Delhi High Court
Dr. Nidhi Chopra And Others vs Government Of Nct Of Delhi And ... on 12 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 8034/2014
Reserved on: 3rd May, 2016
% Date of Decision: 12th August, 2016
DR. NIDHI CHOPRA AND OTHERS ....Petitioners
Through Ms. Aishwarya Bhati, Mr. Dilip Kumar
Nayak & Ms. Heena Khan, Advocates.
Versus
GOVERNMENT OF NCT OF DELHI AND OTHERS
....Respondents
Through Mr. Sanjoy Ghose, ASC & Mr. Yash Vijay,
Advocate for GNCTD.
Mr. Naresh Kaushik, Advocate for UPSC.
WRIT PETITION (CIVIL) No. 8035/2014
DR. NEETU CHAUDHARY AND OTHERS ....Petitioners
Through Ms. Aishwarya Bhati, Mr. Dilip Kumar
Nayak & Ms. Heena Khan, Advocates.
Versus
GOVERNMENT OF NCT OF DELHI AND OTHERS
....Respondents
Through Mr. Sanjoy Ghose, ASC & Mr. Yash Vijay,
Advocate for GNCTD.
Mr. Naresh Kaushik, Advocate for UPSC.
WRIT PETITION (CIVIL) No. 8439/2014
DR. ATUL JAIN ....Petitioner
W.P (C) No. 8034/2014+connected matters Page 1 of 33
Through Mr. P.P. Khurana, Sr. Advocate with Mr.
Shree Prakash Sinha, Mr. Rakesh Mishra & Mr.
Yogesh Goel, Advocates.
Versus
GOVERNMENT OF NCT OF DELHI AND OTHERS
....Respondents
Through Mr. Sanjoy Ghose, ASC & Mr. Yash Vijay,
Advocate for GNCTD.
Mr. Naresh Kaushik, Advocate for UPSC.
WRIT PETITION (CIVIL) No. 8444/2014
DR. AMIT SHOKEEN & OTHERS ....Petitioners
Through Ms. Aishwarya Bhati, Mr. Dilip Kumar
Nayak & Ms. Heena Khan, Advocates.
Versus
GOVERNMENT OF NCT OF DELHI AND OTHERS
....Respondents
Through Mr. Sanjoy Ghose, ASC & Mr. Yash Vijay,
Advocate for GNCTD.
Mr. Naresh Kaushik, Advocate for UPSC.
WRIT PETITION (CIVIL) No. 1201/2015
DR. NITIN ANAND & OTHERS ....Petitioners
Through Mr. P.P. Khurana, Sr. Advocate with Mr.
Shree Prakash Sinha, Mr. Rakesh Mishra & Mr.
Yogesh Goel, Advocates.
Versus
GOVERNMENT OF NCT OF DELHI AND OTHERS
W.P (C) No. 8034/2014+connected matters Page 2 of 33
....Respondents
Through Mr. Sanjoy Ghose, ASC & Mr. Yash Vijay,
Advocate for GNCTD.
Mr. Naresh Kaushik, Advocate for UPSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
SANJIV KHANNA, J.
1. The afore-stated writ petitions can be divided into two categories or
separate sets.
2. Writ Petition (C) No. 8034/2014 is for issue of writ of certiorari and
setting aside the common judgment and order dated 7th May, 2012
passed by the Principal Bench of the Central Administrative
Tribunal, New Delhi (Tribunal, for short) in the Original
Application No. 1259/2011 and other connected matters. The
second prayer is for issue of a writ in the nature of mandamus
directing the respondents to include the petitioners in the initial
constitution of the Delhi Health Service by relaxing Rule 6(2) of the
Delhi Health Service (Allopathy) Rules, 2009, (Rules for Short).
The third prayer is to quash the communication dated 19th August,
2014 by which the Government of NCT of Delhi had agreed with
the advice rendered by the Union Public Service Commission
(UPSC) against the grant of the aforesaid relaxation.
3. The second set of writ petitions, i.e., Writ Petition (C) Nos.
8035/2014, 8039/2014, 8444/2014 and 1201/2015 challenge the
judgment and order dated 1st October, 2014 passed by the Tribunal
in the CP No. 126/2014 in O.A. No. 3827/2013. The petitioners
have also prayed for quashing/setting aside of the letter dated 19th
August, 2014 written by the Government of NCT of Delhi to the
UPSC accepting the latter's advice given vide letter dated
20.01.2014, against relaxation of Rule 6(2) of the Rules. The third
prayer is for issue of a writ in the nature of mandamus for
directing the Government of NCT of Delhi to abide by the Cabinet
decision No. 1974 dated 10th January, 2013, approved by the
Lieutenant Governor on 12th February, 2013, and accordingly
accord relaxation of Rule 6(2) of the Rules. Still another prayer in
some of the writ petitions is that the UPSC must be directed to
accept and accord approval to the request for grant of relaxation of
Rule 6 (2).
4. To appreciate the controversy, we would like to set out the relevant
facts. National Capital Territory of Delhi as a Union Territory
stands accorded a special status vide the 69th Constitutional
amendment dated 21st December 1991. Until 1996, the
Government of NCT of Delhi had relied on the doctors belonging to
the Central Health Service cadre for operation, and upgradation of
health services in their hospitals and dispensaries. However, in mid
1990s, the Central Government stopped en-cadrement of new posts
of doctors required by the Government of NCT of Delhi. This was
stalling and was preventing upgradation and setting up of hospitals,
dispensaries and health centres of the Government of NCT of Delhi.
