NILOY ROY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner herein craves for his seniority on the post of Junior Medical officer from the date of appointment with effect from 13. 1. 1986, though he was appointed on that date on monthly wage basis, which was converted into ad hoc basis with effect from 2. 11. 1986. His attempt before the Central Administrative tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal )has failed as the Tribunal has dismissed his OA vide judgment dated 2. 2. 1998. Assailing that judgment present petition is filed. The order of the Tribunal refers to judgment dated 29. 10. 1997 passed by Madras Bench of the Central administrative Tribunal in OA No. 606/1995 entitled Mrs. Leela Bai v. UOI and ors. wherein same order as impugned by the petitioner herein was under challenge and the said challenge was repelled. Without discussing that judgment in any detail, the Tribunal had dismissed the OA of the petitioner herein simply following the said judgment observing that it fully covers the facts of the present case and the Tribunal was bound by the said judgment of a coordinate bench.

(2.) THE case set up by the petitioner was that he was appointed as a Junior medical Officer on monthly wage basis with effect from 13. 1. 1986 and on 2. 11. 1988 the Government of India took a decision to appoint all such monthly wage doctors as ad hoc employees in the regular pay scale from the date of their joining. The petitioner was accordingly made ad hoc with effect from 30. 12. 1988 and started getting regular pay from the date of initial recruitment. Thereafter, on the basis of successful performance in the written test as well as the interview conducted by the Union Public Service Commission, the petitioner along with other doctors was made regular with effect from 22. 10. 1991 vide orders dated 7. 8. 1992. However, he was granted seniority only with effect from 22. 10. 1991 in the regular cadre. The petitioner wanted seniority with effect from 13. 1. 1986 on the premise that he was in continuous employment from the date of ad hoc appointment till he was regularized and further that even on ad hoc basis he was appointed after following the procedure meant for regular appointments and thus, was entitled to count his service, for the purpose of fixing seniority, from the date of initial appointment as per the principle laid down by the Constitution Bench of the Supreme Court in the case of Direct recruit Class II Engineering Officer s Association s case v. State of maharashtra and Ors. , AIR 1990 SC 1607. The judgment of the Madras Bench in Dr. Leela Bai s case (supra) has been annexed by the respondents along with their counter affidavit. Since it is this judgment which is followed by the Principal bench of the CAT in its impugned order, it would be advisable to know the reasons which prevailed with the said Bench in denying the benefit to a similarly situated person. Perusal of the judgment of the Madras Bench of the cat would reveal that the applicant in the said case was also appointed on monthly wage/contract basis as a Medical Officer in Central Leprosy Teaching and research Institute, Chengalpattu. Some similarly engaged monthly wage doctors had approached the Tribunal on the question of their service conditions and the tribunal had directed that these persons may be taken on ad hoc basis and continued in service till replaced by regularly appointed Medical Officers. Benefits like annual increments, casual leave, maternity leave etc. , which were not available earlier, were also directed to be given to them. In pursuance of these directions, appointment was converted into ad hoc basis from monthly wage/contract basis. The Department of Personnel and Training (Dopt) also sent a proposal to the UPSC for regularizing all such officers. The UPSC gave its recommendation for regularization of 114 Medical Officers working on ad hoc basis in different participating units of Central Health Scheme. This recommendation was contained in UPSC s letter dated 22. 10. 1991. Thereafter, the limited departmental test was conducted followed by interview and all those persons who qualified in that said written test and interview were regularized giving them seniority from 22. 10. 1991. The applicant in the said case had referred to the judgment of Dr. P. P. C. Rawani and others etc. v. Union of India, jt 1991 (6) 534, which was a case decided by the Apex Court on 29. 10. 1991 allowing the doctors the benefit of regularization from 1. 1. 1973 or from the date of initial appointment in service, though on ad hoc basis, whichever is later. The applicant wanted similar benefit. The respondents, on the other hand, had argued that Dr. P. P. C. Rawani s case (supra) pertained to a different group of doctors who had been recruited prior to 1978. The system of recruiting doctors on monthly/contract basis was introduced in the year 1978 and therefore, that judgment was not applicable in the case of these doctors. They also contended that the Supreme Court in Dr. P. P. C. Rawani s case (supra) itself had clarified that directions given therein would be confined to that case only in the special facts thereof and would not be extended to other cases. The respondents also relied upon another judgment of the Apex Court in the case of dr. M. A. Haque and Ors. v. UOI and Ors. , JT 1993 (2) SC 265, which was also a case of doctors recruited on ad hoc basis by the Ministry of Railways who had been regularized pursuant to the directions of the Supreme Court. Those doctors also claimed seniority on the analogy of Dr. P. P. C. Rawani s case (supra) but the supreme Court did not accept this contention. In view of the judgment in Dr. M. A. Haque s case (supra), the Tribunal refused to extend the benefit of Dr. P. P. C. Rawani s case (supra) to the applicant and thus, dismissed the OA.

