Central Administrative Tribunal - Delhi
Dr Jatender Bali vs Municipal Corporation Of Delhi, Govt. ... on 7 August, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./100/1473/2012
New Delhi, this the 7th day of August, 2019
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Dr. Jatinder Bali,
S/o Dr. K.P. Bali,
R/o D-10, MCD Medical Complex
Kalidas Marg, Gulabi Bagh,
Delhi-110007 ....Applicant
(Through Shri Kundan Kumar Lal, Advocate)
Versus
1. Municipal Corporation of Delhi
Through the Commissioner
Town Hall, Delhi-06
2. The Addl. Commissioner (Health)
Health Department
Municipal Corporation of Delhi
3. The Chairman
Union Public Service Commission
Dholpur House,
New Delhi ... Respondents
(Through Shri R.V. Sinha and Shri Amit Sinha, Advocates)
ORDER (Oral)
Justice L. Narasimha Reddy, Chairman The applicant appears to be a very resourceful and anxious person, but unfortunately does not appear to be sure as what exactly he wants.
2OA 1473/2012
2. There are three sub-cadres in the health department of the Municipal Corporation of Delhi, namely GDMO, Specialist and Public Health. Each sub-cadre has its own avenues of promotion. The applicant joined as GDMO in the year 2002 and moved four stages upward. As of now, he is in the Non- functional Selection Grade (NFSG) of GDMO.
3. In the year 2008, the applicant made an effort to get appointed as Specialist by responding to an advertisement and was also selected on 18.07.2008; but on contractual basis. He did not accept the offer and continued as GDMO. He made effort to migrate to Specialist sub-cadre. The basis pleaded by him was that the eligibility to be appointed to Specialist sub-cadre is, holding of post graduation in Medicine and that he is qualified. The applicant made a request in that behalf on 17.09.2008 and the same was turned down by the respondents on 19.11.2008. Respondents stated that the three sub-cadres are different from each other.
4. This O.A. was filed initially with a very lengthy prayer with various alternatives. The OA was amended and as of now, it is directed against the order dated 19.11.2008. He sought a direction to initiate necessary steps enabling him to migrate from GDMO sub-cadre to Clinical Specialist sub- cadre as a "Senior Specialist Grade - II" with pay protection. 3 OA 1473/2012
5. The respondents filed a counter affidavit opposing the OA. It is stated that the method of appointment to the three categories namely GDMO, Specialist and Public Health is totally different and there is no provision for migration. It is also stated that the request of the applicant was considered in accordance with the relevant rules and the same was not acceded to.
6. The O.A. was heard earlier and it was dismissed on merits on 11.07.2018. The applicant filed writ petition in the Hon‟ble Delhi High Court. It was allowed and the matter was remanded.
7. Heard Shri Kundan Kumar Lal, for the applicant and Shri R.V. Sinha with Shri Amit Sinha, for the respondents.
8. It is not in dispute that there exist three separate sub- cadres in the municipal corporation namely GDMO, Specialist and Public Health and that the applicant was appointed as GDMO in the year 2002. The applicant made an effort to enter the Specialist sub-cadre in the year 2008. However, as it was on contractual basis, he did not accept the same and continued in the GDMO sub-cadre. By now, he moved to a high level of NFSG.
9. For reasons best known to him, the applicant did not enclose copy of the representation dated 17.09.2008 made by him. However, from a reading of the other representations 4 OA 1473/2012 which are part of record, it is noted that the applicant wanted to migrate to the Specialist sub-cadre. In his representation dated 11.08.2006, the applicant made a request as under:
"I may either be given deputation to the post of specialist or I may be given ad hoc promotion pending promotion by transfer/direct recruitment through UPSC against this selection with lien on my regular post or deputation to the post of specialist through this selection. It shall not affect the services as there is no shortage in the medical officer subcadre because MCD has only recently recruited medical officers on contract basis."
10. The respondents expressed their inability to accede to the request through order dated 19.11.2008, which reads as under:
"Reference to letter dated 17.09.2008 regarding engagement for the post of Non-Teaching Specialist (Opthalmology) Dr. Jitender Bali, GDMO is hereby informed that his request has not been acceded to as per rule."
