D.P. Gupta, J.
1. This writ petition and 39 others, detailed in the Schedule, annexed herewith arise in similar circumstances and raise identical questions of law and, therefore, they are disposed of by a common order.
2. I may briefly give the facts of one out of them. The petitioner In Civil Writ Petition No 22A5 of 1973, Dr. Arun Kumar Modi was appointed on December 18, 1969 as a Civil Assistant Surgeon in a temporary capacity by* the order of the Director, Medical & Health Services, Rajasthan. The order of appointment of the petitioner has been placed on record as document No. 1. Ii is mentioned therein that the petitioner was appointed as a Civil Assistant Surgeon in a temporary capacity on the monthly salary of Rs. 375/ in the grade of Rs. 375-25 550-30-850 375-25 550-30-850 together with admissible allowances, from the date of his taking over charge of the said post till any person selected for the post of Civil Assistant Surgeon by the Rajasthan Public Service Commission, Ajmer (hereinafter refersed to as 'the Commission'), Departmental Promotion Committee, Jaipur was available The petitioner took charge of the post of Civil Assistant Surgeon in pursuance of the aforesaid order of his appointment on January 2, 1970, and continued to discharge the duties of the said post at various places in Rajasthan as directed from time to timi by the Director, Madical and Health Servicer, Rajashan The petitioner's case is that the period of his temporary service was extended from time to time with the concurrence of the Commission and the was permitted to draw his salary on provisional basis in pursuance of the order of the State. Government. Copies of four such orders conveying the sanction of the Governor regarding the payment of salary for different periods, on provisional basis to the petitioner and several other Civil Assistant (sic) liks him have been placed on record These orders authorised provisional payment of salary upto the date spec iced therein or 'till the candidates selected by the Rajasthan Public Service Com-mission are made available' whichever was earlier The Commission advertised the post of Civil Assistant Surgeons in October, 1972 and the petitioner also applied in pursuance thereof. Interviews for the said posts were held by the Commission during April, 1973 and as the petitioner was not selected his services was terminated by the order dated October 9, 1973 with immediate effect, on the ground that the persons duly selected by the Commission for appointment to the post of Civil Assistant' Surgeons were available.
3. The petitioners in other writ petitions were similarly appointed as Civil Assistant Surgeons in a temporary capacity by identical orders of appointment but on different dates They also appeared in the selection before the Commission for the posts of Civil Assistant Surgeons held in the month of April, 1973, but were not selected and, therefore, their services were also terminated by the very same order of the State Government dated October 9, 1973 with immediate effect along Dr. Arun Kumar Modi. Identical pleas have been raised by all the petitioners.
4. The petitioners have challenged the aforesaid order of the termination of their service and the in grievance it that the selection made by the Commission was highly irregular, illegal and arbitrary in as much as the Commission did not on any occasion or at any stage of the selection, apply its mind and much less judged and weighed the comparative merits of all the candidates appealing for the selection, including the petitioners
5. According to the petitioners, the selection was a mere farce and there was no selection in accordance with law. The further grievance of the petitioners is that even after the selection was made, a large number of doctors junior to them were returned in the State Service at the whim and caprice of the Director of Medical & Health Services, Rajasthan, and the petitioners were unjustly and arbitrarily picked up for sudden termination of their services which had in many cases extended for over three years Thus the equitable principle of 'first come, last go' was not adhered to by the State Government and that the petitioners were discriminated in the matter of termination of their services. The petitioners have mentioned in their writ petitions the name of six doctors who were junior to them and who were not selected by the Commission but were retained in service and continued to work as Civil Assistant Surgeons while the petitioners services were terminated.
6. All these writ petitions have been contested on behalf of the respondents and the State Government as well as the Commission have filed returns, wherein they have submitted that the selection for the posts of Civil Assistant Surgeons was held according to the rules and the appointments of the selected candidates was also valid. The respondents have submitted that the appointments of the petitioners on the post of Civil Assistant Surgeons was made in a temporary capacity on the condition that the said appointment shall stand terminated as soon as persons selected by the Commission for the said posts were available and now as the duly selected candrdates were available the Sate Government was perfectly justified in terminating the temporary services of the petitioners, in terms of the orders of their appointment. The charge of discrimination has also been denied by the State Government and it has been stated in this connection that orders regarding the termination of the services of doctors whose name were mentioned in the writ petitions were being issued. The State Government has also placed on record an order passed by the Director of Medical & Health Services, Rajasthan, dated 12-4-1974, terminating the service of 118 doctors in addition to the order dated October 9, 1973 by which services of 87 doctors including the petitioner were terminated consequent up in the receipt of the list of duly selected candidates by the Commission, for appointment to the posts of Civil Assistant Surgeons.
7. Mr M.B.L. Bhargava appearing for the petitioner Dr. Arun Kumar Modi and some others raised the following five contentions before me :-
1) That the petitioners, having served the State Government continuously for a period of more than three years as temporary employees thereof, obtained an indefeasible right to continue in service an account of the provisions of Rule 23 A (2) of the Rajasthan Service Rules (hereinafter referred to as 'the rules'), and that the services of the petitioners could not have been terminated, otherwise than in the manner prescribed for and in the circumstances in which the services of a Government servant in permanent service could be terminated.
2) Even if it was held that the petitioners could not avail of the protection of the provisions of Rule 23-A(2) and in the case of those petitioners who have not been in continuous government service for a period of more than three years in temporary capacity their temporary services could not have been terminated without complying with the provisions of Rule 23A(1) of the rules, namely either by giving them one month's notice in writing or by making payment to them of a sum equivalenc with the amount of emoluments for the aforesaid notice period. Thus the termination of the services of the petitioners 'with immediate effect' by the order dated October 9, 1973, was illegal and void being in contravention of the provisions of Rule 23A(1).
3) That the so called selection made by the Commission on account of which the termination of the services of the petitioners was made was no selection in the eye of law and it was a mere farce. These infirmities were mainly relied upon by the learned counsel in this respect, namely (a) that the Commission as a body never assessed the comparative merits of all candidates, (b) the final list of the selected candidates was not prepared by the members of the Commission and was signed by the members thereof in a routine manner, (c) that two Selection Boards interviewed batches of candidates simultaneously and the composition of the said Boards was changed from litre to time and there was neither any common criteria for a consideration of the comparative merits of all the candidates.
