{"id":83229,"date":"2002-12-04T00:00:00","date_gmt":"2002-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-chandra-prakash-ors-vs-state-of-u-p-anr-on-4-december-2002"},"modified":"2016-01-15T09:51:45","modified_gmt":"2016-01-15T04:21:45","slug":"dr-chandra-prakash-ors-vs-state-of-u-p-anr-on-4-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-chandra-prakash-ors-vs-state-of-u-p-anr-on-4-december-2002","title":{"rendered":"Dr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002<\/div>\n
Author: R Pal<\/div>\n
Bench: Cji, Ruma Pal, Brijesh Kumar.<\/div>\n
           CASE NO.:\nWrit Petition (civil)  43 of 1998\n\nPETITIONER:\nDr. Chandra Prakash & Ors.\n\nRESPONDENT:\nState of U.P. & Anr.\n\nDATE OF JUDGMENT: 04\/12\/2002\n\nBENCH:\nCJI, RUMA PAL & BRIJESH KUMAR.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
With W.P.(C) No.237\/98,220\/98,276\/98,532\/98
\n539\/98,547\/98,176\/99,229\/99 and 299\/99<\/p>\n
RUMA PAL, J.\n<\/p>\n
\tA tangled web of facts and law would best describe this case
\nwhich involves the question of the seniority of doctors in the Uttar
\nPradesh Medical Services.  To untangle the factual aspect, we need
\nto start from 1945.\n<\/p>\n
\tPrior to 1945 there were two medical services in the
\nstate of U.P –\tthe Provincial Medical Service (PMS) and Provincial
\nSubordinate Medical Services (PSMS).  On June 14, 1945 the
\nGovernment of U.P. framed rules known as ‘The United Provinces
\nMedical Service (Men’s Branch) Rules, 1945’ (referred to hereafter
\nas the ‘1945 Rules’).  In 1946, two new medical services were
\nconstituted, namely, PMS Grade I and PMS Grade II.  On 2nd
\nNovember, 1964 PMS Grade I and Grade II were merged with effect
\nfrom 1st November 1964. However, there were no rules for fixing
\ninter-se seniority of the officers of the two erstwhile services which
\nwere  so merged. The issue of the inter-se seniority between the
\nmembers of the new service as merged i.e. between PMS I and
\nPMS II, was resolved ultimately by this Court by its decision in State
\nof U.P. v. M.J. Siddiqui<\/a> 1980(3) SCC 180.   As far as recruitment to
\nthe  new PMS was concerned by way of a stop gap arrangement the
\nState Government passed an order dated 20th February 1965
\nmaking the 1945 Rules applicable to the new PMS.  The order said,
\n“The U.P. Medical Service (Men’s Branch) Rules, 1945 shall apply to
\nthe new PMS, unless otherwise ordered”.\t and prescribed the
\neligibility criteria for appointment:\n<\/p>\n
“The following will eligible for appointment to PMS:\n<\/p>\n
(A)\tMedical Graduates of all universities in India
\nrecognised by the Indian Medical Council.\n<\/p>\n
(B)\tMedical Graduates who hold the BMBS
\ndegree of Lucknow University, provided they
\nhave served in house appointments for a
\nterm of nine months in a teaching hospital
\nbefore they offer themselves for
\nappointment.”\n<\/p>\n
  The writ petitioners Nos. 1 and 2 before us were selected by
\nthe Departmental Selection Committee (DSC) and issued letters of
\ntemporary appointment in the new PMS by the Governor on 24th
\nSeptember 1965 and 30th November 1965 respectively.  There is no
\ndispute that they were eligible to be appointed under the prescribed
\ncriteria.\n<\/p>\n
\tThe second chapter begins in 1968 when the State
\nGovernment made a request to the State Public Service Commission
\nfor recruiting doctors to the medical service of the PMS.  The Public
\nService Commission (PSC) prepared a Select List in 1972.   Some of
\nthe respondents are those who came into the picture for the first time
\nwhen they were selected in 1972 by the PSC. The petitioner No. 2
\nwas also one of the selectees.\tHowever, before the select list could
\nbe given effect to, on 26th June 1973 the PMS was merged with the
\nProvincial Health Service (PHS) and a new cadre was formed,
\nnamely, the Provincial Medical and Health Service (PMHS). With the
\nmerger 995 posts of PHS, 574 posts of PMS(Male) and 19
\npermanent and 407 temporary posts of PMS(Female) i.e. a total of
\n2056 posts stood abolished in the erstwhile PMS and PHS on the
\ndate of the merger therefore 2056 posts were in the new cadre.