To meet the shortage of doctors, as a stop-gap arrangement, the
Union of India had suggested to the Government of NCT of Delhi
to fill up the vacant post of doctors by way of contractual
appointments. The Lieutenant Governor of the Government of
NCT of Delhi, from time to time, in order to meet the emergent and
growing requirements had sanctioned and created ex cadre posts of
General Duty Medical Officers (GDMOs, for short) and non-
teaching specialists. This in turn led to a situation where more than
600 doctors were working on contractual basis. Faced with the
aforesaid unacceptable position, the Ministry of Health and
Welfare, Government of India had asked the Government of NCT
of Delhi examine feasibility of their own cadre of health service. A
proposal for the creation of Delhi Health Service was put up before
the Cabinet of the Government of NCT of Delhi and approved in
the meeting dated 26th April, 2014. The Government of NCT of
Delhi then had 1174 sanctioned posts of GDMOs, 110 sanctioned
posts of non-teaching specialists, 349 sanctioned posts of teaching
specialists and 4 sanctioned posts of public health specialists
including 438 ex cadre posts of GDMOs and 242 posts of non-
teaching specialists. 418 GDMOs and 252 non-teaching specialists
were working on contractual basis. In spite of the ad hoc
contractual appointments, there was a shortage of 238 GDMOs and
53 non-teaching specialists, which was unpalatable and was
adversely impacting the health centres and hospitals of the
Government of NCT of Delhi.
5. The Government of NCT of Delhi had earlier sent two requisitions
to the UPSC for filling up of 418 posts of GDMOs and 242 posts of
non-teaching specialists, but recommendations and select lists had
not been received. The proposal noted that the Lieutenant Governor
of Delhi was empowered to create posts as the Administrator and
make appointment to posts on the basis of recommendation of the
UPSC. It was suggested that the initial constitution of the new
service would be by way of transfer of employees from the Central
Health Service, who would be given an option subject to the right to
the Government of NCT of Delhi to reject a candidate on the
ground of unsuitability. Future appointments would be made on the
basis of a written test and interview to be conducted by the UPSC.
The Cabinet decision No. 1139 dated 13th November, 2006 while
approving the proposal had authorized the Department of Health
and Family Welfare of the Government of NCT of Delhi to take
consequential steps, including holding of consultation with the
UPSC for framing of service regulations and assessment of
suitability of persons to be appointed under the initial constitution.
6. The Lieutenant Governor accepted the recommendations of the
Council of Ministers. He had desired that the process of settling
service regulations with the UPSC should be initiated with
identification and notification of posts in the new service.
Thereupon, OM dated 18th December, 2006 was issued by the
Government of NCT of Delhi for the formation of a new service
known as the Delhi Health Service, a new Group A service,
although the recruitment rules etc. were still to be framed. The
Department of Health and Family Welfare under the Government of
NCT of Delhi thereafter started consultation with the UPSC for
framing service rules for recruitment etc. and assessment of
suitability of doctors for the initial constitution.
7. By notification dated 23rd December, 2009 published in the Delhi
Gazette, the Lieutenant Governor of Delhi, in exercise of the power
conferred under Article 309 of the Constitution of India, enacted
and promulgated the Rules i.e. Delhi Health Service (Allopathy)
Rules, 2009. Rule 6 dealt with the initial constitution of the service
and reads :-
"6. Initial Constitution of the Service
(1) All the officers appointed under the Central Health
Service Rules, 1996, who are working in the Government of
NCT of Delhi as on the date of publication of these rules in
the official gazette and who opt to be part of this service shall
be deemed to have been appointed under these rules and they
shall be members of the service in the respective grades.
(2) All officers appointed on contract basis/ad-hoc basis on
or before 18th December 2006, i.e. the date of issue of the
Government of Delhi‟s O.M.
No.F.70/49/2006/H&FW/SSHFW/463-475 dated 18th
December, 2006, on the basis of their suitability as assessed
by the Commission and requisite educational qualifications
and experience prescribed for the post and being found fit,
shall be deemed to have been appointed under these Rules
and assigned to the Sub-Cadre of General Duty Medical
Officers or Non-teaching Specialists, as the case may be, and
they shall be members of the Service at the entry level of the
respective Sub-Cadre at the initial constitution stage."
Under sub-rule (1) of the said Rule, doctors belonging to the
Central Health Service working with the Government of NCT of
Delhi on the date of publication of the rules had the option to opt
for absorption in the Delhi Health Service. Under sub-rule (2)
doctors appointed on contractual/ad hoc basis on or before 18 th
December, 2006, i.e., the date of issue of OM No.
F.70/49/2006/H&FW/SSHFW/463-475 constituting the Delhi
Health Service, were deemed to be appointed under the Rules
provided they had the requisite educational qualification and
experience as desired for the post and they were found to be
suitable as assessed by the UPSC.
8. The petitioners herein are doctors, who were appointed on ad
hoc/contractual basis after 18th December, 2006 and prior to 23rd
December, 2009. They were not covered under sub-rule (2) to Rule
6 and, therefore, were not a part of the initial constitution.
9. Aggrieved by their non-inclusion, some of the doctors appointed
between 18th December, 2006 and 23rd December, 2009 filed
Original Applications including OA No. 1259/2011 before the
Tribunal. The validity of sub-rule (2) to Rule 6 of the Rules was
challenged. The contention was that the cutoff date of 18th
December, 2006 had no legal sanctity and was arbitrary. The rules
having been notified on 23rd December, 2009, it was irrational and
absurd to fix the date of initial constitution as 18th December, 2006.
The Government of NCT of Delhi and the UPSC filed a counter
affidavit opposing the said Original Applications. By a detailed
speaking and well reasoned final judgment and order dated 7th
May, 2012, the Original Applications were dismissed. This final
judgment and order was initially not challenged, and after about two
years has been challenged in WP(C) No. 8034/2014. We shall refer
to the reasoning in the judgment dated 7th May, 2012 subsequently.
In brief, it was held that the Rule 6(2) of the Rules was perfectly
valid and not unconstitutional. The validity of the cutoff date of 18th
December, 2006 was upheld. However, the Tribunal, in the last
paragraph of the order dated 7th May, 2012, by way of obiter
observed that the Government of NCT of Delhi should seek advice
from the UPSC for doctors who were appointed post 18th
December, 2006 and prior to 23rd December, 2009 for inclusion in
the constitution of the initial cadre. The Government of NCT of
Delhi might also consider the matter of age relaxation for these
doctors. For the sake of completeness and convenience, we would
like to reproduce paragraph 32 of the order dated 7 th May, 2012,
which reads as under:-
"32. Before parting with the order, we consider our solemn
duty to make certain observations in the concluding part of
the order also in the light of the observations made in the
body of the order regarding doctors who were appointed post
18.12.2006 and prior to 23.12.2009 for inclusion in the
constitution of the cadre. We advise the Govt. of NCT of
Delhi as is their stand regarding the post 18.12.2006
appointed doctors to seek advice of UPSC to consider the
contractually appointed such doctors for inclusion in the
constitution of the cadre. The Govt. of NCT of Delhi shall
also consider the matter of age relaxation of these doctors.
