Full Judgment Text
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CASE NO.:
Appeal (civil) 2478-79 of 2000
PETITIONER:
UNION OF INDIA AND ANR.
Vs.
RESPONDENT:
LALITA S. RAO & ORS.
DATE OF JUDGMENT: 10/04/2001
BENCH:
G.B. Pattanaik, U.C. Banerjee & B.N.. Agrawal
JUDGMENT:
WITH
Civil Appeal No. 2480 of 2000 and
Civil Appeal No. 2680 of 2001.
(@ S.L.P.(c) No. 18846 of 1999)
JUDGMENT
L...I...T.......T.......T.......T.......T.......T.......T..J
PATTANAIK,J.
Leave granted in S.L.P.(C) No. 18846/99.
The determination of inter se seniority between the two
categories of doctors engaged by the Raililway
Administration is the subject matter of dispute in these
batch of cases. It would be necessary to state the facts in
a greater detail in view of the chequard history of the
case. Prior to 1986, normal recruit to the post of
Assistant Medical Officers under the Railway Administration
was being made through a process of selection by the Union
Public Service Commission. There was no statutory rule
framed for the purpose of recruitment. Government of India
in the Ministry of Railway through the Railway Board had,
however, permitted the General Managers to recruit Assistant
Medical Officers in Class II on ad hoc basis for a period
not exceeding six months and such power had been conferred
in the public interest as the process of selection through
Union Public Service Commission was taking some time. The
ad hoc recruits, however, were advised to apply to Union
Public Service Commission in response to the advertisement
to be issued by the Commission for getting regular
appointment. The administrative instructions dated 21st
May, 1966, unequivocally indicated that the ad hoc
appointees should be made known that their services would
stand terminated as soon as candidates selected by the
Commission become available. The aforesaid Government Order
also provided that the ad hoc appointees could be retained
beyond six months with prior approval of the Board. Some
time in the year 1986 several such doctors having failed in
their attempt to get selected through the Union Public
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Service Commission apprehended termination of their
services, therefore, a batch of Writ Petitions were filed in
this Court under Article 32, which stood disposed of by
judgment dated 24th September, 1987, (Dr. A.K. Jain and
others vs. Union of India & Ors. reported in 1987
(Supp.) Supreme Court Cases 497). By the time these Writ
Petitions were taken up for consideration a set of
Recruitment Rules have been framed under the proviso to
Article 309 of the Constitution, called The Indian Railway
Medical Department (Assistant Medical Officers Class II)
Recruitment Rules, 1977, (hereinafter referred to as The
Recruitment Rules), and the said Rule never contemplated of
any ad hoc appointment. Even under the provisions of the
Railway Establishment Code, which governs the recruitment of
the Group A service in the various departments of
Railways, as indicated in Section 205, no ad hoc recruitment
was contemplated, and as such, the ad hoc appointments were
in the exigencies of service to meet a particular
contingency under the Administrative Orders of the Board.
This Court disposed of the batch of cases with following
directions:-
(1) The services of all doctors appointed either as
Assistant Medical Officers or as Assistant Divisional
Medical Officers on ad hoc basis up to October 1, 1984 shall
be regularised in consultation with the Union Public Service
Commission on the evaluation of their work and conduct on
the basis of their confidential reports in respect of a
period subsequent to October 1, 1982. Such evaluation shall
be done by the Union Public Service Commission. The doctors
so regularised shall be appointed as Assistant Divisional
Medical Officers with effect from the date from which they
have been continuously working as Assistant Medical
Officer/Assistant Divisional Medical Officer. The Railway
shall be at liberty to terminate the services of those who
are not so regularised. If the services of any of the
petitioners appointed prior to October 1, 1984 have been
terminated except on resignation or on disciplinary grounds,
he shall be also considered for regularisation and if found
fit his services shall be regularised as if there was no
break in the continuity of service but without any back
wages.
(2) The petitions of the Assistant Medical
Officers/Assistant Divisional Medical Officers appointed
subsequent to October 1, 1984 are dismissed. But however
direct that the Assistant Divisional Medical Officers who
may have been now selected by the Union Public Service
Commission shall first be posted to the vacant posts
available wherever they may be. If all those selected by
the UPSC cannot be accommodated against the available vacant
posts they may be posted to the posts now held by the
doctors appointed on ad hoc basis subsequent to October 1,
1984 and on such posting the doctor holding the post on ad
hoc basis shall vacate the same. While making such postings
the principle of last come, first go shall be observed by
the Railways on zonal basis. If any doctor who is displaced
pursuant to the above direction is willing to serve in any
other zone where there is a vacancy he may be accommodated
on ad hoc basis in such vacancy.
