Delhi High Court
North Delhi Municipal ... vs Dr. Suresh Chand Arun & Ors. on 8 January, 2019
$~12&13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 08.01.2019
% W.P.(C.) No. 9292/2017 & C.M. No. 37983, 37985/2017
NORTH DELHI MUNICIPAL COPORATION ..... Petitioner
Through: Ms. Mini Pushkarna, Standing
Counsel with Ms. Swagata Bhuyan &
Ms. Shiva Pandey, Advs.
versus
DR. SURESH CHAND ARUN & ORS. .....Respondents
Through:
Mr. N.S. Dalal Advocate for R-1.
Mr. Naresh Kaushik and Mr. Omung
Gupta, Advocate for R-2.
W.P.(C.) No. 9298/ 2017, C.M. No. 37998, 38000/2017
NORTH DELHI MUNICIPAL COPORATION ..... Petitioner
Through: Ms. Mini Pushkarna, Standing
Counsel with Ms. Swagata Bhuyan &
Ms. Shiva Pandey, Advs.
versus
ASHOK KUMAR RAWAT & ORS .....Respondents
Through: Mr. N.S. Dalal, Advocate for R-1
Mr. Shanker Raju and Mr. Nilansh
Gaur, Advocates for R-2
Mr. Rajeev Sharma, Advocate for R-
3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A.K. CHAWLA
W.P.(C.) No. 9292/2017 & W.P.(C.) No. 9298/2017 Page 1 of 25
VIPIN SANGHI, J. (ORAL)
1. North Delhi Municipal Corporation (NDMC) has preferred these writ
petitions to assail the common order passed by the Central Administrative
Tribunal (CAT) in Original Application Nos. 2370/2012 and 1154/2012
dated 16.03.2017. The said Original Applications had been preferred by
Dr. Ashok Kumar Rawat (Respondent in WP(C) 9298/2017) and Dr. Suresh
Chand Arun (Respondent no.1 in W.P.(C) 9292/2017). The other private
respondents in W.P.(C) 9298/2017 are Dr. Lallan Ram and Dr. G.R.
Chaudhary, who were impleaded as party respondents before the Tribunal.
By the impugned order, the Tribunal has allowed the aforesaid OAs. The
directions issued by the Tribunal in the common impugned order read as
follows :
"12. In the conspectus of the discussions in the foregoing
paras, we issue the following directions to the respondents :
(a) The respondents shall consider the inter-se seniority of
GDMO-I (PH) as on 27.07.2007 as they existed in the combined
cadre of GDMO-I jointly for GDC and PHC.
(b) The respondents shall draw a draft seniority list of
GDMOs-I (PH) in terms of (a) supra in conjunction with the
RRs for the post of GDMO-I (PH). The note contained in rule-
11 shall be strictly applied for preparation of the seniority list.
(c) The draft seniority list prepared as per (b) supra, shall be
circulated to all the concerned Doctors inviting their
objections, if any, and after disposal of the objections received,
the final seniority list shall be prepared.
(d) In accordance with the final seniority list of GDMO-I
status of the various Doctors working in the PHC against
various, would be notified by the respondents thereafter."
2. The subject matter pertains to the issue of seniority amongst the
Medical Officers viz. GDMO - I working in the Public Health Department
of the Municipal Corporation(s) of Delhi. The Medical Officers, on whose
OAs, the impugned directions have come to be issued by CAT, were
appointed by the Municipal Corporation of Delhi, as it earlier existed. Their
appointments were made in pursuance of the Delhi Municipal Corporation
Health Service Recruitment Regulations, 1982, in short, 'the Regulations
1982', in and by virtue of the powers vested with the Commissioner under
Section 98 of the DMC Act, 1957 in short 'the Principal Act'. Here, it would
suffice to say, prior to the commencement of the Regulations 1982, those
officers of Central Health Service, who opted or were retained in the Delhi
Municipal Corporation Health Service, were deemed to have been appointed
by the erstwhile Corporation at the initial constitution stage.
