26 July 1996
Supreme Court


Case number: C.A. No.-004438-004442 / 1995
Diary number: 89177 / 1993






DATE OF JUDGMENT:       26/07/1996


CITATION:  JT 1996 (7)   174        1996 SCALE  (5)625



JUDGMENT:                             WITH I.A. No2 in C.A. NO.4445/95, I.A. Nos.2 in C.A.4447/95, I.A. Nos.2 in C.A. No.4448/95, I.A. Nos.2 in C.A. No.4451/95 I.A. Nos.2 in  C.A. No.4454/95  & I.A.  No.26 in C.A. No.4439/95, I.A.Nos.36 & 37 in C.A.4439/95                             AND      Contempt Petition No.308/96 in SLP [C] No.828/93                          O R D E R I.A. Nos.16-20 etc. etc. in C.A.4438-42/95      Application  for   intervention  and   impleadment  are dismissed.      This is second instalment and we hope it to be the last instalment of  the unending  litigation. This Court by order dated March  23, 1995  disposed of a batch of cases relating to the  appointment of  ad hoc  doctors in  U.P.  Provincial Medical and  Health Service. Pending making of the rules, ad hoc appointments  came to  be made  and the doctors who were already working in Medical and Health Departments were given options to come to this Department. As a result thereof, all of them  had opted  to come  to this Department. Admittedly, the  posts   are  governed   by  the   PSC  recruitment  and appointments  thereto   are  made   accordingly.   No   such appointment came  to be  made.  Consequently,  all  of  them remained on ad hoc basis de horse the rules right from 1961- 62 onwards and some of them retired. Some of the doctors had gone to  the Court  and obtained relief of regularisation of their services  from the  respective dates  of  appointments which became  final. The recruitment through the PSC came to be made on two occasions, viz., in 1972 and 1974. When there was an  inter ce  dispute between the candidates selected by the PSC  and ad  hoc doctors, the dispute ultimately came to this Court  and this  Court directed the State Government to adopt a  fair procedure so as to avoid further litigation in the matter. This Court stated in the order as under: <sls>      " It  is settled  law that all ad hoc appointments made



de hors  the rules  do not  confer any  rights only from the date of  their regular  appointment according  to rules they get their  seniority. If,  however, the initial appointments were according  to rules,  though on  ad  hoc  or  temporary basis, then the seniority would be counted from the dates of initial appointment.  The ad  hoc appointments  here were de hors the  rules. It  would thus  be clear  that  though  the doctors have  put in  more than  33 years,  they are  ad hoc hands. All would not get seniority from the respective dates of appointments.  It is  seen that  some of the doctors have retired and  some had the benefit of directions given by the courts to  have their  services regularised with effect from the dates  on which  they were appointed and the orders have become final. So, they are entitled to count their seniority from the respective dates of initial appointments.       From among  the rest of the doctors, since the PSC had notified, selected  and recommended  the names of candidates in the year 1972, State Government is directed to make their appointment in the order of merit determined by the PSC. The State Government  is directed  to appoint  them with  effect from the  date which  the State  Government had received the merit list  from the  PSC  and  they  be  placed  below  the candidates whose  appointments were  upheld by the Courts or Service Tribunal and became final.     As to the candidates whose names were recommended by the PSC in  three installments,  first  on  23.12.77,  second  n 16.6.78 and  the final list on 10.5.79, the State Government is directed  to appoint  them in  the order  of merit in the respective lists. The seniority of the officers so appointed would be  as  per  the  determination  of  the  PSC  in  the respective lists.  They would  be appointed with effect from the dates  on which  the State  Government had  received the respective lists  and they  must  be  deemed  to  have  been regularly appointed  from those  dates. They would be placed below 1972  selectees. Rest  of the candidates, who were not selected but  are still  continuing in  service,   would  be placed below the last of the 3rd list and their seniority is directed to  be determined  with effect from the date of the receipt of  the list dated 10.5.79. Among the non-selectees, the date  on which  the list dated May 10, 1979 was received by the State Government would be the cut-off date and taking into consideration  of the  respective dates of appointments as on  that date  and if  made thereafter, seniority will be counted from  those respective dates. Rule of reservation if applied, and the candidates were selected accordingly, their seniority  vis-a-vis   the  General   candidates  would   be according to  the vacancy  position in the roster maintained by the State Government.      It is  on record that some of these ad hoc doctors have retired on  attaining the  age of superannuation. In respect of them  there shall be a direction in nationally treat them to be  regularly appointed  from respective dates of initial appointment only  for the  purpose of giving them pensionary and retrial benefits admissible according to relevant rules. This should not be reckoned for inter se seniority among the temporary or ad hoc doctors appointed in the service." <sle>      These I.As. came to be filed for the reason that though their special  leave petition  was posted  along with  other batch of  cases, admittedly  the petitioners-appellants  had not been  served. Consequently,  they initially  filed these I.As. for  review which  we have directed to be heard in the COURT. Accordingly, the cases have been posted to-day.      Shri K. Madhava Reddy, learned senior counsel appearing for these  ad hoc  doctors who have not been selected by the



