PETITIONER: MUNICIPAL CORPORATION OF DELHI Vs. RESPONDENT: KACHEROO MAL DATE OF JUDGMENT29/09/1975 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH GUPTA, A.C. CITATION: 1976 AIR 394 1976 SCR (2) 1 1976 SCC (1) 412 CITATOR INFO : RF 1976 SC 621 (22) RF 1980 SC 360 (8,9,10,14,15) RF 1982 SC1095 (2) RF 1983 SC 506 (2) OPN 1985 SC 741 (9,10,11) E&F 1989 SC1011 (7) ACT: Interpretation of stature Suppress the mischief and advance the remedy- Prevention of Food Adulteration Act -S. 2(i)(f)-Proof of sample being insect infested enough or whether further proof of being unfit for human consumption- Meaning of insect infested-Wheher insects must be living. HEADNOTE: The Food Inspector purchased cashewnut pieces as sample-for analysis from the grocery shop of the res<NAME>. The sample was sent to the Public Analyst who reported that the cashewnuts were insect infested. After receiving - the report from the Public Analyst the Food Inspector prosecuted the res<NAME> in- respect of an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954. The trial Magistrate convicted and sentenced the res<NAME> to 6 months rigorous imprisonment with a fine of Rs. 1000/-. Res. <NAME>'s appeal before the Sessions Judge failed. A revision filed by the res<NAME> before <ORG> succeeded. <ORG> held that since it was not proved that the sample contained living insects, the same could not be called 'insect infested' within the meaning of s. 2(i)(f) of the Act. <ORG> held that the presence of living insect is necessary before an article could be called insect infested. According to <ORG> the intention of the <ORG> was that at the time of analysis infestation by insects should be present. <ORG> further observed that if only dead insects were present the sample could be called insect damaged and not insect infested. Since the report of the Public Analyst did not show the presence of living insects it was concluded that the same could not be said to be adulterated. <ORG>, thus, set aside the conviction of the res<NAME>. S. 2(i)(f) reads as under.: "If the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption." On appeal by special leave the appellant contended: (i) the construction of the expression insect infested given by <ORG> was wrong and that it was contrary to a <ORG> judgment of the same <ORG> in the case of <NAME>; (ii) in the case of food articles for which no minimum standard of purity is prescribed, as in the present case for cashewnuts, the moment it is proved that a proportion or percentage of the article is putrid filthy, disgusting, decomposed or insect-infested, it would be deemed to be unfit for human consumption and, therefore, 'adulterated' within the contemplation of s 2(i)(f). and (iii), in the alternative, it was contended that it is implicit in the report of the Public Analyst that the article in question was found unfit for human consumption. The res<NAME> on tho contrary contened that mere proof of the fact that a sample sent to the Public Analyst was found to be insect infested could not make the article 'adulterated' unless it was further proved that the article was unfit for human consumption. In the present case there is no proof of that essential fact. The Public Analyst in his report did not slate that the insect infestation found by him had rendered the article unfit for human consumption. ^ HELD: (1) The construction put by <ORG> on s. 2(i)(f) is manifestly erroneous. It has been disapproved by a <ORG> of the same <ORG> in <NAME>'s case. The Act has been enacted to curb the widespread evil of food adulteration and to ensure the sale of wholesome foot to `the people. The language of such statute should be construed in a manner which 2 would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. The construction adopted by <ORG> is repugnant to this cardinal rule of interpretation. It would be straining one's commonsense to say that are article of food which is infested with living insects and is consequently unwholesome for human consumption ceases to be so and becomes wholesome when these insects die out and the infestation turns into infestation by dead insects. [4B-Dl (2) The expression 'insect infestation' takes its hue from the phrase 'unfit for human consumption' occurring at the end of sub-clause. The decision of Delhi <ORG> in <NAME>'s case approved. The words 'or is otherwise unfit for human consummation' can be read con junctively as well as disjunctively. The court preferred to construe it conjunctively as it comports best with reason, commonsense, realities, the tenor of this provision and the main purpose and scheme of the Act. The adjectives 'filthy', 'putrid', 'disgusting', 'decomposed 'rotten', 'insect-infested', refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption. But, the presumption may not be conclusive in all cases irrespective of the character of the article and the nature and the eaten of The vice afflicting it. There are some articles of food in respect of which the rules framed under the Act lay down the minimum proportion of insect- infestation, which is not deemed to make the article unfit for human consumption. This clearly shows that the more fact that any part of tho article was 'insect infested' may not be conclusive proof of his being adulterated under sub- clause (f). In the case of an article for which the rules do not prescribe any minimum standard of purity or any minimum proportion of insect infestation, what would exclude it from the definition of adulterated article will be a mixed question of law and fact depending on the nature, degree and extent of the insect infestation which would render the article unfit for human consumption. The opinion of the Public Analyst who examines and analysis the sample as to the fitness or otherwise of the sample for human consumption would constitute legal evidence. The report of the Public Analyst including his opinion on this point is pee evidence by virtue of s. 13 of the Act. But this does not mean that his ipsi dixit would be conclusive and binding on the court. To treat it so would be to leave the determination of the guilt of the accused to the whims and fancies of the Public Analyst. In each case it must be proved that the article was unfit for human consumption. In the case of articles for which the rules lay down any minimum standard of purity with reference to any of the vices specified in sub-clause (f), mere proof of the fact that the impurity was in excess of that countenanced by the prescribed standard, would be conclusive to show that the article was unfit for human consumption. There is no statutory minimum standard of purity with reference to the vice of insect-infestation or other adtives used in this sub-clause as far as the cashewnuts are concerned. It will, therefore, be for the Judge of fact to decide upon the evidence in the case, whether the insect infestation found was of such a nature and extent as to make it unfit for human consumption. <NAME>'s case over-ruled in so far as it lays down that if for any article of food no standard quality or Purity has been prescribed or no limits have been prescribed for the variability of its constituents, then subclause (f) of clause (i) of 6. 2 will not apply The governing ingredient of sub-clause (f) is the quality of the article being unfit for human consumption. In the instant case the report of the Public Analyst is silent as to whether on account of the insect infestation found in the sample the article was unfit for human consumption. Therefore, it became necessary to call the Public Analysts, as witnesses, to enable them to elucidate their opinion and amplify the report and to allow the parties to test it by cross-examination. The court was inclined to remand the case to <ORG> but the court was informed that the Public Analyst who gave the report is no longer in the appellant's service, and is not residing at Delhi and that his attendance in court could not be procured without undue delay and inconvenience. The Court considered it unreasonable in the circumstances of the case to remand the case particularly because it would cause undue hardship to the res<NAME> who has had more than his normal share of the mental suffering. harassment and expenses which go with 3 protracted criminal proceedings extending in the present case over 81 months. No useful purpose, therefore, would be served by remanding the case. The Court did not disturb the acquittal of the res<NAME>. [6D-E &, 7 C-E, & H, 8 B. 9G H, l0A-D]. JUDGMENT:

CRIMINAL APPELLATE JURISDSCTION: Civil Appeal No. 174 of 1971.

