UNION OF INDIA AND ORS.versusDR. GYAN PRAKASH SINGH

                      UNION OF INDIA AND ORS.                                  A
                                     v.
                      DR. GYAN PRAKASH SINGH

                         SEPTEMBER 30, 1993

 [J.S. VERMA, B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.)                        B

      Service Law :

       Railways-Assistant Medical Officers/Assistant Divisional Medical Of-
ficers-Regularisation of Ad-hoc appointees--Directions of Court--Extension     C
of benefit-Applicability of

       The Respondent was offerred on 28. 9.1984. appointment on ad hoc
basis. The post of Assistant Medical Officer (Class-II) in the North
Eastern Railway for the period of six months or till the candidates selected
by U.P.S.C. joined the railways, whichever was_.earlier. Pursuant to the       D
offer, the respondent was issued an appointment order on 1.10.1984 and
he joined duty on 9.10.1984.

     The decision of this Court in Dr. A.K. Jain and Ors. v. Union of India
and Others [19871 Supp. sec 497, was rendere!J. on 24.9.1987 directing E
regularisation of the services of all doctors appointed either as Assistant
Medical Officers or as Assistant Divisional Medical Officers on ad hoc
basis up to 1.10/1984. The respondent was not treated to be a doctor falling
within the category indicated in Dr. A.K Jain since his appointment was
effective form 9.10 1984 on which date he joined duty.
                                                                               F
      Later on, the Railway Board decided to regularise the services even
of those doctors appointed between 1.10.1984 and November 1986 who were
found suitable by the U.P.S.C. after an interview and screening of their
service record. In all 105 such· doctors were considered for regularisation.
Out of them, 14, including the respondent, were found unfit by the U.P.S.C.
for retention in service and, therefore, they were not regularised. The ad     G
hoc service of the respondent was then terminated on 9.4.1992 and the
respondent filed an application before the Central Administrative
Tribunal challenging the same. The Tribunal held that the ad hoc appoint-
ment of the respondent having been made by an order dated 1.10.1984, he
was governed by the direction given by this court in Dr. A.K. Jain             H
                                    551
    552                   SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A        Being aggrieved by Tribunal's decision Union of India preferred the
    present appeal.

          Allowing the appeal, this Court

        HELD : 1.1. The expression "up to October 1,1964" in the direction
B for regularisation obviously does not include appointments made on Oc-
  tober 1, 1984. This is clear from a further part of the same direction in
  which the expression "prior to October 1,1984" occurs. After directing the
  regularisation of the ad hoc appointees up to October 1, 1984 in very same
  direction, it was said that those appointed "prior to October 1, 1984" also
C would be considered for regularisation in spite of termination of their
  services. It is apparent that this category of doctors required to be con-
  sidered for regularisation in spite of the termination of their services are
  those belonging to the same class of ad hoc appointees "up to October 1,
  1984" which means the same as the ad hoc appointees "prior to October 1,
  1984". If an appointment made on October 1, 1984 is included in that class,
D then it would be in conflict with the expression "tJrior to October 1,1984"
  used later. Both these expressions occur in the sam'.) context and must have
  the same meaning. [556B-D]

          1.2. Availability of confidential report for some period prior to
  October 1,1984 is contemplated in respect of the doctors to be so
E regularised. The direction further is that 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 Medi-
  cal Officers/Assistant Divisional Medical Officers. This direction cannot
  relate to any one who joined the service after 1.10.1984. This was meant to
F benefit only those ad hoc appointees who had been continuously working
  from a date prior to October 1,1984 and not from any date subsequent to
  it. If the benefit of the direction in Dr. A.K Jain is given to the respondent,
  his appointment as Assistant Divisional Medical Officer can be only from
  October 9, 1984, the date form which he began working on the post. He can
G be regularised in this manner only with effect from October 9, 1984 and
  not from October 1, 1984. There can be no doubt that the direction for
  regularisation was not meant to benefit any ad hoc appointee who was not
  working on the post of Assistant Medical Officer/Assistant Divisional
  Medical Officer on October 1,1984. [556-F-H & 557A]

H          1.3. The respondent not being entitled to the benefit of the direction
                     U.0.1. v. DR. SINGH [VERfvlA, J.]                  553

given by this Court in Dr. A.K Jain, his claim for regularisation could have    A
been based only on the ground available to an ad hoc appointee during the
period between October 1, 1984 and November 1986., for which the respon-
dent had to be found fit by the U.P.S.C. Since the respondent was found
l.!nfit, he can have no grievance against the-termination of his service.
                                                                   [557-C-D]
                                                                                B
      Dr. A.K Jain & Ors. v. Union of India & Ors., [1987] supp. SCC 497,
explained.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 765/1993.

