W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 1 of 39 IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On:6th July, 2010 Judgment Delivered On:22nd July, 2010 + W.P.(C) NO.3845/2010 UOI & ANR. ..... Petitioners Through: Mr.A.K.Bhardwaj, Advocate versus PANKAJ AGNIHOTRI ..... Respondent Through: Mr.S.K.Gupta, Advocate for the Respondent with respondent in person W.P.(C) NO.3846/2010 UOI & ANR. ..... Petitioners Through: Mr.A.K.Bhardwaj, Advocate versus SANDHYA RANJAN ..... Respondent Through: Mr.S.K.Gupta, Advocate W.P.(C) NO.3847/2010 UOI & ANR. ..... Petitioners Through: Mr.A.K.Bhardwaj, Advocate versus SNEHAL BHAVE ..... Respondent Through: Mr.S.K.Gupta, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 2 of 39 PRADEEP NANDRAJOG, J. 1. The above captioned petitions are directed against the judgment and order dated 22.04.2009 passed by Central Administrative Tribunal (hereinafter referred to as the “CAT”) whereby the review petition(s) filed by the petitioner, Union of India, against the earlier judgment and order dated 04.03.2008 passed by the CAT was dismissed. As a result the three respondents who had filed three petitions before the CAT succeeded in obtaining relief which they have prayed for which has resulted in the petitioners being required to give due weightage to the service rendered by the respondents as senior medical officers in the parent department for purposes of their eligibility for further promotion. 2. The factual backdrop leading to the filing of the present petitions are that on 29.05.1986 Department of Personnel and Training, Government of India, issued an Office Memorandum No.200020/7/80-Esst.(D) pertaining to the fixation of seniority of the deputationists who are absorbed in the cadre to which they came on deputation. The relevant portion of the OM reads as under:- “Subject: - Seniority of persons absorbed after being on deputation. 1. ...... 2. Even in the type of cases mentioned above, that is, where an officer initially comes on deputation and is subsequently absorbed, the normal principles that the seniority should be counted from the date of such absorption, should mainly apply. Where, however, the officer has already been holding on the W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 3 of 39 date of absorption in the same or equivalent grade on regular basis in his parent department, it would be equitable and appropriate that such regular service in the grade should also be taken into account in determining his seniority subject only to the condition that at the most it would be only from the date of deputation to the grade in which absorption is being made. It has also to be ensured that the fixation of seniority of a transferee in accordance with the above principle will not effect any regular promotions made prior to the date of absorption. Accordingly it has been decided to add the following sub-para (iv) to para 7 of general principles communicated vide OM dated 22-12-1959: “(iv) In the case of a person who is initially taken on deputation and absorbed later (i.e. where the relevant recruitment rules provide for “transfer on deputation/transfer”), his seniority in the grade in which he is absorbed will normally be counted from the date of absorption. If he has so ever been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from— — the date he has been holding the post on deputation, or W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 4 of 39 — the date from which he has been appointed on a regular basis to the same or equivalent grade in his parent department, whichever is later.” 3. The validity of the aforesaid Office Memorandum was assailed before the Supreme Court and it resulted in the decision reported as Sub Inspector Rooplal vs. Lt. Governor (2000) 1 SCC 644. After holding that the effect of expression “whichever is later” occurring in the aforesaid Office Memorandum is violative of Articles 14 and 16 of the Constitution of India, as it had the effect of wiping out the services rendered by a depuationist in an equivalent cadre in his parent department while determining his seniority in the deputed post, the Supreme Court quashed the said expression from the text of the aforesaid memorandum. 4. Pursuant to the judgment of Supreme Court in SI Rooplal‟s case (supra), Department of Personnel and Training, Government of India, issued Office Memorandum No.20011/1/2000-Estt (D) dated 27.03.2001, the relevant portion whereof reads as under:- “1. ……. 2. The Supreme Court has in its judgment dated December 14, 1999 in the case of Shri S.I. Rooplal & Others v Lt. Governor through Chief Secretary, Delhi [JT 1999 (9) SC 597] has held that the words “whichever is later” occurring in the Office Memorandum, dated May 29, 1986 and mentioned above are violative of Articles 14 and 16 of the Constitution and, hence, those words have been W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 5 of 39 quashed from that Memorandum. The implications of the above ruling of the Supreme Court have been examined and it has been decided to substitute the term “whichever is later” occurring in the Office Memorandum, dated May 29, 1986 by the term “whichever is earlier”. 