3. It appears that till about the year 2007, the Central Establishment
Department (CED) of the erstwhile Corporation had been supervising and
controlling the affairs of the Medical Officers appointed in its Health
Department - be they of General Duty Cadre, or Public Health Cadre, for all
purposes, including, postings, transfers and promotions from the lower grade
to the higher. It emerges from the record that the age of superannuation of
doctors in Public Health sub-cadre came to be enhanced from 60 to 62 years
w.e.f. 18.11.2006 vide the corrigendum dated 30.04.07 in consonance with
the directions/orders issued by Govt. of India. Here, it would suffice to note
that at that relevant point of time, the affairs of the Corporation were
substantially supervised by the Central Govt.
4. One Dr. Bhagwan Das, who was working in Public Health sub-cadre,
agitated the issue of his date of superannuation. He claimed that he had
been working in the Public Health sub-cadre since 1993. He claimed that he
had served in the said sub-cadre for 14 years till he was retired at the age of
60 years - by treating him as belonging to the General Duty sub- cadre, on
31.07.2007. The matter reached this Court in WP(C) 2906/2010 Municipal
Corporation of Delhi vs. Dr. Bhagwan Das. This Court held that said Dr.
Bhagwan Das was entitled to superannuate at 62 years. The operative part of
the said judgment of the Co-ordinate Bench of this court is, as under :
"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 Transfer: (i) General
promotion/deputation/ duty Officer Gr.-I
transfer grades from
(General Duty)
which promotions/
deputation/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.
......................................................................................................
................................................................................................."
5. Taking note of the judgment in Dr. Bhagwan Das (supra), the
Corporation constituted a screening committee for considering the
induction/transfer of Medical Officers of the General Duty cadre to
Public Health cadre and this screening committee in its meeting held
on 21.04.2011 recommended the doctors working in General Duty
Cadre for induction/transfer into Public Health Cadre, from the dates
mentioned against each of them, as per the list provided. The
recommendation so made resulted into issuance of the office order
dated 10.06.2011, which culminated into passing of the office order
dated 18.04.2012 in pursuance of the resolution No. 1236 dated
27.02.2012, purportedly, passed by the erstwhile Corporation. This
office order, in effect, was in question before CAT. It is relevant to
take note of the subject communication in its entirety. It reads, as
under :
"MUNICIPAL CORPORATION OF DELHI
Central Establishment Department,
22nd Floor, Dr. S.P. Mukerjee Civic Centre,
J.L. Nehru Marg, Delhi-110002
No.: Supt.(M)/H.C.(M)-III/CED(M.Cell)/2012/1192
Dated: 18.04.2012
OFFICE ORDER
1. The case for induction of the following Medical Officers
in the public health cadre was placed before the Screening
Committee. The matter was considered by the Screening
Committee. In view of the existing RRs the Screening
Committee recommended for induction in to the public health
cadere. Accordingly, they were inducted vide office order
issued bearing No. Supt.(M)/H.C.(M)-III/CED (M.Cell)/ 2011/
2677 dated 10.06.2011 under the orders of the competent
authority.
2. Further, the placement/promotion in respect of these
medical officers of the public health cadre was placed before
the Screening Committee. The matter has been considered by
the Screening Committee and in view of existing RRs,
Memorandum of Settlement signed by "JACSDO' on 10.4.1989,
Govt. of India O.M. No. 45013/13/90 CHS.V. dated 14.11.99
and provisions of the DACP Scheme for Medical Officers of
CHS dated 5.4.2002, as adopted, by Corporation, and Govt. of
India O.M. No. 45012/2/2008/CHS. V dated 29.10.2008 and
subsequent O.M No. A-45012/2/2008-CHS.V (Part-I) dated
12.5.2009, the Screening Committee decided that as per
provision contained in above orders/circulars, the promotions
may be given to doctors inducted in Public Health Cadre on the
pattern of GDMO Cadre, prior to implementation of DACP
scheme on 5/4/2002, and, w.e.f. 5/4/2002 on the pattern of Non
Teaching Specialists and Public Health Cadre of CHS. After
due deliberations, the Screening Committee in its meeting held
on 17.11.2011 recommended for Placement/Promotion of the
Medical Officers inducted in Public Health Cadre to Higher
Scales on Ad-hoc basis as per the instruction/orders on the
subject & the DACP Scheme.
