Central Administrative Tribunal - Delhi
Dr Dharampal Vashisht vs North Delhi Municipal Corporation on 12 January, 2024
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Item No. 51 (C-5) O.A. No.1419/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.1419/2017
Reserved on : 08.01.2024
Pronounced on : 12.01.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
1. Dr. Dharam Pal Vashisht
S/o Late Sh. Ganga Ram
R/o E-1/35, Sector-16,
Rohini, Delhi-110089
Aged around 61 years
2. Dr. Devendra Singh Chauhan
S/o Sh. Malkham Singh
R/o 133, Block-A,
Rajar Vihar Duplex,
Sector-62, Noida
Aged around 63 years
3. Dr. Arun Kumar
S/o Sh. Trilok Chand
R/o 4/3, Sector-5, Rajendra Nagar,
Ghaziabad
Aged around 62 years
4. Dr. Kamlesh Sharma
W/o Sh. V.K. Sharma
R/o H. No. 436, Dhurva Apartment,
Shahadara, Delhi
Aged around 58 years
5. Dr. Brahm Datt Sharma
R/o Late Sh. H.C. Sharma
R/o 421/4, Shankar Marg,
Mandawali, Delhi
Aged around 59 years
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Item No. 51 (C-5) O.A. No.1419/2017
6. Dr. Pratibha Sharma
D/o Sh. Y.K. Shastri
R/o 75, Harhobind Enclave, Delhi
Aged around 60 years
7. Dr. Saranjit Singh
S/o Late Ram Singh
R/o H. No.214, Gopal Nagar,
Ghaziabad
Aged around 57 years
8. Dr. Nita Sharma
W/o Dr. Kantmani Sharma
R/o 119, Sector-5
Om Darshan Apartment
Sahibabad, U.P.
Aged around 63 years
9. Dr. Vinod Kumar Madhukar
S/o Sh. Sita Ram Madhukar
R/o 552, Gali No.5
Ashok Nagar, Delhi-110093
Aged around 62 years
10. Dr. Rajendra Prasad Rajput
S/o Late Sh. Gopal Dass
R/o F-22, 1 Floor, Pankha Road,
Jeewan Park, Uttam Nagar, Delhi-110059
Aged around 61 years
11. Dr. Babu Ramesh Gupta
S/o Late Sh. Chattar Bhag Gupta
R/o 70-B, Platinum Enclave
Sector-18, Rohini, Delhi
Aged around 62 years
12. Dr. Pradeep Kumar Goel
S/o Late Sh. Roshan Lal Goel
R/o D-2/2, MCD Flats,
Mandalian Road, Kamla Nagar, Delhi
Aged around 56 years
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Item No. 51 (C-5) O.A. No.1419/2017
13. Dr. Ram Naresh Sharma
S/o Late Sh. Daulat Ram Sharma
R/o K-704, Agrasen Awas
66, I.P. Extension Delhi-110092
Aged around 59 years
14.Dr. Prabodh Kumar Sharma
S/o Sh. Banwari Lal Sharma
R/o 1-3/102, Sector-16, Rohini
Delhi-110089
Aged around 61 years
15. Dr. Santosh Kumar
S/o Sh. Ramadhar
R/o E-2/147, Sector-16
Rohini, Delhi-110089
Aged around 62 years
16.Dr. Vijay Kumar Sharma
S/o Sh. J.C. Sharma
R/o N-32, Pratap Nagar, Delhi-110007
Aged around 61 years
17. Dr. Santosh Kumar Sharma
S/o Late Sh. Kalyan Prasad Sharma
R/o D-II/3, MCD Officers Flats
10, Rajpur Road, Delhi-110054
Aged around 61 years
18. Dr. Ram Narain Singh
S/o Sh. N.P. Singh
R/o 6/1, MCD Flats
Model Town-III, Delhi-110033
Aged around 62 years
19.Dr. Santosh Sharma
W/o Dr. Prda Dutt Sharma
R/o D-20, Tondon Road
Adarsh Nagar, Delhi-110033
Aged around 59 years
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Item No. 51 (C-5) O.A. No.1419/2017
20. Dr. Chander Ketu
S/o Sh. Rajpal Shaditri
B-71, Samaj Kalyan,
Sharda Puri, Ramesh Nagar, Delhi-110015
Aged around 57 years
21. Dr. Raj Mann
D/o Late Sh. Major R.S. Mann
R/o A-2, MCD Flat, Soami Nagar
Delhi-110017
Aged around 56 years
22. Dr. Nishi Goel
W/o Dr. S.B. Aggarwal
R/o A-10, Antriksh Apartment
Sector-14, Rohini, Delhi-110085
Aged around 53 yeas
23. Dr. Poonam Aggarwal
W/o Sh. R.N. Aggarwal
R/o H-32/17, Sector-3