3. ....... 4. These instructions shall take effect from December 14, 1999 which is the date of the judgment of the Supreme Court referred above....” 5. Respondents, Dr.Pankaj Agnihotri, Dr.Sandhya Ranjan and Dr.Snehal Bhave, who were employed as Senior Medical Officers in the Health Department of various State Governments were appointed as Senior Medical Officers on deputation basis in the Central Health Services (hereinafter referred to as the “CHS”) for a period of three years with effect from 15.07.1999, 17.05.2000 and 10.09.2001 respectively. On 29.09.2003, they were absorbed permanently in the Central Health Scheme (CHS) as Senior Medical Officers in General Duty Sub-Cadre. The next avenue of promotion from the post of Senior Medical Officer is the post of Chief Medical Officer in CHS. 6. At this juncture, it would be most apposite to note the method of recruitment for promotion to the post of Senior Medical Officer and Chief Medical Officer as prescribed under Schedule III appended to Central Health Services Rules 1996, the relevant portion whereof reads as under:- “SCHEDULE III W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 6 of 39 The method of recruitment, field of selection for promotion and the minimum qualifying service in the immediate lower grade or lower grades for appointment or promotion to Group „A‟ duty posts in the Central Health Service. S. No Name of post Method of Field of Selection and Recruitment minimum qualifying for promotion service ........... General Duty Sub-cadre posts ..... (b) Medical Officer Grade .... (2) Chief Medical Officer By promotion on the basis of Seniority-cum fitness without linkage to vacancies failing which by direct recruitment Senior Medical Officer in the General Duty sub-cadre with six years‟ regular service in the grade or on completion of 10 years combined regular service as Medical Officer and Senior Medical Officer of which W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 7 of 39 at least 2 years shall be as Senior Medical Officer (3) Senior Medical Officer By promotion on the basis of Seniority-cum fitness without linkage to vacancies failing which by direct recruitment” Medical Officer in the General Duty Sub-cadre with four years regular grade 7. Relevant also would it be to note Rule 8 of Central Health Services Rules 1996, which reads as under:- “8. Filling of Duty Posts by Transfer on Deputation (including short term contract): (1) Notwithstanding anything contained in rule 7, where the Government is of the opinion that it is necessary or expedient so to do, it may for reasons to be recorded in writing and in consultation with the Commission, fill not more than twenty duty posts in all, in the grades of Medical Officer/Senior Medical Officer in General Duty Sub-Cadre and Specialist Grade II (Junior Scale) in the Non-Teaching Specialist Sub-Cadre and Public Health Sub-Cadre by transfer on deputation of suitable officers holding analogous posts under the Central Government (including Ministries of W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 8 of 39 Railway and Defence)/State Governments/Union Territories and by Short Term Contract of suitable officers holding analogous posts under the statutory bodies, autonomous bodies, semi-government organisations, universities or recognised Research Institutions. (2) The period of deputation/contract shall be for a period not exceeding three years, which may, in special circumstances be extended upto 5 years, as the Government may think fit.” 8. Vide notification dated 30.07.2001, Government of India amended Rule 8 of Central Health Services Rules, 1996 in following terms:- “8. Filling of Duty Posts by Transfer on Deputation (including short term contract): (1) Notwithstanding anything contained in rule 7, where the Government is of the opinion that it is necessary or expedient so to do, it may for reasons to be recorded in writing and in consultation with the Commission, fill not more than one hundred duty posts in all, in the grades of Medical Officer/Senior Medical Officer in General Duty Sub-Cadre and Specialist Grade II (Junior and Senior Scale) or Specialist Grade I in the Non-Teaching and Public Health Sub-Cadre and Assistant Professor or Associate Professor or Professor in the Teaching Sub-Cadre by transfer on deputation of suitable officers holding analogous posts under the Central Government (including Ministries of Railway and Defence)/State W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 