Delhi High Court
Union Of India vs Dr. Shailja Saxena on 27 September, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 1st September, 2023
Judgment Delivered on: 27th September, 2023
+ W.P.(C) 4731/2017
UNION OF INDIA ..... Petitioner
Through: Mr Ruchir Mishra, Mr Sanjiv Kumar
Saxena, Mr Mukesh Kumar Tiwari,
Ms Poonam Shukla and Ms Reba
Jena Mishra, Advocates.
Versus
DR. SHAILJA SAXENA .....Respondent.
Through: Mr. M.K. Bhardwaj, Advocate.
+ W.P.(C) 4830/2017
UNION OF INDIA ..... Petitioner
Through: Mr Ruchir Mishra, Mr Sanjiv Kumar
Saxena, Mr Mukesh Kumar Tiwari,
Ms Poonam Shukla and Ms Reba
Jena Mishra, Advocates.
Versus
DR. KALPANA SOOD .....Respondent.
Through: Mr. M.K. Bhardwaj, Advocate.
+ W.P.(C) 3809/2018
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr Ruchir Mishra, Mr Sanjiv Kumar
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
W.P.(C) 4731/2017 along with connected matters Page 1 of 9
Saxena, Mr Mukesh Kumar Tiwari,
Ms Poonam Shukla and Ms Reba
Jena Mishra, Advocates.
Versus
DR. NIRUTA SHARMA .....Respondent.
Through: Mr. Rajeshwar Singh, Advocate.
+ W.P.(C) 9348/2018
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr.Jaswinder Singh, Advocate.
Versus
DR. SANGEETA DEVI .....Respondent.
Through: Mr.Ashish Mohan and Ms.Sagrika
Tanwar, Advocate.
CORAM:
HON'BLE MR.JUSTICE RAJIV SHAKDHER
HON'BLE MR.JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
REVIEW PET. 144/2021 & CM No.30685/2021 in W.P.(C) 4731/2017
REVIEW PET. 143/2021 & CM No.29187/2022 in W.P.(C) 4830/2017
REVIEW PET. 194/2021 in W.P.(C) 3809/2018
REVIEW PET. 116/2021 & CM No.30915/2022 in W.P.(C) 9348/2018
1. The present review petitions have been filed on behalf of the
respondents in the writ petitions, seeking review and recall of the judgment
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
dated 2nd March, 2021 whereby, the writ petitions filed on behalf of the
petitioner Union of India were allowed and the judgments passed by the
Central Administrative Tribunal (CAT) were set aside. Since all the review
petitions raise substantially the same grounds, they are being taken up
together.
2. Notice in the present review petitions was issued on 10th September,
2021. The replies filed on behalf of the petitioner are on record and both
sides have also filed their respective Written Submissions.
3. With the consent of the parties, we have heard the counsels for the
parties on the review petitions as well as the main writ petitions.
4. The main ground on which review is sought by the review petitioners
is that the petitioner misrepresented the fact that the review petitioners were
absorbed under the inherent powers of the Government under Article 309 of
the Constitution of India, whereas in fact, the review petitioners were
actually absorbed by the Government under Rule 8 of the Central Health
Service Rules, 1996 (CHS Rules), as amended by the Central Health Service
(Amendment Rules), 2001. In this regard, reference has been made to the
minutes of the Appointments Committee of the Cabinet (ACC) of 22nd
January, 2010 and the self-contained note of the Ministry of Health and
Family Welfare (MoHFW), which were not placed on record by the
petitioner when the original writ petitions were heard. The said documents
have been filed along with the review petitions.
5. Counsel for the review petitioners submits that identically placed
persons namely Dr. Hirabati Naik and Dr. Mridula Sinha, who were
absorbed along with the review petitioners in 2010, were given the benefit of
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
entire service for further promotion as Senior Medical Officer (SMO)/Chief
Medical Officer (CMO). In the case of Dr. Hirabati Naik, the MoHFW did
not even challenge the order passed by the CAT and Dr. Mridula Sinha got
the benefit pursuant to the judgment dated 28th July, 2016, passed by the
Patna High Court in CWJC 21710/2014 titled Dr. Mridula Sinha v. Union
of India, the SLP against which was dismissed by the Supreme Court.
6. Counsel for the review petitioners further submits that in W.P.(C)
3809/2018 and W.P.(C) 9348/2018 the review petitioners were absorbed
even prior to the amendment of Rule 8 in 2006, when the Rules permitted
for absorption of deputationists.
7. Per contra, counsels appearing for the Union of India submit that
there is no error apparent in the judgment dated 2nd March, 2021 passed by
this Court. It was submitted that the absorption of the review petitioners was
pursuant to the inherent power as at the relevant time of absorption, there
was no provision for absorption under the rules. Therefore, review
petitioners were treated as direct recruits and consequentially, benefit of past
services could not be given to them for the purposes of further promotion.
8. In the self-contained note of the MoHFW, the MoHFW has disagreed
with the advice of the UPSC that the review petitioners were not entitled for
absorption under the Rules and had placed the matter before the ACC for
their approval. In the disagreement note, it has clearly been stated that as per
the advertisement, the officers appointed for deputation were also to be
considered for absorption as these officers were on deputation and fulfilled
the eligibility criteria prior to the date when Rule 8 was amended removing
the provisions for absorption. The relevant extracts from the aforesaid note
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
(Annexure RA-24 to the review petition 144/2021) are reproduced
hereunder:
"The Ministry sought the advice of the Ministry of Law on the
issue of consideration of request for absorption of
deputationists in CHS by virtue of their being eligible before
deletion of the provision of absorption clause in the CHS Rules
in 2006. The Ministry of Law after considering the matter
advised that there does not appear to be any bar for the
administrative department from considering the requests for
absorption in the CHS cadre of the medical officers working
on deputation basis prior to amendment of rules on 13.1.2006
provided they are otherwise eligible under the un-amended
rules and instructions of the government in this regard. Copy
of the extract of the legal opinion dated 15.2.2007 tendered by
the Deptt. of Legal Affairs is enclosed.
xxx xxx xxx
The reasons adduced by the UPSC have been analyzed by this
Ministry and it has been decided not to agree with the advice
of the UPSC and move a proposal to the Appointments
Committee of the Cabinet for disagreement with UPSC. The
analysis made by the Ministry vis-à-vis the arguments of UPSC
on their reconsideration are as under: -
Sr.No. UPSC Ministry's
Observation Observation
(i) The Hon'ble Supreme In our legal opinion
Court in their the same case has
judgment in the matter been quoted but it has
of Rameshwar Prasad been further observed
Vs. MD UP Rajkiya that whether the
Nigam Ltd. Clearly deputationists should
held that an employee be absorbed in
who is on the service service or not is a
where he is working policy matter but at
on deputation and that the same time once
the absorption the policy is accepted
depends on service and rules are framed
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
rules. for such absorption,
before rejecting the
application there
must be justifiable
reasons. It was also
further observed that
the Govt. cannot act
arbitrarily by picking
and choosing the
deputationists for
absorption.
(ii) The applications were The circular clearly
received for states that officers
deputation as also would be selected for
absorption and those appointment on
who had opted for deputation to CHS
deputation obviously and it further says in
had not opted for para 2 of the said
absorption. The said advertisement that
persons cannot seek officers appointed on
absorption deputation may be
particularly when no considered for
provision exists in the absorption in the
RRs. CHS. Therefore, the
contention of the
UPSC saying that the
applications were
received only for
deputation and not
for absorption is
apparently wrong."
9. The ACC approval clearly records that the ACC has approved the
proposal of the MoHFW for disagreement with the advice of the UPSC and
approved their absorption. The relevant extracts from the ACC letter
(Annexure RA-31 to the review petition 144/2021) are set out below:
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
"2. The Appointments Committee of the Cabinet (ACC) has
approved the proposal of the Ministry of Health and Family
Welfare for disagreement with the advice of the UPSC in the
case of Medical Officers of the Central/State Government
appointed on deputation, for their absorption in the GDMO
sub-cadre of the CHS."
10. In the appointment letter issued to the review petitioners, it has clearly
been stated that the review petitioners who were on deputation to CHS have
been appointed on absorption basis to the post of medical officers in CHS in
terms of Rule 8 of the CHS Rules, 1996. The relevant condition as
mentioned in the appointment letter issued to the review petitioner in
W.P.(C) 4731/2017, Dr. Shailja Saxena (Annexure RA-32 to the review
petition 144/2021) is reproduced hereunder:
"The President is pleased to appoint Dr. (Mrs) Shailaja
Saxena, Medical Officer, Government of Madhya Pradesh,
presently on deputation to CHS, for appointment on
absorption basis to the post of Medical Officer in the Central
Health Service under the rule 8 of the Central health Service
Rules, 1996. An offer is hereby given to Dr. (Mrs.) Shailaja
Saxena for appointment in Central Health Service as Medical
Officer on regular basis with effect from the date she will
assume the charge of the post after accepting this offer on the
following terms and conditions: -
xxx xxx xxx
(XI) (iii) The seniority will be further subject to the condition
as laid down in paragraph 11.2 of Department of Personnel &
Training's OM No. AB. 14017/71/1989-Estt. (RR) dated
03.10.1989 and will also be subject to the orders to be issued by
the Government in consultation with the UPSC on the basis of
the Supreme Court's judgement of December 1999 in the case
between Delhi Police Personnel on deputation vs. Union of
India."
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
11. A perusal of the aforesaid documents clearly shows that the
petitioners in the aforesaid case were duly absorbed in terms of Rule 8 of the
CHS Rules, 1996. Even though the aforesaid rule was amended in the year
2006 and there was no provision for absorption post amendment, the review
petitioners were given benefit of the fact that prior to 2006, when they were
on deputation, the CHS Rules permitted absorption of deputationists. Since
the aforesaid documents were not disclosed earlier, the earlier bench came to
the conclusion that the review petitioners were not absorbed but were taken
as direct recruits.
12. In W.P.(C) 3809/2018 and W.P.(C) 9348/2018, the review petitioners
were absorbed even prior to the amendment of Rule 8 in the year 2006. At
that point of time, the unamended Rule 8 permitted absorption of the
deputationists. Therefore, the review petitioners in W.P.(C) 3809/2018 and
W.P.(C) 9348/2018 are even at a higher footing than the other remaining
review petitioners. In fact, the case of the said review petitioners was
identical with the case of Dr. Pankaj Agnihotri, Dr. Sandhya Ranjan and Dr.
Snehal Bhave, who were given benefit by the judgment passed by this Court
in Union of India v. Dr. Pankaj Agnihotri, 2010 SCC OnLine Del 2438
and to whom all benefits have been given by the Union of India. The
appointment letters of Dr. Pankaj Agnihotri contained the same terms and
conditions as appointment letters of the present review petitioners.
13. In view of the discussion above, we are satisfied that there was error
apparent on the face of the record on account of the fact that the aforesaid
material was not brought to the notice of the Court when the judgment under
review was passed. Accordingly, the review petitions are allowed and the
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
judgment dated 2nd March, 2021 is hereby recalled. Consequently, the writ
petitions filed by the Union of India are dismissed.
14. All pending applications stand disposed of.
AMIT BANSAL, J.
RAJIV SHAKDHER, J.
SEPTEMBER 27, 2023
rt
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:27.09.2023
17:16:25