Appeal by Special Leave from the Judgment and order dated the 24th December, 1970 of Delhi <ORG> in Crl. Revsn No. 120 of h l 970.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Appellant.

<NAME> and <NAME> for the Respondent. The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against a judgment of a learned single Judge of <ORG>. It arises out of these circumstances:

On January 8, 1969, <NAME>, Food Inspector, purchases 600 grams of Kaju-Tukra (cashewnut pieces)-as sample for analysis from the grocery shop of <NAME>, Respondent in Khari Baoli, Delhi. The sample was divided into three equal parts and sealed into three bottles. An inventory was prepared which was read over and explained to the respondent, who thereafter signed it. One of these bottles was given to the respondent, one was retained by the Inspector, while the third was handed over to the Public Analyst on the following day for examination. The Public Analyst has reported:

"Date of Analysis: 10-1-1969. Insect-infested pieces of Kajus: 21.9% and I am of the opinion that the same is adulterated due to insect infested pieces of Kajus to the extent of 21.9%."

On the preceding facts, the Food Inspector filed a complaint for prosecution of the respondent in respect of an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954 (herein after called the Act). The trial Magistrate convicted and sentenced him for six months rigorous imprisonment with a fine of Rs; 1000/-. <NAME>'s appeal before the Additional District and Sessions Judge, failed. Against the order of the Additional Sessions Judge, he preferred a revision to <ORG>. The revision was heard by a learned Judge who held that since no living insect was found in the sample pieces examined by the analyst, the same could not be called "insect-infested" within the contemplation of s. 2(i) (f) of the Act. The learned Judge was of the opinion "that the presence of living insects is necessary before an article could be called 'insect infested". According to him, "the intention of the legislature by using this word in s. 2(i)(f) in the sentence 'if the article is insect infested' clearly is that at the time of analysis infestation by insects . should be present". It was further observed that if only dead insects were-present, the sample could be called 'insect-damaged' and not in sect-infested'. Since the report of the Public Analyst did not show r the presence of living insects in the <NAME> sample pieces, it was concluded that the same could not be said to be 'adulterated'. On this reasoning, the revision-petition was allowed and the conviction of <NAME> was set aside. Hence this appeal, by <ORG>.

Having heard the learned Counsel on both sides, we are of opinion that the construction put by the learned Judge of <ORG> is manifestly erroneous.. It has been disapproved by a-Division Bench of the same <ORG> in <NAME> v. <ORG>) Indeed, Mr. <NAME>, the learned Counsel for <ORG> has not tried to support it.

The Act has been enacted to curb and remedy the widespread evil of food-adulteration, and to ensure the sale af wholesome food to the people. It is well-settled that wherever possible, without unreasonable stretching or straining the language of such a statute, should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. The construction adopted by the learned Judge is repugnant to this cardinal rule of interpretation. With respect, it is less rational, but too literal narrow and pedantic. It would be straining one's commonsense to say that an article of food which is infested with f living insects and is consequently unwholesome for human consumption, ceases to be so and becomes wholesome, when these insects die out and the 'infestation' turns into an infestation by dead insects. The expression 'insect-infested' is to be construed in the context of an article of food meant for human consumption. It takes its hue from the phrase 'unfit for human consumption' occurring at the end of the subclause. Thus construed, it means that the article so abounds in insects, dead or living, that it is rendered unfit for human consumption. We need not labour the point further. It has been lucidly brought out by <NAME> who spoke for the Bench of <ORG> in <NAME>'s case (supra) at page 688 of the report. We fully approve that reasoning and would extract it here:

"The expression 'insect-infested' was not defined in the Prevention of Food Adulteration Act and has, therefore, to be given its ordinary meaning. The word 'infest' appears to have been derived from the latin word 'infestate' which meant to assail or molest. According to the oxford English Dictionary (Volume V-

at page 259) the word 'infest' means 'To attack, assail, annoy, or trouble (a person or thing) in a persistent manner," "to visit persistently or in large number for purposes of destruction or plunder", "to , swarm in or about, so as to be troublesome". In the same Dictionary the word 'infestation' is stated to mean: "The action of infesting, assailing, harassing, or persistently mol resting". It is also mentioned that the word is now used (1) I. L. R. [1970] II Delhi 681.

especially for-"insects which attack plants, grain, etc. in large swarms". Thus-an article of food would be "insectinfested", if it has been attacked by insects in swarms or numbers. It however seems to us that there is no justification for the view that insect-infestation would only continue so long as the insects continue to be alive. If an article of food is attacked by insects in large swarms or numbers and for some reason those insects die, the mere fact that the article of-food has; no longer living insects but has dead insects will not change its character of being insect-infested." In view of the construction that the expression 'insect-infested', includes infestation even by dead insects, the further point to be considered is, whether mere insect-infestation, without`more, would - be sufficient to hold the articIe to be 'adulterated' within the meaning of sub-clause (f) of clause (i) of sec. 2 of the Act.

Mr. <NAME>, learned Counsel for the Respondent submits that mere proof of the fact that a certain number of pieces of the sample sent to the Public Analyst were found to be insect-infested, could not make the article "adulterated" in terms of the aforesaid sub-clause (f) r unless it was proved further. that the article was unfit for human con sumption. It is stressed there is no proof of that essential fact on the record. It is pointed out, that in his report, the Public Analyst has not said that the insect- infestation found by him had rendered the article unfit for human consumption. In this connection, Counsel has invited our attention to an application which was made by <NAME> in the first appellate Court, praying that the Public Analyst be summoned and examined as a witness He` has further drawn our attention to an order, dated 17-12-70 of <ORG> which shows that on the request of Mr. <NAME>, Counsel for <ORG>, the court summoned Mr. <NAME> and Mr. <NAME>, Public Analysts for 21-12-1970. The point sought to be made out is that in this case, the prosecution, the defence and - <ORG> all felt that the report of the Public Analyst was vague, inadequate and deficient, and in the absence of clear proof of the sample, being unit for human consumption, it could not constitute basis for holding the article to be adulterated within the in of sec. 2(i) (f).

As against the above, Mr. <NAME>, the learned Counsel for the appellant Corporation submits that in the case of food articles for which no minimum standard of purity is prescribed, the moment it is proved that a proportion on percentage of the article-not being a proportion or percentage as would be covered by the rule, de minimis non curat lex-is putrid, filthy, disgusting, decomposed or insect infested, it would be deemed to be unfit for human consumption and therefore adulterated within the contemplation of s. 2(i)(f) . In any ` case, proceeds the argument, it is implicit in the report of the Public t Analyst that the article in question was found unfit for human consumption. This implication`according to the Iearned Counsel, flows from the Analyst's conclusion that the article was "adulterated".

