Central Administrative Tribunal - Jodhpur
Hansraj Sharma vs Aiims on 11 April, 2023
1 (OA No.290/00142/2022)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00142/2022
OA No.290/00142/2022 Pronounced on : 28.04.2023
(Reserved on : 11.04.2023
CORAM
HON'BLE MRS. JASMINE AHMED, MEMBER (J)
HON'BLE Dr. NANDITA CHATTERJEE, MEMBER (A)
Hansraj Sharma S/o Navaratan Sharma, aged about 32 years R/o
729/03/06, Afri Residential Complex, Near Dauji Hotel, Jodhpur
presently working on the post of Nursing Officer Group B at AIIMS
Jodhpur (Raj.)-342005.
.......Applicant
By Advocate: Mr. T.V. George, S.K. Malik, Mr. Rajendra S. Charan
and Mr. Anirudh Singh.
Versus
1. Union of India through the Secretary, Govt. of India, Ministry
of Health and Family Welfare, Department of Health, Nirman
Bhawan, New Delhi-110011.
2. The President, All India Institute of Medical Sciences, Jodhpur-
342005.
3. The Director, All India Institute of Medical Sciences, Jodhpur-
342005.
........Respondents
By Advocate: Mr. K.S. Yadav.
2 (OA No.290/00142/2022)
ORDER
Hon'ble Dr. Nandita Chatterjee, Member (A) Aggrieved with the Charge Memorandum Dated 26th April, 2022 and challenging the same on grounds of incompetency of the issuing authority, the Applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
"(i) By an appropriate writ, order or direction impugned orders dated 26.04.2022 at Annexure-A/1 be declared illegal and be quashed and set aside as if the same was never issued against the applicant.
(ii) By an order or direction exemplary cost be imposed on the respondents for causing undue harassment to the applicant.
(iii) Any other relief which is found just and proper be passed in favour of the applicant in the interest of Justice."
2. Heard both learned counsel. Examined pleadings and documents on record as well as judicial decisions brought forth before this Tribunal during the time of hearing.
3. Learned counsel for the applicant would submit that, the applicant was serving in the post of Nursing Officer Group-B with the respondent Institute. He was issued a Charge Memorandum dated 26.04.2022 (Annexure-A/1 to the OA) by the office of the respondent No.3, namely, the Director, AIIMS, Jodhpur, who, the 3 (OA No.290/00142/2022) applicant would allege, is not the competent authority to act as his Disciplinary Authority, and hence lacked the authority to issue such Charge Memorandum to the applicant herein.
That, on receipt of such Charge Memorandum, the applicant represented to the office of the respondent No.2 challenging the competency of issuing authority, in response to which, vide their communication dated 12.07.2022 at Annexure-A/3 to the OA, the applicant was informed that the Charge Memorandum was indeed issued by the competent Disciplinary Authority and that disciplinary proceedings would follow in terms of the extant rules.
That, thereafter, the dates of hearing having been fixed, the applicant approached this Tribunal with his averments that as per Gazette Notification dated 18.10.2019 (Annexure-A/6 to the rejoinder), the President of the respondent Institute is the competent authority to issue him the Charge Memorandum under Rule 14 of the CCS (CCA) Rules, 1965.
4. In his pleadings, the applicant would advance the following grounds in support his claim:-
(i) That the respondent No.3, who had issued the Memorandum of Charges under Rule 14 of the CCS (CCA) Rules, 1965 is 4 (OA No.290/00142/2022) not his Disciplinary Authority as per Schedule-II to Regulation 33 of AIIMS Regulation-2019 (annexed as per Annexure-A/6 to the rejoinder of the applicant).
(ii) That, despite raising preliminary objections on the competence of the Disciplinary Authority, the respondents have not only failed to reasonably decide on such representation, but also have continued to proceed to conduct an enquiry against the applicant being aggrieved with such action of the respondents, the applicant has approached this Tribunal for the aforesaid relief.
5. During hearing, however, learned Senior Counsel for the applicant would make further submissions in support of the applicant's claims, as under:-
(i) That the Respondent institute is a creature of All India Institute of Medical Sciences Act 1956, since amended (henceforth referred to as the Act).
