JUDGMENT
S.B. Sinha, C.J.
1. Interpretation of a notification dated 12.04.1999 is in
question in this writ petition, which arises out of a
judgment and order dated 16.03.2001 passed by the
Central Administative Tribunal, Principal Bench, New
Delhi (hereinafter for the sake of brevity referred to as, ‘the
Tribunal’) in O.A. No. 2590 of 2000 whereby and
whereunder the Original Application filed by the
respondents herein was allowed.
F A C T S:-
2. The unofficial respondents, who are 18 in number, were
appointed as Medical Officers on contract basis for a period
of 89 days on a consolidated salary of Rs. 6,000/- with
certain persons. However, they were allowed to continue in
service. In 1999, they filed an Original Application before
the Tribunal praying therein for parity in pay and
allowances and other benefits of service conditions as
admissible to other Medical Officer (Homeopathy)
(hereinafter for the sake of brevity referred to as, ‘MO(H)’)
appointed on regular basis in the pay-scale of Rs. 8,000/-
Rs. 13,500/- +.Non Practicing Allowances. By a judgment
and order dated 08.05.2000, the said Original Application
was allowed with the following directions to the petitioners
herein:-
“Applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In the event of the posts being filled by regular recruits, the same shall be adjusted against
vacant posts and only after all the vacant
posts are filled should regular recruits replace the present applicants and such replacements shall be on the basis of last
come first go basis. Respondents are further directed to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply
for regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as applicable to other MOs (H) from the date of their initial appointment”.
The said order has been complied with.
Admittedly when the said Original Application was
pending, an advertisement was issued for filling up the
posts of Medical Officers in terms of the recruitment rules
wherefor notification was issued on 12.04.1999 and the
requisition was sent to the Union Public Service
Commission (hereinafter for the sake of brevity referred to
as, ‘UPSC’) for regular appointment of 37 posts of Medical
Officers, which included 18 posts filled up by the
respondents on contract basis.
Pursuant to and in furtherance thereof a large number of
candidates including the respondents herein had applied
therefor. Allegedly, the respondents had also appeared at
the written examination conducted by the UPSC on
18.03.2001. It is further alleged that some of them had
also appeared at the interview.
However, in the meanwhile, they filed another Original
Application before the Tribunal, which was marked as O.A.
No. 2590 of 2000, wherein the prayed for regularization of
their services in the post of Medical Officer or in the
alternative directing the petitioners herein to treat them as
a separate bloc for the purpose or regularization and their
cases be considered therefore on the basis of their past
work, service record and conduct.
By reason of the impugned judgment dated 16.03.2001,
the said Original Application has been allowed by the
Tribunal directing:-
“10. On a perusal of the case, we are of the
considered view that the applicants’ case is
covered by Note I, Column (11) of the R/Rules
of 1999 (supra) as they were initially
appointed as MOs(H) by a duly constituted
selection committee after their names were
sponsored by the Employment Exchange. In
view of this position, we allow the present OA
and direct the respondents to send records of
the applicants to UPSC to enable the
Commissioner to consider regularization of the
applicants against the post of MO(H) as per
Rules…”
3. Mr. V.K. Shali, the learned Counsel appearing on behalf of
the petitioners, would raise a short contention in support
of the present writ petition. The learned counsel would
contend that the learned Tribunal misdirected itself in
passing the impugned judgment insofar as it failed to take
into consideration that the purported notification dated
12.04.1999 was applicable only in relation to those who
had been holding regular posts. In any event, the learned
counsel would contend that as the respondents herein in
their Original Application did not pray for the said relief.
In any event, the said Original Application was barred
under the principles of res judicata. In support of the
aforesaid contentions, reliance has been placed on Director,
Institute of Management Development, U.P. v. Smt. Pushpa
Srivastava .
4. Mr. P.P. Rao, the learned senior counsel appearing on
behalf of the respondents, on the other hand, would
submit that the cause of action for the second Original
Application arose only when an advertisement had been
issued for direct recruitment and not prior thereto. The
learned senior counsel would submit that in view of the
fact that a subsequent cause of action had arisen, the
principles of res judicata or constructive res judicata shall
not apply.
As regards the applicability of the said notification, the
learned senior counsel would contend that the background
for issuance of the said notification should be taken into
consideration for the purpose of interpretation thereof.
According to the learned senior counsel, Dr. Jatinder Singh
& Others filed several Original Applications before the
Tribunal, which was marked as O.A. No. 1259 of 1990 and
others and by reason of an order and judgment dated
08.10.1991, the said Original Applications being O.A.No.
