Central Administrative Tribunal - Kolkata
Dr Anita Shah vs Health on 25 July, 2022
ee 0.A/351/1455/AN/2018 | CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA . 0.A/351/1455/AN/2019 | Date of Order? 16-64. 22, Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Dr. Anita Shah, W/o Dr. Wajid Ali Shah, R/o R.G.T. Road, . Presently working as Ophthalmologist, Directorate of Health services, | A &N Administration, Port Blair -- 744 101. becees Applicant. -Versus- 1. The Union of India, Represented through the Secretary To the Government of India, -- Ministry of Health and family welfare, Nirman Bhavan, New Delhi-- 110 001. . 2. The Union of Public Service Commission Service through the Secretary, Dholpur House, Shahjahan Road, New Dethi-- 110 069. 3. The Lieutenant Governor, Andaman Nicobar Islands, Raj Niwas, Port Blair -- 744 104. 4. The Chief Secretary, A &N Administration, Secretariat, Port Blair -- 744 101. A &N Islands 5. The Commissioner Cum Secretary (Health), A&N Administration Port Blair -- 744 101. ~ 6. The Director of Health Services, An:'aman & Nicobar Administration, Port Blair -- 744 104. sevens Respondents. For The Applicant(s): Mr. B. Bhushan, Counsel For The Respondent(s): Mr. P.K. Das, Mr. A. K. Chattopadhyay, Counsel ne | . 2 0.A/351/1455/AN/2018 ORDER
Per: Dr. Nandita Chatterjee, Administrative Member Aggrieved at non-regularization of her ad hoc services as an Ophthalmologist, the applicant has approached this Tribunal praying for the following relief: | "(A) Anorder do issue directing the respondent authorities particularly the respondent No.2(UPSC) to act as prayed by Ministry of Health, GOI vide letter dated 16.05.2017.
{B) An order to issue directing the respondents to regularize the service of the applicant as Ophthalmologist since appointment. --
_(C) Pass such further or other order(s) and/or direction(s) as to this Hon'ble Tribunal may deem fit and proper.
{D) Cost of this application."
2. Heard Ld. Counsel for the applicant, the respondent administration (respondent nos. 3 to 6), and, the UPSC (respondent no 2) herein. Examined pleadings and documents on record, | The facts of the matter, as gathered from the pleadings, are as follows:
The applicant was engaged on ad hoc basis as a Specialist (Grade-Il) Ophthalmologist with effect from 03.03.1994 for a period of 1 year vide MoH & FW OM No. A.12026/9/93-CHS.IV dated 15.12.1993 in the G. B. Pant Hospital under Directorate of Health Services, A&N Administration. Thereafter her ad hoc appointment was extended, from time to time, by the respondent no. 1 upto i | 30.06.2004.
The respondent no. 1, vide its orders dated 26.08.2004, had de-cadred 22 posts of Specialists in different specialities from CHS so as to en-cadre the post of the applicant into A&N Health Services Consequently, the Ministry of Health and Family Welfare had terminated the ad hoc appointment of the applicant.
That, being aggrieved with the order of termination, the applicant had approached this tribunal in OA bearing OA No. 44/2004, which was disposed of on 16.12.2004 with the following directions-
Sh 3 0.A/351/1455/AN/2018 "in the existing rule there is no provision for specialized post for which appropriate rule, either by way of amendment or, by framing of new rules, is required to be made by the authorities. Therefore, till such rules are framed and the post are filled up on regular basis, let the applicant be allowed to continue without prejudice to the rights and contentions of both the parties. Merely because she holds such post on ad hoc basis, she cannot claim any equity in her favour for regular appointment in the said post".
In compliance to the tribunal's orders dated 16.12.2004, the ad hoc appointment of the applicant was extended by the respondent administration, . from time to time.
The applicant approached this tribunal in second stage litigation in OA No. 73 of 2008, for regularization of her ad hoc services, which was disposed 05.12.2008 with directions upon the UPSC to take a considered view and to pass appropriate orders. ¢ Upon examination of the said proposal the UPSC, vide letter No. 4/12(1)/2009-AP-3 dated 03.12.2010, requested the respondent administration to submit a fresh proposal after framing/notification of Recruitment Rules for the © de-cadred post of Ophthalmologist.