9 of 39 Governments/Union Territories and by Short Term Contract of suitable officers holding analogous posts under the statutory bodies, autonomous bodies, semi- government organisations, universities or recognised Research Institutions. Provided that one hundred posts earmarked for deputation (including short term contract) in all the four sub-cadres mentioned above, it may be open to the Central Government, in consultation with the Commission, to consider absorption against fifty posts and only officers of Central Government or State Government or Union Territories shall be eligible for being considered for appointment on absorption basis. (2) The period of deputation/contract shall be for a period not exceeding three years, which may, in special circumstances be extended upto 5 years, as the Government may think fit. (3) For appointment to duty posts on absorption basis, the officers shall fulfil minimum educational and other qualifications prescribed for the posts in Schedule V to these Rules.” 9. We regretfully note that the aforesaid amendment, which is very material for the purposes of adjudication of the present case was neither brought to the notice of CAT nor was it pointed out to us by the counsel appearing for the parties. CHS Rules 1996 have been annexed along with the present petition(s) but the same are unamended. We expect the W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 10 of 39 counsel to be more vigilant in future regarding the amendments made in the Recruitment Rules. 10. On 29.08.2006, the Ministry of Health and Family Welfare, Government of India, issued Office Order No.A23024/01/04-CHS.II wherein seniority of the respondents in CHS was fixed after taking into consideration the services rendered by the respondents on the post of Senior Medical Officers in their respective parent departments. The said Officer Order further provided that the minimum qualifying service required by the respondents for being eligible to be considered for the promotion to the post of Chief Medical Officer shall be reckoned from the date of their absorption in CHS i.e. 29.09.2003. In sum and substance, the effect of the said Office Order was that the service rendered by the respondents as Senior Medical Officer in their respective parent departments was taken into consideration while fixing their seniority but the same i.e. the past service was not considered as service rendered to acquire the requisite qualifying service. 11. Since the aforesaid Office Order dated 29.08.2006 adversely affected the promotional prospects of the respondents, they filed application(s) under Section 19 of Administrative Tribunals Act 1985 challenging the direction contained in the said order that the minimum qualifying service required by the respondents for being eligible to be considered for promotion to the post of Chief Medical Officer shall be reckoned from the date of their absorption in CHS, primarily on the ground that the said condition violates the dictum of law laid down by Supreme Court in SI Rooplal‟s case (Supra) as also the instructions contained in the Office Memorandum dated 27.03.2001 issued by Government of India. W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 11 of 39 12. After noting that there is a difference of opinion between various Benches of CAT in regard to determination of seniority and period of service spent by the deputationist in the transferred department and the interpretation of the decisions of Supreme Court reported as Sub-Inspector Rooplal vs. Lt. Governor (2000) 1 SCC 644 and Indu Shekhar Singh v State of UP (2006) 8 SCC 129, a Division Bench of CAT referred the application(s) filed by the respondents to the Full Bench. Following questions were referred for the consideration of the Full Bench:- “(1) Is it a universal rule that deputationists are to be given seniority taking into full account the equivalent service rendered by them in the parent department? (2) Whether such recognition will infringe upon the settled rights of existing personnel, including their career prospects? (3) In the light of later decisions what could be the nature and extent of rights available to deputationists who ultimately come to be regularized in the new department? (4) Is it mandatory that the special rules as applicable also are to be taken notice of?” 13. After placing reliance upon the decision of Supreme Court in Indu Shekhar Singh‟s case (supra) and noticing the scheme of Central Health Service Rules 1996, particularly the fact that deputation is not the source of appointment to the posts of Senior Medical Officer and Chief Medical Officer under Schedule III appended to the said Rules and that there is no W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 12 of 39 provision under the said Rules for absorption of deputationists in CHS, vide