(3) All Assistant Medical Officers/Assistant Divisional
Medical Officers working on ad hoc basis shall be paid the
same salary and allowances as Assistant Divisional Medical
Officers on the revised scale with effect from January 1,
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1986. The arrears shall be paid within four months.
(4) No ad hoc Assistant Medical Officer/Assistant
Divisional Medical Officer who may be working in the
Railways shall be replaced by any newly appointed AMO/ADMO
on ad hoc basis. Whenever there is need for the appointment
of any AMO/ADMO on ad hoc basis in any zone the existing ad
hoc AMO/ADMOs who are likely to be replaced by regularly
appointed candidates shall be given preference.
(5) If the ad hoc doctors appointed after October 1,
1984 apply for selection by the Union Public Service
Commission the Union of India and the Railways Department
shall grant relaxation in age, to the extent of the period
of service rendered by them as ad hoc in the Railways.
Be it be stated the Court took a compassionate view of
the matter and directed regularisation of the ad hoc doctors
in consultation with the Union Public Service Commission on
the evaluation of their work and on the basis of their
Confidential Reports, but did not indicate as to how their
seniority in the cadre could be determined. An
Interlocutory Application, titled Dr. M.Haque and ors. vs.
Union of India was thereafter filed in this Court for
appropriate direction as to how their seniority could be
determined. This application was disposed of by order dated
18.2.1993, since reported in 1993 (2) SCC 213. Before
filing of the aforesaid Interlocutory Application the Union
of India had itself moved an application before the Court
and that stood disposed of by order dated 1.11.1988 and the
order was to the following effect:-
We have heard learned counsel for the Union of India
(the applicant in this civil miscellaneous petition) and the
learned counsel for the petitioners in the writ petition.
In the circumstances of the case we feel that the Union
Government should be directed to implement the order passed
by us in the Writ Petition Nos 522, 875, 180 and 200 of 1987
and connected cases on September 24, 1987 in full except to
the extent of fixing the inter se seniority between the
petitioners in the writ petition and the direct recruits.
We accordingly made an order in this case. The question of
seniority, however, is left to be decided by the Government
in the light of the decision to be rendered by this Court in
the cases which are pending before the Constitution Bench
involving similar questions. If any person is aggrieved by
the decision of the Government on the question of seniority
he is at liberty to question it in an appropriate forum.
The order passed by us in the writ petition subject to the
above modification shall be complied with by the Union
Government within two months without failure.
The civil miscellaneous petition is disposed of
acordingly.
In Interlocutory Application this Court was concerned
with those Assistant Divisional Medical Officers who had
been appointed between 1968 and 1st October, 1984, whose
services stood regularised pursuant to the order of this
Court in Jains case (1987 (Suppl.) SCC 497), but the
seniority had not been fixed up. The Court for fixing the
inter se seniority of the doctors considered the existence
of three classes of Assistant District Medical Officers
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(i) The outsiders who have been directly recruited
through Union Public Service Commission on the basis of
written test or interview;
(ii) Ad hoc appointees who were initially recruited ad
hoc but in the course of their continuance as ad hoc came to
be regularly recruited through Union Public Service
Commission by appearing in the written examination and
interview;
(iii) The petitioners in Dr. Jains case who either did
not appear in the written examination and interview or had
failed to get through the UPSC examination but could be
regularised because of the Courts order dated 24th
September, 1987 (1987 Suppl. Supreme Court Cases 497), as
well as the Clarificatory order passed on 1.11.1988 on the
application filed by the Union of India. By the date an
Interlocutory Application was being considered the
Constitution Bench decision in the Direct Recruit Class II
Engineering Officers Association case had already been
pronounced. (1990 (2) Supreme Court Cases 715). The Court
considered the principles evolved in the direct recruits
case and held that neither guideline A nor guideline B
would govern the case of those Assistant Divisional Medical
officers who could be regularised only in pursuance to the
earlier orders of the Court in Jains case(supra). The
Court ultimately held that so far as, the outsiders, who
have been directly recruited through the UPSC and the ad hoc
appointees, who have been also regularised by appearing in
the written examination conducted by the UPSC and being
selected by the UPSC, their seniority will be determined
according to the dates of their regular appointment and the
ad hoc appointees who could not get selected or did not
appear in the examination conducted by the UPSC could be
placed in the seniority list after two former categories.
