Delhi High Court
Dr. Adarsh Chaudhary And Anr. And Ajay ... vs Union Of India (Uoi) And Ors. on 30 July, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These two writ petitions arising out of the judgment dated 25.05.2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') in O.A. No. 1113 of 1999 involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
2. There are two posts in General Surgery and one post in G.I. Surgery. The applicant was appointed as an Associate Professor of G.I. Surgery in the Central Health Services in G.B. Pant Hospital on an ad hoc basis on 11.02.1993. He was appointed as an Associate Professor on ad hoc basis on 01.04.1995 and continued in the said post till 08.12.1997. An advertisement was issued for appointment in the post of Assistant Professor in the Department of G.I. Surgery and the petitioner applied therefore, but he was not called for interview. He thereafter filed an original application before the Tribunal seeking a direction to consider his case for interview. As during pendency of the said original application, he was selected, the said original application was withdrawn.
The unofficial respondent herein filed original applications before the Tribunal claiming inter alia the following reliefs:-
"1. Call for the records of the case.
2. Direct the respondents to include the ad-hoc services for the period 1993 to 1997 in the services of the applicant and assign proper seniority Along with consequential benefits.
3. Direct the respondents to consider the applicant for the post of Head of the Department Gastro intestinal Surgery at G.B. Pant Hospital, New Delhi."
The petitioners as also the official respondents raised preliminary objections therein as regards the maintainability of the original application on the ground that the same are not maintainable, as proper and necessary parties had not been imp leaded. In the original application even the Govt. of NCT of Delhi nor G.B. Pant Hospital were not imp leaded as parties. The original applicants had also allegedly suppressed material facts in their applications.
Before the learned Tribunal, the Union of India also filed its reply alleging that the applicant was not entitled to any relief as prayed for in the original application inasmuch as the period during which he served on ad hoc basis could not be counted towards his seniority as in his offer of appointment it had clearly been mentioned that the period of ad hoc appointment would not confer on him any claim or right for regular appointment in C.H.S. and that the period of ad hoc appointment rendered by him would not be counted towards seniority or for eligibility for promotion, confirmation, etc.
3. The contention of the applicant before the learned Tribunal, as also before us is that the post of Assistant Professor in G.I. Surgery was created in the year 1959, but no advertisement had been issued in relation thereto for a period of 7 years. Had such advertisement been issued, the petitioner being the only candidate was to be appointed therein, as a result whereof, he would have become eligible to be appointed as Professor in G.I. Surgery as per the Service Rules.
The unofficial respondent contended that as he had from the very inception continued to work as Assistant Professor in G.I. Surgery, the entire period should be counted towards his seniority. He has been conferred with the authority of the Head of the Department in G.I. Surgery in the first place. The original application was filed having regard to the said contention.
4. The contention of the writ petitioner, on the other hand, is that the period during which the applicant/unofficial respondent served as Assistant Professor on ad hoc basis cannot be counted towards his seniority inasmuch as he was appointed de' hors the rules. It has also been contended that the said respondent does not possess the qualification of super-speciality and Ph.D. degree in G.I. Surgery and thus cannot be equated with a candidate having a degree Mc.H.
5. It has been, however, stated that there is no post of the Head of the Department and it is entirely for the Authorities of the Central Government to say as to who would be the Head of the Department to which post no one can claim as a matter of right.
6. The learned Tribunal upon consideration of the materials-on-record held:-
"22. The issues involved in this case, being essentially relating to Public Interest and patient care in the Government Hospital, the narrow adversarial interests should be eschewed and the matter has to be looked at keeping in mind the broad interests of the public. In this case we are not on the issue whether R-3 was validly appointed as HOD GI Surgery, as it is admitted by all sides that no such post exists under the Recruitment Rules. Hence the only question is whether it is fit and proper to entrust the department of superspeciality to the care of the general surgeons. In our view, it is not. It should be entrusted to the hands of the qualified and experienced faculty members, like Director-Professor, Professor etc. in GI Surgery.
23. Considering the entire gamut of facts and particularly keeping in mind the public interest we are of the view, that whatever may be the reasons for the Government for not appointing the faculty members in the superspeciality by direct recruitment in 1994 itself, it is necessary to appoint the Director-Professor, in GI Surgery immediately and hand over the department to his care. Till then, we are of the view, that R-3 may be continued as he was looking after the department since 1994 as applicant was only an Associate Professor, appointed only in 1997."
