Supreme Court of India
DR. M.A. HAQUE AND ORS.versusUNION OF INDIA AND ORS.
- Citation
- 1993 INSC 58
- Decided
- 18 February 1993
- Disposal
- Disposed off
- Bench
- P B SAWANT
Holding
The petitioners’ seniority shall rank after all UPSC‑direct recruits and, among themselves, be based on the dates of their original ad‑hoc appointments.
Summary
The petitioners were appointed as Assistant Divisional Medical Officers on an ad‑hoc basis by the Railways between 1968 and 1 October 1984. Their services were later regularised by two Supreme Court orders (24 September 1987 and 1 November 1988). They then sought fixation of their seniority relative to doctors recruited directly through the UPSC. The Court held that because the petitioners were not appointed in accordance with the recruitment rules, the guidelines in Direct Recruit Class II Engineering Officers’ Association case did not apply to them. Consequently, their seniority must be placed below that of all direct recruits (both outsiders and in‑service recruits) and, among themselves, determined by the dates of their initial ad‑hoc appointments. The interlocutory application was disposed of with these directions.
Issues considered
- What procedure should be followed to fix the seniority of ad‑hoc medical officers regularised by court order?
- How should their seniority compare with that of doctors directly recruited through the UPSC?
Legislation cited
- Constitution of Indias. Article 309, s. Article 32
Subjects
seniorityregularisationad‑hoc appointmentpublic service commissionrecruitment rulesrailway medical officersconstitutional lawarticle 32article 309
Judgment
.-.I
DR. M.A. HAQUE AND ORS. A
v.
UNION OF INDIA AND ORS.
FEBRUARY 18, 1993
[P.B. SAWANT AND G.N. RAY, JJ.] B
Civil Services.•
Railways-Assistant Divisional Medical Officers-Ad-hoc appointees
between 1968 and 1984-Regularisation by Court's orders-{nter-se seniority- C
Fixing of-Directions-lssued.
The petitioner-applicants were recruited by the Railways on ad hoc
basis as Assistant Divisional Medical Officers between 1968 and 1984.
Though UPSC recruited candidates on regular basis from time to time,
either dne to non-availability of number of candidates or non-joining of D
selected candidates, vacancies remained and persons like the petitioners
continued in such vacancies on ad-hoc basis. The petitioners filed Writ
Petitions before this Court for regularisation of their services. By orders
of this Court, the services of the petitioners have already been regularised.
E
The present application is for fixing the seniority of the Writ
Petitioners whose services were regularised.
- Disposing of the application, thi.s Court,
HELD: 1. Since the petitioner-applicants are admittedly not regular- F
ly 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. U~er no circumstances, therefore, they fall within the scope
of guidelines in Direct Recmit Class II Engineering Officers' Association's G
case. The expression "in accordance with the rules" or "according to rules"
' .--I, used in the said guidelines means the rules of recruitment and not the
special procedure laid down by this Court. The petitioner-applicants thus
fall in an altogether different category. Therefore, a procedure for fixing
their seniority has to be evolved. That procedure cannot be in violation of
the guidelines laid down in Direct Recmit Class II Engineering Officers' H
1
2 SUPREME COURT REPORTS [1993] 2 S.C.R.
A Association's case. Further, 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. [8C-F]
Direct Recruit Class II Engineeri11g Officers' Association & Ors. v. State
B of MahOfOShtra & Ors., [1990] 2 SCC 715, referred to.
C
2.1. Of late this Court has 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 Commis-
sion. Since this Court has in some cases permitted ret,'lllarisation 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. [9E-G]
D
2.2. 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. There are
E three classes of employees 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. The direction given in Dr.
Rawa11i's case for creation of supernumerary posts bas 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,
F however, the Railways decide to follow that course, they can do so and
nothing prevents them from doing it. This Court would rather refrain from
creating a precedent by giving such directi9ns. [9G-H; lOA-D]
Dr. A.K Jain & Ors. etc. etc. v. Union of India & Ors. [1987] Supp.
G SCC 497 and Dr. P.P.C. Rawani & Ors etc. v. Union of India & Ors., JT 1991
(6) 534, referred to.
3. 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
H seniority list after those direct recruits who are recruited till date. Among
'
DR. HAQUE v. U.0.1. [SAWANT, J.] 3
themselves, their seniority will be governed by the dates of their initial A
appointment. (lOE]
ORIGINAL JURISDICTION: Interlocutory Application No. 1 of
1992.
IN B
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.
c
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
D
SAWANT, J. The petitioner-applicants are some of the Medical
Officers who were recruited by the Railways on ad hoc basis as Assistant
Divisional Medical Officers between 1968 and !st 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 E
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 F
.that of the empanelling, some more vacancies occurred. Whatever the
reasons, the fact was that even after the UPSC undertqok 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 G
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 he
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 H
(
4 SUPREME COURT REPORTS [1993) 2 S.C.R.
A 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 Assis-
B tant 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
c period subsequent to October 1, 1982. Such evaluation
shall be done by the Union Public Service Commission.
