Rajasthan High Court - Jodhpur
Union Of India & Anr vs Dr. Jagat Singh Bhati on 31 July, 2013
Author: Amitava Roy
Bench: Amitava Roy
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B.Civil Writ Petition No.5402/2011
The Union of India & anr. V/s Dr.Jagat Singh Bhati
Date when the order
was reserved ::- 25.7.2013
Date of pronouncement
of order ::- 31 .7.2013
PRESENT
Hon'ble the Chief Justice Mr.Amitava Roy
Hon'ble Mr.Justice V.K.Mathur
Mr.Kuldeep Mathur for the petitioners.
Mr.S.K.Nanda for the respondent.
ORDER
BY THE COURT (Per Hon'ble Mr.Amitava Roy, CJ)
The writ jurisdiction of this Court has been invoked to set aside the judgment and order dated 26.7.2010 passed by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short, hereinafter referred to as "the Tribunal) whereby it has directed the appellant-Department to grant the benefit of higher pay to the respondent as per Office Memorandum dated 6.6.2000 with effect from that date and also to consider his request for extending the benefit of Dynamic Assured Career Progression Scheme (for short, hereinafter referred to as "the DACP Scheme") in furtherance of the order dated 5.4.2002 thereby allowing the pay scale of Rs.14300-18300 as Chief Medical Officer (Non 2 Functional Selection Grade) with effect from that date.
We have heard Mr.Kuldeep Mathur, learned counsel for the petitioners and Mr.S.K.Nanda, learned counsel for the respondent.
The rival pleadings provide the indispensable factual backdrop. The respondent had joined the services of the petitioners as Assistant Surgeon Grade-I with effect from 25.8.1973 following his selection by the Union Public Service Commission. He was thereafter promoted in succession as Senior Medical Officer and the Chief Medical Officer with effect from 1.1.1987 and 1.1.1989 respectively. He eventually retired from the service with effect from 31.1.2008. At that time, he was holding the post of the Chief Medical Officer in the Defence Laboratory, Jodhpur (Rajasthan) in the Civilian Medical Officer cadre under the administrative control of the Director General of Armed Forces Medical Services (for short, hereinafter referred to as the DGAFMS").
The Fifth Central Pay Commission in its report recommended creation of All India Health and Medical Service and proposed to effectuate the same following steps:-
"a) The Central Health Service may be integrated in the first instance so that the 4 sub-cadres are unified into a single cadre with a common seniority. The selection of the medicos should be need-based to avoid over-crowding in any field of specialization.
b) A high-powered committee should be appointed to start a dialogue between the States and the Centre. It should work out the modalities within a fixed time-frame of 3 5 years for an All India Health and Medical Service.
c) Directors-General of Health Services and Indian Railway Medical Service, and the Director, Indian Ordinance Factories Health Service should work out arrangements for inter-service exchange of personnel, while retaining maximum possible control over the cadre within the respective organizations.
d) Posts outside the organized services excluding the Armed Forces Medical personnel should be immediately integrated into the Central Health Service. The medical doctors of the Central Police Forces may also be included in the service, and when posted to the CPOs they should be subject to the acts and rules of the concerned organization on the analogy of the Army Postal Service so that there are no problems of actual working.
Clause(d) of the above quoted text would reveal that thereby posts outside the organized services excluding the Armed Forces Medical personnel were required to be immediately integrated into the Central Health Service. Thereby, a unified Central Health Service by working out arrangements for inter- service exchange of personnel amongst the Central Health Service, Indian Railway Medical Service and the Indian Ordinance Factories Health Service was envisaged. The Fifth Central Pay Commission also recommended the DACP Scheme in the said Service. The Central Government accepted the said recommendation and introduced the DACP Scheme for the officers of the Central Health Service vide Ministry of Health and Family Welfare letter No.21/14/97-PC(H) CHS-V dated 5.4.2002. It was thereby provided 4 inter-alia that the Scheme of DACP would take effect prospectively from the date of this communication. The issue of bringing the posts of Civilian Medical Officer cadre under the Central Health Service, however, was not finalized and therefore, the benefit of DACP Scheme was not extended to the Medical Officers of the Civilian Medical Officer cadre under the DGAFMS. Significantly, prior thereto, by the G.I. Department of Personnel and Training, O.M. No.22/1/2000 CRD dated 6.6.2000, percentage of ceiling in respect of the Non Functional Selection Grade in all organized Group-'A' of the Central Services was enhanced from 15% to 30% pursuant to the recommendations of the Fourth Central Pay Commission, subject to the stipulations as contained therein.
The issue pertaining to the implementation of the DACP Scheme for the Civilian Medical Officers of the DGAFMS cadre, however, remained in active consideration amongst others of the Ministry of Defence and with the constitution of the Sixth Central Pay Commission, recommendation for grant of the said Scheme to these incumbents was laid before it to bring them at par with the Central Health Services doctors. The Sixth Central Pay Commission recommended that the DACP Scheme for different streams of doctors should be extended to all belonging to the same fraternity to bring those working under the Central Health Scheme at par. This recommendation of the Sixth Central Pay Commission was accepted.
