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PETITIONER: SMT. VIJAY GOEL & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT:       21/10/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 21ST DAY OF OCTOBER, 1997 President:                Hon’ble Mrs. Justice Sujata V.Manohar                Hon’ble Mr. Justice D.P.Wadhwa Tapas Ray,  Sr. Adv.,  Sushil Kr. Jain, Y.P. Dhamija, Advs., with him for the appellants. Ms.  Binu   Tamta,  Adv.   for  D.S.Mehra,   Adv.  for   the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: D.P. Wadhwa, J.      Ten appellants  in this  appeal are  aggrieved  by  the order dated  August 4,  1995 of  the Central  Administrative Tribunal,  (for   short  ‘the  Tribunal’)  dismissing  their petition. They had approached the Tribunal seeking to quash: (1) the  order dated   May  19,1986 modifying  the dates  of their regularisation as Lower Division Clerks (LDCs) and (2) the order  dated March, 27, 1991 of the Chief Administrative Officer, Safdarjang  Hospital, New Delhi issued in pursuance to the  advice received  from the  Director  General  Health Services,   Government    of   India,    terminating   their appointments  as   regular  LDCs   till  regular  candidates sponsored by  the  Staff  Selection  Commission  took  their position. The  appellants who  were working  as LDCs  in the hospital represented  against the  order dated  May 19, 1986 which had  been issued  in supersession of the earlier order da  ted   December  3,   1985  changing   their   dates   of regularisation. Instead  they were  visited with  the  order threatening to terminate their services.      The appellants  have been  working as  LDCs for varying periods fro  18 to 20 years allegedly on ad hoc basis. Their contention is  they have  been regularly  appointed  as  per statutory rules.  Before us,  however, they  have  given  up their challenge  to the order dated May 19, 1986 faced with, perhaps, the  consequence of  losing their  jobs altogether. Before the  Tribunal there  were 11  petitioner and one (Mr. Udal Sing) seems to have dropped out from these proceedings.      The Central  Government in  the exercise of power under proviso to  Article 309  of the  Constitution  framed  rules called The Safdarjang Hospital (Class III Posts) Recruitment

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Rules, 1973.  Under these  rules, method  of recruitment for LDCs is  100% by  direct recruitment;  age limit in 18 50 25 years;  educational   qualification  is   matriculation   or equivalent with  speed of  30 w.p.m.  in type-writing (and a certain relaxation  for a  physically  handicapped  person); period or  probation  prescribed  is  three  years  and  the selection is by D.P.C. These rules were made on December 17, 1973 and  were published in the Gazettee of India on June 5, 1974, By Resolution dated November 4, 1975 of the Government of India, Cabinet Secretariat in the Department of Personnel and Administrative Reforms, a decision was taken to set up a subordinate Services  Commission (’SSC’  for  short).  Apart from the  constitution  of  the  SCC,  the  Resolution  also prescribed its  functions. It is to make recruitment to non- technical  class   III  posts  in  the  Departments  of  the Government of  India and  in the  Subordinate Offices except those posts  for which  recruitment is  made by  the Railway Service  Commission   etc.  The  Commission  is  to  conduct examinations  for  recruitment  to  non-technical  class-III posts    in     the    Subordinate     Services    in    the Ministries/Departments of  the Government of India and their attached and  Subordinate Offices  as may  be specified from time to  time. Since recruitment to the posts of LDCs in the hospital is  to be  made through SSC, a requisition was sent by the hospital authorities for filling up the posts of LDCs existing in  the hospital. SSC by its letter dated April 30, 1977 informed  the hospital  that the  qualified  candidates could be  expected to be available only in early 1978 and if the vacancies  were required  to be  filled up urgently, the authorities might  themselves make  arrangements to  fill up these vacancies  through other  authorised channels. In this view of the matter, the hospital authorities asked the local employment exchange  to sponsor candidates though with clear indication in  the requisition that the recruitment would be purely on  ad hoc  basis till  candidates from SSC were made available. Simultaneously  a circular was also issued in the hospital allowing  eligible departmental candidates to apply for  the  LDCs  posts  till  SSC  nominees  were  available. Employment Exchange  sponsored 27  candidates and there were 18 departmental  candidates. A written test was conducted on SSC pattern  and those who obtained 50% marks and above were selected for  the typewriting  test. 10 candidates sponsored by the  employment exchange  were empaneled  on the basis of their performance. Similarly, 8 departmental candidates were separately empaneled  based on  their performance. It is the contention  of   the  petitioners  that  these  panels  were prepared after  process of  selection  by  duly  constituted D.P.C for  the purpose  had been  gone through  as  per  the recruitment rules.  