4) That neither the practical experience of the petitioners who had worked in dispensaries of the Stare Government for a considerable period nor heigher academic qualifications such as degree of Master of Surgery and Diploma in Public Health, were taken into consideration. The selection was made on irrevalent grounds and the candidates who have freshly passed M.B.BS. Examination from the College were given preference over the petitioner who had considerable practical experience to their credit.
5) That the petitioners who were not selected, were picked up arbitrarily for termination of their services in as much as doctors much junior to them continued in the service of the State Government while the services of the petitioners were terminated and the principle of 'last come first go' was over-locked, The order of termination of the services of the petitioners was, therefore, void and it suffered from the vice of discrimination. A specific reference was made to the fact that Dr. Mrs. Abha Choudhary, who is a dauehter of a Minister of the State Government, was retained in service although she was junior to the petitioners.
8. Mr. Mridul appearing for some of the petitioners also elaborated the grounds Nos. 1 and 2 raised by Mr. Bhargava while the other learned counsel appearing for the remaining petitioners adopted the arguments urged by Mr. Bhargava Mr Mathur, learned Deputy Government Advocate, however, refuted the aforesaid contentions. I shall now deal with the contentions raised by the learned counsel for the petitioners seriatim
9. In order to appreciate the first and second contentions of the learned counsel for the petitioners I may read Rule 23-A of the Rules:-
23 A(1) Except as otherwise provided in Sub-rule (2), the service of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant. The period of such notice shall be one month unless otherwise agreed to by the Government and the Government servant :
Provided that service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay for the period of notice or as the case may be, for the period of which such notice falls short of the month or any agreed longer period The payment of allowances shall be subject to the condition under which such allowances are admissible.(2) The service of a temporary Government servant,
(a) who has been in continuous Government service for more than three years, and
(b) who satisfies the suitability in respect of age and qualifications prescribed for the post and has been appointed in consolation with the Rajasthan Public Service Commission, where such consultation is necessary, shall be liable to termination--
(i) in the same circumstances and in the same manner as a Government servant in permanent service; or
(ii) when reduction' has occurred in the number of posts available for Government servants not in permanent service.
Provided that termination of service consequent on reduction of posts in a cadre under the appointing authority shall take place in order of juniority
Note :- The expression 'qualification prescribed for the post' imeans qualifications on the satisfaction of which only, the person in question could have been recruited to the post, and includes compliance with rules regulating for permanent appointment to the post including rules, promulgated under proviso to Article 309 of the Constitution.
10. Learned counsel for the petitioners argued that those of the petitioners who were in continuous Government service for a period of more than three years in a temporary capacity fulfilled the conditions requisite under Sub-rule (2) of Rule 23A and as such, their services could not have been terminated except in the circumstances and in the manner in which the services of Government servants in permanent service could be terminated. The argument, of learned counsel is that such petitioners were fully qualified for the post of C.A 8, and as much, they satisfied the suitability in respect of the said post Learned counsel for the petitioners argued that Part III of the Rajasthan Medical & Health Service Rules, 1963 (hereinafter referred to as 'Service Rules',) containing Rules 7 to 25 read with the Schedule annexed thereto prescribed the qualifications for appointment to the posts included in the Service and that the petitioners fulfilled all the qualifications prescribed therein including those relating to age and academic qualifications etc. and that Rule 11 and the schedule annexed to the Service Rules provided that the academic qualifications prescribed for the post of Civil Assistant Surgeon is a degree in Medicine and Surgery of a University or a qualification recognised as equivalent thereto by the Government. Learned counsel for the petitioners also relied upon an endorsement made by the Director of Medical & Health Services, Rajasthan, on the orders of appointment of the petitioners, to the effect that the petitioners were appointed on the posts of Civil Assistant Suregons in temporary capecity, as they fulfilled all the qualificatioas requisite for the said posts under the Service Rules. Thus the contention is that the petitioners were fully qualified for the posts of Civil Assistant Surgeons and as they held the (sic) posts for a period of more than three years they were entitled to the protection afforded by Sub-rule (2) of Rule 23-A.
11. On the other hand, the learned Deputy Government Advocate contended that those petitioners who were although in continuous Government service for a period of mare than 3 years as temporary employees of the State Government on the posts of Civil Assistant Surgeons, could not avail of the protection afforded by Sub-rule (2) of Rule 23A of the Rules as they did not satisfy the qualifications prescribed for permanent appointment to the post or Civil Assistant Surgeon. It was also contended by the learned counsel for the petitioners that in respect of temporary appointments made under Rule 26 of the Service Rules, consultation with the Commission is not necessary and as the petitioners were initially appointed on the posts of Civil Assistant Surgeons in a temporary capacity under Rule 26 of the Service Rules it was not necessary for their appointment that the Commission should have been consulted. However, under Sub-rule (3) of Rule 26, the extension of their temporary services beyond the period of one year was made with the concurrence of the Commission. He (sic) the qualifications' referred to in Clause (b) of Sub-rule (2) of Rule 28A did not refer only to the academic qualifications or age of the temporary employees is but they envisaged all qualifications requisite for permanent appointment to the posts of Civil Assistant Surgeon and as such they include the selection by the Commission, without which no temporary employee could ever be appointed on the said post in a permanent capacity under the Service Rules. Thus, the divergence between the learned counsel centres round the interpretation of the words ''the qualifications' prescribed for the post' which occur in Clause (b) of Sub-rule (2) of Rule 23A of the Rules.
12. The submission of the learned Deputy Government Advocace is that Rule 23A(2) protects only those temporary doctors whose initial appointments in temporary capacity were made after selection by the Commission and who could have been appointed in a substantive capacity at the time of their initial appointment but on account of the non-existence of substantive posts or substantive vacancies they could not be so appointed and were appointed only in a temporary capacity and if the appointment of such persons continu d for a period of more than three years.
13. Learned counsel for both parties relied in support of their rival submissions upon the Supreme Court in The State of Rajasthan and Anr. v. Fateh Chand and Anr. : AIR1970SC1099 Before referrirg to the aforesaid decision of their Lordships of the Supreme Court, it would not be out of place to refer to the decision of this Court in Fateh Chand v. The State of Rajasthan and Anr. ILR (1967) 17 Raj 50. the petitioner in that case was appointed as a temporary Lower Division Clerk for a period of six months in the first instance against a permanent vacancy and the term was extended from time to time and he continued to hold the said appointment for more than ten yesrs. Thereafter, his services were terminated with effect from the date of expiry of one month from the issue of the notice of termination on the ground that he failed to pass the departmental examination for recruitment to the posts of Lower Division Clerks. The argument advanced before this Court on behalf of the petitioner in that case was although he was a temporary employee he held the post against a permanent vacancy for a period of more than ten years and as such, he was protected by the provisions of Rule 23A(2) of the Rules. In that case this Court held that the word 'qualifications' as used in Rule 23 A(2) of the Rules could not be considered to embrace the requirement of passing the departmental examination because a temporary candidate who, in addition to the possession of the qualifications, academic and as to age, would also have passed the departmental examination, then he would obviously be entitled to be made permanent by virtue of the provisions contained in Rule 7(2) of the Ministerial Staff Rules (which governed the petitioner in that case) and such a person would hardly need any protection, as a temporary servant, as contemplated under Rule 23 A(2) of the Rules It was also observed that Rule 23-A did not deal with onfirmation at all. This Court repelled the contention that a person who could not be confirmed because of his failure to pass the necessary examination, could not be retained in service and it was held that the State could not ask him to quit inspite of his failure.
14. The State took this case in appeal before the Supreme Court and while accepting that appeal (1) their Lordships disagreed with the view taken by this Court on the interpretation of Rule 23-A(2) of the Rules. Their Lordships held that the expression 'qualifications' in Rule 23-A(2) of the Rales is to be read in the light of the Service Rules, for it is the latter and Dot the former which provides for the qu lifications necessary for recruitment to the posts in the service Their Lordships observed :
Rule 23A, dealing as it does with the Government's right of termination of service, must be read along with the rules of recruitment relating to the particular post on which the person whose services are sought to be terminated in exercise of the power under that rules is serving. So read, Rule 23A(2) protects only those temporary servants who have put in service of more than 3 years; who possess the qualifications for the post and have been appointed in consultation with the Public Service Commission. The expression qualifications to the post' in Clause 2 of the rule, therefore, means qualifications on the satisfaction of which only the pereon in question could have been recruited in the post.
Their Lordships observed that 'there was no obligation on the Government to make all temporary employees permanent once they passed the examination prescribed for recruiment under the Service Rules, Only those should be made permanent who could be filled into the available permanent vacancies, while the rest would have to wait will their turn comes Their Lordships further held 'only those temporary servants could get the protection of Rule 23A(2) who due to the exigencies of service cannot be made permanent though they have qualified them elves for being so made. It is this clan of temporary servants who, due to no fault of theirs and who otherwise would have been made permanent, are equa'ed with permanent servants and whose services can be terminated in the same manner as those of the permanent servants
(Emphasis is mine)
15. Mr Bhargava contends that the aforesaid decision of their Lordships of the Supreme Court supports his submission inasmuch as under the Service Rules the qualifications prescribed for permanent appointment and for temporary appointment to the post of Civil Assistant Surgeon is the 6ame. He submits that in Rule 26 (as amended by notification dated February 17,1973) a person could be temporarily appointed on the said post only if he was eligible for direct recruitment for the post of Civil Assistant Surgeon and that in turn made the provisions of Rules 8 to 15 which were presented for permanent appointment, applicable to temporary appointment on the said post. The distinction which Mr. Bhargava tried vehemently to urge was that Part III in the Service Rules related to recruitment while Part IV related to procedure for direct recruitment and according to the learned counsel, the eligibility and qualifications for recruitment were distinct and separate from the procedure for such recruitment. According to him, the selection by the Commission was not a qualification for appointment to the post of Civil Assistant Surgeon but it was only the procedure prescribed under the Service Rules which was to be followed for such direct recruitment.
16. However, in view of the weighty observations of their Lordships of the Supreme Court extracted above, I am unable to accept the contention of the learned counsel for the petitioners. Their Lordships have very clearly held in Fatehchand's case (1) that only those persons could be equated with permanent servants in reaped of the protection given under Rule 23-A(2) of the Rules who otherwise could have been made permanent but for the exigencies of service and for no fault of theirs, and who had qualified themselves for permanent appointment to such post. Under the Service Rules, with which we are concerned, no person could be permanently appointed on the post of a Civil Assistant Surgeon unless and until he was selected by the Commission, and if the contention of the learned counsel for the petitioners is accepted that such selection by the Commission is not a qualification requisite within the meaning of Rule 23A(2) of the Rules then we would certainly be giving a restricted meaning to the word 'qualification' in the aforesaid provision. Their Lordships of the Supreme Court observed in Fatehchand's case (1) that there is no basis for giving a restricted meaning to the word 'qualification' in Rule 23-A(2) and the same has to be read in the light of the Service Rules. Rule 7 of the Ministerial Staff Rules, providing for methods of recruitment, laid down that a person temporarily appointed to tne service could be recruited if he passed the examination held by the Appointing Authority of on passing a compatitive examination held by the Public Service Commission. In the Service Rules, Rule 6 provides that recruitment in accordance wi h Part IV of the Rules which envisages selection by the Commission Thus, in my view, it is clear that without selection by the Commission no person could be appointed under the Service Rules permanently on the post of Civil Assistant Surgeon and such selection is therefore a requisite qualification for appointment to the aforesaid post within the meaning of Rule 23-A(2).
