Central Administrative Tribunal - Delhi
Dr. O. P. Murty vs All India Institute Of Medical Sciences ... on 7 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.863 of 2010 Misc. Application No.1780/2010 This the 7th day of September, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI M. L. CHAUHAN, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Dr. O. P. Murty, Associate Professor, Department of Forensic Science and Toxicology, All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110049 R/o House No.412, Hawa Singh Block, Asiad Complex, New Delhi-110049. Applicant ( By Shri Sewa Ram with Shri R. K. Bachchan, Advocate ) M.A. No.1780/2010 Dr. Sudhir Gupta, Associate Professor, Forensic Medicine, AIIMS, Ansari Nagar, New Delhi. Applicant/ Intervener ( By Shri Amrendra Kumar, Advocate ) Versus 1. All India Institute of Medical Sciences (AIIMS), Ansari Nagar, New Delhi-110049 through its Director. 2. Union of India through Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi-110001. 3. Prof. Dr. T. D. Dogra, Head of Department, Department of Forensic Science and Toxicology, All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110049. Respondents ( By Shri A. S. Chandiok, Addl. Solicitor General and with him Shri S. M. Arif, Shri Bhagat Singh and Shri Yashwardhan, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. O. P. Murty, who joined services of All India Institute of Medical Sciences (hereinafter to be referred as AIIMS), the first respondent herein, as Assistant Professor in the year 1992 and is presently working as Associate Professor in the Department of Forensic Science and Toxicology, the applicant herein, takes serious exception to the memorandum dated 30.12.2008 (Annexure A-1) enhancing the age of superannuation of Medical Teaching Faculty of AIIMS from 62 to 65 years, as also the gazette notification dated 2.12.2009 (Annexure A-2) giving effect to such enhancement in age of superannuation retrospectively from 22.7.2008, when the Cabinet had approved giving benefit of enhancement of superannuation age from 62 to 65 years to the Medical Teaching Faculty under CHS and other institutes of national importance. In consequence of setting aside the memorandum and gazette notification as mentioned above, the applicant would seek removal of Prof. T. D. Dogra, Head of Department (HoD), Department of Forensic Science and Toxicology, AIIMS, the 3rd respondent arrayed in the Original Application, and to hold his continuation in service after he attained the age of 62 years as illegal. In consequence of removal of the 3rd respondent, as mentioned above, the applicant seeks a direction to be issued to the 1st respondent Institute to appoint him on the post of Professor/HoD in the said Department held by the 3rd respondent, with effect from 1.8.2009. The grievance of the applicant primarily lies in retrospective amendment brought about in regulation 30(2) of the All India Institute of Medical Sciences Regulations, 1999 (hereinafter to be referred as the Regulations of 1999), by virtue of which the 3rd respondent is to continue up to the age of 65 years. Concededly, the Cabinet took the decision to enhance the age of superannuation from 62 to 65 years on 22.7.2008, but amendment as regards the same in the concerned Regulations could be brought about only on 2.12.2009, even though retrospectively from 22.7.2008. If this Tribunal may give a declaration that there was no power or jurisdiction with the 1st respondent Institute to bring about retrospective amendment, it is the case of the applicant that the 3rd respondent on attaining the age of 62 years on 31.7.2009, would stand automatically retired, thus paving way for him to occupy the post presently held by the said respondent.
2. This matter came up for hearing before a Division Bench of this Tribunal on 1.12.2010 when arguments were heard and orders reserved. On 7.12.2010, we recorded a detailed order which would reflect the prelude to the controversy in issue in brevity. After doing so, we noted that if the plea of the applicant is accepted it would result into eleven seniormost faculty members to quit the Institute. Considering the great ramifications and the public loss that may occasion if the directions as asked for by the applicant were to be issued, we ordered the matter to be listed again on 23.12.2010, when parties were to come prepared on the points mentioned in our order aforesaid. We bodily lift our order dated 7.12.2010 to reproduce the same, thus:
Dr. Balram Airan, Prof. CTVS Department, All India Institute of Medical Sciences (hereinafter to be referred as AIIMS) filed Original Application bearing OA No.1080/2009, which was decided by us on 24.9.2009. Dr. Airan had challenged retention in service of Dr. A. Sampath Kumar, Chief of CT Centre and Head of Department of CTVS Department, AIIMS, the 2nd respondent arrayed in the said OA, beyond 30.4.2008 when he had attained the age of superannuation. On the day when the 2nd respondent was to retire, he was given extension which was being extended from time to time. The prayer of the applicant in the case aforesaid was to set aside the memorandum dated 30.4.2008 and other four memoranda, the last being dated 24.3.2009 giving extension to Dr. Sampath Kumar, and in consequence of setting aside the same, to order his removal from the employment of AIIMS. One of the prayers of the applicant in the OA aforesaid was also to issue direction to the respondent AIIMS to immediately issue requisite notification in the official gazette in terms of Section 29 of the AIIMS Act for notifying legally permissible amendment to Regulation 30(2) of the AIIMS Regulations for effecting increase in the age of superannuation for faculty members from 62 to 65 years. The primary plea raised by the applicant in support of his OA was that retention of 2nd respondent in service beyond the age of superannuation was illegal, and that without approval of DOP&T, the Cabinet Committee and notification in the official gazette in terms of Section 29, it was neither permissible nor legal for AIIMS to grant extension to the respondent on his superannuation on 30.4.2008. It was also the plea of the applicant that the 2nd respondent alone was given the favour of extension, whereas others equally situate were denied the same. It was conceded position in the case aforesaid as also in the present one that the Cabinet Committee had met on 5.6.2008 for enhancement of age of superannuation of doctors in Government employment including the faculty members of AIIMS and PGI, Chandigarh, and vide Government of India letter dated 22.7.2008, AIIMS, PGI Chandigarh and others were informed of the approval of the Government for increasing the age of superannuation from 62 to 65 years. Necessary action in this regard was to be taken by respective authorities including AIIMS and PGI Chandigarh for implementing the said approval. The 2nd respondent had attained the age of superannuation on 30.4.2008, far prior to the approval of the Cabinet Committee as regards increase in superannuation age. The plea raised by Dr. Airan was accepted. As regards the direction to be issued to the respondent AIIMS for bringing about amendment in the relevant Regulations, this Tribunal observed as follows:
It is admitted position and the relevant provisions as referred to above as also the Regulations of 1958 and 1999 would reveal that it is the respondent Institute which has to, after approval of increase in age, bring about amendment in Regulation 30(2). It is only a ministerial act, which, we do not know why, has not been done. The respondent Institute would of course state that there is some confusion, but the same does not appear to be real. Be that as it may, if there is indeed confusion, it is for the Institute to set it at rest. Surely, for lack of requisite amendment in Regulation 30(2), an uncertainty is prevailing causing concern to all. We thus direct the respondent Institute to do the needful, i.e., to bring about, by a notification, amendment in Regulation 30(2) in consonance with the order dated 22.7.2008, as expeditiously as possible and preferably within a period of one month from today.
2. AIIMS, in view of the Cabinet decision dated 22.7.2008, vide memorandum dated 30.12.2008, passed an order which reads as follows:
In pursuance of the Office Memorandum No.A.12034/2/2007-CHS.V dated 22.07.2008, of the Government of India, Ministry of Health & Family Welfare, new Delhi and in accordance with the decisions taken by the Governing Body in its meeting held on 13.08.2008 (Item No.09) and Institute Body in its meeting held on 18.08.2008 (Item No.06), the age of superannuation of the medical Teaching Faculty at All India Institute of medical sciences is hereby enhanced from 62 years to 65 years including those who are on extension in service, with immediate effect. The clause in the memorandum reproduced above including those who are on extension in service was held to be illegal. Pursuant to decision referred to above, a notification came to be published in the official gazette on 2.12.2009, in exercise of powers conferred by sub-section (1) of Section 29 of the AIIMS Act, 1956, which was with the previous approval of the Central Government, whereby following Regulations further to amend the AIIMS Regulations, 1999, came to be made:
(1) These Regulations may be called the All India Institute of medical Sciences (Amendment) Regulations, 2009.
