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

2. The appellant was appointed and confirmed in Punjab Civil Medical Service Class I with effect from 26 February, 1955. Respondent No. 3 Dr. S. S. Sekhon was confirmed in the same Class I service On 28 February, 1955. The time scale salary of Class I service is Rs.0 with efficiency bar at Rs.. A class I officer on promotion to the selection grade is entitled to Rs. 1000/p.m. in a permanent pensionable post. The Punjab Government in the year 1961 offered him the post of Civil Surgeon in the Punjab Civil Medical Service. Dr. Pritam Singh expressed his willingness to accept the post at a suitable salary4. Respondent No. 2 Dr. Pritam Singh was appointed on 16 July, 1962 as Chief Medical Officer in the Punjab Civil Medical Service Class I in the scale of Rs.p.m. with such allowances as might be admissible under the rules. He joined the post with effect from 4 August, 1962. By an order of the Governor of Punjab dated 18 December, 1962 the post was directed to be in addition to the existing post of Civil Surgeons both in the selection grade and ordinary grade5. The Government of Punjab thereafter took steps of filling the post of the Chief Medical Officer, Chandigarh on a permanent basis through the Public Service CommissionA public notice inviting applications for the post was issued under the authority of the Commission in the month of April, 1963. Dr. Pritam Singh applied for the post. Neither the appellant nor respondent Dr. Sekhon applied for the post because they did not have the requisite qualifications prescribed for the post. Dr. Pritam Singh was selected by the Punjab Public Service Commission. The order of appointment by the Governor was issued on 10 May, 1963p.m. on his appointment as Chief Medical Officer on a regular basis in the time scale of Rs.0 with effect from 17 April 1963 as Principal Medical Officer, Chandigarh which was the name of the redesigned post of the Chief Medical Officer On 9 December, 1965 Dr. Pritwn Singh was confirmed with effect from 17 April, 1963 as Principal Medical Officer, Chandigarh7. On 20 October, 1966 the respondent Dr. Pritam Singh was appointed by the President of India in the selection grade of Punjab C1vil Medical Service in the scale of Rs.0 with effect from 20 October, 19668. The appellant impeached the order dated 20 October, 1966 appointing the respondent Dr. Pritam Singh in the selection grade to be in violation of the Punjab Civil Medical Service (Recruitment and Conditions of Service) Rules,1940 on two broad grounds; first, that the appointment to the selection grade of Punjab Civil Medical Service could be only by promotion from Punjab Civil Medical Service Class I and not by direct appointment, and, secondly, even if Dr. Pritam Singh could be appointed direct to the selection grade his seniority would be below that of the appellant and Dr. Sekhon.

Reasoning:
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.