Dr. Mohd. Ahmed Ansari vs North Delhi Municipal ...
2016 Latest Caselaw 6929 Del

$~09
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+   W.P.(C) 2100/2015 and CM No.3777/2015 (Stay)
                                  Date of Decision : 15th November, 2016

    DR. MOHD. AHMED ANSARI                     ..... Petitioner
                 Through Mr. Rajat Aneja, Advocate.

                         versus

    NORTH DELHI MUNICIPAL CORPORATION         ..... Respondent
                 Through  Mr. D.S. Mahendru, Advocate.

    CORAM:HON'BLE MR. JUSTICE SANJIV KHANNA
    HON'BLE MR. JUSTICE CHANDER SHEKHAR

    SANJIV KHANNA, J. (ORAL)

1. The present writ petition impugns the order dated 17.08.2011

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi, whereby the OA No. 1310/2010 filed by the petitioner- Dr.

Mohd. Ahmed Ansari has been dismissed. The order dated

12.11.2014 dismissing the review application, RA No. 526/2011, is

also challenged.

2. The petitioner was appointed in the respondent-Corporation to

the post of Unani Compounder in the year 1979. The petitioner along

with three others had filed the writ petition bearing W.P.(C) No.

2414/1998 challenging the amendment of the Recruitment Rules

1979. Under the pre amended rules, Compounders (Unani) could be

promoted as Unani Hakim under 50% departmental promotion quota

and the balance posts were to be filled by 50% direct recruitment.

Post amendment vide notification dated 12.04.1981 the posts of Unani

Hakim were to be filled only by way of direct recruitment. Essential

educational qualification and stipulation of age limit of 30 years

relaxable in the case of departmental candidates was prescribed.

3. The challenge to the amendment Rules failed, albeit some relief

was granted to the petitioners vide a judgement dated 10.09.2007, the

relevant portion of which reads as under:-

"Learned counsel for the respondent argued that the petitioners could apply for the post of Unani Hakim in terms of the amended rules as departmental candidates. This is also not possible for the petitioners as the petitioners, with their long service, have crossed the age limit of 25 years prescribed under the rules and have, therefore, become ineligible. It would also be relevant to point out that 2 out of 4 petitioners had become eligible for promotion to the post of Unani Hakim before the promulgation of the 1984 Regulations. Therefore, their cases, in any event, are to be considered as per the 1979 Regulations. In respect of the other two petitioners, keeping in view the peculiar position, it would be

appropriate for the respondents to consider giving relaxation in the rules so that they do not stagnate and retire on the same post on which they were appointed, without obtaining a single promotion in their entire service career. We may note that these petitioners are the only persons left in the service who are holding the post of Compounder and keeping view all these peculiarities, we are giving these directions. While doing so, we have also kept in mind that by interim orders passed in this petition, the respondents were directed not to fill found posts of Unani Hakims on the basis of the advertisement issued earlier. These orders are valid till date and, therefore, four posts of Unani Hakims are available with the respondents. The respondents are, therefore, directed to fill up these posts by considering the candidature of the petitioners. This exercise shall be done within two months from the date of receipt of copy of this order. It the petitioners are considered fit for promotion, they shall be given notional promotions from the dates they became eligible. Their pay shall be fixed accordingly, However, they shall not be paid arrears of pay for the intervening period".

4. As per the aforesaid direction, two petitioners who had become

eligible for promotions as Unani Hakim prior to the notification dated

12.04.1981, were to be considered for promotion under the pre-

amendment Rules. Two others including the petitioner herein, owing

to the peculiar circumstances and as they were the only employees in

the post of Compounder, directions were issued to the respondent-

Corporation to grant relaxation and consider them for promotions so

as to avoid stagnation. The petitioner was never promoted and had

remained on the post of compounder since his appointment. Four

vacancies of Unani Hakims were to be filled up by considering their

candidature. The aforesaid exercise was to be carried out within two

months from the date of receipt of the order passed and if the

petitioners were found fit for promotion, they would be given notional

promotions from the dates of their eligibility and their pay would be

fixed accordingly. They would not be entitled for arrears of pay for

the intervening period.

5. The direction regarding notional promotion was applicable to

the two petitioners who were to be considered for promotion under

the pre amended Rules. We would observe that the said direction

was not applicable to the present petitioner, for first an order granting

relaxation had to be passed and then he could have been promoted.

We note that the petitioner herein did not meet the eligibility criteria

under the pre amendment Regulations.