\n\t Prior to the merger i.e. between 1968 to 1973 some of the writ
\npetitioners before us were also temporarily appointed like the
\npetitioners 1 and 2, against substantive posts by the Governor after
\nselection by the DSC.  Temporary appointment letters were issued to
\nsome of the selectees not on the basis of the Select List but after
\nselection by the DSC.\n<\/p>\n
The third chapter starts with a letter dated of the State
\nGovernment dated 11th April 1974 which stated that  as there were
\ncertain deficiencies in the 1972 Select List the ad hoc appointments
\nof PMS officers would be extended upto 31st October 1973.  A
\nrequest was then sent by the State Government to the UPPSC for
\nrecruitment of 2025 medical officers.  During this period also a
\nnumber of persons were appointed by the State Government on
\ntemporary basis after selection by the DSC till 1976.  On 23rd
\nDecember 1977 the UPPSC sent a list of 1703 persons selected
\nagainst the aforesaid posts.  Subsequently by letters dated 16th June
\n1978 and 18th May 1979, the UPPSC sent two separate lists of a
\ntotal of 25 candidates to the Government.  Some of the writ
\npetitioners who had been temporarily appointed during 1968 to 1976
\nwere recommended in the 1977-78-79 Select List.\t However, no
\nletters of permanent appointment were issued by the Government to
\nany of these 1798 selected candidates.\n<\/p>\n
In other words, during the period 1968 to 1979 there were
\nthree groups of qualified doctors:\n<\/p>\n
(1)\tThose given temporary appointment and who
\nhad also been selected by PSC;\n<\/p>\n
(2)\tThose given temporary appointment but were
\nnot selected by PSC;\n<\/p>\n
(3)\tThose who were selected by PSC without
\nbeing temporarily appointed earlier.\n<\/p>\n
 The fourth chapter begins with the issue of the UP Regulation
\nof Ad hoc Appointments (On posts within the purview of UP Public
\nService Commission) Rules, 1979 (hereinafter referred to as the
\n‘1979 Rules’).\tRule 7 of the 1979 Rules provides:
\n“Saving\t (1) A person appointed under these rules
\nshall be entitled to seniority only from the date of
\norder of appointment after selection in accordance
\nwith these rules and shall in all cases, be placed
\nbelow the persons appointed in accordance with the
\nrelevant service rules or as the case may be, the
\nregular prescribed procedure, prior to the
\nappointment of such person under these rules.\n<\/p>\n
(2)\tIf two or more persons are appointed together,
\ntheir seniority inter se shall be determined to the
\nundermentioned in the order of appointment.”\n<\/p>\n
In terms of the 1979 Rules the ‘ad hoc appointees’ could not
\ncount their services which they may have rendered earlier as
\ntemporary appointees. Thus the doctors who had been appointed
\ntemporarily upto1976 were sought to be regularized under the 1979
\nRules and letters of appointment were issued to them, after a period
\nof ‘probation’,\t whereby they were treated as having joined the
\nservice with effect from the date of these appointment letters.\t A
\nseniority list was published in 1983 in which the candidates who had
\nbeen recommended by the PSC for appointment in 1972 were
\nplaced at the top followed by all the ‘temporary appointees’ like the
\nwrit petitioners although almost all of them had been appointed at
\nleast temporarily much prior to the 1972 selectees who had not been
\nissued regular appointment letters at all.\n<\/p>\n
   On 13th March 1984, the State Government issued an order
\nwhich was communicated to the UPPSC that the Select List
\nprepared by the UPPSC for the year 1977, 1978 and 1979 was
\ncancelled and  would not be given effect to.\n<\/p>\n
All these facts gave rise to litigation by the different groups.
\nThe first set of litigation was filed by the temporary appointees before
\nthe Allahabad High Court.  Three separate writ petitions were filed by
\nDr. H.C. Mathur, Dr. P.L. Nigam and Dr. Jagdish Narayan Rai.  All
\nthree of them had been appointed temporarily to the PMS prior to its
\nmerger with PMHS and had been continuously working since the
\ndate of their respective appointments. They impugned the decision
\ntaken by the State Government to treat them as ad hoc appointees
\nunder the 1979 Rules.  The High Court disposed of these three writ
\npetitions by a common judgment dated 26th April 1991 (hereinafter
\nreferred to for the sake of convenience as ‘Mathur’s case’).  The
\nHigh Court noted that the petitioners had been appointed and
\nselected temporarily pursuant to notifications for filling up of posts
\nand in consultation with the UPPSC.  All the petitioners had  MBBS
\ndegrees with the requisite experience and were entitled to be
\nappointed against the vacancies then existing.\tAlthough the
\npetitioners were appointed temporarily their appointments were
\nagainst substantive vacancies.\tThe Court also noted that the Civil
\nList which had been published in 1967 showed that the temporary
\nPMS officers like the petitioners in Mathur’s case had been
\napproved by the UPPSC.\t  The High Court held that the petitioners
\ncould not be treated as having been appointed on   ad hoc basis and
\nthat the 1979 Rules did not apply to them.  Consequently their
\nseniority was not to be fixed from the date of their regularisation
\nunder the 1979 Rules, namely 1982, but from the date of their initial
\nappointment in the PMS cadre.\n<\/p>\n
  The State of U.P. filed a special leave petition from the
\ndecision of the High Court in Mathur’s case.  This was dismissed by
\nthis Court on 24th November 1992 by a reasoned order in which this
\nCourt said, “We see no infirmity in the judgment of the High Court.
\nWe agree with the reasoning and the conclusions reached therein”.
\nThis order was passed by a Bench of three-Judges of this Court.
\nSeveral other writ petitions had also been filed by temporary
\nappointees.  Writ Petition No. 6227\/81 by the High Court was treated
\nas a representative writ petition.  Pursuant to directions of the High
\nCourt, notices were published in the ‘Northern India Patrika’ and ‘The
\nSunday Pioneer’ on 22nd May 1988.  In those notices, the
\ncontentions of the petitioners were indicated.\tBy order dated 9th
\nSeptember 1981,\t the High Court held that the issues raised were
\ncovered by the judgment of the High Court in Mathur’s case and
\naccordingly similar relief was granted to the writ petitioners.\t The
\nSpecial Leave Petition from W.P.No.6227\/81 filed by the State was
\ndismissed on 21st January 1993.\n<\/p>\n
Thereafter in a number of writ petitions, namely,
\nW.P.No.3550\/88\tDr. V.P. Singh & Ors. V. State of U.P.;\t W.P. No.
\n6368\/82\t  Raj  Nath  Sharma  and Ors. v. State of U.P.;\t W.P. No.
\n6124\/91\t Ram Jee Khare and Anr. V.  State of U.P. & Anr.  the High
\nCourt passed orders following the decision in Mathur’s case.  Each
\nof the special leave petitions preferred by the State of U.P. from the
\nseveral decisions of the High Court were dismissed by this Court.
\nApart from this there were three other decisions such as CMWP
\nNo.7281\/93 etc. where the State did not file any SLP although the
\nHigh Court had followed the decision in Mathur’s case.
\nAs a consequence of the decision in Mathur’s Case, those
\npersons who had been appointed temporarily against substantive
\nposts were entitled to rank above any other appointees who were
\nsubsequently appointed either on the basis of the 1972 Select List or
\nthe 1977-78-79 Select List.\n<\/p>\n
 The second set of litigation commenced in 1993 with the case
\nof Dr.P.C. Aggarwal  and Others V. State of U.P. (CMWP 10315\/82).
\nThe Division Bench of the High Court reiterated the view taken in
\nMathur’s case and directed the writ petitioners who were originally
\ntemporary PMS appointees to be given seniority taking into account
\nthe services rendered by them from the date of their respective
\nappointments.  The decision of P.C. Aggarwal was followed by the
\nsame High Court in several writ petitions. (CMWP No. 12257\/89 and
\n18781\/89  Dr. G.Agnihotri & Ors. V. State of U.P.; CMPW No.
\n18781\/89 and CMPW No.12267\/89  Dr.Maheshpal & Ors. V. State
\nof U.P.; W.P.No.4163\/93\t Dr. Riyazul Hasan V. State of U.P. &
\nOrs.<\/a>; CMWP No.______of 1993  F.M.Pachari & Ors. V. State of
\nU.P. & Ors.; CMPW No.____of 1993  Dr.Sanat Kr. Ghosh V. State
\nof U.P. & Ors.)\t The State did not impugn some of the decisions
\nwhich had been decided following Mathur’s and Aggarwal’s case.
\nHowever, it filed a special leave petition against the decision in P.C.
\nAggarwal’s case and in five other matters.  It appears from the
\nrecords that no notices were issued on these special leave petitions
\nwhich only came to be tagged with another matter, namely, C.A. No.
\n4438-42 of 1995 – State of U.P. V. R.K. Tandon & Ors.
\nThis<\/a> brings us to the final set of litigation. These were initiated
\nby those persons who claimed appointment on the basis of the 1977-
\n78-79 Select List.  Several petitions were filed before the U.P. Public
\nServices Tribunal challenging the decision of the State Government
\nto cancel the Select List of 1977-78-79.  The Tribunal allowed the
\npetitions and cancelled the Government’s order thereby reviving the
\n1977-78-79 Select List.\t The State Government appealed from the
\nTribunal’s decision.  The High Court modified the order of the
\nTribunal holding that only the 14 petitioners before the Tribunal who
\nwere working on ad hoc basis  would be deemed to have been
\nappointed when the vacancies were first filled by regularisation and
\nthey would be entitled to seniority and other benefits accordingly.
\nFrom this decision, the State of U.P. filed several special leave
\npetitions in which the Court allowed leave to appeal.\tThe lead
\nappeal was W. P. No.7066 of 1986 and 5809 of 1987  – State of U.P.
