Central Administrative Tribunal - Delhi
Dr. Rani Gera vs Union Of India Through on 12 April, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1651/2012 Order reserved on 08.04.2013 Order pronounced on 12.04.2013 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Dr. Rani Gera W/o Shri Prem Kumar Gera D-II, 330 Pandara Road, New Delhi. Applicant By Advocate: Shri Pratap Shankar. Versus 1. Union of India through Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi-110 001. 2. Principal Secretary, Department of Health & Family Welfare, Govt. of NCT, Delhi, 9th Floor, Delhi Secretariat, I.P. Estate, Delhi-110 002. ..Respondents (By Advocate: Shri V.S.R. Krishna) O R D E R
Honble Sh. G. George Paracken:
Applicant is aggrieved by the Annexure A-1 Office Memorandum dated 16.1.2012 rejecting her request to count her past service for fixing her seniority on her absorption in CHS followed by deputation on the ground that she was not a party on OA Nos. 1436/2007, 1437/2007 and 1438/2007 filed by similarly placed persons, namely, Dr. (Mrs.) Snehal Bhave, Dr. Pankaj Agnihotri and Dr. (Mrs.) Sandhya Ranjan respectively.
2. The brief background of the case is that the Applicant was initially appointed as a Class-II Medical Officer in the Leprosy Control Unit of Government of Gujarat at Porbandar in the scale of pay of Rs.2200-4000 vide order dated 17.08.1987. Thereafter, she was appointed as Pediatrician Grade-II, Class-I on ad hoc basis in the scale of pay of Rs.3000-4500 under the same Government vide order dated 15.4.1988. Later on, she was regularized in the said post vide order of the Government of Gujarat dated 31.5.1989. The aforesaid ad hoc service of the Applicant was also regularized subsequently vide order dated 06.06.1995, although she was appointed as a Specialist Grade-II of the Non-Teaching Sub-Cadre of Central Health Services (CHS for short) in the Government of NCT of Delhi on deputation vide letter dated 25.08.1995 of the Ministry of Health. There she was awarded the scale of pay of Rs.4500-5700 with effect from 26.4.1995 with a basic pay of Rs.4650/- as on 01.04.1996 and Rs.4800/- as on 01.01.1997. After the acceptance of the recommendations of the Vth Pay Commission, the Government of Gujarat refixed Applicants pay with effect from 01.04.1996, 01.04.1997 and 01.04.1998 at Rs.14,700/-, Rs.15,100/- and Rs.15,500/- respectively. Subsequently, vide Annexure P-2 letter dated 19.09.2001, Ministry of Health and Family Welfare, Government of India invited applications from eligible officers whose spouses are working in Central Government or State Government or Union Territories and have been transferred or working at a place where CHS posts exist to fill up posts in CHS for deputation/absorption basis. According to the said letter, Ministry of Health and Family Welfare had amended the Recruitment Rules for the CHS to permit appointment to the cadre by transfer on deputation/absorption from amongst the officers holding analogous posts under Central Government (including Ministry of Railways and Defence) or State Government or Union Territories and by short term contract from the suitable officers holding analogous posts under the statutory bodies, autonomous bodies etc. The officers selected were given the option to retain their grade pay in the pay scale applicable plus deputation allowance or draw their pay in the appropriate grades in CHS. On the basis of the said letter and on the recommendation of the Union Public Service Commission, the Central Government gave offer of absorption to the Applicant vide order dated 29.09.2003 and she accepted the same, vide her Annexure P-3 letter dated 30.09.2003. Subsequently, vide Annexure P-4 letter dated 28.01.2004, Ministry of Health and Family Welfare appointed her as Specialist Grade-II (Paediatrics) (Senior Scale) in the pay scale of Rs.12000-16500 in the non-Teaching sub-cadre of CHS on regular basis w.e.f. 30.09.2003. Again the said Ministry vide its Annexure P-5 Office Order dated 14.11.2006 absorbed her in CHS w.e.f. 30.09.2003 and fixed her seniority in the CHS in the Civil List of Specialist Grade-II in the Speciality of Pediatrics with effect from 26.4.1994, above one Dr. Sanjay Chaudhary. However, it has been stated in the same order that for the purpose of promotion to next grade in Non-Teaching Specialist Sub-Cadre of CHS, the required qualifying service in respect of the officer will be counted from the date of her absorption.
