Chandra Prakash & Ors Vs. State of U.P. & Anr  Insc 520 (4 December 2002)
Ruma Pal & Brijesh Kumar. Ruma Pal, J.
W.P.(C) No.237/98,220/98,276/98,532/98 539/98,547/98,176/99,229/99 and 299/99
tangled web of facts and law would best describe this case which involves the
question of the seniority of doctors in the Uttar Pradesh Medical Services. To
untangle the factual aspect, we need to start from 1945.
to 1945 there were two medical services in the state of U.P - the Provincial Medical
Service (PMS) and Provincial Subordinate Medical Services (PSMS). On June 14, 1945 the Government of U.P. framed rules
known as 'The United Provinces Medical Service (Men's Branch) Rules, 1945'
(referred to hereafter as the '1945 Rules'). In 1946, two new medical services
were constituted, namely, PMS Grade I and PMS Grade II. On 2nd November, 1964 PMS Grade I and Grade II were
merged with effect from 1st
However, there were no rules for fixing inter-se seniority of the officers of
the two erstwhile services which were so merged. The issue of the inter-se
seniority between the members of the new service as merged i.e. between PMS I
and PMS II, was resolved ultimately by this Court by its decision in State of
U.P. v. M.J. Siddiqui 1980(3) SCC 180. As far as recruitment to the new PMS was
concerned by way of a stop gap arrangement the State Government passed an order
dated 20th February
1965 making the 1945
Rules applicable to the new PMS. The order said, "The U.P. Medical Service
(Men's Branch) Rules, 1945 shall apply to the new PMS, unless otherwise
ordered". and prescribed the eligibility criteria for appointment:
following will eligible for appointment to PMS:
Medical Graduates of all universities in India recognised by the Indian Medical Council.
Medical Graduates who hold the BMBS degree of Lucknow University, provided they have served in house
appointments for a term of nine months in a teaching hospital before they offer
themselves for appointment." The writ petitioners Nos. 1 and 2 before us
were selected by the Departmental Selection Committee (DSC) and issued letters
of temporary appointment in the new PMS by the Governor on 24th September 1965 and 30th November 1965 respectively. There is no dispute that they were eligible
to be appointed under the prescribed criteria.
second chapter begins in 1968 when the State Government made a request to the
State Public Service Commission for recruiting doctors to the medical service
of the PMS. The Public Service Commission (PSC) prepared a Select List in 1972.
Some of the respondents are those who came into the picture for the first time
when they were selected in 1972 by the PSC. The petitioner No. 2 was also one
of the selectees. However, before the select list could be given effect to, on
26th June 1973 the PMS was merged with the Provincial Health Service (PHS) and
a new cadre was formed, namely, the Provincial Medical and Health Service
(PMHS). With the merger 995 posts of PHS, 574 posts of PMS(Male) and 19
permanent and 407 temporary posts of PMS(Female) i.e. a total of 2056 posts
stood abolished in the erstwhile PMS and PHS on the date of the merger
therefore 2056 posts were in the new cadre.
to the merger i.e. between 1968 to 1973 some of the writ petitioners before us
were also temporarily appointed like the petitioners 1 and 2, against
substantive posts by the Governor after selection by the DSC. Temporary
appointment letters were issued to some of the selectees not on the basis of
the Select List but after selection by the DSC.
third chapter starts with a letter dated of the State Government dated 11th April 1974 which stated that as there were
certain deficiencies in the 1972 Select List the ad hoc appointments of PMS officers
would be extended upto 31st
October 1973. A
request was then sent by the State Government to the UPPSC for recruitment of
2025 medical officers. During this period also a number of persons were
appointed by the State Government on temporary basis after selection by the DSC
till 1976. On 23rd
December 1977 the
UPPSC sent a list of 1703 persons selected against the aforesaid posts.
