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PETITIONER: STATE OF U.P. AND ANR.

       Vs.

RESPONDENT: M. J. SIDDIQUI AND ORS.

DATE OF JUDGMENT31/03/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L. KOSHAL, A.D.

CITATION:  1980 AIR 1098            1980 SCR  (3) 254  1980 SCC  (3) 174

ACT:      Seniority, inter-se  of direct  recruits and  promotees prior to  the merger of PMS I and PMS II as per order 18-12- 68-Validity of  the seniority  list dt. 31-12-71 pursuant to the order  fixing  the  principles  Dt  18-12-71  -Pradeshik Medical Services,  1964-Whether the  order  is  inconsistent with Rule 18 of the U.P. Medical Services Rules 1945.      In the  State of  U.P. there  were two Medical Services consisting of  doctors serving  in  the  State.  The  senior service was  called the  Provincial Medical Service (P.M.S.) This service  was a gazetted service carrying a higher scale of pay  than the  other service  which was known as P.S.M.S. (Provincial Subordinate  Medical Service).  So  far  as  the P.M.S. was  concerned, the  incumbents of  the posts  in the service were  appointed by the Governor, whereas in the case of  the  P.S.M.S.,  the  employees  were  appointed  by  the Director, Health  Services. On June 14, 1945, the Government of U.P.  framed rules  known as the "United Province Medical Services (Men’s  Branch) Rules,  1945" which were applicable to P.M.S.  Only. Rule  3(b), (f),  and (h)  defined  "Direct Recruitment",  "Member  of  the  Service"  and  "Subordinate Medical Service",  respectively. Rule  5  provided  for  two modes of  recruitment. Rule  12 provided  that selection  of candidate  for   direct  recruitment   shall  be   made   in consultation with  the Public  Service  Commission  Rule  13 prescribed the mode of interview. Rule 15 laid down modes of recruitment by promotions. Rule 17 specified the "appointing authority" and  the manner  in which the vacancies should be filled in.  Under Rule 18, seniority in the service shall be determined  by  the  date  of  order  of  appointment  in  a substantive vacancy.  Rule  19  required  that  all  persons whether recruited  directly or  by promotion  be  placed  on probation, while  Rule 20  laid down the circumstances under which a  person appointed  to  a  post  in  the  Service  on probation may be confirmed.      On 14-3-1946,  two Medical  Services were  constituted, namely (i)  Provincial Medical  Service Grade  I  (popularly known as  P.M.S. I  ) and  (ii) Provincial  Medical  Service Grade II  (known as P.M.S. II). It was decided that existing members of  PMS II  were to be absorbed in PMS I and further recruitment of medical graduates should be made to PMS II in order to  replace the PSMS, By an order dated July 24, 1951, the Government  laid down  that 50 per cent of the vacancies

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in PMS  I were  to be filled in by direct recruitment and 51 per cent  by promotion.  The principle  for determination of inter se seniority between direct recruits and the promotees in PMS  I was  not laid down at the time when the Government order was  made. In  spite of  the quota  fixed by the order dated 24-7-1951,  no promotion from PMS II to PMS I could be made between  the years  1952 to  1963, except  on an ad hoc basis. On  July 14,  1962 by virtue of an advertisement, the Public   Service   commission   invited   applications   for recruitments to  56 gazetted posts out of which 9 posts were permanent and  the rest  were temporary  but were  likely to continue. In pur- 255 suance of  this advertisement,  the appellants  applied  for direct  recruitment  to  PMS  I  and  they  were  ultimately appointed on  a temporary  basis some time in June 1963, but before the  merger of  the two  services (PMS  I and PMS II) which came  into existence  on November 1, 1964. This merger was brought  about through  an order of Government dt. 2-11- 64. By  this order the Pradeshik Medical Service (Men/Women) was constituted  which had two grades; namely-ordinary grade which included  all the  existing posts of PMS I, and PMS II and Selection  Grade to consist of 71/2% of the total number of permanent  posts in  the ordinary grade. By para 2 it was specified that  "the permanent  and temporary posts in PMS I and PMS  II grades shall continue to remain as such on their merger  until   the  temporary   posts  are  made  permanent subsequently". By para 4, the Government proposed to issue a further  order   regarding  the  fixation  of  the  inter-se seniority while  the right  to fix inter-se seniority of the members of  the two  services was reserved, no provision was made in  the order  which either  applies or  continues  the Rules of  1945 even  ,3 in  respect of inter-se seniority of members of  each merging  service. Thereafter  another order was passed  on 20-2-1965  by which  the U.P. Medical Service (Men’s Branch) Rules 1945 were made applicable provisionally to the  new PMS  with the  words "unless otherwise ordered". Ultimately, a  final order laying down the principles on the basis of  which the inter-se seniority of the members of the two services  was to  be determined  in the  new service was made  on   18-12-68.  In   consonance  with  the  directions contained in  this order, the Government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12. The appellants fell within  the ambit of direction (b) of the order dt. 18- 12-68 which provided for officers appointed to PMS either on a permanent  or temporary  basis prior  to the  merger in  a regular manner  in  consultation  with  The  Lok  Sewa  Ayog (Public Service  Commission) in order of their seniority. By a Notification  dated July  3, 1970 issued under Art. 309 of the Constitution,  the Governor  made certain  amendments to Rule 25 of the 1945 Rules, which dealt with promotion to the post of  Civil Surgeon.  The Government  Thereafter directed through its  order dt.  18-12-71 certain  principles  to  be followed regarding  fixation of seniority. As per this order the Government  by its order dt. 31-12-71 fixed the inter-se seniority of  the members  of the  new service,  placing the appellants above the petitioners/respondents and awarding to them the selection grade prior to the petitioners.

HEADNOTE:      The petitioners/respondents  challenged  the  vires  of these orders  as (a)  ultra vires  Articles 14 and 16 of the Constitution; (b)  in consistent with the Rules 17 and 18 of

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the 1945  Rules. The  High Court  accepted the  plea of  the petitioners/respondents. Hence  the appeals by special leave by the appellants and the State.      Allowing the appeals, the Court ^      HELD: 1. The combined effect of Rules 12, 13, IS and 17 of the  United  Province  Medical  Service  (Men’s  Branch), Rules,  1945   is  that   whereas  in  the  case  of  direct recruitment, the  matter was  to be considered by the Public Service Commission  after advertising  the vacancies, so far as recruitment  to the  Service by promotion is concerned, a Selection Committee  constituted under the Rules had to send the lists to the Commission. In a third category of cases to which appointments  were  made  purely  on  a  temporary  or officiating basis  there  was  no  provision  for  reference either to a Selection Committee or to 256 the Commission  and such  appointments could  be made by the Governor under sub-rule (2) of Rule 17. [262B-C]      In the  instant case, the direct recruit applied to the Government in  pursuance of  an advertisement  and they were appointed  to  the  Senior  Service  only  after  they  were recommended  by   the   Public   Service   Commission.   The appointment,  therefore,   was  not  a  purely  officiating, temporary or  ad hoc  appointment as  contemplated  by  Rule 17(2). [262D-E]      2. There  is no magical formula or special charm in the word "substantive". The mere use of the term ’appointment in a temporary vacancy’ by itself would not conclude the matter or lead  to the  irresistible inference that the appointment was not  made in  a substantive  capacity,  because  even  a substantive appointment  could be made to a purely temporary vacancy. In  order, therefore,  to determine  the nature  of appointment, the  Court must  look to  the substance  of the matter, the  surrounding circumstances, the mode, the manner and the  terms of appointment and other relevant factors. In the instant  case. Reading  the advertisement and the manner and mode  of the  appointment of  the appellants it is clear that they  were  appointed  in  a  substantive  capacity  lo temporary posts  which according  to the  advertisement were likely to  continue. Moreover  the appellants were appointed to PMS  I which was doubtless a [superior service carrying a higher scale  than PMS  II of  which  the  petitioners  were members. [265B-E]      Purshottam Lal  Dhingra v.  Union of  India, [1958] SCR 828; followed.      3. The  fact that  due to some oversight on the part of appointing authority or to other fortuitous circumstance the order placing the appellants on probation was not passed for long  would   not  give   any  special   advantage  to   the petitioners, (respondents)  who were themselves drawn from a lower service  and even  if they  held a substantive post in such service,  they cannot  by virtue  of promotion  to  the higher service  af ter  the appellants, claim seniority over the latter. [266E-F]      4. Articles 14 and 16 of the Constitution have not been violated because  a person  who is  appointed  to  a  higher service carrying  a higher scale must r ordinarily be deemed to be  senior to  an employee  who is  promoted from a lower service to  the higher  service even  though his appointment may have been substantive in the lower service. [266 F-G]      Kewal Krihsan  Bagga v.  The Chairman Railway Board and Ors., [1976] 4 S.C.C. p. 733; followed.      5. In  the absence  of any provision in the order dated 2-11-64 either applying or continuing the Rules of 1945 even

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in respect  of the  inter-se seniority  of members  of  each merging service, which was also passed under Art. 309 of the Constitution and  was therefore  of a statutory character or at any rate had a statutory flavour, the Rules of 1945 could not be  applied to  the situation  obtaining after  2-11-64. [268G-H]      6. The  Directions in the order dated 18-12-68 strike a just balance  between the  officers  of  erstwhile  services after they  were merge  into the New Services. Direction (b) of order  dt. 18-12-68  regarding fixation of seniority does not speak  of any  substantive  appointment  whatsoever  but equates the 257 officers appointed  to PMS I on permanent or temporary basis prior  to   the  merger.   In  other  words,  the  direction contemplates that  any officer  appointed to  a post whether permanent or temporary in PMS I which was the Senior Service prior  to  merger,  would  rank  after  merger  above  those officers who were drawn from PMS II. [271B, C, G]      7. The  1945 Rules  did not apply to the New Service at its inception  and what they were made applicable to the new service only  for a  shortwhile by virtue of the order dated 20th February  1965, purely  on a  provisional basis  as the Government made it quite clear in that order itself that the 1945 Rules  will apply  ’unless otherwise  ordered’ and thus had reserved  the  right  to  pass  final  orders  regarding seniority later which was done in 1968. [271D-E]      8. Direction  (b) of  the order  dt.  18-12-68  is  not inconsistent with  Rule 18  of the 1945 Rules. Having regard to the  history of  PMS I and PMS II, if Rule 18 of the 1945 Rules were  applied  to  the  parties  and  the  1968  order ignored, the  resultant effect  would  be  that  equals  and unequals would  be treated similarly which would amount to a direct infraction of Articles 14 and 16 of the Constitution. The  appellants  and  the  petitioners  were  not  similarly situate and if the petitioners were put above the appellants in the  matter of  seniority, it  would have  resulted in  a gross  and  wholly  unreasonable  discrimination  by  making junior officers  senior to  superior officers. This is clear from the following propositions: D      (i)  To begin with, the Rules of 1945 had absolutely no           application  to   the  new  Service.  Those  Rules           applied  to  the  old  PMS  I  Service  only  and,           therefore, to  a  situation  completely  different           from ’hat  which prevailed after the merger of the           two Services on 1-11-1964. As the Government order           merging the  two Services was also an order passed           under  Art.   309  of  the  Constitution,  it  had           statutory  force   and  was  binding  on  all  the           officers of the new Service.      (ii) At the  time when  the 1964  order was  passed the           Government deliberately did not frame any rules in           order to  determine the  inter se seniority of the           members of  the new Service but reserved the right           to do so.     (iii) It was  under the  order dated  February 20,  1965           that for  the first  time the  Rules of  1945 were           applied to  the new  Service and  that too "unless           otherwise ordered"  i.e., purely  on a provisional           basis. The  order of 1968 laid down the principles           for fixing seniority and, being a statutory order,           superseded all  the Rules  in  question  including           Rules 17  and 18 of the 1945 Rules. It was further           confirmed by  the order dated 18-12-1971. [273G-H,           274A-E, 275D]