(ii) That, as per the Definitions incorporated in Section 2 of such Act "corresponding institute" refers to Institutes enlisted in the table inserted therein.5 (OA No.290/00142/2022)
(iii) That the Table incorporated in Section 27 A refers to the Institute which are registered as Societies under Societies Registration Act, 1860. Such Table, inter alia, includes the All India Institute of Medical Science, Jodhpur, the respondent Institute herein, which is enlisted at Sl.3 of such Table.
(iv) That, in Section 25 of the Act, there is a clear reference to "Control by Central Government" and that the said section 25 states as follows:-
"[Every 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."
(v) Learned Senior counsel would thereafter refer to the Office Memorandum dated 12.01.2018 of the office of respondent No.1 annexed at Annexure-A/11 to the counter affidavit to the additional reply by which an Empowered Committee was created in the office of respondent No.1 as an overarching governance structure for the new AIIMS including the instant respondent Institute, namely, AIIMS Jodhpur.
Learned counsel would particularly refer to clauses 8 and 9 of the said Office Memorandum to highlight that clause 8 had clearly underlined that the decisions taken by the Empowered Committee "may be adopted" by all the new AIIMS and the same "may be" 6 (OA No.290/00142/2022)
ratified by their respective GBs and IBs in due course, and, that, by virtue of clause 9, the Directors of the six new AIIMS had been advised to place suitable agenda before their respective IBs to authorize the aforesaid Empowered Committee to take policy decisions on their behalf covering all matters relating to establishment and personal matters.
(vi) Learned counsel would particularly emphasize that the composition of such Empowered Committee comprised the Directors of the six new AIIMS in addition to the officers and the Minister of the office of respondent No.1.
That by further office memorandum dated 28th June, 2018, the said Empowered Committee was reconstituted as the Central Institute Body (CIB) of the newly set up AIIMS as an overarching governance structure comprising the Chairman and all other members as per the Institute Body of AIIMS Delhi, all Directors of the newly set up AIIMS, the Additional Secretary responsible for implementation of PMSSY and Joint Director, PMSSY respectively.
Learned counsel would underline clause 4 of the said Office Memorandum wherein it has been noted that the decisions taken by the Central Institute Body "may be adopted" by all the new 7 (OA No.290/00142/2022) AIIMS and the same "may be" ratified by their respective GBs and IBs in due course.
(vii) Thereafter, learned senior counsel would proceed to refer to the Minutes of the various meetings of the Central Institute Body to highlight, inter alia, the preamble to the first meeting held on 16th July, 2018 wherein the Directors of all the AIIMS were requested to submit Resolutions to their IB and GB members for adopting CIB decisions and "try to" get them passed before the next CIB meeting.
Learned counsel would thereafter refer to item 5 (e) of the Fourth Meeting of the CIB held on 27th July, 2019, wherein it was resolved as follows:-
"(e) With regard to Centralised Recruitment Body, Additional Director informed that such alternative provision has been made in the amended AIIMS Regulations which are under process for notification and same should be adopted by the new AIIMS along with the standalone recruitment exercises at each Institute level. The CIB approved the proposal."
Learned counsel therefore, argued that as per Section 25 of the Act, each of the newly set up institutes including the respondent institute at Jodhpur were duty bound to carry out such directions had issued from time to time by the Central Government, and, that, the overarching governance structure for AIIMS having been notified initially as an Empowered Committee 8 (OA No.290/00142/2022) and thereafter as the CIB, the decisions of the CIB were binding on the constituent institutes. Accordingly, the constituent institutes were mandatorily required to adopt CIB decisions and to get such resolutions approved before the next meeting of CIB.
Having said this, learned counsel would refer to the AIIMS Regulations 2019 (Annexure-A/7 to the rejoinder) to aver that as such regulations were intimated to the respondent Institute on 11th November 2019 with a request for adoption and ratification by the respective institute body, and, as the first meeting of the CIB had referred to adoption and approval before the next CIB meeting, the respondents were duty bound to adopt such Regulations within the 5th Meeting which was held on 16th June, 2021, failing which it would be construed as that the Regulations have been deemed to have been adopted by the respondent Institute within the date of the next CIB meeting scheduled on 16th June 2021.