1259 of 1990 and other cases were allowed by the Tribunal
with several directions, which are as under:-
“20. The applications are, therefore, allowed and disposed to with the following orders and directions:-
(i) The respondents are directed to refer the cases of the applicants and those similarly situated to the Union Public
Service Commission for the purpose of regularisation of their service as Medical Officers. They should be treated as forming a separate block for the purpose of regularisation. Regularisation should be based on the evaluation of work and service records of the applicants and those similarly situated. The respondents shall do the needful in the matter within a period of four months from the date of receipt of this order.
(ii) After the services of the applicants are regularized through the Union Public Service Commission, their seniority shall be reckoned from the date of their initial appointment on ad hoc basis as Medical Officers, after condoning the technical breaks in their ad hoc service. The services rendered by them curing the period of operation of the stay order passed by the Tribunal shall also count as service for the purpose of regularisation.
(iii) After regularisation of the services of the applicants as indicated in (i) and (ii) above, the respondents will be at liberty to post the applicants as Medical Officers at places where vacancies exists. Till they are so regularized, the respondents are directed to accommodate the applicants at their present places of posting in the Hospital at Delhi. The interim orders already passed in these cases are hereby made absolute.
(iv) Till the applicants are to be regularized, they should be entitled to the same pay scales, allowances and benefits of leave,
increments etc., and other benefits of service conditions as are admissible to regularly appointed Medical officers. In the facts and circumstances, we do not direct the respondents to pay them arrears of pay and allowances for the Post Period.”
It was submitted that except with regard to the matter
relating to fixation of seniority, the Apex Court in the year
1993 in Civil Appeal arising out of SLP (C) Nos. 13578-84
of 1992 upheld the same.
According to the learned senior counsel, thus, Dr. Jatinder
Singh & Ors. became entitled to be appointed in the service
de hors the rules. Having regard to the fact that the
respondents herein had acquired experience, the learned
senior counsel would submit that those, who are in service
for more than 3 years, in terms of the decision of Dr.
Jatinder Singh’s case (Supra) should be directed to be
regularized.
It was contended that it is beyond any cavil of doubt that
for appointment in the said posts, selection was held and
their names were sponsored by the Employment Exchange.
It was submitted that at the relevant point of time there
did not exist any such rule and in that view of the matter,
the said Rules were made and according to the learned
senior counsel in terms thereof the persons who could be
regularly appointed, they should be regularly appointed
and those who are working should be assessed as if they
are in service from the initial date by the UPSC as a
separate bloc.
5. The respondents were appointed admittedly on contract
basis on a consolidated salary of Rs. 6,000/- for a period of
89 days. The relevant portion of the offer of appointment
issued to the respondent No. 1 herein dated 02.05.1997 is
as follows:-
“The Director, ISM & Homoeopathy Govt. of NCT of Delhi is pleased to appoint Dr. Anita Nanda to the post of Medical Officer on the following terms and conditions:-
1. The post is purely on contract basis for a period of 89 (Eighty Nine) days. The appointment can be terminated at any time (on either side) by giving one mont’s notice or by paying one month’s salary without assigning any reason or failure to complete the period of three months to the satisfaction of the competent authority.
2. The consolidated pay of the post is Rs. 6,000/- per month.
… … … … …
7. The appointee will not be granted any claim or right for regular appointment to the post.
… … … … …”
The terms and conditions mentioned in the said offer of
appointment were accepted by the appointees without any demur whatsoever.
6. Before the learned Tribunal, the petitioners herein had
categorically denied and disputed that the respondents
were selected through a regular selection process. Before
the learned Tribunal, the respondents merely raised a plea
that in terms of Note I in Column 11 of the recruitment
rules for the post of Junior Medical Officer (H) (in short,
‘JMO(H)) notified on 12th April, 1999, which has since
been re-designated as MO(H), their suitability should be
assessed for appointment to the upgraded post of MO(H) in
the pay-scale of Rs. 8,000/- — Rs. 13,500/- and if they are
so assessed suitable, they would be deemed to have been
appointed to the said post. The learned Tribunal noticed:-
“9. …If assessed and not found suitable for appointment to the upgraded scale of pay he/they shall continue to be in the revised scale of rs. 6500-10500 and his/their case would be reviewed every year. According to the counsel, the applicants were appointed through Employment Exchange by a selection process and therefore they are to be appointed on regular basis under the aforesaid clause of R/Rules.”
7. It was, therefore, not a case of the respondents as has been
contended before us by Mr.Rao that so far as the question
of holder of regular post is concerned, the same was only
confined to the post of JMO, which have since been re-designated
as Medical Officer and not in the case of Medical Officer, who were directly appointed.
8. The notification dated 12.04.1999 was issued by the
Lieutenant Governor in exercise of the power conferred
upon him under the Proviso appended to Article 309 of the
Constitution of India regarding the method of appointment
to the post of MO(H) in the Directorate of ISM &
Homoeopathy, Govt. of NCT of Delhi.
