Central Administrative Tribunal - Delhi
Dr. A.K. Bhardwaj vs Union Of India & Ors Through on 29 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2592/2008 New Delhi this the 29th day of April, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Dr. A.K. Bhardwaj, CMO (Radiology), Dr. RML Hospital, New Delhi. Applicant. (By Advocate Shri A.K. Bhardwaj) VERSUS 1. Union of India & Ors through: The Secretary, Govt. of India, Ministry of Health and Family Welfare, Dept. of Health and Family Welfare, Nirman Bhawan, New Delhi. 2. Director General, Directorate General of Health Services, Government of India, Nirman Bhawan, New Delhi. 3. Mr. Vineet Chaudhary, Joint Secretary, Government of India, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi. Respondents. (By Advocate Shri V.S.R. Krishna) O R D E R Shri Shanker Raju, Member (J):
Applicant, a General Duty Medical Officer (GDMO) under the Ministry of Health and Family Welfare, by virtue of this O.A. has impugned respondents order dated 22.09.2003 whereby pursuant to a show cause notice, benefit extended to him by order dated 19.11.2001 whereby he was appointed as Medical Officer on regular basis from the date of his initial appointment on ad hoc basis i.e. 03.07.1986, has been done away with. He has also assailed Respondents order dated 01.09.2003. Applicant seeks implementation of the Notification dated 13.12.2001 and a direction to the respondents to grant him all consequential benefits, treating his date of appointment as 03.07.1986 and to include his name in the order dated 16.10.2008, which contains the names of all the CMOs (NFSG) and further to grant him the benefit of DACP Scheme dated 29.10.2008 with arrears, respectively.
2. At the outset, a mistake committed by the Government can be rectified after accord of reasonable opportunity to the concerned in the matter of service jurisprudence, as ruled by the Apex Court in Union of India and Anr. Vs. Narendra Singh (2008 (1) SCC (L&S) 547). However, what amounts to mistake has been well explained by the Apex Court in M/s Deva Metal Powders Pvt. Ltd. Vs. Commissioner, Trade Tax, U.P. (2007 (13) SCALE 734) with the following observations:
11. "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications.
3. While discretion vested in administrative authorities, it is the prerogative of the authority to exercise it, but the same has to be exercised judicially on human compassion, as ruled by the Apex Court in Angad Das Vs. Union of India & Ors. (2010 (3) SCC 463). An equitable doctrine as developed by trite law precludes an authority to approbate and reprobate simultaneously, as ruled in Kashmir Singh Vs. Union of India & Ors. (2008 (7) SCC 259).
4. The brief factual matrix of the case is that applicant was appointed on 03.07.1986 as GDMO in Rural Health Training Centre on monthly wages. Subsequently, pursuant to the decision of the Tribunal in Dr. Sangeeta Narang & Ors., decided on 18.12.1987, he was regularized as Medical Officer, w.e.f 21.09.1994 by an order passed on 27.09.1994. Further, vide communication dated 19.11.2001, applicant was appointed as Medical Officer on regular basis w.e.f. 03.07.1986, in terms of the judgment of the Apex Court in Dr. P.P.C. Rawani & Ors. Vs. Union of India & Ors. (1992 (1) SCC 331) where the issue by Group `A Medical Officers appointed on ad hoc basis came up for regularization where directions were issued to consider them for regularization as a separate category, which was the subject matter of clarification in 1992 SCC L&S 309 wherein the applicants have been treated as regularized in Group `A of the CHS from January 1, 1973 or the date of his first initial appointment in the service and a separate seniority list was directed to be maintained with monetary benefits, etc. as a result of which by a Notification dated 13.12.2001 in view of the clarification of the Apex Court in Dr. P.P.C. Rawanis case (supra), on 29.10.1991 a Presidential order appointed the applicant as Medical Officer in temporary capacity w.e.f. 03.07.1986. This was construed as regular basis by subsequent act of the respondents whereby applicant was granted study leave on 04.06.2004.