7. The learned Tribunal disposed of the said original application by issuing the following directions:-
"24. We, therefore, direct the first respondent to take immediate steps to fill up the post of Director-Professor, and professor in the superspeciality of GI Surgery, in the GB Pant Hospital, in accordance with the decision taken by the Government, in the proceedings dated 19.05.1994, by way of direct recruitment, in accordance with the recruitment rules, within a period of six months from the date of receipt of a copy of this order and entrust the duties of the Head of the Department, to the Director-Professor in G.I. Surgery."
8. The Union of India field a review application against the said judgment inter alia contending that neither there existed any sanctioned post of Director-Professor or Professor in G.B. Pant Hospital in G.I. Surgery nor the same can be filled up by direct recruitment in terms of the recruitment rules. It was further contended that the said original application could not have been treated as public interest litigation nor the Tribunal could go beyond the pleadings.
By reason of an order dated 18.10.2000, paragraph 23 and 24 of the judgment were withdrawn and in its place the following was substituted:-
For the words "Director-Professor" in paragraph 23 and "to fill up the post of Director-Professor and Professor in the superspeciality of GI Surgery in the GB Pant Hospital, in accordance with the decision taken by the Government in the proceedings dated 19.05.1994, by way of direct recruitment, in accordance with the recruitment rules substitute the words "Assistant Professor/Associate Professor" in paragraph 23 and the words "to fill up the post of Assistant/Associate Professor in the superspeciality of GI Surgery, in the GB Pant Hospital, in accordance with the recruitment rules" in para 24."
9. The learned counsel appearing on behalf of the writ petitioners would submit that the learned Tribunal erred in passing the impugned judgment insofar as it failed to take into consideration the relevant rules.
It was contended that the requirement of strength of a particular Department in a Hospital is to be determined by the concerned Hospital and in relation thereto the Tribunal had no jurisdiction to issue any direction.
The learned counsel would contend that as there was only one sanctioned post in G.I. Surgery in G.B. Pant Hospital, which had already been occupied by the petitioner, no other person directly or indirectly could be brought over his head.
According to the learned counsel, as the post of Professor/Director -- Professor in any speciality is to be filled up by promotion and the only person who can be promoted to the said post is the petitioner and not the unofficial respondents.
In the aforementioned situation, the learned Tribunal must be held to have erred in issuing the aforementioned directions.
10. Mr. Venkataramani, the learned senior counsel appearing on behalf of the unofficial respondents, would contend that at the relevant point of time, there did not exist any statutory rules for recruitment in the said post.
According to the learned senior counsel, the background for appointment of his client on ad hoc basis is the necessity of the Hospital to specify the Medical Council of India as regard running of a course of studies in G.I. Surgery.
11. Our attention, in this connection, has been drawn to a letter of the Medical Council of India dated 12.02.1992, which is in the following terms:-
"Sub: Starting of M.Ch. (Gastroentrology Surgical) degree course at G.B. Pant Hospital, New Delhi under Delhi University-Approval of.
Sir, In super-session of this office letter No. MCI-57(22)/90-Med./47244, dated 17.1.1992, on the subject noted above, I am to state that on receipt of particulars of the teaching staff of the department of Gastroentrology Surgical from the authorities of G.B. Pant Hospital, New Delhi, the matter with regard to approval of starting of M.Ch. (Gastroentrology Surgical) degree course at the above hospital under Delhi University was duly placed before the Chairman of the Postgraduate Medical Education Committee of this Council for consideration.
I am directed to inform you that M.Ch. (Gastroentrology Surgical) degree course may be started at G.B. Pant Hospital, New Delhi under Delhi University restricting the admission of one student per year. The attention of the authorities concerned to drawn towards implementation of the various recommendations and suggestions made by the Council Inspector in the inspection report (June, 1990), especially to appoint 3rd teacher in the department immediately."
