1996 JTR(SC) 1715
1997 1 CLR 131 ; 1997 10 JT 375 ; 1998 3 LLJ 687 ; 1996 8 Scale 333 ; 1997 3 SCC 194 ; 1997 SCC(L&S) 772 ; 1996 Supp7 SCR 662 ; 1997 1 SCT 374 ; 1996 6 SLR 669 ; 1997 KHC 3586 ; 1996 8 Supreme 146
1996(8) Supreme 146
SUPREME COURT OF INDIA
K. Ramaswamy & G.B. Pattanaik, JJ.
Union of India & Ors. -Appellants
versus
Harish Balkrishna Mahajan -Respondent
Civil Appeal No. 14527 of 1996
(Arising out of SLP (C) No. 16068 of 1995)
Decided on 23-10-1996
Counsel for the Parties :
For the Appellants : N.N. Goswami, Sr. Advocate, Ms. Binu Tamta and V.K. Verma, Advocates.
For the Respondent : Gopal Jain and Mukul Mudgal, Advocates.
IMPORTANT POINT
Order to regularise services of Medical Officer who was appointed temporarily but post were required to be filled up by recruitment through UPSC was in violation of Article 320 of the Constitution.
Act
Referred
:CONSTITUTION OF INDIA : Art.320
SERVICE LAW : .
(A) The service of the respondent was initially governed under the Service Rules and the constitutional mandate under Article 320 of the Constitution of India, which requires recruitment to certain posts in the Central Government Health Scheme to be made through the Union Public Service Commission. The impugned order of the Tribunal directed the appellants to regularise the respondents service in consultation with the Public Service Commission, which the Supreme Court found in conflict with the statutory procedure prescribed under Article 320. The Court relied on its prior precedents such as J & K Public Service Commission v. Dr. Narinder Mohan and Union of India v. Dr. Arun Kumar Sharma to interpret that any regularisation must adhere to the mandatory framework under Article 320 and the Rules read with it.
(B) Key legal principles include that recruitment for posts under the Central Government Health Scheme must be through Union Public Service Commission in accordance with Article 320, and that directions violating this statutory procedure are unsustainable. The Court also clarified that prior orders directing consultation with the Public Service Commission do not override the constitutional and statutory recruitment framework.
Facts of the case:
The respondent was temporarily appointed as a Medical Officer in the Central Government Health Scheme on monthly basis from August 10, 1982. During a strike by doctors, he continued in service until August 1987, after which his services were terminated. He filed an application before the Tribunal, which directed the appellants to regularise his service in consultation with the Public Service Commission. This appeal was filed by special leave.
Findings of Court:
The Tribunals order was set aside as it violated Article 320 of the Constitution. The Court held that regularisation can only be considered in accordance with the statutory recruitment process, and the respondent may apply for selection through the prescribed procedure. The Court also indicated that age bar, if applicable, could be relaxed for the period of temporary service rendered.
Issues:
Whether the Tribunals direction to regularise the respondents service in consultation with the Public Service Commission was sustainable in view of the provisions of Article 320 of the Constitution and the statutory rules made thereunder.
Ratio Decidendi:
Any regularisation of service for posts mandated to be filled through Union Public Service Commission under Article 320 must strictly follow the constitutional and statutory recruitment procedure, and a direction to regularise in consultation with the Commission is violative of the law.
Result:
The appeal is allowed. The order of the Tribunal is set aside. The respondent is at liberty to apply for selection through the prescribed recruitment process. No costs are awarded.
(A) The service of the respondent was initially governed under the Service Rules and the constitutional mandate under Article 320 of the Constitution of India, which requires recruitment to certain posts in the Central Government Health Scheme to be made through the Union Public Service Commission. The impugned order of the Tribunal directed the appellants to regularise the respondents service in consultation with the Public Service Commission, which the Supreme Court found in conflict with the statutory procedure prescribed under Article 320. The Court relied on its prior precedents such as J & K Public Service Commission v. Dr. Narinder Mohan and Union of India v. Dr. Arun Kumar Sharma to interpret that any regularisation must adhere to the mandatory framework under Article 320 and the Rules read with it.
(B) Key legal principles include that recruitment for posts under the Central Government Health Scheme must be through Union Public Service Commission in accordance with Article 320, and that directions violating this statutory procedure are unsustainable. The Court also clarified that prior orders directing consultation with the Public Service Commission do not override the constitutional and statutory recruitment framework.
Facts of the case:
The respondent was temporarily appointed as a Medical Officer in the Central Government Health Scheme on monthly basis from August 10, 1982. During a strike by doctors, he continued in service until August 1987, after which his services were terminated. He filed an application before the Tribunal, which directed the appellants to regularise his service in consultation with the Public Service Commission. This appeal was filed by special leave.
Findings of Court:
The Tribunals order was set aside as it violated Article 320 of the Constitution. The Court held that regularisation can only be considered in accordance with the statutory recruitment process, and the respondent may apply for selection through the prescribed procedure. The Court also indicated that age bar, if applicable, could be relaxed for the period of temporary service rendered.
Issues:
Whether the Tribunals direction to regularise the respondents service in consultation with the Public Service Commission was sustainable in view of the provisions of Article 320 of the Constitution and the statutory rules made thereunder.
Ratio Decidendi:
Any regularisation of service for posts mandated to be filled through Union Public Service Commission under Article 320 must strictly follow the constitutional and statutory recruitment procedure, and a direction to regularise in consultation with the Commission is violative of the law.
Result:
The appeal is allowed. The order of the Tribunal is set aside. The respondent is at liberty to apply for selection through the prescribed recruitment process. No costs are awarded.
ORDER
Leave granted.
2. The respondent was temporarily appointed as a Medical Officer on monthly basis in the Central Government Health Scheme on August 10, 1982. During the unfortunate strike of the doctors as trade unionists, unmindful of the ethical and medical code of conduct, he was appointed and even continued in the service till August, 1987. When his services were terminated, he had gone to the Tribunal and filed OA No. 701/89. The Tribunal in the impugned order dated 12.12.1994 directed the appellants to regularise the service of the respondent in consultation with the Public Service Commission. Thus, this appeal by special leave.
3. The controversy is no longer res integra. In similar circumstances, this Court had considered the entire controversy in J & K Public Service Commission & Ors. v. Dr. Narinder Mohan & Ors.1. Admittedly, the post of doctors in the Central Government Health Scheme are required to be filled up by recruitment through Union Public Service Commission. Therefore, the direction to consider the case of the respondent in consultation with the Public Service Commission for regularisation is in violation of the statutory rules and Article 320 of the Constitution of India. The only course known to law is that the Union of India shall be required to notify the recruitment to the Public Service Commission and Union Public Service Commission shall conduct the examination inviting the applications from all the eligible persons including the persons like the respondents. It would be for the respondent to apply for and seek selection in accordance with Rules. Therefore, the direction is in violation of Article 320 of the Constitution.
4. The learned counsel for the respondent seeks to place reliance on the directions issued by this Court in Jacob M. Puthuparambil v. Kerala Water Authority2. It is seen that the Public Service Commission was required to recruit the candidates and, therefore, the additional Medical Officers working in the Railway Department in the latter case were directed to be regularised in consultation with the Union Public Service Commission. It would be seen that when the recruitment was to be made in accordance with the procedure prescribed by the Public Service Commission in terms of the statutory Rules made under Article 320 of the Constitution, necessarily the recruitment is required to be made in that manner and in no other manner. Therefore, this Court did not intend to by-pass the above procedure in regularisation of their services. This Court, in similar circumstances, considered the same question in Union of India & Ors. v. Dr. Arun Kumar Sharma3.
5. In that view, the appeal is allowed. The order of the Tribunal stands set aside. It would be open to the respondent to apply for selection. In case he is barred by age, it is needless to mention that the Union of India would consider necessary relaxation of the age to the extent of the period of service he has rendered on temporary basis. No costs.
Appeal allowed.
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