{"id":114021,"date":"2001-04-10T00:00:00","date_gmt":"2001-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-lalita-s-rao-ors-on-10-april-2001"},"modified":"2015-05-23T23:21:25","modified_gmt":"2015-05-23T17:51:25","slug":"union-of-india-and-anr-vs-lalita-s-rao-ors-on-10-april-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-and-anr-vs-lalita-s-rao-ors-on-10-april-2001","title":{"rendered":"Union Of India And Anr vs Lalita S. Rao & Ors on 10 April, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India And Anr vs Lalita S. Rao & Ors on 10 April, 2001<\/div>\n
Author: Pattanaik<\/div>\n
Bench: G.B. Pattanaik, U.C. Banerjee, B.N.. Agrawal<\/div>\n
           CASE NO.:\nAppeal (civil) 2478-79  of  2000\n\n\n\nPETITIONER:\nUNION OF INDIA AND ANR.\n\n\tVs.\n\nRESPONDENT:\nLALITA S. RAO  & ORS.\n\nDATE OF JUDGMENT:\t10\/04\/2001\n\nBENCH:\nG.B. Pattanaik, U.C. Banerjee & B.N.. Agrawal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
WITH
\nCivil Appeal No. 2480 of 2000 and<\/p>\n
Civil Appeal No. 2680 of 2001.\n<\/p>\n
(@ S.L.P.(c) No. 18846 of 1999)<\/p>\n
JUDGMENT
\nL…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
PATTANAIK,J.\n<\/p>\n
\tLeave granted in S.L.P.(C) No. 18846\/99.\n<\/p>\n
    The\t determination of inter se seniority between the two
\ncategories   of\t  doctors    engaged\tby   the   Raililway
\nAdministration\tis  the subject matter of dispute  in  these
\nbatch of cases.\t It would be necessary to state the facts in
\na  greater  detail  in view of the chequard history  of\t the
\ncase.\tPrior  to  1986,  normal  recruit  to  the  post  of
\nAssistant  Medical Officers under the Railway Administration
\nwas  being made through a process of selection by the  Union
\nPublic\tService\t Commission.   There was no  statutory\trule
\nframed\tfor the purpose of recruitment.\t Government of India
\nin  the\t Ministry of Railway through the Railway Board\thad,
\nhowever, permitted the General Managers to recruit Assistant
\nMedical\t Officers  in Class II on ad hoc basis for a  period
\nnot  exceeding six months and such power had been  conferred
\nin  the public interest as the process of selection  through
\nUnion  Public Service Commission was taking some time.\t The
\nad  hoc\t recruits, however, were advised to apply  to  Union
\nPublic\tService Commission in response to the  advertisement
\nto  be\tissued\tby  the\t  Commission  for  getting   regular
\nappointment.   The  administrative instructions\t dated\t21st
\nMay,   1966,  unequivocally  indicated\t that  the  ad\t hoc
\nappointees  should  be made known that their services  would
\nstand  terminated  as  soon as candidates  selected  by\t the
\nCommission become available.  The aforesaid Government Order
\nalso  provided that the ad hoc appointees could be  retained
\nbeyond\tsix  months with prior approval of the Board.\tSome
\ntime  in the year 1986 several such doctors having failed in
\ntheir  attempt\tto  get selected through  the  Union  Public
\nService\t  Commission   apprehended   termination  of   their
\nservices, therefore, a batch of Writ Petitions were filed in
\nthis  Court  under  Article 32, which stood disposed  of  by
\njudgment  dated\t 24th September, 1987, (Dr.  A.K.  Jain\t and
\nothers\tvs.   Union  of\t India & Ors.<\/a>\t reported  in  1987
\n(Supp.)\t Supreme  Court Cases 497).  By the time these\tWrit
\nPetitions  were\t taken\tup  for\t  consideration\t a  set\t  of
\nRecruitment  Rules  have  been framed under the\t proviso  to
\nArticle\t 309 of the Constitution, called The Indian  Railway
\nMedical\t Department  (Assistant Medical Officers  Class\t II)
\nRecruitment  Rules,  1977, (hereinafter referred to as\tThe
\nRecruitment Rules), and the said Rule never contemplated of
\nany  ad\t hoc appointment.  Even under the provisions of\t the
\nRailway Establishment Code, which governs the recruitment of
\nthe  Group  A  service\tin   the  various  departments\tof
\nRailways, as indicated in Section 205, no ad hoc recruitment
\nwas  contemplated, and as such, the ad hoc appointments were
\nin   the  exigencies  of  service   to\tmeet  a\t  particular
\ncontingency  under  the Administrative Orders of the  Board.