The respondent administration, however, requested the Ministry to re- encadre the Specialist post of Ophthalmologist into CHS vide their letter dated 07.09.2012, and, in response, the MOH&FW, vide letter dated 30.04.2013, re- encadred the post of ophthalmologist into CHS. With this re-encadrement, the post held by the applicant had become a CHS post. Thereafter, the A & N Admn. had taken up the matter with the Ministry for regularisation of service of the applicant based on her continuous service as Specialist Grade-ll.
That, in response, MOH&FW took up the matter with UPSC but, as the response was awaited, the applicant approached this tribunal in the instant by _ 4 0.A/351/1455/AN/2018 original application. During the pendency of such original application, UPSC had communicated its decision, by way of a speaking order dated 04.09.2019, in which the request of the Ministry for regularisation of ad hoc appointment of the applicant was not considered, and, accordingly, the respondent administration. communicated such decision to the applicant vide memo dated 30.12.2019 (at Annexure R-5 to the supplementary affidavit collectively). The applicant is presently working with the respondent administration: on. a contract basis and her contract period will expire on 26.1.2023.
3. The applicant would furnish the following grounds in support of her claim:
|, That, non-consideration of the representation of the applicant for regularization of her ad hoc service is neither bonafide nor justified, and, is in clear violation of the fundamental principles of natural justice and fairplay. | I. That, the services of the applicant should be regularized as an ophthalmologist for 26 years since the initiation of her ad hoc appointment so that she can avail of all the benefits of a regular appointee and obtain promotions in due course.
lll. That, the office of respondent no. 2 should be directed to act in terms of the letter of respondent no. 1, as well as that of respondent nos. 3 to 6 dated 07.03.2017, 07.04.2017 and 04.10.2018 respectively.
4. The office of respondent nos. 3 to 6 would submit in response that, initially, the applicant was appointed on ad hoc basis for a period of 1 year with effect from 03.03.1994 which was subsequently extended, from time to time, up to 30.06.2004. That, upon decategorization 'of 22 posts of Specialists in different specialities of CHS so as to en-cadre the post of Specialist-Il Ophthalmologist into We 7O 5 0.A/351/1455/AN/2018 Andaman & Nicobar Health Services, the respondent no 1 had terminated the ad hoc appointment of the applicant. That, the applicant approached this Tribunal in O.A. 44 of 2004 wherein this Tribunal allowed the applicant to be allowed to continue without prejudice to the rights and contentions of both the parties till the amendment or framing of new Recruitment Rules for such specialist posts. That, the Tribunal had held, at the same time, that merely because the applicant holds such post on ad hoc basis, she cannot claim an equity in favour of regular appointment to the said post.
That, thereafter her services were continued on the directions of the Tribunal but, in 2008, the applicant approached this Tribunal in O.A. 73/2008 in compliance to which the respondent administration had approached the UPSC for regularization of ad hoc services of the applicant, and, the UPSC, after attempting to obtain necessary clarifications from respondent no 1, as well as the respondent administration, rejected the request of the applicant vide their orders dated 30.12.2019 (at Annexure R-5 to the reply collectively), and, that, the services of the applicant were terminated vide memorandum dated 31.03.2020 (at Annexure R-6 to the reply). That, thereafter the applicant preferred an M.A. before this Tribunal to extend her ad hoc services till regularization/disposal of the instant
0.A. whereby the applicant has assailed the rejection order of the UPSC.
That, the applicant had also, without waiting for the decision of this Tribunal, filed an online writ petition 533(W)/2020 which was disposed of by the Hon'ble High Court at Calcutta with the direction on the administration to immediately extend her appointment to 30.09.2020 (at annexure R-7 to the reply). That, thereafter on the request of the respondent administration, the | respondent no. 1, vide its orders dated 27.01.2020 (at Annexure R-9 to the reply), ater "--
Py 6 | O.A/351/1455/AN/2018 conveyed its approval for appointment for the said specialist post on contractual basis. The applicant, however, refused to accept such offer and insisted on continuing on ad hoc basis.
