V.K. Bhargava vs State of H.P. and Others

P.D. Desai, C.J.—The Himachal Pradesh Medical College, now known as the Indira Gandhi Medical College, hereinafter referred to as "the College", is being run and maintained by the State Government (first Respondent) at Shimla. The Petitioner is the Professor and Head of the Department of Pharmacology in the College. The second Respondent is holding the substantive post of Professor and Head of the Department of Preventive and Social Medicine in the College. The Director of Medical Education-cwm-Principal of the College, Dr. A.N. Mehrotra, sought voluntary retirement and was actually retired on August 5, 1983. At the material time, the Petitioner, who was the senior-most amongst the Professors having five years'' experience, was serving on deputation as Professor of Pharmacology at the Garyounis Medical School, Benghazi, Libya. The second Respondent, who was the next senior-most Professor with 5 years'' experience, was, therefore, appointed to officiate as the Director of Medical Education-cum-Principal of the College purely as a temporary measure on ad-hoc basis till further orders with immediate effect by a notification dated August 6, 1983 (Annexure P-10). The only challenge, which now survives for consideration in the present petition, is to the aforesaid appointment of the second Respondent and to his continuance upto-date in the said post pursuant to such appointment. The other challenge, namely, that directed against the decision of the first Respondent to resort to the mode of direct recruitment to fill up the post in question, is not required to be considered at this juncture having regard to certain developments which have taken place during the pendency of this petition to which reference will be made at an appropriate stage in the course of this judgment.

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The Hiniachal Pradesh Health Service (hereinafter called "the Service") is constituted by the Himachal Pradesh Health Services Rules, 1974 (hereinafter referred* to as "the Rules"). The Rules deal with the classification, categories and scales of pay of different posts comprising the Service and with the recruitment thereto. The First Schedule annexed to the Rules fixes the strength of different posts in the two wings (Teaching Wing and General Wing) in which the Service is divided. There is only one sanctioned post of Principal which is found listed at item No. 1 under the heading "Teaching Wing". It is not in dispute that this is the post of Principal of the College. Rule 9, sub-rule (8), clause (ii) of the Rules deals with recruitment to the post of Principal and it reads as follows:

(ii) The post of Principal shall be filled in by promotion from amongst the Professors on the basis of merit-cwm-seniority with at least 5 years service as Professor and having administrative capabilities:

Provided that if Government is satisfied that suitable officers are not available for promotion such posts shall be filled in by direct recruitment in the manner specified in the Second Schedule or by deputation.

The Second Schedule makes provisions concerning recruitment by selection to the Service through the Himachal Pradesh Public Service Commission (hereinafter referred to as "the Commission"). Clause (f) of the Second Schedule, inter-alia, provides that the age-limit, educational qualifications and experience for direct recruitment to the various categories of the Service shall be as laid down in Annexure-I to the Second Schedule. The relevant entry in the Annexure is at item No. 2 which reads as under:

"Name of post Age Educational qualifications required

Essential:

Principal, Medical College. 50 years and below (relaxa-ble for Government Servants). (i) A recognised Medical qualification included in the First or Second Schedule or Part II of the Third Schedule (other than Licentiate qualification) to the Indian Medical Council Act, 1956 as amended from time to time. Holders of educational qualification included in Part II of the III Schedule should also fulfil the conditions stipulated in sub-section (3) of section 13 of the Indian Medical Council Act, 1956.

(ii) A post-graduate degree mentioned in Part Annexure II or equivalent.

(iii) At least five years'' experience as a Professor in any Department of a Medical College/Teaching Institution.

It would be pertinent to notice at this stage that the qualifications prescribed for direct recruitment do not contain the requirement of the candidate having "administrative capabilities" which is prescribed for appointment by promotion.

In order to appreciate the precise controversy between the parties against the proper backdrop, a few facts are required to be stated in some detail. While occupying the post of Professor and Head of Department of Pharmacology, the Petitioner took up foreign assignment on deputation as Professor of Pharmacology in the Garyounis Medical School, Benghazi, Libya, with the concurrence of the State Government/Union Government. The Petitioner was relieved of his duties on October 15, 1981 (a.n.) and actually took up his foreign assignment on October 17, 1981. The initial period of deputation was two years, that is, from October 17, 1981 to October 16, 1983. However, at the request of the University of Garyounis, Faculty of Medicine (vide Annexure P-9), the deputation period of the Petitioner was extended by one year, that is, from October 17, 1983 to October 16, 1984 with the consent of the Petitioner under the notification dated November 7, 1983, Annexure P-12.

9.

xxx - xxx xxx 10. As earlier pointed out, the post of Director of Medical Education-cum-Principal actually fell vacant upon retirement of the incumbent on August 5, 1983 and on August 6, 1983, the second Respondent was appointed to officiate in the said post on ad hoc basis and as a purely temporary measure till further orders.

The Petitioner finally returned to India sometime in July 1984, on completion of his contract of foreign assignment about three months earlier than the actual termination of his deputation period. Upon return, he addressed four letters in quick succession to different authorities seeking permission to join duty in the post of Professor and Head of Department of Pharmacology and, in two of them, advancing a claim for being considered for appointment by selection in the post of Director of Medical Education-cum-Principal. On July 5, 1984, the Petitioner addressed a letter to the Secretary (Health and Family Welfare), Annexure P-13, stating that he had returned to India after completion of the contract and that he was prepared to join the College as soon as the State Government desired. He clarified that since his salary on foreign assignment was paid till August 1984, he would not draw any emoluments even if he was allowed to join earlier. On July 7, 1984, the Petitioner addressed a letter to the Chief Minister, Annexure P-14, stating that he had returned to India on completion of his foreign assignment and requesting that he being the senior-most Professor having a brilliant academic career and an international reputation in his own field, his claim for being selected under the Rules for the post of Director of Medical Education-cum-Principal be considered favourably. Annexed to the said letter was a copy of the bio-data of the Petitioner. On July 14, 1984, the Petitioner addressed a letter to the Secretary (Health and Family Welfare), Annexure P-17, reiterating more or less the same facts and advancing the same claim. A request was also made that the assessment record (confidential reports) for the period during which he rendered service on foreign assignment in Libya be obtained and placed before the selection committee. Copies of the bio-data and six testimonials from the persons with whom he had worked abroad were annexed to the letter for the consideration of the selection board. On July 15, 1984, the Petitioner addressed yet Anr. letter to the Secretary (Health and Family Welfare), Annexure P-15, more or less on similar lines and requesting for the issue of necessary orders permitting him to join duty in the post of Professor. A copy of the letter was endorsed to the Chief Secretary.

By a communication dated July 19, 1984 (Annexure P-16), the Petitioner was advised by the Under Secretary (Health) to join duty on September 1, 1984 in the post of Professor of Pharmacology, that being the post on which his lien was retained while he was on foreign assignment. Pursuant to the communication aforesaid the Petitioner actually joined duty on September 1, 1984.

At this stage it is pertinent to point out that even prior to his joining duty as aforesaid, the Petitioner had addressed a letter to the Secretary (Health and Family Welfare), on August 25, 1984, Annexure P-19, the relevant portion of which is extracted hereinbelow:

As desired, I shall join my duties at H. P. Medical College, Shimla, on 1st September 1984. However, I would like to inform that I am the seniormost Professor in the Medical College, Shimla and as such I should be'' given the charge of the post of Director-Principal in addition to my duties as Professor and Head of Pharmacology. According to the terms of my deputation my lien and seniority had to be maintained.

I shall be grateful if necessary orders in this regard are issued at an earliest.

(Underlining supplied)

On the day on which he joined duty, the Petitioner addressed yet Anr. letter to the Secretary (Health and Family Welfare), Annexure P-20, the relevant portion of which is extracted hereinbelow:

... As desired by the Government, I am resuming my duties as Professor and Head of Pharmacology from today the 1st September, 1984. However, I would once again request that my seniority and merit should not be ignored and I am appointed as Director-Principal in addition to my duties as Professor and Head of Pharmacology. Necessary orders regarding this may kindly be issued. (Underlining supplied)

Even after having resumed duty, the Petitioner addres sed two more letters of similar nature to the Secretary (Health and Family Welfare). On October 9, 1984, the Petitioner addressed a letter, Annexure P-21, in the course of which he, inter-alia, stated as follows:

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Sir, I want to request you once again that the Government in spite of assurances of holding DPC, at the earliest, have not done so, since August, 1983, and, even after my joining on 1-9-84, I have not been given my rightful claim and thus have been subjected to undue harassment.