6. The petitioner was granted relaxation and promoted under the

Recruitment Regulations 1984, vide order dated 14.6.2008. This

order granted notional promotion to the petitioner as Unani Hakim

(now redesignated post of Medical Officer) w.e.f 22.11.1984.

Thereafter, the office order dated 07.11.2008 was passed by

Respondent/MCD whereby, the pay of the petitioner was refixed at

Rs 650 w.e.f. 22.11.1984 in the promotion scale of Rs 650-1,200 ; Rs

2275 + 600 NPA w.e.f 01.01.1986 in the pay scale of Rs 2200-4000 ;

and Rs 10,200 w.e.f 1.01.1996 in the pay scale of Rs 8000-12,500.

7. Subsequently by another order dated 18.08.2009 the petitioner

was granted promotion / placement as Senior Medical Officer in the

pay scale of Rs 3,000-4,500 w.e.f. 15.12.1991, and revised to Rs

10,000-15,200 w.e.f. 01.01.1996.

8. The petitioner was further promoted as Chief Medical Officer

in the pay scale of Rs 12,000-16,500 w.e.f. 25.01.1999, revised to Rs

27,210 with Rs 7,600 Grade Pay w.e.f 01.01.2006.

9. The petitioner retired from the post of Chief Medical Officer on

31.05.2008.

10. Similar orders granting notional promotions were also passed

in the case of other Compounders (Unani) who were co-petitioners

in the Writ Petition bearing W.P.(C) No.2414/1988.

11. The petitioner was however not satisfied with the promotion

granted and the pay scale fixed. He filed an OA No.1310/2010 in

April, 2010, with the following prayer :-

(i) Allow the Original Application.

(ii) Direct the respondent to consider the applicant for grant of Grade/scale of Rs.12000-16500 (pre-revised scale Rs. 3700-5000) after completion of two-year service in 1993; Specialist grade-I of Rs.14300-18300 [pre- revised scale Rs.4500-5700] after completion of six year service in 1999; and Supertime scale of Rs.18400- 22400 (pre-revised scale Rs.5900-6700) in 2002 after completion of three year service in terms of the Office Order No. F.14/5/91/CED(M)/92 51/9800-08 dated 14.5.1992 issued by the Commissioner and if found fit to grant such Grade/scale with all consequential benefits including pay and allowances etc.

(iii) Direct the respondent to financial benefits of promotional post for the period October 2007 to 31.05.2008;

(iv) Grant any other relief, which this Hon‟ble Tribunal deems fits and proper in favour of the applicant.

(v) Costs of this OA may also be awarded in favour of the applicant and against the respondents.

12. The prayer clause (ii) quoted above reflects that the petitioner was

seeking the scales of Rs.12000-16500 on completion of two years service in

1993 and Rs.14300-18300 on completion of six years of service in 1999 and

Supertime scale of Rs.18400-22400 on completion of three years service in

2002, in terms of the Office Order No.F.14/5/91/CED(M)/92 51/9800-08

dated 14.5.1992 issued by the Commissioner. Another prayer made was that

the petitioner should be granted arrears of pay at the relevant post for the

period from October 2007 till 31st May, 2008 i.e. the date on which he had

retired.

13. The respondent-Corporation in their reply had stated that the circular

dated 14.05.1992 relied on by the petitioner was applicable to the Indian

System of Medicine and Homeopathy (ISMH) cadre and not to the cadre to

which the petitioner belonged. The office order No.19(149)/CED-

(M)/99/52/RK/62 dated 27.12.1999 was applicable to the petitioner. In fact

this position was/is accepted by both the counsel for the petitioner and

respondent-Corporation.

14. The said office order dated 27.12.1999 is placed on record and states

that Medical Officers (Rs.8,000-13,500) were eligible for the first time

bound promotion as Senior Medical Officers (Rs.10,000-15,200) on the

completion of four years of regular service on seniority cum fitness criteria.

Senior Medical Officers were eligible for second time bound promotion to

the post of Chief Medical Officer in the pay scale of Rs. 12,000-16,500 on

the completion of six years of regular service as Senior Medical Officer or

on the completion of 10 years of combined regular service as Medical

officer of which at least two years should be at the post of Senior Medical

Officer on seniority cum fitness criteria subject to benchmark of „Good‟.

These time bond promotions had no linkage to vacancies or zone of

selection. The placement of Chief Medical Officer in the grade of Rs

14,300-18,300 was on completion of 14 years of regular service in group A

and with at least two „Very Good‟ assessments during the preceding 5 years.

The petitioner had claimed that he was entitled to supertime scale of Rs

14,300-18,300 which was redesignated as Non-Functional Financial

upgradation w.e.f. 2002. As noticed above, the Non-Functional Selection

Grade of 14,300-18,300 was payable on satisfaction of the aforestated

conditions. The petitioner‟s prayer and contention is that he should have

been granted Non Functional Selection Grade of Rs 14,300-18,300.

15. The respondents along with counter affidavit have filed the minutes of

the Departmental Promotion Committee (DPC) meeting held on 13.03.2009,

wherein the case of the petitioner along with the other co-petitioners in

W.P.(C) No. 2414/1998 was considered. The petitioner treated as working

as a Medical Officer (Unani) in the year 1984. The DPC in terms of the

circular dated 27.12.1999 held that the petitioner would be entitled to be

promotion to the post of Senior Medical Officer on completion of four

years regular service and the post of Chief Medical Officer in the pay

scale of Rs.12000-16500 on completion of six years of regular service as

Senior Medical Officer or on the completion of ten years of Combined

regular service as Medical officer of which at least two years should be at

the post of Senior Medical Officer. The relevant portion of the minutes

reads as under:-

"Since, the juniors of above mentioned Medical Officers were promoted in the scale of Rs.10,000-15,200 w.e.f. 5th December, 1991 and further promoted to the post of CMO in the scale of Rs.12,000-16,500 w.e.f. 25th January, 1999, the above mentioned Medical Officers (Unani) may be promoted/placed on next scales on notional basis as under:-

      Sl. Name of Date        of     Proposed date    Proposed Remarks
      No. Medical    notional        of    notional   date    of
          Officers1 promotion        promotion/pla    notional
                     to the post     cement in the    promotio
                     of              scale       of   n/placem
                     M.O(Unani       Rs.10,000-       ent
                     )               15,200
      1. Sh. Ashok 28.11.1980        05.12.1991       25.01.99   Expired
          Kumar                                                  on
          Vaid                                                   23.02.07
      2. Sh.         17.12.1980      05.12.1991       25.01.99   Working
          Mahender
          Pal
          Sharma
      3. Sh. Amir 22.11.1984         05.12.1991       25.01.99   Retd. pm
          Raza Zaidi                                             Dec.

      4.    Sh. Mohd. 22.11.1984 05.12.1991           25.01.99   Retd. on
            Ahmed                                                May,
            Ansari                                               2008

No RDA report from Vigilance department and Currency of Punishment report from AO (H&P) has been received with no adverse remarks. In respect of ACRs, upto 2007-08 has already received and are up to the bench mark.

In view of above mentioned facts, and having consider the No RDA Reports, COP and ACRs, the Screening Committee recommends to effect the notional promotion in respect of Sh. Ashok Kummar Vaid, Sh. Mahender Pal Sharma, Sh. Amir Raza Zaidi and Sh. Mohd, Ahmed Ansari as detailed in table."

16. A reading of the aforesaid minutes indicates that the petitioner

was granted promotion both to the post of Medical Officer and Senior

Medical Officer by applying the notional promotion rule. The

aforesaid principle was applied in the case of the petitioner and also to

the other petitioners in the writ petition bearing No. W.P. (C)

2414/1998.

17. The impugned order of the Tribunal records as under:-

"6. We have heard the learned counsel for representing the parties afresh and find no merit whatsoever in the plea raise by the applicant that he would be entitled to pay scales as mentioned above from the dates as asked for by him. The case has to be looked in the background under which the directions came to be passed by the High Court. The judgment recorded by the Hon‟ble Division Bench of the High Court in that regard would reveal that the applicant and three others were appointed as Compounders (Unani) in the pay scale of Rs.1385-2200 by the respondent MCD and posted in various dispensaries. They were appointed between 11.12.1975 and 23.11.1979. MCD framed

