M. L. Bhat, J. - (1.) THE petitioners pray for writ of certiorari and mandamus. Rule 7 (1) of the U. P. Regularisation of Adhoc Appointment (on posts within the purview of the Public Service Commission) Rules, 1979 be declared ultra vires and violative of Articles 14 and 16 of the Constitution. A mandamus is prayed to command the respondents to fix the seniority of the petitioners with reference to the date of their initial appointment in the Provincial Medical Service and it is prayed that the respondents be directed to place the petitioners as senior to all the doctors appointed subsequent to their date of appointment in the Provincial Medical Service ete. etc.
(2.) THE learned counsel for the petitioners at the outset has submitted that he does net want to press the relief for certiorari challenging the vires of Rule 7 (1) of the U. P. Regularisation on Adhoc Appointment Rules, 1979 but wants to confine his arguments for seeking a prayer of mandamus with regard to fixation of seniority only The relevant facts for the decision of this writ petition, as set out in the pleadings of the parties, are briefly stated, the petitioner No. 1 was appointed as Medical Officer in the Provincial Medical Service (hereinafter called 'P.M.S.') on adhoc basis on 21-2-1969. He is said to have joined on 7-6-1969. The petitioner No. 2 was appointed on 30-8-1965 in the P.M.S. as Medical Officer on adhoc basis) He is said to have joined on 4-9-1965. The petitioner No. 3 was appointed as Medical Officer in the P.M.S. en adhoc basis on 9-11 1962 and he is said to have joined his post on 16-11-1962. The petitioner No. 4 was appointed on adhoc basis as Medical Officer in P.M.S. is 1967 The petitioner No. 5 was appointed to the said service on 11-7-1959, He joined the post on 23-8-1969. The petitioner No. 6 was appointed to the said service on 31-1-1970 and he joined the post on 7-2-1970. The petitioner No 7 was appointed on adhoc basis to the said post en 14-9-1972 and he In said to have Joined his post on 26-9-1962. Since their appointment on adhoc basis in the P.M.S. the petitioners are said to be continuing in service as Medical Officers. On 14-5-1979 the State of U. P. is said to have framed Regularisation of Adhoc Appointment Rules, 1979. These rules prescribe regularisation of services of those Medical Officers, who were appointed on adhoc basis subject to certain conditions Rule 7 (1) of these rules prescribe that a person appointed under 1979 Rales shall be entitled to seniority only from the date of order of appointment after selection in accordance with the 1979 Rales Is made and shall be placed below the persons appointed in accordance with the Service Rules. It is averred that in pursuance of Rule 4 of the Rales a Selection Committee was constituted, which considered the case of the petitioners for regular appointment under the rules and found the petitioners suitable for regular appointment. The petitioners were ordered to be regularised in service in terms of Annexure 2 to the writ petition The petitioners are said to have made representations on different dates to the concerned authorities for giving them due place in the seniority list after taking the period of their initial appointment into consideration which, in other words, means that they claimed seniority from the date of their initial appointment. When the petitioners had come to know that they were being placed below the direct appointees of 1970-71 batch of the Medical Officers, they made representation. The petitioners submit that their seniority is to be determined from the date of their appointment irrespective of the fact that their initial appointment was on adhoc basis. From the date of Joining of the service by the petitioners, the U. P. Public Service Commission has conducted examination only once i. e. 1970-71 and thereafter it was conducted in 1974 but no appointments were made on the basis of 1974 examination. It is contended that without interview the Public Service Commission has regularised the services of some Medical Officers, whose names are given in para 18 of the writ petition. The criterion for determining the seniority of the petitioners is laid down in the U. P. Medical Service Roles of 1946. The said; rules provide that seniority in service shall be determined from the date of the order of appointment in a substantive vacancy.
(3.) THE petitioners submit that they were appointed initially against substantive vacancies in P.M.S. of the State and since then they have been working against substantive vacancies continuously. THE respondents are said to be obliged to take into account the petitioner's service from their inital appointment for the purposes of determining their seniority. THE petitioners have been treated part and parcel of the service ever since they joined on their posts. THE Medical Officers appointed subsequent to the petitioners cannot be placed senior to the petitioners merely on the ground that they had appeared before the Public Service Commission and they were selected. Such an opportunity was not provided to the petitioners after they were appointed on adhoc basis. Counter affidavit is filed by the respondent No. 2 to the writ petition. The petitioner's appointment on adhoc basis and the dates on which they were apppointed as Medical Officers in the P.M.S. is not denied. It is averred that the petitioners' appointment in the P.M.S. of the State was made prior to 1-1-1977 purely on adhoc basis. Their services have been regularised in accordance with Rule 7 (1) of the 1979 Rules and the petitioners are, therefore, placed below the persons appointed substantively in accordance with the relevant service rules. After the petitioner's appointment on adhoc basis the Public Service Commission held selections 1970-71 and 1974 but the petitioners do not figure in the selection list of the year 1970-71. Their seniority is being fixed below the names of the candidates approved in the list of 1970-71. In respect of the Medical Officers mentioned in para 18 of the writ petition it is submitted that their appointment was duly approved and recommended by the Public Service Commission In terms of the previous Govt, Orders issued in 1962;