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PETITIONER: DR. MA.  HAQUE AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT18/02/1993

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. RAY, G.N. (J)

CITATION:  1993 SCR  (2)   1        1993 SCC  (2) 213  JT 1993 (2)   265        1993 SCALE  (1)653

ACT: Civil Services: Railway-Assistant    Divisional   Medical    Officers-Ad-hoc appointees  between 1968 and 1984-Regularisation by  Court’s orders-Inter-se seniority Fixing of-Directions-Issued

HEADNOTE: The petitioner-applicants were recruited by the Railways  on ad  hoc  basis  as  Assistant  Divisional  Medical  Officers between 1968 and 1984.  Though UPSC recruited candidates  on regular  basis  from  time  to  time,  either  due  to  non- availability  of  number  of candidates  or  non-joining  of selected candidates, vacancies remained and persons like the petitioners  continued  in such vacancies on  ad-hoc  basis. The  petitioners riled Writ Petitions before this Court  for regularisation of their services.  By orders of this  Court, the   services   of  the  petitioners  have   already   been regularised. The  present application is for fixing the seniority of  the Writ Petitioners whose services were regularised. Disposing of the application, this Court, HELD: 1. Since the petitioner-applicants are admittedly  not regularly appointed through the UPSC according to the  rules but  have been directed to be regularised by  following  the procedure  laid down by this Court, it is obvious that  they are  not  appointed to their posts according to  the  rules. Under  no  circumstances, therefore, they  fall  within  the scope  of guidelines in Direct Recruit Class II  Engineering Officers’Association’s case.  The expression "in  accordance with  the  rules’ or ’according to rules" used in  the  said guidelines  means  the  rules of  recruitment  and  not  the special  procedure laid down by this Court  The  petitioner- applicants  thus fall in an altogether  different  category. Therefore, a procedure for fixing their seniority has to  be evolved.   That  procedure  cannot be in  violation  of  the guidelines laid down in Direct Recruit Class II  Engineering Officers’ 2 Association’s  case.   Further, the seniority given  to  the petitioner-applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below  that  of  the  directly  recruited  erstwhile  ad-hoc

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Medical Officers. [8C-F] Direct  Recruit Class II Engineering Officers Association  & Ors.  v.  State  of Maharashtra & Ors., [1990]  2  SCC  715, referred to. 2.1. Of  late  this  Court has 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.  Since  this Court  has  in some cases permitted  regularisation  of  the irregularly   recruited  employees,  some  Governments   and authorities   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  an  being recruited as a matter  of  course. [9E-G] 2.2. What  is  further, in the present case, some  of  those like the petitioner-applicants who were initially  recruited on  ad-hoc basis, have themselves and taken pains to  appear for  the tests before the UPSC and have enrolled  themselves through  regular  channel.   There  are  three  classes   of employees viz., the outside direct recruits, the  in-service direct   recruits   and  the  ad-hoc  employees   like   the petitioner-applicants  who  were  regularised  through   the Court’s order.  The direction given In Dr. Rawani’s case for creation  of supernumerary posts has to be confined  to  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.  This Court would rather  refrain  from creating a precedent by giving such directions. [9G-H;  10A- D] Dr A.K Jain & Ors. etc. etc. v. Union of India & Ors. [1987] Sapp.  SCC 497 and Dr. P.P. C. Rawani & Ors etc. v. Union of India & Ors., JT 1991 (6)  534, referred to. 3.   The  seniority of the direct recruits   both  outsiders and insiders ,should be determined according to the dates of their   regular  appointment  through  the  UPSC   and   the petitioner-applicants should be placed in the seniority list after  those  direct recruits who are recruited  till  date. Among 3 themselves, their seniority will be governed by the dates of their initial appointment [10E]

JUDGMENT: ORIGINAL  JURISDICTION: Interlocutory Application No.  1  of 1992.                              IN Writ Petition No. 1165 of 1986. (Under Article 32 of the Constitution of India). M.C.  Bhandare, P.P. Rao, N.N. Goswamy, C.K  Sucharita,  Ms. Shashi  Kiran,  Ms. Manjula Gupta, R.  Shashi  Prabhu,  V.K. Verma  and Raj Kumar Gupta for P.C. Kapur for the  appearing parties. The Judgment of the Court was delivered by SAWANT, J. The petitioner-applicants are some of the Medical Officers who were recruited by the Railways on ,id hoc basis as  Assistant Divisional Medical Officers between  1968  and 1st  October,  1984.   They were appointed as  such  ad  hoc employees  by  way  of a stop-gap  arrangement  pending  the