12. The University of Delhi also by a letter dated 29.10.1992 addressed to the Director of G.B. Pant Hospital stated:-
"I am to inform you that Dr. (Mrs.) M. Sachdeva, Secretary, Medical Council of India, New Delhi vide her letter No. MCI-57(22)/90-Med./49469 dated 12.2.1992 had conveyed the approval of the Council to start the aforesaid course at G.B. Pant Hospital, New Delhi. A copy of the said letter was endorsed to you.
It was, however, emphasized in the said letter towards the implementations of the recommendations of the Council's Inspection as mentioned below:-
".....The attention of the authorities concerned be drawn towards implementation of the various recommendations and suggestions made by the Council Inspector in the inspection report (June, 1990) especially to appoint 3rd teacher in the department immediately."
I request to please intimate to this office the position with regard to fill up the post of 3rd teacher in the Department of Gastroentrology Surgery as the said course has already commenced from October, 1992 so that the Medical Council of India could be informed accordingly."
13. The Deputy Secretary of the Medical Council of India again by a letter dated 29.06.1993 stated:-
"With reference to your letter No. 37-1(79)/7/Estt./GBP No. 172, dated 24.5.93, forwarding therewith a letter No. GIS/GBP/22(6)/115, dated 13.5.1993 from the Head of the department of Gastroantcrology Surgery-and subsequent letter No. GIS/GBP/93(6)/139, dated 1.6.93 forwarding particulars of Dr. Ajay Kumar Sachdev, Asstt. Professor on the subject noted above, I am so directed to request you to please let this office know by return of post details of the name of University awarding the M.S.I from held by Dr. R.C. Aranya and year of obtaining the same. Stabilarly, the name of University awarding M.S. Degree held by Sr. Ajay Kumar Sachdev Along with any other special training in G.I. Surgery and in which category indicating the period from/to may be furnished for further consideration in the matter."
14. Yet again, the Director - Professor of the Head of the Department of G.B. Pant Hospital by a letter dated 14.07.1993 addressed to the Deputy Secretary, Medical Council of India, New Delhi stated:-
"Reference your letter No. MCI-57(22)/90-Med./6836 dated 29.6.93 addressed to the Director, G.B. Pant Hospital, New Delhi. The information required is as follows:--
1. Prof. R.C. Aranya has obtained his M.S. (Surg.) from S.B. Medical College, Agra (Agra University) in 1962.
2. Dr. Ajay Kumar Sachdev did his M.S. (Surg.) from Kanpur University in the year 1984.
Dr. Ajay Kr. Sachdev has done his G.I. Surgery training in the Deptt. of G.I. Surgery, G.B. Pant Hospital from Nov., '86 to 14.2.90. Deptt. of G.I. Surgery. G.B. Pant Hospital is a recognised Surgical Gastroenterology centre by Delhi University and Medical Council of India.
I will request an early action in this matter."
15. In the aforementioned situation, only two persons including the unofficial respondent were selected for interview as would appear from the letter of the Ministry of Health and Family Welfare dated 27.10.1997, which is in the following terms:-
"I am directed to refer to your letter No. F.1/562/96-RI, dated 14.10.97 on the above subject intimating that the Commission has provisionally selected 2 candidates for interview for this recruitment. The Commission has forwarded Along with the letter a list of candidates who had applied for the post and also the dossiers of those not called for interview.
2. It is observed from the documents forwarded that the candidates who have been provisionally selected for interview viz. (1) Dr. Mohd. Ibrarullah and (2) Lav Kumar Kacker have both obtained M.Ch. in G.I. Surgery from the Sanjay Gandhi Post Graduate Institute, Lucknow. It is seen from the Schedule to the IMC Act, 1956 that the M.Ch. (GI Surgery) awarded by SGPGI, Lucknow is not recognised by the Medical Council of India. Therefore, it is not clear as to how they have been called for interview. It is also further observed that out of 10 candidates who have applied for this post, four viz:
1. Dr. Sudhir M. Tome
2. Dr. Pradeep Kumar Jain
3. Dr. Puneet Dhar, and
4. Dr. Anil Kumar Aggarwal have obtained their M.Ch. from Delhi University, which is again not recognised by the M.C.I. Therefore, it is felt that it will not be correct to call for interview only two candidates who have obtained M.Ch. from SGPRI, Lucknow and leaving out those who have obtained M.Ch. from Delhi University, since both are un-recognised by MCI, as otherwise it will tantamount to discrimination in the matter of selection.
