Holding

Rule 6 mandates seniority to be fixed on the actual continuous service rendered in the corresponding post, and does not allow notional seniority based on eligibility dates, rendering the altered seniority list and consequent promotion invalid.

Summary

Dr. Pushpa, a Reader appointed on 11 October 1977 in a Government Medical College, challenged a seniority list issued by the Maharashtra Government that antedated the appointment of Dr. Guhe (the respondent) from 2 July 1979 to 19 January 1977, thereby making her senior. The seniority list was based on Rule 6 of the Government Resolution dated 1 April 1981, which the State interpreted to allow counting service from the date a person would have been eligible for appointment under the recruitment rules. The Supreme Court held that the rule requires seniority to be fixed on the actual period of continuous service in the corresponding post, not on a notional eligibility date, and that granting fictional seniority would unjustly affect the seniority of existing government appointees. Consequently, the altered seniority list and the subsequent promotion of the respondent to Professor were set aside. The Court allowed the appeal and directed the State to determine promotion based on the correct inter se seniority.

Issues considered

Whether Rule 6 of the Government Resolution of 1 April 1981 permits granting notional seniority based on the date of eligibility rather than the actual date of appointment.
Whether the seniority list that antedated the respondent's appointment from 2 July 1979 to 19 January 1977 is valid.
Whether the promotion of the respondent to Professor, predicated on the altered seniority list, is legally sustainable.

Subjects

senioritygovernment resolutionabsorptionnotional senioritycontinuous servicepromotionmedical collegeadministrative lawinterpretation of rule

Judgment

DR. (MRS.) PUSHPA v1SHNU KUMAR GURTU A
....._
v.
STATE OF MAHARASHTRA AND ORS.

FEBRUARY 14, 1995
B
[P.B. SAWANT AND N.P. SINGH, JJ.)

ICill~ Setvice Law: Seniority- fixation of-Notional Seniority-Conferred with
reference to date of eligibility-P-erson not holding the post on such date-Mere
eligibility-No ground to antedate seniority-Seniority list quashed.
c
The appellant was appointed as Reader in Government Medical
College on 11.10.1977 and the respondent was appointed as Reader on 2.7.
1979 in Medical College under the Corporation. This medical college was
taken over by the State Government on 1.4.1981. The State Government
published a seniority list in which the respondent was shifted from serial D
No. 20 to serial No. 11 and the date of her appointment was changed from
I 2.7.1979 to 19.1.1977. Subsequently she was promoted to the post of Profes-
sor on the basis of the aforesaid seniority list.

The appellant filed a petition before the State Administrative
Tribunal challenging the alteration of the position of the respondent in the E
seniority list. The Tribunal dismissed the petition on the ground that the
respondent was rightly given the benefit of continuous service rendered by
her under the Corporation prior to the appointed day in terms of Rule 6
of G.R. of 1.i;l.1981. Hence this. appeal.
F
Allowing the appeal, this Court

HELD : 1.1. Rule 6 of G.R. of 1.4.1981 says that seniority of persons
--( in the posts in which they are absorbed shall be determined on the basis
of the period of continuous service rendered by them in the corresponding
posts under the Corporation prior to the appointed day i.e. 1.4.1981. The G
second part of Rule 6 says that for the purpose of the said rule the service
rendered iD the corresponding posts shall be counted "from the date from
which the absorbed persons would have been eligible for appointment to
the posts if the recruitment rules of Govt. then in force were to govern their
~ppointmrent". [61-B·CJ H
57
)

58 SUPREME COURT REPORTS [1995] 2 S.C.R.

A 1.2. Factually, the respondent was promoted as Reader in the medical
college under the Corporation on 2.7.1979. But a notional and fictional date
of promotion as Reader for the purpose of her seniority has been given on
the basis of the second part of Rule 6 w.e.f. 19.1.1977 saying that on that date
she was eligible to be appointed as Reader having fulfilled the qualifications
B prescribed for appointment. The second part of Rule 6 has not been read in
its proper context and spirit either by the State Government or by the
Tribunal. In the said Rule 6 emphasis is not on the eligibility for the post
but on the "period of continuous service rendered by them in the cor-
responding posts." In other words, the period for which the persons who are
being absorbed had rendered continuous service in the corresponding post.
C Out of such period only that period will be taken into consideration, since
when the persons concerned, were eligible to be appointed under the recruit·
ment rules of the Governm-int then in force. [62-E-G]