3. Later on, some of the similarly placed deputationists, namely, Dr. Snehal Bhave (supra), Dr. Sandhya Ranjan (supra) and Dr. Pankaj Agnihotri (supra) filed OA Nos. 1436/2007 (supra), 1437/2007 (supra) and 1438/2007 (supra) respectively before this Tribunal. They were also aggrieved by the similar condition in their respective orders of absorption that for purpose of promotion to the next grade, the required qualifying service will be counted from their date of absorption under the CHS. Taking note of the common question involved in the aforesaid Original Applications, this Tribunal, vide order dated 22.04.2009, held that as per the interpretation of the Supreme Court in the case of SI Roop Lal Vs. Lt. Governor 2000 (1) SCC 644, the deputationists are to be given seniority taking into full account the equivalent service rendered by them in the parent department. Further, this Tribunal held that 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. As far as the Applicants in the aforesaid OAs were concerned, since they were deputationists who got absorbed later were held to be entitled to claim weightage on the basis of seniority that is carried by them. The relevant part of the said order is as under:-
24. Resultantly and as a fall out of our discussions hereinabove made, we answer the reference as following:
(1) 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.
(2) 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;
(3) 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.
4. The Applicant, on receipt of the aforesaid order of this Tribunal dated 22.04.2009 made a representation to the Respondent No.1-Ministry of Health and Family Welfare on 04.06.2009 to ante date her promotion. However, the said Respondents, vide its Annexure P-7 OM dated 05.05.2010 informed her that the Government has decided to challenge the said order before the High Court.
5. The Respondents of course challenged the aforesaid order dated 22.04.2009 in OA No.1436/2007 and connected cases before the Honble High Court of Delhi vide Writ Petition (C ) Nos.3485/2010 and connected petitions. But after detailed discussion of the issue involved in the case, the High Court vide its judgment dated 22.07.2010 dismissed those Writ Petitions. While doing so, the High Court observed that where one of the source of appointment in a cadre in the transferred department is deputation, no employee in said cadre can have any legitimate expectation of non-disturbance of his seniority and promotional prospects by deputationists, for they are well cognizant of the fact that a deputationist can be appointed in the cadre at any time and that said appointment would have an effect on their seniority and promotional prospects.
6. Again, after the aforesaid judgment of the High Court, the Applicant again made a representation dated 30.07.2010 followed by reminder representation dated 06.10.2010. She requested the Respondents to extend the benefits of the aforesaid order of the High Court to her also as she was a similarly placed person. She has also pointed out that the Respondents have already implemented the aforesaid order of this Tribunal as upheld by the Honble High Court in the case of those Applicants, vide its order dated 31.08.2010. It is in response to the aforesaid representation that the Respondents have issued the impugned order dated 16.01.2012 rejecting her request on the ground that she was not a party in the aforesaid OAs/Writ Petitions.
7. Respondents have filed their reply. Learned counsel for the Respondents, Shri V.S.R. Krishna has submitted that though Applicant is similarly placed as the Applicants in OA Nos.1436/2007 (supra) and connected cases, she was not a party therein and, therefore, she cannot seek any extension of the benefits granted in the said order in her case. He has, therefore, argued that her case is hit by limitation.