(Underlining supplied)

In yet Anr. letter addressed on November 19, 1984, Annexure P-22, the Petitioner ventilated his grievance in no unmistakable terms in the following words:

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Even on my return from deputation, in spite of my representation, I was forced by the Government to join as Professor of Pharmacology vide letter No. Health (1) 147-80 dated 19-7-84, whereas per rules I should have been given the charge of DME-cum-Principal as I am senior to Dr. N.K. Vaidya. The ad hoc appointment of Dr. Vaidya cannot be allowed to continue indefinitely.

I have sent several representations under reference but till today neither I have been given the charge of the post nor a regular DPC has been held, even after two and half months of my joining. Sir, the supersession by Dr. N. K. Vaidya is causing me undue humiliation and harassment.

Further if this is continued, this may further adversely affect my career since my confidential report, if written by an officer who is junior to me in seniority, it is likely to be biased. As such, once again I am requesting you to either hold a regular DPC and do the justice or till that time I may be given the charge of DME-cum-Principal.

(Underlining supplied)

It is thus clear that since after his return to India on the completion of foreign assignment the Petitioner requested the authorities, on as many as about six occasions between July and November 1984 to consider his claim for regular appointment by way of promotion in the post of Director of Medical Education-cum-Principal on the basis of merit, experience and seniority and that he also made a grievance and pleaded, on as many as four occasions, that pending consideration of his aforesaid claim, he should be given ad hoc appointment or given the charge of the post of Director of Medical Education-cum-Principal vice the second Respondent in view of his seniority and merit and in order to spare him humiliation and embarrassment.

It is the case of the first Respondent that these various representations made by the Petitioner were duly considered and appropriate decisions were arrived at thereon by the competent authority from time to time. In the return dated April 22, 1985, filed by the Secretary, Health and Family Welfare, on behalf of the first Respondent, the following averments find place in that regard in paras 5 and 9:

... The request of the Petitioner could not be accepted as the ad hoc appointment of Dr. N.K.Vaidya, Professor of Preventive and Social Medicine, as Director of Medical Education-cwm-Principal, Medical College did not confer any right over the post to Respondent No. 2 pending appointment on regular basis. It was not considered proper or suitable to terminate the ad hoc arrangement ordered vide Notification dated 6-8-83 (copy at Annexure P-10) immediately on the return of the Petitioner from foreign assignment on 1-9-1984. In fact, the State Government was seized of the matter to convene a meeting of the Departmental Promotion Committee for considering the eligible Professors for appointment against the post of Director of Medical Education-cum-Principal, Medical College on regular basis. Without loosing much time, the meeting of the Departmental Promotion Committee was held on 27-9-1984, under the Chairmanship of the Chief Secretary to the Government of Himachai Pradesh. The said Departmental Promotion Committee considered the Annual Confidential Reports and other record of the three senior-most Professors including the Petitioner but found that none of the three senior-most Professors had the requisite merit, experience and administrative calibre for the post of Director of Medical Education-cwm-Principal, Medi-cal College. The said Committee recommended that steps be taken to locate a suitable candidate from the open market. The said recommendations of the Committee were accepted by the Government and accordingly a requisition was sent to the Himachai Pradesh Public Service Commission for making direct recruitment......The ad hoc appointment of Respondent No. 2 was made when the Petitioner was away on foreign assignment on 6-8-1983. Moreover the ad hoc appointment of Director of Medical Education-cum-Principal, Medical College does not confer any right to the post to Respondent No. 2. So it was not considered proper and appropriate to terminate the ad hoc arrangement immediately on the return of the Petitioner from his foreign assignment on 1-9-1984.

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No undue monetary benefit is sought to be given to Respondent No. 2 as alleged by the Petitioner. In fact on refixation of his pay on the post of Director of Medical Education-cum-Principal, Medical College in the State scale of pay from the UGC Grade of Professors, there is a reduction of Rs. 113/- per month in his pay.

(Underlining supplied)

In the supplementary affidavit dated May 7, 1985, filed on behalf of the first Respondent by the Deputy Secretary (Health and Family Welfare), the following averments having a bearing on this point find place:

... It is submitted that the ad hoc appointment of Respondent No. 2 was made when the Petitioner was away on foreign assignment on 6-8-1983. Moreover, the ad hoc appointment of Director of Medical Education-cww-Principal, Medical College does not c onfer any right on the post to Respondent No. 2. So it was not considered proper and appropriate to terminate the ad hoc arrangement immediately on the return of the Petitioner from foreign assignment on 1-9-1984 .....

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It is submitted that the present arrangement of ad hoc promotion of Respondent No. 2 has not been disturbed in order to maintain continuity till the appointment of regular Director of Medical Education-cum-Principal through the Public Service Commission, in the public interest.

We shall have an occasion to revert to the subject a little later in the course of this judgment. xxx xxx For the present, suffice it to say that the Petitioner was at no stage informed that his various representations had received due consideration, if any, at the hands of the competent authority.

He was all the while groping in the dark and still entertaining a genuine hope and belief that the grievances, which he was repeatedly voicing, would be redressed at the administrative level.

To resume the narration, the recommendation of the Departmental Promotion Committee referred to in the extracted portions of the return and in the supplementary affidavit, was duly accepted by the first Respondent on December 6, 1984 and a requisition was sent to the Commission (third Respondent) on December 19, 1984 for taking appropriate steps to fill up the post by direct recruitment. This was orally stated by the learned Advocate-General in the course of his submissions at the hearing of the petition. The Commission published an advertisement in the newspapers on March 7, 1985, Annexure P-25, inviting applications for the post of Director of Medical Education-cum-Principal. The candidates intending to compete for the post were advised to send their applications by April 6, 1985 (April 22, 1985 was notified as the last date for the candidates residing in Lahaul and Spiti District and Pangi Sub-Division of Chamba district).

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The Petitioner thereupon instituted the present petition on March 26, 1985 claiming several reliefs. In the petition prior to its amendment, the Petitioner had sought, inter-alia, the following reliefs: (i) quashing of the advertisement, Annexure P-25, advertising the post of Director of Medical Education-cum-Principal for appointment by direct recruitment; (ii) direction to the first Respondent to fill in the post by promotion from amongst the Professors on the basis of merit-cum-seniority by taking into consideration the relevant criteria; (iii) discontinuance of the ad hoc appointment of the second Respondent as Director, of Medical Education-cum-Principal and (iv) consequential direction to the first Respondent to appoint the Petitioner in the said post, as such, till regular appointment.

xxx xxx xxx

On April 24, 1985, the Petitioner instituted Civil Misc. Petition No. 740 of 1985 seeking permission to amend the petition by addition, inter alia, of paras 10 A, 10 Band I0C in the memo of original writ petition and by impleading the; Commission as the third Respondent in light of the facts disclosed in the return. The amendment was granted on the same day. xxx xxx

On Aprtl 30, 1985, Civil Misc. Petition No. 799 of 1985 was filed on behalf of the first Respondent disclosing that a decision had been taken to amend the Rules "to provide for administrative experience for direct recruitment" to the post of Director of Medical Education-cum-Principal and meanwhile to withdraw from the Commission the requisition for the said post. Since steps required to be taken for amending the Rules and for issuing fresh requisition and advertisement were likely to take sometime, three months time to file a return to the amended petition was prayed. The Court, thereupon, recorded the following order on May 1, 1985 on the main petition:

In view of the order of the date passed in C.M.P. No. 799 of 1985, the main grievance of the Petitioner does not require consideration at this stage. If and when the Recruitment Rules in question are amended and the proposal for direct recruitment is revived, the Petitioner will be at liberty to take appropriate measures in accordance with law to ventilate his grievance, if any, in that regard.

In view of the averments made in C.M.P. No. 799 of 85, it is possible that the ad-hoc appointment of the second Respondent as Director of Medical Education-cum-Principal may continue to be operative for some more period of time. Under the circumstances, the question relating to the legality and validity of the initial appointment of the said Respondent as Director of Medical Education-cum-Principal on officiating basis vide order Annexure-P-10 and the question relating to his continuance in the said post till today in such capacity and, may be, for some more period of time, requires examination in view of the plea raised in paragraph 9 and similar other paragraphs, if any, of the petition. A supplementary affidavit will be filed on behalf of the first Respondent specifically meeting with the said case within a period of one week from today. Along with such affidavit, the first Respondent will place on record the Rules/Orders/ Policy decision/Instructions, if any, governing ad-hoc/ officiating appointments pending regular appointments. The second Respondent will also be at liberty to file an affidavit in this regard within the same time limit.

