Central Administrative Tribunal - Delhi
Dr.Neetu Chaudhary vs Govt. Of Nct Of Delhi on 22 November, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3827/2013 M.A.No.3115/2013 O.A.No.2565/2013 M.A.No.3117/2013 Friday, this the 22nd day of November 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) OA 3827/2013 1. Dr.Neetu Chaudhary, W/o Dr. Manoj K.Joon, Aged about 38 years, R/o H.No.109, Navyug Apts., Sector-9, Rohini, Delhi-85 2. Dr. Sonali Bisht, W/o Shri S.D. Bisht, Aged about 43 years, B-32, Silver Oak Apartments, 109 IP Extension Patparganj, Delhi-92. 3. Dr. Sanjivini Gupta W/o Dr. Divya Aggarwal, Aged about 40 years, 7A Railway Colony, Tis Hazari, Delhi-54 4. Dr. Seema Pundir, W/o Sudhir Rawal, Aged about 41 years, C-78, Farmers Apartments, Sec-14, Rohini, Delhi-110085. 5. Dr. Sumanta Boro S/o Shri Golap Boro, Aged about 40 years 165, Ist Floor, Pocket-21, SEC 24, Rohini, Delhi-110085 6. Dr. Sumit Chugh S/o Shri J.L. Chugh, Aged about 39 years, E-13, Ist Floor, New Mulatan Nagar, Delhi. 7. Dr. Soni Pandey, D/o RC Pandey Aged about 40 years 170, Lok Nayak Apartments, Sec-9, Rohini, Delhi-110085 8. Dr. Ritika Gandhi, W/o Dr. Vikram Singh, Aged about 37 years 506, Janki Apartments, Plot-7, Sec 22 Dwarka, Delhi-110075 9. Dr. Gokul Chand Verma, Aged about 43 yaars, S/o Shri Pala Ram, 5-A/165, IInd Floor, Gali No.6, WEA, Karol Bagh, New Delhi-5 10. Dr. Deepika Sethi W/o Dr. Ashwini Sethi, Aged about 36 years, R/o H.No. E-80, Naraina Vihar, New Delhi-110028 11. Dr. Puja Jain Dewan W/o Dr. Amrit Sharma Aged about 38 years, R/0 29/409, East End Apartment, Mayur Vihar, Phase-1, Patparganj Ext, Delhi-96 12. Dr. Meenakshi Sharma, W/o Dr. Amrit Sharma, Aged about 39 years, R/0 109, Aashirwad Enclave, Plot 104, IP Ext., Patparganj, Delhi-92 13. Dr. Anuradha Garg, W/o Dr. Dheeraj Garg, Aged about 40 years, R/o House No.18, Street No.3, New Krishna Nagar, Delhi-51 14. Dr. Ashim Banerjee, Aged about 41 years, S/o Late Ashok Banerjee, R/o B/286, DDA MIG Flats, East of Loni Road, Delhi-93 15. Dr. Nandita Joshi Aged about 37 years, D/o Mr. Madan Joshi, W/o Dr. Nerupam Adlakha, R/o 191, SBI Colony, Paschim Vihar, Delhi. 16. Dr. Chavi Sarabjeet Sharma W/o Dr. Puneet Sharma, Aged about 40 years, R/o B-77, Vivek Vihar, Phase-II, Delhi. 17. Dr. Rashmi D/o Sh.Sada Nand, Aged about 40 years, R/o C-24, Arya Nagar Apartment, Plot No.91, Patparganj, Delhi-92 18. Dr. Varun Kulshreshtha S/o Sh. B.L.Kulshreshtha Aged about 47 yers, R/o A-29, Sector 27, NOIDA 19. Dr. Mukesh Anand, S/o Shri Kishan Lal, Aged about 45 years, R/o Kanti Nagar, Delhi. 20. Dr. Alka Siroha D/o Shri Budh Singh, Aged about 42 years, R/o WP7, Wazirpur, Ashok Vihar, New Delhi-52 21. Dr. Pramod Arya S/o Late D.R.Arya, Aged about 40 years, R/o G-29/118, Sec-3, Rohini, Delhi-110085 22. Dr. Anju Bhatia Nee Baijal W/o Dr. Rajiv Bhatia Aged about 45 years, R/o H.No.A4/443, Pachim Vihar, New Delhi-110063 23. Dr. Ashoo Gupta W/o Dr. Gurudutt Gupta, Aged about 40 years, R/o H.No.93, Mausam Apt., West Enclave, Pitampura, Delhi-110034 24. Dr. Poonam Joon S/o Dr. Sandeep Bhagat Aged about 37 years, R/A-8-9, Parijat Apt. West Enclave, Pitampura, Delhi-110034 25. Dr. Vikas Dabas S/o Sh Nafe Singh Aged about 35 years, R/o VPO Lad Pur, Near Bus Stand, New Delhi-110081 26. Dr. Nidhi Chopra, D/o Shri A.K.Chopra, Aged about 38 years R/o GP-39, Pitampura, Pitampura, Delhi. 27. Dr. Manish K. Gupta S/o Sh. SS Gupta Aged about 43 years R/o 59 Y2/C Dilshad Garden, Delhi. 