Central Administrative Tribunal - Delhi
Dr. Sudesh Kumar vs Gnct Of Delhi on 2 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.3145/2013
OA No. 3139/2013
OA No.3140/2013
OA No.3141/2013
OA No.3142/2013
Order Reserved on: 15.05.2014
Pronounced on: 02.07.2014
Honble Mr. V.N. Gaur, Member (A)
Honble Mr. Rajvir Sharma, Member (J)
OA No.3145/2013
Dr. Sarla Gupta
W/o Shri Brijesh Garg
R/o B-231, First Floor
Vivek Vihar, Phase I
Delhi-110095
OA No.3139/2013
1. Dr. Pradip Kumar Saha
S/o Late Shri Manindra Kumar Saha
R/o A-148, Block, Dilshad Colony
Delhi-110095
2. Dr. Mrs. Gita Saha
W/o Dr. Pradip Kumar Saha
R/o A-148, Block, Dilshad Colony
Delhi-110095
OA No.3140/2013
Dr. Ramesh Chand Khandelwal,
S/o Shri Sri Ram Khandelwal
R/o 135A, DDA LIG Flats
Rajouri Garden, New Delhi-110027.
OA No.3141/2013
Dr. Mrs. Sapna Channa
W/o Shri Avnish Channa
R/o C-88, Multan Nagar
Punjabi Bagh,
New Delhi
OA No.3142/2013
Dr. Sudesh Kumar
S/o Sh. Sumer Chand
R/o 171, Canara Apartments
Sector-13, Rohini
Delhi-110085.
Applicants
(By Advocate: Mrs. P.K. Gupta)
VERSUS
1. GNCT of Delhi,
Through Chief Secretary
Delhi Sachivalaya
New Delhi.
2. Principal Secretary (H & FW)
Dept of Health and Family Welfare
Delhi Sachivalaya
New Delhi.
3. Union Public Service Commission
Through its Chairperson
Dholpur House, Shahjahan Road
New Delhi.
Respondents
(By Advocate: Mr. Amit Anand, Shri R.V. Sinha & Sh.Amit Sinha)
O R D E R
Mr. V.N. Gaur, Member (A) These OAs have been filed by General Duty Medical Officers (GDMO) who came on deputation to Govt. of NCT of Delhi (GNCTD) at different points in time and made a request for absorption in the Delhi Health Service (DHS) cadre. The respondent no.1 after initially taking a decision to consider their request favourably, referred the matter to respondent no.3, UPSC for advice. The respondent no.3 has advised that the relaxation of the relevant rules cannot be resorted to accommodate the requests of the applicants as the DHS Rules do not have provision for absorption of Medical Officers in GNCTD. The applicants, apprehending that the respondent no.1 may issue formal orders of repatriation, have filed these OAs.
2. Since the facts of these cases are quite similar and the points of law involved are the same, we had heard these OAs together and these will be disposed of through this common order.
3. As a representative case, we will be discussing OA-3145/2013. The following prayer has been made in the OA:
a) quash and set aside the impugned Rule i.e. proviso of Rule 8(1) of the DHS Rules, (Allopathy), 2009, being illegal, discriminatory, arbitrary and ultra virus to the Constitution of India;
b) Direct the respondent no.1 & 2, to ignore the wrong advise dt. 07.03.2013 of the UPSC and as the decision to relax the rules has already been approved by the Honble L.G., the process of absorption of applicant be completed and applicant be directed to be absorbed under the Delhi Health Services and formal order of absorption of the applicant be passed;
c) award the costs of proceedings;
d) any other and further relief as deemed fit and proper by the Honble Tribunal may also be passed.
