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2016 DIGILAW 1358 (HP)

Union of India v. Meenu Aggarwal

2016-07-13

AJAY MOHAN GOEL, RAJIV SHARMA

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JUDGMENT : Ajay Mohan Goel, J. By way of present writ petition, the petitioner-Union of India has challenged the order passed by learned Central Administrative Tribunal, Chandigarh Bench in OA No. 778/HP/2005 dated 30.05.2008 vide which, learned Tribunal has allowed Original Application of the present respondent and declared that applicant therein is entitled to the same benefits of time bound promotion at par with any other CHS Medical Officers on the basis of the provisions of Para 2(1) of order dated 5.4.2002 appended as Annexure A-14 with the Original Application. Learned Tribunal has further held that the benefit would be available to applicant w.e.f. 05.04.2002. 2. The case of the respondent/applicant before the learned Tribunal was that the applicant was appointed as Resident Medical Officer in the pay scale of Rs. 2200-4000/-, which was a solitary post in the Indian Institute of Advanced Study vide appointment letter dated 26.05.1993. She was confirmed as such on the recommendations of the Departmental Promotion Committee w.e.f. 28.05.1995 in the pay scale of Rs. 2200-4000/- (subsequently revised to Rs. 8000-13500/-). The Government of India vide Office Memorandum dated 9th August, 1999 introduced an Assured Career Progression Scheme for the Central Government Civilian Employees on the basis of the recommendations of the Fifth Central Pay Commission. The said scheme was to become operational from the date of issuance of Office Memorandum, which was 09.08.1999. As per the Office Memorandum, a Departmental Screening Committee was to be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme. The same was adopted to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. It was mentioned in Clause 3.1 of the Office Memorandum that isolated posts in group ‘A’, ‘B’, ‘C’ and ‘D’ categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated in the Office Memorandum. In light of what was contained in the said Office Memorandum, the applicant made a representation dated 18.06.1998, wherein she prayed that she be granted the next grade of Rs. 3000-4500/- pre-revised (revised to Rs. 10000-15200/-). In light of what was contained in the said Office Memorandum, the applicant made a representation dated 18.06.1998, wherein she prayed that she be granted the next grade of Rs. 3000-4500/- pre-revised (revised to Rs. 10000-15200/-). It was mentioned by her in the said representation that the employees of the Indian Institute of Advanced Study, which was an autonomous organization under the Ministry of Human Resource Development were governed by the Rules, Regulations and Pay Scales notified by the Government of India from time to time. It was further mentioned in the representation that there were only two persons in the Medical Section of the Institute and there interests were being overlooked as orders regarding medical personnel passed by the Ministry of Health and Family Welfare had gone unnoticed in the Ministry of Human Resource Development keeping in view the fact that there were very few medical professionals serving in the said Ministry which was causing unnecessary inconvenience, harassment and financial loss to the personnel of Medical Section. It was further stated in the representation that the Government of India had issued various notifications conferring benefits on its employees serving in the medical sections and one of such notification was dated 08.10.1996, which provides time bound promotions in the following manner: “Pre-revised Revised (i) Medical Officer Rs. 2200-4000 Rs. 8000-13000 (ii) After four years Of service (Sr. N.9) Rs. 3000-4500 Rs. 10000-15200 (iii) After 10 years Of service (CMO) Rs. 3700-5000/- Rs. 12000-15500 3. Accordingly, the applicant stated by way of the said representation that keeping in view the fact that she had completed four years of service in the Grade of her appointment, she was entitled to be conferred the higher Grade as contemplated in notification dated 08.10.1996 w.e.f. 01.01.1997. However, the representation of the applicant was not acceded to and the same was rejected vide notification dated 01.11.2000. Ministry of Health & Family Welfare, Government of India thereafter vide notification dated 5th April, 2002 accepted the recommendations of Fifth Central Pay Commission with regard to Dynamic Assured Career Progression Scheme for officers of the Central Health Services. This communication which was appended with the Original Application as Annexure A-14 contemplated as under: “In the General Duty Medical Officer (GDMO) sub cadre, Medical Officer (Rs.8000-13500) will be promoted to Senior Medical Officer (Rs. 10000-15200) on completion of 4 years of regular service. This communication which was appended with the Original Application as Annexure A-14 contemplated as under: “In the General Duty Medical Officer (GDMO) sub cadre, Medical Officer (Rs.8000-13500) will be promoted to Senior Medical Officer (Rs. 10000-15200) on completion of 4 years of regular service. Senior Medical Officer with 5 years of regular service as Senior Medical Officer will be promoted to the post of Chief Medical Officer (Rs. 12000-16500) and after completion of 4 years in Chief Medical Officer grade, officer will be promoted to the post of Chief Medical Officer (Non Functional Selection Grade) (Rs.14300- 18300). Thus on completion of 13 years of regular service in the GDMO sub cadre of CHS, Officer of GDMO sub cadre will be promoted to Chief Medical Officer (Non Functional Selection Grade) (Rs.14300- 18300).” 