Counsel has criticised the view taken by the Bench in <NAME>'s case that if for an article of food, no standard of quality or purity has been prescribed or no limits have been prescribed for the validity of its constituents, then sub-clause (1) of clause (f) of sec. 2 will not apply, and that the Public Analyst is not competent to say as to what extent of insect-infestation would make the article "adulterated".

The relevant part of Section 2 reads as under: "(i) "adulterated"-an article of food shall be deemed to . be adulterated-

(a) to (e) .. .. .. ..

(f) if the article consists wholly ar in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance of is insect infested or is otherwise unfit for human consumption".

The phrase "or is otherwise unfit for human consumption" can be read conjunctively as well as disjunctively. If it is read conjunctively, that is, in association with what precedes it, sub-clause (f) with slight consequent rearrangement and parenthesis would read like this: 'If the article is unfit for human consumption on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insectinfested, (b) or on account of any other cause". In this view of the sub- clause, proof of 'unfitness of the article for human consumption', is a must for bringing the case within its purview.

If the phrase is to be read disjunctively, the mere proof of the whole or any part of the article being-"fifthy, putrid, disgusting, rotten ....or insect-infested" would be conclusive to bring the case within the mischief of this sub-clause, and it would not be necessary in such a case to prove further that the article was unfit for human consumption.

We would prefer the first construction as it comports best with reason,, commonsense, realities, the tenor of this provision and the main purpose and scheme of the Act. The adjectives "filthy", "put- . rid", "disgusting", "decomposed" "rotten" .. "insect-infested" refer to the quality of the article and furnish the indicia for presuming the article to be unfit for human consumption. But the presumption may not be conclusive in all cases, irrespective-of the character. of the article, and the nature and extent of the vice afflicting it. This is particularly so, were an article is found to be 'insect- infested'. There are some articles of food in respect of which the Rules framed under l the Act, lay down the minimum proportion of insect-infestation or in sect-damage which is not deemed to make the article unfit for human consumption. For instance, in the case of <ORG> (Jaiphal) the pro-r portion of extraneous matter and infestation shall not exceed 3.0 per cent by weight (Item A.05.16 of the Prevention of Food Adulteration Rules, 1955). In the case of Coriander (Dhania) the proportion of extraneous matter including dirt and insect-damaged seeds shall not exceed 8.0 per cent-by weight (Item A.05.08). Similarly in the case of foodgrains, the proportion of 2() miligrams of insect-damaged grain per 100 miligrams sample of the grain, and 5 per cent by weight of fungus-damaged grain is not considered enough, to treat it as - 'adulterated' either under sub-clause (f ), or any of the other sub clauses of sec. 2(i). These illustrations unmistakably show that the mere fact that any part of an article was insect-infested may not be conclusion proof of its being 'adulterated' under sub-clause (f). In k other words, all the adjectives used in the subclause are a presumptive and not an absolute test of the quality of the article being unfit for human consumption. To be more particular, in the case of an article in respect of which the Rules do not prescribe any minimum r standard of purity or any minimum proportion of insect-infestation , that would exclude it from. the definition of 'adulterated article', it r will be a mixed question of law and fact, whether the insect-infestation is of such a nature, degree and extent as renders the article unfit for human consumption. The opinion of the Public Analyst who examines and analyses the sample, as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence. A Public Analyst is supposed to be specially skilled in the science of dietetics. . As an expert in the science, he is competent to opine and testify about this fact.

The report of the Public Analyst, including his opinion on this point, is per se evidence by virtue of sec. 13 of the Act. But this does not mean that his ipse dexit would be conclusive and binding on the court. To treat it so would be to leave the determination of the guilt of the accused to the whims and fancies of the Public Analyst. The Act would not countenance such abdication of its judicial function by the court, leaving the case-as it were-to be tried by the Analyst. It is for the court to weigh his opinion and reach its own finding.

In <NAME>'s case (supra) <ORG> construed this sub clause thus:

"The word 'otherwise' in sub-clause (f) of cl. (i) of sec. 2 does suggest that all the adjectives used earlier refer to the quality of the article being unfit for human consumption. To fall under that subclause an article of food must be unfit for human consumption because it consists wholly or in part of any fifthy putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or because it is in- sect-infested or on account of any other cause."

If we may say so with respect, this is a correct exposition of the law embodied in s. 2(i) (f). We need only add for the sake of elucidation, but these adjectives indicate presumptive but not absolute criteria as to the quality of the article. In each case it must be proved that the article was unfit for human consumption. In the case of articles for which the Rules lay down any minimum standard of purity with reference to any of the vices specified in this subclause; mere 2-Ll276SCI/75 proof of the fact that the impurity was in excess of that countenanced by the prescribed standard, would be conclusive to show that the article was unfit for human consumption.

In regard to cashewnuts there is no statutory provision prescribing any minimum standard of purity with reference to the vice of in sect-infestation or other adjectives used in this sub-clause. It will therefore, be for the Judge of fact to decide upon the evidence in the case, whether the insect- infestation found was of such a nature and extent as to make it unfit for human consumption. We have already pointed out that the Report of the Public Analyst, is admissible in proof of this fact.

In <NAME>'s case (supra), <ORG> after holding that in order to bring a case within the purview of the said sub-clause (c), it must be proved that the article is unfit for human consumption, proceeded to say something-which in our opinion is not correct-as to the proof this issue, as under:

"By referring to Appendix to the Prevention of Food Adulteration Rules, 1955 the learned counsel for the petitioners also urged that as for purposes of sub- clause (1) of clause (i) of section 2 no standard of quality had been prescribed for <NAME> the Public Analysts were not justified i treating the samples found insect-infested above 5% lo be adulterated. There can hardly be any doubt that if for an article of food no standard of quality or purity has been prescribed or no limits have been prescribed for the variability of its constituents then sub-clause (f) of clause (i) of section 2 will not apply and for considering whether or not the article is adulterated it will have to be seen if any other portion of the definition of "adu1terated" is applicable. Of course as no standard of quality or purity was prescribed for <NAME> it was not competent for any Public Analyst to him self fix any such standard and to say that he will not treat <NAME> which is insect- infested to the extent of 5% as nat adulterated but will regard any higher percentage of insect infestation to make the article adulterated. In the case of <NAME> alias <CITATION> (1972-1, SCC 326), it was held by their Lordships of <ORG> that the standards of quality and limits of variability fixed by <ORG> are not even subject to alteration or variation by Courts."

We are unable to agree with the proposition propounded by <ORG> that if for any article of food no standard of quality or purity has been prescribed or no limits have been prescribed for the variability of its constituents, then sub-clause (f) af clause (i) of sec. 2 will not apply.

