Dr.
A.K. Jain & Ors Etc. Vs. Union of India & Ors [1987] INNSC 266 (24
September 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)
CITATION:
1988 SCR (1) 335 1987 SCC Supl. 497 JT 1987 (4) 445 1987 SCALE (2)1002
ACT:
Indian
Railways Medical Department (Assistant Medical officers Class II) Recruitment
Rules, 1977: Rule 6-Zonal Railways-Ad hoc Assistant Medical Officers-
Replacement/ regularisation of-Directions issued by Court.
HEADNOTE:
1.
Services of all doctors appointed as Assistant Medical (Officers Assistant
Divisional Medical officers on ad hoc basis upto 1.10.1984 shall be regularised
in consultation with the Union Public Service Commission. The doctors so
regularised shall be appointed as Assistant Divisional Medical officers from
the date from which they have been continuously working. [338C-D]
2.
The petitions of the officers appointed subsequent to 1.10.1984 are dismissed.
However, the Assistant Divisional Medical Officers who have been selected by
the Union Public Service Commission shall first be posted to the vacant posts
available. If all those selected by UPSC cannot be accommodated they may be
posted to the posts now held by the doctors appointed on ad hoc basis
subsequent to 1.10.1984. While making such postings the principle of 'last
come, first go' shall be observed. The doctors so displaced, if willing to
serve in any other zone where there is a vacancy may be accommodated in such
vacancy on ad hoc basis.
[338E-G]
3.
All Assistant Medical Officers/Assistant Divisional Medical Officers working on
ad hoc basis shall be paid the same salary and allowances on the revised scale
with effect from 1.1.1986. [338H; 339A]
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
Assistant Medical officer/Assistant Divisional Medical officer on ad hoc basis.
[333B]
5.
If the ad hoc doctors appointed after 1.10.1984 apply for selection by the
Union Public Service Commission necessary relaxation in age to the extent of
the period of service rendered shall be granted. [339C] 336 ^
ORIGINAL
JURISDICTION:
Writ Petition (Civil) No. 822 of 1987 etc. etc.
(Under
Article 32 of the Constitution) India.
Gobind
Mukhoty, P.P. Rao, M.C. Bhandare, Surya Kant, V. Shekhar, M.A. Chinnaswamy,
C.K. Sucharita, Ms. Malini Poduval, Raj Kumar Gupta, P.C. Kapur and S.S. Tewari
for the Petitioners.
D.N.
Dwivedi, R.B. Mishra, Ashok Kumar Sharma, Ms. A. Subhashini, Y.P. Rao, B.D.
Sharma, Shrinath Singh and K.K. Gupta for the Respondents.
Supreme
Court Editorial Note-Statement of Facts The petitioners in their Writ Petitions
under Article 32 of the Constitution challenged the action of the Respondents
in terminating their services as 'ad-hoc' Assistant Medical officers on the
plea that they were 'ad- hoc' appointees and replacing them by freshly
recruited Assistant Divisional Medical officers, and prayed for the issue of a
direction to the Respondents to treat the appointments of the petitioners as regular
with effect from the dates of their respective appointments as 'ad-hoc'
Assistant Medical officers and to assign them consequent seniority in the
grades.
It
was contended by the petitioners that they were appointed as 'ad-hoc-"
Assistant Medical officers (Class II) during the period August 1983 to July
1986 in the South- Eastern, North East Frontier and Northern Zones of the
Indian Railways and had been officiating in the said grade for periods ranging
upto four years. Although the initial appointments were for a period at six
months, the respondents had extended their tenure from time to time.
Instead
of regularising the services of the petitioners and conferring the benefits of
seniority, the respondents had threatened to terminate their services as and
when the UPSC selected Assistant Divisional Medical officers and they joined
the service. In the South-Central Zone of the Railways, the petitioners
contended that the Respondents had in fact by an order No. 450/86 dated
11.11.1986, terminated the services of eleven officiating 'ad-hoc' Assistant
Medical officers as they had not availed of the three chances stated in their
appointment order for selection through UPSC. It was alleged that neither the
Indian Railways Medical Department (Assistant Medical officers Class II)
Recruitment Rules 1977 nor the earlier Rules of 1967 provided for 'ad-hoc'
appointment 337 Of Assistant Medical officers, and that the Respondents
exercised the powers, to relax the Rules conferred by Rule 8 of the 1967 Rules
and Rule 6 of the 1977 Rules, as it was inevitable to prevent dislocation of
medical services on the Railways and alleviation of hardship to the employees
and their families.
These
petitions were contested by the Respondent. In the counter-affidavit filed on
behalf of the Union of India, it was contended that the petitioners belonged to
the category of 'ad-hoc' doctors who were appointed by the General Managers of
the concerned Zonal Railways under their powers, and not by the President of
India, purely as a temporary measure for a specified period, that such 'ad-hoc'
appointments became unavoidable in the Railways and were resorted to, to tide
over temporary shortage of professional doctors and that these 'ad-hoc'
doctors' tenures were extended for various periods from time to time. It was
further contended that the recruitment of regular doctors on the Railways was
done in the capacity of Assistant Divisional Medical officer (Group 'A') in the
scale of Rs.700-1600 through the Union Public Service Commission as the posts
belonged to Group 'A' for which the appointing authority was the President of
India. It was also submitted that the General Managers of the Zonal Railways
were empowered to recruit 'ad-hoc' doctors as Assistant Medical officers Group
'B' in the scale of Rs.650-1200 purely on 'ad-hoc' basis for a specified period
to maintain the Railways Medical Service till replacement by Assistant
Divisional Medical officers, selected through the UPSC.
The
Combined Medical Services Examination was introduced by the UPSC in the years
1977, and from 1977 to 1983 maximum age relaxation upto 40 years or even SO
years was granted from time to time to enable the said 'ad-hoc' doctors on the
Zonal Railways to avail themselves of the opportunity of appearing in the
Combined Medical Services Examination. In addition, the UPSC held two Special
Selections based on interview only with sufficient relaxation in the years 1982
and 1985. In these two special selections held in 1982 and 1985, 100 and 67
'ad-hoc' doctors respectively of the Railways were selected and absorbed in the
regular cadre. The petitioners who were still 'ad-hoc' doctors in the Zonal
Railways, were thus those doctors who either failed to appear in the Combined
Medical Services Examination held by the UPSC or after appearing had failed.
Having failed to get regularised in accordance with the prescribed rules and
regulations for regular appointments, the petitioners services had to be
terminated and as such there had been neither any arbitrary nor illegal action on
338 the part of the respondents, nor any violation of the Fundamental A Rights
guaranteed under Articles 14 and 16.
The
following order of the Court was delivered:
After
hearing learned counsel for the parties at great length having regard to the
peculiar facts and circumstances of these cases we pass the following order in
the above writ petitions:
1.
The services of all doctors appointed either, as Assistant Medical officers or
as Assistant Divisional Medical officer on ad hoc basis upto 1.10.1984 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 the period subsequent to 1. 10.1982. 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 1. 10.84 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 officer/Assistant Divisional Medical
officers appointed subsequent to 1.10.1984 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 U.P.S.C.
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 1.
10.1984 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 wiling 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 339 allowances as Assistant
Divisional Medical officers on the revised scale with effect from 1.1.1986. 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/AMO
on ad hoc basis. Whenever there is need for the appointment of any AMO/ADMO on
ad hoc basis is 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 1.10.1984 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.
P.S.S.
Petitions disposed of.
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