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The Deputy Secretary (Health and Family Welfare) along with the affidavit has produced at Annexures A and B two circulars issued by the Department of Personnel of the State Government prescribing the procedure in regard to appointments on ad-hoc basis. Annexure-A is the circular letter dated July 11, 1973. Since the controversy between the parties centres mainly round the said circular, the text thereof is set out in extenso hereinbelow:

I am directed to say that ad-hoc appointments have to be made in various Departments either due to non-finalisation of recruitment rules or the seniority lists. Ad-hoc appointments have also to be made sometimes when the panel/select list has been exhausted and preparation of the panel/select list has to take some time. In accordance with the instructions contained in this Department''s letter number Apptt. 1-350/57, dated 14th January, 1970, ad-hoc appointments which were likely to continue for more than 3 months used to be made by convening a meeting of the Departmental Promotion Committee, though ad-hoc appointments likely to be continued for 3 months and less were to be made without convening a meeting of the Departmental Promotion Committee.

The matter in regard to the appropriate procedure to be adopted for making ad-hoc appointments has been engaging the attention of the Government for some time past. It has /low been decided, in consultation with the Himachal Pradesh Public Service Commission, and in supersession of all previous orders/ instructions that all ad-hoc appointments, whatever may be the consideration for making such ad-hoc appointments, should be made on the basis of seniority subject to rejection of unfit and barring those against whom vigilance cases are pending, irrespective of the duration of such ad-hoc appointments. This revised procedure may kindly be adopted with immediate effect. The adoption of this procedure, however, does not preclude consultation with the Public Service Commission wherever necessary.

Annexure-B is the circular letter dated April 23, 1985 which makes certain clarifications in regard to the procedure required to be followed while making ad-hoc appointments under certain circumstances. The circular reads as follows:

I am directed to refer to this Department''s letter No. 1-350/57-DP (Apptt.) Vol. III dated the 11th July,. 1973 according to which all ad-hoc appointments (whatever may be the consideration for making such ad-hoc appointments) should be made on the basis of seniority subject to rejection of the unfit. Now it has been observed that in certain R & P Rules either more than one feeder category for promotion to the next higher posts have been laid down or specific percentages for different qualification holders have been given. For example, the seniority list of Assistant Engineers in P. W. D. includes Graduate Engineers and Diploma holders. Though, their seniority list is combined yet in the R&P Rules for promotion to the posts of Executive Engineers, different percentages have been fixed for Degree holders and Diploma holder Asstt. Engineers.

It has been decided that in such cases, while making ad-hoc appointments, the provisions contained in R&P Rules shall be borne in mind and that such ad-hoc appointments will be made in conformity with such rules.

The above instructions should be strictly adhered to.

At this stage it would be pertinent to point out that the circular, Annexure A, dated July 11, 1973, held the field when the second Respondent was appointed to officiate as the Director of Medical Education-cum-Principal purely as a tem porary measure on ad-hoc basis on August 6, 1983. The prc- cedure/norms therein prescribed for making ad-hoc appoint ments continued to apply without any modification till April 23, 1985, when the circular, Annexure-B, came to be issued, adding a sort of a rider to the contents of the previous circular. The legality and validity of the ad-hoc appointment of the second Respondent and/or the continuance thereof will have to be judged in the said light.

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As seen earlier, Rule 9, sub-rule (8) clause (ii) of the Rules, which governs recruitment to the post of Principal, does not provide for more than one feeder category nor does it lay down a specific percentage for promotion of persons holding different qualifications. The circular, Annexure B, will not, therefore, be attracted if the said rule continues to apply to the recruitment to the post of Director of Medical Education-cum-Principal. Even if the said rule does not apply, in the absence of any rule governing such recruitment, the circular, Annexure B, would not still apply. It is thus clear that the circular, Annexure-B, has no bearing on the determination of the controversy herein concerning the ad-hoc appointment and continuance of such ad-hoc appointment in the case of the second Respondent.

xxx xxx xxx

The precise submission on behalf of the Petitioner was that: (1) he is the seniormost amongst the eleven Professors (including the second Respondent) having five years experience in the post of Professor and satisfies all the other qualifications for appointment to the post of Principal, Medical College, as prescribed in the Rules, (2) he has a distinguished record as an academician and teacher, (3) he has an excellent service record and there is no vigilance case pending against him, (4) he has, in the past, held the additional charge of the post of Director of Medical Education-cum-Principal and has also looked after the routine work of the said post in the absence of the incumbent of the post, (5) in view of the policy decision governing ad-hoc appointments, Annexures A and B to the supplementary affidavit filed on behalf of the first Respondent, he has a legitimate claim to be appointed in the post of Director of Medical Education-cum-Principal on ad-hoc basis, in pre ference to the second Respondent, on and with effect from the date on which he resumed duty, that is, on and from September 1, 1984, (6) the claim was repeatedly made accordingly and it could not have been ignored merely because the second Respondent was appointed to officiate on ad-hoc basis as and by way of temporary measure while he was away on foreign assignment, (7) the first Respondent was under a legal duty and obligation to reconsider the matter on his resumption of duty and to consider his claim in that regard in accordance with law and in light of the policy decision, Annexures-A and B, (8) the claim was, however, not considered and, even if consi dered, it was rejected on grounds which are wholly extraneous, irrelevant and irrational and in ignorance of factors which are relevant and material, (9) the continued occupation of the post in question by the second Respondent in ad-hoc capacity since after September 1, 1984, is not only violative of the legal and constitutional right of consideration of the Petitioner for appointment to the said post in such capacity but it is also gravely injurious to the Petitioner, inasmuch as : (a) the second Respondent gains an unfair advantage over him by acquiring administrative experience in the post for a long period of time by his continued occupation thereof which is a factor that might weigh heavily against the Petitioner and in favour of the second Respondent at the time of regular appointment having regard to the requirement of "administrative capabilitie " which finds place in the Rules in so far as appointment by promotion to the post of Principal is concerned and the requirement of "administrative experience" which is intended to be introduced by way of amendment in the eligibility qualifications in the event of direct recruitment to the post and (b) the second Respondent, who is junior to the Petitioner and who is a rival candidate for the post, is thereby enabled to write the annual confidential reports of the Petitioner in his capacity as the Director of Medical Education-cum-Principal and (10) the first Respondent is continuing the ad- oc appointment of the second Respondent only with a view to giving him undue benefit, as such, and is thereby acting in fraud of the power enabling it to make ad-hoc appointments.

The challenge levelled on behalf of the Petitioner is sought to be met on behalf of the first Respondent on the following grounds: (1) the Petitioner has no right to claim ad-hoc appointment nor is the second Respondent entitled to claim any right to the post in preference to the Petitioner merely by reason of the ad-hoc appointment and, under such circumstances, no legal or constitutional right of the Petitioner is violated and no relief can be claimed by him in writ jurisdiction, (2) the circulars, Annexures A and B to the supplementary affidavit, apply only in cases where ad-hoc appointments are to be made in posts to which regular recruitment is to take place by way of promotion and since, in the instant case, the post in question is to be filled in by direct recruitment, the Petitioner cannot found any claim on the basis of the policy decision embodied in those circulars, (3) even if the circulars apply, the Petitioner�s claim for ad-hoc promotion vice the second Respondent has been duly considered and rejected on valid grounds by the competent authority, (4) even assuming that there has been a departure from policy decision governing ad-hoc appointments, such departure can be legitimately made on rational grounds and it has in fact been validly so made on the present occasion, and (5) in any case, the Petitioner should be denied any relief in the exercise of discretionary jurisdiction in view of the delay and laches on his part in invoking the writ jurisdiction and in view of the impending regular appointment.

Mr. Indar Singh, learned Counsel for the second Respondent, has sought to meet the challenge on two grounds only; first, there is no conscious discrimination against the Petitioner and in favour of the second Respondent so as to give rise to a cause of action as well as to a right to the relief prayed and, secondly, in view of the affidavit-in-reply, Annexure R/2-J, filed by the Chief Secretary to the State Government in Civil Wise. Petition No. 452 of 1985 in Civil Writ Petition No. 245 of 1983 and companion matters, the circulars, Annexures-A and B to the supplementary affidavit filed on behalf of the first Respondent, stand superseded and, as such, all ad-hoc appointments are now required to be made on the basis of the extant recruitment and promotion rules governing the post in question and, therefore, the Petitioner having been considered and found not fit for promotion on regular basis, he cannot claim the relief of being appointed on promotion on ad-hoc basis vice the second Respondent pending direct recruitment.

In order to appreciate the validity of these rival contentions, the legal position governing the making of ad-hoc appointments and the right to claim relief in writ jurisdiction in respect of such appointments requires to be considered at this stage.

