Union of India & Anr Vs. Lalita S. Rao
& Ors [2001] Insc 203 (10 April 2001)
G.B.
Pattanaik, U.C. Banerjee & B.N.. Agrawal Pattanaik,J.
WITH Civil
Appeal No. 2480 of 2000 and Civil Appeal No. 2680 of 2001. (@ S.L.P.(c) No.
18846 of 1999)
L.I.T.J
Leave
granted in S.L.P. (C) No. 18846/99.
The
determination of inter se seniority between the two categories of doctors
engaged by the Raililway Administration is the subject matter of dispute in these
batch of cases. It would be necessary to state the facts in a greater detail in
view of the chequard history of the case. Prior to 1986, normal recruit to the
post of Assistant Medical Officers under the Railway Administration was being
made through a process of selection by the Union Public Service Commission.
There was no statutory rule framed for the purpose of recruitment. Government
of India in the Ministry of Railway through the Railway Board had, however,
permitted the General Managers to recruit Assistant Medical Officers in Class
II on ad hoc basis for a period not exceeding six months and such power had
been conferred in the public interest as the process of selection through Union
Public Service Commission was taking some time. The ad hoc recruits, however,
were advised to apply to Union Public Service Commission in response to the
advertisement to be issued by the Commission for getting regular appointment.
The administrative instructions dated 21st May, 1966, unequivocally indicated that the
ad hoc appointees should be made known that their services would stand
terminated as soon as candidates selected by the Commission become available.
The aforesaid Government Order also provided that the ad hoc appointees could
be retained beyond six months with prior approval of the Board. Some time in
the year 1986 several such doctors having failed in their attempt to get
selected through the Union Public Service Commission apprehended termination of
their services, therefore, a batch of Writ Petitions were filed in this Court
under Article 32, which stood disposed of by judgment dated 24th September,
1987, (Dr. A.K. Jain and others vs. Union of India & Ors. reported in 1987
(Supp.) Supreme Court Cases 497). By the time these Writ Petitions were taken
up for consideration a set of Recruitment Rules have been framed under the
proviso to Article 309 of the Constitution, called The Indian Railway Medical
Department (Assistant Medical Officers Class II) Recruitment Rules, 1977,
(hereinafter referred to as The Recruitment Rules), and the said Rule never
contemplated of any ad hoc appointment. Even under the provisions of the
Railway Establishment Code, which governs the recruitment of the Group A
service in the various departments of Railways, as indicated in Section 205, no
ad hoc recruitment was contemplated, and as such, the ad hoc appointments were
in the exigencies of service to meet a particular contingency under the
Administrative Orders of the Board.
This
Court disposed of the batch of cases with following directions:-
(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 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.
(2)
The petitions of the Assistant Medical Officers/Assistant Divisional Medical
Officers appointed subsequent to October 1, 1984 are dismissed. But 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 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 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 salary 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/ADMO 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 in the Railways.
Be it
be stated the Court took a compassionate view of the matter and directed regularisation
of the ad hoc doctors in consultation with the Union Public Service Commission
on the evaluation of their work and on the basis of their Confidential Reports,
but did not indicate as to how their seniority in the cadre could be
determined. An Interlocutory Application, titled Dr. M.Haque and ors. vs. Union
of India was thereafter filed in this Court for appropriate direction as to how
their seniority could be determined. This application was disposed of by order
dated 18.2.1993, since reported in 1993 (2) SCC 213. Before filing of the
aforesaid Interlocutory Application the Union of India had itself moved an
application before the Court and that stood disposed of by order dated
1.11.1988 and the order was to the following effect:- 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 Government should be directed
to implement the order passed by us in the Writ Petition Nos 522, 875, 180 and
200 of 1987 and connected cases on September 24, 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 made 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 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 acordingly.
