Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION [C] NO.169 OF 2005 IN

CONTEMPT PETITION [C] NO.615 OF 2004 IN

CIVIL MISCELLANEOUS PETITION NO.8076 OF 1988 IN

CIVIL APPEAL NO.3519 OF 1984

Dr. P P C Rawani & Ors. … Petitioners

Vs.

Union of India & Ors. … Respondents

WITH

Contempt Petition No.160/2005 in CA No.3519/1984 I.A. No.1, 3-5 in Civil Appeal No.3519/1984

J U D G M E N T

R.V.RAVEENDRAN, J.

Contempt  Petition  No.160/2005  is  filed  by  the  doctors  regularly

recruited  through  Union  Public  Service  Commission  (UPSC,  for  short).

Contempt Petition No. 169/2005 is filed by the doctors who were appointed

on  ad  hoc  basis  between  1968  and  1977  and  whose  services  were

regularized  with  effect  from  1.1.1973  or  from  the  date  of  their  initial

appointment.  

2. Civil Appeal No.3519/1984 and Writ Petition No.1228/1986, filed by

some Doctors appointed on ad hoc basis, were disposed of by this Court by

order dated 9.4.1987 recording the submission on behalf of the Union of

India  that  the  services  of  several  of  the  ad  hoc appointees  had  been

regularized and the services of the rest will also be regularised. Referring to

the issue of seniority inter-se among them, this Court observed that if the

orders  of regularization  of  appointment  are  made to take effect  from the

respective dates of their initial appointment, and seniority was consequently

determined, the problem will be solved. As there was no objection to such a

course by the ad-hoc doctors (appellants/petitioners therein), the said appeal

and writ petition were disposed of accordingly.  

3. The Union of India experienced some difficulties in giving effect to

the directions of this Court  as it  found that  if regularization was granted

with  effect  from the  date  of  their  initial  appointment  to  all  the  ad-hoc

appointees,  several  regularly  appointed  doctors  may  be  relegated  to

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secondary position, in view of the earlier appointment of  ad hoc doctors.

The regularized  doctors  therefore  filed  applications  before  this  Court  for

giving effect to the orders dated 9.4.1987. The regularly appointed doctors

also  filed  applications  to  ensure  that  their  interests  were  not

jeopardized/prejudiced. They pointed out that they were not parties to the

cases  decided  on  9.4.1987.  These  applications  were  considered  and

disposed  of  by  this  Court  with  the  following  directions  by  order  dated

29.10.1991 [reported in Dr. PPC Rawani vs. Union of India – 1992 (1) SCC

331] :  

“(1) Each of the appellants will be treated as regularized in Group A of the Central Health Service from January 1, 1973 or the date of his first initial  appointment  in  the  service  (though as  ad  hoc  Group B doctor), whichever is later.

(2) In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will  be  a  separate  seniority  list  in  respect  of  the  appellants  and  their promotions (about which directions are given below) shall be regulated by such  separate  seniority  list  and  such  promotions  will  only  be  in supernumerary posts to be created as mentioned below.

(3) (a) Each of the appellants will be eligible for promotion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list which is to be drawn up as indicated above.

(b) The promotion of any of the appellants to the post of Senior Medical  Officer,  Chief  Medical  Officer  and  further  promotional  post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of  their  respective dates  of appointment.  In other  words,  if  a regularly recruited  doctor,  on  the  basis  of  the  seniority  list  maintained  by  the department, gets a promotion as Senior Medical Officer or Chief Medical Officer  or  further  promotion  thereafter,  then  the  appellant  who  was

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appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Officer or further promotion therefrom (as the case may be) with effect from same date.

(4) In  order  that  there  may  be  no  conflict  or  any  possibilities  of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom)  should only be to a supernumerary post.  Such number of supernumerary  posts  should  be  created  by the  government  as  may  be necessary to give effect to the above directions.  No promotion will  be given to any of the appellants in the existing vacancies which will go only to the regularly appointed doctors.

(5) The appellants  hereby agree to  give  up  all  monetary claims  on account of revision of scales, regularization or promotion to which they would be entitled till October 31, 1991.