It cannot be possibly disputed that even an od-hoc jappointment to a post is an appointment to an office, howsoever tenuous its character may be. Such ad-hoc appointment authorises the appointee to occupy th e post and to perform the functions and to discharge the duties and to draw the emoluments attached to the post. In case of ad-hoc appointment to any post by way of promotion, there is also the conferment of a higher status or position. When such an appointment is made to any office under the State, Articles 14 and 16 will undoubtedly have an impact. Article 16, sub-Article (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is settled law that Article 16 is only an incident of the application of the concept of equality enshrined in Article 14. Article 16, sub-Articles (1) and (2), really give effect to the equality before law guaranted by Article 14 and to the prohibition of discrimination guaranted by Article 15(1). These three provisions form part of the same constitutional code of guarantees and supplement each other and they give effect to the doctrine of equality in the matter of appointment and promotion. In other words, Article 16 guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. (See : The General Manager, Southern Railway Vs. Rangachari, , State of Mysore and Another Vs. P. Narasing Rao, , and C.A. Rajendran Vs. Union of India (UOI) and Others, . In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article, it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. Looked at from this angle, there is no reason to exclude the applicability of Article 16 in matters relating to ad-hoc employment or appointment to any office under the State. Any arbitrariness, unfairness or inequality of treatment in the matter of ad-hoc employment or appointment, including an appointment by way of ad-hoc promotion, to any office under the State would, therefore, give rise to a legitimate challenge enforceable in writ jurisdiction on the ground of the breach of Article 16. If there are any policy decisions/executive instructions governing ad-hoc appointments and there is any arbitrary or irrational departure therefrom on the part of the State, the challenge can be justifiably based on the ground that such act impinges upon the guarantee of equality of treatment enshrined in Article 16. If there is a statutory enactment regulating such appointments and there is a breach thereof, an additional ground of challenge based on the infringement of a legal right would also be available. This much on principle.

In E.P. Royappa Vs. State of Tamil Nadu and Another, , the Petitioner, an IAS officer, challenged his order of transfer on several grounds, including the violation of Article 14. There are direct and pertinent observations in that decision on the issue under consideration in the concurring judgment of Bhagwati, J. Those observations at pages 583 and 584 may be quoted with advantage:

Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new, classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in ah matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so, would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be ''cribbed, cabined and confined'' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative feason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and that is hit by Articles 14 and 16. Malafide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.

It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the Petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Article 311 but not to Articles 14 and 16.

(Underlining supplied)

The above-quoted observations, in our opinion, furnish a complete answer to the plea that since an ad-hoc appointment does not confer any right to the post, the protection of Articles 14 and 16 is not available and no enforceable right comes into existence in relation to such appointment. The principle laid down in the decision affirms the legal position that if the State action concerning an appointment to a post, which a public servant has no right to hold, is not based on valid and relevant principle applicable alike to all similarly situate and is guided by extraneous or irrelevant considerations, there would be denial of equality within the meaning of Articles 14 and 16. The public servant affected will be entitled, under such circumstances, to complain and seek relief on the ground that he has been arbitrarily or unfairly treated or subjected to malafide exercise of power by the State machine. It is no answer to the charge of infringement of Articles 14 and 16 to say then that the public servant has no right to the post and that the appointment was merely on an officiating or ad-hoc basis. True it is that in'' E. P. Royappa''s case the observations are made in relation to an "officiating post". The distinction, if any, sought to be made on that ground, to our mind, is based on no real difference. The ratio of the decision is that even a person, who has no right to hold a post, is entitled to the protection of Articles 14 and 16. It makes little difference whether the situation in which there is no right to hold the post arises on account of the person holding the post in an ad-hoc or officiating capacity.

It is pertinent to point out in this connection that in the Full Bench decision of the Punjab and Haryana High Court in S.K. Verma and Ors. v. State of Punjab and Ors. 1979 (2) SLR 164, it has been held that no distinction can reasonably be made even as between an ad-hoc and a temporary employee whose services are liable to be terminated without notice. xxx xxx xxx

The law reports are replete with* cases where the legality or otherwise of ad-hoc appointments has been examined with reference to the statutory provisions governing such appointments and/or in the context of Articles 14 and 16.

37 to 40. xxx xxx xxx

(Editor''s note :

TheHon''ble Court referred to the decisions in Ramesh Chaiid v. DESU, ILR 1970 (1) Delhi 310; O.P. Gupta v. Municipal Corporation of Delhi and or. 1973 (1) SLR 209; and Mallinath Jain v. Municipal Corporation of Delhi and Ors. 1973 (1) SLR 413).

These cases illustrate that the protection of Articles 14 and 16 has been extended even in cases of ad-hoc appointments. The cases are illustrative and not exhaustive. However, it is no use multiplying authorities in view of the fact that the question under consideration stands concluded, on principle, by the decision in E.P. Royappa''s case. Apparently, therefore, it is too late in the day now to contend that since an ad-hoc appointment does not confer a right to the post, even if a public servant has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State authorities in connection with such appointment, no actionable claim arises which can be enforced in writ jurisdiction. In our opinion, therefore, even in respect of ad-hoc appointments, an aggrieved public servant can invoke the writ jurisdiction in any of the following three situations: (1) where there is a statutory enactment governing ad-hoc appointments and any action is taken concerning such appointment which is in breach of such enactment, (2) where there is no statutory enactment but there is a policy decision or an executive order governing ad-hoc appointments and any action is taken concerning such appointment by making an arbitrary, irrational or fanciful departure from such policy or an executive order, and (3) even where there is no statutory enactment or policy decision or an executive order governing ad-hoc appointments but any action is taken concerning such appointment without regard to valid and relevant principles applicable alike to all similarly situate and guided by extraneous or irrelevant considerations or founded on malafide exercise or abuse of power. Any such action can be challenged in writ jurisdiction on the ground of statutory violation and/or infringement of Articles 14 and 16, as the case may be.

The learned Advocate-General, however, placed strong reliance on the decision in A.N. Bhoil v. Union of India etc. ILR 1973 HP 523, to buttress the submission that since anad-hoc appointment is made in the exigencies of service and does not vest any right in the appointee, it is not necessary to consider all the eligible officers and that no writ can issue directing the administration to consider the case of an officer, who, though eligible, was left out of consideration. BhoWs case was initially heard by a Division Bench consisting of R.S. Pathak, C.J., (as he then was) and D. B. Lal, J. Upon a difference having arisen between the learned Judges of the Division Bench in respect of certain matters in issue, the points of difference were referred to a third Judge, Chet Ram Thakur, J. The Petitioner in that case was holding the post of Additional District and Sessions Judge on ad-hoc basis and by a notification issued on November 26, 1969, the High Court posted him to his substantive post of Subordinate Judge and simultaneously requested the State Government to pass orders of reversion. Prior thereto, by a notification dated April 8, 1969, Shri Kedar Ishwar and Shri T. R. Handa were appointed to officiate as District and Sessions Judge and Additional District and Sessions Judge respectively. The Petitioner, inter alia, challenged the aforesaid orders of "reversion" and officiating appointments. One of the contentions urged on behalf of the Petitioner was that while recommending Shri Kedar Ishwar and Shri T. R. Handa for promotion, the High Court had failed to consider the cases of other eligible Subordinate Judges, including himself and that, therefore, Articles 14 and 16 of the Constitution were contravened. Pathak, C.J., inter alia, found that: (1) the promotions and reversions were, as a matter of fact, only tentative pending the finalisation of the seniority lists and that they were of an ad-hoc nature and that they conferred no right on the officers promoted nor any liability on those reverted, until the cases were reviewed after the determination of the final seniority lists, (2) the High Court had not made a comparative appraisal of the merits of all eligible officers while ordering promotions and that that was the uniform pattern followed throughout including when the Petitioner was himself given ad-hoc promotion earlier, (3) legitimate criteria were, however, adopted in making appointments of Shri Kedar Ishwar and Shri T. R. Handa on officiating basis, (4) since the appointments were not in normal course but on account of exigencies of service, it was not obligatory to follow the usual procedure of a comparative appraisal of the merits of all the eligible officers and that since there was no such obligation, Articles 14 and 16 of the Constitution were not contravened, (5) the Petitioner himself was holding an ad-hoc appointment as Additional District and Sessions Judge and he had, therefore, no right to continue in the post and it was, therefore, not open to him to complain of the contravention of Articles 14 and 16, (6) the Petitioner could not, however, have been posted as Subordinate Judge by the High Court even after directing him to hand over the charge of the post of Additional District and Sessions Judge since the State Government had not yet passed an order reverting the Petitioner to his substantive grade of Subordinate Judge. In light of the findings aforesaid, Pathak, C. J., held that: (1) the Petitioner was not entitled to the relief relating to the quashing of the ad-hoc appointments of Shri Kedar Ishwar and Shri T.R. Handa; (2) the Petitioner was also not entitled to the relief relating to the quashing the order of his "reversion" because no such order was, in fact, passed.by the competent authority; and (3) the only relief to which the Petitioner was entitled was the quashing of the order dated November 26, 1969 posting the Petitioner as Subordinate Judge and consequential reliefs flowing therefrom so far as admissible under the rules. D.B. Lai, J., disagreed with Pathak, C.J., and held that on the facts and in the circumstances of the case, the reversion of the Petitioner, which, in substance, led to the denial of promotion, was clearly discriminatory. Under the circumstances, Articles 14 arid 16 of the Constitution were clearly attracted and the Petitioner was entitled to appropriate relief. The reliefs which the learned Judge granted to the Petitioner were: (1) that the case of the Petitioner for eligibility for promotion as District Judge be decided by the competent authority on the administrative side and in case he was found eligible on merits as on April 8, 1969,fhat is, the day on which Shri Kedar Ishwar and Shri T. R. Handa were given ad-hoc promotions, the Petitioner shall be given all the due benefits with effect from that day; and (2) thai the order of reversion dated November 26, 1969 made against the Petitioner be quashed. Chet Ram Thakur, J., agreed on all the points with Pathak, CJ. The learned Judge proceeded to consider the case on the basis that the appointment of Shri Kedar Ishwar and Shri T. R. Handa were ad-hoc in nature and that they were valid since a legitimate criteria was adopted in making those appointments. The learned Judge further held that since all the promotions were ad-hoc, it was not necessary to consider all the eligible officers and that in the facts and circumstances of the case, there was no justification for the issuance of a direction to the competent authority on the administrative side to consider the case of the Petitioner. As regards the "reversion" of the Petitioner the learned Judge held that since his appointment as Additional District and Sessions Judge was of an ad-hoc nature, he had no vested right to the post and that his posting to a lower rank did not on that ground alone contravene the provisions of Articles 14 and 16. However, in the absence of a valid reversion order the only relief to which the Petitioner was held entitled was to the pay and allowances as Additional District and Sessions Judge for the period for which the Petitioner, after his posting order by the High Court as Subordinate Judge, continued to function as such till his., subsequent posting as Additional District and Sessions Judge. On the view taken by the majority, the writ petition was allowed only insofar as the order dated November 26, 1969 posting the Petitioner as Subordinate Judge was concerned. The said order was quashed and the Petitioner was held entitled to the consequential reliefs admissible to him under the rules.

