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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: S.K. BHARGAWA

DATE OF JUDGMENT:       08/07/1997

BENCH: SUJATA V. MANOHAR, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT: Present:                 Hon’ble Mrs.Justice SuJata V.Manohar                 Hen’ble Mr.Justice V.N.Khare Mr.N.N.Goswami,  Sr.Advocate,   Mr.S.Wasim  A   Qadri,   and Mr.A.K.Sharma, Advocates with him for the appellant. Mr.R.P.Gupta, Advocate for the respondent.                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T MRS. SUJATA V. MANOHAR, J.      The  respondent  was  appointed  as  Assistant  Medical Officer in  the Railways  on ad  hoc basis in 1986. His case along with  the case  of  other  ad  hoc  Assistant  Medical Officers was referred to the Union Public Service Commission for the purpose of regularisation. The Commission, after the scrutiny  of  the  confidential  Service  record  and  after conducting an  interview,  has  rejected  the  case  of  the respondent for  regularisation. The Tribunal however, by its order (dated  3rd November,  1992 has directed that the case of the   respondent should be considered de novo only on the basis of  his service  record   and he should be retained in service if  found fit  on a regular basis. Hence the present appeal.      The case  of the  respondent is  squarely covered  by a decision of  this Court  in Union of India & Ors. v. Dr.Gyan Prakash Singh (1994 Suppl. (l) SCC 306) where this Court has laid down that the decision of this Court in Dr. A.K. Jain & Ors. v.  Union of  India &  Ors. [(1988)  1  SCR  335)  only applies to ad hoc Assistant Medical Officers appointed prior to 1st  October, 1984.  The  Court  further  held  that  the respondent in  that case who was appointed 1st October, 1984 was found  unfit by  the Union Public Service Commission and hence could  not be  regularised. The  facts of  the present case are  similar to  those in the Case of Union of India v. Gyan Prakash  Singh(supra). The  respondent was appointed on ad hoc  basis much  after 1st  October, 1984.  He was  found unfit  for   regularisation  by  the  Union  Public  Service Commission. Hence  the appellant  has correctly  declined to continue him.      We have  seen the  counter affidavit  of the respondent

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and the  documents annexed.  The letter of appointment dated 8.7.1995 pertaining  to the  respondent  has  been  produced before us.  The letter  sets out that the appointment of the respondent will  be purely  temporary on  ad hoc basis for a period of six months or till the respondent is replaced by a candidate selected  by the  Union Public Service Commission, whichever  is   earlier.  The  letter  further  provides  as follows:-      "In   case    your   services   are      continued on  ad hoc  basis  beyond      six  months   due  to  shortage  of      candidates duly  selected by UPSC ,      and if  you fail to get selected in      the           selection/Competitive      examinations held  by the  UPSC  on      three successive  occasions  or  do      not   avail    of   three   chances      successively, your service shall be      terminated."      Pursuant to  this appointment letter the respondent was appointed as  Assistant Medical Officer on ad hoc basis with effect from  9.1.1986. The appellant has filed an additional affidavit which  sets out  that the  respondent did not make use of any of the chances available to him. The Union Public Service Commission  had conducted  competitive  examinations every year.  The particulars of these examinations are given in the  said affidavit  of Ashok  Bhandari,  Joint  Director Estt.(Gaz), Railway  Board, New  Delhi dated  9th of  April, 1996. It sets out, inter alia, that the Union Public Service Commission notified  Combined Medical  Services  Examination (CMSE) 1986  on 12.10.1985. The written examination was held on 6.4.1986  and interviews  were held  during the months of October-November 1986.  The results  were declared on 4.3.87 CMSE 1987  was notified  by the  UPSC on  11.10.86 for which written examination was held on 5.4.1987 and interviews were held during  October-November 1987  and final  results  were declared on  14.31988. CMSE  1988 was  notified by  UPSC  on 19.987. Written  examination was  held on  28.2.88  and  the interviews were  held in October-November 1988 and the final results were declared on 5.12.1988. Similar examinations had been held every year thereafter in 1989,1990 and 1992 and so on. The respondent did not avail of three successive chances and more to get himself qualified through these examinations for his  regular appointment.  Apart from  these competitive examinations  a  special  selection  for  regularisation  of existing ad  hoc  doctors  of  the  railways  who  had  been appointed after  1.10.84, was  conducted by the Union Public Service Commission.  He was, however, not found suitable for regularisation by  the Union  Public Service Commission and, therefore, the  services of  the respondent were terminated. Thus the termination of the respondent is in accordance with the terms  of his appointment as also the ratio laid down by this court  in the  case of  Union Of  India v. Gyan Prakash Singh(supra).      The respondent  has relied upon the order of this Court in the  case Union  of India  v. S.K.  Rajan dated 23.8.1993 (S.C.Agrawal and  Sahai JJ.)  in SLP No. 10807/93 dismissing the SLP  7318/95 and Ca 7471/94 respectively. The two latter orders have  relied upon  the dismissal  of SLP  in Union of India v.  S.K. Rajan  (supra) which  was against  the  order passed by  the Madras  Bench of  the Central  Administrative Tribunal came  to the conclusion, after nothing the terms of the appointment  letter, that  the applicant  there was  not given three successive chances in the selection conducted by the UPSC.  Hence he  should not be discontinued unless he is

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given these  three successive  chances and fails to qualify. The ratio  of that decision will not have any application to the present  case in  View of the facts already set out. The three orders of dismissal of SLPS/CAs of this Court are non- speaking orders. Presumably, looking to the reasoning of the Tribunal in  the  orders  impugned  in  those  cases,  three chances were  not given  to the  ad  hoc  Assistant  Medical Officers before  termination of  service as set out in their appointment letters.  The present  case is not of that type. The termination  of the  respondent is  in a accordance with the terms  of his  letter of appointment and is based on his failure to qualify for regularisation as per his appointment letter and  also in  the special  selection.  His  case  is, therefore, covered  by the  ratio of  this Court in Union of India v. Gyan Parkash Singh (supra).      The   respondent   has   also   relied   upon   certain observations in  the case  of Dr.  A.K Jain and Ors. (supra) relating  to  the  discharge  of  ad  hoc  medical  officers appointed after 1.10.1984 . In view of the clear findings of this Court  in the  case of  Gyan Prakash Singh (supra), the observations made  therein cannot be pressed into service in the present  case. An  ad hoc officer who has not availed of three successive chances for regularisation and has not been found suitable  for regularisation in a special selection by the Union  Public Service  Commission Can  be  removed  from service.      The appeal  is,  therefore  allowed  and  the  impugned judgment and order is set aside. In the circumstances of the case there will be no order as to costs.