(6) Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court. They have filed directly writ petitions before this Court bearing Nos.2620- 2659 of 1985 and intervention applications. The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties  take  notice.  These  interveners  and  writ  petitioner  have  to  be granted the same relief as the appellants. It is made clear that all these applicants  and  petitioners  will  be  entitled  to  the  same  reliefs  as  the appellants  for  all  purposes  of  seniority  and  promotion.  All  monetary claims on account of revision of scales, regularization or promotion till October 31, 1991 are given up by these applicants and petitioners as well.”

(emphasis supplied)

4. The  regularized  doctors  filed  Contempt  Petition  No.615/2004

alleging non-compliance with the order dated 29.10.1991. That petition was

disposed  of  on  13.5.2005  recording  the  submission  that  the  order  dated

29.10.1991 will be implemented in six weeks. The regularized doctors have

again  filed  a  contempt  petition  (Contempt  Petition  No.169/2005).  The

regularized doctors contend that whenever any regularly appointed doctor is

promoted to Senior Administrative Grade from the post of Chief Medical

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Officer - Non Functional  Selection Grade (for short  ‘CMO (NFSG)’], all

regularized doctors whose dates of appointment were earlier to that of such

promoted regularly appointed doctor, should also be promoted to the post of

Senior Administrative Grade, having regard to directions contained in the

order dated 29.10.1991. The regularised doctors contend that respondents

have  failed  to  comply  with  the  said  directions  and  therefore  committed

contempt.  

5. On  the  other  hand  the  regularly  appointed  doctors  have  filed  a

Contempt  Petition  No.160/2005  contending  that  having  regard  to  the

directions  in  the  judgment  dated  29.10.1991,  the regularized  doctors  can

only be promoted to supernumerary posts and in the same ratio which is

available to regularly appointed doctors. They contend that if the directions

issued  on  29.10.1991  are  construed  in  the  manner  put  forth  by  the

regularized doctors, it will adversely affect their seniority and promotional

prospects  which were  specifically  protected  by directions  No.(2)  and  (4)

issued on 29.10.1991. They contend that any attempt by respondents (Union

of India and its authorities) to promote regularized doctors to substantive

posts would violate the directions of this Court contained in the order dated

29.10.1991.  They  also  seek  a  direction  to  restrain  the  respondents  from

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creating  more  than  12  supernumerary  posts  at  SAG level.  The regularly

appointed  doctors  have  also  filed  an  application  for  clarification  (IA

No.3/2005)  seeking  following  clarifications/  modifications  of  the  order

dated 29.10.1991 :

(a) Insofar as promotion to the SAG level is concerned, ratio of the said posts to total strength shall be maintained at 3.8% in the case of regularized (ad hoc) doctors group, as is done in the case of regular doctors group.

(b) In determining the promotion of ad hoc doctors,  the date of actual appointment of the juniormost person in a batch of regular doctors (where the UPSC has recommended their appointments on a single date) shall be the point of reference for parity with ad hoc doctors.  

(c) While promoting ad hoc doctors of supernumerary SAG level posts, Union of India should ensure that no such promotee ad hoc doctor officiates against  a senior post to the detriment of any doctor whose actual date of appointment is prior to the date of appointment or deemed appointment of such ad hoc doctor.  

6. Therefore what falls for consideration is the true import of directions

contained in Paras 3(a) and (b) of the order dated 29.10.1991.

7. The genesis of the problem relates back to the order dated 9.4.1987.

Two  things  are  evident  from the  said  order.  First  is  that  this  Court,  in

passing the said order, did not adjudicate upon the rights or claims of the ad

hoc appointees on merits. The matters were disposed merely recording the

submission of the respondents that all ad hoc appointees were regularized or

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will be regularized. The second is that the direction relating to the seniority

of  regularized  doctors  in  that  order  is  not  with  reference  to  regularized

doctors vis-à-vis regularly appointed doctors, but only inter-se among the

ad  hoc doctors  who  were  regularized.  This  is  clear  from the  following

observations in the said order:   

“Pursuant  to  the  interim  directions  and  suggestions  made  by  us,  the services of several of the petitioners have already been regularized and we are assured that  the services of the rest  will  also be  regularized.  It  is however stated by the learned counsel for the Union of India that there can  be  some  problem regarding  their  seniority  since  some  have  been regularized earlier and some later. The difficulty anticipated is capable of easy solution. All orders of regularization made pendente lite are naturally subject  to  our  final  orders.  Those  in  respect  of  whom  orders  of regularization have already been issued and the others are all parties before us.  

If the orders of regularization of appointment are made to take effect from their respective dates of original appointment and seniority so determined there will be no other problem. Sri Venugopal, learned counsel assured us that none of the doctors has any objection to this course.  It may be so done. This  order disposes of the appeal and the writ petition.”  

[Emphasis supplied]

8. The  orders  dated  9.4.1987  and  29.10.1991  make  it  clear  that  this

Court  did  not  intend  any  regularized  doctor  to  steal  a  march  over  the

regularly appointed doctors, either individually or as a group. To ensure that

the seniority and promotional prospects of regularly recruited doctors were

not  affected,  this  court  directed a separate  seniority list  in respect  of the

regularized  doctors  and  clarified  that  their  promotions  will  only  be  in

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supernumerary  posts  to  be  created.  Supernumerary  posts  are  non-cadre

permanent posts. They are created to accommodate the lien of officers who

are entitled to hold a lien against regular permanent posts. Being ex-cadre

posts,  no specific  duties  are attached to  them and the officers  concerned

usually perform duties in some vacant temporary or permanent posts. (vide

D.K.Reddy v. Union of India – 1996 (10) SCC 177).     

9. If all the  ad hoc doctors were to be regularized with effect from the

date of their initial appointment, with seniority also from the date of initial

appointment,  there will  be no difference between regular recruitment and

regularization of  ad hoc appointments, thereby defeating the very purpose

of  systematic  regular  recruitment  through  UPSC.  Ad  hoc  or  stop  gap

appointees were not normally regularized and given seniority from the date

of initial appointment. They were usually given regularization and seniority

only after a certain period of service, which used to vary from one year to

ten  years  or  even  more.  When  this  Court  directed  on  9.4.1987,  that

regularized  doctors  shall  have  seniority  from  the  date  of  their  initial

appointment, it was only a direction intended to regulate the seniority inter-

se  the  regularized  doctors  as  this  Court  found  that  among  the  ad  hoc

appointees,  regularization  was  not  being  effected  in  accordance  with

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seniority  and  some  who  were  subsequently  appointed  were  being

regularized earlier and some who earlier appointed were being regularized

later.  It  was  not  intended  to  affect  the  seniority  of  regularly  appointed

doctors. The regularized doctors cannot occupy the posts meant for regular

doctors, either at entry level or at higher promotional levels.  

10. When the clarificatory order dated 29.10.1991 was passed, this Court

took care to direct that promotions of regularized doctors will only be in

supernumerary  posts.  This  Court  also  directed  that  promotion  of  any

regularized  doctor  will  be  on  par  with  the  promotion  of  the  regularly

recruited doctor who is immediately junior to the regularized doctor. This

meant that if one regularly appointed doctor was promoted, one regularized

doctor (that is, the senior most from those regularized doctors whose date of

initial appointment was earlier to that of said promoted regularly appointed

doctor) was to be promoted by creating a supernumerary post. The above is

also clear from the wording of Para 3(b) of the directions dated 29.10.1991

which  uses  the  term  ‘on  par’  and  uses  singular  and  not  plural,  when

referring to the regularized doctor to be promoted. The clarificatory order

dated 29.10.1991 did not mean that if one regularly appointed doctor was

promoted,  all  regularized  doctors  appointed  earlier  to  his  appointment,

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should  be  promoted  to  a  higher  post  by  creating  that  many  number  of

supernumerary posts. Such an interpretation will lead to absurd results and

give undue advantage in promotions to regularized doctors who are outside

the cadre. To clarify the interpretation, we give below an illustration.  