Appointments to  the posts  of LDC  were made from  these panels  as and when the need arose. In all, 17 such  appointments were  made, 7 of these 1978, 4 in 1979 and 2 in 1981. Of all these 13 candidates who were recruited as LDCs,  on left  the who, as noted above, were petitioners before the  Tribunal. In the offer of appointment letters as well as  the orders  of their appointment, it was made clear that the  appointments were  purely on  ad hoc and temporary basis and  the appointees  against the  vacancies  would  be reverted or  retrenched as  and when candidates sponsored by SSC joined  duty or  in the case of leave vacancies when the incumbents returned from leave.      It is the contention of the the respondents that on the basis of  memo  dated  August  7,  1982  received  from  the Department of  Personnel and  Administrative Reform  stating that  special   examination  for  recruitment  of  LDCs  was scheduled to be held on December 12, 1982 for ad hoc LDCs to

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make them  regular, a circular was issued in the hospital on October 11,  1982 requiring  the 17  LDCs which included the petitioners  to   submit  their   applications  along   with requisite documents  by October  13, 1982  to participate in the examination  and that  in case  they failed to appear in the  examination  on  the  specified  date  and  time  their appointment to the post of LDCs was liable to be terminated. It is  stated that 16 LDCs took the examination out of which only four  qualified. The  result was  declared on March 20, 1983 and  instruction were  issued that the seniority of the finally qualified  candidates may be fixed enblock junior to the candidates  who had  been appointed  as a result of 1981 Clerks  Grade   Examination.  The  petitioners  nevertheless continued in  their respective  jobs. Trouble for them arose when they were put down in the seniority and ultimately when their services  were sought  to be  terminated.  It  is  not disputed before  us that the selection of the appellants was not made  in  accordance  with  Recruitment  Rules  or  that regular Vacancies did not exist against which the appellants were appointed.      It  may   be  noticed  that  petitioners  1  to  5  are employment exchange  nominees and  remaining  are  from  the hospital staff.  One of  the specimen letters appointing the petitioners is reproduced as under:                        "BHARAT SARKAR                SAFDARJANG HOSPITAL, NEW DELHI                                           IMMEDIATE           No. 1468                      DATED 8.9.78                         H.P. PART II      Miss  Vijay  Gupta  is  appointed  as  L.D.C.  in  this hospital w.e.f. 24.8.78 F.N. temporarily till further orders @Rs.260/- p.m.  in the pay scale of Rs.260-6-290-EB-6-326-8- 366-EB-390-10-400 plus  usual allowances as admissible under the rules from time to time vice Sh. K.S. Sehrawat appointed as Store Keeper.      Her date of birth is 10.10.53.      She had passed the typing test.                                           Sd/-                                      (P.N. SOREWALA)                                   Administrative Officer.      Copy to  : Accounts  Section in  triplicate along  with                Medical Fitness  Certificate.  She  has  been                Medically examined  and found  fit./Pay     &                Accounts                        Officer/Leave                Group/P.File/C.R.Dossier."      There is  also on  record two officer orders appointing some of the petitioners as LDCs in the hospital and in these orders it  is mentioned  that their appointment is purely on temporary basis  till  further  orders  and  also  that  the candidates so  appointed would be reverted and retrenched as and  when   the  persons   posed  by   Subordinated  Service Commission and  persons join  their duties  after expiry  of leave, whichever is earlier.      Hospital issued  a seniority list of LDCs as on January 1, 1979.  The appellants  figured in  the seniority list and under  the   column  date  of  confirmation  were  shown  as temporary. There  is an officer order dated December 3, 1985 wherein it  is mentioned  that ad  hoc  appointment  of  the appellants as LDCs had been regularised with effect from the date as shown against each of them on the existing terms and conditions: "Sl.No.    Name    Date of App.   Date of        Remarks                                 Regularisation ------------------------------------------------------------ 3.  Sh.Parmanand    7.4.78        7.4.78