3. The recommendations were placed before the
Corporation routed through the Appointments, Promotions,
Disciplinary & Allied Matters Committee for approval. The
Corporation vide Resolution No. 1236 dated 27.02.2012 has
approved the Placement/Promotion of following Medical
Officer of Public Health Cadre w.e.f. the date mentioned
against them and as per the details given in the table here
under:-
Sr. Date of Induction Date of Date of grant Date of Date of
No. in PH Cadre as Induction of Supertime grant of grant of
GDO-I(PH)/Spl. in PH Gr-II/ Spl. NFSG/Spl.G SAG
Gr.-II (PH) Cadre Gr-II (PH- r-I(PH)
Sr.Scale)
1. Dr. Ajay Kumar 07-Dec-88 7-Dec-94 05-Apr-02 05-Apr-09
Bansal
2. Dr. Kama Kumar 01-Jul-90 1-July-92 05-Apr-02 05-Apr-09
Chaudhary
3. Dr. Mrinal Kanti 01-Jul-92 01-Jul-94 05-Apr-02 05-Apr-09
Pal
4. Dr. Nihar Ranjan 01-Jul-92 01-Jul-94 Deferred ____
Dass
5. Dr. B.K. Hazarika 03-Jul-93 03-Jul-99 05-Apr-02 05-Apr-09
6. Dr. Vijay Prakash 27-Jun-95 27-Jun-01 05-Apr-02 05-Apr-09
7. Dr. Bhagwan Dass 15-Nov-95 15-Nov-97 05-Apr-02 _____
(Rtd.)
8. Dr. Suresh 01-Jul-96 01-Jul-98 01-July-02 01-Jul-09
Chandra Arun
9. Dr. Kranti Kumar 11-Jun-97 11-Jun-99 11-Jun-03 11-Jun-10
Bhalla
10. Dr. Lallan Ram 09-Aug-98 5-Apr-02 09-Aug-04 09-Aug-11
11. Dr. Om Prakash 01-Jul-00 01-Jul-02 01-Jul-06 ____
12. Dr. Goma Ram 20-May-01 20-May-03 20-May-07 ____
Chaudhary
13. Dr. Pramod Kumar 01-Jul-01 01-Jul-03 01-Jul-07 ____
Verma
14. Dr. Kunwar Singh 01-Jul-02 01-Jul-04 01-Jul-08 ____
Rawat
15. Dr. Gur Charan 01-Nov-02 01-Nov-04 01-Nov-08 ____
Singh
16. Dr. N.R. Tuli 01-Jul-03 01-Jul-05 01-Jul-09 ____
17. Dr. Ashok Kumar 01-Jul-04 01-Jul-06 Deferred ____
Rawat
18. Dr. D. Soma 31-Oct-05 31-Oct-07 31-Oct-11 ____
Shekar
19. Dr. Rajesh Kumar 01-Jul-06 01-Jul-08 Deferred ____
Rawat
20. Dr. J.L. Chaudhary 01-Jul-07 01-Jul-09 ____ ____
21. Dr. Ajay Handa 01-Jul-08 01-Jul-10 ____ ____
22. Dr. Vivekanand 01-Jul-08 Deferred ____ ____
Bhagat
23. Dr. Deepak Mittal 01-Jul-09 Deferred ____ ____
24. Dr. Shyambir Singh 01-Jul-09 Deferred ____ ____
Further, the Corporation has also been resolved that as most of
these doctors are in receipt of higher scales of pay under the
DACP Scheme, they shall be granted benefit of pay protection
under FR 22(a)(2) read with FR 22(a)(3).
Dr. J. L. Chaudhary had opted out the Public Health Cadre and
requested to be reverted back to the GD Cadre vide his
application dated 26.12.2011. The Competent Authority
allowed his reversion to the GD Cadre Vide Officer Order
No.A.O. (Eestt.)-IV/CED (M)/H.C.(M) III/(Medical)/2012/380
dated -1-Feb-2012. Therefore, name of Dr. J.L. Chaudhary is
hereby, deleted from the above recommendation of
placement/promotion of Medical Officer of Public Health
Cadre.
