STATE OF U.P. AND ORS. ETC.versusDR. R.K. TANDON AND ORS. ETC.

                       STATE OF U.P. AND ORS. ETC.                                   A
                                    v.
                      DR. R.K. TANDON AND ORS. ETC.

                                   JULY 26, 1996

                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

..         Se1Vice Law :

            U.P. Regulmisatioll of Ad-hoc appointees (Oil posts withill the pwview
     of the Public Seivice Commission) Rules, 1979:                                  c
             Rules 4, 5. and 7-U.P. Provincial and Medical Health Service-Doc-
     t01:1-Ad-lwc appointments made ill 1962-63 onwards-Direct recmits ap-
     pointed by Public Service Commission in 1972 and 1974-Rei,qlimisation of
      ad hoc doctors alld their selliority-Matter decided by this Cowt by its order D
      dated 23.3.199~Some of adhoc appoimees who were not selected by the
     PSC filed applications for review/clarification of the order dated 23.3. 1995 Oil
      the ground that though they were petitioners in sonie of the petitions for
     special leave posted with other batch of cases, but they were not seTVed-Held,
     candidates selected by the PSC in 1972 and appointed accordingly would
      bccon1e senior to all the ad hoc appointees-As regards the doctors recntited E
     by the PSC in the year 1974 and recommended for appointment in three
      instalments, i.e. by the lists dated 23.12.1977, 16.6.1978 and 10.5.1979, such
     of the candidates recommended by the PSC in the lists dated 23. 12.1977 alld
      16.6.1979 would rallk below the 1972 appointees ill their order of merit-The
     third list was sent by the PSC on 10.5. 1979 i.e. before the ad hoc Rules came F
     to be made on 14.5.1979-Ad-lwc doctor.f who were not selected canllot claim
     seniority over the candidates already recommended by the PSC ill the third
     list dated 10.5.1979-/n the circumstance;; though they were not heard in the
     first instances, when the n1atter was dis11osed of, in substance they would not
     get any advantage or det1in1ent in the order--Ru/es of roster and rese1vation G
     for Scheduled Caste, Scheduled Tribe and Backward Class calldidates to be
     followed i11 the matter of seni01ity and fitment-17zis order would cover all
     the cases and would apply to all the candidates including those who have
     gone to the Cowt and obtained directions Oil the ground that they were not
     pmties to the orders passed by this Cowt-State Govemment should put a
     stop to ad hoc appointments in order to check conuption and napotism and H
                                             149
    150                   SUPREME COURT REPORTS (1996) SUPP. 4 S.C.R.

A to inculcate discipline in the seJVice.
           State of UP. & Ors. v. Dr. R.K Tandon & Ors., [1995) 2 SCR. 995,
    explained.

          CIVIL APPELLATE JURISDICTION : I.A. Nos.                16-20, 21-25,
B   27-31; 32-35.

                         AND
           Contempt Petition Nos. 46-50.

c                          IN

           Civil Appeal Nos. 4438-42 of 1995.

         From the Judgment and Order dated 3.2.92 of the Allahabad High
    Court in W.P. No. 5809/87, 10921/89, 10926/89, 10923/89 and 10922 of 1989.
D         H.N. Salve and A.B. Mathur, Irshad Ahmad, Arvind Kr. Shukla, IR.B.
    Misra, S.K. Misra, Ms. Geetanjali Mohan, D.N. Goburdhan and Ms. Pinky
    Anand Advs. with him for the Petitioners/Appellants.

         K Madhava Reddy, S.C. Maheshwari, Shakeel Ahmed Syed and Ms.
E   Sandhya Goswami for the Respondents.

          The following Order of the Court was delivered :

    IA. Nos. 16-20 Etc. Etc. in CA. 4438-42/95

          Application for intervention and impleadment are dismissed.
F
           This is second instalment and we hope it to be the last instalment of
    the unending litigation. This Court by order dated March 23, 1995 disposed
    of a batch of cases relating to the appointment of ad hoc doctors in U.P.
    Provincial Medical and Health Service. Pending making of the rules, ad
G   hoc appointments came to be made and the doctors who were already
    working in Medical and Health Departments .were given options to come
    to this Department. As a result thereof, all of them had opted to come to
    this Department. Admittedly, the posts are governed by the PSC recruit-
    ment and appointments thereto are made ·accordingly. No such appoint-
    ment came to be made. Consequently, all of them remained on ad hoc basis
H   de hors the rules right from 1961-62 onwards and some of them had
                         STATEv. R.K TANDON                             151

retired. Some of the doctors had gone to the Court and obtained relief of      A
regularisation of their services from the respective dates of appointments
which became final. The recruitment through the PSC came to be made
on two occasions, viz., in 1972 and 1974. When there was an inter se dispute
between the candidates selected by the PSC and ad hoc doctors, the
dispute ultimately came to this Court and this Court directed the State
Government to adopt a fair procedure so as to avoid further litigation in      B
the matter. This Court stated in the order as under :

        "It is settled law that all ad hoc appointment' made de hors the
        rules do not confer any rights only from the date of their regular
        appointment according to rules they get their seniority. If, however, C
        the initial appointments were according to rules, though on ad hoc
        or temporary basis, then the seniority would be counted from the
        dates of initial appointment. The ad hoc appointments here were
        de hors the rules. It would thus be clear that though the doctors
        have put in more than 33 years, they are ad hoc hands. All would
        not get seniority from the respective dates of appointments. It is D
        seen that some of the doctors have retired and some had the
        benefit of directions given by the courts to have their services
        regularised with effect from the dates on which they were ap-
        pointed and the orders have become final. So, they are entitled lo
        count their seniority from the respective dates of initial appoint- E
        ments.

