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PETITIONER: HINDUSTAN SHIPYARD LTD. & ORS.

       Vs.

RESPONDENT: DR. P. SAMBASIVA RAO ETC.

DATE OF JUDGMENT:       30/01/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J)

CITATION:  JT 1996 (2)   481        1996 SCALE  (1)639

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 3940 OF 1994 Hindustan Shipyard Ltd. V. Dr. S.Prasada Rao J U D G M E N T S.C. AGRAWAL, J.:      These  appeals   raise  common  questions  relating  to regularization  of   three  medical   officers  (respondents herein)  working   with  the   Hindustan  Shipyard   Limited (hereinafter referred to as ’the appellant-corporation).      Dr. P.  Sambasiva Rao  obtained the  M.B.B.S. degree in 1975 and  he was  appointed as  a  medical  officer  in  the appellant-corporation on  October 29,  1975 on an honorarium of Rs.  600/- per  month to  work in  the dispensary  in the colony/first aid  center in  the yard.  The said appointment was continued  till February 27, 1985 with artificial breaks of one  day after  each appointment for 89 days. During this period a  selection was  made for regular appointment on two posts of  medical officer  in 1980-81.  Dr. P. Sambasiva Rao was not  considered eligible  for such selection on the view that for  the purpose  of eligibility  the applicant  should have obtained  the degree  in medicine  by 1974  and Dr.  P. Sambasiva Rao  had obtained  his medical  degree in the year 1975. He  filed a  writ petition  (W.P. No. 2058 of 1981) in the Andhra  Pradesh High  Court wherein  he sought a writ or direction declaring that he was entitled for absorption into the post of medical officer in the appellant-corporation. In the said  writ petition,  the learned  counsel appearing for the appellant-corporation  gave an  undertaking  before  the Court that Dr. P. Sambasiva Rao would be treated as eligible for selection  and he  was called for interview on March 12, 1981 but  he was not selected and he continued to work on ad hoc basis.  The last  appointment given  to Dr. P. Sambasiva Rao was  on December 4, 1984 for the period December 5, 1984 to February  27, 1985.  Dr. P.  Sambasiva Rao  fell ill  and

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applied for  leave from  March 1 1985 but he was informed on June 5,  1985 that his appointment was an ad hoc appointment which expired  on February  27,  1985  and,  therefore,  the question of  sanctioning leave  after February  27, 1985 did not arise.  Feeling aggrieved  by  the  termination  of  his services with effect from February 27, 1985, Dr. P.Sambasiva Rao filed  a writ  petition (W.P.  No. 9844  of 1985) in the Andhra Pradesh  High Court  wherein he  sought a declaration that the  order dated  June 6, 1985 terminating his services with effect from February 27, 1985 was arbitrary and illegal and also sought a declaration that he should be deemed to be continuing   in   service   of   the   appellant-corporation continuously. Both the Writ Petitions (W.P. No. 2058 of 1981 and W.P.  No. 9844  of 1985)  were disposed  of by a learned single Judge  of the  High Court (Anjaneyulu J.) by judgment dated February  28, 1986. Allowing W.P. No. 9844 of 1985 and quashing the  order dated  June 6,  1985, the learned single Judge held  that the  said order effectively dispensing with the services  of Dr. P. Sambasiva Rao with effect from March 1, 1985  was extremely  arbitrary and  unreasonable and  was violative of  Article 14  of the Constitution. The appellant corporation was  directed to  reinstate Dr. P. Sambasiva Rao forthwith and  consider him for appointment on regular basis at  the   earliest.  The   appellant  corporation  was  also directed to  put Dr.  P. Sambasiva Rao on a reasonable scale of pay.  In view  of the  orders passed  in W.P. No. 9844 of 1985, the learned single Judge did not consider necessary to pass  further   orders  in   W.P.  No.  2058  of  1981.  The appellant-corporation filed  W.A. No.  281 of  1986 and W.A. No. 282  of 1986  against the  said decision  of the learned single Judge in these two writ petitions.      While the  said appeals  were pending. Dr. P. Sambasiva Rao filed two writ petitions (W.P. Nos. 4337 of 1989 and 585 of 1989).  In  writ  petition  No.  4337  of  1989,  Dr.  P. Sambasiva Rao  claimed seniority  in the category of medical officers, time  scale of  pay on  par with  regular medical] officers and  otter attendant benefits like employer’s share of  contributory   fund,  ex-gratia  amounts  etc.  In  writ petition No.  585 of  1?89, Dr.  P.  Sambasiva  Rao  claimed allotment   of residential quarter and also allowance at the rate of  Rs. 400/-  per month  since April  1, 1986  and  to finalize his leave account.      Dr.  J.  Sanjeeva  Kumar  passed  the  M.B.B.S.  degree examination in 1981 and he joined the appellant-corporation as medical officer on July 16, 1985 on an initial pay of Rs. 35/- per day. The said appointment was for 89 days each time with a  break of one day, i.e., 90th day and on the 91st day he was  reappointed. The  said remuneration  was raised from Rs. 35/-  per day to Rs. 50/- per day with effect from April 27, 1987.  He filed  a writ petition (W.P. No. 9987 of 1990) in  the   Andhra  Pradesh   High  Court  wherein  he  sought regularisation of  his services with effect from the initial date of  appointment, i.e.,  July 16, 1985 and also sought a direction to  the appellant-corporation  to pay  salary  and allowances on  par with the regular medical officers working in the appellant-corporation with effect from July 16, 1985. In the  said writ petition the case of Dr. J. Sanjeeva Kumar was that he had been working for six hours every day through out the  period of  five years  and though  the remuneration which was  being paid to him was described as honorarium, he was discharging  his duties  as medical  officer like  other medical officers  working with the appellant-corporation and that  regular   medical  officers  in  the  service  of  the appellant-corporation who  were also  discharging  the  same duties were  receiving salary  in the time scale of Rs. 960-

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50-1860 plus  other allowances. The said writ petition (W.P. No. 9987  of 1990)  of Dr.  J. Sanjeeva Kumar was allowed by learned single  Judge of  the High Court (Panduranga Rao J.) by  judgment   dated  April  11,  1990  and  the  appellant- corporation was  directed to  regularize the services of Dr. J. Sanjeeva  Kumar in  the category of medical officers with effect from  July 16,  1985 and to pay to him the salary and other  allowances  on  par  with  regular  medical  officers working with  the appellant-corporation  from July 13, 1990, the date on which the writ petition was presented before the High Court.  The  regularisation  of  the  services  of  Dr. Sanjeeva Kumar  from July  16, 1985 to the date of filing of the writ  petition  was  limited  for  the  purpose  of  the pensionary benefits  only and for claiming any seniority and that the  pay was  directed to be fixed in the initial stage of medical  officers on and from July 13, 1990. W A. No. 944 of 1991  was filed  by the appellant-corporation against the said judgment  of the  learned single Judge in W.P. No. 9987 of 1990.      W.A. Nos.  221 &  282 of  1986 and 944 of 1991 filed by the  appellant-corporation  against  the  judgments  of  the learned single  Judges in  the  writ  petitions  of  Dr.  P. Sambasiva Rao  and Dr.  J. Sanjeeva  Kumar as  well as  writ petitions Nos.  4337 of 1989 and 585 of 1985 filed by Dr. P. Sambasiva Rao,  were heard  by the  Division  Bench  of  the Andhra Pradesh  High Court  and decided by a common judgment dated February 2, 1993. The learned Judges observed that the fact  that Dr. P. Sambasiva Rao was working with effect from October 29,  1976 and Dr. J. Sanjeeva Kumar with effect from July   16, 1985  on honorarium was not disputed and that the appellant-corporation had  not stated  that the  services of these two  medical officers were not satisfactory and it was also   not brought to the notice of the court that there was any   complaint  against  the  said  medical  officers.  The learned Judges  also observed  that both  these persons were eligible   for appointment  and  they  were  also  qualified according to  rules and  there was  no complaint  about  the satisfactory   nature of  the service  and it  was also  not disputed that  their   appointment on regular basis does not run counter to the reservation policy and, therefore, it was held that  the direction  given by the learned single Judges in both  the  cases  directing  the  regularisation  of  the services of these  two medical officers fell within the four corners of  the law   laid  down by  this Court  in State of Haryana v.  Piara   Singh, 1992 (4) SCC 118. It was directed that the  services   of Dr.  P. Sambasiva Rao be regularised with effect from April 1, 1986 in a regular scale of pay and he would  be entitled  for two advance increments in view of the long  spell of   temporary  service he had put in and he would also  be   provided with official accommodation within six months   otherwise  he would  be given  allowance as per rules.   Similarly, with regard to Dr. J. Sanjeeva Kumar, it was held  that he was entitled to be regularised with effect from April  1, 1986  and be given two advance increments and official     accommodation  within  six  months  or  in  the alternative   allowance as  per rules.  It was  further held that both  these   medical officers were not entitled to any other benefits  like seniority,  promotion, etc.  as  sought for.      Dr. S.  Prasada Rao was originally appointed as medical officer with  the appellant-corporation on September 1, 1984 on daily  wage basis  @  Rs.  35/-  per  day  and  the  said remuneration was  increased to  Rs. 50/-  per day from April 20, 1987.  He filed a writ petition (W.P. No. 12648 of 1990) in the  Andhra Pradesh High Court claiming regularisation of