3. It is further submitted that Dr. A.K. Sachdev is working as Associate Professor, G.I. Surgery in G.B. Pant Hospital, New Delhi on ad hoc basis since 11.2.1993 and he is also recognised examiner for M.Ch. (GI Surgery) examination conducted by the Delhi University. He is by for having the maximum number of years of experience in G.I. Surgery out of the present 10 candidates who have applied. Therefore, it is felt that the Commission may like to re-examine his candidature again keeping in view the above fact and, if considered eligible, may call him for interview.
4. As interview date have been fixed for 25.11.97, the Commission may examine whether, keeping in view the above facts, the interview date should be either postponed or re-scheduled as the case may be. As soon as we hear from the Commission, we will nominate the Ministry's Representative for the interview."
Although in the said letter, it is stated that the degree of M.Ch. is not recognized by MCI, i.e., Medical Council of India, but it appears that therein there exists a factual error as would appear from the letter dated 12.02.1992 (quoted supra).
16. The learned counsel appearing for the respondent would contend that he had been rendering services in the G.I. Surgery Department of G.B. Pant Hospital from 1986 onwards, i.e., since its very inception. The said respondent from the year 1986 to 1997 held the following posts:-
Sl.
No. Post held From To Department
1.
Senior Resident 14.11.88 13.2.90 Gl.
Surgery
2. Research Associate 14.2.90 10.2.93 Gl.
Surgery
3. Asst.
Professor (adhoc) 11.2.93 31.3.95 Gl.
Surgery
4. Associate Professor (adhoc) 1.4.95 8.12.97 Gl.
Surgery
5. Associate Professor (selected by UPSC) 9.12.97 Till date Gl.
Surgery The learned counsel would, therefore, contend that there is absolutely no reason as to why the seniority of the petitioner should not be counted from the day he held the post of Assistant Professor.
17. The learned senior counsel appearing on behalf of the writ petitioners, on the other hand, has drawn out attention to the offer of appointment dated 12.06.1995 made in favor of Dr. Ajay Kumar Sachdev, which is in the following terms:-
"Sub: Ad-hoc appointment to the post of Associate Professor of Gastroentrology Surgery, G.B. Pant Hospital, New Delhi.
The undersigned is directed to offer to Dr. A.K. Sachdev an appointment to the post of Associate Professor of G.I. Surgery, G.B. Pant Hospital, New Delhi on a purely temporary and ad-hoc basis for a period of one year with effect from 1.4.1995 or till the post is filled or regular basis in accordance with the provisions of the Central Health Service Rules, 1982 as amended from time to time, whichever is earlier, on the following terms and conditions:
(i) Scale of pay Rs. 3700-125-5000/- p.m.
(ii) Non-practicing allowances at the rate of Rs. 950 p.m.
(iii) Private practice of any kind whatsoever is strictly prohibited.
(iv) The period of ad-hoc appointment will not bestow on him any claim or right for regular appointment in the Central health Service and that the period of adhoc appointment rendered by him will not count for the purpose of seniority and for eligibility for promotion, confirmation etc.
(v) Other conditions of service will be governed by the relevant rules and orders that may be in force from time to time.
2. In case Dr. A.K. Sachdev accept the offer on the terms and conditions stipulated above, he may please send his acceptance to this Ministry within 14 days from the date of issue of this memo. he is also requested to join the post of Associate Professor of GI Surgery, w.e.f. 1.4.95 (FN). If no reply is received within the stipulated date, it will be presumed that he is not interested in the offer, which will be treated as cancelled."
18. Our attention has also been drawn to the fact that an advertisement had been issued for the said purpose only on 12.04.1997, which is in the following terms:-
"One Associate Prof. of Gastro-Intestinal Surgery, G.B. Pant Hospital, Deptt. of Health, Specialist Gr-II (Teaching Specialist Sub-Cadre) of CHS, Rs. 3700-5000 plus NPA as per rules. (T.E. Rs. 11245). 45 yrs. EQ: (i) A recog. Med. Qual. (ii) P.G. quals in the concerned speciality i.e. M.Ch. (Gastro-Intestinal Surgery), M.S. (General Surgery) with 2 yrs special training in a dept. of G.I. Surgery or eqv. EQ (iii), Note I, II, III & IV : Same as in item No. 10 above. NOTE V: After 1998, for teaching appointment in superspeciality of Gastro-Intestinal Surgery, the candidates must possess P.G. deg. Qual in the speciality concerned, that is D.M./M.Ch., after M.D./M.S. or other quals as may be approved by the Council from time to time. The existing alternative qual that is M.S. or an eqv. Qual with 2 yrs spl trg in a recog. Trg centre in the speciality concerned, shall cease to be sufficient qual, for appointment to aforesaid teaching post from that date. NOTE VI : Holders of Speciality Bd of USA quals shd complete the entire requirements of the Bd concerned."
19. It is not in dispute that G.B. Pant Hospital, New Delhi is a super-speciality hospital and the Department of G.I. Surgery was started as separate super-speciality in the year 1996. During its inception, two faculty Members from G.I. Surgery Cadre were posted in the said Department of the Hospital. In the year 1989, the Lieutenant Governor of Delhi sanctioned the creation of one Group 'A' post of Assistant Professor of G.I. Surgery for the first time.
20. It is also in dispute that in G.B. Pant Hospital, New Delhi, there are 62 posts, out of which there are two posts in Surgery Department and one post in G.I. Surgery Department.
21. One of the questions, which arise for consideration in these writ petitions, is whether in the fact situation, as noticed hereinbefore, Dr. Sachdev's seniority could be counted from the date of his appointment as Assistant Professor in G.I. Surgery Department or not?
22. It is also not in dispute that as the relevant point of time, no recruitment rules existed but despite the same, there cannot be any doubt that the Central Government was bound to comply with the requirements of Articles 14 and 16 of the Constitution of India.
23. Pursuant to or in furtherance of the recommendations of Tikku Committee in the year 1991, all posts of super-specialities were required to be filled up only at the entry level of the Associate Professor and as such the Central Health Service Rules had accordingly been amended in the year 1996.
24. Dr. Sachdev was appointed merely on ad hoc basis pending framing of rules in terms of the nomination made in his favor. Only two candidates were nominated and one of them was selected. No other selection process has been gone into.
25. Having regard to the fact that admittedly an advertisement had been issued through Union Public Service Commission, the process of regular appointment only started thereby.
26. It may be true that the Central Government was guilty of serious latches and delay on its part in not implementing the recommendations of the Tikku Committee as regards filling up the posts of the Assistant Professor in the superspeciality for a long time, but by reason of a default on the part of the Central Government, the unofficial respondent could not be conferred with any benefit.
27. The question as to whether the service of an ad hoc employee should be counted towards his seniority or not depends upon the nature of appointment as also the relevant provisions of the statutory rules. Where an appointment is made contrary to the statutory rules or in violation of the provisions contained in Articles 14 and 16 of the Constitution of India, the seniority for the period during which the employee was posted on ad hoc basis cannot be counted.
28. In V. Sreenivasa Reddy and Ors. v. Govt. of Andhra Pradesh and Ors. , the Apex Court referring to its earlier decisions in R.N. Nanjundappa v. T. Thimmaiah and Anr. and B.N. Nagarajan and Ors. etc. v. State of Karnataka and Ors. etc. held that seniority would be counted from the day of regularization and not from the date of original appointment on ad hoc basis. The appointment of Dr. Sachdev was by way of a temporary arrangement and not with a view to appoint him on regular basis.
29. In The Direct Recruit Class II Engineering Officers' Association v. The State of Maharashtra and Ors. AIR 1990 (2) SC 264, it was held:-
"If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is not reason to exclude the officiating service for purpose of seniority."
30. In Dr. Anuradha Bodi and Ors. v. Municipal Corporation of Delhi and Ors. , it was held:-
"11. These two clauses have been explained in a subsequent judgment in State of W.B. v. Aghore Nath Dey . The relevant passages in the said judgment read as follows: (SCC pp. 382-83, paras 21-25) "21. We shall now deal with conclusions (A) and (B) of the Constitution Bench in the Maharashtra Engineers' case quoted above.
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases, which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.
23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
24. The question, therefore, is of the category which would be covered by conclusion (B) excluding there from the cases covered by the corollary in conclusion (A).
