Holding

The 1968 seniority order, as confirmed by the 1971 order, is a valid statutory determination of inter‑se seniority and is not inconsistent with Rule 18 of the 1945 Rules nor violative of Articles 14 and 16.

Summary

The case concerned the fixation of inter‑se seniority after the merger of Uttar Pradesh’s Provincial Medical Service (PMS) I and II into a single Pradeshik Medical Service. The appellants were direct recruits to PMS I appointed on a temporary basis before the merger, while the petitioners were officers promoted from the lower PMS II. The State and the appellants challenged the High Court’s decision that the 1968 seniority order (and its 1971 confirmation) was ultra‑vires and inconsistent with Rule 18 of the 1945 Medical Services Rules. The Supreme Court held that the 1945 Rules did not apply to the new service at its inception and were only provisionally applied in 1965; the 1968 order, being a statutory order, superseded those rules. Consequently, the seniority list placing the appellants above the petitioners was valid and did not violate Articles 14, 16 or Rule 18. The Court set aside the High Court’s judgment and restored the government’s seniority order.

Issues considered

Whether the 1968 order fixing inter‑se seniority is inconsistent with Rule 18 of the United Provinces Medical Services (Men’s Branch) Rules, 1945
Whether the seniority order violates Articles 14 and 16 of the Constitution of India
Whether the appointments of the appellants were substantive or merely temporary under the Rules
Whether the 1945 Rules were applicable to the merged service after the 1964 merger

Legislation cited

Constitution of Indias. 14, s. 16, s. 309
U.P. Medical Services (Men's Branch) Rules, 1945s. 17, s. 18, s. 19, s. 20

Subjects

seniorityinter‑se seniorityservice mergerpublic service commissionconstitutional lawArticles 14 16 309substantive appointmenttemporary appointmentRule 18Rule 17medical servicespromotionselection grade

Judgment

254

A STATE OF U.P. AND ANR.
v.
M. J. SIDDIQUI AND ORS. ..
March 31, 1980
·B [N. L. UNTWALIA, s. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.J

Seniority, inter-se of direct recruits and promotees prior to the merger of
PMS I and PMS II as per order 18-12-68-Validity of the seniority list dt.
31-12-71 pursuant to the order fixing the principles Dt 18-12-11-Pradeshik
Medical Services, 1964-Whether the order is inconsistent with Rule 18 of the
U.P. Medical Services Rules 1945.
c ··~.
In the State of U.P. there were two Medical Services consisting of doctors
serving in the· State. The senior service was called the Provincial Medical
Service (P.M.S.) This service was a gazetted service carrying a higher scale
of pay than the other service which was known as P.S.M.S. (Provincial
Subordinate Medical Service). So far as the P.M.S. was concerned, the in..
cumbents of the posts in the service were appointed by the Governor, whereaa
.D in the case of the P.S.M.S., the employees were appointed by the Director,_
Health Services. On JW1e 14, 1945, the Government of U.P. framed rules
known as the "United Province Medical Services ('Men's Branch) Rules, 1945,.
which were applicable to P.M.S. only. Rule 3(b), (f), and (h) defined
uDirect Recruitment", "Member of the Service" and "Subordinate Medical
Service", respectiVely. Rule 5 provided for two modes of recruitment. Rule 12
provided that selection of candidate for direct recruitment shall be made in
E consultation with the Public Service Commission Rule 13 prescribed the mode
of interview, Ilule 15 laid down modes of recruitment by promotions. Rule
17 specified the "appointing authority" and the manner in which the vacancies
should be filled in. Under Rule 18, seniority in the service shall be determined
by the date of order of appointment in a substantive vacancy. Rule 19 required-
that all persons whether recruited directly or by promotion be placed on proba-
tion, while Rule 20 laid down the circumstances under which a person appointed
F to a post in the Service on probation may be confirmed.

On 14-3-1946, two Medical Services were constituted, namely (i) Provin-
cial Medical Service Grade I (popularly known as P.M.S. I ) and (ii) Provincial
Medical Service Grade II (known as P.M.S. II). It was decided that existing
members of PMS II were to be absorbed in PMS I anrl further recruitment
of medical graduates should be made to PMS II in order to replace the PSMS,_
G By an order dated July 24, 1951, the Government laid dnwn that 50 per cent
of the vacancies in PMS I were to be filled in by direct recruitment and 50
•
per cent by promotion. The principle for determination of inter se seniority
between direct recruits and the promotees in PMS I was not laid down at tho
time when the Government order was made. In spite of the quota fixed by
the order dated 24-7-1951, no promotion from PMS II to PMS I could be
made between the years 1952 to 1963, except on an ad /we basis. On July
H 14, 1962 by virtue of an advertisement, the Public Service Commission invited
applicatioris for recruitments· to 56 gazetted posts out of which 9 posts were
permanent and the rest were temporary but were likely to continue. In pur...
U. P. STATE V. M. J, SIDDIQUI 255

suance. of this advertisement, the appellants applied for direct recruitment to A
PMS 1 and they were ultimately appointed on a temporary basis •ome time in
June 1963, but before the merger of the two services (PMS I and PMS II)
which came into existence on November 1, 1964. This merger was brought
about through an order of Government dt. 2-11-64. By this order the Pra-
d.eshik Medical Service (Men/Women) was constituted which had two grades;
aamely-ordinary grade which included all the existing posts of PMS I, and
PMS II and Selection Grade to consist of 7!% of the total number of penna- B .l
nent posts in the ordinary grade. By para 2 it was specified that "the perma-
nent and temporary posts in PMS I and PMS II grades shall continue to remain
3:i such on their merger until the temporary posts are made permanent subse-
quently". By para 4, the Government proposed to issue a further order re-
garding the fixation of the inter-se seniority while the right to fix inter-se
seniority of the members of the two services was .reserved, no provision was
made in the Order which either applies or oontinues the Rules of 1945 even c
in respect of inter-se seniority of members of each merging service. Thereafter
another order was passed on 20-2-1965 by which the U.P. :rvfedical Service
(Men's Branch) Rules 1945 were made applicable provisionally to the new
PMS with the words "unless otherwise ordered". Ultimately, a final order
laying down the principles on the basis of which the int"!r-se seniority of the
members of the two services was to be determined in the new service was
made on 18-12-68. In consonance with the directions contained in this order, Di
the Government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12.
The appellants fell within the ambit of direction (b) of the order dt. 18-12-68
which provided for officers appointed to PMS either on a permanent or tem-
porary basis prior to the merger in a regular manner in consultation with rhe
Lok Sewa Ayog (Public Service Commission) in order of their seniority. By
a Notification dated July 3, 1970 issued under Art. 309 of the Constitution,
E
the Governor made certain amendments to Rule 25 of the 1945 Rules, which
dealt with promotion to the post of Civil Surgeon. The Government there-
after directed through its order dt. 18-12-71 certain principles to be followed
regarding fixation of seniority. As per this order the Government by i!s
order dt. 31-12-71 fixed the inter-se seniority of the members of the ne\v
service, placing the appellants above the petitioners/respondents and awarding
to them the selection grade prior to the petitioners. F
, The petitioners/respondents challenged the vires of these orders as (a) ultra
vires Articles 14 and 16 of the c·onstitution; (b) in consistent with the Rules
17 and 18 of the 1945 Rules. The High Court accepted the plea of the peti-
tioners/respondents. Hence the appeals by special leave by the appellants ancl
the State.