It may be stated for the purpose of convenience that the
nomenclature of these three categories of doctors is
assigned as :- (i)outsiders, directly recruited doctors on
the basis of selection through UPSC; (ii) insiders, ad hoc
recruits those regularised after being successful in the
UPSC examination and on being selected by the UPSC, and
(iii) the unsuccessful Medical Officers through UPSC who
stood regularised pursuant to the orders of the Court in Dr.
A.K. Jain (supra) and the subsequent clarificatory order
dated 1.11.1988 on the application filed by the Union of
India. In the application which was disposed of by order
dated 18.2.1993 (1993 (2) SCC 213) this Court was actually
concerned with evolving a principle of determining inter se
seniority between the third category of Medical Officers,
namely, who were regularised pursuant to the order of this
Court in Dr. A.K. Jains case and the direct recruit
Medical Officers appointed on the basis of they being
selected by the Union Public Service Commission. The inter
se dispute between those outsiders direct recruits and the
insiders direct recruits, who were initially appointed on ad
hoc basis but got themselves selected by appearing in the
examination through UPSC had not been really in issue though
in the ultimate analysis the Court had made some observation
in respect of them. While the matter stood thus Dr. P.
Srinivasulu and 20 others who belong to the second category,
namely, insider ad hoc recruits who got themselves
regularised after being selected by the UPSC either by
written examination or by interview filed an application
before the Central Administrative Tribunal, Principle Bench,
New Delhi which was registered as O.A. No. 1603 of 1987.
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The Tribunal in the aforesaid case came to the conclusion
that the ad hoc appointees being regularised after being
selected through the UPSC would be entitled to get their ad
hoc period also counted towards seniority, and therefore,
the seniority list that had been drawn up on 10th June, 1987
was quashed. This order of the Tribunal is dated 18th
March, 1993. It may be stated herein that the Interlocutory
Application that had been filed in Writ Petition No. 1165
of 1986 though had been disposed of on 18th February 1993
but the same had not been brought to the notice of the
Tribunal. The order of the Tribunal was assailed by the
Union of India in Special Leave Application, which was
registered as SLP(C) No. 10714 of 1993, but the Court
refused to grant leave after hearing the counsel for parties
by order dated 15.11.1993. While dismissing the Special
Leave Application the Court did consider the order dated
18th February, 1993 passed in Interlocutory Application
(1993 (2) Supreme Court Cases 213) and came to the
conclusion that the two category of people who are being
dealt with are different and what has been stated in
Interlocutory Application will have no application to the
case of Srinivasulu since Srinivasulu and others had been
selected through UPSC and got regularised. The Union of
India thereafter filed an application for clarification and
modification of the order dated 15.11.1993, which was
registered as I.A. No. 2 in Special Leave Petition No.
10714/93. But that was also dismissed by order dated
13.5.1994 holding that no clarification is needed. It
appears, that several Writ Petitions, filed under Article 32
of the Constitution, some by the Doctors Association and
some by the individual were also dismissed by this Court
subsequent to the aforesaid order dated 28th February, 1993
and the order in Srinivasulus case was implemented and
those of the doctors who were party to the said case (21 in
number) their seniority was revised by the Union of India by
order dated 24th August, 1994. One doctor D.P. Pande, a
direct recruit, had filed a Writ Petition under Article 32,
which was registered as Writ Petition No. 612 of 1994, that
was, however, dismissed by the Court on 4.10.1994. While
dismissing the Writ Petition this Court had observed that
dismissal will not prevent the petitioners from moving the
Tribunal or any other appropriate forum. Said Dr. Pande
then approached the Central Administrative Tribunal,
Principal Bench, but the application was dismissed for
default. A Writ Petition was filed by a Dr. Satish
Chandra, which was registered as Writ Petition No. 30 of
1995. But that was withdrawn and he filed a Special Leave
Petition which was registered as S.L.P. (Civil) No. CC
4125 of 1995. That was also dismissed by order dated
11.4.1997. Dr. Lalita Rao respondent no. 1 in Civil
Appeal Nos. 2478- 79 of 2000, filed application before the
Central Administrative Tribunal, Principal Bench, New Delhi
claiming same benefit that had been given to Srinivasulu.