\nThis  Court  disposed of the batch of cases  with  following
\ndirections:-\n<\/p>\n
      (1)  The services of all doctors appointed either\t as
\nAssistant  Medical  Officers  or   as  Assistant  Divisional
\nMedical Officers on ad hoc basis up to October 1, 1984 shall
\nbe regularised in consultation with the Union Public Service
\nCommission  on\tthe evaluation of their work and conduct  on
\nthe  basis  of\ttheir confidential reports in respect  of  a
\nperiod subsequent to October 1, 1982.  Such evaluation shall
\nbe done by the Union Public Service Commission.\t The doctors
\nso  regularised\t shall be appointed as Assistant  Divisional
\nMedical\t Officers with effect from the date from which\tthey
\nhave   been  continuously  working   as\t Assistant   Medical
\nOfficer\/Assistant  Divisional Medical Officer.\tThe  Railway
\nshall  be at liberty to terminate the services of those\t who
\nare  not  so  regularised.  If the services of\tany  of\t the
\npetitioners  appointed\tprior to October 1, 1984  have\tbeen
\nterminated except on resignation or on disciplinary grounds,
\nhe  shall be also considered for regularisation and if found
\nfit  his  services shall be regularised as if there  was  no
\nbreak  in  the\tcontinuity of service but without  any\tback
\nwages.\n<\/p>\n
    (2)\t  The\tpetitions   of\t  the\tAssistant    Medical
\nOfficers\/Assistant  Divisional\tMedical\t Officers  appointed
\nsubsequent  to\tOctober 1, 1984 are dismissed.\tBut  however
\ndirect\tthat  the Assistant Divisional Medical Officers\t who
\nmay  have  been\t now selected by the  Union  Public  Service
\nCommission  shall  first  be  posted  to  the  vacant  posts
\navailable  wherever  they may be.  If all those selected  by
\nthe UPSC cannot be accommodated against the available vacant
\nposts  they  may  be  posted to the posts now  held  by\t the
\ndoctors\t appointed on ad hoc basis subsequent to October  1,
\n1984  and on such posting the doctor holding the post on  ad
\nhoc basis shall vacate the same.  While making such postings
\nthe  principle of last come, first go shall be observed by
\nthe Railways on zonal basis.  If any doctor who is displaced
\npursuant  to the above direction is willing to serve in\t any
\nother  zone where there is a vacancy he may be\taccommodated
\non ad hoc basis in such vacancy.\n<\/p>\n
    (3)\t All Assistant Medical Officers\/Assistant Divisional
\nMedical\t Officers working on ad hoc basis shall be paid\t the
\nsame  salary and allowances as Assistant Divisional  Medical
\nOfficers  on  the revised scale with effect from January  1,
\n1986.  The arrears shall be paid within four months.\n<\/p>\n
    (4)\t No  ad\t hoc   Assistant  Medical  Officer\/Assistant
\nDivisional  Medical  Officer  who  may\tbe  working  in\t the
\nRailways  shall be replaced by any newly appointed  AMO\/ADMO
\non ad hoc basis.  Whenever there is need for the appointment
\nof  any AMO\/ADMO on ad hoc basis in any zone the existing ad
\nhoc  AMO\/ADMOs\twho are likely to be replaced  by  regularly
\nappointed candidates shall be given preference.\n<\/p>\n
    (5)\t If  the ad hoc doctors appointed after\t October  1,
\n1984  apply  for  selection  by\t the  Union  Public  Service
\nCommission  the\t Union of India and the Railways  Department
\nshall  grant relaxation in age, to the extent of the  period
\nof service rendered by them as ad hoc in the Railways.\n<\/p>\n
    Be\tit be stated the Court took a compassionate view  of
\nthe matter and directed regularisation of the ad hoc doctors
\nin  consultation with the Union Public Service Commission on
\nthe  evaluation\t of  their work and on the  basis  of  their
\nConfidential  Reports, but did not indicate as to how  their
\nseniority   in\t the   cadre   could  be   determined.\t  An
\nInterlocutory Application, titled Dr.  M.Haque and ors.\t vs.
\nUnion  of  India<\/a>  was  thereafter filed in  this  Court\t for
\nappropriate  direction\tas to how their seniority  could  be
\ndetermined.  This application was disposed of by order dated
\n18.2.1993,  since  reported  in 1993 (2)  SCC  213.   Before
\nfiling\tof the aforesaid Interlocutory Application the Union
\nof  India  had itself moved an application before the  Court
\nand  that stood disposed of by order dated 1.11.1988 and the
\norder was to the following effect:-\n<\/p>\n
    We\thave  heard learned counsel for the Union of  India
\n(the applicant in this civil miscellaneous petition) and the
\nlearned\t counsel  for the petitioners in the writ  petition.
\nIn  the\t circumstances\tof the case we feel that  the  Union
\nGovernment  should be directed to implement the order passed
\nby us in the Writ Petition Nos 522, 875, 180 and 200 of 1987
\nand  connected cases on September 24, 1987 in full except to
\nthe  extent  of\t fixing the inter se seniority\tbetween\t the
\npetitioners  in\t the writ petition and the direct  recruits.
\nWe  accordingly made an order in this case.  The question of
\nseniority,  however, is left to be decided by the Government
\nin the light of the decision to be rendered by this Court in
\nthe  cases  which are pending before the Constitution  Bench
\ninvolving  similar questions.  If any person is aggrieved by
\nthe  decision of the Government on the question of seniority
\nhe  is\tat liberty to question it in an\t appropriate  forum.
\nThe  order passed by us in the writ petition subject to\t the
\nabove  modification  shall  be complied with  by  the  Union
\nGovernment within two months without failure.\n<\/p>\n
    The\t  civil\t miscellaneous\tpetition   is  disposed\t  of
\nacordingly.\n<\/p>\n
    In\tInterlocutory  Application this Court was  concerned
\nwith  those  Assistant Divisional Medical Officers  who\t had
\nbeen  appointed\t between 1968 and 1st October,\t1984,  whose
\nservices  stood\t regularised pursuant to the order  of\tthis
\nCourt  in  Jains  case\t(1987 (Suppl.) SCC  497),  but\tthe
\nseniority  had not been fixed up.  The Court for fixing\t the
\ninter  se seniority of the doctors considered the  existence
\nof three classes of Assistant District Medical Officers<\/p>\n
    (i)\t The  outsiders\t who have  been\t directly  recruited
\nthrough\t Union\tPublic\tService Commission on the  basis  of
\nwritten test or interview;\n<\/p>\n
    (ii)  Ad hoc appointees who were initially recruited  ad
\nhoc but in the course of their continuance as ad hoc came to
\nbe   regularly\trecruited  through   Union  Public   Service
\nCommission  by\tappearing  in the  written  examination\t and
\ninterview;\n<\/p>\n
    (iii) The petitioners in Dr.  Jains case who either did
\nnot  appear in the written examination and interview or\t had
\nfailed\tto  get\t through the UPSC examination but  could  be
\nregularised   because  of  the\t Courts\t order\tdated  24th
\nSeptember, 1987 (1987 Suppl.  Supreme Court Cases  497), as
\nwell  as the Clarificatory order passed on 1.11.1988 on\t the
\napplication  filed  by the Union of India.  By the  date  an
\nInterlocutory\tApplication   was   being   considered\t the
\nConstitution  Bench decision in the Direct Recruit Class  II
\nEngineering  Officers  Association  case had  already  been
\npronounced.   (1990 (2) Supreme Court Cases 715).  The Court
\nconsidered  the\t principles evolved in the  direct  recruits
\ncase  and held that neither guideline A nor guideline  B
\nwould  govern the case of those Assistant Divisional Medical
\nofficers  who could be regularised only in pursuance to\t the
\nearlier\t orders\t of  the Court in Jains\t case(supra).\tThe
\nCourt  ultimately  held that so far as, the  outsiders,\t who
\nhave been directly recruited through the UPSC and the ad hoc
\nappointees,  who have been also regularised by appearing  in
\nthe  written  examination  conducted by the UPSC  and  being
\nselected  by  the UPSC, their seniority will  be  determined
\naccording  to the dates of their regular appointment and the
\nad  hoc\t appointees  who could not get selected or  did\t not
\nappear\tin  the examination conducted by the UPSC  could  be
\nplaced\tin  the seniority list after two former\t categories.
