State Of Orissa & another Vs. Dr. Bhaktabandhu Mishra
EmailAppeal: Civil Appeal No. 342 of 1997
Arising out of SCP (C) No. 21515 of 1996
Arising out of SCP (C) No. 21515 of 1996
Petitioner: State Of Orissa & another
Respondent: Dr. Bhaktabandhu Mishra
Apeal: Civil Appeal No. 342 of 1997
Arising out of SCP (C) No. 21515 of 1996
Arising out of SCP (C) No. 21515 of 1996
Judges: S.C. Agrawal & S. Saghir Ahmad, JJ.
Date of Judgment: Jan 24, 1997
Head Note:
SERVICE LAWS
Seniority – Question regarding determination of – Respondent appointed as junior Assistant surgeon and posted against the sanctioned post of Asst. surgeon an the basis of the medical diploma he possessed- Subsequently respondent obtaining MBBS digree though cordevsed corse Government him to be Assistant singe an In 1974. Determination of seniority counts from The date of declaration as Assistant surgeon on the passing of MBBS degree or the date of appoint-ment as junior Assistment surgeon – Central Administrative Tribun-al holding that the seniority should count from the date of ap-pointment only – Special appeal granted.
Seniority – Question regarding determination of – Respondent appointed as junior Assistant surgeon and posted against the sanctioned post of Asst. surgeon an the basis of the medical diploma he possessed- Subsequently respondent obtaining MBBS digree though cordevsed corse Government him to be Assistant singe an In 1974. Determination of seniority counts from The date of declaration as Assistant surgeon on the passing of MBBS degree or the date of appoint-ment as junior Assistment surgeon – Central Administrative Tribun-al holding that the seniority should count from the date of ap-pointment only – Special appeal granted.
JUDGEMENT:
ORDER
1. Dealy condoned.
2. Special leave granted.
3. We have heard the learned counsel for the parties.
4. By resolution dated 4-7-1964 the Government of Orissa (Health Department) decided that candidates obtaining diploma of D.M.S.M from the Orissa Medical Examination Board for condensed course of D.A.M.S. will be designated as Junior Assistant Surgeon on their appointment in the State Medical and Public Health Department and that they will be given the gazetted status in the post of Junior Assistant Surgeons. By subsequent resolution dated 21-1-1965 the resolution dated 4-7-1964 was modified in view of the fact that there were no sanctioned posts of Junior Assistant Surgeons and the total strength of Junior Assistant Surgeons was expected to be about 200 because the condensed course training of D.M.S.M. candidates would be closed next year. Since the post of Junior Assistant Surgeon was temporary arrangement, it was not considered necessary to form a separate cadre of Junior Assistant Surgeons and it was decided that they would be appointed against the sanctioned posts of Assistant Surgeon in the medical and public health cadres and would draw pay in the scale of Rs 250-540. The said pay scale was lower than that for the post of Assistant Surgeons who were in the scale of Rs 300-780. By order dated 2-3-1966 the respondent was appointed as Junior Assistant Surgeon. At the time of his appointment he was having D.M.S.M. qualification. After his appointment he obtained the M.B.B.S. degree in 1974 under the condensed course. By order dated 20-6-1980 he was declared as Assistant Surgeon with effect from 19-7-1974.
5. The question is whether the seniority of the respondent in the cadre of Assistant Surgeons should be counted 19-7-1974 or he is entitled to count his service as Junior Assistant Surgeon for the purpose of seniority as Assistant Surgeon. The State Government has fixed his seniority in the cadre of Assistant Surgeons from 19-7-1974. The Orissa Administrative Tribunal (hereinafter re-ferred to as “the Tribunal”) by the impugned judgment dated 24-4-1995 has, however, held that as the respondent was appointed as a gazetted Assistant Surgeon with the concurrence of the Public Service Commission in the year 1964, the length of service in his case should count from that year. The Tribunal has directed that his seniority in the gradation of Assistant Surgeon should be refixed taking his date of appointment into account and not the date he passed the condensed M.B.B.S. course. Hence this appeal.
6. It has been urged on behalf of the appellants that the re-spondent was a Junior Assistant Surgeon during the period of 2-3–1966 till he was declared as an Assistant Surgeon with effect from 19-7-1974 by order dated 20-6-1980 on his obtaining M.B.B.S qualification and, therefore, the seniority of the re-spondent in the cadre of Assistant Surgeon can only be counted from 19-7-1974. The learned counsel for the respondent has, on the other hand, urged that the cadre of Junior Assistant Surgeons has ceased to exist by virtue of resolution dated 30-4–1970 whereby with effect from 1-5-1970 one unified cadre of Health Services, designated as Orissa Medical and Health Services, was constituted. The learned counsel has invited our attention to para 10 of the said resolution which reads as under;
“(10) In the cadre of Assistant Surgeons there will be two grada-tion of lists as follows;
(i) Assistant Surgeon with M.B.B.S qualification of L.M.P.,L.M.S. L.M.F. and D.M.S.M. will form another list in the combined cadre.”
7. The learned counsel has submitted that as a result of the said resolution there were two sub-cadres of Assistant Surgeons (i) of Assistant Surgeons with M.B.B.S. qualification and (ii) of Assistant Surgeons with qualification of L.M.P., L.M.F. and D.M.S.M. and all Junior Assistant Surgeons, like the respondent, who did not possess M.B.B.S. qualification became Assistant Surgeons falling in the second category. We are unable to accept this contention in view of the subsequent resolution of the Government of Orissa dated 17.3.1979 relating to upgradation of status of D.M.S.M. Junior Assistant Surgeons to Assistant Surgeons consequent on successful completion of the condensed M.B.B.S. course. In the said resolution reference has been made to the earlier resolution of the Government dated 21.1.1965 and to the fact that D.M.S.M. qualified doctors designated as Junior Assistant Surgeons were appointed as a temporary arrangement against the posts of Assistant Surgeons in the scale of pay prescribed for them and that they were allowed to undertake condensed M.B.B.S. course with a view to upgrade their skill, qualification and status and to allow them consequential financial benefit and that a number of Junior Assistant Surgeons had undertaken necessary training and had come out successful in the condensed M.B.B.S. course. By the said resolution dated 17.3.1979 it was decided that D.M.S.M. qualified doctors subsequently acquiring the condensed M.B.B.S. course shall be designated as Assistant Surgeons and shall be given the same scale of pay as is enjoyed by the Graduate Assistant Surgeons and be enlisted in the gradation list by taking precedence over officers, if any, directly recruited in a particular year from the date of publication of the result of M.B.B.S. This resolution clearly indicates that till 17.3.1979, when the resolution dated 17.3.1979, the order dated 20.6.1980 was passed whereby a number of Junior Assistant Surgeons, including the respondent, were declared as Assistant Surgeons from the date they had obtained the M.B.B.S. qualification. The fact that Junior Assistant Surgeons were continuing after the resolution dated 30.4.1970 is also borne out by the Orissa Civil List (corrected up to 1.4.1982) which has been filed by the respondent as Annexure R-4 to his counter-affidavit in this Court. In the circumstances it cannot be said that with effect from 1.5.1970, the respondent ceased to be Junior Assistant Surgeon and became an Assistant Surgeon. Having regard to the notification dated 20.6.1980, the respondent must be held to have become an Assistant Surgeon only with effect from 19.7.1974 when he was declared to be an Assistant Surgeon and his seniority in the cadre of Assistant Surgeon can be counted only with effect from 19.7.1974.
8. The Tribunal, was, therefore, in error in directing that the seniority of the respondent in the gradation list of Assistant Surgeons should be refixed taking his date of appointment into account and not the date he passed the condensed M.B.B.S. course. The said direction given by the Tribunal is set aside and the appeal is allowed accordingly. No order as to costs.
1. Dealy condoned.
2. Special leave granted.
3. We have heard the learned counsel for the parties.
4. By resolution dated 4-7-1964 the Government of Orissa (Health Department) decided that candidates obtaining diploma of D.M.S.M from the Orissa Medical Examination Board for condensed course of D.A.M.S. will be designated as Junior Assistant Surgeon on their appointment in the State Medical and Public Health Department and that they will be given the gazetted status in the post of Junior Assistant Surgeons. By subsequent resolution dated 21-1-1965 the resolution dated 4-7-1964 was modified in view of the fact that there were no sanctioned posts of Junior Assistant Surgeons and the total strength of Junior Assistant Surgeons was expected to be about 200 because the condensed course training of D.M.S.M. candidates would be closed next year. Since the post of Junior Assistant Surgeon was temporary arrangement, it was not considered necessary to form a separate cadre of Junior Assistant Surgeons and it was decided that they would be appointed against the sanctioned posts of Assistant Surgeon in the medical and public health cadres and would draw pay in the scale of Rs 250-540. The said pay scale was lower than that for the post of Assistant Surgeons who were in the scale of Rs 300-780. By order dated 2-3-1966 the respondent was appointed as Junior Assistant Surgeon. At the time of his appointment he was having D.M.S.M. qualification. After his appointment he obtained the M.B.B.S. degree in 1974 under the condensed course. By order dated 20-6-1980 he was declared as Assistant Surgeon with effect from 19-7-1974.
