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CIVIL APPEAL NO.7747 OF 2012
Dr. P.N. SHUKLA AND OTHERS … Appellant(s)
JUDGMENT
1. The present appeal questions the legality of the order[1] passed by the High Court[2], vide which the orders[3] passed by the Tribunal[4] were upheld by the Division Bench of the High Court.
2. The appellant No.1 joined the Commission for Scientific and Technical Terminology[5] as a Research Assistant (later redesignated as Dated 15.07.2011 in Writ Petition (Civil) No.3791 of 2011 High Court of Delhi Dated 01.06.2010 in O.A.No.1762/2010 and Dated 03.08.2010 in Review Application No.203/2010 The Central Administrative Tribunal, Principal Bench, New Delhi Hereinafter referred to as ‘CSTT’. Assistant Scientific Officer) on 03.01.1990. The recruitment was made in terms of the Central Hindi Directorate (Research Assistant) Recruitment Rules, 1980[6].
3. The 1980 Rules were amended in the year 1993 providing for educational qualifications and experience required for the post of Research Assistant in different subjects including medicine.
4. On 02.12.1994, an advertisement was issued by the Union Public Service Commission for recruitment to the post of Research Assistants (Economics), (Medicine) and (Electronics) in CSTT. The advertisement clearly provided the duties of the post namely: the evolution of terminology, preparation of definitional dictionaries and allied work.
5. The appellants No.2 to 6 joined CSTT as Research Assistants on various dates as detailed below: Sr. No. Name of the Officer/Discipline Date of Joining 2 M.L. Meena (Civil Engg.) 30.11.1995 3 A.N. Selwatkar (Zoology) 01.01.1996
4 Dr. B.K. Singh (Physics) 21.12.1995 5 Deepak Kumar (Comp. Sc.) 28.11.1996 6 S.K. Chaudhary (Eix.Engg.) 06.02.1997 Hereinafter referred to as ‘the 1980 Rules’
6. On 20.05.1997, the appellant No.1 was promoted to the post of Scientific Officer.
7. The respondent No.4 joined CSTT as a Research Assistant (Medicine) on 18.01.1999. Both the appellants as well as the respondent No.4 belong to the same cadre. A common seniority list of Research Assistants, as on 28.02.1999 was prepared and circulated on 23.03.1999. In the aforesaid seniority list, the appellants No.2 to 6 were shown at
┌──────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Name of the Date of │ │ Officer/Discipline Joining │ ├──────────────────────────────────────────────────────────────────────────────┤ │ 2 M.L. Meena (Civil Engg.) 30.11.1995 │ │ 3 A.N. Selwatkar (Zoology) 01.01.1996 │ │ 4 Dr. B.K. Singh (Physics) 21.12.1995 │ │ 5 Deepak Kumar (Comp. Sc.) 28.11.1996 │ │ 6 S.K. Chaudhary (Eix.Engg.) 06.02.1997 │ │ 37.2 18.01.1999 Respondent No. 4 joined CSTT as a │ │ Research Assistant in the pay scale of │ │ ₹6500-10500. │ │ 37.3 20.7.2000 The post of Research Assistant was │ │ re-designated as that of Assistant │ │ Scientific Officer. │ │ 37.4 18.10.2000 Respondent No. 4 submitted a │ │ representation for upgradation of his │ │ pay, which was rejected. │ │ Subsequent representations filed by │ │ the respondent No. 4 for upgradation │ │ of his pay were also rejected. │ └──────────────────────────────────────────────────────────────────────────────┘
38. Following were the developments during the pendency of the matter before this Court: 38.[1] 26.07.2017 NPA granted to the respondent No. 4 was withdrawn. OA No. 3062 of 2017 was filed by respondent No. 4 impugning the order of withdrawal of NPA. 38.[2] 31.07.2019 The aforesaid OA filed by the respondent No. 4 was dismissed by the Tribunal. 38.[3] 2019 Writ Petition No. 12260 of 2019 was filed by the respondent No. 4 challenging the order dated 31.7.2019, passed by the Tribunal. 38.[4] 15.02.2023 The aforesaid writ petition was disposed of granting liberty to the respondent No. 4 to make a representation against withdrawal of NPA.