Therefore, as the applicant's Charge Memorandum was issued only on 26.04.2022, the provisions of the Regulations of 2019 would automatically apply to him. This would imply that, as per Schedule II of Regulation 33 of 2019, the President would be the Disciplinary Authority for all penalties under CCS (CCA) Rules, 9 (OA No.290/00142/2022) 1965 and the Director would be so authorized only for imposition of minor penalties under CCS (CCA) Rules, 1965.
viii) Learned counsel for the applicant would also furnish the decision of the Hon'ble Apex Court in Vijay Kumar Mishra and Another vs High Court of Judicature at Patna and others, reported in (2016) 9 SCC 313, to emphasise on the issue of "purposive construction" in Interpretation of Statutes.
Learned counsel would further refer to the decisions of the Hon'ble Apex Court in P. Suseela and others vs. University Grants Commission and others, reported in (2015) 8 SCC 129, wherein the Hon'ble Apex Court had pointed out that Regulation making power is subservient to directions issued under the Act and accordingly any expert body constituted thereupon will have to act in accordance with the directions issued by the Central Government. Learned counsel would therefore submit that the respondent institute being an autonomous body such as the UGC, was bound to carry out such directions of the Central Government in adopting the Regulations and getting them approved before the next meeting of the CIB.
10 (OA No.290/00142/2022)
ix) Learned counsel would also cite the judgment of Hon'ble Apex Court issued in Union of India & others vs. B.V. Gopinath and other connected cases, reported in (2014) 1 SCC 351, to highlight that, in the absence of approval of the Disciplinary Authority, the Charge Memorandum becomes non-est, which is true in case of the instant applicant.
Learned counsel would also cite the ratio held in Rajasthan Housing Board and Anr. Vs. G.S. Investments and Anr., reported in (2007) 1 SCC 477 and that held in Indian Handicrafts Emporium and others vs. Union of India and others, reported in (2003) & SCC 589 to highlight that, in the background of statutory provisions and reasonable restrictions, actions taken in violation thereof, become non-est per se.
6. Learned counsel for the respondents, per contra, would rebut the claim of the applicant with their following arguments:-
i) That, the respondent Institute, namely, AIIMS, Jodhpur had adopted the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965, with respect to conduct of disciplinary proceedings.11 (OA No.290/00142/2022)
That, Rule 12 (2) (b) of the CCS (CCA) Rules, 1965, which deals with the subject of "Disciplinary Authorities", reads as under:-
"a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the Appointing Authority or the authority specified in the Schedule in this behalf."
Admittedly, as the Appointing authority of the applicant herein is the respondent no.3, namely, the Director, All Indian Institute of Medical Sciences, Jodhpur, he is empowered under Rule 12 (2) (b) to act as the Disciplinary authority with reference to the applicant. The Charge Memorandum was hence issued with due competence, and, in accordance with law. Hence, any challenge on the grounds of alleged incompetence of the authority issuing the said Charge Memorandum is not sustained.
ii) That, the Central Institute Body (CIB) of AIIMS in its 4th meeting held on 27.07.2019, had resolved in agenda 9 as under:-
"9. Item No.CIB-4/9: Appointing, Disciplinary and Appellate Authority for various posts ass per Schedule II of AIIMS Regulation 1999:
CIB decided to maintain the status quo with regard to Group 'A' and 'C'. As far as Group 'B' is concerned, the proposal for making the Director as appointing and disciplinary authority for all penalties for all the AIIMS was approved with the President as the appellate authority . Since Group D no longer exists, the same was agreed to be deleted." 12 (OA No.290/00142/2022)
The respondents would therefore argue that, as the applicant is admittedly a Group 'B' official, and, that, as the CIB has resolved that the Director would be the Appointing and Disciplinary authority for all penalties, and, that the President would be the Appellate authority with respect to Group 'B' employees, the office of the respondent no.3, namely, the Director of the respondent Institute was competent to issue the Charge Memorandum to the applicant.
iii) And, that, in its 5th meeting held on 16.06.2021, the Central Institute Body had confirmed the Minutes of the 4th CIB held on 27.07.2019, implying thereby that the 9th agenda of the 4th meeting which had resolved that the Director will continue to be the Appointing and Disciplinary authority for Group 'B' employees in AIIMS was confirmed in the 5th meeting of the Central Institute Body, granting the ultimate seal of approval.
iv) And, that, as such Central Institute Body is the overarching governance structure as per Office Memorandum dated 28.06.2018, the directions of such governance structure were binding on the respondent Institute, namely, AIIMS, Jodhpur, in 13 (OA No.290/00142/2022) terms of Section 25 of the All India Institute of Medical Science Act, 1956, since amended.
