Supreme Court of India

State Of U.P. And Anr vs M. J. Siddiqui And Ors on 31 March, 1980

Equivalent citations: 1980 AIR 1098, 1980 SCR (3) 254, AIR 1980 SUPREME COURT 1098, 1980 LAB. I. C. 644, 1980 SCC (L&S) 321, 1980 (3) SCC 174, (1980) 1 SERVLR 868

Author:
Syed Murtaza Fazalali

Bench:
Syed Murtaza Fazalali
,
N.L. Untwalia
,
A.D. Koshal

PETITIONER:
STATE OF U.P. AND ANR.

Vs.

RESPONDENT:
M. J. SIDDIQUI AND ORS.

DATE OF JUDGMENT31/03/1980

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
KOSHAL, A.D.

CITATION:
1980 AIR 1098 1980 SCR (3) 254
1980 SCC (3) 174

ACT:
Seniority, inter-se of direct recruits and promotees
prior to the merger of PMS I and PMS II as per order 18-12-
68-Validity of the seniority list dt. 31-12-71 pursuant to
the order fixing the principles Dt 18-12-71 -Pradeshik
Medical Services, 1964-Whether the order is inconsistent
with Rule 18 of the U.P. Medical Services Rules 1945.
In the State of U.P. there were two Medical Services
consisting of doctors serving in the State. The senior
service was called the Provincial Medical Service (P.M.S.)
This service was a gazetted service carrying a higher scale
of pay than the other service which was known as P.S.M.S.
(Provincial Subordinate Medical Service). So far as the
P.M.S. was concerned, the incumbents of the posts in the
service were appointed by the Governor, whereas in the case
of the P.S.M.S., the employees were appointed by the
Director, Health Services. On June 14, 1945, the Government
of U.P. framed rules known as the "United Province Medical
Services (Men's Branch) Rules, 1945" which were applicable
to P.M.S. Only. Rule 3(b), (f), and (h) defined "Direct
Recruitment", "Member of the Service" and "Subordinate
Medical Service", respectively. Rule 5 provided for two
modes of recruitment. Rule 12 provided that selection of
candidate for direct recruitment shall be made in
consultation with the Public Service Commission Rule 13
prescribed the mode of interview. Rule 15 laid down modes of
recruitment by promotions. Rule 17 specified the "appointing
authority" and the manner in which the vacancies should be
filled in. Under Rule 18, seniority in the service shall be
determined by the date of order of appointment in a
substantive vacancy. Rule 19 required that all persons
whether recruited directly or by promotion be placed on
probation, while Rule 20 laid down the circumstances under
which a person appointed to a post in the Service on
probation may be confirmed.
On 14-3-1946, two Medical Services were constituted,
namely (i) Provincial Medical Service Grade I (popularly
known as P.M.S. I ) and (ii) Provincial Medical Service
Grade II (known as P.M.S. II). It was decided that existing
members of PMS II were to be absorbed in PMS I and further
recruitment of medical graduates should be made to PMS II in
order to replace the PSMS, By an order dated July 24, 1951,
the Government laid down that 50 per cent of the vacancies
in PMS I were to be filled in by direct recruitment and 51
per cent by promotion. The principle for determination of
inter se seniority between direct recruits and the promotees
in PMS I was not laid down at the time when the Government
order was made. In spite of the quota fixed by the order
dated 24-7-1951, no promotion from PMS II to PMS I could be
made between the years 1952 to 1963, except on an ad hoc
basis. On July 14, 1962 by virtue of an advertisement, the
Public Service commission invited applications for
recruitments to 56 gazetted posts out of which 9 posts were
permanent and the rest were temporary but were likely to
continue. In pur-
suance of this advertisement, the appellants applied for
direct recruitment to PMS I and they were ultimately
appointed on a temporary basis some time in June 1963, but
before the merger of the two services (PMS I and PMS II)
which came into existence on November 1, 1964. This merger
was brought about through an order of Government dt. 2-11-
64. By this order the Pradeshik Medical Service (Men/Women)
was constituted which had two grades; namely-ordinary grade
which included all the existing posts of PMS I, and PMS II
and Selection Grade to consist of 71/2% of the total number
of permanent posts in the ordinary grade. By para 2 it was
specified that "the permanent and temporary posts in PMS I
and PMS II grades shall continue to remain as such on their
merger until the temporary posts are made permanent
subsequently". By para 4, the Government proposed to issue a
further order regarding the fixation of the inter-se
seniority while the right to fix inter-se seniority of the
members of the two services was reserved, no provision was
made in the order which either applies or continues the
Rules of 1945 even ,3 in respect of inter-se seniority of
members of each merging service. Thereafter another order
was passed on 20-2-1965 by which the U.P. Medical Service
(Men's Branch) Rules 1945 were made applicable provisionally
to the new PMS with the words "unless otherwise ordered".
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 was
made on 18-12-68. In consonance with the directions
contained in this order, the Government fixed the seniority
of appellants 1 to 7 and petitioners 1 to 12. The appellants
fell within the ambit of direction (b) of the order dt. 18-
12-68 which provided for officers appointed to PMS 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. By
a Notification dated July 3, 1970 issued under
Art. 309
of
the Constitution, the Governor made certain amendments to
Rule 25 of the 1945 Rules, which dealt with promotion to the
post of Civil Surgeon. The Government Thereafter directed
through its order dt. 18-12-71 certain principles to be
followed regarding fixation of seniority. As per this order
the Government by its order dt. 31-12-71 fixed the inter-se
seniority of the members of the new service, placing the
appellants above the petitioners/respondents and awarding to
them the selection grade prior to the petitioners.