5. Though name of the applicant was maintained in the separate seniority list, however, an order was passed on 01.09.203 calling upon the applicant to explain as to why the benefit granted to him vide letter dated 19.11.2001 should not be withdrawn. This has been responded to by the applicant vide his representation dated 08.09.2003 whereby certain documents and information were sought by the applicant. However, to the utter surprise of the applicant without submitting the aforesaid information, an order was passed on 22.09.2003 wherein benefit given vide order dated 19.11.2001 to the applicant has been withdrawn, stating that since Dr. Niloy Roy, who is a similarly placed doctor like the applicant, who had filed CWP No.2511/1998, sought the same benefit as given to the applicant, Ministry of Law, DOPT and Ministry of Finance were consulted and on the basis of their advice and the decision of the Apex Court in Dr. M.A. Haque Vs. Union of India (1993 SCC (L&S) 412), decided on 05.05.1998, it has been decided that the benefit granted to the applicant would open pendora box and also result in widespread upheavals in the seniority of doctors in CHS with implications for other services. A similar order was also passed in case of one Dr. S.C. Mishra which led to filing of OA 2384/2003 wherein by an order passed on 16.12.2004, benefits have been restored to Shri Mishra with a further direction to the respondents that this shall not preclude respondents, after the decision of the Cabinet is available with them, to act in accordance with law. It transpires that in a subsequent decision taken by the respondents in 2005 without referring it to the Cabinet, it has been decided to implement the decision in the case of Dr. S.C. Mishra (supra) but the claim of the applicant was apparently and impliedly turned down. Applicant, who was transferred to Govt. of NCT, made representation to the respondents to seek extension of benefit of the decision in S.C. Mishras case (supra) which had not paid any heed to the respondents. Further, the applicant was not given the pay scale of Chief Medical Officer (NFSG) and was also denied the benefit of DACP Scheme. Having no other option, he has preferred the above O.A.
6. Insofar as the limitation is concerned, learned counsel for the applicant, by relying on plethora of decisions, including the Constitution Bench decision in K.C. Sharma Vs. Union of India (1998 (1) SLJ SC 54), Amrit Lal Vs. Collector, CEC (Revenue) (AIR 1975 SC 538), Ordinance Clothing Factory Workers Union Vs. Secretary, Ministry of Defence (AIR 1990 (1) CAT 22), stated that the applicant, who is identically situated as that of S.C. Mishra and is rather on a better footing being appointed earlier to him, is entitled to be granted the benefit of Dr. P.P.C. Rawanis case (supra) to regularize his ad hoc officiation and as such non-implementation of the decision is not in accordance with law and as this is a continuing wrong, limitation would not apply.
7. Learned counsel states that the Ministry of Health and Family Welfare on the basis of letters dated 08.05.1989 and also 26.05.2001, once recommended for contract basis on monthly wages, stated that on ad hoc appointment from retrospective date, the approval of the Minister vide letters dated 19.09.2001 and 13.12.2001 clearly establishes that the applicant was governed by the decision in Dr. P.P.C. Rawanis case (supra) and was, despite he had not qualified in the selection held by the UPSC, treated as ad hoc from the initial date, regularization of which does not suffer from any infirmity. Learned counsel states that a note of DOPT as obtained on RTI clearly indicates that his case was compared with Dr. S.C. Mishra and a flood gate opening as a defence cannot come in his way of getting a legal right on the basis of decision of the Apex Court. Learned counsel has also relied upon a note of the Department of Health dated 31.10.2003 whereby the matter in view of Neloy Roys case (supra) was referred to Ministry of Law. The action of the respondents to withdraw the benefits has been advised to be an illegality yet the same has been adopted by the respondents without affording a reasonable opportunity to him. Learned counsel states that once the applicant has been treated on regular basis as a General Duty Sub Cadre Officer, grant of the benefit of NFSG as CMO and DACP under 6th CPC recommendation, which has been given to others, is an invidious discrimination, violative of Articles 14 and 16 of the Constitution of India.
8. On the other hand, learned counsel for the respondents has vehemently opposed the contention and stated that since the applicant has not preferred any reply to the show cause notice, the O.A. is barred by limitation. It is stated that since the services of the applicant on contract basis who could not qualify in the written test were regularized on 21.09.1994, the Department of Legal Affairs opined that the case of the applicant should be considered along with the ad hoc doctors in 1992 when DOPT stated that the Doctors who are not covered by Dr. P.P.C. Rawanis Judgment, the benefit should not go to them as in M.A. Haques (supra), decision in Dr. P.P.C. Rawani has been held to be limited in the petitioners case therein. Learned counsel has also taken a defence that in case the benefit of Dr. S.C. Mishra (supra) is given, there may be others who would seek benefit of regularization which would not only affect already settled seniority of doctors but also financial implications would be huge. It is stated that the benefit of the High Court of Delhi in Dr. Niloy Roy (supra) where regularization has been sought on Dr. P.P.C. Rawani (supra) once has not been given, the clarification of the Apex Court in CP 160/2005 in Dr. P.P.C. Rawani on 14.11.2008 made it clear that directions in the order dated 29.10.1991 nor the clarification of those directions shall be construed as an enunciation of any general principle to be applied as a precedent in any other case. Accordingly, it is stated that when the case of the applicant is different from S.C. Mishra and there were only three categories of Medical Officers, the category to which the applicant belongs, is that he was initially appointed on contract basis and having not appeared in the first test held by the UPSC and in second test having failed, the action taken by the respondents is apt in law. It is also stated that it is only on the basis of the service records that the applicant was regularized from ad hoc.
9. We have carefully considered the rival contentions of the parties and perused the material on record.
10. At this stage, while we were seized of the matter, an important legal issue going to the root of the matter has surfaced which is that though the impugned order withdraws an order passed by the respondents conveying sanction of the President for regularizing the services of the applicant in view of Dr. P.P.C. Rawanis case (supra) w.e.f. 03.07.1986 yet the order was given effect to legally on issue of an order dated 13.12.2001 which was notified as well. As the impugned order has withdrawn only the order passed on 19.11.2001 and the order passed on 13.12.2001 has not been withdrawn, it appears that the order bestowing upon the applicant the benefit of Dr.P.P.C. Rawani (supra) on formal declaration on approval by the President having not been withdrawn continues to hold the field and is effective. The matter was listed for being spoken to and this has been put to the learned counsel for the respondents Shri V.S.R. Krishna and when confronted, he was not able to confront the aforesaid position of facts and law. Accordingly, this issue is now being adjudicated by us.
11. We find from the records that though an order passed on 22.09.2003 is being challenged by a proceeding instituted before us in 2008, the delay explained by the applicant is on the ground that the illegality has been perpetuated by not reckoning the services for the purposes of NFSG and DACP. When the legality perpetuated in the order passed on 13.12.2001 has not been withdrawn, what is given effect to as withdrawal of the order dated 19.11.2001 in no manner is going to affect the benefits bestowed upon the applicant, as such the limitation still continues as a recurring cause of action though this has been disputed by the respondents counsel.
12. In the matter of limitation, the Apex Court in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr. (2010 (2) SCALE 645) ruled that the expression `sufficient cause is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Moreover, in Union of India & Ors. Vs. Shantiranjan Sarkar (2009 (3) SCC 90), the Apex Court in the context of an Administrative Tribunals Act, 1985 ruled that Union of India cannot take advantage of the wrong and equitable relief is to be accorded. Moreover, in Ravindra Nath Vs. State Bank of India & Ors. (2009 (1) SCALE 130), the Apex Court ruled that when the delay has been sufficiently explained, the matter is to be heard on merits. Keeping in light a three Judges Bench in Amrit Lals case (supra), on the aspect of limitation, the Apex Court held that limitation would not come in the way to prevent miscarriage of justice and abuse of process of court. Accordingly, we do not approve of the objection of limitation raised by the learned counsel for the respondents which stands overruled.
