Gyan Singh (Dr.) & Ors. vs National Institute Of Health And ...
2000 Latest Caselaw 525 Del

ORDER

A.K. Sikri, J.

1. This petition is filed by 3 petitioners. Respondent is National Institute of Health and Family Welfare (NIHFW for short). All 3 petitioners joined NIHFW as Medical Officers w.e.f. 24.4.1982, 30.7.1986 and 16.10.1986 respectively. It is the case of the petitioners that in the year 1989, Memorandum of Settlement was signed between the Central Government on the one side and representatives of Doctors on the other side which, interalia, provided for the constitution of high powered committee to look into all aspects of career mode and cadre restructuring and make proposals with a view to enable service Doctors to take their due place among the best of Group-A service of the Central Government and ensure similarity in career prospects among the 4 sub-cadres of Central Health Scheme (CHS for short). Committee was formed under the Chairmanship of Sh.R.K.Tikku, Secretary (Coordination) in the Cabinet Secretariat which submitted its report and recommendations to the Government on 31.10.1990. Government implemented the recommendations of Tikku Committee by issuing office memorandum dated 14.11.1991. This OM mentions, among others, that Medical Officer be promoted as Senior Medical Officer after completion of four years and Chief Medical Officer after completion of 6 years service. Para 15 of the OM stipulated that other departments under the Ministry would implement the same mutates mutants. On the basis of this position, petitioner No.1 claims that he became entitled to be promoted as Senior Medical Officer w.e.f.24.4.1986 and Chief Medical officer from 24.4.1992 subject to recommendations of DPC on seniority-cum-fitness basis. Likewise petitioner No.2 became entitled to be promoted as Senior Medical Officer from 30.7.1990 and Chief Medical Officer from 30.7.1996. Petitioner No.3 became entitled to be promoted as Senior Medical Officer from 16.10.1990 and Chief Medical Officer from 16.10.1996. However the benefits of OM dated 14.11.1991 were not extended to the petitioners and accordingly they represented on 4.5.1992. Although other organisations implemented the Tikku Committee Report as per directions of Ministry of Health, NIHFW did not implement the same for long years despite repeated representations. Finally in the 26th Meeting of Governing Body of NIHFW, a decision in this regard was taken which reads as under:

"The Governing Body approved to extend the following benefits to the 6 Medical Officers now in NIHFW. The benefits of in situ promotion from MOS to SMOs (Rs.3000-4500) and then to CMO (Rs.3700-5000) after 4 years and then 6 years of service respectively can be given to the 6 Doctors."

2. Implementing the aforesaid decision, the petitioners were promoted from the post of Medical Officer to Senior Medical Officer w.e.f. 28.3.1995 i.e. the date of decision of Governing Body. The petitioners claim that the benefits should be extended from retrospective effect i.e. 14.11.1991 when OM for this purpose was issued by Government implementing the recommendations of the Tikku Committee Report. Against this action of NIHFW their representation was rejected stating that the date of implementation will be 28.3.1995 i.e. the date of resolution of the Governing Body. Aggrieved by this decision, present writ petition is filed seeking implementation of the resolution retrospectively i.e. from 14.11.1991.

3. The basis on which the petitioners have made the aforesaid claim can be summarised as under:

I) Immediately upon the notification of OM dated 14.11.1991 and its implementation of the same in the Central Health Services Shri M.S.Dayal, Secretary, Ministry of Health and Family Welfare vide letter dated 15.11.1991 wrote to the participating units and organisations to extend the benefits mutates mutants.

II) That again a letter dated 13.1.1992 by Shri M.S.Dayal, Secretary, Ministry of Health and Family Welfare was sent to the NIHFW stating that "the representatives of the JACSDO in the meetings with the officers of the Ministry have represented that these decisions have not been implemented, so far, in most of other organisations mentioned in para 15 of the OM referred to above. I request you to please look into the matter and have the orders/sanctions issued in respect of Doctors under your control expeditiously. Information about action may also please be sent to me as this is required to be brought to the notice of the Union Minister of Health and Family Welfare urgently."

III) That again on 6.2.1992 the Ministry of Health & Family Welfare wrote to the addresses mentioned therein, which included the respondent No.1 Institute and for ready reference the relevant portion of the letter is extracted below:-

"3. It is also stated that under the number of posts to be elevated to that of Senior Administrative Grade should be determined strictly with reference to the functional needs of your department. However, the Chief Medical Officers grade (Rs. 3700-5000_ should be given in situ basis, subject to seniority-cum-fitness, to the Medical Officers having atleast 10 years of qualifying service, including at least two years regular service as Senior Medical Officer." IV) That the service conditions of the petitioners are governed by the National Institute of Health and Family Welfare, Bye-Laws and as per Bye-Law 42 orders and decisions issued in this regard by the Central Government from time to time shall apply mutates mutants to the employees of the Institute. Bye-Law 42 makes the following stipulation:-

42. Other conditions of service.

In respect of matters not provided for in these Bye-Laws, the rules as applicable to Central Government servants regarding the general conditions of service, pay, allowances including travelling and daily allowances, leave, salary, joining time, foreign service terms etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutates mutants to the employees of the Institute.

V) When the recommendations in all Central Government and other organisations including Central Health Services have been implemented w.e.f. 14.11.1991, implementation of these very recommendations of respondent No.1 from the date i.e. 28.3.1995 is discriminatory and arbitrary and therefore violative of Article 14 of the Constitution of India.

4. On the other hand, respondents have sought to justify the date of 28.3.1995 on the ground that OM dated 14.11.1991 was not automatically applicable to NIHFW. It was for the Governing Body of NIHFW to accept or not to accept the said decision. Governing Body approved the same and decided to accept Tikku Committee Report in its meeting on 28.3.1995 only and therefore the decision is implemented from this date.

5. This Institute is an autonomous body and its employees are not Central Government employees. Therefore, as far as bye-law 42 is concerned it is stated that since the matter was referred to the Governing Body and has been approved by it to be effective from 28.3.1995, this Bye-law is not applicable. Medical Officers of this institute do not come under the Cadre of Central Health Services and hence Tikku Committee recommendations which were for the Central Health Services cadre Doctors are not applicable to medical officers of this institute ipso facto. The Institute received a communication dated 15.11.1991 from the Govt. of India informing regarding the report of the Committee under the Chairmanship of R.K. Tikku and advising the acceptance of the Govt. on some of the recommendations of the said Committee. Another communication dated 13.1.1992 was also received. The Govt. was advising the fact of partial acceptance of the report of the Tikku Committee to various organisations including the institute so that each organisation could assess the decision and act within its parameters. By communication dated 9.9.1992 the Institute again took up the matter with the Ministry on the basis of the recommendations of the said Committee and requested for a decision in the matter. However even after a reminder dated 30.10.1992 the Govt. did not accept the proposal vide their letter dated 23.3.1993. By another communication dated 17.1.1994 while reiterating that the proposal of the Institute was not found feasible by the Ministry, the Institute was advised to consider having its own scheme. It was agreed to by the Ministry only by its communication dated 24.3.1995 and based on this Institute in its meeting of Governing Body dated 28.3.1995 implemented the proposal and gave benefits to the petitioners in terms of the same effective from 28.3.1995. This was approved by the Ministry by its communication dated 28.2.1996. It will, therefore, be seen that the recommendations of the Tikku Committee were not binding on the Institute and this was confirmed by the Ministry in several decisions which based its decisions on the fact that there could be no parity between the respective services. Finally, when it was suggested to the Institute that an independent scheme could be framed the same was done immediately and the petitioners have obtained the benefit thereof.

6. The learned counsel for respondent also relied upon the judgment of Supreme Court in the case of Suryanarayan Sahu & Ors. Vs. Council of Scientific & Industrial Research in support of his submission that being an autonomous body, it had right to adopt the recommendations from a later date.

7. This case is in fact squarely covered by the judgment of Apex Court in the case of Suryanarayan Sahu(supra). That was a case regarding implementation of the III Pay Commission's recommendations by Council of Scientific & Industrial Research (CSIR). CSIR is also a society registered under the Societies Registration Act and Rules & Regulations and By-Laws governing the functioning of CSIR. The provisions contained in these Rules & Regulations and Bye-Laws are almost at parameter with the provisions of the Bye-Laws of NIHFW. Following discussion contained in para 3 of the aforesaid judgment would amply demonstrate the same:

"Para 3 :CSIR is a society registered under the Societies Registration Act. Rules and Regulations and Bye-laws govern the functioning of the CSIR. Under Rule 29, the affairs of the CSIR shall be administered, directed and controlled, subject to Rules and Regulations and Bye-laws and orders of the Society, by the Governing Body. We do not have to refer to the Rules and Regulations and Bye-laws of the CSIR in details as these are not in controversy. Under Bye-law 12, conditions of service of officers and staff of CSIR are governed by the Central Civil Services (Classification, Control and Appeals) Rules and the Central Civil Services (Conduct) Rules for the time being in force. Under Bye-law 14, the scales of pay applicable to all the employees of the society shall not be in excess of those prescribed by the Government of India for similar personnel, save in the case of specialists. Under Bye-law 15, in regard to all matters concerning service conditions of employees of the Society, the Fundamental and Supplementary Rules framed by the Government and such other rules and orders issued by the Government of India from time to time shall apply to the extent applicable to the employees of the Society. Bye-law 14 and 15 of the CSIR framed by the Governing Body are as under:

"14. The scales of pay applicable to all the employees of the Society shall not be in the excess of those prescribed by the Government of India for similar personnel, save in the case of specialists.

15. In regard to all matters concerning service conditions of employees of the Society, the Fundamental and Supplementary Rules framed by the Government of India and such other rules and orders issued by the Government of India from time to time shall apply to the extent applicable to the employees of the Society.

Notwithstanding anything contained in this Bye-law, the Governing Body may establish and maintain Schemes providing for benefits to employees of the Society on Superannuation/Retirement."

8. Thus in the case of CSIR also, Bye-Law 15 is almost identically worded as Bye-Law 42 of NIHFW Bye-Laws. That was the case relating to implementation of the recommendations of III Pay Commission which was accepted by Central Government w.e.f. 1.1.1973. One of the recommendations of the Pay Commission related to scales of pay of Draftsmen and Senior Draftsmen. Senior Draftsmen were divided into two groups and given two different pay scales. This division was challenged and the said challenge was upheld by Supreme Court in the Case of P. Savita & Ors. Vs. UOI & Ors. . On that basis, Government of India issued notification dated 11.9.1985 deciding that all these Draftsman were to be given same pay scale i.e. Rs.425-700 notionally from 1.1.1973 and actually from 1.9.1987. The question whether the CSIR, which was an autonomous body, was bound to follow the same pattern from same date was negative and the Court observed as under in para 8:

"Para 8 : CSIR is an autonomous body.

The recommendations of the Pay Commission cannot be made applicable to CSIR suo motu. It would be up to the Governing Body of the CSIR to adopt the recommendations of such Pay Commission. CSIR by Resolutions has been adopting the recommendations of the Pay Commissions for formulating the pay scales of different categories of its employees but the recommendations, it was stated, were not adopted in toto and that CSIR adopted a broad pattern of Government of India scale as recommended by the Third Pay Commission."

9. In that case, the Governing Body had decided to revise the pay scales of junior Draftsmen to Rs.330-560 and Senior Draftsmen to Rs.420-700 w.e.f. 1.5.1978 and this was upheld by the Supreme Court. Therefore the legal position which emerges is that NIHFW, while accepting the recommendations of Tikku Committee Report can fix a date other than the date fixed by the Government. The Government accepted the recommendations w.e.f. 14.11.1991. The Governing Body of NIHFW also passed Resolution in its 26th meeting dated 28.3.1995 extending the same benefit to the Medical Officers in NIHFW which included the petitioners.

10. However what needs to o be determined is, as to whether Governing Body has taken decision fixing the date of 28.3.1995 i.e. the date on which Resolution was passed for extending the benefit of the nature mentioned above. After this decision was taken in the Governing Body meeting dated 28.3.1995, the petitioners are given the benefit by the respondents presuming that the date of decision of Governing Body i.e. 28.3.1995 is the date from which Tikku Committee recommendations would become effective. Whether this is factually correct? To ascertain this, one may reproduce the decision taken by the Governing Body yet again:

"The Governing Body approved to extend the following benefits to the 6 Medical Officers now in NIHFW. The benefits of in situ promotion from MOs to SMOs (Rs.3000-4500) and then to CMO(Rs.3700-5000) after 4 years and then 6 years of service respectively can be given to the 6 doctors.xxx"

11. The Governing Body has simply approved to extend the benefits of in situ promotion from MOs to SMOs and then to CMOs after 4 years and 6 years of service respectively, be given to 6 doctors. No date from which the decision would be effective is stipulated in the decision. Therefore one could infer that the effective date would be the date on which decision is taken. However, the petitioners have filed additional affidavit on 12.2.2000 giving few illustrations to show that the effective dates of implementation of the directions of the Central Government are the same as is being given to the employees in the Central Government irrespective of the date of the Resolution of the Governing Body.

12. Various office memoranda/office orders are also annexed with the additional affidavit in support of the aforesaid illustrations.

13. Thus on the one hand, it can be inferred that the Governing Body has decided to extend the benefit of Tikku Committee recommendations and once it is done, it should be from the date when the same benefit was given by the Government namely 14.11.1991 which is the practice followed in respect of other decisions also as per the instances in the additional affidavit dated 12.2.2000. On the other hand, it can also be inferred that as the decision of the Government to accept the Tikku Committee recommendations was not automatically applicable to the Institute, the decision of the Governing Body taken in its meeting on 28.3.1995 would be applicable from the date of the Resolution. However as no clear date is stipulated in this respect and as both the inferences are possible, it would be appropriate to leave the matter to the Governing Body itself to clarify this position and decide the date from which the decision dated 28.3.1995 is to be made effective.

Accordingly the Governing Body of the Institute is directed to hold a meeting and take a clear decision as to from which date it was intended to make the decision dated 28.3.1995 effective. This exercise be done by the Governing Body within a period of 3 months from today. The respondents should thereafter act in accordance with such decision.

Writ petition is disposed of in aforesaid terms.

No order as to costs.

DASTI