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PETITIONER: HARKISHAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS

DATE OF JUDGMENT25/03/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1602            1971 SCR  223  1971 SCC  (2)  58

ACT: Punjab  Civil  Medical  Service  Class  I  (Recruitment  and Conditions  of  Service) Rules, rr. 2(c) 5  and  9(3)-Direct recruitment  to  Selection  Grade--If  permitted  by  rules- Fixation of seniority in absence of rules. .

HEADNOTE: The  appellant and the third respondent were members of  the Punjab   Civil   Medical  Service,  Class  I.   The   second Respondent, who was serving abroad, was offered the post  of Civil  Surgeon  in the Punjab Civil Medical Service  and  he joined the post of Chief Medical Officer in the Punjab Civil Medical  Service,  Class 1, temporarily.   Applications  for filling  up the post permanently were invited  through  the. Public  Service  Commission, and the second  respondent  was selected and appointed.  Thereafter, he was appointed in the Selection  Grade of the Punjab Civil Medical  Service.   Ten day,.  later,  the appellant and the third  respondent  were also appointed. to the selection Grade. The appellant impeached the second respondent’s  appointment to  the  Selection  Grade  on  two  grounds:  (1)  that  the appointment  to  the  Selection  ,Grade  could  only  be  by promotion  from Punjab Civil Medical Service, Class  1,  and not  by  direct  appointment; and (2)  even  if  the  second respondent could be appointed direct to the Selection  Grade his seniority should be below that of the appellant and  the third  respondent, on the ground that the appellant and  the third respondent were senior to the second respondent in the time scale of Class I Service. HELD:(1)  The  Service  as defined in r.  2(c)  of  the Punjab  Civil  Medical  Service  Class  I  (Recruitment  and conditions of Service) Rules, means the Punjab Civil Medical Service Class I and the Selection Grade is a part and parcel of the Punjab Civil Medical Service Class I Therefore,  when r.  5 specifically speaks of appointment to the  Service  by direct  recruitment  it  embraces  both  Class  I  and   the Selection  Grade.   The  word  appointment  means  both   by promotion  and  by direct recruitment and is  used  in  that sense  in  relation to the selection grade in r.  5  and  in relation to the total number of appointments to the  service in  r. 9(3).  Direct appointment to Selection Grade  is  not only contemplated in rr. 5 and 9(3) but is also implicit  in

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them.  Further, the rules contemplate direct appointment  to Selection  Grade in proper cases when there are no  suitable persons in Class Itime  scale who can be promoted  to  the Selection Grade. [226A; 228B-F] (2)The  second  respondent’s appointment to  the  post  of Chief  Medical Officer was in consultation with  the  Punjab Public  Service Commission as contemplated by r. 3, but  the seniority list of the Class I service to which the appellant and the respondents belonged was not fixed.  Where there are no specific rules in regard to the fixation of seniority  in the  Selection Grade in the case of direct appointment,  the second  respondent, having been recruited earlier  than  the appellant and the third respondent, his seniority should not be disturbed. [228G; 229C-F] 224