            From among the rest of the doctors, since th PSC had notified,
        selected and recommended the names of candidates in the year
        1972, State Government is directed to make their appointment in
        the order of merit determined by the PSC. The State Government         F
        is directed to appoint them with effect from the date which the
        State Government had received the merit list from the PSC and
        they be placed below the candidates whose appointments were
        upheld by the Courts or Service Tribunal and became final.
                                                                               G
            As to the candidates whose names were recommended by the
        PSC in three installments, first on 23.12.77, second on 16.6.78 and
        the final list on 10.5.79, the State Government is directed to appoint
        them in the order of merit in the respective lists. The seniority of
        the officers so appointed would be as per the determination of the
        PSC in the respective lists. They would be appointed with effect H
    152                  SUPREME COURT REPORTS [1996] SUPP.4 S.C.R.

A           from the dates on which the State Government had received the
            respective lists and they must be deemed to have been regularly
            appointed from those dates. They would be placed below 1972
            selectees. Rest of the candidates, who were not selected bul are
            still continuing in service, would be placed below the last of the
            3rd list and their seniority is directed to be determined with effect
B           from the date of the receipt of the list dated 10.5. 79. Among the
            non-selectees, the date on which the list dated May 10, 1979 was
            received by the State Government would be the cut-off date and
            taking into consideration of the respective dates of appointments
            as on that date and if made thereafter, seniority will be counted
c           from those respective dates. Rule of reservation, if applied, and
            the candidates were selected accordingly, their seniority vis-a-vis
            tlie General candidates would be according to the vacancy position
            in the roster maintained by the State Government.

                It is on record that some of these ad hoc doctors have retired
D           on attaining the age of superannuation. In respect of them there
            shall be a direction in nationally treat them to be regularly ap-
            pointed from respective dates of initial appointment only for the
            purpose of giving them pensionary and retrial benefits admissible
            according to relevant rules. This should not be reckoned for inter
            se seniority among the temporary or ad hoc doctors appointed in
E           the service."

           These I.As. ca.ne to be filed for the reason that though their special
    leave petition was posted along with other batch of cases, admittedly, the
    petitioners-appellants had not been served. Consequently, they initially
F   filed these these I.As. for review which we have directed to be heard in the
    Court. Accordingly, the cases have been posted to-day.

          Shri K. Madhava Reddy, learned senior counsel appearing for these
    ad hoc doctors who have not been selected by the PSC, has placed before
G us the initial order passed by the Governor creating these services and !he
    statutory rules framed under proviso to Article 309 of the Constitution on
    May 14, 1979, viz., the U.P. Regularisation of Ad-hoc Appointees (on posts
    within the purview of the Public Service Commission) Rules, 1979 (for
    short, the ''Ad-hoc Rules") to regularise their services as indicated in the
    Rules. Based thereon, it is contended that after due selection by the
H   committee constituted under Rule 4 of theAd hoc Rules, they are required
                            STATEv. R.K TANDON                               153

  to be appointed under Rule 5; their seniority was directed to be reckoned         A
  under Rule 7 from the date of the order of appointment after selection
  under Rule 4 and they be placed below the persons appointed in accord-
  ance with the relevant procedure prior to the appointment of these ad hoc
  regularised doctors. Since they have been appointed according to rules, the
  candidates recommended by the Public Service Commission in 1977, 1978
  and 1979 were yet to be appointed and, therefore, they cannot be made             B
  senior to the petitioners. It is his contention that though the recommenda-
  tions came to be made by the PSC, it was not as if they have got an absolute
  right to appointment. The State Government after due consideration may
  not appoint them, their right to seniority arises only from their date of
  discharging the duties on the post and, therefore, since they have not been
  appointed according to the rules, they cannot be treated to be seniors. If
                                                                                    c
  the direction in 3rd part of the order is given effect to, the petitioners in
  these !AS (for short, "non selectees") would become junior to him and,
  therefore, it requires clarification. Shri Harish Salve, learned senior counsel
· for the State and also Shri AB. Mathur, learned senior counsel for the
 direct recruits, resisted the contentions.                                         D

       Having considered the respective contentions, we think that there is
 not much controversy in the matter. It is stated in the order that in case of
 doctors who had already retired from service their seniority would be on
 notional basis. It presents no difficulty to work out the same. Equally, in
 respect of doctors in whose favour there were orders from either High              E
 Court or the Tribunal or this Court which has become final, their seniority
 was directed to be regularised with effect from the respective dates of
 appointments. The second part of the order dealt with the candidates
 selected pursuant to the advertisement in 1972 by the PSC. It would,
 therefore, be obvious that the candidates selected in the year 1972 and            F
 appointed in furtherance thereof would become seniors to all the ad hoc
 appointees though they were continuing on ad hoc basis. Accordingly, the
 second part of the order will not create any impediment in preparation of
 the inter se seniority among the doctors.

