Municipal Corporation Of Delhi vs Dr. Bhagwan Das
2010 Latest Caselaw 2312 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P. (C.) No. 2906/2010

%                            Date of Decision: 30.04.2010

Municipal Corporation of Delhi                      .... Petitioner
                     Through Mr. Gaurang Kanth and Ms. B. Rajesh,
                               Advocates


                                          Versus

Dr. Bhagwan Das                                                   .... Respondent
          Through                         Mr. Rajinder Nischal, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.       Whether reporters of Local papers may be                    YES
         allowed to see the judgment?
2.       To be referred to the reporter or not?                      NO
3.       Whether the judgment should be reported in                  NO
         the Digest?


ANIL KUMAR, J.

*

The MCD/petitioner has impugned the order dated 8th October,

2009 passed by the Central Administrative Tribunal, Principal Bench in

TA No. 275/2009 titled as Dr. Bhagwan Dass Vs. Municipal

Corporation of Delhi allowing the Original Application of the respondent

and setting aside the order dated 11th January, 2007 holding that the

respondent shall superannuate on 31.07.2007 passed by the

petitioners, and holding that the respondent would have continued till

the age of 62 years and therefore, he would have retired on 31.07.2009

and he would be entitled to all the consequential benefits including

back wages.

The respondent was a GDMO in MCD who attained the age of

retirement on 31st July, 2007, however, he sought benefit of

Corrigendum dated 30th April, 2007 whereby his age of superannuation

as Doctor in Public Health Sub Cadre of MCD/petitioner had to be

enhanced from 60 to 62 years which was denied to him.

This is not disputed that the respondent was a GDMO and he had

done diploma in public health in 1990. He was transferred in 1993 from

GDMO to DHO City Zone, where he continued till he superannuated. It

is also not disputed that two disciplinary proceedings were pending

against the respondent and the punishments were inflicted which had

been continuing till the Corrigendum modifying the age of

superannuation was issued.

The allegation of the petitioner is that Screening Committee had

considered the claim of increase of age of superannuation from 60 to 62

years and had rejected the claim of the respondent for the applicability

of the Corrigendum increasing the age of superannuation from 60 to 62

as the respondent was not found to be fit.

The decision of the petitioner not to give benefit of Corrigendum

dated 30th April, 2007 to the respondent was challenged by him before

the Central Administrative Tribunal by filing a petition under Section 19

of the Administrative Tribunals Act, 1985. The Corrigendum dated 30th

April, 2007 issued by the petitioner is as under:-

MUNCIPAL CORPORLATION OF DELHI (Central Establishment Deptt.) Town Hall Delhi-6

No.Supt.(M)/CED(M)/2007/RK/15 Dated: 30.04.2007

CORRIGENDUM

In Partial modification of this office Order No.Supt.(M)/CED(M)/2007/ RK/15 dated: 18.12.2006 regarding enhancement of age retirement of Specialist Doctor of Central Health Service from 60 to 62 years and in terms of decision of Delhi Municipal Corporation of Service Regulations, 1959. The age of superannuation of Doctors in the Public Health Sub Cadre of MCD is also enhanced from 60 years to 62 years w.e.f. 16.11.2006 i.e. the date of issue of order of Govt. of India.

This issue with the approval of the Competent Authority.

Sd/-

(Renu Krishanan Jagdev) Director (Personnel)

The plea of the respondent that he was in public health cadre

and therefore, the benefit of Office Order dated 30th April, 2007 could

not be denied to him, was propounded on the plea that he had not been

rejected in public health cadre and the Screening Committee could not

have rejected the claim of the respondent. It was also contended that

only requirement was to be a doctor in public health sub cadre of MCD.

The Tribunal had rejected the plea of the petitioner on the ground

that the Recruitment Rules for General Duty Officer Grade-I, Public

Health in para-11 categorically contemplates that the officers appointed

on transfer had to exercise option to be inducted in public health cadre

within one year failing which the officer concerned shall be deemed to

have opted for the public health cadre automatically. It was noticed by

the Tribunal that once the respondent by a conscious decision of the

MCD had been inducted on transfer in public health cadre and the

respondent had not exercised his option after one year, he had been

automatically inducted in the health sub cadre, where he worked till the

time of his superannuation, therefore, the plea that the respondent was

not inducted in public health cadre could not be accepted.

Regarding the applicability of Corrigendum in case of the

respondent, the Tribunal after perusing the recruitment rules and the

Corrigendum, held that there was not any requirement for formation of

a Screening Committee and applicability of the Corrigendum only

subject to recommendation of the Screening Committee. Considering

the penalty imposed on the respondent, it was also held that there was

no reasonable nexus between the penalty imposed and the applicability

of the Corrigendum enhancing the age of retirement from 60 to 62 years

w.e.f. 16th November, 2006 for the Doctors working in the public health

sub cadre of Municipal Corporation of Delhi.

Learned counsel for the petitioner has impugned the order of the

Tribunal primarily on the ground that if the Corrigendum and the

recruitment rules are considered, the enhancement of the age of

superannuation of Doctors in the public health sub cadre was subject

to the recommendation of the Screening Committee. The recruitment

regulation for the post of General Duty Officer Grade-I (Public Health) is

as under:-

"11. In case of rectt. By promotion/ Transfer: (i) General deputation/transfer grades from duty Officer Gr.-I which promotions/deputation/ (General Duty) transfer to be made

(ii)Failing (i) above General Duty Officers Grade-II with 5 years regular service in the grade: and

b) possessing the requisite post graduate have acquired two years back in case of degree holders and 4 years back in the case of Diploma Holders.

Note:- The Officers appointed on transfer shall have to exercise option within one year from the date of appointment whether he/she wants to serve in the public health Cadre or to go back to the General Duty Cadre. In

case no option is filed within the stipulated period, the Officers concerned shall be deemed to have opted for the Public Health Cadre automatically. "

The petitioner cannot dispute that the respondent was inducted

on transfer in public health cadre and he had also not exercised his

option after one year and consequently, automatically he was inducted

in health cadre. Therefore, the plea of the learned counsel for the

petitioner that the respondent was not inducted in the public health

cadre cannot be accepted. If the respondent was in public health cadre,

why the Corrigendum dated 30th April, 2007 will not be applicable to

him has not been satisfactorily explained by the learned counsel for the

petitioner. The said Corrigendum without carving out any exception,

stipulates that the age of superannuation of Doctors in public health

cadre of MCD is enhanced from 60 years to 62 years w.e.f. 16th

November, 2006.

The respondent attained the age of superannuation after 16th

November, 2006, therefore the respondent was entitled to have his age

of superannuation enhanced to 62 years. On the basis of recruitment

rules, it cannot be inferred that this enhancement of age of

superannuation from 60 to 62 years was subject to the

recommendation of any Screening Committee. Consequently, the plea of

the petitioner that the name of the respondent was not recommended

by the Screening Committee for the applicability of Corrigendum dated

30th April, 2007 cannot be accepted. In the circumstances, the finding

of the Tribunal cannot be faulted by the petitioner.

Considering the facts and circumstances, the petitioner has failed

to make out any illegality, irregularity or such perversity in the order of

the Tribunal which shall entail any interference of this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India.

The writ petition, in the facts and circumstances is, therefore

without any merit and is liable to be dismissed. The writ petition is

therefore dismissed. The parties are however left to bear their own

costs.

ANIL KUMAR, J.

April 30, 2010                                   MOOL CHAND GARG, J.
'rs'