Dr. Ashok Kumar Saxena v. State Of U.P And Others

N.B Asthana, J.:— The petitioner by means of this writ petition under Art. 226 of the Constitution prays for issuing a writ of certiorari to quash the letter dated 2-6-83 appointing respondent No. 4 Dr. R.K Goel as Lecturer in Orthopaedics in S.N Medical College, Agra and the order dated 30-10-89 regularising his appointment, for issuing a writ of mandamus commanding the respondents to appoint the petitioner as Lecturer/Assistant Professor in S.N Medical College, Agra with effect from 2-6-83 and for ousting respondent No. 4 from functioning as Lecturer in Orthopaedics in S.N Medical College, Agra.

2. The allegations in the writ petition in brief are that the petitioner passed M.B.B.S examination in the year 1971 securing 57.5% marks in aggregate. After doing the intern ship and house job the petitioner was ap pointed as Demonstrator in Orthopaedics in, S.N Medical College, Agra. In the year 1974 he completed the course of Diploma in Orthopaedics. In the year 1975 he was admitted to M.S course in Orthopaedics in S.N Medical College, Agra and completed his Master of Surgery course in 1976. He continued to work as Demonstrator in the said college for two years. On 22-4-77 he was appointed Orthopaedics Surgeon in district hospital Pauri Garhwal in Provincial Medical Services on ad hoc basis. His research works were published in national and international journals. In the year 1979 the petitioner was transferred as Orthopaedics Surgeon in.’ district hospital, Agra. During this posting he was also engaged in teaching and training of internnees and was also in charge of Rehabilitation and Handicapped Centre of the Hospital. In the month of February, 1981 the Director of Medical Health by means of an advertisement invited applications for appointment as Lecturers on ad hoc basis in different disciplines including Orthopaedics in medical colleges of the State of U.P (the copy of this advertisement is Annexure-I to the writ petition). The petitioner as well as respondent No. 4 applied for this post. Both of them were interviewed by Selection Board. On the basis of this interview held on 3-9-81 the Director of Medical Education prepared a panel of selected candidates and recommended the names to the Government for appointment as Lecturer on ad hoc basis in State Medical Colleges. On the basis of the recommendation, the State Government appointed Dr. Ram Bhajan as Lecturer in Orthopaedics in Gorakhpur Medical College. He, however, did not join and, therefore, Dr. Ajay Pant was appointed in his place on ad hoc basis. In the month of February, 1982 the Public Service Commission, U.P Allahabad, issued advertisement for the posts of Lecturer in Orthopaedics and other specialities in different medical colleges of the State of U.P The Master's degree in speciality with three years teaching experience as Tutor, Registrar, Resident/Research Experience/Medical Officer in Rehabilitation was the essential qualification. Teaching experience was to include one year teaching experience after doing post graduation. Preference was given to candidates having published re-; search work. On 17-5-83 the Public Service. Commission interviewed the petitioner and respondent No. 4 for the post of Lecturer in Orthopaedics. The candidature of respondent No. 4 was cancelled as he did not possess any teaching experience. The Public Service Commission, however, could not give recommendations on account of pendency of several writ petitions by the Lecturers serving in different medical colleges. The State Government vide order dated 2-6-83 appointed respondent No. 4 as Lecturer in Orthopaedics in S.N Medical College, Agra. He joined his duties on 11-6-83. This appointment letter is against the specific direction and policy of the Government not to make fresh ad hoc appointments in the State services. The appointment was also bad in law as ad hoc appointment could be made of a person who possessed the minimum qualification provided for regular appointment. The Government order dated 30-11-71 (Annexure-IV to the writ petition) clearly states that ad hoc appointment can be made only if the candidate possess minimum qualifications for regular appointment. The petitioner held a meritorious career and possessed all the relevant qualifications and, therefore, should have been appointed Lecturer in Orthopaedics in S.N Medical College, Agra. The appointment of respondent No. 4 is arbitrary, unjust and violates Arts. 14 and 16 of the Constitution of India, In Civil Misc. Writ Petn. No. 9725 of 1980, this Court laid down that the State Government can make ad hoc appointment of a person to a post who possesses the qualification for regular appointment. In pursuance of the advertisement of February, 1981 the ad hoc appointment was to be made for a period of one year. The ad hoc appointment of respondent No. 4 was made after the lapse of more than two years. Fresh advertisement should have been made for the post since more than the period for which the appointment was to be made had expired. It was a mala fide and arbitrary exercise of power by the State Government which is violative of Arts. 14 and 16 of the Constitution of India. This ad hoc appointment was also against the spirit of various Government orders which laid down that such appointments should be made only when they are strictly necessary and that too only for one year. It is further alleged that respondent. No. 4 is the son of retired Joint Director of Medical Services and, therefore, vide order dated 30-10-89 got his services regularised. This regularisation order is also bad in law inasmuch as the writ petition against the ad hoc appointment of respondent No. 4 was pending and since his appointment was only for a year, his services could not be regularised. It is also alleged that respondent No. 4 by misguiding and concealing material facts obtained orders in Writ Petition No. 7852 of 1984 from this Court for his continuation in service till a regular appointment was made.