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JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2870 & 2869 of 1977.      Appeals by  Special Leave  from the  Judgment and order dated 31-1-1977  of the  Allahabad High  Court in Civil Misc Writ Petition No. 2852 of 1972.      G. L.  Sanghi, Manoj Swarup, Miss Lalita Kokli and Miss Indu Khindri for the Appellant in CA 2869/77. 258      L. N.  Sinha, Attorney  General, G.  N. Dixit  and O. P Rana for the Appellant in CA 2870/70.      S. P.  Gupta and  Pramod Swarup  for RR  12 in both the appeals.      R. K Jain for RR 13 in CA 2870/77.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-These two  appeals by  special leave are directed against  a judgment  dated January  31, 1977 of the Allahabad High  Court by  which the  High Court accepted the writ petitions filed by the pre sent respondents 1 to 12 and quashed the  order dated December 31, 1971 of the Government of U.P. insofar as it related to respondents numbers 3 to 12 and 14  to 39  before the High Court. The High Court further directed the  State to  redetermine  the  seniority  of  the regular PMS  II officers and the temporary PMS I officers in the light of the observations made and the findings given by the High Court.      Against the  order of  the High  Court two appeals have been filed  to this  Court-one by the State of Uttar Pradesh (which is  Civil Appeal  No. 2870  of 1977) and the other by the appellants  l to  8 (Civil  Appeal No. 2869 of 1977) who were respondents  numbers 3  and 33  to 39  before the  High Court. For  the purpose of brevity and to avoid confusion we would refer  to respondents I to 12 before the High Court as the ’petitioners’  and respondents  numbers 3  and 33  to 39 before the High Court as the ’appellants’.      The main controversy between the parties centered round fixation of  their seniority  in a  new  service  which  was created by  an order  of the  Government dated  November  2, 1964. Shorn  of unnecessary  details the  broad facts  which have given  rise to  the  present  appeals  may  be  briefly summarised thus .      In the  State of  U.P. prior  to 1945  there  were  two Medical Services consisting of Doctors serving in the State. The senior  service was  called the  P.M.S., that is to say, the Provincial  Medical Service. This service was a gazetted service carrying  a higher  scale  of  pay  than  the  other service which  was known as P.S.M.S. (Provincial Subordinate Medical Service)  which was  a non-gazetted  service with  a lower scale  of pay.  It may  also be noticed that so far as PMS was  concerned, the  incumbents  of  the  posts  in  the Service were  appointed by  the Governor whereas in the case of the  PSMS, the  employees were appointed by the Director, Health Services.  We have  mentioned these two facts because the nature  of the Services, the scales of pay, the mode and member of  appointment of  incumbents to  the  two  Services would be  a very  relevant  factor  in  order  to  determine whether or not the decision rendered by the 259 High Court  was correct. On June 14, 1945, the Government of U.P. framed  rules known  as The  United  Provinces  Medical Service (Men’s Branch) Rules, 1945’ which were applicable to PMS only  and contained  definitions, the relevant parts c f

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whom being  covered by  clauses (b),  (f)  and  (h)  may  be extracted thus:-      "3. (b) ’Direct recruitment’ means recruitment under B. rule S(l).      (f)  ’member of  the Service’  means a person appointed           in a  substantive capacity under the provisions of           these rules  or of  the rules in force previous to           the promulgation  of these rules, to a post in the           cadre of the service;      (h)  ’Subordinate   Medical    Service’    means    the           Subordinate medical  Service (Men’s Branch) of the           U.P."      Rule 5    provided  that  recruitment  to  the  Service covered by the Rules (hereinafter referred to as the ’Senior Service’) was to be made by two modes-      (i)  by selection  from  among  the  persons  who  were           eligible for  appointment to the Service under the           provisions of  the Rules  whether or not they were           already in the permanent service of the Crown, and      (ii) by promotion  from the Subordinate Medical Service           provided that  the number of posts to be filled by           promotion was  limited to 10 per cent of the total           number of  posts borne  on the  permanent cadre of           the service.      Rule 9 provided that a candidate for appointment to the Senior Service must be between 22 and 32 years of age on the 1st July  of the  year in  which the  recruitment was  to be make. By  a subsequent amendment it was provided that in the case of  scheduled caste  candidates the  age limit could be extended by another five years, and that the Governor could, in consultation  with the  Public Service  Commission, relax the upper age limit upto 40 years in favour of any candidate or class  of candidates.  Rule 10  laid  down  the  academic qualifications  for   a  candidate   to  be   eligible   for recruitment to  the Senior  Service. The relevant portion of that Rule may be quoted thus:-      "10. Academic qualifications           A candidate for recruitment to the Service must-           (a)  hold a  M.B.B.S. Or an equivalent degree of a                University established  by law  in India  and                recognised by the Medical Council in India;                OR 260           (b)  possess a foreign qualification recognised by                the Medical  Council of  India if he does not                hold a  M.B.B.S. or an equivalent degree of a                University established by law in India.                A  candidate   who  possesses   post-graduate           degree  or   diploma  recognised  by  the  Medical           Council of  India in any branch of Medical Science           shall,  be  given  preference  in  the  matter  of           recruitment to the Service." Rule 12  provided that  selection of  candidates for  direct recruitment shall  be made  in consultation  with the Public Service Commission  who, when  called upon  to do so, was to invite  applications   in  the   prescribed  form.  Rule  13 prescribed the mode in which the interview was to be held in respect of  candidates who  applied for  recruitment to  the Service. The  relevant portion of that Rule may be extracted thus:-                "13.  Interview-(I)   The   Commission   will           scrutinise the  applications received  by them and           require   so   many   candidates   qualified   for           appointment under  these rules  as  seem  to  them           desirable to  appear before  them for interview at

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         their own expense.                (2) No  candidate will  be  admitted  to  the           interview  unless   he  holds   a  certificate  of           admission granted by the Commission.                (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 Government.                (4) Subject  to the provisions of rules 6 and           16(2) the  Governor  shall  appoint  as  vacancies           occur the candidates who stand highest in order of           preference in  the list prepared by the Commission           under sub-rule  (3), provided that he is satisfied           that they are duly qualified in other respects." Rule 15  was the provision which required the recruitment of candidates by promotion and may be quoted thus :-                "15. Recruitment by promotion-(1) officers of           the Subordinate  Medical Service,  who  have  more           than 14  years’ service and are less than 45 years           of age  on the  1st of August of the year in which           recruitment is  to be  made, shall be eligible for           promotion to the Service.                (2)  The  principle  of  selection  shall  be           seniority subject  to the  exclusion of  those who           are not fit for promotion. 261                (3)  The  Inspector-General  shall  recommend           names of   officers  of  the  Subordinate  Medical           Service who  are eligible  and whom  he  considers           suitable for promotion to the Service on the basis           of the  record of  their work  and, if  necessary,           interview.                (4) A  preliminary selection from amongst the           officers recommended  by the Inspector General and           other  eligible   persons   shall   be   made   by           departmental  selection  committee  consisting  of           the-                (i)  Secretary    to    Government,    United                     Provinces, Medical department,                (ii) Inspector-General, and               (iii) Director of Public Health, U.P."      It would thus be seen that so far as promotion from the Subordinate Medical  Service to the Senior Service was to be made, this  could be  done  on  the  recommendation  of  the Inspector-General which  was to  be endorsed  by a Selection Committee constituted under Rule 15(4), quoted above. It was further provided  under Rule 15 that the Selection Committee after considering the relative merits of the candidates will submit lists  to the  Government and Rule 15(5) required the Government to  forward both  the  lists  to  the  Commission alongwith the  necessary papers.  Sub-rule (6)  of  Rule  15 empowered the  Governor to  make the  final selection  after considering the  advice of the Commission. Rule 17 which has been the  subject matter  of serious controversy between the parties may be extracted thus:-           "17. Appointing  authority: (1) Appointment to the      Service shall be made by the Governor on the occurrence      of substantive  vacancies. Appointment  in vacancies to      be filled  by direct  recruitment shall  be  made  from      amongst the persons included in the list prepared under      rule 13(3).  Similarly appointments  in vacancies to be      filled by  pro motion  shall be  made from  amongst the      persons selected under rule 15(6). G-           (2)  The   Governor  may   make  appointments   in      temporary or officiating vacancies from amongst persons

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    who are  eligible  for  permanent  appointment  to  the      Service under these rules."      A perusal  of Rule 17 would reveal that the appointment was to  be made to the Senior Service by the Governor on the occurrence of  substantive vacancies.  It is also clear from this rule that appointment 262 in vehicles to be filled by direct recruitment would have to be made  from amongst persons included in the lists prepared under rule  13(3) (supra) and appointment in other vacancies to be filled by promotion under Rule 15(6) (supra). Sub-rule (2) of  Rule 17  empowered the Governor to make temporary or officiating appointments  in vacancies  from amongst persons who were  eligible for permanent appointments to the Service under these  Rules. We  might mention here that the combined effect of  Rules 12,  13, 15  and 17  is that whereas in the case of  direct recruitment, the matter was to be considered by the  Public  Service  Commission  after  advertising  the vacancies, so far as recruitment to the Service by promotion is concerned,  a Selection  Committee constituted  under the Rules had  to send  the lists  to the Commission. In a third category of  cases which  were appointments made purely on a temporary or  officiating basis  there was  no provision for reference either  to a Selection Committee or the Commission and such appointments could be made by the Governor. This is rather important  because while the High Court had laid very great emphasis  on the  fact that  appellants I  to  8  were appointed not  in substantive  vacancies  but  on  a  purely temporary basis, it cannot be contended by any show of force that the  appointment of the appellants, who were admittedly direct  recruits,  could  be  made  under  Rule  17(2).  The admitted position is that the direct recruits applied to the Government in  pursuance of  an advertisement  and they were appointed  to  the  Senior  Service  only  after  they  were recommended  by   the   Public   Service   Commission.   The appointment of  the appellants,  therefore, was not a purely officiating, temporary or Gd hoc appointment as contemplated by Rule  17(2) (supra).  We might  also emphasis the fact at this stage  that it is undisputed that the petitioners while being members  of PSMS had also applied for promotion to the Senior Service  sometime in  the year  1963 but  their cases were not  recommended by  the Selection Committee at all. We shall, however,  deal with  this aspect  of the  matter at a later stage of this judgment. Rule 18 is the provision which lays down the criterion for determining seniority and may be extracted thus,  because the  High Court has strongly relied on this provision      "18. Seniority           Seniority in  the Service  shall be  determined by      the date  of 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." 263      According to  this Rule, the yardstick to determine the seniority appears to be the date of the order of appointment in a  substantive vacancy.  The sheet-anchor of the argument of the  petitioners both in the High Court and in this Court has been  that as  the  appellants  were  not  appointed  in substantive vacancies they cannot claim seniority under Rule 18 whereas  the petitioners  having  been  promoted  to  the Senior Service from the PSMS and in more or less substantive vacancies,  they  would  be  deemed  to  be  senior  to  the appellants. The High Court, as already noticed, accepted the

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case of the petitioners although the State of U.P. supported the case  of the  appellants and  has also  filed an  appeal against the order of the High Court.      Relevant part of Rule 19 which is also important may be extracted thus:-           "19. Probation,  Discharge, etc.:  (1) All persons      whether recruited  directly or  by promotion,  shall on      their appointment  in or  against a substantive vacancy      be placed  on probation  for  a  period  of  one  year,      provided that  the Government  may extend the period of      probation in  individual case. The previous officiating      or temporary  service in  a post  in the  cadre of  the      Service shall count toward the period of probation." Rule 20  lays down  the circumstances  under which  a person appointed to  a post  in the  Service on  probation  may  be confirmed. According  to this  Rule  the  incumbent  can  be confirmed if he has completed the period of his probation or any extended period and the Governor is satisfied that he is fit for promotion.      On the  14th of  March 1946,  two new  Medical Services were constituted, viz., (1) Provincial Medical Service Grade 1, popularly  known as  ’PMS I’, in the scale of Rs. 200-10- 320-15-500, and  (2) Provincial  Medical Service  Grade  II, known as  PMS II, carrying a scale of Rs. 120-4-10-8-200. It was decided that existing members of PMS were to be absorbed in PMS I and further recruitment of medical graduates should be made to PMS II in order to replace the PSMS. By order No. 4534A/V-614/1949 dated  July 24,  1951, the  Government laid down that  50 per  cent of the vacancies in PMS I were to be filled  in   by  direct  recruitment  and  50  per  cent  by promotion. Unfortunately, the prin. Simple for determination of inter  se  seniority  between  direct  recruits  and  the promotees in  PMS I  was not  laid down at the time when the Government order  was made.  It appears  that upto  the year 1952, while  five PMS II officers were promoted to PMS I and four officers  of  merged  States  working  in  PMS  I  were adjusted against  the promotion  quota in PMS I, 23 officers were appointed to PMS by direct recruitment 264 against substantive  vacancies. Certain  modifications  were made by  Government office  Memorandum No. 1591/II B-50-1955 dated May  15, 1956 as modified by another Government office Memorandum No.  4760/II B-50-55 dated December 18, 1956. But these changes are not germane for the purpose of the present appeals. It  appears, however,  that in  spite of  the quota fixed by the order dated 24-7-1951, no promotion from PMS II to PMS  I could  be made  between the  years  1952  to  1963 exception an  ad  hoc  basis.  This  brings  us  to  a  very important  date  which  forms  the  pivotal  basis  for  the decision  of   the  points   in  controversy   and  for  the determination of  inter se  seniority of the petitioners and the  appellants.   On  July   14,  1962   by  virtue  of  an advertisement,  the   Public  Service   Commission   invited applications for  recruitment to  56 Gazetted  posts out  of which 9 posts were permanent and the rest were temporary but were  likely  to  continue.  The  relevant  portion  of  the advertisement may be extracted thus:           "Applications are  invited for  the  following  16      Gazetted posts  (a) For  Medicine-8, (b) For Surgery-8,      (c) For  orthopaedics-S, (d)  For E.N.T. Surgery-4, (e)      For   T.B.-7,   (f)   For   Radiology-8,   (g)   Mental      Specialists-3, (h)  For Anaesthesia-13;  9 posts of (h)      are  permanent,   rest  are  temporary  but  likely  to      continue (Advt. No. 671), Dept. No. R.B. 6)      Qualifications:

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         (i)  M.B.B.S.  degree   from   Lucknow   or   Agra                University.           Applicant should  be amongst First twenty position      holders in  order of  merit from  K.G. Medical College.      Lucknow or  S.N. Medical College, Agra or must have any      of the  post graduate  qualifications approved  by  the      Indian Medical Council.           Desirable: Experience  as Resident  officer or  an      Equivalent post.. "      It  is   not  disputed   that  in   pursuance  of  this advertisement,   the.    appellants   applied   for   direct recruitment to PMS I and they were ultimately appointed on a temporary basis  sometime in June 1963 but before the merger of the  two Services  (PMS I  &  PMS  II)  which  came  into existence on November 2, 1964. One of the dominant questions to be determined in this case is whether the appellants were appointed purely  on a  temporary basis  or in a substantive capacity though against temporary posts. In our opinion, the High Court  seems to have laid undue stress on the fact that the appellants  were appointed  on a  temporary basis  while overlooking the surrounding 265 circumstances and  the terms  of the  advertisement and  the Rules, A  referred to above, under which the appellants were appointed. We have already indicated that Rule 17(23 was the only Rule  under  which  are  temporary  or  an  officiating appointment could  be made by the Governor without reference to the Public Service Commission. In the instant case, it is not  disputed  that  the  appellants  were  appointed  after reference to  and  on  the  recommendations  of  the  Public Service Com-  mission. The  appointment of  the  appellants, therefore. would,  not fall  under Rule  17(2). What then is the nature  of the  appointments of  the appellants  is  the serious question  to be decided. In our opinion, reading the advertisement and  the manner and mode of the appointment of the appellants,  it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement  were likely  to continue.  There does not appear to  be any  magical formula  or special  charm in the word ’substantive’. The mere use of the term ’appointment in a temporary vacancy’ by itself would not conclude the matter or lead  to the  irresistible inference that the appointment was not  made in  a  substantive  capacity  because  even  a substantive appointment  could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we  have to  look to the heart and substance of the matter,  the surrounding  circumstances, the  mode,  the manner and  the terms  of  appointment  and  other  relevant factors.  In   the  instant   case,  we  cannot  ignore  the advertisement which  forms the  pivotal basis  of the direct recruitment  in  pursuance  of  which  the  appellants  were appointed. Another  circumstances that  supports our view is that the  appellants were  not appointed merely on an ad hoc basis but  through the  Public Service  Commission and  in a regular way. Finally, the appellants were appointed to PMS I which was  doubtless a  superior service  carrying a  higher scale than PMS II of which the petitioners were members. The question as  to what  is a  ’substantive appointment’  is no longer  res integra but was clearly expounded in the case of Parshotom Lal Dhingra v. Union of India,(l) where this Court made the following observations:           "The appointment  of a  Government  servant  to  a      permanent post may be substantive or on probation or on      an officiating  basis. A  substantive appointment  to a      permanent post  in public  service confers  normally on

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    the servant  so appointed  a substantive  right to  the      post           Likewise an  appointment to  a temporary  post  in      Government  service   may  be   substantive  or  on  an      officiating basis.  Here also,  in the  absence of  any      special stipulation 266      or any  specific service rule, the servant so appointed      ac quires  no right  to the post and his service can be      terminated at any time except in one case, namely, when      the appointment  to a  temporary post is for a definite      period The substantive appointment to a temporary post,      under the  rules, used to give the servant so appointed      certain benefits  regarding  pay  and  leave,  but  was      otherwise on  the same  footing  as  appointment  to  a      temporary  post  on  probation  or  on  an  officiating      basis."      It was  contended by Mr. Gupta, learned counsel for the petitioners that according to the 1945 Rules, the appellants could not  be said  to have  been appointed in a substantive capacity because one of the essential ingredients of such an appointment  was  that  they  should  have  been  placed  on probation for  a period  of one  year. Reference was made in this connection  to Rule  19, the  relevant portion of which may be again quoted thus:           "All persons  whether  recruited  directly  or  by      promotion, shall  on their  appointment in or against a      substantive vacancy be placed on probation for a period      of one year      It was submitted that there is nothing to show that the appellants were  on their appointment to the PMS I placed on probation and, on the other hand, the order of probation was passed long  afterwards, i.e.,  in 1970,  which was  shortly before their  confirmation. It  does appear that due to some oversight on  the part  of the  appointing authority  or  to other  fortuitous   circumstance,  the   order  placing  the appellants on  probation was  not passed  for long  but that would not  give any special advantage to the petitioners who were themselves  drawn from a lower service and even if they held a  substantive post  in such  service, they  cannot  by virtue  of   promotion  to  the  higher  service  after  the appellants, claim seniority over the latter. The petitioners also cannot  complain on  any discrimination  on the  ground that Article  14 or  16 of  the  Constitution  was  violated because a  person who  is  appointed  to  a  higher  service carrying a  higher scale  must ordinarily  be deemed  to  be senior to  an employee  who is promoted from a lower service to the  higher service  even though his appointment may have been substantive  in the lover service. In the case of Kewal Krishan Baga  v. The  Chairman, Railway Board & Ors (1) this Court observed as follows.           "It was  finally urged  that  clerks  in  the  old      establishment  were  wrongly  accorded  seniority  over      godown keepers in 267      the cadre  of clerks  in the  Northern Railway in which      both clerks  and godown  keepers were assimilated. This      argument overlooks  the basic consideration that clerks      in the  Amritsar godown  while working under the Punjab      Government were  placed in  a higher  scale of pay than      godown keepers.  The decision to treat clerks as senior      to  godown  keepers  was  therefore  not  arbitrary  or      irrational. In  fact, some  injustice done  earlier  to      clerks by  fixing their  inter se seniority with godown      keepers in  the new establishment on the basis of their

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    length of  service in  the respective  cadres was later      rectified by  providing that  clerks will be considered      as senior to godown keepers."      In view  of the  circumstances discussed  above, we are inclined to  take the  view that not much can be made of the fact that  the order  appointing the appellants 1-7 does not mention that  they were  appointed In a substantive capacity and that  what is  said is  that they  were appointed  on  a temporary basis.  We shall  consider this  aspect more fully after we  have completed  the history  of the  Services  and their ultimate  merger  as  well  as  the  events  following thereafter. We  might  mention,  however,  that  Dr.  M.  J. Siddiqui (respondent No. 1 in Civil Appeal No. 2870 of 1977) had filed  a  petition  in  the  High  Court  regarding  his seniority and other matters but before the petition could be heard the  two Services  were merged  and the  petition  was ultimately dismissed on 2-8-1965 as infructuous. 13      After making  promotions from  the lower service to the higher. service,  the Government finally decided to have one medical service and with this object in view by order No. U- 1312-A-II/V-2566/63 dated 2-11-64, the Government merged the two Services,  namely, PMS  I and PMS II with effect from 1- 11-64. The  relevant portions of this order may be extracted thus:-           "With a  view to removing this shortage as also to      making the  service  conditions  more  attractive,  the      Governor is pleased to order that instead of having two      medical services,  viz, P.M.S.  I  and  PMS  II  and  a      selection grade  in PMS  I, there shall be, with effect      from November  1, 1964,  one    service  to  be  called      Pradeshik Medical  Service  (Men/Women),  Carrying  the      scale of Rs. 250-25-350-EB-25-475-EB-25-600  EB-25-700,      ordinary  grade,   and  Rs.   500-50-1000-E.B.  50-1200      selection grade, and shall consist of the following:      (a)  Ordinary Grade:           (i)  all the  existing posts of P.M.S. I (both Men                and Women) 268         (ii)   all the existing posts of P.M.S. II (both Men                and Women)         (b)    Selection Grade:                7-1/2  per   cent  of  the  total  number  of           permanent posts in the ordinary grade.           2.   The permanent  and temporary  posts in  PMS I      and PMS  II cadres  shall continue to remain as such on      their merger  into PMS  until the  temporary posts  are      subsequently converted into permanent ones."      A perusal  of this  order manifestly  reveals that  the distinction between  PMS I  and PMS II was abolished and the two  Services   were  constituted  into  one  designated  as ’Pradeshik Medical  Service (Men/Women)’ (hereinafter called the ’new  Service’) which  had two  grades (1)  the ordinary Grade which  was in  the range  of Rs.  250-700 and  (2) the selection grade  which was  in the range of Rs. 500-1200. It was further provided that 7-1/2 per cent of the total number of permanent  posts in  the ordinary grade would be reserved for the  selection grade.  Para 2  of the  order  is  rather important as  it appears to have kept alive, to some extent, the distinction  between the  permanent  and  the  temporary posts in  PMS I  and PMS  II. Para  4 of  the order  is very important for our purpose and may be extracted thus:           "4.  Orders   regarding  fixation   of  the  inter      seniority of  the  existing  P.M.S.  I  and  P.M.S.  II      officers in the P.M.S. will issue separately."      It was  rather unfortunate  that while  merging the two

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services into  one,  the  Government  did  not  consider  it expedient to lay down rules for fixing inter se Seniority of the officers of the two erstwhile services. It was, however, mentioned in  para 4  that rules  regarding fixation  of the said seniority  would issue  separately.  Another  important aspect of  the matter which is germane to the issues arising in these  appeals is  that while  the right  to    inter  se seniority of  the members  of the two services was reserved, there is  no provision  in the order which either applies or continues the  Rules of 1945 even in respect of the inter se seniority of  members  of  each  merging  service.  It  was, therefore, rightly  contended by  the appellants that in the absence of  any such  provision in  the order which was also passed under  Art. 309 of the constitution and was therefore of a  statutory character  or, at  any rate, had a statutory flavour, the  Rules of  1945 could  not be  applied  to  the situation  obtaining   after  31-15-1964  subsequent  orders passed by  the Government throw some light on this point. As the Government was not in 269 a position  to lay  down the  Rules for fixation of inter se seniority immediately  after the  constitution  of  the  new service, by  way of  a stopgap  arrangement, the  Government passed order  No. 20661-AII/V-2566-1963  dated February  20, 1965, the relevant portions of which may be extracted thus           "Subject:-Merger of P.M.S. I and n into P.M.S.      Sir,           In  continuation   of  G.O.   No.   U-1312-A-II/V-      2566/1963  dated   November  2,  1974  on  the  subject      mentioned  above,   I  am   directed  to  say  that  in      supersession of  all previous orders on the subject the      Governor has been pleased to order as follows:-           (1) The U.P. Medical Service (Men’s Branch) Rules,      1945 shall  apply to  the  new,  PMS  unless  otherwise      ordered.           (2) The  appointing authority  of P.M.S.  shall be      the Governor.           (3) Disciplinary  proceedings against the officers      of the P.M.S. will be drawn at Secretariat level, as in      the case of other gazetted officers.           (5) The following will be eligible for appointment           to P.M.S.           (a)  Medical graduate of all Universities in India                recognised by the Indian Medical Council.           (b)  Medical  graduates   who  hold  the  M.B.B.S.                degree of  Lucknow University,  provided they                have served  in house  appointment for a term                of nine  months in a teaching hospital before                they offer themselves for appointment.                     .. .. ..  ..   ...  ...           3. The  number of  permanent and temporary post in      P.M.S. I  and II (Men and Women) as on the afternoon of      October 31,  1964 may  please be reported to Government      immediately so  that the  strength of  P.M.S. cadre  on      November 1,  1964 may  be fixed. Seniority lists of the      officers (Men  & Women)  in P.M.S. I and II also kindly      be furnished  at once  in duplicate  as in the attached      proforma."      It is, therefore, manifest that during the interregnum, that is  to say,  1-11-64 to 22-2-65, the Rules of 1945 were inapplicable so far as 270 the new  Service was concerned. It was for the first time on the 20th  February 1965  that by the order, extracted above, the U.P.  Medical Service  (Men’s Branch)  Rules, 1945  were

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made applicable  to the new Service and that too on a purely provisional basis  until fresh  Rules  were  framed  by  the Government for  determining the  inter se seniority 1 of the officers concerned.  The words  ’unless  otherwise  ordered’ clearly show  that the  application of  the 1945  Rules  was purely provisional  and was  to remain in force unless fresh rules were  made. Another order by the Government was passed on   26-12-67    regarding   the    mode   of   recruitment, qualifications, etc.,  which is  not very  relevant for  our purpose.  Ultimately,   a  final   order  laying   down  the principles on  the basis  of which the inter se seniority of the members  of the two Services was to be determined in the new Service  were laid down. This order was passed by virtue of G.O.  No.3976 A-II/V-68/1757/65  dated 18-12-68 which may be extracted thus:           "In supersession  of G.O.  No. 1004-A-II/V-2566/63      dated April  23, 1963,  on  the  above  subject,  I  am      directed   to say that the Governor has been pleased to      order that  the inter  se seniority  of the officers of      the merged cadre known as PMS should be arranged in the      following order:-           (a)  Permanent PMS  I officers  in order  of their                seniority already  determined  by  Government                followed by,           (b)  officers  appointed/promoted   to  PMS  I  on                permanent or  temporary basis  prior  to  the                merger of  PMS I  and PMS  II in  the regular                manner in consultation with the Lok Sewa Ayog                in order  of their  seniority  determined  by                Government, followed by,           (c)  officers  of   PMS  II   in  order  of  their                seniority in  the PMS  II cadre  prior to the                merger of PMS I and PMS II.           Note: If a PMS II officer was officiating in PMS I      but he  has not been approved for promotion/appointment      to PMS I by the Lok Sewa Ayog, he shall rank in the PMS      in accordance with his seniority in PMS II.           2. I  am to  request that  a seniority list of PMS      officers may  please be prepared on the lines indicated      above and  it may  be  sent  to  Government  for  their      approval as early as possible."      It was  in consonance  with these  directions that  the Government fixed  the seniority  of appellants  1 to  7  and petitioners 1 to 12. So 271 far as  the appellants  were concerned,  they  clearly  fell within the  ambit A  of direction  (b)  which  provided  for officers appointed  to  PMS  I  either  on  a  permanent  or temporary basis  prior to  the merger in a regular manner in consultation  with   the  Lok   Sewa  Ayog  (Public  Service Commission) in order of their seniority. It may be pertinent to note  here that  direction (b)  does  not  speak  of  any substantive appointment  whatsoever but equates the officers appointed to  PMS I on permanent or temporary basis prior to merger. In  other words,  what the direction contemplates is that any  officer appointed  to a  post whether permanent or temporary in  PMS I  which was  the Senior  Service prior to merger, would  rank after  merger above  those officers  who were drawn  from PMS  II. That  the appellants fulfilled all the conditions  mentioned in  direction (b)  is not disputed but the  constitutionality of  that direction was challenged before the High Court on the ground that it was inconsistent with Rule 18 of the 1945 Rules. This contention found favour with the  High Court  which  held  that  direction  (b)  was invalid as  being inconsistent  with the  Rules of  1945. In

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coming to  this finding,  the High  Court  appears  to  have overlooked the  fact that  the 1945.  Rules did not apply to the new  Service at  its inception  and that  they were made applicable to  the new  Service only  for a  short while  by virtue of  the order  dated 20th  February 1965, purely on a provisional basis  as the  Government made it quite clear in that order  itself that  the 1945  Rules will  apply ’unless otherwise ordered’  and thus  had reserved the right to pass final orders  regarding seniority  later which  was done  in 1968. In  these circumstances,  therefore, the  order of the High Court suffers from two infirmities-      (i)  that there  was no  real or apparent inconsistency           between rule  18 of  the 1945  Rules and  the 1968           directions,.      (ii) that initially  the 1945  Rules ceased to apply to           the new  Service but  were made applicable thereto           only  for  a  shortwhile  by  way  of  a  stop-gap           arrangement in 1965.      The  High   Court  appears   to  have  interpreted  the directions of  1968 completely  out of context. On the other hand, we  feel that  those directions  seek to strike a just balance between the officers of the erstwhile Services after they were  merged into the new Service. We shall immediately show that  having regard  to the exigencies of the situation created by  the merger,  no other   mode of seniority, which was just and fair, could be evolved for the new Service.      By a  notification dated July 3, 1970 issued under Act. 309  of   the  Constitution,   the  Governor   made  certain amendments in the 1945 272 Rules including  Rule 25 which related to recruitment to the posts of Civil Surgeons and other PMS selection grade posts. The amended rule may be extracted thus:-           "Part IX-Promotion  to the  post of  Civil Surgeon      and other PMS-Selection grade posts.           Rule 25  (i) Recruitment  to the  posts  of  Civil      Surgeons and  other PMS Selection grade posts, borne on      the cadre of the Service, shall be made by promotion on      the basis  of seniority  subject to  rejection  of  the      unfit from  among the  members of  the Service who hold      the M.B.B.S. Or higher degree and who have rendered not      less than 10 years’ service."      Under this rule the promotion to the selection grade of the new  Service was  to be  made purely  on  the  basis  of seniority subject  to rejection  of the unfit from among the members of the Service or those who had rendered service for less than  ten years.  The petitioners  appear to  have  put forward  their   claim  to  seniority  as  being  above  the appellants in  order to  earn the selection grade before the appellants on  the ground  that they had been appointed in a substantive capacity,  though in  a lower  service, prior to the appointments  of the  appellants to  the higher service. Thereafter,  it   appears   that   the   Government,   after considering the  representations received  from  the  former officers of  PMS and in consultation with the Public Service Commission, more  or less  endorsed the principles laid down for fixation  of seniority in the 1968 order and directed in an order  dated 18-12-1971  seniority should be fixed on the following principles:-      "(k) Keeping in  view the balance in the seniority list           among the  appointment by  direct recruitment upto           1951  and   the  promotee  officers.  19  promotee           officers may  be given  first 19 posts at the same           time.      (kh) In the list of the officer by promotion and direct