\nIt  may\t be stated for the purpose of convenience  that\t the
\nnomenclature  of  these\t three\t categories  of\t doctors  is
\nassigned  as :- (i)outsiders, directly recruited doctors  on
\nthe  basis of selection through UPSC;  (ii) insiders, ad hoc
\nrecruits  those\t regularised after being successful  in\t the
\nUPSC  examination  and\ton being selected by the  UPSC,\t and\n<\/p>\n
(iii)  the  unsuccessful Medical Officers through  UPSC\t who
\nstood regularised pursuant to the orders of the Court in Dr.
\nA.K.   Jain  (supra) and the subsequent clarificatory  order
\ndated  1.11.1988  on the application filed by the  Union  of
\nIndia.\t In  the application which was disposed of by  order
\ndated  18.2.1993 (1993 (2) SCC 213) this Court was  actually
\nconcerned  with evolving a principle of determining inter se
\nseniority  between  the third category of Medical  Officers,
\nnamely,\t who were regularised pursuant to the order of\tthis
\nCourt  in  Dr.\t A.K.  Jains case and  the  direct  recruit
\nMedical\t Officers  appointed  on  the basis  of\t they  being
\nselected  by the Union Public Service Commission.  The inter
\nse  dispute between those outsiders direct recruits and\t the
\ninsiders direct recruits, who were initially appointed on ad
\nhoc  basis  but got themselves selected by appearing in\t the
\nexamination through UPSC had not been really in issue though
\nin the ultimate analysis the Court had made some observation
\nin  respect  of them.  While the matter stood thus  Dr.\t  P.
\nSrinivasulu and 20 others who belong to the second category,
\nnamely,\t  insider  ad  hoc   recruits  who  got\t  themselves
\nregularised  after  being  selected by the  UPSC  either  by
\nwritten\t examination  or by interview filed  an\t application
\nbefore the Central Administrative Tribunal, Principle Bench,
\nNew  Delhi which was registered as O.A.\t No.  1603 of  1987.
\nThe  Tribunal  in the aforesaid case came to the  conclusion
\nthat  the  ad hoc appointees being regularised\tafter  being
\nselected  through the UPSC would be entitled to get their ad
\nhoc  period  also counted towards seniority, and  therefore,
\nthe seniority list that had been drawn up on 10th June, 1987
\nwas  quashed.\tThis  order of the Tribunal  is\t dated\t18th
\nMarch, 1993.  It may be stated herein that the Interlocutory
\nApplication  that had been filed in Writ Petition No.\t1165
\nof  1986  though had been disposed of on 18th February\t1993
\nbut  the  same\thad not been brought to the  notice  of\t the
\nTribunal.   The\t order of the Tribunal was assailed  by\t the
\nUnion  of  India  in Special Leave  Application,  which\t was
\nregistered  as\tSLP(C)\tNo.  10714 of 1993,  but  the  Court
\nrefused to grant leave after hearing the counsel for parties
\nby  order  dated 15.11.1993.  While dismissing\tthe  Special
\nLeave  Application  the Court did consider the\torder  dated
\n18th  February,\t 1993  passed in  Interlocutory\t Application
\n(1993  (2)  Supreme  Court  Cases  213)\t and  came  to\tthe
\nconclusion  that  the two category of people who  are  being
\ndealt  with  are  different  and what  has  been  stated  in
\nInterlocutory  Application  will have no application to\t the
\ncase  of  Srinivasulu since Srinivasulu and others had\tbeen
\nselected  through  UPSC and got regularised.  The  Union  of
\nIndia  thereafter filed an application for clarification and
\nmodification  of  the  order  dated  15.11.1993,  which\t was
\nregistered  as\tI.A.  No.  2 in Special Leave  Petition\t No.
\n10714\/93.   But\t that  was  also dismissed  by\torder  dated
\n13.5.1994  holding  that  no clarification  is\tneeded.\t  It
\nappears, that several Writ Petitions, filed under Article 32
\nof  the\t Constitution, some by the Doctors  Association\t and
\nsome  by  the individual were also dismissed by\t this  Court
\nsubsequent  to the aforesaid order dated 28th February, 1993
\nand  the  order\t in Srinivasulus case was  implemented\tand
\nthose  of the doctors who were party to the said case (21 in
\nnumber) their seniority was revised by the Union of India by
\norder  dated  24th August, 1994.  One doctor D.P.  Pande,  a
\ndirect\trecruit, had filed a Writ Petition under Article 32,
\nwhich was registered as Writ Petition No.  612 of 1994, that
\nwas,  however,\tdismissed by the Court on 4.10.1994.   While
\ndismissing  the\t Writ Petition this Court had observed\tthat
\ndismissal  will not prevent the petitioners from moving\t the
\nTribunal  or  any other appropriate forum.  Said Dr.   Pande
\nthen   approached  the\t Central  Administrative   Tribunal,
\nPrincipal  Bench,  but\tthe application\t was  dismissed\t for
\ndefault.   A  Writ  Petition  was filed\t by  a\tDr.   Satish
\nChandra,  which\t was registered as Writ Petition No.  30  of
\n1995.\tBut that was withdrawn and he filed a Special  Leave
\nPetition  which\t was registered as S.L.P.  (Civil)  No.\t  CC
\n4125  of  1995.\t  That\twas also dismissed  by\torder  dated
\n11.4.1997.   Dr.   Lalita Rao  respondent no.  1  in  Civil
\nAppeal\tNos.  2478- 79 of 2000, filed application before the
\nCentral\t Administrative Tribunal, Principal Bench, New Delhi
\nclaiming  same\tbenefit that had been given to\tSrinivasulu.