3. Respondent No. 4 filed counter affidavit. According to him a corrigendum was published on 12-3-81 in ‘Hindustan Times’ by the Director Medical Education and Training. Candidates who had appeared in the examination for obtaining M.S Degree were also eligible for applying to the post of Lecturer on ad hoc basis in State medical colleges subject to the other conditions as mentioned in the aforesaid corrigendum. This corrigendum is Annexure-CA-2. The criteria for selection and appointment of Lecturers on ad hoc basis in State medical colleges had been changed earlier. He appeared in an interview for the appointment of Lecturer in Orthopaedics on ad hoc basis in February, 1980 but was not selected. Subsequently, interview was held on 3-9-81 in which he was selected by the Selection Committee for ad hoc appointment. He was duly appointed on 2-6-83 as Lecturer in Orthopaedics. His candidature was never cancelled by the Public Service Commission as alleged by the petitioner. No such communication was made to him by the Public Service Commission, U.P It is further stated that if he did not possess the requisite qualification, the interview letter would not have been issued by U.P Public Service Commission. He was qualified for appointment as Lecturer in Orthopaedics on ad hoc basis as per advertisement and the corrigendum published subsequently which could not be ignored in assessing the qualification of the petitioner for appointment.

4. After the regularisation order dated 30-10-89, the respondent No. 4 filed a supplementary counter-affidavit alleging that the criteria for the appointment of ad hoc lecturers in State medical colleges is on the basis of the prescribed qualification given in the advertisement and interview by the Committee constituted by the Government. As per the advertisement the minimum qualification for ad hoc appointment was M.D/M.S in the concerned subject. A candidate who had appeared at any of these examinations was also eligible to apply subject to the conditions that he should have passed the said examination by the time the interview was held. The interview was held on 3-9-81. He had obtained M.S degree in Orthopaedics in May 1989 and was, therefore, fully eligible for the post in question. In the interview held on 3-9-81 Dr. Ram Bhajan, Dr. Ajai Pant and the deponent were selected for appointment as Lecturer in Orthopaedics on ad hoc basis. The petitioner also appeared in this interview but could not succeed. The petitioner had also appeared earlier in February, 1980 for the appointment on ad hoc basis as Lecturer in Orthopaedics but was not selected. His services were regularised vide Government Order No. 4571.Se-I/V-Sa-51/89. The petitioner has not challenged the appointment of Dr. Ram Bhajan and Dr. Ajai Pant and, therefore, he cannot challenge his appointment. The petitioner did not raise any objection at the time of the advertisement for ad hoc appointments and, therefore, is estopped from challenging the same. He was found fit and, therefore, was validly appointed as Assistant Professor in Orthopaedics in S.N Medical College, Agra. Since his services have been regularised the writ petition has become infructuous. In para 15 of this affidavit it is stated that the deponent's services were terminated vide State Government Order dated 17-4-84 which he challenged in Writ Petition No. 7640 of 1984 and obtained a stay order.

5. He further alleged in the affidavit dated 5-1-93 that his father retired long before his appointment. He was Joint Director in the Medical and Health Services in Agra Division and had nothing to do with the Medical Educational Service of the State which has its own Directorate and Secretary at the State level.

