Case: State of Uttar Pradesh and Another Vs. M. J. Siddiqui and Others

in the list of the officers by direct recruitment in 1957 batch.Note: 1. The lists of the officers by direct recruitment and by promotion will contain only the names who were appointed temporary and permanent in PMS (I) with the approval of the Public Service Commission.2. In accordance with the aforesaid principles G the names of the officers will be placed in the list by direct recruitment after approval by the Commission for regular appointment.3. The names of the officers will be placed in the list of promotee officers in order of the determined seniority in accordance with the above mentioned principles G vide notification No. 2780 K/5/247/57 dated the 13th June 1963."24. It was in consequence of these directions that the Government by virtue of the order impugned fixed the seniority of the members of the new Service, placing the appellants above the petitioners and awarding to them the selection grade Prior to the petitioners.25. Thus, in short, the, heart of the matter is whether the order of 1968 as confirmed by the order dated 18-12-1971 was in any way inconsistent with Rules 17 and 18 of the 1945 Rules so as to nullify the mode of seniority adopted by the Government and the promotion to the selection grade made by it under the impugned order. In our opinion, the following propositions emerge from the history of the new service and the foregoing discussion:-(1) To begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5 Rules.26. We might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of the Constitution. In order to illustrate our point we give below a chart showing the different attributes possessed by the two set of officers, namely, the appellants and the petitioners:-----------------------------------------------------------Appellants Petitioner-----------------------------------------------------------1. Appellants were direct 1. The Petitioners cases wererecruits to PMS I; sent for consideration by theappointed in a substan- selection Committee in Junetive capacity in a reg- 1963 but they were not consid-ular manner on the reco- erd fit for selection videmmendation of the Public the relevant extracts belowService Commission though from the Affidavit of Mukundto temporary posts. Swarup Srivastava. UpperDivision Assistant, MedicalSection, U.P. civilSecretariat:" All the petitioners who wereeligible for promotion wereeligible for promotion by thepublic Service Commission andthe Departmental SelectionCommittee in the mannerprescribed, vide officememorandum dated May 15 , 1956as modified byOffice memorandum datedDecember 18, 1956. The casesof the petitioners were notrecommended by the SelectionCommittee for promotion toProvincial Medical Service I."(Emphasis ours)2. The appellants were 2. The Petitioner belonged toadmittedly appointed by the PMS II which was a subordinate Governor to a higher Service, Service with a lower scale ;Viz., PMS I Carrying a higher their appointing authorityScale of pay with better being the Director, Medicalprospects and higher Service and not the Governor.responsibilities.3. At the time of appointment 3. The petitioner did not putto the selection grade the in the requisite experience inappellants had put in there- PMS I for promotion toquisite experience of more selection grade.than eight years in PMS Irequired for promotion to theselection grade.27. Having regard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superior officers.28. A number of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with those authorities.29. As regards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him.

