Holding

Ad‑hoc stop‑gap appointments cannot be counted for seniority; the regularisation effective from the UPSC recommendation date is valid.

Summary

Petitioners were appointed as General Duty Medical Officer Grade II by the Delhi Municipal Corporation between 1982 and 1985 on a purely ad‑hoc, stop‑gap basis, with explicit terms that the posts would be regularised only after passing the UPSC examination. After appearing before UPSC, they were regularised on 27 June 1991, the date of UPSC recommendation. The petitioners sought seniority from their initial appointment dates, relying on the Direct Recruit case. The Court held that their appointments fell within the corollary of Conclusion (A) of that case, which excludes ad‑hoc stop‑gap appointments from seniority calculations. Consequently, the regularisation date of 27 June 1991 stands, and the petitioners are not entitled to any benefit of seniority from the earlier period. The writ petitions were dismissed.

Issues considered

Whether ad‑hoc stop‑gap appointments made in violation of the recruitment rules can be counted for seniority under the Direct Recruit case.
Whether the petitioners are entitled to regularisation with effect from their initial appointment dates.
Whether the order of regularisation dated 17 August 1992 is arbitrary or illegal.
Interpretation of Section 96 of the Delhi Municipal Corporation Act concerning temporary appointments.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 32
Delhi Municipal Corporation Act, 1957s. 96, s. 98

Subjects

seniorityad‑hoc appointmentstop‑gap arrangementregularisationUPSCservice lawrecruitment rulesDelhi Municipal Corporation Actconstitutional lawArticle 14Article 16

Judgment

DR. ANURADHA BODI AND ORS. ETC. ETC. A
, . .. v.
MUNICIPAL CORPORATION OF DELHI AND ORS .

MAYS,1998

(S.C. AGRAWAL AND M. SRINIVASAN, JJ.] B

Service Law-Seniority-Appointment made on the posts of General
Duty Medical Officer Grade II between 1982 to 1985 on ad hoc basis Stop
gap arrangement and not as per the Rules as applicable to such
appointments-Services regularised as per the rules on the recommendation c
of UPSC with effect from a much later date-Ad hoc period prior to the
regularisation counting of seniority-Held, corollary in conclusion (A) in
Direct Recruit's case, applicable to such appointment and therefore, ad hoc
period can not be counted to determine seniority of such appointees-Delhi
Municipal Corporation Health Service Recruitment Regulations, 1982-Delhi
D
Municipal Corporation Act, 1957, Section 98--Constitution of India, Articles
32, 14 and 16.

Petitioners were appointed by Respondent No. 1 as General Duty Medical
Officer Grade II between 1982 and 1985. The appointment letters issued
categorically stated that such appointments would be purely on ad hoc basis E
as a stop gap arrangement for a period of six months or till such time the
posts were filled up on regular basis through Union Public Service
Commission ("UPSC") or till further orders whichever was earlier; that ad
hoc appointments could be terminated at any time by the competent authority
without assigning any reason whatsoever and without giving any prior notice;
and that appointment would not confer any right whatsoever on the appointees F
for regular/permanent appointment; and that the appointees were advised for
-" regular appointment to pass the UPSC examination in normal course in the
direct competition.

The Delhi Municipal Corporation Health Service Requirement
Regulations, 1982 (the "Rules"), stipulated that the posts in question to be
G
filled up through UPSC. Petitioners were not selected through UPSC but
they claimed to have been selected by a high - profile selection Committee
-..\
consisting of Deputy Co.mmissioner and Director (Personnel) ofMCD, Medical
-=-- Superintendents of the Hospital concerned and two Specialists in Clinical
Medicine from two renowned Hospital. H
269
270 SUPREME COURT REPORTS [ 1998] 3 S.C.R.

A Though the appointment of the petitiol)ers were initially for a period
of six months, they were being continued periodically by subsequen~ orders
issued by the first respondent. The petitioners were making representation
,.. .-
to regularise their services even without appearing before the UPSC but in
vain.

