Delhi High Court

Union Of India & Ors vs Pravesh Mehra on 19 November, 2012

Author: Badar Durrez Ahmed

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Judgment delivered on: 19.11.2012

        W.P.(C) 7688/2011


UNION OF INDIA & ORS                                            ..... Petitioners

                     versus

PRAVESH MEHRA                                                   ..... Respondent
Advocates who appeared in this case:
For the Petitioner  : Mr S.K. Dubey with Mr Ruchir Mishra and Ms Bhagyashree Pati
For the Respondent  : Mr Maninder Singh, Sr Advocate with Mr Vivek Pandey, Mr Ashok
                      Kashyap and Mr Siddharth Khatana

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                                JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is directed against the order dated 24.09.2010 passed

by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.

No.1870/2009. The said original application which was filed by the

respondent herein was allowed by the Tribunal.

2. The issue raised in the said O.A. was as to from which date the

Dynamic Assured Career Progression (DACP) Scheme as recommended by

the 5th Central Pay Commission was to apply with regard to dental surgeons

working under the Ministry of Health and Family Welfare/Central

Government.

3. The point raised by the respondent was that the DACP Scheme which

had been made applicable to medical officers of the Central Health Service

w.e.f. 05.04.2002 ought to have also been made applicable to dental

surgeons who were involved in teaching, clinical, administrative, research

work. This claim was based on the earlier recommendation of the 4th Central

Pay Commission which was inter alia to the following effect:-

"11.76 The promotion prospectus of dental surgeons are said to be poor, and it has been presented that these should be comparable with general duty officers of Central Health Service.

11.77 There is no significant difference between the levels of minimum qualifications, course content and period of internship, etc. in BDS and MBBS course. Taking all relevant factors into consideration, we recommend that dental surgeons may be included in Central Health Service/Railway Medical Service and given the pay scales applicable to general duty officers of these services. With the inclusion in the respective medical services, we recommend that recruitment to the posts of dental surgeons may also be made through a competitive examination."

4. Thereafter a Memorandum of Settlement between the Ministry of

Health and Family Welfare and the Joint Action Council of Service Doctors

was executed on 10.04.1989. Paragraph 4.2 of the said settlement reads as

under:-

"4.2 Dental Surgeons will be treated on par with medical officers."

5. Based upon the above Memorandum of Settlement, the respondent

claimed to be treated at par with medical officers. Since the medical officers

under the Ministry of Health and Family Welfare have been granted the

benefit of DACP Scheme w.e.f. 05.04.2002, the respondent also claimed the

same benefit w.e.f. 05.04.2002. Because such a benefit was not extended to

the dental surgeons and in particular to the respondent, he made

representations on 26.03.2004 and 27.02.2006 for applying the same norms

as applied to the medical officers to the Central Health Service.

6. We may point out at this stage that the DACP Scheme which was

made effective in respect of medical officers of the Central Health Service

w.e.f. 05.04.2002 inter alia entailed the following:-

"2(ii) The Specialists Officer of the Non Teaching and Public Health sub cadres will be promoted from Specialist Grade II (Junior Scale) Rs.10000-15200) to Specialist Grade II (Senior Scale) (Rs.12000-16500) on completion of 2 (two) years of regular service. Specialist Grade II (Senior Scale) officer with 4 (four) years' regular service as Specialist Grade II (Senior Scale) will be promoted to Specialist Grade I (Rs.14300- 18300). In the Teaching sub cadre Assistant Professor (Rs.10000-15200) will be promoted to Associate Professor (Rs.12000-16500) on completion of 2 (two) years of regular service in the grade of Assistant Professor. Associate Professor with 4 (four) years of regular service will be promoted to the grade of Professor (Rs.14300-18300). In other words, officers

of Teaching, Non Teaching and Public Health sub cadres will be promoted to Specialist Grade I/Professor (Rs.14300-18300) on completion of 6 (six) years of service. Specialist Grade II (Super Specialities)/Associate Professor (Super Specialities) in the pay scale of Rs.12000-16500 will be promoted to Specialist Grade I/ Professor (Rs.14300-18300) on completion of 4 (four) years of regular service in the grade."

7. It is apparent that insofar as medical officers of the Central Health

Service were concerned, promotion from the post of Assistant Professor to

Associate Professor was to take place within two years and the promotion

from the post of Associate Professor to Professor was to take place within

four years of regular service as an Associate Professor. The respondent

claimed a similar benefit insofar as dental surgeons were concerned.

Ultimately, on 25.08.2006 the Ministry of Health and Family Welfare issued

an order extending the benefit of promotion under the DACP Scheme to

dental officers under the Ministry of Health and Family Welfare. The

Scheme was virtually the same as that which was applicable in respect of the

medical officers of the Central Health Service. The only difference being

that while the earlier scheme came into operation w.e.f. 05.04.2002, this

extension of the scheme was sought to be brought into effect from 2006.

8. We may also point out at this stage itself that the benefit of DACP

scheme has thereafter been extended to the respondent inasmuch as he got

the promotion as Associate Professor w.e.f. 17.07.2006 and as Professor

w.e.f. 17.07.2010. The only point of contention is with regard to the date

from which the Scheme is to operate. To make it clear it is not disputed by

the petitioner that the DACP Scheme is applicable and is in operation. The

only point of contention is that according to the petitioner the Scheme would

apply prospectively from 25.08.2006 whereas according to the respondent

the Scheme ought to apply w.e.f. 05.04.2002 which is a date on which the

Scheme was made applicable to medical officers of the Central Health

Service.

9. The Tribunal has examined the rival contentions of the parties and has

concluded that the DACP Scheme should be made applicable to the

respondent and other dental surgeons w.e.f. 05.04.2002 and not from

25.08.2006. The Tribunal has arrived at this conclusion on the premise that

the DACP Scheme has been extended to the dental surgeons because of the

parity which was to be maintained on account of the settlement of 1989. The

Tribunal noted that this was also the stand of the petitioner before the

Tribunal. Paragraph 4 of the counter affidavit of the petitioner herein was

noticed and it was to the following effect:-

"4. The above DACP Scheme was not granted to the Dental Doctors at that time. However, considering the Dental doctors

at par with the Medical doctors in pursuance to the Memorandum of Settlement signed between Ministry of Health and Family Welfare and the Joint Action Council of Service Doctors (JACSDO), the case for granting of DACP to Dental Doctors was taken up with Department of Personnel and Training & Department of Expenditure. Accordingly, after obtaining their approval, the Scheme of DACP was implemented in respect of Dental doctors vide order No.A45012/1/2002-CHS VI dated 25.08.2006 with effect from the date of issue of the order i.e. w.e.f. 25.08.2006. According to this DACP Scheme, Dental doctors in the Teaching side, Assistant Professor (Rs.10,000-15,200) will be promoted to the post of Associate Professor (Rs.12,000-16,500) on completion of two years of regular service in the Grade. Thereafter, Associate Professor with four years of regular will be promoted to the post of Professor (Rs.14,300-18,300). True copy of DACP for Dental Doctors introduced vide order dated 25.08.2006 is Annexure R-3."

10. A plain reading of the said paragraph indicates that the reason for

extending the DACP Scheme to the dental surgeon was the settlement

arrived at in 1989. Though the year 1989 is not mentioned in the paragraph

extracted above, it is an admitted position that the settlement had been

arrived at in 1989 as has been pointed out by us above. The settlement was

in existence on the date on which the DACP Scheme was applied to the

medical officers of the Central Health Service. There was, therefore, in the

view of the Tribunal, no reason as to why the DACP Scheme ought not to

have been made applicable to the dental surgeons also from that date. We

agree with this view of the Tribunal. There is no reason given by the

petitioner as to why the extention of the DACP Scheme was delayed insofar

as the dental surgeons were concerned. Particularly, when the admitted