Holding

Ad‑hoc medical officers regularised after 1 October 1984 cannot have their pre‑regularisation service counted for seniority, while those regularised before that date may count it under principle B, and seniority must be fixed accordingly.

Summary

The case concerned the determination of inter se seniority among Indian Railway medical officers who were either directly recruited through the UPSC or initially appointed on an ad‑hoc basis and later regularised. The Supreme Court examined whether periods of service rendered before regularisation could be counted for seniority, especially for doctors regularised after 1 October 1984, a date fixed based on the A.K. Jain decision. It held that where the recruitment rules do not provide for ad‑hoc appointments, the pre‑regularisation service of such doctors cannot be counted, whereas doctors regularised before that cut‑off may have their earlier service counted under the principle ‘B’ from the Direct Recruits Class II Engineering Officers case. The Court applied the Constitution’s provisions on service rules and relied on earlier judgments to resolve the conflicting authorities. Consequently, the seniority lists were to be fixed accordingly, placing post‑cut‑off ad‑hoc regularised doctors after both outsider and insider direct recruits. The appeals were dismissed, confirming the earlier orders.

Issues considered

Whether the period of service rendered by ad‑hoc medical officers prior to regularisation should be counted for inter se seniority.
Whether the recruitment rules and the cut‑off date of 1 October 1984 preclude counting such service for seniority.
Whether the principles laid down in Direct Recruits Class II Engineering Officers Association (guideline B) apply to ad‑hoc doctors regularised under the A.K. Jain order.

Legislation cited

Constitution of Indias. Article 142, s. Article 309

Subjects

seniorityinter se seniorityad hoc appointmentregularisationUPSC recruitmentRailway medical officersprinciple Bper incuriaservice lawconstitutional provision

Judgment

UNION OF INDIA AND ANR. ETC. ETC. A
v.
LALITA S. RAO AND ORS. ETC. ETC.

APRIL 10, 2001

[G.B. PATTANAIK, U.C. BANERJEE AND B.N. AGRAWAL, JJ.] B

Service Law :

Inter. se seniority-Medical Officers-Direct Recruits and ad hoc
appointees upto 1.10.1984 regularised by UPSC pursuant to Supreme Court
decision in A.K. Jain's case-Period of service rendered prior to regularisa-
c
tion-Counting of-Held, services rendered by ad hoc iWctors prior to regu-
larisation not entitled to be counted for the purpose of detennination ofsenior-
ity.

Inter se seniority-Direct Recruits and ad /we appointees upto I .I 0.1984 D
regularised by UP SC on the basis of written test and interview-Service ren-
dered prior to regularisation-Counting of-Held, entitled to be countedforthe
purpose of detennination of seniority applying principle laid down in Direct
Recruit Class II Engineering Officers Association case.

Inter se seniority-Direct Recruits and ad hoc appointees appointed after E
1.10.1984 and selected by UPSC-Period service prior to regularisation-
Counting of-Held: Not entitled to be countedfor the purpose of detennination
of seniority since the Recruitment Rules do not provide for ad hoc appoint-
ment-Indian Railway Medical Department (Assistant Medical Officers Class
II) Recruitment Rules, 1977. F
Prior to 1986, recruitment of Assistant Medical Oflicers nnder
Railway Administration was being done by Union Public Service Commis-
sion (UPSC). The Government of India, through au Administrative order
of the Railway Board, permitted General Managers to recruit Assistant
Medical Oflicers in Class II on ad hoc basis, in emergencies, for a period G
not exceeding six months; their services would be terminated as soon as the
candidates selected by UPSC become available. As per the Order, UPSC
could consider their applications for regularisation after written examina-
tion and interview. Besides, the Order provide for retaining ad hoc doctors
beyond six months subject to prior approval of the Board. The ad hoc H
1059
1060 SUPREME COURT REPORTS [2001) 2 S.C.R.
A doctors, whose services were not regularised hy UPSC, apprehending ter-
mination of their services, filed Writ P2tition hefore this Court. Mean-
while, during the pendency of the Writ Petitions, the Central Government
formulated new rules for recruitment called Indian Railway Medical
Department (Assistant Medical Officers Class II) Recruitment Rules, 1977.
The Rules never contemplated ad hoc appointment. The Writ Petitions
B
were disposed of by this Court with direction regarding regularisation of
services of those who were appointed prior to 1.10.1994, filling up of
vacancies and salary and allowances; but did not deal with seniority. (Dr. .'Ir
A.K. Jain & Ors. v. Union of India, [1987] Supp. SCC 497). On an applica-
tion filed by the Central Government seeking clarification with regard to
c seniority, this Court, by order dated 1.11.1988, held that the inter se senior-
ity between the direct recruits and the unsuccessful ad hoc doctors, who
were regularised on basis of A.K. Jain's decision would be decided depend-
ing on the outcome of Constitution Bench decision in Direct Recruits Clrus
II Engineering Officers Association v. State of Maharruhtra, [1990] 2 SCC
D 715 CB. Later, a similar interlocutory application was filed before this
Court by the unsuccessful doctors for determination of seniority. Mean-
while, the Constitution Bench decision in Direct Recruits Clrus II Engineer-
ing Officers Association case was pronounced and this Court disposed of the
interlocutory application on 18.2.1993 holding that the unsuccessful ad hoc
doctors would be placed in the seniority list after the other two categories
E i.e., direct recruits and successful ad hoc doctors, who were regularised by
UPSC Dr. M. Haque & Ors. v. Union of India, [1993] 2 SCC 213.