(2) They shall be deemed to have come into force with effect from 22-7-2008.
2. In the All India Institute of medical Sciences Regulations, 1999, in Regulation 30 for sub-regulation (2) along with its proviso, shall be read as under :-
(2) The age of superannuation of a member of the teaching faculty of the Institute shall be 65 years:
Provided that this provision shall not apply in the case of a person who is on extension in service.
3. The case of the applicant in the present OA is that Prof. Dr. T. D. Dogra, Head of Department, Department of Forensic Science and Toxicology, AIIMS, was to reach the age of 62 years on 31.7.2009, and that even though the Cabinet Committee may have taken a decision to enhance the age of superannuation of the teaching faculty on 22.7.2008, but insofar as AIIMS is concerned, its Governing Body took the said decision on 13.8.2008, whereas the Institute Body in its meeting held on 18.8.2008 decided to increase the age of superannuation of the medical teaching faculty of the Institute from 62 to 65 years, and the gazette notification as regards amendment in the Regulations came still later on 2.12.2009, even though retrospectively from 22.7.2008, and inasmuch as, the 3rd respondent was to superannuate before the notification aforesaid came about, he ought to have been retired on attaining the age of 62 years on 31.7.2009, and his continuation after that in AIIMS would be illegal. The applicant also takes exception to the 3rd respondent continuing as HoD, which, in any case, it is pleaded and urged, would be illegal.
4. In the reply filed on behalf of the respondents, the cause of the applicant has been contested. By and large, the pleadings made in the reply and the arguments addressed before us are primarily that the amended Regulations would be deemed to have come into force with effect from 22.7.2008, in consonance with the decision of the Central Government as also directed by this Tribunal in its order dated 24.9.2009 in the matter of Dr. Balram Airan. It is pleaded that immediately on receipt of the order passed by this Tribunal, the matter was referred to President, AIIMS on 29.9.2009, and a similar communication of even date was also sent to the Ministry of health. President, AIIMS vide communication dated 30.9.2009 decided to implement the order of the Tribunal in respect of Dr. Sampath Kumar/Dr. Balram Airan, and also decided to take legal opinion from the learned Attorney General on other issues. Thereafter the matter was taken up for obtaining legal opinion on the issue involved, and on reference the opinion was tendered by learned Attorney General on the issues involved and arising out of order dated 24.9.2009 passed by the Tribunal. Vide letter dated 30.10.2009 the Ministry of health desired the AIIMS to take steps to amend the statutory Regulations. AIIMS vide communication dated 4.11.2009 sent the draft notification as per opinion of the learned Attorney General for vetting and issuance to the Ministry of Health. However, the Ministry vide communication dated 18.11.2009 sent fresh proposed notification to AIIMS keeping in view the observations/directions of this Tribunal in its order dated 24.9.2009, and made the same effective from 22.7.2008. By and large thus, the retrospective amendment of the Regulations from 22.7.2008 is said to be for the reason that this Tribunal had so directed.
5. The learned counsel representing the applicant would vehemently contend that there is no provision in the statute for retrospective amendment. It is urged that regulations cannot be made with retrospective effect unless such power is delegated by the legislature expressly or by necessary implication, and that in the present case no power is vested with the respondent Institute to retrospectively amend its Regulations.
6. Even though, in the reply it has been mentioned that the applicant has not arrayed all such persons who may be adversely affected if the plea raised by the applicant is accepted, but it is not mentioned as to how many persons would be so affected. During the course of arguments, we are informed that eleven members of the faculty would be adversely affected. It is presumed that all such eleven persons would be senior faculty members. A piquant situation arises in this case. If the plea of the applicant is to be accepted, number of senior teaching faculty members may have to quit.
7. The background of increase in age from 62 to 65 years may need a reference. Government of India was faced with acute shortage of senior faculty all over the country in general and also for implementing the enhancement of seats for implementation for the OBC reservation, and as such a proposal was moved by the Government for enhancing the age of superannuation of senior faculty members not only in the health sector, but elsewhere as well. In wake of the above position, the Government sought response of the respondent Institute vide communication dated 8.3.2007, which in turn, vide its communication dated 20.3.2007 responded and recommended for enhancement of the age of superannuation of faculty members from 62 to 65 years. Keeping in view the acute shortage as also the process of implementation of the OBC reservation, the Ministry of Health moved a proposal to the Union Cabinet for raising the age of superannuation from 62 to 65 years not only of the Central Health Services cadre, but also of AIIMS New Delhi, PGI Chandigarh, NEIGRIHMS Shillong, RIMS, LGBRIMH, NIMHANS and other similar institutions. It was indicated that the primary reason for shortage of teaching faculty in the field of medicine is also due to spurt of private medical colleges which attract the retired faculty where they get higher age of retirement and pay packages. It was also indicated that the strength of the medical faculty available for the Central Government institutions is getting depleted continuously. This proposal was taken up by the Union Cabinet on 5.6.2008 and after due deliberations, the same was approved. A comprehensive proposal was sent by the Health Ministry vide communication dated 22.7.2008 for implementation of the decision of the Cabinet. Under these circumstances, the matter was placed before the Governing Body of AIIMS on 13.8.2008, which also approved the proposal including amendment in the Regulations. The decision of the Governing Body was ratified by the Institute Body on 18.8.2008 and age of superannuation was enhanced from 62 to 65 years including of those on extension in service, vide memorandum dated 30.12.2008. What clearly emerges from the background culminating into increase in age of superannuation of the faculty members of the respondent Institute and others is that there was acute shortage of senior faculty members. It is with the object of augmenting and strengthening the cadre of senior faculty members in the prestigious institutions of national importance, like, AIIMS, PGI Chandigarh etc., that by a conscious decision the Cabinet approved increase in age of superannuation of faculty members from 62 to 65 years. If the plea raised by the applicant is accepted, it will result into exodus of senior most faculty members of AIIMS. The situation, as we are given to understand, is already grim; number of doctors have put in their papers for variety of reasons, which need not be mentioned. On one hand, the plea raised by the applicant is pure and simple legal, which, as mentioned above, is that there cannot be any retrospective amendment in the Regulations for which no power is vested with the respondent Institute, whereas, on the other hand, any directions issued by this Tribunal may result in a great public loss. A serious question that arises is that in the circumstances as mentioned above, when it may be a case of benefit to an individual, and that too based on technicalities, wherein primarily the respondent Institute is to be blamed for remaining remiss in issuing the requisite notification amending its Regulations, and where there is going to be a public loss of manifold dimensions, is it necessary for the court to issue a writ, order or direction? It has been a matter of debate since long that issuance of writ, order or directions is the prerogative of the court, particularly in writ jurisdiction, and it is permissible in a given fact situation not to interfere even where there may be some infringement of law. There has also been a school of thought that once it is a clear case of violation of law, the court should not be bothered about the consequences.
8. Arguments in this case were heard on 1.12.2010 when judgment was reserved. No arguments were addressed by the learned counsel for parties on the issue as mentioned above. It would not be appropriate for us to embark upon discussion on the issue as mentioned above without putting it to the learned counsel representing the parties. We have expressed absolutely no opinion on the issue as mentioned above as yet. Surely, such an opinion shall be formed after hearing the learned counsel for parties.
