Narinder Mohan vs State

Community of factual matrix and identify of forensic issues falling for determination in this bunch of Letters Patent Appeals necessitates a

common determination and judgment.

A broad brush factual backdrop will help delineate the contours of pristinely forensic controversy.

Certain posts of Lecturers fell vacant in the two Medical Colleges of the State. The appellants in these appeals were appointed as Lecturers on

adhoc basis. They have been permitted to continue to function on these posts even after the expiry of more than four years. These appointments on

adhoc basis were challenged through various writ petitions interalia on the ground that the appointments were made in violation of the Jammu and

Kashmir Medical Education (Gazetted) Service Recruitment Rules 1979 (Rules for short) and Articles 14 and 16 of the Constitution of India.

There is no provision in the rules for making adhoc appointmentApplications were not invited for this purpose. Persons who were eligible for

appointment were denied an opportunity to apply for and be considered for appointment to these posts. The present appellants, who were private

respondents in the writ petitions were alleged to be lacking in the requisite teaching experience of three years prescribed by SchedulcII of the

Rules.

Some of Ihe appellants had been appointed Lecturers on regular basis in relaxation of the Rules. In their case also the posts were not advertised,

applications were not invited, the posts were not referred to the State Public Service Commission for selection of the incumbent. Cases of all the

persons who were eligible were not considered. The State Government did not possess any powers or authority to relax the Rules. It was

incumbent on the State Govt. to refer these posts to the Public Service Commission. The appointments were made in violation of rules 7 and 8 and

Article Hand 16 of the Constitution of India. The appointees were the us/uppers of office and were liable to be removed.

In some of the writ petitions, an alternative prayer was made that the petitioners be also appointed as Lecturers like the appellants. Some other

points were raised in the writ petitions which were are not concerned in the present appeals.

The official respondents had filed their counter only in writ petition No. 134/1989. It had been pleaded interalia that the State had power to

make appointment on adhoc basis. These appointments, however, do not confer any statutory right on the appointees. No rights of the petitioners

were violated. It was conceded that the posts of the Lecturers were not referred to the Commission. They had not made any selection or

recommendation. On previous occasions the appointments to the posts of the Lecturers had always been made on the recommendations of the

Commission.

In the counters filed by the Private respondents, the present appellants, they projected their superior merit vizaviz the writ petitioners some of

them pleaded that they had been selected earlier by the Public Service Commissioner as BGrade Specialists, which post carried a higher pay scale.

The selection established the superior merit of these appellants. In most of the cases, the appellants were appointed as adhoc Lecturers on the

recommendations of the Principal of the College who has occasion to evaluate the work, conduct and performance of the appellants and some of

the writ petitioners while they had worked as Registars in the College.

The learned Single Judge came to the conclusion that the appointments to the posts of Lecturers were governed by the Rules. The Rules do not

permit the appointments of Lecturers on adhoc basis. Even in the case of adhoc appointments principles, contained in Article 14 and 16 of the

Constitution of India were applicable. Civil posts under the State could not be filled in without advertising and affording opportunity to all the

eligible candidates to apply. Since the applications were not invited and cases of all the eligible persons for appointments as Lecturers on adhoc

basis were not considered, the appointments of the appellants as lecturers on adhoc basis were quashed.

The learned Single Judge also held lhat even if it may be considered that the provisions of Section 133 of the State Constitution and Article 320

of the Federal Constitution were directory, yet Rules 7 and 8 were mandatory and that they enjoined upon the State to make appointments of

direct recruits on regular basis only on the recommendations of the Public Service Commission was imperative. Appointments made without

following this procedure were invalid and liable to be quashed. The State Govt. had no power to relax the Rules requiring reference of the posts to

the Public Service Commission. Under Rule 9 (3) the Stale Government can only relax the upper age limit in suitable cases. The State can relax the

other qualifications only on the recommendations of the Public Service Commission made under Rule 7 in the case of a person who in their opinion

had exceptional merit as well as professional experience of high order in his speciality and that too after obtaining the views of the Medical Council

of India, Therefore, he quashed the appointments of Doctors M.Bakshi, Tariq Parvez, Narrindcr Mohan Sudhir Bhagotra and R.K. Mengi as

Lecturers on regular basis.

Aggrieved, the appellants have come up in appeal. State had also filed appeals in cases in which the appointment of Dr. Tariq Parvez and Dr.

Narririder Mohan as lecturers on regular basis have been quashed. In this judgment the reference to the appellants will not include the State as

appellant in the aforementioned appeals.

The creation of Jarnmu and Kashmir Medical Education (Ga/cttcd) Service (For brevity sake hcrinattcr referred to as ""Service"") and the mode

and method of recruitment there to and some of the conditions of service are governed by the Rules.

Rule 3 gives the Constitution of service and its classification. It provides that there shall be constituted a service with effect from the date of the

issue of these Rules. The Rules were issued on September, 19,1979. It provides that service shall comprise of three wings, namely Teaching.

Administrative and General. It shall consist of such posts, classes and categories and such number of them as may be determined by the Govt.

from time to time and that at the commencement of these Rules, the service shall consist of posts, classes and categories as specified in SchcdulcI.

Posts of lecturers fall in the Teaching wing of the Service. Rule 4 lays down that members of the service shall he such persons as are appointed to

the service under the Rules.

Rule 5 provides that the appointment to the service shall be made;

a. By direct recruitment; or,

b. By promotion by selection in the manner as indicated against each post in ScheduleIll.

The appointments to the posts of Lecturers according to Schedule 3 are to be made by direct recruitment.

Under Rule 7 a person shall not be eligible for recruitment/ promotion to a post in the service unless he possesses qualifications and fulfills the

requirements of recruitment prescribed for that post in SchedulcII.

A proviso is added to this Rule empowering the Public Service Commission to recommend for consideration of the Govt. the appointment of a

person to a post in the Service who otherwise is not eligible under these rules in the opinion of the commission, possesses exceptional merit as well

as professional experience of high order in a speciality. Such a case will be considered by the Govt. after obtaining the views of the Medical

Council of India. The remaining provisions of the Rule are not relevant for our purposes.

Rule 8 gives the method of recruitment. It states that while making selections to the posts in the Teaching Wing of the Service, the

commission/Departmental Promotion Committee shall have regard of the Academic qualifications Teaching experience Research experience and

Publications and previous record of work, if any.

Rule 9 fixes the upper age limit for the Direct Recruitment as 32 years. State Government has been authori/cd by Subrule to relax the upper age

limit in a suitable case or category of cases.

Rule 14 deals with discipline and conduct and specifies that in regard to all matters governing the service conditions of members of the service and

their conduct and discipline, the provisions of Jammu and Kashmir Govt. Employees (Conduct) Rules, Jammu and Kashmir Civil Service

Regulations ,snd Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as '1956 Rules') and

other Rules and Orders in force at the time shall apply.

Rule 16 provides for residuary mailers. It lays down that in regard to matters not specifically covered by these Rules or by the orders Ksucd

therein, I he members of she Service shall be governed by the Rules and Regulations applicable to She State Civil Services in general in so far as

these arc consistent with these Rules.

In the conspectus of (he Rules, we have now to determine as to whether the Stale Government has the power and authority to make direct

recruitment to the posts of Lecturers on nilhoc basis. In order to determine this issue it will be beneficial to read Rule 4 in extenso at this stagc:

Members of the ScrvicoThc members of the service shall be such persons as are appointed to the service under these rules;

Provided that l he members of the service under thcJamrnu and Kashmir Medical Filucation (Ga/cHctl) Service Recruitment Rules. 1074. in force

immediately before She commencement of these rules, shall be deemed to have been appointed in the corresponding posts in the service specified

in ScheduleII.

Explanation: For purposes of this rule:(a) members of the services under the Jamrmt and Kashmir Medical Education (Ga/cttcd) Service

Recruitment Rules, 1074, shall mean persons appointed on regular basis on any post in that senice and shall not include persons working on

deputation, contract or adhoc on any post in that service: and (b) any person appointed to anv post in (he service under these rales on deputation,

contract or adhoc shall not be a member of the service only by virtue of such deputation, contract or adhoc appointment.

It is manifest from clause (b) of the explanation that the adhoc appointments to the posts in the service under these Rules was within the

contemplation of the Rule making authority. This power has been expressly recognised by this clause. If the Rule making authority did not wan? to

clothe the State Government with powers to make adhoc appointments to the posts in the service then there was no need to incorporate clause (b)

in the explanation. This provision clearly spells out the power of the State to make adhoc appointment to any post in the service, The Rule making

authority however has taken care to declare that any adhoc appointee to a post in the service shall not become a member of the service only by

virtue of such adhoc appointment. An irresistible conclusion Ueductble from the language of this Rule is that persons can be appointed to she posts

in the service on adhoc basis, but the appointees shall not become members of the service only by virtue of such adhoc appointment So She Rules

clearly envisaged and authori/ed She State Govt. to make adhoc appointments to the posts of Lecturer*, on adhoc basis hy direct recruitment. The

appointments of the appellants on (headline basis arc therefore clearly in accordance with and under the Rules.

Rule 14 of 1056 Rules empowers to the Stale Govt. to make appointments of a person otherwise than in accordance with those Rules

temporarily a period of three months in public interest and circumstances specified therein.

Under Rule 5 of (hose Rules, (he State Govt. has been auihori/ed to relax any of these Rules so that ihe Powerto make adhoc appointments is

referable to Rule 14 of Ihe 1956 Rules also.

Executive power of the Slate under Article 162 of the Constitution of India extends, subject to the provisions of the constitution, to all matters

(SIC) inrespect to which the Legislature of the Stale has power to make laws. State Govt, ihus has power in respect of ListII Entry 41 Schedule

VII, State Public Service, The existence of Law is not necessary for Ihe State to function and exercise those powers. (See Ram Jawaya Kapoor

Vs. Slate of Punjab; AIR 1955 S.C. 549).

The State can create posts and fill them up in exercise of that power. Tt is not necessary that Rules under Art. 309 governing the conditions of

service must precede creation and filling up of posts. However, it is desirable that Rules should be made on matters which are susceptible of being

embodied in Rules. When such statutory service Rules are made by the competent authority or an Act is passed by the State Legislature, Ihe

Executive must abide by that Act or Rales and it cannot in exercise of the executive power under Article 162 of the Constitution, ignore or act

contrary to the Rules or the Act.

However, if the Act or the Rules framed under Article 309 do not make provisions for any particular matter or subject, the State can issue

executive or administrative instructions to cover the gaps or remove lacunae in the service Rules or the Act or pass appropriate orders in individual

cases.

If in the present case it is conceded for the sake of argument that the Rules have no provision for filling up the posts in the service on adhnc

basis, same can he done in the interests of administration incxercise of executive powers of the State under Art. 162 of the Constitution.

It is, therefore, heyond doubt established that the State Government had powers to make appointments to the Post of Lecturers on adhoc

basis by direct recruitment. The appointments of the appellants cannot be termed invalid or illegal on this score.

This takes us to the second limb of the argument of the writ petitioners that even adhoc appointments could not be made without issuing

advertisements in the papers and inviting applications there for and giving opportunity to all eligible persons to apply for those posts.

Sustenace for this view is sought from the decisions of She various High Courts. Reference has been made to 1083 (2) All India Service Law

Journal: 107: Gones S.Candea Parear Vs. Union of India and Ors: 1071. Labour and Industrial Cases : 708. V.K. Bargava Vs. State of HP.

1087 (5) SLR: 773 Decision of the Final Court in N.B. Nagarajan's case was also pressed into service,

At the outset it may he stated that in Nagarajan's case the point was not directly in issue. That case is an authority for the proposition that the

State can create civil posts and fill them in exercise of its executive powers under Articles 162.

In V.K. Bargaves case the State Ciovt. had issued executive instructions clearly laying down the procedure for filing up posts on adhoc basis.

They provide for inviting applications and considcrating eligible person, There is no such instruction in our State.

The other two decisions do support the argument raised by the Learned counsel. However, this view has not been accepted by all the High

Courts in the country. There is a cleavage in the Judicial opinion. A bench of five Judges of the Punjab and Haryana High Court in Daljit Singh Vs.

State, AIR 1078 P&H 117 had repelled this argument. It was held (hat: ""It is not the requirement of the Constitution under Art. 16 that for direct

recruitment to an office under the State there must be an advert iscmcnt in the Public press so as to reach every conceivable candidate within (he

country.

This very view was earlier taken by another full bench of three Judges of the same court in Kartar Singh Rai Vs. State AIR 1970 Punjab and

Haryana: 112.