In
Interlocutory Application this Court was concerned with those Assistant
Divisional Medical Officers who had been appointed between 1968 and 1st
October, 1984, whose services stood regularised pursuant to the order of this
Court in Jains case (1987 (Suppl.) SCC 497), but the seniority had not been
fixed up. The Court for fixing the inter se seniority of the doctors considered
the existence of three classes of Assistant District Medical Officers (i) The
outsiders who have been directly recruited through Union Public Service
Commission on the basis of written test or interview;
(ii)
Ad hoc appointees who were initially recruited ad hoc but in the course of
their continuance as ad hoc came to be regularly recruited through Union Public
Service Commission by appearing in the written examination and interview;
(iii)
The petitioners in Dr. Jains case who either did not appear in the written examination
and interview or had failed to get through the UPSC examination but could be regularised
because of the Courts order dated 24th September, 1987 (1987 Suppl. Supreme
Court Cases 497), as well as the Clarificatory order passed on 1.11.1988 on the
application filed by the Union of India. By the date an Interlocutory
Application was being considered the Constitution Bench decision in the Direct
Recruit Class II Engineering Officers Association case had already been
pronounced. (1990 (2) Supreme Court Cases 715). The Court considered the
principles evolved in the direct recruits case and held that neither guideline
A nor guideline B would govern the case of those Assistant Divisional Medical
officers who could be regularised only in pursuance to the earlier orders of
the Court in Jains case(supra). The Court ultimately held that so far as, the
outsiders, who have been directly recruited through the UPSC and the ad hoc
appointees, who have been also regularised by appearing in the written
examination conducted by the UPSC and being selected by the UPSC, their
seniority will be determined according to the dates of their regular
appointment and the ad hoc appointees who could not get selected or did not
appear in the examination conducted by the UPSC could be placed in the
seniority list after two former categories.
It may
be stated for the purpose of convenience that the nomenclature of these three
categories of doctors is assigned as :-
(i)outsiders,
directly recruited doctors on the basis of selection through UPSC;
(ii) insiders,
ad hoc recruits those regularised after being successful in the UPSC
examination and on being selected by the UPSC, and
(iii) the
unsuccessful Medical Officers through UPSC who stood regularised pursuant to
the orders of the Court in Dr. A.K. Jain (supra) and the subsequent clarificatory
order dated 1.11.1988 on the application filed by the Union of India. In the
application which was disposed of by order dated 18.2.1993 (1993 (2) SCC 213)
this Court was actually concerned with evolving a principle of determining
inter se seniority between the third category of Medical Officers, namely, who
were regularised pursuant to the order of this Court in Dr. A.K. Jains case and
the direct recruit Medical Officers appointed on the basis of they being
selected by the Union Public Service Commission. The inter se dispute between
those outsiders direct recruits and the insiders direct recruits, who were
initially appointed on ad hoc basis but got themselves selected by appearing in
the examination through UPSC had not been really in issue though in the
ultimate analysis the Court had made some observation in respect of them. While
the matter stood thus Dr. P. Srinivasulu and 20 others who belong to the second
category, namely, insider ad hoc recruits who got themselves regularised after
being selected by the UPSC either by written examination or by interview filed
an application before the Central Administrative Tribunal, Principle Bench, New Delhi which was registered as O.A. No.
1603 of 1987.
The
Tribunal in the aforesaid case came to the conclusion that the ad hoc
appointees being regularised after being selected through the UPSC would be
entitled to get their ad hoc period also counted towards seniority, and
therefore, the seniority list that had been drawn up on 10th June, 1987 was quashed. This order of the
Tribunal is dated 18th
March, 1993. It may be
stated herein that the Interlocutory Application that had been filed in Writ
Petition No. 1165 of 1986 though had been disposed of on 18th February 1993 but the same had not been brought
to the notice of the Tribunal. The order of the Tribunal was assailed by the
Union of India in Special Leave Application, which was registered as SLP(C) No.