9. List the matter again on 23.12.2010. Copy of this order be given to the learned counsel for parties forthwith who may be prepared on the point by the next hearing. In a case as the present one, result of which may have such consequences as may be of great ramifications, we would expect the learned Additional Solicitor General to assist this Tribunal. The matter once again came up before a Division Bench on 7.4.2011 when arguments were heard and judgment reserved. Vide detailed order 28.4.2011 another question that would arise in the case as regards grievance of the applicant in making the amendment in the Regulations retrospectively, came to be framed by us. It prima facie appeared that the applicant may have no grievance only because the AIIMS had remained remiss or had been careless in issuing the notification amending the concerned Regulations immediately after approval of the Cabinet on 22.7.2008. Considering the importance of the matter the case was referred to the Full Bench. We may reproduce the relevant part of the order dated 28.4.2011, Thus:
4. As mentioned above, we have already mentioned that this order be read in continuation of our order dated 7.12.2010. The same is a detailed order and specifically refers as to what ramifications the case involves. While we were pondering over the issues as mentioned in our order dated 7.12.2010, yet another aspect of equal importance of the case comes to our notice. This Tribunal, by virtue of provisions contained in Section 19 of the Act of 1985 is vested with powers and jurisdiction to redress the grievances of an aggrieved person. Prima facie, it appears to us that the grievance of an employee can be only such which may adversely affect him as regards promotion, seniority etc. If the Government may remain remiss in carrying out necessary amendment in bringing about increasing the age of retirement, for which orders issued by the competent authority are already there and because of that, those who would have enjoyed a longer tenure are to quit only because of the amendment in the regulations has not been brought about, would it be a case of grievance of an employee? It may be recalled that the only plea raised by the applicant is that even though, there may have been a Cabinet decision taken by the Government of India to increase the age of superannuation, but inasmuch as, the same was not incorporated by way of amendment in the regulations, all those who would have retired as per the original age of superannuation before amendment was made, should be ordered to quit. The amendment in the regulations has been made retrospectively from the date when the Cabinet approved the increase in the age of retirement, and it is also the case of the applicant that a subordinate legislation could not bring about the amendment retrospectively. Considering the nature and importance of the case, as also the additional points which may require consideration in this case, we order this case to be referred to a Full Bench.
5. List the matter for hearing before the Full Bench on 18th May, 2011. Copy of this order be given to the counsel representing the parties forthwith who may prepare themselves on the issues either framed in the order dated 7.12.2010 or the present one.
6. Copy of this order be also sent forthwith to the Secretary, Ministry of Law and Justice, Government of India, who would ensure presence of any of the learned ASG to assist this Tribunal. We may mention that the case has been adjourned from time to time exclusively because of non-assistance provided to us by the Government. The applicant is rightly clamouring for early disposal, as any delay in the matter may render the OA itself as infructuous. We expect, in the circumstances as mentioned above, that the Law Secretary would ensure presence of the ASG on the date mentioned above. Arguments were heard by the Full Bench on 25.5.2011 when judgment was reserved. However, the Bench had to be reconstituted as one of the Members constituting the Bench fell seriously ill and there was no hope that in near future he may be able to resume duties. For constituting another Bench, we passed the following order on 12.7.2011:
Arguments in this case were heard by a Full Bench on 25.5.2011 when judgment was reserved. The respondents were to give written arguments as well, which have not been received as yet. Meanwhile, one of the Members of the Bench [Honble Shri L. K. Joshi, Vice-Chairman (A)] had to undergo a major surgery. We were given to understand on an earlier occasion that after surgery Shri Joshi would be relieved from hospital, but the reports now being received suggest otherwise. Shri Joshi is on leave up to end of July, 2011, and it is learnt that even if he is relieved from hospital, it may not be possible for him to resume duty for some time more. In the circumstances aforesaid, finalization of this case would get delayed. In the overall circumstances of the case, it would be better to re-constitute the Full Bench and hear the arguments.
Principal Registrar will obtain order on administrative side from one of us (Chairman) immediately for constitution of the Full Bench. Arguments in the case before the newly constituted Bench concluded on 10.8.2011 when the judgment was reserved.
3. The facts as given in the OA would reveal that only a partial aspect of the AIIMS memorandum dated 30.12.2008 relating to those attained the superannuation age of 62 years even before the Government of Indias decision dated 22.7.2008, but granted extension in service by AIIMS and later granted the benefit of enhancement in superannuation age of 65 years under the said memorandum was considered by this Tribunal in case of Dr. Balram Airan & others v Akhil Bhartiya Ayurvigyan Sansthan (OA No.1080/2009 decided on 24.9.2009). It is the case of the applicant himself that the question of retrospective effect to the said memorandum was also not considered as it did not arise in view of the fact that the said memorandum was issued with prospective effect. Naturally, there could be no question of retrospective amendment to the Regulations of 1999 enhancing the age of superannuation from 62 to 65 years, as surely, by that time the notification had not been issued. Challenge in the present OA, as mentioned above, is to the memorandum dated 30.12.2008 (annexure A-1) prospectively enhancing the superannuation age of medical teaching faculty in AIIMS, primarily on the ground that this could not be done without amending regulation 30(2) of the Regulations of 1999, in view of the mandate contained under Section 29 of the AIIMS Act, as also that the gazette notification dated 2.12.2009 enhancing the age of superannuation from 62 to 65 years with retrospective effect would be illegal. Insofar as, challenge to memorandum dated 30.12.2008 is concerned, we are of the view that if notification dated 2.12.2009 is upheld, setting aside of the memorandum aforesaid would be of no meaning and consequence to the applicant. Even if the said memorandum was not to come into existence at all, the third respondent would have continued in service till such time he would have attained the age of at least 62 years. The said respondent was to attain the age of 62 years on 31.7.2009. The said respondent, in any case, would have been in service up to the said date, and if retrospective amendment in regulation 30(2) is upheld, the respondent would continue to be in service, and even if he had to quit service by 1.8.2009, on issuance of notification dated 2.12.2009, he could be called back in service. In the circumstances as mentioned above, there would be no need to examine the validity of memorandum dated 30.12.2008, which, as mentioned above, has primarily been called in question for the reason that without amending the Regulations, the same would not be effective.
4. Shri Sewa Ram, learned counsel representing the applicant, vehemently contends that the decision of the Union Cabinet taken on 5.6.2008 and communicated on 22.7.2008 could not be given retrospective operation; it could be operational only on amending the statutory provisions contained in regulation 30 and would come into being only when notification on that behalf was issued. It is urged that it is a settled proposition of law that regulations cannot be amended retrospectively, unless there is specific provision in the statute authorizing so. For the proposition of law as mentioned above, learned counsel representing the applicant would rely upon the opinion of the learned Attorney General of India. The opinion of the learned Attorney General was sought on the order dated 24.9.2009 passed by us in the case of Dr. Balram Airan. One of the questions on which the opinion was to be given by the Attorney General, reads as follows:
Whether the benefit of decision of Union Cabinet taken on 5.6.2008 and communicated to the Querist on 22.7.2008 can be given retrospective operation or would be operational only on amending the statutory provisions contained in Regulation 30 or from any other date? The answer to the question as given, reads as follows:
It is well settled that Regulations cannot be amended retrospectively but can only be amended prospectively unless there is an express provision in the statute authorizing the retrospective amendment.
(a) In Vijaylaxmi Rice Mills vs. State of AP (1976) 3 SCR 775, the Supreme Court held:
It is well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date of its issue and not from any prior date.
(b) In Mahabir Vegetable Oils (P) Ltd. vs. State of Haryana (2006) 3 SCC 620, the Supreme Court held:
It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retrospective operation, if any power in this behalf is contained in the main Act. The rule making power is a species of delegated legislation. A delegate therefore can make rules only within the four corners thereof.
42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arise by necessary and distinct implication. (See Est v Gwynne).