17. We may consider the case of a person temporarily appointed under Rule 26 of the Service Rules on the post of Civil Assistant Surgeon The temporary appointment is initially limited to a period of twelve months and thereafter it may be continued with the coccurrepce of the Commission The obvious purpose of such continuance of the temporary service of such a person is that ultimately he may be permanently absorbed on the post or that he may continue till other persons eligible for permanent appointment become available, namely after selection by the Commission, because the only method for recruitment to the post of Civil Assistant Surgeon is by direct recruitment after selection by the Commission. If such a person appears before the Commission and fails then he cannot be permanently absorbed in the service and he can never become a member of the service, which means a person appointed in a substantive capacity to a post in the service. But, if the contention of the learned counsel for the petitioners is accepted the State could not dispense with the service of such a temporary employee, if he happened to be in service for more then 3 years, than a situation will arise that such a person could never be absorbed in permanent service during his entire tenure of employment although permanent vacancies may exist for the said post nor his services could he dispensed with by the State. He would, thus continue to be a temporary employee until he attains the age of superannuation, even if permanent posts may be lying vacant, but such a person could not avail of them. He may fulfil all the other requisite qualifications but one essential qualification is lacking which prevents his appointment or absorption in permanent service on the said post and that which is lacking in his case is that he failed at the selection held by the Commission, passing in which is a pre requisite for appointment to the Service in a permanent capacity The purpose of Rule 23-A(2) is not to create a hew variety of Government employees but it is to give protection to those who by themselves qualify for being appointed in the service in a permanent capacity but who could not be so appointed because permanent vacancies could not be available or posts on which they were initially appointed were temporary posts and continued to be so. Thus, in my humble view, the selection by the Commission envisaged under the Service Rules for permanent appointment by direct recruitment to the post of Civil Assistant Surgeon is essential qualification within the meaning of Rule 23-A(2) of the Rules and as the petitioners did not possess the aforesaid qualification they were not entitled to the protection afforded by Rule 23-A(2).
18. Learned counsel for the petitioners also relied upon the decision of their Lordships of the Supreme Court in Director of Panchayat Raj v. Babu Singh (sic) SLR 106. It was held in that case by their Lordships that a temporary Government servant does not become a permanent Government servant merely because the temporary post in which he was employed was subsequently made permanent unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. The aforesaid decision has no application at all to the facts of the prtsent case, as no such question of conversion of temporary post into permanent post arose in the cases before me.
19. There is another aspect of the matter. The initial appointment of the petitioners was admittedly temporary and although such temporary appointment made under Rule 26 of the Service Rules was not requierd to be made with the consultation of the Commission, yet under Sub-rule (3) of Rule 26 of the Service Rules the said temporary appointment could not be continued beyond a period of one year without the concurrence of the Commission The Commission no doubt, gave its concurrence for the continuation of the temporary appointment of the petitioners from time to time, but a condition was always attached as was to the original appointment of the petitioners, that the period of their temporary appointment shall continue only till persons selected by the Commission were no available. Thus for the continuation of the temporary employment of the petitioners, the concurrence of the Commission was necessary and as such concurrence was given with the aforesaid condition the provisions of Rule 23-A(2) could not be made apolicable to the case of the petitioners. However, the last concurrence received from the Commission in the case of the petitioners was from April 1, 1973 to June 26, 1973 or till persons selected by the Commission were available whichever was earlier. Therefore, the concurrence of the Commission was not given for the continuation of the temporary appointment of the petitioners beyond June 26, 1973. Thus, merecontinuous Government service for a period of more than three years could not give the petitioners the protection afforded by Sub-rule (2) of Rule 23-A of the Rules, on account of the limitation imposed by the Commission while giving the concurrence for the continuation of the temporary employment of the petitioners
20. Coming now to the second contention raised by the learned counsel for the petitioners, it was argued that once an appointment was made, the petitioners acquired a status and thereafter their employment was governed by the rules and that the condition continued in the order of their apoointment that such appointment shall continue till persons selected by the Commi ssion were available, would have no binding effect In this connection the following observations of their Lordships of the Supreme Court in Roshan Lal Tandon v. Union of India and Anr. : (1968)ILLJ576SC was relied upon by the learned counsel for the petitioners:
It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by the statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position oi a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and a servant The legal relationship is something entirely different something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties.
There is no doubt that once a person is appointed to a post in Government service then he acquires a status and his rights and duties are to be regulated by the statute or statuory rules. However, the provisions of Rule 23A, which provide for termination of services of a temporary Government servant by a notice in writing given by either side and also provide that the duration of such notice shall be one month, further lays down, 'unless otherwise agreed to by the Government and by the Government servant'. Thus, no doubt, ordinarily if a person is temporally appointed to a post in Government service, then his temporary services could be put an end to by giving him one month's notice. But here statutory rule itself envisages that the period of such notice can be altered by agreement between the parties. The argument of the learned counsel for the petitioners is that one month's notice is absolutely necessary but the parties could agree to a longer period of notice I am unable to accept the aforesaid contention of the learned counsel. If the parties could agree to a longer period of notice there could be no impediment by the provisions of Rule 23-A(1) of the rules if the parties agreed to a shorter period of notice. The Government and the employee could by their agreement, in my view, either enrarge or reduce the period of notice envisaged under Rule 23-A(1) and could also agree that the temporary employment of the employee concerned, would automatically come to an end on the happening of a specified contingency. The period of one month mentioned in Rule 23A(1) is only applicable to the case of those temporary employees in whose case no period of notice is agreed to between the Government and the employees concerned. I fail to appreciate the argument of the learned counsel that if it is open to the parties to agree to a longer period of notice and the same may be binding on the parties, where is the prohibition contained in Rule 23(1) or for that matter in any other rule that the period cannot be reduced by the consent of the parties. On the other hand, in my opinion, Rule 23A specifically provides that the period of notice could be fixed or altered by agreement of the Government and the employee concerned. In the orders of