Central Administrative Tribunal - Delhi
New Delhi This The 23Rd Day Of December vs Union Of India on 23 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1468 of 2012
New Delhi this the 23rd day of December, 2013
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Dr. Anil Kumar Jain
Aged about 49 years,
Resident of B-137, Sector-26,
Noida, Uttar Pradesh
Presently working as
Chief Medical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
Dr. Sanjay Gupta
Aged about 46 years,
Resident of Flat No.98, Sector-2,
Pocket-1, Dwarka,
New Delhi-110075
Presently working as
Chief Medical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
Dr. Vikram Vohra,
Aged about 46 years,
Resident of House No.100, Sector-29,
Noida , Uttar Pradesh
Presently working as
Chief Mdical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
4. Dr. M.P.Arora,
Aged about 60years,
Resident of D-44,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
Presently working as
Chief Medical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
5. Dr. Rakesh Agarwal,
Aged about 50years,
Resident of C-5,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
Presently working as
Chief Medical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
6. Dr. Ravomdra Li,ar Dwam.
Aged about 50 years,
Resident of 28, Aravali Apartment, Alaknanda,
New Delhi- 110018
Presently working as
Speciality Grade I,
Department of Thoracic Surgery
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
7. Dr. Sangeeta Sharma,
Aged about 49 years,
Resident of A-1/61, Azad Apartment, Sri Aurobindo Marg,
New Delhi- 110018
Presently working as
Chief Medical Officer (NFSG),
Department of Tuberculosis & Respiratory Diseases,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
. Applicants
(By Advocate: Shri A.K.Behera)
VERSUS
Union of India
Through Secretary,
Ministry of Health and Family Welfare,
Nirman Bhawan,
New Delhi -110011
President,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
Director,
LRS Institute of Tuberculosis & Respiratory Diseases,
Sri Aurobindo Marg,
New Delhi-110030
..Respondents
(By Advocate: Shri Ayush Kumar)
O R D E R
Ashok Kumar, Member (A) The applicants in this case are all working as Doctors in different capacities in the LRS Institute of Tuberculosis and Respiratory Diseases, New Delhi. They are aggrieved by the communication dated 14.11.2011 on the subject representations of doctors for grant of promotions under DACP Scheme of the Fifth Central Pay Commission in LRS Institute and their grievance is that by this letter, the Ministry of Health and Family Welfare (Respondent No.1) have turned down their representations for Dynamic Assured Career Progression Scheme (DACP) w.e.f. 5.4.2002, i.e. the same date on which it was implemented in the case of the Central Health Service on the recommendations of the Fifth Central Pay Commission. The applicants have further stated that this is despite the fact that they are governed by the Central Health Service Rules for career progression etc. They have further stated that the Institute namely, Lala Ram Sarup Institute of Tuberculosis and Respiratory Diseases(hereinafter referred to as Institute) is governed by the bye-laws and according to Bye-law 31and Bye-law 42 and by virtue of other provisions, they are broadly categorized on the same lines as the officers of the Central Health Service. The Fifth Central Pay Commission had recommended the DACP Scheme for the doctors of the Central Government under which Respondent No.1 vide letter dated 5.4.2002 decided to grant time bound promotions up to the grade of Chief Medical Officer (Non-functional Selection Grade/Specialist Grade I (Non-Functional Selection Grade) to the officers of the Central Health Service without extending the same benefit to the doctors working in the Institute, although the other recommendations of the fifth Pay Commission were implemented for the Doctors of the Institute in all other respects. This letter came into force with effect from the date of its issue and the promotions of the officers of the Central Health Service were regulated in terms of this letter from the date of issue. The matter of time bound promotion of the Doctors of the Institute was considered by the Standing Finance Committee of the Institute, headed by the Additional Secretary, Ministry of Health and Family Welfare. The proposal approved by the Standing Finance Committee was also placed before the Governing Body before it was sent to the Ministry of Health and Family Welfare. The applicants submitted their representations to the Chairman of the Institute for implementation of the DACP Scheme retrospectively with effect from 5.4.2002 but the same was rejected by Respondent No.1 on the ground that the Finance Ministry conveyed its concurrence to the proposal for implementing the DACP Scheme for doctors other than the doctors belonging to the Central Health Service with prospective effect only and not from 5.4.2002. The applicants allege that this is arbitrary, discriminatory and violative of their fundamental rights to equality and is also not in conformity with the bye-laws. The following reliefs have been sought:-
(a) Call for the records of the case;
Quash and set aside the impugned orders at Annexure-A1 (Colly);
Direct the respondents to implement the DACP Scheme in respect of the applicants with effect from 05.04.2002 with all consequestial benefits of pay, increments etc.;
Award cost of these proceedings to the applicants;
Pass such other order or direction as may be considered appropriate in view of the facts and circumstances of the case.
2. The respondents, on the other hand, have contended that the representations filed by the applicants have been considered and have been duly disposed of by the respondents on 29.11.2011 to the effect that the letter dated 5.4.2002 would be applicable with prospective effect only. This being a conscious decision, it, therefore, cannot be interfered with.
3. We have heard learned counsel for both the parties, Shri A.K.Behera, learned counsel for the applicant and Shri Ayush Kumar, learned counsel for the respondents.
4. It was argued on behalf of the applicant that Bye-law 31 of the Institute provides that all matters concerning the service conditions of the employees of the Institute, the fundamental and supplementary Rules and General Financial Rules and orders issued in this regard by the Government from time to time would mutatis mutandis apply to the employees of the Institute. Similarly, bye-law 42 also provides that the rules as applicable to the Central Government Servant regarding the general conditions of service, pay, allowances including traveling and daily allowances, leave salary, joining time, foreign services terms etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutatis mutandis to the employees of the Institute. In the light of these bye-laws, it was contended by the learned counsel for the applicants that the moment the decision was taken by the Central Government to implement the DACP to the doctors of Central Health Service, this would also automatically become applicable to the concerned officers of the Institute under bye-law 42. This would imply that the letter dated 5.4.2002 (Annexure-A3) would automatically become applicable to the applicants also because bye-laws provide for applicability mutatis mutandis. In M/s Ashok Service Centre and Others Vs. State of Orissa (1983) 2 Supreme Court Cases 82 in para 17, the meaning of the expression mutatis mutandis has been clarified. It has been argued that in the light of this judgment, the provisions of letter dated 5.4.2002 would automatically become effective on the applicants as per bye-laws and, therefore, they should be entitled for the same benefits from the date of issue of this letter and not from with prospective effect as decided by Respondent No.1.
5. Learned counsel for the respondents argued that the decision to make the DACP Scheme prospective is a conscious decision of the Respondent. The letter dated 5.4.2002 was considered in its entirety and, therefore, after taking into consideration all factors and after considering its implications, it was decided to make it applicable with prospective effect. He referred to paras 5 and 6 of the judgment of the Honble Supreme Court in the Government of Andhra Pradesh &Ors. Vs. N.Subbarayudu & Ors. JT 2008 (4) SC 282, in which the Honble Apex Court had held that the fixation of cut off date is within the domain of the executive authority and the Court should not normally interfere with such fixation of cut off date by the executive authority, unless such order appears to be on the face of it blatantly discriminatory and arbitrary. Reliance has also been placed on State Government Pensions Association and Ors. Vs. State of Andhra Pradesh,(AIR 1986 SC 1907) wherein their Lordships have held that there was no illegality or unconstitutionality involved in providing for prospective operation from the specified date. Learned counsel for the respondents also referred to the judgment of the Honble Allahabad High in D.B. Kauser Vs. Union of India (UOI) and Anrs. (2003) 2 UPLBEC which is again on the issue of cut off date and that the fixation of cut off date may have considerations of financial constraints etc.
