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PETITIONER: DR. A.K. JAIN & ORS. ETC.yETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT24/09/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1988 SCR  (1) 335        1987 SCC  Supl.  497  JT 1987 (4)   445        1987 SCALE  (2)1002

ACT:      Indian Railways  Medical Department  (Assistant Medical officers Class  II) Recruitment  Rules, 1977:  Rule  6-Zonal Railways-Ad     hoc      Assistant     Medical     Officers- Replacement/regularisation of-Directions issued by Court.

HEADNOTE:      1. Services  of  all  doctors  appointed  as  Assistant Medical (Officers  Assistant Divisional  Medical officers on ad  hoc   basis  upto  1.10.1984  shall  be  regularised  in consultation with  the Union  Public Service Commission. The doctors so  regularised  shall  be  appointed  as  Assistant Divisional Medical  officers from  the date  from which they have been continuously working. [338C-D]      2. The  petitions of  the officers appointed subsequent to  1.10.1984   are  dismissed.   However,   the   Assistant Divisional Medical  Offficers who  have been selected by the Union Public Service Commission shall first be posted to the vacant posts available. If all those selected by UPSC cannot be accommodated  they may be posted to the posts now held by the  doctors   appointed  on  ad  hoc  basis  subsequent  to 1.10.1984. While making such postings the principle of ’last come, first go’ shall be observed. The doctors so displaced, if willing  to serve  in any  other zone  where there  is  a vacancy may be accommodated in such vacancy on ad hoc basis. [338E-G]      3. All  Assistant Medical Officers/Assistant Divisional Medical Officers  working on  ad hoc basis shall be paid the same salary  and allowances on the revised scale with effect from 1.1.1986. [338H; 339A]      4.  No   ad  hoc  Assistant  Medical  officer/Assistant Divisional  Medical  officer  who  may  be  working  in  the Railways shall  be replaced by any newly appointed Assistant Medical officer/Assistant  Divisional Medical  officer on ad hoc basis. [333B]      5. If  the ad  hoc doctors  appointed  after  1.10.1984 apply for  selection by  the Union Public Service Commission necessary relaxation  in age  to the extent of the period of service rendered shall be granted. [339C] 336 ^

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JUDGMENT:         ORIGINAL JURISDICTION: Writ Petition (Civil) No. 822 of 1987 etc. etc.      (Under Article 32 of the Constitution) India.      Gobind Mukhoty, P.P. Rao, M.C. Bhandare, Surya Kant, V. Shekhar,  M.A.   Chinnaswamy,  C.K.  Sucharita,  Ms.  Malini Poduval, Raj Kumar Gupta, P.C. Kapur and S.S. Tewari for the Petitioners.      D.N. Dwivedi,  R.B. Mishra,  Ashok Kumar Sharma, Ms. A. Subhashini, Y.P.  Rao, B.D.  Sharma, Shrinath Singh and K.K. Gupta for the Respondents.      Supreme Court Editorial Note-Statement of Facts      The petitioners  in their  Writ Petitions under Article 32  of   the  Constitution  challenged  the  action  of  the Respondents  in   terminating  their  services  as  ’ad-hoc’ Assistant Medical  officers on  the plea that they were ’ad- hoc’ appointees  and replacing  them  by  freshly  recruited Assistant Divisional  Medical officers,  and prayed  for the issue of  a  direction  to  the  Respondents  to  treat  the appointments of  the petitioners as regular with effect from the dates  of  their  respective  appointments  as  ’ad-hoc’ Assistant Medical  officers and  to assign  them  consequent seniority in the grades.      It was  contended by  the petitioners  that  they  were appointed as ’ad-hoc-" Assistant Medical officers (Class II) during the  period August  1983 to  July 1986  in the South- Eastern, North  East Frontier  and  Northern  Zones  of  the Indian Railways  and had  been officiating in the said grade for periods  ranging upto  four years.  Although the initial appointments  were   for  a   period  af   six  months,  the respondents had  extended their  tenure from  time to  time. Instead of  regularising the services of the petitioners and conferring the  benefits of  seniority, the  respondents had threatened to  terminate their services as and when the UPSC selected Assistant  Divisional  Medical  officers  and  they joined  the  service.  In  the  South-Central  Zone  of  the Railways, the petitioners contended that the Respondents had in fact  by an order No. 450/86 dated 11.11.1986, terminated the  services   of  eleven  officiating  ’ad-hoc’  Assistant Medical officers  as they  had  not  availed  of  the  three chances stated  in their  appointment  order  for  selection through  UPSC.  It  was  alleged  that  neither  the  Indian Railways  Medical  Department  (Assistant  Medical  officers Class II)  Recruitment Rules  1977 nor  the earlier Rules of 1967 provided for ’ad-hoc’ appointment 337 Of Assistant  Medical officers,  and  that  the  Respondents exercised the powers, to relax the Rules conferred by Rule 8 of the  1967 Rules  and Rule  6 of the 1977 Rules, as it was inevitable to prevent dislocation of medical services on the Railways and  alleviation of  hardship to  the employees and their families.      These petitions  were contested  by the  Respondent. In the counter-effidavit filed on behalf of the Union of India, it was  contended  that  the  petitioners  belonged  to  the category of  ’ad-hoc’ doctors  who  were  appointed  by  the General Managers of the concerned Zonal Railways under their powers, and  not by  the President  of India,  purely  as  a temporary measure for a specified period, that such ’ad-hoc’ appointments became  unavoidable in  the Railways  and  were resorted to, to tide over temporary shortage of professional doctors  and  that  these  ’ad-hoc’  doctors’  tenures  were extended for  various periods  from time  to  time.  It  was