\nThis Application was registered as OA No.  321 of 1996.\t The
\nDirect\tRecruits  Railway Doctors Association also  filed  a
\nWrit  Petition in Delhi High Court, which was registered  as
\nC.W.P.\t 2802  of  1997.  Some direct recruit  doctors\talso
\nindividually  filed Writ Petition in Delhi High Court, which
\nwas  registered\t as Writ Petition No.  2795 of 1997.   Delhi
\nHigh  Court  by judgment dated 16.4.1999 dismissed the\tWrit
\nPetitions  filed  on  the  ground  that\t the  Special  Leave
\napplication   against  the  judgment  of  the  Tribunal\t  in
\nSrinivasulus  case having been dismissed the relief  sought
\nfor  by\t the  direct recruits cannot be granted.   The\tsaid
\njudgment  of the Delhi High Court is under challenge in this
\nCourt in C.A.  No.  3057 of 1999.  Civil Appeal No.  2478-79
\nof  2000  have been filed by the Union of India against\t the
\nsaid  judgment of Delhi High Court dated 16.4.1999 passed in
\nCivil Writ Petition Nos.  2802 of 1997 and 2795 of 1997, one
\nfiled by the Direct Recruits Railway Doctors Association and
\nthe  other filed by some individual direct recruit  doctors.
\nWhen  the  matter had been placed before this Court on\t13th
\nJanuary,  2000, prima facie being of the view the  direction
\nin  Haques  case would run contrary to the  directiions\t in
\nSrinivasulus  case, the case had been placed before a three
\nJudge  Bench.\tThe  three Judge Bench by order\t dated\t31st
\nMarch,\t2000  granted leave and that is how the\t matter\t has
\nfinally\t been  heard  by a three Judge Bench.\tAgainst\t the
\njudgment  of Delhi HIGH COURT in Civil Appeal Nos.   2802\/97
\nand  2795  of  1999,  the Direct  Recruits  Railway  Doctors
\nAssociation  have moved this Court in Civil Appeal No.\t2480
\nof  2000.   The\t Indian Railways Medical Officers  (ad\thoc)
\nAssociation  through  its  General Secretary  doctor  Sudhir
\nSharma\tand  one  doctor C.P.  Singh  filed  an\t Application
\nbefore\tthe  Central  Administrative Tribunal  praying\tthat
\ntheir  past services as ad hoc doctor should also be counted
\nfor   the  purpose  of\ttheir\tseniority  as  directed\t  in
\nSrinivasulus case.  This application was registered as O.A.
\nNo.   1555  of\t1996.  Dr.  Brahm Prakash &  Anr.   who\t are
\npetitioners  in\t Special Leave Petition No.  18846  of\t1999
\nwere allowed to intervene in the said proceedings.  Tribunal
\nultimately  allowed  the  application\tand  following\t the
\njudgment  in Srinivasulus case called upon the\tauthorities
\nto  re-fix the seniority.  That judgment of the Tribunal was
\nassailed  before  the  Delhi  High Court by  filing  a\tWrit
\nPetition,  which was registered as CWP No.  3916 of 1999.  A
\nDivision  Bench of High Court dismissed the Writ Petition on
\nthe ground that against the earlier judgment of the Division
\nBench  in  C.W.P.   Nos.  2795 of 1997 and 2802 of  1997,  a
\nSpecial Leave Petition, filed by the Direct Recruits doctors
\nhaving\tbeen  dismissed nothing survives in the matter.\t  As
\nstated\tearlier,  the aforesaid judgment of the\t Delhi\tHigh
\nCourt  in C.W.P.  Nos.\t2795 of 1997 and 2802 of 1997 is the
\nsubject matter of challenge in Civil Appeal Nos.  2478-79 of
\n2000, filed by the Union of India.\n<\/p>\n
    The\t Railway  Establishment\t Code contains\tthe  general
\nprovisions  indicating the method of recruitment to Group  A
\nservice\t in  the  various  departments\tof  railways  as  in
\nParagraph 205.\tThe same is quoted hereinbelow in extenso:-\n<\/p>\n
    205.   Method  of Recruitment:- Recruitment to Group  A
\nservice in the various departments of Railways shall be made
\nthrough<\/p>\n
    (a)\t Competitive  Examination held by the  Union  Public
\nService Commission;\n<\/p>\n
    (b)\t Promotion of officers in Group B Service  including
\nofficiating  Group  B  Railway officers of  the\t service  or
\ndepartment;\n<\/p>\n
(c) By appointment of candidates initially
\nrecruited as Special Class Apprentices
\non the results of the examination
\nconducted by U.P.S.C. in accordance
\nwith the rules for recruitment to Indian
\nRailway Service of Mechanical
\nEngineers.\n<\/p>\n
    (d)\t By  transfer  of  an  officer\tin  service  of\t the
\nGovernment   provided  the  recruitment\t  rules\t include   a
\nprovision to this effect.\n<\/p>\n
    (e)\t By occasional admission of other qualified  persons
\nin consultation with the U.P.S.C.\n<\/p>\n
    It\tthus stipulates that recruitment could be made by  a
\ncompetitive  examination  held by the Union  Public  Service
\nCommission  by\tpromotion  of  officers\t from  Group  B,  by
\nappointment  of\t candidates initially recruited\t as  Special
\nClass  Apprentice,  by transfer of an officer in service  of
\nthe   government,   provided   Recruitment  Rules   included
\nprovision  to the said effect and by occasional admission of
\nother  qualified  persons  in consultation  with  the  Union
\nPublic\tService Commission which would obviously be a direct
\nrecruitment.   The President of India, in exercise of powers
\nconferred  by the proviso to Article 309 of the Constitution
\nmade a set of Rules for recruitment to the post of Assistant
\nMedical\t Officers  (Class II) called, The  Indian  Railways
\nMedical\t Department  (Assistant\t Medical Officer  Class\t II)
\nRecruitment  Rules,  1967 (hereinafter referred to  as\tThe
\nRecruitment  Rules of 1967).  The said Rule came into force
\nwith  effect from 29th July, 1967.  Rule 4 of the  aforesaid
\nRules  provides, that the method of recruitment to the post,
\nage  limit,  qualification  and\t  other\t matters   connected
\ntherewith,  would be as specified in Columns 5 to 13 of\t the
\nSchedule.   Rule 8 is the power of relaxation of the Central
\nGovernment  and\t that  power could be exercised\t only  after
\nrecording  reasons  in\twriting\t and that also\tmust  be  in
\nconsultation  with the Union Public Service Commission.\t  So
\nfar  as\t the  Assistant Medical Officer\t is  concerned,\t the
\nRecruitment  Rules  of\t1967 provides that it  could  be  by
\npromotion  to  the extent of 25% and by\t direct\t recruitment
\nincluding  occasional  recruitment  from  other\t sources  in
\nconsultation with the UPSC to the extent of 75%, and failing
\nboth  the aforesaid methods then by transfer on\t deputation.