Learned counsel for the respondents also, while responding to the applicant's reference to the decision in UOI & Ors. Vs. Hindustan Development Corpn. & Ors., reported in 1993 (3) SCC 499, as cited in P. Susheela (supra) would refer to the Hon'ble Court's observations that:
"the legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited."
Learned counsel would therefore argue that although the applicant may nurse legitimate expectations regarding the adoption of Regulations of 2019, until and unless such Regulations are consciously adopted by the respondent Institute, namely, AIIMS, Jodhpur as per the directions of the Central Government dated 11.11.2019 (Annexure A/7 to the rejoinder), the applicant cannot be subject to the outcome of such Regulations.
v) That, the contents of the AIIMS Regulations 2019 along with that contained in Schedule II Regulation 33 will only be implemented with effect from such date, and, in terms of the 14 (OA No.290/00142/2022) adoption and ratification by the respondent Institute, namely, AIIMS Jodhpur.
vi) Learned counsel for the respondents would also inform and furnish a copy of orders dated 23.03.2023 to convey that the applicant had since been removed from service in culmination of the proceedings held under Rule 14 of the CCS (CCA) Rules, 1965.
7. Having heard the rival contentions, and, having examined documents on record as well as judicial decisions furnished by learned counsel to the applicant, this Tribunal would be of the considered opinion, that the primary issue to be adjudicated in this instant matter is whether the respondent no.3, namely, the Director of the respondent Institute, AIIMS Jodhpur, was indeed competent to issue the Charge Memorandum to the applicant herein.
8. It is the contention of the respondents that the respondent Institute has adopted the CCS (CCA) Rules, 1965 for conduct of disciplinary proceedings. It is also seen that the Schedule II to Regulation 33, as referred to by learned counsel for the applicant, and, as annexed as Annexure A/6 to the rejoinder, refers to such Authorities who are competent to impose penalty or penalties 15 (OA No.290/00142/2022) which it may impose with reference to Rule 11 of the CCS (CCA) Rules, 1965. Accordingly, the competence of the Disciplinary authority has to be examined in the backdrop of the provisions of CCS (CCA) Rules, 1965.
Rule 12 of the CCS (CCA) Rules, 1965 deals with Disciplinary authorities. In particular Rule 12 (2) (b) reads as under:-
"12 (2)(b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the Appointing Authority or the authority specified in the Schedule in this behalf."
In the instant matter, it has not been disputed by the applicant that he was indeed appointed by the office of respondent no.3, namely, the Director, AIIMS, Jodhpur in the post of Nursing Officer Group 'B'. It transpires therefore that the competence of the office of respondent no.3, the Director, AIIMS, Jodhpur as his Appointing authority had never been questioned by the applicant while accepting the offer of appointment to the post of Nursing Officer Group 'B'.
In Schedule II of the Regulation 33, All India Institute of Medical Science Regulations 2019, notified by New Delhi, it has been noted that the Appointing Authority of Group 'B' posts would 16 (OA No.290/00142/2022) be the President. Admittedly, the President has not appointed the instant applicant. Hence, at the material point of time when applicant was appointed, the President was not his Appointing authority. As per CCS CCA Rules, 1965, Appointing authorities will function as Disciplinary authorities. Hence, the applicant cannot claim that the President, who had never been his Appointing authority, should function as his Disciplinary authority.
This Tribunal would therefore infer that the appointment order of the applicant read with Rule 12(2)(b) of the CCS (CCA) Rules, 1965 would imply that the Disciplinary authority would be the office of respondent no.3, namely, the Director of the respondent Institute, AIIMS, Jodhpur.
9. The first time that the CIB took up the matter of Appointing Disciplinary and Appellate authority for various posts as per Schedule II, AIIMS of Regulation 1999 was in the 4th meeting dated 27.07.2019 and it was resolved as under:-
"As far as Group 'B' is concerned, the proposal for making the Director as appointing and disciplinary authority for all penalties for all the AIIMS was approved with the President as the appellate authority.17 (OA No.290/00142/2022)
Such decision was ratified in the 5th meeting held on 16.06.2021. No minutes of any further meeting of the Central Institute Body of AIIMS has been brought forth before this Tribunal by either of the parties to establish that such resolution was amended prior to 26.04.2022, namely, the date of issue of the charge memorandum to the applicant as per Annexure A/1 to the OA.
