UNION OF INDIA AND ORS.versusHARISH BALKRISHNA MAHAJAN

A                        UNION OF INDIA AND ORS.
                                    v.
                       HARISH BALKRISHNA MAHAJAN

                               OCTOBER 23, 1996

B                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

            Service Law.

          Tennination of Service-Medical Officer appointed on monthly basis           •
C ·in the Central Govemment Health Scheme-Tribunal directing regularisation
   in consultation with the Public Service Commission-On appeal, held : such
   a direction is in violation of Article 320 of the Constitution-Hence set
   aside-It is open to respondent to apply for selection-ff averaged, Union of
   India would consider necessary age relaxation to the extent of the period of
   service rendered on temporary basis.
D
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 14527 of
    1996.

          From the Judgment and Order dated 21.12.94 of the Central Ad-
    ministrative Tribunal at Bombay in O.A. No. 790 of 1989.
E
            N.N. Goswami, Ms. Binu Tamta and V.K. Verma for the Appellants.

            Gopal Jain and Mukul Mudgal for the Respondent.

            The following Order of the Court was delivered :
F
            Leave granted.

        The respondent was temporarily appointed as a Medical Officer on
  monthly basis in the Central Government Health Scheme on August 10,
  1982. During the unfortunate strike of the doctors as trade unionists,
G unmindful of the ethic.:al and medical code of conduct, he was appointed
  and even continued in the service till August, 1987. When his services were
  terminated, he had gone to the Tribunal and filed OA No. 701/89. The
  Tribunal in the impugned order dated 21.12.1994 directed the appellants
  to regularise the service of the respondent in consultation with the Public
H Service Commission. Thus, this appeal by special leave.                             I

                                       662
                                                                                  I
                            U.0.1. V. H.B. MAHAJAN                          663

         The controversy is no longer res integra. In similar circum~tances, this   A
  Court had considered the entire controversy in J & K Public Service
  Commission & Ors. v. Dr. Narinder Mohan & Ors., (1994] 2 SCC 630.
  Admittedly, the post of doctors in the Central Government Health Scheme
  are required to be filled up by recruitment through Union Public Service
  Commission. Therefore, the direction to consider the case of the respon-          B
  dent in consultation with the Public Service Commission for regularisation
  is in violation of the statutory rules and Article 320 of the Constitution of
  India. The only course known to law is that the Union of India shall be
  required to notify the recruitment to the Public Service Commission and
  Union Public Service Commission shall conduct the examination inviting
  the applications from all the eligible persons including the persons like the     C
. respondents. It would be for the respondent to apply for and seek selection
  in accordance with Rules. Therefore, the direction is in violation of Article
  320 of the Constitution.

        The learned counsel for the respondent seeks to place reliance on           D
 the directions issued by this Court in Jacob M. Puthuparambil v. Kerala
 Water Authority, (1987] Supp. SCC 497. It is seen that the Public Service
 Commission was required to recruit the candidates and, therefore, the
 additional Medical Officers working in the Railway Department in the
 latter case were directed to be regularised in consultation with the Union
 Public Service Commission. It would be seen that when the recruitment              E
 was to be made in accordance with the procedure prescribed by the Public
 Service Commission in terms of the statutory Rules made under Article
 320 of the Constitution, necessarily the recruitment is required to be made
 in that manner and in no other manner. Therefore, this Court did not
 intend to by-pass the above procedure in regularisation of their services.         F
 This Court, in similar circumstances, considered the same question in
 Union of India v. Dr. Arnn Kumar Shanna, (CA No. 4876/94].

        In that view, the appeal is allowed. The order of the Tribunal stands
 set aside. It would be open to the respondent to apply for selection. In case
 he is barred by age, it is needless to mention that the Union of India would G
 consider necessary relaxation of the age to the extent of the period of
 service he has rendered on temporary basis. No costs.

 G.N.                                                          Appeal allowed.