Subsequently by letters dated 16th June 1978
and 18th May 1979, the UPPSC sent two separate lists
of a total of 25 candidates to the Government. Some of the writ petitioners who
had been temporarily appointed during 1968 to 1976 were recommended in the
1977-78-79 Select List. However, no letters of permanent appointment were
issued by the Government to any of these 1798 selected candidates.
other words, during the period 1968 to 1979 there were three groups of
Those given temporary appointment and who had also been selected by PSC;
Those given temporary appointment but were not selected by PSC;
Those who were selected by PSC without being temporarily appointed earlier.
fourth chapter begins with the issue of the UP Regulation of Ad hoc
Appointments (On posts within the purview of UP Public Service Commission)
Rules, 1979 (hereinafter referred to as the '1979 Rules'). Rule 7 of the 1979
(1) A person appointed under these rules shall be entitled to seniority only
from the date of order of appointment after selection in accordance with these
rules and shall in all cases, be placed below the persons appointed in
accordance with the relevant service rules or as the case may be, the regular
prescribed procedure, prior to the appointment of such person under these
two or more persons are appointed together, their seniority inter se shall be
determined to the undermentioned in the order of appointment."
terms of the 1979 Rules the 'ad hoc appointees' could not count their services
which they may have rendered earlier as temporary appointees. Thus the doctors
who had been appointed temporarily upto1976 were sought to be regularized under
the 1979 Rules and letters of appointment were issued to them, after a period
of 'probation', whereby they were treated as having joined the service with
effect from the date of these appointment letters. A seniority list was
published in 1983 in which the candidates who had been recommended by the PSC
for appointment in 1972 were placed at the top followed by all the 'temporary
appointees' like the writ petitioners although almost all of them had been
appointed at least temporarily much prior to the 1972 selectees who had not
been issued regular appointment letters at all.
On 13th March 1984, the State Government issued an
order which was communicated to the UPPSC that the Select List prepared by the
UPPSC for the year 1977, 1978 and 1979 was cancelled and would not be given
these facts gave rise to litigation by the different groups.
first set of litigation was filed by the temporary appointees before the Allahabad
High Court. Three separate writ petitions were filed by Dr. H.C. Mathur, Dr.
P.L. Nigam and Dr. Jagdish Narayan Rai. All three of them had been appointed
temporarily to the PMS prior to its merger with PMHS and had been continuously
working since the date of their respective appointments. They impugned the
decision taken by the State Government to treat them as ad hoc appointees under
the 1979 Rules. The High Court disposed of these three writ petitions by a
common judgment dated 26th
(hereinafter referred to for the sake of convenience as 'Mathur's case'). The
High Court noted that the petitioners had been appointed and selected
temporarily pursuant to notifications for filling up of posts and in
consultation with the UPPSC. All the petitioners had MBBS degrees with the
requisite experience and were entitled to be appointed against the vacancies
then existing. Although the petitioners were appointed temporarily their
appointments were against substantive vacancies. The Court also noted that the
Civil List which had been published in 1967 showed that the temporary PMS officers
like the petitioners in Mathur's case had been approved by the UPPSC. The High
Court held that the petitioners could not be treated as having been appointed
on ad hoc basis and that the 1979 Rules did not apply to them. Consequently
their seniority was not to be fixed from the date of their regularisation under
the 1979 Rules, namely 1982, but from the date of their initial appointment in
the PMS cadre.
State of U.P. filed a special leave petition from
the decision of the High Court in Mathur's case. This was dismissed by this
Court on 24th November
1992 by a reasoned
order in which this Court said, "We see no infirmity in the judgment of
the High Court.
agree with the reasoning and the conclusions reached therein".
order was passed by a Bench of three-Judges of this Court.
other writ petitions had also been filed by temporary appointees. Writ Petition
No. 6227/81 by the High Court was treated as a representative writ petition.
Pursuant to directions of the High Court, notices were published in the
'Northern India Patrika' and 'The Sunday Pioneer' on 22nd May 1988. In those notices, the contentions
of the petitioners were indicated. By order dated 9th September 1981, the High Court held that the issues raised were covered by
the judgment of the High Court in Mathur's case and accordingly similar relief
was granted to the writ petitioners. The Special Leave Petition from
W.P.No.6227/81 filed by the State was dismissed on 21st January 1993.
in a number of writ petitions, namely, W.P.No.3550/88 Dr. V.P. Singh & Ors.
V. State of U.P.; W.P. No.6368/82 Raj Nath Sharma
and Ors. v. State of U.P.; W.P. No.6124/91 Ram Jee Khare and Anr.
V. State of U.P. & Anr. the High Court passed
orders following the decision in Mathur's case. Each of the special leave
petitions preferred by the State of U.P.
from the several decisions of the High Court were dismissed by this Court.
from this there were three other decisions such as CMWP No.7281/93 etc. where
the State did not file any SLP although the High Court had followed the
decision in Mathur's case.
consequence of the decision in Mathur's Case, those persons who had been
appointed temporarily against substantive posts were entitled to rank above any
other appointees who were subsequently appointed either on the basis of the
1972 Select List or the 1977-78-79 Select List.
second set of litigation commenced in 1993 with the case of Dr.P.C. Aggarwal
and Others V. State of U.P. (CMWP 10315/82).
