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Friday, September 12, 2014

Service matter - Regularization of service of GDMOs Grade -II - whether from the date of their adhoc appointment or from the date of approval of UPSC - High court order to regularize from the date of RECOMENDATIONS of UPSC - Apex court held that in Dr. Anuradha Bodi (supra) may be conveniently noticed at this stage. “12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no 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 [pic]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 If the GDMOs appointed in Phase-II are similarly circumstanced as Dr. Anuradha Bodi and others, we fail to see how their claim to regularization with effect from the date of their initial appointments can be countenanced except perhaps if we take a view contrary to that has been recorded in Dr. Anuradha Bodi (supra).Accordingly, we do not find any merit or substance in the appeals under consideration. They are, therefore, dismissed but without any order as to costs.= CIVIL APPEAL NOS. 8414-8415 OF 2014 (Arising out of SLP (C) Nos. 31023-31024 of 2011) VIRESHWAR SINGH & ORS. ... APPELLANT (S) VERSUS MUNICIPAL CORPORATION OF DELHI & ORS. ... RESPONDENT (S) = 2014 Sep. Month - http://judis.nic.in/supremecourt/filename=41864

Service matter - Regularization of service of GDMOs Grade -II - whether from the date of their adhoc appointment or from the date of approval of UPSC - High court order to regularize from the date of RECOMENDATIONS of UPSC - Apex court held that  in  Dr. Anuradha Bodi (supra) may be conveniently noticed at this stage. “12. If the facts of these two cases  are  analysed  in  the  light  of  the aforesaid decisions, there can be no 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 [pic]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 If the GDMOs appointed in Phase-II are similarly circumstanced as  Dr. Anuradha Bodi and others, we fail to see how their claim  to  regularization with effect from the date of their initial appointments can be  countenanced except perhaps if we take a view contrary to that has been recorded  in  Dr. Anuradha Bodi (supra).Accordingly,  we  do  not find any merit or substance in the appeals under consideration.   They  are, therefore, dismissed but without any order as to costs.=


  The appellants are General Duty Medical Officers (GDMO)  Grade-II  who
were appointed on ad hoc basis between 1986 and 1989.  
They  are  aggrieved
by the denial of their claim to regularization with effect  from  the  dates
of their initial appointments.
Regularization granted from the date of  the
recommendations of the Union Public Service commission (for  short  ‘UPSC’),
namely, 24.07.1998 as approved by the High Court of Delhi by  means  of  the
impugned order dated  05.07.2011  has  been  called  into  question  in  the
present appeal.=
 An elaborate recital of the facts had  been  considered  necessary  to
trace out the core issue in the case.
Both sets of GDMOs  i.e.  in  Phase-I
and Phase-II were not appointed on the basis of  a  selection  held  by  the
UPSC as mandated by the  Regulations  in  force.  
Their  appointments  were
recommended  by  a  Specially  Constituted   Selection   Committee.  
Their
appointments were ad hoc; initially for a period of  six  months  which  was
subsequently extended from time to  time.  
Being  similarly  circumstanced,
undoubtedly, both sets of GDMOs will have to be treated equally  and  evenly
for the purpose of regularization.  
In  Dr.  Anuradha  Bodi  (supra)  after
noticing  the precise  terms  of  appointment  of  the  Phase-I  GDMOs,  the
entitlement of the said GDMOs (Phase-I) to regularization with  effect  from
the date of their initial appointments was considered by this Court  in  the
light of the decision of the Constitution Bench in Direct Recruit  Class  II
Engineering Officers’ Association  Vs. State of Maharashtra  and  Others[2],
particularly, in the backdrop of the two propositions (A) and  (B)  set  out
in paragraph 47 of the Report.  
A subsequent judgment  of  a  three  Judges
Bench in State of West Bengal and Others  Vs. Aghore Nath Dey and  Others[3]
throwing further light and clarity on the contents of propositions  (A)  and
(B) laid down in Direct Recruit Class II  (supra) had also  been  considered
to come to the conclusion that the cases of  doctors  appointed  on  ad  hoc
basis in Phase-I fall within the  corollary  to  conclusion  (A)  of  Direct
Recruit (supra) and therefore they  are  not  entitled  to  the  benefit  of
service rendered on ad hoc  basis.  
Paragraph  12  of  the  report  in  Dr.
Anuradha Bodi (supra) may be conveniently noticed at this stage.
“12. If the facts of these two cases  are  analysed  in  the  light  of  the
aforesaid decisions, there can be no 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 [pic]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.”



