Bombay High Court

Dr. Meenakshi Samir Mane And ... vs City Of Nagpur Corporation, ... on 10 November, 2022

Bench: A.S. Chandurkar, Urmila Sachin Phalke

J-wp6033.19.odt                                      1/41


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR


                  WRIT PETITION No.6033 OF 2019


1.   Dr. Meenakshi Samir Mane,
     Aged about Major, Occupation : Service,
     Resident of 634, Utkarsha Model Town,
     Indora Square, Nagpur-440 009.

2.   Dr. Bakul Nikhil Pande,
     Aged about Major, Occupation : Service,
     R/o. 10-A, Ravindra Apartment,
     R.P.T.S. Road, Surendra Nagar,
     Nagpur-440 015.

3.   Dr. Megha Natthulal Jaitwar,
     Aged about Major, Occupation : Service,
     R/o. Plot No.23, Sant Namdeo Nagar,
     Manewada, Road, Nagpur-440 024.

4.   Dr. Samina Anjum Abdul Khalique,
     Aged about Major, Occupation : Service,
     Resident of C/o. Khalique Master,
     Bharat Decorators, Buddhu Khan Ka Minara,
     Gandhibagh, Nagpur.

5.   Dr. Manjusha Vivekanand Mathapati,
     Aged about Major, Occupation : Service,
     R/o. C/o. Dr. Vivekanand M. Mathapati,
     A-1, Balaji Anandam, Flat No.203,
     Behind Bhagwati Lawn, In front of Yashoda
     High School, Renghe Nagar,
     Trimurti Nagar, Nagpur-440 022.

6.   Dr. Sarla Punjabrao Lad,
     Aged about Major, Occupation : Service,
     R/o. Plot No.18, Sant Tukadoji Nagar
     Narsala Road, Dighori, Nagpur.
 J-wp6033.19.odt                                               2/41


7.   Dr. Preeti Deokumar Zararia,
     Aged about Major, Occupation : Service,
     R/o. Plot No.22, Mangalmay Society,
     Manish Nagar, Nagpur.

8.   Dr. Arifa Ali w/o. Syed Hamid Ali,
     Aged about Major, Occupation : Service,
     Near Bajeriya Masjid, Kesri Patel Road,
     Bajeriya, Nagpur.

9.   Dr. Snehal A. Pandao,
     Aged about Major, Occupation : Service,
     R/o. Plot No.51, Teachers, Colony,
     Panjra, Koradi Road, Koradi, Nagpur.

10. Dr. Vasundhara Pundlikrao Charde,
    Aged about Major, Occupation : Service,
    R/o. A 2/2, 7-D, Nirmal Nagari,
    Near Shitla Mata Mandir, Umred Road,
    Nagpur.                                         :    PETITIONERS

              ...VERSUS...

1.   City of Nagpur Corporation,
     Through the Municipal Commissioner,
     Civil Lines, Nagpur-440 001.

2.   Deputy Municipal Commissioner,
     Health Department,
     Nagpur Municipal Corporation,
     Civil Lines, Nagpur-440 001.               :       RESPONDENTS

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri M.V. Samarth, Senior Advocate with Shri V.P. Ingle, Advocate for
Petitioner.
Shri J.B. Kasat, Advocate for Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

CORAM         :    A.S.Chandurkar & Urmila Joshi-Phalke, JJ.

Arguments heard on           : 27th September, 2022.
Judgment delivered on        : 10th November, 2022.
 J-wp6033.19.odt                                                   3/41


ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)

1. By this writ petition the petitioners seeking directions to

the Municipal Corporation to regularize their services in the post of

Medical Officer and to grant them benefits of permanency. They have

also challenged the communication issued by the Deputy Municipal

Commissioner (Health) dated 15.3.2017 by which their representation

to consider them for the benefit of permanency was rejected.

2. The petitioners are qualified doctors. The respondent No.2

Deputy Municipal Commissioner (Health Department) published

advertisement in daily newspaper 'Navbharat' and 'Lokmat' calling

applications to fill up 15 posts of Lady Medical Officer, 16 posts of

Public Health Nurse and 60 posts of Nurse Mid-wife. The petitioners,

who are qualified for the posts of Lady Medical Officer applied for the

said post. As per the advertisement 15 posts of Lady Medical Officer

were shown to be vacant, out of which 2 posts were reserved for

Scheduled Caste, 1 post for Scheduled Tribe, 2 posts for V.J.N.T. and

3 posts for Other Backward Classes and 7 posts were unreserved. As

per the contention of the petitioners on 30.4.2010 there were in all 23

posts of Lady Medical Officer, out of which 16 posts were already

filled in and 7 posts were vacant, whereas there were in all 33 posts of J-wp6033.19.odt 4/41

Medical Officer, out of which 14 posts were already filled in and 19

posts were vacant. The posts of Lady Medical Officer and Medical

Officer are inter-changeable. However, in respect of some

dispensaries which are run specifically for women by the Nagpur

Municipal Corporation, only Lady Officers are to be posted. They

have also relied upon seniority list of Medical Officers as on 1.1.2010.

It is the contention of the petitioners that the said seniority list of

Medical Officers carry the pay scale of Rs.8000-13500/-. Thus, there

are in all 23 sanctioned posts, out of which 15 posts were already

filled in and 8 posts were vacant.