10714 of 1993, but the Court refused to grant leave after hearing the counsel
for parties by order dated 15.11.1993. While dismissing the Special Leave
Application the Court did consider the order dated 18th February, 1993 passed
in Interlocutory Application (1993 (2) Supreme Court Cases 213) and came to the
conclusion that the two category of people who are being dealt with are
different and what has been stated in Interlocutory Application will have no
application to the case of Srinivasulu since Srinivasulu and others had been
selected through UPSC and got regularised. The Union of India thereafter filed
an application for clarification and modification of the order dated
15.11.1993, which was registered as I.A. No. 2 in Special Leave Petition
No.10714/93. But that was also dismissed by order dated 13.5.1994 holding that
no clarification is needed. It appears, that several Writ Petitions, filed
under Article 32 of the Constitution, some by the Doctors Association and some
by the individual were also dismissed by this Court subsequent to the aforesaid
order dated 28th February, 1993 and the order in Srinivasulus case was
implemented and those of the doctors who were party to the said case (21 in
number) their seniority was revised by the Union of India by order dated 24th
August, 1994. One doctor D.P. Pande, a direct recruit, had filed a Writ
Petition under Article 32, which was registered as Writ Petition No. 612 of 1994,
that was, however, dismissed by the Court on 4.10.1994. While dismissing the
Writ Petition this Court had observed that dismissal will not prevent the
petitioners from moving the Tribunal or any other appropriate forum. Said Dr. Pande
then approached the Central Administrative Tribunal, Principal Bench, but the
application was dismissed for default. A Writ Petition was filed by a Dr. Satish
Chandra, which was registered as Writ Petition No. 30 of 1995. But that was
withdrawn and he filed a Special Leave Petition which was registered as S.L.P.
(Civil) No. CC 4125 of 1995. That was also dismissed by order dated 11.4.1997.
Dr. Lalita Rao respondent no. 1 in Civil Appeal Nos. 2478- 79 of 2000, filed
application before the Central Administrative Tribunal, Principal Bench, New
Delhi claiming same benefit that had been given to Srinivasulu.
This
Application was registered as OA No. 321 of 1996. The Direct Recruits Railway
Doctors Association also filed a Writ Petition in Delhi High Court, which was
registered as C.W.P. 2802 of 1997. Some direct recruit doctors also
individually filed Writ Petition in Delhi High Court, which was registered as
Writ Petition No. 2795 of 1997. Delhi High Court by judgment dated 16.4.1999
dismissed the Writ Petitions filed on the ground that the Special Leave
application against the judgment of the Tribunal in Srinivasulus case having
been dismissed the relief sought for by the direct recruits cannot be granted.
The said judgment of the Delhi High Court is under challenge in this Court in
C.A. No. 3057 of 1999. Civil Appeal No. 2478-79 of 2000 have been filed by the
Union of India against the said judgment of Delhi High Court dated 16.4.1999
passed in Civil Writ Petition Nos. 2802 of 1997 and 2795 of 1997, one filed by
the Direct Recruits Railway Doctors Association and the other filed by some
individual direct recruit doctors.
When
the matter had been placed before this Court on 13th January, 2000, prima facie being of the view the direction in Haques case
would run contrary to the directiions in Srinivasulus case, the case had been
placed before a three Judge Bench. The three Judge Bench by order dated 31st March, 2000 granted leave and that is how the
matter has finally been heard by a three Judge Bench. Against the judgment of
Delhi HIGH COURT in Civil Appeal Nos. 2802/97 and 2795 of 1999, the Direct
Recruits Railway Doctors Association have moved this Court in Civil Appeal No.
2480 of 2000. The Indian Railways Medical Officers (ad hoc) Association through
its General Secretary doctor Sudhir Sharma and one doctor C.P. Singh filed an
Application before the Central Administrative Tribunal praying that their past
services as ad hoc doctor should also be counted for the purpose of their
seniority as directed in Srinivasulus case. This application was registered as
O.A. No. 1555 of 1996. Dr. Brahm Prakash & Anr. who are petitioners in
Special Leave Petition No. 18846 of 1999 were allowed to intervene in the said
proceedings. Tribunal ultimately allowed the application and following the
judgment in Srinivasulus case called upon the authorities to re-fix the
seniority. That judgment of the Tribunal was assailed before the Delhi High
Court by filing a Writ Petition, which was registered as CWP No. 3916 of 1999.