8. On facts, there is no dispute. The Respondents have stated that the Applicant was an officer of the Government of Gujarat and she was appointed in CHS as a Specialist Grade-II on deputation basis with effect from 01.09.1995. She was absorbed there with effect from 30.09.2003. However, according to them, as per the DOP&Ts OM dated 27.3.2001, in the case of a person who is initially taken on deputation and absorbed later, his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation, or the date from which he has been appointed on regular basis to same or equivalent grade in his parent department, whichever is earlier. The fixation of seniority of an absorbee in accordance with the above principle will not, however, affect any regular promotions to the next higher grade made prior to the date of such absorption. In other words, it will be operative only in filling up of vacancies in higher grade taking place after such absorption. Further, according to them, the DOP&T in a similar matter of GDMO doctors of CHS stated that seniority fixed by protecting past service does not make the officer eligible for promotion to the next higher grade from a back date, i.e., prior to the date of absorption or from the date of absorption. The absorbed doctors are required to complete the prescribed qualifying service in the feeder grade and such qualifying service is to be counted only from the date of absorption. Accordingly, the Ministry of Health and Family Welfare vide its order dated 14.11.2006 fixed the seniority of the Applicant with effect from 26.04.1994, i.e. with effect from the date she was holding the same or equivalent post in her parent department, albeit the date of absorption in the CHS being 30.09.2003. However, it was clearly mentioned in that order that for the purpose of promotion to next grade of Non-Teaching Specialist sub-cadre of CHS the required qualifying service will be counted from the date of her absorption in CHS.
9. We have heard the learned counsel for the Applicant, Shri Pratap Shankar and the learned counsel for the Respondents, Shri V.S.R. Krishna. The prayer of the Applicant in this OA is to direct Respondent No.1- Ministry of Health and Family Welfare to give parity for counting her past service for fixing seniority of deputationists who were absorbed in CHS cadre in terms of the order dated 22.04.2009 passed in OA No. 1436/2007 (supra) and connected cases (supra). The examination of the aforesaid order would reveal that it was allowed on the basis of the judgment of the Apex Court in SI Roop Lals case (Supra) wherein it has been held that that deputationists are to be given seniority taking into account full service rendered by them in the parent department. The said order has also recognized the fact that on such absorption a transferred employee may infringe rights of existing personnel or may affect their career prospects but since the rules provides for the same, it has to be obeyed. It was for the said reason the Tribunal held that Applicants therein who were deputationists who got absorbed later were held to be entitled to claim weightage on the basis of seniority that was being carried by them. Upholding the said order of this Tribunal, the High Court has also vide its judgment dated 22.07.2010 held that where one of the source of appointment in a cadre in the transferred department is deputation, no employee in the said cadre can have any legitimate expectation of non-disturbance of his seniority and promotional prospects by deputationists, for they are well cognizant of the fact that a deputationist can be appointed in the cadre at any time and that said appointment would have an effect on their seniority and promotional prospects. In our considered view, both the aforesaid findings of this Tribunal and High Court cannot be held to be Applicant specific. In fact this Tribunal was holding that the principles as laid down by SI Roop Lals case (supra) is to be applied to all the persons irrespective of their request for doing so. The law laid down by the Apex Court is applicable to all the persons concerned. Moreover, when the Applicant made here representation dated 04.06.2009 to extend the benefits of the order dated 22.04.2009 in her case also, the response from the Respondents was that the Government was going to challenge the aforesaid order before the High Court. We, therefore, do not find any merit in the contention of the Respondents that since the Applicant herein was not a party to the aforesaid case, she cannot get the benefit given by this Tribunal as well as by the High Court. For the same reason, we also do not find any merit in the contention of the Respondents that this OA is hit by limitation. As held by the Apex Court in K.C. Sharma & Others Vs. U.O.I. & Others JT 1997 (7) SC 58 and K. Ajit Babu and Others Vs. U.O.I. and Others JT 1997 (7) SC 24 the Government being a model employer shall not discriminate with similarly placed persons and they should not insist that all persons should approach the court to get the benefits.
10. In view of the above position, this OA is allowed and the impugned order dated 16.01.2012 is quashed and set aside. We, therefore, direct Respondent No.1 to give parity in grant of benefits for counting the Applicants past service for fixing seniority of deputationists who were absorbed in CHS in terms of the order dated 22.04.2009 passed in OA No. 1436/2007 (supra) and other connected matters. We also make it clear that the Applicant will be entitled to all the consequential benefits which have been given to the Applicants in the aforesaid order.
11. The Respondents shall comply with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order.
12. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh