Action Council of Service Doctors Organizations Vs. Union of India & Anr  INSC 846 (14 December 1995)
B.L. (J) Hansaria B.L. (J) Ramaswamy, K. Hansaria, J.
1996 SCC (7) 256 JT 1995 (9) 142 1995 SCALE (7)224
petitioner is basically an association of Service Doctors who are about 10,000
in number, of whom about 4,500 are members of Central Health Service. This
Service is divided into four sub-cadres :
General Duty Medical Officers;
Specialist teaching and
Service Doctors have been agitating, soon after the recommendations of the IVth
Central Pay Commission in 1986, about cadre review. To give teeth to the agitational
programme, a Joint Action Council of Service Doctors Organizations was formed,
which body is the petitioner herein. A delegation of this body had gone on
indefinite strike in July 1987, after they felt dissatisfied with the working
etc., of the High Power Committee which had been set up in the wake of the
unsatisfactory recommendations of the IVth Pay Commission. A package of
benefits was then announced by the Health Ministry which included some interim reliefs.
As these benefits were not implemented, further agitation was launched, which
ended in a Memorandum of settlement of 21.8.1989. One of the terms of the
settlement was setting up of a high power committee, which was notified in
February, 1990. Constitution of this Committee was changed in May, 1990. Shri
R.K. Tikoo, Secretary (Co- ordination) in the Cabinet Secretariat, was made the
Chairman and the terms of the reference were approved by the Cabinet. The
Committee deliberated on the terms and submitted its report on 31st October, 1990. The present writ petition was
filed on 3rd April,
1991 as the
recommendations had not been fully implemented.
grievance of the petitioner is that, not to speak of not implementing all the
recommendations of the Tikoo Committee, some of the terms incorporated in the
Memorandum of Settlement are yet to be fully implemented. Some grievance has
also been made about non-implementation of what has been described as 1987
relating to 1987 Package Deal :
grievances on this aspect are three fold :
inclusion of Non-Practicing Allowance (NPA) while determining entitlement for
non-creation of required number of posts of Chief Medical Officer, pay scale
for which was agreed to be Rs.3,700- 5,000/- ; and
of scale of Rs.4,500-5,700/- to the Associate Professors on completion of the
required period of service.
case of the Union of India regarding the first grievance is that the NPA is not
taken into account for determining the eligibility of accommodation in view of
Government of India's order under the Allotment of Government Residences
(General Pool in Delhi) Rules, 1963.
further case is that even special pay is not taken into account for this
purpose. The petitoner's stand, however, is that as the NPA is treated as part
of basic pay for purposes of computation of dearness allowance, terminal
benefits, house building advance, travelling concession benefits etc., there is
no justifiable reason to exclude this allowance for the purpose of entitlement
to residential accommodation. It is urged that merely because the special pay
is not taken into account for this purpose, does not provide a cogent reason
for excluding non-practicing allowance inasmuch as special pay is not treated
as part of basic pay for the aforesaid purposes as well.
According to us, the present is basically a question of policy and the claim in
this regard is not founded on any right as such. In so far as the policy is
concerned, there may be some justification for excluding the non-practicing
allowance for the purpose at hand because this allowance is seemingly not paid
to all the Service Doctors. So, if this allowance is included for the purpose
at hand, the same may be disadvantageous even to some Service Doctors. We do
not say more than this, as this matter is presently under examination of the Vth
so far as the creation of required number of posts of Chief Medical Officers in
the scale Rs.3,700-5,000/- is concerned, it may be pointed out that in the
settlement which was arrived at in 1989, it was agreed upon that the promotion
as Chief Medical Officer shall be "subject to availability of
vacancies". In the additional affidavit filed on behalf of Ministry of
Health and Family Welfare in September, 1995 by one M.M. Perumal, Dy. Secretary
of the Ministry, it has been stated that the upgradation was of 500 posts on
'functional basis' by identifying posts in various participating
Units/Institutions of Central Health Service with a view to cover all the
eligible officers who have requisite eligibility service and had been
recommended by the DPC.
so far as the non-giving of scale of Rs.4,500- 5,700/- meant for teaching
sub-cadre, the averment in the aforesaid affidavit is that the package
envisaged that all the promotions would be with prospective effect and so the
petitioner's contention that placement in the aforesaid scale should have been
with effect from 1.8.1987 is not correct.
aforesaid averments, the authenticity of which has not been disputed, do
establish due fulfillment of the package benefits.
The only point relating to nonfulfillment of the settlement is that the
benefits had not been made available from 1.10.1987. In the aforesaid affidavit
the statement is that various allowances like non-practicing allowance, annual
allowance (contingency allowance) for academic research and other professional
pursuit and conveyance allowance have been granted with effect from 1.10.1987.
As to the benefits accruing from the Office Memorandum dated 14.11.1991
(infra), which has incorporated the Government's decisions qua the Tikoo
Committee recommendations, the averment made is that they are to be from a
prospective date. There is merit in this contention.
Committee recommendations :
perusal of the report of the Tikoo Committee shows that the recommendations are
32 in number. As the recommendations had huge financial implications and needed
sorting out some service matters also, in-depth study was required and after
this was done the Government considered the recommendations and its decisions
qua then came to be incorporated in the Office Memorandum dated November 14, 1991. In so far as the recommendations
of the Tikoo Committee which have not been accepted, the first contention of Shri
Goswami on behalf of the Union of India is that there is ample justification
for non acceptance. He then urges that instead of this Court examining the
question of justification or otherwise of the same, the matter may be left to
be decided by the Vth Pay Commission which was set up recently and is in
seizing of many of the matters. To satisfy our mind that this Pay Commission is
examining many matters relating to the improvement in the service prospects of
the doctors working under the Central Health Service, Shri Goswami placed on
record a communication of the Dy.
of the Commission bearing No.DOF/14554/94/PC-B dated 9th September, 1994 seeking information of the Ministry
of Health on a number of points, which information, as per this communication,
is needed for a detailed analysis of the demand of the doctors who have
submitted a number of memoranda before the Commission. This communication shows
that the information sought relates, inter alia, to the cadre size and
structure, pay scale in each sub-cadre, time bound promotion scheme, reasons in
not treating non- practicing allowance as part of basic pay for entitlement a
Government accommodation despite treating it as such for all purposes and
possibility of formation of a unified cadre for all sub-cadres of doctors.
Sachar contended in the Court as well as in his written-submission filed on
28.11.1995, that the matters may not be left to be decided by the Pay
Commission because, according to him, the rights which have accrued to the
members of the petitioner-Association, following the recommendation of the Tikkoo
Committee, are vested rights and if the same are not made available, the same
would violate Articles 14, 16 and 21 of the Constitution, redressal of which is
not within the realm and jurisdiction of the Pay Commission. It has, therefore,
been implored, that we ourselves should decide the merits of the left out
matters, otherwise the entire exercise undertaken so far as by the petitioner
would be rendered futile. The further submission is that as what the Pay
Commission would decide would be in a nature of recommendation, which the
Government may accept or may not, whereas what this Court would decide would be
binding on it.
have duly applied our mind to the rival contentions and, according to us, as it
would be within the jurisdiction of the Pay Commission not only to examine the
pay structure, but also the question of cadre review, on which much stress has
been given by Shri Sachar. So, the submission that the Pay Commission cannot
give the relief being claimed in this petition is not sustainable. Of course,
what view the Pay Commission would take in the matter is for the Commission to
decide, and all that can be said in this regard is that the Commission, while
making its recommendations, would definitely bear in mind the historical
background, in particular the recommendations of the Tikoo Committee.
to the contention that the members of the petitioner-Association have come to
be clothed with a vested right, we would say this is not so inasmuch as what
the Tikoo Committee has said is also in the nature of recommendation and unless
accepted cannot be said to be binding on the Union of India. No vested right
has thus been created by the force of the recommendations of the Committee. It
is, of course, correct that what Pay Commission would say would be
recommendatory in nature, as distinguished from the decision of this Court;
but, as is known, recommendations of a high powered committee like Pay Commission
are not rejected without cogent reasons. We have no doubt that in the
background of the present litigation, the Central Government, while taking
decision on the recommendations to be made by the Pay Commission, would bear in
mind its commitment to Service Doctors given at various points of time. Another
reason which has weighed with us in accepting the contention of Shri Goswami is
that the benefits to a particular service may not be viewed in isolation; the
same have to be dove-tailed and matched with benefits to be given to members of
For the aforesaid reasons, it would be appropriate to await the recommendations
of the Vth Pay Commission on those matters qua which the Government of India
did not accept the recommendations of the Tikoo Committee.
The result is that in so far as the 1987 Package and 1989 Settlement are
concerned, no further direction or order of this Court is required. As to the
unaccepted recommendations of the Tikoo Committee, the recommendations of the Vth
Pay Commission may be awaited.
The writ petition is disposed of accordingly with no order as to costs.
Petition (C) No.1092 of 1990
view of the above, nothing further is required to be stated in this Writ
Petition. It also stands disposed of accordingly.