This Application was registered as OA No. 321 of 1996. The
Direct Recruits Railway Doctors Association also filed a
Writ Petition in Delhi High Court, which was registered as
C.W.P. 2802 of 1997. Some direct recruit doctors also
individually filed Writ Petition in Delhi High Court, which
was registered as Writ Petition No. 2795 of 1997. Delhi
High Court by judgment dated 16.4.1999 dismissed the Writ
Petitions filed on the ground that the Special Leave
application against the judgment of the Tribunal in
Srinivasulus case having been dismissed the relief sought
for by the direct recruits cannot be granted. The said
judgment of the Delhi High Court is under challenge in this
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Court in C.A. No. 3057 of 1999. Civil Appeal No. 2478-79
of 2000 have been filed by the Union of India against the
said judgment of Delhi High Court dated 16.4.1999 passed in
Civil Writ Petition Nos. 2802 of 1997 and 2795 of 1997, one
filed by the Direct Recruits Railway Doctors Association and
the other filed by some individual direct recruit doctors.
When the matter had been placed before this Court on 13th
January, 2000, prima facie being of the view the direction
in Haques case would run contrary to the directiions in
Srinivasulus case, the case had been placed before a three
Judge Bench. The three Judge Bench by order dated 31st
March, 2000 granted leave and that is how the matter has
finally been heard by a three Judge Bench. Against the
judgment of Delhi HIGH COURT in Civil Appeal Nos. 2802/97
and 2795 of 1999, the Direct Recruits Railway Doctors
Association have moved this Court in Civil Appeal No. 2480
of 2000. The Indian Railways Medical Officers (ad hoc)
Association through its General Secretary doctor Sudhir
Sharma and one doctor C.P. Singh filed an Application
before the Central Administrative Tribunal praying that
their past services as ad hoc doctor should also be counted
for the purpose of their seniority as directed in
Srinivasulus case. This application was registered as O.A.
No. 1555 of 1996. Dr. Brahm Prakash & Anr. who are
petitioners in Special Leave Petition No. 18846 of 1999
were allowed to intervene in the said proceedings. Tribunal
ultimately allowed the application and following the
judgment in Srinivasulus case called upon the authorities
to re-fix the seniority. That judgment of the Tribunal was
assailed before the Delhi High Court by filing a Writ
Petition, which was registered as CWP No. 3916 of 1999. A
Division Bench of High Court dismissed the Writ Petition on
the ground that against the earlier judgment of the Division
Bench in C.W.P. Nos. 2795 of 1997 and 2802 of 1997, a
Special Leave Petition, filed by the Direct Recruits doctors
having been dismissed nothing survives in the matter. As
stated earlier, the aforesaid judgment of the Delhi High
Court in C.W.P. Nos. 2795 of 1997 and 2802 of 1997 is the
subject matter of challenge in Civil Appeal Nos. 2478-79 of
2000, filed by the Union of India.
The Railway Establishment Code contains the general
provisions indicating the method of recruitment to Group A
service in the various departments of railways as in
Paragraph 205. The same is quoted hereinbelow in extenso:-
205. Method of Recruitment:- Recruitment to Group A
service in the various departments of Railways shall be made
through
(a) Competitive Examination held by the Union Public
Service Commission;
(b) Promotion of officers in Group B Service including
officiating Group B Railway officers of the service or
department;
(c) By appointment of candidates initially
recruited as Special Class Apprentices
on the results of the examination
conducted by U.P.S.C. in accordance
with the rules for recruitment to Indian
Railway Service of Mechanical
Engineers.
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(d) By transfer of an officer in service of the
Government provided the recruitment rules include a
provision to this effect.
(e) By occasional admission of other qualified persons
in consultation with the U.P.S.C.
It thus stipulates that recruitment could be made by a
competitive examination held by the Union Public Service
Commission by promotion of officers from Group B, by
appointment of candidates initially recruited as Special
Class Apprentice, by transfer of an officer in service of
the government, provided Recruitment Rules included
provision to the said effect and by occasional admission of
other qualified persons in consultation with the Union
Public Service Commission which would obviously be a direct
recruitment. The President of India, in exercise of powers
conferred by the proviso to Article 309 of the Constitution
made a set of Rules for recruitment to the post of Assistant
Medical Officers (Class II) called, The Indian Railways
Medical Department (Assistant Medical Officer Class II)
Recruitment Rules, 1967 (hereinafter referred to as The
Recruitment Rules of 1967). The said Rule came into force
with effect from 29th July, 1967. Rule 4 of the aforesaid
Rules provides, that the method of recruitment to the post,
age limit, qualification and other matters connected
therewith, would be as specified in Columns 5 to 13 of the
Schedule. Rule 8 is the power of relaxation of the Central
Government and that power could be exercised only after
recording reasons in writing and that also must be in
consultation with the Union Public Service Commission. So
far as the Assistant Medical Officer is concerned, the
Recruitment Rules of 1967 provides that it could be by
promotion to the extent of 25% and by direct recruitment
including occasional recruitment from other sources in
consultation with the UPSC to the extent of 75%, and failing
both the aforesaid methods then by transfer on deputation.
