Case: Harkishan Singh Vs. State Of Punjab &amp; Ors

to the selection grade was said by the appellant to be an infraction of rule 9 (2). The contention of the appellant with regard to rule 5 was that it spoke of appointment to the service either by promotion from Class II or by direct recruitment and therefore there could be direct recruitment only to Class I service and not to the selection grade. It was emphasised that rule 5 did not specifically provide for direct appointment to selection grade.12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit idea in-herent in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade. 13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outside. 14. A contention was advanced by counsel for the appellant that rule 3 contemplated appointment by the Government on the advice of the Public Service Commission and that the appointment of Dr. Pritam Singh was not made on such advice. The recruitment of Dr. Pritam Singh to the post of Chief Medical Officer was in consultation with the Punjab Public Service Commission. That appointment was made in the month of May, 1963. Being a direct recruit he was on probation for two years. He was confirmed thereafter. His starting salary was higher and at the time of confirmation he was getting a salary of Rs. 1250/- p.m. in the scale of Rupees 800-50-1500. Dr. Pritam Singh prior to his appointment to the selection grade in the Punjab Civil Medical Service Class I was getting a salary of Rs. 1250/- p.m. which was higher than the limit of time scale pay in Class I service. 15. The other contention on behalf of the appellant was that Dr. Pritam Singh should not have got seniority, over the appellant and the respondent Dr. Sekhon in the selection grade. Prior to the appointment of Dr.Pritam Singh to the selection grade the seniority list of Class I service to which the appellant and the two respondents belonged was not fixed because of representations made by various persons including the appellant and Dr, Sekhon. We are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade. 16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniority- When Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade. 17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit ideat in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outsideWe are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniorityWhen Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust.