Full Judgment Text
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PETITIONER:
DR. MA. HAQUE AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT18/02/1993
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
RAY, G.N. (J)
CITATION:
1993 SCR (2) 1 1993 SCC (2) 213
JT 1993 (2) 265 1993 SCALE (1)653
ACT:
Civil Services:
Railway-Assistant Divisional Medical Officers-Ad-hoc
appointees between 1968 and 1984-Regularisation by Court’s
orders-Inter-se seniority Fixing of-Directions-Issued
HEADNOTE:
The petitioner-applicants were recruited by the Railways on
ad hoc basis as Assistant Divisional Medical Officers
between 1968 and 1984. Though UPSC recruited candidates on
regular basis from time to time, either due to non-
availability of number of candidates or non-joining of
selected candidates, vacancies remained and persons like the
petitioners continued in such vacancies on ad-hoc basis.
The petitioners riled Writ Petitions before this Court for
regularisation of their services. By orders of this Court,
the services of the petitioners have already been
regularised.
The present application is for fixing the seniority of the
Writ Petitioners whose services were regularised.
Disposing of the application, this Court,
HELD: 1. Since the petitioner-applicants are admittedly not
regularly appointed through the UPSC according to the rules
but have been directed to be regularised by following the
procedure laid down by this Court, it is obvious that they
are not appointed to their posts according to the rules.
Under no circumstances, therefore, they fall within the
scope of guidelines in Direct Recruit Class II Engineering
Officers’Association’s case. The expression "in accordance
with the rules’ or ’according to rules" used in the said
guidelines means the rules of recruitment and not the
special procedure laid down by this Court The petitioner-
applicants thus fall in an altogether different category.
Therefore, a procedure for fixing their seniority has to be
evolved. That procedure cannot be in violation of the
guidelines laid down in Direct Recruit Class II Engineering
Officers’
2
Association’s case. Further, the seniority given to the
petitioner-applicants will have to be below the seniority of
the outsiders directly recruited through the UPSC as well as
below that of the directly recruited erstwhile ad-hoc
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Medical Officers. [8C-F]
Direct Recruit Class II Engineering Officers Association &
Ors. v. State of Maharashtra & Ors., [1990] 2 SCC 715,
referred to.
2.1. Of late this Court has been witnessing a constant
violation of the recruitment rules and a scant respect for
the Constitutional provisions requiring recruitment to the
services through the Public Service Commission. Since this
Court has in some cases permitted regularisation of the
irregularly recruited employees, some Governments and
authorities been increasingly resorting to irregular
recruitments. The result has been that the recruitment
rules and the Public Service Commissions have been kept In
cold storage and candidates dictated by various
considerations an being recruited as a matter of course.
[9E-G]
2.2. What is further, in the present case, some of those
like the petitioner-applicants who were initially recruited
on ad-hoc basis, have themselves and taken pains to appear
for the tests before the UPSC and have enrolled themselves
through regular channel. There are three classes of
employees viz., the outside direct recruits, the in-service
direct recruits and the ad-hoc employees like the
petitioner-applicants who were regularised through the
Court’s order. The direction given In Dr. Rawani’s case for
creation of supernumerary posts has to be confined to the
special facts of that case and cannot be extended to other
cases. In any case, this Court should not give any such
direction to the Railways. If, however, the Railways decide
to follow that course, they can do so and nothing prevents
them from doing it. This Court would rather refrain from
creating a precedent by giving such directions. [9G-H; 10A-
D]
Dr A.K Jain & Ors. etc. etc. v. Union of India & Ors. [1987]
Sapp. SCC 497 and Dr. P.P. C. Rawani & Ors etc. v. Union of
India & Ors., JT 1991
(6) 534, referred to.
3. The seniority of the direct recruits both outsiders
and insiders ,should be determined according to the dates of
their regular appointment through the UPSC and the
petitioner-applicants should be placed in the seniority list
after those direct recruits who are recruited till date.
Among
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themselves, their seniority will be governed by the dates of
their initial appointment [10E]
JUDGMENT:
ORIGINAL JURISDICTION: Interlocutory Application No. 1 of
1992.
IN
Writ Petition No. 1165 of 1986.
(Under Article 32 of the Constitution of India).
M.C. Bhandare, P.P. Rao, N.N. Goswamy, C.K Sucharita, Ms.
Shashi Kiran, Ms. Manjula Gupta, R. Shashi Prabhu, V.K.
Verma and Raj Kumar Gupta for P.C. Kapur for the appearing
parties.