5. The question is whether the seniority of the respondent in the cadre of Assistant Surgeons should be counted 19-7-1974 or he is entitled to count his service as Junior Assistant Surgeon for the purpose of seniority as Assistant Surgeon. The State Government has fixed his seniority in the cadre of Assistant Surgeons from 19-7-1974. The Orissa Administrative Tribunal (hereinafter re-ferred to as “the Tribunal”) by the impugned judgment dated 24-4-1995 has, however, held that as the respondent was appointed as a gazetted Assistant Surgeon with the concurrence of the Public Service Commission in the year 1964, the length of service in his case should count from that year. The Tribunal has directed that his seniority in the gradation of Assistant Surgeon should be refixed taking his date of appointment into account and not the date he passed the condensed M.B.B.S. course. Hence this appeal.
6. It has been urged on behalf of the appellants that the re-spondent was a Junior Assistant Surgeon during the period of 2-3–1966 till he was declared as an Assistant Surgeon with effect from 19-7-1974 by order dated 20-6-1980 on his obtaining M.B.B.S qualification and, therefore, the seniority of the re-spondent in the cadre of Assistant Surgeon can only be counted from 19-7-1974. The learned counsel for the respondent has, on the other hand, urged that the cadre of Junior Assistant Surgeons has ceased to exist by virtue of resolution dated 30-4–1970 whereby with effect from 1-5-1970 one unified cadre of Health Services, designated as Orissa Medical and Health Services, was constituted. The learned counsel has invited our attention to para 10 of the said resolution which reads as under;
“(10) In the cadre of Assistant Surgeons there will be two grada-tion of lists as follows;
(i) Assistant Surgeon with M.B.B.S qualification of L.M.P.,L.M.S. L.M.F. and D.M.S.M. will form another list in the combined cadre.”
7. The learned counsel has submitted that as a result of the said resolution there were two sub-cadres of Assistant Surgeons (i) of Assistant Surgeons with M.B.B.S. qualification and (ii) of Assistant Surgeons with qualification of L.M.P., L.M.F. and D.M.S.M. and all Junior Assistant Surgeons, like the respondent, who did not possess M.B.B.S. qualification became Assistant Surgeons falling in the second category. We are unable to accept this contention in view of the subsequent resolution of the Government of Orissa dated 17.3.1979 relating to upgradation of status of D.M.S.M. Junior Assistant Surgeons to Assistant Surgeons consequent on successful completion of the condensed M.B.B.S. course. In the said resolution reference has been made to the earlier resolution of the Government dated 21.1.1965 and to the fact that D.M.S.M. qualified doctors designated as Junior Assistant Surgeons were appointed as a temporary arrangement against the posts of Assistant Surgeons in the scale of pay prescribed for them and that they were allowed to undertake condensed M.B.B.S. course with a view to upgrade their skill, qualification and status and to allow them consequential financial benefit and that a number of Junior Assistant Surgeons had undertaken necessary training and had come out successful in the condensed M.B.B.S. course. By the said resolution dated 17.3.1979 it was decided that D.M.S.M. qualified doctors subsequently acquiring the condensed M.B.B.S. course shall be designated as Assistant Surgeons and shall be given the same scale of pay as is enjoyed by the Graduate Assistant Surgeons and be enlisted in the gradation list by taking precedence over officers, if any, directly recruited in a particular year from the date of publication of the result of M.B.B.S. This resolution clearly indicates that till 17.3.1979, when the resolution dated 17.3.1979, the order dated 20.6.1980 was passed whereby a number of Junior Assistant Surgeons, including the respondent, were declared as Assistant Surgeons from the date they had obtained the M.B.B.S. qualification. The fact that Junior Assistant Surgeons were continuing after the resolution dated 30.4.1970 is also borne out by the Orissa Civil List (corrected up to 1.4.1982) which has been filed by the respondent as Annexure R-4 to his counter-affidavit in this Court. In the circumstances it cannot be said that with effect from 1.5.1970, the respondent ceased to be Junior Assistant Surgeon and became an Assistant Surgeon. Having regard to the notification dated 20.6.1980, the respondent must be held to have become an Assistant Surgeon only with effect from 19.7.1974 when he was declared to be an Assistant Surgeon and his seniority in the cadre of Assistant Surgeon can be counted only with effect from 19.7.1974.
8. The Tribunal, was, therefore, in error in directing that the seniority of the respondent in the gradation list of Assistant Surgeons should be refixed taking his date of appointment into account and not the date he passed the condensed M.B.B.S. course. The said direction given by the Tribunal is set aside and the appeal is allowed accordingly. No order as to costs.