11. The prayer in the OA, as it stands now, reads as under:
"(i) Quash the order dated 23.02.2012, thereby directing the respondent no.1 & 2 to initiate necessary exercise/steps enabling the applicant to migrate from General Duty Medical Officer Sub cadre to Clinical Specialist sub cadre at Senior specialist Gr-II in PB3, with pay protection.
(ii) Any other or further order or orders, relief or reliefs which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice, may also be passed in favour of the petitioner."
From this, it becomes clear that the applicant wants to migrate from GDMO sub-cadre to Clinical Specialist sub- cadre in Grade-II, PB-3.
5OA 1473/2012
12. Even from the documents filed by the applicant, the hierarchy in the 3 sub-cadres of the health department is as under:
"GDMO (MBBS) SPECIALIST (MD/MS) PUBLIC HEALTH ↓ ↓ The pay PB3-GP-5,400 PB3-GP-6,600 structure is same (GDMO II) (Jr. Spl.) as of Specialist ↓ ↓ sub cadre, 4 yrs of service 2 yrs of service however, the 100% PB3-GP-6,600 PB3-GP-7,600 recruitment is there (SMO) (Sr. Spl. Gr. II) from departmental ↓ ↓ candidates"
9 yrs of service 6 yrs of service PB3-GP-7,600 PB4-GP-8,700 (CMO) (Sr. Spl.) (SFG) ↓ ↓ 13 yrs of service 13 yrs of service PB4-GP-8,700 PB4-GP-10,000 (CMO (NFSG) (SAG) ↓ ↓ 20 yrs of service PB4-GP-10,000 (SAG)
13. Separate Recruitment Rules (RRs) exist for different sub-cadres. Within the Specialist sub-cadre, there are posts of Specialist Grade-II and Junior Specialist. The method of appointment and pay scales for them are different. Taking note of the fact that the method of recruitment and promotions in the sub-cadre of GDMOs, on the one hand and the Specialist, on the other is different, the OA was dismissed earlier. In para 9 and 10, the Tribunal observed as under:
"9. It has already been mentioned that in the Health Department of the Corporation there are three separate channels and the applicant joined the first one. Here itself, it needs to be mentioned that eligibility to join the GDMO category is Undergraduate Degree in Medicine, whereas, the eligibility to join the Specialist category, even at the entry point is Post graduation in Medicine. For both the channels, there are forward movements in the form of Grades as well as superior posts such as senior category etc. The applicant intended to join the Specialist stream. One attempt was, 6 OA 1473/2012 when he responded to notification dated November, 2007. However, it had not fructified, as the appointment was to be on the contractual basis and his request to keep his lien on his post was not acceded to. Having given up that effort, the applicant wanted to enter the Specialist cadre through migration. The concept of migration is a big vague vis-à-vis direct recruitment.
10. The method of appointment to the Specialist category at various levels is partly through direct recruitment and partly through promotion. The only method the applicant can choose was to get selected in the direct recruitment. He cannot seek promotion since the post held by him is not a feeder category, in the other sub-cadre."
That was obviously with reference to rules that govern appointment to the Specialist category.
14. Before the High Court, it was pleaded as though the Tribunal did not refer to the Recruitment Rules (RRs) at all. What is more astonishing is that the applicant represented before the High Court that the RRs for Specialist category provide for recruitment by transfer to the extent of 50%, failing which by direct recruitment and the remaining 50% to be filled exclusively by direct recruitment. It was also mentioned that the rule provided for transfer from the sub- cadre of GDMO Grade-I, failing which by Grade-II. Relevant portion of the order of the High Court reads as under:
"Learned counsel for the petitioner submits that the Central Administrative Tribunal (CAT) has proceeded on a factually wrong premise namely, that there are no recruitment rules, which permit the GDMOs to seek transfer to the specialist cadre. In this regard, attention is drawn by learned counsel for the petitioner to Annexure A5 (colly) starting at page 63 of the record. It is pointed out by learned counsel that in the existing rules in respect of junior specialist, the manner of recruitment is 50% by transfer, failing which by direct recruitment. The remaining 50% posts of junior specialist in the existing rules are to be filled by direct recruitment. The said rules also provide that the transfer has to take place from amongst GDMOs Grade-I (General Duty), failing which by the GDMOs Grade-II (General Duty) with five years regular duty in the 7 OA 1473/2012 grade. Learned counsel submits that the Tribunal has not adverted to the said recruitment rules while passing the impugned order. A perusal of the impugned order shows that there is no reference to the said recruitment rules and the submission of the petitioner has not been adverted to.‟‟
15. What the applicant, however, has done is that he cited the rule pertaining to Junior Specialist and not the Specialist Grade-II. Therefore, we feel it appropriate to reproduce the entire rule:
Sl. Column Existing provisions notification no.F.9/38/82-L.S.G./5485 Proposed Remarks No. dated 06.08.1982 provisions 1 2 3 3A 4 5
1. Name of the post Specialist Grade -II Junior Specialist Specialist Grade-II Change as per (Junior Scale) CHS pattern
2. No. of posts 47(1982) subject to variation 65(1982) subject to 230 (2007) subject Change as per dependent on workload variation dependent to variation present on workload depending on sanctioned workload strength
3. Classification Category 'A' Category 'A' Category 'A' No change
4. Scale of pay Rs.1100-50-1500-EB-60-1800 Rs.1100-1600 Rs.10000-325- Change in 15200 accordance with the provisions of 5th Pay Commission
5. Method of selection Selection - Non selection Change as per Whether selection- DOPT's cum-seniority or instructions selection by merits
6. Age limit for direct Not exceeding 45 years (Relaxable Not exceeding 45 Not exceeding 45 Change: As per rectts. by 5 years for Govt. Servants and years (Relaxable by 5 years (Relaxable DOPT's employees of the Municipal years for Govt. for Govt. Servants guidelines issued Corporation of Delhi) Servants and upto 5 years in on the subject.
employees of the accordance with the
Note: Municipal instructions or
Corporation of Delhi). orders issued by the
The crucial date for determining the Central
age limit shall be the closing date for Note: Government.
receipt of applications from
candidates in India (other than those The crucial date for
in Andaman & Nicobar Islands and dertermining the age
Lakshadweep). limit shall be the
closing date for
receipt of applications
from candidates in
India (other than those
in Andaman &
Nicobar Islands and
Lakshadweep).
7. Whether benefit of No No No No change
added years of service
admissible.
8. Educational and other Essential:- Essential:- Essential:- No change
qualifications (i)A recognised medical(i)A recognised (i)A recognised
required for direct qualification included in the First or
medical qualifications medical qualification
recruits. Second Schedule or Part-II of the included in the First or included in the First
Third Schedule (other thanSecond Schedule or or Second Schedule
licentiate qualifications) to the Part-II of the Third or Part-II of the Third
Indian Medical Council Act, 1956. Schedule (other than Schedule (other than
Holders of the educationallicentiate licentiate
qualifications included in Part-II ofqualifications) to the qualifications )
the Third Schedule should also Indian Medical appended to the
fulfil the conditions stipulated in Council Act, 1956. Indian Medical
Sub Section (3) of Section 13 of the Holders of the Council Act, 1956.
Indian Medical Council Act, 1956: educational Holders of the
qualifications included educational
(ii)Post-graduate Degree/ Diploma in Part-II of the Third qualifications
in the concerned speciality Schedule should also included in Part-II of
8
OA 1473/2012
mentioned in Annexure-II or fulfil the conditions the Third Schedule
equivalent: stipulated in Sub should also fulfil the
Section (3) of Section conditions stipulated
(iii)3 years work in a responsible 13 of the Indian in Sub Section (3) of
position connected with the Medical Council Act, Section 13 of the
speciality in the case of Post- 1956: Indian Medical
graduate Degree holders and 5 years (ii)Post-graduate Council Act, 1956;
work in a responsible position Degree/Diploma in the connected with the specialists in concerned speciality (ii)Post- graduate the case of Post-graduate diploma mentioned in Degree / Diploma in Holders. Annexure-II or the concerned equivalent: speciality mentioned Notes in Section 'A' or
(iii)2 years work in a Section 'B' in
(i) (Qualifications are relaxable at responsible position Schedule -VI or the discretion of the UPSC in case of connected with the equivalent.
candidates otherwise well qualified. speciality in the case of Post-graduate (iii)3 years
(ii) The qualification(s) regarding Degree holders and 4 experience in the experience is/are relaxable at the years work in a concerned specialist discretion of the UPSC in case of responsible position after obtaining the candidates belonging to the connected with the Post-graduate Degree Scheduled Castes and Scheduled specialists in the case or 5 years experience Tribes if, at any stage of selection, of Post-graduate after obtaining the the UPSC is of the opinion that diploma Holders. Post graduate sufficient number of candidates Diploma. from these communities possessing Notes the requisite experience are not Note:
likely to be available to fill up the (i)(Qualifications are vacancies reserved for them. relaxable at the For the post of discretion of the Physician (Chest and UPSC in case of Respiratory Disease) candidates otherwise 3 years experience well qualified. in Respiratory Diseases and
(ii)The qualification(s) Respiratory regarding experience Laboratories is is/are relaxable at the required.
discretion of the
UPSC in case of
candidates belonging
to the Scheduled
Castes and Scheduled
Tribes if, at any stage
of selection, the UPSC
is of the opinion that
sufficient number of
candidates from these
communities
possessing the
requisite experience
are not likely to be
available to fill up the
vacancies reserved for
them.
9. Whether age and Age : No No Not applicable Change as per
educational EQ: Yes CHS pattern
qualifications
prescribed for the
direct recruits will
apply in the case of
promotees ?
10. Period of probation, Two years Two years One year for Change as per
if any. direct recruits. DOPT's
instructions.
11. Method of (i)75% by promotion, failing (i)50% by transfer, By direct Change in
recruitment which by direct recruitment. failing which by recruitment. accordance
whether by direct (ii)25% by direct recruitment. direct recruitment. with OM
recruitment or by (ii)50% by direct No.21/14/97-
promotion or by Note:- recruitment. PC (H)/CHS-V
deputation/absorpti The promotion and direct Note:- dated 5.4.2002.
on and percent - recruitment quotas shall be Transfer and direct
age of the calculated speciality-wise. recruitment quotas
vacancies to be shall be calculated
filled by various speciality-wise
methods.
(Columns 12, 13 and 14 are not necessary for this O.A., hence they are omitted.) 9 OA 1473/2012
16. A perusal of column 11 discloses that the method of recruitment to Specialist Grade-II is 75% through promotion and 25% by direct recruitment. The promotion is from Junior Specialist with two years regular service. In contrast, the appointment to the post of Junior Specialist is 50% by transfer failing which by direct recruitment and 50% by direct recruitment. The transfer can be from GDMO Grade-I failing which from GDMO Grade-II.
17. We have already extracted the prayer. The applicant wants migration to „Specialist Grade-II‟ and not „Junior Specialist‟. During the course of hearing also, we sought clarification from the learned counsel for the applicant as to whether his client wants migration to the post of Junior Specialist or Specialist sub-cadre. He insisted that the prayer of the applicant is only for migration to „Specialist Grade-II‟, that too in the senior scale with pay protection.
18. When this is the prayer and endeavour of the applicant, it is just not understandable as to how he can rely upon the rule relating to Junior Specialist.
19. We are compelled to observe that on account of misrepresentation and misstatement of facts by the applicant, the precious time of the Hon‟ble High Court and the Tribunal was spent unproductively. We, therefore, dismiss the O.A. by 10 OA 1473/2012 imposing a cost of Rs.10,000/- (Rupees ten thousand only), which shall be payable to the CAT Bar Library, within 4 weeks from today.
(Mohd. Jamshed) (Justice L. Narasimha Reddy) Member (A) Chairman /dkm/