No order as to costs."
10. The aforesaid directions became the edifice and foundation of the
second round of litigation with some of the petitioners filing OA
Nos. 3827/2013 and 2565/2013. These OAs were disposed of vide
order dated 22nd November, 2013, whereby the respondents were
directed to finalize the process of relaxation of Rule 6 (2) of the
Rules in terms of Rule 16 thereof within a period of 4 weeks from
the date of receipt of a copy of the order, with further directions to
undertake assessment of the suitability of the doctors upon
relaxation of Rule 6 (2). This order also dealt with the apprehension
of the petitioners regarding fresh appointments and it was noted that
the new selections being made were not for replacing ad hoc
doctors appointed on contractual basis. Therefore, no prejudice was
caused to the applicants therein. The said directions and
observations were made without waiting for the reply and
ascertaining the stand and stance of the UPSC. Reference was made
the short reply filed by the Government of NCT of Delhi to the
effect that they had requested the UPSC for regularization of
GDMOs and non-teaching specialists appointed between 18th
December, 2006 to 23rd December, 2009, but the UPSC had advised
the retention of provisions. Reliance was also placed on the letter
dated 15th December, 2013 written by the Government of NCT of
Delhi to the UPSC for relaxation of Rule 6 (2). The order records
that it was the prerogative of the Executive to frame, amend and
relax the recruitment rules, and Article 320 clause (3) requires
consultation with the UPSC on all matters relating to recruitment to
services and civil posts. After elucidating the case law on the
meaning and scope of the term "consultation", it was observed that
the expression "consultation" as used in the aforesaid Article was
different from that of approval or acceptance, but at the same time
"consultation" did not mean mechanical concurrence. The duty of
the consultant was to apply their mind and give their opinion fairly.
In the final and operative portion of the order dated 22nd
November, 2013, it was directed as under:-
"6. In the circumstances, OAs are disposed of with
direction to respondents to finalize the process of relaxation
of Rule 6(2) of the Delhi Health Services (Allopathy) Rules,
2009 undertaken by them in terms of the provisions of Rule
16 thereof within a period of four weeks from the date of
receipt of a copy of this order and when the rules are finally
relaxed, to undertake the further exercise of assessing of
suitability of applicants in terms of the relaxed Rule 6(2) of
the RRs keeping in view the aforesaid orders of the Tribunal
and also that of High Court, within further period four
weeks."
11. The UPSC, by letter dated 20th January, 2014, addressed to the
Chief Secretary of the Government of NCT of Delhi, Department of
Health and Family Welfare, opined against relaxation of Rule 6(2)
and observed that the Commission would not accept or accede to
the said request. The UPSC took the stand that the doctors
appointed between 18th December, 2006 and 23rd December, 2009
should not be equated with and were not similar to those appointed
up to 18th December, 2006. On the question of age relaxation, the
UPSC was inclined to consider the same and had opined that
relaxation of age for such doctors, to the extent of service rendered
by them on ad hoc/contractual basis under the Government of NCT
of Delhi upon selection as a direct recruit, would be considered if a
proposal was brought forward. This was because some of the
doctors might have become over aged.
12. In the meanwhile, the petitioners in OA No. 3827/2013 and OA No.
2565/2013 filed CP Nos. 126/2014 and 146/2014 before the tribunal
on account of delay in the decision on relaxation. These contempt
petitions stand dismissed by the Tribunal vide order dated 1st
October, 2014 holding that the tribunal had never directed that Rule
6(2) must be relaxed or the doctors engaged on ad hoc or
contractual basis between 18th December, 2006 and 23rd December,
2009 must be inducted as members of the service at the time of
initial constitution. It was held that the Government of NCT of
Delhi, vide order of the Lieutenant Governor dated 15th July, 2014,
had, it its wisdom, decided not to go against the advice of the UPSC
tendered vide letter dated 20th January, 2014. The Tribunal justified
their finding by observing that for invoking the contempt
jurisdiction, it must be shown that there was willful and
contumacious disobedience of the earlier order and if there were
two equal consistent possibilities on interpretation of an order, a
contempt petition would not lie. When there was substantial
compliance of the directions in the order dated 22nd November,
2013, the contempt court would not go into the secondary aspects in
the contempt petition. The Government of NCT of Delhi had
decided not to relax Rule 6(2) and the UPSC had never committed
contempt. Thus, no further directions in the contempt proceedings
were required or could be issued. The tribunal, conscious that they
had not examined the merits of the decision taken by the
Government of NCT of Delhi, left it open to the applicants therein
to challenge the decision against relaxation of Rule 6(2).
13. Writ Petition (C) Nos. 8439/2014, 8435/2014 and 8444/2014 had
come up for hearing before a Division Bench on 16 th January, 2015
when the following detailed order was passed:-
"The common challenge in these Writ Petitions filed
by the petitioners who were appointed as General Duty
Medical Officer (in short „GDMO‟) and Specialist Grade-II
between the period 18.12.2006 to 23.12.2009 by the
Government of NCT of Delhi is against the order dated
01.10.2014 passed by the learned Central Administrative
Tribunal, Principal Bench, New Delhi (hereinafter referred to
as „CAT‟) dismissing
the Contempt Petition Nos.126/2014 in OA No.3827/2013
and 146/2014 in OA No.2565/2013 respectively preferred by
them.
The learned counsel for the petitioners also raised the
grievance that while dismissing the Contempt Petitions, the
learned CAT has exceeded its jurisdiction by modifying the
earlier order dated 22.11.2013
passed in OA No.3827/2013 and 2565/2013 respectively.