14.   If the GDMOs appointed in Phase-II are similarly circumstanced as  Dr.
Anuradha Bodi and others, we fail to see how their claim  to  regularization
with effect from the date of their initial appointments can be  countenanced
except perhaps if we take a view contrary to that has been recorded  in  Dr.
Anuradha Bodi (supra).

15.   Learned counsel for  the  appellants  has  tried  to  persuade  us  to
charter the aforesaid course by placing reliance on two  decisions  of  this
Court in Narender Chadha and Others  Vs. Union of India  and  Others[4]  and
Keshav Chandra Joshi and Others Vs. Union of India  and  Others[5]    It  is
contended that the denial of benefit of long years of  ad  hoc  service,  in
view of the ratio of the law laid  down  in  the  aforesaid  two  decisions,
would be contrary to Articles 14 and 16 of the Constitution.

16.    It is the view expressed  in  Narender  Chadha  (supra)  which  would
require a close look as Keshav Chandra Joshi (supra) is a  mere  reiteration
of the said view.  In Narender Chadha (supra) the lis  between  the  parties
was one relating to counting of ad hoc service  rendered  by  the  promotees
for the purpose of computation of seniority qua the  direct  recruits.   The
basis of the decision to count long years of ad hoc service for the  purpose
of seniority is to be found more in the peculiar facts of the case as  noted
in para  20  of  the  report  than  on  any  principle  of  law  of  general
application.   However,  in  paragraphs  15-19  of  the  report   a   deemed
relaxation of the Rules of appointment and the wide sweep of  the  power  to
relax the provisions of the Rules, as it existed at the  relevant  point  of
time, appears to be the basis for counting of the ad  hoc  service  for  the
purpose of seniority.

17.   The principle laid down in Narender Chadha  (supra)  was  approved  by
the Constitution Bench in Direct Recruit Class II  (supra) as the  promotion
of the officers on ad hoc  basis was found  to  be  “without  following  the
procedure laid down under the Rules.”  That apart, what was approved in  the
Direct Recruit Class II  (supra) is in the following terms.
“We, therefore, confirm the principle  of  counting  towards  seniority  the
period  of  continuous  officiation  following  an   appointment   made   in
accordance with the rules prescribed for  regular  substantive  appointments
in the service.” {Para 13}

18.   In State of West Bengal and Others Vs.  Aghore  Nath  Dey  and  Others
(supra) a three Judges Bench of this Court has held that in view of the  lis
involved in Narender Chadha  (supra)  i.e.  inter  se  seniority  of  direct
recruits and promotees, the said decision cannot be applied to  cases  where
the initial appointment was not according to the Rules.  Paras 19 and 20  of
the decision in State of West Bengal  (supra)   may  be  usefully  extracted
hereinbelow.
“19. The constitution bench in Maharashtra  Engineers  case,  while  dealing
with Narender Chadha emphasised the  unusual  fact  that  the  promotees  in
question had worked continuously for  long  periods  of  nearly  fifteen  to
twenty years on the posts without being  reverted,  and  then  proceeded  to
state the principle thus: (SCC p. 726, para 13)
[pic]“We, therefore, confirm the principle  of  counting  towards  seniority
the period of  continuous  officiation  following  an  appointment  made  in
accordance with the rules prescribed for  regular  substantive  appointments
in the service.”

20. The constitution  bench  having  dealt  with  Narender  Chadha  in  this
manner, to indicate the above principle, that decision cannot  be  construed
to apply to cases  where  the  initial  appointment  was  not  according  to
rules.”



19.   All the aforesaid discussion would lead us to the conclusion that  any
departure from the views expressed and conclusions reached in  Dr.  Anuradha
Bodi (supra) will not be necessary or justified.   Accordingly,  we  do  not
find any merit or substance in the appeals under consideration.   They  are,
therefore, dismissed but without any order as to costs.

2014 Sep. Month - http://judis.nic.in/supremecourt/filename=41864
                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
        CIVIL APPEAL  NOS.     8414-8415                     OF 2014
              (Arising out of SLP (C) Nos. 31023-31024 of 2011)


VIRESHWAR SINGH & ORS.                             ...    APPELLANT (S)

                                   VERSUS

MUNICIPAL CORPORATION OF
DELHI & ORS.                                          ...  RESPONDENT (S)



                               J U D G M E N T

RANJAN GOGOI, J.

