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Supreme Court Of India
Chandra Prakash
Versus
State of UTTAR PRADESH
Decided On : (DECEMBER 4, 2002)
Constitution of India, Articles 14 and 16 - United Provinces Medical service (Men's Branch) Rules, 1945, Rules 10, 17(2) and 18 - Uttar Pradesh Medical Services (Men's Branch) (Amendment) Rules 1981, Rule 1(ii) - U.P. Regulation of Ad hoc Appointments (On posts within the purview of U.P. Public Service Commission) Rules, 1979, Rule 7 - Seniority - Ad hoc and temporary appointment - The writ petitioner Nos. 1 and 2 selected and letters of temporary appointment issued- PSC prepared a Select List in 1972 and PMS merged with the Provincial Health Service (PHS), as a result several posts abolished- In terms of the 1979 Rules the 'ad hoc appointees' could not count their services rendered earlier as temporary appointees-Later the Select List prepared by the UPPSC for the years 1977, 1978 and 1979 was cancelled -Three temporary appointees continuously working since the appointments challenged the decision to treat them as ad hoc appointees under the 1979 Rules- Accepting their plea held that their seniority could not be fixed from the date of their regularisation under the 1979 Rules but from the date of their initial appointment in the PMS cadre( Mathur case)- That order upheld by Supreme Court- Similar several petitions met the same fate- Other petitions filed claiming appointment on the basis of the 1977-78-79 Select List. - The Tribunal allowed the petitions and cancelled the Government's order thereby reviving the 1977-78-79 Select List- The High Court modified the order of the Tribunal holding that only the 14 petitioners before the Tribunal who were working on ad hoc basis would be deemed to have been appointed- The contention that in any event the petitioners were estopped from challenging the selections made by the PSC as most of them had participated in the selections and were unsuccessful, not accepted- Further contention that Mathur's case should be referred to a larger Bench for its decision also not accepted-As long as a decision stands, it must be followed unless the Court has reason to differ with the view expressed- In such event, the Court must refer the issue to a larger Bench-This principle is however not applicable if the earlier decision has concluded issues in a particular set of facts in a given lis between the same parties- Such a decision could not be reopened on the principles of res judicata except by way of an application for review and there was no such application[ paras 26 to 29]
B. Medical Service Rules 1945, Rule 13(3) and (4)- Determination of seniority- Even under the Medical Service Rules 1945, the determination of seniority under those rules was from the date of appointment against a substantive vacancy- It is clear that in accordance with the Rules, and as held by the High Court in Mathur's case, appointment could be temporary or permanent- But where the appointment is against a substantive vacancy, the year of appointment was determinative in fixing seniority under the Rule- On that basis, calculations of the writ petitioners' seniority from the date of their initial appointment cannot be said to be incorrect- Even under Rule 18 seniority is to be determined from the date of their orders of appointment and not from the date of their selection by the PSC or receipt of the Selection List by the Government- Therefore held 1) the petitioners were 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 t; 3) Those who where 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 joining. [ paras 37 to 42]
Judgment
RUMA PAL, J.
( 1 ) 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 services in the 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 (Mens Branch) Rules, 1945 (referred to hereafter as the 1945 Rules ). In 1946, two new medical services were constituted, namely, pms Grade I and PMS Grade II. On 2nd November, 1964 PMS Grade 1 and Grade 11 were merged with effect from 1st November 1964. However, there were no rules for fixing in terse 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 (Mens Branch) Rules, 1945 shall apply to the new PMS. unless otherwise ordered", and prescribed the eligibility criteria for 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 temporarily 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 pe
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