of the
duties is attracted in the case particularly when the appellant accepted the
position of determination of the merit and ranking for a period of over 8 years
as is evident from Annexure P-5, mentioning that the appellant had submitted
his representation only on 25.11.1992.
While
disposing of Writ Petition No.3609 of 1995, the High Court, on facts found that
the seniority of the respondent No.4 had been changed by completely ignoring
Sub-rule (2) of Rule 7 of the Rules.
After
referring to the Rule, the High Court held:
"The
relevant Rule 7(2) of the Rules envisages that if two or more persons are
appointed together, their seniority inter se shall be determined in the order
mentioned in the order of appointment. Thus, whenever, the question of
determination of seniority arise, this sub-rule (2) of Rule 7 of the Rules
cannot be lost sight of. It appears, may be due to inadvertence or by any
reason, sub-rule (2) of Rule 7 of the Rules has not been taken into
consideration and contrary to that Annexure 1C dated 21.7.1993 has been passed,
which in our opinion, cannot be allowed to stand.
This
legal position cannot be disputed that no employee has a right to promotion,
but he has only right to be considered for promotion according to the Rules
(see Syed Khalid Rizvi v. Union of India, Judgment Today 1992 (Supplementary)
169). This being so, the impugned order, determining the seniority inter se
between the petitioner and the respondent No.3, is hereby quashed...." It
may be mentioned herein that the appellant was a party- respondent in that case
and despite service of notice opted not to file any counter affidavit. It is
also acknowledged that no appeal was filed against the aforesaid order which
attained finality so far as the rival claims between the parties to the
aforesaid writ petition are concerned. The High Court had found the order dated
21.7.1993 to be against facts as well as the Rules.
The
official record also revealed that respondent No.4 was all along treated better
in merit than the appellant and rightly placed senior to him. The appellant wants
this Court to re-appreciate the merit of the persons who appeared before the
Selection Committee at this belated stage afresh merely on the failure of the
respondents to produce the actual marks assigned each one of the candidates.
The arguments appears to be an after-thought besides being stale at this
belated stage.
We do
not find any illegality in the order of the High Court impugned in this appeal
and the order of respondent No.1 dated 10.12.1998 by which respondent No.4 was
shown senior than the appellant. There is no merit in this appeal which is
accordingly dismissed without any order as to costs.
.......................J.
(M.B.
SHAH) .......................J.
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