As already discussed, the governing ingredient of sub- ciause (f) is the quality of the article being unfit for human consumption. If the quality of the article suffers from any of the vices, i.e. filthiness, put- A refection insect-infestation etc. this sub-clause would be inexorably attracted and on proof of the article being unfit for human consumption, the requirements of the clause would be completely satisfied. Such proof may consist of the report of the Public Analyst. The value of his report however would depend on its being selfcontained, rand comprising the necessary data and reasons for his opinion. It is desirable that the Public Analyst should express his opinion on all the relevant points with reference to the particular sub-clause or sub-clauses of sec. 2(i) of the Act. This will not only enhance the value of his report but also facilitate the task of the <ORG>. If it is merely dogmatic, that would be a circumstance detracting from its evidential value, though it may not render it inadmissible. Ultimately the decision rests with the court which would take into account all the circumstances of the case including the character of the article, the nature and the extent of the insect-infestation and other relevant factors. If the Public Analyst says 'that since the insect-infestation in the <NAME> pieces is less than 5 per cent, the sample, in his opinion, is adulterated' then all that can be said about it is that the opinion is dogmatic. He should say with particularity as to how and why the percentage of insect-infestation found by him lenders to sample unfit for human consumption. The additional reasons which he might give, in addition to the certain proportion of the sample being insect-infested, would enhance the value of his report, still further. It is not possible for us to speculate the reasons which the Public Analyst as an expert in the science might advance in support of his opinion. By giving the opinion that if the insect-infestation is above 5 per cent, the sample of <NAME> pieces would be unfit for human consumption, the expert would not be laying down any standard of quality or Limits of variability which the <ORG> in its wisdom has not prescribed. His opinion would be just a piece of evidence which has to be` evaluated by the <ORG> in the circumstances of a particular case to reach a finding as to the unfitness or otherwise of the sample for human consumption. The question of varying. any standard of quality or limits of variability in the case of <NAME> pieces does not arise because no such standard has been fixed either in the Act or in the rules framed there-under. Reference to what this <ORG> said in <NAME> case (ibid), made by the High <ORG> was thus not in point.

In the instant case the report of the Public Analyst is silent as to whether on account of the insect-infestation found by him in the sample of <NAME> pieces, the article was unfit for-human consumption. The respondent, as already noticed, had made an application to the Additional Sessions Judge, in appeal, for summoning the Public Analysts. His request was however declined. When the case was in <ORG>, Counsel for <ORG>, also, felt that the report was vague, incomplete and deficient, and, on his request <ORG> actually summoned the Public Analysts, M/s. <NAME> and <NAME>, as witnesses, for 21-12-1970, for evidence. Despite the adjournment granted by us, the learned Counsel for the parties have not been able to throw light as to what had happened in <ORG> on 21-12-1970.

The Public Analysts, as is apparent from the judgment of the learned single Judge of <ORG> have been expressing different opinions on different occasions as to when an article can be said to be 'insect-infested'. In the circumstances of this case therefore, it had become necessary to call the Public Analysts as witnesses to unable them to elucidate their opinion and amplify their report and to allow the parties to test it by cross-examination. For this purpose, on our first reaction, we were inclined to remit the case to <ORG> for redecision. But the learned Counsel for <ORG> has brought to our notice that the Public Analyst, Mr. <NAME> whose report is in question-is no longer in the service of the Cor poration and is not residing at Delhi. It is obvious that it will not be possible to procure Mr. <NAME>'s attendance in court without an amount of delay and inconvenience which will be unreasonable in the circumstances of the case and will cause undue hardship to the respondent who has had more than his normal share of the mental suffering. harassment and expense which go together with protracted criminal proceedings, extending in the present case over 81 months. No useful purpose will therefore be served by remanding the case for a fresh decision. Taking into consideration all the circumstances of the case, we do not think it proper to disturb the acquittal of the respondent.

Subject to the clarification of the points of law and the reversal of the view taken by <ORG> as to the meaning and scope of s. 2(i)(f) , the appeal is dismissed.

P.H.P. Appeal dismissed.


CASE NO.: Writ Petition (civil) 43 of 1998 PETITIONER: Dr. <NAME> & <NAME>. RESPONDENT: State of U.P. & Anr. DATE OF JUDGMENT: 04/12/2002 BENCH: CJI, <NAME> & <NAME>. JUDGMENT:

J U D G M E N T With W.P.(C) No.237/98,220/98,276/98,532/98 539/98,547/98,176/99,229/99 and 299/99 RUMA PAL, J.

A tangled web of facts and law would best describe this case which involves the question of the seniority of doctors in <ORG>. To untangle the factual aspect, we need to start from 1945.

Prior to 1945 there were two medical services in the state of U.P - <ORG> (<ORG>) and <ORG> (PSMS). On June 14, 1945 the Government of U.P. framed rules known as 'The United Provinces Medical Service (Men's Branch) Rules, 1945' (referred to hereafter as the '1945 Rules'). In 1946, two new medical services were constituted, namely, <ORG> and <ORG>. On 2nd November, 1964 <ORG> and Grade II were merged with effect from 1st November 1964. However, there were no rules for fixing inter-se seniority of the officers of the two erstwhile services which were so merged. The issue of the inter-se seniority between the members of the new service as merged i.e. between <ORG> and <ORG>I, was resolved ultimately by this Court by its decision in <CITATION> 1980(3) SCC 180. As far as recruitment to the new <ORG> was concerned by way of a stop gap arrangement the State Government passed an order dated 20th February 1965 making the 1945 Rules applicable to the new <ORG>. The order said, "<ORG> (Men's Branch) Rules, 1945 shall apply to the new <ORG>, unless otherwise ordered". and prescribed the eligibility criteria for appointment:

"The following will eligible for appointment to PMS:

(A) Medical Graduates of all universities in India recognised by <ORG>.

(B) Medical Graduates who hold the BMBS degree of <ORG>, provided they have served in house appointments for a term of nine months in a teaching hospital before they offer themselves for appointment."

The writ petitioners Nos. 1 and 2 before us were selected by <ORG> (<ORG>) and issued letters of temporary appointment in the new <ORG> by the Governor on 24th September 1965 and 30th November 1965 respectively. There is no dispute that they were eligible to be appointed under the prescribed criteria.

The second chapter begins in 1968 when the State Government made a request to <ORG> for recruiting doctors to the medical service of the <ORG>. <ORG> (<ORG>) prepared a Select List in 1972. Some of the respondents are those who came into the picture for the first time when they were selected in 1972 by the <ORG>. The petitioner No. 2 was also one of the selectees. However, before the select list could be given effect to, on 26th June 1973 the <ORG> was merged with <ORG> (<ORG>) and a new cadre was formed, namely, <ORG> (<ORG>). With the merger 995 posts of <ORG>, 574 posts of <ORG>(Male) and 19 permanent and 407 temporary posts of <ORG>(Female) i.e. a total of 2056 posts stood abolished in the erstwhile <ORG> and <ORG> on the date of the merger therefore 2056 posts were in the new cadre. Prior to the merger i.e. between 1968 to 1973 some of the writ petitioners before us were also temporarily appointed like the petitioners 1 and 2, against substantive posts by the Governor after selection by the <ORG>. Temporary appointment letters were issued to some of the selectees not on the basis of the Select List but after selection by the <ORG>.

The third chapter starts with a letter dated of <ORG> dated 11th April 1974 which stated that as there were certain deficiencies in the 1972 <ORG> the ad hoc appointments of <ORG> officers would be extended upto 31st October 1973. A request was then sent by <ORG> to the <ORG> for recruitment of 2025 medical officers. During this period also a number of persons were appointed by <ORG> on temporary basis after selection by the <ORG> till 1976. On 23rd December 1977 the <ORG> sent a list of 1703 persons selected against the aforesaid posts. Subsequently by letters dated 16th June 1978 and 18th May 1979, the <ORG> sent two separate lists of a total of 25 candidates to the <ORG>. Some of the writ petitioners who had been temporarily appointed during 1968 to 1976 were recommended in the 1977-78-79 <ORG>. However, no letters of permanent appointment were issued by the <ORG> to any of these 1798 selected candidates.

In other words, during the period 1968 to 1979 there were three groups of qualified doctors:

(1) Those given temporary appointment and who had also been selected by <ORG>;

(2) Those given temporary appointment but were not selected by <ORG>;

(3) Those who were selected by <ORG> without being temporarily appointed earlier.

The fourth chapter begins with the issue of the UP Regulation of Ad hoc Appointments (On posts within the purview of UP Public Service Commission) Rules, 1979 (hereinafter referred to as the '1979 Rules'). Rule 7 of the 1979 Rules provides: "Saving (1) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed below the persons appointed in accordance with the relevant service rules or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.

(2) If two or more persons are appointed together, their seniority inter se shall be determined to the undermentioned in the order of appointment."

In terms of the 1979 Rules the 'ad hoc appointees' could not count their services which they may have rendered earlier as temporary appointees. Thus the doctors who had been appointed temporarily upto1976 were sought to be regularized under the 1979 Rules and letters of appointment were issued to them, after a period of 'probation', whereby they were treated as having joined the service with effect from the date of these appointment letters. A seniority list was published in 1983 in which the candidates who had been recommended by the <ORG> for appointment in 1972 were placed at the top followed by all the 'temporary appointees' like the writ petitioners although almost all of them had been appointed at least temporarily much prior to the 1972 selectees who had not been issued regular appointment letters at all.

On 13th March 1984, <ORG> issued an order which was communicated to the <ORG> that the Select List prepared by the <ORG> for the year 1977, 1978 and 1979 was cancelled and would not be given effect to.

All these facts gave rise to litigation by the different groups. The first set of litigation was filed by the temporary appointees before <ORG>. Three separate writ petitions were filed by Dr. <NAME>, Dr. <NAME> and Dr. <NAME>. All three of them had been appointed temporarily to the <ORG> prior to its merger with <ORG> and had been continuously working since the date of their respective appointments. They impugned the decision taken by <ORG> to treat them as ad hoc appointees under the 1979 Rules. <ORG> disposed of these three writ petitions by a common judgment dated 26th April 1991 (hereinafter referred to for the sake of convenience as '<NAME>'s case'). <ORG> noted that the petitioners had been appointed and selected temporarily pursuant to notifications for filling up of posts and in consultation with the <ORG>. All the petitioners had MBBS degrees with the requisite experience and were entitled to be appointed against the vacancies then existing. Although the petitioners were appointed temporarily their appointments were against substantive vacancies. The Court also noted that the Civil List which had been published in 1967 showed that the temporary <ORG> officers like the petitioners in <NAME>'s case had been approved by the <ORG>. <ORG> held that the petitioners could not be treated as having been appointed on ad hoc basis and that the 1979 Rules did not apply to them. Consequently their seniority was not to be fixed from the date of their regularisation under the 1979 Rules, namely 1982, but from the date of their initial appointment in the <ORG> cadre.

The <ORG> of U.P. filed a special leave petition from the decision of <ORG> in Mathur's case. This was dismissed by this Court on 24th November 1992 by a reasoned order in which this Court said, "We see no infirmity in the judgment of <ORG>. We agree with the reasoning and the conclusions reached therein". This order was passed by a Bench of three-Judges of this Court. Several other writ petitions had also been filed by temporary appointees. Writ Petition No. 6227/81 by <ORG> was treated as a representative writ petition. Pursuant to directions of <ORG>, notices were published in <ORG> and 'The Sunday Pioneer' on 22nd May 1988. In those notices, the contentions of the petitioners were indicated. By order dated 9th September 1981, <ORG> held that the issues raised were covered by the judgment of <ORG> in Mathur's case and accordingly similar relief was granted to the writ petitioners. The Special Leave Petition from W.P.No.6227/81 filed by the <ORG> was dismissed on 21st January 1993.

Thereafter in a number of writ petitions, namely, W.P.No.3550/ <CITATION> .; W.P. No. 6368/82 <NAME> and Ors. v. State of U.P.; W.P. No. 6124/91 <NAME> and Anr. V. State of U.P. & Anr. <ORG> passed orders following the decision in <NAME>'s case. Each of the special leave petitions preferred by the State of U.P. from the several decisions of <ORG> were dismissed by this Court. Apart from this there were three other decisions such as CMWP No.7281/93 etc. where the State did not file any SLP although <ORG> had followed the decision in <NAME>'s case. As a consequence of the decision in <NAME>'s Case, those persons who had been appointed temporarily against substantive posts were entitled to rank above any other appointees who were subsequently appointed either on the basis of the 1972 Select List or the 1977-78-79 Select List.

The second set of litigation commenced in 1993 with the case of <CITATION> 10315/82). The Division Bench of <ORG> reiterated the view taken in <NAME>'s case and directed the writ petitioners who were originally temporary <ORG> appointees to be given seniority taking into account the services rendered by them from the date of their respective appointments. The decision of <NAME> was followed by the same <ORG> in several writ petitions. (CMWP No. 12257/89 and 18781/89 Dr. G.Agnihotri & Ors. V. <ORG> of U.P.; CMPW No. 18781/89 and CMPW No.12267/89 Dr.<NAME> & Ors. V. <ORG> of U.P.; W.P.No.4163/93 Dr. <NAME> V. <ORG> of U.P. & Ors.; CMWP No.______of 1993 <NAME> & Ors. V. <ORG> of U.P. & Ors.; CMPW No.____of 1993 Dr.<NAME> V. <ORG> of U.P. & Ors.) The <ORG> did not impugn some of the decisions which had been decided following <NAME>'s and <NAME>'s case. However, it filed a special leave petition against the decision in <NAME>'s case and in five other matters. It appears from the records that no notices were issued on these special leave petitions which only came to be tagged with another matter, namely, C.A. No. 4438-42 of 1995 - <ORG> of U.P. V. R.K. <NAME> & Ors. This brings us to the final set of litigation. These were initiated by those persons who claimed appointment on the basis of the 1977- 78-79 Select List. Several petitions were filed before <ORG> challenging the decision of the <ORG> Government to cancel the Select List of 1977-78-79. The <ORG> allowed the petitions and cancelled the Government's order thereby reviving the 1977-78-79 Select List. The <ORG> Government appealed from the <ORG>'s decision. The <ORG> modified the order of the <ORG> holding that only the 14 petitioners before the <ORG> who were working on ad hoc basis would be deemed to have been appointed when the vacancies were first filled by regularisation and they would be entitled to seniority and other benefits accordingly. From this decision, the <ORG> of U.P. filed several special leave petitions in which the Court allowed leave to appeal. The lead appeal was W. P. No.7066 of 1986 and 5809 of 1987 - <CITATION> . and is hereinafter referred to as '<NAME>'s case'. The batch of special leave petitions challenging the decision in <NAME> were also tagged with the appeal in <NAME>'s case. On 23rd March, 1995 a Bench of two learned Judges of this Court disposed of <NAME>'s appeal as also the several tagged special leave petitions without any notice having been issued in those petitions. The Court held:

(I) As the <ORG> had notified, selected and recommended the names of candidates in 1972 they were entitled to be appointed and <ORG> was directed to appoint them with effect from the date on which <ORG> had received the merit list from <ORG>.

(II) Those candidates whose names were recommended in 1977, 1978 and 1979 were directed to be appointed in the order of merit in their respective lists. Their seniority would be determined on the basis of their position in the respective list and they would be deemed to have been appointed from the date on which <ORG> had received the list. They would be placed below the appointees in Class I.

(III) The remaining candidates were the ad hoc appointments made de-hors the rules and therefore though the doctors had put in more than 33 years of service they remained ad hoc hands and would not get seniority from the respective dates of their appointments.

However, those of them who had been granted benefit of regularity of service from the dates of their appointments by <ORG> and who had retired would not be affected by the decision of this <ORG> as those matters had become final. Their appointments would be merely notional only for the purpose of giving them seniority and retiral benefits admissible according to the relevant rules and would not disturb interse seniority amongs the other doctors appointed in the service. Otherwise those who had not been selected but were still continuing in service would be placed last and their seniority would be determined with effect from the date of their regularisation under the 1979 Rules and their respective dates of appointment thereunder.

The writ petitioners in <NAME>'s case filed a contempt application before this <ORG> alleging violation by <ORG> of the order dated 23rd March 1995 by non-framing of a seniority list in keeping with that judgment. While disposing of the contempt application the <ORG> also took notice of Intervenor applications by those in whose favour the High <ORG> had passed orders and against which special leave petitions had been filed and disposed of all the applications by an order dated 26th July 1996. By this order, the <ORG> noted that letters of appointment had not in fact been issued to either the persons on the 1972 Select List or the persons in the 1977, 1978 and 1979 Select List. Nevertheless it reiterated the stand that the candidates selected in the year 1972 would become senior to all other ad hoc appointees since they were continuing on ad hoc basis. It was also held that the candidates recommended by the <ORG> in the Lists of 1977-78-79 would rank below the 1972 appointees and that as far as "non selectees" were concerned they would be governed by Rule 7 of the 1979 Rules and given seniority from the date of their appointments under the 1979 Rules. It was made clear that the order "would cover all the cases and would apply to all the candidates who are concerned in the service and that "the <ORG> would determine their inter-se seniority in accordance with these directions within four months".

In compliance with the orders dated 23rd March 1995 and 26th July 1996, the Government published a seniority list on 24th November 1996 which placed the persons who had been placed as the senior most by virtue of <NAME>'s case at the bottom of the seniority list. It was in these circumstances that several writ petitions were filed in this <ORG> stating that the decision of this <ORG> in <NAME>'s case was directly in conflict with the earlier decision of this <ORG> in <NAME>'s case and that since the decision in <NAME>'s case was rendered by a Bench of a lesser number of Judges than in <NAME>'s case, this <ORG> should reaffirm the principles already laid down in <NAME>'s case and fix the seniority of all the doctors in <ORG> cadre from the date of their initial appointment and declare that Rule 7 of the 1979 Rules did not apply to them at all.

The matter was placed before a bench of three-Judges. By an order dated 4th February 1999, this <ORG> noted that there were five categories of persons in the service:

1. Those persons who are in service as temporary recruits and who have not been selected by <ORG> but are given seniority from the date of joining service on the basis of <ORG> orders passed by the High <ORG> or by a bench of three Hon'ble Judges of this <ORG>;

2. Those persons who were in service as temporary recruits and who have been later selected by <ORG> in 1972;

3. Those persons who were in service as temporary recruits and who have been later selected by <ORG> during the years 1977, 1978 and 1979;

4. Those persons who are in service as temporary recruits and who have not got the benefit of any order of <ORG> or this Court i.e. (those temporary recruits other than unselected temporary recruits falling in Category

1). These persons are the persons affected by the U.P. Regularisation of Ad hoc Appointments (of Posts within the Purview of the Public Service Commission) Rules, 1979;

5. Fresh recruits who were selected by <ORG> in 1977, 1978 and 1979 and who have been subsequently appointed."

It was also noted that there would be pensioners falling in each of the categories. The <ORG> directed the <ORG> of U.P. to issue notice in two daily newspapers, namely, '<ORG>' in Hindi and '<ORG>', Lucknow Edition in English and stated that the matters would be heard by this <ORG> and those persons whose seniority was likely to be effected were entitled to come before this <ORG> to put forward their point of view including all those persons were governed by earlier <ORG> orders. A circular was also directed to be issued to the same effect by the <ORG> to all District Headquarters.

After publication and completion of the procedures as directed, this <ORG> by order dated 17th August 2000 referred the writ petitions to a <ORG> of five-Judges for disposal in view of the dissimilarity of views expressed in <NAME>'s case and <NAME>'s case. Before the bench of five-Judges, it was contended by the respondent that there was in fact no conflict between the decisions in <NAME>'s and <NAME>'s case. The <ORG> by its judgment dated 4th April 2002 held that there was a conflict and that having regard to the doctrine of precedent, the decision of this <ORG> in <NAME>'s case dated 23rd March 1995 as modified on 26th July 1996 could not stand. However, since the decision in <NAME>'s case was being set aside only on the ground that it was in conflict with a larger <ORG> decision, the Constitution <ORG> did not decide the inter-se rights of the petitioners and the other respondents or the correctness of the judgment in <NAME>'s case. The writ petitions were accordingly remitted back to the three-Judges <ORG> to be disposed of finally on merits.

