Central Administrative Tribunal - Delhi
Oa No.1436/2007 vs Union Of India Through on 22 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. 1436/2007, O.A. 1437/2007 & O.A. 1438/2007 New Delhi this the 22nd day of April, 2009 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. L.K. Joshi, Vice Chairman (A) 1. OA No.1436/2007 Dr. Snehal Bhave, Aged about 58 years, W/o Shri S.V.Bhave, R/o C-II/62, Shajjahan Road, New Delhi-110011. Applicant. (By advocate: Shri A.K.Behera) VERSUS Union of India through: 1. The Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi 110 001 2. Director General of Health Services, Directorate General of Health Services, Nirman Bhawan, New Delhi 110 001 ... Respondents. (By Advocate Shri V.S.R. Krishna) 2. OA No.1437/2007 Dr.Sandhya Ranjan, Aged about 44 years, W/o Shri S.Ranjan, R/o D1/126, Satya Marg, Chanakyapuri, New Delhi-110021 Applicant. (By advocate: Shri A.K.Behera) VERSUS Union of India through: 1. The Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi 110 001 2. Director General of Health Services, Directorate General of Health Services, Nirman Bhawan, New Delhi 110 001 . Respondents. (By Advocate Shri V.S.R. Krishna) 3. OA No.1438/2007 Dr. Pankaj Agnihotri, Aged about 49 years, S/o (Late) Mr. Ayodhya Prasad Agnihotri, D-II/10, Cornwallis Road, New Delhi-110 003 Applicant. (By Advocate: Shri A.K.Behera) VERSUS Union of India through: 1. The Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi 110 001 2. Director General of Health Services, Directorate General of Health Services, Nirman Bhawan, New Delhi 110 001 .. Respondents (By Advocate Shri V.S.R. Krishna) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (j).
The above Original Applications had been heard and disposed of by a common order, on 04.03.2008. However, in view of the review applications filed by the respondents and also clarificatory petitions filed by the applicants in the Original Applications, by our separate orders, we have reviewed and recalled the order. Learned counsel appearing for the parties had further highlighted certain aspects which also were required to be gone into, according to them, but had agreed that as done on the earlier occasion, taking notice of the common issue involved, the Original Applications may be disposed of by a common order.
2. We may refer to the brief facts of the case as hereunder.
3. An order passed by the Government of India, Ministry of Health and Family Welfare, on 29.08.2006 (Annexure A-I), is the subject matter of challenge here. The applicants are Medical Officers in the Central Health Services. The three individuals who had come with these set of original applications had earlier been working as Assistant Surgeons under different Governments. Applicant in OA 1436/2007 was working under the Government of Jammu and Kashmir. She had been appointed on depuration basis as Senior Medical Officer (SMO) under first respondent by order dated 12.09.2001 after obtaining the approval of the UPSC. It was for a period of three years. In due course on the recommendations of the UPSC, an offer of appointment had been given to her as Senior Medical Officer in the Central Health Service, vide Rule 8 of the CHS Rules, 1996. The offer was that she would be treated as a direct recruit in the grade of Senior Medical Officer and the condition stipulated in Paras 10.1 and 10.2 of the DOP&T O.M. dated 03.10.1989 would be applicable to her. In respect of seniority, Paragraph 11.2 of the O.M. was to apply. Other terms and conditions of appointment were to be regulated by the relevant rules and orders that would be in force from time to time.
4. By Annexure A-6 dated 22.01.2004, the President had later on appointed her as Senior Medical Officer in the pay scale of Rs. 10,00015,200/- on regular basis effective from 01.10.2003. Other applicants likewise were working under Government of Tripura and U.P. and had come to be appointed in similar pattern like the applicant initially on deputation and later on had got themselves regularized.
5. After absorption as above, consequential orders had duly been passed as Annexure A-I. They have been advised that on their induction to the General Duty Medical Officer Sub Cadre of Central Health Service, against the post of Senior Medical Officer in the pay scale of Rs.10,000 15,200/- their seniority is being fixed in terms of O.M. dated 27.03.2001. Applicant in OA 1436/2007 had been assigned seniority effective from 01.04.1991 as Senior Medical Officer. She had been given a position below Dr. L. Devanand and above Dr. Domnic Mardi. The other applicants likewise have been given dates, the details whereof may not be strictly relevant. The order also indicated that for purpose of promotion to the next grade, the required qualifying service will be counted from their date of absorption under the Central Health Service. The condition as above, according to the applicants, is unauthorized, as one without jurisdiction. This part of the order alone is under challenge, as according to Mr. Behera, the learned counsel appearing on their behalf, what has been conferred by the right hand has been taken back by the left hand.