• Allowing the appeals, the Court G l
HELD: 1. The combined effect of Rules 12, 13, 15 and 17 of the United
Province Medical Service (Men's Branch), Rules, 1945 is that whereas in the
case of direct recruitment, the matter was to be considered by the Public S_er-
vice Commission after advertising the vacancies, so far as recruitment to the
Service by promotion is concerned, a Selection Committee constituted under
the Rules had to send the lists to the Commission. In a third category of H
cases ta which appointments _were made purely on a temporary or officiating
basis there was no provision for reference either to a Selection Committee or to
I

256 SUPREME COURT REPORTS [1980] 3 S.C.R.

\ A the Commission and such appointments could be made by the Governor und«
sub-rule (2) of Rule 17. [262B-C]

In the instant case, the direct recruits applied to the Government in pursu-
ance of an advertisement and they were appointed to the Senior Service only
after they were recommended by the Public Service Commission.. The appoint-
ment, therefore, was not a purely officiating, temporary or ad hoc appointment
8 as contemplated by Rule 17(2). [262D-E]
2. There is no magical formula or special charm in the word "substantive".
The mere use of the term 'appointment in a temporary vacancy' by itself would
not conclude the matter or lead to the irresistible inference that the appoint-
ment was not made in a substantive capacity, because even a substantive ap-
pointment could be made to a purely temporary vacancy. In order, therefore,
·c to determine the nature of appointment, the Court must look to the substance
of the matter, the surrounding circumstances, the mode, the manner and the
terms of appointment and other relevant factors. In the instant case. Read-
ing the advertisement and the manner and mode of the appointment of the
appellants it is clear that they were appointed in a substantive capacity 10
temporary posts which according to the advertisement were likely to continue.
Moreover the appellants were appointed to PMS I which was doubtless a
\ D superior· service carrying a higher scale than PMS II of which the petitioners
were members. [265B-E]

Purshottan1 Lal Dhingra v. Union of India, [1958] SCR 828; follO\\'ed.
3. The fact that due to some oversight on the part of appointing authority
or to other fortuitous circumstance the order placing the appellants on pro-
bation was not passed for long would not give any special advantage to the
E petitioners, (respondents) who were themselves drawn from a lower service
and even if they held a substantive post in such service, they cannot by virtue
of promotion to the higher service after the appellants, claim seniority over
the latter. [266E-F]

4. Articles 14 and 16 of the Constitution have not been violated because
a person who is appointed to a higher service carrying a higher scale must
t F ordinarily be deemed to be senior to an employee who is promoted from a
lower service to the· higher service even though his appointment may have been
substantive in the lo\ver service. [266 F-G]
Kewal Krishan Bagga v. The Chairman Railway Board and Ors., [1976]
4 S.C.C. p. 733; followed.

; G 5. In the absence of any provision in the order dated 2-11-64 either apply-
ing or continuing the· Rules of 1945 even in respect of the inter-se seniority
of members of each merging service, which was also passed under Art. 309
of the Constitution and was therefore of a statutory character or at any rate
bad a statutory flavour, the Rules of 1945 could not be applied to the situation
obtaining after 2-11-64. [268G-H]
6. The Directions in the order dated 18-12-68 strike a just balance between
-o the officers of erstwhile services after they were merged into the New
Services. Direction (b) qf order dt. 18-12-68 regarding fixation of seniority
does not speak of any substantive appointment whatsoever but equates the
U. P. STATE V. M. J. SIDDIQUI 257

,officers appointed to PMS I on permanent or temporary basis prior to the A
merger. In other words, the direction ~ontemplates that any officer appointed
to a post whether permanent or temporary in PMS I which was the Senior
Service prior to merger, would rank after merger above those officers who were
,drawn from PMS II. [27 IB, C, Gl .
7. The 1945 Rules did not apply to the New Service at its inception and
that they were made applicable to the new service only for a shortwhile by B
virtue of the order dated 20th February 1965, purely on a provisional basis
as the Government made it quite clear in that order itself that the 1945 Rules
will apply 'unless otherwise ordered' and thus had reserved the right to pass
final orders regarding seniority later which was done in 1968. [271D-E]
8. Direction (b) of the order dt. 18-12-68 is not inconsistent with Rule 18
of the 1945 Rules. Having regard to the history of PMS I and PMS H, if
Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ig- c
nored, the resultant effect would be that equals and unequals would be treated
similarly which would amount to a direct infraction of Articles 14 and 16 of
the Constitution. The appellants and the petitioners were not similarly situate
and if the petitioners were put above the appellants in the matter of seniority,
it would have resulted in a gross and wholly unreasonable discrimination by
making junior officers senior to superior officers. This is clear from the follow-
ing propositions : D
(i) To begin with, the Rules of 1945 had absolutely no application to
the new Service. Those Rules applied to the old PMS I Service
only and, therefore, to a situation completely different from that
which prevailed after the merger of the two Services on 1-11-1964.
As the Government Order merging the two Services was also an
Order passed under Art. 309 of the Constitution, it had statutory E
force and ~·as binding on all the officers of the new Service.
(ii) At the time when the 1964 Order \Vas passed the Government deli-
berately did not frame any rules in order to determine the .inter se
seniority of the members of the new Service but reserved the right
to do so.
(iii) It was under the Order dated February 20, 1965 that for the first F
time the Rules of 1945 \Vere applied to the new Service and that
too "unless otherwise ordered" i.e., purely on a provisional basis.
The order of 1968 laid down the principles for fixing seniority and,
being a statutory order, superseded all the Rules in question includ-
ing Rules 17 and 18 of the 1945 Rules. It wa~ further confirmed
by the order dated 18-12-1971. [273G-H, 274A-E, 275D-E]
• G
ClVJL APPELLATE JURISDICTION : Civil Appeal Nos. 2870 & 2869
,of 1977.
Appeals by Special Leave from the Judgment and Order dated
31~1-1977 of the Allahabad High Court in Civil Misc Writ Petition
No. 2852 of 1972. II
G. L. Sanghi, Manoj Swarup, Afiss La/ita Kohli and Miss Indu
.Khindri for the Appellant in CA 2869/77.
258 SUPREME COURT REPORTS (1980] 3 S.C.R-