13. Insofar as the principles of natural justice are concerned, it is audi alteram partem as a pre-decisional hearing is a part and parcel and an important principle embodied in the principles of natural justice. The Apex Court in Canara Bank Vs. V.K. Awasthy (2005 SCC (L&S) 833) ruled that when a quasi judicial and administrative authoritys act which causes civil consequences to the concerned, he will not be condemned unheard and should be given a reasonable opportunity to defend. Though the doctrine of `useless formality theory when recourse to principles of natural justice does not improve the situation, but it cannot override the right to be heard and the applicability of principles as referred to above would depend upon the facts and circumstances of each case.
14. Insofar as the civil consequences are concerned, the Apex Court in Tejshree Ghag and Ors. Vs. Prakash Parshuram Patil and Ors. (2007 (2) SCC L&S) 451 ruled that where executive order results in civil consequences, principles of natural justice are required to be complied with prior thereto. An administrative order requires as a mandate a pre-decisional reasonable opportunity.
15. Though we find that after the impugned order, the status of the applicant has not been clarified in black and white yet immediately on receipt of the show cause notice dated 01.09.2003, applicant vide his application dated 08.09.2003 has sought certain documents to enable him to file reply and without responding to the aforesaid, an ex-parte order has been passed which deprived the applicant a reasonable opportunity to put his case before the respondents and as this mistaken decision was not apparent on the face of record, in view of the decision in M/s Deva Metals case (supra), the applicant has been prejudiced by non-grant of reasonable opportunity to defend and on that count, the order, which is against the principles of natural justice, is an order nullity in law void ab initio.
16. In administrative jurisdiction, the executive authorities are presumed to have issued an order as per law when it is communicated. There is distinction between an order made and communicated, has been well explained by the Apex Court in MCD Vs. Qimat Lal (2007 (7) SCC 309). Though the respondents as an administrative authority are competent to review or to correct their decision but from the perusal of the records what we find is that the decision by the President was merely communicated to the Medical Superintendent as an internal communication on 19.11.2001, which has not even been addressed to the applicant. A formal order was issued on 13.12.2001 whereby the applicant has been appointed in temporary capacity w.e.f. 03.07.1986 by the President which has been communicated by Under Secretary to the Government of India. This was published in the Gazette of India and on being published, it has come into effect. So whatever decision has been taken on file having since been published in Gazette Notification, amounts to a formal order. However, the impugned order passed on 22.09.2003 had not referred to the subsequent order dated 13.12.2001 and only referred to an internal communication dated 19.11.2001, which cannot be treated as offering a very vested right as per the decision of the Apex Court in Sethi Auto Service Station and Anr. Vs. Union of India & Ors. (2009 (1) SCC 180 and also Shanti Sports Club and Anr. Vs. Union of India and Ors. (2009 (11) SCALE 731). As such, the order dated 19.11.2001 is a non est order, as such withdrawal of which would not vest the right by which the subsequent order which when not withdrawn still holds the field and as per this the applicants grant of seniority from 03.07.1986 on appointment on temporary basis by the President would hold good for all purposes, including grant of NFSG and DACP, denial of which cannot be countenanced in law.
17. Resultantly, leaving other grounds open, this OA is allowed. Impugned orders are set aside. Respondents are directed to restore to the applicant all benefits as per Notification dated 13.12.2001 by considering him for NFSG and DACP from the date the juniors have been accorded with all consequential benefits, within a period of two months from the date of receipt of a copy of the order. However, if so advised, Respondents are at liberty to take appropriate course in accordance with law. No costs.
( Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) `SRD