4. The applicant in this case joined Haryana Civil Medical Services as a GDMO on 06.04.1996 and came on deputation to Delhi Govt. with effect from 29.11.2004. Earlier also, she had remained on deputation in Delhi Govt. from April 1999 to March 2004. She had applied for this deputation in response to a circular issued by respondent no.1 inviting applications from Doctors from all the States for appointment on deputation basis. The selection was made by a Committee consisting of Principal Secretary (Health & Family Welfare), Medical Superintendent (Lok Nayak Hospital) and Director (Health Services). The deputation of the applicant was extended on yearly basis up to 5th year and a term of deputation for 6th year was also approved by Lt. Governor subject to clearance from DOP&T beyond 5th year. Later it was approved by Ministry of Home Affairs subject to the condition that no further extension of deputation shall be considered. Applicant, in the meanwhile, submitted a representation dated 28.01.2009 with a request for permanent absorption in DHS. On 08.07.2010 the husband of the applicant also submitted a representation in view of the policies of the Govt. of India regarding posting of husband and wife at the same station vide DOPT OM dated 03.04.1986, 12.06.1987 and 30.09.2009. The respondent no.1 processed his request and also obtained NOC from the parent department of the applicant, i.e., Health Department of Govt. of Haryana. The respondent no.1 vide letter dated 10.02.2012 to respondent no.3-UPSC sought relaxation of Rule 8 of DHS Rules, 2009 to consider absorption of Doctors who were on deputation from other State cadres. This was necessitated because as per the DHS Rules 2009 in proviso to Rule 8, it has been stated that with regard to the posts filled up on deputation it shall be open for the Govt. in consultation with the Commission to consider appointment on absorption basis only in the Non-Teaching Specialist Sub-Cadre. There was no provision for absorption of GDMOs on deputation. Rule 16 of the same Rules give powers to the Govt. to relax any of the provisions of the Rules. The LG, Delhi had taken a view that officers on regular appointment in other State Cadres could be absorbed in GNCT of Delhi. Accordingly, vide letter dated 27.12.2012, the respondent no.1 informed the respondent no.3 that the respondent no.1 was considering a proposal to amend Rule 8 of DHS Rules, 2009 to incorporate the provision for absorption of GDMO also within the limit of 5% of the sanctioned posts of GDMOs, by invoking Rule 16 of DHS Rules, 2009 in consultation with UPSC. As the amendment in the Rules will take some time, respondent no.3 was requested again to grant a one time exemption for absorption of GDMOs from other States. Respondent no.3 vide letter dated 07.03.2013 declined the request stating the following:
2. The proposal has been examined in the commission. As per Rule 8 of DHS Rules, there is no provision for absorption of Medical Officer in GNCTD. Relaxation cannot be resorted to bringing a new method of recruitment not originally envisaged in the Rules. In the absence of absorption being provided as the mode of recruitment in the R.Rs, no relaxation of the same can be considered.
5. Mrs. P.K.Gupta, learned counsel for the applicants stated that the proviso to Rule 8 (1) of the DHS Rules (Allopathy), 2009 was illegal, discriminatory and arbitrary. Clause (1) of Rule 8 provided for filling of Duty Posts by deputation (including short terms contract). It provided that the grades of Medical Officer in the General Duty Sub-Cadre and Specialist Grade-III in the Non-Teaching Specialist Sub-Cadre could be filled up by deputation up to a level of 5% of duty posts. This did not differentiate between GDMOs and Non-Teaching Specialists. However, in the proviso to the same rule, a distinction has been made between GDMO and Non-Teaching Specialist and enabling provision has been kept for absorption of deputationists in Non-Teaching Specialist Sub-Cadre in consultation with the UPSC. Such a discrimination was totally irrational and violative of the constitutional provisions. The proviso to Rule 8 was not there even in the draft rules prepared by respondent no.1 for DHS (Dental Surgeon Cadre). It was further submitted that the DHS Rules, 2009 was a replica of the CHS Rules. The only difference being that instead of 5%, the CHS Rules had a provision to fill up 20% of duty posts by deputation without any differentiation between GDMO & Non-teaching Specialists Cadre. Therefore, a deviation from CHS Rules by conferring on the Non-Teaching Specialist cadre with a special privilege and opportunity of absorption was not justified. The learned counsel relying on E.V.Chinnaiah vs. State of A.P. and others, AIR 2005 SC 162 stated that such sub-classification can not be made to leave out a few Sub-Cadres of Medical Officers and absorb a Sub-Cadre of other Medical Officers. The Honble Supreme Court in this case has held:
The very idea of placing different castes or tribes or group or part thereof in a State as a conglomeration by way of a deeming definition clearly suggests that they are not to be sub-divided or sub-classified further. If a class within a class of members of the Scheduled Castes is created, the same would amount to tinkering with the List alongwith CS (OS) No. on Such sub-classification would be violative of Article 14 of the Constitution of India.