Meanwhile, in 1987 some successful ad hoc doctors, who were regu-
larised by UPSC, filed a petition before Tribunal challenging the seniority
list dated 10.6.1987. The Tribunal, by order dated 18.3.1993, held that the
F
period of ad hoc service should be also counted for purpose of seniority.
Union of India filed an appeal before this Court challenging the Tribunal's
Order. It was dismissed on the ground that the decision of this Court in
Dr. M. Haque' s case will have no application to the case of the Tribunal as
they deal with different categories of people. Seniority was revised for
G those doctors who were parties before the Tribunal, by the Union of India
by order dated 24.8.1994. Respondent No. 1 and several other doctors filed_
applications before the Tribunal claiming same benefit. The applications
were allowed directing re-fixation of seniority. Direct recruits filed Writ
Petitions before the High Court questioning the seniority lists. The High
H Court dismissed the Writ Petitions. Hence these appeals by direct recruits
U.0.1. v. I.ALITA S. RAO 1061
and the Union ol' India. A

Direct recruits contended that the inter se seniority should be deter-
mined according to the dates of their regular appointments through UPSC;
that the ad hoc do~tors, who were regularised pursuant to the decision in
A.K. Jain's case, should be placed below the direct recruits, who were
recruited till the date of the order, in the seniority list. B

Disposing of the appeals, the Court

HELD : 1.1. The seniority of an employee in a cadre has to be
determined in accordance with the Rules, if such Rules provided for the
same. But if such Rules rlo not make any provision or do not fix the criteria c
for determination of seniority of the employees in a cadre, then the same
could be determined on the principles enunciated by the Constitution
Bench decision in Direct Recruits Class II Engineering Officers Association
t case. [1074-B-C]
D
1.2. The ad hoc appointees, who were not regularised by UPSC will
not be entitled to claim the benefit of their ad hoc period for being counted
for the purpose of seniority in the cadre, after they were regularised
pursuant to the order of this CourtinA.K. Jain's case. The Court in Dr. M.
Haque' s case observed that so far as outsider and insider direct recruits
are concerned, their inter se seniority would be determined according to E
the date of their regular appointment through UPSC, which must be held
to be per incuria and not a guiding principle. [1074-E; 1077-C]

1.3. lf the initial appointment had not been made in accordance with
the prescribed procedure laid down by the Recruitment Rules and the F
appointees were allowed to continue in the post uninterruptedly and then
they appeared at the selection test conducted by UPSC and on being
selected their services stood regularised, then there would be no justifica-
tion in not applying the principle 'B' of the Direct Recruits Class II Engi-
"' ' neering Officers Association case and denying the period of officiating
services for being counted for the purpose of seniority. Since there is no G
provision in the Recruitment Rules for determining seniority, the princi-
ples evolved by the Constitution Bench in Direct Recruits Class II Engineer-
ing Officers Association case will have to be followed and judged from that
angle, there is no inconsistency between the judgment of this Court in
Dr. M. Haque's case and the judgment of this Court confirming the H
1062 SUPREME COURT REPORTS [2001] 2 S.C.R.
A decision of the Tribunalin Dr. Srinivasulu's case accepting the observation
in Dr. M. Haque's case, which has been held to be per incuria. [1077-E-H;
1078-A-B]

2. All doctors appointed on ad hoc basis upto 1.10.1984, who were
regularised by the Railway Administration in consultation, with UPSC on
B the evaluation of their work and conduct and on the basis of their confi-
dential reports in respect of a period subsequent to 1.10.1984 pursuant to
the direction of this Court in Dr. A.K. Jain's case will not be entitled to
count the. services rendered prior to regularisation for the purpose of
determination of their seniority in the cadre. Doctors who had been ap-
c pointed by the Railway Administration on ad hoc basis or ou temporary
basis and had got themselves regularised prior to 1.10.1984, by appearing
in the selection test held by UPSC, then the period prior to regularisation
could be counted for determining seniority applying principle 'B' of the
Direct Recruits Class II Engineering Officers Association case. If any doctor,
who had been appointed subsequent to 1.10.1984 and bad applied for t
D selection by UPSC on obtaining relaxation of age pursuant to the direction
in Dr. A.K. Jain's case and got selected thereby finally, in such a case the
services rendered prior to such regularisation would not be counted for the
purpose of their seniority in the cadre, particularly when the Recruitment
Rules did not provide for appointment to be made through UPSC. The cut
E off date has been fixed as 1.10.1984 on the basis of Dr. A.K. Jain's case.
The ad hoc appointees subsequent to 1.10.1984 even if got themselves
regularised by appearing in the selection test conducted by UPSC in
accordance with the Rules, it will not be in the interest of justice to
apply principle B to their case as the statutory Recruitment Rules do
F not provide for any other mode of recruitment other than by process of
selection by UPSC. [1078-C-H; 1079-A-B]

Direct Recruit Class II Engineering Officers Association v. State of
Maharashtra & Ors., [1990] 2 SCC 715 CB and Dr. A.K. Jain & Ors. v. Union

G
of India & Ors., [1987] Supp SCC 497, relied on.

E.S.P. Rajaram & Ors. v. Union of India & Ors., JT (2001) 1 SC 573
CB; Union of India & Ors. v. M. Bhaskar & Ors., JT (1996) 5 SC 500 and Dr.
M. Haque & Ors. v. Union of India, (1993] 2 SCC 213, referred to.
·-...
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2478-2479
\H of 2000.
U.0.1. v. I.ALITA S. RAO [PATTANAIK, J.] 1063

.,._ From the Judgment and Order dated! 6.4.99 of the Delhi High Court A
in C.W. Nos. 2802/97 and 2795/97

WITH

Civil Appeal Nos. 2480 of 2000 and Civil Appeal No. 2680 of 2001.

Mukul Rohtagi, ASG, T.L.V. Iyer and Raju Ramachandran, Ms. Smita B
Inna, Narsimhan, P. Sridhar, Anil Katiyar, Ms. Sushma Suri, Ms. Nisha
Bagchi, Gaurav Aggarwal, Ms. Nivedita Singh and Ms. Indu Malhotra for -
the Appellants.

Salman Khurshid, P.N. Mishra and Raju Ramachandran, Rakesh K.
Khanna, U.N. Goyal, Surya Kant, Nisha Bagchi, Gaurav Aggarwal, Ms. Indu
c
Malhotra, Imtiaz Ahmed, S. Prasad and S.N. Jha for the Respondents.

The Judgment of the Court was delivered by

PATTANAIK, J. Leave granted in S.L.P.(C) No. 18846/99.
D
The determination of inter se seniority between the two categories of
doctors engaged by the Railway Administration is the subject matter of
dispute in these batch of cases. It would be necessary to state the facts in
a greater detail in view of the chequard history of the case. Prior to 1986,
no1mal recruit to tl1e post of Assistant Medical Officers under the Railway
E
Administration was being made through a process of selection by the Union
Public Service Commission. There was no statutory rule framed for the
purpose of recruitment. Government of India in the Ministry of Railway
through the Railway Board had, however, permitted the General Managers
to recruit Assistant Medical Officers in Class II on ad hoc basis for a period
not exceeding six montl1s and such power had been confe1Ted in the public F
interest as the process of selection tlrrough Union Public Service Commission
was taking some time. The ad hoc recruits, however, were advised to apply
to Union Public Service Commission in response to the advertisement to be
• issued by the Commission for getting regular appointment. The administrative
instructions dated 21st May, 1966, unequivocally indicated that the ad hoc
G
appointees should be made known that their services would stand terminated
~ as soon as candidates selected by the Commission become available. The
aforesaid Government Order also provided that the ad hoc appointees could
~
be retained beyond six months with prior approval of the Board. Some time
in the year 1986 several such doctors having failed in their attempt to get
selected tJn·ough the Union Public Service Commission apprehended termi- H
1064 SUPREME COURT REPORTS [2001] 2 S.C.R.
A nation of their services, therefore, a batch of Writ Petitions were filed in this
--<
Court under Article 32, which stood disposed of by judgment d.ated 24th
September, 1987, Dr. A.K Jain and Otl1e1·s v. Union of India & Ors., repmted
in [1987] (Supp.) Supreme Comt Cases 497. By the time these Writ Petitions
were taken up for consideration a set of Recruitment Rules have been framed
under the proviso to Article 309 of the Constitution, called 111e Indian
B
Railway Medical Department (Assistant Medical Officers Class II) Recruit-
ment Rnles, 1977, (hereinafter referred to as "111e Recruitment Rules"), and
the said Rule never contemplated of any ad hoc appointment. Even under the
provisions of the Railway Establishment Code, which governs the recruitment
of the Group 'A' service in the various departments of Railways, as indicated
c in Section 205, no ad hoc recruitment was contemplated, and as such, the
ad hoc appointments were in the exigencies of service to meet a particular
contingency under the Administrative Orders of the Board. 111is Court
disposed of the batch of cases with following directions:- .,.
"(!) The services of all doctors appointed either as Assistant Medical
D Officers or as Assistant Divisional Medical Officers on ad hoc
basis up to October 1, 1984 shall be regularised in consultation
with the Union Public Service Commission on the evaluation of
their work and conduct on tl1e basis of their confidential repmts
in respect of a period subsequent to October 1, 1982. Such
E evaluation shall be done by the Union Public Service Commis-
sion. The doctors so regularised shall be appointed as Assistant
Divisional Medical Officers with effect from the date from
which they have been continuously working as Assistant Medi-
cal Officer/Assistant Divisional Medical Officer. The Railway
shall be at liberty to te1minate the services of those who are not
F so regularised. If the services of any of tl1e petitioners appointed
prior to October 1, 1984 have been terminated except on
resignation or on disciplinary grounds, he shall be also consid-
ered for regularisation and if found fit his services shall be ~
regularised as if there was no break in the continuity of service
G but without any back wages.

(2) The petitions of the Assistant Medical 011icers/Assistant Di vi-
sional Medical Officers appointed subsequent to October 1,
1984 are dismissed. But however direct that the Assistant
)...
-
Divisional Medical Officers who may have been now selected
H by the Union Public Service Commission shall frrst be posted
!I
U.0.1. v. I.ALITA S. RAO [PATIANAIK, I.] 1065
to the vacant posts available wherever they may be. If all those A
~
selected by the UPSC cannot be accommodated against the
available vacant posts they may be posted to the posts now held
by the doctors appointed on ad hoc basis subsequent to October
I, 1984 and on such posting the doctor holding the post on ad
hoc basis shall vacate the same. While making such postings the
B
principle of 'last come, first go' shall be observed by the
Railways on zonal basis. If any doctor who is displaced pursuant
to the above direction is willing to serve in any other zone where
there is a vacancy he may be accommodated on ad hoc basis
in such vacancy.
c
(3) All Assistant Medical Officers/Assistant Divisional Medical
Officers working on ad hoc basis shall be paid the same salary
and allowances as Assistant Divisional Medical Officers on the
+ revised scale with effect from January I, 1986. The arrears shall
be paid within four months.
D
• (4) No ad hoc Assistant Medical Officer/Assistant Divisional Medi-
cal Officer who may be working in the Railways shall be
replaced by any newly appointed AMO/ADMO on ad hoc basis.
Whenever there is need for the appointment of any AMO/
ADMO on ad hoc basis in any zone the existing ad hoc AMO/
E
ADMOs who are likely to be replaced by regularly appointed
candidates shall be given preference.

(S) If the ad hoc doctors appointed after October I, 1984 apply for
selection by the Union Public Service Commission the Union
of India and the Railways Department shall grant relaxation in F
age, to the extent of the period of service rendered by them as
> ad hoc in the Railways."

Be it be stated the Court took a compassionate view of the matter and directed
regularisation of the ad hoc doctors in consultation with the Union Public
Service Commission on the evaluation of their work and on the basis of their G
,
Confidential Reports, but did not indicate as to how their seniority in the
~
cadre could be dete1mined. An Interlocutory Application, titled Dr. M. Haque
-'. and Ors. v. Union of India was !hereafter filed in this Court for appropriate
direction as to how their seniority could be dete1mined. 1bis application was
disposed of by order dated 18.2.1993, since reported in 1993 (2) sec 213. H
1066 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Before filing of the aforesaid Interlocutory Application the Union of India
had itself moved an application before the Court and that stood disposed of
by order dated 1.11.1988 and the order was to the following effect:-

"We have heard learned counsel for the Union oflndia (the applicant
in this civil miscellaneous petition) and the learned counsel for the
B petitioners in the writ petition. In the circumstances of the case we
feel that the Union Government should be directed to implement the
order passed by us in the Writ Petition Nos 522, 875, 180 and 200 )•:
of 1987 and connected cases on September 24, 1987 in full except
to the extent of fixing the inter se seniority between the petitioners
c in the writ petition and the direct recruits. We accordingly made an
order in this case. The question of senimity, however, is left to be
decided by the Government in the light of the decision to be rendered
by this Court in the cases which are pending before the Constitntion
Bench involving similar questions. If any person is aggrieved by the t
decision of the Government on the question of seniority he is at liberty
D to question it in an appropriate forum. The order passed by us in the
writ petition subject to the above modification shall be complied with
by the Union Government within two months without failure."