Prior to the aforesaid Recruitment Rules there was no
statutory rule, and therefore, recruitments were being made
in accordance with paragraph 205 of the Railway
Establishment Code and the Assistant Medical Officer being a
post in Group A service it was being made through Union
Public Service Commission. The letter of the Ministry of
Railways, Government of India dated 21.5.1966 clearly
assumes the aforesaid position and by this letter General
Managers were permitted to recruit Assistant Medical
Officers in Class II on an ad hoc basis for a period not
exceeding six months even though by the date of the issuance
of the aforesaid letter Union Public Service Commission had
already advertised the vacancies and made arrangements to
complete the selections expeditiously. It would be
appropriate to extract the aforesaid letter in extenso
hereunder :-
New Delhi, dated 21.5.1966
No.E(GR)I-66-RC12-3
The General Managers
All Indian Railways including CLW and DLW,
The Chief Administrative Officer,
Sub: Recruitment of Assistant Medical Officers
on the Indian Railways.
,,,,
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Reference Boards letter No. E(GR)I-66 RC12-1 dated
20.4.1966 addressed to the Secretary, Union Public Service
Commission and copy endorsed to all Railway Administrations.
The Union Public Service Commission have advertised the
vacancies and made arrangements to complete the selections
as expeditiously as possible.
2. However, in order to enable Railway Administrations
to man the existing vacant posts which cannot, in the public
interest, continue to be kept unfilled until candidates
selected by the Commission become available, the Board have
with the approval of the President, decided that the General
Managers may recruit Assistant Medical Officers in Class II
on an ad hoc basis for a period not exceeding six months.
The candidates so appointed should be advised to apply to
the Union Public Service Commission in response to the
advertisement issued by them for filling vacant posts of
Assistant Medical Officers on Railways and it should be made
perfectly clear to them that their services are purely
temporary and will be terminated as soon as candidates
selected by the Commission become available. The
particulars of candidates so appointed viz. their names,
qualifications, experience, date of birth, date of
appointment, etc. may please be forwarded to this office in
due course.
3. The Union Public Service Commission advertisement
for posts of Assistant Medical Officers has appeared on
todays papers. The Assistant Medical Officers recruited on
ad hoc basis by General Managers should fulfil the
qualifications laid down therein. A copy of the
advertisement is enclosed.
4. The Board have also suggested that you may try to
obtain assistance from State Governments by getting
qualified doctors on the normal deputation terms for a short
period of about six months.
5. Assistant Medical Officers appointed on ad hoc basis
should not be retained in service beyond six months without
Boards prior approval. Where, due to non-availability of
candidates selected by the Commission, it becomes necessary
to continue the appointment of locally recruited doctors a
reference should be made to the Board two clear months in
advance.
The 1967 Recruitment Rules stood superseded on 16th
September, 1977 when the President of India enacted, in
exercise of powers conferred by the proviso to Article 309,
another set of Rules called, The Indian Railway Medical
Service (Assistant Divisional Medical Officer) Recruitment
Rules, 1977. The aforesaid Rules were given retrospective
effect and must be deemed to have come into force from
16.10.1976. Rule 3 of 1977 Recruitment Rules also provides
that the method of recruitment, age limit, qualifications
and other matters relating to the post of Assistant District
Medical Officer would be as specified in columns 5 to 13 of
the Schedule. Rule 7 of 1977 Rules further provides that
the persons who are recruited under the Rules to post to
which the conditions prescribed in Rule 2423 (CSR) 404B of
the Indian Railway Establishment Code applies, shall be
eligible to the benefit of the provisions contained in that
Rule. By the time the 1977 Rules came into force there had
been re- organisation of the cadre on the basis of
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recommendations of the Third Central Pay Commission, being
accepted by the Government of Indian and Class II cadre in
the Railway Medical Service (which was the post of Assistant
District Medical Officer in the 1967 Recruitment Rules),
stood abolished and a combined junior and senior scale was
introduced, the cadre being Assistant Divisional Medical
Officer. This is apparent from the Resolution of the
government of India dated 1st May, 1974, as notified in the
Gazette. In the Recruitment Rules of 1977, so far as for
the post of Assistant Divisional Medical Officers, the
method provided was either by direct recruitment or by
promotion or by deputation/transfer and the percentage of
vacancies to be filled by various methods was to be decided
in consultation with the Union Public Service Commission.