judgment dated 04.03.2008 the Full Bench held as under:- “25. We do not think the apprehension as above may be real. The position cannot be forgotten that whatever service rendered by the applicants from the date on which they are deemed as occupying the grade of Rs. 10,000-15,200 which alone is relevant here requires to be recognized as service rendered under the CHS. They are not to have any probationary period de novo; they would be qualified to press the benefit to their whole past service for promotion to the immediate next grade, viz. that of Chief Medical Officer. Additional incumbency of actual service in the CHS is, therefore, not postulated or to be insisted on. The DPC will have to consider the person eligible, even from the very next date of his absorption. 26. In the result, we answer the reference as following: (1) It may not be a universal rule that deputationists are to be given seniority taking into full account the equivalence service rendered by them in the parent department. Such rights could be conferred on them, only subject to the service rules, that the operational in respect of the Institution; (2) The recognition of service of a transferred employee may infringe rights of existing personnel or may affect their career prospects but if the situation is postulated and permitted by the governing rules, it will definitely have operation, since seniority or W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 13 of 39 promotions cannot be recognized and fundamental rights but only rights conferred by statute; (3) In view of the decision Prabha Devi and Indu Shekhar Singh (supra), the rights available to deputationists, who ultimately come to be regularized in the new employment, will have to abide by the rules that are in vogue. It is mandatory that special rules as are applicable are to be duly taken notice of. However, the benefit of service that they can carry for reckoning them eligible for the next promotional post when the claims are considered, should always be with them; (4) In the matter of further promotions, deputationists who get absorbed will not be able to weightage on the basis of the seniority that is carried by them. In respect of DPC clearance, minimum incumbency and other restrictions, they will have to be governed by the rules in force and it may not be possible for any such persons to assert that conferment of seniority brings with it all the other rights, including that of promotion. 27. As arising out of the decisions and conclusions made above, we do not think that applicants have made out a case for interference. The impugned order dated 29.8.2006 whereby they have been advised that for the purpose of promotion to the next grade, the required qualifying service would be counted only from the date of absorption, is a reasonable stipulation and goes well with the conditions that were incorporated in the order of their appointment viz. W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 14 of 39 that they have been absorbed on regular basis only with effect from the dated specified in the respective orders, but subject to the observations made by us earlier in Paragraph 25.” 14. In view of the apparent contradiction between paras 25 and 27 of the judgment and order dated 4.3.2008, for on one hand the Full Bench directed that the condition contained in the Office Order dated 29.08.2006 that the minimum qualifying service required by the respondents for being eligible to be considered for promotion to the post of Chief Medical Officer shall be reckoned from the date of their absorption in CHS is valid and legal, on the other hand, it was directed that the respondents shall be entitled to include the service rendered by them in their parent departments towards minimum qualifying service required by them for being eligible to be considered for promotion to the post of Chief Medical Officer, the petitioner filed a review petition before the Full Bench of CAT seeking review of the said judgment and order dated 4.3.2008. 15. Vide judgment and order dated 22.04.2009, the Tribunal disposed of the Review Petition and held that the judgment of the Supreme Court in SI Rooplal‟s case (supra) postulates that the service rendered by a deputationist on an equivalent post in his parent department is required to be taken into consideration for the purposes of fixation of his seniority in the transferred department; that the consequential benefits which flows to a deputationist due to fixation of such seniority including promotional benefits can be denied only when there is an express provision in the recruitment rules of the transferred department permitting said denial and that since there is no provision in Central Health Services Rules, 1996 W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 15 of 39 permitting the non-consideration of