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   Gaur 4.  Smt. Veena      8.4.78        8.4.78     Luthra 5.  Sh. S.P. Gaur  12.4.78       12.4.78 6.  Smt. Veena     Makhija        18.4.78       18.4.78 7.  Smt. Geeta     Sabharwal 8.  Smt. Vijay Goel 24.8.78      24.8.78 9.  Sh. Deen Dayal  10.3.79      10.3.79 11  Sh. Nandan K.K. 30.9.80      30.9.80 12  Abhoy Ram       30.9.80      30.9.80      Shri Narain  Parshad will  continue  on  ad  hoc  basis pending qualifying the typing test.                                       Sd/-                               Chief Administrative Officer"      Another office  order dated  May 19, 1986 was issued in supersession of  the office  order dated  December  3,  1985 changing the date of regularisation of the appellant as LDCs and now it was as under: "Sl.No.      Name     Dte. of App.    Date of    Remarks                                   Regularisation ----------------------------------------------------------- 5.  Sh. Parmanand     7.4.78        30.11.85     Gaur 6.  Smt. Veena Luthra 8.4.78        30.10.85 7.  Sh. S.P. Gaur    12.4.78        30.11.85 8.  Smt. Veena       18.4.78        30.11.85     Makhija 9.  Smt. Geeta       24.4.78        30.11.85     Sabharwal 10. Smt. Vijay     Goel             24.8.78        30.11.85 11. Sh. Deen Dayal   10.3.79        30.11.85           (S/C) 12. Sh. Nandan K.K.  30.9.80        30.11.85 13. Abhoy Ram        30.9.80        30.11.85 14. Shri Narain Pd.   4.4.78         4. 4.83 Date of     (S/C)                            exemption from type                                      writing test after                                      completion of 7 yrs.                                      of service.                                         Sd/-                                Chief Administrative Officer"      Then there  is a  seniority list of LDCs issued on June 1, 1987.  the appellants  have been  shown as temporary with the  remarks   that  their   ad  hoc  appointment  has  been regularised with  effect from November 30, 1985. In the case of Narain  Pd. (S/C)  remark column  record "that his ad hoc appointment had been regularised". A footnote mentioned that seniority  list   was  being   circulated  among  the  staff concerned and  if any  individual had  any objection  he/she should send  his/her objection  supported by  evidence on or before July 30, 1987. After the objections were considered a fresh seniority  list was issued on September 9, 1987 of the LDCs in  the hospital  as on  June 1,  1987. As  far as  the appellants are  concerned they  were shown as temporary with the remarks as aforesaid in the provisional seniority list.      Some of  the  appellant  objected  that  the  had  been regularised on  the earlier  dates and not from November 30, 1985 as shown in the seniority list. By the memorandum dated November 8,  1989 the  appellants  were  informed  that  the question of  their regularisation  to the  posts of LDCs was reviewed in  consultation with  the Department  of Personnel and Training and it had been held that the regularisation of

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the services  of the  ad hoc  LDCs who could not qualify and special Qualifying  Examination held  by the  SCC was not in order. They were also told that the order regularising their services had  been passed by an officer below the appointing authority and  that the  hospital had  been advised  by  the Government  to   issue   revised   orders   cancelling   the regularisation of  the appellants who were ad hoc appointees and treating  them as  ad hoc employees only. The appellants were advised  to submit  their representations  against  the above decision  of the  Government. They  represented and in one of  the representation on record which is dated November 30, 1989  materials was  given as  to how appellant had been appointed and how she had worked in the post of LDCs for all these 11  years and that her appointment had been on regular basis though  as temporary  from the  initial stage.  