Full Judgment Text
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PETITIONER:
UNION OF INDIA ORS.
Vs.
RESPONDENT:
HARISH BHIKRISHNA MAHAJAN
DATE OF JUDGMENT: 23/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
The respondent was temporarily appointed as a Medical
Officer on monthly basis in the Central Government Health
Scheme on August 10,1982. During the unfortunate strike of
the doctors as trade unionists, unmindful of the ethical and
medical code of conduct, he was appointed and even continued
in the service till August, 1987 When his services were
terminated, he had gone to the Tribunal and filed OA No.
701/89. The Tribunal in the impugned order dated 21.12.1994
directed the appellants to regularise the service of the
respondent in consultation with the Public Service
Commision. Thus, this appeal by special leave.
The controversy is no longer longer res integra. In
similar circumstances, this Court had considered the entire
controversy in J & K Public Service Commission & Ors. vs Dr.
Narinder Mohan & Ors. [ (1994) 2 SCC 630]. Abmittedly, the
post of doctors in the Central Government Health Scheme are
required to be filled up by recruitment through Union Public
Service Commission. Therefore, the direction to consider the
case of the respondent in consultation with the Public
Service Commission for regularisation is in violation of the
statutory rules and Article 320 of the Constitution of
India. The only course Known to law is that the Union of
India shall be required to notify the recruitment to the
Public Service Commission and Union Public Service
commission shall conduct the examination inviting the
applications from all the eligible persons including the
persons like the respondents, It would be for the respondent
to apply for and seek selection in accordance with Rules.
Therefore, the direction is in violation of Article of
Article 320 of the Constitution.
The learned counsel for the respondent seeks to place
reliance on the directions issued by this Court in Jacob M.
Puthuparambil vs. Kerala Water Authority [(1987) Supp, SCC
497]. It is seen that the Public Service Commission was
required to recruit the candidates and, therefore, the
additional Medical Officers wording in the Railway
Department in the latter case were directed to be
regularised in consultation with the Union Public Service
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Commission, It would be seen that when the recruitment was
to be made in accordance with the procedure prescribed by
the Public Service Commission in terms of the statutory
Rules made under Article 320 of the Constitution,
necessarily the recruitment is required to be made in that
manner and in no other manner. Therefore, this Court did not
intend to by-pass the above procedure in regularisation of
their services. This Court, in similar circumstances,
considered the same question in Union of India & Ors, vs. Dr
Arun Kumar Sharma [CA No, 4876/94].
In that view, the appeal is allowed. The order of the
Tribunal stands set aside, It would be open to the
respondent to apply for selection. In case he is barred by
age, it is needless to mention that the Union of India would
consider necessary relaxation of the age to the extent of
the period of service he has rendered on temporary basis, No
costs.