Illustration  :  On  1.1.2008,  there  are  50  regularly  appointed Chief  Medical  Officers  and  25  regularized  Chief  Medical Officers.  One  regularly  appointed  CMO  whose  date  of appointment is 1.1.1990 is promoted to Senior Administrative Grade.  Out  of  the 25  regularised  CMOs,  10  were  appointed prior to 1.1.1990. The clarificatory directions dated 29.10.1991 does not  require all  10 regularised CMOs appointed prior  to 1.1.1990  to  be  promoted  to  Senior  Administrative  Grade  by creating  ten  supernumerary posts.  All  that  it  requires  is  that when one regularly appointed doctor holding the post of CMO (appointed  on  1.1.1990)  is  promoted,  one  regularized  doctor holding the supernumerary post of  CMO (who is senior-most from among the regularized doctors who were appointed prior to 1.1.1990) will have to be promoted to a supernumerary post of Senior Administrative Grade.  

11. Having regard to the different interpretations put forth by the regular

doctors  and  regularized  doctors,  it  cannot  be  said  that  the  respondents

(Union Government and its officials) disobeyed the orders of this Court by

their action or inaction. The rival claims led to a state of confusion. We have

therefore given the clarification as above to put an end to the long pending

controversy.

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12. It is made clear that what is stated above is only an interpretation of

the orders dated 9.4.1987 and 29.10.1991. Neither the order dated 9.4.1987

nor the clarificatory order dated 29.10.1991 lays down any principle of law

in  regard  to  either  regularization  or  inter  se  seniority  between  regular

appointees and regularized appointees. The order dated 29.10.1991 merely

attempted to give finality to an issue which had arisen in the context of the

order dated 9.4.1987 which was in the nature of a consent order. In fact,

referring to the order dated 29.10.1991, this court stated thus in M.A. Haque

v. Union of India [1993 (2) SCC 213] :  

“In fact this Court has, of late, been witnessing a constant violation of the recruitment  rules  and  a  scant  respect  for  the  constitutional  provisions requiring  recruitment  to  the  services  through  the  Public  Service Commission. It appears that since this Court has in some cases permitted regularization of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The  result  has  been  that  the  recruitment  rules  and  the  Public  Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course. What is further, in the present  case, some of those like the petitioner-applicants who were initially recruited on ad hoc basis, have exerted themselves and taken pains  to  appear for the tests  before the UPSC and have enrolled themselves through regular channel unlike in Dr. Rawani case. We have thus on hand three classes of employes as pointed out earlier,  viz.,  the outside  direct  recruits,  the  in-service  direct  recruits  and  the  ad  hoc employees like the petitioner-applicants who were regularized through the Court’s order. Further, Dr. Rawani case as has been pointed out on behalf of the respondents, pertains to the Central Government Health Services which has a target component both at the initial and promotional stages. The  course  adopted  by this  Court  to  direct  creation  of  supernumerary promotional  posts  at  every higher  promotional  stage there,  may not  be feasible  in  the  medical  service  in  the  Railways.  The  creation  of supernumerary posts has its own limitations, both physical and financial. The  burden  of  additional  posts  even  when  they are  not  necessary and cannot be accommodated, is not easy to carry. We are, therefore, of the view that the directions given in Dr. Rawani case has to be confined to

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the special facts of that case and cannot be extended to other cases. In any case, this Court should not give any such direction to the Railways. If, however, the Railways decide to follow that course, they can do so and nothing  prevents  them  from  doing  it.  We  would  rather  refrain  from creating a precedent by giving such directions”.

[emphasis supplied]       

Whatever we have stated above will apply only to the controversy that has

arisen in  regard to  the  interpretation  of  the order dated 29.10.1991.  It  is

made  clear  that  neither  the  directions  in  the  order  dated  29.10.1991

(reported in 1992 (1) SCC 331) nor the clarification of those directions by

this order, shall be construed as an enunciation of any general principle nor

be applied as a precedent in any other case relating to any dispute between

regularly appointed employees and regularized employees.   

13. With the above observations and clarifications, and a direction that

the respondents shall give effect to the order dated 29.10.1991, as clarified

above, the contempt petitions and applications for clarification/modification

are disposed of.  

………………………….J [S. B. Sinha]

…………………………...J [R. V. Raveendran]

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……………………………J [Markandeya Katju]

New Delhi; November 14, 2008.  

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