9. By reason of the said Rules, therefore, the procedure had
been had down, the relevant portion whereof reads thus:-
11
12
13
14
Direct Recruitment:(Vote: 1. The suitability of a regular
holders of the posts of Junior Medical Officer (Homoeopathy) [since redesignated as Medical Officer
(Homoeopathy)]
and Nan-regular Medical Officer (Homoeopathy)
will be initially assessed by the Commission for appointment to the
upgraded post of Medical Officer (Homoeopathy)
in the scale of Rs. 8000-1350O. If assessed suitable they shall
be deemed to have been appointed to the post at the initial
constitution. If assessed not suitable for appointment to the upgraded
scale of pay he / they shall
continue to be in the revised scale of Rs. 6500-10500
and his / their case would be
reviewed every year.
Not applicable
Group ‘A’ DPC’ For Considering
Confirmation
Consultation with UPSC necessary while making Direct
Recruitment
(1) Chief Secretary Govt Of Delhi
-Chairman
(2) Secretary concerned in GNCT
of Delhi – Member
(3) HOD concerned unless he is
Ex-Officio Secretary in GNCT of Delhi -Member
Note: The proceeding of the DPC
relating to confirmation of a direct recruit shall
be sent to the Commission for approval. If however these are not
approved by the Commission a fresh meeting
of the DPC to be presided over by the Chairman or a member of the UPSC shall
be held.
The aforesaid Note I relates to direct recruitment. Such
direct recruitment would be for the post of MO(H) in the
pay-scale of Rs. 8,000/- — Rs. 275/- — Rs. 13,500/-. The
classification of the post was General Central Service
Group ‘A’ Gazetted Non-Ministerial. The age limit for the
direct recruits was stated as under:-
“Not exceeding 35 years
Note : 1 — Relaxable for Govt. Servants up to 5 years in accordance with the instructions or orders issued by the Central Govt.
Column 11 thereof deals with the method of recruitment
whether by direct recruitment or by promotion or by
deputation / transfer and percentage of the vacancies to be
filled by various methods.
10. It is, therefore, not a case where direct recruitment was to
be made from amongst those who were already in service.
It is now a well-settled principle of law that a literal
meaning should be attributed and recourse to
interpretation of a statute should be made only when it is
not clear and / or unambiguous. Note I must be read with
Note II. As Note I refers to the suitability of the regular
holders of the posts of JMO(H), since re-designated as MO,
and MO(H), there is no reason as to why the words regular
holders of posts should not be read both in respect of
JMO(H), since re-designated as MO, and MO(H). Both
categories were to be placed in the scale of pay of
Rs. 8,000/- — Rs. 13,500/-, only when they are assessed
suitable, they would be deemed to have been appointed to
the said post and in the event they are not assessed
suitable for appointment to the upgraded scale, they would
be deemed to be in the revised pay-scale of Rs. 6,500/- —
Rs. 10,500/- and their cases would be reviewed every year.
It is, therefore, clear that the cases of those, who were in
the scale of Rs. 6,500/- — Rs. 10,500/- were only required
to be considered and, thus, the words “regular holders of
posts” must be given its due meaning having regard to the
said aforementioned background fact. We are, therefore,
not inclined to agree with the submission of Mr. Rao to the
effect that MO(H) were not required to be the holders of
regular posts. Even such a contention, as noticed
hereinbefore, had not been raised before the learned
Tribunal.
11. It may be true that in a given case, a statute may have to
be considered having regard to the factual backdrop
leading to the enactment thereof, but we do not find any
substance in the facts and circumstances of the case that
the said Rules wee made having regard to the decision of
the learned Tribunal in Dr. Jatinder Singh’s case (Supra),
which has been upheld by the Apex Court. The said case
of Dr. Jatinder Singh & Ors. stood absolutely on a different
footing. They were appointed at a point of time when the
other Doctors went on strike. The learned Tribunal in its
judgment dated 08.10.1991 had noticed:-
“19. All the Medical Doctors before us and those similarly situated were recruited at a time when the respondents had to meet the crises arising out of a strike by Doctors in the
Hospitals at Delhi in June, 1989. Their
appointment was in public interest and they
had to discharge their duties in difficult
circumstances and despite various threats
from the striking Doctors. They are also fully
qualified for regular appointment, except that
they were not recruited through the Medical
Services Examination held by them is on par
with that of regular Medical Officers. In our
opinion, the applicants and those similarly
situated deserve to be regularized by treating
them as forming a separate block and on the
basis of evaluation of their work and service
records. After they are so regularized, it will
be open to the respondents to post the
applicants at places where vacancies exist.”
The respondents herein do not fulfill the said condition.