\nPrior  to  the\taforesaid  Recruitment Rules  there  was  no
\nstatutory  rule, and therefore, recruitments were being made
\nin   accordance\t  with\t paragraph   205  of   the   Railway
\nEstablishment Code and the Assistant Medical Officer being a
\npost  in  Group\t A service it was being made  through  Union
\nPublic\tService\t Commission.  The letter of the Ministry  of
\nRailways,  Government  of  India   dated  21.5.1966  clearly
\nassumes\t the  aforesaid position and by this letter  General
\nManagers  were\tpermitted  to\trecruit\t Assistant   Medical
\nOfficers  in  Class II on an ad hoc basis for a\t period\t not
\nexceeding six months even though by the date of the issuance
\nof  the aforesaid letter Union Public Service Commission had
\nalready\t advertised  the vacancies and made arrangements  to
\ncomplete   the\tselections  expeditiously.    It  would\t  be
\nappropriate  to\t extract  the aforesaid\t letter\t in  extenso
\nhereunder :-\n<\/p>\n
\t\t\t       New Delhi, dated 21.5.1966
\nNo.E(GR)I-66-RC12-3<\/p>\n
The General Managers
\nAll Indian Railways including CLW and DLW,<\/p>\n
The Chief Administrative Officer,<\/p>\n
Sub: Recruitment of Assistant Medical  Officers
\non the Indian Railways.\n<\/p>\n
\t\t\t,,,,<\/p>\n
    Reference  Boards  letter No.  E(GR)I-66  RC12-1  dated
\n20.4.1966  addressed to the Secretary, Union Public  Service
\nCommission and copy endorsed to all Railway Administrations.
\nThe  Union  Public  Service Commission have  advertised\t the
\nvacancies  and made arrangements to complete the  selections
\nas expeditiously as possible.\n<\/p>\n
    2.\t However, in order to enable Railway Administrations
\nto man the existing vacant posts which cannot, in the public
\ninterest,  continue  to\t be kept unfilled  until  candidates
\nselected  by the Commission become available, the Board have
\nwith the approval of the President, decided that the General
\nManagers  may recruit Assistant Medical Officers in Class II
\non  an\tad hoc basis for a period not exceeding six  months.
\nThe  candidates\t so appointed should be advised to apply  to
\nthe  Union  Public  Service Commission in  response  to\t the
\nadvertisement  issued  by them for filling vacant  posts  of
\nAssistant Medical Officers on Railways and it should be made
\nperfectly  clear  to  them that their  services\t are  purely
\ntemporary  and\twill  be terminated as\tsoon  as  candidates
\nselected   by\tthe  Commission\t  become   available.\t The
\nparticulars  of\t candidates so appointed viz.  their  names,
\nqualifications,\t  experience,  date  of\t  birth,   date\t  of
\nappointment, etc.  may please be forwarded to this office in
\ndue course.\n<\/p>\n
    3.\t The  Union Public Service Commission  advertisement
\nfor  posts  of\tAssistant Medical Officers has\tappeared  on
\ntodays papers.\tThe Assistant Medical Officers recruited on
\nad  hoc\t basis\tby  General   Managers\tshould\tfulfil\t the
\nqualifications\t laid\tdown  therein.\t A   copy   of\t the
\nadvertisement is enclosed.\n<\/p>\n
    4.\t The  Board have also suggested that you may try  to
\nobtain\t assistance  from  State   Governments\tby   getting
\nqualified doctors on the normal deputation terms for a short
\nperiod of about six months.\n<\/p>\n
    5.\tAssistant Medical Officers appointed on ad hoc basis
\nshould\tnot be retained in service beyond six months without
\nBoards\tprior approval.\t Where, due to non-availability\t of
\ncandidates  selected by the Commission, it becomes necessary
\nto  continue the appointment of locally recruited doctors  a
\nreference  should  be made to the Board two clear months  in
\nadvance.\n<\/p>\n
    The\t 1967  Recruitment  Rules stood superseded  on\t16th
\nSeptember,  1977  when\tthe President of India\tenacted,  in
\nexercise  of powers conferred by the proviso to Article 309,
\nanother\t set  of  Rules called, The Indian  Railway  Medical
\nService\t (Assistant Divisional Medical Officer)\t Recruitment
\nRules,\t1977.  The aforesaid Rules were given  retrospective
\neffect\tand  must  be deemed to have come  into\t force\tfrom
\n16.10.1976.   Rule 3 of 1977 Recruitment Rules also provides
\nthat  the  method of recruitment, age limit,  qualifications
\nand other matters relating to the post of Assistant District
\nMedical\t Officer would be as specified in columns 5 to 13 of
\nthe  Schedule.\t Rule 7 of 1977 Rules further provides\tthat
\nthe  persons  who are recruited under the Rules to  post  to
\nwhich the conditions prescribed in Rule 2423  (CSR) 404B of
\nthe  Indian  Railway  Establishment Code applies,  shall  be
\neligible  to the benefit of the provisions contained in that
\nRule.\tBy the time the 1977 Rules came into force there had
\nbeen  re-  organisation\t of  the   cadre  on  the  basis  of
\nrecommendations\t of the Third Central Pay Commission,  being
\naccepted  by the Government of Indian and Class II cadre  in
\nthe Railway Medical Service (which was the post of Assistant
\nDistrict  Medical  Officer in the 1967\tRecruitment  Rules),
\nstood  abolished and a combined junior and senior scale\t was
\nintroduced,  the  cadre being Assistant\t Divisional  Medical
\nOfficer.   This\t is  apparent  from the\t Resolution  of\t the
\ngovernment  of India dated 1st May, 1974, as notified in the
\nGazette.   In  the Recruitment Rules of 1977, so far as\t for
\nthe  post  of  Assistant Divisional  Medical  Officers,\t the
\nmethod\tprovided  was  either by direct\t recruitment  or  by
\npromotion  or  by deputation\/transfer and the percentage  of
\nvacancies  to be filled by various methods was to be decided
\nin  consultation  with the Union Public Service\t Commission.