By the impugned letter  dated March,  27, 1991  the appellants were informed that their regularisation were hereby cancelled and that the  resultant vacancies  would be  reported to the SSC for sponsoring  candidates for  regular appointment  as LDCs and that  the appointment  of the  appellants as ad hoc LDCs would be  terminated as  and when  the nominees from the SSC reported for duty. This letter certainly came as a bolt from blue for the appellants.      The appellants  approached the Tribunal challenging the action of  the respondent.  They were, however, unsuccessful though it would appear that during the period the matter was pending  before   the  Tribunal   they  continued  in  their position. When  the matter  came  before  this  Court  while granting leave  status quo was ordered to be maintained. The appellants are continuing in service. We are told if, in the meanwhile, any  candidate for appointment to the post of LDC in the hospital was sponsored by the SSC.      Be that  as it  may. The  question that  arises for our consideration is: if the appellants were appointed on ad hoc basis from the start and if not were the orders regularising their services  necessary. We  have seen that recruitment to the LDCs  in the hospital is governed by the statutory rules framed by  the Central  Government under  proviso to Article 309 of  the Constitution. It is nobody’s case the appellants did not fulfil the requisite qualifications or that they did not qualify  the typing  test with  the speed  30 w.p.m.  as required by  the rules.  It is  also not  disputed that  the appellants  were  selected  after  they  had  undergone  the process of  selection by  the Selection Board. It is correct that by  subsequent Government resolution the test was to be conducted by  SSC and  so also  selection for appointment to the post  of LDC. We need not go into the question if in the existence of  the statutory  rules could  they be amended to the extent  the certain  functions were left to be performed by SSC  and not  by the  DPC. It  is not  that the SSC could prescribe any  qualifications different than that prescribed in the  recruitment rules  for appointment  to the  post  of LDCs. The  fact, however,  remains that  when  the  hospital authorities approached the SSC it expressed its inability to conduct the  test and  select candidates  for appointment to the post  of LDCs  in the hospital and rather told them that the authorities could themselves make arrangement to fill up the vacancies  through other  authorised channels  if it was urgent. SSC  did not  say that the authorities could fill up the vacancies on ad hoc basis only till such time candidates sponsored by  SSC were  made available  to the  hospital. In pursuance to  the communication  received from  the SSC  the hospital authorities  asked the local employment exchange to sponsor candidates  and at  the same  time issued a circular allowing the  eligible departmental  candidates to apply for

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the post  of LDCs.  Posts were in existence. The authorities fell  back   on  the   recruitment  rules,   conducted   the examination,   found    the   appellants   to   fulfil   the qualifications and  the selected  them by  duly  constituted DPC. The  respondents have  neither stated  nor contradicted that the  selection of  the appellants was not in conformity with the  recruitment rules.  That being so well fail to see why the  order of  May 19, 1985 regularising the services of ad hoc  LDCs including  the  petitioners  should  have  been cancelled on technical ground five years after they had been regularised and absorbed in the cadre.      In Rabinarayan  Mohapatra vs. State of Orissa and other (1991)  2   SCC  599   this  Court   was   considering   the applicability of  Section 3  of the Orissa Aided Educational Institutions (Appointment  of Teachers Validation) Act, 1989 (Validation  Act,  for  short).  The  High  Court  held  the provisions  of   Section  3   were  not  applicable  to  the appellant. the  appellant had been appointed a Hindi teacher in a Government aided school for a period of 89 days or till a candidate  selected by  the State Selection Board was made available. The  appellant joined the school on July 12, 1982 and his  appointment was  made  by  the  District  Inspector (Schools) on the recommendation of the managing committee of the school.  