It would, therefore, be incorrect to contend that the said
Rules were made keeping in view the said decision of Dr.
Jatinder Singh’s case (Supra). Neither any such case has
been made out by the respondents in their said Original
Application before the Tribunal, nor there exists any
material in support thereof.
12. Furthermore, had the respondents relied upon the decision
of the learned Tribunal in Dr. Jatinder Singh case (Supra)
which was rendered on 08.10.1991, there was absolutely
no embargo on their part to rely thereupon in the said
Original Application and pray for regularisation of their
services in the light thereof. They were not required to wait
till the aforementioned Rules were enacted. In the earlier
Original Application, the learned Tribunal by an order
dated 08.05.2000 directed as follows:-
“9. We, therefore, direct the respondents that the applicants should be continued in service till regular appointments are made to the post and applicants should be treated as having continued in service from the date of their first appointment ignoring the artificial break of one or two days in their service. In
the event of the posts being filled by regular recruits, the same shall be adjusted against vacant posts and only after all the vacant posts are filled should regular recruits replace
the present applicants and such replacements shall be on the basis of last come first go. Respondents are further
directed to grant age relaxation to the applicants to the extent of the service put in by them on contract basis in case they apply for regular appointment. We also direct the respondents to grant to the applicants same scale of pay and allowance, leave, increment, medical facilities and also other benefits of service conditions as are applicable to other MOs (H) from the date of their initial appointments.”
It is, therefore, idle to contend that their cases are covered
by the aforesaid decision of the learned Tribunal in Dr.
Jatinder Singh’s case (Supra) or otherwise.
What has been directed by the learned Tribunal in the
earlier Original Application being O.A. No. 2108 of 1999, it
is evident that the respondents were given the benefit of
the same scale of pay and allowances, etc. till the posts are
filled up by regular recruits.
13. This aspect of the matter had also been considered by this
Court at a great length in CWP No. 7217 of 2000 titled Shri
Shankar Nath Tiwary and Ors. v. Delhi Subordinate Services
Selection Board and Ors. and other connected matters
disposed of on 23.07.2002.
14. It is now a well-settled principle of law that regularisation
is not a mode of recruitment. ( See R.N. Nanjundappa v. T.
Timmaiah and Anr..
Thus, the direction of the learned Tribunal to the effect
that the records of the applicants be sent of UPSC to
enable the Commission to consider regularization would be
contrary to the recruitment rules.
15. In Director, Institute of Management Development’s case
(Supra), the Apex Court distinguishing the case of Jacob M.
Puthuparambil and Ors. etc. etc. v. Kerala Water Authority and
Ors. etc. JT 1990 (4) SC 27, which was relied upon by the learned Tribunal in Dr. Jatinder Singh’s case (Supra), inter alia on the
ground that there exist a statutory rule, it was held that
the appointment purely ad hoc and contractual for a
limited period does not confer any right upon the holders
thereof. It was observed:-
“23. In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end.
24. If the matter is viewed from this angle, that being the only view, we find no difficulty whatever in setting aside the impugned judgment which is accordingly set aside.”
16. It is a well-settled principle of law that the status of a
person can be changed only in terms of a statute or
statutory rules and not otherwise. The recruitment rules
do not provide for change of status of the respondents
herein either directly or indirectly. ( See State of M.P. v.
Dharambir ).
17. Furthermore, now, it is a well-settled principle of law that a
decision is an authority for what it decided and not what
can logically be deduced there from. It is also well settled
that a little difference in facts or additional facts may bring
in a lot of difference in arriving at a conclusion. A
decision, as is well known, is not to be read as a statute.
Directions issued by the Supreme Court under Article 142
of the Constitution of India are not to be treated as
precedent. (See Haryana Financial Corporation and Anr. v.
Jagdamba Oil Mills and Anr. ).
Furthermore, we may also notice that by reason of the said
decisions in the Civil Appeal arising out of SLP (C) Nos.
13578-84 of 1992, the Apex Court did not lay down any
law within the meaning of Article 141 of the Constitution of
India.
18. So far as the submission of Mr. Shali to the effect that the
application was barred under the principles of res judicata
is concerned, it cannot be accepted. The earlier Original
Application was filed in 1999; the advertisement was made
in February, 2000; the judgment in the earlier case was
passed on 16.03.2000; and the written examinations were
held on 18.03.2000, the respondents, thus, could not have
taken a chance by not appearing at the said written
examinations and if some of them had appeared at the said
written examinations having regard to the fact that
subsequent recruitment rules had come into force, they
cannot be permitted to take a different stand.
19. For the reasons aforementioned, the impugned judgment
cannot be sustained, which is set aside accordingly. This
writ petition is allowed. However, in the facts and
circumstances of the case, there shall be no order as to
costs.