ORIGINAL JURISDICTION: Interlocutory Application No. 1 of 1992.
IN Writ Petition No. 1165 of 1986. (Under Article 32 of the Constitution of India). M.C. Bhandare, P.P. Rao, N.N. Goswamy, C.K Sucharita, Ms. Shashi Kiran, Ms. Manjula Gupta, R. Shashi Prabhu, V.K. Verma and Raj Kumar Gupta for P.C. Kapur for the appearing parties. The Judgment of the Court was delivered by SAWANT, J. The petitioner-applicants are some of the Medical Officers who were recruited by the Railways on ,id hoc basis as Assistant Divisional Medical Officers between 1968 and 1st October, 1984. They were appointed as such ad hoc employees by way of a stop-gap arrangement pending the regular recruitment to the said posts through the Union Public Service Commission [UPSC’ for short], according to the rules. It appears that although from time to time the UPSC recruited candidates on regular basis, there remained some vacancies unfilled, either because the doctors recruited were less in number than the number of vacancies since suitable candidates were not available or some of those who were selected did not join the service or between the date of advertisement by the UPSC and that of the empanelling, some more vacancies occurred. Whatever the reasons, the fact was that even after the UPSC undertook the exercise of recruiting the doctors from time to time, some vacancies always remained unfilled. The result was that every time the petitioner-applicants and others like them were continued on ad hoc basis as a stop-gap arrangement till the next recruitment by the UPSC. It may be mentioned in this connection that the ad hoc appointees were always at liberty to appear before the UPSC for their regular recruitment. Some of them in fact did so appear and were selected; others like the petitioner-applicants either failed to be selected or did not care to appear. The fact, however, remains that the petitioner-applicants and others like them continued to serve on ad hoc basis since 1968. Hence they filed writ petitions in this Court for their regularisation in service. By an order dated 24th September, 1987 passed in the case of Dr. A.K Jain & Ors. etc. etc. v. Union of India & Ors., [1987] Supp. SCC 497 at 500 this court directed as follows:
"(1) The services of all doctors appointed
either as Assistant Medical Officers or as
Assistant Divisional Medical Officers on ad
hoc basis up to October 1, 1984 shall be
regularised 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. Such
evaluation shall be done by the Union Public
Service Commission. The doctors so
regularised shall be appointed as Assistant
Divisional Medical Officers with effect from
the date from which they have been
continuously working as Assistant Medical
Officer/Assistant Divisional Medical Officer.
The Railway shall be at liberty to terminat e
the services of those who are not so
regularised. If the services of any of the
petitioners appointed prior to October 1, 1984
have been terminated except on resignation or
on disciplinary grounds, he shall be also
considered for regularisation and if found fit
his services shall be regularised as if there
was not break in the continuity of service but
without any back wages.
(2) The petitions of the Assistant Medical
Officers/Assistant Divisional Medical Officers
appointed subsequent to October 1, 1984 are
dismissed. But we however direct that the
Assistant Divisional Medical Officers who may
have been now selected by the Union Public
Service Commission shall first be posted to
the vacant posts available wherever they may
be. If all those selected by the UPSC cannot
be accommodated against the available vacant
posts they may be posted to the posts now held
by the doctors appointed on ad hoc basis
subsequent to October 1, 1984 and on such
posting the doctor holding the post on ad hoc
basis shall vacate the same. While making
such postings the principle of ’last come,
first go’ shall be
observed by the Railways on zonal basis. If
any doctor who is- displaced pursuant to the
above direction is willing to serve in any
other. zone where there is a vacancy he may be
accommodated on ad hoc basis in such vacancy.
(3) All Assistant Medical Officers/Assistant
Divisional Medical Officers working on ad hoc
basis shall be paid the same Wary and
allowances as Assistant Divisional Medical
Officers on the revised scale with effect from
January 1, 1986. The arrears shall be paid
within four months.
(4) No ad hoc Assistant Medical
Officer/Assistant Divisional Medical Officer
who may be working in the Railways shall be
replaced by any newly appointed AMO/ADMO on ad
hoc basis. Whenever there is need for the
appointment of any AMO/ADMOs on ad hoc basis
in any zone the existing ad hoc AMO/ADMOs who
are likely to be replaced by regularly
appointed candidates shall be given
preference.
(5) If the ad hoc doctors appointed after
October 1, 1984 apply for selection by the
Union Public Service Commission the Union of
India and the Railways Department shall grant
relaxation in age, to the extent of the period
of service rendered by them as ad hoc doctors
in the Railways.
All the Writ Petitions are disposed of in the
above terms." It appears that since they experienced difficulty in adjusting the seniority of the petitioner-applicants the Union of India moved an application before this Court and this court on 1st November, 1988 made the following order in that application:
"We have heard learned counsel for the Union
of India (the applicant in this Civil
Miscellaneous Petition) and the learned
counsel for the petitioners in the Writ
Petition. In the circumstances of the case we
feel that the Union
Government should be directed to implement the
order passed by us in the writ petition Nos.
522, 875, 180 & 200 of 1987 and connected
cases on 24th September, 1987 in full except
to the extent of fixing the inter-se seniority
between the petitioners in the Writ Petition
and the direct recruits. We accordingly make
an order in this case. The question of
seniority, however, is left to be decided by
the Government in the light of the decision to
be rendered by this Court in the cases which
are pending before the Constitution Bench
involving similar questions. If any person is
aggrieved by the decision of the Government on
the question of seniority he is at liberty to
question it in an appropriate forum. The
order passed by us in the Writ Petition
subject to the above modification shall be
complied with by the Union Government within
two months without failure.
The Civil Miscellaneous Petition is disposed
of accordingly." The present application has been moved in Writ Petition No. 1165 of 1986 which has been disposed of on 24th September, 1987 along with other writ petitions in which also the aforesaid order of 1st November, 1988 was made by this Court. Thus we are concerned in this application with those Assistant. Divisional Medical Officers who were appointed between 1968 and 1st October, 1984 and who have been regularised by the aforesaid two orders but whose seniority remains to be fixed. After the order of 1st November, 1988, the Constitution Bench of this Court delivered its judgment in Direct Recruit Class II Engineering Officers’ Association & Ors. v. State of Maharashtra & Ors., [1990] 2 SCC 715 pending’ which decision the fixation of seniority of the petitionerapplicants was kept pending. In that case the Constitution Bench has laid down certain guidelines for fixing the seniority. Two of them, viz., (A) & (B), which are relevant for our purpose are as follows: "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B)If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." Before we discuss as to which of the above two guidelines would be applicable in this case, it is necessary to state the relevant facts relating to the applicants’ appointment. Firstly, it is an admitted fact that the UPSC introduced the Combined Medical Services Examination for the first time in the year 1977. Prior to 1977, the method of recruitment was otherwise than by examination. As stated earlier, some of the petitioner-applicants were recruited between 1968 and 1977. Secondly, the petitioner-applicants were given three chances for their selection through the UPSC but they did not avail of them. Some of those who were appointed with them, however, had availed of the chances and have been appointed as regular direct recruits and they have been given their seniority from the date they were regularly appointed through the UPSC. Thirdly, it appears that although in 1977 the written examination was introduced, on account of exigencies, the UPSC held two special selections in the years 1982 and 1985 based on interviews only and by relaxing the age limit. In these two special selections respectively 100 and 67 ad hoc doctors like the petitionerapplicants were selected and absorbed in the regular cadre. They have also been given their seniority from the date they were so absorbed regularly. The petitioner-applicants either failed to appear in these examinations also or after appearing in the same, had failed Thus, while fixing the seniority of the petitionerapplicants we have to keep in mind that there are three classes of Assistant Divisional Medical Officers (i) the outsiders who have been directly recruited through the UPSC either on the basis of the written examination or the interview; (ii) those who were ad hoc appointees like the applicants but who came to be regularly recruited through the UPSC by appearing in the written examination or in the interview; and (iii) the present petitioner-applicants who either did not appear in any written examination/interview or had failed to get through them but who have been regularised in service because of the orders of this Court dated 24th September, 1987 and 1st November, 1988. Since the petitioner-applicants are admittedly not regularly appointed through the UPSC according to the rules but have been directed to be regularised by following the procedure laid down by this Court it is obvious that they are not appointed to their posts according to the rules. Under no circumstances, therefore, they fall within the scope of guideline (A) laid down in Direct Recruit Class II Engineering Officers