Thereafter, on 13.01.2021, and upon this tribunal's orders dated 13.01.2021, na mely, that - "In view of the speaking order issued by the A & N Administration which reflects that the Administration is willing to appoint the applicant on contract basis, we permit the Administration to engage the applicant on contract basis until the post of ophthalmologist is filled up on regular basis. Applicant may join on contractual basis without prejudice to her rights and contentions for seeking regularization on the basis of her ad hoc service.", the applicant was engaged on contract basis, and, that such contract period will expire on 26.01.2023.
5. The respondent no. 2, namely, the UPSC, however, would rebut the claims . of the applicant with their contentions as under:-
That, the applicant's ad hoc appointment was initially terminated on de- . categorization of the specialist post, upon which she had approached this Tribunal in O.A. 44 of 2004, and, that, this Tribunal had been very categorical in directing as follows:
"Merely because she holds such post on ad hoc basis, she cannot claim an equity in her favour for regular appointment to the said post."
That, as the respondent nos. 3 to 6, vide their communication dated 07.09.2012, had informed the Ministry that retaining the lone post of | ophthalmologist in the Andaman & Nicobar Health Services was not feasible as no Recruitment Rules was available for Specialist posts in the respondent administration, the said post may be re-encadred into CHS. The Ministry, accordingly, vide its letter dated 30.04.2014, re-encadred the Specialist post of ophthalmologist into CHS.
bat.
"--
~ 7 O.A/351/1455/AN/2018 That, in compliance to the orders of this Tribunal in O.A. 73/AN/2008, the respondent no. 1, was directed vide UPSC letter dated 27.02.2015, to furnish requisite clarifications on the proposal in connection with regularization of services of the applicant. In such process, however, the Ministry admitted that the CHS Rules of 2014 does not have any provision for regularization of ad hoc/contractual doctors.
Further, as the clarifications/documents furnished by respondent no. 1 was found to be wanting in requisite details, this tribunal, in O.A. 73/AN/2008, while | ° referring to the arguments of the respondent authorities therein, noted that the applicant had applied thrice for the post of Specialist Gr-lll but was not found eligible for regular appointment by the UPSC.
That, the respondent nos. 3 to 6 could not furnish any details regarding the Selection Committee that had selected the applicant on ad hoc basis.
Respondent no. 2 would rely on Secretary of the State of Karnataka Vs. Uma Devi (2006 4 SCC 1) to cite as follows:
"Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
Respondent no. 2 would continue to contend that, in Uma Devi (supra), it was further held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance if the original appointment was not made following a due process of selection as envisaged in the relevant rules, as by doing so, it would be creating another mode of public appointment which is not permissible.
on 8 . 0.A/351/1455/AN/2018 Respondent no. 2 would also rely on para 53 of Uma Devi (supra) to state that the requirements of exception, as outlined in such judgment and order, would be satisfied only if -
(a) the post is a duly sanctioned post
(b) the appointment is not illegal
(c) the employee concerned has worked for 10 years or more without the intervention of any Court or Tribunal.
In the backdrop of para 53 of Uma Devi (supra), respondent no. 2 would argue that, there were no records to prove that the selection of the applicant in ad hoc capacity was done in such a manner so as to establish that the appointment was not illegal. Further, the applicant has continued in her ad hoc capacity only in terms of the orders of this Tribunal dated 16.12.2004 in O.A. 44 of 2004 after her initial retrenchment vide orders dated 26.08.2004.
