P. C. Agarwal v. State Of Uttar Pradesh — 1993 DIGILAW 146 (ALL)

Judgment M.L. Bhat, J. 1. The petitioners pray for writ of certiorari and mandamus. Rule 7(1) of the U.P. Regularisation of Adhoc Appointment (on posts within the purview of the Public Service Commission) Rules, 1979 be declared ultra vires and violative of Articles 14 and 16 of the Constitution. A mandamus is prayed to command the respondents to fix the seniority of the petitioners with reference to the date of their initial appointment in the Provincial Medical Service and it is prayed that the respondents be directed to place the petitioners as senior to all the doctors appointed subsequent to their date of appointment in the Provincial Medical Service etc. etc. 2. The learned counsel for the petitioners at the outset has submitted that he does net want to press the relief for certiorari challenging the vires of Rule 7(1) of the U.P. Regularisation on Adhoc Appointment Rules, 1979 but wants to confine his arguments for seeking a prayer of mandamus with regard to fixation of seniority only the relevant facts for the decision of this writ petition, as set out in the pleadings of the parties, are briefly stated, the petitioner No. 1 was appointed as Medical Officer in the Provincial Medical Service (hereinafter called 'P.M.S.') on adhoc basis on 21-2-1969. He is said to have joined on 7-6-1969. The petitioner No. 2 was appointed on 30-8-1965 in the P.M.S. as Medical Officer on adhoc basis) He is said to have joined on 4-9-1965. The petitioner No. 3 was appointed as Medical Officer in the P.M.S. on adhoc basis on 9-11 1962 and he is said to have joined his post on 16-11-1962. The petitioner No. 4 was appointed on adhoc basis as Medical Officer in P.M.S. is 1967 The petitioner No. 5 was appointed to the said service on 11-7-1959, He joined the post on 23-8-1969. The petitioner No. 6 was appointed to the said service on 31-1-1970 and he joined the post on 7-2-1970. The petitioner No 7 was appointed on adhoc basis to the said post en 14-9-1972 and he in said to have Joined his post on 26-9-1962. Since their appointment on adhoc basis in the P.M.S. the petitioners are said to be continuing in service as Medical Officers. 3. On 14-5-1979 the State of U.P. is said to have framed Regularisation of Adhoc Appointment Rules, 1979. Since their appointment on adhoc basis in the P.M.S. the petitioners are said to be continuing in service as Medical Officers. 3. On 14-5-1979 the State of U.P. is said to have framed Regularisation of Adhoc Appointment Rules, 1979. These rules prescribe regularisation of services of those Medical Officers, who were appointed on adhoc basis subject to certain conditions Rule 7(1) of these rules prescribe that a person appointed under 1979 Rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with the 1979 Rules is made and shall be placed below the persons appointed in accordance with the Service Rules. It is averred that in pursuance of Rule 4 of the Rules a Selection Committee was constituted, which considered the case of the petitioners for regular appointment under the rules and found the petitioners suitable for regular appointment. The petitioners were ordered to be regularised in service in terms of Annexure 2 to the writ petition The petitioners are said to have made representations on different dates to the concerned authorities for giving them due place in the seniority list after taking the period of their initial appointment into consideration which, in other words, means that they claimed seniority from the date of their initial appointment. When the petitioners had come to know that they were being placed below the direct appointees of 1970-71 batch of the Medical Officers, they made representation. The petitioners submit that their seniority is to be determined from the date of their appointment irrespective of the fact that their initial appointment was on adhoc basis. From the date of Joining of the service by the petitioners, the U.P. Public Service Commission has conducted examination only once i.e. 1970-71 and thereafter it was conducted in 1974 but no appointments were made on the basis of 1974 examination. It is contended that without interview the Public Service Commission has regularised the services of some Medical Officers, whose names are given in para 18 of the writ petition. The criterion for determining the seniority of the petitioners is laid down in the U.P. Medical Service Roles of 1946. The said; rules provide that seniority in service shall be determined from the date of the order of appointment in a substantive vacancy. 4. The criterion for determining the seniority of the petitioners is laid down in the U.P. Medical Service Roles of 1946. The said; rules provide that seniority in service shall be determined from the date of the order of appointment in a substantive vacancy. 4. The petitioners submit that they were appointed initially against substantive vacancies in P.M.S. of the State and since then they have been working against substantive vacancies continuously. The respondents are said to be obliged to take into account the petitioner's service from their inital appointment for the purposes of determining their seniority. The petitioners have been treated part and parcel of the service ever since they joined on their posts. The Medical Officers appointed subsequent to the petitioners cannot be placed senior to the petitioners merely on the ground that they had appeared before the Public Service Commission and they were selected. Such an opportunity was not provided to the petitioners after they were appointed on adhoc basis. Counter affidavit is filed by the respondent No. 2 to the writ petition. The petitioner's appointment on adhoc basis and the dates on which they were appointed as Medical Officers in the P.M.S. is not denied. It is averred that the petitioners' appointment in the P.M.S. of the State was made prior to 1-1-1977 purely on adhoc basis. Their services have been regularised in accordance with Rule 7(1) of the 1979 Rules and the petitioners are, therefore, placed below the persons appointed substantively in accordance with the relevant service rules. After the petitioner's appointment