A Division Bench of High Court dismissed the Writ Petition on the ground that
against the earlier judgment of the Division Bench in C.W.P. Nos. 2795 of 1997
and 2802 of 1997, a Special Leave Petition, filed by the Direct Recruits
doctors having been dismissed nothing survives in the matter. As stated
earlier, the aforesaid judgment of the Delhi High Court in C.W.P. Nos. 2795 of
1997 and 2802 of 1997 is the subject matter of challenge in Civil Appeal Nos.
2478-79 of 2000, filed by the Union of India.
The
Railway Establishment Code contains the general provisions indicating the
method of recruitment to Group A service in the various departments of railways
as in Paragraph 205. The same is quoted hereinbelow in extenso:- 205. Method of
Recruitment:- Recruitment to Group A service in the various departments of
Railways shall be made through
(a)
Competitive Examination held by the Union Public Service Commission;
(b)
Promotion of officers in Group B Service including officiating Group B Railway
officers of the service or department;
(c) By
appointment of candidates initially recruited as Special Class Apprentices on
the results of the examination conducted by U.P.S.C. in accordance with the
rules for recruitment to Indian Railway Service of Mechanical Engineers.
(d) By
transfer of an officer in service of the Government provided the recruitment
rules include a provision to this effect.
(e) By
occasional admission of other qualified persons in consultation with the
U.P.S.C.
It
thus stipulates that recruitment could be made by a competitive examination
held by the Union Public Service Commission by promotion of officers from Group
B, by appointment of candidates initially recruited as Special Class
Apprentice, by transfer of an officer in service of the government, provided
Recruitment Rules included provision to the said effect and by occasional
admission of other qualified persons in consultation with the Union Public
Service Commission which would obviously be a direct recruitment. The President
of India, in exercise of powers conferred by the proviso to Article 309 of the
Constitution made a set of Rules for recruitment to the post of Assistant
Medical Officers (Class II) called, The Indian Railways Medical Department
(Assistant Medical Officer Class II) Recruitment Rules, 1967 (hereinafter
referred to as The Recruitment Rules of 1967). The said Rule came into force
with effect from 29th
July, 1967. Rule 4 of
the aforesaid Rules provides, that the method of recruitment to the post, age
limit, qualification and other matters connected therewith, would be as
specified in Columns 5 to 13 of the Schedule. Rule 8 is the power of relaxation
of the Central Government and that power could be exercised only after
recording reasons in writing and that also must be in consultation with the
Union Public Service Commission. So far as the Assistant Medical Officer is
concerned, the Recruitment Rules of 1967 provides that it could be by promotion
to the extent of 25% and by direct recruitment including occasional recruitment
from other sources in consultation with the UPSC to the extent of 75%, and
failing both the aforesaid methods then by transfer on deputation.
Prior
to the aforesaid Recruitment Rules there was no statutory rule, and therefore,
recruitments were being made in accordance with paragraph 205 of the Railway
Establishment Code and the Assistant Medical Officer being a post in Group A
service it was being made through Union Public Service Commission. The letter
of the Ministry of Railways, Government of India dated 21.5.1966 clearly
assumes the aforesaid position and by this letter General Managers were
permitted to recruit Assistant Medical Officers in Class II on an ad hoc basis
for a period not exceeding six months even though by the date of the issuance
of the aforesaid letter Union Public Service Commission had already advertised
the vacancies and made arrangements to complete the selections expeditiously.
It would be appropriate to extract the aforesaid letter in extenso hereunder :-
New Delhi, dated 21.5.1966 No.E(GR)I-66-RC12-3 The General Managers All Indian
Railways including CLW and DLW, The Chief Administrative Officer, Sub:
Recruitment of Assistant Medical Officers on the Indian Railways.
,,,,
Reference Boards letter No. E(GR)I-66 RC12-1 dated 20.4.1966 addressed to the
Secretary, Union Public Service Commission and copy endorsed to all Railway
Administrations.
The
Union Public Service Commission have advertised the vacancies and made arrangements
to complete the selections as expeditiously as possible.
2.
