—dispute regarding the seniority or promotion. Both sides agreed
that so far as promotion and seniority are concerned, they are given in
accordance with the directions of this Court.
(1998) 4
SCC 107 : JT 1998 (2) SC 159 : (1998) 2 SCALE 69 : (1998) 1 SCR 1139 : (1998)
SCC (LS) 1013
(SUPREME COURT OF INDIA)
Union of
India and Another —Appellant
Versus
Dr. Akhilesh Chandra Agrawal —Respondent
Versus
Dr. Akhilesh Chandra Agrawal —Respondent
K.
Venkataswami and A.P. Misra, JJ.
Civil Appeal No. 14747 of 1996 with C.A. No. 14573 of 1996 (Dr.
P.P.C. Ravani & Anr. vs. Dr. Akhilesh Chandra Agrawal & Ors.); Decided
on : 27-02-1998
Central
Health Service Rules, 1982 — Rule 8(2) — Central Service Rules, 1982 — Rule
8(2) — Orders for regularisation of appointments — Appellants were appointed by
the Union Public Service Commission on a regular basis as fresh entrants, moved
this Court in Writ Petition No. 1228/86 seeking direction from this Court that
their services rendered on ad hoc basis to be counted — In order to ensure that
there is no disturbance of the seniority and the promotional prospects the
regularly recruited doctors, there will
be separate seniority list in respect of the appellants and their promotions
shall be regulated by such separate seniority list and such promotions will
only supernumerary posts — View taken by the Tribunal that those appointed in
the supernumerary posts cannot claim the administrative powers as that will go
only with regular posts is also wrong. The Tribunal treated supernumerary posts
as different one from the regular posts — It is not in dispute that there was
no quarrel between the two groups regarding the seniority or promotion. Both
sides agreed that so far as promotion and seniority are concerned, they are
given in accordance with the directions of this Court, but only regarding the
administrative responsibilities/powers the directly recruited doctors calimed that they alone should be
given such administrative powers irrespective of the seniority which was
accepted by the Tribunal. Court do not think that the Tribunal was right in
conceding the claim of the directly recruited doctors on this aspect — Appeal
allowed.
ORDER
Venkataswami,
J.—These two appeals by special leave arise out of one order of the Central;
Administrative Tribunal, Allahabad Bench, dated 23.1.96 made in O.A. No. 1744
of 1993.
2. Civil
Appeal No. 1477/96 was preferred by the Union of India and Civil Appeal No.
14573/96 was filed by the aggrieved individuals against one and same order of
the Central Administrative Tribunal.
3. The
subject-matter of dispute before the Tribunal related to a letter dated
17.10.93 issued by the Deputy Director Admn. (CGHS), New Delhi, to the Deputy
Director, CGHS, Kanpur. The letter impugned before the Tribunal reads as
follows:-
"No.A-32018/4/93/CHS.II Directorate
General of Health Services New Delhi, dated the 12.10.93, 17.10.93 To The
Deputy Director, CGHS, 117/617, Pandu Nagar, Kanpur. Sub: CGHS,
Kanpur-Clarification regarding fixation of seniority of Chief Medical
Officers-Reg. Sir, I am directing to refer to your letter No.
2-3/90-CGHS/KNP/1876, dated the 27th August, 1993 on the subject mentioned
above and to say that the Ministry of Health & Family Welfare, to whom the
case was referred, have clarified that for the purpose of inter-se-comparison
between initially regularly appointed doctors and beneficiaries in terms of Dr.
Rawani's, case judgment, precedence will be given to those who have an earlier
date/deemed date of regular appointment. The actual date of issue of orders of
organisation is not relevant in these cases. Yours faithfully, (Lala Ram)
Deputy Director Admn. (CGHS) Copy to:- Additional Director, CGHS."
4.
Shortly put the facts leading to the filing of O.A. No. 1744/93 before the
Tribunal are the following:-
The first
appellant and the members of the second appellant were all originally appointed
as ad hoc Group 'B' Doctors under the Central Health Services Rules, 1963
between the years 1968 to 1977. After the first year of service those doctors
continued in service in consultation with the Union Public Service Commission.
In the year 1982 the Central Health Service Rules, 1982 came into force and
under those Rules the posts were classified as Medical Officers, Senior Medical
Officers and Chief Medical Officers. All these Medical Officers were brought
under one Group, namely, Group 'A'. Group 'B' was totally abolished. In spite
of the appellants making repeated representations for regularisation, they
could not get any response from the authorities, which made them to move the
Delhi High Court in W.P. No. 1144/83 for regularisation. The Delhi High Court
dismissed the Writ Petition. However, this Court granted leave and the appeal
was numbered as Civil Appeal No. 3519/84. At the instance of Union of India,
this Court by an order dated 14.7.86 gave liberty to the Government of India to
request the Union Public Service Commission to conduct a special selection
under Rule 8(2) of the 1982 Rules for selection/regularization of the
appellants only from their original dates of appointments. Some of the
appellants, who were appointed by the Union Public Service Commission on a
regular basis as fresh entrants, moved this Court in Writ Petition No. 1228/86
seeking direction from this Court that their services rendered on ad hoc basis
to be counted. This Court on 9.4.87 disposed of Civil Appeal No.3519/94 and
Writ Petition No. 1228/86 holding that orders for regularisation of
appointments be issued and that it will take effect from the respective dates
of their original appointments. A Review Petition filed by the Union of India
was dismissed by this Court on 15.9.87. In spite of this Court's order, the
Union of India did not give effect to the orders of this Court, which made the
appellants to move this Court in Contempt Petition in CMP No. 8076/88. The
Contempt Petition was ultimately disposed of by this Court on 29.10.91 issuing
certain directions, which read as follows:-"
"1.
Each of the appellants will be treated as regularised in Group 'A' of the
Central Health Service From 1.1.1973 or the date of his first initial
appointment in the service (though as ad hoc Group 'B' doctor), whichever is
later.
2. In
order to ensure that there is no disturbance of the seniority and the
promotional prospects the regularly recruited doctors, there will be separate
seniority list in respect of the appellants and their promotions (about which
directions are given below) shall be regulated by such separate seniority list
and such promotions will only supernumerary posts to be created as mentioned.
3. (a)
Each of the appellants will be eligible for promotion to the post of Senior
Medical Officer or Chief Medical Officer or further promotional posts therefrom
taking into account his seniority in the separate seniority list which is to be
drawn up as indicated above.
(b) The
promotion of any of the appellants to the post of Senior Medical Officer, Chief
Medical Officer and further promotional post therefrom will be on par with the
promotion of the regularly recruited doctor who is immediately junior to the
concerned appellant on the basis of their respective dates of appointment. In
other words, if a regularly recruited doctor, on the basis of the seniority
list maintained by the Department, gets a promotion as Senior Medical Officer
or Chief Medical Officer or further promotion thereafter, then the appellant
who was appointed immediately earlier to him will also be promoted as a Senior
Medical Officer or Chief Medical Officer or further promotion therefrom (as the
case may be) with effect from the same date.
4. In
order that there may be no conflict or any possibilities of reversion, the post
of which appellant will be promoted (whether as Senior Medical Officer or Chief
Medical Officer or on further promotion therefrom) should only be to a supernumerary
post. Such number of supernumerary posts should be created by the Government as
may be necessary to give effect to the above directions. No promotion will be
given to any of the appellants in the existing vacancies which will go only to
the regularly appointed doctOrs.
5. The
appellants hereby agree to give up all monetary claims on account of revision
of scales, regularisation or promotion to which they would be entitled till
31.10.1991.
6. Apart
from the appellants there are certain doctors who fall in the same category but
who had not filed writ petitions before the High Court. They have filed
directly writ petitions before this Court bearing Nos. 2620-2659/1985 and
intervention applications. The intervention applications are allowed and rule
nisi is issued in the writ petitions of which the other parties take notice.
These interveners and writ petitioners have to be granted the same relief as
the appellants. It is made clear that all these applicants and petitioners will
be entitled to the same relief as the appellants for all purposes of seniority
and promotion. All monetary claims on account of revision of scales,
regularisation or promotion till 31.10.1991 are given up by these applicants
and petitioners as well."
5. On the
basis of the order of this Court, the Union of India issued orders on 11.12.91
stating that Senior Medical Officer will be promoted as Chief Medical Officer
on completion of six years of regular service as Senior Medical Officer or on
completion of ten years of combined regular service as Medical Officers and
Senior Medical Officers of which at least two years would be as Senior Medical
Officers on the Basis of seniority-cum-fitness subject to their securing Bench
Mar of "good". On 18.12.92 the Union of India issued a further order
stating that since the Officers on promotion were adjusted against combined
sanctioned strength, no supernumerary post was necessary. In these
circumstances, it appears that the Deputy Director, CGHS, Kanpur, sought a
clarification from the Director General of Health Services on 27.8.93. In reply
to that, the letter impugned before the Tribunal came to be issued.
6. The
Tribunal accepting the contentions of the respondents herein (directly
recruited doctors) held that the impugned letter was in violation of the
directions given by this Court and, therefore, the same was illegal and not
sustainable in law. The Tribunal was of the view that the fact that the
regularised doctors were to be accommodated in the supernumerary posts to be
created, will show that they will not carry with them the administrative
powers. The Tribunal observed as follows:-
"The
result, therefore, is that when a regular post of Chief Medical Officer falls
vacant, it shall go to the directly recruited medical officer. Naturally, such
post of Chief Medical Officers will carry the administrative powers as well.
Since, no prejudice is to be caused to the regularised medical officer, he
shall be posted as Chief Medical Officer but only on super-numerary post. In
our opinion, such super-numerary post which is different than the regular post,
will not carry with it the administrative powers."
7. This
view of the Tribunal, according to the appellants, in C.A.No. 14573/96 is
prejudicial to their interest and by reason of the order of Tribunal they are
to take orders from their juniors, which was not the spirit or intent of the
order of this court. According to them, the letter impugned before the Tribunal
was quite in accordance with the directions given by this Court and the
constriction put on that letter by the Tribunal was wrong.
8. From
the narration of the facts, it is evident that the appellants, who are to be
considered as regularised doctors, have consistently succeeded before this
Court at every stage in establishing their seniority. As noticed above, this
Court while giving directions in unmistakable terms has stated that the
regularised doctors will take their seniority on and from 1.1.73 or the date of
their first initial appointment in the service (though as ad hoc Group 'B' doctors),
whichever is later. In view of this direction read with direction 2 and 3
(supra), which was arrived at after a prolonged discussion, the view taken by
the Tribunal that the impugned letter dated 17.10.93 was in violation of the
directions given by this Court is totally uncalled for. Likewise, the view
taken by the Tribunal that those appointed in the supernumerary posts cannot
claim the administrative powers as that will go only with regular posts is also
wrong. The Tribunal treated supernumerary posts as different one from the
regular posts. This view of the Tribunal cannot be sustained in view of a
decision of this Court in JT (1995) 4 SC 432 . This Court while considering a
similar question repelled an argument similar to the view taken by the Tribunal
by observing as follows:-
"As
a result of such an exercise, if need arose appellant No. 1 could be treated to
have been holding supernumerary post in Junior Time Scale Grade of Group 'A'
posts and in all other promotional cadres. He cannot be treated to be outside
the sanctioned strength of Posts in Junior Time Scale grade of Group 'A' or
other promotional posts as contended by learned counsel for respondents.
Otherwise, the very creation of supernumerary posts would become otiose and
meaningless."
9. The
two reasons given by the Tribunal to hold the impugned letter as not
sustainable in law, cannot be accepted as correct one. It is not in dispute
that there was no quarrel between the two groups regarding the seniority or
promotion. Both sides agreed that so far as promotion and seniority are
concerned, they are given in accordance with the directions of this Court, but
only regarding the administrative responsibilities/powers the directly
recruited doctors calimed that they alone should be given such administrative
powers irrespective of the seniority which was accepted by the Tribunal. We do
not think that the Tribunal was right in conceding the claim of the directly
recruited doctors on this aspect.
10. In
the result, the order of the Tribunal is set aside and the letter impugned
before the Tribunal does not suffer from any illegality. The appeal are
allowed. There will be not order as to costs.
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