Union of India & Anr Vs. Dr. Akhilesh
Chandra Agrawaldr [1998] INSC 134 (27 February 1998)
K. Venkataswami,
A.P. Misra K. Venkataswami, J.
ACT:
HEAD NOTE:
With civil
appeal no. 14573 of 1996
These
two appeals by special leave arise out of one order of the Central;
Administrative Tribunal, Allahabad Bench, dated 23.196 made in O.A. No. 1744 of
1993.
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.
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 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 regularities, 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 t he 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/regularisation
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 dated
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 29.10.81 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 dated 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 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 b e 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 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." 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 27.8.83. In reply to that, the letter
impugned before the Tribunal came to be issued.
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." 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.
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 D.K.Reddy & Anr. 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." The two reasons given by the
Tribunal to hold the impugned letter ass 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 was right in conceding the claim of the directly
recruited doctors on this aspect.
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.
Back