A L. N. Sinha, Attorney General, G. N. Dixit and 0. P. Rana for the
Appellant in CA 2870/70. '
S. P. Gupta and Pramod Swarup for RR 12 in both the appeals,
R. K. Jain for RR 13 in CA 2870/77.
The Judgment of the Court was delivered by
B
FAZAL ALI, J.-These two appeals by special leave are directed'
against a judgment dated January 31, 1977 of the Allahabad High Court
by which the High Court accepted the writ petitions filed by the pre-
sent respondents I to 12 and quashed the order dated December 31,
1971 of the Government of U.P. insofar as it related to respondents
c numbers 3 to 12 and 14 to 39 before the High Court. The High Court
further directed the State to redetermine the seniority of the regular
PMS II officers and the temporary PMS I officers in the light of the
observations made and the findings given by the High Court.

Against the order of the High Court two appeals have been filed
D to this Court-one by the State ofUttar Pradesh (which is Civil Appeal
No. 2870 of 1977) and the other by the appellants 1 to 8 (Civil Appeal
No. 2869 of 1977) who were respondents numbers 3 and 33 to 39 before
the High Court. For the purpose of brevity and to avoid confusion
we would refer to respondents 1 to 12 before the High Court as the
'petitioners' and respondents numbers 3 and 33 to 39 before the High
E Court as the 'appellants',

The main controversy between the parties centered round fixation
of their seniority in a new service which was created by an order of the
Government dated November 2, 1964. Shorn of unnecessary details
the broad facts which have given rise to the present appeals may be
F briefly summarised thus :

In the State of U.P. prior to 1945 there were two Medical Services
consisting of Doctors serving in the State. The senior service was
called the P.M.S., that is to say, the Provincial Medical Service. This
service was a gazetted service carrying a higher scale of pay than the
G other service which was known as P.S.M.S. (Provincial Subordinate
Medical Service) which was a non-gazetted service with a lower scale
of pay. It may also be noticed that so far as PMS was concerned, the
incumbents of the posts in the Service were appointed by the Governor
whereas in the case of the PSMS, the employees were appointed by the
Director, Health Services. We have mentioned these two facts because
H the nature of the Services, the scales of pay, the mode and manner of
appointment of incumbents to the two Services would be a very relevant
factor in order to determine whether or not the decision rendered by the
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, J.) 259

High Court was correct. On June 14, 1945, the Government of U.P. A
framed rules known as 'The United Provinces Medical Service (Men's
Branch) Rules, 1945' which were applicable to PMS only and contained
definitions, the relevant parts cf whom being covered by clauses (b), (f)
and (h) may be extracted thus :-
"3. (b) 'Direct recruitment' means recruitment under B
rule 5(1).
(f) 'member of the Service' means a person appointed
in a substantive capacity under the provisions of these
rules or of the rules in force previous to the promulgation
of these rules, to a post in the cadre of the service;
c
(h) 'Subordinate Medical Service' means the Sub-
ordinate Medical Service (Men's Branch) of the U.P."

Rule 5 provided that recruitment to the Service covered by the
Rules (hereinafter referred to as the 'Senior Service') was to be made
by two modes- D
(i) by selection from among the persons who were eligible
for appointment to the Service under the provisions
of the Rules whether or not they were already in the
permanent service of the Crown, and
(ii) by promotion from the Subordinate Medical Service E
provided that the number of posts to be filled by pro-
motion was limited to 10 per cent of the total number
of posts borne on the permanent cadre of the service.
Rule 9 provided that a candidate for appointment to the Senior Service
must be between 22 and 32 years of age on the !st July of the year in
F
which the recruitment was to be made. By a subsequent amendment
it was provided that in the case of scheduled caste candidates the age
limit could be extended by another five years, and that the Governor
could, in consultation with the Public Service Commission, relax the
upper age limit upto 40 years in favour of any candidate or class of
candidates. Rule IO laid down the academic qualifications for a candi-

-
• date to be eligible for recruitment to the Senior Service. The relevant
portion of that Rule may be quoted thus :-
"10. Academic qualifications
G

A candidate for recruitment to the Service must-
(a) hold a M.B.B.S. or an equivalent degree of a B
University established by law in India and recognised
by the Medical Council in India; OR
260 SUPREME COURT REPORTS [1980] 3 S.C.It.

A (b) possess a foreign qualification recognised by the
Medical Council of India if he does not hold a M.B.B.S.
or an equivalent degree of a University established by law
in India.
A candidate who possesses post-graduate degree or
diplorna recognised by the Medical Council of India in any
B
branch of Medical Science shall, be given preference in the
n1atter of recruit111ent to the Service."

Rule 12 provided that selection of candidates for direct recruitment
shall be made in consultation with the Public Service Commission who,
·C when called upon to do so, was to invite applications in the prescribed
form. Rule 13 prescribed the mode in which the interview was to be
held in respect of candidates who applied for recruitment to the Service.
The relevant portion of that Rule may be extracted thus :-
" 13. Interview-(!) The Commission will scrutinise
the applic.ations received by them and require so many
·D candidates qualified for appointment under these rules as
seem to them desirable to appear before them for interview
at their own expense.
(2) No candidate will be admitted to the interview
unless he holds a certificate of admission granted by the
·E Commission.
(3) The Commission shall draw up a list of such
candidates as it considers suitable for appointment in
order of preference and shall forward it to the Government.
(4) Subject to the provisions of rules 6 and 16(2) the
·F Governor shall appoint as vacancies occur the candidates
who stand highest in order of preference in the list prepared
by the Commission under sub-rule (3), provided that he
is satisfied that they are duly qualified in other respects."