\nSo  far as the outsider direct recruitment is concerned, the
\nsame  was required to be made through a written\t examination
\nfollowed  by  interview,  on the basis of  such\t schemes  of
\nexamination to be decided from time to time, in consultation
\nwith  the  Union Public Service Commission, and failing\t the
\ndirect\trecruitment  it could be by transfer on\t deputation.
\nThe  scale  of\tpay  for the post  of  Assistant  Divisional
\nMedical\t Officer   was\tRs.700-40-900-EB-50-1250-EB-50-1600.
\nThough\tthe  post of Assistant District Medical Officer,  as
\nprovided in the Railway Establishment Code as well as in the
\n1967 Recruitment Rules stood abolished under the Recruitment
\nRules  of  1977,  but a note was  appended  indicating\tthat
\nexisting Assistant Medical Officers (Group B) shall continue
\nin  Group  B post in scale of pay of Rs.650-1200  till\tsuch
\ntime  they  are selected for absorption in Group A Grade  of
\nAssistant  Divisional  Medical Officer in consultation\twith
\nthe  Union  Public Service Commission.\tBy the time  the  77
\nRecruitment  Rules came into force the Union Public  Service
\nCommission had already issued advertisement on 16th October,
\n1976  to  hold\texamination  for  filling  up  the  post  of
\nAssistant Divisional Medical Officer Class I, the said cadre
\nhaving come into existence in the year 1974 on acceptance of
\nthe  recommendaion  of\tThird\tCentral\t Pay  Commission  by
\nGovernment of India, and therefore, to regularise the matter
\n1977  Recruitment Rules was given retrospective effect\twith
\neffect\tfrom  16.10.1976.   We have devoted  a\tconsiderable
\nattention  to these Rules, as in the earlier cases  referred
\nto,  in\t Haques case (supra) as well as\t Srinivasulus  and
\nothers,\t the relevant Recruitment Rules had not been brought
\nto  the\t notice of the Court.  It is too well settled,\tthat
\nthe seniority of an employee in a cadre has to be determined
\nin  accordance with the Rules if such Rules provided for the
\nsame.  But if such Rules do not make any provision or do not
\nfix  the  criteria  for determination of  seniority  of\t the
\nemployees  in  a cadre then the same could be determined  on
\nthe principles enunciated by the Constitution Bench decision
\nin the Direct Recruits Engineering Officers case  1992 (2)
\nSupreme\t Court Cases.  This being the position, and in\tview
\nof  the\t letter of Government of India, in the\tMinistry  of
\nRailways  dated\t 21.5.1966 authorising General\tManagers  to
\nrecruit\t Assistant Medical Officer Class II on ad hoc  basis
\nfor  a\tperiod\tnot  exceeding\t six  months,  and   further
\nindicating  that such ad hoc appointees should apply to\t the
\nUnion\tPublic\tService\t Commission  in\t response   to\t the
\nadvertisement  issued by the Commission, those of the ad hoc
\nappointees who had not got themselves regularised by getting
\nthemselves  selected  through UPSC examination will  not  be
\nentitled  to  claim the benefit of their ad hoc\t period\t for
\nbeing  counted\tfor the purposes of seniority in the  cadre,
\nafter  they were regularised pursuant to order of this Court
\nin  A.K.Jains  case  (supra)  .\t  In  fact  the\t directions
\ncontained  by  this Court in Dr.  Jains case (supra)  deals
\nwith  all  the ad hoc doctors appointed either as  Assistant
\nMedical\t Officer or as Assistant Divisional Medical  Officer
\nupto  October 1, 1984 should be regularised in\tconsultation
\nwith  the  UPSC on the evaluation of their work.  The  Court
\nhaving\tissued\tthe  direction for  regularisation  even  in
\nrespect\t of Assistant Divisional Medical Officers  appointed
\nafter  coming  into force of the Recruitment Rules of  1977,
\nadvisedly  did not indicate as to how their seniority in the
\ncadre  would  be determined and these group of officers\t who
\ngot  themselves regularised in pursuance to the order of the
\nCourt  were treated to be a separate group by itself in\t the
\nClarificatory  Order of this Court.  When the Union of India
\nmoved  application  finding  difficulty\t  in  adjusting\t the
\nseniority  of  those  ad  hoc  doctors\tappointed  upto\t 1st
\nOctober,   1984,  who  were   regularised  pursuant  to\t the
\ndirection  of  the Court dated 24th September, 1987  in\t Dr.
\nA.K.   Jains case (supra) that application was disposed of,
\nas already indicated, by order dated 1.11.1988.\t In the said
\norder  it  was\tspecifically  indicated that  the  inter  se
\nseniority  between  the\t direct\t recruits  and\tthe  ad\t hoc
\nrecruits  who got themselves regularised under the orders of
\nthe  Court  in Jains case (supra) should be decided by\tthe
\nGovernment  in\tthe light of the decision to be rendered  in
\nthe  cases  which are pending before the Constitution  Bench
\ninvolving  similar questions.  After the Constitution  Bench
\ndecision  in  the  Direct   Recruits  Class  II\t Engineering
\nOfficers   Association\t case\t(supra)\t  an   Interlocutory
\nApplication  No.  1 of 1992 was filed and that stood disposd
\nof  by\torder  dated  February 18, 1993,  called  Dr.\tM.A.
