y Application No 1 of 1992
IN Writ Petition No 1165 of 1986
Under Article 32 of the Constitution of India
MC Bhandare PP Rao NN Goswamy CK Sucharita Ms Shashi Kiran Ms Manjula Gupta R Shashi Prabhu VK Verma and Raj Kumar Gupta for PC Kapur for the appearing parties
The Judgment of the Court was delivered by SAWANT J
The petitioner applicants are some of the Medical Officers who were recruited by the Railways on id hoc basis as Assistant Divisional Medical Officers between 1968 and 1st October 1984
They were appointed as such ad hoc employees by way of a stop gap arrangement pending the regular recruitment to the said posts through the Union Public Service Commission UPSC  for short according to the rules
It appears that although from time to time the UPSC recruited candidates on regular basis there remained some vacancies unfilled either because the doctors recruited were less in number than the number of vacancies since suitable candidates were not available or some of those who were selected did not join the service or between the date of advertisement by the UPSC and that of the empanelling some more vacancies occurred
Whatever the reasons the fact was that even after the UPSC undertook the exercise of recruiting the doctors from time to time some vacancies always remained unfilled
The result was that every time the petitioner applicants and others like them were continued on ad hoc basis as a stop gap arrangement till the next recruitment by the UPSC
It may be mentioned in this connection that the ad hoc appointees were always at liberty to appear before the UPSC for their regular recruitment
Some of them in fact did so appear and were selected others like the petitioner applicants either failed to be selected or did not care to appear
The fact however remains that the petitioner applicants and others like them continued to serve on ad hoc 4 basis since 1968
Hence they filed writ petitions in this Court for their regularisation in service
By an order dated 24th September 1987 passed in the case of Dr AK Jain  Ors
vs Union of India  Ors
 1987 Supp
SCC 497 at 500 this court directed as follows 1 The services of all doctors appointed either as Assistant Medical Officers or as Assistant Divisional Medical Officers on ad hoc basis up to October 1 1984 shall be regularised in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in respect of a period subsequent to October 1 1982
Such evaluation shall be done by the Union Public Service Commission
The doctors so regularised shall be appointed as Assistant Divisional Medical Officers with effect from the date from which they have been continuously working as Assistant Medical OfficerAssistant Divisional Medical Officer
The Railway shall be at liberty to terminat e the services of those who are not so regularised
If the services of any of the petitioners appointed prior to October 1 1984 have been terminated except on resignation or on disciplinary grounds he shall be also considered for regularisation and if found fit his services shall be regularised as if there was not break in the continuity of service but without any back wages
2 The petitions of the Assistant Medical OfficersAssistant Divisional Medical Officers appointed subsequent to October 1 1984 are dismissed
But we however direct that the Assistant Divisional Medical Officers who may have been now selected by the Union Public Service Commission shall first be posted to the vacant posts available wherever they may be
If all those selected by the UPSC cannot be accommodated against the available vacant posts they may be posted to the posts now held by the doctors appointed on ad hoc basis subsequent to October 1 1984 and on such posting the doctor holding the post on ad hoc basis shall vacate the same
While making such postings the principle of last come first go  shall be 5 observed by the Railways on zonal basis
If any doctor who is displaced pursuant to the above direction is willing to serve in any other
zone where there is a vacancy he may be accommodated on ad hoc basis in such vacancy
3 All Assistant Medical OfficersAssistant Divisional Medical Officers working on ad hoc basis shall be paid the same Wary and allowances as Assistant Divisional Medical Officers on the revised scale with effect from January 1 1986
The arrears shall be paid within four months
4 No ad hoc Assistant Medical OfficerAssistant Divisional Medical Officer who may be working in the Railways shall be replaced by any newly appointed AMOADMO on ad hoc basis
Whenever there is need for the appointment of any AMOADMOs on ad hoc basis in any zone the existing ad hoc AMOADMOs who are likely to be replaced by regularly appointed candidates shall be given preference
5 If the ad hoc doctors appointed after October 1 1984 apply for selection by the Union Public Service Commission the Union of India and the Railways Department shall grant relaxation in age to the extent of the period of service rendered by them as ad hoc doctors in the Railways
All the Writ Petitions are disposed of in the above terms
 It appears that since they experienced difficulty in adjusting the seniority of the petitioner applicants the Union of India moved an application before this Court and this court on 1st November 1988 made the following order in that application We have heard learned counsel for the Union of India the applicant in this Civil Miscellaneous Petition and the learned counsel for the petitioners in the Writ Petition
In the circumstances of the case we feel that the Union 6 Government should be directed to implement the order passed by us in the writ petition Nos 522 875 180  200 of 1987 and connected cases on 24th September 1987 in full except to the extent of fixing the inter se seniority between the petitioners in the Writ Petition and the direct recruits
We accordingly make an order in this case
The question of seniority however is left to be decided by the Government in the light of the decision to be rendered by this Court in the cases which are pending before the Constitution Bench involving similar questions
If any person is aggrieved by the decision of the Government on the question of seniority he is at liberty to question it in an appropriate forum
The order passed by us in the Writ Petition subject to the above modification shall be complied with by the Union Government within two months without failure
The Civil Miscellaneous Petition is disposed of accordingly