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 430 of 1970. Appeal  by special leave from the judgment and  order  dated August  13,  1969 of the Punjab and Haryana’ High  Court  in L.P.A. No. 288 of 1968. Jagjit  Singh Chawla, K. L. Mehta and S. K. Mehta,  for  the appellant. H.L. Sibbal, Advocate-General, Punjab and R. N.  Sachthey for respondent No. 1. V.C.  Mahajan, S. S. Khanduja and V. P. Kohlo,  for  res- pondent No. 2. The Judgment of the Court was delivered by Ray, J.--This.is an, appeal by special leave from the  judg- ment  dated 13 August, 1969 of the High Court of Punjab  and Haryana. The  appellant was appointed and confirmed in  Punjab  Civil Medical Service Class I with effect from 26 February,  1955. Respondent No. 3 Dr. S. S. Sekhon was confirmed in the  same Class  I  service,  oN 28 February, 1955.   The  time  scale salary  of  Class I service is  Rs.  600-40-800-50-900  with efficiency bar at 800/-.  A class I officer on promotion  to the selection grade is entitled to Rs. 1000/-. Dr.  Pritam  Singh  is  a Fellow of  the  Royal  College  of Surgeons. He  obtained qualifications in  various  post graduate medical courses in England and America.  In 1961 he was  serving the Government of Uganda in Africa at a  salary of  Rs.  3000/p.m.  in a permanent  pensionable  post.   The Punjab  Government in the year 1961 offered him the post  of Civil  Surgeon  in the Punjab Civil  Medical  Service.   Dr. Pritam Singh expressed his willingness to accept the post at a suitable salary. Respondent No. 2 Dr. Pritam Singh was appointed on 16  July, 1962  as Chief Medical Officer in the Punjab  Civil  Medical Service  Class  I  in the scale of Rs.  800-50-1500  with  a starting  salary of Rs. 1000/- p.m. with such allowances  as might  be  admissible under the rules.  He joined  the  post with  effect  from  4  August, 1962.  By  an  order  of  the Governor  of  Punjab dated 18 December, 1962  the  post  was directed  to be in addition to the existing posts  of  Civil Surgeons both in the selection grade and ordinary grade. The  Government of Punjab thereafter took steps  of  filling the  post  of  the Chief Medical Officer,  Chandigarh  on  a permanent  basis through the Public Service  Commission.   A public notice 225 inviting  applications  for the post was  issued  under  the authority  of  the Commission in the month of  April,  1963.

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Dr.  Pritam  Singh  applied  for  the  post.   Neither   the appellant  nor  respondent Dr. Sekhon applied for  the  post because  they  did  not  have  the  requisite  qualification prescribed  for the post.  Dr. Pritam Singh was selected  by the   Punjab  Public  Service  Commission.   The  order   of appointment by the Governor was issued on 10 May, 1963. Dr. Pritam Singh was on probation for a period of two  years with  effect  from  the date on which  he  joined  as  Chief Medical Officer, namely, 4 August, 1962, and he was governed by  the Punjab Civil Medical Service Class I Rules.   On  30 August, 1963 a formal letter was issued to Dr. Pritam  Singh that the Governor of Punjab in consultation with the  Punjab Public  Service Commission had allowed Dr. Pritam Singh  the grant  of  higher  starting pay of Rs. 1250/-  p.m.  on  his appointment  as Chief Medical Officer on a regular basis  in the time scale of Rs. 800-50-1500 with effect from 17 April, 1963 as Principal Medical Officer, Chandigarh which was  the name of the redesignated post of the Chief Medical  Officer. On  9  December, 1965 Dr. Pritam Singh  was  confirmed  with effect  from  17 April, 1963 as Principal  Medical  Officer, Chandigarh. On  20  October, 1966 the respondent Dr.  Pritam  Singh  was appointed  by the President of India in the selection  grade of Punjab Civil Medical Service in the scale of Rs. 1300-50- 1600 with effect from 20 October, 1966. The  appellant  impeached the order dated 20  October,  1966 appointing the respondent Dr. Pritam Singh in the  selection grade  to  be  in violation of  the,  Punjab  Civil  Medical Service (Recruitment and Conditions of Service) Rules,  1940 on  two  broad grounds; first, that the appointment  to  the selection  grade  of Punjab Civil Medical Service  could  be only by promotion from Punjab Civil Medical Service Class  I and  not by direct appointment, and, secondly, even  if  Dr. Pritam  Singh  could be appointed direct  to  the  selection grade his seniority would be below that of the appellant and Dr. Sekhon. When  Dr. Pritam Singh was appointed to the selection  grade he  was  placed at the bottom of the selection  grade.   The appellant and the respondent Dr. Sekhon were also  appointed to the selection grade with effect from 1 November, 1966  10 days subsequent to the appointment of Dr. Pritam Singh.  The appellant and Dr. Sekhon contended that they had been senior to Dr. Pritam Singh in the time scale of Class I Service and therefore  the respondent Dr. Pritam Singh should  not  have been placed senior to them in the selection grade. 15-1 S.C. India/71 226 The  punjab civil medical Service, Class I (Recruitment  and Conditions  of Service) Rules are 17 in number.   Rule  2(c) defines  the  service  to mean,  the  Punjab  Civil  Medical Service Class I. Rule 3 states that all appointments to  the service shall be made by the Government on the advice of the Commission  from  time  to  time  as  required.   The  other relevant  Rules  necessary for the purpose  of  the  present appeal are rules 5, 6, 7(1), 8 and 9 which are as follows:-               "5.  Appointment to the service shall be  made               either by promotion from the Class 11  service               or  by  direct  recruitment  in  India  or  in               England  and  when any vacancy  occurs  or  is               about to occur, Government shall determine  in               what manner such vacancy shall be filled.               Note:Except  with  the previous  sanction  of               Government only such persons shall be eligible               for  direct appointment as are not already  in               Government service.

