1. Ad hoc appointment of medical officers as stop-gap arrangements — Claim for seniority from initial appointment date following subsequent regularization through Public Service Commission. (Para 1 , 3 , 4 , 5 , 7 )
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1998 Supreme(SC) 598
1998(4) Supreme 555
Supreme Court of India
(Under Article 32 of the Constitution)
S.C. Agrawal and M. Srinivasan, JJ.
Dr. Anuradha Bodi & Ors. etc. etc. -Petitioners
versus
Municipal Corporation of Delhi & Ors. -Respondents
Writ Petition (C) No. 60 of 1994
With
Writ Petition (C) No. 8 of 1997
Decided on 8-5-1998
Counsel for the Parties :
For the Petitioners : D.B. Vohra, and Pramod Swarup, Advocates.
For the Respondents : R.K. Maheswari, Prem Sagar Khere and Y. Pradhakara Rao, Advocates.
Important Points
Important Point
The initial appointment of petitioners to the posts of General Duty Medical Officer Grade II during 1982-85 by MCD was only on ad hoc basis and not according to rules and was made as a stop gap arrangement, thus the officiation in such posts cannot be taken into account for considering the seniority when they are regularised on 17.8.1992.
The initial appointment of petitioners to the posts of General Duty Medical Officer Grade II during 1982-85 by MCD was only on ad hoc basis and not according to rules and was made as a stop gap arrangement, thus the officiation in such posts cannot be taken into account for considering the seniority when they are regularised on 17.8.1992.
Subject
Employment Law - Regularization of Ad Hoc Appointments
Act Referred
Headnote
(i) Delhi Municipal Corporation Act, 1957-Sections 96 & 98- Delhi Municipal Corporation Health Service Recruitment Regulations, 1982 - Appointment as General Duty Medical Officer Grade II between 1982-85 purely on ad hoc basis as a stop gap arrangement by a Committee without following Recruitment Rules-Whether appointments can be said to be in accordance with the statutory provisions under Section 96 DMC Act? (No)-Whether petitioners are entitled to get any benefit on the basis of the decision rendered by the Constitution Bench in the Direct Recruit Case, (1990) 2 SCC 715 as explained in State of W.B. v. Aghore Nath Dey, 1993(3) SCC 371? [No, as their case falls within the corollary in conclusion (A)] Petitions regularised w.e.f. 27-6-1991 the date on which the UPSC recommended their appointments-Whether valid? (Yes)-Petitioners dismissed. (Paras 12 - 17)
(ii) Service Jurisprudence -Posts of GDMO Grade II in MCD -Contention that they fall in category B within the meaning of Section 90 of DMC Act and not within the ambit of UPSC-Held not permissible as not raised in pleadings and is contradictory. (Para 14)
(iii) Service Jurisprudence -Ad hoc appointments to posts of GMDO Grade II in MCD during 82-85-Regularised on 27.6.1991-Claim of seniority counting ad hoc period-Case not falling in category B but in corollary in category A-Not entitled under precedents-Contention that their long service and revised pay scales without allowing private practice should be treated as regular appointees from the inception - Whether correct? (No) Cases distinguished. (Para 15)
(iv) Service Jurisprudence -Declaration that the petitioners are entitled to be treated as appointed on regular basis as GDMO Grade II from the date of initial ad hoc appointment as has been done in the case of other employees vide order dated 31.12.1986-Whether correct? (No) (Constitution of India -Articles 14, 16). (Para 16)
Legal Category Hierarchy
Table of Contents
2. Claim for seniority from initial appointment based on continuous service — Contention that temporary appointments under statutory provisions were valid — Allegation of hostile discrimination. (Para 8 , 13 , 14 , 15 , 16 )
3. Analysis of distinction between ad hoc stop-gap appointments and appointments with procedural deficiencies — Rejection of using temporary appointment clauses to bypass recruitment rules. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 )
4. Officiation in ad hoc posts made as stop-gap arrangements not according to rules cannot be counted for seniority purposes. (Para 10 , 11 , 12 )
5. Writ petitions dismissed — Regularization from the date of Public Service Commission recommendation upheld. (Para 17 , 18 )
6. Can the period of service in an ad hoc stop-gap appointment be counted for seniority if the employee is later regularized?