Rohini, Delhi-110085
Aged around 56 years
24. Dr. Rajni Mahajan
W/o Sh. Sunil Mahajan
R/o 943, Vikas Kunj
Vikas Puri, New Delhi-110018
Aged around 55 years
25. Dr. Shuchi Gauba
W/o Mr. R.K. Gauba
R/o B-4, Dr. Zakir Hussain Marg
Delhi-110003
Aged around 55 years
26. Dr. Birpal Singh Panwar
S/o Late Sh. Karan Singh
R/o D-II/6, MCD Officer Flats
10, Rajpur Road, Delhi-110006
Aged around 55 years
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Item No. 51 (C-5) O.A. No.1419/2017
27. Dr. Ramesh Chander Sharma
S/o Deep Chand Sharma
R/o 119, Extension-02
Nangloi, Delhi-110041
Aged around 57 years
28. Dr. Satya Prakash Harit
S/o Sh. Shiv Charan Dass
R/o 552, Kanungo Apartment
71, I.P. Extension, Patpar Ganj, Delhi-110092
Aged around 59 years
29. Dr. Savita Sharma
W/o Sh. Satish Sharma
R/o 57/6, Ashok Nagar
IInd Floor, New Delhi-110018
Aged around 64 years
30. Dr. Nighat Parveen
W/o Dr. Syed Masood Ali
R/o E-18, Jahangir Road
Mintor Road, New Delhi
Aged around 57 years
31. Dr. Mohd. Shamshad Ali
S/o Late Mr. Din Mohd.
R/o H. No.3, Gali No.13/5
Subhash Mohalla, Ghonda, Delhi-110053
Aged around 55 years
32. Dr. Suhail Ahmad Farooqi
S/o Late Farooq Ahmad
R/o 409, Street-4, Batla House
Jamia Nagar, New Delhi-110025
Aged around 56 years
33. Dr. Muzayyana Khatoon
D/o Mr. Aziz Yazdan Usman
R/o E-15, Jangir Road
Minto Road, Delhi-110002
Aged around 53 years
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Item No. 51 (C-5) O.A. No.1419/2017
34. Dr. Mahmoodul-Hasan Quasmi
S/o Late Sh. Sharfuddin
R/o V-93, Gali-22/B
Maujpur, Vijay Park, Delhi
Aged around 63 years
35. Dr. Rekha
W/o Mr. BB Chugh
R/o D-1/1, 14 Rajpur Road
Delhi-110054
Aged around 55 years
36. Dr. Omvati
W/o Dr. Sikhbir Singh
R/o A-85, Chankaya Place
New Delhi-110059
Aged around 61 years
37. Dr. Usha Gautam
W/o Dr. Deepak Sharma
R/o 745, Jwala Nagar, Shahdara, Delhi-110032
Aged around 63 years
38. Dr. Ramesh Kumar Shishodia
S/o A.S.S. Shishodia
R/o A-117, Shankar Garden
New Delhi-110018
Aged around 61 years
39. Dr. Prabhu Dayal Gogia
S/o Sh. Thakur Dass Gogia
R/o WZ-100, 1st Floor
Shoe Market, Uttam Nagar, New Delhi
40. Dr. Verinder Mohan Mahajan
S/o Sh. Durga Dass Mahajan
R/o 93, Sadbhawana Apartment
13. 1.P. Ext. Delhi-110092
41. Dr. Gurcharan Singh
S/o Sh. Balwant Singh
R/o 55-A, Old Roshanpur
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Item No. 51 (C-5) O.A. No.1419/2017
Najafgarh, New Delhi-110043
Aged around 58 years
42. Dr. Rajender Kumar Sharma
S/o Sh. I.C. Shastri
R/o D-2, Lotus Bhawan
Near- IPSR Satbari, New Delhi-110074
Aged around 63 years
43. Dr. Alok Sharma
S/o Sh. Gyan Parkesh Sharma
R/o A-7, MCD Flats, Soami Nagar
Delhi-110017
Aged around 62 years
44. Dr. Vijay Kumar Arya
S/o Late Dharam Pal Arya
R/o M-195/13, Shastri Nagar
New Delhi-110052
Aged around 61 years
45. Dr. Brijesh Kumari
W/o Dr. A.P.S. Kakran
R/o 311, South Delhi Apartment
Sector-14, Plot No.8, Dwarka
New Delhi
Aged around 59 years
46. Dr. Anita Mutreja
W/o Mr. Chander Mohan Murteja
R/o B2/101D, Safdarjung Enclave
New Delhi
Aged around 55 years
47. Dr. Salma Khatoon
D/o Syed Hafiz Hussain Nizami
R/o 104, Basti Hazrat Nizammudin Aulia
New Delhi
Aged around 57 years
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Item No. 51 (C-5) O.A. No.1419/2017
48. Dr. M.A. Khan
S/o M. Ayoub Khan
R/o K-10, Haji Colony