6. We have considered the pleadings and documents as well as the argument of both counsel.
7. Firstly, we take note of bye-law 31 which reads as under:-
31. Application of Fundamental Rules & the Supplementary Rules In regard to all matters concerning the service conditions of the employees of the Institute, the fundamental and supplementary Rules and General Financial Rules from by the Government from time to time shall mutatis mutandis apply to the employees of the Institute. Similarly, bye-law 42 provides as under:-
42. Other Conditions of Service In respect of matters not provided for in these Bye-Laws, the rules as applicable to the Central Government Servant regarding the general conditions of service, pay, allowances including traveling and daily allowances, leave salary, joining time, foreign services terms etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutatis mutandis to the employees of the Institute. Both these bye-laws provide that all service conditions shall be governed by the fundamental and supplementary Rules and General Financial Rules framed by the Government and such other Rules and orders issued by the Government from time to time shall mutatis mutandis apply to the employees of the Institute. Similarly, there are provisions in bye-law 42 that in respect of matters not provided for in these bye-laws in so far as service conditions are concerned. This makes it obligatory on the respondents to apply the rules and orders issued by the Government in service matters to the employees of the Institute as well, specially having regard to the scope and the scope and meaning of mutatis mutandis which is provided by the Honble Supreme Court in the matter of Ashok Service Centre (Supra) in paragraph 17. Relevant portion of Para 17 is reproduced below:-
17. Section 3 (2) of the Act which makes the provisions of the principal Act mutatis mutandis applicable to the levy of additional tax is a part of the charging provision of the Act and it does not say that only those provisions of the Principal Act which relate to assessment and collection of tax will be applicable to the proceedings under the Act. Before considering what provisions of the Principal Act should be read as part of the Act, we have to understand the meaning of the expression 'mutatis mutandis'. Earl Jowitt's 'The Dictionary of English Law (1959)' defines 'mutatis mutandis' as 'with the necessary changes in points of detail'. Black's Law Dictionary (Revised 4th Edn. 1968) defines 'mutatis mutandis' as 'with the necessary changes in point of detail, meaning that matters or things are generally the same, but to be altered when necessary as to names, offices, and the like. Houseman v. Waterhouse, 191 App. Div. 850, 112 N.Y.S 249, 251.' In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis' in defined as '(T)he necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Extension of an 'earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act.
8. The judgments cited by the learned counsel for the respondents on the issue of fixation of cut off date is not relevant for the purposes of deciding the relief sought by the applicants in the present OA. This is because the present matter or the decision affecting the applicants, does not relate to fixation of a cut off date. It relates to applicability of the Scheme on the applicants with effect from the same date as it was made applicable to the doctors of Central Health Service. When bye-laws 31 and 42 provide for mutatis mutandis applicability of Government rules and orders, the question needs to be addressed is whether the respondents would have the power to alter any of the conditions of a facility provided to the doctors of Central Health Service in a manner different from the same. The answer to the above question to our mind is in the negative, specifically because of the view expressed in the judgment in Ashok Service Centre (supra) regarding the meaning of Mutatis Mutandis by the bye laws. This would imply that the same facility or benefits would pass on to the applicants without any alteration or modification in respect of its contents or the date from which it has to be made effective on the applicants and cannot be different from what was given to the doctors of the Central Health Service w.e.f. 5.4.2002, i.e. the date of issue of the letter.
9. It is also noticed that the recommendations of the 6th Pay Commission were also implemented with respect to the applicants with effect from the same date as other officers in Central Government. There does not, therefore, appear to be any reason why in the present case of the DACP Scheme, there should be a difference in the benefits to be given to the applicants vis-`-vis the doctors in the Central Health Services.
It is also observed that the impugned communication dated 14.11.11 does not state any reason why the decision has been taken to implement DAPC Scheme with prospective effect and not from April,2002, except that the Finance Ministry has concurred to the proposal only with prospective effective. This letter does not al all explain the considerations for taking such decision which results in differentiation between the applicants and the doctors of Central Health Service. This differentiation cannot be treated as valid in the absence of cogent reason.
10. In view of above, we are of the view that the respondents action of giving prospective effect to the letter dated 5.4.2002 in the case of applicants cannot be legally sustained nor can the impugned communication at Annexure A1 dated 14.12.2011. The same are accordingly quashed and set aside. OA is allowed. The respondents are directed to implement the DACP Scheme with respect to the applicants w.e.f. 5.4.2002 with all consequential benefits. The respondents shall accordingly implement the Scheme and comply with the aforenoted directions not exceeding three months from the date of receipt of a copy of this order.
11. In the circumstances, parties shall bear their own costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/