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.