We have heard the learned counsel for the petitioners
and Mrs. Zubeda Begum, Standing Counsel for GNCTD for
R-1, Mrs. Avnish Ahlawat, the learned counsel for
respondent No. 2 and Mr. Naresh Kaushik, the learned
counsel for respondent No.3 who appears on advance notice
and accept notice on behalf of respondent Nos.1, 2 and 3
respectively.
In the Contempt Petitions filed by the petitioners, they
were seeking the enforcement of the orders dated 22.11.2013
passed in OA No.3827/2013 and 2565/2013 respectively.
The operative portion of para 6 of the same is extracted
below:
6. In the circumstances, OAs are disposed of with the
direction to respondents to finalise the process of the
relaxation of Rule 6 (2) of the Delhi Health Services
(Allopathy) Rules, 2009 undertaken by them in terms of
the provisions of Rule 16 thereof within a period of four
weeks from the date of receipt of a copy of this order
and when the rules were finally relaxed, to undertake
the further exercise of assessing of suitability of
applicants in terms of the relaxed Rule 6(2) of the RRs
keeping in view the aforesaid orders of the Tribunal and
also that of High Court, within a further period of four
weeks."
Taking into consideration the said positive direction
given by the learned CAT, we are prima facie of the
view that as per the direction given by the learned
CAT, the respondents were to finalise the process of
the relaxation of Rule 6 (2) of the Delhi Health
Services (Allopathy) Rules, 2009 undertaken by them in
terms of the provisions of Rule 16 thereof within a
period of four weeks from the date of receipt of the said
order. The learned CAT also directed that when the
rules are finally relaxed, the respondents shall undertake
the further exercise of assessing suitability of the
applicants in terms of the relaxed Rule 6(2) of the RRs
keeping in view the order of the learned CAT and the
High Court within a further period of four weeks.
Let the respondents file their affidavits to apprise the
Court with regard to the compliance of the said direction
given by the learned CAT by the common order dated
22.11.2013 passed in OA No.3827/2013 and 2565/2013,
respectively within a period of four weeks. Replies, if any, be
filed by the petitioners within a period of two weeks
thereafter.
List these matters on 17.03.2015.
In the meantime, status quo shall be maintained by the
parties with regard to the service of the petitioners vis-a-vis
those who are continuing in their service."
14. A reading of the aforesaid order illustrates and reflects the reason
why notice was issued. The court had prima facie felt that the order
dated 22nd November, 2013 passed in OA No. 3827/2013 and
2565/2013 had been misinterpreted. We have already quoted the
operative portion of the order dated 22nd November, 2013 passed in
OA Nos. 3827/2013 and 2565/2013 and the relevant findings and
observations. The Tribunal had made observations and interpreted
the term consultation, but did not make any final pronouncement or
issue any directions to the UPSC. The respondents were directed to
finalize the process of relaxation and if the rules were relaxed, to
undertake the further exercise of assessing suitability under relaxed
Rule 6(2) within a further period of four weeks. We would not read
the last paragraph of the order dated 22 nd November, 2013 as an
order which had firmed or directed that relaxation under Rule 16
must be granted to the doctors appointed between 18th December,
2006 and 23rd December, 2009.
15. Learned counsel for the petitioners had emphasized on the
observations interpreting the word "consultation", in consonance
with judicial decisions on clause (3) of Article 320 and on the role
of the UPSC in particular. Our attention was drawn to the quotation
in State of Haryana and Others versus Piara Singh and Others,
(1992) 4 SCC 118 and the following passage from the order of the
Tribunal dated 22nd November 2013 was referred to:-
"The UPSC provided for in Article 320 of the Constitution has
the duty to conduct examinations for appointments to the
services of the Union or State respectively. Article 320 (3)
provides for consultation with the UPSC on all matters relating
to method of recruitment to civil services and for civil posts.
For easy reference, said article is extracted hereinbelow:-
"320(3)(a) on all matters relating to methods of
recruitment to civil services and for civil posts."
Nevertheless in proviso to said Article, it is specified that the
Governor may make regulations specifying the matters in
which either generally or in any particular class of case or in
any particular circumstances, it shall not be necessary for a
public service commission to be consulted. Nevertheless
having due regard to Rule 6 (2) of the aforementioned
constitutional provisions in the aforementioned Recruitment
Rules, i.e. Delhi Health Services (Allopathy) Rules, 2009, it
could be provided that where Government is of the opinion
that it is necessary or expedient to so it may, for the reasons to
be recorded in writing and in consultation with the
Commission, relax any of the provisions of the rules with
respect to any class or category of persons. In exercise of such
power, the Cabinet took the aforementioned decision for
relaxing Rule 6 (2) of the RRs and to consider such
GDMOs/Specialist Grade III who were appointed between
18.12.2006 and 23.12.2009 at par with those who were
appointed prior to 18.12. 2006. The role assigned to Union
Public Service Commission in framing the RRs or relaxing the
same is only of consultation and not the decision making. Such
role may not be assumed by the UPSC as an authority over the
rule making authority under Article 309 of the Constitution.
The meaning of consultation as mentioned in Black s Law
Dictionary is deliberation of persons on some subject or a
conference between the counsel engaged in a case to discuss
its questions or arrange the method of conducting it. The said
meaning is extracted hereinbelow:-
"Black‟s law dictionary Consultation. Act of consulting or
conferring: e.g. patient with doctor: client with lawyer.
Deliberation of persons on some subject. A conference
between the counsel engaged in a case, to discuss its
questions or arrange the method of conducting it.
An old writ whereby a cause which had been wrongfully
removed by prohibition out of an ecclesiastical court to a
temporal court was returned to the ecclesiastical court."
When the Cabinet, Delhi Government has taken a decision to
relax the rules, the role of UPSC is only to suggest the method
of carrying out such relaxation and its implementation.
Consultant cannot confer upon the authority required to be
consulted, the power of accepting or rejecting authority. The
function of consultation is entirely different from that of
approval and acceptance. Nevertheless the consultation may
not be understood as a mechanical concurrence. It is the duty
of the consultant to apply its mind on the subject and give its
expert opinion fairly.
3. In the present case once the Cabinet of Govt. of NCT
of Delhi has taken the decision for inclusion in the initial
constitution of Delhi Health Service (Allopathy) of doctors,
even such doctors who were appointed on contract basis upto
23.12.2009, the same need to be acted upon, as period of more
than 10 months has already passed. The early implementation
of the said decision would also avoid a future seniority dispute
between the doctors to be considered in terms of Rule 6 (2) of
the Recruitment Rules, i.e., the persons like the applicants
herein and those who would be directly recruited by way of
open competition."
16. In the aforesaid passage, the Tribunal had held that the role of
UPSC was to suggest the method of carrying out the relaxation and
its implementation, albeit the consultant did not have the power as
an accepting or rejecting authority. Nevertheless, the Tribunal had
cautioned that the word "consultation" cannot be understood as
mechanical concurrence. It was the duty of the consultant to apply
his mind on the subject and give his fair and expert opinion. The
Tribunal had also observed that there had been a considerable delay,
for the decision of the Cabinet of the Government of NCT of Delhi
had remained pending for almost ten months. An early
implementation of the decision, it was advised, would avoid
complications in the nature of seniority disputes, etc.
17. What is meant by the term "consultation" in clause (3) of Article
320 of the Constitution has been the subject matter of consideration
and explanation in State of U.P. versus Manbodhan Lal
Srivastava, AIR 1957 SC 912, Suraj Prakash Gupta and Others
versus State of J & K and Others, (2000) 7 SCC 561, J & K Public
Service Commission and Others versus Dr. Narinder Mohan and
Others, (1994) 2 SCC 630 and Jatinder Kumar and Others versus
State of Punjab and Others, (1985) 1 SCC 122. In a latter decision
of the Supreme Court in Indian Administrative Services (S.C.S)
Association & Ors. Vs. Union Of India &Ors. 1993 Supp (1) 730,
it has been observed as under:-
"26. The result of the above discussion leads to the
following conclusions:
(1) Consultation is a process which requires meeting of
minds between the parties involved in the process of
consultation on the material facts and points involved to
evolve a correct or at least satisfactory solution. There should
be meeting of minds between the proposer and the persons to
be consulted on the subject of consultation. There must be
definite facts which constitute the foundation and source for
final decision. The object of the consultation is to render
consultation meaningful to serve the intended purpose. Prior
consultation in that behalf is mandatory.
(2) When the offending action affects fundamental rights
or to effectuate built-in insulation, as fair procedure,
consultation is mandatory and non-consultation renders the
action ultra vires or invalid or void.
(3) When the opinion or advice binds the proposer,
consultation is mandatory and its infraction renders the
action or order illegal.
(4) When the opinion or advice or view does not bind the
person or authority, any action or decision taken contrary to
the advice is not illegal, nor becomes void.
(5) When the object of the consultation is only to apprise
of the proposed action and when the opinion or advice is not
binding on the authorities or person and is not bound to be
accepted, the prior consultation is only directory. The
authority proposing to take action should make known the
general scheme or outlines of the actions proposed to be
taken be put to notice of the authority or the persons to be
consulted; have the views or objections, take them into
consideration, and thereafter, the authority or person would
be entitled or has/have authority to pass appropriate orders or
take decision thereon. In such circumstances it amounts to an
action "after consultation".
(6) No hard and fast rule could be laid, no useful purpose
would be served by formulating words or definitions nor
would it be appropriate to lay down the manner in which
consultation must take place. It is for the Court to determine
in each case in the light of its facts and circumstances
whether the action is "after consultation"; "was in fact
consulted" or was it a "sufficient consultation".
(7) Where any action is legislative in character, the
consultation envisages like one under Section 3(1) of the Act,
that the Central Government is to intimate to the State
Governments concerned of the proposed action in general
outlines and on receiving the objections or suggestions, the
Central Government or Legislature is free to evolve its policy
decision, make appropriate legislation with necessary
additions or modification or omit the proposed one in draft
bill or rules. The revised draft bill or rules, amendments or
additions in the altered or modified form need not again be
communicated to all the concerned State Governments nor
have prior fresh consultation. Rules or Regulations being
legislative in character, would tacitly receive the approval of
the State Governments through the people's representatives
when laid on the floor of each House of Parliament. The Act
or the Rule made at the final shape is not rendered void or
ultra vires or invalid for non-consultation."
18. In Writ Petition (C) No. 4151/2014, titled Mrs. Sapna Channa and
Others versus Government of NCT of Delhi and Others and
another connected matter, on the question of consultation with the
UPSC and the advice rendered by them, it was declared that the
term "consultation" with the UPSC did not mean that the opinion
rendered by them was conclusive. However, this would at the same
time not prohibit the Government of NCT of Delhi from
considering the advice rendered by the UPSC before taking a final
view, which need not be the same as while sending the proposal for
advice to the UPSC. It was logical to conclude that before taking
the final decision and passing an order of relaxation of Rules, the
decision making authority could apply their mind to the opinion or
advice rendered by the UPSC. The Government of NCT of Delhi
could finally take a view, contrary to the one they prima facie had
while sending the proposal. The reasoning in the aforementioned
decision is apt and would rationally apply to the factual matrix of
the present case.
19. Papers on record in the present case would show that the
Government of NCT of Delhi by their communication dated 22nd
May, 2013, had expressed their view that the contractual ad hoc
doctors appointed between 18th December, 2006 to 23rd December,
2009 should be treated as included in the initial constitution of the
Delhi Health Service cadre. The reason and foundation was that the
cadre rules and the recruitment rules for the new service were
notified on 23rd December, 2009. Till the rules were notified, only
contractual appointments were made and regular appointments were
not made in the absence of the rules. It does appear that this was the
consistent view of the Government of NCT of Delhi, for this was
expressed even earlier when the recruitment rules were being
framed in consultation with the UPSC. By their letter dated 12th
September, 2013, the Government of NCT of Delhi had informed
the UPSC that due to non-availability of recruitment rules,
contractual or ad hoc appointments of doctors had been made. The
selection was on the basis of a written test for GDMOs and
interview for the Junior Specialists. The Ministry of Health and
Family Welfare, Government of India had permitted the
Government of NCT of Delhi to make contractual/ ad hoc
appointments after making a reference to Regulation 4 of the UPSC
(Exemption and Consultation) Regulations, 1958. The UPSC on
the other hand, in their written communication dated 27th
September, 2013, had professed violation of the Constitution, as the
aforesaid Regulations for ad hoc/contractual appointments were
made for periods exceeding one year, without consultation with the
UPSC. In OM No. AB-14017/5/82-Estt. (RR) dated 19th April,
1982, the Department of Personnel and Training had advised and
warned all administrative ministries/departments to obtain prior
clearance in the matter of relaxation of recruitment rules and only
thereafter a proposal for relaxation should be forwarded to the
UPSC. Further, ad hoc/contractual appointments should be made
rarely and only in real exigent circumstances. Continuation of ad
hoc/contractual appointments beyond one year would require the
approval of DoP&T. The Government of NCT of Delhi by their
letter dated 22nd November, 2013 had mentioned that they had
approached the Ministry of Home Affairs, Government of India,
who had stated that the DoP&T was not required to be consulted as
the Government of NCT of Delhi was not a Central Government
agency. The Government of India was in knowledge of, and had
consented to the ad hoc contractual appointments of doctors.
Further, the Lieutenant Governor was empowered to frame
regulations and the approval from the Ministry of Home Affairs
was not required. The contractual appointments were made with
the prior approval of the competent authority to tackle the
requirement on account of increasing patient load in the Delhi
Government Hospitals and in public interest.
20. The UPSC in their letter dated 20th January, 2014 has given as
many as 12 grounds/reasons why there should not be any relaxation
of Rule 6(2). One of the reasons given was that the contractual/ad
hoc appointment was with the understanding and stipulation that
such service would not confer a right to claim regular appointment.
The contractual doctors were free to seek regular appointment on
selection through medical service examination conducted by the
UPSC and other recruitment agencies. The UPSC felt that there
was no reason and ground to extend or change the cutoff date of
18th December, 2006. The said date had a nexus and a rationale as
the Delhi Health Service was constituted on the said date. The
doctors appointed thereafter were not similarly placed and could not
claim parity.
21. Pursuant to the aforesaid opinion, the matter was placed before the
Lieutenant Governor of Delhi, who in his order dated 15th July,
2014 examined the UPSC advice as well as the advice given by the
Law Department. He observed that the UPSC had not agreed for
relaxation of Rule 6(2) and had advised against the said move. The
UPSC had agreed to consider grant of age relaxation for such
contractual doctors. The Lieutenant Governor opined that he would
not go against the advice of the UPSC, even after the order of the
tribunal. The file was thereafter examined by the Secretary,
Department of Family Welfare and the Chief Secretary,
Government of NCT of Delhi, who have agreed and accepted the
view of the Lieutenant Governor. The consequential action, it was
directed, should be taken on the above lines. The Chief Secretary
wrote that the advice tendered by the UPSC might be followed.
22. We may at this stage note and record that the Government of NCT
of Delhi filed a counter affidavit in Writ Petition (C) No. 8035/2014
on or about 13th October, 2015, in which they have stated that the
UPSC had not acceded to the request of the Government of NCT of
Delhi for inclusion of ad hoc/contractual doctors appointed between
18th December, 2006 to 23rd December, 2009 in the initial cadre.
The UPSC, in their reply dated 15th June, 2015 to letter dated 24th
April, 2015, had again rejected the request of the Government of
NCT of Delhi. In reply to paragraph 32 of the writ petition, it is
stated that Government of NCT of Delhi had considered the case of
the petitioners and wished to provide them with absorption in Delhi
Health Service as a one- time measure. During the course of
hearing before us, Mr. Sanjay Ghose, Advocate and Additional
Standing Counsel for the Government of NCT of Delhi had
reiterated the said stand and stance.
23. It is apparent that the Government of NCT of Delhi has, in their
additional affidavit dated 16th September 2014, changed their stand
from what was stated before the Tribunal when the contempt
proceedings in CP No. 126/2014 in OA No. 3827/2013 and CP No.
146/2014 in OA No. 2565/2013 were pending. In spite of the
counter affidavit filed by the Government of NCT of Delhi in Writ
Petition (C) No. 8035/2014 to the effect that they wish to provide
the petitioners absorption in the Delhi Health Service as a one-time
measure, no order of relaxation has been passed. Indeed, it is not
even the stand and assertion of the Government of NCT of Delhi
that the said relaxation has been granted.
24. It is a fact that the power of relaxation has not been exercised.
Proposal for relaxation, after due consideration, has been rejected.
This final decision has not been overturned or reviewed. One of the
reasons and possibly the primary reason is that relaxation requires
approval and concurrence of the Lieutenant Governor of Delhi, who
is the competent authority. Otherwise there does not appear to be
any ground or cause why the Government of NCT of Delhi has,
inspite of their stand not passed an order of relaxation. We have
already recorded and noted that the Lieutenant Governor in his
noting dated 15th July, 2014 had accepted the advice given by the
UPSC, which was then accepted by the Secretary, Health and
Family Welfare of the Government of NCT of Delhi and the Chief
Secretary, Government of NCT of Delhi. It will not be correct for
us to enter into the controversy on the power and authority of the
Lieutenant Governor or hold that the Government of NCT of Delhi
has accepted the request of the petitioners for relaxation of Rule
6(2) and, therefore, this Court should proceed on the basis that an
order of relaxation under Rule 16 has been passed relaxing Rule
6(2). In Bacchittar Singh Vs. State of Punjab, AIR 1963 SC 395,
the Supreme Court has observed and held as under:-
"10 ... Indeed, it is possible that after expressing one opinion
about a particular matter at a particular stage a Minister or the
Council of Ministers may express quite a different opinion,
one which may be completely opposed to the earlier opinion.
Which of them can be regarded as the "order" of the State
Government? Therefore, to make the opinion amount to a
decision of the Government it must be communicated to the
person concerned.....Thus it is of the essence that the order
has to be communicated to the person who would be affected
by that order before the State and that person can be bound
by that order. For, until the order is communicated to the
person affected by it, it would be open to the Council of
Ministers to consider the matter over and over again and,
therefore, till its communication the order cannot be regarded
as anything more than provisional in character."
The decision in Bacchittar Singh (supra) was relied upon in
Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra &
Anr. (2003) SCC 413, observing that to confer an enforceable right,
the order or the decision of a statutory authority must be
communicated. It is a fact, de facto and de jure that no order of
relaxation under Rule 16 has been passed. We have already quoted
the last paragraph of the order dated 1 st October, 2014 disposing of
the contempt petition, which gives liberty to the petitioners to
challenge the decision of the Government of NCT of Delhi and the
UPSC not to relax Rule 6(2).
25. There is another reason why we should not enter into this
controversy as a writ Court. The stand and stance of the
Government of NCT of Delhi, which can, in the given facts may or
could mean and imply that the power of relaxation vests with the
Lieutenant Governor. This final decision has not been made the
subject matter of challenge before the tribunal. The tribunal is the
court of the first instance, where the disputes must be raised and
adjudicated. In L. Chandra Kumar versus Union of India and
Others, (1997) 3 SCC 261, the Seven Judge Constitution Bench of
the Supreme Court while reversing the earlier judgment in the case
of S.P. Sampath Kumar versus Union of India, (1987) 1 SCC 124,
had held that the tribunals created pursuant to Article 323A or 323B
of the Constitution will be subject to the High Courts‟ writ
jurisdiction under Articles 226/227 of the Constitution, but the
tribunals could be the courts of the first instance. The Constitution
Bench judgment in L. Chandra Kumar (supra) was referred to and
elucidated upon in T. Sudhakar Prasad versus Government of A.P.
and Others, (2001) 1 SCC 516 in relation to contempt proceedings
and right to appeal under Section 19 of the Contempt of Courts Act,
1971 and had held:-
"17. It is thus clear that the Constitution Bench has not declared
the provisions of Article 323-A(2)(b) or Article 323-B(3)(d) or
Section 17 of the Act ultra vires the Constitution. The High Court
has, in its judgment under appeal, noted with emphasis the
Tribunal having been compared to like "courts of first instance"
and then proceeded to hold that the status of Administrative
Tribunals having been held to be equivalent to courts or
Tribunals subordinate to the High Court the jurisdiction to hear
their own contempt was lost by the Administrative Tribunals and
the only course available to them was either to make a reference
to the High Court or to file a complaint under Sections 193, 219
and 228 IPC as provided by Section 30 of the Act. The High
Court has proceeded on the reasoning that the Tribunal having
been held to be subordinate to the High Court for the purpose of
Articles 226/227 of the Constitution and its decisions having
been subjected to judicial review jurisdiction of the High Court
under Articles 226/227 of the Constitution, the right to file an
appeal to the Supreme Court against an order passed by the
Tribunal punishing for contempt under Section 17 of the Act was
defeated and on these twin grounds Section 17 of the Act became
unworkable and unconstitutional. We do not find any basis for
such conclusion or inference being drawn from the judgments of
this Court in the cases of Supreme Court Bar Assn. [(1998) 4
SCC 409] or L. Chandra Kumar[(1997) 3 SCC 261 : 1997 SCC
(L&S) 577] or any other decision of this Court. The Constitution
Bench has in so many words said that the jurisdiction conferred
on the High Courts under Articles 226/227 could not be taken
away by conferring the same on any court or Tribunal and
jurisdiction hitherto exercised by the High Court now
legislatively conferred on Tribunals to the exclusion of the High
Court on specified matters, did not amount to assigning Tribunals
a status of substitute for the High Court but such jurisdiction was
capable of being conferred additionally or supplementally on any
court or Tribunal which is not a concept strange to the scheme of
the Constitution more so in view of Articles 323-A and 323-B.
Clause (2)(b) of Article 323-A specifically empowers Parliament
to enact a law specifying the jurisdiction and powers, including
the power to punish for contempt, being conferred on the
Administrative Tribunals constituted under Article 323-A.
Section 17 of the Act derives its legislative sanctity therefrom.
The power of the High Court to punish for contempt of itself
under Article 215 of the Constitution remains intact but the
jurisdiction, power and authority to hear and decide the matters
covered by sub-section (1) of Section 14 of the Act having been
conferred on the Administrative Tribunals the jurisdiction of the
High Court to that extent has been taken away and hence the
same jurisdiction which vested in the High Court to punish for
contempt of itself in the matters now falling within the
jurisdiction of Tribunals if those matters would have continued to
be heard by the High Court has now been conferred on the
Administrative Tribunals under Section 17 of the Act. The
jurisdiction is the same as vesting in the High Courts under
Article 215 of the Constitution read with the provisions of the
Contempt of Courts Act, 1971. The need for enacting Section 17
arose, firstly, to avoid doubts, and secondly, because the
Tribunals are not "courts of record". While holding the
proceedings under Section 17 of the Act the Tribunal remains a
Tribunal and so would be amenable to the jurisdiction of the
High Court under Articles 226/227 of the Constitution subject to
the well-established rules of self-restraint governing the
discretion of the High Court to interfere with the pending
proceedings and upset the interim or interlocutory orders of the
Tribunals. However any order or decision of the Tribunal
punishing for contempt shall be appealable only to the Supreme
Court within 60 days from the date of the order appealed against
in view of the specific provision contained in Section 19 of the
Contempt of Courts Act, 1971 read with Section 17 of the
Administrative Tribunals Act, 1985. Section 17 of the
Administrative Tribunals Act is a piece of legislation by
reference. The provisions of the Contempt of Courts Act are not
as if lifted and incorporated in the text of the Administrative
Tribunals Act (as is in the case of legislation by incorporation);
they remain there where they are, yet while reading the
provisions of the Contempt of Courts Act in the context of
Tribunals, the same will be so read as to read the word
"Tribunal" in place of the word "High Court" wherever it occurs,
subject to the modifications set out in Section 17 of the
Administrative Tribunals Act. Section 19 of the Contempt of
Courts Act, 1971 provides for appeals. In its text also by virtue of
Section 17 of the Administrative Tribunals Act, 1985 the word
"High Court" shall be read as "Tribunal". Here, by way of
abundant caution, we make it clear that the concept of intra-
Tribunal appeals i.e. appeal from an order or decision of a
Member of a Tribunal sitting singly to a Bench of not less than
two Members of the Tribunal is alien to the Administrative
Tribunals Act, 1985. The question of any order made under the
provisions of the Contempt of Courts Act, 1971 by a Member of
the Tribunal sitting singly, if the rules of business framed by the
Tribunal or the appropriate Government permit such hearing,
being subjected to an appeal before a Bench of two or more
Members of the Tribunal therefore does not arise. Any order or
decision of the Tribunal punishing for contempt is appealable
under Section 19 of the Act to the Supreme Court only. The
Supreme Court in the case of L. Chandra Kumar [(1997) 3 SCC
261 : 1997 SCC (L&S) 577] has nowhere said that orders of the
Tribunal holding the contemner guilty and punishing for
contempt shall also be subject to judicial scrutiny of the High
Court under Articles 226/227 of the Constitution in spite of
remedy of statutory appeal provided by Section 19 of the
Contempt of Courts Act being available. The distinction between
orders passed by the Administrative Tribunal on matters covered
by Section 14(1) of the Administrative Tribunals Act and orders
punishing for contempt under Section 19 of the Contempt of
Courts Act read with Section 17 of the Administrative Tribunals
Act, is this: as against the former there is no remedy of appeal
statutorily provided, but as against the latter statutory remedy of
appeal is provided by Section 19 of the Contempt of Courts Act
itself."