We refer to adopt the latter view enunciated by the much larger Benches of the Punjab and Haryana High Court and hold that il is not always

necessary to invite applications through advertiscment in the press before filling up posts oh adhoc or temporary basis.

An ancillary argument of the appellants may be disposed of at this stage. It was argued that even in the matter of adhoc appointments, the

requirement of Art. 14 and 16 would be satisfied wholly if they are made on the recommendations of the Public Service Commission. This has not

impressed us. the appointments on adhoc basis in the very nature of things are made to meet an urgent and emergent situation, the solution to which

may brook more delay. The adhoc appointees as observed earlier do not become members of the service only by virtue of their appointments. The

Rules only require selection by the Public Service Commission of Lecturers, who are to be appointed on regular basis. They are not applicable in

the case of adhoc appointments.

We now take up the second important issue as to whether the sclcctionto the posts of lecturers on regular basis to the service can be made

without reference to (he Public Service Commission. To put it in other words, can the State Government make selection of lecturers to the Medical

Colleges itself and make appointment as a result thereof without referring (hese posts to the Public Service Commission. In order to appreciate ihe

issue involved, it will be appropriate to reproduce Rule 8 at (his Stage.

Method of recruitment: While making selection (1) to the posts in the Teaching wing of the Service (he Commission/ Departmental Promotion

CommiUee shall ha%'c regard to the following, namely:

a/ Academic qualification of the candidates;

b/ Teaching experience;

c/ Research experience and publication: and d/ Previous record of work, if any.

(2) to the posts in the Administrative and General Wings of the Service, the Commission/Departmental Promotion Com miltcc shall have regard to

the following, namely:

a/ Academic qualification;

b/ Experience; and

c/ Previous record of work, if any.

It is crystal clear from the language of |hc Rule thal the selection to the posts in the Teaching wing of the service, (including the posts of Lecturers)

is to he made by the Public Service Commission in the case of Direct recruitment's and by the Departmcntai Promotion Committee, in ihc case of

appointments by promotions. Of course, having regard to (he qualifications and matters enumerated therein. The power to make selection to the

posts of Lecturers has in categoric and unequivocal terms been vested in (he Public Service Commission in the case of direct recruitment and the

Departmcntai Promotion Committee in the cases of promotions. The State Government has not been given these powers. Rule 5 is of no help in

construing Rule 8. It only provides for the mode of appointment to the service. It lays down that the appointments to the service shall be made by

direct recruitment, or by promotion by selection in the manner as indicated against each post in the schedule. In accordance therewith the posts of

Lecturers have tone filled in by direct recruitment. There is nothing in this Rule which may authori/c the State Government to make selection of

Lecturers. Infact Rule 5 is silent as to who has to make selections. It is so because provision for this purpose has been made in Rule 8. Language

used in Rules 5 and 8 does to bear the construction soughl lo be put there upon by the appellants that the State has been aulhori/cd by these Rules

to make selection for appointment to the posts of Lecturers on regular basis and there is no need to refer Ihc post to I he Public Service

Commission. Reliance of the Respondents on the provisions of Section 133 of the State Constitution and Article 320 of the Fcdral Constitution

and decisions rendered by the Final Court interpreting these provisions is misplaced Provisions of Section 133 and Article 320 are analogous. It

has been provided (herein thai it shall be the duty of the Comnmsion to conduct the examination for appointments to the service of Ihc State. The

Commission shall be consulted on various matters relating to methods of recruitment. Principles to be followed in making the appointments and

disciplinary matters. However, a proviso has been added that the Governor may make regulations specifying the matters in which either generally

or in any particular class of cases or in any particular circumstances, it shall not be necessary for the Commission to be consulted. The State

Government can provide, by Regulations, that in case of certain posts or class of posts or services it will not be necessary to consult the

commission. I was on the language and more particularly of the provision that the final court in State of U.P. Vs. Manbodhan Lal Srivastava, AIR

1957 S.C.912 has hcld:

The use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that

effect that is to say, that unless the words of the Statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be

invalid. On the other hand, it is not always correct to say that where the word 'may' has been used, the statute is only permissible or directory in the

sense that noncompliance with those provisions will not render the proceeding invalid.

The provisions of Art. 320 (3) (c) are not mandatory and noncompliance with those provisions, docs not afford a cause of action to civil servant in

a court of Law,'

It has to be noticed that their 1 lordships were dealing with the provisions of Art. 32fl (3) (c) which provision deals with consultation with the

commission on disciplinary matter and not clause (a) of that subarticle which has reference to matters relating to method of recruitment to civil

services and civil posts. In any case the proviso had authori/ed the State Government to specify posts in which it may not be necessary to consult

the Public Service Commission. It was in this context that their Lordships were pleased to hold that provisions of this Article were directory and

not mandatory. The Final court had an occasion to consider the question again in Jalsnder Kumar and ors Vs. State of Punjab and others; AJR

1084 S.C. 1850. It was held:

The establishment of an independent body like Public Service Commission to ensure select ion of best available persons for appointment in a post

to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability varied experience and of undisputed

integrity and further assesed by experts on the subject. It is true that they are appointed by Government but once they arc appointed, their

independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a high public

office it is required to consult the Public Service Commission. The Selection has to be made by the Commission and the Government has to fill up

the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the

Public Service Commission. The selection by commission however, is only a recommendation of the Commission and the final authority for

appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to

accept the recommendation of the Commission the constitution enjoins the Government to place on the table of the legislative Assembly its reasons

and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. This

however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of

the Commission. If, however the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as

recommended by the Public Service Commission, It cannot disturb the order of merit according to its own sweet will except for other god reasons

w, bad conduct or character. The government also cannot appoint a person whose name does not appear in the list. But it is open to the

Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against

anticipated vacancies does not create a right to be appointed to the post which can be enforced by a Mandamus. We are supported in our view by

the two earlier decisions of this Court in A.N.D.Silva Vs. Union of India 1%2 Supp. (l)SCR; %8(AIR 1%2 S.C.1130) and State of Haryana Vs.

Subash Chander Marwaha (1974) 1 SCR 165; (AIR 1973 S.C.2216). The contention of Mr, Anthony to the contrary cannot be accepted.

It is clear from the above dicta that whenever the Government decides to make appointments to a civil post. Tt is their duty to consult the

Public Service Commission. The Commission shall then make selection and make recommendations to the government. This recommendation of

the Commission is not binding on the Government in the sense that the Govt, may accept the recommendations or may not accept them. But in

case the Govt. wants to fill up the posts regarding which recommendations have been made by the Commission, it has to do so in accordance with

the merit determined by the Commission. It cannot change that merit or appoint persons not recommended by the Commission. The Govt. may

however decide not to fill up the posts. In that eventuality the recommcndees of the Commission have no cause of action and they cannot seek a

writ of Mandamus directing the State Government to fill up the posts and appoint Ihcm. However, observations to the contrary have been made by

a Division Bench of the Apex Court in Dr. M. C. Bindal Vs. R.C. vSinghand others. ATR 1°80S.C.134 .The context and setting for the

observations in that case was entirely different. The Commission had revised its earlier decision and withdraw the candidature of appellant Dr.

M.C. Bindal and also cancck'd its recommendations earlier made in his favour, the challenge to that by the appellant was repelled and it was

observed:

It is of course, a well settled legal position that the duty to consult the Commission in the matter of appointment to Civil posts by the Government

is not mandatory but directory and as such the absence of consultation with the State Public Service Commission does not render any appointment

made by the Government in civil posts invalid or illegal.

If we may say so with great respect, the above observation do not constitute the ralio of the decision. Furthermore they run counter to the ratio of

thc decision in Jatindcr Kumar's case (Supra) which was decided by a larger bench,

The language of Rule 8 is not pari materia with section 133 of Art. 320. There is nothing like ihe proviso (herein. It contains clear mandate of

the Rule making authority without any reservations or qualification, it has been clearly laid down that the selection to the posts of Lecturers on

regular basis shall be made by the Commission in the case of direct recruits. In construing Rule 8, the appellants cannot seek any help from the

decisions given in ihc context of Section 133 or Article 320. The provisions of Rule 8 are mandatory.

The provisions of Rule 8 have been observed in their breach. The posts have not been referred to the Public Service Commission. The

selections have been made by the Government itself in gross violation of the provisions of Rule 8.

In fairness to Mr. Bilal Na/ki, learned Advocate General, it must be stated that he argued that from the scheme of Rules and the language

employed in framing Rule 7 il is clear that reference of a post to (he Public Service Commission was necessary only in a case where the

Government wanted to appoint a person of exceptional merit and rich professional experience of high order in his speciality, but otherwise not

eligible for appointment under the Rule. In such a case the government could consul She Public Service Commission and on their approval and

after obtaining (he views of Medical Council of India make the appointment. The argument is simply to be stated to be rejected. Rule 7 provides

for eligibility, ll lays down:

Eligibility: (1) A person shall not be eligible for recruitment/promotion to a post in the service unless he possesses the qualification and fulfils the

requirements of recruitment prescribed for that post in ScheduleII.

Provided that the Commission may recommend for consideration of the Government ihc appointment of a person to a post in the service who

otherwise not eligible under these rules is, in the opinion of the Commission, possessing exceptional merit as well as professional experience of high

order in his spccialiiy, such ;t case will be considered by the Government after obtaining the views of the Medical Council of India,,...,.,

The purpose in framing (he Rule is to ensure that only persons possessing the prescribed qualifications and fulfilling prescribed requirements

shall be appointed to the Service. A proviso has been introduced to make provision for the appointment in exceptional cases of person of extra

ordinary meril, who arc oihenvise ineligible. Rule 7 does not in any way control Rule 8. The two Rules cover entirely different field. They are not

mutually exclusive. They are complimentary. So it cannot be accepted that only cases of person of extra ordinary merit, but. otherwise ineligible

have to be referred to the Public Service Commission for appointment.

In the return filed by the Public Service Commission il has been clearly stated that in ihe past all posts in the service were filled on regular basis

on the recommendations of the Commission; the authorities have not given any explanation of deviating from this past practice. We are of the

considered view that in view of the clear language of Rule 8 li was incumbent upon (he Stale Government to refer the posts of Lecturers to the

Public Service Commission for selection of suitable candidates to he appointed on regular basis. The state Government was not competent to

make I he select ion of some of ihc appellants and appoint them on regular basis without their having been selected and recommended by Ihc

Public Service Commission. These appointments were whoily illegal and invalid and have been rightly set aside by the learned Single Judge.

There is no provision in (he Rules auihori/ing the State Government to relax the provisions of Rule 8. The Government has under Rule 0 been

invested wilh Ihe power to relax (he upper age limit in suitable cases. Learned counsel for Ihc appellants have not been able to bring to our notice

any oihcr Rule in any set of Service Rules which maybe applicable to the parlies which may support the plea that the Govt. had ihc power to relax

Rule 8. II had been rccilcd in the orders selecting the appellants on regular basis lhal il has been done in relaxation of the Rules. This was clearly

impermissible.

The allegations of malafide have also been pressed into service. But, the allegations arc vague and skclchy. It is not clearly alleged as to who

and in what manner respondent No. 5 and 6 in Writ Petition No.1247/1088 had influenced Ihe mind of Ihe appointing authority. No details of facls

have been given which may connect these respondents wilh Ihe process of selection and appointment. Merely because these respondents happen

to be Ihe relations of Dr. Parvez, it cannot be held lhat they had played any part in his appointment. Apart from Dr. Parvez, five other doctors have

also been appointed on regular basis who are not in any way related to Ihe official respondents. The writ petitioners have failed to substantiate the

allegations of malafidcs.

The next question arises as to what has to be done wilh these Doctors who have been working as adhoc lecturers over Ihe years, some of

them since 1087. They have gained valuable experience over all these years. Turning Ihcm out at this stage will not only enlail a great hardship to

Ihcm and (heir families, the society shall also lose the services of experienced teacher. Il is true thai Ihe device of filling posts on adhoc basis should

not be allowed lo be used for back door entry for underselling favorites of the powers that be, yet certain situations do require the appointment of

persons on adhoc basis. This applies wilh great force in the case of teachers in Medical Colleges. It is a ground reality lhal it lakes a long lime

(generally 2 to 3 years) for getting Ihe candidates selected by the Public Service Commission, in the interrghum some arrangements have to he

made for imparting education to the students of Medical Colleges. Of necessity adhoc appointments have to he made. These appointments should

however not he allowed, in the interest of merit, to continue for long periods. Immediate and urgent steps should he taken to fill up these posts

through (he Puhlic Service Commission. For whatever reasons when certain persons continue to man the posts and thus gain a valuable experience

and they arc fully qualified according to the service rules, they cannot he unceremoniously thrown out. A some what similar situation arose in the