(c) This judgment was followed in Vice Chancellor, M.D. University vs. Jahan Singh (2007) 5 SCC 82 and it was concluded:
19. The Act does not confer any power on the Executive Council to make a regulation with retrospective effect. The purported regulations, thus, could not have been given retrospective effect or retrospective operation as it is now well settled that in absence of any provision contained in the legislative Act, a delegate cannot make a delegated legislation with retrospective effect. Though the Cabinet has taken a decision on 5th June, 2008, and this was communicated to the Querist on 22nd July, 2008, the change of the regulation can only be prospective and not retrospective since there is no power to amend the statutory provisions contained in Regulation 30 with effect from a date prior to the amendment. This opinion was given by the learned Attorney General on 31.10.2009, whereas regulation 30 of the Regulations of 1999 came to be amended on 2.12.2009. The notification dated 2.12.2009 reads as follows:
F.No.F-20-7/2007-Estt.I. In exercise of the powers conferred by sub-section (1) of Section 29 of the All India Institute of Medical Sciences Act, 1956 (25 of 1956), the All India Institute of Medical Sciences, with the previous approval of the Central Government (vide letter No. V-16020/10/2007-ME-I dated 18-11-2009), hereby makes the following regulations further to amend the All India Institute of Medical Sciences Regulations, 1999, namely:-
(1) These Regulations may be called the All India Institute of Medical Sciences (Amendment) Regulations, 2009.
(2) They shall be deemed to have come into force with effect from 22-7-2008.
2. In the All India Institute of Medical Sciences Regulations, 1999, in Regulation 30 for sub-regulation (2) along with its proviso, shall read as under:-
(2) The age of superannuation of a member of the teaching faculty of the Institute shall be 65 years:
Provided that this provision shall not apply in the case of a person who is on extension in service. The learned counsel, in addition to placing reliance upon the three judgments of the Honble Supreme Court as mentioned in the opinion of the learned Attorney General, would also rely upon Hukam Chand etc. v Union of India & others [(1972) 2 SCC 601]; State of U.P. & others v Hindustan Aluminium Corpn. & others [(1979) 3 SCC 229]; K. Kuppuswamy & another v State of T.N. & others [(1998) 8 SCC 469]; Regional Transport Officer, Chittoor & others v Associated Transport Madras (P) Ltd. & others [(1980) 4 SCC 597]; and Ajay Kumar Das v State of Orissa & others [JT 2009 (10) SC 242]. Shri A. S. Chandiok, learned ASG, on the other hand, would place reliance upon Section 25 of the All India Institute of Medical Sciences Act, 1956, and on the basis thereof would contend that the decision of the Cabinet dated 22.7.2008 is a direction to the Institute for efficient administration of the Act, and, therefore, the Cabinet decision aforesaid per se would apply and be binding upon the Institute from the date the same was issued, and there may not have been any need to even amend the Regulations in tune with the Cabinet decision dated 22.7.2008. Before we may advert to the judicial precedents on which reliance has been placed, we may refer to the relevant provisions of the Act, rules and regulations of AIIMS.
5. AIIMS is an institution of national importance, and along with other institutions, has been established and incorporated by virtue of provisions contained in the Act known as All India Institute of Medical Sciences Act, 1956. Provisions contained in Section 28 of the Act of 1956 clothe the Central Government with the power to make rules, which have to be made after consultation with the Institute, by notification in the official gazette. One of the items for which rules are to be framed would be conditions of service of, the procedure to be followed by, and the manner of filling vacancies among, members of the Institutes, as mentioned in clause (c) of sub-section (2) of Section 28. By virtue of provisions contained in sub-section (3) of the Section aforesaid, every rule made under the Section shall be laid, as soon as may be after it is made, before each House of Parliament. In view of provisions contained in Section 29, the Institute, with previous approval of the Central Government, may by notification in the official gazette make regulations consistent with the Act and the rules made thereunder to carry out the purposes of the Act, and without prejudice to the generality of this power, such regulations may provide for, among others, the tenure of office, salaries and allowances and other conditions of services of the Director and other officers and employees of the Institute including teachers appointed by the Institute. Sub-section (3) of Section 29 reads as follows:
(3) Every regulation made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if before the expiry of the sessions immediately following the sessions or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation. It is the contention of the learned counsel that the Parliament in its sovereign powers can make rules, both prospectively and retrospectively, but when it would be a case of subordinate legislation, unless power of retrospective amendment is given, the same would be impermissible. It is stated that as nothing is available in the provisions or the Act, rules and regulations, which may clothe the Central Government with the power to make retrospective amendment, and, therefore, unless any amendment made in the rules or regulations is approved by the Parliament, the same would be ineffective. In other words, the Government in the exercise of powers of delegated legislation cannot make amendments which may be applicable retrospectively.
6. The case nearest to the facts of the present case from the judicial precedents which have been cited by the learned counsel representing the applicant, appears to be one in Hukam Chand (supra). Facts of the case aforesaid reveal that the question that arose for determination therein was as to whether in exercise of powers conferred by Section 40 of the Displaced persons (Compensation and Rehabilitation) Act, 1954, the Central Government could amend rule 49 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, with retrospective effect. The appellant before the Supreme Court was a displaced person from West Pakistan. After partition he settled in village Tihar in the Union Territory of Delhi. His claim was verified in respect of agricultural land for four standard acres and 9= units. In November, 1953, the Additional Custodian allotted barani agricultural land measuring 28 bighas and 16 biswas situated in village Tihar to the appellant and delivered him possession thereof. However, on 10.7.1959 the settlement officer issued notice to the appellant stating that he was not entitled to the transfer of the land allotted to him as it was included in urban limits and was of the value of more than Rs.10,000/-. He was called upon to show cause why the allotment of land, except in respect of one khasra number valued below Rs.10,000/- be not cancelled. The appellant preferred objections against the proposed action but his objections were rejected. The land allotted to him except one khasra number was cancelled. His appeal and revision were dismissed, which led to filing of a writ petition in the High Court, which was dismissed by a single Bench. In Letters Patent Appeal filed before the Division Bench, the controversy centered on the point as to what was the effect of the Explanation added to rule 49. Rule 49 as it originally stood, reads as follows:
49. Compensation normally to be paid in the form of land. Except as otherwise provided in this chapter, a displaced person having verified claim in respect of agricultural land shall, as far as possible, be paid compensation by allotment of agricultural land. Provided that where any such person whishes to have his claim satisfied against property other than agricultural land, he may purchase such property by bidding for it at an open auction or by tendering for it and in such a case the purchase price of the property shall be adjusted against the compensation due on this verified claim for agricultural land which shall be converted into cash at the rates specified in Rule 56. In 1960, the following explanation was added to the above rule:
Explanation. In this rule and in the other rules of this chapter, the expression agricultural land shall mean the agricultural land situated in a rural area. The amendment was given retrospective effect by providing that the explanation was to be deemed always to have been inserted, vide amendment dated 11.2.1960 made by the Central Government under Section 40 of the Act. It was the case of the respondents that in view of the Explanation, which incorporated the policy laid down in an earlier press note, the land which could be allotted under the above rule was only rural land and not land situated in urban area, and as the land in dispute was situated in urban area and was of the value of more than Rs.10,000/-, the same could be transferred only by means of sale and not by means of allotment. The case of the appellant before the Division Bench was that the Explanation to rule 49 could not be given retrospective effect as the Central Government had no power to amend the rule retrospectively. His contention aforesaid was repelled by the High Court. Hence, appeal in the Supreme Court. Rules had been framed by the Government in exercise of powers conferred by Section 40 of the Act. According to sub-section (1) of the said Section, the Government may, by notification in the official gazette, make rules to carry out the purposes of the Act. Sub-section (2) mentions the matters in respect of which the rules may make provisions without prejudice to the generality of the power conferred by sub-section (1). Sub-section (3) reads as under:
(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. It was the contention of the counsel for the appellant before the Supreme Court that rule 49 could not be amended retrospectively and the Explanation added to the rule could not operate from a date prior to that on which it was added as a result of the amendment made in February, 1960. The contention aforesaid was upheld by observing as follows:
8. Perusal of Section 40 shows that although the power of making rules to carry out the purposes of the Act has been conferred upon the Central Government, there is no provision in the section which may either expressly or by necessary implication show that the Central Government has been vested with power to make rules with retrospective effect. As it is Section 40 of the Act which empowers the Central Government to make rules, the rules would have to conform to that section. The extent and amplitude of the rule making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of S. 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297 (Sixth Edition). In Regional Transport Officer, Chittoor (supra), it has been held that The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations. But, it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In Mahabir Vegetable Oils Pvt. Ltd. (supra), it has been held that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. There would be no need to make mention of all the judgments relied upon by the learned counsel representing the applicant, as indeed it appears to be a settled proposition of law that the subordinate legislation, unless expressly clothed with such powers, cannot make amendments which may be retrospective. We have no hesitation whatsoever in rejecting the only contention raised by Shri Chandiok, learned ASG, representing the respondents, that irrespective of there being no amendment brought about in the Regulations at all, the matter would be covered under Section 25 of the AIIMS Act. Section 25 reads as follows:
25. Controlled by Central Government The institute shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act. The directions that may be issued under Section 25 are for efficient administration of the Act, and the same, in our view, would be applicable as regards such fields which are not specifically covered under the Act, rules or regulations. Section 25 is general in nature and it is too well settled a proposition of law that if some areas are specifically covered, it is the specific provisions that shall have to be given precedence over resort to provisions which may generally cover the fields not specifically provided for. In other words, resort to specific provisions covering the fields under the statute or the rules, shall have to be made as mandated therein, and resort to general provisions cannot be had. Once, the matter as regards conditions of service or the terms of service is covered under the rules and regulations, Section 25 would not be attracted. The view of the learned Attorney General may not as such be binding, but the same, in any case, has persuasive value, and once we find that the same is in consonance with law, it has to be accepted.
7. The next plea raised by the applicant is as regards Prof. T. D. Dogra, the 3rd respondent, continuing to occupy the post of HoD, Department of Forensic Sciences and Toxicology. It is the case of the applicant that even if for some reason this Tribunal may hold that the 3rd respondent would continue to serve the Institute up to the age of 65 years, he cannot, in any case, continue to be the Head of Department. Pleadings as regards the same as reflected in the OA are that a plain reading of OMs dated 22.7.2008/12.2.2009 would show that there was a prohibition for holding administrative positions beyond the age of 62 years. The applicant then refers to OM dated 24.4.2009, which, according to him, clarified that the officers up to the level of professor occupying administrative positions and willing to avail the benefit of enhancement of age of superannuation, would retain their teaching designation on joining back the teaching institutions after 62 years of age. It further clarified that a professor holding the rank of Director and above on reverting back to the teaching institution under option would be designated as Professor of Excellence. Accordingly, as clarified by the Government of India, an officer of medical teaching faculty up to the rank of professor was prohibited from holding administrative positions including the post of HoD. The applicant then refers to a clarification sought in the case of Professor of Excellence, on which also the Government of India vide OM dated 30.6.2009 clarified that such persons would not function as Head of Department in respective departments and that they should be fully engaged in teaching and teaching related work. The relevant OMs relied upon by the applicant have been placed on records as Annexures A-5, A-6 and A-7. OM dated 12.2.2009 (Annexure A-5) issued by the Government of India, Ministry of Health & Family Welfare is on the subject, Implementation of Cabinet decision about enhancement of age of superannuation of medical teaching specialists of Central Health Service (CHS) doctors and other medical institutions Clarification reg. Relevant part of the said OM reads as follows:
i) Orders in respect of Teaching Specialists of CHS cadre for enhancement of age of superannuation from 62 to 65 years have already been issued by CHS Division. The orders in respect of non-CHS medical teaching faculty of various Institutes would need to be issued by respective Administrative Divisions of this Ministry.
ii) CHS officers of Teaching sub-cadre who are occupying the administrative positions would have the option of seeking appointment to teaching position in case they wish to avail the benefit of enhancement of age of superannuation up to 65 years.
iii) The post of Director, Principal, Dean & Medical Superintendent of medical colleges/medical institutions being manned by Specialists of Teaching Sub-Cadre of CHS would also be treated as administrative post and general rule of keeping them up to 62 years on these posts should be followed. However, they should be allowed to go back to their respective specialty in the same institution without any prior permission/posting by CHS division & continue up to 65 years. Moreover, these postings will not be vacancy based & their pay/perks, being drawn against administrative post would be protected. OM dated 24.4.2009 (Annexure A-6) issued by the Government of India, Ministry of Health & Family Welfare, is on the subject Enhancement of age of Superannuation of medical teaching specialists of Central health Service (CHS) doctors, re-designation of posts after attaining the age of 62 years reg. Relevant part of the OM aforesaid reads as follows:
i) CHS officers of Teaching sub-cadre who are occupying the administrative positions would have the option of seeking appointment to teaching position in case they wish to avail the benefit of enhancement of age of superannuation up to 65 years.
ii) The post of Director, Principal, Dean & Medical Superintendent of medical colleges/medical institutions being manned by Specialists of Teaching Sub-Cadre of CHS would also be treated as administrative post and general rule of keeping them up to 62 years on these posts should be followed. However, they should be allowed to go back to their respective specialty in the same institution without any prior permission/posting by CHS division & continue up to 65 years. Moreover, these postings will not be vacancy based & their pay/perks, being drawn against administrative post would be protected.
2) In continuation to the above clarification it is further conveyed that the officers up to the level of professor occupying the administrative positions and willing to avail the benefit of enhancement of age of superannuation will retain their teaching designation on joining back the Teaching Institutions after 62 years of age. The officers of the rank of Director-Professor and above on reverting back to teaching Institution under option available will be designated as Professor of Excellence. OM dated 30.6.2009 (Annexure A-7) with the same subject as Annexure A-6, reads as follows:
In continuation of Ministry of Health and Family Welfare Office Memorandum No.A.11016/1/09-CHS V dated 24th April 2009 (copy enclosed for ready reference) it is hereby clarified that Professor of Excellence will not function as Head of Department in respective Departments as they should be fully engaged only in teaching and teaching related work. The respondent Institute in its counter without denying issuance of the OMs referred to above would state that the same would have no automatic application on AIIMS. There is no elaboration in pleadings nor during the course of arguments as to how and why the OMs would not be applicable. We are constrained to observe that an important matter like the one in hand has been taken casually by the respondent Institute. In addition to this being a case of inapt pleadings, we find that such vital issues as could be taken by the respondent Institute have not been taken, but no court or tribunal can be a mute spectator to the proceedings going on before it and it becomes its duty to put to the parties some vital aspects of the case, even though not raised. This Tribunal framed two questions vide two separate orders mentioned above, and invited the parties to address arguments thereon. Not only that the respondents would not raise such issues at all, but even after having been invited, but for supporting the plea that the applicant would not be an aggrieved party and this Tribunal can apply all principles as may apply while issuing writs by the High Court, would not substantiate the same by citing any case law on the issue. Each time, the matter was closed for judgment, they were asked to at least support the pleas on the two points referred to above by some judicial precedents, which could be taken into consideration by us. On none of the occasions even after promising that the judicial precedents would be placed before this Tribunal for its perusal, the respondents have chosen to do so. When the matter came up for final hearing on 10.8.2011, once again the respondents were asked to give some judgments that might support the plea on the two points as mentioned above. We have all the while waited for receipt of the same, but in vain. So much so, securing presence of the learned ASG became a Herculean task for this Tribunal, which we do not want to mention here, but which is quite elaborately mentioned in our order dated 28.4.2011. Once again, even though the respondents may not have come up with any explanation as to how the OMs shall not be automatically applicable to AIIMS, we think it becomes our duty to ourselves examine the controversy raised by the applicant as regards ineligibility of the 3rd respondent to continue on the post of HoD. Before we may delve on the issue, we may, however, clarify that we are not giving any final expression of opinion on the issue. We are only mentioning some of the points which would arise as regards applicability of the OMs to the post of HoD, arising from the provisions of rules and regulations and the very OMs relied upon by the applicant.
