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5. Assistant Medical Officers appointed on ad hoc basis should not be retained in service beyond six months without Boards prior approval. Where, due to non-availability of candidates selected by the Commission, it becomes necessary to continue the appointment of locally recruited doctors a reference should be made to the Board two clear months in advance.

The 1967 Recruitment Rules stood superseded on 16th September, 1977 when the President of India enacted, in exercise of powers conferred by the proviso to Article 309, another set of Rules called, The Indian Railway Medical Service (Assistant Divisional Medical Officer) Recruitment Rules, 1977. The aforesaid Rules were given retrospective effect and must be deemed to have come into force from 16.10.1976. Rule 3 of 1977 Recruitment Rules also provides that the method of recruitment, age limit, qualifications and other matters relating to the post of Assistant District Medical Officer would be as specified in columns 5 to 13 of the Schedule. Rule 7 of 1977 Rules further provides that the persons who are recruited under the Rules to post to which the conditions prescribed in Rule 2423 (CSR) 404B of the Indian Railway Establishment Code applies, shall be eligible to the benefit of the provisions contained in that Rule. By the time the 1977 Rules came into force there had been re- organisation of the cadre on the basis of recommendations of the Third Central Pay Commission, being accepted by the Government of Indian and Class II cadre in the Railway Medical Service (which was the post of Assistant District Medical Officer in the 1967 Recruitment Rules), stood abolished and a combined junior and senior scale was introduced, the cadre being Assistant Divisional Medical Officer. This is apparent from the Resolution of the government of India dated 1st May, 1974, as notified in the Gazette. In the Recruitment Rules of 1977, so far as for the post of Assistant Divisional Medical Officers, the method provided was either by direct recruitment or by promotion or by deputation/transfer and the percentage of vacancies to be filled by various methods was to be decided in consultation with the Union Public Service Commission. So far as the outsider direct recruitment is concerned, the same was required to be made through a written examination followed by interview, on the basis of such schemes of examination to be decided from time to time, in consultation with the Union Public Service Commission, and failing the direct recruitment it could be by transfer on deputation. The scale of pay for the post of Assistant Divisional Medical Officer was Rs.700-40-900-EB-50-1250-EB-50-1600. Though the post of Assistant District Medical Officer, as provided in the Railway Establishment Code as well as in the 1967 Recruitment Rules stood abolished under the Recruitment Rules of 1977, but a note was appended indicating that existing Assistant Medical Officers (Group B) shall continue in Group B post in scale of pay of Rs.650-1200 till such time they are selected for absorption in Group A Grade of Assistant Divisional Medical Officer in consultation with the Union Public Service Commission. By the time the 77 Recruitment Rules came into force the Union Public Service Commission had already issued advertisement on 16th October, 1976 to hold examination for filling up the post of Assistant Divisional Medical Officer Class I, the said cadre having come into existence in the year 1974 on acceptance of the recommendaion of Third Central Pay Commission by Government of India, and therefore, to regularise the matter 1977 Recruitment Rules was given retrospective effect with effect from 16.10.1976. We have devoted a considerable attention to these Rules, as in the earlier cases referred to, in Haques case (supra) as well as Srinivasulus and others, the relevant Recruitment Rules had not been brought to the notice of the Court. It is too well settled, that the seniority of an employee in a cadre has to be determined in accordance with the Rules if such Rules provided for the same. But if such Rules do not make any provision or do not fix the criteria for determination of seniority of the employees in a cadre then the same could be determined on the principles enunciated by the Constitution Bench decision in the Direct Recruits Engineering Officers case 1992 (2) Supreme Court Cases. This being the position, and in view of the letter of Government of India, in the Ministry of Railways dated 21.5.1966 authorising General Managers to recruit Assistant Medical Officer Class II on ad hoc basis for a period not exceeding six months, and further indicating that such ad hoc appointees should apply to the Union Public Service Commission in response to the advertisement issued by the Commission, those of the ad hoc appointees who had not got themselves regularised by getting themselves selected through UPSC examination will not be entitled to claim the benefit of their ad hoc period for being counted for the purposes of seniority in the cadre, after they were regularised pursuant to order of this Court in A.K.Jains case (supra) . In fact the directions contained by this Court in Dr. Jains case (supra) deals with all the ad hoc doctors appointed either as Assistant Medical Officer or as Assistant Divisional Medical Officer upto October 1, 1984 should be regularised in consultation with the UPSC on the evaluation of their work. The Court having issued the direction for regularisation even in respect of Assistant Divisional Medical Officers appointed after coming into force of the Recruitment Rules of 1977, advisedly did not indicate as to how their seniority in the cadre would be determined and these group of officers who got themselves regularised in pursuance to the order of the Court were treated to be a separate group by itself in the Clarificatory Order of this Court. When the Union of India moved application finding difficulty in adjusting the seniority of those ad hoc doctors appointed upto 1st October, 1984, who were regularised pursuant to the direction of the Court dated 24th September, 1987 in Dr. A.K. Jains case (supra) that application was disposed of, as already indicated, by order dated 1.11.1988. In the said order it was specifically indicated that the inter se seniority between the direct recruits and the ad hoc recruits who got themselves regularised under the orders of the Court in Jains case (supra) should be decided by the Government in the light of the decision to be rendered in the cases which are pending before the Constitution Bench involving similar questions. After the Constitution Bench decision in the Direct Recruits Class II Engineering Officers Association case (supra) an Interlocutory Application No. 1 of 1992 was filed and that stood disposd of by order dated February 18, 1993, called Dr. M.A. Haques case (supra). In paragraph 7 of the said order the Court has kept in mind three classes of Assistant District Medical Officers, namely, the outsiders directly recruited through UPSC, ad hoc appointees who came to be recruited through UPSC by appearing in the written examination or interview; and those who had filed I.A. were also ad hoc appointees but did not appear in a written examination/interview or had failed to get through but could be regularised in service because of the Courts intervention and order dated 24.9.1987 and 1.11.88. So far as the direct recruits are concerned, both outsiders and insiders, it was held, that the same should be determined according to the dates of their regular appointments through UPSC and so far as those ad hoc appointees who could be regularised only pursuant to the order of the Court they were directed to be placed after those direct recruits who had been recruited till the date of the order. In other words even in case of insider direct recruits i.e. those who joined as ad hoc appointees but got themselves regularised after appearing in the examination or interview and being selected by UPSC the Court did not apply guideline B of the Direct Recruits Class II Engineering Officers Association case(supra). It must be borne in mind that the applicants who had filed Interlocutory Application belong to the Third category, namely, those who could be regularised because of the orders of the Court in AK Jains case dated September 24, 1987 and the Clarificatory order dated 1.11.1988 on the application of the Union of India and in that proceeding neither the outsiders directly recruited doctors nor insiders directly recruited doctors had been arrayed as parties. The present dispute appears to be between the outsider direct recruits, who got themselves recruited by appearing at the test conducted by the UPSC and the insider direct recruits, who initially had been appointed on ad hoc basis but got themselves selected through UPSC while continuing in service. But the Union of India is of the view that the principles enunciated in Haques case is running contrary to the principles enunciated in Srinivasulus case by the Tribunal and upheld by this Court. In view of the apprehended confusion in the mind of the Railway Administration on account of the judgments of this Court, referred to earlier, and for doing complete justice in the matter of determination of seniority amongst the medical officers recruited by the Railway Administration through the UPSC, we have approached the problem on consideration of the different Rules in force as well as the orders issued by this Court in several earlier cases and this should apply irrespective of the fact whether some are parties to this proceeding or not. In fact one of the grievance of insider direct recruit Medical Officers like, doctor Srinivasulu is that they had not been arrayed as party when the Court was considering the Interlocutory Application filed by doctor Haque for determination of their seniority, who belong to the category, namely, ad hoc appointees who got recruited without getting themselves selected through any examination conducted by the UPSC only because of the compassionate view that was taken by this Court in Dr. A.K. Jains case (supra). A similar problem arose in the case of Traffic Apprentices in Southern Railways and a Three Judge Bench of this Court in the case of Union of India and others vs. M. Bhaskar and Others (JT 1996 (5) SC 