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             6.(1)  The service shall consist  of  such               number  of posts of Civil Surgeons as  may  be               determined by Government from time to time.               (2)Not less than nine posts shall be filled               by promotion from the Class 11 service.               Provided  that recruitment by promotion  shall               be  made by strict selection and no member  of               the Class 11               serviceshall   have  any  claim  to   such               promotions of right.               7.    (1)  Members  of  the  service  who  are               appointed against permanent vacancies shall on               appointment  remain on probation for a  period               of   two   years  if   recruited   by   direct               appointment   and   one  year   if   recruited               otherwise than by direct appointment.               Explanation:Officiating  service shall  be               reckoned  as period spent on probation but  no               member  of the service who is  officiating  in               any appointment shall on the completion of his               period   of  probation  be  entitled   to   be               confirmed  until  he is  appointed  against  a               permanent vacancy.               8.The  seniority  of the  members  of  the               service  shall be determined by the  dates  of               their confirmation in the service :               Provided  that  if  two or  more  members  are               confirmed on the same date:               (a)   A member recruited by direct appointment               shall  be  senior  to a  member  recruited  by               promotion.               227               (b)   in  the case of members who are both  or               all  appointed by promotion from the Class  II               service,   seniority   shall   be   determined               according to the seniority of those members in               that service and               (c)   in  all  other  cases  Government  shall               decide the seniority.               9.(1)  A  member  of  the  service  shall   on               appointment  be entitled to a pay of  a  scale               rising  from  Rs.  600 a month  by  an  annual               increment of Rs. 40 a month to Rs. 800 a month               and  then by an annual increment of Rs.  50  a               month  to Rs. 900 a month with  an  efficiency               bar at Rs. 800 a month.  In addition a  member               if  he  is of non-Asiatic  domicile  shall  be               entitled  to receive such overseas pay as  may               be prescribed by Government from time to time.               (2)Members of the service shall be eligible               for promotion to a selection grade and on such               promotion  shall be entitled to a pay  of  Rs.               1000 a month.               Provided that promotion to the selection grade               shall  be  made strictly by selection  and  no               member of the service shall be entitled as  of               right to such promotion.               (3)The   number  of  appointments  in   the               selection  grade shall not exceed 25 per  cent               of  the  total number of appointments  in  the               service," Counsel  for  the appellant contended that rule  9(2)  which ,stated  that the members of the service shall  be  eligible for  promotion  to the selection grade meant that  only  the members of Class I service could be promoted to a  selection