1.3. Rule 6 does not purport to give a~y notional or fictional seniority
as a Reader. If his interpretation of Rule 6 is accepted the teachers of the
D non-government medical colleges shall affect the seniority of the persons
who had already been appointed as Readers in Government Medical
\
Colleges. [63-B]

Direct Recruit Class II Engineering Officers' Association v. State of
E Maharashtra and Ors., [19901 2 sec 715, followed.
2.1. It is not understood how any notional seniority could have been
conferred by the State Government with reference to the date of eligibilty,
although such person was not holding any such post either by direct recruit-
ment or by promo.tion. In the. present case, there is no dispute that the
F respondent never held the post of Registrar any time prior to 2.7.1979 when
the college was under the Corporation. Hence her mere eligibility on
19.1.1977 to be appointed as Registrar, cannot be a ground to antedate her
promotion as a Reader, so as to affect seniority of the appellant, who had
been appointed as_a Reader in the Medical College on 11.10.1977. [63-E-F]
G 2.2. The object of changing the date of seniority as Reader, so far as
the respondent is concerned, appears to be to make her senior to the
appellant. This benefit could not have been conferred on her, even if she
was from the very bginning in any of the Government Colleges. In the
process of absorption, she cannot affect the seniority of those, who were
H ·aJready in the cadre of the State Government as Readers. [63-G]
PUSHPA(MRS.)(DR.)v. STATE[N.P.SINGH,J.) · 59

CIVIL APPELLATE JURISDICTION: Civl Appeal No. 2216-17 of A
-- 1995.

From the Judgment and Order dated 8.7.93 of the Maharashtra
Administrative Tribunal, Nagpur Bench, Nagpur in T.A. No. 948/91
(Originally W.P. No. 1783/90) and O.A. No. 1355 of 1992.
B
V.A. Bobde and A.G. Ratnaparkhi for the Appellant.

K.M. Reddy and S.M. Jadhav for A.S. Bhasme for the Respondent.

R.K. Mehta for the Respondent No. 4.
c
The Judgment of the Court was delivered by

N.P. SINGH, J. Leave granted in both the SLPs.

The appeal arising out of SLP(C) No. 1628 of 1994 has been filed
against an order dated 8.7.1993 passed by the Maharashtra Administrative D
Tribunal, Nagpur Bench, dismissing the Writ Petition filed on behalf of the
i appellant, before the Nagpur Bench of the High Court of Bombay which
was later transferred to the aforesaid Tribunal. By the petition aforesaid,
the appellant questioned the validity of the seniority list dated 29.4.1989,
so far as it changed the position of respondent No. 4 (hereinafter referred E
to as 'the respondent') from Serial No. 20 to Serial No. 11. The appellant
also sought quashing of the order dated 5.7.1989 promoting the respondent
to the post of Professor, Department of Obstetrics and Gynaecology, on
the basis of the seniority list aforesaid by another application filed before
the Tribunal.
F
The appellant passed the M.B.B.S. examination in the year 1967. She
obtained her Post-Graduate Degree in Obstetrics Gynaecology from Al-
lahabad University in April, 1972. She was appointed as Lecturer in the
Department of Obstetrics and Gynaecology by a Government Order dated
19.1.1977, at Government Medical College, Nagpur, after she was selected
by the Maharashtra Public Service Commission. She joined the said post G
on 11.2.1977. She was appointed by a Government Order dated 6.10.1977,
as Reader in the Department of Obstetrics and Gynaecology at Govern-
ment Medical College, Nagpur, after her selection by the Maharashtra
Public Service Commission. She joined the post of Reader on 11.10.19n
and continued on the said post till 21.10.1981. In the meantime, by a H
'
,/

60 SUPREME COURT REPORTS [1995] 2 S.C.R.

A Government Order dated 15.10.11981, the appellant was appointed as
Associate Professor in the Department of Obstetrics and Gynaecology at
the aforesaid Medical Colleg~, Nagpur,. which post she joined on
22.10.1981. She was the senior most Associate Professor in the said college,
in the departmnent aforesaid.

B So far as the respondent is concerned, she passed her M.B.B.S.
examination in the year 1967 but obtained her Post-Graduate Degree in
Obstetrics and Gynaecology in 1975. She was promoted as Reader on
2.7.1979 in the Indira Gandhi Medical College, Nagpur, 'which was then
under the control and management of the Nagpur Municipal Corporation.
C However, the State Government took over management and control of the
Indira Gandhi Medical College w.e.f. 1.4.1981 from the Nagpur Municipal
Corporation.