No. Where the initial appointment is purely ad hoc, not according to rules, and made as a stop-gap arrangement, the period of officiation in such posts cannot be taken into account for considering seniority. (Para 10 , 11 , 12 )
7. Under what circumstances is officiating service counted for seniority despite the initial appointment not following prescribed procedures?
Officiating service is counted if the appointment was against an existing vacancy, not limited to a fixed period, and the appointee was qualified, with only procedural requirements remaining to be cured without default of the employee. (Para 10 , 11 )
8. Can statutory provisions allowing temporary appointments for short periods be used to justify bypassing regular recruitment rules for permanent appointment?
No. Allowing temporary appointments to be converted to permanent status to bypass Public Service Commission requirements would lead to nepotism and anarchy; recruitment rules must be followed strictly to prevent illegal recruitment. (Para 13 )
Judgment
Srinivasan, J.-There are nine petitioners in the earlier writ petition and one petitioner in the later writ petition. They were appointed by the first respondent as General Duty Medical Officer Grade II between 1982 and 1985. The first petitioner in the Civil Writ Petition 60 of 1994 and petitioner in Writ Petition No. 8 of 1997 were appointed in 1982. Petitioners 2 and 3 in the earlier writ petition were appointed in 1983. Petitioners 4 and 5 were appointed in 1984 whereas petitioners 6 to 9 were appointed in 1985. It is not in dispute that all of them were appointed on purely ad hoc basis on the same terms and conditions. In the appointment orders, Clause 1 stated that the appointment would be purely on an ad hoc basis as a stop gap arrangement for a period of six months or till such time the posts were filled up on regular basis through Union Public Service Commission (for short ‘UPSC’) or till further orders whichever was earlier. Clause 2 provided that the ad hoc appointments could be terminated at any time by the competent authority without assigning any reason whatsoever and without giving any prior notice. According to Clause 3, the appointment will not confer any right whatever on the appointee for regular/permanent appointment. Under Clause 9 the appointees were advised for regular appointment to pass the U.P.S.C. examination in normal course in the direct competition.
2. There is a specific averment in the counter-affidavit filed by the first respondent that inspite of several opportunities available to the petitioners, they preferred not to apply to the UPSC for direct competition entitling them to be appointed on regular basis. The petitioners have not filed any rejoinder controverting the same.
3. The Recruitment Rules, called “The Delhi Municipal Corporation Health Service Recruitment Regulations, 1982” (herein after referred to as `the Rules’) were made by the Municipal Corporation of Delhi under Section 98 of the Delhi Municipal Corporation Act, 1957 and notified under Notification No. R-9/38//82-LSG/5686 dated 6.8.82. As per the rules, the posts in question were to be filled up through the U.P.S.C. Admittedly, the petitioners were not selected through U.P.S.C. but according to the petitioners they were selected by a high-profile Selection Committee consisting of Deputy Commissioner and Director (Personnel) of M.C.D., Medical Superintendent of the hospital concerned and two specialists in Clinical Medicine from two renowned hospitals.
4. Though the appointments of the petitioners were initially for a period of six months, they were being continued periodically by subsequent orders issued by the first respondent. One such order has been filed as a sample by the petitioners bearing date 15.2.90. The preamble to the order reads as follows :
“The Chief Secretary, Delhi Administration, exercising powers of the Corporation under Section 490(2))(b) of the D.M.C. Act, 1957 vide Decision No. 211/CW/Corp. dated 2.2.1990 has approved the continued ad hoc appointment of following GDMOs Grade II in the pay scale of Rs. 2200-4000 plus the usual allowances with effect from 13.7.1989 for a period of one year or till such time the posts are filled up on regular basis, whichever is earlier”.
5. By a similar order dated 24.7.1990 the services of the petitioners were extended for a period of one year with effect from 13.7.1990. The petitioners were making representations to regularise their services even without appearing before the U.P.S.C. but in vain.
6. They filed a writ petition in this Court under Article 32 of the Constitution in Writ Petition (Civil) No. 47 of 1991 praying that their services should be treated as regular from the respective dates of their induction into the service and to consider them for promotion to Grade I, that their initial appointment be treated as regular appointment with effect from the date of their induction to their service and to grant them consequential seniority, to declare that