\nHaques\tcase (supra).  In paragraph 7 of the said order the
\nCourt  has kept in mind three classes of Assistant  District
\nMedical\t Officers, namely, the outsiders directly  recruited
\nthrough\t UPSC,\tad hoc appointees who came to  be  recruited
\nthrough\t UPSC  by  appearing in the written  examination  or
\ninterview;   and those who had filed I.A.  were also ad\t hoc
\nappointees    but   did\t  not\t  appear   in\ta    written
\nexamination\/interview or had failed to get through but could
\nbe   regularised   in  service\t because  of   the   Courts
\nintervention  and order dated 24.9.1987 and 1.11.88.  So far
\nas  the\t direct recruits are concerned, both  outsiders\t and
\ninsiders,  it  was held, that the same should be  determined
\naccording to the dates of their regular appointments through
\nUPSC  and  so  far as those ad hoc appointees who  could  be
\nregularised  only  pursuant to the order of the\t Court\tthey
\nwere  directed to be placed after those direct recruits\t who
\nhad  been  recruited till the date of the order.   In  other
\nwords  even  in case of insider direct recruits i.e.   those
\nwho  joined  as\t ad  hoc   appointees  but  got\t  themselves
\nregularised  after appearing in the examination or interview
\nand being selected by UPSC the Court did not apply guideline
\nB  of  the  Direct Recruits Class  II  Engineering  Officers
\nAssociation  case(supra).  It must be borne in mind that the
\napplicants who had filed Interlocutory Application belong to
\nthe  Third category, namely, those who could be\t regularised
\nbecause\t of the orders of the Court in AK Jains case  dated
\nSeptember  24,\t1987  and   the\t Clarificatory\torder  dated
\n1.11.1988  on  the application of the Union of India and  in
\nthat  proceeding  neither the outsiders\t directly  recruited
\ndoctors\t nor  insiders directly recruited doctors  had\tbeen
\narrayed\t as  parties.\tThe present dispute  appears  to  be
\nbetween\t the  outsider direct recruits, who  got  themselves
\nrecruited by appearing at the test conducted by the UPSC and
\nthe   insider  direct  recruits,   who\tinitially  had\tbeen
\nappointed  on  ad  hoc\tbasis but  got\tthemselves  selected
\nthrough\t UPSC while continuing in service.  But the Union of
\nIndia  is  of  the view that the  principles  enunciated  in
\nHaques\t case  is  running   contrary  to  the\t principles
\nenunciated  in Srinivasulus case by the Tribunal and upheld
\nby  this Court.\t In view of the apprehended confusion in the
\nmind  of  the  Railway\tAdministration\ton  account  of\t the
\njudgments  of this Court, referred to earlier, and for doing
\ncomplete justice in the matter of determination of seniority
\namongst\t the  medical  officers\t recruited  by\tthe  Railway
\nAdministration\tthrough\t the  UPSC, we have  approached\t the
\nproblem\t on consideration of the different Rules in force as
\nwell  as the orders issued by this Court in several  earlier
\ncases and this should apply irrespective of the fact whether
\nsome  are parties to this proceeding or not.  In fact one of
\nthe  grievance\tof insider direct recruit  Medical  Officers
\nlike,  doctor Srinivasulu is that they had not been  arrayed
\nas  party  when the Court was considering the  Interlocutory
\nApplication filed by doctor Haque for determination of their
\nseniority,  who\t belong\t to  the category,  namely,  ad\t hoc
\nappointees  who\t got  recruited without\t getting  themselves
\nselected  through any examination conducted by the UPSC only
\nbecause\t of  the compassionate view that was taken  by\tthis
\nCourt  in Dr.  A.K.  Jains case (supra).  A similar problem
\narose  in  the\tcase  of  Traffic  Apprentices\tin  Southern
\nRailways  and a Three Judge Bench of this Court in the\tcase
\nof Union of India and others vs.  M.  Bhaskar and Others (JT<\/a>
\n1996  (5)  SC 500), issued directions  notwithstanding\tsome
\nother  Traffic\tApprentices who would be  directly  affected
\nwere  not  parties.   The correctness of that  decision\t was
\nconsidered  by the Constitution Bench in the case of  E.S.P.
\nRajaram\t & Ors.\t vs.  Union of India & Ors., JT<\/a> 2001 (1)  SC
\n573,  and  the\tConstitution  Bench came to  hold  that\t the
\njudgment  in  Bhaskars\tcase (supra) does not  require\tany
\nre-consideration,  the Court having invoked its power vested
\nunder  Article\t142 of the Constitution for  doing  complete
\njustice amongst the Traffic Apprentices in Southern Railways
\nand  the  decision\/direction  therein could  not  have\tbeen
\nnullified  on  the ground that an affected person was not  a
\nparty  to  the\tsame.  In the aforesaid background  and\t the
\nearlier\t  judgments  of\t this\tCourt  on  being  critically
\nanalysed,  it  would appear that in Dr.\t A.K.\tJains  case
\n(supra)\t this Court merely directed that the services of all
\ndoctors\t appointed  on\tad hoc basis, whether  as  Assistant
\nMedical\t Officer or Assistant Divisional Medical Officer  up
\nto  1.10.1984 shall be regularised in consultation with\t the
\nUPSC on the evaluation of their work conduct on the basis of
\ntheir  CRs in respect of the period subsequent of October 1,
\n1984.\tSo far as these doctors\t ad hoc appointees, who got
\nthemselves regularised pursuant to the orders of this Court,
\nthe  question  of  counting  their prior ad  hoc  period  of
\nservice\t for  determination of their seniority in the  cadre
\ndoes  not  arise.  Though in doctor Jains case\t(supra)\t as
\nwell  as in the subsequent order on the application filed by
\nthe  Union  of India the Court had not indicated as  to\t how
\ntheir seniority in the cadre would be determined, but on the
\nInterlocutory  Application filed by doctor Haque, the  Court
\nexamined  and did indicate that they could be placed in\t the
\nseniority  list\t after both the outsider direct recruits  as
\nwell  as  insider direct recruits, who have  been  recruited
\ntill the date.\tIt is no doubt true that while saying so the
\nCourt did observe that so far as outsider and insider direct
\nrecruits  are  concerned, their inter se seniority would  be
\ndetermined   according\t to  the   date\t of  their   regular
\nappointment  through  the  UPSC,  but  as  has\tbeen  stated
\nearlier,  this\tdispute was not really before the Court\t and
\nCourt had not focussed its attention minutely as the insider
\ndirect\trecruits  had not been parties to the same  and\t the
\nCourt  was merely examining how the case of those  officers,
\nwho  got  themselves regularised pursuant to the  orders  of
\nthis   Court  in  Dr.\tJain   would  be  determined.\t The
\nobservations  of  this\tCourt in Dr.  Haque (supra)  to\t the
\neffect\twe direct that seniority of direct recruits   both
\noutsiders and insiders should be determined according to the
\ndates  of  their regular appointments through UPSC must\t be
\nheld  to be per incuria and cannot be the guiding principle.
