Union Of India (Uoi) And Ors. vs Dr. Jasveer Singh And Ors.
2002 Latest Caselaw 1487 Del

JUDGMENT

S.B. Sinha, C.J.

1. Whether acquisition of essential qualification itself would entail invocation of the doctrine of 'equal pay for equal work,' is the question involved in this petition.

2. The Original Applicants before the Central Administrative Tribunal are employees of Railway Medical Services. The structure of the said services in terms of the prevalent recruitment rules is in the following terms:

Assistant Divisional Medical Officer Junior Scale (Rs.2200-4000) By direct recruitment

Divisional Medical officer / Senior Medical Officer.     

Senior Scale (Rs.3000-4500) Promotions and Direct recruitment Promotion  of ADMOs  with  4  years'   service  without linkage to vacancies

Senior     Divisional     Medical     Officer     /     Medical Superintendent Junior Administrative Grade (Rs. 3700-5000) Promotion / Direct recruitment Promotion from DMOs with 10 years of combined service as ADMOs and DMOs / SMOs. On completion of 6 years service for directly recruited DMOs / SMOs. Promotion is without linkage to vacancies.

Sr.

Divisional Medical Officer / Medical Supdt. (Non-functional selection grade) (Rs.4500-5700)  By promotion. Promotion is vacancy based. Total number  of S.G. posts should not exceed 30% of the total of senior duty posts.

Chief Medical Director / Medical Director

Senior Administrative Grade (Rs.5900-6700) By promotion.

3. Central Health Services which is under the Ministry of Health and Family Welfare, has separate recruitment rules and the structure of the Medical Service there under is as follows:

General Duty Cadre

Teaching Specialist Cadre

Non-teaching Specialist Cadre

Public Health Cadre.

Medical

Officer Juniorscale

(Rs.2200-4000) Direct recruitment through U.P.S.C.

Specialist

GradeII Asstt. Professor JuniorScale (Rs.3000-5000)    by Direct recruitment

Specialist GradeII

JuniorScale (Rs.3000-5000)by Direct recruitment

Specialist GradeII JuniorScale

(Rs.3000-5000)by Direct recruitment.

Senior Medical Officer Senior Scale (Rs.3000-4500)Promotion failing whichby direct recruitment.Promotion  on the basis seniority cumfitness without linkageto vacancies.

Specialist GradeII Associate Professor SeniorScale (Rs.3700-5000) Promotion failing which bydirect recruitment. Promotion oh thebasis seniority cum fitness without linkageto vacancies.

Specialist GradeII SeniorScale (Rs.3700-5000) Promotion failing which bydirect recruitment. Promotion on thebasis seniority cum fitness without linkageto vacancies.

Specialist GradeII SeniorScale (Rs.3700-5000) Promotion failing which bydirect recruitment. Promotion on thebasis seniority cum fitness without linkageto vacancies.

Chief Medical OfficerJr.

Admn. Grade (Rs.3700-5000) Promotion failing whichby direct recruitment. Promotion on the basis seniority cumfitness without linkageto vacancies.

Specialist GradeI Professor (Rs.4500-5700)by promotion. Promotion on thebasis seniority cum fitness without linkageto vacancies.

Specialist GradeI (Rs.4500-5700)by promotion. Promotion on thebasis seniority cum fitness without linkageto vacancies.

Specialist GradeI (Rs.4500-5700)by promotion. Promotion on thebasis seniority cum fitness without linkageto vacancies.

Chief

Medical Officer Nonfunctional Selection grade (Rs.4500-5700) Promotion asperthe criterion and procedure prescribed by the Govt.

from time to time.

Supertime gradeSAG (Rs.5900-6700)By Promotion failing which bydirect recruitment.

Supertime gradeSAG(Rs.5900-6700)Bypromotion failing which bydirect recruitment.

Supertime gradeSAG (Rs.5900-6700)By promotion failing which bydirectrecruitment.

Supertime gradeSr. Admn. Grade (Rs.5900-6700)By promotion failing whichby direct recruitment.

Note below Rule (4) of Central Health Service Rules 1996.

"Note (i) The post of Medical Officer, Senior Medical Officer and Chief Medical Officer in the General Duty Medical Officer sub-cadre, the post of Assistant Professor, Associate Professor, Professor in Teaching Sub-cadre and the post of Specialists Grade II (Junior Scale) and Specialist Grade II (Senior Scale) and Specialist Grade I in the Non-teaching and Public Heath Sub-cadres, are interchangeable within respective Sub-cadres for the purpose of promotion.

(ii) The promotion to the grades (other than entry grades) mentioned above shall be without linkage to vacancies."

4. The respondents were recruited as Specialist Divisional Medical Officers in the pay scale of Rs. 3000-4500 in the year 1989-90. Such appointment was direct in nature and was in the second level in the Indian Railway Medial Service. For removing alleged anomaly in the scales of pay, the Central Government in the year 1999 constituted a Committee known as Tikku Committee which made recommendations for grant of two time-bound promotions to doctors who were recruited in the Junior Scale of the different sub-cadres under the Central Health Scheme. By letter dated 14th November, 1991, the Ministry of Health advised the Ministry of Railways to process proposals for restructuring the cadre and for providing greater avenues of promotion in the light of the decision taken for the Central Health Service Cadre with the Government. Such advice on the part of the Ministry of Health was considered by the Ministry of Railways and a decision had been taken to grant two time bound promotions to Assistant Divisional Medical Officers (Junior Scale) which was the first level in the Ministry of Railway Medical Service, in the year 1996, the relevant portion whereof is in the following terms:

"2. For this purpose, all the sanctioned posts in Jr. Scale (Rs. 2200-4000), Sr. Scale (Rs. 3000-4500) and JA Grade (Rs. 3700-5000) will be considered together to form a combined strength and the posts will be interchangeable between Jr. Scales, Sr. Scale and JA Grade. In so doing, however, the total number of Jr. Scale, Sr. Scale and JA Grade posts put together will not exceed the total number of the sanctioned posts.

3. Accordingly, sanction of the Ministry of Railways is hereby accorded to the following:-

(i) An Assistant Divisional Medical Officer (a Jr. Scale officer of IRMS) may be promoted up to JAG (Rs. 3700-5000) after completion of ten (10) years of service of which at last two years of regular service must have been rendered in Sr. Scale. The promotion will be accorded on the basis of seniority-cum-suitability subject to the rejection of the unfit. The promotion will be personal to the officer without linkage to vacancies.

(ii) All the posts in the Junior Scale, Senior Scale and JA Fade may be considered together to form a combined strength and the posts may be inter-changed depending upon the number of officers eligible to the promoted."

5. According to the petitioners,as the respondents had been recruited in the senior scale of Indian Railway Medial Service in the grade of 3000-4500, they ere not entitled to the afore-mentioned benefit and asmuch, they had been granted only second time bound promotion to the grade of Junior Administrative Grade on completion of the required period of service.

Having regard to the fact that they were not granted two time bound promotions in terms of the Tikku Committee recommendations, the respondents herein filed an Original Application before the Central Administrative Tribunal which was marked as OA No. 2232/1998. The prayers of the respondents herein in the said Original Application before the learned Tribunal were:

"(i) direct the respondents to consider the applicants for being given two time-bound promotions keeping in view their status as specialist and to place them in the pay scales of Rs. 4500-5700 on the completion of eight years of service w.e.f. March 1997;

(ii) quash and set aside the seniority list dated 14.10.1994 stipulating that the 31 DMO's who were directly recruited be assigned seniority on the basis of batch date of joining viz-a-viz the batch date of promotion of promotee DMO's on the completion of their 5 years of regular service as ADMO's;

(iii) accord due and correct seniority to the applicant in the seniority list above the General Duty Medical Officers after giving the pay scale of Rs. 4500-5700 to the applicants;

(iv) pass any other or further order(s) as may be deemed fit and proper by this Tribunal in the light of facts and circumstances of the case."

6. The grievance of the respondents before the learned Tribunal in short was whereas the benefit of time-bound promotions had been granted by the petitioners in the case of GDMOs we are recruited as ADMOs in the pay scale of Rs. 2200-4000 on possessing the essential qualification of MBBS as compared to the applicants who possessed MBBS with Post Graduation and had been appointed, as noticed hereinbefore, as direct recruit SDMOs in the pay scale of Rs. 3000-4500 and those having completed nearly 10 years of service, they should have been given the benefit of two time-bound promotions. It had been contended that the respondent Railways converted about 2500 posts of ADMOs under pressure from the Indian Railway medical Service Association and upgraded the same as those of DMOs without amending recruitment rules as a result whereof those who were junior to the respondents had been given time-bound promotions to the post of ADMOs on completion of four years of service a result whereof imbalance in the service hierarchy had been created as a result whereof the interest of the applicants had been given a go-by. Again, the respondents had issued a seniority list on 17th October 1994 showing the respondents below 1982 batch of ADMOs and above 1983 batch of ADMOs. By reason of the said seniority list, the petitioners became eligible for further promotion together with their juniors and those who were originally recruited in the scale of Rs. 2200-4000 had been getting the same scale of pay as that of the respondents.

7. Such an action, according to the respondents, had been taken by the petitioners in terms of the decision of the Apex Court in D.K. Mitra and Ors. UOI, 1985(2) AISL SC 598 which is not applicable in this case inasmuch as at that point of time, there was no concept of grant of time-bound promotions.

8. The learned Tribunal in its impugned judgment,inter alia, observed:

"15. However, we find no logic in the contention of the respondents when they say that those ADMOs, with lesser qualifications than the applicants, who joined servicing the scale of Rs. 2200-4000 and promoted as DMOs, were equated with the applicants, who possess higher qualifications than the promotees at the time of initial appointment through direct recruitment as DMOs in the higher pay scale of Rs. 3000-4500, in the inter-se seniority list of 1994. Since as per the advertisement also the direct recruits have the promotion prospects to the grade of Rs. 3700-5000 and Rs. 5100-5700, respondents should have on their own considered the case of the applicants for promotion as such. Obviously this has not been done by them for the reasons best known to them. During the course of the arguments, the learned counsel for the applicants has also submitted that the applicants are stagnating in the present post."

9. It was held:

"17. Since the essential qualifications for the CHS doctors as per the recommendations of the Tikku Committee and that of the DMO / SMOs (applicants herein) are the same, it would be in the interest of justice, equity and fairplay if the request of the applicants for grant of time-bound promotions and pay scale of Rs. 4500-5700 is considered by the respondents. It is an admitted position that the applicants were recruited in the pay scale of Rs. 3000-4500, and that they have put in long years of service thereafter, they deserve to be considered for the grant of the scale of Rs. 4500-5700 in accordance with the recruitment rules and other instructions on the subject, if they are otherwise found fit for the same. We direct the respondents to do so. This shall be done within a period of four months from the date of receipt of a copy of this order."

10. Mr. Joseph, learned senior counsel appearing on behalf of the petitioner would contend that the respondents having been appointed in a Specialist cadre having a Post Graduate Degree in the second level of entry, were not entitled to the afore-mentioned benefit. According to the learned counsel, possession of essential qualification cannot itself be a criterion for grant of a benefit under a scheme which per se is not applicable in respect of the respondents.

11. The learned counsel would contend that the Tribunal itself had negatived the contention of the respondents herein that they were appointed as Specialists. Our attention in this connection has been invited to the finding of the learned Tribunal which is in the following terms:

"13. It is an admitted fact that the applicants were recruited through UPSC in response to the advertisement released by the respondents in the higher scale of Rs. 3000-4500 with the prospects of further promotion to the grade of Rs. 3700-5000 and again Rs. 5900-6700, of course, after putting in certain years of service in the respective grade. However, we do not find "specialists" anywhere attached to the posts as contended by the applicants. The facts remains that the candidate have to posses medical qualification (MBBS precisely) with Post Graduate qualification in the concerned speciality and 3 years work in a responsible post concerned with the speciality. In view of this, the contention of the applicants they were recruited as Specialist DMOs has no force."

12. The respondents, therefore, according to the leered counsel, cannot be said to have established a factual basis for obtaining the relief which had been granted to them by the learned Tribunal.

13. Mr. P.P. Khurana, learned counsel appearing on behalf of the respondents, on the other hand, supported the judgment. The learned counsel would contend that the respondents have been discriminated against only because they were serving in the Indian Railways. Our attention in this connection has been drawn to the recommendations of the Tikku Committee Report. Mr. Khurana would contend that having regard to the recommendations of the Tikku Committee Report, the respondents themselves ought t have implemented the recommendations thereof and they cannot take advantage of their own wrong. According to the learned counsel, if those who had started with a junior scale, can get two time-bound promotions, there cannot be any earthly reason why the respondents would not get the same. It has been argued that the Tribunal did not hold in its impugned judgment that the respondents had not been regarded as Specialists.

It is not in dispute that the recommendations of the Tikku Committee Report had been implemented. If the recommendations of the Tikku Committee have been implemented, we do not see any reason why the benefit thereof would not be extended to the doctors who were serving in the Railways.

From the Office Memorandum dated 14th July 1991 wherein the recommendations of the High Power Tikku Committee on serving doctors were made, it appears:

"6. All Professors (Rs. 4500-5700) and Specialists Grade I officers (Non-teaching and Public Health Sub-cadres) will be eligible for consideration for promotion to the Senior Administrative Grade level posts (Rs. 5900-6700) subject to availability of vacancies, provided they have completed at least 3 years of regular service in the scale of Rs. 4500-5700 irrespective of whether the said service was performed in the Functional Grade or Non-functional Grade of Rs. 4500-5700.

The Associates Professors and Specialists Grade II, officers presently in the Non-functional Selection Grade and to be designated as Professors and Specialists Grade I officers respectively from 1.12.1991, shall en masse be placed below the existing Professors and Specialists Grade I officers respectively for the purpose of preparing eligibility lists for consideration for promotion to Senior Administrative Grade level posts (Rs. 5900-6700).

... ... ... ... ...

9. In all the three Sub-cadres, (Teaching, Non-teaching and Public Health), Officer with 6 years service in the scale of Rs. 3700-5000, or total 8 years service in the scale Rs. 3000-5000 and Rs. 3700-5000, shall be placed in the scale of Rs. 4500-5700 according to existing guidelines (which inter-alia, provide for overall good performance and at lest two "very good" assessment during the preceding 5 years).On such placement in the scale of Rs. 4500-5700, the Associate Professors will stand designated as Professors, and the Specialists Grade II officers (Non-teaching and Public Health) shall stand designated as Specialists Grade I officers.

10. The Senior Medical Officers (Rs. 3000-4500) will be promoted as Chief Medical Officers (Rs. 3700-5000) on completion of six years of regular service as Senior Medical Officers or on completion of ten years of combined regular service as Medical Officers and Senior Medical Officers of which at least two years shall be as Senior Medical Officers on the basis of seniority-cum-fitness subject to their clearing the bench mark of 'Good' with no zone of selection and without linkage to vacancies. The promotions shall be in situ and personal to the officers promoted.

Incidentally, this will provide a second time-bound promotion to General Duty Medical Officers, as the first time-bound promotion from the level of Medical Officers (Rs. 2200-4000) to the level of Senior Medical Officers (Rs. 3000-4500) on completion of 4 years of service, on seniority-cum-fitness basis, has already been implemented. As at present, the placement of Chief Medical Officers in the Grade Rs. 4500-5700 to the extent of 15 per cent of all the senior duty posts of General Duty medical officers Sub-Cadre, on the basis of the existing guidelines (overall good performance with at lest two "very good" assessment during the preceding 5 years) will continue. Chief Medical Officers in the scale of Rs. 4500-5700 with 3 years service in the scale of Rs. 4500-5700, or total 17 years of Group A service will continue to be eligible for promotion to the Senior Administrative Grade level posts (Rs. 5900-6700), subject to availability of vacancies.

... ... ... ... ...

12. Direct recruitment at the level of Rs. 4500-5700 as well as Rs. 3700-5000 can be made depending on the identification of the posts."

14. The decision of the Ministry of Railways as contained in its letter dated 23rd August 1996 appears to have been issued on a wrong premise. If the Central Government has accepted the recommendations of the Tikku Committee in its entirety, we do not see any reason why for implementing the same in the case of the doctors in the Railway Service, any discrimination would be made. Mr. Joseph, in our opinion, is not correct in contending that only because the respondents have been appointed on a two scale higher grade as Specialists, the same by itself would be a ground for denying the benefit particularly when those who were appointed in the lower grade had been merged with the higher grade as a result whereof, they had also been getting the same scale of pay as that of the respondents. Once a re-designation had been given effect to, to the junior doctors and they had been given the benefit of the double promotion, the junior doctors and the respondents having been brought on the same platform and a common seniority list having been prepared, we do not see any reason why the same benefit shall not be extended to them.

15. In this view of the matter, we are of the opinion that this is not a case where this court should exercise its discretionary jurisdiction in interfering with the judgment of the learned Tribunal.

16. Furthermore, the respondents had taken a decision to implement the judgment of the learned Tribunal and they had sought for an extension also but despite such a decision, they, at a later stage, rescinded there from and filed the present writ petition.

17. The petition, therefore, is dismissed with costs quantified at Rs. 5000/-.