on adhoc basis the Public Service Commission held selections 1970-71 and 1974 but the petitioners do not figure in the selection list of the year 1970-71. Their seniority is being fixed below the names of the candidates approved in the list of 1970-71. In respect of the Medical Officers mentioned in para 18 of the writ petition it is submitted that their appointment was duly approved and recommended by the Public Service Commission In terms of the previous Govt. Orders issued in 1962 5. In reply to the petitioner's assertion that under the U.P. Medical Service Rules of 1946 the petitioners arc to be ranked senior, it is submitted by the respondents that the Rules of 1946 provide that seniority in the service is to be determined from the date of the order of appointment of the incumbent in substantive capacity against permanent vacancy. In reply to the petitioner's assertion that under the U.P. Medical Service Rules of 1946 the petitioners arc to be ranked senior, it is submitted by the respondents that the Rules of 1946 provide that seniority in the service is to be determined from the date of the order of appointment of the incumbent in substantive capacity against permanent vacancy. So according to the opposite side if the petitioner's appointment was in substantive capacity against permanent vacancy then alone the Rules of 1946 will come into play. Since their appointment was not in substantive capacity, therefore, they can not be given benefit of the Rules of 1946. The seniority of the petitioners has correctly been determined and they cannot be equated with those Medical Officers, whose selection was duly approved and recommended by the Public Service Commission in 1970-71. 6. The petitioners have filed rejoinder affidavit also in which they have reiterated the same assertions which they have made in the writ petition. They have denied the contents of the counter affidavit. It is stated that the petitioner's past service cannot be excluded for determining the seniority. Their past services upto the date of regularisation are to be counted towards their seniority and the Rules of 1979 would not apply to the petitioners. The petitioners have placed on record a copy of the list showing the date of regularisation of the petitioners services contained in the document, which is annexed as Annexure 2 to the writ petition. 7. We have heard the learned counsel for the parties at some length. The petitioners have relied on a judgment of this Court in writ petitions No. 20408 of 1988, 1458 of 1989 and 6331 of 1989, decided on 26-4-1991. One of us (Bhat, J.) is the author of the said judgment, which seems to have been approved by the Supreme Court in S.L.P. No 13840 of 1992, decided on 24-11-1992. While dismissing the S.L.P. the Supreme Court has observed as under :- "......We see no infirmity in the judgment of the High Court. We agree with the reasoning and the conclusions reached therein. Special Leave petition is dismissed." 8. While dismissing the S.L.P. the Supreme Court has observed as under :- "......We see no infirmity in the judgment of the High Court. We agree with the reasoning and the conclusions reached therein. Special Leave petition is dismissed." 8. In the identical set of facts this Court directed in the aforesaid judgment that the entire period of service of the petitioners in the aforesaid writ petitions be counted towards their seniority and that the long period of adhoc appointment cannot be excluded for the purposes of determination of seniority. IN fact the period for which the petitioners had remained on adhoc basis was too long a period which could not be adhoc appointment in real sense for making stop-gap arrangement. The Rules of 1979 were not applicable to the P.M.S. Medical Officers but they were governed by the Rules of 1946. There is a rule contained in the Rules of 1946 prescribing the method of seniority The said rule reads as under : The seniority in the service shall be determined by the date of year of appointment in substantive vacancy provided that if two or more candidates are appointed on the same date, their seniority shall be determined according to the order in which their names are mentioned in the order of appointment." The Rule requires that initial appointment must be against substantive vacancy. It does not prescribe that the appointment also must be substantive against substantive vacancy. Substantive vacancies have continued and the petitioners have held the posts in substantive vacancies for a considerable period of time. The respondents have tried to add something to the rule of seniority, which was applicable to the petitioners. It is submitted that the appointment also must be substantive. This condition is non-est from the Rule. If that was the intention of the framers of the rules, they would have provided that substantive appointment against substantive vacancy would be criterion for determining the seniority but the rule does not say so. A bare perusal of the rules indicates that vacancy must be substantive. Appointment need not be substantive. It is admitted that the petitioners were appointed against substantive vacancies but on adhoc basis if it was really to be adhoc, it would have continued for stop gap arrangement but it has continued for a number of years without any let or hindrance on the part of the respondents. Appointment need not be substantive. It is admitted that the petitioners were appointed against substantive vacancies but on adhoc basis if it was really to be adhoc, it would have continued for stop gap arrangement but it has continued for a number of years without any let or hindrance on the part of the respondents. Therefore, a long period of service tendered by the petitioners as Medical Officers against P.M.S. posts cannot be ignored or discarded. 9. Regularisation of service was to be done by the State If the State slept over the matter, the petitioners cannot be blamed for that. By allowing the petitioners to hold the posts continuously (he respondents cannot harm them by ignoring their long service rendered by them on adhoc basis prior to the regularisation of service. The petitioners have rendered service on adhoc basis against substantive vacancies, till the date of their regularisation, for 18 to 10 years. This considerable period cannot be washed away. Moreover, the regularisation rules of 1979 do not apply to the petitioners because their appointment is not made under those rules. 10. Mr. Budhwar, appearing for the petitioner, has relied on the case of the Director Recruit Class II Engineering Officers Association v. State of Maharashtra, AIR 1990 SC 1607 , Where the Initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. The learned standing counsel has contested the claim of the petitioners and it is submitted that their, seniority is to be determined from the date of their regular appointment. The regular appointment was made after their services were regularised and the period for which they had remained on adhoc basis before the regularisation was made is to be ignored for the purposes of determining their seniority ; even if that period is a lengthy period of 18 -20 years, that is immaterial. He relied on the case of Masood Akhtar Khan v. State of Madhya Pradesh, 1990 (4) SCC 24 . He relied on the case of Masood Akhtar Khan v. State of Madhya Pradesh, 1990 (4) SCC 24 . In this case stop-gap appointment of six months was not counted towards the seniority. On adhoc basis candidates were appointed for stop-gap period and after six months the Public Service Commission made regular selection. The duration between the selection and stop-gap arrangement was six months. The period of six months was not counted towards the seniority. The principle laid down in this authority has some object. The stop-gap arrangement is to continue for a short period till the State is able to make regular selection. The stop-gap arrangement for six months was therefore, excluded from reckoning the seniority of the candidates. 11. Reliance is placed on the case of Keshav Chandra Joshi v. Union of India, AIR 1991 SC 284 . This was a case governed by the U. P. Forest Service Rules, which provide a method of appointment and method of determination of seniority. Under the rules, the period of officiation is not to be considered when the adhoc appointment for officiation period was not made in accordance with the rules. The appointment was against the rules applicable to the Forest Range Officers. Therefore, their officiating period was not counted towards the seniority. This authority has a distinguishing features and is not applicable to the facts of this case. 12. Another authority relied upon by the Supreme Court is Ashok Gulati v. B. S. Jain, AIR 1987 SC 424 . In this case promotion on adhoc basis was given to some Assistant Engineers for six months and in the promotion order it was provided that promotion was without prejudice to the right of other officers. The period of six months was, therefore, not counted towards the seniority Under the rules adhoc appointment could continue upto one year but adhoc appointment made for stop-gap arrangement was not to be counted towards seniority. This case is also distinguishable. The application of Rules of 1946 to the petitioners is not denied. Rules of 1946 contain a provision for determination of seniority also the respondents have tried to read something in the Rules, which is not there. It is contended that appointment must be substantive in order to invoke the said rules but that is not the correct position. If the vacancy is substantive, appointment may be adhoc. Rules of 1946 contain a provision for determination of seniority also the respondents have tried to read something in the Rules, which is not there. It is contended that appointment must be substantive in order to invoke the said rules but that is not the correct position. If the vacancy is substantive, appointment may be adhoc. The period of initial appointment against substantive vacancy is to be counted towards seniority. 13. The matter now is concluded by the judgment in three writ petitions-Writ petitions No. 20408 of 1988, 1458 of 1989 and 6331 of 1989-decided on 26-4-1992, which has been approved by the Supreme Court. The said judgment is given in the cases which are of identical nature and in view of the Constitution Bench authority of the Supreme Court, reported in AIR 1990 SC 1607 (Supra), it cannot be said that the petitioners' appointment was stop-gap or adhoc. They had continued for a period varying from 10 years to 20 years against substantive vacancies therefore, the initial period of their appointment upto the date of regularisation of their service is to be counted towards their seniority. The petitioners, seniority is, therefore, to be redetermined afresh. This may require giving opportunity to all those, who are likely to be affected by redetermining the seniority of the petitioners. 14. For the reasons stated above, we allow this writ petitions and issue a writ of mandamus to the respondents to redetermine the seniority of the petitioners and fix their seniority after taking into account the date of their initial appointment in P.M.S. cadre. Even if the initial appointment was on adhoc basis the service rendered by them on adhoc basis is directed to be taken into account for giving them seniority. It is further directed that the service rendered by the petitioners for a considerable period before the date of regularisation of their service cannot be treated as stop-gap arrangement or adhoc appointment. While fixing the seniority of the petitioners in the light of the directions given in this judgment the respondents shall provide an opportunity of being heard to all the concerned employees likely to be affected by inviting their objections for framing the seniority list afresh. While fixing the seniority of the petitioners in the light of the directions given in this judgment the respondents shall provide an opportunity of being heard to all the concerned employees likely to be affected by inviting their objections for framing the seniority list afresh. The seniority by the petitioners shall be determined within four months from the date of presentation of a certified copy of this judgment before the respondents in accordance with the rules and in the light of the guidelines given in this judgment. However, there will be no order as to costs.