(3.) AFTER hearing the counsel for the parties we are of the opinion that the approach of the Madras Bench of the Tribunal, which is relied upon by the principal Bench in its judgment is perfectly justified. It is clear from the sequence of events narrated above, the petitioner herein as well as others were appointed initially on monthly wages/contract basis. There is nothing on record to show that while making these appointments, procedure for making regular appointment, as provided in the recruitment rules, was followed. On the contrary, these doctors were appointed on monthly wage/contract basis to tide over the difficult position in running the dispensaries due to shortage of medical officers as a stop-gap arrangement vide Ministry s letter dated 11. 5. 1978. They were given consolidated wages on monthly rate. When such persons approached the Tribunal, no doubt, the Tribunal ordered that they be paid the salary in the pay scale and should also be given other usual allowances as admissible. This direction was given keeping in view the fact that even when they were appointed on contract basis, these doctors were discharging the same duties which was discharged by those doctors who are appointed on regular basis. Thus, principle of equal pay for equal work was adopted. At the same time, the Tribunal had rejected their contention that they be deemed to have been employed on regular basis. Rather, the direction was that they should be allowed to continue on ad hoc basis till regularly selected doctors joined the service. Therefore, these doctors, including the petitioner were to be treated as ad hoc. If because of the length of service the Government ultimately decided to regularize them after taking limited departmental examination and interview, in relaxation of the recruitment rules, the petitioner cannot be given the seniority with effect from the date he was appointed on ad hoc basis. The judgment of the Supreme Court in the case of Direct Recruit Class II engineering Officer s Association s case (supra) will have no application to the fact situation prevailing here, as all these doctors, including the petitioner were engaged de hors the rules and they were not posted against any substantive vacancies. In these circumstances, the Tribunal was right in holding that ratio laid down in the Supreme Court in the case of Dr. M. A. Haque (supra) would clearly be attracted. Moreover, the judgment in the case of Dr. P. P. C. Rawani (supra) cannot come to the aid of the petitioner in view of clarification given by the Supreme Court in that very judgment confining the benefit to the petitioners therein with clear stipulation that it would not be a precedent for future cases. The following observations of the Supreme Court in Dr. M. A. Haque (supra) would have direct bearing in the present case:-8. Since the petitioner-applicants are admittedly not regularly appointed through the UPSC according to the rules but have been directed to be regularized by following the procedure laid down by this Court, it is obvious that they are not appointed to their posts according to the rules. Under no circumstances, therefore, they fall within the scope of guideline [a] laid down in Direct recruit Class II Engineering Officer s Association s case [supra]. In fact, they do not fall under guideline [b] given therein either, since their regularization is not in accordance with the rules but as a consequence of special procedure laid down by this Court. The expression in accordance with the rules or according to rules used in the said guidelines [a] and [b] means the rules of recruitment and not the special procedure laid down by this Court. The petitioner-applicants thus fall in an altogether different category not covered under any of the guidelines given in Direct Recruit Class II Engineering officers Association s case [supra]. We have, therefore, to evolve a procedure for fixing their seniority. That procedure cannot be in violation of the guidelines laid down in Direct Recruit Class II Engineering Officers association s case [supra]. Secondly, the seniority given to the petitioner-applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below that of the directly recruited erstwhile ad hoc Medical Officers. This is not and cannot be disputed on behalf of the petitioner-applicants. We, therefore, find this petition as devoid of any merit and dismiss the same.