Full Judgment Text
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PETITIONER:
HARKISHAN SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB & ORS
DATE OF JUDGMENT25/03/1971
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
VAIDYIALINGAM, C.A.
CITATION:
1971 AIR 1602 1971 SCR 223
1971 SCC (2) 58
ACT:
Punjab Civil Medical Service Class I (Recruitment and
Conditions of Service) Rules, rr. 2(c) 5 and 9(3)-Direct
recruitment to Selection Grade--If permitted by rules-
Fixation of seniority in absence of rules. .
HEADNOTE:
The appellant and the third respondent were members of the
Punjab Civil Medical Service, Class I. The second
Respondent, who was serving abroad, was offered the post of
Civil Surgeon in the Punjab Civil Medical Service and he
joined the post of Chief Medical Officer in the Punjab Civil
Medical Service, Class 1, temporarily. Applications for
filling up the post permanently were invited through the.
Public Service Commission, and the second respondent was
selected and appointed. Thereafter, he was appointed in the
Selection Grade of the Punjab Civil Medical Service. Ten
day,. later, the appellant and the third respondent were
also appointed. to the selection Grade.
The appellant impeached the second respondent’s appointment
to the Selection Grade on two grounds: (1) that the
appointment to the Selection ,Grade could only be by
promotion from Punjab Civil Medical Service, Class 1, and
not by direct appointment; and (2) even if the second
respondent could be appointed direct to the Selection Grade
his seniority should be below that of the appellant and the
third respondent, on the ground that the appellant and the
third respondent were senior to the second respondent in the
time scale of Class I Service.
HELD:(1) The Service as defined in r. 2(c) of the
Punjab Civil Medical Service Class I (Recruitment and
conditions of Service) Rules, means the Punjab Civil Medical
Service Class I and the Selection Grade is a part and parcel
of the Punjab Civil Medical Service Class I Therefore, when
r. 5 specifically speaks of appointment to the Service by
direct recruitment it embraces both Class I and the
Selection Grade. The word appointment means both by
promotion and by direct recruitment and is used in that
sense in relation to the selection grade in r. 5 and in
relation to the total number of appointments to the service
in r. 9(3). Direct appointment to Selection Grade is not
only contemplated in rr. 5 and 9(3) but is also implicit in
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them. Further, the rules contemplate direct appointment to
Selection Grade in proper cases when there are no suitable
persons in Class Itime scale who can be promoted to the
Selection Grade. [226A; 228B-F]
(2)The second respondent’s appointment to the post of
Chief Medical Officer was in consultation with the Punjab
Public Service Commission as contemplated by r. 3, but the
seniority list of the Class I service to which the appellant
and the respondents belonged was not fixed. Where there are
no specific rules in regard to the fixation of seniority in
the Selection Grade in the case of direct appointment, the
second respondent, having been recruited earlier than the
appellant and the third respondent, his seniority should not
be disturbed. [228G; 229C-F]
224
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 430 of 1970.
Appeal by special leave from the judgment and order dated
August 13, 1969 of the Punjab and Haryana’ High Court in
L.P.A. No. 288 of 1968.
Jagjit Singh Chawla, K. L. Mehta and S. K. Mehta, for the
appellant.
H.L. Sibbal, Advocate-General, Punjab and R. N. Sachthey
for respondent No. 1.
V.C. Mahajan, S. S. Khanduja and V. P. Kohlo, for res-
pondent No. 2.
The Judgment of the Court was delivered by
Ray, J.--This.is an, appeal by special leave from the judg-
ment dated 13 August, 1969 of the High Court of Punjab and
Haryana.
The appellant was appointed and confirmed in Punjab Civil
Medical Service Class I with effect from 26 February, 1955.
Respondent No. 3 Dr. S. S. Sekhon was confirmed in the same
Class I service, oN 28 February, 1955. The time scale
salary of Class I service is Rs. 600-40-800-50-900 with
efficiency bar at 800/-. A class I officer on promotion to
the selection grade is entitled to Rs. 1000/-.