The civil miscellaneous petition is disposed of acordingly.

E In Interlocutory Application this Court was concerned with those Assistant
Divisional Medical Officers who had been appointed between 1968 and !st
October, 1984, whose services stood regularised pursuant to the order of this
Court in Jain's case [1987] Suppl. SCC 497, but the seniority had not been
fixed up. The Court for fixing the inter se seniority of the doctors considered
F the existence of three classes of Assistant District Medical Officers -

(i) The outsiders who have been directly recruited tlll'ough Union ~
Public Service Commission on the basis of written test or
interview;

G (ii) Ad hoc appointees who were initially recruited ad hoc but in the
course of their continuance as ad hoc came to be regularly
recruited through Union Public Service Commission by appear- .,..
ing in the written examination and interview;. ).

(iii) The petitioners in Dr. Jain's case who either did not appear in
H the written examination and interview or had failed to get
U.O.l. v. I.ALITA S. RAO [PATIANA!K, J.] 1067
through the UPSC examination but could be regulaiised because A
of the Court's order dated 24th September, 1987 (1987 Suppl.
' )-
Supreme Court Cases - 497), as well as the Claiificatory order
passed on 1.11.1988 ori the application filed by the Union of
India.
..
,

By the date an Interlocutory Application was being co.nsidered the Consti- B
tution Bench decision in the Direct Recruit Class II Engineering Officers'
Association case had already been pronounced. (1990 (2) Supreme Court
Cases 715). The Court considered the piinciples evolved in the direct recruits
case and held that neither guideline 'A' nor guideline 'B' would govern the
case of those Assistant Divisional Medical officers who could be regulaiised c
only in pursuance to the earlier orders of the Court in Jain's case (supra).
The Court ultimately held that so far as, the outsiders, who have been directly
recmited through the UPSC and the ad hoc appointees, who have been also
regularised by appearing in the written examination conducted by the UPSC
a11d being selected by the UPSC, their seniority will be determined according
to the dates of their regular appoinunent and the ad hoc appointees who could D
not get selected or did not appear in the examination conducted by the UPSC
could be placed in the senioiity list after two fo1mer categories. It may be
stated for the pmpose of convenience that the nomenclature of these tlu·ee
categories of doctors is assigned as :- (i) outsiders, directly recruited doctors
on the basis of selection through UPSC; (ii) insiders, ad hoc recmits those E
regularised after being successful in the UPSC examination and on being
selected by the UPSC, and (iii) the unsuccessful Medical Officers through
UPSC who stood regularised pursuant to the orders of the Court in Dr. A.K.
Jain (supra) and the subsequent clarificatory order dated 1.11.1988 on the
application filed by the Union of India. In the application which was disposed
of by order dated 18.2.1993. (1993 (2) SCC 213) this Comt was actually
F
concerned with evolving a principle of determining inter se seniority between
f. the third categmy of Medical Officers, namely, who were regularised pursuant
to the order of this Court in Dr. A.K. Jain's case and the direct recruit Medical
Officers appointed on the basis of they being selected by the Union Public
Service Commission. The inter se dispute between those outsiders direct G
recruits and the insiders direct recruits, who were initially appointed on ad
hoc basis but got themselves selected by appearing in the examination
through UPSC had not been really in issue though iu tl1e ultimate analysis
the Court had made some observation in respect of them. While the matter
stood thus Dr. P. Srinivasulu and 20 others who belong to the second category, H
v'
'