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

Explanation:
1[ds]In our opinion, the High Court seems to have laid undue stress on the fact that the appellants were appointed on a temporary basis while overlooking the surrounding circumstances and the terms of the advertisement and the Rules, A referred to above, under which the appellants were appointed. We have already indicated that Rule 17(23 was the only Rule under which are temporary or a n officiating appointment could be made by the Governor without reference to the Public Service Commission. In the instant case, it is not disputed that the appellants were appointed after reference to and on the recommendations of the Public Service Commission. The appointment of the appellants, therefore. would, not fall under Rule 17(2). What then is the nature of the appointments of the appellants is the serious question to be decided. In our opinion, reading the advertisement and the manner and mode of the appointment of the appellants, it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to continue. There does not appear to be any magical formula or special charm in the word substantive. The mere use of the term appointment in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors. In the instant case, we cannot ignore the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants w ere appointed. Another circumstances that supports our view is that the appellants were not appointed merely on an ad hoc basis but through the Public Service Commission and in a regular way. Finally, the appellants were appointed to PMS I which was doubtless a superior service carrying a higher scale than PMS II of which the petitioners wereview of the circumstances discussed above, we are inclined to take the view that not much can be made of the fact that the order appointing the appellants 1-7 does not mention that they were appointed In a substantive capacity and that what is said is that they were appointed on a temporary basis. We shall consider this aspect more fully after we have completed the history of the Services and their ultimate merger as well as the events following thereafter. We might mention, however, that Dr. M. J. Siddiqui (respondent No. 1 in Civil Appeal No. 2870 of 1977) had filed a petition in the High Court regarding his seniority and other matters but before the petition could be heard the two Services were merged and the petition was ultimately dismissed on 2-8-196 5 asmaking promotions from the lower service to the higher. service, the Government finally decided to have one medical service and with this object in view by order No. U- 1312-A-II/V-2566/63 dated 2-11-64, the Government merged the two Services, namely, PMS I and PMS II with effect fromwas rather unfortunate that while merging the two services into one, the Government did not consider it expedient to lay down rules for fixing inter se Seniority of the officers of the two erstwhile services. It was, however, mentioned in para 4 that rules regarding fixation of the said seniority would issue separately. Another important aspect of the matter which is germane to the issues arising in these appeals is that while the right to inter se seniority of the members of the two services was reserved, there is no provision in the order which either applies or continues the Rules of 1945 even in respect of the inter se seniority of members of each merging service. It w as, therefore, rightly contended by the appellants that in the absence of any such provision in the order which was also passed under Art. 309 of the constitution and was therefore of a statutory character or, at any rate, had a statutory flavour, the Rules of 1945 could not be applied to the situation obtaining after 31-15-1964 subsequent orders passed by the Government throw some light on thisis, therefore, manifest that during the interregnum, that is to say, 1-11-64 to 22-2-65, the Rules of 1945 were inapplicable so far as the new Service was concerned. It was for the first time on the 20th February 1965 that by the order, extracted above, the U.P. Medical Service (Mens Branch) Rules, 194 5 were made applicable to the new Service and that too on a purely provisional basis until fresh Rules were framed by the Government for determining the inter se seniority 1 of the officers concerned. The words unless otherwise ordered clearly show that the application of the 1945 Rules was purely provisional and was to remain in force unless fresh rules were made. Another order by the Government was passed on 26-12-67 regarding the mode of recruitment, qualifications, etc., which is not very relevant for our purpose. Ultimately, a final order laying down the principles on the basis of which the inter se seniority of the members of the two Services was to be determined in the new Service were laidwas in consonance with these directions that the Government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12. So far as the appellants were concerned, they clearly fell within the ambit A of direction (b) which provided for officers appointed to PMS I either on a permanent or temporary basis prior to the merger in a regular manner in consultation with the Lok Sewa Ayog (Public Service Commission) in order of their seniority. It may be pertinent to note here that direction (b) does not speak of any substantive appointment whatsoever but equates the officers appointed to PMS I on permanent or temporary basis prior to merger. In other words, what the direction contemplates is that any officer appointed to a post whether permanent or temporary in PMS I which was the Senior Service prior to merger, would rank after merger above those officers who were drawn from PMS II. That the appellants fulfilled all the conditions mentioned in direction (b) is not disputed but the constitutionality of that direction was challenged before the High Court on the ground that it was inconsistent with Rule 18 of the 1945 Rules. This contention found favour with the High Court which held that direction (b) was invalid as being inconsistent with the Rules of 1945. In coming to this finding, the High Court appears to have overlooked the fact that the 1945. Rules did not apply to the new Service at its inception and that they were made applicable to the new Service only for a short while by virtue of the order dated 20th February 1965, purely on a provisional basis as the Government made it quite clear in that order itself that the 1945 Rule s will apply unless otherwise ordered and thus had reserved the right to pass final orders regarding seniority later which was done in 1968. In these circumstances, therefore, the order of the High Court suffers from twothat there was no real or apparent inconsistency between rule 18 of the 1945 Rules and the 1968 directions, .(ii) that initially the 1945 Rules ceased to apply to the new Service but were made applicable thereto only for a shortwhile by way of a stop-gap arrangement inHigh Court appears to have interpreted the directions of 1968 completely out of context. On the other hand, we feel that those directions seek to strike a just balance between the officers of the erstwhile Services after they were merged into the new Service. We shall immediately show that having regard to the exigencies of the situation created by the merger, no other mode of seniority , which was just and fair, could be evolved for the newour opinion, the following propositions emerge from the history of the new service and the foregoingTo begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of theregard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superiornumber of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with thoseregards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him.