Hindustan
Shipyard Ltd. & Ors Vs. Dr. P. Sambasiva Rao [1996] INSC 154 (30 January 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Nanavati G.T. (J) S.C. Agrawal,
J.:
CITATION:
JT 1996 (2) 481 1996 SCALE (1)639
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO. 3940 OF 1994 Hindustan Shipyard Ltd. V. Dr. S.Prasada Rao
These
appeals raise common questions relating to regularization of three medical
officers (respondents herein) working with the Hindustan Shipyard Limited
(hereinafter referred to as 'the appellant-corporation).
Dr. P.
Sambasiva Rao obtained the M.B.B.S. degree in 1975 and he was appointed as a
medical officer in the appellant-corporation on October 29, 1975 on an honorarium of Rs. 600/- per month to work in the
dispensary in the colony/first aid center in the yard. The said appointment was
continued till February
27, 1985 with
artificial breaks of one day after each appointment for 89 days. During this
period a selection was made for regular appointment on two posts of medical
officer in 1980-81. Dr. P. Sambasiva Rao was not considered eligible for such
selection on the view that for the purpose of eligibility the applicant should
have obtained the degree in medicine by 1974 and Dr. P. Sambasiva Rao had
obtained his medical degree in the year 1975. He filed a writ petition (W.P.
No. 2058 of 1981) in the Andhra Pradesh High Court wherein he sought a writ or
direction declaring that he was entitled for absorption into the post of
medical officer in the appellant-corporation. In the said writ petition, the
learned counsel appearing for the appellant-corporation gave an undertaking
before the Court that Dr. P. Sambasiva Rao would be treated as eligible for
selection and he was called for interview on March 12, 1981 but he was not selected and he continued to work on ad hoc
basis. The last appointment given to Dr. P. Sambasiva Rao was on December 4, 1984 for the period December 5, 1984 to February 27, 1985. Dr. P. Sambasiva Rao fell ill and applied for leave from March 1 1985 but he was informed on June 5, 1985 that his appointment was an ad hoc
appointment which expired on February 27, 1985
and, therefore, the question of sanctioning leave after February 27, 1985 did not arise. Feeling aggrieved by
the termination of his services with effect from February 27, 1985, Dr. P.Sambasiva
Rao filed a writ petition (W.P. No. 9844 of 1985) in the Andhra Pradesh High
Court wherein he sought a declaration that the order dated June 6, 1985
terminating his services with effect from February 27, 1985 was arbitrary and
illegal and also sought a declaration that he should be deemed to be continuing
in service of the appellant-corporation continuously. Both the Writ Petitions
(W.P. No. 2058 of 1981 and W.P. No. 9844 of 1985) were disposed of by a learned
single Judge of the High Court (Anjaneyulu J.) by judgment dated February 28, 1986. Allowing W.P. No. 9844 of 1985 and
quashing the order dated June
6, 1985, the learned
single Judge held that the said order effectively dispensing with the services
of Dr. P. Sambasiva Rao with effect from March 1, 1985 was extremely arbitrary and
unreasonable and was violative of Article 14 of the Constitution. The appellant
corporation was directed to reinstate Dr. P. Sambasiva Rao forthwith and
consider him for appointment on regular basis at the earliest. The appellant
corporation was also directed to put Dr. P. Sambasiva Rao on a reasonable scale
of pay. In view of the orders passed in W.P. No. 9844 of 1985, the learned
single Judge did not consider necessary to pass further orders in W.P. No. 2058
of 1981. The appellant-corporation filed W.A. No. 281 of 1986 and W.A.No. 282
of 1986 against the said decision of the learned single Judge in these two writ
petitions.
While
the said appeals were pending. Dr. P. Sambasiva Rao filed two writ petitions
(W.P. Nos. 4337 of 1989 and 585 of 1989). In writ petition No. 4337 of 1989,
Dr. P. Sambasiva Rao claimed seniority in the category of medical officers,
time scale of pay on par with regular medical] officers and otter attendant
benefits like employer's share of contributory fund, ex-gratia amounts etc. In
writ petition No. 585 of 1?89, Dr. P. Sambasiva Rao claimed allotment of
residential quarter and also allowance at the rate of Rs. 400/- per month since
April 1, 1986 and to finalize his leave account.
Dr. J.
Sanjeeva Kumar passed the M.B.B.S. degree examination in 1981 and he joined the
appellant-corporation as medical officer on July 16, 1985 on an initial pay of Rs.35/- per day. The said appointment
was for 89 days each time with a break of one day, i.e., 90th day and on the
91st day he was reappointed. The said remuneration was raised from Rs. 35/- per
day to Rs. 50/- per day with effect from April 27, 1987. He filed a writ petition (W.P. No.
9987 of 1990) in the Andhra Pradesh High Court wherein he sought regularisation
of his services with effect from the initial date of appointment, i.e., July
16, 1985 and also sought a direction to the appellant-corporation to pay salary
and allowances on par with the regular medical officers working in the
appellant-corporation with effect from July 16, 1985.