As the post of Specialist-Il Ophthalmologist has been re-encadred into CHS in 2013, any regular appointment to such post would follow CHS Rules of 1996, as well as CHS Rules of 2014 for which consultation with UPSC is mandatory. As the respondent no. 1 did not follow such provision in engaging the applicant as-an ad hoc appointee, the provisions of the Recruitment Rules stands as violated. In this, respondent no. 2 would place reliance in para 43 of Uma Devi (supra) which held as follows:
"Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that, merely because a temporary employee or a casual wage worker is continued for a time beyond his term of appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the Recruitment Rules."
byt, a 9 0.A/351/1455/AN/2018 That, although the initial extension of the ad hoc appointment of the applicant, the respondent no. 1 had requested the DoPT for extension of her ad > hoc services which was granted vide DoPT ID dated 08.09.1995 for 1 year only with the specific condition that regular appointment must be made within the extended period, and, that no further extension proposal should be sent. The respondent no. 1, as well as respondent nos. 3 to 6, however, extended such ad hoc appointment in violation of the DoPT instructions dated 08.09.1995.
6. The primary issue for adjudication before this Tribunal in the backdrop of the above noted matrix is whether the applicant is entitled to regularization to a | regular post of Specialist-Il (Ophthalmologist) in the- context of the relevant Recruitment Rules. At the outset, this Tribunal would refer to the Recruitment Rules (annexed by respondent no. 2 at R-2 of their reply) dated 08.10.1996 wherein the provisions for recruitment of Specialist Gr-ll are laid down as follows:
4. Specialist Grade-Il . Not exceeding 45 years. Essential:
(Rs. 3000-100-3500-125-5000) (Relaxable for Govt. Servants {i) A recognised medical qualification by 5 years in accordance with included in the First or Second instructions Issued by the Schedule or Part || of the Third Central Govt.) Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of educational qualifications included in Part II of the Third Schedule should also fulfil the conditions stipulated in sub-section (3) of section (13) of the Indian Medical Council Act, 1956.
(il) Post graduate Degree/Diploma in the concerned speciality mentioned in Section-A or Section-B in Schedule-VI or equivalent.
(ili) Three years' experience in the concerned speciality after obtaining the Post-graduate degree or 5 years' experience after obtaining the Post graduate diploma.
Note: For the post of Physician (Chest and Respiratory Diseases) 3 years' experience In Respiratory Disease and Respiratory Laboratories is required.
The preamble to Schedule-V states as under:
" : SCHEDULE-V Minimum education and other qualifications, experience and age limit for direct recruitment to Group 'A' "
duty posts in the Central Health Service.
ly "
O 10 + 0.A/351/1455/AN/2018 As noted in the preamble to Schedule-V of such Recruitment Rules, any 7 appointment in the post of Specialist Gr-Il is only by direct recruitment (Pg. 64 Annexure R-2/8 of the reply of respondent no. 2).
This Tribunal would also refer to the notification of 07.03.2014 lat Annexure R-2/8 of the reply of respondent no. 2) which had reiterated that the post of Specialist Grade-IIl, other than super specialists, is by direct recruitment.
(b) Specialist Grade-lIil Direct Recruitment Essential:
(Other than super specialities) {I) A recognized MBBS degree qualification included in the First Schedule or Second Schedule or Part I! of the Third Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956 (102 of 1956).
Holders of Educational qualifications included in: - --
Part Il of the Third Schedule should also fulfill the conditions specified in sub-section (3) of section 13 of the Indian Medical Council Act, 1956 (102 of 1956). ;
(ii) Post-graduate Degree or diploma in the concerned = speciality or Super-speciality mentioned in Sectlon-A or Section-B in Schedule-
Vi.
(iii) Three years' experience in the concerned speciality or super speciality after obtaining the first Post-graduate degree or five years' experience after the Post-graduate diploma Accordingly, it is undisputed that the only way in which Specialist posts are to be filled up under CHS is by direct recruitment. The office of respondent no. 2 has been consistent in rejecting the prayer of the applicant for regularization in lieu of direct recruitment in their communications dated 20.04.2015 (at Annexure A-11 to the O.A.), in that dated 07.03.2017 (at Annexure A-15 to the O.A.), in their communication dated 17.02.2017 {at Annexure A-15 collectively to the O.A.) and in the orders of respondent no. 2 dated 04.09.2019 (as per Annexure R-5 to the reply affidavit of respondent nos. 3 to 6) and, also, as at annexure R-1 to such supplementary affidavit of the applicant.
The primary ground of rejection is the well settled principle in Uma Devi (supra) (para 43) which states as follows:
hak
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11 . 0.A/351/1455/AN/2018 "Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among Qualified persons, the same would not | confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come fo an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made strength of such permanent, merely on the continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules...
Merely because an employee had continued under cover of an order of the court, which we have described as 'litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service.
It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain- not at arm's length-since he might have been searching for some employment so as to make out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employment should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible."
Respondent no 2 would also rely on para 53 of Uma Devi (supra) to argue that the applicant also fails to be considered as per the exception provided in said para, namely, that the respondent administration, as well as the respondent no. 1 failed to establish that her appointment was not illegal in the absence of any | record to prove that she was appointed through the deliberations of the Selection Committee and as per Rules, and, also that her continuation from 2004 onwards till 2020 has primarily had been by virtue of the directions of this Tribunal,
7. The applicant would rely on the Hon'ble Supreme Court's judgment and orders in Dr. (Mrs.) Rekha Khare Vs. Uol & ors. Of 1997 in SLP (Civil No.) 23681.
(at Annexure A-23 to the O.A.) The Hon'ble Court had held as follows therein:-
"The said petition (O.A. No. 372 of 1995) has been dismissed by the Tribunal by the impugned judgment dated August 14, 1996 on the ground that the appellant had applied for direct recruitment on the said post held by her in response to an advertisement issued by the Union Public Service Commission (for short the Commission) but she was not selected. Sri Mehrotra, the learned senior Counsel appearing for the - . --
han _--
12 0.A/351/1455/AN/2018 appellant, has submitted that the appellant was considered by the commission for direct _ recruitment along with fresh applicants for the post of Obst., & Gynaecologist and it was not a consideration of the case of the appellant by the Commission for the purpose of regularisation and for the for purpose of regularisation only the suitability of the appellant for regular appointment on the post was required to be considered by the Commission and the appellant was not required to compete with other applicants. Shri Mehrotra had submitted that orders for regularisation in this manner have been passed by the Tribunal in a number of cases which have been affirmed by this Court. It has also been urged that at present posts of Obst. & Gynaecologists are available in the C.H.S. at various places and the appellant can be considered for regular appointment on one of those posts.
Keeping in view the aforesaid submissions, it directed that if a permanent post of Obst. & Gynaecologist is available for regular appointment at present, the matter of regularisation of the appellant on the said post shall be considered by the Commission and if she is found suitable for such regularisation by the Commission she be regularised on the said post. For the purpose of regularisation of the appellant, the Commission shall consider the suitability of the appellant for such regularisation without requiring her to compete with other applicants for the post."
We find, however, that in the case of Rekha Khare (supra), no reference was made to the applicable recruitment rules although CHS Recruitment Rules 1996 was notified on 08.10.1996, and, further, the Hon'ble Court, without entering into. the merits of the matter, and, based on the submissions of the Ld. Counsel for the petitioner, that orders for regularization has been passed by the Tribunal ina number of cases which-have been affirmed by the Hon'ble Apex Court, directed the authorities to consider the applicant for regular appointment to the said post subject to her being found suitable for such regularization.
In the instant matter, the applicant's prayer for regularization is contrary to the provisions of the Recruitment Rules which only allow appointment by direct recruitment. Further, the fact that the applicant has not been found suitable for direct recruitment by UPSC on more than 3 occasions is a matter of record. In this context, this Tribunal would be guided by the judicial ratio in Prafulla Kumar Swain Vs. Prakash Chandra Misra reported in 1993(1) SLR 561 (SC). The Hon'ble Apex Court had held therein that recruitment is just an initial process that may lead to an eventual appointment in the service but that it cannot tantamount to bh
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0 | | 13 -0.A/351/1458/AN/2018 an appointment.
Further, in Jammu & Kashmir Public Service Commission Vs. Narinder --
Mohan (AIR 1994 SC 1808 and 1813) the Hon'ble Apex Court had ruled as under:-
{Emphasis supplied for clarity} "41. This Court in Dr. A. K. Jain v. Union of India, 1988 (1) SCR 335, gave directions under Art. 142 to reqularise the services of the ad hoc doctors appointed on or before October i, 1984.
It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142-power is confided only to this Court. The ratio in Dr. P. C. C. Rawani v. Union of India (1992) | SCC 331, is also not an authority under Art. 141. Therein the orders issued by this Court under Art. 32 of the Constitution to regularise the ad hoc appointments had become final. When con tempt petition was filed for non-implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. in that behalf, while appreciating the difficulties ex pressed by the Union in implementation, this Court gave further direction to implement the order issued under Art. 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Art, 141. in Union of India v.
effect of the order in A, K.Jain's case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H. C. Puttaswamy v. Hon'ble Chief Justice of Karnataka, AIR 1991 SC 295 : (1994 Lab IC 235), this Court while holding that the appointment to the posts of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under Art. 142, directed that their appointments as a reqular, on_humanitarian grounds, since they have put in more than 10 years' service. it is to be noted that the recruitment was only for clerical grade (Class-i!l post) and it is not a ratio under Art. 141. In State of Haryana v. Piara Singh, 1992 (4) SCC 118 at 152: (1992 AIR SCW 2315), this Court 'noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment.may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to compete along with others for regular selection but if he is not selected, he must give way to the reqularly selected candidates. Appointment of the -- regularly selected candidate cannot be withheld or kept on abeyance for the sake of such an ad hoe or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected Gian Prakash Singh, 1993 (5) JT (SC) 681 this Court by a Bench of three Judges considered the --
employee. The ad hoc appointment should not be a device to circumvent the rule of reservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. it is to be remembered that in that case, the appointments are only to Class-iil_or Class-IV_posts and the selection made _was_by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules."
The above orders categorically observe that the Hon'ble Apex Court's ratio could {ye a 14 0.A/351/1455/AN/2018 not have laid down, asa general rule, that, in every category of ad hoc appointment, if the ad hoc appointee continued for a long period, the rules of - recruitment should be relapsed and the appointment be made by regularization. The Hon'ble Court also held, while "iscussing the State of Haryana Vs. Piara Singh [1992(4) SCC 118], as 'well as in H. C, Puttaswamy Vs. State of Karnataka (AIR 1991 Sc 295) that when the Hon'ble Court directs that certain appointments to the post of Clerk etc. are to be regularized on humanitarian ground, it cannot be held to be a ratio under Article 141.
Accordingly, in the case of Rekha Khare (supra), the Hon'ble Apex Court had directed the consideration of the petitioner's regularization on the ground . > that Tribunals had been issuing such orders in favour of the applicant which continued to be upheld by the Hon'ble Apex Court. It merely directed regularization to the petitioner based on the submissions of her Ld. Counsel and did not lay down a ratio under Article 141 which would enable the applicant to seek an 'automatic application on the judgment of Rekha Khare (supra). The Hon'ble Apex Court, in Narinder Mohan (supra), had categorically laid down that once statutory rules have been made, the appointment has to be in accordance with such rules. Hence, this Tribunal finds a robust justification in the submissions of respondent no 2 that, regularizing the ad hoc services of the applicant in violation of the Recruitment Rules is not legally sustainable.
8. This Tribunal is hence of the considered view that the post of Specialist Ophthalmologist under CHS is to be. filled up only in terms of the prescribed Recruitment Rules, and, that, the office of respondent no. 1 should take steps to fill up such post ona regular basis.
ws 15 0.A/351/1455/AN/2018 'Till such time, subject to the consent and availability of the applicant, the respondents may continue to engage the applicant on contractual basis whenever there is the requirement of a Specialist Ophthalmologist 'in the respondent administration.
5. This O.A., therefore, is disposed of accordingly. There will be no orders on .
costs. an j~" A ~~ =~ ' (Nandita Chatterjee) (Bidisha Banerjee) .
Member (A) Member (J) ©