Division Bench of the High Court reiterated the view taken in Mathur's case and
directed the writ petitioners who were originally temporary PMS appointees to
be given seniority taking into account the services rendered by them from the
date of their respective appointments. The decision of P.C. Aggarwal was
followed by the same High Court in several writ petitions. (CMWP No. 12257/89
and 18781/89 Dr. G.Agnihotri & Ors. V. State of U.P.; CMPW No.18781/89 and CMPW No.12267/89 Dr.Maheshpal
& Ors. V. State of U.P.; W.P.No.4163/93 Dr. Riyazul Hasan
V. State of U.P. & Ors.; CMWP No.______of 1993 F.M.Pachari & Ors. V.
State of U.P. & Ors.; CMPW No.____of 1993 Dr.Sanat Kr. Ghosh V. State of
U.P. & Ors.) The State did not impugn some of the decisions which had been
decided following Mathur's and Aggarwal's case.
it filed a special leave petition against the decision in P.C.
case and in five other matters. It appears from the records that no notices
were issued on these special leave petitions which only came to be tagged with
another matter, namely, C.A. No.4438-42 of 1995 - State of U.P. V. R.K. Tandon & Ors.
brings us to the final set of litigation. These were initiated by those persons
who claimed appointment on the basis of the 1977- 78-79 Select List. Several
petitions were filed before the U.P. Public Services Tribunal challenging the
decision of the State Government to cancel the Select List of 1977-78-79. The
Tribunal allowed the petitions and cancelled the Government's order thereby
reviving the 1977-78-79 Select List. The State Government appealed from the
Tribunal's decision. The High Court modified the order of the Tribunal holding
that only the 14 petitioners before the Tribunal who were working on ad hoc
basis would be deemed to have been appointed when the vacancies were first
filled by regularisation and they would be entitled to seniority and other
this decision, the State of U.P. filed
several special leave petitions in which the Court allowed leave to appeal. The
lead appeal was W. P. No.7066 of 1986 and 5809 of 1987 - State of U.P. v. R.K. Tandon & Ors. and is hereinafter
referred to as 'Tandon's case'. The batch of special leave petitions
challenging the decision in P.C. Aggarwal were also tagged with the appeal in Tandon's
case. On 23rd March, 1995 a Bench of two learned Judges of this Court disposed
of Tandon's appeal as also the several tagged special leave petitions without
any notice having been issued in those petitions. The Court held:
the PSC had notified, selected and recommended the names of candidates in 1972
they were entitled to be appointed and the State Government was directed to
appoint them with effect from the date on which the State Government had
received the merit list from PSC.
Those candidates whose names were recommended in 1977, 1978 and 1979 were
directed to be appointed in the order of merit in their respective lists. Their
seniority would be determined on the basis of their position in the respective
list and they would be deemed to have been appointed from the date on which the
State Government had received the list. They would be placed below the
appointees in Class I.
The remaining candidates were the ad hoc appointments made de-hors the rules
and therefore though the doctors had put in more than 33 years of service they
remained ad hoc hands and would not get seniority from the respective dates of
those of them who had been granted benefit of regularity of service from the
dates of their appointments by Court and who had retired would not be affected
by the decision of this Court as those matters had become final. Their
appointments would be merely notional only for the purpose of giving them
seniority and retiral benefits admissible according to the relevant rules and
would not disturb interse seniority amongs the other doctors appointed in the
service. Otherwise those who had not been selected but were still continuing in
service would be placed last and their seniority would be determined with
effect from the date of their regularisation under the 1979 Rules and their
respective dates of appointment thereunder.
writ petitioners in Tandon's case filed a contempt application before this
Court alleging violation by the State Government of the order dated 23rd March 1995 by non-framing of a seniority list
in keeping with that judgment. While disposing of the contempt application the
Court also took notice of Intervenor applications by those in whose favour the
High Court had passed orders and against which special leave petitions had been
filed and disposed of all the applications by an order dated 26th July 1996. By this order, the Court noted
that letters of appointment had not in fact been issued to either the persons
on the 1972 Select List or the persons in the 1977, 1978 and 1979 Select List.
Nevertheless it reiterated the stand that the candidates selected in the year
1972 would become senior to all other ad hoc appointees since they were
continuing on ad hoc basis. It was also held that the candidates recommended by
the PSE in the Lists of 1977-78-79 would rank below the 1972 appointees and
that as far as "non selectees" were concerned they would be governed
by Rule 7 of the 1979 Rules and given seniority from the date of their
appointments under the 1979 Rules. It was made clear that the order "would
cover all the cases and would apply to all the candidates who are concerned in
the service and that "the Government would determine their inter-se
seniority in accordance with these directions within four months".
compliance with the orders dated 23rd March 1995 and 26th
July 1996, the
Government published a seniority list on 24th November 1996 which placed the persons who had
been placed as the senior most by virtue of Mathur's case at the bottom of the
seniority list. It was in these circumstances that several writ petitions were
filed in this Court stating that the decision of this Court in Tandon's case
was directly in conflict with the earlier decision of this Court in Mathur's
case and that since the decision in Tandon's case was rendered by a Bench of a
lesser number of Judges than in Mathur's case, this Court should reaffirm the
principles already laid down in Mathur's case and fix the seniority of all the
doctors in PMHS cadre from the date of their initial appointment and declare
that Rule 7 of the 1979 Rules did not apply to them at all.
matter was placed before a bench of three-Judges. By an order dated 4th February 1999, this Court noted that there were
five categories of persons in the service:
Those persons who are in service as temporary recruits and who have not been
selected by the Public Service Commission but are given seniority from the date
of joining service on the basis of Court orders passed by the High Court or by
a bench of three Hon'ble Judges of this Court;
Those persons who were in service as temporary recruits and who have been later
selected by the Public Service Commission in 1972;
Those persons who were in service as temporary recruits and who have been later
selected by the Public Service Commission during the years 1977, 1978 and 1979;
Those persons who are in service as temporary recruits and who have not got the
benefit of any order of the High Court or this Court i.e. (those temporary
recruits other than unselected temporary recruits falling in Category 1). These
persons are the persons affected by the U.P. Regularisation of Ad hoc
Appointments (of Posts within the Purview of the Public Service Commission)
recruits who were selected by the Public Service Commission in 1977, 1978 and
1979 and who have been subsequently appointed." It was also noted that
there would be pensioners falling in each of the categories. The Court directed
the State of U.P. to issue notice in two daily newspapers, namely, 'Amar Ujala'
in Hindi and 'Times of India', Lucknow Edition in English and stated that the
matters would be heard by this Court and those persons whose seniority was
likely to be effected were entitled to come before this Court to put forward
their point of view including all those persons were governed by earlier Court
orders. A circular was also directed to be issued to the same effect by the
State to all District Headquarters.
publication and completion of the procedures as directed, this Court by order
dated 17th August 2000 referred the writ petitions to a
Bench of five-Judges for disposal in view of the dissimilarity of views
expressed in Tandon's case and Mathur's case.
the bench of five-Judges, it was contended by the respondent that there was in
fact no conflict between the decisions in Mathur's and Tandon's case. The Court
by its judgment dated 4th
April 2002 held that
there was a conflict and that having regard to the doctrine of precedent, the
decision of this Court in Tandon's case dated 23rd March 1995 as modified on 26th July 1996 could not stand. However, since the
decision in Tandon's case was being set aside only on the ground that it was in
conflict with a larger Bench decision, the Constitution Bench did not decide
the inter-se rights of the petitioners and the other respondents or the
correctness of the judgment in Mathur's case. The writ petitions were
accordingly remitted back to the three-Judges Bench to be disposed of finally
matters have thereafter been placed before us for final disposal.
to the writ petitioners they were appointed on temporary basis against
substantive vacancies in accordance with the Rules prevalent at the time of
their respective appointments.
had the requisite qualifications and their appointments were made after
selection by the DPC, after sanction granted by the Governor and with the
approval of the PSC. They claim to have at least continued to serve in such
substantive vacancies after consultation with the PSC and had been granted
leave benefits, promotions, increments and other service benefits of regular
therefore claim seniority from the date of their initial appointments on the
principles laid down in Mathur's case.
to the petitioners the PSC select lists prepared in 1972 and 1977-78-79 are not
available with the State respondents as they have been admittedly destroyed or
misplaced and the 1996 seniority list was purportedly based on them. It is
stated that State Government has not issued any letters of regular appointment
to any selectee till today. It is contended that the selectees who had not been
temporarily appointed earlier, were given temporary appointments after their
recommendations by the PSC in 1972 or 1977-78-79. Many of them joined services
on the basis of these orders of temporary appointment much later. Now on the
basis of the decision in Tandon's case, they were claiming seniority from the
date of their selections whether in 1972 or 1977-78-79 even though they had not
joined services at all then. It is submitted that the selectees could not claim
seniority on the basis of PSC recommendation which apart from any other
consideration, could not be kept alive for such a long period.
the case of the writ petitioners are the interveners.
first category of interveners are those who were also temporarily appointed
between 1962 and 1963 and who have since been superannuated. They claim the
same relief/benefit as the writ petitioners. The second category of Interveners
are those temporarily appointed doctors who had challenged their
"appointments" under the 1979 Rules by way of writ applications and
whose writ petitions have been allowed by the High Court holding that they were
entitled to count their seniority from the date of their initial appointments.
They claim that the orders in their cases had attained finality and have in
fact been given effect by the State Government and that their status should not
be disturbed. The third category of interveners are those temporary appointees
who had also obtained orders in their favour on writ applications filed by them
before the Allahabad High Court, the special leave petitions wherefrom have
been dismissed and who have since retired from services without getting any
benefit as directed by the Allahabad High Court. They claim that their orders
had attained finality and should not be re-opened.
against these submissions the selectees have contended that the decision in
H.C. Mathur's case requires re-consideration since the writ petitioners were
appointed on ad hoc/temporary basis without the approval of the UPPSC. Their
appointments were de hors the Rules and could not be termed as regular merely
by a passage of time. It is further contended that the provisions of the U.P.
Medical Services Men's Branch Rules 1945 had been mis- interpreted in Mathur's
case. It is contended that the 1945 Rules continued to apply to the medical
services till 1981. Even assuming that the 1945 Rules did not apply after 1973,
a civil post could be filled up only in consultation with the UPPSC and
therefore the selectees by the PSC had been properly appointed. It was
contended that in any event the writ petitioners are estopped from challenging
the selections made by the PSC because most of them had participated in the
selections and were unsuccessful. The writ petitioners, according to the selectees,
had obtained the benefit of regularisation and further promotion under the 1979
Rules. The selectees had been given preference in the matter of their
appointments for their post graduate work and if they were reverted, more
meritorious employees would be adversely affected. The prayer of the selectees
is that Mathur's case should be referred to a larger bench for its decision.
unable to accept the submissions of the selectees.
it is not necessary to go into the correctness of the reasoning in Tandon's
case when it has been set aside by the Constitution Bench, nevertheless it
needs to be noted that the 14 writ petitioners in that case had only challenged
the cancellation of the 1977-78-79 Selection List. They wanted appointment on
the basis of the Selection List. The question of inter se seniority with other
members of the Medical Service was not in issue. The Court, however, determined
the issue of seniority in the absence of the interested groups. Since both the
orders in Tandon's case have been set aside, the seniority as determined by
those orders can no longer be relied upon. The disposal of the Interlocutory
Applications filed by those who had obtained orders from the High Court
following Mathur's case, by the order dated 26th July, 1976 cannot also stand, since both this order as well as the
order dated 23rd March
1995 in Tandon's case
have been held by the Constitution Bench to be "not good law". By the
same token, since the 1996 seniority list was prepared on the basis of this
Court's decisions in Tandon's case, with the setting aside of the latter, the
list cannot be held to have been validly prepared. This leaves the field with
only the principles as determined in Mathur's case. It is doubtless correct
that as long as a decision stands, it has to be followed unless the Court has
reason to differ with the view expressed. In such event, the Court must refer
the issue to a larger Bench. This principle is however not applicable if the
earlier decision has concluded issues in a particular set of facts in a given lis
between the same parties. Such a decision cannot be reopened on the principles
of res judicata except by way of an application for review.
is no application for review which requires us to reopen the issues which were
concluded by a Bench of three-Judges of this Court about a decade ago. The writ
petitioners before us claim to be the beneficiaries of the order in Mathur's
case. They do not seek a review of that decision. It is also not open to the selectees
to question the correctness of Mathur's decision now. Selectees and others had
the opportunity of ventilating their grievances before the Court in Writ
Petition (C) No.6227 of 1981 which was a representative action. None of the
respondents responded to the advertisements admittedly published on the
directions of the Court.
order passed in W.P.No. 6227/81 on 9th September 1981, therefore, binds them and they
cannot seek to reopen the issues concluded thereby. We have already noted that
the order in W.P.6227/81 was sought to be impugned before this Court by way of
a special leave petition which was dismissed on 21st March 1993.
has been no prayer for review of this order either.
the decision in Mathur's case has been followed consistently in a large number
of cases since its pronouncement by the High Court in 1991 and by this Court in
1992. Special leave petitions from those decisions have also been dismissed by
this Court. It would not be proper in these circumstances to upset the
principles and introduce further uncertainty in an already chaotic situation
particularly when the matter involves the question of service conditions of
these circumstances, the issue of seniority of the parties before us is to be
determined in keeping with the decision in Mathur's case.
questions therefore are:- 1) Are the cases of the writ petitioners different
from writ petitioners in Mathur's case ? 2) What would be the position of those
who have been appointed on the basis of the decision in Tandon's case? Before
answering the questions we wish to make it clear that the interveners who have
final orders in their favour from either this Court or the High Court with
regard to their appointments and seniority, are entitled and will continue to
enjoy the benefits granted thereby. This decision will not operate to
jeopardize the reliefs finally obtained by them from Court.
as the writ petitioners are concerned we see no materially distinguishing
factor between their circumstances and the writ petitioners in Mathur's case.
have already noted the facts in Mathur's case but it is convenient to
recapitulate the facts briefly for the purpose of comparison with the writ
petitioners' cases before us. The petitioners in Mathur's case were qualified
to be appointed in what was then known as PMS. The High Court upheld the claim
that they were eligible to be appointed according to the Rules framed in 1981
amending the 1945 Rules with effect from 4.10.1961. They had been temporarily
appointed against substantive vacancies and their appointment in continuous
service was in consultation with PSC.
though their appointments were stated to be temporary in their appointment
letters, they were not treated as ad hoc appointees at all till the State
sought to appoint them in 1982 under the 1979 Rules and fix their seniority
with effect from 3rd August 1982 ignoring the 20 years of service put in by
them from the date of their initial appointments.
writ petitioners before us were temporarily appointed by the Governor against
substantive vacancies. The petitioner No.1 and 2 were appointed in 1965. For
example, the letter of appointment of the petitioner No. 1 dated 22.9.1965
states that he was appointed as temporary PMS Officer "as per the approval
of Government". The appointment was " for the period of one year or
till the services are required by the Government or till you are replaced by a
candidate duly selected by Public Service Commission whichever is
earlier". The other letters of appointment issued upto 1976 use similar
language. What is clear from the language is that the appointments were made
against substantive vacancies. In the Civil List published on 1.7.1967 which
was compiled in the Appointment Department of the State Civil Secretariat under
the heading "Temporary officers approved by Lok Sewa Ayog", the
petitioner No.1's name appears against Srl. No. 336. The names of the writ
petitioners similarly temporarily appointed upto 1976 were published in the
been earlier noted that prior to the merger of the PMS with the PHS in 1973,
the 1945 Rules were made applicable to the PMS by Notification dated 20th February 1965. After the 1973 merger and the
creation of PMHS, no specific rules laying down service conditions of the new
service were framed. On 23.11.1981, the State Government issued a notification
under Article 309 promulgating the Uttar Pradesh Medical Services (Men's
Branch) (Amendment) Rules 1981, Rule 1 (ii) states that:
shall be deemed to have come into force with effect from 4.10.1961".
1981 Amendment, Rule 10 of the 1945 Rules was amended. This appears to indicate
that, if at all, the 1945 Rules continued to apply to the PMHS. Rule 10 of the
1945 Rules provided the academic qualifications of a candidate for recruitment
to the service. These included an M.B or an equivalent degree of a university
established by law in India and recognized by the Medical
Council of India. By the 1981 amendment, "a candidate who possessed a BMBS
degree from Lucknow University having served in houses appointments, a term of nine months
in a teaching hospital (sic)" was also made eligible. There is no dispute
that each of the writ petitioners held an MBBS degree and had the requisite
qualifications for being appointed under the 1945 Rules.
17 (2) of the 1945 Rules provides:
Governor may make appointments in temporary or officiating vacancies from
amongst persons who are eligible for permanent appointment to the service under
could not, therefore, be said as was held in Tandon's case that the writ
petitioners were appointed de hors the service rules.
as the question of seniority is concerned, Rule 18 of the 1945 Rules reads as
- "Seniority in the service shall be determined by the date of the order
of appointment in a substantive vacancy provided that if two or more candidates
are appointed on the same date their seniority shall be determined according to
the order in which their names are mentioned in the order of appointment".
even under the Medical Service Rules 1945, the determination of seniority under
those rules was from the date of appointment against a substantive vacancy. It
is clear that in accordance with the Rules, and as held by the High Court in Mathur's
case, appointment could be temporary or permanent. But where the appointment is
against a substantive vacancy, the year of appointment was determinative in
fixing seniority under the Rule. On this basis, calculations of the writ
petitioners' seniority from the date of their initial appointment cannot be
said to be incorrect.
It has not been disputed that the writ petitioners have been continuing to
serve and had till 1983 enjoyed all the benefits of regular service since their
initial appointments like the writ petitioners in Mathur's case. As held in Rudra
Kumar Sain and Others V. Union of India and Others 200 (8) SCC at para 20:
the service jurisprudence, a person who possess the requisite qualification for
being appointed to a particular post and then he is appointed with the approval
and consultation of the appropriate authority and continues in the post for a
fairly long period, then such an appointment cannot be held to be "stopgap
or fortuitous or purely ad hoc." The writ petitioners cannot, for all
these reasons, be treated as 'ad hoc appointees' who were to be regularised by
appointment after selection and a period of probation under the 1979 Rules nor
can it be said that the decision in H.C. Mathur's case mis- construed the
provisions of the 1979 Rules so as to exclude temporary appointees like the
writ petitioners from its application.
circumstances the writ petitioners are entitled to be granted the same relief
as was granted to the petitioners in Mathur's case and count their seniority
from the date of their initial appointments.
on the other hand whether selected in 1972 or in 1977-78-79 cannot claim
seniority on the basis of their mere selection, assuming the selection lists to
be valid. According to the 1945 Rules, the selection made by the PSC was merely
recommendatory. This is settled law and is also so provided in Rule 13 (3)
& ( 4) which read as follows (where the reference to the Commission is the
(3) The Commission shall draw up a list of such candidates as it considers
suitable for appointment in order of preference and shall forward it to the
Subject to the provisions of rules 6 and 16 (2) the Governor shall appoint as
vacancies(sic) the candidates who stand highest in order of performance in the
list preferred by the Commission under sub Rule (3), provided that he is
satisfied that they are duly qualified in other prospects".
selection does not mean automatic appointment also follows from Rule 16 (2)
a candidate is finally approved for appointment by direct requirement he shall
be required to pass an examination by a Medical Board, which shall be conducted
after he has been selected by the Commission".
event as already noted, under Rule 18 seniority is to be determined from the
date of their orders of appointment and not from the date of their selection by
the PSC or receipt of the Selection List by the Government. As noted in Tandon's
case, the selectees had not been issued orders of regular appointment at all.
Clearly, therefore, they cannot claim seniority over the writ petitioners some
of whom have been serving since 1965 and the rest at least since 1976. Assuming
that the writ petitioners had appeared before the PSC, it would not mean that
by reason thereof seniority was to be counted from the date of preparation or
submission of the Selection Lists. If the selectees on the basis of the
decision in Tandon's case were treated as having been appointed, their
appointment would at the highest relate to 1996 when this Court directed their
appointments from the date of receipt of the selection lists by the Government;
a direction which was wholly contrary to the Rules.
speaking with the setting aside of the decision in Tandon's case the selectees
cannot even have this order to fall back on. But the fact remains that the selectees
have actually been serving.
having regard to the peculiar circumstances of this case, it would , in our
view, be equitably appropriate to treat them as having been appointed from the
date on which they actually joined the service.
accordingly allow the writ petitions and declare that
writ petitioners are not within the purview of the 1979 Rules;
State Government will fix the seniority of all doctors in the PMHS cadre from
the date of the orders of their initial appointment within a period of six
weeks from the date of this order and give all consequential benefits including
promotions and positions on the basis of such seniority list;
Those doctors who were selected in 1972 and 1977-78-79 by the PSC and who were
not issued any orders of appointment and joined the service on the basis of Tandon's
case, will be treated as having been appointed on the date that they actually
joined the service and their seniority will be counted from that date. There
will be no order as to costs.