26. We are conscious that in the present case the contempt proceedings
have been dismissed. We have relied on T. Sudhakar Prasad
(supra) and quoted from the said decision for the reason that it has
been held that the administrative tribunals are the courts of the first
instance and, therefore, the writ court should not examine service
matters which have to be made the subject matter of the tribunal. It
is before the tribunal that the question of relaxation,
advice/consultation and the question as to whether the power of
relaxation vests with the Lieutenant Governor or the Government of
NCT of Delhi, etc. would arise for consideration/examination. The
advice rendered by the UPSC in their letter dated 20th January, 2014
and the decision of the Lieutenant Governor thereafter on 15 th July,
2014 and the communications thereafter written on 19th August,
2014 have not been made the subject matter of challenge before the
Tribunal. The petitioners cannot bypass and jump the Tribunal and
approach the High Court by way of writ petitions. The petitioners,
therefore, must approach the Tribunal first and only in case of an
adverse order, approach the High Court by way of a writ petition.
27. The aforesaid discussion would take care of Writ Petition (C) Nos.
8035/2014, 8439/2014, 8444/2014 and 1201/2015. It also takes
care and decides the prayer clauses (b) and (c) of the Writ Petition
(C) No. 8034/2014.
28. The issue which survives relates to the challenge to the judgment
and order dated 7th May, 2012 by which OA No. 1259/2011 was
dismissed. The petitioners had, in the said OA, challenged validity
of Rule 6(2) of the Rules by which the cutoff date for initial
recruitment for contractual doctors was fixed as 18th December,
2006. Doctors appointed post the said date and up to the
notification of the recruitment rules on 23rd December, 2009 were
excluded. We are in agreement with the finding of the tribunal that
the date fixed in Rule 6(2) is valid and constitutional. Whatever be
the stand and stance of the Government of NCT of Delhi, it is an
accepted fact that the Rules, i.e., Delhi Health Service (Allopathy)
Rules, 2009 notified on 23rd December, 2009 in exercise of power
under Article 309 of the Constitution fixed the said date in Rule
6(2). It is therefore, not possible to accept the contention of the
petitioners that the Government of NCT of Delhi had earlier
recommended or suggested that the cutoff date for initial induction
should be the date on which the Rules were notified, i.e., 23rd
December, 2009. This was an internal matter or opinion that would
not confer any legal rights on the petitioners. This date was not
accorded acceptance in the Rules when they were finalized and
published. Cut off dates are normally fixed keeping in view the
several facets and parameters. In the present case, it is the date on
which the Delhi Health Service was created and came into existence
as a new service. The date mentioned in Rule 6(2), is 18th
December, 2006, i.e. the date on which OM No.
F.70/49/2006/H&FW/SSHFW/463-475 was issued. This date is the
foundation and the basis. The said date can be declared
unconstitutional in case there is violation of any constitutional
rights or Fundamental Rights. No such contention or argument has
been raised. The Delhi Health Service is a Group A service.
Regular appointments to a Group A service can be made only in
consultation with the UPSC. In the present case, the petitioners
were not appointed in a selection process initiated and undertaken
by the UPSC.
29. The claim of the petitioner-doctors, that those appointed prior to
18th December, 2006 have been treated differently has to be rejected
for the simple reason that the said appointments were before the
creation of Delhi Health Service. Further, if the said cut-off date is
changed and declared to be invalid, doctors appointed by way of
contractual or ad hoc appointments after 23rd December, 2009,
could possibly claim regularization of such appointment as falling
within the initial constitution. Possibly, no end point should then be
fixed. The appointments of the petitioners was on contract and as ad
hoc doctors with the clear stipulation that they would not be entitled
to regular absorption nor would their appointments be treated as
conferring any such right. It was and is open to the petitioners to
participate in the selection process and compete with other
candidates. Indeed several other doctors similarly situated had
participated in the selections as advertised for appointment as
regular doctors. Many of them have succeeded, while others have
not succeeded or did not participate. As noted above, the
Government of NCT of Delhi and the UPSC have agreed to grant
age relaxation. The challenge to Rule 6(2) and the cut-off date as
fixed is rejected.
30. The writ petitions are disposed of in above terms. No order as to
costs.
(SANJIV KHANNA)
JUDGE
(NAJMI WAZIRI)
JUDGE
AUGUST 12th, 2016
VKR/ssn