 The present application has been moved in Writ Petition No 1165 of 1986 which has been disposed of on 24th September 1987 along with other writ petitions in which also the aforesaid order of 1st November 1988 was made by this Court
Thus we are concerned in this application with those Assistant
Divisional Medical Officers who were appointed between 1968 and 1st October 1984 and who have been regularised by the aforesaid two orders but whose seniority remains to be fixed
After the order of 1st November 1988 the Constitution Bench of this Court delivered its judgment in Direct Recruit Class II Engineering Officers  Association  Ors
vs State of Maharashtra  Ors
  pending  which decision the fixation of seniority of the petitioner applicants was kept pending
In that case the Constitution Bench has laid down certain guidelines for fixing the seniority
Two of them viz A  B which are relevant for our purpose are as follows A Once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of 7 his appointment and not according to the date of his confirmation
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement the officiation in such post cannot be taken into account for considering the seniority
BIf the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules the period of officiating service will be counted
 Before we discuss as to which of the above two guidelines would be applicable in this case it is necessary to state the relevant facts relating to the applicants  appointment
Firstly it is an admitted fact that the UPSC introduced the Combined Medical Services Examination for the first time in the year 1977
Prior to 1977 the method of recruitment was otherwise than by examination
As stated earlier some of the petitioner applicants were recruited between 1968 and 1977
Secondly the petitioner applicants were given three chances for their selection through the UPSC but they did not avail of them
Some of those who were appointed with them however had availed of the chances and have been appointed as regular direct recruits and they have been given their seniority from the date they were regularly appointed through the UPSC
Thirdly it appears that although in 1977 the written examination was introduced on account of exigencies the UPSC held two special selections in the years 1982 and 1985 based on interviews only and by relaxing the age limit
In these two special selections respectively 100 and 67 ad hoc doctors like the petitioner applicants were selected and absorbed in the regular cadre
They have also been given their seniority from the date they were so absorbed regularly
The petitioner applicants either failed to appear in these examinations also or after appearing in the same had failed Thus while fixing the seniority of the petitioner applicants we have to keep in mind that there are three classes of Assistant Divisional Medical Officers i the outsiders who have been directly recruited through the UPSC either on the basis of the written examination or the interview ii 8 those who were ad hoc appointees like the applicants but who came to be regularly recruited through the UPSC by appearing in the written examination or in the interview and iii the present petitioner applicants who either did not appear in any written examinationinterview or had failed to get through them but who have been regularised in service because of the orders of this Court dated 24th September 1987 and 1st November 1988
Since the petitioner applicants are admittedly not regularly appointed through the UPSC according to the rules but have been directed to be regularised by following the procedure laid down by this Court it is obvious that they are not appointed to their posts according to the rules
Under no circumstances therefore they fall within the scope of guideline A laid down in Direct Recruit Class II Engineering Officers Association s case supra
In fact they do not fall under guideline B given therein either since their regularisation is not in accordance with the rules but as a consequence of special procedure laid down by this Court
The expression in accordance with the rules  or according to rules used in the said guidelines A and B means the rules of recruitment and not the special procedure laid down by this Court
The petitioner applicants thus fall in an altogether different category not covered under any of the guidelines given in Direct Recruit Class II Engineering Officers  Association s case supra
We have therefore to evolve a procedure for fixing their seniority
That procedure cannot be in violation of the guidelines laid down in Direct Recruit Class II Engineering Officers Association s case supra
Secondly the seniority given to the petitioner applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below that of the directly recruited erstwhile ad hoc Medical Officers This is not and cannot be disputed on behalf of the petitioner applicants
This matter was heard earlier on 14th September 1992 and was reserved for judgment
At that time neither the in service direct recruits nor the outsider direct recruits were made parties to the application
They made separate applications being IA Nos 2 and 3 respectively for im pleadmentintervention and requested that they be heard in the matter before judgment is pronounced
Hence this matter was set down for a fresh hearing and all the parties were heard on 11th and 18th January 1993
The anxiety of the interveners was obvious
In no case their seniority should be disturbed and they be penalised for passing the examinationsinterview tests and for coming into the cadre according to the rules through 9 the UPSC and no premium should be given to the applicants for their refusal to appear for the tests or for their failure to pass the same
This contention of their is unexceptionable and whether they had appeared in the case or not the Court was bound to protect their interests particularly when the matter was heard in their absence
The petitioner applicants however relied upon a decision of this Court in Dr PPC Rawani  Ors etc vs Union of India  Ors JT 1991 6 534
Shri Bhandare appearing for the petitioner applicants made a very fervent plea that in the circumstances the course adopted by this Court in Dr Rawani s case supra should be followed which will do no injustice to both the categories of direct recruits
We have gone through the said decision and have anxiously considered whether the course adopted there should be adopted in the present case
We are conscious of the fact that the petitioner applicants have been serving the Railways from the year 1968