3. The petitioners were selected after following due process

of interview as per the criteria fixed and appointed in July 2010 on

various dates. As per the terms and conditions of the appointment

order they were appointed as a Lady Medical Officer in the

establishment of the Municipal Corporation in the pay scale of

Rs.8000-13500/- along with other allowances. They were appointed

for six months on probation. As per the terms and conditions

incorporated in the appointment order that the Municipal Corporation

had right to remove them from service. One of the conditions was

that the candidates would have to obtain the certificate of having

passed MS-CIT within a period of two years from the date of their J-wp6033.19.odt 5/41

appointment though their appointment was for six months, on failure

to pass MS-CIT their services shall be liable for termination. The

grievance of the petitioners is that although the said appointments in

respect of the all petitioners had been shown to be only for six months

but the condition that the candidates would have to obtain the

certificate of having passed MS-CIT Examination within a period of

two years from the date of their appointment makes it clear that their

appointment was on a permanent post. The said order of

appointment thus makes it clear that the petitioners were appointed

on permanent establishment of the Municipal Corporation, their

appointment was made in clear and vacant posts and their

appointment was made on probation at the first instance for a period

of six months. It is the contention of the petitioners that though

appointment was shown to be temporary, but actually their

appointment was permanent. They had already completed 4 years of

service at the time of filing of the petition and they are still continued

in service. All the petitioners had made representation on 19.5.2014

to the respondents contending that they had already worked for four

years after completion of the period of probation, however, they were

not given any order of confirmation from the date of their first

appointment. Thereafter repeatedly petitioners had made various J-wp6033.19.odt 6/41

representations including representation dated 20.2.2015. But their

representations were neither considered nor rejected by the

respondents. The respondents vide Resolution No.301, dated

20.7.2016 approved the absorption of all the petitioners as Medical

Officer in the pay scale of Rs.15600-29100 with Grade Pay of Rs.5400

giving right to the Municipal Commissioner to take final decision.

Said absorption in view of the Resolution also did not refer the

confirmation of the petitioner but fresh appointment was shown as a

Medical officer. As per the contention of the petitioners that though

the petitioners had made representations to consider their claim to

grant permanency but the respondents issued fresh orders of

appointment on 28.9.2016 ignoring their last six years of service

appointing them on probation for two years with same condition that

they have to obtain MS-CIT certificate within two years. The

petitioners had already obtained said MS-CIT certificate but ignoring

the same again same condition was put on the petitioners and they

were again appointed on probation. When petitioners made several

requests regarding their representation the respondent Municipal-

Corporation by passing order on 15.3.2017 rejected the representation

and communicated with the petitioners that their claim regarding

permanency could not be considered and their service would be J-wp6033.19.odt 7/41

counted from 28.9.2016 as per the subsequent appointment order and

as per the terms and conditions implied therein. Again petitioners

have made their representation on 20.7.2019 to re-consider their

claim but as respondents had ignored the same, petitioners have filed

this writ petition and have challenged the communication dated

15.3.2017 and also claimed declaratory relief that their services be

declared as permanent and that they were appointed on clear and

vacant posts.

4. In response to the notice the respondent Nos.1 and 2

opposed the writ petition on the ground that the writ petition filed by

the petitioners suffers from unexplained delay and laches as the

petitioners have approached this Court after period of more than two

years and therefore, it deserves to be dismissed. It is further

contention of the respondents that the State of Maharashtra by

Government Resolution dated 18.8.1988 approved family welfare

programme setting up 21 Health posts of Type D in the area of

Nagpur Municipal Corporation, Nagpur. The respondent Municipal

Corporation received the communication dated 8.6.2009 from the

Office of State Family Welfare Department, Pune by which they were

directed to re-start 15 Urban Health Centers for which 100% grants

would be provided by the State Government. In view of the aforesaid J-wp6033.19.odt 8/41

communication dated 8.6.2009, the Nagpur Municipal Corporation

issued advertisement for re-starting 15 Urban Health Centers for the

post of Type D. In response to the said advertisement petitioners

applied and undergone the interview. As the petitioners were

successful candidates they were issued appointment orders, wherein it

was specifically mentioned that the candidates appointed on posts of

Lady Medical Officer were appointed temporarily for the period of six

months. Thus, the appointment of the petitioners was on temporary

basis against the Health post Type D. It is further contended that

perusal of the above said appointment order would show that no post

of Lady Medical Officer on the sanctioned establishment of the Nagpur

Municipal Corporation was ever vacant. The petitioners were working

as Lady Medical Officer on Health post Type D since 2010 and

therefore their case has been considered sympathetically as a special

case on their request for absorption on the establishment of the

Nagpur Municipal Corporation on the sanctioned vacant post of

Medical Officer. The proposal to absorb 10 Medical Officers i.e. the

petitioners on the regular establishment of the Corporation as

"Medical Officer" was accorded sanction by the General body of the

Corporation as per Resolution No.301 dated 20.7.2016, as such

petitioners were issued fresh appointment orders on the regular J-wp6033.19.odt 9/41

establishment of the Corporation as Medical Officers as per the order

dated 28.9.2016 and their appointment was not on regular

establishment of the Nagpur Municipal Corporation. It is further

contended by the respondents that the representation made by the

petitioners dated 17.11.2016 was duly considered and rejected on

15.3.2017. The case of the petitioners cannot be equated with that of

Dr. Savita Meshram or Dr. Chhaya Lanjewar as they were appointed

temporarily by the Corporation on their establishment, whereas the

petitioners were appointed on temporary basis on Health post Type D

as per the Scheme. The contention of the respondents is that the

petitioners cannot be equated with that of the petitioners in Writ

Petition No.3973/2012 and Writ Petition No.24/2011 as the issue

involved in the said petition pertains to the notification dated

2.2.2009 which became applicable to the Medical Officers, who had

completed three years of service on 31.12.2007 and who were in

service on 2.2.2009, whereas the petitioners were appointed on

temporary basis on establishment of Health post Type D as per the

Scheme. Thus, it is the contention of the respondents that the petition

is devoid of merit and is liable to be dismissed.


