Union of India Vs. Dr Gyan Prakesh Singh [1993] INSC 395 (30 September 1993)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Jeevan Reddy, B.P. (J) Bharucha S.P.
(J)
CITATION:
1994 SCC Supl. (1) 306 JT 1993 (5) 681 1993 SCALE (3)902
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by VERMA, J.- Respondent Dr Gyan Prakash
Singh was offered on September 28, 1984 an appointment on ad hoc temporary
basis to a post of Assistant Medical Officer (Class 11) in the North Eastern
Railway for the period of six months or till the candidates selected by the
Union Public Service Commission (UPSC) joined the railways, whichever was
earlier. Pursuant to that offer, the respondent was issued an appointment order
on October 1, 1984 and he joined duty on October 9, 1984. While the respondent continued to
work as an ad hoc Assistant Medical Officer, the decision of this Court in A.K.
Jain (Dr) v. Union of India' was rendered on September 24, 1987 directing regularisation
of 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, in the manner indicated therein. The respondent was not treated to be a
doctor falling within the category indicated in Dr A.K. Jain' since his
appointment was effective from October 9, 1984
when he had joined duty. The respondent claimed to be governed by the direction
given in Dr A.K. Jain, but his representation was rejected by the Railway
Board. It appears that the Railway Board decided to regularise the services
even of those doctors appointed between October 1, 1984 and November 1986 who were found
suitable by the UPSC after an interview and screening of their service record.
In all 105 such doctors including the respondent were considered for regularisation
on this basis. Out of them, 14 including the respondent were found unfit by the
UPSC for retention in service and-, therefore, they were not regularised. The
ad hoc service of the respondent was then terminated on April 9, 1992.
2.Aggrieved
by his non-regularisation, the respondent filed an application before the
Central Administrative Tribunal challenging the same. By the 1 1987 Supp SCC
497 308 impugned order dated March 28, 1992, the Tribunal has allowed the
respondent's application taking the view that the respondent is entitled to regularisation
of his ad hoc appointment on the basis of the decision of this Court in Dr A.K.
Jain'. It has been held that the ad hoc appointment of the respondent having
been made by an order dated October 1, 1984, he is governed by the direction
given by this Court in Dr A. K. Jain'. The Union of India, being aggrieved by
that decision, has preferred this appeal by special leave.
3.On
the above facts, the question is: Whether the Tribunal has correctly read the
decision of this Court in Dr A.K. Jain' to hold that the respondent is entitled
to regularisation on the basis of the direction given therein? 4.The contention
of learned counsel for the appellant is that the respondent having joined duty
on October 9, 1984 pursuant to the appointment order dated October 1, 1984, his
appointment became effective on October 9, 1984 and not on October 1, 1984. For
this reason, it is urged, the respondent is not entitled to the benefit of the
direction given in Dr A.K. Jain' even on his own case. The further submission
of learned counsel for the appellant is that even if the date of the
appointment order be taken as the date of the respondent's effective
appointment, the order in Dr A.K. Jain1 read as a whole cannot apply to the
appointments made on October 1, 1984 since it must be confined to only those
doctors who were in service on October 1, 1984 as a result of their appointment
on dates prior to, an,! not inclusive of, October 1, 1984. It was also
submitted on behalf of the appellant that the respondent was found unfit by the
UPSC in the batch of ad hoc appointees between October 1, 1984 and November
1986 on account of which his non-regularisation cannot be challenged. In reply,
the learned counsel for the respondent contended that the respondent's
appointment was effective from October 1, 1984, the date of the appointment
order and not from the subsequent date of his joining duty.
He
submitted that the direction of this Court in Dr A. K. Jain' clearly applies to
such appointments made even on October 1, 1984.
He further submitted that the respondent being found unfit by the UPSC is of no
consequence since the test applied by the UPSC included an interview and not
mere screening of the service record as in the case of ad hoc appointees up to October 1, 1984. Lastly, it was submitted, that it
is a solitary case of appointment on October 1, 1984 which does not call for
interference.
5.It
is unnecessary in the present case to decide whether the respondent's
appointment can be treated as made on October 1, 1984 by virtue of the date of
appointment order even though it became effective only from October 9, 1984 when he joined duty. Even on the
assumption that the respondent can be treated as having been appointed on October 1, 1984 as claimed by him, the respondent
does not get the benefit of the decision in Dr A. K. Jain 1.
6.The
decision in A.K. Jain (Dr) v. Union of India] was rendered in writ petitions
under Article 32 of the Constitution challenging the action of the Union of
India in terminating the services of petitioners as ad hoc Assistant Medical
Officers and replacing them by freshly recruited Assistant Divisional Medical
Officers. The petitioners in those cases were appointed ad hoc Assistant
Medical Officers (Class 11) in the Zonal Railways. The material part of the
operative order containing the direction therein is as under: (SCC p. 500)
"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 309
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." (emphasis supplied) 7.The expression "up to October 1, 1984" in the direction for regularisation
obviously does not include appointments made on October 1, 1984. This is clear from a further part of the same direction in
which the expression "prior to October 1, 1984" occurs. After directing the regularisation
of the ad hoc appointees up to October 1, 1984,
in the very same direction, it was said that those appointed "prior to October 1, 1984" would also be considered for regularisation
in spite of termination of their services. It is apparent that this category of
doctors required to be considered for regularisation in spite of the
termination of their services are those belonging to the same class of ad hoc
appointees "up to October
1, 1984". In
other words, the ad hoc appointees "up to October 1, 1984" means the same as the ad hoc appointees "prior
to October 1, 1984". If an appointment made on October 1, 1984 is included in that class, then it
would be in conflict with the expression "prior to October 1, 1984" used later. Both these
expressions occur in the same context and must have the same meaning.
8.There
are other indications to this effect. The direction requires regularisation to
be made on the basis of work and conduct evaluated from confidential reports in
respect of period subsequent to October 1, 1982. Thus, availability of confidential report for some period
prior to October 1,
1984 is contemplated
in respect of the doctors to be so regularised. The direction further is that
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 Officers/Assistant Divisional Medical
Officers.
This
direction cannot relate to anyone who joined the service after October 1, 1984. This was meant to benefit only
those ad hoc appointees who had been continuously working from a date prior to October 1, 1984 and not from any date subsequent to
it. If the benefit of the direction in Dr A.K. Jain' be given to the
respondent, his appointment as Assistant Divisional Medical Officer can be only
from October 9, 1984, the date from which he began working on the post. He can
be regularised in this manner only with effect from October 9, 1984 and not from October 1, 1984. There can be no doubt that the direction for regularisation
was not meant to benefit any ad hoc appointee who was not working on the post
of Assistant Medical Officer/Assistant Divisional Medical Officer on October 1, 1984.
9.These
are clear indications that the direction in Dr A. K. Jain1 cannot be construed
in the manner suggested by the learned counsel for the respondent to 310 give
its benefit to the respondent. The Tribunal misread and misconstrued the
decision in Dr A.K. Jain' to give its benefit to the respondent.
10.For
the same reason, the contention of learned counsel for the respondent, that the
respondent being found unfit by the UPSC is immaterial, has no merit. The
respondent not being entitled to the benefit of the direction given by this
Court in Dr A.K. Jain' his claim for regularisation could have been based only
on the ground available to an ad hoc appointee during the period between October 1, 1984 and November 1986. For that the
respondent had to be found fit by the UPSC. Since the respondent was one of the
14 such ad hoc appointees found unfit in the category of 105 doctors appointed
between October 1, 1984 and November 1986, the respondent
can make no grievance against the termination of his service in these
circumstances. No exception can be made for the respondent who was found unfit
along with some more of his class.
11.Consequently,
the appeal is allowed. The impugned order passed by the Tribunal is set aside
with the result that the respondent's application made to the Tribunal stands
dismissed. No costs.
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