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TMI Blog2002 (7) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... issued for appointment in the post of Assistant Professor in the Department of G.I. Surgery and the petitioner applied Therefore, but he was not called for interview. He thereafter filed an original application before the Tribunal seeking a direction to consider his case for interview. As during pendency of the said original application, he was selected, the said original application was withdrawn. The unofficial respondent herein filed original applications before the Tribunal claiming inter alia the following reliefs:- 1. Call for the records of the case. 2. Direct the respondents to include the ad-hoc services for the period 1993 to 1997 in the services of the applicant and assign proper seniority Along with consequential benefits. 3. Direct the respondents to consider the applicant for the post of Head of the Department Gastro intestinal Surgery at G.B. Pant Hospital, New Delhi. The petitioners as also the official respondents raised preliminary objections therein as regards the maintainability of the original application on the ground that the same are not maintainable, as proper and necessary parties had not been impleaded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can claim as a matter of right. 6. The learned Tribunal upon consideration of the materials-on-record held:- 22. The issues involved in this case, being essentially relating to Public Interest and patient care in the Government Hospital, the narrow adversarial interests should be eschewed and the matter has to be looked at keeping in mind the broad interests of the public. In this case we are not on the issue whether R-3 was validly appointed as HOD GI Surgery, as it is admitted by all sides that no such post exists under the Recruitment Rules. Hence the only question is whether it is fit and proper to entrust the department of super-speciality to the care of the general surgeons. In our view, it is not. It should be entrusted to the hands of the qualified and experienced faculty members, like Director-Professor, Professor etc. in GI Surgery. 23. Considering the entire gamut of facts and particularly keeping in mind the public interest we are of the view, that whatever may be the reasons for the Government for not appointing the faculty members in the super-speciality by direct recruitment in 1994 itself, it is necessary to appoint the Director-Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the requirement of strength of a particular Department in a Hospital is to be determined by the concerned Hospital and in relation thereto the Tribunal had no jurisdiction to issue any direction. The learned counsel would contend that as there was only one sanctioned post in G.I. Surgery in G.B. Pant Hospital, which had already been occupied by the petitioner, no other person directly or indirectly could be brought over his head. According to the learned counsel, as the post of Professor/Director -- Professor in any speciality is to be filled up by promotion and the only person who can be promoted to the said post is the petitioner and not the unofficial respondents. In the aforementioned situation, the learned Tribunal must be held to have erred in issuing the aforementioned directions. 10. Mr. Venkataramani, the learned senior counsel appearing on behalf of the unofficial respondents, would contend that at the relevant point of time, there did not exist any statutory rules for recruitment in the said post. According to the learned senior counsel, the background for appointment of his client on ad hoc basis is the nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position with regard to fill up the post of 3rd teacher in the Department of Gastroentrology Surgery as the said course has already commenced from October, 1992 so that the Medical Council of India could be informed accordingly. 13. The Deputy Secretary of the Medical Council of India again by a letter dated 29.06.1993 stated:- With reference to your letter No. 37-1(79)/7/Estt./GBP No. 172, dated 24.5.93, forwarding therewith a letter No. GIS/GBP/22(6)/115, dated 13.5.1993 from the Head of the department of Gastroentrology Surgery-and subsequent letter No. GIS/GBP/93(6)/139, dated 1.6.93 forwarding particulars of Dr. Ajay Kumar Sachdev, Asstt. Professor on the subject noted above, I am so directed to request you to please let this office know by return of post details of the name of University awarding the M.S.I from held by Dr. R.C. Aranya and year of obtaining the same. Stabilarly, the name of University awarding M.S. Degree held by Sr. Ajay Kumar Sachdev Along with any other special training in G.I. Surgery and in which category indicating the period from/to may be furnished for further consideration in the matter. 14. Yet again, the Director - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s felt that it will not be correct to call for interview only two candidates who have obtained M.Ch. from SGPRI, Lucknow and leaving out those who have obtained M.Ch. from Delhi University, since both are unrecognised by MCI, as otherwise it will tantamount to discrimination in the matter of selection. 