25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the 'rules' and the latter expression 'till the regularisation of his service in accordance with the rules'. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regulation of his service, in accordance with the rules. In such case, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfillled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules."
12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be not doubt whatever that the petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stopgap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the normal course in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended by the learned counsel for the petitioners."
31. In Swapan Kumar Pal and Ors. v. Samitabhar Chakraborty and Ors. , the question, which arose for consideration, was:-
"(c) Is it possible to hold that on regular promotion being given, after adjudging the suitability of the ad hoc employee by holding test, it dates back to the date of ad hoc promotion?"
The said question was answered in the following terms:-
"9. So far as the third question is concerned, it is no doubt true that the respondents, who got their ad hock promotion between the period 9-12-1982 to 7-1-1984, were later on found suitable in the test that was held and the result of the said test was published on 28-2-1985. It is also true that they had been continuing from their respective dates of ad hoc promotion till they were regularized, after being selected through due process. But that by itself cannot confer a right on them to claim the ad hoc period of service to be tagged on for the purpose of their seniority inasmuch as there is no provision which says that an employee on being regularly promoted, such regular promotion would date back to the date of original promotion in the cadre, which might have been on ad hoc basis. When the service conditions are governed by a set of rules, in the absence of any rules, it is difficult to hold that regular promotion would date back to the date of ad hoc promotion itself. We, therefore, answer the question in the negative."
32. Yet recently in Md. Israils and Ors. v. State of West Bengal and Ors. 2002 AIR SCW 68, the Apex Court following its earlier decision delivered in M.K. Shanmugam and Anr. v. Union of India and Ors. AIR 2000 SC 2704 and distinguishing the decision of Suraj Prakash Gupta and Ors. v. State of J&K and Ors. , held:-
"In view of the analysis of different provisions of Recruitment Rules, the West Bengal Public Service Commission (Consultation by Governor) Regulation, West Bengal Public Service Commission (Exemption from Consultation) Regulation, we have no doubt that the initial appointment of respondents 6 to 30, purely on ad hoc basis without consultation with the Public Service Commission cannot be held to be a regular service in the cadre of Employment Officer, and as such the same cannot be counted for the purposes of reckoning their seniority in the cadre."
33. Yet again recently in S. Renuka and Ors. v. State of A.P. and Anr. , the Apex Court categorically held that any appointment made in contravention to the recruitment rules would be nullity. It was held:-
"8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The petitioners have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100% reservation for women. Also the reservation policy had not been adhered to. The posts, which are created, are posts of District and Sessions Judges, Grade II. There is no separate post for Judges of Family courts and Mahila Courts. Thus the petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre posts even provisionally. This would amount to creation of Ex-cadre posts not sanctioned by the Government. No fault can be found with the High Court being in favor of not appointing the petitioners."
34. For the reasons aforementioned, we are unable to accept the contention of Mr. Venkataramani that the unofficial respondent's seniority should be counted from his date of original appointment.
35. Furthermore, the directions issued by the learned Tribunal to the main respondent for filling up of the post of the Professor of G.I. Surgery Department cannot be appreciated. The original applicant did not make any prayer in relation thereto.
The Tribunal, therefore, could not have taken into account a purported public interest and issue a direction, which not only was beyond the scope and ambit of the original application but also in relation thereto no opportunity of hearing had been given to the respondents. Had such an opportunity been given, the Central Government could have shown sufficient or cogent reasons for not filling up the posts.
In any event, it is now trite that the question as to whether a particular post should be filled up or not is within the domain of the employer. The Court will ordinarily have no say in the matter.
The jurisdiction of the Tribunal is confined to Section 14 of the Administrative Tribunals Act. The Tribunal although has been created in terms of the Article 323A of the Constitution of India, its jurisdiction is limited. It must act within the four corners of the Statute. It, therefore, cannot go beyond the same and assume the jurisdiction of entertaining a lis in the nature of public interest, which is not contemplated under the Administrative Tribunals Act.
36. In the aforementioned situation, that part of the Order whereby and whereunder the respondents have been directed to fill up the post of Director - Professor cannot be sustained, which is set aside accordingly.
37. In the result, C.W.P. No. 2902 of 2001 is allowed and C.W.P. No. 507 of 2001 is dismissed. However, in the facts and circumstances of the case, the parties shall bear the costs.