It is also possible as contended on their behalf that many of the outside direct recruits have joined the service long after 1968 and some of them might have even taken initial instructions from the petitioner applicants
We are also conscious of the fact that candidates in service have a disadvantage as against the fresh candidates in the tests particularly when they face the tests after a long lapse of time
As against this however we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach
If a disregard of the rules and the by passing of the Public Service Commissions are permitted it will open a back door for illegal recruitment without limit
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 regularisation 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 s case supra
We have thus on hand three classes of 10 employees 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 regularised through the Court s order
Further Dr Rawani s case supra as has been pointed out on behalf of the respondents pertains to the Central Government Health Services which has a larger 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 direction given in Dr Rawani s case supra has to be confined to 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
In the result we direct that the seniority of the direct recruits both outsiders and insiders should be determined according to the dates of their regular appointment through the UPSC and the petitioner applicants should be placed in the seniority list after those direct recruits who are recruited till this date
Among themselves their seniority will be governed by the dates of their initial appointment
The interlocutory application is disposed of in the above terms
GN Application disposed of


Summary:
The respondent accused was prosecuted for committing rape on a child of 89 years of age
The prosecution case was that while the prosecutrix PW4 her father PW5 and elder sister PW7 were in their fields it suddenly started raining and all the three ran towards their house PW4 got separated from the two kins and was following them when the accused then aged about 16 years took her under a mango tree and committed rape on her PW5 who in the meantime returned to the fields in search of PW4 saw the accused lying on her he raised an alarm whereupon PW7 rushed to the spot and the accused ran away leaving PW4 crying and bleeding per vagina
The victim was got medically examined the same day and the doctor PW1 besides mentioning the injuries on the private part of the prosecutrix reported that she had been subjected to sexual intercourse
At the trial PW5 PW7 and the doctor PW1 who had medically examined the prosecutrix supported the prosecution case in its totality
The trial court held that the accused had committed an offence of rape under s376 IPC on the prosecutrix and sentenced him to suffer RI for a period of five years
18 The accused riled an appeal before the High Court which acquitted him
The State filed the appeal by special leave to this Court
Allowing the appeal this Court HELD 1I Courts must be wary circumspect and slow to interfere with reasonable and proper findings based on appreciation of evidence as recorded by the lower courts before upsetting the same and acquiring an accused involved in the commission of heinous offence of rape of hapless girl child
p24B C 12
The High Court without appreciating or properly discussing the evidence committed an error in setting aside the findings recorded by the trial court which were based on proper appreciation of evidence and were not unreasonable much less perverse
The judgment of the High Court is based on conjectural findings and cannot be sustainedpp22B C 25A 3
The statement of prosecutrix PW4 is clear cogent and specific
The Sessions Judge recorded her statement on being satisfied that she was capable of giving evidence
She narrated the occurrence in a simple and straight forward manner
The prosecution case was fully supported by her during her statement and nothing has been brought out in the cross examination from which any doubt could be caused about her veracity
Her statement receives ample corroboration from the testimony of her father PW5 who is found to be a truthful and reliable witness
The medical evidence of PWl has supported the prosecutrix in all material particulars
The evidence of PW7 who had also seen the accused running away from the scene of crime further lands credence to the prosecution version
pp21E H 22A 21
There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction
Evidence has to be weighed and not counted
Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity
p22D 22
In the instant case the evidence of the prosecutrix is found to be reliable and trustworthy
No corroboration was required to be looked for though enough was available on the record
The medical evidence provided sufficient corroboration
p22E 19 31
There is no inflexible axiom of law which lays down that the absence of injuries on the male organ of the accused would always be fatal to the prosecution case and would discredit the evidence of the prosecutrix otherwise found to be reliable
Every case has to be approached with realistic diversity based on peculiar facts and circumstances of that case and inferences have to be drawn from the given set of facts and circumstances
p24D F Rahim Beg  Anr
vs State of UP
  distinguished
The doctor PW3 who had examined the respondent found him to be capable of sexual intercourse and according to him the absence of injury on the male organ of the accused was not suggestive of the fact that he had not indulged in sexual intercourse with the prosecutrix then of tender years of age
His evidence was not at all challenged on this aspect by the defence
p24F G 41
The judgment of the High Court acquitting the accused is set aside
The accused is convicted under S376 IPC for having committed rape on the prosecutrix and sentenced to suffer regorous imprisonment for a period of five years
pp 25H 26A 42
Though for such an offence a more severe sentence would have been desirable but neither the State sought enhancement of the sentence by filing an appropriate petition nor any notice in this regard had been issued to the accused and without putting him on such a notice the Court cannot enhance the sentence Me provision prescribing more stringent minimum sentence under Section 376 was also incorporated in the Code by an amendment only with effect from December 1982 after the offence in the instant case had been committed
p25D G