Objections regarding Pexes new seniorty list dated 20/10/2010

To

1. Secretary, 4. CEO
MIB(BAP Section) Prasar Bharati
ShastriBhavan PB Secretariat
NewDelhi PTI Building, New Delhi

2. Secretary, 5. DG,
UPSC Doordarshan
Dholpur House, Mandi House
Shahjahan Road, New Delhi-
New Delhi-

3. Member (Personnel) 6..DG:AIR,
Prasar Bharati Akashwani Bhawan
PTI Building New Delhi-110001.
New Delhi-110001

Sub: Objections regarding serious illegalities and frauds in draft seniority list of Programme Executives/Staff Artistes No. 9/1/2010-SI(B) dated 20.10.2010 .

Sir/Madam,

1. It is on record that following the directions of the J&K High Court in Mohd Ashraf Lone vs UOI(WP No.1261/1991) , the UPSC has conducted a review DPC on 10.6.2002 promoting Programme Executives and Staff Artists to Class I Posts for the period 1982 to 1989/1990.

2. Following the Ashraf Lone review DPC, the seniority lists of both Programme Executives and the Staff Artists would have to be revised w.e.f.1990 onwards. This is also a stated position of DG:AIR, the Ministry of I&B and the UPSC as per records, some of which have been obtained under RTI.

3. However, in spite of this stated position, no seniority lists of Pexs and Staff Artists have been revised /published by the DG:AIR and the Ministry to further conduct correct DPCs featuring only eligible persons. Instead, DG:AIR and the Ministry have been knowingly promoting non eligible persons by creating self styled eligibility/seniority lists without taking into cognizance the review DPC conducted by the UPSC for the period 1982-1990 in which even the current DG,AIR Ms. Noreen Naqvi and all other DDG’s feature. .It is a different matter, that in the review DPC of Ashraf Lone case, several frauds were committed which will be taken up separately.

4. DDG(A), Sh. Raj Kamal in his note dated No.32013/02/2008-SI(A) to the Ministry on 4.4.2009 has correctly recorded that the outcome of the Ashraf Lone review DPC has a direct bearing on subsequent Review DPCs to be held w.e.f.1990 from the cadre of Programme Executive to the JTS Grade of IB(P)S for which contempt cases are pending.

5. As can be seen from the minutes of the inter departmental meeting held by UPSC with the Ministry of I&B, DG:AIR and DG:DD officials on 19th August 2010, in connection with the contempt cases referred to in para 4 above, the UPSC has in para 3 (e) asked the Ministry /DG:AIR to clarify the reasons for the non implementation of the Ashraf Lone Review DPC held on 10.6.2002. Para 4(e) of the said minutes issued by UPSC, quotes Ministry of I&B officials stating that following the acceptance of the recommendations of the review DPC for the period 1982-1990 by the MIB, vide order dated 28.4.2010, all the seniority lists for the subsequent period will have to be revised.

6. However, in spite of these stated positions, which are on record, both DG,AIR, and the MIB are deliberately acting contrary to the rules and are continuously issuing illegal orders and lists. This clearly establishes what is open knowledge in the Department, that huge amounts of money have exchanged hands to maintain and continue the illegalities. Files and lists are clearly seems to be being prepared on the basis of bribes and corruption. The latest draft seniority list of Pexs/staff artists as on 2010 is a glaring example of this malpractice, as a seniority/eligibility list of pexs/staff artists as on 2010 is meaningless and is void ab initio as the list that is required to be made of Programme Executives/Staff Artists is w.e.f 1990.

7. The said draft 2010 seniority list of Pexs and staff artists issued by DG:AIR is meaningless and void ab initio not only for the reasons stated above, but also because the list of Pexs /Staff artists as on 2010 can be determined only after the review DPC for the period 1990 onwards ( to 2010 ) is conducted. It is seen that DG:AIR without conducting this review DPC for the last six years has mischievously removed the names of several persons who are to feature in this review DPC to JTS of IBPS from the list of Pexs/staff artists as on 2010. Shockingly, these persons have been illegally included instead in seniority /eligibility lists for promotions from STS to JAG. Such inclusion has been done, inspite of their promotion order No. 32013/3/2000-B(A)-Vol.II dated 25th August 2000 to the post of JTS issued by MIB being quashed by the Principal Bench of CAT on 26th March in O.A. No. 399/2001. This again is a clear indication of the corruption continuing in the department. (Relevant pages of CAT order and order No. 32013/3/2000-B(A)-Vol.II dated 25th August 2000 are enclosed as Annexure )

