9911796707
TMI Blog1992 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents Nos. 4 and 5 were serving as Professors of Medicine in the college on ad hoc basis. After the interviews were completed the result disclosed that Dr. S.S. Aggarwal was placed at Serial No. 1 and the Appellant Dr. A.R. Sircar at Serial No. 2 on the select list. Respondents Nos. 4 and 5 were not selected. Before appointments could issue on the basis of the said selection, the aforesaid two Respondents and others filed a Writ Petition No. 1545 of 1986 challenging the selection list prepared pursuant to the interviews and sought an interim order against the implementation thereof. An interim order staying the implementation of the select list was granted by the High Court. Consequently the appointment of Dr. Aggarwal or the Appellant could not take place. Subsequently in October, 1986 one Dr. Bhatia was appointed as Professor of Medicine in the said college in the promotees quota in the vacancy of 1982-83 which was to be filled by a direct recruit. That was because the implementation of the select list had been stayed by the High Court and no other direct recruit could be appointed to the said post. It may also be mentioned that the Appellant was not impleaded as a Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, the Appellant would have been appointed in the vacancy of 1982-83 meant to be filled by direct recruitment. Since that vacancy could not be filled by appointing a direct recruit in view of the interim order of the High Court Dr. Bhatia came to be appointed by promotion in the said vacancy sometime in October, 1986. The first attempt of Respondents 4 and 5 having failed on the dismissal of their Writ Petition No. 1545/86, they made a second attempt by filing a Writ Petition No. 8424/89 for regularisation of their appointment under the rules framed in 1988 and for restraining the implementation of the select list. The regularisation of the promotion of Respondents 4 and 5 under the 1988 Rules pursuant to the order passed by the High Court in Writ Petition No. 8424/89 was secured in the vacancies of 1983-84 and 1986-87, respectively, prior to the regular appointment of Dr. Sircar on the strength of the letter of appointment dated 31st October, 1989. Two things become abundantly clear from these undisputed facts, namely, (1) that the appointment of the Appellant who was at serial No. 2 in the select list could not be made on account of the interim stay granted by the High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical colleges. Rules 20 made provision in regard to the seniority. The relevant paragraph thereof reads as under: "20. Seniority:--(1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more, persons are appointed together, by the order in which their names are arranged in the appointment order: Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of order." Pursuant to this rule the State Government prepared a provisional seniority list in which the Appellant was shown senior to the Respondents Nos. 4 and 5. After considering the objections received against the proposed seniority in the provisional list, the State Government published a final seniority list on 23rd March, 1991 wherein also the Appellant was shown senior to Respondent No. 4; the name of Respondent No. 5 did not find a place as he had since retired. A further scrutiny of this senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been reproduced in the judgment of the High Court does not specify and back date and, therefore, ordinarily the Appellant's appointment would be taken as from the date of issuance of the order. But the order clearly states that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on 31st October, 1989. It related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December, 1984 was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the Appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545/86, the Appellant would have been appointed long before the regularisation of promotion of Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was appointed under the order of 31st October, 1989 pursuant to his selection and empanelment in the select list. Therefore, the Appellant's appointment must relate to the vacancy of 1982-83. Even the appointment order specifically states that the appointment is 'on the basis of selection by direct recruitment'. The draftsman had, therefore, the vacancy of 1982-83 in mind. It is true that the Appellant was at Serial No. 2 and could claim placement in the slot of 1982-83 only if Dr. Aggarwal declined to join. Unfortunately because of the intervening stay order the wish of Dr. Aggarwal could not be ascertained till after the dismissal of the Writ Petition on 24th July, 1989. We are, therefore, of the view that the High Court was not right in fixing the date of entry of the Appellant into the regular service as 31st October, 1989. 6. We have dealt with the question of the Appellant's seniority both under Rule 20(1) and also de hors the said Rules on the assumption they are non est on the statute being declared ultra vires. This is on the premise that generally decisions taken bona fide under any law or rule in force which is later declared unconstitutional are saved ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