10. Learned counsel for the applicant would vociferously argue that the All India Institute of Medical Science Regulation 2019 was notified on 18.10.2019 as per Annexure A/6 to the rejoinder. Accordingly, based on the provisions of Section 2(a), Section 25 and Section 27(A) of the All Indian Institute of Medical Science Act, 1956 (as amended), read with the preamble to the first meeting of the Central Institute Body held on 16.07.2018, and, the directions of the Central Government dated 11.11.2019 (Annexure A/7 to the rejoinder), the Regulations are deemed to have been adopted and ratified by AIIMS, Jodhpur and thereafter reported in the next CIB meeting which was held on 16.06.2021. Once so deemed to have been adopted and ratified prior to 16.06.2021, Schedule II of Regulation 33 of All India Institute of Medical Science Regulation, 2019, would prevail and hence the President would be the 18 (OA No.290/00142/2022) Disciplinary authority in AIIMS to impose penalties on Group 'B' officers of AIIMS in general, and in AIIMS Jodhpur in particular.
In such backdrop, it would be relevant to examine what exactly are the directions of the Central Government as referred to by learned counsel for the applicant. Such directions of the Central Government dated 11.11.2019 and Annexure A/7 to the rejoinder reads as follows:-
"E.O.8036268 Z-28016/162/2019-PMSSY.IV Government of India Ministry of Health & Family Welfare PMSSY Division *** 3rd floor, IRCS Building, New Delhi - 110001 Dated : 11th November, 2019 To,
(i) The Director, AIIMS Bhopal (Also as mentor Institute to AIIMS Kalyani)
(ii) The Director, AIIMS Bhubaneswar (Also as mentor Institute to AIIMS Kalyani)
(iii) The Director, AIIMS Jodhpur (Also as mentor Institute to AIIMS Gorakhpur)
(iv) The Director, AIIMS Patna (Also as mentor Institute to AIIMS Deoghar)
(v) The Director, AIIMS Raipur
(vi) The Director, AIIMS Rishikesh
(vii) The Director, AIIMS Nagpur
(viii) The Director, AIIMS Mangalagiri
(ix) The Director, PGIMER Chandigarh (as mentor Institute to AIIMS Raebareli and Bathinda) Subject: Adoption of AIIMS Regulations, 2019 in new AIIMS under PMSSY Madam/Sir, I am directed to forward herewith AIIMS Regulations, 2019 notified by AIIMS Delhi on 21st October, 2019, with the request to adopt the same and also get it ratified by the respective Institute Bodies.19 (OA No.290/00142/2022)
Encl: as above.
Yours faithfully Sd/- (Shambhu Kumar) Under Secretary to the Govt. of India Tel: 011:23736977"
Analyzing the above noted directions, this Tribunal would decipher as under:-
i) That, the office of respondent no.1, namely, the Central Government in its Ministry of Health and Family Welfare has forwarded on 11.11.2019, the Regulations 2019 as notified by AIIMS Delhi to, inter alia, the Director AIIMS Jodhpur, namely, the office of respondent no.3.
ii) That, such AIIMS Regulations 2019 was notified on 21.10.2019.
iii) That, the Central Government had requested the Director AIIMS Jodhpur, inter alia, to adopt the same.
iv) That, the Central Government also have requested that the Director AIIMS Jodhpur, inter alia, to get it ratified. 20 (OA No.290/00142/2022)
v) And, that, such adoption and such ratification has to be done by the Institute Bodies.
In such context, the provisions of Section 25 of the All India Institute of Medical Science Act, 1956 (as amended) are once again examined in its following insertions (emphasis supplied):-
"Every 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 of the Central Government in the instant matter, however, was that all the new AIIMS, including AIIMS Jodhpur, was requested to adopt the Regulations 2019 as notified by AIIMS Delhi and also to get it ratified by the respective Institute Bodies. We would note that such directions had not mandated any specific time line, for adoption or ratification by the respective Institute Bodies, implying thereby that it was left to the respective Institute Bodies to adopt and ratify the same in accordance with their requirements to ensure efficient administration of the All India Institute of Medical Science Act, 1956 (as amended).