\nIn Srinivasulus case, however, the Tribunal was considering
\nas  to whether their ad hoc period could be counted for\t the
\npurpose\t of  seniority,\t be it be stated,  that\t Srinivasulu
\nbelong\tto  that  category of officers\twho  were  initially
\nappointed  as  ad  hoc\tbut got\t themselves  regularised  by
\nappearing at the examination conducted by the UPSC, on being
\nselected, and this Court upheld the decision of the Tribunal
\nin Srinivasulu being of the opinion that the ad hoc services
\nrendered  by such officers could be counted for the purposes
\nof  their  seniority.  Obviously the Court had in  mind\t the
\nprinciple  B evolved by the Constitution Bench in the Direct
\nRecruit\t Engineering Officers Association case (supra).\t  If
\nthe initial appointment had not been made in accordance with
\nthe prescribed procedure laid down by the Recruitment Rules,
\nand  yet  the  appointees Medical Officers were\t allowed  to
\ncontinue  in the post uninterruptedly and then they appeared
\nat  the selection test conducted by the Union Public Service
\nCommission,  and  on  being selected  their  services  stood
\nregularised  then  there  would be no justification  in\t not
\napplying  the  principle B of the Direct Recruit Class\tII
\nEngineering  Officers  Association case (supra) and  denying
\nthe period of officiating services for being counted for the
\npurpose\t  of   seniority.   This   has\twhat   happened\t  in
\nSrinivasulus case and this Court did not interfere with the
\norder  of  the\tTribunal.  It may be reiterated\t that  there
\nbeing  no provision in the Recruitment Rules, either of\t the
\n1967  or  of the 1977 for determining the seniority  of\t the
\npersons\t employed as Assistant Medical Officers Class II, or
\nthe  1977 Recruitment Rules, for the purpose of\t determining
\nthe  seniority\tthe principles evolved by  the\tConstitution
\nBench  in  the Direct Recruit Class II Engineering  Officers
\nAssociation  case  (supra)  will have to  be  followed,\t and
\njudged\tfrom that angle we see no inconsistency between\t the
\njudgment  of this Court in Dr.\tHaques case (supra) and the
\njudgment  of  this  Court  confirming the  decision  of\t the
\nTribunal  in  Dr.   Srinivasus case (supra)  accepting\tthe
\nobservation  in Dr.  Haques case which we have already held
\nto  be\tper incuria.  This being the position, the grant  of
\nbenefit\t to  Dr.   Lalita  Rao, as had\tbeen  given  to\t Dr.
\nSrinivasulu  by the Tribunal in O.A.  No.  3218 of 1996,  we
\ndo  not\t see  any  infirmity in the same.  At  the  cost  of
\nrepetition we would record our conclusions as under :-\n<\/p>\n
    1.\t All  doctors appointed either as Assistant  Medical
\nOfficer or as Assistant Divisional Medical Officer on ad hoc
\nbasis  upto  October  1, 1984, who were regularised  by\t the
\nRailway Administration in consultation with the Union Public
\nService\t Commission  on\t the evaluation of  their  work\t and
\nconduct and on the basis of their CRs in respect of a period
\nsubsequent  to October 1, 1984, pursuant to the direction of
\nthis  Court in the case of Dr.\tA.K.  Jain (supra) will\t not
\nbe  entitled  to  count the services rendered prior  to\t the
\nregularisation\tfor  the purpose of determination  of  their
\nseniority  in  the  cadre.   This has been so  held  in\t the
\nInterlocutory  Application filed by Dr.\t Haque and  answered
\nby  this  Court in its judgment dated 18th  February,  1993,
\nreported in 1993 (2) SCC 213.\n<\/p>\n
    2.\t Doctors  who  had  been appointed  by\tthe  Railway
\nAdministration on ad hoc basis or on temporary basis and had
\ngot  themselves\t regularised prior to 1st October, 1984,  by
\nappearing  in  the selection test held by the  Union  Public
\nService\t Commission  then in their case the period prior  to
\ntheir  regularisation could be counted for determining their
\nseniority  applying  principle\tB of  the  Direct  Recruit
\nEngineering  Officers Association case (supra) and in  fact,
\nthe  Tribunal  decided the case of Dr.\tSrinivasulu on\tthat
\nbasis  and this Court upheld the said decision.\t 3.  If\t any
\ndoctor,\t who  had  been appointed subsequent to\t October  1,
\n1984,  and  had\t applied for selection by the  Union  Public
\nService\t Commission on obtaining relaxation of age  pursuant
\nto  the direction No.  5 in Dr.\t Jains case (supra) and got
\nselected  thereby  finally,  in\t such a\t case  the  services
\nrendered  prior to such regularisation would not be  counted
\nfor   the  purpose  of\ttheir\tseniority  in\tthe   cadre,
\nparticularly  when the Recruitment Rules did not provide for
\nany  ad hoc appointment and only provided for appointment to
\nbe  made  through Union Public Service Commission.  We\thave
\ntaken  the  date October 1, 1984 as cut off date since\tthis
\nCourt in Dr.  Jains case (supra) had considered the impasse
\nand  had directed regularisaiton of ad hoc doctors appointed
\nupto  1.10.1984.   The\tad   hoc  appointees  subsequent  to
\n1.10.1984,  even if got themselves regularised by  appearing
\nin  the selection test conducted by the Union Public Service
\nCommission  in\taccordance with the Rules it will not be  in
\nthe interest of justice to apply principle B to their case
\nas  the\t Statutory Recruitment Rules do not provide for\t any
\nother mode of recruitment other than by process of selection
\nby the Union Public Service Commission.\n<\/p>\n
    These Civil Appeals stand disposed of accordingly.\n<\/p>\n
46<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India And Anr vs Lalita S. Rao & Ors on 10 April, 2001 Author: Pattanaik Bench: G.B. Pattanaik, U.C. Banerjee, B.N.. Agrawal CASE NO.: Appeal (civil) 2478-79 of 2000 PETITIONER: UNION OF INDIA AND ANR. Vs. RESPONDENT: LALITA S. RAO & ORS. DATE OF JUDGMENT: 10\/04\/2001 BENCH: G.B. Pattanaik, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-114021","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India And Anr vs Lalita S. 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