      From the Judgment and Order dated 28.3.92 of the Central Ad-              C
ministrative Tribunal, Allahabad in Original Appeal No. 856 of 1988.

      J. Ramamurthy, Hemant Sharma, V.K. Verma and C.V.S. Rao (N.P.)
for the appellants.

      Yogeshwer Prasad and Ms. Rachna Gupta for the respondent.                 D
      The Judgment of the Court was delivered by

       VERMA, J. Respondent Dr. Gyan Prakash Singh was offered on
28.9.1984 an appointment on ad hoc temporary basis to a post of Assistant
Medical Officer (Class-11) in the North Eastern Railway for the period of       E
six months or till the candidates selected by the Union Public Service
Commission (U.P.S.C.) joined the railways, whichever was earlier. Pur-
suant to that offer, the respondent was issued an appointment order on
1.10.1984 and he joined duty on 9.10.1984. While the respondent continued
to work as an ad hoc Assistant Medical Officer, the decision of this Court
in Dr. A.K. Jain and Others v. Union of India and Others, [1987] Supp. SCC      F
497, was rendered on 24.9.1987 directing regularisation of the services of
all doctors appointed either as Assistant Medical Officers or as Assistant
Divisional Medical Officers on ad hoc basis up to 1.10.1984, in the manner
indicated therein. The respondent was not treated to be a doctor falling
within the category indicated in Dr. AK. Jain since his appointment was         G
effective form 9.10.1984 when he had joined duty. The respondent claimed
to be governed by the direction given in Dr. AK. Jain, but his repre-
sentation was rejected by the Railway Board. It appears that the Railway
Board decided to regularise the services even of those doctors appointed
betwe1m 1.10.1984 and November 1986 who were found suitable by the
U.P.S.C. after an interview and screening of their service record. In all 105   H
    554                   SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A such doctors including the respondent were considered for regularisation
    on this basis. Out of them, 14 including the respondent were found unfit
    by the U.P.S.C. for retention in service and, therefore, they were not
    regularised. The ad hoc service of the respondent was then terminated on
    9.4.1992.

B         Aggrieved by his non-regularisation, the respondent filed an applica-
    tion before the Central Administrative Tribunal challenging the same. By
    the impugned order dated 28.3.1992, the Tribunal has allowed the
    respondent's application taking the view that the respondent is entitled to
    regularisation of his ad hoc appointment on the basis of the decision of this
c   Court in Dr. A.K. Jain. It has been held that the ad hoc appointment of
    the respondent having been made by an order dated 1.10.1984, he is
    governed by the direction given by this Court in Dr. A.K. Jain. The Union
    of India, being aggrieved by that decision, has preferred this appeal by
    special leave.

D
           On the above facts, the question is: whether the Tribunal has cor-
    rectly read the decision of this ~ourt in Dr. AK. Jain hold that the respon-
    dent is entitled to regularisation on the basis of the direction given therein?

        The contention of learned counsel for the appellant is that the
E respondent having joined duty on 9.10.1984 pursuant to the appointment
  order dated 1.10.1984, his appointment became effective on 9.10.1984 and
  not on 1.10.1984. For this reason, it is urged, the respondent is not entitled
  to the benefit of the direction given in Dr. A.K. Jain even on his own case.
  The further submission of learned counsel for the appellant is that even if
F the date of the appointment order be taken as the date of the respondent's
  effective appointment, the order in Dr. AK. Jain read as a whole cannot
  apply to the appointments made on 1.10.1984 since it must be confined to
  only those doctors who were in service on 1.10.984 as a result of their
  appointment on dated prior to, and not inclusive of, 1.10.1984. It was also
G submitted on behalf of the appellant that the respondent was found unfit
  by the U.P.S.C. in the batch of ad hoc appointees between 1.10.1984 and
  November 1986 on account of which his non-regularisation cannot be
  challenged. In reply, the learned counsel for the respondent contended that
  the respondent's appointment was effective from 1.10.1984, the date of the
  appointment order and not from the subsequent date of his joining duty.
H He submitted that the direction of this Court in Dr. A.K. Jain clearly
                    U.O.I. v. DR. SINGH [VERMA, J.]                   555.

applies to such appointments made even on 1.10.1984. He further sub- A
mitted that the respondent being found unfit by the U.P.S.C. is of no
consequence since the test applied by the U.P.S.C. included an interview
and not mere screening of service record as in the case of ad hoc appoin-
tees up to 1.10.1984. Lastly, it was submitted, that it is a solitary case of
appointment on 1.10.1985 which does not call for interference.
                                                                             B
      It is unnecessary in the· present case to decide whether the
respondent's appointment can be treated as made on 1.10.1984 by virtue
of the date of appointment order even though it became effective only from
9.10.1984 when he joined duty. Even on the assumption that the respon-
dent can be treated as having been appointed on 1.10.1984 as claimed by      C
him, the respondent does not get the benefit of the decision in Dr. AK.
Jain.

       The decision in Dr. A.K. Jain and Others v. union of India and Others,
[1987) Supp. sec 497, Was rendered in writ petitions under Article 32 of D
the Constitution challenging the action of the Union of India in terminating
the services of petitioners as ad hoc Assistant Medical Officers and replac-
ing them by freshly recruited Assistant Divisional Medical officers. The
petitioners in those cases were appointed ad hoc Assistant Medical Of-
ficers (Class-II) in the Zonal Railways. The material part of the operative
order containing the direction therein is as under :-                         E

             "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 F
        and conduct on the basis of their confidential reports in respect of
        a pe1iod 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 Of-
        ficers with effect from the date from which they have been continuous-
        ly working as Assistant Medical Officer/Assistant Divisional Medical G
        Officer, . The Railway shall be at liberty to terminate 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 tenninated
        except on resignation or on disciplinary grounds , he shall be also
        considered for regularisation and if found fit his services shall be H
    556                  SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A           regularised as if there was not break in the continuity of se1vice but
            without any back wages."

                                                            (emphasis supplied)

           The expression "up to October 1, 1984" in the direction for
B
    regularisation obviously does not include appointments made on October
    1, 1984. This is clear from a further part of the same direction in which the
    expression "prior to October 1.1984" occurs. After directing the regularisa-
    tion of the ad hoc appointees up to October 1,1984, in the very same
    direction, it was said that those appointed "prior to October 1, 1984" would
c   also be considered for regularisation in spite of termination of their ser-
    vices. It is apparent that this category of doctors required to be considered
    for regularisation in spite of the termination of their services are those
    belonging to the same class of ad hoc appointees "up to October 1, 1984".
    In other words, the ad hoc appointess "up to October 1, 1984" means the
D   same as the ad hoc appointees "prior to October 1, 1984". If an appoint-
    ment made on October 1, 1984 is included in that class, then it would be
    in conflict with the expression "prior to October 1, 1984" used later. Both
    these expressions occur in the same context and must have the same
    meaning.

E        There are other indications to this effect. The direction requires
  regularisation to be made on the basis of work and conduct evaluated from
  confidential reports in respect of period subsequent to October 1, 1982.
  Thus, availability of confidential report for some period prior to October
  1, 1984 is contemplated in respect of the doctors to be so regularised. The
F direction  further is that the doctors so regularised shall be appointed as
  Assistant Divisional Medical Officers "with from the date from which they
  have been continuously working" as Assistant Medical Officers/Assistant
  Divisional Medical Officers. This direction cannot relate to any one who
  joined the service after l.10.1984. This was meant to benefit only those ad
  hoc appointees who had been continuously working from :i U<tlt: prior to
G October 1, 1984 and not from any date sub>equent to it. If the benefit of
  the direction in Dr. AK. Jain be given to the respondent, his appointment
  as Assistant divisional Medical Officer can be only from October 9, 1984,
  the date from which he began working on the post. He can be regularised
  in this manner only with effect from October 9, 1984 and not from October
H 1, 1984. There can be no doubt that the direction for regularisation was
                     U.O.I. v. DR. SINGH [VERMA, J.]                    557

not meant to benefit any ad hoc appointee who was not working on the          A
post of Assistant Medical Officer/Assistant Divisional Medical Officer on
October 1, 1984.

     These are clear indications that the direction in Dr. AK. Jain cannot
be construed in the manner suggested by the learned counsel for the
respondent to give its benefit to the respondent. The Tribunal misread and    B
misconstrued the decision in Dr. AK Jain to give its benefit to the
respondent.

       For the same reason, the contention of learned counsel for the
respondent, that the respondent being found unfit by the U.P.S. C. is
immaterial, has no merit. The respondent not being entitled to the benefit    c
of the direction given by this Court in Dr. AK Jain, his claim for
regularisation could have been based only on the ground available to an
ad hoc appointee during the period between October 1, 1984 and Novem-
ber 1986. For that the respondent had to be found fit by the U.P.S.C. Since
the respondent was one of the 14 such ad hoc appointees found unfit in D
the category of 105 doctors appointed between October 1, 1984 and
November 1986, the respondent can make no grievance against the ter-
mination of his service in these circumstances. No exception can be made
for the respondent who was found unfit along with some of his class.

      Consequently, the appeal is allowed. The impugned order passed by       E
the Tribunal is set aside with the result the respondent's application made
to the Tribunal stands dismissed. No costs.

G.N.                                                      Appeal allowed.