In the
said writ petition the case of Dr. J. Sanjeeva Kumar was that he had been
working for six hours every day through out the period of five years and though
the remuneration which was being paid to him was described as honorarium, he
was discharging his duties as medical officer like other medical officers
working with the appellant-corporation and that regular medical officers in the
service of the appellant-corporation who were also discharging the same duties
were receiving salary in the time scale of Rs. 960- 50-1860 plus other
allowances. The said writ petition (W.P.No. 9987 of 1990) of Dr. J. Sanjeeva
Kumar was allowed by learned single Judge of the High Court (Panduranga Rao J.)
by judgment dated April 11, 1990 and the appellant- corporation was directed to
regularize the services of Dr. J. Sanjeeva Kumar in the category of medical
officers with effect from July 16, 1985 and to pay to him the salary and other
allowances on par with regular medical officers working with the
appellant-corporation from July 13, 1990, the date on which the writ petition
was presented before the High Court. The regularisation of the services of Dr. Sanjeeva
Kumar from July 16, 1985 to the date of filing of the writ petition was limited
for the purpose of the pensionary benefits only and for claiming any seniority
and that the pay was directed to be fixed in the initial stage of medical
officers on and from July 13, 1990. W A. No. 944 of 1991 was filed by the
appellant-corporation against the said judgment of the learned single Judge in
W.P. No. 9987 of 1990.
W.A.
Nos. 221 & 282 of 1986 and 944 of 1991 filed by the appellant-corporation
against the judgments of the learned single Judges in the writ petitions of Dr.
P. Sambasiva Rao and Dr. J. Sanjeeva Kumar as well as writ petitions Nos. 4337
of 1989 and 585 of 1985 filed by Dr. P. Sambasiva Rao, were heard by the
Division Bench of the Andhra Pradesh High Court and decided by a common
judgment dated February 2, 1993. The learned Judges observed that the fact that
Dr. P. Sambasiva Rao was working with effect from October 29, 1976 and Dr. J. Sanjeeva
Kumar with effect from July 16, 1985 on honorarium was not disputed and that
the appellant-corporation had not stated that the services of these two medical
officers were not satisfactory and it was also not brought to the notice of the
court that there was any complaint against the said medical officers. The
learned Judges also observed that both these persons were eligible for
appointment and they were also qualified according to rules and there was no
complaint about the satisfactory nature of the service and it was also not
disputed that their appointment on regular basis does not run counter to the
reservation policy and, therefore, it was held that the direction given by the
learned single Judges in both the cases directing the regularisation of the
services of these two medical officers fell within the four corners of the law
laid down by this Court in State of Haryana v. Piara Singh, 1992 (4) SCC 118.
It was directed that the services of Dr. P. Sambasiva Rao be regularised with
effect from April 1, 1986 in a regular scale of pay and he would be entitled
for two advance increments in view of the long spell of temporary service he
had put in and he would also be provided with official accommodation within six
months otherwise he would be given allowance as per rules. Similarly, with
regard to Dr. J. Sanjeeva Kumar, it was held that he was entitled to be regularised
with effect from April 1, 1986 and be given two advance increments and official
accommodation within six months or in the alternative allowance as per rules.
It was further held that both these medical officers were not entitled to any
other benefits like seniority, promotion, etc. as sought for.
Dr. S.
Prasada Rao was originally appointed as medical officer with the
appellant-corporation on September 1, 1984 on daily wage basis @ Rs. 35/- per
day and the said remuneration was increased to Rs. 50/- per day from April 20,
1987. He filed a writ petition (W.P. No. 12648 of 1990) in the Andhra Pradesh
High Court claiming regularisation of his services in the category of medical
officers with effect from the date of his initial appointment, i.e., September
1, 1984 and also sought a direction regarding payment of salary and other
allowances on par with regular medical officers working in the
appellant-corporation with effect from September 1, 1984. The said writ
petition of Dr. S. Prasada Rao was allowed by the learned single Judge of the
High Court (Jagannadha Raju J.) by judgment dated September 18, 1991 and it was
directed that the services of Dr. S. Prasada Rao shall be regularised with
effect from his original date of appointment, i.e., September 1, 1984, as regular medical officer and that he would also be
entitled to the consequent benefits. W.A. No. 1318 of 1991 was filed in by the
appellant-corporation against the said judgment of the learned single Judge.
The said appeal was disposed of by another Division Bench of the Andhra Pradesh
High Court by judgment dated September 8, 1993.
Following the earlier judgment of the Division Bench in W.A. No. 944 of 1991
filed by the appellant-corporation in the case of Dr. J. Sanjeeva Kumar, the
Division Bench treating Dr. S. Prasada Rao on par with Dr. J. Sanjeeva Kumar
disposed of the said appeal with the direction that services of Dr. S. Prasada Rao
would be regularised with effect from April 1, 1986 and he should also be given
two advance increments and official accommodation within six months.
Feeling
aggrieved by the aforesaid decisions of the Andhra Pradesh High Court, the
appellant-corporation has filed these appeals.