1.    Leave granted.

2.    The appellants are General Duty Medical Officers (GDMO)  Grade-II  who
were appointed on ad hoc basis between 1986 and 1989.   They  are  aggrieved
by the denial of their claim to regularization with effect  from  the  dates
of their initial appointments.  Regularization granted from the date of  the
recommendations of the Union Public Service commission (for  short  ‘UPSC’),
namely, 24.07.1998 as approved by the High Court of Delhi by  means  of  the
impugned order dated  05.07.2011  has  been  called  into  question  in  the
present appeal.

3.    The relevant facts are as follows.

      The post of GDMO Grade-II is a Group ‘A’ post governed  by  the  Delhi
Municipal  Corporation  Health   Service   Recruitment   Regulations,   1982
(hereinafter referred to as ‘the Regulations’).  Under the said  Regulations
appointment in the post of GDMO Grade-II is required to be made through  the
UPSC.  Between 1982 and 1986 (for convenience may  be  referred  to  as  the
Phase-I) 82 GDMOs were appointed on ad hoc basis for an initial term of  six
months which was subsequently extended from time to time.  In  what  may  be
again conveniently referred to as the Phase-II, between  1986-1989,  another
69 number of GDMOs were appointed on ad hoc  basis on terms similar  to  the
appointments made in Phase-I.  Both sets of appointments  were  not  through
the UPSC but were made on the basis of  a  selection  held  by  a  Specially
Constituted Selection Committee.

4.    The cases of the GDMOs appointed on  ad  hoc  basis  in  Phase-I  were
referred  to  the  UPSC  for  its  recommendations  for   the   purpose   of
regularization.  The UPSC approved 63 cases while holding 10  candidates  to
be  unfit  for  regularization.   The  recommendations  of  the  UPSC   were
communicated  to  the  Municipal  Corporation  of   Delhi   on   27.06.1991.
Accordingly,  by  order   dated   17.08.1992   the   Municipal   Corporation
regularized the services of the  63  GDMOs  recommended  by  the  UPSC  with
effect from the date of recommendation i.e. 27.06.1991.  Aggrieved by  their
regularization with effect from the date of the recommendation of the  UPSC,
the GDMOs appointed in the Phase-I approached this Court  under  Article  32
of the Constitution claiming regularization from the date of  their  initial
appointments.

5.     While  the  aforesaid  writ  petition  was  pending,  the   Municipal
Corporation of Delhi sent the cases of the GDMOs appointed  in  Phase-II  to
the UPSC for its recommendations for regularization of the incumbents.   The
UPSC refused to consider any of the cases on the ground that  the  10  GDMOs
appointed in Phase-I, who were found  by  it  to  be  unfit,  had  not  been
dismissed from service.  This had led the GDMOs  appointed  in  Phase-II  to
file a writ petition (Writ Petition (C)  No.  1550/1996)  before  the  Delhi
High Court.

6.    The writ petition filed by the Phase-I GDMOs before this  Court  under
Article 32 was decided on 8.5.1998 holding that  their  regularization  with
effect from the date of recommendation of the  UPSC  was  validly  made  and
they were not entitled to  such  regularization  from  the  dates  of  their
initial appointments.  The  judgment  of  this  Court  is  reported  as  Dr.
Anuradha Bodi and Others Vs. Municipal Corporation of  Delhi  And  Others[1]
and will be specifically referred to at a later stage of the present order.

7.    Six days after  the  judgment  was  rendered  by  this  Court  in  Dr.
Anuradha Bodi (supra) the Delhi High Court on 14.05.1998  allowed  the  writ
petition (Writ Petition (C)  No.  1550/1996)  filed  by  Phase-II  GDMOs  by
directing the UPSC to consider  their  cases  for  regularization  from  the
dates of their initial appointments.  In compliance of the  aforesaid  order
of the Delhi High Court, the UPSC recommended  regularization  of  the  said
GDMOs from the dates of their  initial  appointments  by  its  communication
dated 24.07.1998.

8.    There being an apparent conflict with regard to regularization of  the
GDMOs  appointed  in  Phase-I  and  Phase-II,  though  made   in   identical
circumstances and on the same terms, the Municipal Corporation of  Delhi  by
its Resolution dated 17.01.2000 decided to regularize the services  of  both
sets of GDMOs with effect from the date of their initial  appointments.   On
the basis of the said Resolution  dated  17.01.2000  a  formal  Order  dated
16.08.2000 was passed to the said effect.

