Barin Ghosh, J. -
(1.) ON 25th April, 1964, in exercise of powers conferred by proviso to Article 309 of the Constitution of India and in supersession of all existing orders on the subject, the Governor of Uttar Pradesh was pleased to make the Rules called the Subordinate (Gazetted) Medical Service (Ayurveda and Unani) Rules 1964. Rule 5 thereof provided two sources of recruitment in the service, namely direct recruitment and promotion. Rule 14 of the said Rules provided the procedure for direct recruitment and mandated that selection should be done by the Commission, meaning thereby, the Public Service Commission, Uttar Pradesh. Similarly, Rule 16 thereof made it also clear that in the matter of promotion the Public Service Commission, State of Uttar Pradesh, shall be the final recommending authority. Rule 17 of the said Rules directed preparation of waiting list on the basis of the recommendation of the Commission, and sub Rule (1) of Rule 18 authorized the Governor to make appointment from both the lists, one having been appointed from one list, the other from the second list, namely one by direct recruitment and the other by promotion. Sub Rule (2) of Rule 18 of the said Rules is as follows:
(2) The Governor may, without consultation with the Commission, make appointments in temporary or officiating vacancies for a period not exceeding one year from amongst person who are eligible for permanent appointment to the Service under these rules.
(2.) ON 1st of February 1986, a few people were appointed on ad hoc basis, when Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi were also appointed on ad hoc basis for a period of one year or until selection by the Commission, whichever is earlier. It appears that on or before 1st February 1987, no selection by the Commission was made. The appointments thus given on 1st February, 1986, came to an end on 31st January 1987, but still then without there being any appointment or extension, the persons thus appointed, including Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi, purported to continue to discharge their duties and despite their being no direction, they were paid their remunerations, even after 31st January, 1987. On 7th of August 1989, Rule 10 was inserted in the U.P. Regularisation of Ad Hoc Appointments (On Posts within the purview of the Public Service Commission) Rules 1979, and in terms thereof the provisions of the said Rules were directed to apply mutatis mutandis also to any person directly appointed on ad hoc basis on or before 1st October 1986, and continuing in service as such on the date of insertion of the said Rule i.e. on 7th August 1989. It has been claimed and contended that the persons who were appointed on 1st January, 1986, were regularised in terms of the provisions contained in the said 1979 Rules, except Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi. We, however, have not been informed as to how in terms of the provisions contained in the 1979 Rules, those persons who were appointed by the order dated 1st February 1986, could at all be regularised, inasmuch as, in terms of their appointment they could not continue to serve as on 7th August 1989. Inasmuch as, regularisation of those others are not subject matter of any of these writ petitions, we need not go into the same. However, it appears to us that inasmuch as, by reason of the appointment order of Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi they could not in Law be in service as on 7th August 1989, the case of Dr. Hari Mohan Arya and Dr. Jamuna Dutt Dwivedi was not considered under the said Rules of 1979.
(3.) WHEN the 1964 Rules were invouge, the Government decided to appoint part time / daily wage doctors. The appointment letters issued in favour of such part time / daily wage doctors clearly indicated that they are being appointed as part time / daily wage doctors, who shall be entitle to a monthly remuneration of Rs. 1,500/ - calculated at the rate of Rs. 50/ - per day, to work six days in a week for full time as per popular hospital timings. It has been submitted by learned Senior Counsel, Mr. Dobhal, that after those doctors were engaged as part time / daily wage doctors, they used to be re -engaged after a gap of about two or three days after serving for a period of almost one year. Later on, in 1989, steps were taken to appoint similar such part time / daily wage doctors in place of those who were then serving, and for that purpose an advertisement was published. It was submitted that the said advertisement was successfully challenged before the Hon'ble Allahabad High Court, when the Hon'ble Allahabad High Court also issued a direction for regularisation of such part time / daily wage doctors, within a period of six months. The said direction was affirmed by the Hon'ble Supreme Court sometime in the year 1999. But no step was taken in that regard.;