Shri
Ram Kumar, the learned counsel appearing for the appellant-corporation, has
placed before us the Recruitment Rules framed by the appellant-corporation for
appointment against regular/temporary posts in connection with the affairs of
the company including the post of Medical Officer. Under the said Rules, direct
recruitment is to be resorted to when the post is not to be filled in by
promotion as per the promotion procedure. For the purpose of direct
recruitment, the Rules provide that normally an advertisement is issued in
leading daily newspapers on all India basis to tap the potential available from
the employment market, but simultaneously other sources of recruitment are also
tapped and where the job required exceptional skills, knowledge and experience,
which are not normally available in the employment market, the competent
authority may decide to fill up the post on deputation of officers from the
Central/State Governments and other public sector undertakings. The Rules make
provision for screening of applications received in response to advertisements
and preparation of a list of candidates who may be called for interview before
the Selection Committee. The Rules provide through one or all the following
selection methods :
i)
Competitive, Aptitude/Technical lest;
ii)
Group task; and
iii)
Personal lnterview.
The
recommendations of the Selection Committee are submitted to the competent
authority for approval and after obtaining the approval of the competent
authority appointment orders are issued.
The
submission of Shri Ram Kumar is that regular appointment on the post of Medical
Officer can only be made through a process of selection by the Selection
Committee in accordance with the aforementioned Rules and the High Court was in
error in directing regularisation of all the three medical officers with effect
from April 1, 1986 without their being required to undergo selection by the
Selection committee. On behalf of the respondents-medical officers, it has been
urged that having regard to the fact that they had been working as medical
officers for a number of years and there was no complaint about their
performance during this period, the High Court was justified in giving the
direction for their regularisation with effect from April 1, 1986 and for
payment of regular salary at par with other medical officers with effect from
that date. It has also been submitted on behalf of the respondents-medical
officers that after 1984 no regular selection has been made and the
respondents-medical officers had no opportunity of being considered for regular
selection by the Selection Committee and that in these circumstances the High
Court has not committed any error in giving the direction regarding regularisation.
The learned counsel for the respondents have placed reliance on the decisions
of this Court in Dr. A.K. Jain & Ors. v. Union of India & Ors., 1987 Supp. SCC 497.
We are
unable to endorse the direction given by the High Court regarding regularisation
of the respondents medical officers with effect from April 1, 1986. The process of regularisation
involves regular appointment which can be done only in accordance with the
prescribed procedure.
Having
regard to the rules which have been made by the appellant-corporation, regular
appointment on the post of medical officer can only be made after the duly
constituted Selection Committee has found the person suitable for such
appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was
considered by the selection Committee for regular appointment in the year 1981
and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar
and Dr. S. Prasada Rao were never considered by the Selection Committee for
regular appointment. The fact that no regular selection has been made after
their appointment on ad hoc basis does not mean that they are entitled to be regularised
with effect from April 1, 1986.
In
view of the Rules prescribed by the appellant- corporation, regularisation of
the respondent medical officers on the post of medical officer can be made only
after they are considered and found suitable for such appointment by a duly
constituted Selection Committee. As a result of the direction for regularisation
given by the High Court, the requirement in the Rules regarding selection by a
Selection Committee for the purpose of regular appointment on the post of
medical officer has been dispensed with.
This,
in our opinion, was impermissible.
The
decision in Dr. A.K. Jain & Ors. v. Union of India & Ors. (supra), on
which reliance has been placed on behalf of the respondent-medical officers,
does not lend any assistance to them. In that case it was directed that the regularisation
of the Assistant Medical Officers/Assistant Divisional Medical Officers who
were appointed on ad hoc basis upto October 1, 1984 shall be made 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. In Dr.M.A. Haque & Ors. v. Union of
India & Ors. 1993, ( 2 ) SCC 213, this Court has deprecated the practice of
bypassing of the Public Service Commission which would open a back door for
illegal) recruitment without limit. The direction given by the High Court that
the respondent- medical officers should be regularised with effect from April
1, 1986 cannot, therefore, be upheld. The only direction that can be given in
the matter of regularisation is that the respondent medical officers should be
considered by a duly constituted Selection Committee as per the Rules for the
purpose of regular appointment on the post of medical officer and the
appellant-corporation should constitute a Selection Committee for that purpose.
We
are, however, not inclined to interfere with the direction given by the High
Court for payment of regular pay scales to the respondent-medical officers with
effect from April 1,
1986.
The
appeals are accordingly allowed to the extent that the direction given by the
High Court for regularisation of the respondent-medical officers with effect
from April 1, 1986 is set aside. The
appellant-corporation is directed to constitute a Selection Committee in accordance
with the relevant Rules for considering the matter of regularisation of the
respondent-medical officers on the post of medical officer. The said Selection
Committee shall consider the claim of the respondent-medical officers for such regularisation
by applying the criteria laid down for appointment of medical officers on
regular basis and it shall also take into account the record of performance of
the respondent-medical officers while they were working on ad hoc basis with
the appellant-corporation. In case, the respondent-medical officers are found
to have crossed the age bar for regular appointment a relaxation should be made
in that regard to enable them to be considered for regularisation. This process
of selection by the Selection Committee for the purpose of regularisation of
the respondent-medical officers shall be undertaken and completed within a
period of three months. No orders as to costs.
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