So far as the outsider direct recruitment is concerned, the
same was required to be made through a written examination
followed by interview, on the basis of such schemes of
examination to be decided from time to time, in consultation
with the Union Public Service Commission, and failing the
direct recruitment it could be by transfer on deputation.
The scale of pay for the post of Assistant Divisional
Medical Officer was Rs.700-40-900-EB-50-1250-EB-50-1600.
Though the post of Assistant District Medical Officer, as
provided in the Railway Establishment Code as well as in the
1967 Recruitment Rules stood abolished under the Recruitment
Rules of 1977, but a note was appended indicating that
existing Assistant Medical Officers (Group B) shall continue
in Group B post in scale of pay of Rs.650-1200 till such
time they are selected for absorption in Group A Grade of
Assistant Divisional Medical Officer in consultation with
the Union Public Service Commission. By the time the 77
Recruitment Rules came into force the Union Public Service
Commission had already issued advertisement on 16th October,
1976 to hold examination for filling up the post of
Assistant Divisional Medical Officer Class I, the said cadre
having come into existence in the year 1974 on acceptance of
the recommendaion of Third Central Pay Commission by
Government of India, and therefore, to regularise the matter
1977 Recruitment Rules was given retrospective effect with
effect from 16.10.1976. We have devoted a considerable
attention to these Rules, as in the earlier cases referred
to, in Haques case (supra) as well as Srinivasulus and
others, the relevant Recruitment Rules had not been brought
to the notice of the Court. It is too well settled, that
the seniority of an employee in a cadre has to be determined
in accordance with the Rules if such Rules provided for the
same. But if such Rules do not make any provision or do not
fix the criteria for determination of seniority of the
employees in a cadre then the same could be determined on
the principles enunciated by the Constitution Bench decision
in the Direct Recruits Engineering Officers case 1992 (2)
Supreme Court Cases. This being the position, and in view
of the letter of Government of India, in the Ministry of
Railways dated 21.5.1966 authorising General Managers to
recruit Assistant Medical Officer Class II on ad hoc basis
for a period not exceeding six months, and further
indicating that such ad hoc appointees should apply to the
Union Public Service Commission in response to the
advertisement issued by the Commission, those of the ad hoc
appointees who had not got themselves regularised by getting
themselves selected through UPSC examination will not be
entitled to claim the benefit of their ad hoc period for
being counted for the purposes of seniority in the cadre,
after they were regularised pursuant to order of this Court
in A.K.Jains case (supra) . In fact the directions
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contained by this Court in Dr. Jains case (supra) deals
with all the ad hoc doctors appointed either as Assistant
Medical Officer or as Assistant Divisional Medical Officer
upto October 1, 1984 should be regularised in consultation
with the UPSC on the evaluation of their work. The Court
having issued the direction for regularisation even in
respect of Assistant Divisional Medical Officers appointed
after coming into force of the Recruitment Rules of 1977,
advisedly did not indicate as to how their seniority in the
cadre would be determined and these group of officers who
got themselves regularised in pursuance to the order of the
Court were treated to be a separate group by itself in the
Clarificatory Order of this Court. When the Union of India
moved application finding difficulty in adjusting the
seniority of those ad hoc doctors appointed upto 1st
October, 1984, who were regularised pursuant to the
direction of the Court dated 24th September, 1987 in Dr.
A.K. Jains case (supra) that application was disposed of,
as already indicated, by order dated 1.11.1988. In the said
order it was specifically indicated that the inter se
seniority between the direct recruits and the ad hoc
recruits who got themselves regularised under the orders of
the Court in Jains case (supra) should be decided by the
Government in the light of the decision to be rendered in
the cases which are pending before the Constitution Bench
involving similar questions. After the Constitution Bench
decision in the Direct Recruits Class II Engineering
Officers Association case (supra) an Interlocutory
Application No. 1 of 1992 was filed and that stood disposd
of by order dated February 18, 1993, called Dr. M.A.