appointment of the petitioners it has specifically been stated that their temporary employment would continue only till the persons selected by the Commission were not available and the petitioners joined the posts of Civil Assistant Surgeons in pursuance of such orders of appointments obviously agreeing to the terms and conditions mentioned therein. As the specified event, on the happening of which the temporary employment of the petitioners was to come to an end, according to their agreement, has taken place and persons selected by the Commission were available, the temporary employment of the petitioners, no doubt, came to an end in accordance with the specific term contained in their orders of appointment read with Rule 23A of the rules The condition on which the petitioners were temporarily employed, namely, that their temporary services would continue only till persons selected by the Commission were available, was not at all inconsistent with the provisions of Rule 23-A(l)of the Service Rules, as the said rule itself envisaged that the period of notice for the termination of the temporary services of the employees could be governed by the agreement between the parties and absence thereof, such period would be of one month's duration Thus, in the cases before me, there was clear agreement to the contrary between the employer and the employee and one month's notice was not necessary. Learned counsel for the petitioners also submitted that in Fateh Chand's case : AIR1970SC1099 there was no condition imposed at the time of the temporary appointment of the employee concerned regarding the period of notice in respect of the termination of bis temporary employment and in the absence of any such condition in respect of a specified period, naturally one month's notice as mentioned in Rule 23A(1) was necessary. Learned counsel for the petitioners also strongly relied upon the decision of the Patna High Court in Sukrvndan Thakur v. State of Bihar and Ors. AIR 1957 Patna 617 and urged that employment and appointment to an office were two different conceptions. Even if it be so, the provisions of Rule 23-A(1). relied upon by the learned counsel for the petitioners, specifically provide that the the period of notice regarding the termination of the temporary appointment of the petitioners would be governed by agreement between the Government and the employee concerned, if there was any such agreement in existence. Thus, it cannot be said that the termination of the services of the petitioners was void because they were not given either one month s notice or one month's emoluments in lieu thereof There is no doubt that in case one month's notice is required to be served in a given case, then the service of such a notice or the payment of emoluments for such period at the time of term nation is a mandatory requirement but as in these cases the giving of notice for the period of one month was not necessary the question that the termination of the petitioners' services was void on account of the absence of such a notice or payment of salary in lieu thereof, does not arise. The services of the petitioners came to an end on the happening of a specified event namely when persons selected by the Commission became available. Only what was required was a notice conveying the information to the petitioners that the specified contingency envisagged in the orders of their appointment had taken place Of course, as the petitioners had themselves appeared before the Commission for the selection they very well knew that selections have taken place and persons selected by the Commission would soon be available and what was necessary was that they were to be informed about such availability. The order of the State Government dated 9-10-73 terminating the temporary services of the petitioners clearly stated that as persons duly selected by the Commission for the posts of Civil Assistant Surgeons were now available, the temporary services of the petitioners were terminated with immediate effect In my opinion, the notice conveying the necessary intimation to the petitioners that the specified event had taken place was sufficient and the termination of the petitioners services is not void or illegal on account of the alleged noncompliance of the provisions of Rule 23A(1).
21. It has been a gued by the learned counsel for the petitioners that the selection held by the Commission was a mere farce and could not be considered to be a selection in the eye of law. According to the petitioners, the procedure employed by the Commission was that two Selection Boards were constituted, each one of them consisting of a member of the Commission, a representative of Medical & Public Health Department and two experts and both the Boards interviewed different batches of candidates simultaneously. The experts were taken from all branches of Medical Science including clinical and non-clinical and they used to change every now and then. The petitioners have alleged that the personnel of the Board differed and changed from time to time. The petitioners' grievance is that such a selection in which different members of t e Commission were assisted by different experts at different times could not be called a valid selection in the eye of law, as a just and fair appraisement of the comparative merits of all the candidates appearing in different batches could not be made. The allegation of the petitioners is that after the interviews of all the candidates were over the list of the candidates who were recommended for appointment to the State Government was not compiled by the members of the Commission. It was also alleged that the Commission, as a body never processed or approved the selection lists But the selection lists were compiled by the Secretary of the Commission and were forwarded to the State Government by him. The contention of he learned counsel for the petitioners is that the provisions of Rule 20 of the Service Roles were contravened inasmuch as it was the mandatory duty of the Commission to prepare the list of candidates they considered suitable and to arrange the list of such candidates in order of merit It is urged that the Commission in the present case delegated the aforesaid two essential functions and there was a virtual self-effacement by the Commission. It was lastly submitted that the members of the Commission signed the list in a routine manner and did not apply their mind.
22. On behalf of the respondents it is not denied that two selection Boards worked simultaneously but it is submitted that each one of them was headed by one member of the Commission who remained constant and did not change although the experts did change from time to time. It was further submitted that the number of candidates for interview was about 1100 and 422 persons were to be selected and as such, it was not possible for the full Commission to interview each and every candidate. In its return, the Commission has stated that keeping in view the enormous task before them, the Chairman and all the Members of the Commission sitting together decided that two members should sit independently, each one of them assisted by a representative of the department and two experts and thus two selection boards were constituted. It has alto been averred that in order to maintain uniformity of standard in selection, the Presiding Officers of the two selection boards along with the departmental representatives and the experts held a combined meeting and determined the criterioa and such combined meetings were also held from time to time during the course of the selection to maintain the uniformity of the standard. It is also stated that the members of the Commission who were the Presidios Officers of the two selection boards prepared a combined merit list of selected Candidates which was placed before all the members of the Commission including the Chairman and after the list so prepared by the two members was scrutinised by the Commission and was agreed to by all the members thereof then it was forwarded to the State Government. Reliance was placed on behalf of the respondents upon the decision of this Court in K.K Bhatia v Rajasthan Public Service Commission 1972 RLW 22 and on Devji Chaliha v. Narendra Nath Baruha AIR 1971 Assam & Nagaland 136.