5.             Heard Senior Advocate Shri M.V. Samarth,        for the

petitioners.      He submitted that the action of the respondent
 J-wp6033.19.odt                                                 10/41

Corporation appointing the petitioners again on temporary basis by

mentioning period of probation of two years when the petitioners had

already completed probation period itself is illegal. In response to the

advertisement issued by the Nagpur Municipal Corporation all the

petitioners had applied and after facing interview conducted by the

interview Committee they were selected, they had rendered

unblemished service for more than five years, but they were not

confirmed in service by giving them benefit of permanency. In fact,

after completion of probation, order of permanency was to be issued

which was not issued by the respondents. Therefore, petitioners had

made representation contending that they had already completed

service as a Lady Medical Officer for more than four years, they had

served unblemished service inspite of that they were not considered

and confirmed for permanency. They requested that their claim of

permanency be considered and annual increment as well as benefit of

permanency be granted to them. Said representation was made by

the petitioners initially on 19.5.2014 and thereafter time to time and

lastly on 20.2.2015. The respondent Municipal Corporation passed

Resolution No.301 in their general body meeting and decided to

absorb the petitioners on the post of Medical Officers in the pay scale

of Rs.15600-39100/-. It is further mentioned in the said Resolution J-wp6033.19.odt 11/41

that final decision would be taken by the Commissioner. Thereafter

on 15.3.2017 the representation made by the petitioners was rejected

while assigning the reason that they were appointed on a temporary

posts under the Scheme of Health post Center. No grants are issued

by the Government and therefore the claim of the petitioners could

not be considered. After receipt of the said order dated 15.3.2017

again the petitioners had made representation on 20.7.2019

requesting to re-consider their proposal. As Municipal Corporation

had not considered the same, they had approached the Court. It is

submitted by the learned Senior Advocate that once the probation

period was successfully completed the petitioners could not have been

appointed again on probation. There was no explanation for the same

from the Municipal Corporation. The action of the respondent

Corporation rejecting the representation of the petitioners itself is

arbitrary and illegal. He submitted that some of the Medical Officers

in view of the order passed by this Court were granted the benefit of

permanency though they were appointed initially on a temporary

basis. As the petitioners are similarly situated, they are entitled for

the said benefit. Hence, the writ petition be allowed.

6. In support of the contention he relied upon the case of the

State of Punjab vs. Dharam Singh, reported in AIR 1968 SC 1210, J-wp6033.19.odt 12/41

wherein it is held by the Hon'ble Apex Court that, "Where, the service

rules fix a certain period of time beyond which the probationary

period cannot be extended and an employee appointed or promoted

to a post on probation is allowed to continue in that post after

completion of the maximum period of probation without an express

order of confirmation, he cannot be deemed to continue in that post

as a probationer by implication." He further placed his reliance in the

case of S.B. Patwardhan and another vs. State of Maharashtra and

others, reported in AIR 1977 SC 2051, wherein it is held that, "if the

quota system cannot operate upon their respective confirmation in

that cadre, is there any valid basis for applying different standards to

the members of the two groups for determining their seniority ?

Though drawn from two different sources, the direct recruits and

promotees constitute in the instant case a single integrated cadre.

They discharge identical functions, bear similar responsibilities and

acquire an equal amount of experience in their respective

assignments. And yet Clause (iii) of Rule 8 provides that probationers

recruited during any year shall in a bunch be treated as senior to

promotees confirmed in that year". He also relied upon the decision

of this Court in the case of Nilesh s/o. Namdev Gurav and others vs.

The State of Maharashtra and others, reported in 2021 (6) ALL MR J-wp6033.19.odt 13/41

351. The decisions of the Hon'ble Apex Court in the cases of Rudra

Kumar Sain and others vs. Union of India and others, reported in AIR

2000 SC 2808, Dr. Chandra Prakash and others vs. State of U.P.

reported in AIR 2003 SC 588, Somesh Thapliyal and another vs. Vice

Chancellor, H.N.B. Garhwal University and another, reported in AIR

2021 SC 4158. Relying upon the abovesaid decisions learned Senior

Advocate submitted that as the petitioners had completed more than 6

to 7 years service on the establishment of Nagpur Municipal

Corporation they had rendered unblemished service. Similarly,

situated employees received the benefit of permanency, same

treatment is to be given to the petitioners.

7. On the other hand, learned Advocate Shri J.B. Kasat for

the respondents submitted that the appointment of the petitioners was

in view of Scheme under State Family Welfare Department. Under

the said Scheme advertisement was issued and petitioners were

selected and appointed on post Type D after the interview. They

continued on the said post from their appointment till 28.9.2016.

Considering their services they were sympathetically considered for

absorption and by passing Resolution they were absorbed on the

establishment of Nagpur Municipal Corporation. He further

submitted that in view of the notification dated 2.2.2009 petitioners J-wp6033.19.odt 14/41

cannot be equated with the petitioners in Writ Petition No.3973/2012

and Writ Petition No.24/2011. The petitioners in the said writ

petitions were granted permanency as the said notification dated

2.2.2009 was made applicable to the Medical Officers, who had

completed 3 years of service on 13.12.2007. The petitioners are not

appointed in the said criteria and therefore they were not entitled for

the benefit. He further submitted that if the posts of petitioners are

considered permanent, financial burden would be there on the Nagpur

Municipal Corporation. He further submitted that the petitioners

were appointed on the temporary posts and therefore they are not

entitled for the said benefit. Hence, writ petition deserves to be

dismissed.

8. Heard both the sides. Perused the record. The facts which

are evident on record are that the petitioners are qualified to hold the

post of Medical Officer. The Municipal Corporation, Nagpur had

issued advertisement in daily newspaper 'Navbharat' and 'Lokmat' on

21.7.2009 calling the applications for the post of Lady Medical Officer

and educational qualification prescribed was M.B.B.S. The posts of

Lady Medical Officer advertised were 15. In the said advertisement

applications were also called for the post of Public Health Nurse and

Nurse Mid-wife. In view of the said advertisement petitioners had J-wp6033.19.odt 15/41

applied for the said posts. The respondents had constituted a

Committee for conducting the interview and selection of Lady Medical

Officers. As per the said advertisement 2 posts were reserved for

Scheduled Caste, 1 post for Scheduled Tribe, 2 posts for V.J.N.T. and

3 posts for Other Backward Classes and 7 posts were Open.

