ARCHANA CHOUHAN PUNDIR Vs STATE OF M.P..
Bench: G.S. SINGHVI,SURINDER SINGH NIJJAR, , ,
Case number: C.A. No.-000899-000899 / 2011
Diary number: 1554 / 2010
Advocates: KUNAL VERMA Vs
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.899_OF 2011 (Arising out of SLP(C) No.1963 of 2010)
Dr. Archana Chouhan Pundhir … Appellant(s)
Versus
State of M. P. and others … Respondent(s)
J U D G M E N T
G.S. Singhvi, J.
Leave granted.
Whether the appellant, who joined service under the Government
of Madhya Pradesh as Assistant Surgeon on contract basis in
November, 1999 and whose services were regularised with effect from
31.12.2005 under the Madhya Pradesh Regularisation of Public Health
and Family Welfare Medical Cadre Contract Appointment Rules, 2005
(for short, “the 2005 Rules”) was eligible to appear in Pre-P.G.
Examination held in 2007 under the Madhya Pradesh Medical and
Dental Post-Graduate Course Entrance Examination Rules, 2007 (for
short, “the 2007 Rules”) is the question which arises for
consideration in this appeal.
The appellant was appointed as Assistant Surgeon in District
Hospital, Raisen on contract basis vide order dated 26.10.1999.
The term of her contractual appointment was extended from time to
time. After about four years, she filed Writ Petition No.2158 of
2004 for issue of a mandamus to respondent Nos.1 and 2 to
regularise her service. The same was disposed of by the learned
Single Judge vide order dated 21.4.2004, the relevant portion of
which (as contained in Annexure P-1) is extracted below:
“Having heard Mr. Shroti, learned senior counsel for the petitioners and learned Government Advocate, I am inclined to direct the respondent No.1 to consider the cases of the petitioners for the purpose of regularization. If any intervention of higher authority is sought the same shall be taken recourse to by the respondent No.1. The entire exercise shall be completed by end of July, 2004. At the time of regularization the authority shall also keeping view the spectrum of salary. I may hasten to add I have not adverted to the merits of the case. All other aspects relating to merits are kept open. If there are a set of rules the State Government shall keep in view the same while deciding the case of regularization.”
Although, in terms of the High Court’s order the concerned
authorities were required to consider the appellant’s case for
regularisation of service within next three months, it took them
almost three years to do the needful and by an order dated
10.4.2007, her services were regularised with effect from
31.12.2005.
In the meanwhile, the appellant applied for admission to Post-
Graduate course as an “in-service candidate”. Her application was
accepted by the concerned authorities and she was allowed to appear
in the Entrance Examination, 2007. She secured 98.50 marks out of
200 but was not given admission because of non-award of marks in
lieu of her 7 years’ service.
Apprehending that she may not get admission in Post Graduate
course, the appellant filed Writ Petition No.5157 of 2007 with the
prayer that Rule 9.1 (a) and (b) of the 2007 Rules may be struck
down and the respondents be directed to admit her against the quota
of “in-service candidates”. By an interim order dated 26.4.2007,
the Division Bench of the High Court directed the respondents to
allow the appellant to participate in the counselling as an “in-
service candidate”. In compliance of that order, the appellant was
allowed to take part in counselling and she appears to have been
admitted in the Post-Graduate course as an “in-service candidate”.
This inference is being drawn from the contents of last paragraph
of the impugned order wherein it has been mentioned that the
appellant has spent two years in her education as an “in-service
candidate”.
The respondents contested the writ petition by asserting that
the appellant was not eligible to apply as an “in-service
candidate” because at the relevant time, she was serving on
contract basis. In support of this assertion, the respondents
relied upon Rules 2(d) and 9.1(a) and (b) of the 2007 Rules. They
also pleaded that regularization of the appellant’s service with
effect from 31.12.2005 was inconsequential because order for that
purpose was issued one day after declaration of the result of
entrance examination.
The Division Bench of the High Court dismissed the writ
petition by observing that the appellant was not eligible for
admission in Post Graduate course because the result of entrance
examination was declared on 9.4.2007 and order for regularisation
of her service was issued on 10.4.2007. The Division Bench referred
to the judgments of this Court in Aman Deep Jaswal v. State of
Punjab (2006) 9 SCC 597, Dolly Chhanda v. Chairman, JEE (2005) 9
SCC 779 and Paramjeet Gambhir v. State of M.P. (2003) 4 SCC 276 and
held that even though the 2007 Rules were superseded by the Madhya
Pradesh Medical and Dental Post-Graduate Course Entrance
Examination Rules, 2008, the appellant cannot take advantage of the
same because the new rules were not given retrospective effect.