The matters have thereafter been placed before us for final disposal.

According to the writ petitioners they were appointed on temporary basis against substantive vacancies in accordance with the Rules prevalent at the time of their respective appointments. They had the requisite qualifications and their appointments were made after selection by the <ORG>, after sanction granted by the Governor and with the approval of the <ORG>. They claim to have at least continued to serve in such substantive vacancies after consultation with the <ORG> and had been granted leave benefits, promotions, increments and other service benefits of regular service. They therefore claim seniority from the date of their initial appointments on the principles laid down in Mathur's case. According to the petitioners the <ORG> select lists prepared in 1972 and 1977-78-79 are not available with the <ORG> respondents as they have been admittedly destroyed or misplaced and the 1996 seniority list was purportedly based on them. It is stated that <ORG> Government has not issued any letters of regular appointment to any selectee till today. It is contended that the selectees who had not been temporarily appointed earlier, were given temporary appointments after their recommendations by the <ORG> in 1972 or 1977-78-79. Many of them joined services on the basis of these orders of temporary appointment much later. Now on the basis of the decision in <NAME>'s case, they were claiming seniority from the date of their selections whether in 1972 or 1977-78-79 even though they had not joined services at all then. It is submitted that the selectees could not claim seniority on the basis of <ORG> recommendation which apart from any other consideration, could not be kept alive for such a long period.

Supporting the case of the writ petitioners are the interveners. The first category of interveners are those who were also temporarily appointed between 1962 and 1963 and who have since been superannuated. They claim the same relief/benefit as the writ petitioners. The second category of Interveners are those temporarily appointed doctors who had challenged their "appointments" under the 1979 Rules by way of writ applications and whose writ petitions have been allowed by <ORG> holding that they were entitled to count their seniority from the date of their initial appointments. They claim that the orders in their cases had attained finality and have in fact been given effect by <ORG> and that their status should not be disturbed. The third category of interveners are those temporary appointees who had also obtained orders in their favour on writ applications filed by them before <ORG>, the special leave petitions wherefrom have been dismissed and who have since retired from services without getting any benefit as directed by <ORG>. They claim that their orders had attained finality and should not be re-opened.

As against these submissions the selectees have contended that the decision in <NAME> case requires re-consideration since the writ petitioners were appointed on ad hoc/temporary basis without the approval of the <ORG>. Their appointments were de hors the Rules and could not be termed as regular merely by a passage of time. It is further contended that the provisions of the U.P. Medical Services Men's Branch Rules 1945 had been mis- interpreted in <NAME>'s case. It is contended that the 1945 Rules continued to apply to the medical services till 1981. Even assuming that the 1945 Rules did not apply after 1973, a civil post could be filled up only in consultation with the <ORG> and therefore the selectees by the <ORG> had been properly appointed. It was contended that in any event the writ petitioners are estopped from challenging the selections made by the <ORG> because most of them had participated in the selections and were unsuccessful. The writ petitioners, according to the selectees, had obtained the benefit of regularisation and further promotion under the 1979 Rules. The selectees had been given preference in the matter of their appointments for their post graduate work and if they were reverted, more meritorious employees would be adversely affected. The prayer of the selectees is that <NAME>'s case should be referred to a larger bench for its decision.

We are unable to accept the submissions of the selectees. Although, it is not necessary to go into the correctness of the reasoning in <NAME>'s case when it has been set aside by <ORG>, nevertheless it needs to be noted that the 14 writ petitioners in that case had only challenged the cancellation of the 1977-78-79 Selection List. They wanted appointment on the basis of the Selection List. The question of inter se seniority with other members of <ORG> was not in issue. The <ORG>, however, determined the issue of seniority in the absence of the interested groups. Since both the orders in <NAME>'s case have been set aside, the seniority as determined by those orders can no longer be relied upon. The disposal of the Interlocutory Applications filed by those who had obtained orders from the High <ORG> following <NAME>'s case, by the order dated 26th July, 1976 cannot also stand, since both this order as well as the order dated 23rd March 1995 in <NAME>'s case have been held by <ORG> to be "not good law". By the same token, since the 1996 seniority list was prepared on the basis of this <ORG>'s decisions in <NAME>'s case, with the setting aside of the latter, the list cannot be held to have been validly prepared. This leaves the field with only the principles as determined in <NAME>'s case. It is doubtless correct that as long as a decision stands, it has to be followed unless the <ORG> has reason to differ with the view expressed. In such event, the <ORG> must refer the issue to a larger Bench. This principle is however not applicable if the earlier decision has concluded issues in a particular set of facts in a given lis between the same parties. Such a decision cannot be reopened on the principles of res judicata except by way of an application for review. There is no application for review which requires us to reopen the issues which were concluded by a Bench of three-Judges of this <ORG> about a decade ago. The writ petitioners before us claim to be the beneficiaries of the order in <NAME>'s case. They do not seek a review of that decision. It is also not open to the selectees to question the correctness of <NAME>'s decision now. Selectees and others had the opportunity of ventilating their grievances before the <ORG> in Writ Petition (C) No.6227 of 1981 which was a representative action. None of the respondents responded to the advertisements admittedly published on the directions of the <ORG>. The order passed in W.P.No. 6227/81 on 9th September 1981, therefore, binds them and they cannot seek to reopen the issues concluded thereby. We have already noted that the order in W.P.6227/81 was sought to be impugned before this <ORG> by way of a special leave petition which was dismissed on 21st March 1993. There has been no prayer for review of this order either. Besides the decision in <NAME>'s case has been followed consistently in a large number of cases since its pronouncement by the High <ORG> in 1991 and by this <ORG> in 1992. Special leave petitions from those decisions have also been dismissed by this <ORG>. It would not be proper in these circumstances to upset the principles and introduce further uncertainty in an already chaotic situation particularly when the matter involves the question of service conditions of <ORG> employees. In these circumstances, the issue of seniority of the parties before us is to be determined in keeping with the decision in <NAME>'s case.

The questions therefore are:-

1) Are the cases of the writ petitioners different from writ petitioners in <NAME>'s case ?

2) What would be the position of those who have been appointed on the basis of the decision in <NAME>'s case?

Before answering the questions we wish to make it clear that the interveners who have final orders in their favour from either this <ORG> or the High <ORG> with regard to their appointments and seniority, are entitled and will continue to enjoy the benefits granted thereby. This decision will not operate to jeopardize the reliefs finally obtained by them from <ORG>.

As far as the writ petitioners are concerned we see no materially distinguishing factor between their circumstances and the writ petitioners in <NAME>'s case.