The Judgment of the Court was delivered by
SAWANT, J. The petitioner-applicants are some of the Medical
Officers who were recruited by the Railways on ,id hoc basis
as Assistant Divisional Medical Officers between 1968 and
1st October, 1984. They were appointed as such ad hoc
employees by way of a stop-gap arrangement pending the
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regular recruitment to the said posts through the Union
Public Service Commission [UPSC’ for short], according to
the rules. It appears that although from time to time the
UPSC recruited candidates on regular basis, there remained
some vacancies unfilled, either because the doctors
recruited were less in number than the number of vacancies
since suitable candidates were not available or some of
those who were selected did not join the service or between
the date of advertisement by the UPSC and that of the
empanelling, some more vacancies occurred. Whatever the
reasons, the fact was that even after the UPSC undertook the
exercise of recruiting the doctors from time to time, some
vacancies always remained unfilled. The result was that
every time the petitioner-applicants and others like them
were continued on ad hoc basis as a stop-gap arrangement
till the next recruitment by the UPSC. It may be mentioned
in this connection that the ad hoc appointees were always at
liberty to appear before the UPSC for their regular
recruitment. Some of them in fact did so appear and were
selected; others like the petitioner-applicants either
failed to be selected or did not care to appear. The fact,
however, remains that the petitioner-applicants and others
like them continued to serve on ad hoc
4
basis since 1968. Hence they filed writ petitions in this
Court for their regularisation in service. By an order
dated 24th September, 1987 passed in the case of Dr. A.K
Jain & Ors. etc. etc. v. Union of India & Ors., [1987] Supp.
SCC 497 at 500 this court directed as follows:
"(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 terminat
e
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 not 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 we 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
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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
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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 Wary and
allowances as Assistant Divisional Medical
Officers on the revised scale with effect from
January 1, 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/ADMOs 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 doctors
in the Railways.
All the Writ Petitions are disposed of in the
above terms."
It appears that since they experienced difficulty in
adjusting the seniority of the petitioner-applicants the
Union of India moved an application before this Court and
this court on 1st November, 1988 made the following order in
that application:
"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
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Government should be directed to implement the
order passed by us in the writ petition Nos.
522, 875, 180 & 200 of 1987 and connected
cases on 24th September, 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 make
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
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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 accordingly."
The present application has been moved in Writ Petition No.
1165 of 1986 which has been disposed of on 24th September,
1987 along with other writ petitions in which also the
aforesaid order of 1st November, 1988 was made by this
Court.
Thus we are concerned in this application with those
Assistant. Divisional Medical Officers who were appointed
between 1968 and 1st October, 1984 and who have been
regularised by the aforesaid two orders but whose seniority
remains to be fixed.
After the order of 1st November, 1988, the Constitution
Bench of this Court delivered its judgment in Direct Recruit
Class II Engineering Officers’ Association & Ors. v. State
of Maharashtra & Ors., [1990] 2 SCC 715 pending’ which
decision the fixation of seniority of the petitioner-
applicants was kept pending. In that case the Constitution
Bench has laid down certain guidelines for fixing the
seniority. Two of them, viz., (A) & (B), which are relevant
for our purpose are as follows:
"(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of
7
his appointment and not according to the date of his
confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.
(B)If the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues
in the post uninterruptedly till the regularisation of his
service in accordance with the rules, the period of
officiating service will be counted."
Before we discuss as to which of the above two guidelines
would be applicable in this case, it is necessary to state
the relevant facts relating to the applicants’ appointment.
Firstly, it is an admitted fact that the UPSC introduced the
Combined Medical Services Examination for the first time in
the year 1977. Prior to 1977, the method of recruitment was
otherwise than by examination. As stated earlier, some of
the petitioner-applicants were recruited between 1968 and
1977. Secondly, the petitioner-applicants were given three
chances for their selection through the UPSC but they did
not avail of them. Some of those who were appointed with
them, however, had availed of the chances and have been
appointed as regular direct recruits and they have been
given their seniority from the date they were regularly
appointed through the UPSC. Thirdly, it appears that
although in 1977 the written examination was introduced, on
account of exigencies, the UPSC held two special selections
in the years 1982 and 1985 based on interviews only and by
relaxing the age limit. In these two special selections
respectively 100 and 67 ad hoc doctors like the petitioner-
applicants were selected and absorbed in the regular cadre.
They have also been given their seniority from the date they
were so absorbed regularly. The petitioner-applicants
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either failed to appear in these examinations also or after
appearing in the same, had failed
Thus, while fixing the seniority of the petitioner-
applicants we have to keep in mind that there are three
classes of Assistant Divisional Medical Officers (i) the
outsiders who have been directly recruited through the UPSC
either on the basis of the written examination or the
interview; (ii)
8
those who were ad hoc appointees like the applicants but who
came to be regularly recruited through the UPSC by appearing
in the written examination or in the interview; and (iii)
the present petitioner-applicants who either did not appear
in any written examination/interview or had failed to get
through them but who have been regularised in service
because of the orders of this Court dated 24th September,
1987 and 1st November, 1988.
Since the petitioner-applicants are admittedly not regularly
appointed through the UPSC according to the rules but have
been directed to be regularised by following the procedure
laid down by this Court it is obvious that they are not
appointed to their posts according to the rules. Under no
circumstances, therefore, they fall within the scope of
guideline (A) laid down in Direct Recruit Class II
Engineering Officers Association’s case (supra). In fact,
they do not fall under guideline (B) given therein either,
since their regularisation is not in accordance with the
rules but as a consequence of special procedure laid down by
this Court. The expression "in accordance with the rules’
or "according to rules" used in the said guidelines (A) and
(B) means the rules of recruitment and not the special
procedure laid down by this Court. The petitioner-
applicants thus fall in an altogether different category not
covered under any of the guidelines given in Direct Recruit
Class II Engineering Officers’ Association’s case (supra).
