IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-04-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION No.8810 OF 2000 & 6639 OF 2001 and W.P.M.P.NOs.12980 OF 2000 & 9434 OF 2001 W.P.No.8810 of 2000 Dr. Sankar Reddy Asst. Director (RMO) General Hospital, Pondicherry. .. Petitioner Vs. 1. The Union of India, rep. by its Union Territory of Pondicherry, through its Secretary, Health and Welfare Department (Health), Govt. of Pondicherry, Pondicherry. 2. The Registrar, Central Administrative Tribunal, Madras Bench. 3. Dr. Bala Suguna 4. Dr. Vijayalakshmi 5. Dr.A.P. Sreedharan 6. Dr. Sama Subhas 7. Dr.M. Elangovan 8. Dr.S.T. Vijaya Raghavalu 9. Dr. Soudamani 10. Dr.K.V. Nadeer Ahamed 11. Dr. Ramalingam Appadurai 12. Dr.N. Nilamani 13. Dr. Sivasubramanian 14. Dr.R. Elumalai https://hcservices.ecourts.gov.in/hcservices/ 15. Dr.A. Sevaraj 16. K. Durairaj 17. Dr.S. Doraisamy 18. Dr.S. Gurumurthy 19. Dr.V. Sundaraj 20. Dr.T. Kumaravel .. Respondents W.P.No.6639 of 2001 1. Dr.T.R. Brinda Bai 2. Dr.K. Nithiyanandan 3. Dr. Bala Thrupurasundari 4. Dr. Pedaveerraju Parvathani 5. Dr. Haja Farook .. Petitioners Vs. 1. The Central Administrative Tribunal, Madras Bench, rep. by its Registrar, High Court Campus, Chennai 104. 2. The Union of India, rep. by its Union Territory of Pondicherry, through its Secretary, Health and Welfare Department (Health), Govt. of Pondicherry, Pondicherry. 3. Dr. Sankar Reddy 4. Dr. Venkata Reddy 5. Dr. Shailar Martharam 6. Dr.R. Chandrasekaran 7. Dr. Bala Suguna 8. Dr. Vijayalakshmi 9. Dr.A.P. Sreedharan 10. Dr. Dama Subhas 11. Dr.M. Elangovan 12. Dr.S.T. Vijaya Raghavalu 13. Dr. Sudamani 14. Dr.K.V. Nadeer Ahamed 15. Dr. Ramalingam Appadurai 16. Dr.N. Nilamani 17. Dr. Sivasubramanian 18. Dr.R. Elumalai 19. Dr.A. Selvaraj 20. Dr.K. Durairaj https://hcservices.ecourts.gov.in/hcservices/ 21. Dr.S. Duraisamy 22. Dr.S. Gurumurthy 23. Dr.V. Sundaraj 24. Dr.T. Kumaravel .. Respondents Petitions filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records relating to the order dated 7.10.1999 of the Central Administrative Tribunal made in O.A.No.358 of 1997 in WP.6639/01 along with consequential Office Memorandum No.A/23012/1/99/H1 dated 26.4.2000 and quash the same (WP.8810/00) For Petitioners : Mr. Karthik Raja for Mr.R. Parthiban For Respondent-1 in WP.No.8810/00 & : Mr.Syed Mustafa R2 in WP.6639/01 A.G.P. (Puducherry) For Respondents 8,11, 12,15,16,18 to 24 : No Appearance in WP.6639/01 & R4, 4, 8, 11, 12, 14 to 20 in WP.8810/01 No Appearance For Respondent-4 : Mr.S. Venkataraman - - - COMMON ORDER P.K. MISRA, J W.P.No.8810 of 2000 has been filed against the decision of the Central Administrative Tribunal in O.A.No.358 of 1997 dated 7.10.1999 by Respondent No.2 in such O.A.. W.P.No.6639 of 2001 has been filed by certain other Medical Officers working under the Puducherry Government against the very same order of the Tribunal by obtaining leave from this court as they were not parties to such decision in O.A.No.358 of 1997. For convenience, the parties are described as per the array in W.P.No.6639 of 2001. 2. The most common and vexed question in service jurisprudence, namely, the question of seniority, is the issue. 3. The facts giving rise to the present writ petitions are as follows :- https://hcservices.ecourts.gov.in/hcservices/ 3.1 All the private combatants in this saga of these never ending legal battles had entered medical services of the Government of Puducherry as Assistant Surgeons on ad hoc basis on different dates. Respondents 7 to 24 were subsequently regularly selected through the Union Public Service Commission (UPSC), but the petitioners and Respondents 3 to 7 in W.P.No.6639 of 2001 were not selected through the UPSC at that stage either because they were over-aged or may be because some of them were found not suitable. 