However, in order to enable Railway Administrations to man the existing vacant
posts which cannot, in the public interest, continue to be kept unfilled until
candidates selected by the Commission become available, the Board have with the
approval of the President, decided that the General Managers may recruit
Assistant Medical Officers in Class II on an ad hoc basis for a period not
exceeding six months.
The
candidates so appointed should be advised to apply to the Union Public Service
Commission in response to the advertisement issued by them for filling vacant
posts of Assistant Medical Officers on Railways and it should be made perfectly
clear to them that their services are purely temporary and will be terminated
as soon as candidates selected by the Commission become available. The
particulars of candidates so appointed viz. their names, qualifications,
experience, date of birth, date of appointment, etc. may please be forwarded to
this office in due course.
3. The
Union Public Service Commission advertisement for posts of Assistant Medical
Officers has appeared on todays papers. The Assistant Medical Officers
recruited on ad hoc basis by General Managers should fulfil the qualifications
laid down therein. A copy of the advertisement is enclosed.
4. The
Board have also suggested that you may try to obtain assistance from State
Governments by getting qualified doctors on the normal deputation terms for a
short period of about six months.
5.
Assistant Medical Officers appointed on ad hoc basis should not be retained in
service beyond six months without Boards prior approval. Where, due to
non-availability of candidates selected by the Commission, it becomes necessary
to continue the appointment of locally recruited doctors a reference should be
made to the Board two clear months in advance.
The
1967 Recruitment Rules stood superseded on 16th September, 1977 when the
President of India enacted, in exercise of powers conferred by the proviso to
Article 309, another set of Rules called, The Indian Railway Medical Service
(Assistant Divisional Medical Officer) Recruitment Rules, 1977. The aforesaid
Rules were given retrospective effect and must be deemed to have come into
force from 16.10.1976. Rule 3 of 1977 Recruitment Rules also provides that the
method of recruitment, age limit, qualifications and other matters relating to
the post of Assistant District Medical Officer would be as specified in columns
5 to 13 of the Schedule. Rule 7 of 1977 Rules further provides that the persons
who are recruited under the Rules to post to which the conditions prescribed in
Rule 2423 (CSR) 404B of the Indian Railway Establishment Code applies, shall be
eligible to the benefit of the provisions contained in that Rule. By the time
the 1977 Rules came into force there had been re- organisation of the cadre on
the basis of recommendations of the Third Central Pay Commission, being
accepted by the Government of Indian and Class II cadre in the Railway Medical
Service (which was the post of Assistant District Medical Officer in the 1967
Recruitment Rules), stood abolished and a combined junior and senior scale was
introduced, the cadre being Assistant Divisional Medical Officer. This is
apparent from the Resolution of the government of India dated 1st May, 1974, as notified in the Gazette. In the Recruitment Rules of
1977, so far as for the post of Assistant Divisional Medical Officers, the
method provided was either by direct recruitment or by promotion or by
deputation/transfer and the percentage of vacancies to be filled by various
methods was to be decided in consultation with the Union Public Service
Commission.
So far
as the outsider direct recruitment is concerned, the same was required to be
made through a written examination followed by interview, on the basis of such
schemes of examination to be decided from time to time, in consultation with
the Union Public Service Commission, and failing the direct recruitment it
could be by transfer on deputation.
The
scale of pay for the post of Assistant Divisional Medical Officer was
Rs.700-40-900-EB-50-1250-EB-50-1600.
Though
the post of Assistant District Medical Officer, as provided in the Railway
Establishment Code as well as in the 1967 Recruitment Rules stood abolished
under the Recruitment Rules of 1977, but a note was appended indicating that
existing Assistant Medical Officers (Group B) shall continue in Group B post in
scale of pay of Rs.650-1200 till such time they are selected for absorption in
Group A Grade of Assistant Divisional Medical Officer in consultation with the
Union Public Service Commission. By the time the 77 Recruitment Rules came into
force the Union Public Service Commission had already issued advertisement on
16th October, 1976 to hold examination for filling up the post of Assistant
Divisional Medical Officer Class I, the said cadre having come into existence
in the year 1974 on acceptance of the recommendaion of Third Central Pay
Commission by Government of India, and therefore, to regularise the matter 1977
Recruitment Rules was given retrospective effect with effect from 16.10.1976.
