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TMI Blog2002 (7) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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 As during pendency of the said original application, he was selected, the said original application was withdrawn.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 impleaded. In the original application e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration 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 super-speciality 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 super-speciality 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Gastroentrology 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:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ₹ 3700-5000 plus NPA as per rules. (T.E. ₹ 11245). 45 yrs. EQ: (i) A recog. Med. Qual. (ii) P.G. quails 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 super-speciality 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its part in not implementing the recommendations of the Tikku Committee as regards filling up the posts of the Assistant Professor in the super-speciality 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. AIR1995SC586 , the Apex Court referring to its earlier decisions in R.N. Nanjundappa v. T. Thimmaiah and Anr. (1972)ILLJ565SC and B.N. Nagarajan and Ors. etc. v. State of Karnataka and Ors. etc. (1979)IILLJ209SC held that seniority would be counted from the day of regularization and not from the date of original appointment on ad hoc basis. The appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments 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. [2001]3SCR641 , 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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