8. Further to this, several irregularities can be noticed even while taking a cursory glance at the 2010 list, establishing corruption and intentional concealing/distortion of facts. To illustrate this point a couple of objections listed below should please be taken on record.

a) A person like Vinod Kumar Singh, has been shown in the current 2010 list at s.o. 55 , while Kum M. Raveendrananth his established senior has been shown at s.no. 80. In the seniority list of Programme Executives , corrected w.e.f 1983 and issued through court orders in 2007 , the position of Sh. Vinod Kumar Singh was at s.no. 160, i.e 30 positions below Kum M.Raveendranath who was at s.no.130. A number of such examples are seen in this list.

b) Several persons like V.N.Dubey , M.Y.Pawar, are placed below Sh. Hirak Ranjan Roy, Pex in the corrected list of 2007. These persons have once again been positioned above Sh. Roy. Action should be initiated against the Officials who have made such manipulations.

c) The list of staff artists, mischievously indicates only “date of joining”. It does not indicate whether this date of joining is in regular government service or otherwise. This is particularly pertinent in view of enclosed letter of DDK Rajkot indicating that Sh. V. B. Desai was declared temporary government servant in 1993 on the basis of some telegram. The Seniority list however indicates that V.B. Desai has joined in 19.5.1984. DG:AIR should disclose all facts, relevant rules etc as to how he has been included in this draft seniority list. When IBPS Rule state that only regularly recruited persons can be included in IBPS it is not known how such persons were included. How many such persons were included of this nature and on what criteria or gratification?

d) Since such clearly questionable persons figure in the seniority list, the UPSC approval date and file number of all persons on the list- both programme executive (DR and Promotee) and staff artist - should be indicated in the seniority list. This is a necessary requirement as per statutory RRs and as per UPSC and DO P&T norms while preparing seniority/eligibility lists for Group A and B Posts and for conducting any DPC for Group A and Group B Posts.

e) It can also be seen in Col 12 of the Group B statutory rules for promotion from Trex to Pex (i.e Group B Recruitment Amendment Rules of 1984 , that the proceedings of the DPC and finalization as Group B Officers i.e Pex have to be sent to Commission for approval, and if it is not approved by the Commission, fresh DPC should be held. In view of this also, the UPSC approval date and file number is essential in the seniority list even in the case of promotee pexs. This is even more relevant as replies received through RTI from Ministry and DG:AIR show that many persons have been allowed to work as Pex/Trex etc even though their service records are not available.

9. In view of the above facts and circumstances, 2010 list of Pexs and staff artists should be ab initio declared null and void and further action of Pexs/Staff artists seniority lists from 1990 onwards may be taken as per the observations of the UPSC in its interdepartmental meeting dated 19th August 2010. In addition , discipline wise vacancies in JTS should also be provided to us and published in AIRNET so as to enable all concerned to exercise their options for cadre, media and discipline specified in Rule 7(6) (b) of the IBPS Rules.
10. Lastly, it is also observed in the Pexes lis,t with in DRs ,SC /ST pexes have been placed in last in bunch. We have also asked from UPSC that under which rules/system/basis DR pexes seniority have been prepared because all DR Pexes have been selected by UPSC discipline-wise like Drama/Science/ Sports/Spokenwords/Music etc by different selection boards of UPSC on different dates/months. DR Pexes results were also sent by UPSC to DG:AIR discipline wise in terms of UPSC letter No F.I/633/85-RIV but instead of providing relevant rule in this regard they have informed us File is weeded out. It seems there is also a huge bungling in DRs seniority therefore rule/basis should also be provided to us which has been used to prepare DR Pexes seniority who have no relation in between them as Science subject cannot compared with Drama or Music.

With highest regards,
Enclosed :As above
Yours sincerely,


(Pramod Mehta)

Registrar of Societies Delhi Informed under RTI "PSA of AIR & DD Was/ Is Never Registered .

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM ; NAGALAND; MEGHALAYA; MANIPUR; MIZORAM; TRIPURA AND ARUNACHAL PRADESH )
IMPHAL BENCH
WRIT PETITION© NO.978 OF 2004
The Thoubal District Farmers’ Assocation for Natural Calamities,
Through its Secretary, shri Nongthombam Mani Singh, aged about
45 years ,.s/o late N.Narahari Singh, resident of Thoubal Achouba , PO & PS, Dist.
Thoubal , Manipur.
… PETITIONER
-VS-
1. The State of Manipur, through the Chief Secretary,Govt. of
Manipur, Imphal.
2. The Department of Revenue, through the Commissioner/Secretary
(Relief Cell), Govt. of Manipur, Imphal.
3. The Deputy Commissioner, Thoubal, Govt. of Manipur,Imphal.
.. RESPONDENTS.
BEFORE
THE HON’BLE MR.JUSTICE T. NANDAKUMAR SINGH
For the Petitioner :: Mr. B.P.Sahu, ld. Advocate.
For the Respondents :: Mr. R. S. Reisang, Addl. GA.
Date of Hearing & Order :: 28.02.2005.
JUDGMENT AND ORDER (ORAL)
Heard Mr. B.P Sahu, learned counsel for the petitioner as well as Mr R. S. Reisang, learned Addl. G.A for the respondents.
2. As agreed by both the parties this writ petition is taken up for a limited point as to whether an unregistered Association can file a writ petition under Article 226 of the Constitution of India for violation of the fundamental rights guaranteed by the Constitution of India or not? The writ petitioner, an unregistered association is formed by all the farmers residing within Thoubal District, Manipur whose paddy plants grown in their respective fields, pisciculture farms as well as other farms were grossly affected by the flood that occurred in the year 2002. The acts of Government of Manipur declining to give financial assistance to the members of the writ petitioners (
2
unregistered association) for damage caused due to the natural calamities are illegal unlawful, arbitrary, malafide, biased, discriminatory and vindictive to the extent that their Fundamental Rights guaranteed by the Constitution of India had been deprived. Learned Addl. G A submits that that the petitioners association being not a registered body has no legal entity to sue or be sued. It appears that nothing has been placed before this court to show that the petitioner association is a legal entity as provided under any specific statutory provision to sue or be sued collectively. Learned Addl. G A submits that where a number of individuals are affected by a common act or a common legal proceeding, there is a procedure for filing joint writ petition to challenge that act . In this regard, learned Addl. G.A draws the attention of this court to proviso to Rule 1 of Chapter V-A Gauhati High Court Rules and it provides that more than one individual can jointly file a single writ petition on each of them paying court fee payable on such application. In the present case, it is not the situation where the individuals i.e the farmers whose paddy fields seriously affected by the flood that occurred in the year 2002 jointly file a single writ petition on each of them paying court fee for filing such application. It appears that the present writ petition is not file in compliance with the said proviso to Rule 1 of Chapter V-A of the Gauhati High Court Rules. The matter regarding maintainability of writ petition filed by an unregistered association have been discussed by this court in All Manipur DIC Supervisors’ Association vs. State of Manipur & Ors; 2001 (1) GLT 374 wherein this court held that the writ petition filed by an unregistered Association is not maintainable. Paras 14,15 and 16 of GLT in the case of All Manipur DIC Supervisors’ Assn. vs. State of Manipur & Ors (Supra) are quoted below :-
“ 14. This is not a public interest litigation. Admittedly, the petitioner-association is not registered under the Societies Registration Act, 1860 or under any other statute. A technical point is taken in paragraph 2 of the affidavit-in-opposition that the petitioner Association , not being a registered body is not a legal entity which can sue or be sued in its name. On this point, in paragraph 3 of the rejoinder affidavit, it is stated “ the petitioner Association having disclosed the names and service particulars of its members in an Appendix to the writ petition, has got legal entity to sue and be sued in law, though it has not been registered”. Obviously, such disclosure does not confer any legal entity on the petitioner Association to maintain a legal proceeding. Nothing has been placed before me to show that the petitioner Association, though not a legal entity is permitted to by any specific statutory provision to sue or be sued in its collective capacity. Mr. T.Nandakumar, learned Advocate General, submits that the petitioner Association, not being a registered body having legal entity, this writ petition filed by its not maintainable and liable to be dismissed on this score alone. Where a number of individuals are affected by an official act, they can ordinarily bring a legal proceeding to challenge that act only if all such persons joined in the proceedings by name. In the instant case, all the members of the
3
petitioner Association who have been adversely affected by the impugned Government order. Annexure-A/14 dated 13.1.94 ought to have joined in the writ petition by name. It has been held in DGOF Employees’ Association v. Union of India, reported in AIR 196 9 Calcutta 149 (151) that
“9. In the case of a body incorporated by law, the corporate body acquires a legal personality of itself and is as such entitled to maintain legal proceedings. But an unincorporated association has no legal personality and it is nothing but an aggregation of its members who can only bring legal proceedings in their individual capacity. Even when all of them by an official act, they can challenge that only if all the members join in the proceedings by name, the association, in such a case, cannot maintain an application under Article 226 or other legal proceeding in its own name, as has been established by a number of decisions.
15. Even where an association is permitted by law to bring a legal proceeding, it can bring an application under Art.226 only when its rights as a collective body i\as distinguished from the aggregate rights of its members are affected by the act challenged in the proceedings. (Chiranjit Lal v. Union of India, AIR 1951 SC 41).”
15. Mr. A. Nilamani, learned senior counsel for the Association, however, contends that in the facts and circumstances of the case the instant petition should not be thrown out at this stage on the ground that it was filed by an unregistered Association. In this regard, Mr. Nilamani refers to the decision in Akhil Bharatiya Soshit Karmachari Sangh ( Railway) vs. Union of India and others reported in (1981) 1 SCC 246 (281). This decision is clearly distinguishable . There the point raised was whether an unrecognized Association can bring a legal proceeding , and not whether an unregistered Association can do so, and in that case, learned Attorney General took no objection to a non-recognized Association maintaining the writ petitions. Moreover the said decision speaks of “little Indians”.
16. Mr.A.Nilamani placed reliance on another decision in Umesh Chand Vinod Kumar vs. Krishi Utpadan Mandi Samiti reported in AIR 1984 Allahabad 46 (58) which refers to the earlier decision as under :-
“7. The question of “standing” was the subject of a passing observation by Krishna Iyre, J in Akhil Bharatiya Soshit Karmachari Sangh’s case, AIR 1981 SC 298 ( to which the other two learned Judges constituting the Bench did not avert to ).
According to these observations the concept of ‘cause of action’ and ‘person aggrieved’ has become obsolescent in some jurisdictions, like ‘public interest litigation’ by little Indians in large numbers seeking remedies in courts. In such a case alone an association of little Indians may be permitted to sue on their behalf. These observations graft an exception to the traditional rule of locus standi. They will not cover the case of an association suing on behalf of its members where its own interests are not affected and where its members do not answer the description of little Indians.
45. Our answer to the referred questions is as follows :
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A.1 The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights. –
(1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position ( “little Indians”)
(2) In case of a public injury leading to public interest litigation, provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subject matter.
(3) Where the rules or regulations of the association specifically authorize it to take legal proceedings on behalf of its members. So that any order passed by the court in such proceedings will be binding on the members. In other cases an association, whether registered or unregistered, cannot maintain a petition under Article 226 for enforcement of protection of the rights of its members, as distinguished from the enforcement of its own right.”
The learned Addl. G.A appearing for respondents also submits that the Full Court of the Madras High Court reported in AIR 1989 Madras 224 held that an unregistered association can not file a writ petition under Art. 226 of the Constitution of India. In other words, a writ petition under Art. 226 of the Constitution filed by an unregistered association is not maintainable. Para 6 of the AIR in Tamil Nadu Panchayat Development Officers Assn. (Supra.) is quoted hereunder :-
“6. Accordingly the papers will be placed before My Lord, the Chief Justice, for appropriate orders.
Decision of Full Bench
VENKATASWAMI, J:- 7. The question that has been referred to a Full Bench by a Division Bench to which one of us (Mohan,J. as he was than was) is as follows:
“Whether an unregistered association can maintain a writ petition under Art. 226 of the Constitution of India”
After going through the papers and on hearing the counsel, we are of the view that in view of R.2- B of the Rules framed by virtue of Art.225 of the Constitution, to regulate proceedings under Art.226 of the Constitution, this question pales into insignificance , as any body of persons who wish to jointly agitate a matter or espouse a common cause can invoke the benefit of the said rule. Accordingly, we hold that an unregistered Association cannot maintain the writ petition”.
3. The Apex Court in Mahinder Kumar Gupta & Ors. vs. Union of India, Ministry of Petroleum and Natural Gas reported in (1995) 1 SCC 85 held that the second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Art. 32 of the Constitution of India. Regarding the point about maintainability of the present writ petition filed by an unregistered Association, I am in respectful agreement with the
5 order of the ld. Single Judge in All Manipur DIC Supervisors’ Association. Vs. State of Manipur & Ors (supra) that the writ petition filed by an unregistered Association is not maintainable.
4. For the reasons discussed above, the present writ petition is not maintainable and accordingly, the present writ petition is dismissed as not maintainable.
.
JUDGE

Supreme Court of India said.....

Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION [C] NO.169 OF 2005
IN
CONTEMPT PETITION [C] NO.615 OF 2004
IN
CIVIL MISCELLANEOUS PETITION NO.8076 OF 1988
IN
CIVIL APPEAL NO.3519 OF 1984


Dr. P P C Rawani & Ors. ...
Petitioners

Vs.

Union of India & Ors. ... Respondents

WITH

Contempt Petition No.160/2005 in CA No.3519/1984
I.A. No.1, 3-5 in Civil Appeal No.3519/1984



JUDGMENT


R.V.RAVEENDRAN, J.



Contempt Petition No.160/2005 is filed by the doctors regularly

recruited through Union Public Service Commission (UPSC, for short).

Contempt Petition No. 169/2005 is filed by the doctors who were appointed
2


on ad hoc basis between 1968 and 1977 and whose services were

regularized with effect from 1.1.1973 or from the date of their initial

appointment.



2. Civil Appeal No.3519/1984 and Writ Petition No.1228/1986, filed by

some Doctors appointed on ad hoc basis, were disposed of by this Court by

order dated 9.4.1987 recording the submission on behalf of the Union of

India that the services of several of the ad hoc appointees had been

regularized and the services of the rest will also be regularised. Referring to

the issue of seniority inter-se among them, this Court observed that if the

orders of regularization of appointment are made to take effect from the

respective dates of their initial appointment, and seniority was consequently

determined, the problem will be solved. As there was no objection to such a

course by the ad-hoc doctors (appellants/petitioners therein), the said appeal

and writ petition were disposed of accordingly.



3. The Union of India experienced some difficulties in giving effect to

the directions of this Court as it found that if regularization was granted

with effect from the date of their initial appointment to all the ad-hoc

appointees, several regularly appointed doctors may be relegated to

3


secondary position, in view of the earlier appointment of ad hoc doctors.

The regularized doctors therefore filed applications before this Court for

giving effect to the orders dated 9.4.1987. The regularly appointed doctors

also filed applications to ensure that their interests were not

jeopardized/prejudiced. They pointed out that they were not parties to the

cases decided on 9.4.1987. These applications were considered and

disposed of by this Court with the following directions by order dated

29.10.1991 [reported in Dr. PPC Rawani vs. Union of India - 1992 (1) SCC

331] :

"(1) Each of the appellants will be treated as regularized in Group A of
the Central Health Service from January 1, 1973 or the date of his first
initial appointment in the service (though as ad hoc Group B doctor),
whichever is later.

(2) In order to ensure that there is no disturbance of the seniority
and the promotional prospects of the regularly recruited doctors there
will be a separate seniority list in respect of the appellants and their
promotions (about which directions are given below) shall be regulated by
such separate seniority list and such promotions will only be in
supernumerary posts to be created as mentioned below.

(3) (a) Each of the appellants will be eligible for promotion to the post
of Senior Medical Officer or Chief Medical Officer or further promotional
posts therefrom taking into account his seniority in the separate seniority
list which is to be drawn up as indicated above.

(b) The promotion of any of the appellants to the post of Senior
Medical Officer, Chief Medical Officer and further promotional post
therefrom will be on par with the promotion of the regularly recruited
doctor who is immediately junior to the concerned appellant on the basis
of their respective dates of appointment. In other words, if a regularly
recruited doctor, on the basis of the seniority list maintained by the
department, gets a promotion as Senior Medical Officer or Chief Medical
Officer or further promotion thereafter, then the appellant who was

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appointed immediately earlier to him will also be promoted as a Senior
Medical Officer or Chief Medical Officer or further promotion therefrom
(as the case may be) with effect from same date.

(4) In order that there may be no conflict or any possibilities of
reversion, the post to which an appellant will be promoted (whether as
Senior Medical Officer or Chief Medical Officer or on further promotion
therefrom) should only be to a supernumerary post. Such number of
supernumerary posts should be created by the government as may be
necessary to give effect to the above directions. No promotion will be
given to any of the appellants in the existing vacancies which will go
only to the regularly appointed doctors.

(5) The appellants hereby agree to give up all monetary claims on
account of revision of scales, regularization or promotion to which they
would be entitled till October 31, 1991.

(6) Apart from the appellants there are certain doctors who fall in the
same category but who had not filed writ petitions before the High Court.
They have filed directly writ petitions before this Court bearing Nos.2620-
2659 of 1985 and intervention applications. The intervention applications
are allowed and rule nisi is issued in the writ petitions of which the other
parties take notice. These interveners and writ petitioner have to be
granted the same relief as the appellants. It is made clear that all these
applicants and petitioners will be entitled to the same reliefs as the
appellants for all purposes of seniority and promotion. All monetary
claims on account of revision of scales, regularization or promotion till
October 31, 1991 are given up by these applicants and petitioners as well."
(emphasis supplied)


4. The regularized doctors filed Contempt Petition No.615/2004

alleging non-compliance with the order dated 29.10.1991. That petition was

disposed of on 13.5.2005 recording the submission that the order dated

29.10.1991 will be implemented in six weeks. The regularized doctors have

again filed a contempt petition (Contempt Petition No.169/2005). The

regularized doctors contend that whenever any regularly appointed doctor is

promoted to Senior Administrative Grade from the post of Chief Medical

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Officer - Non Functional Selection Grade (for short `CMO (NFSG)'], all

regularized doctors whose dates of appointment were earlier to that of such

promoted regularly appointed doctor, should also be promoted to the post of

Senior Administrative Grade, having regard to directions contained in the

order dated 29.10.1991. The regularised doctors contend that respondents

have failed to comply with the said directions and therefore committed

contempt.



5. On the other hand the regularly appointed doctors have filed a

Contempt Petition No.160/2005 contending that having regard to the

directions in the judgment dated 29.10.1991, the regularized doctors can

only be promoted to supernumerary posts and in the same ratio which is

available to regularly appointed doctors. They contend that if the directions

issued on 29.10.1991 are construed in the manner put forth by the

regularized doctors, it will adversely affect their seniority and promotional

prospects which were specifically protected by directions No.(2) and (4)

issued on 29.10.1991. They contend that any attempt by respondents (Union

of India and its authorities) to promote regularized doctors to substantive

posts would violate the directions of this Court contained in the order dated

29.10.1991. They also seek a direction to restrain the respondents from

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creating more than 12 supernumerary posts at SAG level. The regularly

appointed doctors have also filed an application for clarification (IA

No.3/2005) seeking following clarifications/ modifications of the order

dated 29.10.1991 :


(a) Insofar as promotion to the SAG level is concerned, ratio of the said
posts to total strength shall be maintained at 3.8% in the case of regularized
(ad hoc) doctors group, as is done in the case of regular doctors group.

(b) In determining the promotion of ad hoc doctors, the date of actual
appointment of the juniormost person in a batch of regular doctors (where
the UPSC has recommended their appointments on a single date) shall be
the point of reference for parity with ad hoc doctors.

(c) While promoting ad hoc doctors of supernumerary SAG level posts,
Union of India should ensure that no such promotee ad hoc doctor officiates
against a senior post to the detriment of any doctor whose actual date of
appointment is prior to the date of appointment or deemed appointment of
such ad hoc doctor.



6. Therefore what falls for consideration is the true import of directions

contained in Paras 3(a) and (b) of the order dated 29.10.1991.



7. The genesis of the problem relates back to the order dated 9.4.1987.

Two things are evident from the said order. First is that this Court, in

passing the said order, did not adjudicate upon the rights or claims of the ad

hoc appointees on merits. The matters were disposed merely recording the

submission of the respondents that all ad hoc appointees were regularized or

7


will be regularized. The second is that the direction relating to the seniority

of regularized doctors in that order is not with reference to regularized

doctors vis-`-vis regularly appointed doctors, but only inter-se among the

ad hoc doctors who were regularized. This is clear from the following

observations in the said order:


"Pursuant to the interim directions and suggestions made by us, the
services of several of the petitioners have already been regularized and we
are assured that the services of the rest will also be regularized. It is
however stated by the learned counsel for the Union of India that there
can be some problem regarding their seniority since some have been
regularized earlier and some later. The difficulty anticipated is capable of
easy solution. All orders of regularization made pendente lite are naturally
subject to our final orders. Those in respect of whom orders of
regularization have already been issued and the others are all parties before
us.

If the orders of regularization of appointment are made to take effect from
their respective dates of original appointment and seniority so determined
there will be no other problem. Sri Venugopal, learned counsel assured us
that none of the doctors has any objection to this course. It may be so
done. This order disposes of the appeal and the writ petition."

[Emphasis supplied]




8. The orders dated 9.4.1987 and 29.10.1991 make it clear that this

Court did not intend any regularized doctor to steal a march over the

regularly appointed doctors, either individually or as a group. To ensure that

the seniority and promotional prospects of regularly recruited doctors were

not affected, this court directed a separate seniority list in respect of the

regularized doctors and clarified that their promotions will only be in

8


supernumerary posts to be created. Supernumerary posts are non-cadre

permanent posts. They are created to accommodate the lien of officers who

are entitled to hold a lien against regular permanent posts. Being ex-cadre

posts, no specific duties are attached to them and the officers concerned

usually perform duties in some vacant temporary or permanent posts. (vide

D.K.Reddy v. Union of India - 1996 (10) SCC 177).



9. If all the ad hoc doctors were to be regularized with effect from the

date of their initial appointment, with seniority also from the date of initial

appointment, there will be no difference between regular recruitment and

regularization of ad hoc appointments, thereby defeating the very purpose

of systematic regular recruitment through UPSC. Ad hoc or stop gap

appointees were not normally regularized and given seniority from the date

of initial appointment. They were usually given regularization and seniority

only after a certain period of service, which used to vary from one year to

ten years or even more. When this Court directed on 9.4.1987, that

regularized doctors shall have seniority from the date of their initial

appointment, it was only a direction intended to regulate the seniority inter-

se the regularized doctors as this Court found that among the ad hoc

appointees, regularization was not being effected in accordance with

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seniority and some who were subsequently appointed were being

regularized earlier and some who earlier appointed were being regularized

later. It was not intended to affect the seniority of regularly appointed

doctors. The regularized doctors cannot occupy the posts meant for regular

doctors, either at entry level or at higher promotional levels.



10. When the clarificatory order dated 29.10.1991 was passed, this Court

took care to direct that promotions of regularized doctors will only be in

supernumerary posts. This Court also directed that promotion of any

regularized doctor will be on par with the promotion of the regularly

recruited doctor who is immediately junior to the regularized doctor. This

meant that if one regularly appointed doctor was promoted, one regularized

doctor (that is, the senior most from those regularized doctors whose date of

initial appointment was earlier to that of said promoted regularly appointed

doctor) was to be promoted by creating a supernumerary post. The above is

also clear from the wording of Para 3(b) of the directions dated 29.10.1991

which uses the term `on par' and uses singular and not plural, when

referring to the regularized doctor to be promoted. The clarificatory order

dated 29.10.1991 did not mean that if one regularly appointed doctor was

promoted, all regularized doctors appointed earlier to his appointment,

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should be promoted to a higher post by creating that many number of

supernumerary posts. Such an interpretation will lead to absurd results and

give undue advantage in promotions to regularized doctors who are outside

the cadre. To clarify the interpretation, we give below an illustration.


Illustration : On 1.1.2008, there are 50 regularly appointed
Chief Medical Officers and 25 regularized Chief Medical
Officers. One regularly appointed CMO whose date of
appointment is 1.1.1990 is promoted to Senior Administrative
Grade. Out of the 25 regularised CMOs, 10 were appointed
prior to 1.1.1990. The clarificatory directions dated 29.10.1991
does not require all 10 regularised CMOs appointed prior to
1.1.1990 to be promoted to Senior Administrative Grade by
creating ten supernumerary posts. All that it requires is that
when one regularly appointed doctor holding the post of CMO
(appointed on 1.1.1990) is promoted, one regularized doctor
holding the supernumerary post of CMO (who is senior-most
from among the regularized doctors who were appointed prior
to 1.1.1990) will have to be promoted to a supernumerary post
of Senior Administrative Grade.



11. Having regard to the different interpretations put forth by the regular

doctors and regularized doctors, it cannot be said that the respondents

(Union Government and its officials) disobeyed the orders of this Court by

their action or inaction. The rival claims led to a state of confusion. We have

therefore given the clarification as above to put an end to the long pending

controversy.

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12. It is made clear that what is stated above is only an interpretation of

the orders dated 9.4.1987 and 29.10.1991. Neither the order dated 9.4.1987

nor the clarificatory order dated 29.10.1991 lays down any principle of law

in regard to either regularization or inter se seniority between regular

appointees and regularized appointees. The order dated 29.10.1991 merely

attempted to give finality to an issue which had arisen in the context of the

order dated 9.4.1987 which was in the nature of a consent order. In fact,

referring to the order dated 29.10.1991, this court stated thus in M.A. Haque

v. Union of India [1993 (2) SCC 213] :
"In fact this Court has, of late, been witnessing a constant violation of the
recruitment rules and a scant respect for the constitutional provisions
requiring recruitment to the services through the Public Service
Commission. It appears that since this Court has in some cases permitted
regularization of the irregularly recruited employees, some Governments
and authorities have been increasingly resorting to irregular recruitments.
The result has been that the recruitment rules and the Public Service
Commissions have been kept in cold storage and candidates dictated by
various considerations are being recruited as a matter of course. What is
further, in the present case, some of those like the petitioner-applicants
who were initially recruited on ad hoc basis, have exerted themselves and
taken pains to appear for the tests before the UPSC and have enrolled
themselves through regular channel unlike in Dr. Rawani case. We have
thus on hand three classes of employes as pointed out earlier, viz., the
outside direct recruits, the in-service direct recruits and the ad hoc
employees like the petitioner-applicants who were regularized through the
Court's order. Further, Dr. Rawani case as has been pointed out on behalf
of the respondents, pertains to the Central Government Health Services
which has a target component both at the initial and promotional stages.
The course adopted by this Court to direct creation of supernumerary
promotional posts at every higher promotional stage there, may not be
feasible in the medical service in the Railways. The creation of
supernumerary posts has its own limitations, both physical and financial.
The burden of additional posts even when they are not necessary and
cannot be accommodated, is not easy to carry. We are, therefore, of the
view that the directions given in Dr. Rawani case has to be confined to

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the special facts of that case and cannot be extended to other cases. In
any case, this Court should not give any such direction to the Railways. If,
however, the Railways decide to follow that course, they can do so and
nothing prevents them from doing it. We would rather refrain from
creating a precedent by giving such directions".
[emphasis supplied]




Whatever we have stated above will apply only to the controversy that has

arisen in regard to the interpretation of the order dated 29.10.1991. It is

made clear that neither the directions in the order dated 29.10.1991

(reported in 1992 (1) SCC 331) nor the clarification of those directions by

this order, shall be construed as an enunciation of any general principle nor

be applied as a precedent in any other case relating to any dispute between

regularly appointed employees and regularized employees.



13. With the above observations and clarifications, and a direction that

the respondents shall give effect to the order dated 29.10.1991, as clarified

above, the contempt petitions and applications for clarification/modification

are disposed of.

...............................J
[S. B. Sinha]


.................................J
[R. V. Raveendran]

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.................................J
[Markandeya Katju]
New Delhi;
November 14, 2008.