O R D E R
C.A.Nos.13999-14000 of 2015
1. In the year 1997, Government of Puducherry issued an advertisement in the newspapers inviting applications for the appointment of doctors on contract basis. Both the appellants also applied in response thereto. They belonged to the reserved category of Scheduled Caste and were professionally qualified MBBS doctors. The appellants appeared before the Screening Committee on 21.11.1997, were found suitable to the job in hand and were appointed as General Duty Medical Officers on a contract basis vide appointment letters dated 15.12.1997. The initial appointment was for a period of 120 days only, with effect from the date of joining, and on a consolidated remuneration of Rs.7,000/- per
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month.
2. This is an admitted fact that since their appointment in December 1997, the appellants have continued to serve as General Duty Medical Officers and their contractual engagement has been renewed from time to time.
3. The appointment to the post of General Duty Medical Officer in the U.T. of Puducherry was initially governed by the Government of Pondicherry, Health and Welfare Department (Health), Group `A' Posts of Assistant Surgeon, Recruitment Rules, 1993. These Rules were later replaced by the Pondicherry Health Services (Allopathy) Rules, 1998. Under both sets of Rules, regular appointments to Group `A' Posts, which include the Medical Officer, are required to be made through the Union Public Service Commission (UPSC) only. The appellants attempted to qualify for the UPSC test on five occasions but did not succeed. Consequently, they could not be appointed on a regular basis. However, they continued to serve on a contractual basis, and after serving as such for almost 13 years, they approached the Central Administrative Tribunal, Madras Bench (for short, `the Tribunal'), in the year 2011, seeking a direction for the regularization of their services. The Tribunal, vide its order dated 26.03.2013, accepted the claim of the appellants primarily on the ground that, in view of the Constitution Bench judgment of this Court in Secretary, State of Karnataka and others vs. Umadevi (3) and others, (2006) 4 SCC 1, the appellants were entitled to regularization of their services as they had served for more than 10 years on the post. The Tribunal further held that a similar direction had also been issued for
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regularization of the services of the Assistant Surgeons, who too were appointed on a contract basis.
4. The official respondents challenged the directions issued by the Tribunal before the High Court in a Writ Petition, and vide impugned judgment dated 21.11.2014, the High Court of Judicature at Madras allowed the Writ Petition and set aside the Tribunal's order, laying down that the Tribunal had no authority to issue a direction for the regularization of services of contractual employees, for such a direction had been termed contrary to the dictum of this Court held in various decisions cited by the High Court, including Uma Devi(supra).
5. The aggrieved appellants approached this Court in the year 2015. The matter came up for hearing on 10.04.2015, and this Court issued notice and directed the respondents to renew the appellants' contract for 120 days for one time, which was further directed to be renewed from time to time by various orders passed by this Court. Resultantly, the appellants are still working on the contract basis.
6. Vide order dated 18.02.2022, learned counsel appearing on behalf of the Union Territory of Puducherry was directed to take instructions as to why the appellants, despite having put in nearly 25 years of service, have not been regularized.
7. Thereafter, the instant Civil Appeal along with the Contempt Petition came up for hearing on 04.03.2022, when this Court passed the following order:
"1. Since the petitioners admittedly have been working as doctors for nearly twenty-five years with the Government of Puducherry, we request Mr. Aravindh
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S, learned counsel appearing on behalf of the second respondent to take instructions on the possibility of regularizing the services of the petitioners with due safeguards.
2. List the matters on 1 April 2022."
8. We have heard learned Senior Counsel appearing on behalf of the appellants as well as learned counsel appearing on behalf of respondent No.1 and perused the material placed on record, including the written submissions submitted by learned counsel for the respondent.
9. Learned counsel for respondent No.1 has urged that since regular appointment to the posts of Medical Officers is made only on the recommendations of UPSC, the Union Territory of Puducherry is unable to take a policy decision to regularize the services of the appellants or the other similarly placed employees.
10. It is in this backdrop that the question that falls for consideration is as to whether, in the peculiar facts and circumstances of this case, this Court should carve out an exception and issue a mandamus to regularize the services of the appellants?
11. It is undoubtedly true that Recruitment to the Post of Medical Officer is regulated under the statutory rules formulated in exercise of powers under Article 309 of the Constitution, and the appointment to the Group `A' post has to be made strictly in accordance with such rules. It is contemplated by the rules that regular appointments shall be made on the basis of recommendations made by UPSC. Therefore, such a recruitment process cannot ordinarily be bypassed.
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12. Regardless thereto, we find that the instant case is one of extreme hardships where the two appellants have been working on a contract basis for the past nearly 26 years. We are informed by the learned Senior Counsel for the appellants that they are reaching their age of superannuation in August, 2023 and June, 2025 respectively. While learned counsel for respondent No.1 is right in contending that the appellants have continued in service mostly under the protection granted by the courts, but the fact remains that even before they approached the Tribunal in the year 2011, the appellants had already put in service for more than 12 years. They were admittedly appointed against vacant sanctioned posts and possessed the requisite qualifications for appointment on regular basis. It is also a matter of record that the procedure with semblance to what is contemplated under Articles 14 and 16 of the Constitution was followed inasmuch as a public advertisement was issued and the Screening Committee interviewed the candidates to adjudge their suitability. In that sense, it is not a case of back door entry into public employment. The only embargo which deprives the appellants regular absorption is that they failed to crack the UPSC test even after five attempts. It appears to us that the principles illustrated by the Constitution Bench in para 53 of Uma Devi's case (supra) should come to the rescue of the appellants as they are duly qualified persons, working against sanctioned posts, and even before they got protection from the courts, they had served for more than 12 years, and, as such, their appointments cannot be termed illegal.
13. Keeping in view the vast experience in public service
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earned by the appellants coupled with the fact that they have spent nearly 26 years providing medical services to the general public, we are satisfied that the appellants deserve to be protected with certain service benefits at this juncture of their lives. Consequently, the impugned judgment passed by the High Court is set aside, and the appeals are disposed of with the following directions:
(i) The respondents are directed to regularize the services of the appellants from the date of their initial appointments as General Duty Medical Officer, without any benefit of seniority and on a notional basis.
(ii) The appellants shall not be entitled to any arrears of pay or other monetary benefits on account of the deemed regularization of their services.
(iii) However, the entire service of the appellants shall be deemed to be regular service for the purpose of pension and other retiral benefits.
(iv) The pay of the appellants shall be fixed on a notional basis with effect from 01.06.2023 and from that date onwards, they shall be entitled to regular pay scale with full emoluments.
14. It is clarified that these directions have been issued keeping in view the peculiar facts and circumstances of this case and the same shall not be taken as a precedent in the case of other contractually appointed employees.
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Conmt.Pet.(C)No.64/2022 in C.A.Nos.13999-14000/2015 In view of the order passed by this Court today in C.A.Nos.13999-14000 of 2015, the instant petition has become infructuous, and the same stands disposed of as such.
.........................J.
(SURYA KANT)
..............…….........J.
(J.B. PARDIWALA)
NEW DELHI;
MAY 11, 2023.
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ITEM NO.101 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).13999-14000/2015 KAILASH BEN T. SOLANGI ETC Appellant(s)
VERSUS
UNION OF INDIA AND ORS. REP. BY THE GOVERNMENT
OF PUDUCHERRY & ORS. Respondent(s)
WITH
CONMT.PET.(C) No.64/2022 in C.A. Nos.13999-14000/2015 (XII)
(FOR ADMISSION)
Date : 11-05-2023 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE J.B. PARDIWALA For Appellant(s) Mr. Col R Balasubramaniam, Sr. Adv. Mr. M. A. Chinnasamy, AOR
Mr. C Raghavendren, Adv.
Mrs. C Rubavathi, Adv.
Mr. M Veeraragavan, Adv.
Mr. P Rajaram, Adv.
For Respondent(s) Mr. Aravindh S., AOR Ms. Uma Bhuvaneshwari. C, Adv.
Mr. Abbas, Adv.
Ms. Binu Tamta, AOR
UPON hearing the counsel the Court made the following
O R D E R
C.A.Nos.13999-14000 of 2015 The appeals are disposed of in terms of the signed order. Conmt.Pet.(C)No.64/2022 in C.A.Nos.13999-14000/2015 In view of the order passed by this Court today in C.A.Nos.13999-14000 of 2015, the instant petition has become infructuous, and the same stands disposed of as such.
(SATISH KUMAR YADAV) (PREETHI T.C.)
DEPUTY REGISTRAR COURT MASTER (NSH)
(Signed order is placed on the file)