He continued  to serve the school with repeated spells of  89 days-appointments and one day break in between the spell, till May 25, 1986. The appellant was not paid the salary for  the period  of summer vacations during all these years. Although  the appellant continued to serve the school to-date under  orders of  the  managing  committee  yet  his appointment  had   not  been  approved  by  the  educational authorities. It is not necessary for us to set out Section 3 of the Validation Act as mentioned above. The Court observed that the  appellant was  appointed on  July 12, 1982 and had been working with the approval of the authorities for almost four years with the breaks. He was still serving the school. The Court  said that  the High  Court erred  in denying  the benefit of the Validation Act to the appellant on the ground that his  initial appointment for 89 days was conditioned by the stipulation  that he would continue unless replaced by a candidate from  the select  list. The  Court set  aside  the judgment of  the High  Court and directed that the appellant be treated as regularly appointed teacher in the school with effect from  July, 12,  1982 and  entitled  to  his  salary, including the  salary for  summer vacations and other breaks which must be taken as non est, from the date of his regular appointment i.e. July 12, 1982.      In H.C.  Puttaswamy and  other vs.  The  Hon’ble  Chief Justice of  Karnataka High  Court, Bangalore  and other 1991 Supp (2)  SCC 421  appointments to the posts of typists were made by  the Chief Justice of the High Court of Karnataka in contravention of the provisions of the Karnataka Subordinate Courts (Ministerial and other Posts) Recruitment Rules, 1977 under which  power to make selection was vested in the State Public Service  Commission. The selection was required to be made by  written test  followed by interview. The appointing authority was  District Judge  of  the  particular  district where appointments were to be made. In a writ petition filed by certain  candidates the High Court of Karnataka set aside the appointments  being violative  for Articles 14 and 16(1) of the Constitution. This Court agreed that the appointments made by  the Chief Justice of the High Court were not legal. This Court  further  found  that  the  candidates  had  been working for  over 10 years and they possessed qualifications more than  that was the requirement under the Rules. Some of the candidates even earned higher qualification during their

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service and some were promoted to higher cadre as well. They were now  overaged for  entry into  any other  service. This Court  observed:   "One  could  only  imagine  their  untold miseries and  of their  family if  they are left at the mid- stream. Indeed,  it would be an act of cruelty at this stage to ask  them to  appear for written test and viva voce to be conducted  by   the  Public  Service  Commission  for  fresh selection." The  Court also  referred to  certain precedents where on  equitable considerations  this Court  did not  set aside the  appointments even  though the  selection  of  the candidates was  held to  be illegal  and unsupportable.  The Court said: "The precedents apart, the circumstances of this case  justify  an  humanitarian  approach  and  indeed,  the appellants seem  to deserve  justice ruled  by  mercy."  The Court, therefore,  directed that  the candidates  should  be treated to  be regularly  appointed with all the benefits of the past service.      In Baleshwar  Dass &  Ors. vs.  State of  U.P.  &  Ors. [(1980) 4  SCC 226],  this Court  while  examining,  in  the context of  the case  before it, as to what is a substantive capacity vis-a-vis  an appointment  to a  post, observed  as under:      "If a  public servant  serves for a      decade with  distinction in  a post      known to  be not  a casual  vacancy      but a  regular post, experimentally      or  otherwise   kept  as  temporary      under       the        time-hooured      classification, can  it be that his      long  officiation  turns  to  ashes      like a  Dead Sea fruit because of a      label and  his counterpart equal in      all functional  respects  but  with      ten years  less of service steals a      march   over    him   because   his      recruitment  is   to  a   permanent      vacancy"  We   cannot  anathematize      officiation   unless    there   are      reasonable   differentiations   and      limitations."      We are  also aware  of the  decision of this Court that there cannot  be any  claim for  regularisation  for  having worked for  a number  of years if the regularisation was not in accordance  with the rules. That is not so here. As noted above  in   the  present  case  appointments  were  made  in accordance with  the Rules which appointments have continued for a  number of  years and  cannot be  treated as ad hoc of fortuitous.      Accordingly, the  appeal  is  allowed,  impugned  order dated August  4, 1995  of the  Tribunal is  set aside and OA filed by  the appellants  is allowed  to the extent that the officer order dated March 17, 1991 is set aside.