Rule 15 was the provision which required the recruitment of candidates
by promotion and may be quoted thus :- .
" 15. Recruitment by promotion-(!) Officers of the
Subordinate Medical Service, who have more than 14 years'
service and are less than 45 years of age on the !st of August
of the year in which recruitment is to be made, shall be
eligible for promotion to the Service.
(2) The principle of selection shall be seniority subject
to the exclusion of those who are not fit for promotion.
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, J.) 2Gl

(3) The Inspector-General shall recommend names of A
officers of the Subordinate Medical Service who are eligible
and whom he considers suitable for promotion to the
Service on the basis of the record of their work and, if
necessary, interview.
(4) A preliminary selection from amongst the officers
' recommended by the Inspector General and other eligible
persons shall be made by departmental selection committee
consisting of the-
(i) Secretary to Government, United Provinces,
Medical department,
A.
(ii) Inspector-General, and
c
(iii) Director of Public Health, U.P."

It would thus be seen that so far as promotion from the Subordinate
Medical Service to the Senior Service was to be made, this could be
done on the recommendation of the Inspector-General which was to
be endorsed by a Selection Committee constituted under Rule 15(4),
quoted above. It was further provided under Rule 15 that the Selection
Committee after considering the relative merits of the candidates will
submit lists to the Government and Rule 15(5) required the Govern-
ment to forward both the lists to the Commission alongwith the neces-
sary papers. Sub-rule (6) of Rule 15 empowered the Governor to E
make the final selection after considering the advice of the Commis-
sion. Rule 17 which has been the subject matter of serious con-
troversy between the parties may be extracted thus :-
" 17. Appointing aut/,ority : (!)Appointment to the
Service shall be made by the Governor on the occurrence
F
of substantive vacancies. Appointment in vacancies to be
'--·~ filled by direct recruitment shall be made from amongst the
persons included in the list prepared under rule 13(3).
Similarly appointments in vacancies to be filled by pro-
motion shall be made from amongst the persons selected
under rule 15(6).
.. (2) The Governor may make appointments in tem-
G

.. porary or officiating vacancies from amongst persons who
are eligible for permanent appointment to the Service
under these rules."

A perusal of Rule 17 would reveal that the appointment was to II
be made to the Senior Service by the Governor on the occurrence of
substantive vac.ancies. It is also clear from this rule that appointment
262 SUPREME COURT REPORTS [1980] 3 S.C.R.

in vacancies to be filled by direct recruitment would have to be made
rfrom amongst persons included in the lists prepared under rule 13(3)
(supra) and appointment in other vacancies to be filled by promotion
under Rule 15(6) (supra). Sub-rule (2) of Rule 17 empowered the
Governor to make temporary or officiating appointments in vacancies
from amongst persons who were eligible for permanent appointments
B to the Service under these Rules. We might mention here that the 1
combined effect of Rules 12, 13, 15 and 17 is that whereas in the case of
direct recruitment, the matter was to be considered by the Public
Service Commission after advertising the vacancies, so far as recruit·
ment to the Service by promotion is concerned, a Selection Com-
mittee constituted under the Rules had to send the lists to the Com-
c mission. In a third category of cases which were appointments made
purely on a temporary or officiating basis there was no provision for
reference either to a Selection Committee or the Commission and such
appointments could be made by the Governor. This is rather impor-
tant because while the High Court had laid very great emphasis on the
fact that appellants I to 8 were appointed not in substantive vacancies
D
but on a purely temporary basis, it cannot be contended by any sh8W of
force that the appointment of the appellants, who were admittedly
direct recruits, could be made under Rule 17(2). The admitted posi·
tion is that the direct recruits applied to the Government in pur-
suance of an advertisement and they were appointed to the Senior
E Service only after they were recommended by the Public Service Com-
mission. The appointment of the appellants, therefore, was not a
purely officiating, temporary or ad hoc appointment as contemplated
,by Rule 17(2) (supra). We might also emphasise the fact at this stage
that it is undisputed that the petitioners while being members of PSMS
bad also applied for promotion to the Senior Service sometime in the
F year 1963 but their cases were not recommended by the Selection
Committee at all. We shall, however, deal with this aspect of the
matter at a later stage of this judgment. Rule 18 is the provision
which lays down the criterion for determining seniority and may be
extracted thus, because the High Court has strongly relied on this .
provision :·-
G
"18. Seniority
..
Seniority in the Service shall be determined by the
date of order of appointment in a substantive vacancy,
provided that if two or more candidates are appointed on
H the same date their seniority shall be determined according
to the order in which their names are mentioned in the
order of appointment."
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, !.) 283

According to this Rule, the yardstick to determine the seniority A
~ppears to be the date of the order of appointment in a substantive
vacancy. The sheet-anchor of the argument of the petitioners both
in the High Court and in this Court has been that as the appellants
were not appointed;in substantive vacancies they cannot claim seniority
under Rule 18 whereas the petitioners having been promoted to the
'Senior Service from the PSMS and in more or less substantive B
vacancies, they would be deemed to be senior to the appellants. The
lligh Court, as already noticed, accepted the case of the petitioners
although the State of U.P. supported the case of the appellants and
has also filed an appeal against the order of the High Court.
Relevant part of Rule 19 which is also important may be extracted c
.thus:-
"19. Probation, Discharge, etc. : (1) All persons
whether recruited directly or by promotion, shall on their
appointment in or against a substantive vacancy be placed
on probation for a period of one year, provided that the
Government may extend the period of probation in indi- D
vidual case. The previous officiating or temporary service
in a post in the cadre of the Service shall count toward the
period of probation."
lRule 20 lays down the circumstances under which a person appointed
to a post in the Service on probation may be confirmed. According E
to this Rule the incumbent can be confirmed if he has completed the
period of his probation or any extended period and the Governor is
satisfied that he is fit for promotion.
On the 14th of March 1946, two newJMedical Services werelconsti-
tuted, viz., (1) Provincial Medical Service Grade I, popularly known F
.as 'PMS I', in the scale of Rs. 200-10-320-15-500, and (2) Provincial
Medical Service Grade II, known as PMS II, carrying a scale of Rs.
120-4-160-8-200. It was decided that existing members of PMS were
1o be absorbed in PMS I and further recruitment of medical graduates
should be made to PMS 11 in Qrder to replace the PSMS. By Order
No. 4534A/V-614/1949 dated July 24, 1951, the Government laid down G
" that 50 per cent of the vacancies in PMS I were to be filled in by direct
recruitment and 50 per cent by promotion. Unfortunately, the prin·
-ciple for determination of inter se seniority between direct recruits and
the promotees in PMS I was not laid down at the time when the Govern-
ment Order was made. It appears that upto the year 1952, while five
PMS II officers were promoted to PMS I and four officers of merged H
States working in PMS I were adjusted against the promotion quota in
PMS I, 23 officers were appointed to PMS I by direct recruitment
264 SUPREME COURT REPORTS [1980] 3 S.C.R:.