B Petitioners had earlier filed a writ petition before this Court in 1991
praying that their services be treated as regular from their respective date
of their induction into the service and to consider them for promotion to
Grade I; that their initial appointment be treated as regular appointment with

C
effect from the date of their induction to their service and to grant them
consequential seniority; that the petitioners should be absorbed first before
offering the existing vacancies to new recruits. The said petition was disposed
1
of by this Court on the ground that the petitioners were called for interview
by the UPSC and that they were not entitled to be regularised even though
they were not selected. The petitioners were thereafter selected by UPSC and
appointed on regular basis by the first respondent with effect from the date
D UPSC recommended the appointment

Petitioners filed the present writ petition claiming that they should
have been appointed on regular basis with effect from the initial dates of
appointments. They claimed seniority with all consequential benefits.

E It was contended by the petitioner that their services from the initial
appointment till the date of regularisation had to be taken into consideration
for purposes of fixing their seniority placing reliance on Direct Recruits
case(*).

Dismissing the petition, this Court
F
HELD: I.I. There can be no doubt that the petitioners fall within the
corollary in Conclusion (A) of Direct Recruits case (*). The orders of
appointment issued to the petitioners are very specific in their terms. Though
the recruitment rules came into force on 06.08.1982, the appointments were
not made in accordance therewith. They were ad hoc and made as a stopgap
G arrangement. The orders themselves indicated that for the purpose of regular
appointment the petitioners were bound to pass at the UPSC examination in
the normal course in the direct competition. Hence the petitioners will not

H
fall under the main part of Conclusion (A) or conclusion (8) of direct
permission. [277-A-B[

{*)Direct Recruit class II Engineering Officers Association v. State of
-
,..,
DR. A. BODI v. M.C.D. [SRINIVASAN, J.] 271
Maharashtra, (1990) 2 SCC 715, followed. A
State of West Bengal & Ors. v. Aghore Nath Dey & Ors., 1199313 SCC
371 and Dr. M.A. Haque & Ors. v. Union OF India & Ors., [19931 2 SCC
213, relied on.

Jacob M. Puthuparambil & Ors. v. Kera/a Water Authority & Ors., B
[1991) 2 sec 28, distinguished.

I.K. Sukhija &Ors. v. Union of India & Ors., (1997) 6 SCC 406,
referred to.

1.2. The petitioners have been regularised with effect from 27.06.1991, C
the date on which the UPSC recommended their appointments. Hence there
is nothing illegal or arbitrary in the office order dated 17.08.I 992 appointing
the petitioners on regular basis with effect from 27.06.1991, The said
regularisation is in accordance with the rules. [279-C]

CIVIL ORIGINAL JURISDICTION: In Writ Petition (C) No. 8 of 1997. 0
Writ petition (C) No. 60 of 1994.

(Under article 32 of the constitution of India.)

D.B. Vohra and Pramod Swarup for the Petitioners. E
R.K. Maheshwari, Prem Sagar Khere and Y. Prabhakara Rao for the
Respondents.

The Judgment of the Court was delivered
F
SRINIVASAN, J. There are nine petitioners in the earlier writ petition
and one petitioner in the later writ petition. They were appointed by the first
respondent as General Duty Medical Officer Grade II between 1982 and 1985.
The first petitioner in the Civil Writ Petition 60 of 1994 and petitioner in Writ
Petition No. 8 of 1997 were appointed in 1982. Petitioners 2 and 3 in the earlier
writ petition were appointed in 1983. Petitioners 4 and 5 were appointed in G
1984 whereas petitioners 6 to 9 were appointed in 1985. It is not in dispute
that all of them were appointed on purely ad hoc basis on the same terms and
conditions. In the appointment orders, Clause 1 stated that the appointment
would be purely on an ad hoc basis as a stop gap arrangement for a period
of six months or till such time the posts were filled up on regular basis
through Union Public Service Commission (for short 'UPSC') or till further H
272 SUPREME COURT REPORTS [1998] 3 S.C.R.

A orders whichever was earlier.. Clause 2 provided that the ad hoc appointments
could be terminated at any time by the competent authority without assigning
r A
any reason whatsoever and without giving any prior notice. According to
Clause 3, the appointment will not confer any right whatever on the appointee
for regular/permanent appointment. Under Clause 9 the appointees were
B . advised for regular appointment to pass the U.P.S.C. examination in normal
course in the direct competition.