1068 SUPREME COURT REPORTS [2001] 2 S.C.R.
A namely, insider ad hoc recruits who got themselves regularised after being
selected by the UPSC either by w1itten examination or by interview filed an
application before the Central Administrative Tribunal, Principle Bench, New
Delhi which was registered as O.A. No. 1603 of 1987. The Tribunal in the
aforesaid case came to the conclusion that the ad hoc appointees being
regularised after being selected through the UPSC would be entitled to get
B
their ad hoc period also counted towards seniority, and therefore, the seniority
list that had been drawn up on 10th June, 1987 was quashed. This order of
the Tribunal is dated 18th March, 1993. It may be stated herein that the
Interlocutory Application that had been filed in Writ Petition No. 1165 of
1986 though had been disposed of on 18th February 1993 but the same had
c not been brought to the notice of the Tribunal. The order of the Tribunal was
assailed by the Union of India in Special Leave Application, which was
registered as SLP(C) No. 10714 of 1993, but the Court refused to grant leave
after hearing tl1e counsel for parties by order dated 15.11.1993. While
dismissing the Special Leave Application the Court did consider the order
dated 18th February, 1993 passed in Interlocutory Application (1993 (2)
D
Supreme Court Cases - 213) and came to the conclusion that the two category
of people who are being dealt with are different and what has been stated
in Interlocutory Application will have no application to tl1e case of Srinivasulu
since Srinivasulu and others had been selected through UPSC and got
regularised: The Union of India thereafter filed an application for clarification
E and modification of tlie order dated 15.11.1993, which was registered as I.A.
No. 2 in Special Leave Petition No. 10714/93. But that was also dismissed
by order dated 13.5.1994 holding that no clarification is needed. It appears,
that several Writ Petitions, filed under Article 32 of the Constitution, some
by the Doctors Association and some by the individual were also dismissed
F by this Court subsequent to the aforesaid order dated 28th February, 1993 and
the order in Srinivasulu' s case was implemented and those of the doctors who
were party to the said case (21 in number) their seniority was revised by the ""
Union of India by order dated 24th August, 1994. One doctor D.P. Pande,
a direct recruit, had filed a Writ Petition under Article 32, which was
registered as Writ Petition No. 612 of 1994, that was, however, dismissed by
G the Court on 4.10.1994. While dismissing the Writ Petition this Court had
observed that dismissal will not prevent the petitioners from moving the
Tribunal or any other appropriate forum. Said Dr. Pande then approached the
Central Administrative Tribunal, Principal Bench, but t11e application was
dismissed for default. A Writ Petition was filed by a Dr. Salish Chandra,
H which was registered as Writ Petition No. 30of1995. But that was withdrawn
U.0.1. v. LALITA S. RAO [PATTANAIK, !.] 1069
and he filed a Special Leave Petition which was registered as S.L.P. (Civil) A
No. CC 4125 of 1995. That was also dismissed by order dated 11.4.1997.
Dr. Lalita Rao - respondent no. I in Civil Appeal Nos. 2478-79 of 2000, filed
application before the Central Administrative Tribunal, Principal Bench, New
Delhi claiming same benefit that had been given to Srinivasnlu. This Appli-
cation was registered as OA No. 321 of 1996. The Direct Recruits Railway
B
Doctors Association also filed a Writ Petition in Delhi High Court, which was
registered as C.W.P. 2802 of 1997. Some direct recruit doctors also individu-
ally filed Writ Petition in Delhi High Court, which was registered as Writ
Petition No. 2795 of 1997. Delhi High Court by judgment dated 16.4.1999
dismissed the Writ Petitions filed on the ground that the Special Leave
Application against the judgment of the Tribunal in Srinivasulu's case having c
been dismissed the relief sought for by the direct recruits cannot be granted.
The said judgment of the Delhi High Court is under challenge in this Court
in C.A. No. 3057of1999. Civil Appeal No. 2478-79 of2000 have been filed
by the Union of India against the said judgment of Delhi High Court dated
16.4.1999 passed in Civil Writ Petition Nos. 2802of1997 and 2795of1997,
D
one filed by the Direct Recruits Railway Doctors Association and the other
filed by some individual direct recruit doctors. When the matter had been
placed before this Court on 13th January, 2000, prima facie being of the view
the direction in Haque 's case would ruu contrary to the directiions in
Srinivasulu's case, the case had been placed before a three Judge Bench. The
three Judge Bench by order dated 31st March, 2000 granted leave and that E
is how the matter has finally been heard by a three Judge Bench. Against
the judgment of Delhi High Court in Civil Appeal Nos. 2802/97 and 2795
of 1997, the Direct Recruits Railway Doctors Association have moved this
Court in Civil Appeal No. 2480 of 2000. The Indian Railways Medical
Officers (ad hoc) Association through its General Secretary doctor Sudhir F
Sharma and one doctor C.P Singh filed an Application before the Central
Administt·ative Tribunal praying that their past services as ad hoc doctor
should also be counted for the purpose of their seniority as directed in
Srinivasulu's case. This application was registered as O.A. No. 1555 of 1996.
Dr. Brahm Prakash & Anr. who are petitioners in Special Leave Petition No.
18846 of 1999 were allowed to intervene in the said proceedings. Tribunal G
ultimately allowed the application and following the judgment in Srinivasulu's
case called upon the authorities lo re-fix the seniority. That judgment of the
Tribunal was assailed be(ore the Delhi High Court by filing a Writ Petition,
which was registered as CWP No. 3916 of 1999. A Division Bench of High
Court dismissed the Writ Petition on the ground that against the earlier H
y

1070 SUPREME COURT REPORTS [2001] 2 S.C.R.
A judgment of the Division Bench in C.W.P. Nos. 2795 of 1997 and 2802 of
1997, a Special Leave Petition, filed by the Direct Recruits doctors having
been dismissed nothing survives in the matter. As stated earlier, the aforesaid
judgment of the Delhi High Court in C.W.P. Nos. 2795 of 1997 and 2802
of 1997 is the subject matter of challenge in Civil Appeal Nos. 2478-79 of-
2000, filed by the Union of India.
B
The Railway Establishment Code contains the general provisions indicating
the method of recruitment to Group A service in the various departments ~
of railways as in Paragraph 205. The same is quoted hereinbelow in
extenso:-
c "205. Method of Recruitment :- Recruitment to Group A service in
the various departments of Railways shall be made through -

(a) Competitive Examination held by the Union Public Service
Commission; ~
D (b) Promotion of officers in Group B Se1vice including officiating
Group B Railway officers of the service or depai1ment;

(c) By appointment of candidates initially recruited as Special
Class Apprentices on the results of the examination conducted
E by U.P.S.C. in accordance with the rules for recruitment to
Indian Railway Service of Mechanical Engineers. ~

(d) By transfer of an officer in service of the Government provided
the recruitment rules include a provision to this effect.

F (e) By occasional admission of other qualified persons in consul-
talion with the U.P.S.C."

It thus stipulates that recruitment could be made by a competitive examination
held by the Union Public Service Commission by promotion of officers from ""
Group B, by appointment of candidates initially recruited as Special Class
G Apprentice, by transfer of an officer in service of the government, provided
Recruitment Rules included provision to the said effect and by occasional
admission of other qualified persons in consultation with the Union Public
Service Commission which would obviously be a direct recruitment. The
)._
President of India, in exercise of powers conferred by the proviso to Article
H 309 of the Constitution made a set of Rules for recruitment to the post of
U.0.1. v. I.ALITA S. RAO [PATIANAIK, J.] 1071
Assistant Medical Officers (Class II) called, the Indian Railways Medical A
Department (Assistant Medical Officer Class II) Recruitment Rules, 1967
(hereinafter referred to as 'The Recruitment Rules of 1967'). The said Rule
came into force with effect from 29th July, 1967. Rule 4 of the aforesaid
Rules provides, that the method of recruitment to the post, age limit,
qualification and other matters connected therewith, would be as specified in
B
Columns 5 to 13 of the Schedule. Rule 8 is the power of relaxation of the
Central Government and that power could be exercised only after recording
reasons in writing and that also must be in consultation with tl1e Union Public
Service Commission. So far as the Assistant Medical Officer is concerned,
the Recruitment Rules of 1967 provides that it could be by promotion to the
extent of 25 per cent and by direct recruitment including occasional recruit- c
ment from otl1er sources in consultation with the UPSC to the extent of 75
per cent, and failing both the aforesaid methods then by transfer on depu-
tation. Prior to the aforesaid Recruitment Rules there was no statutory rule,
and therefore, recruitments were being made in accordance with paragraph
205 of the Railway Establishment Code and the Assistant Medical Officer D
being a post in Group A service it was being made through Union Public
Service Commission. The letter of the Ministry of Railways, Government of
India dated 21.5.1966 clea.ly assumes the aforesaid position and by this letter
General Managers were pe1mitted to recruit Assistant Medical Officers in
Class II on an ad hoc basis for a period not exceeding six months even though
E
by the date of the issuance of the aforesaid letter Union Public Service

- Commission had already advertised the vacancies and made aJTangements to
complete the selections expeditiously. It would be appropriate to extract the
aforesaid letter in extenso hereunder :-

New Delhi, dated 21.5.1966 F
No.E(GR)I-66-RC12-3

The General Managers
All Indian Railways including CLW and DLW,

The Chief Administrative Officer, G
Sub: Recruitment of Assistant Medical Officers on the Indian
Railways.

Reference Board's letter No. E(GR)I-66RC12-1 dated 20.4.1966
addressed to the Secretary, Union Public Service Commission and H
1072 SUPREME COURT REPORTS [200 I] 2 S.C.R.
A copy endorsed to all Railway Administrations. The Union Public
Service Commission have advertised the vacancies and made an·ange-
., ......
ments to complete the selections as expeditiously as possible.

2. However, in order to enable Railway Administrations to man the
existing vacant posts which cannot, in the public interest, continue to
B be kept unfilled until candidates selected by the Commission become
available, the Board have with the approval of the President, decided
that the General Managers may recruit Assistant Medical Officers in
Class II on an ad hoc basis for a period not exceeding six months.
The candidates so appointed should be advised to apply to the Union
c Public Service Commission in response to the advertisement issued
by them for filling vacant posts of Assistant Medical Officers on
Railways and it should be made perfectly clear to them that their
services are purely temporary and will be te1minated as soon as
candidates selected by the Commission become available. The par-
ticulars of candidates so appointed_ viz. their names, qualifications,
D experience, date of birth, date of appointment, etc., may please be
forwarded to this office in due course.

3. The Union Public Service Commission advertisement for posts
of Assistant Medical Officers has appeared on today's papers.
The Assistant Medical Officers recruited on ad hoc basis by
E -t

-
General Managers should fulfil the qualifications laid down
therein. A copy of the advertisement is enclosed.

4. The Board have also suggested that you may try to obtain
assistance from State Governments by getting qualified doctors
on the normal deputation te1ms for a short period of about six
F
months.