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grade  and  there  could  be  no  direct  appointment  to  a selection  grade.   A direct appointment  to  the  selection grade was said by the appellant to be an infraction of  rule 9(2).  The contention of the appellant with regard to rule 5 was  that it spoke of appointment to the service  either  by Promotion  from  Class  II  or  by  direct  recruitment  and therefore there could be direct recruitment only to Class  I service  and not to the selection grade.  It was  emphasised that  rule  5  did  not  specifically  provide  for   direct appointment to selection grade. Rule  9(2) does not contain any restrictive word  that  only members  of the service shall be eligible to promotion to  a selection  grade.  The proviso to rule 9(2) contains a  word of limitation and it is that no member of the service  shall be  entitled  as  of right to such  promotion.   To  exclude appointment  to  selection grade would be to rob rule  5  as well as rules 9(2) and 9(3) of their ,content because rule 5 speaks of appointment to the service to be 228 either  by  promotion or by direct recruitment.   Rule  9(2) speaks  of  eligibility  of  members  of  the  service   for promotion to the selection grade and rule 9(3)speaks of  the number of appointments in the selection grade not to  exceed 25 per cent of appointments in the service.  The service  as defined in rule 2(c) means the Punjab Civil Medical  Service Class I. Selection grade is the Punjab Civil Medical Service Class  I.  That  is not disputed.  Therefore  rule  5  which specifically speaks of appointment to the service by  direct recruitment  embraces Class I and the selection grade  which is  a part and parcel of Class I. The word ’appointment’  in rule  9(3) in regard to selection grade as not exceeding  25 per cent of the total number of appointments in the  service contemplates both promotion and direct appointments in,  the service  to  the selection grade.   The  word  "appointment" cannot  mean only promotion.  It means appointment  both  by promotion  and by direct recruitment.  That is why the  word ’appointment’  is  used in that sense once  in  relation  to selection grade and again in relation to the total number of appointments   to  the  service.   Direct   appointment   to selection  grade  is  not only  contemplated  in  the  rules particularly  rules  5,  9 (2) and 9 (3)  but  is  also  the implicit idea inherent in the words "direct recruitment  and direct appointment" in Rule 5 for the purpose of  attracting able  and meritorious persons to the service  including  the selection grade.  The fallacy in the appellant’&  contention is that though selection grade will be within the definition of  the  service in rule 2(c), wherever the  word  "service" occurs,  in  rules 5 and 9, the construction  put  upon  the words ’service’ is members of the service who are in Class I on  time scale appointment and who alone can be promoted  to the  selection  grade and that there cannot  be  any  direct appointment to selection grade. There  is  another reason as to why  the  rules  contemplate direct  appointment to selection grade in proper cases.   If it  appears that there are not suitable persons in  Class  I time  scale  who  can be promoted  to  the  selection  grade persons  of  ability  will  have to be  brought  in  to  the selection grade from outside. A contention was advanced by counsel for the appellant  that rule  3  contemplated appointment by the Government  on  the advice  of  the  Public  Service  Commission  and  that  the appointment of Dr. Pritam Singh was not made on such advice. The  recruitment  of Dr. Pritam Singh to the post  of  Chief Medical  Officer was in consultation with the Punjab  Public Service Commission.  That appointment was made in the  month

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of  May, 1963.  Being a direct recruit he was  an  probation for  two years.  He was confirmed thereafter.  His  starting salary  was  higher and at the time of confirmation  he  was getting a salary of Rs. 1,250 p.m. in the scale of Rs.  800- 50-1500.   Dr. Pritam Singh prior to his appointment to  the selection grade in the Punjab Civil Medical Service Class  I was getting a salary of Rs. 1,250 p.m. which was higher than the limit of time scale pay in Class I service. 229 The other contention on behalf of the appellant was that Dr. Pritam  Singh  should  not  have  got  seniority,  over  the appellant  and  the respondent Dr. Sekhon in  the  selection grade.  Prior to the appointment of Dr. Pritam Singh to  the selection  grade  the seniority list of Class I  service  to which the appellant and the two respondents belonged was not fixed  because  of representations made by  various  persons including  the appellant and Dr. Sekhon.  We are not  called upon  to  go  into the seniority list  of  Class  I  service because  the  only  controversy now is with  regard  to  the seniority list of the selection grade. The  appointment of Dr. Pritam Singh to the selection  grade was  earlier  than  that of the appellant  and  Dr.  Sekhon. Therefore, there cannot be any cause for complaint on ground of  seniority.  When Dr. Pritam Singh was appointed  to  the selection grade his position was last in the list.  That was on  20  October, 1966.  The appellant and  Dr.  Sekhon  were promoted to the selection grade 10 days thereafter and their position  would be in the ordinary course below  Dr.  Pritam Singh.   It would be unjust to hold that the  appellant  and Dr.  Sekhon would be put at a place higher than  Dr.  Pritam Singh, in the selection grade. The  High Court correctly expressed the view that there  are no specific rules in regard to the fixation of seniority  in the selection grade in the case of a direct appointment.  If there  are,  no relevant rules with regard  to  fixation  of seniority  in  the  case  of a  direct  appointment  to  the selection  grade, Dr. Pritam Singh having been recruited  by direct  appointment  earlier  than  the  appellant  and  Dr. Sekhon,  Dr. Pritam Singh’s seniority cannot  be  disturbed. That will be unjust. For  these reasons, the appeal fails and is dismissed.   The parties will pay and bear their own costs. V.P.S.                                     Appeal dismissed. 230