PSC, has  placed before  us the  initial order passed by the Governor creating  these services  and the  statutory  rules framed under  proviso to  Article 309 of the Constitution on May 14,  1979,  viz.,  the  U.P.  Regularisation  of  Ad-hoc Appointees [on  posts  within  the  purview  of  the  Public Service Commission]  Rules, 1979  [for  short,  the  "Ad-hoc Rules"] to  regularise their  services as  indicated in  the Rules.  Based  thereon,  it  is  contended  that  after  due selection by  the committee  constituted under Rule 4 of the Ad hoc  Rules, they  are required to be appointed under Rule 5; their  seniority was directed to be reckoned under Rule 7 from the  date of  the order  of appointment after selection under Rule  4 and they be placed below the persons appointed in accordance  with the  relevant  procedure  prior  to  the appointment of  these ad hoc regularised doctors. Since they have been  appointed  according  to  rules,  the  candidates recommended by  the Public  Service Commission in 1977, 1978 and 1979  were yet  to be  appointed  and,  therefore,  they cannot  be  made  senior  to  the  petitioners.  It  is  his contention that  though the  recommendations came to be made by the PSC, it was not as if they have got an absolute right to appointment. The State Government after due consideration may not  appoint them,  their right to seniority arises only from their  date of  discharging the duties on the post and, therefore, since  they have  not been appointed according to the rules,  they cannot  be treated  to be  seniors. If  the direction in  3rd part  of the order is given effect to, the petitioners in  these IAS (for short, "non selectees") would become  junior   to  him   and,   therefore,   it   requires clarification. Shri Harish Salve, learned senior counsel for the State  and also  Shri A.B Mathur, learned senior counsel for the direct recruits, resisted the contentions.      Having considered  the respective contentions, we think that there  is not  much controversy  in the  matter. It  is stated in  the order that in case of doctors who had already retired from  service their  seniority would  be on notional basis, It  presents no  difficulty to  work  out  the  same. Equally, in  respect of  doctors in  whose favour there were order from  either High  Court or the Tribunal or this Court which had become final, their seniority was directed to be regularised  with   effect  from  the  respective  dates  of appointments. The  second part  of the  order dealt with the candidates selected pursuant to the advertisement in 1972 by the PSC. It would, therefore, be obvious that the candidates selected in  the year  1972  and  appointed  in  furtherance thereof would  become seniors  to all  the ad hoc appointees though they  were continuing  on ad  hoc basis. Accordingly, the second  part of the order will not create any impediment in preparation of the inter se seniority among the doctors.      The third  part consists  of the candidates selected by the PSC  pursuant  to  the  recruitment  made  in  1974  and recommended for  appointment in three instalments. The dates of the  lists were  mentioned in  the order  as December 23, 1977, June  16, 1978 and May 10, 1973. It is to be seen that there appear  to be a tussle between the direct recruits and the promotees  as regards  inter se  seniority. At one time, the Government  seems to have taken a decision to cancel the selection lists  and regularise all the ad hoc appointees en mass. It  would appear  that most of the candidates selected by the  PSC were also ad hoc doctors but gained an edge over non-selectees.  Under   these  circumstances,   what   legal principle should  be adopted  to determine  their  inter  se seniority is  the question.  Had the  appointments been made pursuant to  the list  submitted by the PSC in December 1977 and June  1978, it would be obvious that the non-selectee ad



hoc doctors  cannot have  any seniority over them. It would, therefore,  be   clarified  that   such  of  the  candidates recommended by  the PSC in the lists dated December 23, 1977 and June  16, 1979  would rank  below the 1972 appointees in their  order   of  merit  recommended  by  the  PSC  in  the respective lists.      Then comes  the case  of the  candidates of  third list dated May  10, 1979. Mr. Madhava Reddy has rightly contended that the date of recommendation is not conclusive. Normally, the settled  law is that the seniority would be counted from the date on which the candidate actually started discharging the  duties   of  the  posts  and  in  the  case  of  direct recruitment, the  date of  appointment in the order of merit prepared by  the PSC.  But in view of the loggerhead between the recruits  and the  ad hoc  doctors. It  would be obvious that the  ad hoc  non-selectees should be regularized as per the procedure  prescribed in  the Ad-hoc Rules. As seen, the third list was sent by the PSC on May 10, 1979 while the Ad- hoc Rules came to be made on May 14, 1979. It is seen that a committee was  required to be constituted under Rule 4 to go into the  relative merits  the non-selectees  and those  who fulfil the  qualifications prescribed in Rule 3 are found to be eligible  and fit to be appointed. A list was required to be  drawn   on  the  basis  thereof  and  appointments  made accordingly.  All   this  exercise   obviously  would   take considerable time. Therefore, the non-selectees cannot claim dry seniority over the candidates already recommended by the PSC in  the  3rd  list  dated  May  10,  1979.  Under  those circumstances, though  they were  not  heard  in  the  first instance, when the matter was disposed of, in substance they would not  get any  advantage or  detriment in the order, in view of the peculiar circumstances prevailing in the service in the State of U.P.      Yet another  problem that  was brought to our notice is that while  preparing their  inter se seniority and fitment, the Government was not strictly following the rule of roster and  reserved  for  Scheduled  Caste,  Scheduled  Tribe  and Backward  Class   candidates  and  their  placement  on  the respective vacancies  earmarked for  them in  the roster. It would  be   obvious   that   when   the   Government   makes appointments,   through   administrative   instructions   or statutory rules,  the appointment  of candidates  should  be according to  order of  merit  and  roster.  The  Government should follow  the rule of reservation and make appointments as per roster points. That procedure is also prescribed even in the  Ad hoc  Rules. Therefore  even appointments from the lists of 1972, 1977, 1978, 1979 and among those retired from service or  had the benefit of court orders or non-selectees the inter  se seniority  should accordingly be determined as per the  rule of reservation and roster. Even among the non- selectees when  they are  appointed under  Ad hoc  Rules and seniority under  Rule  7  thereof  is  determined  the  same principle should  be followed.  Their roster  points  should also be  worked out and appointments made accordingly. There shall be  not any  deviation from  the rules of appointment, reservation so  that and  order of  appointment would become according to rules and remain legal.      Yet another  circumstance  which  was  brought  to  our notice by  the direct  recruits is that they are made junior to the  non-selectees and  promotions  were  given  to  non- selectees overlooking the claims of direct recruits. In view of the  directions now  given, after  drawing the respective seniority lists,  appropriate steps are directed to be taken to make  appointments or the promotions, as the case may be, according to the rules.



    The fourth  circumstance that was brought to our notice is that  some of  the candidates  appear to have gone to the court and  obtained directions  on the ground that they were not parties  to the  orders passed  by this  Court and that, therefore they  seek to  claim  rights  independently.  This order would  cover all  the cases and would apply to all the candidates  who  are  concerned  in  this  service  and  the Government would  determine  their  inter  se  seniority  in accordance with  these directions  within four  months  from today. Before parting with the case, we are pained to notice that the  Government has resorted to adhocism which resulted in distortion in the service and heart burning, manipulation and corruption.  We hope and trust that the Government would put a  stop to  the ad  hoc  appointments  that  has  become breeding  ground  for  corruption  and  nepotism  so  as  to inculcate discipline in services.      All the  applications  and  petitions  are  accordingly disposed of. No costs.