Accordingly, petitioners were selected after they undergone the

interview before the Committee. The petitioners were appointed by

issuing appointment orders on various dates in July 2010. As per the

terms and conditions of the said appointment order the appointment

of the petitioners on the post of Medical Officer was temporary for six

months and said six months to be counted from the date of joining.

The respondent Municipal Corporation reserved their right to remove

the candidates from service, if they found the work unsatisfactory. It

is further stipulated in the appointment letter that the candidates have

to pass MS-CIT Examination within two years from the date of

appointment. As per conditions, if the post of Lady Medical Officer

was abolished then the petitioners would be removed from the

service. The relevant terms and conditions are re-produced for

reference.

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9. It is an admitted position that since the date of

appointment till 2014 the petitioners continued in service as Lady

Medical Officers. On 19.5.2014 they had firstly made a

representation that though they had completed more than four years J-wp6033.19.odt 17/41

of continuous service the benefit of permanency was not granted to

them. They requested that their services be considered on the

permanent posts by granting them the benefit of permanency. Prior

to that Municipal Corporation by passing Resolution absorbed them

on the establishment of Health Department of Municipal Corporation.

On 15.3.2017 the representations of the petitioners were rejected by

assigning the reason that they were appointed on temporary posts

under the Scheme of Family Welfare and no grants were received

from the Government as other posts advertised in the same

advertisement are not filled. The petitioners prior to 15.3.2017 were

again appointed on the same post by issuing fresh orders. As per fresh

orders issued to them they were again appointed on probation for a

period of two years with the condition that they had to obtain the

certificate of MS-CIT. The respondent Municipal Corporation raised

the issue that as the petitioners were appointed under the Scheme of

Government of Maharashtra Public Health Department, it was a

temporary post. The Municipal Corporation had considered their

services for more than four years and sympathetically absorbed them

on the establishment of their Health Department. They could not be

equated with the other Medical Officers whom this Court had granted

the benefit of permanency in view of order passed in Writ Petition J-wp6033.19.odt 18/41

No.24/2011. As per the contention of the respondents, the petitioner

who had filed Writ Petition No.24/2011 was considered as a Medical

Officer and benefit of permanency was granted to them in view of

notification dated 2nd February, 2009. The notification dated

2nd February, 2009 shows that said notification is issued by the Public

Health Department Mantralaya, Mumbai in exercise of the powers

conferred by the Proviso to Article 309 of the Constitution of India.

By this notification the rules for one time absorption of the Medical

Officer working on ad-hoc basis were framed. These rules are called

as a Medical Officer in the Maharashtra Medical and Health Services

Group-A (One time absorption of Medical Officer appointed on ad-hoc

basis in Maharashtra) (Special) Rules, 2009. Rule 3.(1) is reproduced

as under :

3.(1) Notwithstanding anything contained in these rules, every such ad-hoc Medical Officer who is continued as such on the date of commencement of these rules shall with effect from such date of commencement be absorbed on the post of Medical Officer with a pay scale specified for the post in the Maharashtra Medical and Health Services."

10. Admittedly the petitioners in the present petition are not

appointed on ad-hoc basis. It is nowhere the contention of the

petitioners that they were appointed on ad-hoc basis. Neither it was

the contention of the Municipal Corporation that petitions were J-wp6033.19.odt 19/41

appointed on ad-hoc basis. It is an admitted position that the

petitioners applied in view of the advertisement issued by the

Municipal Corporation on 21.7.2009. As per the contention of the

respondents said advertisement was issued in view of the letter of the

Government of Maharashtra dated 18th August, 1988 and the

communication from the Family Health Department, Pune asking the

respondents to fill up the posts to work in the Urban Health Centers

for which 100% grants would be provided by the State Government.

After perusal of the advertisement it is apparent that said

advertisement nowhere discloses that posts are to be filled in view of

scheme of the State Family Welfare Department to fill up the posts of

Lady Medical Officer in Urban Health Centers. The recitals of the

advertisement shows that advertisement was issued by the Nagpur

Municipal Corporation to fill up the post in their Health Department

and the posts are Type D. After due process the petitioners were

selected and appointment letters were issued to them. The

appointment letters also disclose that if the post of Lady Medical

Officer on the establishment of the Health Department of Municipal

Corporation were reduced or cancelled then the petitioners would be

removed from service. The appointment letters nowhere disclose that

the appointment of the petitioners was in view of the Scheme run by J-wp6033.19.odt 20/41

the State Family Welfare Department, Pune or under the Scheme of

Urban Health Centers. The appointment letters specifically state that

the petitioners were appointed as Lady Medical Officer on the

establishment of Municipal Corporation in the Health Department.

The subsequent orders of appointment issued by the respondent dated

28.9.2016 also state that 10 Lady Medical Officers were appointed on

vacant posts on the establishment of Municipal Corporation on a pay

scale of Rs.15600-39100/- along with Grade Pay of Rs.5400/-. Thus,

the subsequent appointment orders also nowhere disclose that their

appointment was under the Scheme of Urban Health Centers run by

the Family Welfare Department, Maharashtra State, Pune. The

contention of the Municipal Corporation that the posts on which the

petitioners were appointed were temporary posts created under the

Scheme of Urban Health Centers run by the Family Welfare

Department, Maharashtra State, Pune is not substantiated by any

document. On the contrary, the documents on which the respondents

have relied upon i.e. appointment order dated 14.7.2010 as well as

subsequent appointment order dated 28.9.2016 show that the

appointment of the petitioners was on temporary basis on the

establishment of Health Department of Municipal Corporation. Clause

(5) of the appointment order dated 14.7.2010 of petitioner No.1 -

J-wp6033.19.odt 21/41

Meenakshi Samir Mane and other petitioners of the respective dates

and the order dated 28.9.2016 issued by the Assistant Commissioner

shows that the appointment was on the establishment of Health

Department of Nagpur Municipal Corporation. Paragraph No.3 and

Condition No.4 of the order dated 28.9.2016 are re-produced here for

the reference.