9.    The Resolution dated 17.01.2000 and the formal Order dated  16.08.2000
came to be challenged by the regularly  appointed  GDMOs  before  the  Delhi
High Court.  The writ petition filed was,  however,  withdrawn  and  instead
the order dated 14.05.1998 passed by the Delhi High Court in  Writ  Petition
(C) No. 1550/1996, which has led to the alleged Resolution dated  17.01.2000
and the formal Order dated 16.08.2000, were challenged in a  Letters  Patent
Appeal by the regularly appointed GDMOs.  It  is  at  this  stage  that  the
Municipal Corporation of Delhi issued another Order dated 15.06.2007  and  a
Corrigendum dated 18.06.2007 to the effect that the regularization  of  both
sets of GDMOs would be effective from the date(s) of  communication  of  the
recommendation of the UPSC.  The said action of  the  Municipal  Corporation
was challenged in a writ petition (Writ Petition (C) No.  4619/2007)  before
the Delhi High Court by the present appellants.

10.   The Letter Patent Appeals (LPA Nos. 708/2001 and  138/2003)  filed  by
the regularly appointed GDMOs against the order dated 14.05.1998  passed  in
Writ Petition (C) No. 1550/1996 were disposed of by the  Division  Bench  of
the High Court on 05.02.2008 by holding  that  the  challenge  made  in  the
appeals stood answered by the subsequent order of the Municipal  Corporation
of Delhi dated 15.06.2007.  The Division Bench also took note  of  the  fact
that the said order dated 15.06.2007 was under challenge  in  Writ  Petition
(C) No. 4619/2007 and directed that the views expressed in the  order  dated
14.05.1998 in Writ Petition (C) No. 1550/1996 would  have  no  relevance  or
bearing while deciding Writ Petition (C) No. 4619/2007.

11.   Writ Petition (C) No. 4619/2007  was  thereafter  transferred  to  the
Central Administrative Tribunal and  numbered  as  T.A.  No.  398/2009.   By
order dated 09.12.2010 the  learned  Tribunal  decided  the  aforesaid  case
(T.A.  No.  398/2009)  alongwith  a  connected  matter  holding   that   the
Resolution  dated  17.01.2000  with  regard  to  regularization   of   GDMOs
appointed in both phases from the dates of their  initial  appointments  was
contrary to the decision  of  this  Court  in  Dr.  Anuradha  Bodi  (supra).
Accordingly,  while  the  Resolution  dated  17.01.2000  was  quashed,   the
subsequent Order of the Municipal Corporation of Delhi dated 15.06.2007  was
upheld.  The aforesaid order has been confirmed by  the  Division  Bench  of
the High Court by means of the impugned order dated 05.07.2011.  It  is  the
said order dated 05.07.2011 as well as the order dated  05.09.2011  refusing
to review the order dated  05.07.2011  that  have  been  challenged  in  the
present appeals.

12.    We have heard learned counsels for the parties.

13.   An elaborate recital of the facts had  been  considered  necessary  to
trace out the core issue in the case.  Both sets of GDMOs  i.e.  in  Phase-I
and Phase-II were not appointed on the basis of  a  selection  held  by  the
UPSC as mandated by the  Regulations  in  force.   Their  appointments  were
recommended  by  a  Specially  Constituted   Selection   Committee.    Their
appointments were ad hoc; initially for a period of  six  months  which  was
subsequently extended from time to  time.   Being  similarly  circumstanced,
undoubtedly, both sets of GDMOs will have to be treated equally  and  evenly
for the purpose of regularization.   In  Dr.  Anuradha  Bodi  (supra)  after
noticing  the precise  terms  of  appointment  of  the  Phase-I  GDMOs,  the
entitlement of the said GDMOs (Phase-I) to regularization with  effect  from
the date of their initial appointments was considered by this Court  in  the
light of the decision of the Constitution Bench in Direct Recruit  Class  II
Engineering Officers’ Association  Vs. State of Maharashtra  and  Others[2],
particularly, in the backdrop of the two propositions (A) and  (B)  set  out
in paragraph 47 of the Report.   A subsequent judgment  of  a  three  Judges
Bench in State of West Bengal and Others  Vs. Aghore Nath Dey and  Others[3]
throwing further light and clarity on the contents of propositions  (A)  and
(B) laid down in Direct Recruit Class II  (supra) had also  been  considered
to come to the conclusion that the cases of  doctors  appointed  on  ad  hoc
basis in Phase-I fall within the  corollary  to  conclusion  (A)  of  Direct
Recruit (supra) and therefore they  are  not  entitled  to  the  benefit  of
service rendered on ad hoc  basis.   Paragraph  12  of  the  report  in  Dr.
Anuradha Bodi (supra) may be conveniently noticed at this stage.
“12. If the facts of these two cases  are  analysed  in  the  light  of  the
aforesaid decisions, there can be no 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 [pic]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.”



14.   If the GDMOs appointed in Phase-II are similarly circumstanced as  Dr.
Anuradha Bodi and others, we fail to see how their claim  to  regularization
with effect from the date of their initial appointments can be  countenanced
except perhaps if we take a view contrary to that has been recorded  in  Dr.
Anuradha Bodi (supra).

15.   Learned counsel for  the  appellants  has  tried  to  persuade  us  to
charter the aforesaid course by placing reliance on two  decisions  of  this
Court in Narender Chadha and Others  Vs. Union of India  and  Others[4]  and
Keshav Chandra Joshi and Others Vs. Union of India  and  Others[5]    It  is
contended that the denial of benefit of long years of  ad  hoc  service,  in
view of the ratio of the law laid  down  in  the  aforesaid  two  decisions,
would be contrary to Articles 14 and 16 of the Constitution.

16.    It is the view expressed  in  Narender  Chadha  (supra)  which  would
require a close look as Keshav Chandra Joshi (supra) is a  mere  reiteration
of the said view.  In Narender Chadha (supra) the lis  between  the  parties
was one relating to counting of ad hoc service  rendered  by  the  promotees
for the purpose of computation of seniority qua the  direct  recruits.   The
basis of the decision to count long years of ad hoc service for the  purpose
of seniority is to be found more in the peculiar facts of the case as  noted
in para  20  of  the  report  than  on  any  principle  of  law  of  general
application.   However,  in  paragraphs  15-19  of  the  report   a   deemed
relaxation of the Rules of appointment and the wide sweep of  the  power  to
relax the provisions of the Rules, as it existed at the  relevant  point  of
time, appears to be the basis for counting of the ad  hoc  service  for  the
purpose of seniority.

17.   The principle laid down in Narender Chadha  (supra)  was  approved  by
the Constitution Bench in Direct Recruit Class II  (supra) as the  promotion
of the officers on ad hoc  basis was found  to  be  “without  following  the
procedure laid down under the Rules.”  That apart, what was approved in  the
Direct Recruit Class II  (supra) is in the following terms.
“We, therefore, confirm the principle  of  counting  towards  seniority  the
period  of  continuous  officiation  following  an   appointment   made   in
accordance with the rules prescribed for  regular  substantive  appointments
in the service.” {Para 13}

18.   In State of West Bengal and Others Vs.  Aghore  Nath  Dey  and  Others
(supra) a three Judges Bench of this Court has held that in view of the  lis
involved in Narender Chadha  (supra)  i.e.  inter  se  seniority  of  direct
recruits and promotees, the said decision cannot be applied to  cases  where
the initial appointment was not according to the Rules.  Paras 19 and 20  of
the decision in State of West Bengal  (supra)   may  be  usefully  extracted
hereinbelow.
“19. The constitution bench in Maharashtra  Engineers  case,  while  dealing
with Narender Chadha emphasised the  unusual  fact  that  the  promotees  in
question had worked continuously for  long  periods  of  nearly  fifteen  to
twenty years on the posts without being  reverted,  and  then  proceeded  to
state the principle thus: (SCC p. 726, para 13)
[pic]“We, therefore, confirm the principle  of  counting  towards  seniority
the period of  continuous  officiation  following  an  appointment  made  in
accordance with the rules prescribed for  regular  substantive  appointments
in the service.”

20. The constitution  bench  having  dealt  with  Narender  Chadha  in  this
manner, to indicate the above principle, that decision cannot  be  construed
to apply to cases  where  the  initial  appointment  was  not  according  to
rules.”



19.   All the aforesaid discussion would lead us to the conclusion that  any
departure from the views expressed and conclusions reached in  Dr.  Anuradha
Bodi (supra) will not be necessary or justified.   Accordingly,  we  do  not
find any merit or substance in the appeals under consideration.   They  are,
therefore, dismissed but without any order as to costs.


                        .…....…………………………J.
                                             [RANJAN GOGOI]




                                                          .…....…………………………J.
                                             [M. Y. EQBAL]
NEW DELHI,
SEPTEMBER 2, 2014.

-----------------------
[1]    (1998) 5 SCC 293
[2]    (1990) 2 SCC 715
[3]    (1993) 3 SCC 371
[4]    (1986) 2 SCC 157
[5]    1992 Supp (1) SCC 272

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