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Meanwhile, the respondent being aggrieved by the denial of Non Functional Selection Grade pay scale of Rs.14300-18300 under the DACP Scheme to the Civilian Medical Officers cadre following the Fifth Central Pay Commission recommendations, submitted various representations to the DGAFMS and eventually, approached the learned Tribunal with OA No.138/2006 which was disposed of on 1.3.2007 by requiring the respondent no.1 therein to arrived at a "judicious decision" keeping in view the observations made by the Hon'ble Apex Court in State of Mizoram & anr. V/s Mizoram Engineering Service Association & anr. ((2004) 6 SCC 218) within a period of three months. These representations came to be decided on 24.12.2007 observing that the case for bringing the posts of CMO cadre under the Central Health Service had not still been finalized and therefore, the benefit of DACP Scheme could not be made available to the Medical Officers of CMO Cadre under the DGAFMS. The official communication of the even date recording the decision, however, recited as hereunder:
"9. Therefore in compliance of the Hon'ble CAT direction it is stated that the matter was examined by Ministry of Finance earlier in consultation with the Deptt. of Personnel & Training who advised that a comprehensive view on career progression of all categories of medical doctors is necessary. In view of the aforesaid advice of DOP&T, it was decided that the issue be reserved for consideration of the Sixth CPC. Since the Sixth CPC has already been set up by the Govt. with comprehensive terms of reference including all service 6 conditions of Central Govt. employees covering career progression aspect also, the Pay Commission is expected to go into the instant issue also in details. Ministry of Defence has also recommended to the 6th CPC for grant of DACP Scheme to CMOs under DGAFMS to bring them at par with CHS Doctors."
It would be apparent from the above that the petitioners till then did not as such reject the claim of the CMO cadre under the Central Health Service for the benefits under the DACP Scheme on merits and instead following due interactions with the Ministry of Defence and Department of Personnel and Training had decided that the issue be reserved for consideration of the Sixth Central Pay Commission as the same had already been set up with comprehensive terms of reference including all service conditions of the Central Government employees covering the aspect of career progression. It was also mentioned in clear terms that the Ministry of Defence had recommended to the Sixth Central Pay Commission for grant of the benefits under the DACP Scheme to CMOs under the DGAFMS to bring them at par with the doctors of Central Health Service.
Situated thus, the respondent instituted Original Application No.180/2008 seeking annulment of the communication dated 24.12.2007 and direction to the petitioners-herein to extend the benefits of the Office Memorandum dated 6.6.2000 and 5.4.2002 from the dates thereof.
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In essence, the pleaded stand of the petitioners was that as the Fifth Central Pay Commission in its recommendation for constitution of the Central Health Service had excluded the Armed Forces Medical personnel therefrom, the respondent's claim for the benefits of Non Functional Selection Grade pay scale and the benefits under the DACP Scheme was clearly untenable.
The learned Tribunal, however, sustained the respondent's challenge and granted him reliefs as adverted to hereinabove. As the impugned judgment and order would reveal, the learned Tribunal in sustaining the claim of the respondent did take note inter-alia of the fact that the Fifth Central Pay Commission had recommended creation of unified Central Health Service in which the posts outside the organized services were also required to be assimilated. Dismissing any distinction between organized and unorganized services in the matter of grant of pay scale by relying on the decision of the Hon'ble Apex Court in State of Mizoram & anr. V/s Mizoram Engineering Service Association & anr. (supra), it returned the finding that the respondent could not be denied the benefits of Non Functional Selection Grade pay scale and also the benefits under the DACP Scheme with effect from 6.6.2000 and 5.4.2002 respectively. Reference was also made to the decisions rendered by the Central Administrative Tribunal, Mumbai and Madras Bench on cognate issues.
Whereas Mr.Mathur has urged that the Fifth Central Pay Commission did patently exclude the Armed Forces Medical 8 personnel from the purview of the contemplated Central Health Service and thus, the respondent was not entitled to the reliefs as prayed for, Mr.Nanda has urged that in the attendant facts and circumstances and the recorded sequence of events, no interference with the impugned judgment and order is warranted.
Upon hearing the learned counsel for the parties and on a consideration of the pleaded facts and the documents on record, we see no persuasive or weighty reason to differ from the reasonings and conclusions recorded by the learned Tribunal. True it is that the Fifth Central Pay Commission while suggesting the composition of the Central Health Service did exclude the Armed Forces Medical personnel while recommending integration of posts outside the organized services therein, but no decision as such was taken by the petitioners while acting on the said recommendation rejecting the claim of the equally placed Armed Forces Medical personnel for being extended the Non Functional Selection Grade and the DACP Scheme benefits to them. Instead records demonstrate in an unequivocal terms that not only the Ministry of Defence did strongly recommend the extension of the said benefits to them, the petitioners deferred the decision thereon waiting for the recommendation of the Sixth Central Pay Commission in this regard.
There is no wrangle at the Bar that following the acceptance of the Sixth Central Pay Commission recommendation, the Ministry of Health and Family Welfare vide Office Memorandum 9 F.No.A45012/2/2008-CHS.V dated 29.10.2008 had extended the Scheme of DACP upto the Senior Administrative Grade level to all Medical/Dental Doctors in the Central Government whether belonging to organized service or holding the isolated posts. Thereby, the doctors under the DGAFMS cadre were also entitled to the benefits of the said Scheme. This is evident from the letter No.12017/CMO/DGAFMS/DG-2B/126/09/D (Med) dated 15.1.2009 of the Government of India, Ministry of Defence. In a way, therefore, the stalemate following the indecision of the petitioners on this issue stood eased thereby and the entitlement of doctors under the DGAFMS cadre to the benefits of the DACP Scheme on principle got attested by such decision. In this factual premise, any further dilation on the aspect of organized and unorganized services as well as the isolated posts with reference to the pronouncement of the Hon'ble Apex Court in State of Mizoram & anr. V/s Mizoram Engineering Service Association & anr. (supra) is considered inessential.
Having regard to the progression of the events and the ultimate decision taken on the basis of the recommendations of the Sixth Central Pay Commission as above, there is no discernible and convincing reason to interfere with the impugned judgment and order. The petition, therefore, lacks in merit and is dismissed.
(V.K.Mathur)J. (Amitava Roy)CJ Parmar