We have, therefore, to evolve a procedure for fixing their
seniority. That procedure cannot be in violation of the
guidelines laid down in Direct Recruit Class II Engineering
Officers Association’s case (supra). Secondly, the
seniority given to the petitioner-applicants will have to be
below the seniority of the outsiders directly recruited
through the UPSC as well as below that of the directly
recruited erstwhile ad hoc Medical Officers This is not and
cannot be disputed on behalf of the petitioner-applicants.
This matter was heard earlier on 14th September, 1992 and
was reserved for judgment. At that time, neither the in-
service direct recruits nor the outsider direct recruits
were made parties to the application. They made separate
applications, being I.A. Nos. 2 and 3 respectively for im-
pleadment/intervention and requested that they be heard in
the matter before judgment is pronounced. Hence, this
matter was set down for a fresh hearing and all the parties
were heard on 11th and 18th January, 1993. The anxiety of
the interveners, was obvious. In no case their seniority
should be disturbed and they be penalised for passing the
examinations/interview tests and for coming into the cadre
according to the rules through
9
the UPSC, and no premium should be given to the applicants
for their refusal to appear for the tests or for their
failure to pass the same. This contention of their is
unexceptionable and whether they had appeared in the case or
not, the Court was bound to protect their interests
particularly when the matter was heard in their absence.
The petitioner-applicants, however, relied upon a decision
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of this Court in Dr. P.P.C Rawani & Ors. etc v. Union of
India & Ors., (JT 1991 (6) 534). Shri Bhandare, appearing
for the petitioner-applicants, made a very fervent plea that
in the circumstances, the course adopted by this Court in
Dr. Rawani’s case (supra) should be followed which will do
no injustice to both the categories of direct recruits. We
have gone through the said decision and have anxiously
considered whether the course adopted there should be
adopted in the present case. We are conscious of the fact
that the petitioner-applicants have been serving the
Railways from the year 1968. It is also possible, as
contended on their behalf that many of the outside direct
recruits have joined the service long after 1968 and some of
them might have even taken initial instructions from the
petitioner-applicants. We are also conscious of the fact
that candidates in service have a disadvantage as against
the fresh candidates in the tests particularly when they
face the tests after a long lapse of time. As against this,
however, we cannot lose sight of the fact that the
recruitment rules made under Article 309 of the Constitution
have to be followed strictly and not in breach. If a
disregard of the rules and the by-passing of the Public
Service Commissions are permitted, it will open a back-door
for illegal recruitment without limit. In fact this Court
has, of late, been witnessing a constant violation of the
recruitment rules and a scant respect for the Constitutional
provisions requiring recruitment to the services through the
Public Service Commission. It appears that since this Court
has in some cases permitted regularisation of the
irregularly recruited employees, some Governments and
authorities have been increasingly resorting to irregular
recruitments. The result has been that the recruitment
rules and the Public Service Commissions have been kept in
cold storage and candidates dictated by various
considerations are being recruited as a matter of course.
What is further, in the present case, some of those like the
petitioner-applicants who were initially recruited on ad hoc
basis, have exerted themselves and taken pains to appear for
the tests before the UPSC and have enrolled themselves
through regular channel unlike in Dr. Rawani’s case (supra).
We have thus on hand three classes of
10
employees as pointed out earlier, viz., the outside direct
recruits, the in-service direct recruits and the ad hoc
employees like the petitioner-applicants who were
regularised through the Court’s order. Further, Dr.
Rawani’s case (supra), as has been pointed out on behalf of
the respondents, pertains to the Central Government Health
Services which has a larger component both at the initial
and promotional stages. The course adopted by this Court to
direct creation of supernumerary promotional posts at every
higher promotional stage there, may not be feasible in the
medical service in the Railways. The creation of
supernumerary posts has its own limitations, both physical
and financial. The burden of additional posts even when
they are not necessary and cannot be accommodated, is not
easy to carry. We are, therefore, of the view that the
direction given in Dr. Rawani’s case (supra) has to be
confined to the special facts of that case and cannot be
extended to other cases. In any case, this court should not
give any such direction to the Railways. If, however, the
Railways decide to follow that course, they can do so and
nothing prevents them from doing it. We would rather
refrain from creating a precedent by giving such directions.
In the result, we direct that the seniority of the direct
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recruits both outsiders and insiders should be determined
according to the dates of their regular appointment through
the UPSC and the petitioner-applicants should be placed in
the seniority list after those direct recruits who are
recruited till this date. Among themselves, their seniority
will be governed by the dates of their initial appointment.
The interlocutory application is disposed of in the above
terms. G.N. Application disposed of.
11