A against substantive vacancies. Certain modifications were made by
Government Office Memorandum No. 1591/II B-50-1955 dated May 15,
1956 as mcdified by another Government Office Memorandum No.
4760/II B•50-55 dated December 18, 1956. But these changes are not
germane for the purpose of the present appeals. It appears, however,
that in spite of the quota Dxed by the Order dated 24-7-1951, no pro-
motion from PMS II to PMS 1 could be made between the years 1952
to 1963 except on an ad hoc basis. This brings us to a very important
..
date which forms the pivotal basis for the decision of the points in con-
troversy and for the determination of inter se seniority of the petitioners
and the appellants. On July 14, 1962 by virtue of an advertisement,
the Public Service Commission mv1ted applications for recruitment to
c 56 Gazetted posts out of which 9 posts. were permanent and the rest . >-.__.
were temporary but were likely to continue. The relevant portion.
of the advertisement may be extracted thus :
"Applications are invited for the following 56 Gazetted
posts (a) For Medicine-8, (b) For Surgery-8, (c) For
D Orthopaedics-5, (d) For E.N.T. Surgery-4, (e) For
T.B.-7, (f) For Radiology-8, (g) Mental Specialists-3,
(h) For Anaesthesia-13; 9 posts of (h) are permanent,
rest are temporary but likely to continue (Advt. No. 671),
Dept. No. R.B. 6) ....
E Qualifications :
(i) M.B.B.S. degree from Lucknow or Agra University.
Applicant should be amongst First twenty position·
holders in order of merit from K.G. Medical College.
Lucknow or S.N. Medical College, Agra or must have any
of the post graduate qualifications approved by the Indian
Medical Council.
Desi1able : Experience as Resident Officer or an
Equivalent post .......... "

It is not disputed that in pursuance of this advertisement, the
G appellants applied for direct recruitment to PMS I and they were

.......
ultimately appointed on a temporary basis sometime in June 1963
but before the merger of the two Services (PMS I & PMS II) which
came into existence on November 2, 1964. One of the dominant
questions to be determined in this case is whether the appellants were
..
appointed purely on a temporary basis or in a substantive capacity
H though against temporary posts. In our opinion, the High Court
seems to have laid undue stress on the fact that the appellants wer~
appointed on a temporary baJi< while overlooking the rniToundil1g
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali,!.) 265

circumstances and the terms of the advertisement and the Rules, A
referred to above, under which the appellants were appointed. We
have already indicated that Rule 17(2) was the only Rule under which a
temporary or an officiating appointment could be made by the Gover-
•• nor without reference to the Public Service Commission. In the
instant case, it is not disputed that the appellants were appointed after
reference to and on the recommendations of the Public Service Com- B
mission. The appointment of the appellants, therefore. would, not ·
fall under Rule 17(2). What then is the nature of the appointments of
the appellants is the serious question to be decided. In our opinion,
reading the advertisement and the manner and mode of the appoint-
ment of the appellants, it must be held that they were appointed in a
substantive capacity to temporary posts which according to the ad- c
vertisement were likely to continue. There does not appear to be any
magical formula or special charm in the word 'substantive'. The
mere use of the term 'appointment in a temporary vacancy' by itself
would not conclude the matter or lead to the irresistible inference that
the appointment was not made in a substantive capacity because even
a substantive appointment could be made to a purely temporary D
vacancy. In order, therefore, to determine the nature of the ap-
pointment, we have to look to the heart and substance of the matter,
the surrounding circumstances, the mode, the manner and the terms of
appointment and other relevant factors. In the instant case, we cannot
ignore the advertisement which forms the pivotal basis of the direct
recruitment in pursuance of which the appellants were appointed. E
Another circumstances that supports our view is that the appellants
were not appointed merely on an ad hoc basis but through the Public
Service Commission and in a regular way. Finally, the appellants
were appointed to PMS I which was doubtless a superior service carry-
ing a higher scale than PMS II of which the petitioners were members.
F
The question as to what is a 'substantive appointment' is no longer
res integra but was clearly expounded in the case of Parshotam Lal
Dhingra v. Union of India:(!) where this Court made the following
observations :
"The appointment of a Government servant to [a
permanent post may be substantive or on probation or G
Ir
on an officiating basis. A substantive appointment to a
permanent post in public service confers normally on the
sevant so appointed a substantive right to the post. ...... .
Likewise an appointment to a temporary post in a
Government service may be substantive or on an officiating
H
basis. Here also, in the absence of any special stipulation
(I} [19581 S.C.R. 828.
18-189 SCl/80
266 SUPREME COURT REPORTS -[1980] 3 S.C.R.

A or any specific service rule, the servant so appointed ac-
quires no right to the post and his service can be terminated
at any time except in _one case, namely, when the appoint-
ment to a_ temporary post is for a definite period ...... .
The substantive appointment to a temporary post, under
••
the rules, used to give the servant so appointed certain
B benefits regarding pay and leave, but was otherwise on J
the same footing as appointment to a temporary post on
probation or on an officiating basis." -
It was contended.by Mr. Gupta, learned counsel for the petitioners
that according to the 1945 Rules, the appellants could not be said to
c have been appointed in a substantive capacity because one of the
essential ingredients of such an appointment was that they should
have been placed on probation for a period of one year. Reference
was made in this connection to Rule 19, the relevant portion of which
may be again quoted thus :
"All persons whether recruited directly or by promo-
D tion, shall on their appointment in or against a substantive
vacancy be_-placed on probation for a period of one year
"
It was submitted that there is nothing to show that the appellants
were on their appointment to the PMS I placed on probation and, on
the other hand, the order of probation was passed long afterwards,
i.e., in 1970, which was shortly before their confirmation. It does
appear that due to some oversight on the part of the appointing authority
or to other fortuitous circumstance, the order placing the appellants
·on probation was not passed for long but that would not give any
special advantage to the petitioners who were themselves drawn
F from a lower service and even if they held a substantive post
in such service, they cannot by virtue of promotion to the higher
serv ce after the appellants, claim seniority over the latter. The
petitioners also cannot complain ot any discrimination on the
gronnd that Article 14 or 16 of the Constitution was violated
because a person who is appointed to a higher service carrying
G a higher scale must ordinarily be deerred to be seniN to an
..
employee who is promoted from a lower service to the higher service
even though his appointment may have been substantive in the
lov er service. In the case of Kewa! Krishan Bagga v. The Chairman,
Raz1way Board & Ors.(1) this Court observed as follows:-
-
"It was finally urged that clerks in the old establishment
H
were wrongly accorded seniority over godown keepers in
(!) [1976] 4 s.c.c. 733.
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, !.) 267