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his services in the category of medical officers with effect from the date of his initial appointment, i.e., September 1, 1984 and also sought a direction regarding payment of salary and other  allowances on  par with  regular medical officers working  in   the  appellant-corporation  with  effect  from September 1,  1984. The said writ petition of Dr. S. Prasada Rao was  allowed by  the learned  single Judge  of the  High Court (Jagannadha  Raju J.)  by judgment dated September 18, 1991 and  it   was directed  that the  services  of  Dr.  S. Prasada Rao  shall  be  regularised  with  effect  from  his original date  of appointment,  i.e., September  1, 1984, as regular medical  officer and  that he would also be entitled to the consequent benefits. W.A. No. 1318 of 1991 was  filed in by the appellant-corporation against the said judgment of the learned single Judge. The said appeal was disposed of by another Division  Bench of  the Andhra Pradesh High Court by judgment dated  September 8,  1993.  Following  the  earlier judgment of the Division Bench in W.A. No. 944 of 1991 filed by the  appellant-corporation in the case of Dr. J. Sanjeeva Kumar, the Division Bench treating Dr. S. Prasada Rao on par with Dr.  J. Sanjeeva Kumar disposed of the said appeal with the direction  that services  of Dr. S. Prasada Rao would be regularised with  effect from   April  1, 1986 and he should also  be   given  two   advance  increments   and   official accommodation  within six months.      Feeling aggrieved  by the  aforesaid decisions  of  the Andhra Pradesh  High Court,  the  appellant-corporation  has filed these appeals.      Shri Ram  Kumar, the  learned counsel appearing for the appellant-corporation, has  placed before us the Recruitment Rules framed  by the  appellant-corporation for  appointment against  regular/temporary  posts  in  connection  with  the affairs  of  the  company  including  the  post  of  Medical Officer. Under  the said  Rules, direct recruitment is to be resorted to  when the  post  is  not  to  be  filled  in  by promotion as per the promotion procedure. For the purpose of direct recruitment,  the  Rules  provide  that  normally  an advertisement is  issued in  leading daily newspapers on all India  basis   to  tap  the  potential  available  from  the employment  market,  but  simultaneously  other  sources  of recruitment are  also tapped  and  where  the  job  required exceptional skills,  knowledge and experience, which are not normally available  in the  employment market, the competent authority may  decide to  fill up  the post on deputation of officers from the Central/State Governments and other public sector undertakings.  The Rules make provision for screening of applications  received in  response to advertisements and preparation of  a list  of candidates  who may be called for interview before  the Selection Committee. The Rules provide through one or all the following selection methods :      i) Competitive, Aptitude/Technical lest;      ii) Group task; and      iii) Personal lnterview.      The recommendations  of  the  Selection  Committee  are submitted to  the competent authority for approval and after obtaining  the   approval   of   the   competent   authority appointment orders are issued.      The submission  of  Shri  Ram  Kumar  is  that  regular appointment on  the post of Medical Officer can only be made through a process of selection by the Selection Committee in accordance with  the aforementioned Rules and the High Court was in  error in  directing regularisation  of all the three medical officers  with effect  from April  1,  1986  without their being  required to  undergo selection by the Selection committee. On behalf of the respondents-medical officers, it