39. From a perusal of the aforesaid facts, it is evident that immediately after joining as a Research Assistant, the respondent NO. 4 started making representations for upgradation of his pay scale, which was rejected a number of times. Apparently, being a favourite employee, he started the process of going on deputation to different organisations. On three occasions, he was granted NOC and was selected also. While working at the CSTT, the respondent No. 4 was getting pay in the scale of ₹6500-10500, but on deputation, the pay scale was ₹8000-13500. It appears that the sole object of going on deputation was to get a higher pay scale.
40. From the aforesaid conduct of the respondent No. 4, it is evident that despite being selected as a Research Assistant [redesignated as Assistant Scientific Officer (Medicine)], he was not interested to serve his parent organisation but was more interested in getting a higher pay scale while going on deputation. He came back to his parent department on 23.01.2007, only after the post on which he was working with the CSTT was granted a higher pay scale of ₹8,000- 13,500, from the date of his appointment. Even the recommendations of the Commission which were relied upon to give a higher pay scale to the respondent No. 4, were not strictly applicable to him.
41. The chain of events which happened thereafter is more interesting. Representations were made by the appellants claiming that the respondent No. 4 having been granted a higher pay scale along with NPA, though not practising as a doctor, they were also entitled to the same as they were appointed on the same post, governed by the same Rules and were discharging the same duties. The nomenclature of the post and the duties were different only with reference to the subjects they were dealing with. Respondent No. 4 had joined the service as a Research Assistant (Medicine) in pursuance of an advertisement issued, defining the qualifications, duties and the scale for the post. The result of grant of higher pay scale to him from the date he joined service would mean that even for the intermittent period when he remained in service with CSTT, though he remained on deputation for quite some time in a higher pay scale, he also got a higher pay.
42. The favouritism shown to the respondent No. 4 is evident from the fact that a portion of recommendations made by the Commission which were relied upon to grant him a higher pay scale, were with reference to the Indian System of Medicines and Homeopathy for the Medical Officers working at different levels. Admittedly, respondent No. 4 was neither appointed nor was he working as a Medical Officer, though his qualification may have been the same. Non-application of mind by the respondent No. 1-Union of India is evident from the fact that though he was not practising in Medicine, respondent No. 4 was even granted NPA which is granted to doctors who are not allowed to carry on private practice while working as Medical Officer.
43. Para 52.32 to 52.34 of the report of Commission is extracted below: “PHYSICIANS OF INDIAN SYSTEMS OF MEDICINE & Homeopathy (ISM&H) xx xx xx OUR RECOMMENDATIONS Central Indigenous & Homoeo Medical Service
52.32. The Tikku Committee recommended a separate organised service for ISM&H. The Consultancy Study has suggested integration of ISM&H doctors in the CHS with equal opportunity for high level posts. The Administrative Ministry has underline the need for building organised career management at par with GDOs of the CHS. To carry through the objectives of a separate Department of ISM&H, we recommend that an organised service, called the Central Indigenous & Homoeo Medical Service, may be constituted to include the 182 practitioners, and other physicians of these systems in the Ministry of Labour, Deptt. Of Coal, Armed Forces Ayurveda Dispensary and the Pharmacopoeia Labs of Indian Medicine and Homoeopathy, carrying medical qualifications. Parity with GDMOs 52.33 ISM&H Physicians have parity at entry level with Allopathic doctors. But for career progression they have to wait for vacancies. The Fourth CPC recommended parity of Physicians of ISM&H with GDOs of CHS, by upgrading existing post in the scale of Rs.650-1200 to Rs.2200-4000, provided that the incumbents possess degrees. The Tikku Committee also recommended similarly. But both were silent regarding career progression. The Consultancy Study as well as administrative Ministry have recommended that parity of ISM&H Physicians with Allopathic doctors. As specialisations are yet to emerge with concrete foundation in ISM&H, we recommend a general parity with GDOs as follows: Level Designation Scale Residency 3rd ACP Chief Medical Officer (Selection Grade) Rs.4500-5700 - 2nd ACP Chief Medical Officer Rs.3700-5000 4 yrs. 1st ACP Senior Medical Officer Rs.3000-4500 5 yrs. Entry Medical Officer Rs.2200-4000 4 yrs. Career progression beyond the selection grade will continue to be based on vacancies. Fourth CPC upgraded only those degree holders who were in the scale of Rs.650-1200 (pre-revised). The administrative Ministry has supported the demand for a general upgradation as was done by Third CPC for Allopathic Doctors and Fourth CPC for Veterinarians. As the educational requirement of the post are the same for MBBS doctors, we may recommend that all posts requiring medical practice in ISM&H and a degree in ISM&H as the minimum qualification be placed in the entry scale of Rs.200-4000 and all the posts except those in Delhi Admn. be merged in the Central Indigenous & Homoeo Medical Service. Allowances 52.34. The Third CPC had recommended withdrawal of NPA from the ISM&H Doctors. However, the Fourth CPC granted it at rates at par with Allopathic Doctors. As the Physicians of ISM&H are equally concerned with Medical practices teaching and research, we recommend that allowances and facilities granted to GDOs of Allopathic stream should also be granted to Physicians of the ISM&H on the same terms and conditions.”