28. Dr. Atul Jain, S/o Shri B.K.Jain, Aged about 43 years, 1-5/68, Sector-16, Rohini, Delhi. Applicants (By Advocate Ms.Aishwarya Bhati ) VERSUS 1. Govt. of NCT of Delhi Through its Secretary, Department of Health and Family Welfare, 9th Level, A Wing, Delhi Secretariat, IP Estate, New Delhi-2 2. The Director Directorate of Health Services Govt. of NCT of Delhi F-17, Karkardooma, Delhi-32 3. Union Public Service Commission through Secretary Dholpur House, Shahjahan Road New Delhi-69 .. Respondents (By Advocates: Mr. Amit Anand for Govt. of NCT of Delhi Mr. J B Mudgil for Union Public Service Commission) O.A.No.2565/2013 1. Dr. Amit Shokeen s/o Mr. Jagbir Singh aged about 34 years r/o H.No.179, Mangolpur Kalan Delhi-85 2. Dr. Vikash Kumar Raj s/o Mr. Brajnandan Prasad aged about 33 years r/o 583, DDA Flats, Sector-3, Pocket 16 Dwarka, Delhi 3. Dr. Nageshwar Kumar Nagar s/o Mr. Bhagwat Singh aged about 41 years r/o 2nd Floor, Plot No.3, Friends Enclave Pitampura, Delhi-34 4. Dr. Rajesh Kumar s/o Mr. Om Prakash Aged about 41 years H.No.102, Main Bazar, Narela, Delhi-40 5. Dr. Sanjay s/o Mr. Chhote Lal aged about 38 years r/o 165, United Apartments, Plot No.34, Delhi 6. Dr. Suman Sarkar s/o Mr. Ujjal Kumar Sarkar aged about 35 years r/o C-15, 1st Floor, Hari Nagar New Delhi-64 7. Dr. Prashant Kumar s/o Dr. Bachchu Singh aged about 38 years r/o Z-20, Dayalsar Road, Uttam Nagar New Delhi-59 8. Dr. Rakesh Kumar Chaubey s/o Mr. Abhimanyu Chaubey aged about 37 years SDDMASF Residential Complex Type IV, Q.No.2, Dabri, New Delhi-45 9. Dr. Sukrit s/o Sunil Kumar aged about 32 years r/o 322/1, Top Floor, Masjid Modh South Extn. Part II New Delhi-49 10. Dr. Aseem Taneja s/o Dr. D K Taneja aged about 35 years r/o BJ-91, East Shalimar Bagh Delhi-88 .. Applicants (By Advocate: Mr. Nilansh Gaur) Versus 1. The Principal Secretary Ministry of Health and Family Welfare Govt. of NCT of Delhi 2. The Secretary Union Public Service Commission Dholpur House, New Delhi 3. The Chief Secretary Govt. of NCT of Delhi Delhi Sachivalaya, IP Estate New Delhi 4. The Secretary Ministry of Health and Family Welfare Nirman Bhawan, New Delhi .. Respondents (By Advocates: Mr. Amit Anand for Govt. of NCT of Delhi Mr. J B Mudgil for Union Public Service Commission) O R D E R (ORAL) Honble Mr. A.K. Bhardwaj, Member (J):
The applicants in OA No. 3827/2013 were appointed as Junior Specialists/GDMOs in the Directorate of Health Services, Government of NCT of Delhi between 2006-2009 and are still continuing in service in such capacity. In Rule 6 (2) of Delhi Health Service (Allopathy) Rules, 2009 (hereinafter referred to as the Rules), it could be provided that all officers appointed on contract/ad hoc basis on or before 18.12.2006, i.e. the date of issue of Govt. of NCT of Delhi O.M.No.F.70 /49 /2006 /H&FW/SSHFW/ 463-475 should be deemed to have been appointed under the said rules on being found fit after assessment of their suitability based on requisite educational qualifications and experience etc and would be assigned to the sub-cadre of General Duty Medical Officers or non-teaching specialists; as the case may be and shall be members of the service at the entry level of the respective sub-cadre at the initial constitution stage. When the said Rules were notified, such doctors who were appointed on contract basis after the crucial date of 18.12.2006 filed OA Nos 1259/2011, 1209/2011, 3936/2011, 1453/2010 and 1048/2010 questioning the aforementioned Recruitment Rules. For easy reference, the prayer made in OA Nos.1453/2010 and 1048/2010 is extracted hereinbelow:-
(a) quash and set aside the impugned rule being arbitrary, illegal and ultra vires the Constitution of India and
(b) direct the respondents to initiate process of direct recruitment for purposes of filling up the posts and consider the applicants therein.
(c) or in the alternative, the applicants be also considered in initial Constitution of service in Specialist sub-cadre of DHS
(d) award costs of the proceedings and A Division Bench of this Tribunal disposed of the said OAs in terms of order dated 17.05.2012. Para 32 of the order reads as under:-
32. Before parting with the order, we consider our solemn duty to make certain observations in the concluding part of the order also in the light of the observations made in the body of the order regarding doctors who were appointed post 18.12.2006 and prior to 23.12.2009 for inclusion in the constitution of the cadre. We advise the Govt. of NCT of Delhi as is their stand regarding the post 18.12.2006 appointed doctors to seek advice of UPSC to consider the contractually appointed such doctors for inclusion in the constitution of the cadre. The Govt. of NCT of Delhi shall also consider the matter of age relaxation of these doctors. Thereafter a note for the Council of Ministers regarding relaxation in the provisions of Rule 6 (2) of the Rules, 2009 (ibid) was prepared. In part-III of the note, it was proposed to invoke the powers available under Rule 16 of the said Rules and relax Rule 6 (2) to include those contractual doctors who were appointed after 18.12.2006 and prior to 23.12.2009 in the initial constitution of the Delhi Health Services. The issue for consideration and decision mentioned in part V of the note reads as under:-
Issue for consideration and decision:- The consideration and the approval of the Council of Ministers is solicited for:
The inclusion in the initial constitution of the Delhi Health Service (Allopathy) of doctors appointed on contract basis up to 23rd December, 2009, i.e. the date the rules of the service were published in the official gazette for the first time.
To achieve this end, relax the rule 6 (2) relating to the initial constitution of the service as formulated in para III above; and To permit relaxation of the age ceiling as may be warranted for the doctors under consideration thus enabling their suitability assessment by the UPSC. The said note was approved by the Cabinet on 10.01.2013. When the implementation of the aforementioned Cabinet decision was in progress, the UPSC invited applications for filling up the vacancies of Specialists Grade-III (Anaesthesia) /Psychiatry /General Surgery/Orthopaedics/Paediatrics/ Obstetrics & Gynaecology/ Orhthalmology /Pathology/ Micro-biology /Dermatology /Radio-Diagnosis /Biochemistry /General Medicine /Pulmonology (Tubefrculosis and Respiratory Medicine Pulmonery Medicine)/ Nephrology/Cardiology/Neuro Surgery/Plastic Surgery and Reconstructive Surgery/Paediatric Surgery/Urology/Medical Gastroenterology and general duty medical officer. Having an apprehension that if the direct recruitment to aforementioned posts is made ahead of their induction in service at the entry level of the respective sub cadre at the initial constitution stage of Delhi Health Service, the direct recruit would become their seniors, the applicants filed present OA praying therein:-
(a) direct the Respondents to immediately undertake and finalize the process of suitability of assessment for appointment of the Applicants in the initial constitution of the Delhi Health Services, with seniority and consequential benefits from the date of their initial appointments, within a time bound manner.
(b) direct the Respondents to immediately undertake and finalize the process of suitability of assessment for appointment of the Applicants in the initial constitution of the Delhi Health Services, ahead of fresh appointment pursuant to the advertisement No.9 of 2013 of UPSC.
( c ) direct the Respondents to immediately undertake and finalize the process of suitability of assessment for appointment of the Applicants in the initial constitution of the Delhi Health Services, on the basis of their work and conduct and proven track record, on the posts already being held by them on contractual basis.