3.2 Be that as it may, Respondent No.3 in W.P.No.6639 of 2001 (the petitioner in W.P.No.8810 of 2000) along with one M. Venkata Reddy and the petitioners in W.P.No.6639 of 2001 had filed O.A.No.126 of 1989 before the Central Administrative Tribunal, (Madras Bench) as applicants 1 to 7 respectively impleading the Union of India represented by the Chief Secretary Puducherry, the Health Secretary of Puducherry Government and the Union Public Service Commission, claiming for a direction for regularisation of their services with effect from the dates of their initial appointment as Assistant Surgeons or in the alternative, to direct such respondents to appoint them on regular basis as Assistant Surgeons by relaxing the recruitment rules without reference to the amendment issued in G.O.Ms.No.16/85 dated 26.3.1985. The main contention was to the effect that such persons had continued in service on ad hoc basis for unusually long period and all of them had completed the age of 35 years, which was the upper age limit prescribed. It was contended by them that merely because the UPSC did not complete the process of regularisation in time, such persons should not be allowed to suffer. 3.3 Vide judgment dated 20.4.1990, the Tribunal passed the following order :- "In view of the peculiar circumstances of this case, we direct the respondents to regularise the services of the applicants and all those similarly placed who were appointed prior to 26.3.1985. They 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 the period for three years prior to 26.3.1985. Such evaluation shall be done by the UPSC. The Doctors so regularised shall be appointed as Asst. Surgeons with effect from the date from which they have been continuously working as Asst. Surgeons. The respondents are at liberty to terminate the services of those who do not qualify for such regularisation. This benefit would be available only for those ad-hoc Assistant Surgeons who had been appointed prior to the issue of G.O.Ms.No16/85 Health dated 26-3- 1985 and have completed minimum of three years service as on that date." (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 4. Before the ink had dried in the above order, Review Application No.54 of 1990 was filed for reviewing the latter portion of the direction "This benefit would be available only for those ad-hoc Assistant Surgeons who had been appointed prior to the issue of G.O.Ms.No16/85 Health dated 26-3-1985 and have completed minimum of three years service as on that date.". 5. While such Review Application was pending, the UPSC in compliance of the direction in the main judgment considered the cases and recommended regularisation of the respondents 3 to 6 by letter dated 19.8.1991. While such recommendation was under consideration of the Puducherry Government, the Review Application was allowed by the Tribunal as per order dated 21.10.1991 by observing: "... Hence we are of the view that the direction confining the benefit only to those persons who had completed three years of service as on 26-3-1985 is an obvious mistake. Therefore, the said direction which is extracted supra, is deleted. We further direct the respondents to consider the cases of all those adhoc Asst. Surgeons who were appointed prior to 26-3-1985 for regularisation in accordance with the decision of this Tribunal." 6. The Government of Puducherry vide G.O.Ms.No.11 dated 26.2.1992, by referring to order of the Tribunal in O.A.No.126 of 1989 and the letter of the UPSC dated 19.8.1991, regularised the services of the petitioner in W.P.No.8810 of 2000 and three others. (Respondents 3 to 6 in W.P.No.9434 of 2001) with effect from the date of the original ad hoc appointment. Subsequently, Respondents 7 to 24 in W.P.No.9434 of 2001 filed O.A.No.358 of 1997. Of these, Respondents 7 to 20 had been appointed as Assistant Surgeons way back between 1981 and 1983 and Respondent Nos.21 and 23 had been appointed on 14.4.1987 and Respondent No.24 was appointed on 9.10.1989 on regular basis. Their prayer in O.A.No.358 of 1997 was to the effect that all of them having been appointed on ad hoc basis much before their regular recruitment through UPSC, they should be regularised in service with effect from the date of their initial ad hoc appointment as had been done in the case of Respondents 2 to 5 in O.A.No.358 of 1997 (Respondents 3 to 6 in W.P.No.9434 of 2001). On the aforesaid basis they had prayed that the seniority list contained in Government's Order dated 5.11.1996, whereunder such Respondents 3 to 6 were shown seniors, should be revised. 7. In the reply statement filed before the Tribunal, the stand of the Puducherry Government was to the effect that the applicants before the Tribunal as well as the private respondents https://hcservices.ecourts.gov.in/hcservices/ were appointed as Assistant Surgeons on purely temporary and ad hoc basis and subsequently the Department had notified the vacancies to the UPSC on different occasions and thereafter regular appointment orders had issued on the basis of the recommendation made by the UPSC. It was further indicated that Respondents 2 to 5 in the O.A.No.358 of 1997 were regularised with effect from the date of their initial ad hoc appointment on the basis of the direction issued by the Tribunal. 8. During the pendency of such O.A.No.358 of 1997, in compliance with the order dated 21.10.1991 in Review Application No.54 of 1990, the UPSC again considered the cases of other Doctors, who had been appointed on ad hoc basis prior to 26.3.1985, and recommended regularisation of some of the Doctors vide letter dated 5.12.1997. The Puducherry Government vide order dated 28.7.1998 regularised the services of the petitioners in W.P.No.6639 of 2001 with effect from the dates of their initial ad hoc appointments. 9. The Tribunal took note of the fact that the earlier decision of the Tribunal relating to retrospective regularisation was based on the decision of the Supreme Court in A.K. Jain's case (1988 SCC L&S 222), but thereafter the Supreme Court in the case of STATE OF HARYANA v. PIARA SINGH (1992 SCC (L&S) 825) had observed that the direction regarding retrospective regularisation should not be given mechanically. Similarly the Tribunal also referred to the decision of the Supreme Court in M.A. HAQUVE v. UNION OF INDIA (1993(24) ATC 117). The Tribunal ultimately disposed of the O.A., by giving direction to the following effect, which is found in para 10 of the order :- "10. In the result, a direction is given to the official respondents to follow the principles laid down in the above cases and fix the inter se seniority and publish a fresh seniority list within a period of three months from the date of receipt of a copy of this order. It is open to the respondents to give notice to such persons who will be effected and fix the seniority accordingly. The O.A. is ordered in the above terms." 10. After such direction was issued by the Tribunal, the Puducherry Government issued a revised seniority list, wherein, the petitioner in W.P.No.8810 of 2000 as well as the petitioners in W.P.No.6639 of 2001 were shown as juniors to several other Assistant Surgeons. At that stage, the Respondent No.2 in O.A.No.358 of 1997 filed W.P.No.8810 of 2000 by challenging the order dated 7.10.1999 of the Tribunal in O.A.No.358 of 1997 and also for quashing the consequential Office Memorandum dated 26.4.2000. In the other writ petition also, same challenge has been made. https://hcservices.ecourts.gov.in/hcservices/ 11. The main contention raised by such petitioner in W.P.No.8810 of 2000 is to the effect that since the Tribunal had already issued a direction in O.A.No.126 of 1989, which had become final and had been subsequently given effect to by the Government by regularising the services of such petitioner with effect from the date of initial ad hoc appointment, the Tribunal should not have unsettled such position by giving a direction regarding regularisation of seniority. It is also contended that since the main relief claimed by the applicants in O.A.No.358 of 1997 regarding re-fixation of their services with retrospective effect from the date of their initial appointment had not been acceded to by the Tribunal, there was no scope for issuing a further direction regarding refixation of seniority. It is further contended that the applicants before the Tribunal (present Respondents 3 to 20 in W.P.No.8810 of 2000 - Respondents 7 to 24 in connected W.P.No.6639 of 2001) have approached the Tribunal after a long lapse of seven years after the disposal of O.A.No.126 of 1989, therefore, no direction should have been issued. 12. The contention of the petitioners in W.P.No.6639 of 2001, who were not parties in O.A.No.358 of 1997 (obviously because of the regularisation order relating to them was passed only on 28.7.1998 during pendency of such O.A.No.358 of 1997), is to the effect that such petitioners had filed O.A.No.126 of 1989 along with the petitioner in W.P.No.8810 of 2000 and the Tribunal had given a direction, which was subsequently reviewed, and since all such petitioners have been regularised with effect from their ad hoc appointment, they could not have been shown as juniors. It is contended therein that the earlier order of the Tribunal operates as res judicata and could not be challenged in a collateral proceeding. 13. In course of hearing of the writ petition, Ms.R. Vaigai, the learned counsel appearing for Respondents 7 to 24 (Respondents 3 to 20 in W.P.No.8810 of 2000), who were the applicants in O.A.No.358 of 1997, withdrew her appearance by stating that such respondents were no longer interested to contest the writ petition. 14. A reading of the decision of the Tribunal makes it clear that the Tribunal was not happy with the direction earlier given relating to regularisation with retrospective effect and, therefore, did not give such a specific direction, but, on the other hand, being conscious of the fact that the applicants before the Tribunal had in fact been regularly recruited through UPSC much before the controversy had arisen, should not have been shown as juniors, passed orders protecting their seniority. https://hcservices.ecourts.gov.in/hcservices/ 15. In service jurisprudence, ordinarily seniority of an employee is counted from the date on which such employee is appointed on regular basis by following the prescribed method of selection and appointment. There is no dispute that for appointment to the post of Assistant Surgeon, subsequently renamed as General Duty Medical Officer, selection is required to be made by the UPSC. Similarly, there is no dispute that, as per the rules, the seniority of the Doctors is fixed in accordance with the list prepared by the UPSC and there is no specific rule that on regular selection by the UPSC., the seniority could relate back to the initial date of ad hoc appointment. The Tribunal in its order has only given effect to such well recognised principle. 16. The main plank of attack by the petitioners in the two writ petitions is based on the principle of res judicata. It has been submitted that since the Tribunal in O.A.No.126 of 1989 and Review Application No.54 of 1990 had given a direction for regularisation of the Doctors appointed on ad hoc basis prior to 26.3.1985 in consultation with the UPSC with effect from the date on which they have been continuously working as Assistant Surgeons and regularisation of such Doctors having been effected by the Pondicherry Government with effect from the date of their initial appointment as ad hoc Doctors, the Tribunal had no jurisdiction to go behind its earlier order, which had become final and such order of regularisation had also remained unchallenged. On the aforesaid basis, it is contended that the Tribunal has committed an error of law in directing refixation of seniority. 17. It is of course true that the direction of the Tribunal in O.A.No.126 of 1989 and R.A.No.54 of 1990 had not been challenged by the Puducherry Government or the UPSC, who were parties to such proceedings and, to that extent, such orders became final as against the Puducherry Government and the UPSC. However, other incumbents in service, who had already been regularly appointed by extant service rules, were not parties to such original proceedings and it cannot be said that such decision operated as res judicata so far as they were concerned. 18. At any rate, the Tribunal had never purported to decide that such persons on their regularisation shall also be treated as seniors to the incumbents. In fact the Tribunal had given a direction that the question of regularisation of the applicants before the Tribunal as well as other similarly placed persons should be considered by the UPSC. If the seniority of a person could not get selected either because of overage or because of non-selection, it should be counted from the date of initial ad hoc appointment and yet such consideration should not be shown to other persons who were initially appointed on ad hoc basis and subsequently made regular in accordance with the rules, which would https://hcservices.ecourts.gov.in/hcservices/ give rise to an anomalous and inequitable position and is required to be avoided. Since the Tribunal under the impugned order was conscious that such anomalous and inequitable position waslikely to emerge, its ultimate direction that seniority of the employees should be refixed by keeping in view the dates of regular selection through UPSC is appropriate. 19. Regularisation in service has many facets and many consequences including the question of increment, counting of service for the purpose of pension as well as the question of seniority depend upon such regularisation. In the context in which the initial disputes were raised, it is obvious that the Tribunal was only concentrating on the question regarding protection to the ad hoc employees who due to various reasons could not get selected on regular basis. The obvious intention was to protect their service or otherwise such persons would have been thrown out of the job and may be to also protect their increments, but it cannot be visualised that the Tribunal, at that stage, also intended that such persons who had missed the bus earlier would steal a march over all other regularly appointed doctors employees. This conclusion is more obvious in view of the fact that none of the incumbents had been impleaded as respondents in O.A.No.126 of 1989. 20. Having regard to all these aspects, we do not find any error requiring interference with the order of the Tribunal. 21. Learned counsels for the petitioners also contended that the Tribunal's order in O.A.No.126 of 1989 and R.A.No.54 of 1990 had been passed during 1989 and 1990 and had not been challenged. It may be that the Puducherry Government or the UPSC did not thought it fit to challenge such decision. However, since the Respondents 7 to 24 (Applicants in O.A.No.358 of 1997) were not parties to O.A.No.126 of 1989, it cannot be said that they were bound by such decision. 22. The allied contention raised in this regard is to the effect that O.A.No.358 of 1997 having been filed long after, the settled seniority should not have been unsettled. This submission is again based on misconception in the matter. The materials on record indicate that even though the applicants in O.A.No.358 of 1997 had been included in the regular seniority list rightly, subsequently, on revision of the seniority list in the year 1996 wherein the Respondents 3 to 6 were shown as senior of them, the Original Application was filed in the year 1997. Therefore, it cannot be said that under the impugned order passed by the Tribunal in O.A.No.358 of 1997, the settled seniority was being unsettled. https://hcservices.ecourts.gov.in/hcservices/ 23. The petitioners in W.P.No.6639 of 2001 contended that initially only the Respondents 3 to 6 had been regularised on the basis of the letter issued by the UPSC based on consideration of the initial order dated 20.4.1990, but the order dated 21.10.1991 passed in Review Application had not been implemented for a long time and it came to be implemented only in 1998 and, therefore, such persons should be atleast shown in the seniority list just below the Respondents 3 to 6 and such persons should not be made to suffer because of the delay in implementation of the order. Learned counsel has therefore submitted that all such petitioners in W.P.No.6639 of 2001 should be slotted just below the Respondents 3 to 6. 24. Though such a submission on the face of it may appears to be attractive, on deeper scrutiny, we are unable to countenance this submission. If this submission is accepted, such petitioners would have to be treated as senior to some of the other incumbents who have been shown senior to such petitioners. However, in the absence of others, who have been shown senior to such petitioners in the seniority list, it would not be appropriate to countenance such a submission. 25. Both the writ petitions are accordingly disposed of, subject to the aforesaid modification and observations. No costs. Consequently, the connected miscellaneous petitions are closed. Dpk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Union Territory of Pondicherry, Union of India, through its Secretary, Health and Welfare Department (Health), Govt. of Pondicherry, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 2. The Registrar, Central Administrative Tribunal, Madras Bench. + 1 cc to Mr. S. Venkata Raman, Advocate SR No. 21320 + 1 cc to Mr. R. Parthiban, Advocate SR no. 21250 + 2 ccs to the Senior Government Pleader SR.Nos. 22247 22245 COMMON JUDGMENT IN WP.NOs. 8810 of 2000 & 6639 of 2001 BV(CO) SR/17.6.2008 https://hcservices.ecourts.gov.in/hcservices/