Association’s case (supra). In fact, they do not fall under guideline (B) given therein either, since their regularisation is not in accordance with the rules but as a consequence of special procedure laid down by this Court. The expression "in accordance with the rules’ or "according to rules" used in the said guidelines (A) and (B) means the rules of recruitment and not the special procedure laid down by this Court. The petitionerapplicants thus fall in an altogether different category not covered under any of the guidelines given in Direct Recruit Class II Engineering Officers’ Association’s case (supra). We have, therefore, to evolve a procedure for fixing their seniority. That procedure cannot be in violation of the guidelines laid down in Direct Recruit Class II Engineering Officers Association’s case (supra). Secondly, the seniority given to the petitioner-applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below that of the directly recruited erstwhile ad hoc Medical Officers This is not and cannot be disputed on behalf of the petitioner-applicants. This matter was heard earlier on 14th September, 1992 and was reserved for judgment. At that time, neither the inservice direct recruits nor the outsider direct recruits were made parties to the application. They made separate applications, being I.A. Nos. 2 and 3 respectively for impleadment/intervention and requested that they be heard in the matter before judgment is pronounced. Hence, this matter was set down for a fresh hearing and all the parties were heard on 11th and 18th January, 1993. The anxiety of the interveners, was obvious. In no case their seniority should be disturbed and they be penalised for passing the examinations/interview tests and for coming into the cadre according to the rules through the UPSC, and no premium should be given to the applicants for their refusal to appear for the tests or for their failure to pass the same. This contention of their is unexceptionable and whether they had appeared in the case or not, the Court was bound to protect their interests particularly when the matter was heard in their absence. The petitioner-applicants, however, relied upon a decision of this Court in Dr. P.P.C Rawani & Ors. etc v. Union of India & Ors., (JT 1991 (6) 534). Shri Bhandare, appearing for the petitioner-applicants, made a very fervent plea that in the circumstances, the course adopted by this Court in Dr. Rawani’s case (supra) should be followed which will do no injustice to both the categories of direct recruits. We have gone through the said decision and have anxiously considered whether the course adopted there should be adopted in the present case. We are conscious of the fact that the petitioner-applicants have been serving the Railways from the year 1968. It is also possible, as contended on their behalf that many of the outside direct recruits have joined the service long after 1968 and some of them might have even taken initial instructions from the petitioner-applicants. We are also conscious of the fact that candidates in service have a disadvantage as against the fresh candidates in the tests particularly when they face the tests after a long lapse of time. As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the Constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course. What is further, in the present case, some of those like the petitioner-applicants who were initially recruited on ad hoc basis, have exerted themselves and taken pains to appear for the tests before the UPSC and have enrolled themselves through regular channel unlike in Dr. Rawani’s case (supra). We have thus on hand three classes of employees as pointed out earlier, viz., the outside direct recruits, the in-service direct recruits and the ad hoc employees like the petitioner-applicants who were regularised through the Court’s order. Further, Dr. Rawani’s case (supra), as has been pointed out on behalf of the respondents, pertains to the Central Government Health Services which has a larger component both at the initial and promotional stages. The course adopted by this Court to direct creation of supernumerary promotional posts at every higher promotional stage there, may not be feasible in the medical service in the Railways. The creation of supernumerary posts has its own limitations, both physical and financial. The burden of additional posts even when they are not necessary and cannot be accommodated, is not easy to carry. We are, therefore, of the view that the direction given in Dr. Rawani’s case (supra) has to be confined to the special facts of that case and cannot be extended to other cases. In any case, this court should not give any such direction to the Railways. If, however, the Railways decide to follow that course, they can do so and nothing prevents them from doing it. We would rather refrain from creating a precedent by giving such directions. In the result, we direct that the seniority of the direct recruits both outsiders and insiders should be determined according to the dates of their regular appointment through the UPSC and the petitioner-applicants should be placed in the seniority list after those direct recruits who are recruited till this date. Among themselves, their seniority will be governed by the dates of their initial appointment. The interlocutory application is disposed of in the above terms. G.N. Application disposed of.