6. It is averred that representations have been submitted pointing out that the rights of promotion have been unnecessarily tampered with since the date of absorption, which had no relevance in the context of the ruling guidelines, had nevertheless been given unmerited importance. Result of Annexure-I is that although Smt. Snehal Bhave has been given seniority in the grade of Senior Medical Office from 01.04.1991, right of promotion is reckonable only effective from 01.10.2003. Dr. Sandhya Ranjan and Dr. Pankaj Agnihotri, the other applicants also have been likewise assigned dates from 29.09.2003 alone in spite of their dates recognized as 18.12.1994 and 20.03.1992 for purpose of reckoning seniority. It is, therefore, prayed that the restrictive clause in the impugned order should be read down or set-aside to the extent it interferes their right for promotion, notwithstanding conferment of seniority. Further prayer is for a declaration to count their past service for the next higher grade of GDMO and to promote them with all consequential benefits.
7. When the matter came up for admission, a Division Bench observed that the issue agitated is required to be heard by a Full Bench. Following points were formulated as necessary to be examined by a Full Bench :
(1) Is it a universal rule that deputationists are to be given seniority taking into full account the equivalent service rendered by them in the parent department;
(2) Whether such recognition will infringe upon the settled rights of the existing personal, including their career prospects;
(3) In the light of later decisions what could be the nature and extent of rights available to deputationists who ultimately come to be regularized in the new employment;
(4) Is it mandatory that the special rules as applicable also are to be taken notice of.
8. Respondents had by the counter reply dated 04.12.2007 justified the issue of Annexure A-1 order. It had been suggested that the applicant was not entitled to be promoted from any earlier date, as she was not equal to a person who entered as a regular employee of CHS cadre. Reliance had been placed on the decision of the Supreme Court rendered in R. Prabha Devi and Ors. Vs. Government of India and Ors. (1988 (2) SCC 233) to suggest that for promotion, the candidate was to fulfil the qualifying service prescribed for eligibility as found in the recruitment rules. It had also been indicated that the prayers as made in the writ petition would have unsettled the positions of officers who already belong to the various cadres in the CHS and the persons who had come on deputation should not have been permitted to upset the settled positions, even for technical reasons. Proper and necessary parties had not been impleaded.
9. Mr. Behera submits that the applicants had initially been permitted to come on deputation as authorized by the rules. Rules provide for regularization of deputationists, and it could never have been conditional. The impact of O.M. dated 03.10.1989 could not have gone unnoticed at least on principles of estoppel. The said O.M. had been issued after the Supreme Court rendered judgment, in SI Roop Lal and Anr. Vs. Lt. Governor, Delhi and Ors. (JT 1999 (9) SC 597). When the respondents had undertaken that due deference to the above will be made, a volte face was not permissible. Protective measures in respect of the personnel, who got their initial appointment in the services, could have been done only subject to the rule position. According to counsel, the earlier O.M. of 1996 provided that seniority in the case of a deputationist who was later regularized in the new department was to be with reference to the date from which he was holding an equivalent grade in the parent department, or on the date of regular absorption whichever was later. But after SI Roop Lals case (cited supra), position had been changed and the OM was modified whereby the benefit was to be reckoned from a date, which was earlier of the two happenings. The applicants, respectively were in equivalent grades of SMO from 1991, 1994 and 1992, and, in fact, seniority had been assigned to them duly. In an arbitrary manner and without authority of law, a restrictive rider in respect of the right of promotion to the next grade, is introduced to suggest that the required qualifying service could have been possible to be counted from the date of absorption under CHS. This is evidently artificial and had no benevolence of the special rules governing the service. The position of seniority should not have been delinked effectively denying the incumbent concerned to enjoy the seniority position for career prospects as well. When the applicants are holding post in the grade of Rs.10000-15200, mandatorily their entry date to the cadre required to be upheld. The whole service was being counted for financial upgradation under the ACP Scheme and for every other purpose. An artificial restriction with reference to the actual date of entry, the counsel submits defies fair play. The OM did not leave to them any such authority. Respondents had no jurisdictional power to make inroads to the vested rights of the applicants going by the Supreme Courts judgment.
10. However, this position is not conceded by Mr. Krishna, counsel for the respondents and he submits that the full facts have not been adverted to by the counsel. Of course, the service of a candidate in an equivalent grade required to be given credit in view of the judgment in SI Roop Lal and also because of the office memorandum referred in the order. But that was not equivalent to a position that promotions as well were blindly to follow. Statutory rules govern the service (Central Health Service Rules, 1996) and neither the Department nor a member of a service could have contracted for a position that the rules can be circumvented. Applicants were also not to insist that their past service required to be counted for promotion in the CHS. Rights of other persons were likely to be affected. As an employer, respondents were expected to adopt an equitable approach. Settled rights would have got unsettled if the contention of applicants were accepted. When minimum incumbency was required to be there for promotion, and the promotions itself were not automatic, but were to be conferred on candidates who are cleared by DPCs, constituted under the authority of rules, without such clearance claims for promotion straightaway could not have been possible to be entertained. Therefore, there was no merit in the submissions and the O.A. is experimental. Counsel also submitted that SI Roop Lal (cited supra) should be confined to the facts of the case, as all possible contingencies had not been examined while the said decision was rendered. It primarily concerned with the issue of seniority, and there was no reference to rights for promotion consequent to acquisition of seniority.
11. The Recruitment Rules provide for absorption of deputationists, although such provision had been incorporated at a later stage. (In the earlier order presently reviewed, we had observed that there was no provision in the Rules for absorption of persons, who had come on deputation). As such, there cannot be any dispute that the appointment of applicants had been validly done. As the officers were working in an equivalent grade, seniority from the date they commenced service in the earlier post required to be assigned to them on the strength of SI Roop Lal, and as the O.M. stands today. The only issue is whether on the basis of such seniority, it is possible for them to press for promotional rights as if they had remained always with the CHS.
12. We have noticed the submission of Mr. Krishna that Roop Lal does not at all deal with the aspect of promotional claims. Nor there was occasion for the Supreme Court to examine about requirements laid down by particular special rules governing the service. But counsel is only partly right. Reference order had noticed about the possible impact of a later decision of the Supreme Court on the issue. Mr. Krishna argues that observations in Indu Shekhar Singh & Ors. Vs. State of UP & Ors. (2006 (8) SCC 129), have changed the scenario. The Court had observed that there is no fundamental right in regard to counting of past services rendered by a person when he came over to a new service on deputation and later on was absorbed. Past services could be taken into consideration only when the rules permit the same or where a special situation existed which entitled the employee to claim such benefits, by express terms. Counsel submits that this principle is applicable on all fours here.
13. It may be that in a case of deputation, almost always there may not be any compulsion for the employee to accept such change. Of course, in administrative exigencies, the Government has reserve powers, to utilize the services of an officer at its discretion. But that is altogether different. In the present case, it could be assumed that the officers had opted for a deputation taking notice of personal advantages they might gain. The lending authority as well as the receiving authority had agreed upon a situation whereby the employees could be taken over on the rolls of the transferee. The governing O.M. had come to their aid in that the past services rendered were also to be treated as tagged on to their full credit. He submits that this alone would have been admissible. According to the counsel, the Department had a duty to ensure that the fiction as above even if taken to its logical end, was not to adversely affect persons who had been in the Department from the inception of their career. The Rules also referred to the incumbency required to be in CHS for gaining promotability. The applicants were deficient in this crucial qualification. That was the underlying reason to incorporate the restriction in the impugned order.
14. Since aspects other than seniority were not within the purview of consideration of Supreme Court in SI Roop Lal, and such matters had been examined in Prabha Devi and as also Indu Shekhar Singh (cited supra), Mr. Krishna asserts that question of promotability necessarily requires to be adverted to. If the rules did not at all provide for a restriction of the rights of deputationists, that would have been another matter. But Mr. Krishna submits that the rules sufficiently enough indicate that provision for a smooth ride, as claimed by the applicants, to the higher echelons of the Service, overreaching their counterparts were not there, going by the letter of the statute, and the practice that was in vogue. This appears to be the crux of the issue, and the alleged impact of the rules, as coming to the detriment of the applicants could, therefore, be examined.
15. The facts of Prabha Devi ( cited supra) reveal that for Grade-I post in the Central Secretariat Service, 8 years approved service as Section Officer had been prescribed as minimum incumbency. Certain officers had been appointed by direct recruitment as Section Officers and they were adjudged as seniors to the promotees in consonance with the quota and rota rule. But such seniors had been overlooked for promotion. Examining the issue in detail, the Supreme Court opined that direct recruits, who were senior to promotees, were not entitled to be considered for promotion to a higher post as they did not fulfil the eligibility conditions specified in the rules framed by the rule making authority. In Paragraph 15 of the judgment, it had been held that the rule making authority is competent to frame rules laying down eligibility conditions for promotion to a higher post. Court observed that when such an eligibility condition has been laid down by a service rule, it cannot be conceived that a direct recruit, who is senior to the promotees, is not required to comply with the eligibility condition. Nor he is entitled to be considered for promotion to the higher post merely on the basis of seniority. The gist of the decision is that eligibility rules requires to be given due credit; seniority alone may not always deliver goods.
16. There is no difficulty in understanding the principle, as it is wholesome. Nobody is expected to ignore Rules. According to Mr. Krishna, the same view has been taken in Indu Shekar Singhs case as well. The Court reiterated that terms and conditions of recruitment for adjudging seniority, and other terms and conditions of service are indeed there, governed by statutory rules. Adverting to Ram Janam Singh Vs. State of UP (1994 (2) SCC 622), the Supreme Court had highlighted the following observations:
It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum-merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career which can be affected by factors, which can be held to be reasonable and rational. The Supreme Court had specifically stressed on an aspect that the plight of persons, who are already in service, should not go unnoticed, when new comers are required to be assigned seniority for whatever reasons. In the light of these, we may examine the present controversy so as to see whether the orders could be upheld in toto. In the course, we may also advert to the questions formulated.
17. Mr. Krishna had invited our attention to the Schedule-III of the Central Health Service Rules, 1993. Para IV deals with Public Health Sub-Cadre Posts. In the medical officers grade, Chief Medical Officer is a promotion post on the basis of seniority cum fitness, of course, without linkage to the vacancies. The feeder category is Senior Medical Officer in the General Duty Sub Cadre with six years regular service in the grade or on completion of 10 years combined regular service as Medical Officer and Senior Medical Officer of which at least two years shall be as Senior Medical Officer. Mr. Krishna points out that experience as a Medical Officer in the General Duty Sub Cadre was one of the essential qualifications for a candidate to aspire for the post of Chief Medical Officer. When the officers had their date of absorption as 01.10.2003, according to him, it could not at all be possible for them to claim that they are to be recognized as having the qualifications for appointment as Chief Medical Officer as well. The seniority, which they carry with them, could not have ipso facto, led also to an assumption that they were officers, in the General Duty Sub cadre. He submits that the benefit of seniority had been given to the applicants as envisaged by Rule, and this alone was necessary. Minimum condition of service for promotion was not satisfied by them, they could not have claimed automatic promotion and Annexure A-1 only reflected this legally settled position.
18. Mr. Behera, however, countered this argument by citing two decisions of the Supreme Court, K. Madhavan and Anr. vs. Union of India & Ors. (1987 (4) SCC 566) as well as SI Roop Lal (cited supra). In Madhavans case, the expression used by the statute was minimum 8 years service in the grade. The meaning of the term grade had been explained by the Supreme Court holding that the period of 8 years could be counted from the date of appointment as the DSP in the parent Department including the two years probation later on in the CBI. Supreme Court, according to the counsel, indicated that, in the absence of any specific provision to the contrary, the general principle was that length of service from the date of appointment to the post should be taken into consideration both for purpose of seniority and eligibility in the higher post. Being a case of deputation, as in the present one, period of service in the parent department, could be counted for appointment for satisfying the minimum incumbency prescribed by the rules. Counsel submits, in SI Roop Lal as well, the principle decided was that for purpose of seniority and consequential benefits, which, according to him, impliedly included promotional benefits, the entire service in the equivalent post required to be considered. The court had adverted to the decision in Madhavans case to opine that it will be against all rules of service jurisprudence if a Government servant holding a particular post is transferred to the same or equivalent post in another Government Department and the period of his service in the post before he is transferred is not taken into consideration in computing his eligibility in lock stock and barrel.
19. We are tended to agree with Mr. Behera, even though the result of the conclusion will be to hold that persons, who could get backdoor entry are able to overtake their lesser fortunate counterparts. In SI Roop Lal, of course, we find the stress was on the issue of seniority when the Court observes that, It is clear from the ratio laid down in the above case that any rule, regulation or executive instruction which has the effect of taking away the service rendered by a deputationist in an equivalent cadre in the parent department while continuing his seniority in the deputed post would be violative of Articles 14 and 16 of the Constitution.
(Paragraph 23) But one leads to the other, unless the Rule inhibits normal benefits arising from seniority. Mr. Krishna submits that when the observations quoted have come without taking notice of all relevant aspects, perhaps, he may be right. He may also be right when he submitted that the DOPT instructions of 22.12.1959, as they existed were fair, and the harsh criticism of the learned judges was out of place. It would have been equitable for a deputationist to get seniority only from the day he joined the new Department. Perhaps the decision in Indu Shekhar Singh (supra) is also an attempt to contain the damage, since the decision relied on by the Supreme Court in S.I. Roop Lal ( R.S. Makashi Vs. I.M. Menon (1982 (1) SCC 379) had totally dissimilar facts. But judicial discipline requires that the law laid down is followed, at least until such time it is disowned.
20. Then the relevant part is whether after conferment of seniority, right for promotion could be restricted. There is nothing in S.I. Roop Lal directly requiring rights of promotion as well to be conferred, as falling out from the propositions to which we had adverted. But the rights could be denied only if the statute expressly prohibits such ancillary benefits. The stipulation in CHS Rules is Six years regular service in the General Duty Sub Cadre in the Grade. Mr. Krishna submits that as was approved in Prabha Devi the qualifications for any post are prescribed having regard to the nature of the post and the duties and responsibilities attached to it. Factors like experience over certain number of years in service and holding a post of a certain level are relevant. By direct incumbency, they acquire knowledge of men and matters and gradually come to possess ability to deal with the issues special to the Organization. Supreme Court had also approved the observation of the Tribunal that However, brilliant a person may be, he needs experience such as can be gathered only by discharging the duties and responsibilities attached to a post.
21. On the above premises, Mr. Krishna submits that by working under the CHS the exposure that is obtained by a Medical Officer may be far superior to that would have come to be possessed by a person who is working in hospitals of Jammu & Kashmir or Tripura. When minimum service in CHS is statutorily required for promotion, and when the respondents have correctly understood the situation while issuing Annexure A-1 order, counsel submits, there has been no arbitrariness or irrationality in advising the applicants that only because of their length of service, they cannot be treated as equal in matters of promotion. Total length of service alone may not empower the applicants to get a walk over overlooking the rules and the essential condition that eligibility requires to be assessed at every stage by a statutory DPC.
22. The argument is attractive. But for robbing the right of promotion to a person who came to the service on a later date when he could carry his seniority, the rules should specifically provide for the ineligibility. Schedule III of the CHS Rules, 1996 lays down the parameters of promotion. The qualification for promotion is specified number of years regular service in the grade. That does not speak of any specific service in the CHS. As such the restriction found in Prabha Devi (supra) is not attracted. Resultantly, we find here that the restriction in the matter of promotion cannot be successfully practiced. This leads us to the conclusion that the impugned order is liable to be struck down to the extent it stipulates that, However for the purpose of promotion to next grade in GDMO sub cadre of CHS the required qualifying service in respect of these officers will be counted from their date of absorption under CHS. The Rules do not provide for any such restriction.
23. The objection about the maintainability of the application also does not appear to be sound. The applicants had been highlighting their grievances, and any third parties could not have contributed anything to the situation. Applicants had been representing to their employer to give them a fair deal on proper interpretation of rules. The conferment of seniority to them seems to have been accepted by all. Therefore, we are not impressed by the submission that there is defect of non-joinder.
24. Resultantly and as a fall out of our discussions hereinabove made, we answer the reference as following:
As per the interpretation given by the Supreme Court in SI Roop Lals case (supra) deputationists are to be given seniority taking into full account the equivalent service rendered by them in the parent department.
The recognition of service of a transferred employee may infringe rights of existing personnel or may affect their career prospects but if the situation is postulated and permitted by the governing rules, it definitely requires obedience, since seniority or promotions cannot be recognized as fundamental rights but only rights conferred by statute;
In the matter of promotions, as far as the present case is concerned, deputationists who got absorbed will be able to claim weightage on the basis of the seniority that is carried by them. As general rule, in respect of DPC clearance and minimum incumbency, the position will be governed by the respective special rules as are in force.
25. Annexure A-1 order will stand modified as referred to in Paragraph 22. Original Applications are allowed to the extent as above stated. In matters of promotions, the applicants will have to work out remedies as permissible under law. We make no order as to costs.
26. Let a copy of this order be placed in O.A. 1437/2007 and OA 1438/2007.
( L.K. Joshi) ( M. Ramachandran ) ( V.K. Bali ) Vice Chairman (A) Vice Chairman (J) Chairman `SRD