the cadre of clerks in the Northern Railway in which both A
clerks and godown keepers were assimilated. This argu·
men! overlooks the basic consideration that clerks in the
Amritsar godown while working under the Punjab Govern·
men! were placed in a higher scale of pay than godown
keepers. The decision to treat clerks as senior to godown
keepers was therefore not arbitrary or irrational. In fact, B
some injustice done earlier to clerks by fixing their inter
se seniority with godown keepers in the new establishment
on the basis of their length of service in the respective
cadres was later rectified by providing that clerks will be
considered as senior to godown keepers."
e
In view of the circumstances discussed above, we are inclined
to take the view that not much can be made of the fact that the order
appointing the appellants J.7 does not mention that they were ap·
· pointed m a substantive capacity and that what is said is that they were
appointed on a temporary basis. We shall consider this aspect more
fully after we have completed the history of the Services and their D
ultimate merger as well as the events following thereafter. We might
mention, however, that Dr. M. J. Siddiqui (respondent No. 1 in Civil
Appeal No. 2870 of 1977) bad filed a petition in the High Court regard·
ing bis seniority and other matters but before the petition could be
1 heard the two Services were merged and the petition was ultimately
dismissed on 2-8-1965 as infructuous. e
After making promotions from the lower service to the highe;·
service, the Government finally decided to have one medical service
and with this object in view by Order No. U-1312-A-II/V-2566/63
dated 2-11-64, the Government merged the two Services, namely,
PMS I and PMS II with effect from 1-11-64. The relevant portions F
of this Order may be extracted thus :-
"With a view to removing this shortage as also to
making the service conditions more attractive, the Governor
is pleased to order that instead of having two medical
services, viz, P.M.S. I and PMS II and a selection grade in
. PMS I, there shall be, with effect from November 1, 1964, one G
service to be called Pradesbik Medical Service (Men/Women)
:arrying the scale of Rs. 250-25-350-EB-25-475-EB-25-600-
EB-25-700, ordinary grade, and Rs. 500-50-1000-E.B.
50-1200 selection grade, and shall consist of the following·:
(a) Ordinary Grade :
H
(i) all the existing posts of P.M.S. I (both Men
and Women)
268 SUPREME COURT REPORTS [1980] 3 s.c.!l.
A (ii) all the existing posts of P.M.S. II (both Men
and Women)
(b) Selection Grade :
7-! per cent of the total number of permanent
posts in the ordinary grade.
B 2. The permanent and temporary posts in PMS I and J
PMS II cadres shall continue to remain as such on their
merger into PMS until the temporary posts are subsequently
converted into permanent ones."

A persual of this Order manifestly reveals that the distinction
·c between PMS I and PMS II was abolished and the two Services were
constituted into one designated as 'Pradeshik Medical Service (Men/
Women)' (hereinafter called the 'new Service') which had two grades
(1) the ordinary Grade which was.in the range of Rs. 250-700 and (2)
the sectction grade which was in the range of Rs. 500-1200. It was ·
further provided that 7-l per cent of the total number of permanent
.D posts in the ordinary grade would be reserved for the selection grade.
Para 2 of the Order is rather important as it appears to have kept alive,
to some extent, the distinction between the permanent and the tem-
porary posts in PMS I and PMS II. Para 4 of the Order is very im.
portant for our purpose and may be extracted thus :
E "4. Orders regarding fixation of the inter seniority of
the existing P.M.S. I and P.M.S; II officers in the P.M.S.
will issue separately."
It was rather unfortunate that while merging the two services
into one, the Government did not consider it expedient to lay down
rules for fixing inter se seniority of the offiers of the two erstwhile
F services. It was, however, mentioned in para 4 that rules regarding ·-......!'
fixation of the said seniority wonld issue separately. Another
important aspect of the matter which is germane to the
issues arising in these appeals is that while the right to fix inter SI
seniority of the members of the two services was reserved, there is
G no provision in the order which either applies or continues the
Rules of 1945 even in respect of the inter se seniority of members of
each merging service. It was, therefore, rightly contended by the
appellants that in the absence of any such provision in the order
which was also passed under . Art. 309 of the constitution
and was therefore of a statutory character or, at any rate, had a s·ta-
tutory flavour, the Rules of 1945 could not be applied to the situation
obtaining after 31-10-1964 subsequent orders passed by the Govern·
ment throw some light on this point, As the Government was not in
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, J.) 269

a position to lay down the Rules for fixation of inter se seniority i=e· A
diately after the constitution of the new service, by way of a stop-
gap arrangement, the Government passed Order No. 20661-AII/V·
2566-1963 dated February 20, 1965, the relevant portions of which may
be extracted thus :-
"Subject :-Merger of P.M.S. I and II into P.M.S. B
Sir,
In continuation of G.0. No. U-1312-A·ll/V-2566/1963
dated November 2, 1974 on the subject mentioned above,
I am directed to say that in supersession of all previous
A. orders on the subject the Governor has been pleased to
order as follows :- C
(I) The U.P. Medical Service (Men's Branch) Rules,
I 945 shall apply to the new, PMS unless otherwise ordered.
(2) The appointing authority of P.M.S. shall be the
Governor.
(3) Disciplinary proceedings against the officers _of D
the P.M.S. will be drawn at Secretariat _level, as in the
case of other gazetted officers.

1 (5) The following will be eligible for appointment to
P.M.S. E
(a) Medical graduate of all Universities in India
recognised by the Indian Medical Council.
(b) Medical graduates who hold the M.B.B.S. degree of
Lucknow University, provided they have served
in house appointment for a term of nine F .
months in a teaching hospital before they offer
themselves for appointment.

3. The number of permanent and temporary post in
P.M.S. I and II (Men and Women) as on the afternoon of G
October 31, 1964 may please be reported to Government
immediately so that the strength of P.M.S. cadre on No-
vember I, 1964 may be fixed. Seniority lists of the officers
(Men & Women) in P.M.S. I and II also kindly be fur-
nished at once in duplicate as in the attached proforma."
H.
It is, therefore, manifest that during the interregnum, that is to
$Sy, 1-11-64 to 22-2-65, the Rules of 1945 were inapplicable so far as
270 SUPREME COURT REPORTS (1980] 3 S.C.R.