recruitment regulations for the posts of Vaids, Hakims and Homeopathic doctors vide resolution dated 9.2.1979 whereby the earlier regulations were amended and as per these regulations, post of Unani Hakim was to be filled 50% by direct recruitment and 50% by departmental promotion. Prior to the said amendment, whereas 75% posts were used to be filled by direct recruitment, 25% posts were filled by promotion. The colleagues of the petitioners before the High Court, who were appointed as Compounder/Unani, were promoted in the 50% quota. The eligibility for promotion prescribed under rules was five years experience as Compounder with degree or diploma in Unani System of Medicines. Whereas two of the petitioners before the High Court completed five years before the rules of 1984 came into being, opther two became eligible after the rules aforesaid came to be notified. Before the case of the petitioners for promotion could be considered, new rules came about in 1984 whereby the quota for promotion was abolished. All promotional posts of Unani Hakims were to be filled by direct recruitment. It is in wake of facts and circumstances as mentioned above that the writ challenging the validity of the rules of 1984 came to be filled. The challenge to the vires of the rules was repelled. The High Court then focused upon the peculiar facts of the case before it. It was noted that with the amendment in rules, the petitioners were totally debarred from getting promotion or even appointment as direct recruits to the post of Unani Hakims. The Hon‟ble Division Bench further noted that the promotional quota had been abolished and, therefore, the petitioners could not get promotion to the said post through this channel, having been closed for the petitioners, they would not get even one promotion in their service career. The petitioners, it was observed, had 18 to 22 years of service at their credit by the time they had filed the writ petition. While taking into consideration the judicial precedents in the case Council of Scientific Research V K. G. S. Bhatt (AIR 1989 SC 1972) and some other decisions of the Hon‟ble Supreme Court, wherein it was observed that

there should be at least one promotion available to an employee in his service career, it was observed that insofar as, two of the petitioners, were concerned, they had become eligible for promotion to the post of Unani Hakim before the promulgation of the 1984 regulation, and, therefore, their cases had to be considered as per the unamended rules, and further that keeping in view the peculiar position, it would be appropriate for the respondents to consider giving relaxation in the rules so that they may not stagnate and retire on the same post on which they had been appointed, without obtaining even a single promotion in their entire service career (emphasis supplied). What clearly transpires from reading of the judgment of the High Court, by which relief was given to the applicant and others, is that they were to be entitled for consideration for one promotional post that too in the peculiar facts and circumstances of the case and the law laid down by the Hon‟ble Supreme Court that an employee deserves at least one promotion during his entire service career. Despite the fact that the applicant deserved only one promotion, he has been given pay fixation in all promotional scales. The applicant started his career as compounder (Unani) in the pay scale of Rs. 1385-2000. In compliance of the orders passed by the High Court dated 10.9.2007 in WP (C) No. 2414/1998, vide order dated 13.6.2008 the applicant has been promoted to the post of Medical Officer (Unani)/Unani Hakim in the pay scale of Rs.8000-13500 on notional basis from 22.11.1984. The applicant in paras 4.5 and 4.6 of the OA has himself stated that he has been placed in promotional /placement scales. Vide Annexure A-3 order dated 7.11.2008 the pay scale of the applicant has been fixed in the scale as may be admissible to him as per recommendations of the 4th and 5th Central Pay Commissons. Vide order dated 18.9.2009 (Annexure A-4), the applicant has been even placed in the promoted/placement scale, and thereafter his pay has been fixed in the pay scale as may be admissible to him on the recommendations of the 6th Pay Commission. The applicant would, however, claim benefit of order dated 14.5.1992

which is meant for Specialist grade. It is the positive case of the respondents that Medical Officers in ISM, Homeopathic and Unani have been given time bound promotions as per Tikku Committee recommendations only up to the pay scale of Rs.4500-5700 (pre-revised) as there is no post in Health Department in respect of ISM & Homeopathy cadre above the scale of Rs.4500-5700 (pre-revised), and that the grades sought by the applicant cannot be considered as these grades would pertain to Specialist cadre and are not applicable to ISM cadre to which the applicant belongs.

7. In the rejoinder filed on behalf of the applicant, it is averred that even if it is taken as if the applicant is entitled to time bound promotion as per Tikku committee recommendations only up to the pay scale of Rs.4500-5700 (pre-revised) as per office order dated 27.12.1999, yet his pay has not been revised as per the said office order inasmuch as, the first time bound promotion from the level of Medical Officer (Rs. 8000-13500) to the level of Senior Medical Officer (Rs.10000-13500) to the level of Senior Medical Officer (Rs.1000-15200) is on completion of four years of regular service. The applicant appears to be asking for something to which he may not be entitled to at all. In our considered view, as per directions given by the Hon‟ble High Court, the applicant was entitled to one promotion, which would be in the post of Medical Officer (Unani). He was entitled to pay fixation on the said promotional post and pay fixation from time to time as per the enhancement made in his pay, be it by the respondents of their own or on recommendations of the Pay Commissions. He could not be entitled to pay scales meant to be given to posts higher than Medical Officer (Unani). The applicant would ask for the pay scale of Senior Medical Officer, and even above. It may be recalled that the applicant has been given promotional/placement scales as well but he is demanding the same from earlier dates as the Specialists may be entitled to by virtue of order dated 14.5.1992. In our considered view the applicant cannot be given the said benefit. As regards the claim of the applicant for actual