Para (3) :

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fjDr vlysY;k oS|dh; vf/kdkjh ;k inkoj osrueku #-15600&39100

xzsM is 5400 e/;s vf/kd R;koj fu;ekuqlkj feG.kk&;k brj oktoh

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fjDr inkoj ;k vkns'kkP;k fnukadkiklwu [kkyhy vVh o 'krhZuqlkj vLFkk;h

fu;qDr dj.;kr ;srs-

Condition no. (4) :

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jkT; mPp o ra= f'k{k.k eaMG] eqacbZ ;kaps "MS-CIT" ijh{kk mRrh.kZ J-wp6033.19.odt 22/41

>kY;kps izek.ki= fu;qDrhP;k fnukadkiklwu nksu o"kkZaP;k vkar ojksYys[khr

mesnokjkauh izkIr dj.ks vko';d vkgs- vU;Fkk R;kaP;k lsok lekIr gksrhy-

11. The learned Senior Advocate for the petitioners submitted

that initial appointment of the petitioners as Lady Medical Officer was

issued in the year July 2010 on various dates. As per the said

appointment order the probation period was fixed as six months. The

clause (2) of the said appointment order states that Lady Medical

Officers are appointed on a temporary post for six months and said six

months period is the probation period. Subsequent order was issued

on 28.9.2016. Clause (3) of the order dated 28.9.2016 also shows

that the petitioners are appointed as a Medical officers for two years

on probation period. He submitted that after completion of initial six

months' probation period, petitioners continued with service from

2010 to 2016. In the meantime on 20.7.2016 by passing Resolution

bearing No.301 the petitioners were absorbed on the post of Medical

Officer on the establishment of Nagpur Municipal Corporation. He

submitted that when petitioners have completed initial six months'

probation period and continued for 4-5 years after completion of said

probation period no confirmation order was issued to them. There is

no rule as to the maximum probation period and therefore they are J-wp6033.19.odt 23/41

entitled for the benefit of permanency.

Admittedly, the initial appointment orders state that probation

period of the petitioners would be six months. Thereafter the

petitioners were continued in service without any break. The Lady

Medical Officers were absorbed on the post of Medical Officer on the

establishment of Nagpur Municipal Corporation in view of Resolution

dated 20.7.2016. It is submitted by the learned counsel for the

respondent-Municipal Corporation that there are no vacant posts. But

the subsequent order dated 16.9.2017 clearly shows that they were

appointed on the vacant posts of Medical Officers on the

establishment of Municipal Corporation. The order dated 28.9.2016

itself shows that the appointment was being made on vacant posts.

Now question is whether the employees who have already completed

the probation period mentioned in the appointment letter could be

put again on the probation when there is no specific rule regarding

the maximum period of probation. The purpose of any probation is to

ensure that before the employee attains the status of confirmed

regular employee, he should have satisfactorily performed his duties

and functions to enable the authorities to pass appropriate orders. In

other words, the scheme of probation is to judge the ability, suitability

and performance of an officer under probation. The authority has to J-wp6033.19.odt 24/41

consider the suitability of the probationer to the post on which he is

appointed and take a conscious decision whether he is suitable to hold

the post and issue an order declaring that the probationer has

satisfactorily completed his period of probation.

12. The question of deemed confirmation in service

jurisprudence, which is dependent upon the language of the relevant

service rules, has been the subject-matter before the Hon'ble Apex

Court in case of High Court of Madhya Pradesh vs. Satya Narayan

Jhavar, reported in (2001) 7 SCC 161. The Hon'ble Apex Court

considered the issue of deemed confirmation having recorded that one

line of cases is where in the service rules or in the letter of

appointment a period of probation is specified and power to extend

the same is also conferred upon the authority without prescribing any

maximum period of probation and if the officer is continued beyond

the prescribed or extended period, he cannot be deemed to be

confirmed. The other line of cases is that where there is a provision in

the rules for initial probation and extension thereof, a maximum

period for such extension is also provided beyond which it is not

permissible to extend probation. The inference in such cases is that

the officer concerned is deemed to have been confirmed upon expiry

of the maximum period of probation in case before its expiry the order J-wp6033.19.odt 25/41

of termination has not been passed. In Wasim Beg vs. State of Uttar

Pradesh and others, decided on 5.3.1998, wherein the question before

the Hon'ble Apex Court was that whether an employee at the end of

probationary period automatically gets confirmation in the post or

whether an order of confirmation or any specific act on the part of the

employer confirming the employee is necessary, will depend upon the

provisions in the relevant Service Rules relating to probation and

confirmation. It is further held by the Hon'ble Apex Court that, there

are broadly two sets of authorities of this Court dealing with this

question. In those cases where the Rules provide for a maximum

period of probation beyond which probation cannot be extended, this

Court had held that at the end of the maximum probationary period

there will be deemed confirmation of the employee unless Rules

provide to the contrary. In the case of Dayaram Dayal vs. State of

M.P. and another, reported in AIR 1997 SC 3269, held that if in the

rule or order of appointment a period of probation is specified and a

power to extend probation is also specified and the officer is

continued beyond the prescribed period of probation, he cannot

deemed to be confirmed, and there is no bar on the power of

termination of the officer after the expiry of the initial period of

probation. The Hon'ble Apex Court had referred several judgments in J-wp6033.19.odt 26/41