Medical Services of Indian Railways. Assistant Medical Officers were initially appointed by the General Managers of Zonal Railways for six

months, hut were allowed to continue for periods ranging upto four years. Their services were sought to he terminated to accommodate the

candidates selected by the Union Public Service Commission (U.P.S.C.). These Doctors filed Writ petitions in the Supreme Court. They claimed

that their services should be regularized and (heir seniority should be fixed from the dates of their initial appointments. The Union of India contested

these petitions. In their counter they contended that adhoc appointments were made by General Manager of Zonal Railways to tide over

temporary shortage of Doctors and their terms were extended tiil regular selection was made by the Union Puhlic Service Commission and the

appointments were made by the President of India. Since, the appointing authority was President, such adhoc appointments by the General

Manager of 7onal Railways could not be regularized. It was further contended that adhoc appointees were granted age relaxation and were asked

to appear at two special selections based in interview along held by Union Puhlic Service Commission in 1082 and in 1085. The petitioners

however cither did not avail of the special benefit of selection or had appeared and failed to qualify. They could not be regularized in service.

Notwithstanding the same, the apex court directed (has(he services of Doctors appointed upto Oct. 1,1084 he regularized in consultation with (he

Union Puhlic Service Commission on the evaluation of (heir work and conduct based on the confidcnfat reports in respect of period subsequent to

Oct. 1,1082 and such regularisation was to be made from the dates from which they were continuously working. The service of those not

regularized were allowed to be terminated. This case is reported as Dr. A.KJain Vs. Union of India 1087 Supplement SC cases: 407. This

decision was cited with approval in Jacob m. Puthuparamhil & Ors. Vs. Kerala Water Authority and Ors, AIR 1000 S.C: 2228. It was observed.

/'It is unfair and unreasonable to remove pcopel who have been rendering service since sometimes as such removal has serious consequences. The

family of ihc employee which has settled down and accommodated its needs to the cnoluments received by the bread winner will face economic

ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly

wasted and ihe incumbent may be rendered 'age barred"" for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of

security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such beha%'ior would be anaffornt to the

concept of job security and would run counter to the constitutional philosophy particularly the concept of right to work in Art. 41 of the

Constitution."" .

The Apex Court in Bhagwati Prasad Vs. Delhi State Mineral Development Corpn. AIR 1000S.C.371 have also taken the viewthat person in case

they have worked on the post over a period of time and have obtained a practical experience, confirmation cannot be refused to them even if they

did not possess the requisite qualification it has been obscrved:

Practical experience would always aid the person to effectively discharge the duties and is a sure guidb to assess the suitability. The initial minimum

educational qualification prescribed for the different posts is undoubtedly fador to be reckoned with, but it is so at the time of the initial entry into

the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work as for a considerable length of

time, it would be hard and harsh to deny them She confirmation in the respective posts on the ground that they lack the prescribed educational

qualifications.

In a recent judgment in state of Haryana Vs. Piara Singh, AIR (/ 1992 S.C.2130 the Supreme Court has observcd:

If for any reason, an adhoc or temporary employee is continued for a fairly long spell the authorities must consider his case for regularisation

provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the

reservation policy of the State.

In the result we partly allow these appeals. We set aside the orders of the learned Single Judge quashing the appointments of Private appellant

on adhoc basis. We endorse the findings of the learned Single Judge quashing the regular appointments of Dr. Tariq Parvez Azad. Dr. Narinder

Mohan and Dr. Sudhir Bhagotra and others as lecturers on regular basis in relaxation of (he rules. We also quash the directions given by the

learned Single Judge to the respondents to fill up the posts of lecturers on regular basis through Public Service Commission within three months.

We direct the respondents in terms of decision in A.K. Jain Vs. Union of India to regularize the service of all the appellants in consultation wilh the

Public Service Commission on evaluation of I heir work and conduct based on the confidential reports within three months. Such evaluation shall

be done by the Public Service Commission. The doctors so regulari/cd shall be appointed as lecturers with effect from the date from which they

had been continuously working as lecturers. The respondents shall be at liberty to terminate the services of those appellants who are not so

regularised. Parties shall however bear their own costs.