6. The petitioner filed a supplementary affidavit on 6-5-84 stating that during the pendency of the writ petition the respondent No. 1 issued G.O No. 19/5/81 (Karmik) dated 22-3-84 (Annexure-VII-A to the affidavit) providing that all ad hoc appointments made after 1-5-83 would not be allowed to continue after the period of one year and would be deemed to have been automatically cancelled. Since the continuation of respondent No. 4 on ad hoc basis after coming into force of the above G.O is not in accordance with the rules, his services could not have been regularised.

7. In the rejoinder affidavit the petitioner traversed the allegations made in the counter affidavit and reaffirmed the allegations made in the writ petition.

8. In reply to the supplementary counter affidavit filed by respondent No. 4 the petitioner filed a supplementary rejoinder affidavit alleging that the respondent No. 4 did not possess the requisite qualification for appointment as Lecturer in Orthopaedics on regular basis and, therefore, could not have been appointed on ad hoc basis. His appointment was mala fide use of power. The ad hoc appointment of respondent No. 4 was void ab initio, against standing Government Orders and in flagrant violation of Arts. 14 and 16 of the Constitution of India. This appointment could not have been regularised: A person not possessing requisite qualification for regular appointment could not have been appointed on regular basis. The appointment of respondent No. 4 was for one year on ad hoc basis. He along with others filed a Writ Petition No. 7852 of 1984 and obtained the following order:—

“Admit Issue Notice.

Meanwhile the petitioners service will not be terminated merely because they are holding the post on ad hoc basis. It will however be open to terminate their services, if and when, suitable candidates are selected for the appointment to the post in question by the Public Service Commission.”

9. In the same writ petition the res pondent No. 4 moved an application on 21-11-88 with the prayer that directions may be issued to the LLP. Public Service Commission to regularise his services and no appointment should be made on post of the petitioner in pursuance of the advertisement issued by U.P Public Service Commission and ob tained the following order:—

“As an ad interim measure the order passed by Hon'ble A.P Misra, J. in Writ Petition No. 7805 of 1984 Dr. S.S Agnihotri v. State of U.P shall be applicable in this case also.”

10. In Writ Petition No. 7805 of 1984 Dr. S.S Agnihotri v. State of U.P the following order was passed:—

“Learned Standing Counsel is granted a month's time to file a counter-affidavit and rejoinder affidavit may be filed within three weeks thereafter. List this application for orders after the expiry of the aforesaid period.

Meanwhile the appointment which is going to be made in pursuance to the Annexure-VII to the writ petition to the extent of one post for which the petitioner is seeking relief shall be subject to the order passed by this Court.”

11. It is further alleged that in Writ Petition No. 7852/84 the respondent No. 4 obtained contradictory orders in order to serve his purpose by not placing correct facts before the Court. Ultimately during the pendency of Writ Petition No. 7852/84 the respondent No. 4 managed to get his services regularised illegally and then got the writ petition dismissed on 18-9-91. It is said that respondent No. 4 abused the process of the Court and obtained orders concealing material facts. It is also alleged that after the dismissal of Writ Petition No. 7852/84 wherein the interim orders passed were also vacated, the respondent No. 4 was relegated to the same position as it existed on the date the Writ Petition. No. 7852/84 was filed and as ad hoc appointment was only for one year, which had been terminated, his services could not have been regularised.

12. In the affidavit filed with the writ petition the petitioner had alleged that he was working at the Rehabilitation and Handicapped Centre at District Hospital, Agra. In the supplementary counter-affidavit filed by respondent No. 4 it was alleged that no such centre existed at District Hospital, Agra. Photostat copy of certificate dated 31-1-92 said to have been issued by Chief Medical Superintendent, District Hospital, Agra was filed as C.A 2. In this supplementary rejoinder affidavit the petitioner alleged that rehabilitation and handicapped centre did function and that the certificate filed by the respondent No. 4 is a forged one.