This issues with the approval of the competent authority.
Sd/-"
6. It appears that various doctors working as GDMO -I in the General
Duty Cadre started discharging functions related to Public Health, after
acquiring the requisite PG qualification in public health, namely. Though
these doctors from the General Duty Cadre were posted in the Public Health
cadre, there was no formal induction or transfer of these doctors in the
Public Health Cadre.
7. It appears that, for the first time, the process of formal appointment to
the Public Health Cadre - by way of transfer of medical officers of the
General Duty Cadre, was undertaken in the year 1987, when 4 officers were
transferred to the post of GDMO-I (Public Health) on regular basis with
effect from 18.03.1987 and were put on probation for a period of 2 years.
The office order dated 11.07.1989 issued by the Central Establishment
Department of the MCD, in so far as it is relevant, reads as follows:
" OFFICE ORDER
On the recommendations of the UPSC vide their letter
NO.F.3/30(7)/86-AUIV dated 18 March 1987, the Corporation
vide its resolution No.825 dated 28 November 1988 has
approved the appointment of the following medical officers to
the post of General Duty Officer Grade - I (Public Health)in
the pay scale of Rs. 3000- 4500 on regular basis by transfer in
the order stated with effect from 18 March 1987 on probation
for a period of two years:-
1. Dr. Sat Pal
2. Dr. N.K. Yadav
3. Dr. K.N. Tewari
4. Dr. Kuldeep Dogra
2. The above officers appointed on transfer shall have to
exercise option within one year i.e. by 20 December 1989
whether they want 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." (emphasis supplied)
8. We may, at this stage itself, observe that such like transfers, and
consequential orders were not issued in respect of those GDMO-I Officers
of the General Duty Cadre, who were posted to the Public Health cadre only
on account of the fact that they had acquired public health post graduation
degree or diploma and, who, otherwise, fulfilled the eligibility norms for
appointment to the Public Health Cadre.
9. On 30.10.1996, the MCD issued circular inviting applications for
filling up the posts of GDMO - I (Public Health). This circular contained a
pertinent clause in paragraph 3, which reads as follows:
"3. It is clarified that the candidature of the Medical Officers
working on the post of General Duty Officer Grade -I(Public
Health) on ad hoc/ current charge or any other working
arrangement will be considered only on receipt of their
application in response to this circular."
10. From the said circular and, in particular, clause 3 thereof, it is evident
that the MCD did not consider the ad hoc/ current charge posting of the
medical officers in the Public Health cadre as appointment/ induction into
the Public Health cadre in terms of the Recruitment Rules for the post of
GDMO - I (Public Health). Thus, the service rendered by a GDMO - I
(General Duty) in the Public Health cadre on an informal/ ad hoc/ current
charge basis did not vest such an officer with a right to claim that he had
been "transferred" to the Public Health cadre, or that, since he had not
exercised his option to go back to the General Duty Cadre, he stood
absorbed in the Public Health cadre.
11. Pertinently, there was no challenge raised by any of the General Duty
cadre officers, who were posted to the Public Health cadre on an informal ad
hoc - current charge basis, to paragraph 3 of the circular dated 30.10.1996
since it was never perceived by anyone, that such informal ad hoc - current
charge in the Public Health cadre was by way of a formal transfer to the said
cadre from the General Duty cadre.
12. Pertinently respondent No.2 - Dr. Lallan Ram also applied in
response to the said circular. He had been posted to the Public Health cadre
on 09.08.1994. However, correctly understanding his status as a substantive
officer of the General Duty Cadre, who had only been informally posted
(and not transferred) to the Public Health cadre, and while accepting the
condition imposed in paragraph 3 of the circular dated 30.10.1996, he made
his application for transfer to the Public Health Cadre vide application dated
26.11.1996. He also followed up his application with representations and
reminders sent on 11.09.2000, 19.04.2001, 12.06.2003, 13.07.2005,
20.12.2006 etc.. In none of these representations or reminders, Dr. Lallan
Ram claimed that he stood inducted into the Public Health Cadre from the
date of his initial informal posting on 09.08.1994, and he did not claim his
seniority in the Public Health Cadre from the said date.
13. We may now refer to some other relevant facts.
14. A Screening Committee, to consider the transfer of GDMO-I from the
General Duty Cadre to GDMO in the Public Health Cadre was held on
26.07.2007. The minutes of the Screening Committee are placed on record,
which show that on the date of consideration of the issue by the Screening
Committee, there were 23 posts of GDMO-I in the Public Health Cadre. It
referred to circulars dated 11.01.2007 and 17.03.2007 regarding absorption
of medical officers working in the GDMO cadre i.e. General Duty cadre, to
the Public Health cadre. In response to the circulars, 31 applications were
received.
15. The Screening Committee found 8 officers fit for induction into the
Public Health Cadre which included Dr. Ashok Kumar Rawat - the original
applicant in O.A. No. 2370/2012, and Dr. Suresh Chand Arun - the original
applicant in O.A. No. 1154/2012. So far as respondent No.2 and respondent
No.3 herein i.e. Lallan Ram and G.R.Chaudhary are concerned, they too
were found fit for induction into the Public Health Cadre but they were
placed lower in the assessment undertaken by the Screening Committee. Dr.
Suresh Chand Arun was placed at serial No.1; Dr. Ashok Kumar Rawat was
placed at serial No.4; Dr. Lallan Ram was placed at serial No.5, and; Dr.
G.R. Chaudhary was placed at serial No.7.
16. Consequent upon the recommendations of the Screening Committee,
the MCD issued a circular dated 27.07.2007 communicating induction of 8
officers, including Dr. Suresh Chand Arun, Dr. Ashok Kumamr Rawat, Dr.
Lallan Ram, and Dr. G.R. Chaudhary as GDMO - I in the public health
cadre.
17. Thereafter, as noticed above, the decision in Dr. Bhagwan Dass
(supra) was rendered by this Court on 30.04.2010.
18. As a consequence of the decision in the case of Dr. Bhagwan Das
(supra), the petitioner M.C.D issued the office order dated 10.06.2011. This
office order makes the following pertinent observations.
(i).........................However, no such formal transfer of any
GDMO - I to PH Cadre was processed prior to the year 2007.
Previously the GDMO -I, holding required qualification in PH
field were posted in the PH Cadre
posts......................................
(ii) A meeting of the Screening Committee was held on
26.07.2007. Out of the 31 application received, 20 medical
officers were found eligible for consideration for transfer to the
PH cadre. The Screening Committee considered the matter and
orders were issued for induction (transfer) of 8 doctors to the
PH cadre vide No. AO(E)-II/CED(M)/2007/20723 dated
27.07.2007 and 7 doctors were recommended "Fit"on
completion of certain formalities. 4 doctors were under
currency of RDA and their decision was directed to be kept
under Sealed Cover. One doctor, Dr. Bhagwan Dass was found
"Not Fit" in view of his running under currency of penalty. As
Dr. Bhagwan Dass was not formally absorbed/ inducted in the
Public Health Cadre, he was treated as GDMO/General Duty
Cadre and was served notice of retirement at the age of 60
years, as admissible to the General Duty Cadre medical
officers. Consequently, he was made to retire on 31.07.2007
after attaining the age of 60 years................"
(iii) Dr. Bhagwan Dass filed Court case against the said
notice of retirement in the High Court which was transferred to
CAT as TA No. 275/2009. The Ld. CAT decided the matter in
favour of Dr. Bhagwan Dass by an order, directing that
"However, once the applicant by a conscious decision of the
MCD has been inducted on transfer in public health cadre
having not exercised his option after one year has been
automatically inducted in the health cadre"
(iv) "... In so far as rejection for enhancement of age is
concerned the screening committee rejected it on the ground
that the applicant has not been inducted in service and also has
been imposed two penalties. We do not find any stipulation in
the recruitment rules as to formation of a screening committee
for a specific year of changing the cadre, which is automatic by
failure to exercise of option of one year."
