S.S. Sandhawalia, J. - (1.) THE primary question that falls for determination in this appeal under Clause 10 of the Letters Patent, is, whether a direct appointment to the Selection Grade of the service is in consonance with the Punjab Civil Medical Service Class I (Recruitment and Conditions of Service) Rules, 1940.
(2.) THE facts which gave rise to the writ petition which stands dismissed by the order of the learned Single Judge under appeal deserve notice in some detail. Dr. Pritam Singh Respondent No. 2 is a Fellow of the Royal College of Surgeons and has also attended and qualified in various Post Graduate Medical Courses at well -known hospitals in England and the United States of America. In the year 1961 he was serving the Government of Uganda in British East Africa and according to him (vide annexure 'O' to the' written statement of this Respondent) drawing about Rs. 3,000 per mensem in a permanent pensionable post with the privilege of private practice. A communication dated the 23rd of August, 1961, having reference to this Respondent was addressed by Sir Cecil Wakeley, a renowned British Surgeon, to the then Prime Minister Shri Jawahar Lal Nehru. This was acknowledged by the Principal Private Secretary to the Prime Minister (vide annexure 'N' to the written statement of Respondent No. 2) and it was stated therein that an offer to the post of Civil Surgeon in the Punjab Civil Medical Service had been made orally by the Chief Minister of Punjab in March, 1961, to Respondent No. 2 but the latter had not given any definite reply and hence this offer had now been repeated and in case Respondent No. 2 was willing, the Punjab Government would certainly give him the post of a Civil Surgeon. This offer appears to have been repeated in a cablegram dated the 15th of September, 1961, and in reply thereto Respondent No. 2 whilst referring to his present emoluments and his medical qualifications communicated his willingness to serve the country of his origin if he was offered the post of the Chief Medical Officer, Chandigarh, at a suitable salary. On 1st March, 1962, Shri Partap Singh Kairon the then Chief Minister of Punjab ordered that Respondent No. 2 be appointed as Chief Medical Officer at Chandigarh in the vacancy caused by the transfer of Dr. Deepak Bhatia from that post. Consequently a formal order in the name of the Governor of Punjab dated 16th July, 1962, (annexure 'A' to the writ petition) was passed appointing Respondent No. 2 as Chief Medical Officer, Chandigarh, in the scale of Rs. 800 -50 -1500 with a starting salary of Rs. 1,000 per mensem plus such allowances as may be admissible under the rules. This order specified that the appointment of Dr. Pritam Singh Respondent No. 2 was for six months or till such time as a suitable candidate is recommended by the Punjab Public Service Commission to join the post. In compliance thereto Respondent No. 2 joined his present post on and with effect from 4th August, 1962. Subsequently the age limit prescribed by rules was relaxed in favour of Respondent No. 2 by an order of the Governor of Punjab dated the 18th December, 1962. This post, which is in a comparatively higher -scale of pay was directed by the Governor of Punjab in April, 1963, (vide annexure 'C') to be in addition to the existing posts of Civil Surgeon -both in Selection Grade and ordinary grade, and not in lieu of one of the posts of the selection grade of Civil Surgeons. At this stage reference may be made to the two Appellants Dr. Harkishan Singh and Dr. Sham Singh Sekhon. Both of them hold the degree of M.B.B.S. and had War service to their credit. After the termination of the War they had joined the Punjab Civil Medical Service Class H and in due course had been promoted to the P.C.M.S. Class I. Dr. Harkishan Singh was confirmed in the class I service with effect from 26th February, 1955, whilst Dr. S.S. Sekhon was confirmed therein on 28th February, 1955.
(3.) THE Government initiated steps for filling the ex -cadre post of the Chief Medical Officer, Chandigarh, on a permanent basis through the Public Service Commission and a public notice inviting applications for the post was issued under the authority of the Commission in April, 1963, (annexure D). Dr. Pritam Singh Respondent No. 2 was one of the Applicants for the post along with others but both the Appellants had not applied for the same presumably because it was specified that the candidates serving under the Union or State Government would not be entitled to any benefits of their past service under their respective Government and also because they did not meet the essential qualifications prescribed for the post in the said advertisement. Dr. Pritam Singh was selected on merit by the Punjab Public Service Commission out of the candidates who had applied for the post in question and his order of appointment by the Governor of Punjab on regular basis was issued on 10th May, 1963, (vide annexure 'E') - It was specified therein that he would be on probation, for a period of two years with effect from the date on which he joined as Chief Medical Officer viz. 4th August, 1962, and further that he would be governed by the P.C.M.S., Class I; Rules as amended from time to time (hereinafter referred to as Class I, Rules 1940). It was further mentioned that the question of allowing a higher starting pay to Dr. Pritam Singh was under consideration and further communication in this connection would follow. A formal letter of appointment was issued to Respondent No. 2, vide annexure 'F' dated the 30th of August, 1963 which further communicated that the Governor of Punjab in consultation with the Punjab Public Service Commission had allowed the grant of a higher starting pay of Rs. 1250, per mensem on his appointment as Chief Medical Officer on a regular basis in the time scale of Rs. 800 -50 -1500, with effect from the 17th April, 1963. A.D.O. letter dated 19th June, 1964, (annexure 'P' to the written statement of Respondent No. 2), addressed by the Chief Minister of Punjab to Sir Cecil Wakeley which is absolutely in laudatory terms in reference to the quality of the work done by Respondent No. 2 has also been placed on the record. Thereafter by an order dated the 9th of December, 1965, (annexure 'G' to the writ petition), Respondent No. 2 was confirmed with effect from 17th April, 1963, as Principal Medical Officer, Chandigarh, that being the name of the redesignated post of the Chief Medical Officer. The Director of Health Services, Punjab, appears to have made some enquiries from the Punjab Government in his letter dated 13th November, 1965, regarding the character of the post held by Respondent No. 2 and in reply to the same the Punjab Government wrote to the Director on 16th April, 1966, (annexure 'H' to the petition), in the following terms: (i) The post of Principal Medical Officer, Chandigarh, is not to be treated as an ex -cadre post but it will be one of the P.C.M.S.I., posts; (ii) Exact place of seniority of Dr. Pritam Singh amongst the selection grade Chief Medical Officers will be intimated in due course; (iii) It has been decided to include the post of Principal Medical Officer, Chandigarh, in P.C.M.S.I., rules. Necessary draft amendment to the service Rules may please be sent to Government at an early date. Thereafter it appears that the Government communicated to the Director of Health Services regarding the inclusion of the post of Principal Medical Officer, Chandigarh, in P.C.M.S., Class I and further that Respondent No. 2 was to be assigned a place in the seniority of, P.C.M.S.I., amongst the selection grade Chief Medical Officers. The then Director of Health Services, however, opined that in his view there was no provision in the exist -in, Class I, Rules authorising the filling of a selection grade directly by recruitment through the Public Service Commission and further that there was no provision in the said Rules that percentage of the selection grade posts was to be reserved for direct recruitment. He, therefore, suggested that it would be necessary to amend the rules if it was desired to provide for the filling of the selection grade post by direct recruitment through the Punjab Public Service Commission.;