3. It is further submitted that Dr. A.K. Sachdev is working as Associate Professor, G.I. Surgery in G.B. Pant Hospital, New Delhi on ad hoc basis since 11.2.1993 and he is also recognised examiner for M.Ch. (GI Surgery) examination conducted by the Delhi University. He is by for having the maximum number of years of experience in G.I. Surgery out of the present 10 candidates who have applied. Therefore, it is felt that the Commission may like to re-examine his candidature again keeping in view the above fact and, if considered eligible, may call him for interview. 4. As interview date have been fixed for 25.11.97, the Commission may examine whether, keeping in view the above facts, the interview date should be either postponed or re-scheduled as the case may be. As soon as we hear from the Commission, we will nominate the Ministry's Representative for the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one year with effect from 1.4.1995 or till the post is filled or regular basis in accordance with the provisions of the Central Health Service Rules, 1982 as amended from time to time, whichever is earlier, on the following terms and conditions: (i) Scale of pay ₹ 3700-125-5000/- p.m. (ii) Non-practicing allowances at the rate of ₹ 950 p.m. (iii) Private practice of any kind whatsoever is strictly prohibited. (iv) The period of ad-hoc appointment will not bestow on him any claim or right for regular appointment in the Central health Service and that the period of ad hoc appointment rendered by him will not count for the purpose of seniority and for eligibility for promotion, confirmation etc. (v) Other conditions of service will be governed by the relevant rules and orders that may be in force from time to time. 2. In case Dr. A.K. Sachdev accept the offer on the terms and conditions stipulated above, he may please send his acceptance to this Ministry within 14 days from the date of issue of this memo. he is also requested to join the post of Associate Professor of GI Surgery, w.e.f. 1.4.95 (FN). If no reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as the relevant point of time, no recruitment rules existed but despite the same, there cannot be any doubt that the Central Government was bound to comply with the requirements of Articles 14 and 16 of the Constitution of India. 23. Pursuant to or in furtherance of the recommendations of Tikku Committee in the year 1991, all posts of super-specialities were required to be filled up only at the entry level of the Associate Professor and as such the Central Health Service Rules had accordingly been amended in the year 1996. 24. Dr. Sachdev was appointed merely on ad hoc basis pending framing of rules in terms of the nomination made in his favor. Only two candidates were nominated and one of them was selected. No other selection process has been gone into. 25. Having regard to the fact that admittedly an advertisement had been issued through Union Public Service Commission, the process of regular appointment only started thereby. 26. It may be true that the Central Government was guilty of serious latches and delay on its part in not implementing the recommendations of the Tikku Committee as regards filling up the posts of the Assistant Profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the said judgment read as follows: (SCC pp. 382-83, paras 21-25) 21. We shall now deal with conclusions (A) and (B) of the Constitution Bench in the Maharashtra Engineers' case [1990]2SCR900 quoted above. 22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases, which are expressly excluded by conclusion (A). We may, Therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed 'according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfillled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. 12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be not doubt whatever that the petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very specific in their terms. Though the recruitment rules came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, we have no doubt that the initial appointment of respondents 6 to 30, purely on ad hoc basis without consultation with the Public Service Commission cannot be held to be a regular service in the cadre of Employment Officer, and as such the same cannot be counted for the purposes of reckoning their seniority in the cadre. 33. Yet again recently in S. Renuka and Ors. v. State of A.P. and Anr. [2002]2SCR697 , the Apex Court categorically held that any appointment made in contravention to the recruitment rules would be nullity. It was held:- 8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The petitioners have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100% reservation for women. Also the reservation policy had not been adhered to. The posts, which are created, are posts of District and Sessions Judges, Grade II. There is no separate post for Judges of Family courts and Mahila Courts. Thus the petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre posts e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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