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regular  recruitment  to the said posts  through  the  Union Public  Service Commission [UPSC’ for short],  according  to the  rules.  It appears that although from time to time  the UPSC  recruited candidates on regular basis, there  remained some   vacancies  unfilled,  either  because   the   doctors recruited  were less in number than the number of  vacancies since  suitable  candidates were not available  or  some  of those who were selected did not join the service or  between the  date  of  advertisement by the UPSC  and  that  of  the empanelling,  some  more vacancies occurred.   Whatever  the reasons, the fact was that even after the UPSC undertook the exercise  of recruiting the doctors from time to time,  some vacancies  always  remained unfilled.  The result  was  that every  time the petitioner-applicants and others  like  them were  continued  on ad hoc basis as a  stop-gap  arrangement till the next recruitment by the UPSC.  It may be  mentioned in this connection that the ad hoc appointees were always at liberty  to  appear  before  the  UPSC  for  their   regular recruitment.   Some of them in fact did so appear  and  were selected;  others  like  the  petitioner-applicants   either failed to be selected or did not care to appear.  The  fact, however,  remains that the petitioner-applicants and  others like them continued to serve on ad hoc 4 basis  since 1968.  Hence they filed writ petitions in  this Court  for  their regularisation in service.   By  an  order dated  24th  September, 1987 passed in the case of  Dr.  A.K Jain & Ors. etc. etc. v. Union of India & Ors., [1987] Supp. SCC 497 at 500 this court directed as follows:               "(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  terminat e               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 not 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  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 they  may               be.  If all those selected by the UPSC  cannot

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             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               5               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  Wary   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/ADMOs 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  doctors               in the Railways.               All the Writ Petitions are disposed of in  the               above terms." It  appears  that  since  they  experienced  difficulty   in adjusting  the  seniority of the  petitioner-applicants  the Union  of India moved an application before this  Court  and this court on 1st November, 1988 made the following order in that application:               "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               6               Government should be directed to implement the               order  passed by us in the writ petition  Nos.               522,  875,  180 & 200 of  1987  and  connected               cases  on 24th September, 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  make               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

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             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 accordingly." The present application has been moved in Writ Petition  No. 1165  of 1986 which has been disposed of on 24th  September, 1987  along  with  other writ petitions in  which  also  the aforesaid  order  of  1st November, 1988 was  made  by  this Court. Thus  we  are  concerned  in  this  application  with  those Assistant.   Divisional Medical Officers who were  appointed between  1968  and  1st  October, 1984  and  who  have  been regularised by the aforesaid two orders but whose  seniority remains to be fixed. After  the  order of 1st November,  1988,  the  Constitution Bench of this Court delivered its judgment in Direct Recruit Class  II Engineering Officers’ Association & Ors. v.  State of  Maharashtra  &  Ors., [1990] 2 SCC  715  pending’  which decision  the  fixation  of  seniority  of  the  petitioner- applicants was kept pending.  In that case the  Constitution Bench  has  laid  down certain  guidelines  for  fixing  the seniority.  Two of them, viz., (A) & (B), which are relevant for our purpose are as follows: "(A)  Once an incumbent is appointed to a post according  to rule, his seniority has to be counted from the date of 7 his  appointment  and  not  according to  the  date  of  his confirmation. The  corollary of the above rule is that where  the  initial appointment  is only ad hoc and not according to  rules  and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B)If  the initial appointment is not made by following  the procedure laid down by the rules but the appointee continues in  the post uninterruptedly till the regularisation of  his service  in  accordance  with  the  rules,  the  period   of officiating service will be counted." Before  we discuss as to which of the above  two  guidelines would  be applicable in this case, it is necessary to  state the relevant facts relating to the applicants’  appointment. Firstly, it is an admitted fact that the UPSC introduced the Combined Medical Services Examination for the first time  in the year 1977.  Prior to 1977, the method of recruitment was otherwise  than by examination.  As stated earlier, some  of the  petitioner-applicants were recruited between  1968  and 1977.  Secondly, the petitioner-applicants were given  three chances  for their selection through the UPSC but  they  did not  avail of them.  Some of those who were  appointed  with them,  however,  had availed of the chances  and  have  been appointed  as  regular direct recruits and  they  have  been given  their  seniority from the date  they  were  regularly appointed  through  the  UPSC.   Thirdly,  it  appears  that although in 1977 the written examination was introduced,  on account of exigencies, the UPSC held two special  selections in  the years 1982 and 1985 based on interviews only and  by relaxing  the  age limit.  In these two  special  selections respectively 100 and 67 ad hoc doctors like the  petitioner- applicants were selected and absorbed in the regular  cadre. They have also been given their seniority from the date they were  so  absorbed  regularly.   The   petitioner-applicants