(v) The Hon‟ble High Court after hearing the arguments of
both the parties at length „dismissed‟ the said petition on the
ground that .. "since, Dr. Bhagwan Dass had worked in the
Public Health Cadre as DHO for more than 14 years, thus, he
is entitled for all benefits as admissible in the PH Cadre"
(vi) Accordingly, Dr. Bhagwan Dass was inducted in the PH
Cadre w.e.f. 26.7.2007 alongwith the consequential benefits in
compliance of orders of the Ld. Cat as well as of the Hon‟ble
High Court of Delhi......................
(vii) In view of the above order of the Ld. CAT and
observation of Hon‟ble high Court, it is perceived that the
Hon'ble Courts have upheld the transfer to the Public Health
Cadre to have taken place from the date of posting to the PH
Cadre posts, if the doctor has not exercised his option to
return back to GD Cadre within one year of his posting.
(viii) In view of the above mentioned orders of the Hon'ble
Courts, if the Medical Officer who is posted on a post
pertaining to PH Cadre does not submit his unwillingness to
continue on such a post, he is deemed to have been inducted
into the PH Cadre. Therefore, all such Medical Officers, who
full fills the required eligibility norms and are posted in the PH
stream for more than one year, becomes eligible for absorption
in the PH Cadre, if the officer has not requested for his
repatriation to GD Cadre within one year. (emphasis supplied)
19. On the basis of the aforesaid reasoning, the Screening Committee of
the MCD recommended the date of induction/ transfer of the Medical
Officers to the Public Health Cadre. The names of the Medical Officers
inducted/ transferred to the Public Health Cadre, and the dates from which
they were treated as so inducted, were also tabulated in the same office
order. In the said list, the Original Applicant - Dr. Ashok Kumar Rawat was
shown at serial No.17 - having the date of posting in the Public Health
Cadre as 30.04.2002, whereas Dr. Lallan Ram and Dr. G.R. Chaudhary were
shown at Serial Nos. 10 and 12, having dates of posting in the Public Health
Cadre as 09.08.1994 and 24.04.1997. The Original Applicant - Dr. Suresh
Chand Arun was shown at serial No.8 with his date of posting in the Public
Health Cadre as 17.09.1992. A perusal of the said tabulation shows that
there is no uniform pattern discernable. The date of posting in the Public
Health Cadre was not based on seniority either in the GDMO-II (General
Duty) or GDMO-I (General Duty) cadres. The petitioner does not even
claim that the said postings were made on the basis of seniority cum
eligibility i.e. as and when the GDMO-II or GDMO-I acquired post
graduation degree or diploma in Public Health Cadre, they were posted
according to their seniority in the Public Health Cadre. Thus, the postings in
the Public Health Cadre were fortuitous and random. Moreover, these
postings, as aforesaid, were mere postings, and there was no conscious
decision taken by the MCD to transfer the Medical Officers to the Public
Health Cadre in terms of the Recruitment Rules.
20. The Office Order dated 10.06.2011 - which was a recommendation
by the Screening Committee (which was impugned by the Original
Applicants before the Tribunal) led to the issuance of the impugned orders
dated 09.02.2012 and 18.04.2012 (which too were assailed by the Original
Applicant before the Tribunal).
21. The Tribunal negated the reliance placed by the Corporation on the
decision of this Court in Dr. Bhagwan Das (supra) to justify its conduct.
The Tribunal held that the issue involved in Dr. Bhagwan Das (supra) was
with regard to the age of superannuation of Dr. Bhagwan Das, and the issue
did not relate to inter se seniority and promotion in the Public Health Cadre.
22. The submission of learned counsel for the petitioner before us, is
again centered on the decision of the Division Bench in Dr. Bhagwan Das
(supra). It is argued that this Court has held that posting is equivalent to
transfer under the Recruitment Rules, and the Supreme Court has dismissed
the Special leave petition of the Corporation.
