Dr. Sarman Singh vs Union Of India And Ors.
2001 Latest Caselaw 275 Del

ORDER

Dr. Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner praying for assigning proper seniority position to the petitioner in the cadre of Associate Professor dated 24th May, 1997. According to the petitioner, in the said seniority list, he should be shown senior to the respondent No.3 in the cadre of Associate Professor of the All India Institute of Medical Sciences.

2. As against an advertisement published by the All India Institute of Medical Sciences, the petitioner applied for appointment as against the post of Assistant Professor in Laboratory Medicine (Microbiology. In the said advertisement, applications were also invited for filling up the post of Assistant Professor in Laboratory Medicine (Biochemistry). The respondent No.3 applied for his appointment as against the aforesaid post of Assistant Professor in Laboratory Medicine (Biochemistry).

3. The petitioner and the respondent No.3 were called for the interview and the duly appeared before the Selection Committee constituted for the purpose. In the said list, the name of the petitioner was shown selected as against the post of Assistant Professor in Laboratory Medicine (Microbiology) whereas, the respondent No.3 was shown selected as Assistant Professor in Laboratory Medicine (Biochemistry) and their names were recommended as suitable for the said posts. Appointment letters were issued to the petitioner as also to the respondents No.3 pursuant to which they joined in the post of Assistant Professor. It was, however, stated that in the seniority list published for the cadre of Assistant Professor, the respondent No.3 was shown senior to the petitioner. It was also stated that subsequent to the aforesaid selection, the petitioner and the respondent No.3 were also promoted to the posts of Associate Professor and Additional Professor wherein, the respondent No.3 is being shown senior to the petitioner and, therefore, the present petition has been preferred by the petitioner seeking for correct assignment of his seniority position.

4. The respondent No.2 has filed a counter affidavit contending, inter alia, that the respective seniority position that have been assigned to the petitioner and the respondent No.3 have been correctly fixed in accordance with the existing Rules and the guidelines governing the same.

5. Counsel appearing of the petitioner during the course of his submission submitted that the petitioner was selected by a Selection Committee earlier to the respondent No.3 and the petitioner was placed higher than the respondent No.3 in the panel and, therefore, by virtue of seniority in the panel which is the determining criteria for fixing inter-se -seniority, the petitioner should have been placed senior to the respondent No.3 in the seniority list. In support of his contention, the counsel relied upon the proceedings of the Selection Committee Meeting held on 15th November, 1990 which is placed on record as 'Annexure 4' to the writ petition. In support of his contention, counsel also relied upon the circular issued by the Government of India which is dated 14th January, 1960. He specifically relied upon the following passage which according to him is applicable to the facts of his case:-

"1. Determination of seniority of persons selected for appointment in different posts in the same grade requiring different qualifications. According to the Annexure to M.H.A., O.M. No. 9/1155-RPS, dated 22nd December, 1959, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority; persons appointed as a result of an earlier selection being senior to those, appointed as a result of subsequent selection.

In cases where persons are selected either by the UPSC for appointment to different posts in the same grade with different qualifications (e.g., posts of Assistant Lecturer in History, Economics, Physics and Chemistry etc.), the UPSC should be requested to recommend candidates for such posts in a consolidated order of merit. Similarly, other selecting authorities should also be requested to indicate such an order of merit while making selections for recruitment to such posts."

6. Counsel for the respondents, however, submitted that the aforesaid Rules of seniority is not applicable in the present case as the respondents have their own Rules and guidelines for deciding the inter-se-seniority on the basis of which inter-se-seniority positions are determined. He also stated that the petitioner was appointed on ad hoc basis as Assistant Professor of Laboratory Medicine (Microbiology) for a period of three months from 31st August, 1990 and he joined the said post on the same date but no medical examination was done as he was appointed only for three months on ad hoc basis. However, the petitioner was appointed on regular basis Assistant Professor in Laboratory Medicine (Microbiology) pursuant to regular selection on 25th January, 1991 when the Minutes of the Selection Committee was approved by the Governing Body but the petitioner submitted his joining report only on 28th January, 1991 and the same was accepted only on 30th January, 1991 because the petitioner was medically examined only on 29th January, 1991.

7. It is also stated that the respondents No. 3 was appointed as Biochemist on 13th January, 1983 and his medical examination was already done. However, he was also appointed on regular basis as Assistant Professor in Laboratory Medicine (Biochemistry) on 25th January, 1991. It is also submitted that the respondent No. 3 submitted his joining report on 28th January, 1991 and he was allowed to join as he had already undergone medical examination for Biochemist which is a Group 'A' post. It is also stated that the respondent No. 3 is also senior to the petitioner in age which is also one of the criterion to be followed for determining the inter-se-seniority between the two persons.

8. The aforesaid facts placed before me by the counsel appearing for the parties makes it crystal clear that pursuant to the advertisement made, both the petitioner and the respondent No. 3 applied for two different posts and they were also called for interview. Although the petitioner and the respondent No. 3 appeared before the Selection Committee on the same date, the petitioner was selected as against the post of Assistant Professor of Laboratory Medicine (Microbiology) whereas, the respondent No. 3 was selected as against the post of Assistant Professor of Laboratory Medicine (Biochemistry) by the same Selection Committee held on the same date. After the said recommendation of the Selection Committee was approved by the Governing Body, letters of appointment were issued to both the petitioner and the respondent No. 3 on the same date. It was mentioned in the appointment letters issued to the petitioner and the respondent No. 3 that a medical certificate of fitness shall have to be submitted at the time of joining and the appointment would be subject to the compliance of the said requirement. The petitioner although submitted his joining report on 28th January, 1991 but his joining report could be accepted only on 30th January, 1991 as the petitioner was medically examined only on 29th January, 1991 and the report was submitted thereafter.

9. So far the respondent No. 3 is concerned, he was already medically examined for the Group 'A' post when he was appointed as a Biochemist which is a Group 'A' post on 13th January, 1983 and, therefore, his joining report submitted on 28th January, 1991 was accepted and he was allowed to join immediately as he had already undergone the requisite medical examination for the group 'A' post. The respondent, therefore, gave the seniority position to the petitioner with effect from 30th January, 1991 when his joining report was accepted after receipt of his medical report dated 29th January, 1991 was received on 30th January, 1991 and the respondent No. 3 was allowed to joint on 28th January, 1991.

10. The Institute has adopted a Regulation being Regulation 26 of the A.I.I.M.S. Regulations, 1958. The said Regulation provides that the seniority of the employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question; those selected on an earlier occasion being ranked senior to those selected later. In continuation of the aforesaid Regulation certain Rules/decisions have been taken by the Governing Body/Institute Body regarding fixation of seniority of Faculty Members appointed/promoted either under open selection or under assessment promotion scheme at the A.I.I.M.S. The said decisions are in the form of guidelines giving the work out as to how the combined seniority list shall be prepared for the direct recruits to all grades of the Faculty. It is provided in Clause (2) thereof that the preparation of a seniority list of persons selected in the same selection committee would involve the following steps:-

STEP I

Draw up list of persons on the basis of their date of joining, those joining on an earlier date being placed above those joining on a later date.

STEP II

In the list prepared as above, those who join on the same date may be arranged in order of age - those born earlier being placed above those born later.

STEP III

For those joining on the same date and adjusted as in Step II above may be carried out so that the original inter-se-seniority of the Institute employees in the lower post/grade maintained.

The aforesaid Regulation when read with the aforesaid Rules/decisions/guidelines of the A.I.I.M.S. would indicate that when persons are selected in the same Selection Committee the date of joining would be the criteria for giving the seniority position. It is also provided that so far those persons who joined on the same date are concerned, their seniority is to be arranged in the order of their age.

11. In the present case, the respondent No. 3 fulfills the aforesaid criterion so as to give him a higher seniority position than the petitioner. The respondent No. 3 not only joined earlier to the petitioner, but, his date of birth is also earlier than that of the petitioner. So even if it is assumed that the petitioner and the respondent No. 3 joined on the same date, their age shall be the determining criteria for fixing the inter-se-seniority. Since the Institute has their specific Regulation and guidelines to decide the inter-se-seniority between the direct recruits joining as Faculty Members of the Institute, the circular relied upon by the petitioner of the Ministry of Health shall not be applicable to the present case. It also cannot be denied that in order to fill up the lacuna in the Rules and Regulations, administrative instructions could be issued in terms of which seniority position could be validly fixed.

12. It is also pointed out that subsequent to the aforesaid promotion to the post of Assistant Professor, the petitioner and the respondent No. 3 have further been appointed/promoted as Associate Professor under the Assessment Promotion Scheme from 1st July, 1995 and Additional Professor from 1st July, 1999 and the inter-se-seniority of the petitioner and the respondent No. 3 in the said post has been regularised by taking date of joining as 1st July, 1995 and 1st July, 1999 and, therefore, on the basis of their respective date of birth, the respondent No. 3 has been assigned higher seniority position than the petitioner.

13. It is also pointed out by the counsel appearing for the respondents, during the course of his arguments, that there are other Faculty Members as well in between the petitioner and the respondent No. 3 who are not parties to the present proceedings and without making them parties, the present writ petition is filed and, therefore, no interference is called for, for the same would amount to taking away vested right of the persons who are not parties before this Court. This issue is also relevant.

However, as it is found that the seniority position of the petitioner and the respondent No. 3 has been validly fixed no interference is called for to the inter-se-seniority position ascribed to the petitioner and the respondent No. 3.

14. There is no merit in this writ petition and the same is dismissed, but, without any costs.