IMPORTANT POINT
On the question of seniority in U.P. Medical Services. The writ petitioners are not within the purview of U.P. Regulation of Ad hoc appointments (on posts within the purview of U.P. Public Service Commission) Rules, 1979. The State Government will fix the seniority of all doctors in Provincial Medical and Health Services cadre from the date of the orders of their initial appointment and give all consequential benefits including promotions and pensions on the basis of such seniority list.

Headnote:Question of seniority of doctors in Uttar Pradesh Medical Service-Four chapters-1st prior to 1945, 2nd of 1968, 3rd of 1974 and fourth of 1979-Litigation by different groups-First set of litigation was deciddin Mathur s case-Temporary appointees against substantive posts were put above other appointees-Conflict of decision in final set of litigation called Tandon s case-Decision in Tanon s case aside by Constitution Bench-Whether seniority of the parties in present writ petitions is to be determined in keeping with the decision in Mathur s case? (Yes)-Are the cases of present writ petitioners different from petitioners in Mathur s case? (No)-Effect-They are entitled to same reliefs in question of seniority-Result-Writ petitioners are allowed accordingly.
       Held : As a consequence of the decision in Mathurs Case, those persons who had been appointed temporarily against substantive posts were entitled to rank above any other appointees who were subsequently appointed either on the basis of the 1972 Select List or the 1977-78-79 Select List. (Para 15)
       Besides the decision in Mathur s case has been followed consistently in a large number of cases since its pronouncement by the High Court in 1991 and by this Court in 1992. Special leave petitions from those decisions have also been dismissed by this Court. It would not be proper in these circumstances to upset the principles and introduce further uncertainty in an already chaotic situation particularly when the matter involves the question of service conditions of Government employees. In these circumstances, the issue of seniority of the parties before us is to be determined in keeping with the decision in Mathur s case. (Paras 30 and 31)
       As far as the writ petitioners are concerned we see no materially distinguishing factor between their circumstances and the writ petitioners in Mathur s case. (Para 34)
       The writ petitioners cannot, for all these reasons, be treated as ad hoc appointees who were to be regularised by appointment after selection and a period of probation under the 1979 Rules nor can it be said that the decision in H.C. Mathur s case mis-construed the provisions of the 1979 Rules so as to exclude temporary appointees like the writ petitioners from its application. In the circumstances the writ petitioners are entitled to be granted the same relief as was granted to the petitioners in Mathur s case and count their seniority from the date of their initial appointments. (Paras 42 and 43)
       Held finally : We accordingly allow the writ petitions and declare that (1) the writ petitioners are not within the purview of the 1979 Rules; (2) the State Government will fix the seniority of all doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; 3) Those doctors who were selected in 1972 and 1977-78-79 by the PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon s case, will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs. (Para 47)

JUDGMENT

Ruma Pal, J.-A tangled web of facts and law would best describe this case which involves the question of the seniority of doctors in the Uttar Pradesh Medical Services. To untangle the factual aspect. We need to start from 1945.

2. Prior to 1945 there were two medical in thew state of U.P. - the Provincial Medical Service (PMS) and Provincial Subordinate Medical Services (PSMS). On June 14, 1945 the Government of U.P. framed rules known as The United Provinces Medical Service (Men s Branch) Rules, 1945 (referred to hereafter as the 1945 Rules ). In 1946, two new medical server were constituted, namely, PMS Grade I and PMS Grade II. On 2nd November, 1964 PMS Grade I and Grade II were merged with effect from 1st November, 1964. However, there were no rules for fixing inter-se seniority of the officers of the two erstwhile services which were so merged. The issue of the inter-se seniority between the members of the new service as merged i.e., between PMS I and PMS II, was resolved ultimately by this Court by its decision in State of U.P. v. M. J. Siddiqui 1980(3) SCC 180. As far as recruitment to the new PMS was concerned by way of a stop gap arrangement the State Government passed an order dated 20th February 1965 making the 1945 Rules applicable to the new PMS. The order said, "The U.P. Medical Service (Men s Branch) Rules, 1945 shall apply to the new PMS. Unless otherwise ordered", and prescribed the eligibility criteria or appointment:

"The following will eligible for appointment to PMS:

(A) Medical Graduates of all universities in India recognised by the Indian Medical Council.

(B) Medical Graduates who hold the BMBS degree of Lucknow University, provided they have served in house appointments for a term of nine months in a teaching hospital before they offer themselves for appointment .

3. The writ petitioners Nos. 1 and 2 before us were selected by the Departmental Selection Committee (DSC) and issued letters of temporary appointment in the new PMS by the Governor on 24th September 1965 and 30th November 1965 respectively. There is no dispute that they were eligible to be appointed under the prescribed criteria.

4. The second chapter begins in 1968 when the State Government made a request to the State Public Service Commission for recruiting doctors to the medical service of the PMS. The Public Service Commission (PSC) prepared a Select List in 1972. Some of the respondents are those who came into the picture for the first time when they were selected in 1972 by the PSC. The petitioner No. 2 was also one of the selectees. However, before the select list could be given effect to, on 26th June 1973 the PMS was merged with the Provincial Health Service (PHS) and a new cadre was formed, namely, the Provincial Medical and Health Service (PMHS). With the merger 995 posts of PHS, 574 posts of PMS (Male) and 19 permanent and 407 temporary posts of PMS(Female) i.e. a total of 2056 posts stood abolished in the erstwhile PMS and PHS on the date of the merger therefore 2056 posts were in the new cadre.

5. Prior to the merger i.e. between 1968 to 1973 some of the writ petitioners before us were also temporary appointed like the petitioners 1 and 2, against substantive posts by the Governor after selection by the DSC. Temporary appointment letters were issued to some of the selectees not on the basis of the Select List but after selection by the DSC.

6. The third chapter starts with a letter dated of the State Government dated 11th April 1974 which stated that as there were certain deficiencies in the 1972 Select List the ad hoc appointments of PMS officers would be extended upto 31st October 1973. A request was then sent by the State Government to the UPPSC for recruitment of 2025 medical officers. During this period also a number of persons were appointed by the State Government on temporary basis after selection by the DSC till 1976. On 23rd December 1977 the UPPSC sent a list of 1703 persons

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