Dr. Pritam Singh is a Fellow of the Royal College of
Surgeons. He obtained qualifications in various post
graduate medical courses in England and America. In 1961 he
was serving the Government of Uganda in Africa at a salary
of Rs. 3000/p.m. in a permanent pensionable post. The
Punjab Government in the year 1961 offered him the post of
Civil Surgeon in the Punjab Civil Medical Service. Dr.
Pritam Singh expressed his willingness to accept the post at
a suitable salary.
Respondent No. 2 Dr. Pritam Singh was appointed on 16 July,
1962 as Chief Medical Officer in the Punjab Civil Medical
Service Class I in the scale of Rs. 800-50-1500 with a
starting salary of Rs. 1000/- p.m. with such allowances as
might be admissible under the rules. He joined the post
with effect from 4 August, 1962. By an order of the
Governor of Punjab dated 18 December, 1962 the post was
directed to be in addition to the existing posts of Civil
Surgeons both in the selection grade and ordinary grade.
The Government of Punjab thereafter took steps of filling
the post of the Chief Medical Officer, Chandigarh on a
permanent basis through the Public Service Commission. A
public notice
225
inviting applications for the post was issued under the
authority of the Commission in the month of April, 1963.
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Dr. Pritam Singh applied for the post. Neither the
appellant nor respondent Dr. Sekhon applied for the post
because they did not have the requisite qualification
prescribed for the post. Dr. Pritam Singh was selected by
the Punjab Public Service Commission. The order of
appointment by the Governor was issued on 10 May, 1963.
Dr. Pritam Singh was on probation for a period of two years
with effect from the date on which he joined as Chief
Medical Officer, namely, 4 August, 1962, and he was governed
by the Punjab Civil Medical Service Class I Rules. On 30
August, 1963 a formal letter was issued to Dr. Pritam Singh
that the Governor of Punjab in consultation with the Punjab
Public Service Commission had allowed Dr. Pritam Singh the
grant of higher starting pay of Rs. 1250/- p.m. on his
appointment as Chief Medical Officer on a regular basis in
the time scale of Rs. 800-50-1500 with effect from 17 April,
1963 as Principal Medical Officer, Chandigarh which was the
name of the redesignated post of the Chief Medical Officer.
On 9 December, 1965 Dr. Pritam Singh was confirmed with
effect from 17 April, 1963 as Principal Medical Officer,
Chandigarh.
On 20 October, 1966 the respondent Dr. Pritam Singh was
appointed by the President of India in the selection grade
of Punjab Civil Medical Service in the scale of Rs. 1300-50-
1600 with effect from 20 October, 1966.
The appellant impeached the order dated 20 October, 1966
appointing the respondent Dr. Pritam Singh in the selection
grade to be in violation of the, Punjab Civil Medical
Service (Recruitment and Conditions of Service) Rules, 1940
on two broad grounds; first, that the appointment to the
selection grade of Punjab Civil Medical Service could be
only by promotion from Punjab Civil Medical Service Class I
and not by direct appointment, and, secondly, even if Dr.
Pritam Singh could be appointed direct to the selection
grade his seniority would be below that of the appellant and
Dr. Sekhon.
When Dr. Pritam Singh was appointed to the selection grade
he was placed at the bottom of the selection grade. The
appellant and the respondent Dr. Sekhon were also appointed
to the selection grade with effect from 1 November, 1966 10
days subsequent to the appointment of Dr. Pritam Singh. The
appellant and Dr. Sekhon contended that they had been senior
to Dr. Pritam Singh in the time scale of Class I Service and
therefore the respondent Dr. Pritam Singh should not have
been placed senior to them in the selection grade.