44. It will not be out of place to mention here that in the recommendations made by the Commission, there was a separate paragraph 71.16 that dealt with employees working in CSTT. However, the same was ignored by the respondent No. 1-Union of India.
45. Further, paras 71.15 to 71.17 of the report of the Commission are extracted below: “COMMISSION FOR SCIENTIFIC AND TECHNICAL TERMINOLOGY AND CENTRAL HINDI DIRECTORATE Organisation and functions
71.15 The main task of the Commission for Scientific and Technical Terminology ( CSTT) is the evolution of scientific and technical terminology in Hindi and other Indian languages, whereas for Central Hindi Directorate, it is compilation of bilingual and trilingual dictionaries. The nature of the work in the two organisations is basically academic and research oriented. We therefore recommend that the two organisations should be converted into autonomous institutions. The pay scales and promotion prospects of research staff in both the organisations have suffered over a period of time. Department of Education appointed various expert Committees from time to time but the recommendations have not been implemented so far. In this context, we have reviewed the entire cadre structure of the two organisations. Our Recommendations CSTT
71.16. We feel that the cadre structure of the technical post in the Commission for Scientific & Technical Terminology needs to be re-arranged. The post of Research Assistant (Rs.1640-2900) should be redesignated as Assistant Scientific Officer in the pay scale of Rs.2000-3500, in view of the nature of their work and the fact that the recruitment qualification is a post graduate degree. The pay scale of Assistant Education Office/ Scientific Officer may be revised to the replacement scale of Rs.2500-4000, while Assistant Director (Rs.2200-4000) will continue in the same pay scale and will be given the corresponding replacement scale. While the initial recruitment at Research Assistant level shall be made by direct recruitment, the posts of Assistant Education Officer and Scientific Officer should be filled by promotion. The post of Assistant Education Officer will also then be redesignated as Scientific Officer. For the grade of Asstt. Director, the method of recruitment should be made 50% by promotion and 50% by direct recruitment. Central Hindi Directorate
71.17 The cadre of research posts in the Central Hindi Directorate needs a similar re-organisation. The pay scales and designation of Research Assistant (Rs.1640-
2900) and Assistant Education Officer (Rs.2000-3200) should be changed to Assistant Research Officer and Research Officer in the scales of Rs.2000-3500 and Rs.2500-4000 respectively. It is also recommended that the pay scale of General Editor (Hindi) should be revised to Rs.3700- 5000, but it should continue to be filled by direct recruitment. The initial recruitment at Research Assistant level should be made 100% by direct recruitment and those at Research Officer and Deputy Director/Regional Director level should be by promotion. The method of recruitment at Assistant Director level should be changed to 50% by promotion and 50% by direct recruitment.”
46. However, when the authorities realised their mistake, to cover up the same, order dated 20.04.2007 was issued and the post of Assistant Scientific Officer (Medicine), the only one in the cadre manned by the respondent No. 4, was declared to be an ex-cadre post. The reason assigned was that higher pay scale had been granted to the respondent No. 4. There was no corresponding amendment in the Rules or otherwise as the post of Assistant Scientific Officer (Medicine) was still governed by the 1980 Rules which govern the parties. No justification for this action was offered by the respondents at the time of hearing of the matter.