the said decision. In the case before a Constitution Bench of Apex

Court in Sukhbans Singh vs. State of Punjab, reported in (1963) 1

SCR 416. Rule 22 of the relevant rules provided a period of probation

and contained a provision for extension of probation. It was held that

a probationer cannot automatically acquire the status of a permanent

member of a service, unless of course the rules under which he is

appointed expressly provides for such a result. Another judgment

referred was G.S. Ramaswamy vs. I.G. of Police, Mysore, reported in

AIR 1966 SC 175, State of U.P. vs. Akbar Ali Khan, reported in AIR

1966 SC 1842, wherein Court held that on completion of 2 years of

probation as per rules, the officer continued to be a probationer until

an order of confirmation was passed. By following the judgment of

Sukbhams Singh's case, reported in AIR 1962 SC 1711, it was held

that unless the order of appointment or the rule said that at the end of

the probationary period, if no order was passed, the officer continued

to be on probation. The Hon'ble Apex Court also referred the

judgment of Kedar Nath vs. State of Punjab, reported in AIR 1972 SC

373, In Dhanjibhai Ramjibhai vs. State of Gujarat, reported in AIR

1985 SC 603, wherein also the period of probation fixed under the

Rules was two years and there was also provision for extension but no

maximum period was prescribed. The view was taken that there J-wp6033.19.odt 27/41

could be no automatic confirmation at the end of two years and that

the termination after 2 years was valid.

13. The Hon'ble Apex Court in Dayaram Dayal vs. State of

M.P. and another (supra) also discussed the other line of cases where

it is held that while there is a provision in the rules for initial

probation and extension thereof, a maximum period for such

extension is also provided beyond which it is not permissible to extend

probation. Question as to its effect arose before the Constitution

Bench of the Hon'ble Apex Court in State of Punjab vs. Dharam Singh

reported in AIR 1968 SC 1210, on which petitioners placed reliance

wherein the relevant rule there provided initially for a one year

probation and then for extension thereof subject to a maximum of

three years. The petitioner in that case was on probation from

1.10.1957 for one year and was continued beyond the extended

period of three years. The Constitution Bench referred the cases of

Sukbhams Singh and G.S. Ramaswamy and distinguished the

same as cases where the rules did not provide for a

maximum period of probation but that if the rule, as in the case before

them provided for a maximum, then that was an implication that the

officer was not in the position of a probationer after the expiry of the

maximum period. The presumption of his continuing as a probationer J-wp6033.19.odt 28/41

was negatived by the fixation of a maximum time-limit for the

extension of probation. The termination after expiry of four years,

that is after the maximum period for which probation could be

extended, was held to be invalid. This view has been consistently

followed in Om Prakash Maurya vs. U.P. Co-opertive Sugar Factories

Federation, reported in AIR 1986 SC 1844, M.K. Agrawal vs. Gurgaon

Gramin Bank reported in AIR 1988 SC 286 and State of Gujarat vs.

Akhilesh C. Bhargav, reported in AIR 1987 SC 2135, which are all

cases in which a maximum period for extension of probation was

prescribed and termination after expiry of the said period was held to

be invalid inasmuch as the officer must be deemed to have been

confirmed. On the basis of abovesaid decisions Hon'ble Apex Court in

Dayaram Dayal vs. State of M.P. and another (supra) held that it is,

therefore, clear that the present case is one where the Rule has

prescribed an initial period of probation and then for the extension of

probation subject to a maximum, and therefore the case squarely falls

within the second line of case, namely, Dharam Singh's case and the

provision for a maximum is an indication of an intention not to treat

the officer as being under probation after the expiry of the maximum

period of probation. It is also significant that in the case before us the

effect of the rule fixing a maximum period of probation is not whittled J-wp6033.19.odt 29/41

down by any other provision in the rules. The Hon'ble Apex Court in

Municipal Corporation, Raipur vs. Ashok Kumar Misra, reported in

(1991) 3 SCC 325 held that exercise of the power to extend the

probation is hedged with the existence of the rule in that regard

followed by positive act of either confirmation of the probation or

discharge from service or reversion to the substantive post within a

reasonable time after the expiry of the period of probation. If the

rules do not empower the appointing authority to extend the

probation beyond the prescribed period, or where the rules are absent

about confirmation or passing of the prescribed test for confirmation

of probation then inaction for a very long time may lead to an

indication of the satisfactory completion of probation. The period of

probation is subject to extension by order in writing for another

period of one year. Passing the prescribed examination and successful

completion of probation and to make an order of confirmation are

condition precedent. Here in the present case also Hon'ble Apex

Court has referred the case of State of Punjab vs. Dharam Singh

(supra), wherein it is held that the effect of continuing a probationer

in service after the period of probation was completed, there was no

rule for the extension of probation. Thus, in the above case there was

no power to extend the probation in the rules beyond the specified J-wp6033.19.odt 30/41

period. It was held that the initial period of probation of the

respondents ended on October 1, 1958. By allowing the respondents

to continue in their posts thereafter without any express order of

confirmation, the competent authority must be taken to have

extended the period of probation up to October 1, 1960 by

implication. But under the proviso to Rule 6(3), the probationary

period could not extend beyond October 1, 1960. In view of the

proviso to Rule 6(3) it is not possible to presume that the competent

authority extended the probationary period after October 1, 1960, or

that thereafter the respondents continued to hold their posts as

probationers and accordingly it was held that the respondent therein

was deemed to have been confirmed.

14. Thus, it appears that there are two types of cases which

are dealt by the Hon'ble Apex Court. In one line of cases where the

Rules prescribes maximum period of probation, if there is further

provision in the rules for confirmation of such probation beyond the

maximum period, the Courts have made an exception and said that

there will be no deemed confirmation in such cases and the probation

period will be deemed to be extended. In another line of cases it is

held by the Hon'ble Apex Court that where the rules provided for

maximum period of probation beyond which probation cannot be J-wp6033.19.odt 31/41

extended and the Court held that at the end of maximum

probationary period there will be deemed confirmation of the

employee unless rules provide to the contrary.