Haques case (supra). In paragraph 7 of the said order the
Court has kept in mind three classes of Assistant District
Medical Officers, namely, the outsiders directly recruited
through UPSC, ad hoc appointees who came to be recruited
through UPSC by appearing in the written examination or
interview; and those who had filed I.A. were also ad hoc
appointees but did not appear in a written
examination/interview or had failed to get through but could
be regularised in service because of the Courts
intervention and order dated 24.9.1987 and 1.11.88. So far
as the direct recruits are concerned, both outsiders and
insiders, it was held, that the same should be determined
according to the dates of their regular appointments through
UPSC and so far as those ad hoc appointees who could be
regularised only pursuant to the order of the Court they
were directed to be placed after those direct recruits who
had been recruited till the date of the order. In other
words even in case of insider direct recruits i.e. those
who joined as ad hoc appointees but got themselves
regularised after appearing in the examination or interview
and being selected by UPSC the Court did not apply guideline
B of the Direct Recruits Class II Engineering Officers
Association case(supra). It must be borne in mind that the
applicants who had filed Interlocutory Application belong to
the Third category, namely, those who could be regularised
because of the orders of the Court in AK Jains case dated
September 24, 1987 and the Clarificatory order dated
1.11.1988 on the application of the Union of India and in
that proceeding neither the outsiders directly recruited
doctors nor insiders directly recruited doctors had been
arrayed as parties. The present dispute appears to be
between the outsider direct recruits, who got themselves
recruited by appearing at the test conducted by the UPSC and
the insider direct recruits, who initially had been
appointed on ad hoc basis but got themselves selected
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through UPSC while continuing in service. But the Union of
India is of the view that the principles enunciated in
Haques case is running contrary to the principles
enunciated in Srinivasulus case by the Tribunal and upheld
by this Court. In view of the apprehended confusion in the
mind of the Railway Administration on account of the
judgments of this Court, referred to earlier, and for doing
complete justice in the matter of determination of seniority
amongst the medical officers recruited by the Railway
Administration through the UPSC, we have approached the
problem on consideration of the different Rules in force as
well as the orders issued by this Court in several earlier
cases and this should apply irrespective of the fact whether
some are parties to this proceeding or not. In fact one of
the grievance of insider direct recruit Medical Officers
like, doctor Srinivasulu is that they had not been arrayed
as party when the Court was considering the Interlocutory
Application filed by doctor Haque for determination of their
seniority, who belong to the category, namely, ad hoc
appointees who got recruited without getting themselves
selected through any examination conducted by the UPSC only
because of the compassionate view that was taken by this
Court in Dr. A.K. Jains case (supra). A similar problem
arose in the case of Traffic Apprentices in Southern
Railways and a Three Judge Bench of this Court in the case
of Union of India and others vs. M. Bhaskar and Others (JT
1996 (5) SC 500), issued directions notwithstanding some
other Traffic Apprentices who would be directly affected
were not parties. The correctness of that decision was
considered by the Constitution Bench in the case of E.S.P.
Rajaram & Ors. vs. Union of India & Ors., JT 2001 (1) SC
573, and the Constitution Bench came to hold that the
judgment in Bhaskars case (supra) does not require any
re-consideration, the Court having invoked its power vested
under Article 142 of the Constitution for doing complete
justice amongst the Traffic Apprentices in Southern Railways
and the decision/direction therein could not have been
nullified on the ground that an affected person was not a
party to the same. In the aforesaid background and the
earlier judgments of this Court on being critically
analysed, it would appear that in Dr. A.K. Jains case
(supra) this Court merely directed that the services of all
doctors appointed on ad hoc basis, whether as Assistant
Medical Officer or Assistant Divisional Medical Officer up
to 1.10.1984 shall be regularised in consultation with the
UPSC on the evaluation of their work conduct on the basis of
their CRs in respect of the period subsequent of October 1,
1984. So far as these doctors ad hoc appointees, who got
themselves regularised pursuant to the orders of this Court,
the question of counting their prior ad hoc period of
service for determination of their seniority in the cadre
does not arise. Though in doctor Jains case (supra) as
well as in the subsequent order on the application filed by
the Union of India the Court had not indicated as to how
their seniority in the cadre would be determined, but on the
Interlocutory Application filed by doctor Haque, the Court
examined and did indicate that they could be placed in the
seniority list after both the outsider direct recruits as
well as insider direct recruits, who have been recruited
till the date. It is no doubt true that while saying so the
Court did observe that so far as outsider and insider direct
recruits are concerned, their inter se seniority would be
determined according to the date of their regular
appointment through the UPSC, but as has been stated
earlier, this dispute was not really before the Court and
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Court had not focussed its attention minutely as the insider
direct recruits had not been parties to the same and the
Court was merely examining how the case of those officers,
who got themselves regularised pursuant to the orders of
this Court in Dr. Jain would be determined. The
observations of this Court in Dr. Haque (supra) to the
effect we direct that seniority of direct recruits both
outsiders and insiders should be determined according to the
dates of their regular appointments through UPSC must be
held to be per incuria and cannot be the guiding principle.