6. In the same judgment the Honble Supreme Court has extracted the following from another judgment in Kuldeep Kumar Gupta vs. H.P.Electricity Board, AIR 2001 SC 308, Pattanaik, J. (as the learned Chief Justice then was) in no uncertain terms observed that in Triloki Nath Khosa a word of caution has been indicated that the right to classify is hedged in with salient restraints stating:
5. ... Classification must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved and judicial scrutiny extends only to the consideration whether the classification rests on a reasonable basis and whether it bears a nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification."
7. Learned counsel also contended that the respondent no.1 had already assessed that there was a dearth of Doctors and had obtained NOC from the Govt. of Haryana and they decided to regularise the services of the Doctors employed on contract basis prior to 2006 following the orders of this Tribunal in OA-1259/2011 dated 07.05.2012. The applicants were much better placed than the contract or ad hoc Doctors and their request was considered favourably by respondent no.1. Learned counsel termed the advice of the UPSC as contrary to the rules and against the public interest as Rule 8 (1) empowered the Government to take 5% posts of GDMOs and Specialist Grade-III and non-Specialist Sub-Cadre on deputation.
8. It was also argued that LG, Delhi had the powers to relax the DHS Rules, which did not require approval of the UPSC. UPSC was only a consultative body and its advice was not binding on the State Govt. Once the State Govt. had taken a view that because of the shortage of Medical Officers the services of the applicants were required in DHS and decided to absorb the Doctors on deputation then UPSC could not have gone against that decision and even if they had given such an advice the State Government should have stuck to its decision in public interest. According to the learned counsel, once the recruitment rules framed under Article 309 of Constitution of India specifically provided for absorption of deputationist as one of the modes of recruitment, the UPSC could not have advised de hors the rules. The learned counsel with the help of copies of various notings in the files of respondent no.1 obtained under RTI sought to establish that there were views within the State Govt. that supported absorption of deputationist taking into account the shortage of Doctors and that the applicants continued to be on deputation beyond 5 years with the approval of LG, Delhi.
9. Learned counsel for respondent no.1 in his submission stated that the issue with regard to the provision of absorption of one category of Doctors was a policy issue and, therefore, beyond the purview of this Tribunal. In this regard he relied on the cases of Ekta Shakti Foundation vs. Govt. of NCT of Delhi, (2006) 10 SCC 337 and Union of India vs. Basudeva Dora and others, (2003) 2 SCC 632. The rule challenged by the applicant was statutory in nature framed under Article 309 of the Constitution of India and it did not allow absorption of GDMOs as a conscious policy. Countering the suggestion of the learned counsel for the applicant that such discrimination between GDMOs and Non-Teaching Specialists was violative of the Constitution of India, he stated that the two categories of Doctors could not be compared as their recruitment rules, qualification for appointment and retirement age were different. As such they cannot demand parity in all respects. It was conscious decision of the respondent no.1 to keep the provision of absorption in respect of Non-Teaching Specialist and not for GDMOs as there was a shortage of the former. He also refuted the submission made by the learned counsel for the applicant that the LG, Delhi had the power to amend rule on his own and no consultation with the UPSC was required. He referred to the Rule 16 which read as follows:
Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category of persons.
10. It was stated that the power of LG, Delhi to relax the rules was subject to consultation with the respondent no.3 and cannot be exercised independently, as suggested. He also clarified, even though LG, Delhi had approved the proposal of absorption of Doctors on deputation from States while sending the proposal to UPSC for consultation, after the advice of the UPSC was received, it was reconsidered in the Government. The final decision of the respondent no.1 was not to go ahead with the proposal of a relaxation/amendment of the rules to provide for absorption of deputationist. Referring to the contention of the applicant that the State Govt. was obligated to consider her request in view of the policy of Govt. of India to post husband and wife in the service together, learned counsel stated that in the instant case, the husband and wife were employed in two different States, and therefore, they would not be covered under the OMs referred to by the applicant. However, in accordance with the spirit of these OMs, the respondent no.1 had considered the request of the applicant liberally and allowed her second representation in the year 2004 and extended it from time to time by even relaxing the rules regarding deputation. Starting from first deputation in 1999, the applicant has been on deputation for almost 14 years. The absorption of the applicant under the welfare policy can be considered only if there was a provision in the relevant rules and not otherwise. He further stated that mere NOC from the parent department could not bestow any legal right to the petitioner for absorption in the borrowing department. He referred to Rameshwar Prasad vs. Managing Director, U.P. Rajkiya Nirman Nigam Ltd. & Ors., AIR 1999 SC 3443 wherein it has been held that It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.
11. He also referred to Kunal Nanda vs. UOI, (2000) 5 SCC 362 on the same point. On the principles involved in absorption of deputationist, he relied on the decision of the High Court in Chander Pal Singh vs. UOI, (2003) Vol. II AD (Delhi) 772 and Kunal Nanda (supra). He also relied on the decision of the Honble Supreme Court in Ekta Shakti Foundation (supra).
12. Learned counsel for respondent no.3 justified the advice given by UPSC on the proposal of the respondent no.1 for relaxation of Rule 8 to permit absorption of the applicants in the DHS cadre. He made the following points:
(i) The appointment of the applicant as Medical Officer on deputation to Govt. of Delhi was not in accordance with the Govt. procedure laid down in this behalf. It was also in the statutory rules or DHS Rules which provides for consultation of UPSC before making such appointment. A reference was made to the DOPT OM dated 09.07.1985 wherein it has been stated that when new posts are created and no recruitment rules have been framed, consultation with the Commission is all the more necessary before appointments are made and the Ministries always should consult the Commission before making such appointments. The Commission have observed that it should be possible to fill such posts by transfer on deputation or by promotion also in consultation with the Commission even if the recruitment rules are yet to be framed. It has been decided that in these cases, the Ministries/Departments should make an immediate reference to the Commission for deciding the mode of recruitment to the post along with their suggestions. On receipt of such a reference, the Commission will advise on the mode of recruitment. Where the Commission advise direct recruitment, the post will be advertised by the Commission, where the Commission advise the filling of the post by transfer on deputation or by promotion from lower grade or short-term contract, the Ministry will take further action as per advise of the Commission and fill the post in consultation with the Commission accordingly.
(ii) The applicants case for absorption was not covered by the Govt. of Indias instructions as contained in DOPT OM dated 03.10.1989 which expressly provides for extension of period of deputation for the 5th year or for the second year in excess of prescribed period in the recruitment rules subject to prior approval of the lending organisation and the UPSC, at no point in the past such consultation has been made.
(iii) The continuation of the applicant on deputation basis without consultation with the UPSC for a period exceeding 8 years was unauthorised.
(iv) The applicant was not eligible for absorption as per provisions of the recruitment rules. The respondent no.3 has stated that DOPT OM of 03.10.1989 also contains provision for absorption only where the recruitment rules provide for such appointment by transfer on deputation. However, such absorption has to follow, inter alia, the condition that initial selection on deputation basis should have been made in consultation with the Commission which is not the case in respect of the applicants.
(v) Even if the recruitment rules/DHS Rules are amended which provided for absorption, the same would come into force with prospective effect only from the date of publication in Gazette and candidature of the applicant would be considered thereafter along with other eligible candidates after re-circulation of the post.
13. The main contention of the applicant has been that the respondents could not have made an irrational and illegal and unjustifiable sub-classification in the proviso to Rule 8(1) of the DHS Rules. In the main clause of Rule 8 (1) with regard to deputation no distinction has been made between GDMOs and Specialist non-teaching sub-cadre. In Rule 7 regarding maintenance of service also there is no such distinction between the two Sub-Cadres. The CHS Rules which is the mother of document for the present DHS Rules did not make such distinction. Therefore, keeping such a provision in the proviso to Rule 8 (1), therefore, is discriminatory and violative of Article 14 of the Constitution.
14. We have carefully considered the contentions raised by both the sides during the arguments and in the pleadings. We will first consider the contention of the applicant that proviso to Rule 8 (1) was discriminatory, and therefore, violative of Article 14 of the Constitution. Learned counsel for the applicant had relied on
(i) E.V.Chinnaiah vs. State of A.P. and others, AIR 2005 SC 162
(ii) Charanjit Lal Chowdhary vs. UOI & Ors., AIR 1951 SC 41 (1)
(iii) Deepak Sibal vs. Punjab University & Anr. AIR 1989 SC 903.
15. We have considered the judgments cited by the learned counsel for the applicant mentioned above but find that considering the facts of those cases, the judgments are not relevant in the present OA. In E.V.Chinnaiah (supra) the Honble Supreme Court was dealing with the question of sub-classifying Scheduled Castes and redistributing reservation already made which is quite different from sub classifying posts as GDMOs and Speacialists.
16. In Charanjit Lal Chowdhary (supra) it was held by Honble Supreme Court that A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed If there is a classification, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbitrarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him.
17. In Deepak Sibal (supra) the Honble Supreme Court has reiterated the principle that Article 14 forbids class legislation but does not forbid reasonable classification. Whether a classification is a permissible classification under Art. 14 or not, two conditions must be satisfied, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question.
18. In this context, it is relevant to refer to the eligibility qualifications required for the GDMOs and Non-Teaching Specialist as per the DHS Rules, the basic qualification required for Specialist Grade-III is a Post-graduate degree/diploma in the concerned super specialty with the age limit being not exceeding 45 years. In the case of GDMOs only a recognised MBBS qualification is required within the age limit of not exceeding 32 years. Specialists are placed in PB-3 Rs.15,600-39,100 Grade Pay Rs.6600 on their first appointment while the Medical Officers GDMOs are placed in the PB-3 with a grade pay of Rs.5400. There can hardly be any doubt that the two categories of Doctors are entirely different and a sub-classification as has been done in the proviso to Rule 8 (1) of DHS Rules cannot be said to be discriminatory.
19. In Mewa Ram Kanojia vs. All India Institute of Medical Science and others, (1989) 2 SCC 235, the Honble Supreme Court has held that the doctrine of equal pay for equal work is not an abstract doctrine. Equality must be amongst equals, unequals cannot claim equality. Even if the duties and functions are of similar nature but if educational qualifications prescribed for the two posts are different and there is difference in measures of responsibilities, the principle of equal pay for equal work would not apply. Different treatment to persons belonging to the same class is permissible on the basis of educational qualification. In Union of India & ors. vs. Secretary, Madras Civil Audit and Accounts Association and another, JT 1992 (1) 586, the Honble Supreme Court has held that equality before the law means that among equals the law should be equal and should be equally administered and that like should be treated alike. However, the principle does not take away from the State the power of classifying persons for legitimate purposes. In the light of the law as laid down in the above mentioned judgments of Honble Supreme Court, there is no doubt that classification of Doctors into two Sub-Cadres of GDMOs and Non-teaching Specialists for the purpose of absorption in the DHS to achieve the objection of enhancing the availability of Specialist in the service cannot be termed as arbitrary or illegal.
20. We agree with the learned counsel for the respondents that such sub classification of cadres would come within the purview of the policy making and hence in the domain of the executive. We quote from the same case, Basudeva Dora (supra) wherein it was observed by the Honble Supreme Court that Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
21. In Ekta Shakti Foundation (supra) it was held that in matter of policy decisions or exercise of discretion by Government, so long as infringement of fundamental rights is not shown, the courts will have no occasion to interfere and court will not and should not substitute its own judgment for that of executive in such matters.