\nv. R.K. Tandon & Ors. and<\/a> is  hereinafter referred to as  ‘Tandon’s
\ncase’.\tThe batch of special leave petitions challenging the decision
\nin P.C. Aggarwal were also tagged with the appeal in Tandon’s
\ncase.  On 23rd March, 1995 a Bench of two learned Judges of this
\nCourt disposed of Tandon’s appeal as also the several tagged
\nspecial leave petitions without any notice having been issued in
\nthose petitions. The Court held:\n<\/p>\n
(I)\tAs the PSC had notified, selected and
\nrecommended the names of candidates in 1972
\nthey were entitled to be appointed and the State
\nGovernment was directed to appoint them with
\neffect from the date on which the State
\nGovernment had received the merit list from
\nPSC.\n<\/p>\n
(II)\tThose candidates whose names were
\nrecommended in 1977, 1978 and 1979 were
\ndirected to be appointed in the order of merit in
\ntheir respective lists.\t Their seniority would be
\ndetermined on the basis of their position in the
\nrespective list and they would be deemed to
\nhave been appointed from the date on which the
\nState Government had received the list.\t They
\nwould be placed below the appointees in Class
\nI.\n<\/p>\n
(III)\tThe  remaining candidates were the ad hoc
\nappointments made de-hors the rules and
\ntherefore though the doctors had put in more
\nthan 33 years of service they remained ad hoc
\nhands and would not get seniority from the
\nrespective dates of their appointments.\n<\/p>\n
However, those of them who had been granted
\nbenefit of regularity of service from the dates of
\ntheir appointments by Court and who had retired
\nwould not be affected by the decision of this
\nCourt as those matters had become final. Their
\nappointments would be merely notional only for
\nthe purpose of giving them seniority and retiral
\nbenefits admissible according to the relevant
\nrules and would not disturb interse seniority
\namongs the other doctors appointed in the
\nservice.  Otherwise those who had not been
\nselected but were still continuing in service
\nwould be placed last and their seniority would be
\ndetermined with effect from the date of their
\nregularisation under the 1979 Rules and their
\nrespective dates of appointment thereunder.\n<\/p>\n
\tThe writ petitioners in Tandon’s case filed a contempt
\napplication before this Court alleging violation by the State
\nGovernment of the order dated 23rd March 1995 by non-framing of a
\nseniority list in keeping with that judgment.  While disposing of the
\ncontempt application the Court also took notice of Intervenor
\napplications by those in whose favour the High Court had passed
\norders and against which special leave petitions had been filed and
\ndisposed of all the applications by an order dated 26th July 1996.  By
\nthis order, the Court noted that letters of appointment had not in fact
\nbeen issued to either the persons on the 1972 Select List or the
\npersons in the 1977, 1978 and 1979 Select List.\t Nevertheless  it
\nreiterated the stand that the candidates selected in the year 1972
\nwould become senior to all other ad hoc appointees since  they were
\ncontinuing on ad hoc basis.  It was also held that the candidates
\nrecommended by the PSE in the Lists  of 1977-78-79  would rank
\nbelow the 1972 appointees and that as far as “non
\nselectees” were concerned they would be governed by  Rule 7 of the
\n1979 Rules and given seniority from the date of their appointments
\nunder the 1979 Rules. It was made clear that the order “would cover
\nall the cases and would apply to all the candidates who are
\nconcerned in the service and that “the Government would determine
\ntheir inter-se seniority in accordance with these directions within four
\nmonths”.\n<\/p>\n
\tIn compliance with the orders dated 23rd March 1995 and 26th
\nJuly 1996, the Government published a seniority list on 24th
\nNovember 1996 which placed the persons who had been placed as
\nthe senior most by virtue of Mathur’s case at the bottom of the
\nseniority list.\t It was in these circumstances that several writ
\npetitions were filed in this Court stating that the decision of this
\nCourt in Tandon’s case was directly in conflict with the earlier
\ndecision of this Court in Mathur’s case and that since the decision
\nin Tandon’s case was rendered by a Bench of a lesser number of
\nJudges than in Mathur’s case, this Court should reaffirm the
\nprinciples already laid down in Mathur’s case and  fix the seniority
\nof all the doctors in PMHS cadre from the date of their initial
\nappointment and declare that Rule 7 of the 1979 Rules did not apply
\nto them at all.\n<\/p>\n
\t     The matter was placed before a bench of three-Judges.  By
\nan order dated 4th February 1999, this Court noted that there were
\nfive categories of persons in the service:\n<\/p>\n
1.\tThose persons who are in service as
\ntemporary recruits and who have not
\nbeen selected by the  Public Service
\nCommission but are given seniority
\nfrom the date of joining service on the
\nbasis of Court orders passed by the
\nHigh Court or by a bench of three
\nHon’ble Judges of this Court;\n<\/p>\n
2.\tThose persons who were in service
\nas temporary recruits and who have
\nbeen later selected by the Public
\nService Commission in 1972;\n<\/p>\n
3.\tThose persons who were in service as
\ntemporary recruits and who have been
\nlater selected by the Public Service
\nCommission during the years 1977,
\n1978 and 1979;\n<\/p>\n
4.\tThose persons who are in service as
\ntemporary recruits and who have not
\ngot the benefit of any order of the High
\nCourt or this Court i.e. (those temporary
\nrecruits other than unselected
\ntemporary recruits falling in Category\n<\/p>\n
1).  These persons are the persons
\naffected by the U.P. Regularisation of
\nAd hoc Appointments (of Posts within
\nthe Purview of the Public Service
\nCommission) Rules, 1979;\n<\/p>\n
5.\tFresh recruits who were selected by the
\nPublic Service Commission in 1977,
\n1978 and 1979 and who have been
\nsubsequently appointed.”\n<\/p>\n
\t   It was also noted that there would be pensioners falling in
\neach of the categories.\t The Court directed the State of U.P. to issue
\nnotice in two daily newspapers, namely, ‘Amar Ujala’ in Hindi  and
\n‘Times of India’, Lucknow Edition in English and stated that the
\nmatters would be heard by this Court and those persons whose
\nseniority was likely to be effected were entitled to come before this
\nCourt to put forward their point of view including all those persons
\nwere governed by earlier Court orders.\tA circular was also directed
\nto be issued to the same effect by the State to all  District
\nHeadquarters.\n<\/p>\n
After publication and completion of the procedures as directed,
\nthis Court by order dated 17th August 2000 referred the writ petitions
\nto a Bench of five-Judges for disposal in view of the dissimilarity of
\nviews expressed in Tandon’s case and Mathur’s case.