HEADNOTE:
The petitioners/respondents challenged the vires of
these orders as (a) ultra vires
Articles 14
and
of the
Constitution; (b) in consistent with the Rules 17 and 18 of
the 1945 Rules. The High Court accepted the plea of the
petitioners/respondents. Hence the appeals by special leave
by the appellants and the State.
Allowing the appeals, the Court
^
HELD: 1. The combined effect of Rules 12, 13, IS and 17
of the United Province Medical Service (Men's Branch),
Rules, 1945 is that whereas in the case of direct
recruitment, the matter was to be considered by the Public
Service Commission after advertising the vacancies, so far
as recruitment to the Service by promotion is concerned, a
Selection Committee constituted under the Rules had to send
the lists to the Commission. In a third category of cases to
which appointments were made purely on a temporary or
officiating basis there was no provision for reference
either to a Selection Committee or to
the Commission and such appointments could be made by the
Governor under sub-rule (2) of Rule 17. [262B-C]
In the instant case, the direct recruit applied to the
Government in pursuance of an advertisement and they were
appointed to the Senior Service only after they were
recommended by the Public Service Commission. The
appointment, therefore, was not a purely officiating,
temporary or ad hoc appointment as contemplated by Rule
17(2). [262D-E]
2. There is no 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
appointment, the Court must look to the substance of the
matter, the surrounding circumstances, the mode, the manner
and the terms of appointment and other relevant factors. In
the instant case. Reading the advertisement and the manner
and mode of the appointment of the appellants it is clear
that they were appointed in a substantive capacity lo
temporary posts which according to the advertisement were
likely to continue. Moreover the appellants were appointed
to PMS I which was doubtless a [superior service carrying a
higher scale than PMS II of which the petitioners were
members. [265B-E]
Purshottam Lal Dhingra v. Union of India, [1958] SCR
828; followed.
3. The fact that due to some oversight on the part of
appointing authority or to other fortuitous circumstance the
order placing the appellants on probation was not passed for
long would not give any special advantage to the
petitioners, (respondents) who were themselves drawn from a
lower service and even if they held a substantive post in
such service, they cannot by virtue of promotion to the
higher service af ter the appellants, claim seniority over
the latter. [266E-F]
4.
Articles 14
and
of the Constitution have not been
violated because a person who is appointed to a higher
service carrying a higher scale must r ordinarily be deemed
to be senior to an employee who is promoted from a lower
service to the higher service even though his appointment
may have been substantive in the lower service. [266 F-G]
Kewal Krihsan Bagga v. The Chairman Railway Board and
Ors., [1976] 4 S.C.C. p. 733; followed.
5. In the absence of any provision in the order dated
2-11-64 either applying or continuing the Rules of 1945 even
in respect of the inter-se seniority of members of each
merging service, 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 2-11-64.
[268G-H]
6. The Directions in the order dated 18-12-68 strike a
just balance between the officers of erstwhile services
after they were merge into the New Services. Direction (b)
of order dt. 18-12-68 regarding fixation of seniority does
not speak of any substantive appointment whatsoever but
equates the
officers appointed to PMS I on permanent or temporary basis
prior to the merger. In other words, the direction
contemplates 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. [271B, C, G]
7. The 1945 Rules did not apply to the New Service at
its inception and what they were made applicable to the new
service only for a shortwhile 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 Rules will apply 'unless otherwise ordered' and thus
had reserved the right to pass final orders regarding
seniority later which was done in 1968. [271D-E]
8. Direction (b) of the order dt. 18-12-68 is not
inconsistent with Rule 18 of the 1945 Rules. Having regard
to the history of PMS I and PMS 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
of the Constitution.
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. This is clear
from the following propositions: D
(i) To begin with, the Rules of 1945 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 'hat 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.
(ii) 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 reserved the right
to do so.
(iii) 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 18-12-1971. [273G-H,
274A-E, 275D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2870 &
2869 of 1977.

Appeals by Special Leave from the Judgment and order
dated 31-1-1977 of the Allahabad High Court in Civil Misc
Writ Petition No. 2852 of 1972.

G. L. Sanghi, Manoj Swarup, Miss Lalita Kokli and Miss
Indu Khindri for the Appellant in CA 2869/77.
L. N. Sinha, Attorney General, G. N. Dixit and O. P
Rana for the Appellant in CA 2870/70.

S. P. Gupta and Pramod Swarup for RR 12 in both the
appeals.

R. K Jain for RR 13 in CA 2870/77.

The Judgment of the Court was delivered by
FAZAL ALI, J.-These two appeals by special leave are
directed against a judgment dated January 31, 1977 of the
Allahabad High Court by which the High Court accepted the
writ petitions filed by the pre sent respondents 1 to 12 and
quashed the order dated December 31, 1971 of the Government
of U.P. insofar as it related to respondents numbers 3 to 12
and 14 to 39 before the High Court. The High Court further
directed the State to redetermine the seniority of the
regular PMS II officers and the temporary PMS I officers in
the light of the observations made and the findings given by
the High Court.

Against the order of the High Court two appeals have
been filed to this Court-one by the State of Uttar Pradesh
(which is Civil Appeal No. 2870 of 1977) and the other by
the appellants l to 8 (Civil Appeal No. 2869 of 1977) who
were respondents numbers 3 and 33 to 39 before the High
Court. For the purpose of brevity and to avoid confusion we
would refer to respondents I to 12 before the High Court as
the 'petitioners' and respondents numbers 3 and 33 to 39
before the High Court as the 'appellants'.

The main controversy between the parties centered round
fixation of their seniority in a new service which was
created by an order of the Government dated November 2,
1964. Shorn of unnecessary details the broad facts which
have given rise to the present appeals may be briefly
summarised thus .

In the State of U.P. prior to 1945 there were two
Medical Services consisting of Doctors serving in the State.
The senior service was called the P.M.S., that is to say,
the Provincial Medical Service. This service was a gazetted
service carrying a higher scale of pay than the other
service which was known as P.S.M.S. (Provincial Subordinate
Medical Service) which was a non-gazetted service with a
lower scale of pay. It may also be noticed that so far as
PMS was concerned, the incumbents of the posts in the
Service were appointed by the Governor whereas in the case
of the PSMS, the employees were appointed by the Director,
Health Services. We have mentioned these two facts because
the nature of the Services, the scales of pay, the mode and
member of appointment of incumbents to the two Services
would be a very relevant factor in order to determine
whether or not the decision rendered by the
High Court was correct. On June 14, 1945, the Government of
U.P. framed rules known as The United Provinces Medical
Service (Men's Branch) Rules, 1945' which were applicable to
PMS only and contained definitions, the relevant parts c f
whom being covered by clauses (b), (f) and (h) may be
extracted thus:-

"3. (b) 'Direct recruitment' means recruitment under B.
rule S(l).

(f) 'member of the Service' means a person appointed
in a substantive capacity under the provisions of
these rules or of the rules in force previous to
the promulgation of these rules, to a post in the
cadre of the service;

(h) 'Subordinate Medical Service' means the
Subordinate medical Service (Men's Branch) of the
U.P."

Rule 5 provided that recruitment to the Service
covered by the Rules (hereinafter referred to as the 'Senior
Service') was to be made by two modes-

(i) by selection from among the persons who were
eligible for appointment to the Service under the
provisions of the Rules whether or not they were
already in the permanent service of the Crown, and

(ii) by promotion from the Subordinate Medical Service
provided that the number of posts to be filled by
promotion was limited to 10 per cent of the total
number of posts borne on the permanent cadre of
the service.

Rule 9 provided that a candidate for appointment to the
Senior Service must be between 22 and 32 years of age on the
1st July of the year in which the recruitment was to be
make. By a subsequent amendment it was provided that in the
case of scheduled caste candidates the age limit could be
extended by another five years, and that the Governor could,
in consultation with the Public Service Commission, relax
the upper age limit upto 40 years in favour of any candidate
or class of candidates. Rule 10 laid down the academic
qualifications for a candidate to be eligible for
recruitment to the Senior Service. The relevant portion of
that Rule may be quoted thus:-

"10. Academic qualifications
A candidate for recruitment to the Service must-

(a) hold a M.B.B.S. Or an equivalent degree of a
University established by law in India and
recognised by the Medical Council in India;

OR
(b) possess a foreign qualification recognised by
the Medical Council of India if he does not
hold a M.B.B.S. or an equivalent degree of a
University established by law in India.

A candidate who possesses post-graduate
degree or diploma recognised by the Medical
Council of India in any branch of Medical Science
shall, be given preference in the matter of
recruitment to the Service."

Rule 12 provided that selection of candidates for direct
recruitment shall be made in consultation with the Public
Service Commission who, when called upon to do so, was to
invite applications in the prescribed form. Rule 13
prescribed the mode in which the interview was to be held in
respect of candidates who applied for recruitment to the
Service. The relevant portion of that Rule may be extracted
thus:-

"13. Interview-(I) The Commission will
scrutinise the applications received by them and
require so many candidates qualified for
appointment under these rules as seem to them
desirable to appear before them for interview at
their own expense.

(2) No candidate will be admitted to the
interview unless he holds a certificate of
admission granted by the Commission.

(3) The Commission shall draw up a list of
such candidates as it considers suitable for
appointment in order of preference and shall
forward it to the Government.

(4) Subject to the provisions of rules 6 and
16(2) the Governor shall appoint as vacancies
occur the candidates who stand highest in order of
preference in the list prepared by the Commission
under sub-rule (3), provided that he is satisfied
that they are duly qualified in other respects."

Rule 15 was the provision which required the recruitment of
candidates by promotion and may be quoted thus :-

"15. Recruitment by promotion-(1) officers of
the Subordinate Medical Service, who have more
than 14 years' service and are less than 45 years
of age on the 1st of August of the year in which
recruitment is to be made, shall be eligible for
promotion to the Service.

(2) The principle of selection shall be
seniority subject to the exclusion of those who
are not fit for promotion.
(3) The Inspector-General shall recommend
names of officers of the Subordinate Medical
Service who are eligible and whom he considers
suitable for promotion to the Service on the basis
of the record of their work and, if necessary,
interview.

(4) A preliminary selection from amongst the
officers recommended by the Inspector General and
other eligible persons shall be made by
departmental selection committee consisting of
the-

(i) Secretary to Government, United
Provinces, Medical department,

(ii) Inspector-General, and

(iii) Director of Public Health, U.P."
It would thus be seen that so far as promotion from the
Subordinate Medical Service to the Senior Service was to be
made, this could be done on the recommendation of the
Inspector-General which was to be endorsed by a Selection
Committee constituted under Rule 15(4), quoted above. It was
further provided under Rule 15 that the Selection Committee
after considering the relative merits of the candidates will
submit lists to the Government and Rule 15(5) required the
Government to forward both the lists to the Commission
alongwith the necessary papers. Sub-rule (6) of Rule 15
empowered the Governor to make the final selection after
considering the advice of the Commission. Rule 17 which has
been the subject matter of serious controversy between the
parties may be extracted thus:-

"17. Appointing authority: (1) Appointment to the
Service shall be made by the Governor on the occurrence
of substantive vacancies. Appointment in vacancies to
be filled by direct recruitment shall be made from
amongst the persons included in the list prepared under
rule 13(3). Similarly appointments in vacancies to be
filled by pro motion shall be made from amongst the
persons selected under rule 15(6). G-
(2) The Governor may make appointments in
temporary or officiating vacancies from amongst persons
who are eligible for permanent appointment to the
Service under these rules."

A perusal of Rule 17 would reveal that the appointment
was to be made to the Senior Service by the Governor on the
occurrence of substantive vacancies. It is also clear from
this rule that appointment
in vehicles to be filled by direct recruitment would have to
be made from amongst persons included in the lists prepared
under rule 13(3) (supra) and appointment in other vacancies
to be filled by promotion under Rule 15(6) (supra). Sub-rule
(2) of Rule 17 empowered the Governor to make temporary or
officiating appointments in vacancies from amongst persons
who were eligible for permanent appointments to the Service
under these Rules. We might mention here that the combined
effect of Rules 12, 13, 15 and 17 is that whereas in the
case of direct recruitment, the matter was to be considered
by the Public Service Commission after advertising the
vacancies, so far as recruitment to the Service by promotion
is concerned, a Selection Committee constituted under the
Rules had to send the lists to the Commission. In a third
category of cases which were appointments made purely on a
temporary or officiating basis there was no provision for
reference either to a Selection Committee or the Commission
and such appointments could be made by the Governor. This is
rather important because while the High Court had laid very
great emphasis on the fact that appellants I to 8 were
appointed not in substantive vacancies but on a purely
temporary basis, it cannot be contended by any show of force
that the appointment of the appellants, who were admittedly
direct recruits, could be made under Rule 17(2). The
admitted position is that the direct recruits applied to the
Government in pursuance of an advertisement and they were
appointed to the Senior Service only after they were
recommended by the Public Service Commission. The
appointment of the appellants, therefore, was not a purely
officiating, temporary or Gd hoc appointment as contemplated
by Rule 17(2) (supra). We might also emphasis the fact at
this stage that it is undisputed that the petitioners while
being members of PSMS had also applied for promotion to the
Senior Service sometime in the year 1963 but their cases
were not recommended by the Selection Committee at all. We
shall, however, deal with this aspect of the matter at a
later stage of this judgment. Rule 18 is the provision which
lays down the criterion for determining seniority and may be
extracted thus, because the High Court has strongly relied
on this provision
"18. Seniority
Seniority in the Service shall be determined by
the date of order of appointment in a substantive
vacancy, provided that if two or more candidates are
appointed on the same date their seniority shall be
determined according to the order in which their names
are mentioned in the order of appointment."
According to this Rule, the yardstick to determine the
seniority appears to be the date of the order of appointment
in a substantive vacancy. The sheet-anchor of the argument
of the petitioners both in the High Court and in this Court
has been that as the appellants were not appointed in
substantive vacancies they cannot claim seniority under Rule
18 whereas the petitioners having been promoted to the
Senior Service from the PSMS and in more or less substantive
vacancies, they would be deemed to be senior to the
appellants. The High Court, as already noticed, accepted the
case of the petitioners although the State of U.P. supported
the case of the appellants and has also filed an appeal
against the order of the High Court.

Relevant part of Rule 19 which is also important may be
extracted thus:-

"19. Probation, Discharge, etc.: (1) All persons
whether recruited directly or by promotion, shall on
their appointment in or against a substantive vacancy
be placed on probation for a period of one year,
provided that the Government may extend the period of
probation in individual case. The previous officiating
or temporary service in a post in the cadre of the
Service shall count toward the period of probation."
Rule 20 lays down the circumstances under which a person
appointed to a post in the Service on probation may be
confirmed. According to this Rule the incumbent can be
confirmed if he has completed the period of his probation or
any extended period and the Governor is satisfied that he is
fit for promotion.

On the 14th of March 1946, two new Medical Services
were constituted, viz., (1) Provincial Medical Service Grade
1, popularly known as 'PMS I', in the scale of Rs. 200-10-
320-15-500, and (2) Provincial Medical Service Grade II,
known as PMS II, carrying a scale of Rs. 120-4-10-8-200. It
was decided that existing members of PMS were to be absorbed
in PMS I and further recruitment of medical graduates should
be made to PMS II in order to replace the PSMS. By order No.
4534A/V-614/1949 dated July 24, 1951, the Government laid
down that 50 per cent of the vacancies in PMS I were to be
filled in by direct recruitment and 50 per cent by
promotion. Unfortunately, the prin. Simple for determination
of inter se seniority between direct recruits and the
promotees in PMS I was not laid down at the time when the
Government order was made. It appears that upto the year
1952, while five PMS II officers were promoted to PMS I and
four officers of merged States working in PMS I were
adjusted against the promotion quota in PMS I, 23 officers
were appointed to PMS by direct recruitment
against substantive vacancies. Certain modifications were
made by Government office Memorandum No. 1591/II B-50-1955
dated May 15, 1956 as modified by another Government office
Memorandum No. 4760/II B-50-55 dated December 18, 1956. But
these changes are not germane for the purpose of the present
appeals. It appears, however, that in spite of the quota
fixed by the order dated 24-7-1951, no promotion from PMS II
to PMS I could be made between the years 1952 to 1963
exception an ad hoc basis. This brings us to a very
important date which forms the pivotal basis for the
decision of the points in controversy and for the
determination of inter se seniority of the petitioners and
the appellants. On July 14, 1962 by virtue of an
advertisement, the Public Service Commission invited
applications for recruitment to 56 Gazetted posts out of
which 9 posts were permanent and the rest were temporary but
were likely to continue. The relevant portion of the
advertisement may be extracted thus:

"Applications are invited for the following 16
Gazetted posts (a) For Medicine-8, (b) For Surgery-8,

(c) For orthopaedics-S, (d) For E.N.T. Surgery-4, (e)
For T.B.-7, (f) For Radiology-8, (g) Mental
Specialists-3, (h) For Anaesthesia-13; 9 posts of (h)
are permanent, rest are temporary but likely to
continue (Advt. No. 671), Dept. No. R.B. 6)
Qualifications:

(i) M.B.B.S. degree from Lucknow or Agra
University.

Applicant should be amongst First twenty position
holders in order of merit from K.G. Medical College.
Lucknow or S.N. Medical College, Agra or must have any
of the post graduate qualifications approved by the
Indian Medical Council.

Desirable: Experience as Resident officer or an
Equivalent post.. "

It is not disputed that in pursuance of this
advertisement, the. appellants applied for direct
recruitment to PMS I and they were ultimately appointed on a
temporary basis sometime in June 1963 but before the merger
of the two Services (PMS I & PMS II) which came into
existence on November 2, 1964. One of the dominant questions
to be determined in this case is whether the appellants were
appointed purely on a temporary basis or in a substantive
capacity though against temporary posts. 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 an 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 Com- mission. 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 were
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 were members.
The
question as to what is a 'substantive appointment' is no
longer res integra but was clearly expounded in the case of

Parshotom Lal Dhingra v. Union of India
,(l) where this Court
made the following observations:

"The appointment of a Government servant to a
permanent post may be substantive or on probation or on
an officiating basis. A substantive appointment to a
permanent post in public service confers normally on
the servant so appointed a substantive right to the
post
Likewise an appointment to a temporary post in
Government service may be substantive or on an
officiating basis. Here also, in the absence of any
special stipulation
or any specific service rule, the servant so appointed
ac quires no right to the post and his service can be
terminated at any time except in one case, namely, when
the appointment to a temporary post is for a definite
period The substantive appointment to a temporary post,
under the rules, used to give the servant so appointed
certain benefits regarding pay and leave, but was
otherwise on the same footing as appointment to a
temporary post on probation or on an officiating
basis."

It was contended by Mr. Gupta, learned counsel for the
petitioners that according to the 1945 Rules, the appellants
could not be said to have been appointed in a substantive
capacity because one of the essential ingredients of such an
appointment was that they should have been placed on
probation for a period of one year. Reference was made in
this connection to Rule 19, the relevant portion of which
may be again quoted thus:

"All persons whether recruited directly or by
promotion, shall on their appointment in or against a
substantive vacancy be placed on probation for a period
of one year
It was submitted that there is nothing to show that the
appellants were on their appointment to the PMS I placed on
probation and, on the other hand, the order of probation was
passed long afterwards, i.e., in 1970, which was shortly
before their confirmation. It does appear that due to some
oversight on the part of the appointing authority or to
other fortuitous circumstance, the order placing the
appellants on probation was not passed for long but that
would not give any special advantage to the petitioners who
were themselves drawn from a lower service and even if they
held a substantive post in such service, they cannot by
virtue of promotion to the higher service after the
appellants, claim seniority over the latter. The petitioners
also cannot complain on any discrimination on the ground
that
Article 14
or 16 of the Constitution was violated
because a person who is appointed to a higher service
carrying a higher scale must ordinarily be deemed to be
senior to an employee who is promoted from a lower service
to the higher service even though his appointment may have
been substantive in the lover service.
In the case of
Kewal
Krishan Baga v. The Chairman, Railway Board & Ors
(1) this
Court observed as follows.

"It was finally urged that clerks in the old
establishment were wrongly accorded seniority over
godown keepers in
the cadre of clerks in the Northern Railway in which
both clerks and godown keepers were assimilated. This
argument overlooks the basic consideration that clerks
in the Amritsar godown while working under the Punjab
Government were placed in a higher scale of pay than
godown keepers. The decision to treat clerks as senior
to godown keepers was therefore not arbitrary or
irrational. In fact, some injustice done earlier to
clerks by fixing their inter se seniority with godown
keepers in the new establishment on the basis of their
length of service in the respective cadres was later
rectified by providing that clerks will be considered
as senior to godown keepers."

In view 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 2-8-1965 as infructuous. 13
After making 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 from 1-
11-64. The relevant portions of this order may be extracted
thus:-

"With a view to removing this shortage as also to
making the service conditions more attractive, the
Governor is pleased to order that instead of having two
medical services, viz, P.M.S. I and PMS II and a
selection grade in PMS I, there shall be, with effect
from November 1, 1964, one service to be called
Pradeshik Medical Service (Men/Women), Carrying the
scale of Rs. 250-25-350-EB-25-475-EB-25-600 EB-25-700,
ordinary grade, and Rs. 500-50-1000-E.B. 50-1200
selection grade, and shall consist of the following:

(a) Ordinary Grade:

(i) all the existing posts of P.M.S. I (both Men
and Women)
(ii) all the existing posts of P.M.S. II (both Men
and Women)

(b) Selection Grade:

7-1/2 per cent of the total number of
permanent posts in the ordinary grade.

2. The permanent and temporary posts in PMS I
and PMS II cadres shall continue to remain as such on
their merger into PMS until the temporary posts are
subsequently converted into permanent ones."

A perusal of this order manifestly reveals that the
distinction between PMS I and PMS II was abolished and the
two Services were constituted into one designated as
'Pradeshik Medical Service (Men/Women)' (hereinafter called
the 'new Service') which had two grades (1) the ordinary
Grade which was in the range of Rs. 250-700 and (2) the
selection grade which was in the range of Rs. 500-1200. It
was further provided that 7-1/2 per cent of the total number
of permanent posts in the ordinary grade would be reserved
for the selection grade. Para 2 of the order is rather
important as it appears to have kept alive, to some extent,
the distinction between the permanent and the temporary
posts in PMS I and PMS II. Para 4 of the order is very
important for our purpose and may be extracted thus:

"4. Orders regarding fixation of the inter
seniority of the existing P.M.S. I and P.M.S. II
officers in the P.M.S. will issue separately."

It was 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 was,
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 this point. As
the Government was not in
a position to lay down the Rules for fixation of inter se
seniority immediately after the constitution of the new
service, by way of a stopgap arrangement, the Government
passed order No. 20661-AII/V-2566-1963 dated February 20,
1965, the relevant portions of which may be extracted thus
"Subject:-Merger of P.M.S. I and n into P.M.S.
Sir,
In continuation of G.O. No. U-1312-A-II/V-
2566/1963 dated November 2, 1974 on the subject
mentioned above, I am directed to say that in
supersession of all previous orders on the subject the
Governor has been pleased to order as follows:-

(1) The U.P. Medical Service (Men's Branch) Rules,
1945 shall apply to the new, PMS unless otherwise
ordered.

(2) The appointing authority of P.M.S. shall be
the Governor.

(3) Disciplinary proceedings against the officers
of the P.M.S. will be drawn at Secretariat level, as in
the case of other gazetted officers.

(5) The following will be eligible for appointment
to P.M.S.

(a) Medical graduate of all Universities in India
recognised by the Indian Medical Council.

(b) Medical graduates who hold the M.B.B.S.
degree of Lucknow University, provided they
have served in house appointment for a term
of nine months in a teaching hospital before
they offer themselves for appointment.

.. .. .. .. ... ...

3. The number of permanent and temporary post in
P.M.S. I and II (Men and Women) as on the afternoon of
October 31, 1964 may please be reported to Government
immediately so that the strength of P.M.S. cadre on
November 1, 1964 may be fixed. Seniority lists of the
officers (Men & Women) in P.M.S. I and II also kindly
be furnished at once in duplicate as in the attached
proforma."

It is, 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 (Men's Branch) Rules, 1945 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 laid down. This order was passed by virtue
of G.O. No.3976 A-II/V-68/1757/65 dated 18-12-68 which may
be extracted thus:

"In supersession of G.O. No. 1004-A-II/V-2566/63
dated April 23, 1963, on the above subject, I am
directed to say that the Governor has been pleased to
order that the inter se seniority of the officers of
the merged cadre known as PMS should be arranged in the
following order:-

(a) Permanent PMS I officers in order of their
seniority already determined by Government
followed by,

(b) officers appointed/promoted to PMS I on
permanent or temporary basis prior to the
merger of PMS I and PMS II in the regular
manner in consultation with the Lok Sewa Ayog
in order of their seniority determined by
Government, followed by,

(c) officers of PMS II in order of their
seniority in the PMS II cadre prior to the
merger of PMS I and PMS II.

Note: If a PMS II officer was officiating in PMS I
but he has not been approved for promotion/appointment
to PMS I by the Lok Sewa Ayog, he shall rank in the PMS
in accordance with his seniority in PMS II.

