PETITIONER: UNION OF INDIA Vs. RESPONDENT: DR GYAN PRAKESH SINGH DATE OF JUDGMENT30/09/1993 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) JEEVAN REDDY, B.P. (J) BHARUCHA S.P. (J) CITATION: 1994 SCC Supl. (1) 306 JT 1993 (5) 681 1993 SCALE (3)902 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
VERMA, J.- Respondent Dr Gyan Prakash Singh was offered on
September 28, 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 six months or till
the candidates selected by the Union Public Service
Commission (UPSC) joined the railways, whichever was
earlier. Pursuant to that offer, the respondent was issued
an appointment order on October 1, 1984 and he joined duty
on October 9, 1984. While the respondent continued to work
as an ad hoc Assistant Medical Officer, the decision of this
Court in A.K. Jain (Dr) v. Union of India’ was rendered on
September 24, 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 October 1, 1984, in the manner indicated
therein. The respondent was not treated to be a doctor
falling within the category indicated in Dr A.K. Jain’ since
his appointment was effective from October 9, 1984 when he
had joined duty. The respondent claimed to be governed by
the direction given in Dr A.K. Jain, but his representation
was rejected by the Railway Board. It appears that the
Railway Board decided to regularise the services even of
those doctors appointed between October 1, 1984 and November
1986 who were found suitable by the UPSC after an interview
and screening of their service record. In all 105 such
doctors including the respondent were considered for
regularisation on this basis. Out of them, 14 including the
respondent were found unfit by the UPSC for retention in
service and-, therefore, they were not regularised. The ad
hoc service of the respondent was then terminated on April
9, 1992.
2.Aggrieved by his non-regularisation, the respondent
filed an application before the Central Administrative
Tribunal challenging the same. By the
1 1987 Supp SCC 497
308
impugned order dated March 28, 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 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 October 1,
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.
3.On the above facts, the question is: Whether the
Tribunal has correctly read the decision of this Court in Dr
A.K. Jain’ to hold that the respondent is entitled to
regularisation on the basis of the direction given therein?
4.The contention of learned counsel for the appellant is
that the respondent having joined duty on October 9, 1984
pursuant to the appointment order dated October 1, 1984, his
appointment became effective on October 9, 1984 and not on
October 1, 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 the date of the appointment order be taken as the date of
the respondent’s effective appointment, the order in Dr A.K.
Jain1 read as a whole cannot apply to the appointments made
on October 1, 1984 since it must be confined to only those
doctors who were in service on October 1, 1984 as a result
of their appointment on dates prior to, an,! not inclusive
of, October 1, 1984. It was also submitted on behalf of the
appellant that the respondent was found unfit by the UPSC in
the batch of ad hoc appointees between October 1, 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 October 1, 1984, the date of the appointment
order and not from the subsequent date of his joining duty.
He submitted that the direction of this Court in Dr A. K.
Jain’ clearly applies to such appointments made even on
October 1, 1984. He further submitted that the respondent
being found unfit by the UPSC is of no consequence since the
test applied by the UPSC included an interview and not mere
screening of the service record as in the case of ad hoc
appointees up to October 1, 1984. Lastly, it was submitted,
that it is a solitary case of appointment on October 1, 1984
which does not call for interference.
5.It is unnecessary in the present case to decide whether
the respondent’s appointment can be treated as made on
October 1, 1984 by virtue of the date of appointment order
even though it became effective only from October 9, 1984
when he joined duty. Even on the assumption that the
respondent can be treated as having been appointed on
October 1, 1984 as claimed by him, the respondent does not
get the benefit of the decision in Dr A. K. Jain 1.
6.The decision in A.K. Jain (Dr) v. Union of India] was
rendered in writ petitions under Article 32 of the
Constitution challenging the action of the Union of India in
terminating the services of petitioners as ad hoc Assistant
Medical Officers and replacing them by freshly recruited
Assistant Divisional Medical Officers. The petitioners in
those cases were appointed ad hoc Assistant Medical Officers
(Class 11) in the Zonal Railways. The material part of the
operative order containing the direction therein is as
under: (SCC p. 500)
“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
309
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 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 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 no break in the continuity of service but
without any back wages.”
(emphasis supplied)
7.The expression “up to October 1, 1984” in the direction
for 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 regularisation
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 also be considered for regularisation
in spite of termination of their services. 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
appointees “up to October 1, 1984” 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, 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.
8.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 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
Medical Officers/Assistant Divisional Medical Officers.
This direction cannot relate to anyone who joined the
service after October 1, 1984. This was meant to 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’ 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 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.
9.These are clear indications that the direction in Dr A.
K. Jain1 cannot be construed in the manner suggested by the
learned counsel for the respondent to
310
give its benefit to the respondent. The Tribunal misread
and misconstrued the decision in Dr A.K. Jain’ to give its
benefit to the respondent.
10.For the same reason, the contention of learned counsel
for the respondent, that the respondent being found unfit by
the UPSC is immaterial, has no merit. The respondent not
being entitled to the benefit of the direction given by this
Court in Dr A.K. 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
November 1986. For that the respondent had to be found fit
by the UPSC. Since the respondent was one of the 14 such ad
hoc appointees found unfit in the category of 105 doctors
appointed between October 1, 1984 and November 1986, the
respondent can make no grievance against the termination of
his service in these circumstances. No exception can be
made for the respondent who was found unfit along with some
more of his class.
11.Consequently, the appeal is allowed. The impugned
order passed by the Tribunal is set aside with the result
that the respondent’s application made to the Tribunal
stands dismissed. No costs.
312