\nBefore the bench of five-Judges, it was contended by the
\nrespondent that there was in fact no conflict  between the decisions
\nin Mathur’s and Tandon’s case.\tThe Court by its judgment dated
\n4th April 2002 held that there was a conflict and that having regard to
\nthe doctrine of precedent, the decision of this Court in Tandon’s
\ncase dated 23rd March 1995 as modified on 26th July 1996 could not
\nstand.\tHowever, since the decision in Tandon’s case was being set
\naside only on the ground that it was in conflict with a larger Bench
\ndecision, the Constitution Bench did not decide the inter-se rights of
\nthe petitioners and the other respondents or the correctness of the
\njudgment in Mathur’s case.  The writ petitions were accordingly
\nremitted back to the three-Judges Bench\t to be disposed of  finally
\non merits.\n<\/p>\n
The matters have thereafter been placed before us for final
\ndisposal.\n<\/p>\n
According to the writ petitioners they were appointed on
\ntemporary basis against substantive vacancies in accordance with
\nthe Rules prevalent at the time of their respective appointments.
\nThey had the requisite qualifications and their appointments were
\nmade after selection by the DPC, after sanction granted by the
\nGovernor and with the approval of the PSC.  They claim to have at
\nleast continued to serve in such substantive vacancies after
\nconsultation with the PSC and had been granted leave benefits,
\npromotions, increments and other service benefits of regular service.
\nThey therefore claim seniority from the date of their initial
\nappointments on the principles laid down in Mathur’s case.
\nAccording to the petitioners the PSC select lists prepared in 1972
\nand 1977-78-79 are not available with the State respondents as they
\nhave been admittedly destroyed or misplaced and the 1996 seniority
\nlist was purportedly based on them.   It is stated that State
\nGovernment has not issued any letters of regular appointment to any
\nselectee till today.  It is contended that the selectees who had not
\nbeen temporarily appointed earlier, were given temporary
\nappointments after their recommendations by the PSC in 1972 or
\n1977-78-79.  Many of them joined services on the basis of these
\norders of temporary appointment much later. Now on the basis of the
\ndecision in Tandon’s case, they were claiming seniority from the
\ndate of their selections whether in 1972 or 1977-78-79 even though
\nthey had not joined services at all then.  It is submitted that\t the
\nselectees could not claim seniority on the basis of PSC
\nrecommendation which apart from any other consideration, could not
\nbe kept alive for such a long period.\n<\/p>\n
Supporting the case of the writ petitioners are the interveners.
\nThe first category of interveners are those who were also temporarily
\nappointed between 1962 and 1963 and who have since been
\nsuperannuated. They claim the same relief\/benefit as the writ
\npetitioners.  The second category of Interveners are  those
\ntemporarily appointed doctors who had challenged their
\n“appointments” under the 1979 Rules by way of writ applications and
\nwhose writ petitions have been allowed by the High Court holding
\nthat they were entitled to count their seniority from the date of their
\ninitial appointments.  They claim that the orders in their cases had
\nattained finality and have in fact been given effect by the State
\nGovernment and that their status should not be disturbed. The third
\ncategory of interveners are those temporary appointees who had
\nalso obtained orders in their favour on writ applications filed by them
\nbefore the Allahabad High Court, the special leave petitions
\nwherefrom have been dismissed and who have since retired  from
\nservices without getting any benefit as directed by the Allahabad
\nHigh Court. They claim that their orders had attained finality and
\nshould not be re-opened.\n<\/p>\n
As against these submissions the selectees have contended
\nthat the decision in H.C. Mathur’s case requires re-consideration
\nsince the writ petitioners were appointed on\t   ad hoc\/temporary
\nbasis without the approval of the UPPSC.  Their appointments were
\nde hors the Rules and could not be termed as regular merely by a
\npassage of time.  It is further contended that the provisions of the
\nU.P. Medical Services Men’s Branch Rules 1945 had been mis-
\ninterpreted in\tMathur’s case.\tIt is contended that the 1945 Rules
\ncontinued to apply to the medical services till 1981.  Even assuming
\nthat the 1945 Rules did not apply after 1973,  a civil post could be
\nfilled up only in consultation with the UPPSC and therefore the
\nselectees by the PSC had been properly appointed.  It was
\ncontended that in any event the writ petitioners are estopped from
\nchallenging the selections made by the PSC because most of them
\nhad participated in the selections and were unsuccessful. The writ
\npetitioners, according to the selectees, had obtained the benefit of
\nregularisation and further promotion under the 1979 Rules.  The
\nselectees had been given preference in the matter of their
\nappointments for their post graduate work and if they were reverted,
\nmore meritorious employees would be adversely affected.\t  The
\nprayer of the selectees is that\t Mathur’s case should be referred to
\na larger bench for its decision.\n<\/p>\n
We are unable to accept the submissions of the selectees.