15. In the present case, the petitioners were appointed initially

in the year 2010 as a Type D Lady Medical Officers initially on

probation for six months on various terms and conditions. One of the

terms and conditions was that they have to obtain MS-CIT certificate

within two years from joining of the service and on failure of the same

they would be terminated from the service. Each petitioner has

obtained such certificate. The petitioners continued to work as a Lady

Medical Officer till 20.7.2016 for six years. On 20.7.2016 Nagpur

Municipal Corporation passed a Resolution bearing No.301 and

absorbed them on the post of Medical Officer on vacant posts on the

pay scale of Rs.15600-39100/- after considering the fact that they had

been appointed on the post of Lady Medical Officer pursuant to the

earlier recruitment process in 2009. Section 50 of the City of Nagpur

Corporation Act, 1948 deals with the appointment of other officers

and servants. In the said provision there is no rule prescribed

regarding minimum or maximum period of probation. Similarly, the

Rules framed under Section 420 read with Sections 49 and 50 also do

not indicate prescription of any specific period of probation while J-wp6033.19.odt 32/41

making an appointment. Thus, in the light of the observations of the

Hon'ble Apex Court, especially observations of the Apex Court

Constitution Bench in State of Punjab vs. Dharam Singh (supra),

wherein it is held that where the rules provided for maximum period

of probation beyond which probation cannot be extended, at the end

of the maximum probationary period there will be deemed

confirmation of the employee unless Rules provide to the contrary. In

this factual backdrop, the case of the petitioners is to be considered.

16. It is crystal clear that as per the initial appointment order

and the subsequent order dated 28.9.2016 the appointment of the

petitioners though temporary but was on the establishment of Health

Department of Nagpur Municipal Corporation. Now, the question

before us is that whether the benefit of earlier service rendered could

be granted to the petitioners in the light of the decision of this Court.

In Writ Petition No.24/2011 the petitioner therein Dr.(Smt) Sarita

w/o. Viral Kamdar was granted the benefit of earlier service

rendered. The facts of the said petitioner's writ petition shows that

she was also appointed on temporary basis for one year and

subsequently she was continued and treated as a Locum candidate,

wherein this Court recorded the finding that the petitioner held

qualification of M.B.B.S. She came to be initially appointed by the J-wp6033.19.odt 33/41

respondents Corporation as Locum. The advertisement was issued

inviting applications for appointment of doctors on contract basis on a

fixed salary of Rs.8,000/- per month. The petitioner was aggrieved by

such an advertisement. This Court held that there were 20 posts of

Medical Officer and only 18 could be filled in. This Court also held

that the petitioner had continued in service prior to 1999 when she

was appointed as a Health Officer on 2nd February, 1996 and came to

be appointed as Medical Officer on 22nd June, 1998. She then was

appointed as Medical Officer on temporary basis for one year. The

status of the petitioner was purely as Locum or contractual

appointment to fill in certain contingency and not a temporary

appointment or ad-hoc appointment under the Rules of 2009. It is

further held by this Court that the petitioner could not be denied the

benefit of Government Resolution dated 2.2.2009 or Rules of 2009.

Admittedly, in the present case petitioners are not the ad-hoc

employees. Considering the fact that the petitioners were not

appointed on contract basis but were appointed by following due

process by advertising the posts by taking the interview etc., such

manner of appointment cannot be ignored. The appointment orders

issued to them shows that they were appointed on temporary basis

initially for six months and thereafter they are continued on the said J-wp6033.19.odt 34/41

posts for almost six years. The appointment order issued initially and

the order issued on 28.9.2016 nowhere states that their appointments

were in view of the Scheme of Urban Health Center run by Family

Welfare Department. Though respondents invited the attention

towards the communication dated 8.6.2009 by Additional Director,

Health Department Family Welfare but said communication is in

respect of 15 Urban Health Centers to be re-started. As per the

contention of the respondents in view of the said communication

advertisement was published, but the advertisement nowhere

discloses that said posts are to be filled in and the candidates have to

work in Urban Health Centers. On the contrary, the advertisement

states that the posts are to be filled in Health Department of Municipal

Corporation i.e. on the establishment of Health Department of the

Municipal Corporation. Admittedly, petitioners have served for more

than 12 years. They are appointed after issuance of advertisement

and after being interviewed. Considering the long and uninterrupted

service on the establishment of Municipal Corporation they are

entitled to the benefit of earlier service rendered. The order issued by

the respondents appointing them again on the probation appears to be

unjustified when they had already completed the period of probation

and also complied with the condition of obtaining of MS-CIT J-wp6033.19.odt 35/41

certificate. Another relevant aspect having material bearing is that

the post of Lady Medical Officer and Medical Officer carry the same

pay scale of Rs.8,000-13,500 with pay band of Rs.15,600-39,100. The

appointment orders initially issued for the post of Lady Medical

Officer as well as the appointment orders issued in 2016 on the post

of Medical Officer are on the same pay-scale. The appointment orders

of 2016 are issued on vacant posts available with the Corporation.

Further, as per the initial order of appointment issued to each

petitioner the MS-CIT examination was required to be passed. Each

petitioner has already passed the said examination after being initially

appointed on the post of Lady Medical officer. Despite that, in the

fresh appointment orders this requirement was again mentioned.

All these aspects definitely support the prayer of the petitioners

of seeking benefit of the initial appointment and subsequent

continuation for all these years.

17. Another issue raised by the respondents is that the writ

petition deserves to be dismissed as it suffers from delay and laches.