We are not able to persuade ourselves to read this decision as laying down an absolute proposition that in no case and under no circumstances an ad-hoc appointment can be challenged as violative of Articles 14 and 16. The true ratio of the decision is that an od-hoc appointment would not be invalid merely because all eligible persons were not considered provided on the facts and in the circumstances of the case, legitimate criteria was applied in selecting persons for ad-hoc appointments. Be it stated that in BhoiVs case, there were no statutory rules nor any policy decision governing ad-hoc appointments and that the impugned ad-hoc appointments were found to have been made following relevant and rational norms. It is difficult to appreciate how, under such circumstances, certain observations made in the judgments of Pathak, C.J., and Chet Ram Thakur, J., can be read torn out of context and pressed into service to found an argument that the decision can be read as laying down that even though there may be a clear violation of a statutory enactment or policy decision in the making of an ad-hoc appointment or that even if such appointment is made without due regard to valid and relevant principles applicable alike to all similarly situate, there would be no infringement of Articles 14 and 16. It would not be out of place to mention also that in view of the decision in E.P. Royappt''s case, certain observations made in BhoiVs case will have to be read as confined to the facts of that case as well as conformably to the law declared in E. P. Royappas case.

It would not be out of place to consider here the question of the binding nature, if any, of a policy decision or an executive order and the consequences flowing from the breach, if any, thereof. Be it stated that the policy decision embodied in Annexures A and B to the supplementary affidavit filed on behalf of the first Respondent, which prescribes norms or procedure governing ad-hoc appointments, is indeed a well-conceived measure designed at securing uniformity and ensuring equal treatment to all who are similarly situate whenever the necessity of making ad-hoc appointments arises in the exigencies of public service. Once a policy decision is accordingly arrived at, it becomes imperative for all concerned to act in conformity therewith whenever occasions for ad-hoc appointments arise. No departure at sweet will can be made therefrom and the departure, if any, in rare and exceptional cases for compelling reasons, if challenged, will require to be justified on rational and relevant grounds based on objective data. This is so because in a society governed by the rule of law, certain basic principles must be observed. Enactments or orders governing rights and duties of citizens including public servants must not only be open and adequately published but they should also be relatively stable and they must be followed. F.A. Hayek''s definition of the rule of law, which is relevant, may be quoted in this connection:

... this means that Government in all its actions is bound by rules fixed and announced before hand-rules which make it possible to foresee with fair certainty how the authority will use its powers in given circumstances and to plan one''s individual affairs on the basis of this knowledge.

(See : "The Road to Serfdom", page 54).

Tn this connection it would be worthwhile to recall the observations made by the Supreme Court in S.G. Jaisinghani Vs. Union of India (UOI) and Others, at page 1431. It was there pointed out that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered. It is in this sense that the rule of Jaw may be said to be the sworn enemy of caprice. Discretion means sound discretion guided by law. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful. It would appear from the above observations that predictability even of the administrative decision is one of the essentials of rule of law which is the high policy of the Constitution embodied in Articles 14 and 16. It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those; standards on pain of invalidation of an act in violation of them (See: Ramana Dayaram Shetty Vs. International Airport Authority of India and Others,

It would also be convenient at this stage to dispose of the contention advanced by the learned Advocate-General on behalf of the first Respondent that the policy decision regarding ad hoc promotions, Annexures-A and B to the supplementary affidavit filed on behalf of the said Respondent, does not govern ad-hoc appointments to posts which are decided to be filled in regularly on the basis of direct recruitment. We cannot help observing that the argument is wholly incomprehensible. The circulars do not in terms provide for their inapplicability to such situation. The true scope and effect of those circulars has already been examined in the earlier part of this judgment. As there observed, it is manifestly clear that the circular Annexure-A embodies a policy decision in relation to all ad-hoc appointments, irrespective of the underlying considerations or duration of such appointments and that, accordingly, all such appointments must be made on the basis of seniority subject to two exceptions, unfitness and the pen-dency of vigilance case. The circular, Annexure-B, modifies the previous circular by engrafting a further condition which is applicable only in two cases, namely, when under the relevant recruitment rules, promotion is to be made from more than one feeder category or on the basis of specific percentages prescribed for persons holding different qualifications. In such cases, while making ad-hoc appointments, the relevant provisions of the recruitment rules must also be kept in mind in addition to requirements laid down in Annexure-A. In our opinion, therefore, the submission merits rejection.

Having thus cleared the ground, let us now proceed to consider the validity or otherwise of precise challenge levelled on behalf of the Petitioner in the present case.

47� It is not in dispute that the Petitioner is the seniormost Professor and that the second Respondent is next below him in seniority. In is also not in dispute that the Petitioner and me second Respondent both satisfy the criterion, it" any, of five years'' experience and that both of them also satisfy all the other eligibility qualifications prescribed in the Rules for being appointed on regular basis to the post of the Principal of the College. It is further not in dispute that when the second Respondent was appointed to omciate on ad-noc basis as the Director of Medical Education-cum-Principal on August 6, 1983, the Petitioner was not actually working as professor but was on deputation on foreign assignment. At the relevant time, therefore, the second Respondent, being the next senior- most Professor, his appointment to officiate as the Director of Medical Education-cwm-Principal on ad-hoc basis till further orders may not be regarded as violating the policy decision embodied in Annexure A and has having been made without due consideration of the legitimate claim of the Petitioner. The Petitioner, while he was on a short visit to India in the month of July, 1983, had himself conveyed to the Secretary, Health and Family Welfare, in his letter dated July 9, 1983, Annexure P-11, that while he should be considered for regular appoint ment in the post of Director of Medical Education-cwm-Principal, even though he was serving on deputation on foreign assign ment, he would have no objection if "some interim arrangement is to be made ......on temporary basis till my return from

Libya". Advisedly, therefore, at the hearing of the writ petition, the challenge is confined only to the continuance of the second Respondent in the post on and with effect from the date the Petitioner resumed the charge of the post of Professor and Head of.Department of Pharmacology, that is, on and from September 1, 1984. Under the circumstances, the appointment of the second Respondent to officiate on ad-hoc basis in the post of Director of Medical Education-cwm-Principal made on August 6, 1983 and his continuance as such in the said post till August 31, 1984, cannot be regarded as illegal or invalid.