\nAlthough, it is not necessary to go into the correctness of the
\nreasoning in Tandon’s case  when it has been set aside by the
\nConstitution Bench, nevertheless it  needs to be noted that the 14
\nwrit petitioners in that case had only challenged the cancellation of
\nthe 1977-78-79 Selection List.\tThey wanted appointment on the
\nbasis of the Selection List.  The question of inter se seniority with
\nother members of the Medical Service was not in issue.\tThe Court,
\nhowever, determined the issue of seniority in the absence of the
\ninterested groups.  Since both the orders in Tandon’s case have
\nbeen set aside, the seniority as determined by those orders can no
\nlonger be relied upon.\tThe disposal of the Interlocutory Applications
\nfiled by those who had obtained orders from the High Court
\nfollowing Mathur’s case,  by the order dated 26th July, 1976 cannot
\nalso stand, since both this order as well as the order dated 23rd
\nMarch 1995 in Tandon’s case  have been held by the Constitution
\nBench to be “not good law”.  By the same token, since the 1996
\nseniority list was prepared on the basis of this Court’s decisions in
\nTandon’s case, with the setting aside of the latter, the list cannot
\nbe held to have been validly prepared.\tThis leaves the field with
\nonly the principles as determined in Mathur’s case. It is doubtless
\ncorrect that as long as a decision stands, it has to be followed
\nunless the Court has reason to differ with the view expressed.\tIn
\nsuch event, the Court must refer the issue to a larger Bench.  This
\nprinciple is however not applicable if the earlier decision has
\nconcluded issues in a particular set of facts in a given lis between
\nthe same parties. Such a decision cannot be reopened on the
\nprinciples of res judicata except by way of an application for review.
\nThere is no application for review which requires us to reopen
\nthe issues which were concluded by a Bench of three-Judges of this
\nCourt about a decade ago.  The writ petitioners before us claim to
\nbe the beneficiaries of the order in Mathur’s case.  They do not
\nseek a review of that decision.\t It is also not open to the selectees to
\nquestion the correctness of Mathur’s decision now. Selectees and
\nothers\thad the opportunity of ventilating their grievances before the
\nCourt in  Writ Petition (C) No.6227 of 1981 which was a
\nrepresentative action.\tNone of the respondents responded to the
\nadvertisements admittedly published on the directions of the Court.
\nThe order passed in W.P.No. 6227\/81 on 9th September 1981,
\ntherefore, binds them and they cannot seek to reopen the issues
\nconcluded thereby.  We have already noted that the order in
\nW.P.6227\/81 was sought to be impugned before this Court by way
\nof a special leave petition which was dismissed on 21st March 1993.
\nThere has been no prayer for review of this order either.
\n  Besides the decision in Mathur’s case has been followed
\nconsistently in a large number of cases since its pronouncement by
\nthe High Court in 1991 and by this Court in 1992. Special leave
\npetitions from those decisions have also been dismissed by this
\nCourt.\tIt would not be proper in these circumstances to upset the
\nprinciples and introduce further uncertainty in an already chaotic
\nsituation particularly when the matter involves the question  of
\nservice conditions of Government employees.
\nIn these circumstances, the issue of seniority of the parties
\nbefore us is to be determined in keeping with the decision in
\nMathur’s case.\n<\/p>\n
\tThe questions therefore are:-\n<\/p>\n
1)\tAre the cases of the writ petitioners different
\nfrom  writ petitioners in Mathur’s case ?\n<\/p>\n
2)\tWhat would be the position of those who have
\nbeen appointed on the basis of the decision in
\nTandon’s case?\n<\/p>\n
Before answering the questions we wish to make it clear that
\nthe interveners who have final orders in their favour from either this
\nCourt or the High Court with regard to their appointments and
\nseniority, are entitled and will continue to enjoy the benefits granted
\nthereby.  This decision will not operate to jeopardize the reliefs finally
\nobtained by them from Court.\n<\/p>\n
As far as the writ petitioners are concerned we see no
\nmaterially distinguishing factor between their circumstances and the
\nwrit petitioners in Mathur’s case.\n<\/p>\n
We have already noted the facts in Mathur’s case but it is
\nconvenient to recapitulate the facts briefly for the purpose of
\ncomparison with the writ petitioners’ cases before us.\tThe
\npetitioners in Mathur’s case  were qualified to be appointed in what
\nwas then known as PMS.\tThe High Court upheld the claim that they
\nwere eligible to be appointed according to the Rules framed in 1981
\namending the 1945 Rules with effect from 4.10.1961.  They had
\nbeen temporarily appointed against  substantive vacancies and their
\nappointment in continuous  service was in consultation\twith PSC.