2. There is a specific averment in the counter-affidavit filed by the first
respondent that inspite of several opportunities available to the petitioners,
they preferred not to apply to the UPSC for direct competition entitling them
C to be appointed on regular basis. The petitioners have not filed any rejoinder
controverting the same.

3. The Recruitment Rules, called "The Delhi Municipal Corporation
Health Service Recruitment Regulation, 1982" (herein after referred to as 'the
Rules') were made by the Municipal Corporation of Delhi under Section 98
D of the Delhi Municipal Corporation Act, 1957 and notified under Notification
No. R-9/38/82-LSG/5686 dated 6.8.82. As per the rules, the posts in question
were to be filled up through the U.P.S.C. Admittedly, the petitioners were not
selected through U.P.S.C. but according to the petitioners they were selected
by a high-profile Selection Committee consisting of Deputy Commissioner
E and Director (Personnel) of M.C.D., Medical Superintendent of the hospital
concerned and two specialists in Clinical Medicine from two renowned
hospitals.

4. Though the appointments of the petitioners were initially for a period
of six months, they were being continued periodically by subsequent orders
p issued by the first respondent. One such order has been filed as a sample by
the petitioners bearing date 15.2.90. The preamble to the order reads as
follows:

"The Chief Secretary, Delhi Administration, exercising powers of the
Corporation under Section 490 (2)(b) of the D.M.C. Act, 1957 vide Decision
G No. 211/CW/Corp. dated 2.2.1990 has approved the continued ad hoc
appointment of following GDMOs Grade II in the pay scale of Rs. 2200-4000
plus the usual allowances with effect from 13. 7.1989 for a period of one year
or till such time the posts are filled up on regular basis, whichever is earlier"

5. By a similar order dated 24.7.1990 the services of the petitioners were
H extended for a period ofone year with effect from 13.7.1990. The petitioners
DR. A. BODI v. M.C.D. [SRINIVASAN, J.] 273
were making representations to regularise their services even without appearing A
• " before the U.P.S.C. but in vain.

6. They filled a writ petition in this Court under Article 32 of the
Constitution in Writ Petition (Civil) No. 47of1991 praying that their services
should be treated as regular from the respective dates of their induction into
the service and to consider them for promotion to Grade I, that their initial B
appointment be treated as regular appointment with effect from the date of
their induction of their service and to grant them consequential seniority, to
declare that the Corporation should absorb them first before offering the
existing vacancies to the new recruits who might be selected in pursuance of
the combined Medical Service Examination 1991 and to restrain the respondents C
from terminating the services of the petitioners pending the disposal of the
petition. The said petition was disposed ofvide order dated 29.7.1991 in the
following terms :

"We are informed that all the petitioners have been called for interview
by Union Public Service Commission. In view of this no further relief D
requires to be granted in the petition. The petitioners certainly can not
claim that they are entitled to be regularised even though they are not
selected. The Writ Petition is dismissed as infructuous. If the
petitioners have not been selected and they have any grievance in
that connection with the selection the remedy for them is to file
separate proceedings" E
7. Thereafter, the petitioners appeared before the U.P.S.C. and were
selected. Consequently, the first respondent passed an order on I 7 .8.1992
appointing the petitioners on regular basis to the grade of G.D.M.O. II with
effect from 27.6.91, the date when the U.P.S.C. recommended the appointment F
- v of the petitioners.

8. The petitioners are aggrieved by the date from which they are
appointed on regular basis namely, 27 .6.91. According to the petitioners they
should have been appointed on regular basis with effect from the initial dates
of appointment respectively. Hence they have filed the present writ petition G
with prayers for declaration that the respondents should treat them as holding
their respective posts regularly from the respective dates of their initial
,...( appointments which stand now regularised by U.P.S.C. and grant them their
due seniority with consequential benefits such as promotion to higher grade
notwithstanding the order dated 17.8.92 which may be suitably amended,
declaration that the action of the respondents in not treating them as regular H
274 SUPREME COURT REPORTS (1998] 3 S.C.R.