'A the new Service was concerned. It was for the first time on the 20th
February 1965 that by the Order, extracted above, the U.P. Medical
Service (Men's Branch) Rules, 1945 were made applicable to the new
Service and that too on a purely provisional basis until fresh Rules •'
were framed by the Government for determining the inter se seniority
of the officers concerned. The words 'unless otherwise ordered' clearly
B show that the application of the 1945 Rules was purely provisional and
was to remain in .force unless fresh rules were made. Another order
by the Government was passed on 26-12-67 regarding the mode of
recruitment, qualifications, etc., which is not very releva11t for our
purpose. Ultimately, a final order laying down the principles on the
basis of which the inter se seniority of the members of the two Services
C,
was to be determied in the new Service were laid down. This Order
was passed by virtue of G.O. No. 3976 A-II/V-68/1757 /65 dated 18-12-68
which may be extr&cted thus :
"In supersession of G.0. No. 1004-A-II/V-2566/63
dated April 23, 1963, on the above subject, I am directed
to say that the Governor has been pleased to order that
the inter se seniority of the officers of the merged cadre
known as PMS should be arranged in the following order :-
(a) Permanent PMS I officers in order of their seniority
already determined by Government followed by,
E (b) officers appointed/promoted to PMS I on per-·
manent or temporary basis prior to the merger
of PMS I and PMS II in the regular manner in
consultation with the Lok Sewa Ayog in order of
their seniority determined by Government, follo-
wed by,
F (c) officers of PMS II in order of their seniority in the
PMS II cadre prior to the merger of PMS I and
PMS II.
Note : If a PMS II officer was officiating in PMS I
but he has not been approved for promotion/appointment
G to PMS I by the Lok Sewa Ayog, he shall rank in the
PMS in accordance with his seniority in PMS II.
2. I am to request that a seniority list of PMS officers
may please be prepared on the lines indicated above and
it niay be serit to Government for their approval as early
as possible." .
n:
It was in consonance 1with these directions that the Government
fixed the seniority of appellants 1 to __ 7 and petitioners 1 to 12. Se>·
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali,!.) 271

· tar as the appellants were concerned, they clearly fell within the ambit A
of t!irection (h) which provided for officers appointed to PMS I either
on a permanent or temporary basis prior to the merger in a regular
manner in consultation with the Lok Sewa Ayog (Public Service
Commission) in order of their seniority. It may be pertinent to note
here that direction (b) does not speak of any substantive appointment
whatsoever but equates the officers appointed to PMS I on permanent B
or temporary basis prior to merger. In other words, what the direction
contemplates is that any officer appointed to a post whether permanent
or temporary in PMS I which was the Senior Service prior to merger,
would rank after merger above those officers who were drawn from
PMS II. That the appellants fulfilled all the conditions mentioned in
direction (b) is not disputed but the constitutionality of that direction c
was challenged before the High Court on the ground that it was incon-
sistent with Rule 18 of the 1945 Rules. This contention found favour
with the High Court which held that direction (h) was invalid as being
inconsistent with the Rules of 1945. In coming to this finding, the
High Conrt appears to have overlooked the fact that the 1945 Rules
D
did not apply to the new Service at its inception and that they were
made applicable to the new Service only for a shortwhile by virtue of
the order dated 20th February 1965, purely on a provisional basis as
the Government made it quite clear in that order itself that the 1945
-l Rules will apply 'unless otherwise ordered' and thus had reserved the
right to pass final orders regarding seniority later which was done in B
1968. In these circumstances, therefore, the order of the High Court
suffers from two infirmities--
(i) that there was no real or apparent inconsistency
between rule 18 of the 1945 Rules and the 1968 direc-
tions,
p
(ii) that initially the 1945. Rules ceased to apply to the
new Service but were made applicable thereto only for a
shortwhile by way of a stop-gap arrangement in
1965.
The High Court appears to have interpreted the directions of 1968
completely out of context. On the other hand, we feel that those G
directions seek to strike a just balance between the officers of the
erstwhile Services after they were merged into the new Service. We
shall immediately show that having regard to the exigencies of the
situation created by the merger, no othe(mode of seniority, which
was just and fair, could be evolved for the new Service.
By a notification dated July 3, 1970 issued unde1 Art. 309 of the
Constitution, the Governor made certain amendments in the 1945°
272 SUPREME COURT RBPCYRTS Tl 980] 3 S.C.R,

A Rules including Rule 25 which related to recruitment to the posts of
Civil Surgeons and other PMS selection grade posts. The amended
rule may be extracted thus :-
"Part IX-Promotion to the post of Civil Surgeon
and other PMS-Selection grade posts.
B Rule 25 (i) Recruitment to the posts of Civil Surgeons j

and other PMS Selection grade posts, borne on the cadre of
the Service, shall be made by promotion on the basis of
seniority subject to rejection of the unfit from among
the members of the Service who hold the M.B.B.S. or
higher degree and who have rendered not less than 10 years'
c service."
Under this rule the promotion to the selection grade of the ne:w
Service was to be made purely on the basis of seniority subject to
rejection of the unfit from among the members of the Service or those
who had rendered service for less than ten years. The petitioners
appear to have put forward their claim to seniority as being above the
D appellants in order to earn the selection grade before the appellants
on the ground that they had been appointed in a substantive capa-
city, though in a lower service, prior to the appointments of the
appellants to the higher service. Thereafter, it appears that the
Government, after considering the representations received from
E the former officers of PMS and in consultation with the Public
Service Commission, more or less endorsed the principles laid down
for fix;ation of seniority in the 1968 order and directed in an order
dated 18-12-19'11 seniority should be fixed on the following
principles:-
"(k) Keeping in view the balance in the seniority list
F among the appointment by direct recruitment upto ··._/
1951 and the promotee officers. 19 promotee offi-
cers may be given first 19 posts at the same time.
'. (kh) Jn the list of the officer by promotion and direct
recruitment, Ratio of 1 : 1 may be kept in the seniority
G list in both the categories of the officers from the
20th post, i.e, 20th post to the promotee officer and
21st post may be given to officer by direct recruit··
men!. This will continue until the batch of direct
recruits upto 1963. Thereafter the remaining pro-
motee officers of batch 1963 may be placed all together
B in the seniority list. Thereafter, the direct recruits
of batch 1964 may be placed in the seniority li>t
togetl1er.
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, !.) 273