11. Learned counsel for the applicant would urge that, in the first meeting of the Central Institute Body, the Directors were requested to submit resolutions to the IB and GB members for 21 (OA No.290/00142/2022) adopting CIB decisions and to "try to" get them placed before the next CIB meeting. And, in this context, learned counsel would agitate that the Institute Body of AIIMS Jodhpur was mandated to adopt such decision dated 11.11.2019 forthwith and to report accordingly in the next CIB meeting June, 2021. This Tribunal, however, would decipher that Directors were requested to submit resolutions to their IB and GB members for adopting CIB decisions and the directions at 11.11.2019 were not referred to as any decision of the CIB. Rather, the CIB decision on "Appointing Disciplinary and Appellate authority was contained in Agenda 4/9 of the CIB meeting dated 27.07.2019 and, further ratified in the 5 th meeting of June, 2021. It is not the case of the applicant that the Institute Body had failed to adopt or ratify the decisions taken in the 4th and 5th meeting of the CIB of AIIMS. Accordingly, the applicability of the provisions of the Preamble to the first meeting of AIIMS does not come to his aid.
The reference made to agenda 5 (e) of the 4 th meeting of the CIB is also with reference to a Centralized Recruitment Body and not to The Disciplinary authority of AIIMS.
22 (OA No.290/00142/2022)
None of the parties herein have brought on record that the Institute Body of AIIMS Jodhpur have since adopted the said AIIMS Regulations 2019 or have obtained subsequent ratification in their Institute Body. Hence, it is entirely the prerogative of the individual Institute Body to adopt and ratify the same in terms of their timelines.
Further, in the event the respondent Institute in its Institute Body decides to adopt and ratify such AIIMS Regulations 2019, such adoption would hence be with prospective effect, as there is no scope of retrospective application in such Regulations.
12. Learned counsel for the applicant would, in support, refer to the judicial decisions in Vijay Kumar Mishra & Anr. Vs. High Court of Judicature at Patna & Ors., reported in (2016) 9 SCC 313, to highlight that the Hon'ble Apex Court had observed that:
"It is a settled principle of rule of interpretation that one must have regard to subject and the object for which the Act is enacted. To interpret a statute in a reasonable manner, the Court must place itself in a chair of reasonable legislator/author. So done, the rules of purposive construction have to be resorted to so that the object of the Act is fulfilled."
Learned counsel would further go on to aver that without implementation of the regulations, the purpose of the AIIMS Act, 1956 (as amended) would be belied. This Tribunal, however, 23 (OA No.290/00142/2022) would note that the All India Institute of Medical Sciences Act, 1956 (as amended) is not acting in a vaccum and the AIIMS Regulations 1999 continue to prevail. Such Regulations of 1999 have been consistently referred to by the CIB in its 4th and 5th meetings with reference to the Appointing authority, Disciplinary authority and Appellate authority in the Institutes.
Further, in the backdrop of purposive construction of statutes, this Tribunal finds that the main objective of the Act as referred to in Section 25, was efficient administration of the All India Institute of Medical Sciences Act, 1956 (as amended) and that, as per Section 5 of the Act, each Institute was to be declared to be an institute of National importance. Nothing has been brought on record to show that application of the Regulations 1999 have prevented efficient administration of the purpose of the Act.
On the other hand Section 27 B (d) states as under:-
"27 B (d) Subject to the provisions of this Act, every person (including Director, officers and other employees) who is employed in the society, immediately before the commencement of the All India Institute of Medical Sciences (Amendment) Act, 2012, shall, on and after such commencement, become an employee of the corresponding Institute and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held the same on the date of the commencement of the All India Institute of Medical Sciences (Amendment) Act, 2012, as if the said Act had not been promulgated, and shall continue to do so unless and until his employment is terminated 24 (OA No.290/00142/2022) or until such tenure, remuneration and terms and conditions are duly altered by regulations:"
Section 28 empowers the Central Government make Rules to carry out the purposes of this Act.
Section 29 very categorically entrusts, the corresponding institutes with power to make Regulations to carry out the purposes of this Act.