(d) direct the Respondents to grant permanent status to the Applicants from the date of their initial/first appointment and accordingly they should be promoted to their respective ranks as given to CHS doctors under assured career progression, counting full service and seniority as per the Delhi (Allopathy) Rules;
And/or Pass such and other order (s) as this Honble Tribunal may deem just and proper in the facts and circumstances of the case. Similarly the applicants in OA No. 2565/2013 also approached this Tribunal making the prayer:-
8.1. set aside the impugned advertisement at Annexure A-1 with liberty to the respondents to re-advertise the post after the applicants are regularly appointed against the available posts of Medical Officers in the initial constitution of service under DHS (Allopathy) Rules, 2009.
8.2 direct the respondents to comply with the directions in OA 1209 of 2011 and regularly appoint the applicants as Medical Officers by giving them the benefit at par with one 18.12.2006 Medical Officers with all consequential benefits by treating them in the initial constitution of service under DHS (Allopathy) Rules, 2009; and 8.3 Any other relief as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted. In OA 3827/2013 this Tribunal passed the following interim orders on 30.10.2013:-
On initial constitution of Delhi Health Services (Allopathy), Government of India notified the Recruitment Rules called Delhi Health Services (Allopathy) Rules 2009. In Rule 6 of the said Rules, it was provided that all the officers appointed on contract basis/ad hoc basis on or before 18.12.2006, i.e. the date of issue of Government of Delhi OM No. F. 70 /49/ 2006/H&FW/SSHFW/463-475 would also be entitled to be appointed on the basis of their suitability as assessed by the Commission and subject to fulfillment of the requisite educational qualifications and experience prescribed for the post and being found fit.
Today, Ms. Aishwarya Bhati, learned counsel for applicants referred to the Cabinet decision whereby the condition of being in service on contract or ad hoc basis on or before 18.12.2006 has since been relaxed and extended upto 23.12.2009. According to her, all the applicants were appointed as Junior Specialist/GDMO on contract basis in Delhi Government Hospitals and were in position before 23.12.2009. Her grievance in the present Original Application is that though the Government of NCT of Delhi has sent a letter to Union Public Service Commission way back on 15.03.2013 for assessing the JS/GDMO who fulfilled the condition for regular appointment as per Cabinet decision for their regularization/regular appointment. No action has been initiated in this regard. According to her, if the selection process by way of direct recruitment is completed before assessment of the applicants for their regular appointment/regularization, even such candidates who were their students would become senior them in the service. She prayed for issuance of directions to the respondents to keep certain number of posts f Junior Specialist/GDMO as vacant and not to fill up the same on the basis of direct recruitment pursuant to the selection process set in motion vide Advertisement No. 9 issued in July 2013.
Heard Issue short notice to the respondents on admission and interim relief, returnable on 12.11.2013. In the meantime, the respondents would keep twenty seven posts of Junior Specialist and one post of GDMO vacant. The respondents would ensure that the short reply is filed before the next date of hearing.
Service dasti. Relying upon the said interim order. We passed interim order dated 8.11.2013 also in OA 2567/2013 directing the respondents to keep the posts occupied by the applicants vacant, i.e. Junior Specialists and GDMO in the OA. The Government of NCT of Delhi, i.e. respondent Nos 1 and 3 filed MA No.3115/2013 in OA No.3827/2013 and MA No.3117/2013 in OA No.2565/2013 for vacation of the aforementioned interim order. Having taken note of the submissions of counsel present for the parties, we dictated the following order:
The Note for the Council of Ministers contained the provision for inclusion in the initial constitution of the Delhi Health Service (Allopathy) Rules, 2009 of doctors appointed on contract basis upto 23.12.2009, i.e., the date the rules of the service were published in the official gazette for the first time. It was also provided in the Note that to achieve the end, Rule 6 (2) of the Recruitment Rules relating to the initial constitution of service was to be relaxed as formulated in paragraph III referred to therein. For easy reference, relevant excerpt of the said Note placed on record at page 202 of the paper book is extracted hereinbelow:-
1. The inclusion in the initial constitution of the Delhi Health Service (Allopathy), of doctors appointed on contract basis up to 23rd Decembe, 2009, i.e. the date the rules of the service were published in the official gazette for the first time.
2. To achieve this end, relax the rule 6(2) relating to the initial constitution of the service as formulated in para III above
2. The Note was approved by the Cabinet on 10.1.2013. Thereafter, the applicants herein, who were appointed on contract basis in Delhi Health Service, expected their consideration for regularization like such doctors, who were appointed upto 18.12.2006. Nevertheless, the respondents initiated the process for direct recruitment for the posts of Junior Specialist / GDMO, etc. Having an apprehension that the posts occupied by them on contract basis would be filled up by way of direct recruitment and their contractual service may be discontinued and the directly recruited doctors would gain seniority over them, the applicants filed the present Original Applications. By way of interim orders, this Tribunal directed the respondents not to fill up the vacancies occupied by the applicants herein on the basis of the selection process mentioned hereinabove.
3. Respondent No.1 Govt. of NCT of Delhi has filed M.A.No.3115/2013 in O.A.No.3827/2013 and M.A.No.3117/2013 in O.A.No.2565/2013 praying for vacation of the interim orders dated 30.11.2013 in O.A.No.3827/2013 and dated 8.11.2013 in O.A.No.2565/2013. It is the stand of said respondent taken in the M.As. that the applicants are only contractual employees and the vacancies, which are notified for selection, are different from these against which the applicants may be considered for regular appointment in terms of the provisions of Rule 6 (2) of the Recruitment Rules.
4. Mr. Amit Anand, learned counsel for respondent No.1 Govt. of NCT of Delhi contended that once the applicants would be regularized and brought on the regular cadre, it would be for the concerned respondent to make vacancies available to them and the applicants should not stall the process of direct recruitment on this ground. He made reference to paragraph 11 of the M.As., which reads as under:-
11. That it is submitted that the apprehensions of the applicants are unfounded and in fact, the Govt. of NCT of Delhi has itself moved a proposal for incorporating applicants as initial constituent of the DHS cadre and once they are appointed as same, it would be the formal duty of the respondents at that point in time, to place them as per the recruitment, in the cadre posts. Hence no prejudice is caused to them, as prospective constituents of DHS cadre, by the present recruitment process which should be allowed to be completed unhindered as it is serving an important public need.
5. In view of the stand taken by respondent No.1 in its M.As., noticed hereinabove, it is clear that the interim orders passed in both the Original Applications would not stand in the way of the respondents in finalizing the regular selection process initiated vide Advertisement No.9 of July, 2013. Since in the M.As. itself it is stated that respondent No.1 is in urgent need of doctors and if the selection process is delayed, it would be against the interest of general public of Delhi, the respondents may also expedite the process of regularization of the applicants herein in terms of the Cabinet decision referred to hereinabove to avoid any future controversy of seniority. After we dictated the aforementioned order, counsel for the parties except respondent no.4, which is only a proforma party in OA No. 2563/2013 jointly submitted that the OA itself may be disposed of finally. There being no substantial conflict in the stand taken by the learned counsels, we also consider it appropriate to dispose of the OA at this stage itself. When the UPSC has not filed any reply, in the short reply filed on behalf of Govt. of NCT of Delhi, an urgency is expressed to fill up the vacancies of doctors (Specialist Grade-III in various streams and GDMOs). In the said reply, a reference has also been made to the order dated 7.05.2012 passed in OA No.1029/2011. In para 4.16 of the reply, it is categorically admitted that the Government of NCT of Delhi has requested the Commission for inclusion of GDMOs and non teaching specialists who were appointed after 18.12.2006 till the date of notification dated 23.12.2009 for their regularization, but the UPSC had advised retention of the provisions as available in Rule 6 (2) of the Rules. For easy reference, para 4.16, 4.20, 4.22, 4.23, 4.36 and 4.39 of the reply are extracted hereinbelow:-
4.16. Matter of record. However, it is stated that Government of NCT of Delhi has requested Commission for inclusion of GDMOs and Non-Teaching Specialists who were appointed after 18.12.2006 to up to the date of notification i.e. 23.12.2009. UPSC vide its letter dated 14.06.2010 have advised retention of the provisions as available in Rule 6 (2) of the Delhi Health Service (Allopathy) Rules, 2009.
xxx xxx 4.20 Mater of record. However, it is stated that Govt. of NCT of Delhi has requested Commission for inclusion of GDMOs and Non-Teaching Specialists who were appointed after 18.12.2006 to up to the date of notification of Delhi Health Services (Allopathy) Rules, 2009 and a policy matter. UPSC vide its letter dated 14.06.2010 have advised retention of the provision as available in Rule 6 (2) of the Delhi Health Service (Allopathy) Rules, 2009. However, once again Govt. of NCT of Delhi has conveyed its decision for inclusion of contract doctors appointed between 18.12.2006 and 23.12.2009 in the initial constitution of Delhi Health Service after obtaining relaxation, under rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009, from the competent authority on 18.03.2013 to UPSC.
xxx xxx 4.22 Matter of record. However, once again Govt. of NCT of Delhi has conveyed its decision for inclusion of contract doctors appointed between 18.12.2006 and 23.12.2009 in the initial constitution of Delhi Health Service after obtaining relaxation, under rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009, from the competent authority on 18.03.2013 to UPSC.