22. We are in agreement with the learned counsel for respondent no.1 that a proposal mooted for the absorption of the applicant by respondent no.1 and obtaining NOC from the parent cadre cannot become a ground to claim a legal right for absorption. In this context, we refer to Kunal Nanda (supra) wherein it was held by Honble Supreme Court that A deputationist cannot assert and succeed in his claim for permanent absorption in the department where he works on deputation unless his claim is based upon a statutory rule, regulation or order having the force of law. A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. There is no vested right in such a person to continue for long on deputation or get absorbed in borrowing department. The respondent no.1 had processed the request of the applicant and her husband in terms of the DHS Rules, 2009. The proviso to Rule 8 has unambiguous provision that the absorption of deputationist can be considered only for the Non-Teaching Specialist category of Doctors, and therefore, there is no scope for consideration of the request of the applicant under these rules. The respondent no.1 had, therefore, proposed relaxation of proviso to Rule 8 (1) exercising the power under Rule 16. Learned counsel for the applicants has not been able to identify the source of power of respondent no.1 that would enable it to relax the provision of these rules without consulting the respondent no.3. Rule 16 of the DHS Rules, 2009 specifically provides that where the Government is the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the Commission, relax any of the provisions of these rules with respect to any class or category of persons. Such consultation was, therefore, unavoidable for the respondent no.1. Another contention raised by learned counsel for the applicants is that the respondent no.1 was not bound by the advice of the respondent no.3. We agree with this contention but at the same time, it cannot be construed therefrom that respondent no.1 getting persuaded by the advice of respondent no.3 cannot change its earlier stand or view. In this case, precisely this is what has happened, as shown by learned counsel for respondent no.1 by producing the original file wherein the decision making levels in the Government have concurred with the advice given by respondent no.3 despite the fact that it involved reversal of their earlier view. It is logical to conclude that, as envisaged in the rules, the view taken by the decision making authority after consulting respondent no.3 and considering its advice, would be the final view of the Govt. and not the one which had been taken while sending the proposal for advice of respondent no.3.
23. With regard to the contention that UPSCs advice was contrary to the rules and against the public interest, we do not find much force in this argument. The learned counsel for respondent no.3 has shown that the initial appointment of the applicant and continuation of the deputation from second year onwards after the expiry of the initial deputation term without consultation with UPSC was unauthorised. The learned counsel for the applicant has not been able to refute this submission by respondent no.3 except saying that on each occasion of extension of deputation, the approval was given by LG, Delhi. It is trite that when there are express provisions in the rules to do a thing in a particular manner, the same has to be done in that manner. In this case since the rules provided consultation with respondent no.3 and the same was not done, the approval of LG, Delhi alone cannot cure the defect in the procedure that was followed while appointing or giving extensions to the applicant. The learned counsel for the applicant has also referred to the decision of this Tribunal in OA-3827/2013 and OA-2565/2013 wherein it was observed that:
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.
24. In our view this is hardly the case in the present OA where firstly, there was no Cabinet decision regarding the relaxation of the Rule 8 of DHS Rules, 2009 and secondly, the decision makers themselves had revised their view and the decision after consulting UPSC. Thus, the final decision irrespective of the manner in which it was arrived at, was that of the respondent no.1, and therefore, we do not find any legal lacuna in the same.
25. We have perused the OAs No. 3145/2013, 3139/2013, 3140/2013, 3141/2013, 3142/2013 and find that the prayer, cause of action and the arguments are similar and the legal points raised are the same. The only difference is that the applicants came on deputation to respondent no.1 from different States on different dates during the year 2007 and 2008 whereas the applicant in the OA-3145/2013 had come on deputation in 2004.
26. In the light of the foregoing discussion, we do not find that the proviso to Rule 8 (1) of DHS Rules, 2009 suffers from any legal infirmity. We also do not find that LG, Delhi has power to relax the provision of DHS Rules under the powers bestowed on him under Rule 16 without consulting the UPSC. After such consultation LG had decided against any amendment in the DHS Rules. It is the that decision of LG which is legally valid under Rule 16 and not the view taken by him at the time of sending proposal to the UPSC at the consultation stage. The OAs are, therefore, devoid of merit and the same are dismissed. No costs.
( Rajvir Sharma ) ( V.N. Gaur )
Member (J) Member (A)
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