A employees of the Corporation since the date of their initial appointment is
unwarranted, arbitrary and violative of Articles 14 and 16 of the Constitution ,.. •
and for declaration that the petitioners are entitled to be treated as having
been appointed on regular basis as G.D.M.Os from the date of respective
initial appointment as has been done in the case of other employees vide
order dated 3 I. I2.86.
B
9. A preliminary objection was raised by the learned counsel for first ihe
respondent that the writ petition is not maintainable in as much as the claim
for regularisation has been negatived by this Court in Writ Petition (Civil) No.
47 of 1991 the order in which has already been extracted by us. Though the
C prayers in the two writ petitions are almost the same and the petitioners are
seeking once again to claim that their initial appointments should be considered
to be on regular basis. This writ petition has to be considered in so far as
it relates to question of seniority. In view of the order dated 27.9.91 in Writ
Petition 47 of 1991 the petitioners cannot claim that they are entitled to be
treated as having been regularly appointed with effect from the date of their
D initial appointment. But the petitioners are placing reliance on the judgment
of the Constitution Bench of this Court in Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra & Ors., (1990] 2 SCC 715, and
are contending that their services from the dates of initial appointment till the
date of regularisation have to be taken into consideration for purposes of .
E fixing their seniority. In fact on an earlier occasion when this case was heard
on 27.10.94 the Court took note of the said contention and directed the
impleadment of persons who were regulariy appointed after selection by the
lJ.P.S.C. and were in service during the period 1982 to 1991. Thus the regular
appointees have been imp leaded as respondents· in the present case. Hence,
the question which has to be considered is whether the petitioners are
F entitled to get any benefit on the basis of the decision rendered by the
Constitution Bench in the Direct Recruit case (supra). .-
10. The propositions laid down by the Constitution Bench in the aforesaid
case are set out in Paragraph 47 of the judgment. We are concerned with only
Conclusions (A) and (B) which read as follows :
G
(A) Once an incumbent is appointed to a post according to rule, his
seniority has to be counted from the date of his appointment and not
according to the date of his confirmation. The corollary of the above
rule .is that where the initial appointment is only ad hoc and not
according to rules and made as a stop gap arrangement, the officiation
H in such posts cannot be taken into account for considering the
DR. A. BODI v. M.C.D. [SRINIVASAN. J.) 275
seniority. A
(B) If the initial appointment is not made by following the procedure
laid down by the rules but appointee continues in the post
uninterruptedly till the regularisation of his service in accordance with
the rules, the period 9f officiating service will be counted".
B
11. These two clauses have been explained in a subsequent judgment
in State of West Bengal and others etc. etc., v. Aghore Nath Dey and others
etc. etc. (1993].

3 S.C.C. 371 The relevant passages in the said. Judgment read as
follows: c
"21. We shall now deal with conclusions (A) and (B) of the constitution
bench in the Maharashtra Engineers case quoted above.

22. There can be no doubt that these two conclusions have to be read
harmoniously, and conclusion (B) cannot cover cases which are D
expressly excluded by conclusion (A). We may, therefore, first refer to
conclusion from the date of initial appointment and not according to
the date of confirmation, the incumbent of the post has to be initially
appointed 'according to rules'. The corollary set out in conclusion
(A), then is, that 'where the initial appointment is only ad hoc and not
according to rules and made as a stopgap arrangement, the officiation E
in such posts cannot be taken into account for considering the
seniority'. Thus, the corollary in conclusion (A) expressly excludes
the category of cases where the initial appointment is only ad hoc and
not according to rules, being made only as a stopgap arrangement.
The case of the writ petitioners squarely falls within this corollary in F
conclusion (A), which says that the officiation in such posts cannot
be taken into account for counting the seniority.

23. This being the obvious inference from conclusion (A), the question
is whether the present case can also fall within conclusion (B) which
deals with cases in which period of officiating service will be counted G
for seniority. We have no doubt that conclusion (B) cannot include,
within its ambit, those cases which are expressly covered by the
corollary in conclusion (A), since the two conclusions cannot be read
in conflict with each other.

24. The question, therefore, is of the category which would be covered H
276 SUPREME COURT REPORTS [1998] 3 S.C.R.

A by conclusion (B) excluding therefrom the cases covered by the
corollary in conclusion (A). ,#.

25. In our opinion, the conclusion (B) was added to cover a different
kind of situation, wherein the appointments are otherwise regu Jar,
except for the deficiency of certain procedural requirements laid down
B by the rules. This is clear from the opening words of the conclusion
(B), namely, 'if the initial appointment is not made by following the
procedure laid down by the 'rules' and the latter expression 'till the
regularisation of his service in accordance with the rules'. We read
conclusion (B), and it must be so read to reconcile with conclusion
c (A), to cover the cases where the initial appointment is made against
an existing vacancy, not limited to a fixed period of time or purpose
by the appointment order itself, and is made subject to the deficiency
in the procedural requirements prescribed by the rules for adjudging
suitability of the appointee for the post being qualified in every
manner for a regular appointment on the date of initial appointment
D in such cases. Decision about the nature of the appointment, for
deterl11ining whether it falls in this category, has to be made on the
basis of the terms of the initial appointment itself and the provisions
in the rules. In such cases, the deficiency in the procedural
requirements laid down by the rules has to be cured at the first
E available opportunity, without any default of the employee, and the
appointee must continue in the post uninterruptedly till the
regularisation of his service, in accordance with the rules. In such
cases, the appointee is not to blame for the deficiency in the procedural
requirements under the rules at the time of his initial appointment, and
the appointment not being limited to a fixed remaining procedural
F requirements of the rules being fulfilled at the earliest. In such cases
all appointee is not to blame for the initial appointment, and the
appointment not being limited to a fixed period of time is intended to
be regular appointment, subject to the remaining procedural
requirements of the rules being fulfilled at the earliest. In such cases
also, if there be any delay in curing the defects on account of any
G fault of the appointee, the appointee would not get the full benefit of
the earlier period on account of his default, the benefit being confined
only to the period for which he is not to blame. This category of cases
is different from those covered by the corollary in conclusion (A)
which relates to appointment only on ad hoc basis as a stopgap
H arrangement and not according to rules".
DR. A. BODI v. M.C.D. [SRINIVASAN, J.] 277
12. If the facts of these two cases are analysed in the light of the A
· .,. aforesaid decisions, there can be no doubt whatever that the petitioners fall
withi~ the corollary in Conclusion (A). The orders of appointment issued to
the petitioners are very specific in their terms. Though the Recruitment Rules
came into force on 6.8.82, the appointments were not made in accordance
therewith. They were ad hoc and made as a stop gap arrangement. :rhe orders
themselves indicated that for the purpose of regular appointment the petitioners B
were bound to pass the U.P.S.C. examination in normal course in the direct
competition. Hence the petitioners will not fall under the main part of
Conclusion (A) or Conclusion (B) as contended by the learned counsel for
the petitioners.

13. A strange contention has been urged by the learned counsel for the
c
petitioners by referring to Section 96 of the Delhi Municipal Corporation Act.
Under that Section no appointment to any category A post shall be made
except after consultation with the U.P.S.C. but under the proviso no such
consultation shall be necessary in regard to the selection for appointment to
any acting or temporary posts for a period not exceeding one year. According D
to learned counsel for the petitioners, the appointment of the petitioners was
for a period of six months only and there was no necessity to consult the
Commission. Consequently, according to her the appointments were in
accordance with the statutory provisions. There is no merit in this contention.
If this contention is accepted the main provision contained in Section 96 E
prohibiting any appointment without consulting the Commission can be easily
defeated. Appointments can be made for periods lesser than one year and
after continuing such appointments for some years, the appointees could be
made permanent. That will only lead to nepotism and anarchy. The Statute has
not provided for any such situation. In fact a note of warning has been issued
by this Court in Dr. MA. Haque and others v. Union of India & Ors., [1993] F
-)
2 S.C.C. 213 in the following words :

"As against this, however, we cannot lose sight of the fact that the
recruitment rules made under Article 309 of the Constitution have to
be followed strictly and not in breach. If a disregard of the rules and
the by-passing of the Public Service Commission's are permitted, it G
will open a back door for illegal recruitment without limit."

With respect, we adopt that reasoning and reject the contention of the
learned counsel for the petitioners.

14. Learned counsel attempted to contend that the posts of GDMOs H
278 SUPREME COURT REPORTS [1998] 3 S.C.R.

A Grade II were in category B within the meaning of Section 90 of the Delhi
Municipal Corporation Act and they did not fall within the ambit of U .P.S.C. ""'.
There is no such plea in the writ petition. In the absence of any specific
pleading in that regard we cannot permit the petitioner's counsel to raise such

B
a contention at the stage of arguments. However. it must be pointed out that
in the writ petition there is an averment by the petitioners in Paragraph 12 that
since the petitioners have been in service for periods ranging between 5 to
-
9 years, it is to be presumed that consultation with the approval of U.P.S.C.
was obtained for their continued appointment. That averment is on the footing
that the posts fell within the ambit of U.P. S.C .. Hence, it is not open to the
petitioners to contend to the contrary.
c
15. The next contention of the petitioners' counsel is that they have
been in service for such a long time enjoying the benefits of revised pay
scales as well as allowances periodically and have been prevented from
carrying on private practice of any kind whatsoever and therefore they should
be treated as regular appointees from the inception. Support is sought from
D the judgment of this Court in Jacob M Puthuparambil and others etc. v.
Kera/a Water Authority and others, [1991] l S.C.C. 28 in which this Court on
an interpretation of the relevant rules held that long continuous service of
temporary appointees should not be terminated but should be regularised by
the authority concerned. The ruling has no application in the present case.
E Our attention is also drawn to the judgment in /.K. Sukhija and others v.
Union of India and others, [1997] 6 S.C.C. 406. The contention put forward
by the counsel in that case was that the appellants were governed by the
corollary of Conclusion A in the Direct Recruit case (supra). The Court found
on the facts that the appellants' promotions were not contrary to any statutory
recruitment rules, they were duly considered by the D.P.C. and promotions
F were made according to their placement in the merit list. It was also found that
the only reason for ad hoc promotion instead of regular promotion was that
the draft rules had not been finalised. In that situation, the Court held that
the appellants fell within the scope of Conclusion B in Direct Recruit case
·-
(supra) and were entitled to the benefit of the period of officiating service.
G That ruling will not apply in the present case.

16. The next contention of the learned counsel is that by an order dated
31.12.86 the Corporation regularised the services of several appuintees on the
recommendation of the Union Public Service Commission with effect from
27th December 1980 or the date of appointment whichever was later. According
H to the leatned counsel hostile discrimination is made against the petitioners
DR. A. BODI v. M.C.D. [SRINIVASAN, J.] 279

who were in a similar situation. There is no merit in this contention. In the A
counter-affidavit it has been clearly stated by the respondents that those
persons were appointed prior to 20.6.78 during the period of strike of Municipal
doctors and non-availabaility of the recommended doctors from the U.P.S.C.

- and there was an agreement between the representatives of those doctors
pursuant to which they were regularised and such regularisation was with
effect from 27.12.80 i.e. the date of recommendation by the U.P.S.C. It should B
be noted that those appointments were long prior to the passing of the
recruitment rules and the petitioners cannot claim that they are on the same
platform as those appointees.

17. The petitioners have been regularised with effect from 27 .6.91 the C
date on which the U .P.S.C. recommended their appointments. Hence there is
nothing illegal or arbitrary in the office order dated 17.8.92 appointing the
petitioners on regular basis with effect from 27 .6.91. The said regularisation
is in accordance with the rul.es.

18. We hold that the order of regularisation made by the first respondent D
on 17.8.92 with reference to petitioners is valid and not arbitrary. The petitioners
cannot have any grievance against the same. Consequently the writ petitions
have to fail and they are hereby dismissed. There will be no order as to costs.

R.K.S. Petitions dismissed.