8. In view of the provisions contained in Section 28 of the AIIMS Act, 1956, the Central Government has power to make rules after consultation with the Institute, which have to be notified in the official gazette. In view of clause (c) of sub-section (2) of Section 28, rules can be made as regards the conditions of service of, the procedure to be followed by, and the manner of filling vacancies among, members of the Institute. Not holding administrative position by a teaching faculty member beyond the age of 62 years would be a condition of service. It is not known as to whether before issuing the OMs referred to above, the Institute was consulted or not. Further, pursuant to the OMs mentioned above, we have not been shown as to whether the matching amendments have been made in the rules. The rules to be made under Section 28 have to be laid as soon as may be after the same are made, before each House of Parliament. Once, rules have not been made so far, it is obvious that the same may not have been laid before Parliament. In view of provisions contained in Section 29, the Institute with previous approval of the Central Government may, by notification in official gazette, make regulations consistent with the Act and the rules made thereunder, as regards the matters mentioned in the Section. Clause (f) of sub-section (1) of Section 29 reads as follows:
(f) the tenure of office, salaries and allowances and other conditions of services of the Director and other officers and employees of the Institute including teachers appointed by the Institute; If continuation on administrative post after 62 years may be covered under Section 29(1)(f), then surely, the Institute has not made any regulation in that regard so far.
9. We may advert to the OMs relied upon by the applicant in support of the plea that no administrative post can be held by a member of teaching faculty beyond the age of 62 years. OM dated 12.2.2009 inter alia states that officers of teaching sub-cadre who are occupying the administrative positions would have the option of seeking appointment to teaching positions in case they wish to avail the benefit of enhancement of age of superannuation up to 65 years. Para (ii) wherein it is so stated, however, does not clarify as to what would be administrative positions. Such a clarification comes from para (iii) wherein mention is of the posts of Director, Principal, Dean & Medical Superintendent of medical colleges/medical institutions being manned by specialists of teaching sub-cadre, and not of Head of Department. Indeed what is stated is that the posts of Director, Principal, Dean & Medical Superintendent of medical colleges/medical institutions would also be treated as administrative positions, but that does not automatically mean that Head of Department shall also be an administrative position. OM dated 24.4.2009, insofar as para (i) thereof is concerned, the same is similar to para (ii) of OM dated 12.2.2009. Para (ii) of OM dated 24.4.2009, once again is similar to para (iii) of OM dated 12.2.2009, which makes mention of Director, Principal, Dean & Medical Superintendent of medical colleges/medical institutions being administrative positions. Once again, it is not specified that the Head of Department shall also be an administrative position. As per para 2 of the OM dated 24.4.2009, officers up to the level of professor occupying administrative positions and willing to avail the benefit of enhancement of age of superannuation would retain their teaching designation on joining back the teaching institutions after 62 years of age. These officers, as we understand, would be those who have been mentioned in para (ii), which, as mentioned above, does not include Head of Department. OM dated 30.6.2009 states that professor of Excellence would not function as Head of Department in respective departments, but would not mention that the post of Head of Department would be an administrative position. The bar to hold the post of Head of Department is thus confined to only becoming Head of Department beyond the age of 62 years. Our observations as mentioned above are tentative. Insofar as the case law on the issue is concerned, what we find is that there may be a bar for the Director of the Institute to hold the post of Head of Department as well, as reflected in the judgment of the Honble Supreme Court in Dr. S. K. Kakkar v AIIMS [(1996) 10 SCC 734], followed by a Division Bench of the High Court of Delhi in Centre for Public Interest Litigation v Union of India & Others [139 (2007) Delhi Law Times 289 (DB)]., but we do not find any judicial precedent, where the Head of Department may have been asked to quit in wake of increase in age of superannuation.
10. In totality of the facts and circumstances of this case, we issue a direction to the respondent Institute to consider the plea raised by the applicant in the context of toe observations as made by us and all other relevant factors, and decide as to whether the OMs referred to above would be applicable and if so, whether the same would also apply to the post of Head of Department. This exercise shall be done as expeditiously as possible and definitely within a period of eight weeks from receipt of certified copy of this order. If the grievance of the applicant may subsist even after such a decision is taken, it would be open for the applicant to file fresh Original Application.
11. Despite our view that retrospective amendment of regulation 30(2) would not be permissible, we are not inclined to give any relief to the applicant. We have already reproduced the two orders passed by us on different occasions raising some questions, on which we have heard the arguments. Learned counsel for the applicant has given written arguments as well on the said points, which we shall advert to at the appropriate time to an extent the same may be relevant. We may first take into consideration the question framed by is in our second order dated 28.4.2011. The Administrative Tribunals Act, 1985 came into being to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution of India, and for matters connected therewith or incidental thereto. The Act was enacted on 27.2.1985. Section 19 of the Act would entitle a person covered under the Act to make an application to the Tribunal for the redressal of his grievance. To invoke the jurisdiction of the Tribunal, therefore, a person has to be aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal for redressal of his grievances, which is subject to provisions of the Act. Service matters which alone are competent to be entertained and tried by the Tribunal have been defined in Section 3(q). The same reads as follows:
(q) service matters, in elation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, or any corporation or society owned or controlled by the Government, as respects
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever; It is not in dispute that clauses (i) to (iv) of Section 3 (q) are wholly inapplicable in the facts of the present case. Clause (v) deals with any other matter whatsoever. Whereas, other clauses are specific, clause (v) is general in nature, but the same has to be read with reference to service matters as enumerated in Section 3(q), and any other matters whatsoever, therefore, have to be related to conditions of service of an employee. Clauses (i) to (iv) deal with specific conditions of service, whereas clause (v) is general in nature, but it has to be with regard to any condition of service, and, therefore, the same cannot be read to mean any dispute that an employee may raise that may be wholly unconnected with his service conditions. Further, provisions contained in Section 19 clearly make mention of grievance of a person. To illustrate, when an OA may be filed as a public interest litigation, which may not be connected with service conditions of the concerned employee, the same, as per settled law on the issue, would be incompetent before the Tribunal. Similarly, an application or writ in the nature of quo warranto seeking removal of a person who might have usurped a public office, if it may not benefit the concerned employee in his appointment on the said post, would be incompetent before the Tribunal. Whether non-issuance of notification, which the AIIMS was supposed to issue immediately after the Cabinet decision dated 22.7.2008, and as already held by us in OA No.1080/2009 in the matter of Dr. Balram Airan, was a ministerial act and was supposed to be done by the AIIMS, and had not been done because of it being remiss or careless, can be said to be a grievance in respect of conditions of his service, is the question. By virtue of amendment brought about in regulation 30 with retrospective effect, what has been done is that all those who may have retired between the date when the Cabinet took the decision dated 22.7.2008 and the date when the notification came about, have been protected, which would mean that they would not retire irrespective of the fact that they had crossed the age of 62 years. In our considered view, this cannot be the grievance in respect of service conditions of the applicant. It does not affect him in the matter of his service in any manner whatsoever. The applicant would like to take advantage of the Institute remaining remiss in doing its duty and would try to gain an indirect advantage of his consideration for occupying the post of Head of Department if the 3rd respondent is to retire. There is no order, act or decision complained of which may have adversely affected the service career or conditions of service of the applicant. The applicant only wants persons to quit and, in particular, the 3rd respondent, before he may reach the age of 65 years, and at the age of 62, so that his exit may pave way for his appointment as Head of Department. We are of the considered view that this cannot be the grievance of the applicant as regards his service matters. In fact, we are of the view that non issuance of the notification immediately after the Cabinet decision dated 22.7.2008 could be a grievance of those who may have been asked to quit on the ground that there had been no notification issued to amend regulation 30. If for non issuance of notification to amend regulation 30 after the Cabinet decision dated 22.7.2008 some employees of the Institute were asked to quit, it is such persons, in our view, who could be aggrieved, and if they were to knock at the doors of this Court to seek mandamus that they should be permitted to continue in service irrespective of the fact that the amendment was not brought about, we are of the view that they would have a perfect case for the Court or the Tribunal to interfere. In that connection, we may refer to a decision of the Calcutta High Court which has been followed by the Delhi High Court in the matter of G. S. Bhogal v Union of India & others [84 (2000) Delhi Law Times 313]. The facts of the case aforesaid reveal that on 13.5.1998, Government of India issued a notification fixing the age of retirement at 60 years for Government employees. On 19.5.1998, Ministry of Industry issued an office memorandum directing the public sector undertaking to fix the age of retirement at 60 years with reference to the employees below the Board level. On 9.6.1998 the said office memorandum was forwarded by Ministry of Industry to the corporation, which took no steps. On 22.7.1998 a letter was issued to the petitioner that he would be retired on 31.8.1998. When it was so, two employees of the corporation similarly situated like the petitioned, moved the Calcutta High Court seeking direction to the corporation to issue rules fixing the age at 60 years. The Calcutta High Court, while disposing of the writ petition, held as follows:
It is no doubt true that the rules of the Corporation have not yet been amended and in terms of paragraph 2 of the Office Memorandum the decision of the Central Government would not come into effect till the rules are amended. But, in my view, the Corporation was not entitled to keep the decision of the Central Government in abeyance by not amending its rules, although, the Office Memorandum had been received, by the respondent No.1 Corporation on 10th June, 1998, so as to deprive the petitioner of the benefits thereof. I am, therefore, inclined to agree with Mr. Gupta that having regard to the decision taken by the Central Government at a time when the petitioner was still in service, the petitioner should not be deprived of the benefit of the said decision of the Corporation merely because it had chosen not to amend its rules as per the directions contained in the Office Memorandum in question. A single Bench of the Delhi High Court held that the judgment of the Calcutta High court would apply to the facts of the case of the petitioner before it. The writ was allowed and the petitioner was allowed to continue in service till he was to attain the age of 60 years.
12. It may be recalled that in Balram Airans case (supra) decided by this Tribunal, whereas there was a prayer of the applicant to remove Dr. A. Sampath Kumar, Chief of CT Centre and HoD of CTVS, who was continuing in service by way of extension even before the Cabinet had taken the decision on 22.7.2008 and was being given extensions from time to time, there was also a prayer made by the association of doctors that the AIIMS should be issued a direction to immediately issue requisite notification in official gazette in terms of Section 29 of the Act of 1956 for notifying legally permissible amendment to Regulation 30(2) for effecting increase in the age of superannuation for faculty members from 62 to 65 years. While issuing directions as regards the said aspect of the case, we observed as follows:
It is admitted position and the relevant provisions as referred to above as also the Regulations of 1958 and 1999 would reveal that it is the respondent Institute which has to, after approval of increase in age, bring about amendment in Regulation 30(2). It is only a ministerial act, which, we do not know why, has not been done. The respondent Institute would of course state that there is some confusion, but the same does not appear to be real. Be that as it may, if there is indeed confusion, it is for the Institute to set it at rest. Surely, for lack of requisite amendment in Regulation 30(2), an uncertainty is prevailing causing concern to all. We thus direct the respondent Institute to do the needful, i.e., to bring about, by a notification, amendment in Regulation 30(2) in consonance with the order dated 22.7.2008, as expeditiously as possible and preferably within a period of one month from today. We are sanguine that if regulation 30 was amended only prospectively and the 3rd respondent would have come to this Tribunal complaining about his grievance that despite the Cabinet decision the Institute had not brought about the required amendment, this Tribunal, on the basis of judicial precedents already in existence, as mentioned above, would have granted relief to him. If that be so, the applicant, in any case cannot be granted the relief to set aside the notification only because it is retrospective in nature.
13. The background leading to framing of the first question in our order dated 28.4.2011 has already been given in the said order itself. We may only add to that. To attract talent in government employment, there is a perennial effort on the part of the government to improve conditions of service of its employees. This has become essential as jobs in private sector have become more attractive. To illustrate, twenty years ago, if not more, then at least ninety per cent students would vie for administrative positions, like IFS, IAS and IPS. The cream of the students would compete for the civil services examination and occupy government posts. The students who may not be able to make it for IAS and allied services, would prefer a career in medicine, engineering or science, in that order of preference. Those who may not be able to make in that as well, would be attracted to service in armed forces. Jobs in private sector were scanty and may not offer far more than what was being offered in government sector. The interest of top students vying for the posts as mentioned above is weaning away by stages. Their priorities have changed for the main reason that employment opportunities in the private sector have increased manifold and are far more attractive than jobs in the government sector. Hefty pay packets and other facilities offered in the private sector are attracting more and more people, resulting into government posts being occupied by second or even third rung students. It is with a view to tide over these crisis that the government, as mentioned above, is making an all out effort to improve conditions of service of its employees, as if that is not to be done, there may come a time when no top brilliant students may ever offer their services to the government sector. If the services in the public sector are not manned by top students, the result would be disastrous. To confine this discussion to medical sciences only, the most competent doctors would be attracted to private hospitals, which are in plenty in the country now, thus making the services in the medical sector to be manned by not so competent doctors. The rich will get quality medical services, whereas the poor will be deprived of the same. Increase in age of superannuation from 62 to 65 years is a step in the direction to not only attract more doctors to occupy government jobs in the medical sector, but also to see that those who are already in service, may not quit and join private sector, where they may earn manifold what is being offered to them in government service. In this background, if as many as eleven senior faculty members, and may be some other also, have to quit if retrospective notification increasing the age of superannuation from 62 to 65 years is quashed, it would be colossal loss to the public which can well be termed to be national loss.
14. In the factual scenario as mentioned above, we may examine the legal issue that if there is an infringement of a right, fundamental or civil, is it essential for the courts to interfere, or in the given fact-situation, it is permissible for the courts to decline to interfere. Insofar as, the law on the point is concerned, after introduction of the Constitution of India, it was the consistent view for some time that when court may find infringement of a fundamental right, a writ cannot be refused on the ground that it involves determination of disputed questions of facts, delay or laches, conduct or a party and reasons ejusdem generis. However, insofar as second part of Article 226 is concerned, i.e., issuing writ for any other purpose, it has always been in the discretion of the High Court to interfere or not, depending upon the facts and circumstances of each case. The law as regards interference when it may be infringement of fundamental rights has also been watered down as may be reflected from number of judgments of the Honble Supreme Court, which we shall hereinafter mention. At this stage, we may deal with the question raised by the counsel for the applicant that this Tribunal is a creation of the statute, and would have no right to issue prerogative writs as the same would be in the exclusive domain of the High Court under Article 226 and the Supreme Court under Article 32, and, therefore, the law that may be applicable to writs may not be applicable at all and this Tribunal, once an infringement of fundamental right or civil right is shown, would have no choice but for to interfere in the same. The counsel would even go to the extent of saying that the orders passed by this Tribunal are only orders and would not be judgments as may be given by a civil court. We have pondered over the issue with utmost care. It cannot be in dispute that the Tribunal is a creation of the statute, but at the same time it has come into being by virtue of provisions contained in Article 323A of the Constitution which has clothed the Parliament to provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State etc. The twin purpose of enacting the Administrative Tribunals Act, 1985 was to provide speedy and inexpensive justice to employees, which was not possible in the High Courts as the same located in the country were over-burdened primarily for the reason that the judges strength was not commensurate to the workload. Service matters hitherto being taken care of by the High Courts under Article 226/227 of the Constitution were taken away to be entertained and adjudicated by the Central Administrative Tribunal as regards the Central Government employees. Such matters were to remain in the exclusive domain of the Tribunal with appeal to be competent only before the Supreme Court.