15-1 S.C. India/71
226
The punjab civil medical Service, Class I (Recruitment and
Conditions of Service) Rules are 17 in number. Rule 2(c)
defines the service to mean, the Punjab Civil Medical
Service Class I. Rule 3 states that all appointments to the
service shall be made by the Government on the advice of the
Commission from time to time as required. The other
relevant Rules necessary for the purpose of the present
appeal are rules 5, 6, 7(1), 8 and 9 which are as follows:-
"5. Appointment to the service shall be made
either by promotion from the Class 11 service
or by direct recruitment in India or in
England and when any vacancy occurs or is
about to occur, Government shall determine in
what manner such vacancy shall be filled.
Note:Except with the previous sanction of
Government only such persons shall be eligible
for direct appointment as are not already in
Government service.
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6.(1) The service shall consist of such
number of posts of Civil Surgeons as may be
determined by Government from time to time.
(2)Not less than nine posts shall be filled
by promotion from the Class 11 service.
Provided that recruitment by promotion shall
be made by strict selection and no member of
the Class 11
serviceshall have any claim to such
promotions of right.
7. (1) Members of the service who are
appointed against permanent vacancies shall on
appointment remain on probation for a period
of two years if recruited by direct
appointment and one year if recruited
otherwise than by direct appointment.
Explanation:Officiating service shall be
reckoned as period spent on probation but no
member of the service who is officiating in
any appointment shall on the completion of his
period of probation be entitled to be
confirmed until he is appointed against a
permanent vacancy.
8.The seniority of the members of the
service shall be determined by the dates of
their confirmation in the service :
Provided that if two or more members are
confirmed on the same date:
(a) A member recruited by direct appointment
shall be senior to a member recruited by
promotion.
227
(b) in the case of members who are both or
all appointed by promotion from the Class II
service, seniority shall be determined
according to the seniority of those members in
that service and
(c) in all other cases Government shall
decide the seniority.
9.(1) A member of the service shall on
appointment be entitled to a pay of a scale
rising from Rs. 600 a month by an annual
increment of Rs. 40 a month to Rs. 800 a month
and then by an annual increment of Rs. 50 a
month to Rs. 900 a month with an efficiency
bar at Rs. 800 a month. In addition a member
if he is of non-Asiatic domicile shall be
entitled to receive such overseas pay as may
be prescribed by Government from time to time.
(2)Members of the service shall be eligible
for promotion to a selection grade and on such
promotion shall be entitled to a pay of Rs.
1000 a month.
Provided that promotion to the selection grade
shall be made strictly by selection and no
member of the service shall be entitled as of
right to such promotion.
(3)The number of appointments in the
selection grade shall not exceed 25 per cent
of the total number of appointments in the
service,"
Counsel for the appellant contended that rule 9(2) which
,stated that the members of the service shall be eligible
for promotion to the selection grade meant that only the
members of Class I service could be promoted to a selection
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grade and there could be no direct appointment to a
selection grade. A direct appointment to the selection
grade was said by the appellant to be an infraction of rule
9(2). The contention of the appellant with regard to rule 5
was that it spoke of appointment to the service either by
Promotion from Class II or by direct recruitment and
therefore there could be direct recruitment only to Class I
service and not to the selection grade. It was emphasised
that rule 5 did not specifically provide for direct
appointment to selection grade.
Rule 9(2) does not contain any restrictive word that only
members of the service shall be eligible to promotion to a
selection grade. The proviso to rule 9(2) contains a word
of limitation and it is that no member of the service shall
be entitled as of right to such promotion. To exclude
appointment to selection grade would be to rob rule 5 as
well as rules 9(2) and 9(3) of their ,content because rule 5
speaks of appointment to the service to be
228
either by promotion or by direct recruitment. Rule 9(2)
speaks of eligibility of members of the service for
promotion to the selection grade and rule 9(3)speaks of the
number of appointments in the selection grade not to exceed
25 per cent of appointments in the service. The service as
defined in rule 2(c) means the Punjab Civil Medical Service
Class I. Selection grade is the Punjab Civil Medical Service
Class I. That is not disputed. Therefore rule 5 which
specifically speaks of appointment to the service by direct
recruitment embraces Class I and the selection grade which
is a part and parcel of Class I. The word ’appointment’ in
rule 9(3) in regard to selection grade as not exceeding 25
per cent of the total number of appointments in the service
contemplates both promotion and direct appointments in, the
service to the selection grade. The word "appointment"
cannot mean only promotion. It means appointment both by
promotion and by direct recruitment. That is why the word
’appointment’ is used in that sense once in relation to
selection grade and again in relation to the total number of
appointments to the service. Direct appointment to
selection grade is not only contemplated in the rules
particularly rules 5, 9 (2) and 9 (3) but is also the
implicit idea inherent in the words "direct recruitment and
direct appointment" in Rule 5 for the purpose of attracting
able and meritorious persons to the service including the
selection grade. The fallacy in the appellant’& contention
is that though selection grade will be within the definition
of the service in rule 2(c), wherever the word "service"
occurs, in rules 5 and 9, the construction put upon the
words ’service’ is members of the service who are in Class I
on time scale appointment and who alone can be promoted to
the selection grade and that there cannot be any direct
appointment to selection grade.
There is another reason as to why the rules contemplate
direct appointment to selection grade in proper cases. If
it appears that there are not suitable persons in Class I
time scale who can be promoted to the selection grade
persons of ability will have to be brought in to the
selection grade from outside.
A contention was advanced by counsel for the appellant that
rule 3 contemplated appointment by the Government on the
advice of the Public Service Commission and that the
appointment of Dr. Pritam Singh was not made on such advice.
The recruitment of Dr. Pritam Singh to the post of Chief
Medical Officer was in consultation with the Punjab Public
Service Commission. That appointment was made in the month
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of May, 1963. Being a direct recruit he was an probation
for two years. He was confirmed thereafter. His starting
salary was higher and at the time of confirmation he was
getting a salary of Rs. 1,250 p.m. in the scale of Rs. 800-
50-1500. Dr. Pritam Singh prior to his appointment to the
selection grade in the Punjab Civil Medical Service Class I
was getting a salary of Rs. 1,250 p.m. which was higher than
the limit of time scale pay in Class I service.
229
The other contention on behalf of the appellant was that Dr.
Pritam Singh should not have got seniority, over the
appellant and the respondent Dr. Sekhon in the selection
grade. Prior to the appointment of Dr. Pritam Singh to the
selection grade the seniority list of Class I service to
which the appellant and the two respondents belonged was not
fixed because of representations made by various persons
including the appellant and Dr. Sekhon. We are not called
upon to go into the seniority list of Class I service
because the only controversy now is with regard to the
seniority list of the selection grade.
The appointment of Dr. Pritam Singh to the selection grade
was earlier than that of the appellant and Dr. Sekhon.
Therefore, there cannot be any cause for complaint on ground
of seniority. When Dr. Pritam Singh was appointed to the
selection grade his position was last in the list. That was
on 20 October, 1966. The appellant and Dr. Sekhon were
promoted to the selection grade 10 days thereafter and their
position would be in the ordinary course below Dr. Pritam
Singh. It would be unjust to hold that the appellant and
Dr. Sekhon would be put at a place higher than Dr. Pritam
Singh, in the selection grade.
The High Court correctly expressed the view that there are
no specific rules in regard to the fixation of seniority in
the selection grade in the case of a direct appointment. If
there are, no relevant rules with regard to fixation of
seniority in the case of a direct appointment to the
selection grade, Dr. Pritam Singh having been recruited by
direct appointment earlier than the appellant and Dr.
Sekhon, Dr. Pritam Singh’s seniority cannot be disturbed.
That will be unjust.
For these reasons, the appeal fails and is dismissed. The
parties will pay and bear their own costs.
V.P.S. Appeal dismissed.
230