13. Writ Petition No. 7852 of 1984 was filed by respondent No. 4 for issuing a writ of certiorari quashing that part of the Government Order dated 23-3-84 which makes it applicable retrospectively, for issuing a writ.’ of mandamus directing the opposite parties not to apply the aforesaid Government Order retrospectively and terminate the petitioner's services by misapplication of the aforesaid Government Order and for directing the opposite parties not to terminate the petitioners’ services and not to treat the petitioners as not entitled to continue. This writ petition was dismissed on 18-9-91 with the following order:

“Shri R.K Tewari, learned counsel for the petitioners, states, that neither he nor Shri V.S Saxena and Shri S.N Misra, Senior Counsel, have received instructions in this matter. The petition is accordingly dismissed, for non-prosecution. Interim order dated 17-7-84 is hereby vacated.”

On 17-7-84 the following order was passed in the aforesaid writ petition:

“Issue Notice.

Meanwhile, the petitioners services will not be terminated merely because they are holding the post on ad hoc basis. It will, however, be open to terminate their services if and when, suitable candidates are selected for the appointment to the post in question by the Public Service Commission.”

14. Annexure-3 is the appointment letter dated 2-6-83 relating to respondent No. 4, which shows that he was appointed on ad hoc basis to the post of Lecturer in Orthopaedics for one year or till a suitable candidate is selected by the Public Service Commission and appointed at his place or until the services of respondent No. 4 are not required with the stipulation that the services shall stand terminated when, any of the above three contingencies occur. It is thus clear that the appointment of respondent No. 4 was on the post for a period of one year and that after the expiry of the period of one year his ad hoc appointment was to cease. The respondent No. 4 joined his duties on 11-6-83. He could not have continued on this post beyond 11-6-84.

15. We have heard learned counsel for the parties and have perused the record. The first point urged on behalf of the petitioner is that the respondent No. 4 was not qualified to be appointed on regular basis as Lecturer in Orthopaedics in State medical colleges and, therefore, he could not have been appointed as Lecturer on ad hoc basis. Reliance in this connection has been placed upon Mohammad Maqbool Pandit v. Chairman, District Recruitment Board, AIR 1981 J & K 27; wherein it was held that “where a candidate who fulfilled the educational qualification requirement prescribed in the advertisement notice for post of a teacher in the Educational Department was not selected for the post whereas a candidate who did not fulfil such requirements was selected for the post, the selection of the candidate was vitiated on ground of being discriminatory when there was no provision for relaxation of qualification in the advertisement notice.”

16. Annexure (2) filed with writ petition is the advertisement dated 2nd February, 1982 inserted by the U.P Public Service Commission for appointment of a number of Lecturers in different specialities. Eight posts of Lecturer in Orthopaedics were advertised. The essential qualifications given were (1) Degree in M.S (Orthopaedics), M.C.H (Orthopaedics), Speciality Board of Earth Surgery, M.S.A (2) Three years’ teaching experience as Tutor, Registrar, Resident/Research Experience/Medical Officer in Rehabilitation. Candidates having published research papers were to be given preference. The respondent No. 4 was also called for interview by the U.P Public Service Commission. The contention on behalf of the petitioners is that the candidature of respondent No. 4 was cancelled as he did not possess the required qualifications. It has been argued on behalf of the respondent No. 4 that he was called for interview and, therefore, it cannot be said that his candidature was cancelled. Nothing specific has been brought on record to show that the candidature of respondent No. 4 was cancelled by the U.P Public Service Commission but from the material placed on record it is established that the respondent No. 4 did not possess teaching experience and, therefore, was not entitled, to be selected as Lecturer in Orthopaedics by Public Service Commission. According to the petitioner no recommendation for appointments could be made on account of pendency of several writ petitions in this Court filed by the Lecturers serving in different medical colleges on the ground that they have been appointed on ad hoc basis and were entitled to regularisation of their services. The State of U.P, Director Medical Education, Lucknow and U.P Public Service Commission have been made party to this petition but none of them filed any counter-affidavit stating as to why the Public Service Commission did not make any recommendation even after interview was taken.

17. Annexure (1) to the writ petition would show that on 28-11-81 a letter was circulated by Director Health Services, U.P to all the Principals of the Medical Colleges of the State of U.P informing them that a list for appointment of ad hoc Lecturers in different specialities is being prepared. The advertisement has been given in newspapers. The format of the application was sent with the letters asking the Principals to handover the application format to the candidates for these posts. The advertisement attached to Annexure-1 would indicate that by this advertisement no post for appointment in Orthopaedics was available. Corrigendum was, however, issued on 12-3-82. Annexure-C.A-2 would show that applications were invited for ad hoc Lecturers in Orthopaedics. The qualification prescribed was M.D.M.S/Ch in the speciality. Candidates who had appeared in M.D/M.S examination were also entitled to apply for ad hoc appointment. On the basis of this corrigendum, it has been argued that the respondent No. 4 was fully qualified for appointment as Lecturer.

18. Annexure-S.A-1 to Writ Petition No. 7852 of 1984 is aletter dated 28th August, 1981 by Shri Tribhuwan Prasad, Chief Secretary, Government of U.P, addressed to all the Heads of Departments and Heads of the Offices, U.P This letter says that ad hoc appointments should not be made but if ad hoc appointments are very necessary and indispensable in the interest of public, such appointments should be made for the minimum period and in any case they should not be for more than a year. In appointment order it must be made clear that the ad hoc appointment would be effective for the maximum period of one year from the date of appointment and after the expiry of one year the appointment would automatically be treated as cancelled. It further says that in Government Orders it has also been made clear that consolidation should start along with the ad hot; appointment and it should be ensured before hand that a notification has been sent out to the Public Service Commission for making regular appointment which should be made before the expiry of one year. This letter further says that “it should be ensured before making ad hoc appointments that ad hoc candidates must fulfil all qualifications which are required as per service rules or the qualifications, which have been mentioned in the notification sent to the Commission. The ad hoc appointments should be for a limited period of which maximum period should not be more than one year.” The respondent No. 4 may or may not have been selected for appointment on ad hoc basis in view of the corrigendum dated 12th July, 1981, but it is not disputed that he was appointed on 2-6-83 i.e after the advertisement dated 2-2-82 by the Public Service Commission. In accordance with G.O dated 28-8-81 of Chief Secretary stated above, the respondent No. 4 could not have been appointed as Lecturer in Orthopaedics; even on ad hoc basis because he did not fulfil the essential qualifications given in the advertisement published by the U.P Public Service Commission.

19. Appointment to jobs in Government and more so in higher educational institutions should be made in conformity with standards or norms which are not arbitrary, irrational, irrelevant and discriminatory. In the, advertisement published by the Public Service Commission teaching experience was an essential qualification, while in the advertisement put out by the Director, Health Services, teaching experience was not even stated to be a desirable qualification. This would show that the advertisement published by the Director Health Services was not bona fide one. It appears to have been issued with the intention of favouring those candidates who were even appearing at the M.S examination. Interest of institution and need to maintain academic standards are far more important than the individual interest of ad hoc appointees. The Director of Health Services, it appears looked more to the individual interest of ad hoc appointees than the interest of the medical colleges and the need to maintain the academic standard of the highest order. It is common knowledge that ad hoc employment is sought and given for extraneous considerations. These are back door entries. Ad hoc appointments have become a source of corruption and frustration. The fact that the petitioner who is a better qualified person was not given ad hoc appointment but the respondent No. 4 was appointed as ad hoc Lecturer would prima facie show that respondent No. 4 was given a back door entry. Neither the State of U.P nor Director, Medical and Health Services has filed any affidavit explaining the circumstances as to why the candidature of the petitioner was rejected while that of respondent No. 4 was approved although the petitioner appears to be a better qualified person. A candidate with teaching experience would be in a better position to teach M.B.B.S students in comparison to a candidate having no teaching experience. A candidate who has not worked as Demonstrator Tutor or Registrar would be lacking in the practical experience in comparison to a candidate who has worked as Tutor, Registrar, Resident Surgeon or on a similar post. The petitioner was having such experience and had published research papers which were taken cognizance even in foreign journals. Some original work had also been done by him. He had also guided candidates doing master's degree in surgery.