We have devoted a considerable attention to these Rules, as in the earlier
cases referred to, in Haques case (supra) as well as Srinivasulus and others,
the relevant Recruitment Rules had not been brought to the notice of the Court.
It is too well settled, that the seniority of an employee in a cadre has to be
determined in accordance with the Rules if such Rules provided for the same.
But if such Rules do not make any provision or do not fix the criteria for
determination of seniority of the employees in a cadre then the same could be
determined on the principles enunciated by the Constitution Bench decision in
the Direct Recruits Engineering Officers case 1992 (2) Supreme Court Cases.
This being the position, and in view of the letter of Government of India, in
the Ministry of Railways dated 21.5.1966 authorising General Managers to
recruit Assistant Medical Officer Class II on ad hoc basis for a period not
exceeding six months, and further indicating that such ad hoc appointees should
apply to the Union Public Service Commission in response to the advertisement
issued by the Commission, those of the ad hoc appointees who had not got
themselves regularised by getting themselves selected through UPSC examination
will not be entitled to claim the benefit of their ad hoc period for being
counted for the purposes of seniority in the cadre, after they were regularised
pursuant to order of this Court in A.K.Jains case (supra) . In fact the
directions contained by this Court in Dr. Jains case (supra) deals with all the
ad hoc doctors appointed either as Assistant Medical Officer or as Assistant
Divisional Medical Officer upto October 1, 1984 should be regularised in consultation with the UPSC on the
evaluation of their work. The Court having issued the direction for regularisation
even in respect of Assistant Divisional Medical Officers appointed after coming
into force of the Recruitment Rules of 1977, advisedly did not indicate as to
how their seniority in the cadre would be determined and these group of
officers who got themselves regularised in pursuance to the order of the Court
were treated to be a separate group by itself in the Clarificatory Order of
this Court. When the Union of India moved application finding difficulty in
adjusting the seniority of those ad hoc doctors appointed upto 1st October, 1984, who were regularised pursuant to
the direction of the Court dated 24th September, 1987 in Dr. A.K. Jains case (supra) that application was
disposed of, as already indicated, by order dated 1.11.1988. In the said order
it was specifically indicated that the inter se seniority between the direct
recruits and the ad hoc recruits who got themselves regularised under the orders
of the Court in Jains case (supra) should be decided by the Government in the
light of the decision to be rendered in the cases which are pending before the
Constitution Bench involving similar questions. After the Constitution Bench
decision in the Direct Recruits Class II Engineering Officers Association case
(supra) an Interlocutory Application No. 1 of 1992 was filed and that stood disposd
of by order dated February
18, 1993, called Dr.
