Dr. Suresh Prasad Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the appointment of the appellant as assistant civil surgeon was clearly a fresh appointment through the state public service commission under notification dated 28.6.1974 and hence, under what authority of law the petitioner/appellant can claim the services rendered by him as seasonal epidemic doctor so as to count the same towards his service as assistant civil surgeon, is beyond the comprehension of this court.order1. this appeal has been preferred against the order dated 23.8.2006 passed by the learned single judge in wp (s) no. 5254/2003 by which the writ petition was dismissed as a result of which the claim of the petitioner/appellant herein to grant him the benefit of the services rendered by him for the period from 1.8.1972 to 11.7.1974 was denied by virtue of which he was claiming also the benefit under the assured career progression scheme.2. to explain the controversy it may be relevant to state that the petitioner/appellant herein had filed a writ petition before the learned single judge praying therein to grant him the benefit of services rendered by him with effect from 1.8.1972 to 11.7.1974 on the basis of which he was claiming further promotion under rajendra institute of medical science, ranchi (hereinafter referred to as 'rims'). the benefit of the service from 1.8.1972 to 11.7.1974 was denied to the petitioner/appellant by the respondents which has been upheld by order of the learned single judge as it could be noticed that the petitioner/appellant had been appointed as a seasonal epidemic doctor on 1.8.1972 for a period of four months which was a non-gazetted post. after he completed the service on seasonal basis a fresh advertisement was issued for appointment on the post of assistant civil surgeon and the petitioner/appellant also applied for the post and after adopting all the legal formalities for selection which was conducted by the public service commission he was granted appointment on the post of assistant civil surgeon by notification no. 3551 dated 28.6.1974 in pursuance to which he joined the post on 12.7.1974.3. thereafter the petitioner/appellant was also promoted on the post of tutor, assistant professor and associate professor and still he is claiming promotion on the higher post. the petitioner/appellant started claiming that while computing his length of service as assistant civil surgeon the duties discharged by him for the period during which he was functioning as seasonal epidemic doctor from 1.8.1972 to 11.7.1974, should have been included towards his service as assistant civil surgeon which was denied by the respondents due to which he filed a writ petition before the learned single judge but the same was dismissed as already recorded hereinbefore.4. the counsel for the petitioner/appellant therefore has vehemently argued that the services rendered by the petitioner/ appellant from 1.8.1972 to 11.7.1974 also should be counted towards his service as assistant civil surgeon. but, on perusal of the appointment order of 1972 it could be instantly noticed that the said order was not an appointment order on the post of assistant civil surgeon as he was discharging duties as epidemic doctor for a fixed period although the emoluments which the petitioner/appellant might have been getting was exactly similar to the post which he was receiving as an assistant civil surgeon. the appointment of the appellant as assistant civil surgeon was clearly a fresh appointment through the state public service commission under notification dated 28.6.1974 and hence, under what authority of law the petitioner/appellant can claim the services rendered by him as seasonal epidemic doctor so as to count the same towards his service as assistant civil surgeon, is beyond the comprehension of this court. we, therefore, concur with the view taken by the learned single judge and hence this appeal is dismissed at the admission stage itself.

Judgment:
ORDER

1. This appeal has been preferred against the order dated 23.8.2006 passed by the learned single Judge in WP (S) No. 5254/2003 by which the writ petition was dismissed as a result of which the claim of the petitioner/appellant herein to grant him the benefit of the services rendered by him for the period from 1.8.1972 to 11.7.1974 was denied by virtue of which he was claiming also the benefit under the Assured Career Progression scheme.

2. To explain the controversy it may be relevant to state that the petitioner/appellant herein had filed a writ petition before the learned single Judge praying therein to grant him the benefit of services rendered by him with effect from 1.8.1972 to 11.7.1974 on the basis of which he was claiming further promotion under Rajendra Institute of Medical Science, Ranchi (hereinafter referred to as 'RIMS'). The benefit of the service from 1.8.1972 to 11.7.1974 was denied to the petitioner/appellant by the respondents which has been upheld by order of the learned single Judge as it could be noticed that the petitioner/appellant had been appointed as a Seasonal Epidemic Doctor on 1.8.1972 for a period of four months which was a Non-Gazetted Post. After he completed the service on seasonal basis a fresh advertisement was Issued for appointment on the post of Assistant Civil Surgeon and the petitioner/appellant also applied for the post and after adopting all the legal formalities for selection which was conducted by the Public Service Commission he was granted appointment on the post of Assistant Civil Surgeon by Notification No. 3551 dated 28.6.1974 in pursuance to which he joined the post on 12.7.1974.

3. Thereafter the petitioner/appellant was also promoted on the post of Tutor, Assistant Professor and Associate Professor and still he is claiming promotion on the higher post. The petitioner/appellant started claiming that while computing his length of service as Assistant Civil Surgeon the duties discharged by him for the period during which he was functioning as Seasonal Epidemic Doctor from 1.8.1972 to 11.7.1974, should have been included towards his service as Assistant Civil Surgeon which was denied by the respondents due to which he filed a writ petition before the learned single Judge but the same was dismissed as already recorded hereinbefore.

4. The counsel for the petitioner/appellant therefore has vehemently argued that the services rendered by the petitioner/ appellant from 1.8.1972 to 11.7.1974 also should be counted towards his service as Assistant Civil Surgeon. But, on perusal of the appointment order of 1972 it could be instantly noticed that the said order was not an appointment order on the post of Assistant Civil Surgeon as he was discharging duties as epidemic doctor for a fixed period although the emoluments which the petitioner/appellant might have been getting was exactly similar to the post which he was receiving as an Assistant Civil Surgeon. The appointment of the appellant as Assistant Civil Surgeon was clearly a fresh appointment through the State Public Service Commission under Notification dated 28.6.1974 and hence, under what authority of law the petitioner/appellant can claim the services rendered by him as Seasonal Epidemic Doctor so as to count the same towards his service as Assistant Civil Surgeon, is beyond the comprehension of this Court. We, therefore, concur with the view taken by the learned single Judge and hence this appeal is dismissed at the admission stage itself.