4. Applicant made a representation for the conferment of the benefits to her under the said scheme. As no benefits were conferred upon the applicant by the respondent, in this background, she filed an Original Application praying for the following reliefs: “(i) That the respondents may be directed to grant the benefit of higher pay-scale of Rs.10,000-15,200 to the applicant on completion of four years of service and thereafter to place her on further higher pay-scale of Rs.12,000-16,500 when it is due to the applicant. (ii) That further directions be issued to the respondents to release all arrears in view of such fixation, alongwith interest at some nationalized bank rate. (iii) That the respondents may be directed to produce the entire record pertaining to the case for the perusal of this Hon’ble Tribunal. (iv) That the cost of this application may also be awarded in favour of the applicant and against the respondents throughout. (v) That any other order or relief deemed just and proper by this Hon’ble Tribunal in the light of the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.” 5. The claim of the applicant was resisted by the Union of India on the ground that no autonomous body was participating unit of Central Health Services and it was for the Ministry of Human Resources Development to decide the promotional avenues of the officer of the Indian Institute of Advanced Study, Shimla. The claim of the applicant was resisted by the Union of India on the ground that no autonomous body was participating unit of Central Health Services and it was for the Ministry of Human Resources Development to decide the promotional avenues of the officer of the Indian Institute of Advanced Study, Shimla. It was further the stand of the department that Ministry of Human Resource Development vide letter dated 17th March, 2003 had made the applicant entitled to normal Assured Career Progression Scheme formulated by DOPT, which was applied to the isolated Group ‘A’ post and the case had been referred to Sixth Pay Commission for consideration. The contents of said notification dated 17th March, 2003 are quoted herein below: “I am directed to refer to Institute’s letter No. 4(a)(44)93/Admn.F.2/14654 dated 14.1.2003 on the subject mentioned above and to say that the matter has been reconsidered in consultation with IFD and Department of Personnel & Training. 2. DOPT has advised that Ministry of Health and Family Welfare has approved the Dynamic ACP Scheme only in respect of Central Health Service for the present. Till the picture becomes clearer about application of Dynamic ACPs to holder of isolated Group ‘A’ Medical Doctors, there may not be any objection in extending normal ACPs to such Doctor holding isolated Group ‘A’ post. 3. In view of above, the Institute is advised that the incumbent may be given financial up gradation as per provision of the normal Assured Career Progression Scheme formulated by DOPT which also applies for isolated Group ‘A’ post.” 6. Further as per the applicant, the benefit of Assured Career Progression Scheme was initially conferred by the Department of Personnel and Training vide Office Memorandum dated 9th August, 1999, which was arbitrarily denied to the applicant on the ground that Indian Institute of Advance Study where she was employed was not a unit of Central Health Services. Thereafter, when in April, 2002 Dynamic Assured Career Progression Scheme was introduced by the Department of Health, Government of India, the same was again denied to the applicant on the same ground. However, subsequently, the respondents extended the Assured Career Progression Scheme benefit to the applicant as was evident from notification dated 17th March, 2003, which confirmed that despite the fact that applicant was serving in an autonomous body, she had been treated as Central Government employee. However, subsequently, the respondents extended the Assured Career Progression Scheme benefit to the applicant as was evident from notification dated 17th March, 2003, which confirmed that despite the fact that applicant was serving in an autonomous body, she had been treated as Central Government employee. Thus, there was no occasion to deprive the benefit to the applicant as was given to her counter parts serving in the Central Government Services keeping in view the fact that as the applicant was a Medical Officer, she was entitled to all the benefits which otherwise were accruable to her counter parts serving in the Central Health Services. It was further the case of the applicant that the only difference between the Assured Career Progression Scheme and the subsequent Dynamic Assured Career Progression Scheme was that while earlier was a financial up-gradation scheme, the subsequent was a time bound promotion scheme meant for Medical Officers. According to the applicant, her functional responsibility has been equated with Central Health Services, accordingly there was no justification to deny the benefit of Dynamic Assured Career Progression Scheme to her. 7. Learned Tribunal on the basis of material produced on record came to the conclusion that the question which was to be decided was whether the applicant was entitled to the benefits under the Dynamic Assured Career Progression Scheme of 2002 or Assured Career Progression Scheme which had been made applicable to her. It held that the Assured Career Progression Scheme was based on the recommendations of 5th Central Pay Commission and Assured Career Progression Scheme in paragraph No. 13 provides for an option to the Ministries or Departments as per choice to continue with any time bound promotion scheme in which event such scheme shall not run concurrently with ACP Scheme. It further held that in case of CHS, presumably, ACP is not applicable