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has been  urged that having regard to the fact that they had been working  as medical  officers for a number of years and there was  no complaint  about their performance during this period, the High Court was justified in giving the direction for their  regularisation with effect from April 1, 1986 and for payment  of regular  salary at  par with  other  medical officers with  effect from  that  date.  It  has  also  been submitted on behalf of the respondents-medical officers that after 1984  no regular  selection  has  been  made  and  the respondents-medical officers  had no  opportunity  of  being considered for  regular selection by the Selection Committee and that  in these  circumstances the  High  Court  has  not committed  any  error  in  giving  the  direction  regarding regularisation. The learned counsel for the respondents have placed reliance  on the  decisions of this Court in Dr. A.K. Jain & Ors. v. Union of India & Ors., 1987 Supp. SCC 497.      We are  unable to  endorse the  direction given  by the High  Court  regarding  regularisation  of  the  respondents medical officers with effect from April 1, 1986. The process of regularisation  involves regular appointment which can be done only  in  accordance  with  the  prescribed  procedure. Having regard  to the  rules which  have been  made  by  the appellant-corporation, regular  appointment on  the post  of medical officer  can only be made after the duly constituted Selection Committee  has found  the person suitable for such appointment. Dr.  P.  Sambasiva  Rao,  though  he  had  been working  since   1976,  was   considered  by  the  selection Committee for  regular appointment  in the year 1981 and was not found  suitable for  such regular  appointment.  Dr.  J. Sanjeeva Kumar  and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no  regular  selection    has  been  made  after  their appointment on  ad hoc  basis does  not mean  that they  are entitled to  be regularised with effect  from April 1, 1986. In  view   of  the  Rules  prescribed  by  the    appellant- corporation,  regularisation   of  the   respondent  medical officers on  the post  of medical  officer can be made  only after they  are  considered  and  found  suitable  for  such appointment by  a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee  for the  purpose of regular appointment on   the post  of medical  officer has  been dispensed with. This, in our opinion, was impermissible.      The decision in Dr. A.K. Jain & Ors. v. Union  of India & Ors.  (supra), on which reliance has been placed on behalf of  the  respondent-medical  officers,  does  not  lend  any assistance to  them. In  that case  it was directed that the regularisation of  the Assistant  Medical Officers/Assistant Divisional Medical  Officers who  were appointed  on ad  hoc basis upto  October 1,  1984 shall  be made  in consultation with   the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in  respect of  a period  subsequent to  October  1, 1982. In Dr.M.A. Haque & Ors. v. Union of India & Ors. 1993, ( 2  )   SCC 213,  this Court has deprecated the practice of bypassing of  the Public Service Commission which would open a back  door for  illegal) recruitment  without  limit.  The direction given  by the  High  Court  that  the  respondent- medical officers  should be  regularised  with  effect  from April  1,  1986  cannot,  therefore,  be  upheld.  The  only direction that  can be given in the matter of regularisation is that the respondent medical officers should be considered by a  duly constituted  Selection Committee as per the Rules for the  purpose of  regular  appointment  on  the  post  of

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medical  officer   and  the   appellant-corporation   should constitute a Selection Committee for that purpose.      We are,  however, not  inclined to  interfere with  the direction given by the High Court for payment of regular pay scales to  the respondent-medical  officers with effect from April 1, 1986.      The appeals  are accordingly allowed to the extent that the direction  given by the High Court for regularisation of the respondent-medical  officers with  effect from  April 1, 1986 is  set aside. The appellant-corporation is directed to constitute a  Selection Committee  in  accordance  with  the relevant Rules  for considering the matter of regularisation of the  respondent-medical officers  on the  post of medical officer. The  said Selection  Committee shall  consider  the claim  of   the   respondent-medical   officers   for   such regularisation  by  applying  the  criteria  laid  down  for appointment of  medical officers  on regular  basis  and  it shall also  take into   account the record of performance of the respondent-medical  officers while  they were working on ad hoc  basis with  the appellant-corporation.  In case, the respondent-medical officers  are found  to have  crossed the age bar  for regular appointment a relaxation should be made in  that   regard  to  enable  them  to  be  considered  for regularisation. This  process of  selection by the Selection Committee  for   the  purpose   of  regularisation   of  the respondent-medical  officers   shall   be   undertaken   and completed within  a period  of three months. No orders as to costs.