\nEven though their appointments were stated to be temporary in their
\nappointment letters, they were not treated as ad hoc appointees at
\nall till the State sought to appoint them in 1982 under the 1979 Rules
\nand fix their seniority with effect from 3rd August 1982 ignoring the 20
\nyears of service put in by them from the date of their initial
\nappointments.\n<\/p>\n
The writ petitioners before us were  temporarily appointed by
\nthe Governor against substantive vacancies.  The petitioner No.1
\nand 2 were appointed in 1965.  For example, the letter of
\nappointment of the petitioner No. 1 dated 22.9.1965  states that he
\nwas appointed as temporary PMS Officer “as per the approval of
\nGovernment”.  The appointment was ” for the period of one year or
\ntill the services are required by the Government or till you are
\nreplaced by a candidate duly selected by Public Service Commission
\nwhichever is earlier”.\tThe other letters of appointment issued upto
\n1976  use similar language.  What is clear from the language is that
\nthe appointments were made against substantive vacancies.   In the
\nCivil List published on 1.7.1967 which was compiled in the
\nAppointment Department of the State Civil Secretariat under the
\nheading “Temporary officers approved by Lok Sewa Ayog”, the
\npetitioner No.1’s name appears against Srl. No. 336.  The names of
\nthe writ petitioners similarly temporarily appointed upto 1976 were
\npublished in the Official Gazette.\n<\/p>\n
It has been earlier noted that prior to the merger of the PMS
\nwith the PHS in 1973, the 1945 Rules were made applicable to the
\nPMS by Notification dated 20th February 1965.  After the 1973
\nmerger and the creation of PMHS, no specific rules laying down
\nservice conditions of the new service were framed.  On 23.11.1981,
\nthe State Government issued a notification under Article 309
\npromulgating the Uttar Pradesh Medical Services (Men’s Branch)
\n(Amendment) Rules 1981,\t  Rule 1 (ii) states that:
\n“They shall be deemed to have come into
\nforce with effect from 4.10.1961”.\n<\/p>\n
\t By the 1981 Amendment, Rule 10 of the 1945 Rules was
\namended.  This appears to indicate that, if at all, the 1945 Rules
\ncontinued to apply to the PMHS.\t  Rule 10 of the 1945 Rules
\nprovided  the academic qualifications of a candidate  for  recruitment
\n to the service.  These included an M.B or an equivalent degree of a
\nuniversity established by law in India and recognized by the Medical
\nCouncil of India.  By the 1981 amendment, “a candidate who
\npossessed a BMBS degree from Lucknow University having served
\nin houses appointments, a term of nine months in a teaching hospital
\n(sic)”\twas also made eligible.\t There is no dispute that each of the
\nwrit petitioners held an MBBS degree and had the requisite
\nqualifications for being  appointed under the 1945 Rules.
\n\tRule 17 (2) of the 1945 Rules provides:\n<\/p>\n
   “The Governor may make appointments in
\ntemporary or officiating vacancies from
\namongst persons who are eligible for
\npermanent appointment to the service under
\nthese rules”.\n<\/p>\n
It could not, therefore, be said as was held in Tandon’s case
\nthat the writ petitioners were appointed de hors the service rules.
\nAs far as the question of seniority is concerned, Rule\t18 of the
\n1945 Rules reads as follows:\n<\/p>\n
Seniority   –  “Seniority in the service shall be
\ndetermined by the date of the order of appointment
\nin a substantive vacancy provided that if two or
\nmore candidates are appointed on the same date
\ntheir seniority shall be determined according to the
\norder in which their names are mentioned in the
\norder of appointment”.\n<\/p>\n
Thus even under the Medical Service Rules 1945,\t the
\ndetermination of seniority under those rules was from the date of
\nappointment against a substantive vacancy.  It is clear that in
\naccordance with the Rules, and as held by the High Court in
\nMathur’s case,\tappointment could be temporary or permanent.  But
\nwhere the appointment is against a substantive vacancy, the year of
\nappointment was determinative in fixing\t seniority under the Rule. On
\nthis basis, calculations of the writ petitioners’ seniority from the date
\nof their initial appointment cannot be said to be incorrect.
\nFurthermore It has not been disputed that the writ petitioners have
\nbeen continuing to serve and had till 1983 enjoyed all the benefits of
\nregular service since their initial appointments like the writ petitioners
\nin Mathur’s case.  As held in Rudra Kumar Sain and Others V.