4.23. Matter of record. However, it is stated that Govt. of NCT of Delhi has requested Commission for inclusion of GDMOs and Non-Teaching Specialists who were appointed after 18.12.2006 to up the date of notification of Delhi Health Services (Allopathy) Rules, 2009 and a policy matter. UPSC vide its letter dated 14.06.2010 have advised retention of the provision as available in Rule 6 (2) of the Delhi Health Service (Allopathy) Rules, 2009. However, once again Govt. of NCT of Delhi has conveyed its decision for inclusion of contract doctors appointed between 18.12.2006 and 23.12.2009 in the initial constitution of Delhi Health Service after obtaining relaxation, under rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009, from the competent authority on 18.03.2013 to UPSC.
xxx xxx 4.36. The contents in this para are denied to the extent that the action of the Govt. of NCT of Delhi to request UPSC to consider these doctors for inclusion in the initial constitution in distinct and not linked with the action to
advertise posts for regular appointment of doctors through UPSC. The later action cannot be up held for lack of decision in the former in the larger public interest.
xxx xxx 4.39. Denied as the Govt. of NCT of Delhi has conveyed its decision for inclusion of contract doctors appointed between 18.12.2006 and 23.12.2009 in the initial constitution of Delhi Health Service after obtaining relaxation, under rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009, from the competent authority on 18.03.2013 to UPSC. Further, several posts of GDMO sub-cadre have already been created/under-creation as proposals for launching of various dispensaries and Hospitals are under way to cater to the heath needs of the population of Delhi since 23.12.2009, i.e. the date of notification of Delhi Health Services (Allopathy) Rules, 2009. In this regard, the letter dated 15.03.2013 written by Govt. of NCT of Delhi to UPSC is also relevant and is extracted hereinbelow:
Sub: Suitability Assessment of Contract Doctors appointed after 18.12.2006 upto 23.12.2009 ( date of notification of DHS (Allopathy) Rules, 2009).
Sir, I am directed to inform you that the Govt. of NCT of Delhi has approved inclusion of Contract Doctors appointed between 18.12.2006 and 23.12.2009 in the initial constitution of Delhi Health Services after obtaining relaxation under Rule 6 (2) of Delhi Health Services (Allopathy) Rules, 2009 from the competent authority.
2. The Honble CAT vide order dated 07.05.2012 has dismissed OA No.1048/2010 alongwith other related OAs with the directions that the matter may be referred to UPSC for advice on the proposal to include Contractual Doctors appointed between the aforesaid dates.
3. It is, therefore, requested action for assessment of suitability of Contract Doctors recruited between 18.12.2006 and 23.12.2009 may be taken by UPSC. The list of 63 Medical Officers (GDMOs) and 86 Non-Teaching Specialists, who were appointed on contract for whom this proposal for assessing suitability is being made, is enclosed. From the aforementioned it is clear that the Govt. of NCT of Delhi (Health & Family Welfare Department) is keen to assess the suitability of contractual doctors engaged between 18.12.2006 and 23.12.2009 for including them in DHS at the initial enry level of their respective sub- cadre. No stand of UPSC could be brought forth.
2. As far as the recruitment and conditions of service of persons serving the Union or a State is concerned, in terms of Article 309 of the Constitution, subject to the other provisions contained therein, the acts of appropriate legislature may regulate the 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. In provisions to said Article, it is provided that it is competent for the President or such person as he may direct, in the case of services and posts in connection with the affairs of the Union and for the Governor of the State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under the said Article. As has been ruled in State of Haryana Vs Piara Singh (1992)4 SCC 118) the Recruitment Rules under Article 309 can be framed either by legislature or by executive order. For easy reference, relevant excerpt of said judgment is extracted hereinbelow:-
10. Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe tile conditions of service can be exercised either by making Rules under the proviso to Art. 309 of the Constitution or (in the absence of such
Rules) by issuing Rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal, pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointmerit is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. The principles relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved here. They are Dharwad District P.W.D. Literature Daily Wage Employees Association v. State of Karnataka, (1990) 2 SCC 396 : (AIR 1990 SC 883) and Jacob v. Kerala Water Authority, 1990 Suppl (1) SCR 562 : (AIR 1990 SC 2228). In the first case, it was alleged that about 50,000 persons were being employed on daily-rated or on monthly-rated basis over a period of 15 to 20 years, without regularising them. It was contended that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given, after reviewing the earlier decisions of this court elaborately (at pp. 890-91 of AIR):
In other words, it is the prerogative of the legislature or executive to frame, amend or relax the RRs. The UPSC provided for in Article 320 of the Constitution has the duty to conduct examinations for appointments to the services of the Union or State respectively. Article 320 (3) provides for consultation with the UPSC on all matters relating to method of recruitment to civil services and for civil posts. For easy reference, said article is extracted hereinbelow:-
320(3)(a) on all matters relating to methods of recruitment to civil services and for civil posts. Nevertheless in proviso to said Article, it is specified that the Governor may make regulations specifying the matters in which either generally or in any particular class of case or in any particular circumstances, it shall not be necessary for a public service commission to be consulted. Nevertheless having due regard to Rule 6 (2) of the aforementioned constitutional provisions in the aforementioned Recruitment Rules, i.e. Delhi Health Services (Allopathy) Rules, 2009, it could be provided that where Government is of the opinion that it is necessary or expedient to so it may, for the reasons to be recorded in writing and in consultation with the Commission, relax any of the provisions of the rules with respect to any class or category of persons. In exercise of such power, the Cabinet took the aforementioned decision for relaxing Rule 6 (2) of the RRs and to consider such GDMOs/Specialist Grade III who were appointed between 18.12.2006 and 23.12.2009 at par with those who were appointed prior to 18.12. 2006. The role assigned to Union Public Service Commission in framing the RRs or relaxing the same is only of consultation and not the decision making. Such role may not be assumed by the UPSC as an authority over the rule making authority under Article 309 of the Constitution. The meaning of consultation as mentioned in Blacks Law Dictionary is deliberation of persons on some subject or a conference between the counsel engaged in a case to discuss its questions or arrange the method of conducting it. The said meaning is extracted hereinbelow:-
Blacks law dictionary Consultation. Act of consulting or conferring: e.g. patient with doctor: client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.
An old writ whereby a cause which had been wrongfully removed by prohibition out of an ecclesiastical court to a temporal court was returned to the ecclesiastical court. When the Cabinet, Delhi Government has taken a decision to relax the rules, the role of UPSC is only to suggest the method of carrying out such relaxation and its implementation. Consultant cannot confer upon the authority required to be consulted, the power of accepting or rejecting authority. The function of consultation is entirely different from that of approval and acceptance. Nevertheless the consultation may not be understood as a mechanical concurrence. It is the duty of the consultant to apply its mind on the subject and give its expert opinion fairly.
3. In the present case once the Cabinet of Govt. of NCT of Delhi has taken the decision for inclusion in the initial constitution of Delhi Health Service (Allopathy) of doctors, even such doctors who were appointed on contract basis upto 23.12.2009, the same need to be acted upon, as period of more than 10 months has already passed. The early implementation of the said decision would also avoid a future seniority dispute between the doctors to be considered in terms of Rule 6 (2) of the Recruitment Rules, i.e., the persons like the applicants herein and those who would be directly recruited by way of open competition.
4. In Dr. Akshay Bahadur & others v. Govt. of NCT of Delhi & others (O.A.No.3653/2012) decided on 28.5.2013, this Tribunal viewed as under:-
In the circumstances, we are of the view that apparently the process of regular appointment of the applicants being regularization, due credence should have been given to their experience, work/performance and conduct. The information made available by UPSC to Ms. Aishwarya Bhati, counsel for few applicants vide communication dated 7.09.2004 reads thus:-
No specific parameters fixed in Personal Talk are available on record. However, the assessment of the officers in Personal Talk was decided on the basis of performance in interaction with the officers by the Assessment Boards which include subject Experts. It is thus clear that the assessment of the applicants in personal talk was on the basis of performance in interaction with the officers. Strictly speaking, personal talk in which the applicants participated was not even an interview. The meaning of the term interaction as given in Oxford concise English dictionary is reciprocal action or influence (communication, conduct, interface, dealings, relations). In such process, the Departmental Assessment Board could very well give opportunity to applicants to refer to their work and conduct of past experience as contractual Junior Specialists/GDMOs, as the case may be.
15. In view of the aforementioned, OA is disposed of with direction to respondents to assess the candidature of the applicants once again for their regularization keeping in view the record of their performance in DHS as contractual employee, including their experience. Such elements would be given due weightage in interaction or otherwise. Needful should be done as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order. Till then contractual appointment of the applicants may not be discontinued.