23. There is no doubt that when the number of candidates to be interviewed is very large, as about 1100 candidates were to be interviewed by the Commission in these, cases it was to not possible for all the members of the Commission to sit together as a body and interview each and every candidate. I have examined the relevant provisions of the Service Rules in this respect Rule 16 provides for inviting applications by the Commission which have to be made in the form approved by the Commission according to Rule 17. Then, under Rule 19, the Commission has to scrutinise the applications received by it and to require the candidates who are qualified for appointment under the Service Rules to appear for interview. There is nothing in Rule 19 to require that the viva voce test should be conducted by all the members of the Commission sitting together as a body. It is for the Commission therefore to decide as to whether all the members there of would examine all the candidates sitting together as a body or whether some members there of who may be nominated by the Commission for the purpose may discharge that function, Even in cases where written tests, are conducted and the numbers of candidates to be examined normally is very large, the scripts are divided between a Head Examiner and such number of co-examiners as may be considered proper, keeping in view the number of candidates to be examined, for it may be physically impossible for a single examiner to scrutinise the scripts of all the candidates then a very long time may be required for a single person to examine all the scripts, if the candidates are too many. Even in the University examinations and also in competitive examination where a large number of candidates appear the aforesaid procedure is adopted, yet uniformity of standard is normally ensured Now in this matter, the Commission nominated two of its members who acted as Presiding Officers of two Selection Boards and each one of them was assisted by a departmental representative and two experts, and in order to maintain the uniformity of standard the Presiding Officers, departmental representatives and the Experts held combined meetings in the beginning before the selections started and from time to time during the course of the selection. Thus, I am not at all impressed with the argument of the learned counsel for the petitioners that the selections conducted by the Commission were vitiated because the Commission as a body did not interview all the candidates or as uniform criterion was not applied in the matter of selection. In K.K Bhatia's case 1972 RLW 22 a similar question arose and this Court took the view that there was no provision either in Article 320 of the Constitution or in the relevant Service Rules which required that the viva (sic) examination must be conducted by all the members of the Commission sitting together at the interview. It was further held in that case that 'it was for the Commission to decide whether all its members would examine the candidates sitting together or whether that responsibility would be discharged by some of the member nominated by it for the purpose'. The same view has been taken by the Assam and Nagaland High Court in Devji Chaliha's case AIR 1967 SC where it was observed as under:
Besides, conducting of an interview for recommending certain candidates for appointment on the ground of suitability, need not require the presence of all the members of the Commission. Any one or two members may be entrusted with the duty in absence of any rules to the contrary This is an internal working of the Commission which is a highly responsible body and can be trusted to discharge their duties with due regard to high propriety and fairness to all concerned We are, therefore, clearly of the opinion that the interview conducted by the Chairman and another Member in the case of the petitioner is not without jurisdiction, nor is the recommendation as a result of that interview can be said to be invalid under the law. We have not been shown any rules which debar the Commission to work in compartments while interviewing candidates for appointment.
24. The contention of Mr. Bhargava that the composition of the Selection Boards charged horn time to time and as such the selections were a farce, cannot also be accepted. The experts and departmental representative did not take part in the interviews as examiners but they were only assisting members of the Commission as the interviews were held for the purpose of examining candidates for recruitment to a technical service. At the request of the learned counsel for the petitioners I had called for the relevant record from the Commission and on a perusal there of I feel satisfied that the selections were properly conducted One of the Selection Boards was headed by Mr R.S. Kapoor, who was then a member of the Commission, while the other Selection Board was headed by another member of the Commission Mr. Mohammed Yakub. Proper assessment lists appear to have been prepared at the time of interview and the candidates were assigned grades according to their performances at the interview, while their qualifications were duly mentioned against their names and appear to have been given due consideration. The assessment lists were signed by the respective members of the Commission who presided over the Selection Boards and thereafter a combined list of the selected candidates in order of preference was prepared and was signed by both the members, Mr. R.S Kapoor and Mr. Mohammed Yakub and was placed before the other members of the Commission. The other members of the Commission including the Chairman appear to have agreed with the aforesaid members and all the members of the Commission signed the final list of selected candidates and thereafter the said list was forwarded to the State Government The principles employed for the determination of comparative merit were the same as are normally employed by the Commission in all selections when a large number of posts of the same category are advertised. There is no basis for the allegations made by the petitioners that the composition of the Boards changed from time to time inasmuch as the two members of the Commission, who acted as the examiners there remained throughout the entire course of selections and the mete change of experts, who were associated with the Selection Boards only for the purpose of assisting the examiners concerned was of no consequence. As the selections were made for the post of Civil Assistant Surgeons, experts from both the clinical as well as non-clinical wings were called for assistance of the Commission. As it was not necessary for the Commission as a body to interview each and every candidate there was nothing wrong if two selection boards worked simultaneously in view of the fact that the number of candidates to be intervieved was about 1100 and 6uch as enormous task would have taken a single selection board several months to complete. I find no force in the contention of the learned counsel for the petitioners that there was no common criterion, in view of the averments made by the Commission that uniformity of standard was maintained by holding combined meetings of the members of the Commission, departmental representatives and the experts from time to time.
25. However, Mr. Bhargava strenuously argued that the final list of selected candidates was not prepared by the Commission as a body and was signed by the members in a routine manner and as such the requirement of Rule 20 was rot fulfilled inasmuch as according to him the entire Commission should have sat in a meeting to draw up the list of selected candidates. Learned counsel relies in this connection on the provisions of Rule 20 of the Service Rules which runs as under :
The Commission shall prepare a list of the candidates whom they consider suitable for appointment to the posts concerned, arranged in the order of merit and farword the same to the Government.
It is no doubt correct that drawing up the list of selected candidates and arranging their names in order of merit is a very important task which has been entrusted to the Commission. However, I do not find anything in Rule 20 that all the members of the Commission should sit in a meeting for the purpose of discharging the aforesaid function. As already stated above, a combined list of selected candidates in order of preference, prepared according to the sett-led principles for determination of comparative merit, was drawn up by the two members who worked as the examiners and the said list was placed before the other members of the Commission. Whether the list of selected candidates was placed before the members of the Commission in a formal meeting or by circulation is of little consequence because it is for the Commission itself to regulate its own procedure. However, the fact remains that the list of selected candidates prepared by the two members was placed before the other members of the Commission and was approved and signed by them in token of their acceptance and the requirement of Rule 20 as such, was thus amply fulfilled. In K.K Bhatia's case 1972 RLW 22, it was observed :
It cannot be doubted that this is a very important matter, and its importance will change more clearly with references to a service or post to which recruitment in made on the basis of a viva voce examination for which the Commission does not appoint any of its members but entrusts the examination to outsiders. In such a case, those examiners will no doubt interview the candidates and prenare the mark sheet or list as a result of the examination, but that sheet or list will not automatically become the recommendation of the Commission. The reason is that the marks sheet or list records the result of the examination conducted by the examiners, and no more. It does not therefore automatically turn itself into the recommendation of the Commission even though the examination was held in pursuance of the over all duty of the Commission to conduct the examination under its direction and control. To assume the character of the recommendation of the Commission, it is necessary that the Commission should consider the mark sheet or list prepared by the examiners and give it its sanction or approval. This view finds support from the provision of Rule 20 of the Rules that the list should contain the names of only those candidates whom the Commission consider suitable for appointment to to the 'posts concerned', so that it is clearly necessary for the Commission to examine and prepare the list by deleting the surplus names.