5. Assistant Medical Officers appointed on ad hoc basis should not
be retained in service beyond six months withont Board's prior
approval. Where, due to non-availability of candidates selected
G by the Commission, it becomes necessary to continue the
appointment of locally recruited doctors a reference should be
made to the Board two clear months in advance."
~
The 1967,Recrnitment Rules stood superseded on 16th September, 1977 when
the President of India enacted, in exercise of powers confened by the proviso
H to Article 309, another set of Rules called, TI1e Indian Railway Medical
U.0.1. v. LALITA S. RAO [PATTANAIK, J.] 1073
..... Service (Assistant Divisional Medical Officer) Recruitment Rules, 1977. The A
aforesaid Rules were given retrospective effect and must be deemed to have
'"" come into force from 16.10.1976. Rule 3 of 1977 Recruitment Rules also
provides that the method of recruitment, age limit, qualifications and other
matters relating to the post of Assistant District Medical Oilicer wonld be as
specified in columns 5 to 13 of the Schedule. Rnle 7 of 1977 Rules further
B
provides that the persons who are recruited nnder the Rules to post to which
the conditions prescribed in Rule 2423 - (CSR) 404B of the Indian Railway
Establishment Code applies, shall be eligible to the benefit of the provisions
contained in that Rule. By the time the 1977 Rules came into force there had
been re-organisation of the cadre on the basis of recommendations of the
Third Central Pay Commission, being accepted by the Government of India c
and Class II cadre in the Railway Medical Service (which was the post of
Assistant District Medical Otlicer in the 1967 Recruitment Rules), stood
abolished and a combined junior and senior scale was introduced, the cadre
being Assistant Divisional Medical Officer. This is apparent from the Reso-
lution of the government of India dated !st May, 1974, as notified in the D
Gazette. In the Recruitment Rules of 1977, so far as for the post of Assistant
Divisional Medical Officers, the method provided was either by direct
recruitment or by promotion or by deputation/transfer and the percentage of
vacancies to be filled by various methods was to be decided in consultation
,.. with the Union Pnblic Service Commission. So far as the outsider direct E
recruitment is concerned, the same was required to be made through a \vritten
examination followed by interview, on the basis of such schemes of exami-
nation to be decided from time to time, in consultation with the Union Pnblic
Service Commission, and failing the direct recruitment it could be by transfer
on deputation. The scale of pay for the post of Assistant Divisional Medical
F
Officer was Rs. 700-40-900-EB-50-1250-EB-50-!600. Though the post of
Assistant District Medical Officer, as provided in the Railway Establishment
Code as well as in the 1967 Recruitment Rules stood abolished under the
Recruitment Rules of 1977, but a note was appended indicating that existing
Assistant Medical Officers (Group B) shall continue in Group B post in scale
of pay of Rs. 650-1200 till such time they are selected for absorption in Group G
A Grade of Assistant Divisional Medical Officer in consultation with the
Union Public Service Commission. By the time the 77 Recruitment Rules
came into force the Union Pnblic Service Commission had already issued
advertisement on 16th October, 1976 to hold examination for filling up the
post of Assistant Divisional Medical Officer Class I, the said cadre having H
1074 SUPREME COURT REPORTS [2001] 2 S.C.R.
K come into existence in the year 1974 on acceptance of the recommendaion ....
~
of Third Central Pay Commission by Government of India, and therefore, to
regularise the matter 1977 Recruitment Rules was given retrospective effect
with effect from 16.10.1976. We have devoted a considerable attention to
these Rules, as in the earlier cases referred to, in Haque's case (supra) as well
as Srinivasulu 's and others, the relevant Recruitment Rules had not been
B
brought to the notice of the Court. It is too well settled, that the seniority
of an employee in a cadre has to be determined in accordance with the Rules
if such Rules provided for the same. But if such Rules do not make any
provision or do not fix the criteria for dete1mination of seniority of the
employees in ·a cadre then the same could be determined on the principles
.. c enunciated by the Constitution Bench decision in the Direct Recruits Engi-
neering Officers' case, [1992] 2 Supreme Court Cases. This being the
position, and in view of the letter of Government of India, in the Ministry
of Railways dated 21.5.1966 authorising General Managers to recruit Assist-
ant Medical Otlicer Class II on ad hoc basis for a period not exceeding six
D months, and further indicating that such ad hoc appointees should apply to
the Union Public Service Commission in response to the advertisement issued
by the Commission, those of the ad hoc appointees who had not got
themselves regularised by getting themselves selected through UPSC exami-
nation will not be entitled to claim the benefit of their ad hoc period for being
E counted for tl1e purposes of seniority in the cadre, after they were regularised -+
pursuant to order of this Court in A.K. Jain's case (supra) . In fact the
directions contained by this Court in Dr. Jain's case (supra) deals with all
the ad hoc doctors appointed either as Assistant Medical Officer or as
. --..,·-
Assistant Divisional Medical Officer upto October 1, 1984 should be regu-
- .. p larised in consultation with the UPSC on the evaluation of their work. The
Court having issued the direction for regularisation even in respect of
Assistant Divisional Medical Officers appointed after coming into force of the
Recruitment Rules of 1977, advisedly did not indicate as to how their
seniority in the cadre would be determined and these group of officers who
got themselves regularised in pursuance to the order of the Court were treated
G to be a separate group by itself in the Clarificatory Order of this Court. When
the Union of India moved application finding difficulty in adjusting the
seniority of those ad hoc doctors appointed upto !st October, 1984, who were
regularised pursuant to the direction of the Court dated 24th September, 1987 ~
in Dr. A.K. Jain's case (supra) that application was disposed of, as already
H indicated, by order dated l.l l.1988. In the said order it was specifically
U.0.1. v. I.ALITA S. RAO [PATIANAIK, J.] 1075
indicated that the inter se seniority between the direct recruits and the ad hoc A
recruits who got themselves regularised under the orders of the Cowt in
Jain's case (supra) should be decided by the Government in the light of the
decision to be rendered in the cases which are pending before the Constitution
Bench involving similar questions. After the Constitution Bench decision in
the Direct Recruits Class II Engineering Officers Association case (supra) an
B
Interlocutory Application No. I of 1992 was filed and that stood disposd of
by order dated February 18, 1993, called Dr. M.A. Haque's case (supra). In
paragraph 7 of the said order the Court has kept in mind three classes of
Assistant District Medical Officers, namely, the outsiders directly recruited
through UPSC, ad hoc appointees who came to be recruited through UPSC
by appearing in the written examination or interview; and those who had filed c
I.A. were also ad hoc appointees but did not appear in a written examination/
interview or had failed to get through but could be regularised in service
because of the Comt's intervention and order dated 24.9.1987 and 1.11.88.
So far as the direct recruits are concerned, both outsiders and insiders, it was
held, that the same should be determined according to the dates of their D
regular appointments tlU"ough 1TPSC and so far as those ad hoc appointees
who could be regularised only pmsuant to the order of the Comt they were
directed to be placed after those direct recruits who had been recruited till
the date of the order. In other words even in case of insider direct recruits
~ i.e., those who joined as ad hoc appointees but got themselves regularised E
after appearing in the examiuation or interview and being selected by UPSC
tl1e Court did norapply guideline B of tl1e Direct Recruits Class II Engineer-
ing Officers Association case (supra). It must be borne in mind that the
applicants who had filed Interlocutory Application belong to the Third
category, namely, those who could be regularised because of the orders of
F
tl1e Court inA.K. Jain's case dated September 24, 1987 and the Clarificatory
order dated I.I 1.1988 on the application of the Union of India and in that
proceeding neither the outsiders directly recruited doctors nor insiders directly
recruited doctors had been arrayed as parties. The present dispute appears to
be between the outsider direct recruits, who got themselves recruited by
appearing at the test conducted by the UPSC and the insider direct recruits, G
who initially had been appointed on ad hoc basis but got themselves selected
through UPSC while continuing in service. But the Union of India is of the
view that the principles enunciated in Haque 's case is running contrary to the
principles enunciated in Srinivasulu' s case by tl1e T1ibunal and upheld by t11is
Court. In view of the apprehended confusion in the mind of the Railway H
1076 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Administration on account of the judgments of this Court, referred to earlier,
and for doing complete justice in the matter of determination of seniority
amongst the medical officers recruited by the Railway Administration through
the UPSC, we have approached the problem on consideration of the different
Rules in force as well as the orders issued by this Court in several earlier
B cases and this shonld apply iITespective of the fact whether some are parties
to this proceeding or not. In fact one of the grievance of insider direct recruit
Medical Officers like, doctor Srinivasulu is that they had not been aITayed
as party when the Court was considering the Interlocutory Application filed
by doctor Haque for detetmination of their seniority, who belong to the
category, namely, ad hoc appointees who got recruited without getting
c themselves selected through any examination conducted by the UPSC only
because of the compassionate view that was taken by this Court in Dr. A.K.
Jain's case (supra). A similar problem arose in the case of Traffic Apprentices
in Southern Railways and a Three Judge Bench of this Court in the case of
Union of India and Others v. M. Bhaskar and Others, IT (1996) 5 SC 500,
D issued directions notwithstanding some other Traffic Apprentices who would
be directly affected were not parties. The conectness of that decision was
considered by tl1e Constitution Bench in the case of E.S.P. Rajaram & Ors.
v. Union of India & Ors., IT (2001) 1 SC 573, and the Constitution Bench
came to hold that the judgment in Bhaskar's case (supra) does not require
E any re-consideration, the Court having invoked its power vested under Article --f
142 of the Constitution for doing complete justice amongst the Traffic
Apprentices in Sout11em Railways and. the decision/direction tl1erein could not
have been nullified on the ground tliat an affected person was not a party
to t11e same. In th• aforesaid background and the earlier judgments of this
Court on being critically analysed, it would appear that in Dr. A.K. Jain's case
F (supra) this Court merely directed that the services of all doctors appointed
on ad hoc basis, whether as Assistant Medical Officer or Assistant Divisional
Medical Officer up to 1.10.1984 shall be regularised in consultation with tl1e
UPSC on the evaluation of their work conduct on the basis of their CRs in
respect of the petiod subsequent of October 1, 1984. So far as these doctors
G - ad hoc appointees, who got themselves regularised pursuant to the orders
of this Court, the question of counting their prior ad hoc period of service
for dete1mination of their seniority in the cadre does not arise. Though in
doctor Jain's case (supra) as well as in t11e subsequent order on the appli-
cation filed by t11e Union of India the Court had not indicated as to how their
H seniority in t11e cadre would be determined, but on t11e Interlocutory Appli-
U.0.1. v. LALITA S. RAO [PATTANAIK, J.] 1077
ca•ion filed by doctor Haque, the Court examined and did indicate that they A
could be placed in the seniority list after both the outsider direct recruits as
well as insider direct recruits, who have been recruited till the date. It is no
doubt true that while saying so the Court did observe !hat so far as outsider
and insider direct recruits are concerned, !heir inter se seniority would be
detennined according to !he date of their regular appointment through !he B
UPSC, but as has been stated earlier, this dispute was not really before the
Court and Court had not focussed its attention minutely as the insider direct
recruits had not been parties to the same and !he Court was merely examining
how the case of those ofticers, who got lhemselves regularised pursuant to
the orders of !his Court in Di: Jain would be dete1mined. The observations
of this Court in Dr. Haque (supra) to the effect "we direct !hat seniority of c
direct recruits - both outsiders and insiders should be detennined according
to the dates of their regular appointments through UPSC" must be held to
be per incmia and cannot be the guiding principle. In Srinivasulu's case,
however, the Tribunal was considering as to whether their ad hoc period
could be connted for the purpose of seniority, be it be stated, that Srinivasulu D
belong to that category of officers who were initially appointed as ad hoc
but got themselves re£ularised by appearing at the examination conducted by
the UPSC, on being selected, and this Court upheld !he decision of !he
Tribnnal in Srinivasulu being of the opinion !hat the ad hoc services rendered
~ by such ofticers could be counted for the purposes of their seniority. Obvi- E
ously the Court had in mind the principle B evolved by !he Constitution
Bench in the Direct Recruit Engineering Officers Association case (supra).
If the initial appointment had not been made in accordance with the pre-
scribed procedure laid down by the Recrnitment Rules, and yet the appointees
Medical Officers were allowed to continue in !he post unintenuptedly and
then they appeared at the selection test conducted by the Union Public Service
F
Commission, and on being selected their services stood regularised then there
would be no justification in not applying !he principle 'B' of the Direct
Recruit Class II Engineering Officers Association case (supra) and denying
the pe1iod of officiating services for being counted for the purpose of
seniority. This has what happened in Srinivasulu's case and this Court did G
not interfere with the order of !he Tribunal. It may be reiterated !hat there
being no provision in the Recruitment Rules, either of !he 1967 or of !he 1977
for detennining the seniority of !he persons employed as Assistant Medical
Officers Class II, or !he 1977 Recruitment Rules, for the purpose of deter-
mining !he seniority the principles evolved by the Constitution Bench in the H
y