500), issued directions notwithstanding some other Traffic Apprentices who would be directly affected were not parties. The correctness of that decision was considered by the Constitution Bench in the case of E.S.P. Rajaram & Ors. vs. Union of India & Ors., JT 2001 (1) SC 573, and the Constitution Bench came to hold that the judgment in Bhaskars case (supra) does not require any re-consideration, the Court having invoked its power vested under Article 142 of the Constitution for doing complete justice amongst the Traffic Apprentices in Southern Railways and the decision/direction therein could not have been nullified on the ground that an affected person was not a party to the same. In the aforesaid background and the earlier judgments of this Court on being critically analysed, it would appear that in Dr. A.K. Jains case (supra) this Court merely directed that the services of all doctors appointed on ad hoc basis, whether as Assistant Medical Officer or Assistant Divisional Medical Officer up to 1.10.1984 shall be regularised in consultation with the UPSC on the evaluation of their work conduct on the basis of their CRs in respect of the period subsequent of October 1, 1984. So far as these doctors ad hoc appointees, who got themselves regularised pursuant to the orders of this Court, the question of counting their prior ad hoc period of service for determination of their seniority in the cadre does not arise. Though in doctor Jains case (supra) as well as in the subsequent order on the application filed by the Union of India the Court had not indicated as to how their seniority in the cadre would be determined, but on the Interlocutory Application filed by doctor Haque, the Court examined and did indicate that they could be placed in the seniority list after both the outsider direct recruits as well as insider direct recruits, who have been recruited till the date. It is no doubt true that while saying so the Court did observe that so far as outsider and insider direct recruits are concerned, their inter se seniority would be determined according to the date of their regular appointment through the UPSC, but as has been stated earlier, this dispute was not really before the Court and Court had not focussed its attention minutely as the insider direct recruits had not been parties to the same and the Court was merely examining how the case of those officers, who got themselves regularised pursuant to the orders of this Court in Dr. Jain would be determined. The observations of this Court in Dr. Haque (supra) to the effect we direct that seniority of direct recruits both outsiders and insiders should be determined according to the dates of their regular appointments through UPSC must be held to be per incuria and cannot be the guiding principle. In Srinivasulus case, however, the Tribunal was considering as to whether their ad hoc period could be counted for the purpose of seniority, be it be stated, that Srinivasulu belong to that category of officers who were initially appointed as ad hoc but got themselves regularised by appearing at the examination conducted by the UPSC, on being selected, and this Court upheld the decision of the Tribunal in Srinivasulu being of the opinion that the ad hoc services rendered by such officers could be counted for the purposes of their seniority. Obviously the Court had in mind the principle B evolved by the Constitution Bench in the Direct Recruit Engineering Officers Association case (supra). If the initial appointment had not been made in accordance with the prescribed procedure laid down by the Recruitment Rules, and yet the appointees Medical Officers were allowed to continue in the post uninterruptedly and then they appeared at the selection test conducted by the Union Public Service Commission, and on being selected their services stood regularised then there would be no justification in not applying the principle B of the Direct Recruit Class II Engineering Officers Association case (supra) and denying the period of officiating services for being counted for the purpose of seniority. This has what happened in Srinivasulus case and this Court did not interfere with the order of the Tribunal. It may be reiterated that there being no provision in the Recruitment Rules, either of the 1967 or of the 1977 for determining the seniority of the persons employed as Assistant Medical Officers Class II, or the 1977 Recruitment Rules, for the purpose of determining the seniority the principles evolved by the Constitution Bench in the Direct Recruit Class II Engineering Officers Association case (supra) will have to be followed, and judged from that angle we see no inconsistency between the judgment of this Court in Dr. Haques case (supra) and the judgment of this Court confirming the decision of the Tribunal in Dr. Srinivasus case (supra) accepting the observation in Dr. Haques case which we have already held to be per incuria. This being the position, the grant of benefit to Dr. Lalita Rao, as had been given to Dr. Srinivasulu by the Tribunal in O.A. No. 3218 of 1996, we do not see any infirmity in the same. At the cost of repetition we would record our conclusions as under :-