23. From our discussion aforesaid, it is evident that formal induction/
transfer into the Public Health Cadre took place only on two occasions,
namely, in the year 1987 in respect of 4 Medical Officers vide office order
dated 11.07.1989 with effect from 18.03.1987, and thereafter vide a Circular
dated 27.07.2007 when 8 Medical Officers, including the two original
applicants and two private respondents, namely Dr. Lallan Ram and Dr.
G.R. Chaudhary were transferred/ inducted into the Public Health Cadre.
24. Apart from these two formal exercises undertaken by the petitioner, it
appears that only informal/ ad hoc postings were given to the GDMO-I of
the General Duty Cadre, who acquired the Public Health post graduate
degree or diploma and became eligible for consideration for transfer in terms
of the Recruitment Rules.
25. A perusal of the decision in Dr. Bhagwan Dass (supra) shows that the
Division Bench chose not to interfere with the order passed by the Tribunal
in exercise of its extraordinary writ jurisdiction on the premise, that Dr.
Bhagwan Dass had been posted to the Public Health Cadre in the year 1993,
after he had obtained his diploma in Public Health in 1990. He had
continuously been posted in the Public Health Cadre till the age of his
superannuation i.e. 31.07.2007 when he attained the age of 60 years. Thus,
only on account of the fact that he had continuously been serving in the
Public Health Cadre for 14 long years, this Court chose not to interfere with
the impugned order. A perusal of the said decision shows that the Division
Bench has not addressed the issue as to what would be the situation, if a
Medical Officer of the General Duty cadre were simply to be posted - and
not transferred to the Public Health cadre, which is the preferred method of
recruitment to the Public Health Cadre under the Recruitment Rules. The
note to the said Recruitment Rules reads "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. " (emphasis supplied)
26. The Division Bench proceeded on the basis that the petitioner Dr.
Bhagwan Dass "was inducted on transfer in Public Health Cadre". The ratio
of their decision has to be understood in the context of the factual basis on
which the Court has rendered its decision. Thus, there is no binding
precedent emerging from the decision in Dr. Bhagwan Das (supra) that
even a mere ad hoc "posting" tantamounts to "transfer" - which is the
preferred method of recruitment in the Public Health cadre. Thus, the
respondents Dr. Lallan Ram and Dr. G.R. Chaudhary cannot be placed
higher to the two original applicants viz Dr. S.C. Arun and Dr. Ashok
Kumar Rawat merely because they may have been posted in the Public
Health cadre at an earlier point of time, which posting was fortuitous. It is
only when officers are formally transferred in terms of the Recruitment
Rules for the post of GDMO-I (Public Health) that, in terms of the
Recruitment Rules, absorption would take place if they opt not to go back to
the General Duty Cadre within a period of one year of such transfer. If no
transfer has taken place, and mere informal posting, or ad hoc placement of
the officer is the reason of the officer serving in the Public Health Cadre, the
mere expiry of the period of one year would not lead to automatic absorption
of the Medical Officer concerned in the Public Health Cadre.
27. As noticed above, the postings in the Public Health Cadre were
fortuitous. Such fortuitous postings could not possibly be made the basis of
drawing the seniority of officers in the Public Health Cadre and, thus, the
seniority, as it existed in the General Duty Cadre had to be respected within
the batch of officers, who were formally transferred to the Public Health
Cadre.
28. We may observe that the observation made by the Tribunal in
paragraph 10 of the impugned order - to the effect that it can be assumed
that, de facto the Public Health Cadre came into existence after the
notification dated 07.03.2007 is not correct in as much, as, vide Office Order
dated 11.07.1989, 4 Medical Officers were transferred on regular basis to
the Public Health Cadre due to selection on the recommendations of the
UPSC.
29. However, the said erroneous observation does not impinge of the
correctness of the view taken by the Tribunal. Thus, we do not find any
merit in the present petition and the impugned order does not call for
interference.
30. The petition is dismissed leaving the parties to bear their
respective costs.
VIPIN SANGHI, J.
A.K. CHAWLA, J.
JANUARY 08, 2019