1078 SUPREME COURT REPORTS (2001] 2 S.C.R.
A Dirnct Recruit Class II Engineering Officers Association case (supra) will
have to be followed, and judged from that angle we see no inconsistency
between the judgment of this Court in Dr. Haque's case (supra) and the
judgment of this Conrt confmning the decision of the Tribunal in Dr.
Srinivasu's case (supra) accepting the observation in Dr. Haque's case which
B we have already held to be per incuria. lltis being the position, the grant
of benefit to Dr. Lalita Rao, as had been given to Dr. Srinivasulu by the
Tribunal in O.A. No. 3218 of 1996, we do not see any infirmity in the same.
At the cost of repetition we would record our conclusions as under :-

I. f\.ll doctors appointed either as Assistant Medical Officer or as
C Assistant Divisional Medical Officer on ad hoc basis upto October !, 1984,
who were regularised by the Railway Administration in consultation with the
Union Public Service Commission on the evaluation of their work and
conduct and on the basis of their CRs in respect of a period subsequent to
October I, 1984, pursuant to the direction of this Court in the case of Dr.
D A.K. Jain (supra) will not be entitled to count the services rendered prior to
the regularisation for the purpose of determination of their seniority in the
cadre. This has been so held in the Interlocutory Application filed by Dr.
Haque and answered by this Court in its judgment dated 18th February, 1993,
reported in 1993 (2) sec 213.

E 2. Doctors who had been appointed by the Railway Administration on -f
ad hoc basis or on temporary basis and had got themselves regularised prior
to !st October, 1984, by appearing in the selection test held by the Union
Public Service Commission then in their case the period prior to their
regularisation could be counted for determining their seniority applying
F principle 'B' of the Direct Recruit Engineering OfficetC• Association case
(supra) and in fact, the Tribunal decided the case of Dr. Srinivasulu on that
basis and this Court upheld the said decision.

3. If any doctor, who had been appointed subsequent to October !,
1984, and had applied for selection by the Union Public Service Commission
G on obtaining relaxation of age pursuant to the direction No. 5 in Dr. Jain's
case (supra) and got selected thereby finally, in such a case !he services
rendered prior to such regularisation would not be counted for the purpose
of their seniority in the cadre, particularly when the Recruitment Rules did
not provide for any ad hoc appointment and only provided for appointment
H to be made through Union Public Service Commission. We have taken the
U.0.1. v. LALITA S. RAO [PAITANAIK, J.] 1079
date October I, 1984 as cut off date since this Court in Dr. Jain's case (supra) A
had considered the impasse and had directed regularisaiton of ad hoc doctors
appointed npto 1.10.1984. The ad hoc appointees subsequent to 1.10.1984,
even if got themselves regularised by appearing in the selection test con-
ducted by the Union Public Service Commission in accordance with the Rules
it will not be in the interest of justice to apply principle 'B' to their case as B
the Statutory Recruitment Rules do not provide for any other mode of
recruitment other than by process of selection by the Union Public Service
Commission.

These Civil Appeals stand disposed of accordingly.

B.S. Appeals disposed of.
c