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either failed to appear in these examinations also or  after appearing in the same, had failed Thus,   while  fixing  the  seniority  of  the   petitioner- applicants  we  have to keep in mind that  there  are  three classes  of Assistant Divisional Medical Officers   (i)  the outsiders who have been directly recruited through the  UPSC either  on  the  basis of the  written  examination  or  the interview; (ii) 8 those who were ad hoc appointees like the applicants but who came to be regularly recruited through the UPSC by appearing in  the written examination or in the interview;  and  (iii) the present petitioner-applicants who either did not  appear in  any written examination/interview or had failed  to  get through  them  but  who have  been  regularised  in  service because  of the orders of this Court dated  24th  September, 1987 and 1st November, 1988. Since the petitioner-applicants are admittedly not regularly appointed  through the UPSC according to the rules but  have been  directed to be regularised by following the  procedure laid  down  by this Court it is obvious that  they  are  not appointed  to their posts according to the rules.  Under  no circumstances,  therefore,  they fall within  the  scope  of guideline   (A)  laid  down  in  Direct  Recruit  Class   II Engineering  Officers Association’s case (supra).  In  fact, they  do not fall under guideline (B) given therein  either, since  their  regularisation is not in accordance  with  the rules but as a consequence of special procedure laid down by this  Court.  The expression "in accordance with the  rules’ or "according to rules" used in the said guidelines (A)  and (B)  means  the  rules of recruitment and  not  the  special procedure   laid  down  by  this  Court.   The   petitioner- applicants thus fall in an altogether different category not covered under any of the guidelines given in Direct  Recruit Class  II Engineering Officers’ Association’s case  (supra). We  have, therefore, to evolve a procedure for fixing  their seniority.   That  procedure cannot be in violation  of  the guidelines laid down in Direct Recruit Class II  Engineering Officers   Association’s   case  (supra).    Secondly,   the seniority given to the petitioner-applicants will have to be below  the  seniority of the  outsiders  directly  recruited through  the  UPSC  as well as below that  of  the  directly recruited erstwhile ad hoc Medical Officers This is not  and cannot be disputed on behalf of the petitioner-applicants. This  matter was heard earlier on 14th September,  1992  and was  reserved for judgment.  At that time, neither  the  in- service  direct  recruits nor the outsider  direct  recruits were  made parties to the application.  They  made  separate applications,  being I.A. Nos. 2 and 3 respectively for  im- pleadment/intervention  and requested that they be heard  in the  matter  before  judgment is  pronounced.   Hence,  this matter was set down for a fresh hearing and all the  parties were  heard on 11th and 18th January, 1993.  The anxiety  of the  interveners, was obvious.  In no case  their  seniority should  be disturbed and they be penalised for  passing  the examinations/interview  tests and for coming into the  cadre according to the rules through 9 the  UPSC, and no premium should be given to the  applicants for  their  refusal  to appear for the tests  or  for  their failure  to  pass  the same.  This contention  of  their  is unexceptionable and whether they had appeared in the case or not,  the  Court  was  bound  to  protect  their   interests particularly  when  the matter was heard in  their  absence. The  petitioner-applicants, however, relied upon a  decision

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of  this  Court in Dr. P.P.C Rawani & Ors. etc v.  Union  of India  & Ors., (JT 1991 (6) 534).  Shri Bhandare,  appearing for the petitioner-applicants, made a very fervent plea that in  the circumstances, the course adopted by this  Court  in Dr.  Rawani’s case (supra) should be followed which will  do no injustice to both the categories of direct recruits.   We have  gone  through  the said decision  and  have  anxiously considered  whether  the  course  adopted  there  should  be adopted  in the present case.  We are conscious of the  fact that   the  petitioner-applicants  have  been  serving   the Railways  from  the  year 1968.  It  is  also  possible,  as contended  on their behalf that many of the  outside  direct recruits have joined the service long after 1968 and some of them  might  have even taken initial instructions  from  the petitioner-applicants.   We are also conscious of  the  fact that  candidates in service have a disadvantage  as  against the  fresh  candidates in the tests particularly  when  they face the tests after a long lapse of time.  As against this, however,  we  cannot  lose  sight  of  the  fact  that   the recruitment rules made under Article 309 of the Constitution have  to  be  followed strictly and not  in  breach.   If  a disregard  of  the rules and the by-passing  of  the  Public Service Commissions are permitted, it will open a  back-door for  illegal recruitment without limit.  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  regularisation   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’s case (supra). We have thus on hand three classes of 10 employees  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 regularised   through  the  Court’s  order.   Further,   Dr. Rawani’s case (supra), as has been pointed out on behalf  of the  respondents, pertains to the Central Government  Health Services  which has a larger 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 direction  given  in Dr.  Rawani’s case (supra)  has  to  be confined  to  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. In  the result, we direct that the seniority of  the  direct

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recruits   both outsiders and insiders should be  determined according to the dates of their regular appointment  through the  UPSC and the petitioner-applicants should be placed  in the  seniority  list  after those direct  recruits  who  are recruited till this date.  Among themselves, their seniority will be governed by the dates of their initial appointment. The  interlocutory application is disposed of in  the  above terms.  G.N. Application disposed of. 11