and thus, the applicant’s case should have been considered for DACP and not for ACP. It further held that the promotions under DACP has to be made without any linkage to the vacancies and as such, the benefit of DACP could not have been denied to the applicant on the ground that the post of Resident Medical Officer at the Institute of Advanced Study, Shimla is an isolated post. It further held that the promotions under DACP has to be made without any linkage to the vacancies and as such, the benefit of DACP could not have been denied to the applicant on the ground that the post of Resident Medical Officer at the Institute of Advanced Study, Shimla is an isolated post. It further held that NPA is an allowance admissible only to the Medical Officers and applicant’s entitlement to NPA which was evident from her appointment order confirms that she should be treated as one of the Central Government Medical Officers. Learned Tribunal further held that when the respondents have chosen to extend the ACP concession to the applicant notwithstanding the fact that she was functioning in an autonomous body, then the extension of the said benefit would mean that she would be deemed to be a Central Government Employee. As per the learned Tribunal, when such a legal fiction has been pressed into service, then the consequences thereof equally have to follow. It further held the applicant shall be deemed to be a Central Govt. Employee as she has been holding the post of Resident Medical Officer and keeping in view the fact that NPA was admissible to her at par with Central Government Officer, she should be treated as Central Health Services Officer as already recommended on the basis of functional responsibilities by the Ministry of Human Resources Development and in that event as ACP was not available to CHS Officials, the applicant should not have been given the benefit of ACP, but she should have been extended the benefit of Dynamic Assured Career Progression Scheme, i.e. DACP. Accordingly, on these basis, the Original Application filed by the applicant was allowed and learned Tribunal held the applicant entitled to the same benefits of time bound promotion as were available to other Medical Officers of Central Health Services as were provided under the provisions of Para 2(1) of order dated 05.04.2002 appended with the Original Application as Annexure A-14. The applicant was held entitled to the said benefits w.e.f. 05.04.2002. However, no interest was granted in favour of the applicant by the learned Tribunal. 8. The applicant was held entitled to the said benefits w.e.f. 05.04.2002. However, no interest was granted in favour of the applicant by the learned Tribunal. 8. This order passed by the learned Tribunal has been assailed by the present petitioners inter alia on the ground that the Tribunal has failed to appreciate that the respondent-applicant was an employee of an autonomous body which was not a participating unit of Central Health Services and accordingly, there was no occasion to confer upon the respondent-applicant any benefit under the Dynamic Assured Career Progression Scheme, which was introduced only in respect of the officers of Central Health Services. It was further alleged that learned Tribunal had erred in not appreciating that the applicant could not have been conferred the benefits of Dynamic Assured Career Progression Scheme unless the Ministry of Human Resource Development took a decision in this regard of extending the said benefits even to those employees who are serving in autonomous bodies as was the case with the respondent-applicant. Thus, on these basis, the order passed by the learned Tribunal has been challenged before this Court. 9. We have heard the learned counsel for the parties and also gone through the records of the case. 10. During the course of arguments, it was brought into the notice of this Court by the learned Senior Counsel appearing for the private respondent that besides the factum of the benefit of the order passed by the learned Tribunal having been implemented and conferred to the respondent-applicant, the benefits of the Dynamic Assured Career Progression Scheme under the Sixth Pay Commission also stands extended and accorded to the private respondent. Learned Senior Counsel has also placed on record the copy of Office Memorandum, dated 29th October, 2008 from which it is apparent that CHS Division of the Ministry of Health and Family Welfare, Government of India has ordered to extend the scheme of DACP up to SAG level to all Medical/Dental Doctors in the Central Government whether belonging to Organized Service or holding isolated posts. Be that as it may, in our considered view, there is no infirmity with order which has been passed by the learned Tribunal directing the present petitioners to confer the benefit of DACP Scheme to the applicant on the basis of the recommendations of the Fifth Central Pay Commission. Be that as it may, in our considered view, there is no infirmity with order which has been passed by the learned Tribunal directing the present petitioners to confer the benefit of DACP Scheme to the applicant on the basis of the recommendations of the Fifth Central Pay Commission. It is evident from the material on record that the respondent-applicant first made a representation for conferring upon her the benefits of Assured Career Progression Scheme on the basis of Office Memorandum issued in this regard by the Department of Personnel and Training, Government of India, which was rejected by the present petitioners on the ground that the Office Memorandum was not applicable to the respondent-applicant as she was an employee of an autonomous organization. Thereafter, in the year 2002, CHS Division of the