\nUnion of India and Others<\/a> 200 (8) SCC at para 20:
\n“In the service jurisprudence, a person who
\npossess the requisite qualification for being
\nappointed to a particular post and then he is
\nappointed with the approval and consultation
\nof the appropriate authority and continues in
\nthe post for a fairly long period, then such an
\nappointment cannot be held to be “stopgap or
\nfortuitous or purely ad hoc.”\n<\/p>\n
       The writ petitioners cannot, for all these reasons, be
\ntreated as ‘ad hoc appointees’ who were to be regularised by
\nappointment after selection and a period of probation under the 1979
\nRules nor can it be said that the decision in H.C. Mathur’s case mis-
\nconstrued the provisions of the 1979 Rules so as to exclude
\ntemporary appointees like the writ petitioners from its application.
\n\tIn the circumstances the writ petitioners are entitled to be
\ngranted the same relief as was granted to the petitioners in Mathur’s
\ncase   and count their seniority from the date of their initial
\nappointments.\n<\/p>\n
\tThe ‘selectees’ on the other hand whether selected in 1972 or
\nin 1977-78-79 cannot claim seniority on the basis of their mere
\nselection, assuming the selection lists to be valid.  According to the
\n1945 Rules, the selection made by the PSC was merely
\nrecommendatory.\t This is settled law and is also so provided in Rule
\n13 (3) & ( 4) which read as follows (where the reference to the
\nCommission is the PSC):\n<\/p>\n
”  13 (3)   The Commission shall draw up a list of
\nsuch candidates\t as it considers suitable for
\nappointment in order of preference and shall
\nforward it to the Government.\n<\/p>\n
   13 (4) Subject to the provisions of rules 6 and
\n16 (2) the Governor shall appoint as
\nvacancies(sic) the candidates who stand highest
\nin order of performance in the list preferred by
\nthe Commission under sub Rule (3), provided
\nthat he is satisfied that they are duly qualified in
\nother prospects”.\n<\/p>\n
That selection does not mean automatic appointment also
\nfollows from Rule 16 (2) which provides:\n<\/p>\n
 “Before a candidate is finally approved for
\nappointment by direct requirement he shall
\nbe required to pass an examination by a
\nMedical Board, which shall be conducted
\nafter he has been selected by the
\nCommission”.\n<\/p>\n
       In any event as already noted, under Rule 18 seniority is to be
\ndetermined from the date of their  orders of appointment and not
\nfrom the date of their selection by the PSC or receipt of the Selection
\nList by the Government.\t As noted in Tandon’s case, the selectees
\nhad not been issued orders of regular appointment at all.  Clearly,
\ntherefore,  they cannot claim seniority over the writ petitioners some
\nof whom have been serving since 1965 and the rest at least since
\n1976.  Assuming that the writ petitioners had appeared before the
\nPSC, it would not mean that by reason thereof seniority was to be
\ncounted from the date of preparation or submission of the Selection
\nLists.\t If the selectees on the basis of the decision in Tandon’s case
\nwere treated as having been appointed, their appointment would at
\nthe highest relate to 1996 when this Court  directed their
\nappointments from the date of receipt of the selection lists by the
\nGovernment; a direction which was wholly contrary to the Rules.
\nStrictly speaking with the setting aside of the decision in Tandon’s
\ncase  the selectees cannot even have this order to fall back on. But
\nthe fact remains that the selectees have actually been serving.
\nTherefore having regard to the peculiar circumstances of this case, it
\nwould , in our view, be equitably appropriate to treat them as having
\nbeen appointed from the date on which they actually joined the
\nservice.\n<\/p>\n
\t  We accordingly allow the writ\t petitions   and declare that\n<\/p>\n
1) the writ petitioners are not within the  purview of the 1979 Rules;\n<\/p>\n
2) the State Government will fix the seniority of all doctors in the
\nPMHS cadre from the date of the orders of their initial appointment
\nwithin a period of six weeks from the date of this order and give all
\nconsequential benefits including promotions and positions on the
\nbasis of such seniority list; 3)  Those doctors who were selected in
\n1972 and 1977-78-79 by the PSC and who were not issued any
\norders of appointment and joined the service on the basis of
\nTandon’s case, will be treated as having been appointed on the
\ndate that they actually joined the service and their seniority will be
\ncounted from that date.\t There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002 Author: R Pal Bench: Cji, Ruma Pal, Brijesh Kumar. CASE NO.: Writ Petition (civil) 43 of 1998 PETITIONER: Dr. Chandra Prakash & Ors. RESPONDENT: State of U.P. & Anr. DATE OF JUDGMENT: 04\/12\/2002 BENCH: CJI, RUMA […]<\/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-83229","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-chandra-prakash-ors-vs-state-of-u-p-anr-on-4-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Chandra Prakash & Ors vs State Of U.P. & Anr on 4 December, 2002 - 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