In the earlier part of the judgment we have set out in extecso the repeated representations made by the Petitioner, before and after he resumed duty, to be considered for being appointed as Director of Medical Education-cwm-Principal on ad-hoc basis vice the second Respondent. Certain facts which have a bearing on the legitimacy of the claim may be recapitulated. Under the policy decision governing ad-hoc appointment''s, all such appointments are required to be made on the basis of seniority subject to rejection of unfit and those against whom vigilance cases are pending. The circular would ordinarily apply not only when the ad-hoc appointment is initially made but also during the currency of such appointment. ''The ad-hoc appointment of the second Respondent as Director of Medical �ducation-cuw-Principal did not confer any right on him to continue to occupy the said post till regular appointment was made. Apart from the fact that the appointment was in an officiating/ad-/hoc capacity and as a purely temporary measure, the order of appointment, Annexure P-10, clearly stipulated that such appointment would continue "till further orders". Under the circumstances, upon the resumption of duty, the Petitioner was well within his right in invoking in aid the policy decision and in claiming ad-hoc appointment vice the second Respondent since he was senior to him and ostensibly satisfied all other conditions governing such appointment. The fact that the regular appointment was not possible in very near future and that the ad-hoc appointment may have to continue for quite some time could not have been unknown to the first Respondent since the Departmental Promotion Committee had not met till September 27, 1984 and, even after it had met, the recommendation which it made was for direct recruitment to the post and the procedure required to be followed for direct recruitment ordinarily takes a considerable interval of time. It could not also have been unknown to the first Respondent that the occupation of the post of Director of Medical Education-CMm-Prin-cipal by any incumbent over a length of time even in ad-hoc capacity would give him considerable weightage so far as the factor of administrative experience or capabilities is concerned. Besides, so far as the Petitioner and second Respondent are concerned, the continuance of the latter in the post of Director of Medical Education-cwra-Principal was also creating an embarrassing and piquant situation since it would enable him to write the confidential reports of the Petitioner although both would ultimately be competitors for the post in question at the regular recruitment. Under the circumstances, and in view of the changed circumstances, and in light of the policy decision reflected in Annexure A, the first Respondent was duty bound to consider the representations of the Petitioner for ad-hoc appointment vice the second Respondent on and with effect from the date of the resumption of his duty.

The questions which must be then answered are whether (1) the representations of the Petitioner received consideration at the hands of the competent authority and, (2) if so, whether the decision if any, adverse to the Petitioner in regard to his claim is founded on relevant and material considerations or extraneous or irrelevant factors.

The relevant portions from the return and supplementary affidavit filed on behalf of the first Respondent have been extracted hereinabove. The return filed by the Secretary, Health and Family Welfare, gives an impr. ssion that the representations werrc duly considered inasmuch as it is found stated therein that the request of the Petitioner could not be "accepted" as the ad-hoc appointment of the second Respondent did not confer any right upon him to the post in question and that it was, therefore, not "considered" proper or suitable to terminate the ad-hoc arrangement already made. The words "accepted" and "considered" are words which clearly point in the direction of the representations having been duly considered on merits and rejected on the grounds stated. In the supplementary affidavit filed on behalf of the first Respondent by the Deputy Secretary (Health and Family Welfare), the averments are to the effect that the ad-hoc promotion of the second Respondent was not disturbed in order to maintain continuity in the public interest till regular appointment was made. On behalf of the first Respondent, interdepartmental correspondence, which took place between the Health and the Family Welfare Department and the Personnel Department in connection with one of the representations of the Petitioner, namely, the representation dated January 19, 1984, Annexure P-22, has also been placed on record. At Annexure RB is a let er dated December 10, 1984, addressed by the Deputy Secretary (Health) to the Under Secretary (Personnel) forwarding therewith the representation, Annexure P-22, with a request "to intimate the present position of the case regarding promotion to the post of Director of Medical Education-cum-Principal". The Commissioner-cum-Secretary (Personnel) wrote back to the Commissioner-cum-Secretary (Health) on January 14, 1985, Annexure RAA, stating that the representation might be examined and necessary action thereon be taken in the Department of Health and Family Welfare. The aforesaid material on record indicated, on one hand, that the representation(s) of the Petitioner made from time to time were duly considered on merits and rejected on the grounds set out in the return/supplementary affidavit. On the other hand, the latest representation dated November 19, 1984, Annexure P-22, on the same subject matter, appeared to have remained pending for consideration till at least the middle of January, 1985. Besides, there was the glaring fact that the Petitioner was at no stage apprised of the decisions taken on his various representations. Against the aforesaid background and in the absence of all the material particulars bearing upon the consideration of and decisions recorded on the representations made from time to time, the learned Advocate General, at our suggestion, fairly placed before the Court the relevant files on which the representations were procured and gave access to the relevant portions of those files to the learned Counsel appearing on behalf of the Petitioner and the second Respondent. In doing so, the learned Advocate-General acted correctly in light of the decision in S.P. Gupta Vs. President of India and Others, which lays down the principle that disclosure of information in regard to the functioning of Government must be the rule and secrecy and exception justified only where the strictest requirement of public interest so demands. Having perused the relevant record, we are left with a clear feeling that, in fact, there has not been a due consideration on merits in accordance with law of the several, representations made by the Petitioner in regard to the subject-matter.

It will be recalled that out of the several representations made by the Petitioner, four directly laid a claim to ad-hoc appointment in the post of Director of Medical Education-cum-Principal and those four representations were Annexure P-19, Annexure P-20, Annexure P-21 and Annexure P-22. Those four representations were addressed on August 25, 1983, September 1,1984, October 9, 1984 and November 19, 1984 respectively. The first two representations, Annexure P-19 and P-20, are seen to have been dealt with jointly in the Health Department itself on September 4/5, 1984. Notes 100 to 102 summarise the substance of the representations and seek orders "whether the Department of Personnel may be asked to hold the DPC early and whether they may also be requested to consider the request of Dr. Bhargava, being senior-most for appointment as Director-Principal on temporary basis till the post of Director-Principal is filled by regular DPC and orders are issued by the Department of Personnel". Note 103 is recorded by the Secretary, Health and Family Welfare. It recites that the question was discussed with the Minister of State for Health and directs that the Department of Personnel be requested to convene the meeting of the Departmental Promotion Committee at the earliest and that, meanwhile, it might be ensured that all the necessary papers which would be required by the Departmental Promotion Committee are completed. A further direction was given that the representation made by Dr. R.D. Sharma be also processed and decided upon. The third representation Annexure P-21 is seen to have been processed at Notes 115 and 116, recorded on November 2, 1984. The noting indicates that the Private Secretary to the Deputy Minister for Health had desired the Department to offer comments on the said representation. The comments offered were that the relevant papers with regard to the Departmental Promotion Committee had already been despatched to the Department of Personnel, that the Departmental Promotion Committee had fixed/held its meeting but the result was still awaited and that the earlier representations of the Petitioner were already considered and the decision recorded on those representations was to await the outcome of the Departmental Promotion Committee proceedings. The last representation dated November 19, 1984, Annexure P-22, is seen to have been processed initially at Note 120 recorded on December 6, 1984. The office noting shows that the Private Secretary to the Chief Minister had forwarded the said representation to the Health Department for comments. According to the note, the papers of all eligible officers were sent to the Department of Personnel for holding the meeting of the Departmental Promotion Committee and the Departmental Promotion Committee meeting had been already held and the file was submitted to the Chief Minister. Orders were solicited whether the representation should still be forwarded to the Department of Personnel. The proposal with regard to the forwarding of the representation to the Department of Personnel appears to have been approved by the Secretary, Health and Family Welfare, on the same day. Consequently, the Deputy Secretary, Health and Family Welfare, addressed the letter, Annexure RBB, on December 10, 1984 to the Under Secretary, Personnel, forwarding the representation and reply to the said communication was sent by the Commissioner-cum-Secretary, Personnel to the Commissioner-cum-Secretary, Health on January 14, 1985, Annexure RAA. Reference has'' been already made to both these communications a little earlier in the course of this judgment. Pursuant to the communication, Annexure RAA, the representation is seen to have been processed in the Department of Health in a separate file between January 19 and January 26, 1985 at different levels. The noting at the lowest level is that the Department of Personnel had intimated that a meeting of the Departmental Promotion Committee was held but none was found eligible and that a requisition was sent to the Commission for filling the post by direct recruitment. Orders were solicited for further action. At the next level, attention was drawn to the orders passed on the previous representations of the Petitioner in the separate file. The case was then submitted at the ministerial level for information. This is the entire history of the processing of the four representations made by the Petitioner directly concerning his claim for ad-hoc appointments.

Against the aforesaid background, it is difficult for us to accept the version set out in the return filed by the Secretary, Health and Family Welfare, that the various representations of the Petitioner could not be "accepted" and that it was not "considered" proper or suitable to terminate the ad-hoc arrangement immediately on the return of the Petitioner from his foregn assignment, since the ad-hoc appointment conferred no right on the second Respondent. It is also not possible to accept the iversion set out in the supplementary affidavit filed by the Deputy Secretary, Health and Family Welfare, that the existing arrangement was not disturbed in order to maintain continuity in the public interest till regular appointment was made. If it is intended to be conveyed by these versions that there was a due consideration on merits in accordance with law of the various representations made by the Petitioner, and its rejection on the grounds aforesaid, we are constrained to observe that the version is not correct. The sum and substance of the notings above-referred made on different occasions at different levels leads to one and one conclusion only, namely, that the various representations were not considered on merits in accordance with law but were summarily disposed of for the reasons, as applicable from time to time, to the effect that: (1) the meeting of the Departmental Promotion Committee was to be held or was held and that it would be proper to await the result of its deliberations; and (2) the Departmental Promotion Committee had recommended to fill up the posts by direct recruitment and that, consequentially, a requisition was sent to the Commission for advertising the post. These are the only considerations which are shown to have weighed in dealing with those representations. And this is despite the reference received back from the Department of Personnel as late as on January 14, 1985 with a request that the representation dated November 19, 1984, Annexure-P-22, be examined and necessary action taken thereon in the Department of Health. The mind of the competent authority is not shown to have been applied either to the several relevant factors bearing on the claim of the Petitioner advanced in the representations or to the norms/ guidelines laid down in the policy decision governing ad-hoc appointments embodied in Annexure-A. It is not found recorded anywhere that the representation was rejected after due consideration in light of all the material factors on the ground either that since the ad-hoc appointment did not confer any right upon the second Respondent in respect of the post in question, the termination of such appointment was not considered proper or appropriate, or that the ad-hoc appointment was not disturbed in order to maintain continuity in public interest till the regular appointment was made. As earlier pointed out, the return and the supplementary affidavit are thus shown to be not reflecting the correct and faithful version with regard to the decisions taken from time to time on the various representations of the Petitioner. It is expected of officers of such high rank as Secretary and Deputy Secretary to the Government to be more precise and accurate while filing returns/affidavits in the course of judicial proceedings. The tendency, if any, to put one''s own gloss on the record and to file returns/affidavits in that light must be deprecated in no uncertain terms since it may conceivably mislead the Court and result in miscarriage of justice. The Court would like to administer a caution that in future it would expect returns/affidavits based on record to be made more precisely and accurately so that the correct version is placed on the record of the Court.

Now, there is no manner of doubt that having regard to the extant policy decision governing ad-hoc appointments, the Petitioner had a legitimate claim to be considered for ad-hoc appointment on resumption of duty. He satisfied all the eligibility conditions for appointment to the post of Principal, if those conditions applied. He was senior to the second Respondent. It is not the case even now that he was otherwise not qualified or that he was unfit or that there was a vigilance case against him. In view of the fact that the Departmental Promotion Committee had not met till September 27, 1984 and that even after its meeting the recommendation which it made was for direct recruitment which would have inevitably entailed delay in regular appointment, it was essential for the competent authority to have considered on merits the various representations made from time to time by the Petitioner. The fact that the second Respondent was adding to the weightage in his favour from day to day by continuing to occupy the post in ad-hoc capacity, although the Petitioner had a legitimate claim to be considered therefore in preference to him, could not possibly have been overlooked. Under such circumstances, the Petitioner was being clearly discriminated against by non-consideration of his case in light of the policy decision and the surrounding circumstances. If mind was properly and genuinely applied and the representations were given due consideration on merits in accordance with law, a just and proper decision could not have been failed to be arrived at. The conclusion is inevitable, therefore, that although the Petitioner repeatedly went on knocking the doors of the administration by making repeated representations, those representations were not considered on merits in accordance with law keeping in mind all the relevant factors and applying the norms/standards concerning ad-hoc appointments. The case is analogous to the! one before the Delhi High Court in Mallinath Jain''s case 1973 (1) SLR 413 though in a somewhat converse fact situation. The Petitioner is, therefore, entitled to challenge the continuance of ad-hoc appointment of the second Respondent in the post of Director of Medical Educalion-cum-Principal on or after September 1, 1984, on the ground that the continuation of such arrangement, without considering his claim in light of the policy decision embodied in Annexure-A and the surrounding circumstances, is violative of Articles 14 and 16 of the Constitution.

Assuming, without granting, however, that the representations of the Petitioner were, in fact, considered and rejected on the grounds set out in the return and the supplementary affidavit filed on behalf of the first Respondent, the question which must still be considered is whether those grounds could be regarded as valid and relevant so as to justify non-consideration of the claim of the Petitioner by making a departure from the policy decision governing ad-hoc appointments. The mere fact that the ad-hoc appointment conferred no right to the post on the second Respondent could not have legitimately weighed against the termination of such arrangement on the return of the Petitioner from his foreign assignment. All the observations made and findings recorded in the immediately preceding paragraph have a direct bearing while considering the validity and relevance of this ground. On the basis of those considerations and factors, the fact that the ad-hoc appointment of the second Respondent conferred on him no right to hold the post and that it was to be operative only till further orders should have really weighed in favour of the Petitioner and against the second Respondent. Such appointment, even if valid when made and upto August 31, 1984, required reconsideration in the changed context and could have been terminated without difficulty because of the terms governing it. The consideration, if any, that the ad-hoc appointment should be continued till regular appointment in order to maintain continuity in the public interest is again not reasonable and legitimate. An ad-hoc appointment is by its very nature terminable at any point of time. The concept of continuity is foreign to such an appointment. The Petitioner is no novice since he has served the College as Professor and Head of Department for about thirteen years. Besides, he has held additional charge of the post of Director of Medical Education-cum-Principal and/or looked after the routine work of the said post, on a few occasions, in the absence of the Principal. As Professor and Head of Department, he is required to perform and discharge several administrative functions and duties and exercise control over officers/officials working in his Department. Over years, therefore, he has acquired experience and equipment which can stand him in good stead in case he is called upon to take up the ad-hoc appointment. The College or the hospital attached thereto is, therefore, not likely to suffer merely by the change. The apprehension of the first Respondent that the public interest may thereby suffer seems to be more imaginary than real and lacking in foundation. Public interest may indeed suffer by not implementing a policy decision taken after mature consideration governing ad-hoc appointments since such non-implementation may generate frustration and disaffection in public service. The factor, which according to the Government record, appears to have weighed with the competent authority, namely, that a Departmental Promotion Committee had been constituted, that it had considered the case for regular appointment, that it had recommended direct recruitment, and that steps were already initiated in the direction of making an appointment through direct recruitment, could not reasonably have weighed against the review of the existing ad-hoc arrangement. In fact, for reasons already considered earlier, those very factors were relevant for considering the claim of the Petitioner having regard to the time factor involved in such a situation. Approaching the case even from this alternative angle, there is no rational and legitimate ground shown to treat the Petitioner in a manner different than that prescribed by the policy decision. On the grounds aforesaid, a departure from the policy cannot be said to be reasonably justified.

The two submissions made on behalf of the second Respondent, which are independent of those made on behalf of the first Respondent, may be considered now. It was strenuously contended on behalf of the second Respondent that in permitting him to continue to occupy the post of Director of Medical Education-cum-Principal in ad-hoc capacity even after the Petitioner resumed duty, there was no conscious discrimination and that, under those circumstances, the protection under Articles 14 and 16 was not available to the Petitioner. Reliance was placed in support of this submission on certain observations in para 6 of the decision in Ramnath Verma Vs. State of Rajasthan, The relevant observations are as follows:

Secondly, it is urged that in the case of some persons, the permits have neither been cancelled nor made ineffective over the overlapping route and this amounts to discrimination. The reply of the State to this contention is that it was by oversight that permits of certain permit-holders on the overlapping routes have not been cancelled or made ineffective and it is further said that the State would have corrected this oversight but for the stay order obtained from this Court. Discrimination envisaged under Article 14 is conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case the discrimination has resulted because of an oversight which the State is prepared to rectify. It is not the case of the Appellants that these few permit-holders are being favoured deliberately for ulterior reasons. We therefore accept the reply of the State that a few permit-holders on the overlapping route have been left out by oversight and that their permits will be dealt with in the same manner ar. of the Appellants, as soon as the stay order passed by this Court comes to an end. There is therefore no force in this contention also and it is hereby rejected.