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         recruitment, Ratio  of 1:  1 may  be kept  in  the           seniority list  in  both  the  categories  of  the           officers from the 20th post, i.e, 20th post to the           promotee officer  and 21st  post may  be given  to           officer by  direct recruitment. This will continue           until the  batch of  direct  recruits  upto  1963.           Thereafter  the  remaining  promotee  officers  of           batch 1963  may be  placed  all  together  in  the           seniority list. Thereafter, the direct recruits of           batch 1964  may be  placed in  the seniority  list           together. 273      (G)  The officers  selected for  permanent posts  in  a           year A  may be  placed over  the officers selected           for temporary posts in the same year.      (GH) Five officers  of the  reserve list  by the direct           recruitment of  the year  1951 who  were appointed           temporarily   in    1952   and   whose   permanent           appointment was approved by the Commission in 1958           may be placed below in the list of the officers by           direct recruitment in 1957 batch.           Note: 1.  The lists  of  the  officers  by  direct      recruitment and  by promotion  will  contain  only  the      names who were appointed temporary and permanent in PMS      (I) with the approval of the Public Service Commission.           2. In accordance with the aforesaid principles ’G’      the names of the officers will be placed in the list by      direct recruitment after approval by the Commission for      regular appointment.           3. The names of the officers will be placed in the      list of  promotee officers  in order  of the determined      seniority  in   accordance  with  the  above  mentioned      principles ’G’  vide notification  No. 2780  K/5/247/57      dated the 13th June 1963."      It was  in consequence  of these  directions  that  the Government  by  virtue  of  the  order  impugned  fixed  the seniority of  the members  of the  new Service,  placing the appellants above  the petitioners  and awarding  to them the selection grade Prior to the petitioners.      Thus, in short, the, heart of the matter is whether the order of 1968 as confirmed by the order dated 18-12-1971 was in any  way inconsistent  with Rules  17 and  18 of the 1945 Rules so  as to nullify the mode of seniority adopted by the Government and  the promotion to the selection grade made by it under  the impugned  order. In our opinion, the following propositions emerge  from the history of the new service and the foregoing discussion:-      (1)  To begin with, the Rules of 1945 had absolutely no           application  to   the  new  Service.  Those  Rules           applied  to  the  old  PMS  I  Service  only  and,           therefore, to  a  situation  completely  different           from that which pre vailed after the merger of the           two Services on 1-11-1964. As the Government order           merging the  two Services was also an order passed           under Art. 309 of the Constitution, 274           it had  statutory force and was binding on all the           officers of the new Service.      (2)  At the  time when  the 1964  order was  passed the           Government deliberately did not frame any rules in           order to  determine the  inter se seniority of the           members of  the new Service but reserved the right           to do so.      (3)  It was  under the  order dated  February 20,  1965           that for  the first  time the  Rules of  1945 were

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         applied to  the new  Service and  that too "unless           otherwise ordered"  i.e., purely  on a provisional           basis. The  order of 1968 laid down the principles           for fixing seniority and, being a statutory order,           superseded all  the Rules  in  question  including           Rules 17  and 18 of the 1945 Rules. It was further           confirmed by the order dated l 8-12-1971.      We, therefore,  find ourselves unable to agree with the view taken  by the High Court that direction (b) of the 1968 order should  be struck down as being inconsistent with Rule 18 of the 1945 Rules.      We might  further point  out that  having regard to the history of  PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied  to the parties and the 1968 order ignored, the resultant effect  would be that equals and unequals would be treated similarly  which would amount to a direct infraction of Articles  14 and  16 of  the Constitution.  In  order  to illustrate our  point we  give below  a  chart  showing  the different attributes  possessed by  the two set of officers, namely, the appellants and the petitioners: -----------------------------------------------------------           Appellants                 Petitioner ----------------------------------------------------------- 1. Appellants  were direct 1. The Petitioners’ cases were    recruits to PMS I;         sent for consideration by the    appointed in a substan-    selection Committee  in June    tive capacity in a reg-    1963 but they were not consid-    ular manner on the reco-   erd fit for selection vide    mmendation of the Public   the relevant extracts below    Service Commission though  from the Affidavit of Mukund    to temporary posts.        Swarup Srivastava. Upper                               Division Assistant, Medical                               Section, U.P. civil                               Secretariat:                               " All the petitioners who were                                eligible for promotion were                                eligible for promotion by the                                public Service Commission and                                the Departmental Selection                                Committee in  the manner                                prescribed, vide office                                memorandum dated May 15, 1956                                as modified by 275                               Office memorandum dated                               December 18, 1956. The cases                               of the petitioners were not                               recommended by the Selection                               Committee for promotion to                               Provincial Medical Service I."                                              (Emphasis ours) 2. The appellants were        2. The Petitioner belonged to admittedly appointed by the   PMS II which was a subordinate Governor to a higher Service, Service with a lower scale ; Viz., PMS I Carrying a higher their appointing authority Scale of  pay with  better    being the Director, Medical prospects and higher          Service and not the Governor. responsibilities. 3. At the time of appointment 3. The petitioner did not put to the selection grade the    in the requisite experience in appellants had put in there-  PMS I for promotion to quisite experience of more    selection grade. than        eight        years        in        PMS        I required        for         promotion         to         the selection grade.

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    Having regard  to these factors, it is obvious that the appellants and  the petitioners  were not  similarly situate and if  the petitioners were put above the appellants in the matter of  seniority, it  would have resulted in a gross and wholly  unreasonable   discrimination  by   making    junior officers senior to superior officers.      A number  of authorities  were cited  before us  on the question of  the principles of seniority but they are not at all applicable  to the  peculiar facts  of the  present case which have  special  features  of  their  own  and  we  have therefore not  considered it  necessary to  deal with  those authorities.      As regards  the case  of appellant  No. 8,  Dr.  Sudhir Gupta, it  stands on  an altogether different. footing which is even  higher than  those of  appellants 1  to 7. To begin with this appellant was recruited directly to PMS I from PMS II through  the Public  Service Commission  on 13-7-1959. He actually joined  the PMS  I Service on 11-11-1959. He passed M.B.B.S. in  1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case  of appellant  No. 8  is exactly similar to that of the other  appellants  with  this  difference  that  he  was appointed to  PMS I  about five  years before the PMS II was merged into  PMS l  and therefore  the petitioners could not claim seniority over him. 276      Thus,  on   a  careful   consideration   of   all   the circumstances of  this case,  we are  clearly of the opinion that the  High Court  committed an  error of law in quashing the order  of the  Government dated 31-12-1971 and directing it to  refix the  seniority  of  the  parties.  Accordingly, Appeals Nos.  2869 and  2870 of  1977 are  allowed  and  the orders passed  by the High Court are set aside. The order of the Government  dated December  31, 1971 is hereby restored. In the  circumstances of the case, there will be no order as to costs. S.R.                                        Appeals allowed. 277