                                                                                    G
        The third part consists of the candidates selected by the PSC pur-
 suant to the recruitment made in 1974 and recommended for appointment
 in three instalments. The dates of the lists were mentioned in the order as
 December 23, 1977, June 16,1978 and May 10, 1979. It is to be seen that
 there appears to be a tussle between the direct recruites and the promotees
 as regards inter se seniority. At one time, the Government seems to have H
    154                   SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A taken a decision to cancel the selection lists and regularise all the ad hoc
    appointees en mass. It would appear that most of the candidates selected
    by the PSC were also ad hoc doctors but gained an edge over non-selectees.
    Under these circumstances, what legal principle should be adopted to
    determine their inter se seniority is the question. Had the appointmenls
    been made pursuant to the list submitted by the PSC in December 1977
B   and June 1978, it would be obvious that the non-selectee ad hoc doctors
    cannot have any seniority over them. It would, therefore, be clarified that
    such of the candidates recommended by the PSC in the lists dated Decem-
    ber 23, 1977 and June 16, 1979 would rank below the 1972 appointees in
    their order of merit recommended by the PSC in the respective lists.
c         Then comes the case of the candidates of third list dated May HI,
    1979. Mr. Madhava Reddy has rightly contended that the date of recom-
    mendation is not conclusive. Normally, the settled law is that the seniority
    would be counted from the date on which the candidate actually started
    discharging the duties of the posts and in the case of the direct recruitment,
D   the date of appointment in the order of merit prepared by the PSC. But
    in view of the loggerhead between the recruites and the ad hoc doctors, it
    would be obvious that the ad hoc non-selectees should be regularised as
    per the procedure prescribed in the Ad-hoc Rules. As seen, the third list        '
    was sent by the PSC on May 10, 1979 while the Ad-hoc Rules came to be
    made an May 14, 1979. It is seen that a committee was required to be
E   constituted under Rule 4 to go into the relative merits of the non-selectees
    and those who fulfil the qualifications prescribed in Rule 3 are found to
    be eligible and fit to be appointed. A list was required to be drawn on the
    basis thereof and appointments made accordingly. All this exercise ob-
    viously would take considerable time. Therefore, the non-selectees cannot
F   claim any seniority over the candidates already recommended by the PSC
    in the 3rd list dated May 10, 1979. Under circumstances, though they were
    not heard in the first instance, when the matter was disposed of, in substance
    they would not get any advantage or detriment in the order, in view of the
    peculiar circumstances prevailing in the service in the State of U.P.

G        Yet another problem that was brought to our notice is that while
  preparing their inter se seniority and fitment, the Government, was not
  strictly following the rule roster and reservation for Scheduled Caste,
  Scheduled Tribe and Backward Class candidates and their placement on
  the respective vacancies earmarked for them in the roster. It would be
H obvious that when the Government makes appointments, though ad··
                            STATEv. R.K. TANDON                            155

ministrative instructions or statutory rules, the appointment of candidates       A
should be according to order of merit and roster. The Governmevt should
follow the rule of reservation and make appointments as per roster points.
That procedure is also prescribed even in the Ad hoc Rules. Therefore,
even in appointments made from the lists of 1972, 1977, 1978, 1979 and
among those who had retired from service or had the benefit of court
orders or non-selectees, the inter se seniority should accordingly be deter-      B
mined as per the rule of reservation and roster. Even among the non-selec-
tees when they are appointed under Ad hoc Rules and seniority under Rule
7 thereof is determined, the same principle should be followed. Their
roster points should also be worked out and appointments made accord-
ingly. There shall be direction to follow this procedure so that there will not
                                                                                  c
be any deviation from the rules of appointment, so that reservation and the
order of appointment would become according to rules and remain legal.

      Yet another circumstance which was brought to our notice by the
direct recruits is that they are made junior to the non-selectees and
promotions were given to non-selectees overlooking the claims of direct           D
recruils. In view of the directions now given, after drawing the respective
seniority lists, appropriate steps are directed to be taken to make appoint-
ments or the promotions, as the case may be, according to the rules.

       The fourth circumstance that was brought to our notice is that some
of the candidates appear to have gone to the court and obtained directions        E
on the ground that they were not parties to the orders passed by this Court
and that, therefore, they seek to claim rights independently. This order
would cover all the cases and would apply to all the candidates who are
concerned in this service and the Government would determine their inter
se seniority in accordance with these directions within four months from
today. Before parting with the case, we are pained to notice that the             F
Government has resorted to adhocism which resulted in distortion in the
service and heart burning, manipulation and corruption. We hope and trust
that the Government would put a stop to the ad hoc appointments that has
become breeding ground for corruption and nepotism so as to inculcate
discipline in services.
                                                                                  G
         All the applications and petitions are accordingly disposed of. No
costs.

R.P.                                                   Petitions disposed of.