We have heard learned counsel for the parties. Rules 2(d).1
and 9.1(a) of the 2007 Rules, which have bearing on the decision of
this appeal read as under:
“2(d) “In-Service Candidate” means,
1. Medical officer of Public Health and Family Welfare Department, who is serving under the Government of Madhya Pradesh and not serving on contract basis;
xx xx xx xx xx xx xx xx
xx xx xx xx
9. Selection Criteria:- (In Service Candidate)
9.1 Medical Officer
(a) Only those candidates, who have completed 5 years service on 30th April of year of examination as Medical Officer, in the Public Health and Family Welfare Department will be eligible. If a candidate was working on contractual basis in Public Health and Family Welfare Department of the State Government and has come in regular services while working on contractual basis, then experience of such contract service will also be considered.”
A conjoint reading of the above reproduced rules makes it
clear that only those candidates were eligible to apply for
admission as “in-service candidates”, who had completed 5 years
service as Medical Officer in the Public Health and Family Welfare
Department as on 30th April of the year of examination i.e. 2007. A
Medical Officer serving on contract basis was not eligible to apply
as an “in-service candidate”, but if the services of such an
appointee were regularised, then the experience gained by him/her
by working on contractual basis was required to be taken into
consideration for the purpose of selection.
It is not in dispute that as on 30th April, 2007, the appellant
had completed more than 7 years’ service as Medical Officer in the
Public Health and Family Welfare Department of the Government of
Madhya Pradesh. Although, the appellant’s initial appointment was
on contract basis but in the purported compliance of order dated
21.4.2004 passed by the learned Single Judge of the High Court in
Writ Petition No.2158 of 2004, the State Government regularised her
services with effect from 31.12.2005.
While deciding the second writ petition filed by the
appellant, the Division Bench of the High Court completely
overlooked that the concerned authorities of the Government of
Madhya Pradesh were guilty of committing contempt of the order
passed by the learned Single Judge and declined relief to her
despite the fact that her services had been regularized with effect
from 31.12.2005.
In our view, the date on which the order for regularisation
was issued was purely fortuitous and the same could not be made
basis for depriving the appellant of her legitimate right to get
admission as an “in-service candidate”. At the cost of repetition
it needs to be emphasized that in terms of the order passed by the
learned Single Judge in writ petition No. 2158 of 2004, the
concerned authorities were required to consider the appellant’s
case for regularisation of service and pass appropriate order
within three months, but the needful was done after a long time gap
of almost three years. Even after framing of the 2005 Rules, the
State Government took two years to complete the exercise for
regularisation of the services of Medical Officers appointed on
contract basis. If the State Government had issued order of
regularisation before 5.3.2007 i.e. the last date fixed for receipt
of application, the appellant would have been saved of the
harassment, mental agony and financial loss suffered by her on
account of unwarranted and forced litigation. In any case, no
premium could be given to the respondents for their contumacious
conduct of not complying with the High Court order and unexplained
delay in issuing the order for regularization of the appellant’s
service.
We are also of the view that the Division Bench of the High
Court committed serious error by dismissing the writ petition and
denying relief to the appellant despite the fact that she had
completed more than 7 years’ service as on 30th April of the year of
examination i.e., 2007.
In the result, the appeal is allowed. The impugned order is
set aside, the writ petition filed by the appellant is allowed and
it is declared that the decision of the respondents to treat the
appellant ineligible for admission to Post Graduate course as an
“in-service candidate” was illegal and violative of her Fundamental
Right to Equality. If the concerned authorities have so far not
declared result of the appellant’s examination, then the needful
shall be done within a period of four weeks’ from the date of
receipt/production of copy of this judgment. If, on the other
hand, the result of the appellant has already been declared and she
has been admitted to Post-Graduate course, then she shall be
allowed to complete the course and take examination.
….………………….…J. [G.S. Singhvi]
…..…..………………..J. [Surinder Singh Nijjar]
New Delhi January 24, 2011.