In Srinivasulus case, however, the Tribunal was considering
as to whether their ad hoc period could be counted for the
purpose of seniority, be it be stated, that Srinivasulu
belong to that category of officers who were initially
appointed as ad hoc but got themselves regularised by
appearing at the examination conducted by the UPSC, on being
selected, and this Court upheld the decision of the Tribunal
in Srinivasulu being of the opinion that the ad hoc services
rendered by such officers could be counted for the purposes
of their seniority. Obviously the Court had in mind the
principle B evolved by the Constitution Bench in the Direct
Recruit Engineering Officers Association case (supra). If
the initial appointment had not been made in accordance with
the prescribed procedure laid down by the Recruitment Rules,
and yet the appointees Medical Officers were allowed to
continue in the post uninterruptedly and then they appeared
at the selection test conducted by the Union Public Service
Commission, and on being selected their services stood
regularised then there would be no justification in not
applying the principle B of the Direct Recruit Class II
Engineering Officers Association case (supra) and denying
the period of officiating services for being counted for the
purpose of seniority. This has what happened in
Srinivasulus case and this Court did not interfere with the
order of the Tribunal. It may be reiterated that there
being no provision in the Recruitment Rules, either of the
1967 or of the 1977 for determining the seniority of the
persons employed as Assistant Medical Officers Class II, or
the 1977 Recruitment Rules, for the purpose of determining
the seniority the principles evolved by the Constitution
Bench in the Direct Recruit Class II Engineering Officers
Association case (supra) will have to be followed, and
judged from that angle we see no inconsistency between the
judgment of this Court in Dr. Haques case (supra) and the
judgment of this Court confirming the decision of the
Tribunal in Dr. Srinivasus case (supra) accepting the
observation in Dr. Haques case which we have already held
to be per incuria. This being the position, the grant of
benefit to Dr. Lalita Rao, as had been given to Dr.
Srinivasulu by the Tribunal in O.A. No. 3218 of 1996, we
do not see any infirmity in the same. At the cost of
repetition we would record our conclusions as under :-
1. All doctors appointed either as Assistant Medical
Officer or as Assistant Divisional Medical Officer on ad hoc
basis upto October 1, 1984, who were regularised by the
Railway Administration in consultation with the Union Public
Service Commission on the evaluation of their work and
conduct and on the basis of their CRs in respect of a period
subsequent to October 1, 1984, pursuant to the direction of
this Court in the case of Dr. A.K. Jain (supra) will not
be entitled to count the services rendered prior to the
regularisation for the purpose of determination of their
seniority in the cadre. This has been so held in the
Interlocutory Application filed by Dr. Haque and answered
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by this Court in its judgment dated 18th February, 1993,
reported in 1993 (2) SCC 213.
2. Doctors who had been appointed by the Railway
Administration on ad hoc basis or on temporary basis and had
got themselves regularised prior to 1st October, 1984, by
appearing in the selection test held by the Union Public
Service Commission then in their case the period prior to
their regularisation could be counted for determining their
seniority applying principle B of the Direct Recruit
Engineering Officers Association case (supra) and in fact,
the Tribunal decided the case of Dr. Srinivasulu on that
basis and this Court upheld the said decision. 3. If any
doctor, who had been appointed subsequent to October 1,
1984, and had applied for selection by the Union Public
Service Commission on obtaining relaxation of age pursuant
to the direction No. 5 in Dr. Jains case (supra) and got
selected thereby finally, in such a case the services
rendered prior to such regularisation would not be counted
for the purpose of their seniority in the cadre,
particularly when the Recruitment Rules did not provide for
any ad hoc appointment and only provided for appointment to
be made through Union Public Service Commission. We have
taken the date October 1, 1984 as cut off date since this
Court in Dr. Jains case (supra) had considered the impasse
and had directed regularisaiton of ad hoc doctors appointed
upto 1.10.1984. The ad hoc appointees subsequent to
1.10.1984, even if got themselves regularised by appearing
in the selection test conducted by the Union Public Service
Commission in accordance with the Rules it will not be in
the interest of justice to apply principle B to their case
as the Statutory Recruitment Rules do not provide for any
other mode of recruitment other than by process of selection
by the Union Public Service Commission.
These Civil Appeals stand disposed of accordingly.
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