T,he doctors so regularised shall be appointed as Assistant
Divisional Medical Officers with effect from the date from '
"'.hich they have been continuously working as Assistant
Medical Officer/Assistant Divisional Medical Officer. The
D
Railway shall be at liberty. to terminate the services of
those who are not so regularised. If the services of any of
the petitioners app0inted prior to October 1, 1984 have
been terminated except on resignation or on disciplinary
grounds, he shall be also considered for regularisation and
E if found fit his services shall be regularised as if there was
not break in the continuity qf service but without any back
wages.
'
F
(2) The petitions of the Assistant Medical Officers/Assis-
tant 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 Commis-
sion shall first be posted to the vacant posts available
w~erever they may be. If all those selected by the UPSC
G qmnot 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 vacak the same. While ·making such
H postings the principle of 'last come, first go' shall be
I
I•
DR. HAQUE v. U.0.1. [SAWANT, J.]
observed by the Railways on zonal basis. If any doctor who A
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 B
the same salary 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
c
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/ADM Os on ad hoc basis
in any zone the existing ad hoc AMO!ADMOs who are D
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 Commis: E
sion 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 F
terms.':
It appears that since they experienced difficulty in adjusting· the
,.,,,. seniority of the petitioner-applicants the Union of India moved an applica-
tion before this Court and this court on Ist November, 1988 made the G
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 H
[1993] 2 S.C.R.
...
6 SUPREME COURT REPORTS
A Government should he 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 flXing the inter-se seniority
between the petitioners in the Writ Petition and the direct
·recruits. We accordingly make an order in this case. The
B 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 per-
son is aggrieved by the decision of the Government on the
c 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 com-
plied with by the Union Government within two months
without failure.
D •. The Civil Miscellaneous Petition is disposed of accord-
ingly."
'
The present application has been moved in Writ Petition No. 1165
of 1986 which has been disposed of on 24th September, 1987 along with
E other writ petitions in which also the aforesaid order of !st November, 1988
was made ·by this Court.
Thus we are concerned in this application with those Assistant
F
Divisional Medical Officers who were appointed between 1968 and !st
October, 1984 and who have been regularised by the aforesaid two orders
but whose. seniority remains to be fixed.
-
Afterthe order of !st November, 1988, lhe Constitution Bench ofthis
Court delivered its judgment in Direct Recruit Class II Engineering Officers'
Association & Ors. v. State of Maharashtra & Ors., [1990] 2 SCC 715 pending·
G which decision the fixation of seniority of the petitioner-applicants 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
H to' rule, his seniority has to be counted from the date of
DR. HAQUE v. U.0.1. [SAWANT, J.] 7
his appointment and not according to the date of his A
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 B
seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee con-
tinues in the post uninterruptedly till the.regularisation of
his service in accordance with the rules, the period of
c
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 D
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 E
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 F
based on interviews only and by relaxing the age limit. In these two special
selections respectively 100 and 67 ad hoc doctors like the petitioner-ap-
plicants 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 G
or after appearing in the same, had failed.
Thus, while fixing the seniority of the petitioner-applicants 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) H
8 SUPREME COURT REPORTS (1993) 2 S.C.R.
I
A those who were ad hoc appointees like the applicants but who came to be
regularly recruited through the UPSC by appearing in the written examina-
tion 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 Ist November, 1988.
B .,)_.
Since the petitioner-applicants are admittedly not regularly ap-
pointed ·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.
C 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 dpwn by this Court. The expres-
D sion "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
procediJre laid down by this Court. The petitioner-applicants 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.
E 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 a'!d cannot be disputed on behalf of the petitioner-applicants.
-
F
This matter was heard earlier on 14th September, 1992 and was
reserved. for judgment. At that time, neither the in-service direct recruits
nor the outsider direct recruits were made parties to t.he appl!cation. They
made separate applications, being I.A Nos. 2 and 3 respectively for im-
G pleadment/intervention and requested that they be heard in the matter
before judgmem 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 Iio case their seniority
should be disturbed and they be penalised for passing the examinations/in-
H terview tests and for coming into the cadre according to the rules through
.,
.
DR HAQUE v. U.0.1. [SAWANT, J.] 9
~
the UPSC, and no premium should be given to the applicants for their A
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 decisio.n of this Court in Dr. P.P.C. Rawani & Ors. B
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 cir-
cumstances, 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
c
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
D
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 E
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 F
~
Court has in some cases permitted regularisation of the irregularly
' recruited employees, some Governments and authorities have been in-
creasingly 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 G
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 H
10 SUPREME COURT REPORTS [1993] 2 S.C.R.
A employees as pointed out earlier, viz., the outside direct recruits, the
in-service direct recruits and the ad hoc employees like the petitioner-ap-
plicants who were regularised through the Court's order. Further, Dr.
Rawani's case (supra), as has been pointed out on behalf of the respon-
dents, pertains to the Central Government Health Services which has a
B 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
C
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
D 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
E 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.
\
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