payment after expiry of the period of two months within which the respondents were to pass orders and up to the time the order was actually passed, it is the case of the respondents that matter like this needs to be referred to many departments, and in the very nature of things, it takes some time before orders may be passed. We do not find any intentional delay in passing of the orders. The delay is explained and is only of few months.

8. Finding no merit in this Original Application, we dismiss the same, leaving, however, the parties to bear their own costs."

18. Learned counsel for the petitioner had argued that the Tribunal in the

aforesaid reasoning had made out a distinct and different case and the

petitioner‟s prayer that he should be granted non-functional selection grade

or promotion to the post of Chief Medical Officer in the pay-scale of Rs.

14300-18300 had to be rejected for extraneous and wrong reasons.

19. The factual and legal position emerging from the judgment dated

10.09.2007 in WP(C) No.2414/1998 has been elucidated and elaborately

dealt with by the Tribunal in the aforequoted paragraphs. We respectfully

agree with the said observations and findings of the Tribunal which are lucid

and absolutely clear. We have already referred to the operative portion of

the order of the High Court dated 10.9.2007 disposing of W.P. (C) No.

2414/2008. The High Court was indulgent and had partly allowed the writ

petition directing the respondent-Corporation to grant relaxation in the case

of the petitioner, for the petitioner was not eligible for promotion under the

amended rules. Under the pre-amended rules also, the petitioner had not

qualified for promotion to the said post. The petitioner could have been

promoted as Unani Hakim only after the respondent Corporation had granted

relaxation, in terms of judgment dated 10.09.2007. The petitioner could not

have been granted promotion as Unani Hakim prior to 10.9.2007 i.e. the date

on which the writ petition was disposed of. The respondent Corporation was

generous and bounteous in granting notional promotion to the petitioner as

Unani Hakim with effect from 22.11.1984 and thereafter granting notional

promotion or placement as Senior Medical Officer with effect from

15.12.1991 and then as Chief Medical Officer with effect from 25.1.1999.

The petitioner was paid the salary of Chief Medical Officer computed after

giving effect to the orders of notional promotion from the date of judgement

till he retired on 31.5.2008. In terms of the aforesaid judgment dated

10.9.2007, the petitioner should have been promoted to the post of Unani

Hakim. Obviously, further upgradation or placement as Senior Medical

Officer or as Chief Medical Officer were not postulated. No such mandate

and direction was issued.

20. The OA No.1310/2010 was founded and based upon the office order

dated 14.5.1992. It is an accepted and admitted case of the parties that the

said office order was/is not applicable to the petitioner and the office order

dated 27.12.1999 was applicable. The petitioner, in these circumstances,

should have amended the OA and made appropriate pleadings. It is apparent

that without amendment of the pleadings, the matter was considered by the

Tribunal in the light of the office order dated 27.12.1999. We may have

remanded the case to the Tribunal for fresh decision for considering the

effect of the office order dated 27.12.1999 and whether the petitioner would

be entitled to the relief in terms of the said order, but are not inclined to take

the said step, for the petitioner is certainly not entitled for the relief as

claimed. In fact no relief under office order dated 27.12.1999 was

admissible.

21. However, we would like to clarify that our observations or the order

of the Tribunal would not confer any right/ground or constitute a cause of

action to re-fix the petitioner‟s pension or recover arrears. This order would

not affect the notional promotions granted to the petitioner to the post of

Senior Medical Officer or Chief Medical Officer. The respondent-

Corporation has not filed any writ petition before us, nor has it claimed that

they had erred or by mistake the petitioner was granted notional promotions

as Unani Hakim with effect from 22.11.1984, as Senior Medical Officer

w.e.f. 15.12.1991 and as Chief Medical Officer w.e.f. 1st January, 2006.

22. Recording the above, we dismiss the present writ petition.

23. No Costs.

SANJIV KHANNA, J.

CHANDER SHEKHAR, J.

NOVEMBER 15, 2016 b