M.A. Haques case (supra). In paragraph 7 of the said order the Court has kept
in mind three classes of Assistant District Medical Officers, namely, the
outsiders directly recruited through UPSC, ad hoc appointees who came to be
recruited through UPSC by appearing in the written examination or interview;
and those who had filed I.A. were also ad hoc appointees but did not appear in
a written examination/interview or had failed to get through but could be regularised
in service because of the Courts intervention and order dated 24.9.1987 and
1.11.88. So far as the direct recruits are concerned, both outsiders and
insiders, it was held, that the same should be determined according to the
dates of their regular appointments through UPSC and so far as those ad hoc
appointees who could be regularised only pursuant to the order of the Court
they were directed to be placed after those direct recruits who had been
recruited till the date of the order. In other words even in case of insider
direct recruits i.e. those who joined as ad hoc appointees but got themselves regularised
after appearing in the examination or interview and being selected by UPSC the
Court did not apply guideline B of the Direct Recruits Class II Engineering
Officers Association case(supra). It must be borne in mind that the applicants
who had filed Interlocutory Application belong to the Third category, namely,
those who could be regularised because of the orders of the Court in AK Jains
case dated September 24, 1987 and the Clarificatory order dated 1.11.1988 on
the application of the Union of India and in that proceeding neither the
outsiders directly recruited doctors nor insiders directly recruited doctors
had been arrayed as parties. The present dispute appears to be between the
outsider direct recruits, who got themselves recruited by appearing at the test
conducted by the UPSC and the insider direct recruits, who initially had been
appointed on ad hoc basis but got themselves selected through UPSC while
continuing in service. But the Union of India is of the view that the
principles enunciated in Haques case is running contrary to the principles
enunciated in Srinivasulus case by the Tribunal and upheld by this Court. In
view of the apprehended confusion in the mind of the Railway Administration on
account of the judgments of this Court, referred to earlier, and for doing
complete justice in the matter of determination of seniority amongst the
medical officers recruited by the Railway Administration through the UPSC, we
have approached the problem on consideration of the different Rules in force as
well as the orders issued by this Court in several earlier cases and this
should apply irrespective of the fact whether some are parties to this
proceeding or not. In fact one of the grievance of insider direct recruit
Medical Officers like, doctor Srinivasulu is that they had not been arrayed as
party when the Court was considering the Interlocutory Application filed by
doctor Haque for determination of their seniority, who belong to the category,
namely, ad hoc appointees who got recruited without getting themselves selected
through any examination conducted by the UPSC only because of the compassionate
view that was taken by this Court in Dr. A.K. Jains case (supra). A similar
problem arose in the case of Traffic Apprentices in Southern Railways and a
Three Judge Bench of this Court in the case of Union of India and others vs. M.
Bhaskar and Others (JT 1996 (5) SC 500), issued directions notwithstanding some
other Traffic Apprentices who would be directly affected were not parties. The
correctness of that decision was considered by the Constitution Bench in the
case of E.S.P. Rajaram & Ors. vs. Union of India & Ors., JT 2001 (1) SC
573, and the Constitution Bench came to hold that the judgment in Bhaskars case
(supra) does not require any re-consideration, the Court having invoked its
power vested under Article 142 of the Constitution for doing complete justice
amongst the Traffic Apprentices in Southern Railways and the decision/direction
therein could not have been nullified on the ground that an affected person was
not a party to the same. In the aforesaid background and the earlier judgments
of this Court on being critically analysed, it would appear that in Dr. A.K. Jains
case (supra) this Court merely directed that the services of all doctors
appointed on ad hoc basis, whether as Assistant Medical Officer or Assistant
Divisional Medical Officer up to 1.10.1984 shall be regularised in consultation
with the UPSC on the evaluation of their work conduct on the basis of their CRs
in respect of the period subsequent of October 1, 1984. So far as these doctors
ad hoc appointees, who got themselves regularised pursuant to the orders of
this Court, the question of counting their prior ad hoc period of service for
determination of their seniority in the cadre does not arise. Though in doctor Jains
case (supra) as well as in the subsequent order on the application filed by the
Union of India the Court had not indicated as to how their seniority in the
cadre would be determined, but on the Interlocutory Application filed by doctor
Haque, the Court examined and did indicate that they could be placed in the
seniority list after both the outsider direct recruits as well as insider
direct recruits, who have been recruited till the date. It is no doubt true
that while saying so the Court did observe that so far as outsider and insider
direct recruits are concerned, their inter se seniority would be determined
according to the date of their regular appointment through the UPSC, but as has
been stated earlier, this dispute was not really before the Court and Court had
not focussed its attention minutely as the insider direct recruits had not been
parties to the same and the Court was merely examining how the case of those
officers, who got themselves regularised pursuant to the orders of this Court
in Dr. Jain would be determined. The observations of this Court in Dr. Haque
(supra) to the effect we direct that seniority of direct recruits both
outsiders and insiders should be determined according to the dates of their
regular appointments through UPSC must be held to be per incuria and cannot be
the guiding principle.