Admittedly, the representation of the petitioners rejected on

15.3.2017. Thereafter, again petitioners had approached to the

Municipal Corporation for re-considering their claim. Admittedly, no

orders are passed by the respondents on the said representation dated J-wp6033.19.odt 36/41

20th July, 2019. It is submitted by the learned counsel for the

respondents that the claim putforth by the petitioners is hit by the

doctrine of delay and laches. The representation was rejected on

15.3.2017 and petitioners approached to the Court by filing this

petition on 6.8.2019. The filing of the writ petition on 6.8.2019

cannot be said to be so belated so as to deny the petitioners

consideration of their grievances.

18. In Narayani Devi vs. State of Bihar, C.A. No.140 of 1964

decided on 22.9.1964 (unreported) Hon'ble Apex Court that ;

"No hard and fast Rule can be said to be laid down as to whom the High Court should exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is the matter which must be left to the discretion of the High Court and litre all matters left to the discretion of the Court. The discretion must be exercised judiciously and reasonably."

19. In Tehri Rohtas Light Railway Company Limited vs.

District Board Bhojpur and others, reported in AIR 1993 SC 502.

Following Tilokchand Motichand vs. H.B. Munshi, reported in AIR

1970 SC 898 reiterating the settled principles emphasizing on the real

test of laches and negligence. The Hon'ble Apex Court observed

under :

J-wp6033.19.odt 37/41

"The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches."

If the cause of action is continuous in nature and the nature of

injury caused to the petitioner subsists till it is remedied or some relief

is granted in his favour the Court may entertain the petition and

decide it on merits. Here in the present case till filing of petition no

benefit of permanency granted to the petitioners, cause of action is

continuing one. Thus, it appears that they approached this Court

within reasonable time. Therefore, contention of the respondents that

petition suffers from delay and laches is not acceptable.

20. Learned Senior Advocate for the petitioner relied upon

various judgments of the Hon'ble Apex Court wherein the service

conditions are discussed. The judgments on which the learned Senior

Advocate relied upon are regarding the seniority list and grievances J-wp6033.19.odt 38/41

about the seniority list. Here, the seniority list is not in question.

Therefore, said decisions are not helpful. The petitioners placed

reliance in the case of State of Punjab vs. Dharam Singh (supra),

wherein it is held by the Hon'ble Apex Court that the service rules

fixed a certain period of time beyond which the probationary period

cannot be extended and an employee appointed or promoted to a post

on probation is allowed to continue in that post after completion of

the maximum period of probation without an express order of

confirmation, he cannot be deemed to continue in that post as a

probationer by implication. Here also in the present case initially the

petitioners were appointed for six months on a temporary basis but on

probation. The terms and conditions shows that during the probation

period if the work is not found satisfactory, Nagpur Municipal

Corporation reserved the right to remove them from service. However

the petitioners were continued in service for more than four years and

no communication was issued to them indicating that they had not

satisfactorily completed the probation period. Inference can only be

drawn that they had successfully completed the probation period. No

adverse material has been placed before the Court even at this stage.

Once they had completed the probation as Lady Medical Officers

successfully there does not appear to be any justification in again J-wp6033.19.odt 39/41

appointing them on probation on the post of Medical Officer. As

noted above, the post of Lady Medical Officer and Medical Officer are

in the same pay scale of Rs.8,000-13,500 with pay band of Rs.15,600-

39,100. Though the respondents claimed that there is no vacant post

to accommodate the petitioners, their subsequent appointment order

dated 28.9.2016 states otherwise and is re-produced as under :

Para (3)

ßR;kvFkhZ [kkyhy 10 L=h oS|dh; vf/kdk&;kauk e-u-ik-rhy

fjDr vlysY;k oS|dh; vf/kdkjh ;k inkoj osrueku #-15600&39100

xzsM is 5400 e/;s vf/kd R;koj fu;ekuqlkj feG.kk&;k brj oktoh

HkRR;koj R;kps ukokleksj n'kZfoysY;k vkjksX; foHkkxkP;k vkLFkkiusojhy

fjDr inkoj ;k vkns'kkP;k fnukadkiklwu [kkyhy vVh o 'krhZuqlkj vLFkk;h

fu;qDr dj.;kr ;srs-Þ

Condition (3)

ßT;k mesnokjkaph oS|dh; vf/kdkjh ;k inkph fu;qDrh nksu

o"kkZP;k ifjfo{kk/khu dkyko/khlkBh jkghy o ifjfo{kk dkyko/kh #tw

>kY;kP;k fnukadkiklwu x.k.;kr ;sbZy- lnj ifjfo{kk dkyko/kh e/;s R;kaps

dke o orZ.kwd vlek/kkudkjd vk<Gwu vkY;kl R;kauk lsosrwu dk<wu

Vkd.;kps vf/kdkj e-u-ik- ukxiwj yk jkghy-Þ

21. It is specifically mentioned that 10 Lady Medical Officers J-wp6033.19.odt 40/41

are appointed on a temporary basis on a vacant post of Medical

Officers. This recitals of the order itself are sufficient to show that the

petitioners were appointed on a vacant posts of Medical Officer. In

view of that, it is very well can be inferred that the petitioners could

be accommodated on the said posts and benefit of service rendered as

Lady Medical Officer deserves to be granted to them. In such

circumstances, we are of the opinion that the petitioners are entitled

to the benefit of their earlier service by setting aside the

communication dated 15.3.2017. Therefore, we proceed to pass

following order :

ORDER

(i) The Writ Petition is allowed.

(ii) The communication dated 15.3.2017 is quashed and

set aside.

(iii) The respondent Nos.1 and 2 are directed to grant

benefit of the service rendered by the petitioners

from the date of their initial appointment as Lady

Medical Officer. Though the petitioners would not

be entitled to any monetary benefits in the form of

arrears flowing from this direction, the service

rendered earlier shall be taken into consideration J-wp6033.19.odt 41/41

for all other purposes.