service of a deputationist in his parent department while determining the period of service spent by him in CHS for being eligible to be considered for promotion to a higher post, the condition contained in Office Order dated 29.08.2006 that the minimum qualifying service required by the respondents for being eligible to be considered for promotion to the post of Chief Medical Officer shall be reckoned from the date of their absorption in CHS is arbitrary, unreasonable and thus liable to be struck down. The questions referred to the Full Bench were answered in following terms:- “24. Resultantly and as a fall out of our discussions hereinabove made, we answer the reference as following: As per the interpretation given by the Supreme Court in SI Roop Lal„s case (supra) deputationists are to be given seniority taking into full account the equivalent service rendered by them in the parent department. The recognition of service of a transferred employee may infringe rights of existing personnel or may affect their career prospects but if the situation is postulated and permitted by the governing rules, it definitely requires obedience, since seniority or promotions cannot be recognized as fundamental rights but only rights conferred by statute; In the matter of promotions, as far as the present case is concerned, deputationists who got absorbed will be able to claim weightage on the basis of the seniority that is carried by them. As general rule, in respect of W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 16 of 39 DPC clearance and minimum incumbency, the position will be governed by the respective special rules as are in force.” 16. It is after chartering the aforesaid route that the instant petitions have come up before us. 17. During the hearing of the petition(s), learned counsel for the petitioner contended: (i) the Full Bench of the Tribunal has committed an illegality by applying the ratio in SI Rooplal‟s case (supra), for therein the Supreme Court was not concerned with the issue involved in the present case i.e. eligibility of the deputationists for promotion but was concerned with the fixation of seniority of the deputationists; (ii) the Full Bench failed to appreciate that the ratio laid down in SI Rooplal‟s case (supra) had been deviated to by the Supreme Court, in the decisions reported as Indu Shekhar Singh v State of UP (2006) 8 SCC 129, Union of India v G.R.K. Sharma (1998) 6 SCC 186 and T.K. Ponnnuswamy v Govt. of Tamil Nadu 1994 Supp (3) SCC 376; and (iii) the Full Bench did not appreciate the dictum of law laid down in the decision reported as R. Prabha Devi v Government of India (1988) 2 SCC 233 that seniority in a particular cadre does not entitle a public servant for promotion to higher post unless he fulfils the eligibility condition prescribed under relevant recruitment rules. 18. Per contra, learned counsel for the respondents contended that the conclusion drawn by the Full Bench in the impugned judgment that the services rendered by the respondents on the post of Senior Medical Officer in their parent departments should be included towards the qualifying service required by them for being eligible to be considered for promotion to the post of Chief Medical Officer is legal and valid in view of the decisions of Supreme Court reported as K. W.P.(C) Nos.3845/2010, 3846/2010 & 3847/2010 Page 17 of 39 Madhavan v Union of India (1987) 4 SCC 576, K. Chandraiah v K. Anjaiah (1998) 3 SCC 218 and Sub-Inspector Rooplal v Lt. Governor (2000) 1 SCC 644. 19. As noted by us herein above, unfortunately neither party drew attention of the Tribunal to the amendment incorporated to Rule 8 of the Central Health Services Rules 1996 as per the notification dated 30.7.2001, the rule as amended being as noted by us in para 8 above. 20. Every person holding a post in a cadre in a government department has a legitimate expectation of being considered for promotion as per his seniority in the cadre. He can also legitimately expect that no person from outside his cadre will join the cadre in such a way so as to disturb his seniority in the cadre. Thus, prima facie, being a matter of a legitimate expectancy of a government servant for being promoted, it can be said as a starting point that where the recruitment rules do not provide for absorption in the cadre by a deputationist walking in but a deputationist walks in, he must do so at the cost of his experience in the same post in the parent department being excluded while reckoning his eligibility for promotion in the department where he is absorbed permanently but after making initial entry as a deputationist. But, where the recruitment rules provide as a manner of absorption on permanent basis, persons coming on deputation, the existing employees in the cadre would be expected to know that anyone from outside can walk