New Delhi
Aged around 59 years
49. Dr. Anuradha Varma
W/o Mr. Anil Varma
R/o B-237/A
Greater Kailash-I, Delhi
Aged around 61 years
50. Dr. Manjit Kaur
W/o Dr. Gurdeep Singh
R/o GD-17, Street No. 14
G-Block, Hari Nagar
New Delhi-110058
Aged around 56 years
51. Dr. Krishan Lata
W/o Sh. Rakesh Sharma
R/o Kotla House Village
Gurgaon, Haryana
Aged around 56 years
52. Dr. Baljit Singh
S/o Moji Ram
R/o E-55, MCD Officer Complex
Minto Road, New Delhi-110002
Aged around 62 years
53. Dr. Gajraj Singh
S/o Bulli Chand
R/o H. No.2, Block-B
Harkesh Nagar, Delhi
Aged around 64 years
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Item No. 51 (C-5) O.A. No.1419/2017
54. Dr. Raj Pal Singh
S/o Sh. Zila Singh
R/o H. No. 297, Johdi, U.P.
Aged around 67 years
....Applicants
(All the Applicants are in Group A and they are working/
retired as Doctors in the discipline of Ayurveda,
Unani & Homeopathy in MCD).
(By Advocate: Mr. Asish Nischal)
Versus
1. The Municipal Corporation of Delhi
Through its Commissioner
Dr. S.P. Mukherjee Civic Centre
Jawahar Lal Nehru Marg
New Delhi-110002.
2. The Director (Personnel)
Municipal Corporation of Delhi
Dr. S.P. Mukherjee Civic Centre
Jawahar Lal Nehru Marg
New Delhi-110002.
...Respondents
(By Advocate: Mr. Yudhishter Sharma)
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Item No. 51 (C-5) O.A. No.1419/2017
ORDER
Per Ms. Harvinder Kaur Oberoi, Member (J) The present Original Application has been filed by the applicants seeking the following relief(s):-
"i. Direct the respondents to implement Office Memorandum dated 05.09.2014 qua the Applicants (AYUSH Doctors) by granting them the benefits of DACP Scheme up-to SAG Level (i.e. PB-4 with Grade Pay of Rs. 10,000/-) at par with their counter parts i.e. Allopathic Doctors and Dental Doctors w.e.f. the date the same has been granted to the Allopathic Doctors and Dental Doctors (i.e. 29.10.2008) along with all consequential benefits viz. arrears, interest @ 18 % p.a. on the delayed payment on the arrears, re-fixation of pay/pension etc. And ii. Award cost in favour of the Applicant and against the respondents. And/or iii. Pass any further order, which this Hon'ble Tribunal may deem fit, just equitable in the facts and circumstances of the case."
2. Learned counsel for the applicants submits that the applicants, who are AYUSH Doctors, have been employed with the Municipal Corporation of Delhi (MCD). They are 54 in number and many have retired during pendency of this OA. He submits that the Government of India, Ministry of Health and Family Welfare vide its OM dated 11 Item No. 51 (C-5) O.A. No.1419/2017 05.09.2014 had directed to grant benefits of the Dynamic Assured Career Progression (DACP) Scheme to AYUSH Doctors of CHS upto Senior Administrative Grade (SAG) level w.e.f. 29.10.2008. He submits that the Regulation 4(1) of the Delhi Municipal Corporation Service Regulations, 1959 provides that the conditions of the services of the Municipal Officers and other Municipal Employees will be regulated by the Act, Rules, OMs applicable to the Government servant in the services of Central Government. Therefore, once the said DACP scheme was granted and implemented to AYUSH doctors, working in CHS, the same ought to have been mutatis mutandis made applicable to the applicants, i.e. Ayush doctors of MCD.
3. Further, he submits that earlier, other AYUSH Doctors of CHS and MCD had jointly approached this Tribunal vide OA No.2712/2016 & Batch matters, seeking enhancement of age of superannuation, wherein the following order has been passed on 24.08.2017:
"30. On the analysis of the factual matrix, we find that although the Doctors working under CHS and those 12 Item No. 51 (C-5) O.A. No.1419/2017 working under the Indian system of medicines belong to different streams, nonetheless all the Doctors perform the similar nature of duties, i.e., treatment of patients and health care in their own systems of medicines. The service conditions of both the streams, though governed by separate rules, but are similar in nature. Rather rule 12(3) of Delhi Health Service Rules applies all the rules of Central Government to the Doctors working in the Homoeopathy system of medicines. Regulation 4 of the Regulation framed under the Delhi Municipal Corporation Act, 1957 treat all the Doctors under different streams of medicines alike and all the service conditions applicable to the Central Government employees have been made applicable to the officers and employees working under various Municipal Corporations. Thus, for all practical purposes they are treated alike. The applicants have placed on record order dated 05.09.2014 at page 16 of OA No.4066/2016, whereby the benefit of DACP scheme was extended to AYUSH Doctors up to the SAG level. Reference is also made to Cabinet decision No.663 dated 29.10.2001 of Government of NCT of Delhi, referred to hereinabove, whereby the facility for the Medical Officers were allowed at par with the Government of India in all respects, and insofar as the teaching staff is concerned, facilities at par with the teaching staff working in teaching institutions of modern system of medicines (Allopathic) were allowed. All these documents clearly demonstrate the parityof duties and equality of other working conditions. Though different rules govern them, but the rules are similar in nature, rather the terms and conditions of service provided under various rules are same in nature. It is under these circumstances, we are of the considered view that the applicants cannot be treated differently than the Doctors working in various sub-cadres in the CHS. They are also entitled to the benefit of enhancement of age as notified vide Government order dated 31.05.2016. It is also relevant to notice that the Fundamental Rules have application to all the Government servants. The substituted Clause (bb) in FR-56 includes all categories of sub-cadres, i.e., GDMOs and specialists including teaching, non-teaching and 13 Item No. 51 (C-5) O.A. No.1419/2017 public health sub- cadres of CHS. Though the amendment is only for CHS officers, but the Doctors under the Allopathic system of medicine working in the North DMC have also been extended the same benefit vide letter dated 30.06.2016 by the North DMC with effect from the same date the Doctors under CHS have been granted. Similar treatment cannot be denied to the Doctors working in the other two Corporations, i.e., South DMC and East DMC. The East DMC requested the Government of India, Ministry of AYUSH seeking application of the enhancement of age to AYUSH Doctors. The Ministry has not denied it. It is pertinent to note that even in the counter affidavit, the stand of the Union of India, Ministry of Health and Family Welfare, DOP&T and the Ministry of AYUSH is that it has been left to the wisdom of the concerned organizations to grant the benefit of enhancement of age. No distinguishable features between the Doctors under the Allopathy system and those under AYUSH working in the Corporations have been demonstrated in the reply to deny them similar benefit as granted to the Allopathy doctors. There is in fact discrimination between the Doctors working in different Corporations. Even Allopathy Doctors working in the East and South DMCs have been denied similar treatment. There is no intelligible differentia for treating the Doctors working in Allopathy discipline including Dental Surgeons in CHS and those in MCD and/or in other organizations/streams differently. Similarly, the Doctors working in Indian system of medicines, i.e., under AYUSH, whether Homeopathy, Ayurveda, Unani or Sidha, who are also performing similar duties in their own system and are governed by similar service conditions also cannot be treated differently on the basis of the discipline. This action is clearly hostile and discriminatory in nature.
31. In view of the legal and factual analysis, these OAs are allowed with the following directions:
(1) The action of the respondents and the Government order dated 31.05.2016 as also the amendment in FR-14
Item No. 51 (C-5) O.A. No.1419/2017 56(bb) to the extent the enhancement of age of superannuation is confined to the Doctors under the Central Health Service are declared ultra vires to the Constitution and violative of Article 14.
(2) The applicants in the present OAs are entitled to similar treatment in regard to service conditions including the age of retirement as is available to Doctors working under the Central Health Service. The orders passed by the respondents retiring the applicants at the age of 60 years are hereby declared as null and void.
(3) The applicants will be entitled to the benefit of enhancement of age of superannuation in terms of the Government of India order dated 31.05.2016 read with the amended FR-56.
(4) A further direction in the nature of mandamus is issued to allow the applicants to continue in service till they complete the age of 65 years. If any of the applicants has been retired at the age of 60 years, he/she shall be re-inducted into service till he/she completes the age of 65 years, and paid salary for the period he/she was out of service on account of retirement at the age of 60 years."
Learned counsel appearing for the applicants, while relying upon the aforesaid judgement of the Tribunal submits, that the judgement has been implemented by the respondents. Retirement date has been enhanced for the Ayush Doctors of MCD, like that of the Ayush Doctors of CHS. Learned counsel, therefore, submits that in the wake of the specific fact finding of the Tribunal that the Ayush Doctors of MCD perform the same duties as the Ayush 15 Item No. 51 (C-5) O.A. No.1419/2017 and Allopathic Doctors of CHS, respondents cannot discriminate between the two sets of doctors when it comes to extending the benefit of DACP Scheme. Hence, there is no reason as to why the benefits rendered to the AYUSH Doctors of CHS, be not implemented in their case.
4. Unified MCD has filed its counter affidavit and have not denied the contentions of the applicants. However, it has been stated that they had written letter dated 19.07.2017 to the Ministry of Health/UOI, seeking clarification with respect to the recommendation of the DACP Scheme and its applicability to the AYUSH Cadre of MCD. Within the affidavit, in Paras 7 and 8, it has been stated that Ministry of Health & Family Welfare, (Department of AYUSH) Government of India, vide office Memorandum No. Z.28015/4/2008-E-I dated 05.09.2014, has extended the benefit of Senior Administrative Grade (SAG) in PB-4, GP Rs.10,000/- w.e.f. 29.10.2008 to the practitioners of Indian Systems of Medicines and Homeopathy, which is known as Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), in compliance with the judgment dated 16 Item No. 51 (C-5) O.A. No.1419/2017 26.11.2013 in OA No. 2563/2010, titled as "All India CGHS Ayurvedic Physicians Association Vs UOI & Ors." passed by this Tribunal. As per provision-3 of the said Office Memorandum, it provides as under:
"...AYUSH Doctors with 7 years of regular service in the grade Pay Rs. 8700 in Pay Band 4 including service rendered in the Pre-revised scale of Rs. 14300-18300 or 20 years of regular service shall be eligible for up- gradation to Senior Administrative Grade level under the DACP Scheme....".
In view of the provisions laid down in the said OM dated 05.09.2014 issued by the Ministry of Health & Family welfare, Govt. of India (Department of AYUSH), it reveals that the Ministry has not recommended to extend the benefit of grant of 100% NFSG scale of Rs. 14300-18300 w.e.f.05.04.2002 to AYUSH Doctors. However, the matter for granting the benefits of SAG in PB 4 Grade Pay Rs. 10000 to Medical Officers of the AYUSH Cadre before placing the matter before the Corporation for its approval, the matter was referred to Finance Department by the answering respondent for its concurrence. The Finance Department observed that the extension of implementation of Dynamic Assured Career Progression 17 Item No. 51 (C-5) O.A. No.1419/2017 (DACP) Scheme upto Senior Administrative Grade (SAG) level be implemented from prospective date rather than 29.10.2008, as mentioned in the said OM. Finance Department also advised that the concurrence of all the three Corporations may also be solicited.
5. From the above, it is clear that respondent MCD is not averse to the claim of the applicants, rather it has left it to the Ministry of Finance to sanction the same. No reason has been advanced as to why the DACP scheme be denied to the applicants. We find that the Cadre of Ayush Doctors has been approaching the Tribunal repeatedly for equal treatment with the Cadre of Allopathic doctors. The Courts/Tribunal has on various occasions granted relief, primarily on the ground that two sets of doctors governed under similar rules and performing similar duties cannot be discriminated. We feel that same reasoning applies in the present case also.
6. In view of the above, the present OA is allowed. The respondents are directed to extend the DACP scheme upto the SAG level to the AYUSH cadre of 18 Item No. 51 (C-5) O.A. No.1419/2017 MCD/applicants, in identical terms as the same has been extended to the Ayush Cadre of CHS, i.e. w.e.f 29.10.2008. It is further directed that necessary steps in this regard shall be taken by the respondents within three months from the date of issue of a certified copy of this order. There shall be no order as to costs.
(Dr. Anand S. Khati) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/jyoti/