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further contended that the recruitment of regular doctors on the  Railways   was  done   in  the  capacity  of  Assistant Divisional Medical  officer (Group  ’A’)  in  the  scale  of Rs.700-1600 through  the Union  Public Service Commission as the posts  belonged to  Group ’A’  for which  the appointing authority was  the President of India. It was also submitted that  the  General  Managers  of  the  Zonal  Railways  were empowered to  recruit ’ad-hoc’  doctors as Assistant Medical officers Group  ’B’ in  the scale  of Rs.650-1200  purely on ’ad-hoc’ basis  for  a  specified  period  to  maintain  the Railways  Medical  Service  till  replacement  by  Assistant Divisional Medical officers, selected through the UPSC.      The   Combined   Medical   Services   Examination   was introduced by  the UPSC  in the years 1977, and from 1977 to 1983 maximum  age relaxation  upto 40 years or even SO years was granted  from time  to time  to enable the said ’ad-hoc’ doctors on  the Zonal  Railways to  avail themselves  of the opportunity of  appearing in  the Combined  Medical Services Examination.  In   addition,  the   UPSC  held  two  Special Selections  based   on  interview   only   with   sufficient relaxation in  the years 1982 and 1985. In these two special selections held  in 1982  and  1985,  100  and  67  ’ad-hoc’ doctors respectively  of  the  Railways  were  selected  and absorbed in  the regular  cadre. The  petitioners  who  were still ’ad-hoc’  doctors in  the Zonal  Railways,  were  thus those doctors  who either  failed to  appear in the Combined Medical Services  Examination held  by  the  UPSC  or  after appearing had  failed. Having  failed to  get regularised in accordance with  the prescribed  rules and  regulations  for regular appointments,  the petitioners  services had  to  be terminated and  as such there had been neither any arbitrary nor illegal action on 338 the part  of the  respondents,  nor  any  violation  of  the Fundamental A Rights guaranteed under Articles 14 and 16.      The following order of the Court was delivered:      After hearing  learned counsel for the parties at great length having regard to the peculiar facts and circumstances of these cases we pass the following order in the above writ petitions:      1. The  services of  all doctors  appointed either,  as Assistant  Medical   officers  or  as  Assistant  Divisional Medical officer  on ad  hoc basis  upto 1.10.1984  shall  be regularised in  consultation with  the Union  Public Service Commission on  the evaluation  of their  work and conduct on the basis  of their  confidential reports  in respect of the period subsequent  to 1.  10.1982. Such  evaluation shall be done by  the Union Public Service Commission. The doctors so regularised  shall  be  appointed  as  Assistant  Divisional Medical officers  with effect  from the date from which they have  been   continuously  working   as  Assistant   Medical officer/Assistant Divisional  Medical officer.  The  Railway shall be  at liberty  to terminate the services of those who are not  so regularised.  If the  services  of  any  of  the petitioners appointed prior to 1. 10.84 have been terminated except on  resignation or  on disciplinary grounds, he shall be also  considered for  regularisation and if found fit his services shall  be regularised  as if  there was no break in the continuity of service but without any back wages.      2.   The    Petitions   of    the   Assistant   Medical officer/Assistant  Divisional   Medical  officers  appointed subsequent to 1.10.1984 are dismissed. But we however direct that the  Assistant Divisional Medical officers who may have been now  selected by  the Union  Public Service  Commission shall first be posted to the vacant posts available wherever

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they may be. If all those selected by the U.P.S.C. cannot be accommodated against  the available vacant posts they may be posted to  the posts now held by the doctors appointed on ad hoc basis  subsequent to  1. 10.1984 and on such posting the doctor holding  the post  on ad  hoc basis  shall vacate the same. While  making such  postings the  principle  of  ’last come, first  go’ shall  be observed by the Railways on Zonal basis. If  any doctor who is displaced pursuant to the above direction is  wiling to  serve in any other Zone where there is a  vacancy he may be accommodated on ad hoc basis in such vacancy.      3. All  Assistant Medical officers/Assistant Divisional Medical officers  working on  ad hoc basis shall be paid the same salary and 339 allowances as  Assistant Divisional  Medical officers on the revised scale  with effect  from 1.1.1986. The arrears shall be paid within four months.      4.  No   ad  hoc  Assistant  Medical  officer/Assistant Divisional  Medical  officer  who  may  be  working  in  the Railways shall be replaced by any newly appointed AMO/AMO on ad hoc  basis. Whenever there is need for the appointment of any AMO/ADMO on ad hoc basis is any Zone the existing ad hoc AMO/ADMOs  who  are  likely  to  be  replaced  by  regularly appointed candidates shall be given preference.      5. If  the ad  hoc doctors  appointed  after  1.10.1984 apply for  selection by  the Union Public Service Commission the Union  of India  and the Railways Department shall grant relaxation in  age, to  the extent  of the period of service rendered by them as ad hoc doctors in the Railways.      All the  Writ Petitions  are disposed  of in  the above terms. P.S.S.                                Petitions disposed of. 340