Archana Chouhan Pundir vs State Of M.P.& Ors

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.