We have already noted the facts in <NAME>'s case but it is convenient to recapitulate the facts briefly for the purpose of comparison with the writ petitioners' cases before us. The petitioners in <NAME>'s case were qualified to be appointed in what was then known as <ORG>. <ORG> upheld the claim that they were eligible to be appointed according to the Rules framed in 1981 amending the 1945 Rules with effect from 4.10.1961. They had been temporarily appointed against substantive vacancies and their appointment in continuous service was in consultation with <ORG>. Even though their appointments were stated to be temporary in their appointment letters, they were not treated as ad hoc appointees at all till the <ORG> sought to appoint them in 1982 under the 1979 Rules and fix their seniority with effect from 3rd August 1982 ignoring the 20 years of service put in by them from the date of their initial appointments.

The writ petitioners before us were temporarily appointed by the Governor against substantive vacancies. The petitioner No.1 and 2 were appointed in 1965. For example, the letter of appointment of the petitioner No. 1 dated 22.9.1965 states that he was appointed as temporary <ORG> Officer "as per the approval of <ORG>". The appointment was " for the period of one year or till the services are required by the <ORG> or till you are replaced by a candidate duly selected by <ORG> whichever is earlier". The other letters of appointment issued upto 1976 use similar language. What is clear from the language is that the appointments were made against substantive vacancies. In the Civil List published on 1.7.1967 which was compiled in <ORG> of <ORG> under the heading "Temporary officers approved by <NAME>", the petitioner No.1's name appears against Srl. No. 336. The names of the writ petitioners similarly temporarily appointed upto 1976 were published in <ORG>.

It has been earlier noted that prior to the merger of the <ORG> with the <ORG> in 1973, the 1945 Rules were made applicable to the <ORG> by Notification dated 20th February 1965. After the 1973 merger and the creation of <ORG>, no specific rules laying down service conditions of the new service were framed. On 23.11.1981, <ORG> issued a notification under Article 309 promulgating the Uttar Pradesh Medical Services (Men's Branch) (Amendment) Rules 1981, Rule 1 (ii) states that: "They shall be deemed to have come into force with effect from 4.10.1961".

By the 1981 Amendment, Rule 10 of the 1945 Rules was amended. This appears to indicate that, if at all, the 1945 Rules continued to apply to the <ORG>. Rule 10 of the 1945 Rules provided the academic qualifications of a candidate for recruitment to the service. These included an M.B or an equivalent degree of a university established by law in India and recognized by <ORG>. By the 1981 amendment, "a candidate who possessed a BMBS degree from <ORG> having served in houses appointments, a term of nine months in a teaching hospital (sic)" was also made eligible. There is no dispute that each of the writ petitioners held an MBBS degree and had the requisite qualifications for being appointed under the 1945 Rules. Rule 17 (2) of the 1945 Rules provides:

"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".

It could not, therefore, be said as was held in <ORG>'s case that the writ petitioners were appointed de hors the service rules. As far as the question of seniority is concerned, Rule 18 of the 1945 Rules reads as follows:

Seniority - "Seniority in the service shall be determined by the date of the 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".

Thus even under the Medical Service Rules 1945, the determination of seniority under those rules was from the date of appointment against a substantive vacancy. It is clear that in accordance with the Rules, and as held by <ORG> in <NAME>'s case, appointment could be temporary or permanent. But where the appointment is against a substantive vacancy, the year of appointment was determinative in fixing seniority under the Rule. On this basis, calculations of the writ petitioners' seniority from the date of their initial appointment cannot be said to be incorrect. Furthermore It has not been disputed that the writ petitioners have been continuing to serve and had till 1983 enjoyed all the benefits of regular service since their initial appointments like the writ petitioners in <NAME>'s case. As held in <CITATION> 200 (8) SCC at para 20: "In the service jurisprudence, a person who possess the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc."

The writ petitioners cannot, for all these reasons, be treated as 'ad hoc appointees' who were to be regularised by appointment after selection and a period of probation under the 1979 Rules nor can it be said that the decision in <NAME> case mis- construed the provisions of the 1979 Rules so as to exclude temporary appointees like the writ petitioners from its application. In the circumstances the writ petitioners are entitled to be granted the same relief as was granted to the petitioners in <NAME>'s case and count their seniority from the date of their initial appointments.

The 'selectees' on the other hand whether selected in 1972 or in 1977-78-79 cannot claim seniority on the basis of their mere selection, assuming the selection lists to be valid. According to the 1945 Rules, the selection made by the <ORG> was merely recommendatory. This is settled law and is also so provided in Rule 13 (3) & ( 4) which read as follows (where the reference to the <ORG> is the <ORG>):

" 13 (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.

13 (4) Subject to the provisions of rules 6 and 16 (2) the Governor shall appoint as vacancies(sic) the candidates who stand highest in order of performance in the list preferred by the <ORG> under sub Rule (3), provided that he is satisfied that they are duly qualified in other prospects".

That selection does not mean automatic appointment also follows from Rule 16 (2) which provides:

"Before a candidate is finally approved for appointment by direct requirement he shall be required to pass an examination by <ORG>, which shall be conducted after he has been selected by the <ORG>".

In any event as already noted, under Rule 18 seniority is to be determined from the date of their orders of appointment and not from the date of their selection by the <ORG> or receipt of the Selection List by the <ORG>. As noted in <NAME>'s case, the selectees had not been issued orders of regular appointment at all. Clearly, therefore, they cannot claim seniority over the writ petitioners some of whom have been serving since 1965 and the rest at least since 1976. Assuming that the writ petitioners had appeared before the <ORG>, it would not mean that by reason thereof seniority was to be counted from the date of preparation or submission of the Selection Lists. If the selectees on the basis of the decision in <NAME>'s case were treated as having been appointed, their appointment would at the highest relate to 1996 when this Court directed their appointments from the date of receipt of the selection lists by the <ORG>; a direction which was wholly contrary to the Rules. Strictly speaking with the setting aside of the decision in <NAME>'s case the selectees cannot even have this order to fall back on. But the fact remains that the selectees have actually been serving. Therefore having regard to the peculiar circumstances of this case, it would , in our view, be equitably appropriate to treat them as having been appointed from the date on which they actually joined the service.

We accordingly allow the writ petitions and declare that

1) the writ petitioners are not within the purview of the 1979 Rules;

2) <ORG> will fix the seniority of all doctors in the <ORG> cadre from the date of the orders of their initial appointment within a period of six weeks from the date of this order and give all consequential benefits including promotions and positions on the basis of such seniority list; 3) Those doctors who were selected in 1972 and 1977-78-79 by the <ORG> and who were not issued any orders of appointment and joined the service on the basis of <NAME>'s case, will be treated as having been appointed on the date that they actually joined the service and their seniority will be counted from that date. There will be no order as to costs.