(G) The officers selected for permanent posts in a year A.
>- may be placed over the officers selected for tern-
porary posts in the same year.
~
(GH) Five officers of the reserve list by the direct recruit-
ment of the year 1951 who were appointed tempo-
rarily in 1952 and whose permanent appointment was
B
approved by the Commission in 1958 may be placed
below in the list of the officers by direct recruitment in
1957 batch.
Note : 1. The lists of the officers by direct recruit-
A ment and by promotion will contain only the names who
were appointed temporary and permanent in PMS .(!) c
with the approval of the Public Service Commission.
2. In accordance with the aforesaid principles 'G'
the names of the officers will be placed in the list by direct
recruitment after approval by the Commission for regular
appointment. D
3. The names of the officers will be placed in the list
_ of promotee officers in order of the determined seniotity
in accordance with the above mentioned principles 'G' vide
notification No. 2780 K/5/247/57 dated the 13th June
i 1963."
E
It was in consequence of these directions that the Government
by virtue of the order impugned fixed the seniority of the members of
the new Service, placing the appellants above the petitioners and
awarding to them the selection grade i:irior to the petitioners.

Tilus, in short, thi heart of tile matter is whether the order of F
1968 as confirmed by the order dated 18-12-1971 was in any way
inconsistent with Rules 17 and 18 of the 1945 Rules so as to nullify
the mode of seniority adopted by the Government and the promotion
to the selection grade made by it under the impugned order. In our
opinion, the following propositions emerge from the history of the ne\"
•
.>'
service and the foregoing discussion :- G
(1) To begin with, the Rules of 1945 had absolutely no
application to the new Service. Those Rules applied
to the old PMS I Service only and, therefore, to a
situation completely different from that· which pre-
vailed after the merger of the two Services on 1-11-1964. H
As the Government Order merging the two Services was
also an Order passed under Art. 309 of the Constitution,
274 SUPREME COURT REPORTS · [1980] 3 S.C.R.

A it had statutory force and was binding on all the
officers of the new Service.
(2) At the time when the 1964 Order was passed the
Government deliberately did not frame any rules in
order to determine the inter se seniority of the mem-
bers of the new Service but reserved the right to do so. i
B
(3) It was under the Order dated February 20, 1965 that
for the first time the Rules of 1945 were applied to the
new Service and that too "unless otherwise ordered"
i.e., purely on a provisional basis. The order of 1968
laid down the principles for fixing seniority and,
c being a statutory order, superseded all the Rules in
question including .Rules 17 and 18 of the 1945 Rules.
It was· further confirmed by the Order dated 18-12-1971.

We, therefore, find ourselves unable to agree with the view taken
l!>y the High Court that direction (b) of the 1968 Order should be struck
D down as being inconsistent with Rule 18 of the 1945 Rules.

We might further point out that having regard to the history of
PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to
the parties and the 1968 Order ignored, the resultant effect would be
that equals and unequals would be treated similarly which would
E amount to a direct infraction of Articles 14 and 16 of the Constitution.
In order to illustrate our point we give below a chart showing the
different attributes possessed by the two set of· officers, namely, the
appellants and the petitioners

Appellants Petitioners
F
1. Appellants were direct recruits to 1. The Petitioners' cEses were sent for
PMS I; appointed in a substantive consideration by the selection Com·
capacity in a regular manner on the mittee in June 1963 but they \\·ere not
recommendation of the Public Service considered fit for selection vide the
Commission though to temporary relevant extracts below from the
posts. Affidavit of Mukund Swarup Srivasta..
G va, Upper Division Assistant, Medi-
cal Section. U. P. Civil Scretariat :

"All the petitioners Who were
eligible for promotion were considered
for promotion by the Public Service-
Commission and the Departmental
H Selection Committee in the manner
prescribed, vide office memorandum
dated May IS, 1956 as modified by
u. P. STATE v. M. J. SIDDIQUI (Fazal Ali, !.) 275

office memorandum dated December
18, 1956. The cases of the petitioners
were not recommended by the Selection
Committee for promotion to Provincial
Medical Servir;e I."
(Emphasis ours) B-

2. Ti1~ ·tp;:i;lla1ts w:.r.:. adm~ttedly 2. The Petitioners belonged to PMS II
a)JJ\n!ed by th; Q)V!rnor to a high:!r which was a subordinate servi·:e with
Service, viz., PMS I carrying a higher a lower scale ; their appointing
sell~ of p1y with b:!tter prospects and authority being the Director, Medical
higher responsibilities. Service and not the Governor. c
3. At the time of appointment to the 3. The petitioners did not put in the
s~l;.:tion gra1; th; a.)_>)llants h1d put r~quisite exp~rience in PMS I for
in tb!r~quisiteexp:!rience of m0re than promotion to selection grade.
eight years in PMS I required
for pro:n'.ltion to the selection grade. D

Having regard to these factors, it is obvious that the appellants
and the petitioners were not similarly situate and if the petitioners
were put above the appellants in the matter of seniority, it would have
resulted in a gross and wholly unreasonable discrimination by making
junior officers senior to superior officers. E

A number of authorities were cited before us on the question of
the principles of seniority but they are not at all applicable to the
peculiar facts of the present case which have special features of their
own and we have therefore not considered it necessary to deal with F
those authorities.

As regards the case of appellant No. 8, Dr. Sudhir Gupta, it stands
on an altogether different footing which is even higher than those of
appellants I to 7. To begin with this appellant was recruited. directly G
to PMS I from PMS II through the Public Service Commission on
13-7-1959. He actually joined the PMS I Service on 11-11-1959. He
passed M.B.B.S. in 1954 and was among the first ten candidates.
In 1956, he obtained Child Health Diploma. Thus, in all respect the
case of appellant No. 8 is exactly similar to that of the other appellants
with this difference that he was appointed to PMS I about five years H
before the PMS II was merged into PMS land therefore the petitioners
could not claim seniority over him.
276 SUPREME COURT REPORTS [1980] 3 S.C.R.

A Thus, on a careful consideration of all the circumstances of this
case, we are clearly of the opinion that the High Court committed an
error of law in quashing the Order of the Government dated 31-12-1971
and directing it to refix the seniority of the parties. Accordingly,
Appeals Nos. 2869 and 2870 of 1977 are allowed and the orders passed
by the High Court are set aside. The Order of the Government dated
B December 31, 1971 is hereby restored. In the circumstances of the: I
case, there will be no order as to costs.

S.R. Appeals allowed.