5. While examining the W.P. (C) No.6250/2013 preferred against the said order, the Honble High Court of Delhi could also take the following view:
12. The first respondent Dr.Akshay Kumar, after acquiring MBBS Degree obtained a Masters Degree in Surgery in the year 1997. He completed senior residency i.e. 3 years PG experience from Maulana Azad Medical College New Delhi and joined pursuant to a contract on February 26, 2000. Till today he has worked as Incharge of the Surgery Department for 9 years and has performed more than 2000 major surgeries including Cholecystectomy,Pyelolithotomy,Thyroidectomy,Perotidectomy, Resection of half of the liver, Laparoscopic and advanced laparoscopic surgeries. Major Cancer surgeries including Breast Cancer, Cancer of Kidney, Cancer of Intestines, testicular cancer, prostate cancer and cancer of skin etc. Till date, to his credit, the mortality rate in all surgeries conducted by him is Nil. He was twice nominated for advance No-Scalpel Training to China because he had performed maximum number of NSV cases. Respondent No.2 Dr.Beena Aggarwal, after acquiring MBBS Degree obtained a Masters Degree in Surgery from Swai Man Singh Medical College Jaipur in the year 1987. She completed senior residency i.e. 3 years PG experience from Hindu Rao Hospital Delhi and joined pursuant to a contract on May 01, 1999. Since the year 2004 she has worked as Incharge of the Surgery Department. She was the pioneer in Laparoscopic surgeries at G.G.S.G.Hospital established by the Government of NCT Delhi at North Delhi and had performed major surgeries exceeding 4000 including Cholecystectomy, Pyelolithotomy, Thyroidectomy, Perotidectomy, Laparoscopic and advanced laparoscopic surgeries. Major Cancer surgeries including Breast Cancer, Cancer of Intestines, testicular cancer and cancer of skin etc. She has also performed plastic surgeries like cleft lip. Respondent No.3 Dr.Saroj Bala, obtained MBBS Degree followed by a Post Graduate Degree in Paediatrics. Obtaining employment on contract in June 04, 2004 she has been posted at the N.C.Joshi Hospital Karol Bagh. She has been the Nursery Incharge for sick new born children. The neo-natal death rate is below the statistical death rate in India in the nurseries of which she was incharge of. She has handled thousands of sick new born children. Respondent No.4 Dr.Vimla, obtained MBBS Degree followed by a Post Graduate Degree in Pathology from King George Medical College Lucknow and took contract employment on June 07, 2004. Not a single pathological opinion given till date has been found to be wanting or a wrong analysis. Apart from working in the Path Lab senior resident teaching experience has been acquired. Respondent No.5 Dr.Narender K.Verma, as also respondent No.6 Dr.Ashish Gopal, after obtaining MBBS Degree obtained Post Graduate Degree in ENT. The former took contract employment on June 30, 2000 and the latter in July, 2000. Both of them have performed surgeries in the field of ENT with no mortality till date. The two have acquired expertise in use of laser and cryo technique.
13. In other words the work of all six respondents is not only extensive but is rich in experience. At the cost of public exchequer the five out of six have acquired new skills with new technology being introduced. Surely, all this is relevant and must find a weightage in the criteria of evaluation.
14. But since every decision must have a backing of, if not a rule of law, a jurisprudence on the subject, we would only say that the evaluation of contract appointed doctors and specialists had to be at a point of time which was at a distance from the point as of when the evaluation for fitness had to be done i.e. suitability had to be assessed as on the date of contract employment. If today i.e. on October 28, 2013 we are required to appraise an event as of October 28, 2003, across the arch of the years, in the perspective of the distance, the events to be recollected may have a vivid place but the recollection cannot be sans what happened between October 28, 2003 and October 28, 2013.
15. Thus, we concur with the final destination arrived at by the Tribunal but not for the reasons given by the Tribunal.
16. The writ petition is dismissed in limine but without any orders as to costs.
6. In the circumstances, OAs are disposed of with direction to respondents to finalize the process of relaxation of Rule 6 (2) of the Delhi Health Services (Allopahty) Rules, 2009 undertaken by them in terms of the provisions of Rule 16 thereof within a period of four weeks from the date of receipt of a copy of this order and when the rules are finally relaxed, to undertake the further exercise of assessing of suitability of applicants in terms of the relaxed Rule 6 (2) of the RRs keeping in view the aforesaid orders of the Tribunal and also that of High Court, within further period four weeks.
OAs stand disposed of. No costs.
Let a copy of this order be kept in both the files.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) sunil