15. Vires of the Administrative Tribunals Act, 1985 came to be challenged in S. P. Sampath Kumar, etc. v Union of India & others [(1987) 1 SCC 124], wherein two questions that came to be framed were as to whether the exclusion of the jurisdiction of the High Court under Articles 226 and 227 of the Constitution in service matters specified in Section 28 of the Act of 1985 and the vesting of exclusive jurisdiction in such service matters in the Administrative Tribunal to be constituted under the said Act, subject to an exception to the jurisdiction of the Supreme Court under Articles 32 and 136, would be unconstitutional and void and in any event, even if the first question be answered against the petitioners and in favour of the government, the second question required to be considered was, whether the composition of the Administrative Tribunal and the mode of appointment of its Chairman, Vice-Chairmen and Members would have the effect of introducing a constitutional infirmity invalidating the provisions of the Act of 1985. The questions framed, as mentioned above, were answered against the petitioners. The Tribunal was held to be a substitute of the High Court for service matters. This judgment has, however, been overruled insofar as taking away the jurisdiction of the High Court is concerned, by a Constitutional Bench in L. Chandrakumar v Union of India & others [JT 1997 (3) SC 589] by holding that judicial review is a basic feature of the Constitution and the jurisdiction of judicial review of the High Court cannot ousted. The Tribunal has now been held to be supplement to the High Court. While holding so, it has, however, been held that the Tribunal has the competence to test the constitutional validity of statutory provisions and rules. While referring to clause (3) of Article 32 of the Constitution, it has been held that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental as opposed to a substitutional role in this respect. It has further been held that If the power under Article 32of the Constitution, which has been described as the heart and soul of the Constitution, can be additionally conferred upon any other court, there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under Article 323B of the Constitution. It has further been held that apart from the authorization that flows from Articles 323A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose. Clause (3) of Article 32 reads as follows:
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). Based upon the provision of the Constitution as reproduced above, we reiterate, it has been held that if the power of the Supreme Court can be vested with any other court, the power of the High Court under Article 226 can also be exercised by any other court. In ultimate analysis, it has been held that The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. By the Constitutional Bench decision of the Honble Supreme Court in L. Chandrakumars case (supra) it is now clear that the Tribunal is exercising powers of the High Court under Article 226/227of the Constitution. The Tribunal can test the constitutional validity of statutory provisions and rules and invalidate the same. It can issue any writ that the High Court can issue, of course within its jurisdiction, i.e., pertaining to service matters only. This judgment has been consistently followed till date to say that the Tribunal is vested with the power to issue all writs as are competent to be issued by the High Court. If in view of the constitutional Bench judgment of the Supreme Court, the Tribunal is a supplement to the High Court and is discharging same functions as were erstwhile conferred upon the High Court with regard to service matters and all writs to be issued by the High Court can be issued by it, we fail to understand as to why law on writs would not be applicable to the Tribunal.
16. Article 226 empowers the High Court to issue the kind of writs mentioned therein for enforcement of the rights conferred by Part III and for any other purpose, which would mean that it would have power to enforce fundamental rights of the citizens. As mentioned above, for some time after advent and introduction of the Constitution, it was the consistent view that whatever may be the circumstances, if infringement of fundamental rights is shown, the courts would have no choice but for to interfere, whereas as regards enforcement of any other rights it may not be necessary to interfere. Thus, insofar as the second part of Article 226 is concerned, i.e., issuing writs for any other purpose, it has always been in the discretion of the High Court to interfere or not, depending upon the facts and circumstances of each case. The law that the High Court must necessarily interfere where it is a case of violation of fundamental rights, whatever be the facts of the case, has been watered down by number of judgments of the Supreme Court. Reference in this connection be made to decisions of the Honble Supreme Court in Durga Prashad v The Chief Controller of Imports and Exports [AIR 1970 SC 769], wherein it was held that even where there is an allegation of breach of fundamental right, the grant of relief is discretionary, even though such discretion has to be exercised judicially and reasonably, and Tirlokchand Motichand v H. B. Munshi [AIR 1970 SC 898] wherein, while dealing with the fundamental rights of a citizen and interference by the Supreme Court by virtue of Article 32 of the Constitution, which deals with enforcement of fundamental rights only, it was held that the extent or manner of interference is for the Court to decide. Interference must always depend upon the facts of each case. In The Moon Mills Ltd. v M. R. Meher [AIR 1967 SC 1450] it has been held by a Constitution Bench of the Honble Supreme Court that writ is legally a matter of sound discretion and would not be issued if there be such negligence or omission on the part of the applicant to assert his right as taken on conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. Writs, insofar as they are concerned with enforcement of other rights, i.e., second part of Article 226, are not issued as a matter of course (Halsburys Laws of England, Hailsham Edition, Vol.9, paras 1480 and 1481). In Shangrila Food Products Ltd. v Life Insurance Corporation of India [(1996) 5 SCC 54] it was held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. The jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. In a Division Bench Judgment of the Punjab & Haryana High Court in Municipal Corporation, Amritsar v Jagdamba Dutt [2000 (3) SCT 19] while dealing with as to whether the High Court must interfere where it may be a case of infringement of fundamental rights or other statutory rights, reference of the Honble Supreme Courts judgments referred to above has been made and a conclusion arrived that if the facts and circumstances of the case may not warrant interference, writ can be refused even though it may be a case of infringement of fundamental right or violation of any statutory right. The facts of the case aforesaid reveal that the petitioner in the writ had retired as an electrician and did not vacate the house for a long time even after his retirement. His provident fund, gratuity and leave encashment were withheld on the plea of adjustment of the amount that he had to pay by way of house rent/penalty for non-vacation of the government quarter allotted to him when he was in service. Aggrieved, the petitioner filed writ in the High Court which was allowed by the Single Bench. In the Letters Patent Appeal filed by the Municipal Corporation, the judgment of the learned Single Bench was set aside. The entire case law on the subject for and against as to whether writ must necessarily be issued in all circumstances was threadbare discussed and the petitioner was declined relief for his contumacious conduct in not vacating the government quarter years after his retirement. We expressed the same view in OA No.2499/2006 decided on 22.1.2008 in the matter of K. K. Kaushik v Union of India & others.
17. Learned counsel for the applicant in the written arguments as regards exodus of senior faculty members of the Institute has given data of the strength of medical teaching faculty. It is stated that the Institute has total strength of 437 medical teaching faculty which include 168 Professors. He has also given the number of posts occupied by Professors, Additional Professors, Associate Professors and others, but that, in our view, may not show that there are sufficient number of doctors in the Institute, so that even if some people may quit, it would not make any difference. The applicant has chosen not to mention the workload on the Institute. It is common knowledge that despite that there may be Professors, Additional Professors etc., the pressure on the Institute is so much that there is a long queue of patients and their turn may some time comes after hours, if not days. The applicant has made a chart in his written arguments, wherein he has made a mention of our observations and in the corresponding column, his comments. Most of our observations have been styled as totally misplaced. The applicant in his written arguments would also style allowing the 3rd respondent and others in service as scandalous collusion with the benefited persons. He would next mention the correspondence made by the Joint Secretary in the Ministry as also a part of scandal to benefit those who were illegally continuing in the post. He would also mention that the attempt of the learned ASG to seek shelter under Section 27 of the Act is completely fallacious. The applicant is entitled to his views, but it is not necessary for us to agree with him. We have gone through the written notes made by the applicant in four compilations, but do not find anything worthwhile mentioning for adjudication.
18. Before we may part with this order, we would only say that legal ethics require respect for each other, and whereas, it may be the right of a litigant or a lawyer to forcefully put forth the points that may be involved, but it would be against legal ethics to do so disgracefully. We do not wish to comment anything as regards the comments for our observations, which, as mentioned above, have been styled as totally misplaced, but for the allegations of scandalous collusion of the respondents with the 3rd respondent or persons who might have been benefited, there are no basis whatsoever to show any collusion, least scandalous. We may also mention that saying that the attempt of the learned ASG to take shelter under Section 27 of the Act is completely fallacious is not in good taste.
19. Despite our findings on the main issue as raised by the applicant as regards non-permissibility of retrospective amendment of regulation 30(2) of the Regulations of 1999, we are of the view that present case does not require any interference at our end. Except for the directions as given in para 10 hereinabove, this Original Application is dismissed. Costs of the litigation are, however, made easy.
( Dr. Ramesh Chandra Panda ) ( M. L. Chauhan ) ( V. K. Bali )
Member (A) Member (J) Chairman
/as/