A provisional seniority list of Readers was published on 21.11.1986
D and objections were invited. In this seniority list, the appellant was placed
against Serial No. 13, whereas the respondent was placed against Serial No.
20. The date of appointment of the appellant as Reader was shown as
11.2.1979, whereas that of respondent as 2.7.1979. In the final seniority list,
the position of the appellant was shown against Serial No. 14, whereas that
of respondent against Serial No. 20. It is said that in both the draft and
E final seniority lists, it was mentioned against the name of the respondent
that he belonged to the then Non-Government Institution viz. Indira
Gandhi Medical College under Nagpur Municipal Corporation and her ·
date of appointment as Reader was accepted as 2.7.1979 because it was on
that day, she had been promoted as Reader in that Institution. However,
F the State Government published another seniority list on 29.4.1989 in which
the name of respondent was shifted from Serial No. 20 to Serial No. 11 and
the date of appoin.tment of respondent was changed from 2.7.1979 to
19.1.1977. Thereafter by an order dated 5.7.1989, the respondent was
promoted to the post of professor of Obstetrics and Gynaecology on the
basis of the aforesaid seniority list. The alteration of the position of the
G respondent in the seniority list was challenged by the appellant, before the
High Court, by a Writ Petition which as already mentioned above, was
transferred to the Tribunal.

The Indira Gandhi Medical College, Nagpur, which was under the
H control and management of the Nagpur Municipal Corporation, had been
PUSHPA(MRS.) (DR.)v. STATE [N.P: SINGH,J.) 61
taken over by the State Government w.e.f. 1.4.1981 and thereafter the State A
Government was required to refix the seniority of Lecturers, Readers and
other teachers of the said college, in terms of Rule 6 of G.R. of 1.4.1981.
Rule 6 is as follows :-

"The seniority of persons in the posts in which they are ab-
sorbed shall be determined on the basis of the period of continuous B
service rendered by them in the corresponding posts under the
Corporation prior to the appointed day. For this purpose, the
service rendered in the corresponding posts shall be counted from
the date from which the absorbed persons would have been eligible
for appointment to the posts if the recruitment rules of Govt. then c
in force were to govern their appointment."

The recruitment rules for the post of Reader issued in the year 1972
provides the qualification for the post, the relevant part whereof has been
reproduced in the order of the Tribunal as follows :-
D
"A post graduate degree in Obstetrics and Gynaecology such
as M.D., M.S., M.O. of a statutory University or M.R.D.O.G. or
the qualification awarded by the Speciality Board of Obstetrics and
Gynaecology (U.S.A.) or F.R.C.S./M.R.C.P. with Obstetrics and
Gynaecology as a Special subject or a post graduate degree in E
medicine or Surgery of the M.R.C.P./F.R.C.S. qualification with
D.G.O. for. the post of Reader in Obstetrics and Gynaecology; and
possess experience for not less than three years of teaching the
subject concerned as Registrar or Lecturer or in an equivalent post
in a teaching institution."
F
The justification, which has been given on behalf of the State, for altering
the date of promotion of the respondent as a Reader from 2.7.1979 to
19.1.1977, is Rule 6. The Tribunal on the basis of Rule 6 aforesaid has come
to the following conclusion :

"We, therefore, hold that the interpretation of rule 6 by the G
Govt. is in order and correct and are unable to agree with the
interpretation of the learned Advocate for the petitioner. Clearly
on the appointed day, Dr. Guhe was a Reader and was absorbed
as such, her seniority has to be fixed on the strength of rule 6 read
with the recruitment rules of Govt. for the post of Reader, then in H
/
J
62 SUPREME COURT REPORTS (1995] 2 S.C.R.

A force. She has rightly been given the benefit of her acquisition of
requisite qualifications (M.D .. in the year 1975) and continuou.s
service in the post from which she could have been promoted as
a Reader. It is obvious that, second part of Rule 6 is clearly
intended to give benefit- of continuous service in the eligibility
grade for the determination of seniority in the absorbed grade.
B These rules are the rules of merger and absorption and binding
on the .Govt. Because, it, is only on the foundation of these rules
that merger could take place. We therefore, find no substance in
the arguments of the petitioner on this count. Otherwise, the
edifice of merger crumbles.''
c
Rule 6 says that seniority of persons in the posts in which they are
absorbed shall be determined on the basis of the period of continuous
service rendered by them in the corresponding posts under the Corpora-
tion prior to the appointed day i.e. 1.4.1981. There is no dispute so far as
D the first pitrt of Rule 6 is concerned. The dispute is in respect of the second
part which says that for the purpose of the said rule the service rendered
in the corresponding post shall be counted "from the date from which the
absorbed persons would have been eligible for appointment to the posts if
the recuitment rules of Govt. then in force were to govern their appoint-
ment.11 Factually, respondent was promoted as Reader in the Indira Gandhi
E Medical College, Nagpur, then under the management and control of the
Nagpur Municipal Corporation on 2.7.1979. But a notional and fictional
date of promotion as Reader for the purpose of her seniority has been.
given on the basis of the second part of Rule 6 w.e.f. 19.1.1977 saying that
on that dated she was eligible to be appointed as Reader having fulfilled
p the qualifications prescribed for appointment of the Reader referred to
above. According to us, the second part of Rule 6 has not been read in its
proper context and spirit either by the State Government or by the
Tribunal. In the said Rule 6 emphasis is not on the eligibility for the post
but on the 11 period of continuous service rendered by them in the cor-
responding posts." In other words, the period for which the persons who
G are being absorbed had rendered continuous service in the corresponding
posts. Out of such period only that period will be taken into consideration,
since when the perons concerned, were eligible to be appointed under the
recruitment rules of the Government then in force. This can be illustrated
a
by giving an example. In one case, person without a post-graduate degree
H might have been appointed as a Reader in a Non-Government College and
PUSHPA(MRS.)(DR.)v. STATE(N.P.SINGH,J.) 63

he obtains the post-graduate degree later. Similarly, in another case a A
person might have been appointed as a Reader without three years' ex-
perience, as a Registrar or Lecturer in a private institution. While absorb-
ing such person aftt:r the take over, only the continuous service rendered
by him in the corresponding post shall be taken into account, which
commences from the date he fulfilled all the requisite qualificc.tions for B
being appointed to the post of Reader. Rule 6 does not purport to give any
notional or fictio.1al seniority as a Reader. It need not be pointed out that
if this interpretation of Rule 6 is accepted the teachers of the non-
government medical colleges shall affect the seniority of the persons who
had already been appointed as Readers in Government Medical Colleges.
In a series of judgments of this Court, fixation of seniority by conferring C
notional seniority has been deprecated. In this connection, it will be suffice
to refer to the judgment of the Constitution Bench in the case of Direct
·1 Recruit Class II Engineering Officers' Association v. State of Maharashtra
and others, [1990] 2 SCC 715, where it is stated that once an incumbent is
appointed to a post according to rule, his seniority has to be counted from D
the date of his appointment. Even the claim that seniority was linked to
the date of confirmation was negatived. We do not, therefore, understand
how any notional seniority could have been conferred by the State Govern-
ment with reference to the date of eligibility, although such person was not
holding any such post either by direct recruitment or by promotion. In the
present case, there is no dispute that respondent never held the post of E
Re_gistrar in the Department of Obstetrics and Gynaecology any time prior
to 2.7.1979 when the college was under the management of the Corpora-
tion. Hence her mere eligibility on 19.1.1977 to be appointed as Registrar,
cannot be a ground to antedate her promotion as a Reader, so as to affect
seniority of the appellant, who had been appointed as a Reader in the F
Department of Obstetrics and Gynaecology at Government Medical Col-
lege, Nagpur, by the Government Order dated 6.10.1977 which post she
had joined on 11.10.1977. The object of changing the date of seniority_ as
Reader, so for as respondent is concerned, appears to be to make her
senior to the appellant. This benefit could not have been conferred on her,
even if she was from the very beginning in any of the Government Colleges. G
In the process of absorption, she cannot affect the seniority of those, who
were already in the cadre of the State Government as Reader. '

Hence, the appeal is ·allowed and the impugned seniority fut, so far
it fixes the seniority of the respondent w.e.f. 19.1.1977, if quashed. H
_J
64 SUPREME COURTREPORTS (1995] 2 S.C.R.
- /
A The appeal arising out of SLP (C) No. 1629of1994 which had been
filed on behalf of the appellant, questioning the validity of the Order
promoting the respondent as Professor in the Department of Obstetrics
and Gynaecology, on the basis of the aforesaid seniority list is also allowed.
The State Government directed to work out the promotion to the post of
Professor of Obstetrics and Gynaecology taking into consideration the case
B of the appellant and the respondent with reference to their inter se seniority
as determined above. In the facts and circumstances of the case, there will
be no order as to costs.

v.s.s. Appeal allowed.