Section 29(2), in particular, states as under:-
"Until the Institute is established under this Act, any regulation which may be made under sub-section (1) may be made by the Central Government, and any regulation so made may be altered or rescinded by the Institute in exercise of its powers under sub-section (1)."
It therefore transpires that the Regulations made by Central Government will apply to corresponding Institutes prior to its formal establishment, and, such Regulations may be altered or rescinded by the institute in terms of its powers under Section 29(1). The Act therefore makes it clear that the Institute Bodies are entrusted with framing of Regulations and such framing of Regulations, amendment or rescinding thereof will have to be in accordance with provisions of 29(1) of the Act, which gives complete powers to the Governing Body/the Institute Body of each of the corresponding Institutes such as AIIMS Jodhpur. 25 (OA No.290/00142/2022)
13. In Section 21 of the General Causes Act, 1897, it has been held as under:-
"21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.
Where by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws so issued."
In the instant context, powers are clearly delineated to the corresponding institutes under 29(1) of the All India Institute of Medical Sciences Act, 1956 (since amended), and, it is an established fact that the power to amend Regulations is conferred upon the Governing Body/Institute Body of the respondent Institute, namely, AIIMS Jodhpur.
In Gopalji Khanna Vs. Allahabad Banks, reported in (1996) 3 SCC 538, and in Vidya Dhar Pande Vs. Vidyut Siksha Samiti Grih, reported in (1988) 4 SCC 734, it was held that, although Regulations framed under statutory powers cannot be equated with the statute, it is settled law that they have the force of law.
In Co-op Central Bank Ltd Vs. Additional Industrial Tribunal, reported in AIR 1970 SC 245, it was held that the 26 (OA No.290/00142/2022) character and efficacy of a Rule or Regulation made in exercise of statutory powers must be distinguished from those which are contemplated by certain special statutes to govern the internal management, business or administration of a body registered or incorporated under the statute.
The Hon'ble Apex Court, in State of Maharashtra & Anr. Vs. Bhagwan & Ors., reported in Civil Appeal No.7682-7684 of 2021, in its order dated 10.01.2022 had categorically held as under:-
"As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par."
Further, the Hon'ble High Court of Guwahati in Hemanta Kumar & Ors. Vs. State of Assam & Ors., reported in AIR 1999 Law 87, had discussed the scope of adoption of regulations in autonomous bodies. The Court has held as under:-
"From the above discussion, the fact remains that the petitioners are unsuccessful candidates who belong to 1996-97, batch, that Regulations 1997 has not yet been made applicable and the provisions challenged in 27 (OA No.290/00142/2022) the writ petition are related to 1983 Regulation, and that therefore, petitioners claim is misconceived. The MCI being the authority to regulate the Medical Courses and Examinations of Medical Studies, the Council which is an autonomous Body being a creation of the statute, is empowered to frame, adopt, Rules and Regulations/Guidelines in exercise of the powers conferred by Section 33 of the Medical Council of India Act, which are of statutory nature and vested with the controlling authority of the Medical Colleges of India. Deviation from the provisions of law as enunciated shall deprive the students of such degree which is obtained in violation of statutory Rules and Regulations and such degree shall not be recognised. In such cases no Court has jurisdiction to give directions to act otherwise on the ground alleged of violation of rights-Constitutional or any rights. Admittedly, petitioners being 1996-97 batch are regulated and controlled under the provisions of Regulation 1981, and the Regulation 1997 is yet to be applicable and petitioners course of studying is not yet regulated under this Regulation 1997. Being unsuccessful candidates their status and course of studies etc. shall be regulated and controlled by 1981 Regulation. Therefore, their allegation of infringement of Constitutional and Fundamental Rights and violation of Article 14 of the Constitution is not sustainable being misconceived and rights of unsuccessful candidates are misconstrued and therefore, their allegations and challenge of Regulation 2(b) is not maintainable."
In the instant event also the Regulations 2019 not having been formally adopted or ratified by the Institute Body of AIIMS Jodhpur, the applicant cannot take recourse to the provisions of Regulation 2019 or the inapplicability of the Regulations 1999 to argue that it is the President of AIIMS and not the Director of AIIMS, who is the competent authority to act as Disciplinary authority in this regard.