2. I am to request that a seniority list of PMS
officers may please be prepared on the lines indicated
above and it may be sent to Government for their
approval as early as possible."

It was 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 Rules 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 two infirmities-

(i) that 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 in 1965.

The High 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 new Service.

By a notification dated July 3, 1970 issued under Act.
309 of the Constitution, the Governor made certain
amendments in the 1945
Rules including Rule 25 which related to recruitment to the
posts of Civil Surgeons and other PMS selection grade posts.
The amended rule may be extracted thus:-

"Part IX-Promotion to the post of Civil Surgeon
and other PMS-Selection grade posts.
Rule 25 (i) Recruitment to the posts of Civil
Surgeons and other PMS Selection grade posts, borne on
the cadre of the Service, shall be made by promotion on
the basis of seniority subject to rejection of the
unfit from among the members of the Service who hold
the M.B.B.S. Or higher degree and who have rendered not
less than 10 years' service."

Under this rule the promotion to the selection grade of
the new Service was to be made purely on the basis of
seniority subject to rejection of the unfit from among the
members of the Service or those who had rendered service for
less than ten years. The petitioners appear to have put
forward their claim to seniority as being above the
appellants in order to earn the selection grade before the
appellants on the ground that they had been appointed in a
substantive capacity, though in a lower service, prior to
the appointments of the appellants to the higher service.
Thereafter, it appears that the Government, after
considering the representations received from the former
officers of PMS and in consultation with the Public Service
Commission, more or less endorsed the principles laid down
for fixation of seniority in the 1968 order and directed in
an order dated 18-12-1971 seniority should be fixed on the
following principles:-

"(k) Keeping in view the balance in the seniority list
among the appointment by direct recruitment upto
1951 and the promotee officers. 19 promotee
officers may be given first 19 posts at the same
time.

(kh) In the list of the officer by promotion and direct
recruitment, Ratio of 1: 1 may be kept in the
seniority list in both the categories of the
officers from the 20th post, i.e, 20th post to the
promotee officer and 21st post may be given to
officer by direct recruitment. This will continue
until the batch of direct recruits upto 1963.

Thereafter the remaining promotee officers of
batch 1963 may be placed all together in the
seniority list. Thereafter, the direct recruits of
batch 1964 may be placed in the seniority list
together.
(G) The officers selected for permanent posts in a
year A may be placed over the officers selected
for temporary posts in the same year.

(GH) Five officers of the reserve list by the direct
recruitment of the year 1951 who were appointed
temporarily in 1952 and whose permanent
appointment was approved by the Commission in 1958
may be placed below 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."

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.

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 1945 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 pre vailed 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 reserved 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 1945 Rules.

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
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 were
recruits to PMS I; sent for consideration by the
appointed in a substan- selection Committee in June
tive capacity in a reg- 1963 but they were not consid-

ular manner on the reco- erd fit for selection vide
mmendation of the Public the relevant extracts below
Service Commission though from the Affidavit of Mukund
to temporary posts. Swarup Srivastava. Upper
Division Assistant, Medical
Section, U.P. civil
Secretariat:

" All the petitioners who were
eligible for promotion were
eligible for promotion by the
public Service Commission and
the Departmental Selection
Committee in the manner
prescribed, vide office
memorandum dated May 15, 1956
as modified by
Office memorandum dated
December 18, 1956. The cases
of the petitioners were not
recommended by the Selection
Committee for promotion to
Provincial Medical Service I."

(Emphasis ours)

2. The appellants were 2. The Petitioner belonged to
admittedly 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 authority
Scale of pay with better being the Director, Medical
prospects and higher Service and not the Governor.
responsibilities.

3. At the time of appointment 3. The petitioner did not put
to the selection grade the in the requisite experience in
appellants had put in there- PMS I for promotion to
quisite experience of more selection grade.

than eight years in PMS I
required for promotion to the
selection grade.

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.

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.

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 therefore the petitioners could not
claim seniority over him.
Thus, on a careful consideration of all the
circumstances of this case, we are clearly of the opinion
that the High Court committed an error of law in quashing
the order of the Government dated 31-12-1971 and directing
it to refix the seniority of the parties. Accordingly,
Appeals Nos. 2869 and 2870 of 1977 are allowed and the
orders passed by the High Court are set aside. The order of
the Government dated December 31, 1971 is hereby restored.
In the circumstances of the case, there will be no order as
to costs.

S.R. Appeals allowed.