20. Reliance on behalf of the respondent No. 4 has been placed upon two rulings. The first is Km. Neelma Misra v. Dr. Harinder Kaur Paintal, (1990) 2 SCC 746 : AIR 1990 SC 1402 : (1990 Lab IC 1229) and Dalpat Abasaheb Solunke v. Dr. B.S Mahajan, (1990) 1 SCC 305 : AIR 1990 SC 434. In these rulings it was held that it is not the function of the Court to hear appeals over decisions of Selection Committee and scrutinise relative merits of candidates. The decision of the Selection Committee on comparative merits of candidate cannot be interfered with by Court. No interference by Court should be made in such matters in the absence of proof of mala fides or contravention of statutory or binding rule or ordinance.

21. These rulings in the circumstances would not help respondent No. 4 because he lacked basic qualification at the time his appointment was made.

22. No Statutory rules appear to have: been made for ad hoc appointments. In the instant case it has not been pointed out on behalf of respondent No. 4 that any statutory rules relating to ad hoc appointment existed. In the absence of the existence of any such rules the administrative instructions issued’ from time to time by the State Government would be binding.

23. In Baleshwar Dass v. State of U.P, reported in (1980) 4 SCC 226 : AIR 1981 SC 41 : (1980 Lab IC 1155) it was held that administrative instruc-: tions so long as they operate in areas not covered by any rules would be perfectly valid., In Gopal Krishna Goel v. State of U.P, 1984 UPLB and EC 412, it was held by this Court that persons claiming their appointments have locus standi for filing writ petition challenging ad hoc appointment. From a perusal of para 32 of this judgment it would appear that several Government orders were: cited before the Court in all of which the Government had specifically directed that ad hoc appointments should be made only when they are strictly necessary and that too only for one year. It has been further repeatedly stressed in these Government orders that ad hoc appointments should be made only from those candidates who possess the requisite essential qualifications prescribed in the applicable service rules.

24. In R.S Yadav v. Municipal Corporation of Delhi, 1983 (2) All India Service Law Journal 658, it was held by the Delhi High Court that even for ad hoc appointment eligibility condition should not be ignored.

25. In the absence of any statutory Rules governing ad hoc appointments the orders issued by the Government from time to time would govern the ad hoc appoitments. From the Government order contained in the letter of Chief Secretary cited above it would be clear that ad hoc appointments could be made only of the persons who possessed essential qualifications as contained in the advertisement published by the Public Service Commission. It may be that respondent No. 4 was selected prior to the advertisement of the U.P Public Service Commission but that would not make any difference because in the Government order cited above the prohibition is regarding appointment. In the instant case the respondent No. 4 was appointed after the publication of the advertisement by the;’ U.P Public Service Commission. The respondent No. 4 had no teaching experience at’ the time of his appointment and, therefore was not eligible for appointment on ad hoc basis.

26. Dr. Amarjit Singh Ahluwalia v. State of Punjab, 1975 All India Services Law Journal 220, it was held by the Supreme Court that the State Government in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions of service. This ruling would support the contention of the petitioners that the letter dated 28-8-1981 of Sri Tribhuwan Prasad, Chief Secretary Government of U.P in so far as it laid down that in making ad hoc appointments it must be ensured that ad hoc candidates fulfil all qualifications which are required as per service rules or the qualification which has been mentioned in the notification sent to the Public Service Commission as to be followed by all the departments of the Government making ad hoc appointments.

27. In view of the discussion above we are of the opinion that the respondent No. 4 was not qualified to be appointed on ad hoc basis as lecturer in Orthopaedics.