Ministry of Health and Family Welfare, Government of India came out with Dynamic Assured Career Progression Scheme which was made applicable to all Medical Officers and the respondent-applicant again made a representation to the effect that the benefits of the said Scheme be conferred upon her keeping in view the fact that she was similarly situate as any other Medical Officer serving in Central Health Services. Though the said request of the respondent-applicant was not heeded to, but simultaneously in the year, 2003, she was conferred the benefits under the Assured Career Progression Scheme. Learned Tribunal has held that the applicant-respondent was entitled to the benefits of DACP and not ACP keeping in view the fact that her service conditions were pari materia with those of any other Medical Officer serving in CHS. Therefore, on these basis, learned Tribunal concluded that the respondent-applicant cannot be denied the benefits of Dynamic Assured Career Progression Scheme which had been conferred by the present petitioners to the Medical Officers serving under the Central Government. Learned Tribunal in fact concluded that respondent-applicant is also deemed to be an employee of Central Government keeping in view the fact that she was serving in autonomous body of the Union of India. It is not disputed that now the benefits of DACP as recommended by the Sixth Central Pay Commission have been conferred upon the respondent-applicant. Keeping all these facts into consideration, in our considered view, learned Tribunal has rightly held that the respondent-applicant was entitled to the benefits under the DACP at par with any other Medical Officer serving in the CHS Department. Keeping all these facts into consideration, in our considered view, learned Tribunal has rightly held that the respondent-applicant was entitled to the benefits under the DACP at par with any other Medical Officer serving in the CHS Department. It is not the case of the petitioners before this Court that the parent organization of the petitioners though autonomous, was not owned and controlled by the Union of India. Further, the only ground on which the said benefit has been denied to the respondent-applicant by the present petitioners is that according to them, the parent organization of the applicant was not part of CHS and whether or not the benefit has to be conferred upon the applicant is a decision which is taken by the Ministry of Human Resource Development. In our considered view, the applicant could not have been denied the benefit of DACP simply on this ground that the parent organization of the petitioners was not a part of CHS unit and till a decision in this regard was taken by the Ministry of Human Resource Development, the benefit of DACP could not have been conferred upon the applicant. DACP is a Scheme which has been formulated by the Union of India for the purpose of removing stagnation amongst Medical Officers serving in Central Health Services. The applicant is similarly situated as all other Medical Officers serving in Central Health Services, though she is employed with Indian Institute of Advance Study, which is an autonomous body of Union of India. The fact remains that Ministry of Health and Family Welfare and Ministry of Human Resource Development both are under the Union of India. Not only this, though the respondent-applicant is serving in an autonomous body under the Ministry of Human Resource Development, but it is an undisputed fact that she is serving there as a Medical Officer. The fact remains that Ministry of Health and Family Welfare and Ministry of Human Resource Development both are under the Union of India. Not only this, though the respondent-applicant is serving in an autonomous body under the Ministry of Human Resource Development, but it is an undisputed fact that she is serving there as a Medical Officer. Keeping in view the fact that there are isolated posts of Medical Officers in the Ministry of Human Resource Development and there is no separate DACP Scheme which has been formulated by the Ministry of Human Resource Development, it is but obvious and prudent that the benefits which have been envisaged by the Central Government for Medical Officers serving under the Central Health Services should be ipso facto made extendable to Medical Officers who are serving in autonomous organizations may be not under the Ministry of Health and Family Welfare, but under other Ministries. This is for the reason that similarly situated persons cannot be treated with a different yardstick by the Government of India. It is no one’s case that the autonomous organization in which the respondent-applicant serves does not belong to the Government of India. Article 14 of the Constitution of India strikes at discrimination. This Article inter alia provides that equals are to be treated alike. In our considered view, giving a differential treatment to a Medical Officer, i.e. the respondent-applicant in the present case vis-à-vis other Medical Officers serving under the Ministry of Health and Family Welfare simply on the ground that the respondent-applicant is not serving under the said Ministry, but is serving under another Ministry, is nothing but an action of discrimination, especially keeping in view the fact that it is no one’s case that the duties and responsibilities of the respondent-applicant in any manner were different from the Medical Officers serving under the Central Health Services. 11. Therefore, in view of what has been discussed above, we do not find any infirmity with order passed by the learned Administrative Tribunal OA No. 778/HP/2005 dated 30.05.2008 and the same is upheld and the writ petition being devoid of any merit is accordingly dismissed.