In the first place, the relevant observations in Ram Nath Verma''s case must be appreciated in the context in which they were made. The allegation of discrimination, which was there made, was met by a reply that the action on which the plea was based was the result of an oversight and that a corrective action would have been taken but for the stay order. An assurance was also held out that the corrective action would be taken no sooner the stay order was vacated. There was no allegation that the persons who had benefited through the oversight were favoured deliberately for ulterior reasons. It is in the context of this fact situation that it was observed that conscious discrimination envisaged by Article 14 was not made out. The decision is not apposite in the factual matrix of this case. In the next place, the test of conscious discrimination is adequately satisfied in the present case. This is not the case of an accidental omission or oversight resulting in the continuance of the second Respondent in the post in question. The Petitioner went on making repeated representations against the continuance of the second Respondent on ad-hoc basis in the said post. The legitimate claim advanced by the Petitioner is not shown to have been duly considered on merits and the plea justifying such continuance, which has now been put forward on behalf of the first Respondent, is not based on legitimate and relevant considerations. The second resppndent has been gaining advantage over the Petitioner day by day by continuing to occupy the post and it is not unreasonable to assume that this is a ''factor within the knowledge of the first Respondent. Having regard to all these and other considerations earlier referred to, the test of conscious discrimination must be held to have been satisfied. The other ground urged on behalf of the second Respondent is not easy to appreciate. The affidavit of the Chief Secretary to the State Government, Annexure R/2J, upon which reliance has been placed, is filed in a different case. The affidavit states that ''''while making all ad-hoc appointments in different services in the State, the provision contained in the Recruitment and Promotion Rules shall be borne in mind and such appointments will be made in confirmity with such Rules". The circular, Annexure-B, which has made a modification in the circular, Annexure-A, laying down the procedure for making ad-hoc appointments, was, as per the said affidavit, issued pursuant to such decision. The affidavit, therefore, is required to be read with Annexure-B and, so read, it has no application on the facts and in the circumstances of the case since, as earlier held, the circular Annexure-B is not attracted in making ad-hoc appointment to the post of Director of Medical Education-cum-Principal. Even if the affidavit is read in isolation, it only affirms that all ad-hoc appointments will be made in conformity with the Recruitment and Promotion Rules. If the Rule relating to recruitment to the post of Principal applies, the Petitioner satisfies the eligibility qualifications therein . prescribed. Those rules, therefore, are no bar to his being considered for ad-hoc appointment. The submission that the Petitioner was considered and found not fit for promotion on regular basis and that, therefore, he cannot claim to be appointed on ad-hoc basis in the same post if accepted, must equally hit the second Respondent, for, he too would not be entitled to continue to occupy the post in ad-hoc capacity since he was also not found fit.

In view of the foregoing discussion, the inevitable conclusion is that the continuance of the second Respondent in the post of Director of Medical Education-cum-Principal on or after September 1, 1984 is illegal and unconstitutional on account of the non-consideration of the legitimate claim of the Petitioner, based on the policy decision, Annexure-A, and all other relevant considerations, to occupy the said post in such capacity and, alternatively, in view of the rejection of such claim on grounds which are irrelevant and extraneous and which do not reasonably justify a departure being made from the said policy decision. On the facts and in the circumstances of the case, such continuance is clearly violative of Articles 14 and 16 of the Constitution insofar as the Petitioner is concerned.

The final question which must now be considered is the nature and extent of relief to which the Petitioner is entitled. It was strenuously contended on behalf of the Respondents that even assuming that the continuance in office of the second Respondent is violative of the guarantee contained in Articles 14 and 16 of the Constitution, the Petitioner is still not entitled to any effective relief for two reasons; first, the Petitioner is guilty of delay and laches and, secondly, having regard to the impending regular appointment by direct recruitment, which will take place shortly, there is no justification for disturbing the present arrangement. We are unable to accede to either of these submissions. It is futile to urge that the Petitioner has been guilty of delay and laches. Even before the Petitioner resumed duty and repeatedly thereafter he agitated his claim to ad-hoc appointment in the post in question and represented against the continuance of the second Respondent in the said post. The last of such representations was made by him in the middle of November, 1984. At no stage was the Petitioner informed that his representations were rejected and he came to know about the decision with regard to direct recruitment also only when the advertisement issued by the Commission appeared in the newspaper on March 7, 1985. If the Petitioner had rushed to the Court while his representations were still pending consideration, in all likelihood, his petition would have been thrown out on the ground that until there has been a refusal on the part the first Respondent to perform its legal duty of considering the claim, of the Petitioner, writ jurisdiction cannot be invoked. Soon after the public advertisement appeared, the Petitioner instituted present petition on March 26, 1985. Having regard to all the circumstances of the case, the Petitioner cannot be held guilty of delay and laches. The submission that the appointment by direct recruitment is impending and that having regard to the short interval of time, any disturbance in the existing arrangement would not be justified is again presumptuous. The history of this case itself shows that even after the recommendation was made by the Departmental Promotion Committee on September 27, 1984, the Government accepted the recommendation only on December 6, 1984 and that after the requisition was sent to the Commission on December 19, 1984, it took nearly three months in publishing the advertisement on March 7, 1985. According to the advertisement the last date for inviting the applications was April 6, 1985 for candidates of territories other than those of Lahaul and Spiti and Pangi Sub-division of Chamba district. For the candidates belonging to those territories, the last date was April 22, 1985. The Commission would have then taken at least six weeks thereafter to make the recommendations. The making of.regular appointment would have ordinarily taken at leat fifteen days thereafter. This would indicate that ordinarily a period of nearly, six months has to elapse between the date of the requisition sent to the Commission and the date of appointment. In view of the proposed amendment of the recruitment rules for direct recruitment, in the present case, the time required for making regular appointment may, in all reasonable probability, even, exceed six months, since the amendment to the recruitment rules is required to be processed by the Rules Sub-Committee, then by the Rule Committee, then by the Commission and then by the Cabinet. To test the validity of this submission we had asked the learned Advocate-General to obtain instructions from the first Respondent and to state to the Court precisely as to what time would be taken to make appointment by direct recruitment. The case was adjourned for a day in order to enable the learned Advpcate-General to place the information before the Court. The learned Advocate-General, however, stated to the Court the next day that he was unable to make any such statement for want of instructions due to paucity of time. Even the learned Counsel for the second Respondent stated fairly that at least four months time would elapse before regular appointment could be made. Under such circumstances, to deny effective relief to the Petitioner, would be to put the imprimatur of the Court on the continuance for such length of time of an ad-hoc appointment which must be regarded as illegal and violative of the fundamental rights of the Petitioner. It would not be a sound exercise of discretion, under such circumstances, to deny relief to the Petitioner who is otherwise entitled thereto.

For the foregoing reasons, in our opinion, the Petitioner is entitled to succeed in the writ petition. The continuance of the second Respondent in the post of Director of Medical Education-cum-Principal of the Indira Gandhi Medical College, Shimla, in an officiating capacity and on ad-hoc basis pursuant to the order of appointment, dated August 6 , 1983, at Annexure-P-10, on and from September 1, 1984, is declared to be illegal and void and of no effect in the eye of law. The aforesaid declaration will not, however, in any way affect the validity of any action taken by the said Respondent as the Director of Medical Education-cum-Principal nor will it involve him in any liability in regard to the functions performed and duties discharged by him in the said post. There is no question of the second Respondent refunding any monetary benefit derived by him by holding the said post during the aforesaid period, since the material on record discloses that he has, by virtue of such appointment, actually suffered monetary loss. It is, however, still clarified that the second Respondent will not be liable to refund the benefit, if any, received by him in terms of money by virtue of his such continuance in the office of Director of Medical Education-cum-Principal on and after September 1, 1984. The service rendered by the second Respondent in the said post on and after September 1, 1984 will not, however, count for any other purpose whatsoever including in computation of the administrative experience gained by him while occupying the office during the said period. The second Respondent will forthwith relinquish the charge of the office of Director of Medical Education-cum-Principal and, consequentially, the first Respondent will, within 24 hours, issue usual orders in accordance with the past practice for attending to routine work of the said office till an appropriate decision in accordance with law and in light of the observations made in the course of this judgment is taken within a period of 7 days from today with regard to the making of a fresh ad-hoc appointment in the said post. The Petitioner is entitled to the costs of this petition which are quantified at Rs. 1500/-. The costs will be paid to the Petitioner by the first Respondent along with his salary for the month of May, 1985 payable in the month of June, 1985.

Rule made absolute accordingly in the aforesaid terms.

At this stage the learned Advocate-General on behalf of the first Respondent and the learned Counsel for the second Respondent made an oral request for a certificate under Article 133 of the Constitution. We do not think the case can be certified as fit one for appeal to the Supreme Court, inasmuch as the case does not involve a substantial question of law of general importance which, in our opinion, needs to be decided by the Supreme Court. The case rests for its determination on but a few legal points on which the highest Court has made pronouncements and otherwise raises pure questions of fact. The request is, therefore, rejected. The further request made by both the counsel to stay the operation of this judgment is also rejected.

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