28. It has now to be seen as to whether the services of respondent No. 4 could have been regularised. He filed a supplementary counter-affidavit stating that since his ap pointment has been regularised, the require ment of ad hoc appointment no longer existed and, therefore, the writ petition should be rejected as no relief could be granted to the petitioner in this writ petition. In para 15 of this affidavit it is stated that the service of the respondent No. 4 were terminated by the State Government on 17-4-1984 but he got the stay order from this Court by filing writ petition No. 7640 of 1984. This writ petition as already stated was dismissed for non-prosecution on 10-9-1991. The interim order dated 17-7-1984 was vacated. The result would be that after vacation of the stay order, the Government order dated 17-4-1984 ter minating the services of the respondent No. 4 would be revived and come into operation. The respondent No. 4 would be relegated to the same position which existed on 17-7-1984. Since on 17-7-1984 his services had already been terminated, no question of regularisation of this service would arise. The fact that the services of respondent No. 4 were re gularised would be further circumstances to indicate that he had approaches and pulls with the State Government so that his services were regularised even though the present writ petition was pending. In the ordinary course his case should have been left to be considered after the decision of this writ petition. The State Government or the Director, Medical Education and Training U.P Lucknow did not even file any counter-affidavit in writ petition No. 7640/84 even though it remained pending for about five years and then on a fine morning the services of respondent No. 4 were regularised. It would not be out of place to point out here that the respondent No. 4 in writ petition No. 7852 84 first obtained order that his services be not terminated till a suitable candidate is selected for appointment by Public Service Commission and then by moving another application in the same writ petition prayed that U.P Public Service Commission be directed to regularise the services of the petitioner and no appointment be made on the post of the petitioner otherwise he would suffer tremendous loss and obtain order that the appointment for one post for which the petitioner is seeking relief shall be subjected to the order passed by the Court in the writ petition. After obtaining these orders and installing the termination of his services and appointment by Public Service Commission, respondent No. 4 got the writ petition dismissed. It has been argued and rightly so that all this would show his mala fide. It was however urged on behalf of respondent No. 4 that writ petition No. 7852/84 was dismissed as infructuous and that an application to that effect had been filed by him in that writ petition. We have looked into the record of writ petition No. 7852/84. We do not find any such application. The order passed in that writ petition would show that the petition was dismissed because the learned counsel for respondent No. 4 had no instructions. This would belie the argument that any application was moved for dismissing the writ petition as having become infructuous.

29. Admittedly the appointment of respondent No. 4 was initially made for one year. There is nothing on record to indicate that his appointment was renewed from year to year. It was then urged that the services of respondent No. 4 have been regularised in consultation with Public Service Commission under U.P Regularisation of Ad hoc Appointments (Of Posts within the purview of Public Service Commission) (Second Amendment) Rules 1980 and on this ground also the writ petition should be dismissed. Annexure-1 to this Supplementary Counter-affidavit is a letter dated 30-10-1989 from Sri P.D Yadav, Deputy Secretary, Uttar Pradesh Shasan to Director, Medical Education and Training U.P Lucknow which would show that the services of respondent No. 4 were regularised under the aforesaid Rules. This would however not help the respondent No. 4 because his appointment was illegal inasmuch as he did not possess the required qualification for ad hoc appointment and his services had already been terminated by the State Government on 17-4-1984. After the dismissal of writ petition No. 7852 of 1984 the respondent No. 4 can no longer be deemed to be in service after 17-4-1984 and, therefore, no question of his services being regularised under the aforesaid Regularisation Rules of 1989 would arise. It has now to be seen as to whether the petitioner is entitled to the reliefs in so far as they relate to his appointment to the post of Lecturer in Orthopaedics in Medical College, Agra. The relief claimed in this respect is that a writ in the nature of mandamus be issued directing the respondents to appoint the petitioner as Lecturer/Assistant Professor in S.N Medical College, Agra w.e.f 2-6-1980 and that he be also given seniority and other consequential benefits from that date. The petitioner no doubt appeared for interview before U.P Public Service Commission but nothing has been brought on record to indicate that his name was recommended for that post. On the other hand it has been stated in the petition that on account of pendency of a number of writ petition, the U.P Public Service Commission did not make any recommendation. In the absence of such recommendation and in the absence of anything on record to indicate that the petitioner was most suitable candidate and that the other candidates interviewed by the U.P Public Service Commission for this post were not as much qualified as the petitioner, no direction can be given to the respondents to appoint the petitioner, as Lecturer/Assistant Professor in S.N Medical College, Agra. For that very reason the petitioner is not entitled for relief No. 2.

30. In view of the above the ad hoc appointment of respondent No. 4 dated 2-6-1983 and the regularisation of his services vide order dated 30-10-1983 are to be quashed. The termination of his services shall follow from the quashing of the order of his appointment and order of his regularisation. The writ petition is accordingly allowed in part. The ad hoc appointment of respondent No. 4 dated 2-6-1983 and the order dated 30-10-1989 regularising his services are quashed. The termination of his services shall follow from the quashing of the order of his appointment and order of his regularisation. In the circumstances we leave the parties to bear their own costs.

31. Order accordingly.