There is no basis for the argument that the other members of the Commission signed the list of selected candidates in a routine manner. It must be presumed that the members of the Commission, who held posts of great responsibility must have discharged their function after due deliberation when they proceeded to sign the selection list. Thus, it is fully established that the list of selected candidates was duly considered by the Commission and approved by it and the recommendation made to the State Government pursuant there to was truly speaking the recommendation of the Commission in respect or candidates whom it considered suitable.
26. One important submission was made in this respect by the learned Deputy Government Advocate namely, that the question of validity of the selections made by the Commission could not be examined by this Court in the absence of the selected candidates who have not been made parties to the writ petition. Mr. Bhargava contended that this objections was not taken in the return filed on behalf of the State and should not be allowed on that ground and further that the petitioners did not know as to who out of the 422 candidates selected by the Commission was appointed in place of a particular petitioner and as such it was not necessary for him to impaled all the selected persons are respondents. In my opinion, the selected candidates are the persons who are most vitally affected when the matter relating to the validity of their selection is considered by this Court and they are certainly necessary parties. It would be acting against the basic principles of natural justice in deciding the question of the validity of their selection behind their back and without hearing them in the matter. If the contention of the petitioner that the selections made by the Commission was a mere farce and was invalid, is to be accepted the logical consequence there of would be that the selection would be quashed and the appointments of the persons so selected would naturally go with it. It cannot therefore be accepted that merely because the State Government failed to take an objection in its return the matter regarding the validity of the selection should be considered behind the back of the selected candidates The State Government may or may not defend their actions yet the selected candidates have their own individual interests and rights to protect, which they are entitled to do. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and Anr. (8) it was held that the parties whose rights are directly affected are necessary parties to a writ petition as without the presence of the successful parties the High Court cannot issue a substantial order affecting their rights and any order that may be issued behind their back would be ineffective In the cases before me the petitioners appeared along with several others before the Commission at the selection and certain persons were successful and were selected while the petitioners were unsuccessful and were not selected by the Commission. Naturally, if the petitioners are desirous of challenging the validity of selections made by the Commission which resulted in the appointment of successful candidates as also the comparative merit of the selected candidates they ought to have been made parties to the petition as no order adverse to to them can be passed by this Court behind their back and without affording them an opportunity of hearing. This is the minimum requirement of the fandamental rules of natural justice which ought to be fulfilled.
27. The next contention of the learned counsel for the petitioners is that practical experience of the petitioners who worked in dispensaries of the State Government for considerable length of time and even higher academic qualifications like M.D. M.S., and D.P.H. have not been considered by the Commission while making the selections and that the selections were made on irrelevant grounds so that the candidates who have freshly passed the M.B.B.S. Examination from the College were given preference over the petitioners who had considerable practical experience to their credit. The Service Rules have entrusted the matter of selection to the Commission and under those rules the selection is to be made by the Commission on the basis of viva voce examination, It cannot be said that the Commission lost sight of the academic qualifications or the practical experience of the candidates before it although the performance of each candidate before the Commission at the time of viva voce examination was of considerable importance. It is for the State Government to make appointments and the assistance of the Commission was sought in that matter and it would not be for this Court to say which of the candidates was most suitable or to express its own opinion in the matter of selections of suitable candidates. I may state here that the submission of the petitioners is that the selection was arbitrary and unfair but it has not been argued that the Commission acted malafide in making the selections It was primarily for the Commission to make the selections of suitable candidates and to make recommendations in respect thereof to the State Government in accordance with Rule 20 of the Service Rules and it is not for this Court to substitute its view in the matter or to say that which aspect of the qualifications of particular candidates should be given more weightage than the other. In Dr. Jai Narayan Mishra v. The State of Bihar and Ors. : 2SCR392 their Lardships held that the interference by the High Court was unjust and aptly observed that the assistance of the Commission and not that of the High Court was sought in finding out the most suitable candidates. The following pertinent observations of their Lordships may be usefully quoted :
So far as the question of suitability is concerned, the decision entirely rests with the Government. In other words the Government is the sole judge to decide as to who is the most suitable Candidate for being appointed as the Director of Agriculture. For discharging that responsibility it was open to the Government to seek the assistance of the Public Service Commission. In our judgment the High Court was not justified in calling for the records of the Public Service Commission and going through the nothings made by various officers in the Commission as well as the correspondence that passed between the Commission and the Government. The High Court overlooked the fact that the Government sought the assistance of the Commission and not that of the High Court for finding out the most suitable candidates. In this case there was no complaint of malafides either on the part of the Government or the Commission. That being so the interference of the High Court in the matter of selection by the Government was not called for.
I may now consider the last submission of the learned counsel for the petitioners that the petitioners were arbitrarily picked up for termination of their services and that doctors junior to them were kept in service and as such the termination of their employment suffered from the vice of discrimination. The petitioners had made a specific complaint in the writ petitions that six persons junior to them have been retained in service although they were not selected by the Commission while the services of the petitioners were terminated. It may be mentioned in this connection that in the return filed by the State it was mentioned that, orders regarding termination of the services of the doctors specified by the petitioners were being issued. The State Government has placed on record a subsequent order of the Director of Medical & Health Services, Rajasthan, dated April 12, 1974 by which the services of 118 temporary Civil Assistant Surgeons were terminated. An affidavit filed by the Assistant Secretary, Medical & Health Department Rajasthan, Jaipur dated April 26, 1974 and the order dated April 12, 1974 show that the services of three of the persons regarding whom complaint was made by petitioners were terminated, namely, Dr. Miss Madhu Sharma, Dr. Miss Chandramani and Dr. Mrs. Abha Chaudhary. It has been further stated in the affidavit filed by the Assistant Secretary that names of the remaining three candidates namely Dr Raj Kumar Dhingra, Dr. Miss Bina Agarwal and Dr. Vijairaj were recommended by the Commission in accordance with the proviso to Rule 26 of the Service Rules in the reserve list and as such, they have also been appointed. Thus, it cannot be held that the petitioners were arbitrarily chosen for termination of their services or that the termination of their services was in any manner discriminatory. The grievance of the petitioner is that it took the State Government quite some time to dispense with the services of the remaining temporary employees who were unsuccessful before the Commission. There may be some justification in the grievance of the petitioners on that score but since the services of all the persons who were junior to the petitioners and who were unsuccessful at the selection, held by the Commission have since been terminated by the State Government it cannot be said that any discrimination was practiced in the cast of the petitioners. As the number of the persons who were to be appointed by the State Government as a result of the selection held by the Commission was quite large, being more than 400, the State Government took some time in dispensing with the services of ail the concerned temporary employees It is well settled that there must be a conscious discrimination before the act challenged as discriminatory is struck down. In the present cases the State Government actually rectified its mistake during the pendency of these writ petitions in this Court and there could be no grievance now to the petitioners on this ground. In the case of Ramnath Verma v. State of Rajasthan : 1SCR926 in reply to a charge of discrimination the State averred that it was due to oversight and that the State would correct this oversight. Their Lordships rejected the plea of discrimination with the following significant observations :
Discrimination envisaged under Article 14 is conscious discrimination and a discrimination arising out of oversight is no discrimination at all. In the present case discrimination has resulted because of an oversight which the State is prepared to rectify.
In the cases before us the State Government has already rectified its error. It is not the grievance of the petitioners that now any person junior to them who was not selected by the Commission, has been retained in service and, therefore, the ground of discrimination fails.
28. I my now refer to three more arguments advanced by the learned counsel for the petitioners in some of the cases, besides the general argument common to all the petitions, which I have already considered above. It was argued that some of the persons had to execute a bond when they were admitted to the MBBS. Course in a Medical Collage of the State to the effect that they would serve the State Government for a period of three years and that such persons ought to have been retained in the service of the State Government for a period of at least three years from the date of their initial appointment. The reply of the learned Deputy Government Advocate is that by a circular issued by the State Government dated August 4, 1971 the persons who had executed these bonds were exempted from the application of those bonds. The aforesaid circular runs as follows :
In modification of all orders, circulars issued in this regard, the Governor is pleased to order that:
(l) No bond of service be got executed from any student admitted to MBBS course to serve the State Government after completion of MBBS course ;
(ii) Students pursuing studies for MBBS course who had executed a bond of service should be exempted from application of that bond;
(iii) Officers who a e in Government service in pursuance of the bond of service executed by them at the time of admission to the MBBS course will also be exempted from application of that bond. Exception I The exemptions at (ii) and (iii) will not apply to cases who will continue to be under bond if they have already executed it
Exception II It is clarified that this exemption will not apply to any bond of service that might have been executed by any person after joining Government service.
The grievance of the petitioners is that the aforesaid circular relied upon by the State Government was neither published nor it was communicated to them. However, the fact remains that these petitioners who had executed the bonds were under no obligation to serve the State Government after the aforesaid circular dated August 4, 1971 was issued by the State Government. It is not the case of any one of the petitioners that he joined the State Government service in temporary capacity in fulfillment of his obligation under the bond or that he continued in service on that account It must also be noticed here that the petitioners were appointed on a specific condition that they shall continue in their temporary appointment till persons selected by the Commission were not available. Merely because some of the petitioners had executed bonds at the time of their joining M.B.B.S. course, did not make it obligatory on the State Government to retain them in service even if they failed to qualify for substantive appointment to post of Civil Assistant Surgeon in accordance with the provision of the Service Rules nor the mere execution of the the bonds by them created any rights in favour of the petitioners concerned, if they ailed at the selection held by the Commission.
Another argument advanced in respect of the petitioner in writ petition no. 236 of 1974 was that he was the son of a political sufferer and under Rule 12(5) of the Rajasthan Freedom Fighters Aid Rules, 1955 the State Government was bound to offer him an employment. It may be sufficient to say that the requisite conditions of Rule 12(5) relied upen by the learned counsel for the petitioners, even if it be applicable, were not fulfilled as the petitioner has not even stated in the writ petition that there was any acute distress or want of employment and as such this contention does not deserve any consideration.
29. Lastly, it wat argued by the learned counsel for the petitioners in writ petitions Nos. 171 of 1974 and 310 of 1074 that there was reservation of 72 seats for Scheduled Castes in accordance with the Service Rules yet only 10 persons belonging to the scheduled castes and scheduled tribes were selected and the two petitioners Annraj and Satyendrakumar who belonged to the scheduled castes were not selected, although they appeared before the Commission and that the selection made by the Commission was bad on that account. It has been stated on behalf of the Commission that although 72 posts were reserved for scheduled castes only 16 applied and out of 47 posts reserved for the sheduled tribes only 2 persons submitted their applications and further that out of the 18 applicants only 14 appeared before the Commission at the time of viva voce examination out of whom 10 were selected. It was stated that the two petitioners Annraj and Satyendrakumar and two other were found below average by the Commission and so could not be selected, The reservation of vacancies under Rule 7 of the Service Rules does not envisage that even if suitable candidates are not available for appointment the State Government is bound to appoint all candidates who may appear for the selection merely because they belong to the scheduled castes or scheduled tribes. If the candidates concerned were found below average by the Commission there was no obligation that they should have been selected or appointed. Under Rule 7(3) there is a provision that if sufficient number of candidates not are available amongst shdedured castes and scheduled tribes the vacancies need not be kept reserved and shall be filled in accordance with the normal procedure but they may be carried forward and filled up in the subsequent year. If the two petitioners would have been found even of average standard then they could have been appointed irrespective of their relative rank as compared to the other candidates. But as they were found to be below average in the opinion of the Commission they could not claim a right to be appointed merely on the ground of reservation of vacancies, for the scheduled castes and scheduled tribes. Persons who are to be appointed must satisfy a minimum standard which the two petitioners failed to achieve. The selections made by the Commission in the present case therefore cannot be bold to be vitiated on this ground also.
30. I, therefore, hold that the termination of the temporary service of the petitioners by the order dated October 9, 1973 is not invalid and further that the selection made by the Rajasthan Service Commission for the posts of Civil Assistant Surgeons is perfectly valid and in accordance with relevant rules and does not suffer from any infirmity.
31. In the result, all the petitions fail and are hereby dismissed. In the circumstances of the case, I leave the parties to bear their own costs.