S.K. Bhatnagar vs Union Of India And Ors.
1995 Latest Caselaw 584 Del

JUDGMENT

Vijender Jain, J.

(1) This writ petition was initially dismissed on 20.11.1989. Against the dismissal order the petitioner preferred a Special Leave Petition in the Supreme Court. On 14.7.1992 the Supreme Court set aside the order of dismissal and remanded the case back to the High Court. On 1.2.1993 rule was issued. According to Mr.Bhat, learned counsel for the petitioner, the petitioner joined the Health Department of M.P.Government as Assistant Surgeon through Public Service Commission on 7.3.1967. On 24.5.1971 the petitioner joined the Indo-Tibetan Border Police (hereinafter referred to as "ITBP") as Junior Medical officer 'Grade II'. His pay was fixed in the grade of Rs.350-900. Pursuant to the offer invited by the respondents for absorption in the Itbp, the petitioner exercised his option to be absorbed in the ITBP. On 1.1.1972 the M.P.Government revised the pay scale of Assistant Surgeon to Rs.420-900. Although the petitioner remained in the grade of Rs.350-500. Consequential on the recommendations of the Third Pay Commission, the pay of the Junior Medical Officer was revised in the Itbp to Rs.700-1300. Thirty Junior Medical Officers in the Itbp was placed in the revised pay scale of Rs.700-1300 w.e.f.1.1.1973. However, the petitioner was not put in that grade. Thereafter the petitioner made representation to the authorities and the petitioner was granted the grade of Rs.700-1300 w.e.f.24.5.1973. Aggrieved by the order of the respondents giving the revised pay scale from 24.5.1973, the petitioner again represented praying that his pay fixation in the revised grade be done from 1.1.1973 as was done in the case of other similarly situated doctors.

(2) Petitioner has prayed that the petitioner's seniority be given not according to Rule 8(i)(b) of the Crpf (Medical Officers Cadre) Rules, 1976 but keeping in view the length of service which the petitioner has put in with the Health Department, M.P.Government. He has also prayed that the letter of respondent dated 17.11.1978 be quashed, which lays down that the seniority of the petitioner has to be reckoned w.e.f. the date of his permanent absorption in the ITBP. The petitioner has further prayed that he may be granted seniority keeping in view his length of service.

(3) MR.BHAT has argued that the petitioner was selected through Public Service Commission by the Government of Madhya Pradesh. On 7.3.1967 the petitioner joined the said post of Assistant Surgeon. The petitioner was transferred to Itbp on deputation in public interest and thereafter as mentioned above he was absorbed in the ITBP. Mr.Bhat has contended that in such an eventuality it was incumbent that the respondent ought to have taken into consideration the length of service of the petitioner for the purpose of promotion and fixation of seniority. The second argument advanced by learned counsel for the petitioner is that in any event of the matter, the revised grade of Rs.700-1300, which was granted to the other doctors from 1.1.1973 was to be given to the petitioner from that date as the petitioner had already joined the Itbp and the absorption of the petitioner subsequently on 28.6.1973 was an acknowledgement of the fact, which was already in existence. In support of his contentiojn, Mr.Bhat has relied upon Joginder Nath & ors vs. Union of India & ors. and K.Madhvan & anr. vs. Union of India & ors. .

(4) On the other hand, Mr.Dutta, learned counsel for the respondents, has argued that there were two different pay scales as per the recommendations of the Third Pay Commission, i.e. Rs.650-1200 and Rs.700-1300 for the purposes of Junior Medical Officers in the ITBP. The stand of Mr.Dutta is that all the regular Junior Medical officers were entitled to the higher pay scale of Rs.700-1300 and the petitioner being an ad hoc employee was entitled for the grade of lower pay scale of Rs.650-1200. In support of the stand, the respondents have filed the counter-affidavit in which they have taken the stand that this was in consonance with the Crpf (Medical Officers Cadre) Rules, 1976, which was also applicable to the ITBP.

(5) The stand of the respondent further is that as no other deputationist doctor was appointed in the Itbp on ad hoc basis, no one else was given the higher pay scale of Rs.700-1300, therefore, the petitioner also could not be granted the said pay scale. The main thrust of the arguments advanced by the learned counsel for the respondents is that since the absorption of the petitioner took place on 23.6.1973, he could not be given the higher pay scale of Rs.700-1300 prior to that date.

(6) I have heard the submissions made by the learned counsel for the parties at length. Let me first deal with the case of the fixation of pay scale. From what date the petitioner is entitled to be given the grade of Rs.700-1300? Admittedly, the petitioner joined Itbp on 24.5.1971 pursuant to the telegraphic order by the Health Secretary, M.P.Government, who directed him to join ITBP. There is force in the argument of the learned counsel for the petitioner that the service of the petitioner was required by the Itbp in public interest. The petitioner has been working as Assistant Surgeon in the Health Department of the M.P.Government and he was working in the grade of Rs.350-900, the pre-revised grade of Rs.700-1300. At the very first instance when option was invited for absorption on 8.7.1971, the petitioner had exercised his option to join Itbp on 31.7.1971. The respondent took its own time in dealing with the option of the petitioner for absorption and finally determined that the petitioner was absorbed in Itbp from 23.6.1973. The stand taken by the respondent that the petitioner was an ad hoc appointee, cannot sustain the scrutiny of law. Admittedly, the petitioner was holding a regular appointment from 25.2.1967 in the State of Madhya Pradesh. He was transferred in public interest to Itbp, how his transfer to Itbp can be considered as an ad hoc appointment by the respondent? If respondent had not absorbed him, petitioner would have been reverted back to his original cadre in M.P. From any angle the approach of the respondent to treat the appointment of the petitioner as ad hoc cannot be upheld. The documents filed by the respondent with its return and the petitioner in support of his petition, nowhere reflect that the service of petitioner, after joining the Itbp, was regularised, which is the normal course for the ad hoc appointment. What has been stated by the respondent in its counter is that petitioner was absorbed on 23.6.1973 as Junior Medical Officer.

(7) The Crpf (Medical Officers Cadre) Rules, on which the learned counsel for the respondent has relied, came into existence in the year 1976. There is no provision that the Rules shall be applicable restrospectively. Therefore, the case of the petitioner cannot be brought within the parameters of said Rules as petitioner had joined Itbp in 1971 itself. On these basis I hold that the petitioner was entitled to be given the same pay scale as was given to other doctors from 1.1.1973 and his services cannot be treated as ad hoc for giving the aforesaid pay scale.

(8) Coming to the second submissions made by the learned counsel for the petitioner that the petitioner is entitled to maintain his seniority on the basis of the length of service, which he had done in the Health Department of State of Madhya Pradesh. The law is well-settled by the Supreme Court on this point in the case of Joginder Nath & ors. vs. Uoi & ors. (supra), in which the Supreme Court held |- "............THEassignment of duties was to follow on the basis of seniority list. Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good.................................The questions posed are suggestive of the answers. Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under Rule 11 of the Delhi Judicial Service Rules was justified, legal and valid. Had it been otherwise it would have been discriminatory. It was not equating unequals with equals. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment. Nor was it possible to take any other date in between the period of their service in their parent cadre. It would have been wholly arbitrary. In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service."

(9) Following the above principles and the dicta laid down by the Supreme Court in K.Madhvan & anr. vs. Uoi & ors. (supra), it would be doing injustice to the petitioner if his continuous length of service, which he has done in the State of Madhya Pradesh, is not counted for the purposes of granting him seniority in the ITBP.

(10) In the writ petition, the petitioner had made all the persons, who are placed higher to him, as respondents. None of the respondents has chosen to oppose the prayer in spite of the fact that they have been served.

(11) On the basis of the above observations, I hold that the petitioner is entitled to the seniority keeping in view the length of service he has spent in the State of Madhya Pradesh in his cadre. The result is, therefore, that the petition is allowed. The impugned order dated 17.11.1978 and the seniority list dated 11.2.1981 are quashed. The respondents are directed to prepare the seniority list keeping in view the length of service of the petitioner including service as Assistant Surgeon in the Department of Health of State of Madhya pradesh. The petitioner will also be entitled to all consequential benefits including the promotions from the date on which Junior Medical Officers were promoted. Rule is made absolute.

(12) The petition is disposed of accordingly.