14. Learned counsel for the applicant would also rely on in UOI & Ors. Vs. B.V. Gopinath, reported in (2014) 1 SCC 351, to highlight that, in the absence of approval of Disciplinary authority, the charge memorandum becomes non est. In this context, 28 (OA No.290/00142/2022) however, as the alleged incompetence of respondent no.3 to act Disciplinary authority has not been so established, the ratio in B.V. Gopinath (supra) does not support the claim of the applicant.
15. Learned counsel for the applicant would further refer to Section 118 of the Companies Act, 2018 in the context of the Minutes of the proceedings of the meeting of the Board of Directors and also furnish, in support, judicial decisions in Indian Handicrafts Emporium & Ors. Vs. UOI & Ors., reported in (2003) 7 SCC 589, and in Rajasthan Housing Board & Anr. Vs. G.s. Investments & Anr., reported in (2007) 1 SCC 477. This Tribunal would, however, be of the considered view that, as the instant respondent Institute is registered as a Society under the Societies Registration Act, 1860 as provided for in Section 27A of the All India Institute of Medical Sciences Act, 1956, (since amended), such provisions of the Companies Act, 2018 will not apply herein.
Learned counsel would also refer to an Article dated May 31, 2014 as annexed at page 128 onwards in the Compendium furnished during hearing to argue that the Minutes of the Meeting do not serve as conclusive evidence, unless recorded in accordance with the provisions of Section 118 of Companies Act 2018. 29 (OA No.290/00142/2022)
This Tribunal would, however, reiterate its observation that the respondent Institute herein has been registered as a Society under the Societies Registration Act, 1860 as per Section 27A of All India Institute of Medical Science Act, 1956 (since amended), and, accordingly, the provisions of Companies Act, 2018 do not apply in the instant matter.
16. In the backdrop of the inferences arrived at as above this Tribunal would hence be of the considered view that:
(i) The respondent Institute, namely, AIIMS Jodhpur is a creature of All India Institute of Medical Science Act, 1956 (since amended) and particularly of Section 27A therein.
(ii) The said Institute is empowered under Sections 29(1) and 29(2) to decide on amendments or modifications to Regulations as required for the purpose of efficient administration of the Institute.
(iii) That, although mandated under Section 25 to carry out the directions of the Central Government, no directions of Central Government have been furnished before us to establish that the respondent Institute was bound to adopt the Regulations of 2019 within a specific time frame. Rather the Institute was at liberty to 30 (OA No.290/00142/2022) adopt and ratify the same in accordance with its needs and within such time frame as to be decided by the Institute Body.
Accordingly the submissions made by learned Counsel for the applicant that such Regulations 2019 are deemed to have been adopted, does not hold good.
To the contrary, Rule 12 (2) (b) of the CCS (CCA) Rules, 1965, read with the appointment letter of the applicant, the resolution of Agenda 9 in the 4th meeting of CIB dated 27.07.2019, as confirmed in the 5th meeting of the CIB dated 16.06.2021, leads to the unambiguous conclusion that the Director of AIIMS, Jodhpur, is indeed the Disciplinary authority with reference to the applicant herein and is therefore perfectly competent to issue the Charge Memorandum to the applicant.
(iv) Further, Schedule II to Regulations 33 of the AIIMS Regulations Act, 2019 refers to the President as the appointing authority of Group 'B' employees of AIIMS. Such Regulations are yet to come into force in the respondent Institute AIIMS Jodhpur, and, once in force, the President will be the Appointing authority of Group 'B' employees as contemplated in such Regulations, and, will 31 (OA No.290/00142/2022) thereafter act as the Disciplinary authority with respect to Group 'B' employees of the Respondent Institute.
(v) Till such time, AIIMS Regulations of 1999 will continue to apply and nothing has been brought before us to prove that the vires of such Regulations have ever been challenged successfully in any judicial forum.
Hence, this Tribunal would conclude that the Charge Memorandum impugned herein was indeed issued by the competent respondent authority, namely, respondent no.3, who is Director, AIIMS, Jodhpur. Challenge to such authority, on grounds of incompetence of the issuing authority, therefore fails.
This Tribunal would hence be of the considered opinion that this OA is bereft of merit and deserves to be dismissed.
This OA is dismissed accordingly. There would be no orders on costs.
(Dr. NANDITA CHATTERJEE) (JASMINE AHMED)
MEMBER (A) MEMBER (J)
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