- (1.) This writ petition under Article 32 was referred to a Bench of three Judges to decide an important question of constitutional dimension raised in this case.
(2.) Admittedly, in the Health Department of Government of U.P. called Provincial Medical Health Services (for short, the Services) recruitment to the posts of Doctors and promotion up to the post of Director were regulated by executive instructions of the Government and from the year 1973 Government had appointed the doctors to the service. Until the U.P. Regulation of Ad hoc Appointment (on posts within the purview of the Public Service Commission) Rules, 1979, were made by the Governor, in exercise of power under proviso to Article 309 of the Constitution, all the appointments and also promotions came to be made on ad hoc basis. The petitoner Association is seeking for a writ to quash the memo dated July 28, 1986 and for declaration that promotions made within the cadre shall be on the basis of seniority subject to rejection on ground of unfitnes and to regularise the services of all the officers in the cadre as per instructions as were in vogue prior to the date of that memo and other reliefs.
(3.) The admitted position from the record, is that the Personnel Department of the Government has issued model rules to all the departments to exercise the power under the proviso to Article 309 of the Constitution and to frame the statutory rules for appointment made in accordance with the rules. Pending making of the rules, ad hoc appointments could be made but it would be for one year and as soon as regular appointments were made, the ad hoc appointments were to be regularised in accordance with the rules. In this case, admittedly, no statutory rules were made not the procedure even as per instructions in force, was followed. Adhocism was the rule at the whim of the Department of Medical Health. In the Services, as per instructions in vogue, appointment to the post of Doctor could be made from amongst qualified doctors and diploma-holders. For promotion from the post of Medial Officer to the post of Deputy Medical Officers etc., qualifications and experience have been prescribed. Prior to July 28, 1986, for promotion to the post of Deputy Chief Medical Officer experience of right years of service was prescribed and for promotion to the post of Chief Medical Officer, two years experience as Deputy Chief Medical Officer was prescribed. Similarly, for promotion to the post of Joint Director, two years experience as Chief Medical Officer was prescribed; for promotion to the post of Additional Director, two years experience as Joint Director was prescribed and for promotion to the post of Director, one years experience as Additional Director but on the basis of merit and ability, was prescribed. For all other posts, seniority, subject to rejection on the ground of unfitness, was the rule. No minimum length of service was prescribed.;