In Srinivasulus
case, however, the Tribunal was considering as to whether their ad hoc period
could be counted for the purpose of seniority, be it be stated, that Srinivasulu
belong to that category of officers who were initially appointed as ad hoc but
got themselves regularised by appearing at the examination conducted by the
UPSC, on being selected, and this Court upheld the decision of the Tribunal in Srinivasulu
being of the opinion that the ad hoc services rendered by such officers could
be counted for the purposes of their seniority. Obviously the Court had in mind
the principle B evolved by the Constitution Bench in the Direct Recruit
Engineering Officers Association case (supra). If the initial appointment had
not been made in accordance with the prescribed procedure laid down by the
Recruitment Rules, and yet the appointees Medical Officers were allowed to
continue in the post uninterruptedly and then they appeared at the selection
test conducted by the Union Public Service Commission, and on being selected
their services stood regularised then there would be no justification in not
applying the principle B of the Direct Recruit Class II Engineering Officers
Association case (supra) and denying the period of officiating services for
being counted for the purpose of seniority. This has what happened in Srinivasulus
case and this Court did not interfere with the order of the Tribunal. It may be
reiterated that there being no provision in the Recruitment Rules, either of
the 1967 or of the 1977 for determining the seniority of the persons employed
as Assistant Medical Officers Class II, or the 1977 Recruitment Rules, for the
purpose of determining the seniority the principles evolved by the Constitution
Bench in the Direct Recruit Class II Engineering Officers Association case
(supra) will have to be followed, and judged from that angle we see no
inconsistency between the judgment of this Court in Dr. Haques case (supra) and
the judgment of this Court confirming the decision of the Tribunal in Dr. Srinivasus
case (supra) accepting the observation in Dr. Haques case which we have already
held to be per incuria. This being the position, the grant of benefit to Dr. Lalita
Rao, as had been given to Dr.
Srinivasulu
by the Tribunal in O.A. No. 3218 of 1996, we do not see any infirmity in the
same. At the cost of repetition we would record our conclusions as under :-
1. All
doctors appointed either as Assistant Medical Officer or as Assistant
Divisional Medical Officer on ad hoc basis upto October 1, 1984, who were regularised
by the Railway Administration in consultation with the Union Public Service
Commission on the evaluation of their work and conduct and on the basis of
their CRs in respect of a period subsequent to October 1, 1984, pursuant to the
direction of this Court in the case of Dr. A.K. Jain (supra) will not be
entitled to count the services rendered prior to the regularisation for the
purpose of determination of their seniority in the cadre. This has been so held
in the Interlocutory Application filed by Dr. Haque and answered by this Court
in its judgment dated 18th February, 1993, reported in 1993 (2) SCC 213.
2.
Doctors who had been appointed by the Railway Administration on ad hoc basis or
on temporary basis and had got themselves regularised prior to 1st October,
1984, by appearing in the selection test held by the Union Public Service
Commission then in their case the period prior to their regularisation could be
counted for determining their seniority applying principle B of the Direct
Recruit Engineering Officers Association case (supra) and in fact, the Tribunal
decided the case of Dr. Srinivasulu on that basis and this Court upheld the
said decision. 3. If any doctor, who had been appointed subsequent to October
1, 1984, and had applied for selection by the Union Public Service Commission
on obtaining relaxation of age pursuant to the direction No. 5 in Dr. Jains
case (supra) and got selected thereby finally, in such a case the services
rendered prior to such regularisation would not be counted for the purpose of
their seniority in the cadre, particularly when the Recruitment Rules did not
provide for any ad hoc appointment and only provided for appointment to be made
through Union Public Service Commission. We have taken the date October 1, 1984 as cut off date since this Court in
Dr. Jains case (supra) had considered the impasse and had directed regularisaiton
of ad hoc doctors appointed upto 1.10.1984. The ad hoc appointees subsequent to
1.10.1984, even if got themselves regularised by appearing in the selection
test conducted by the Union Public Service Commission in accordance with the
Rules it will not be in the interest of justice to apply principle B to their
case as the Statutory Recruitment Rules do not provide for any other mode of
recruitment other than by process of selection by the Union Public Service
Commission.
These
Civil Appeals stand disposed of accordingly.
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