47. Still further, the authorities realised that the post on which respondent No. 4 was working was not that of a Medical Officer with which his pay scale was equated and he was granted NPA. The order dated 26.07.2017 vide which higher pay scale and NPA was granted to the respondent No. 4, was withdrawn to the extent of grant of NPA. The said order was challenged by the respondent No. 4 by filing an Original Application before the Tribunal. The same was dismissed by the Tribunal on 31.7.2019. The stand taken therein by the official respondents was that the respondent No. 4 was working on the post of Assistant Scientific Officer (Medicine) in CSTT, where his duties could not be equated with the doctors working in the Ministry of Health and Ministry of AYUSH. As they are barred from private practice, they were granted NPA. The writ petition challenging the aforesaid order of the Tribunal was dismissed as withdrawn with liberty to move a representation before the competent authority. The matter remains here as none of the counsel pointed out any subsequent development.
48. Apparently, the authorities favouring the respondent No. 4 and the respondent No. 4 together were not able to achieve the objective of granting a higher status and pay scale to him. By every action, the respondent No. 4 generated litigation and planned new devices to steal a march over other similarly situated as him.
49. At the time of recruitment of the appellants as well as the respondent No. 4, they were governed by the 1980 Rules. The post was designated as that of a Research Assistant. It provided for different subjects including Medicine. Vide order dated 20.07.2000, the Government re-designated the post of Research Assistant to that of Assistant Scientific Officer. As is evident from the notification dated 19.11.1993, the mode of recruitment provided for the post was 75% by way of direct recruitment/transfer and 25% by way of transfer on deputation. There was no other post.
50. Vide order dated 26.08.2013, issued by the Government of India, Ministry of Human Resources Development, the post of Assistant Scientific Officer (Medicine) was re-designated as Senior Scientific Officer (Medicine). Needless to add that the post of Assistant Scientific Officer (Medicine) was still governed by the 1980 Rules, where no designation of Senior Scientific Officer (Medicine) was available. No other set of Rules were referred to as on the date of issuance of the aforesaid order, by which the new post would be governed.
51. The intention of the authorities who went out and out to favour the respondent No. 4 so as to grant him higher pay scale, was now sought to be achieved by notifying a separate set of Rules for him. Two set of Rules were notified on 17.02.2014, namely, Assistant Scientific Officer (Medicine) Rules 2014 and Senior Scientific Officer (Medicine) Rules, 2014. There is nothing provided in the Assistant Scientific Officer (Medicine) Rules, 2014, notified on 17.02.2014 to show that till the framing of the aforesaid Rules, any earlier Rules governing the post had been repealed. Rule 2 thereof provided for the number of posts with classification as per Schedule attached therewith. In the Schedule, the name of the post was mentioned as Assistant Scientific Officer25. The only difference between the 1980 Rules and Assistant Scientific Officer (Medicine) Rules, 2014 was that in the earlier Rules, in the column of post, subjects such as Biochemistry, Biotechnology and Microbiology and the words ‘or any other subject as per the requirement’ were not there. The classification of the post was same. The method of recruitment was provided as direct recruitment. Only the subject of Medicine was deleted but the title of the Rule was Assistant Scientific Officer (Medicine) Rules, 2014.
52. As far as Senior Scientific Officer (Medicine) Rules, 2014 are concerned, the same were notified only for one post with higher pay scale as compared to the Assistant Scientific Officer (Medicine) Rules, Assistant Scientific Officer (Agriculture, Anthropology, Archaeology, Biochemistry, Biotechnology, Botany, Chemistry, Commerce, Drawing and Painting, Economics, Education, Engineering (Civil, Electrical, Computer Science, Mechanical, Electronics, Textile, Mineral, Leather Technology), Geography, Geology, Home Science, Journalism, Library Science, Linguistics, Management, Mathematics, Philosophy, Physics, Political Science, Psychology, Public Administration, Sociology, Zoology or any other subject as per the requirement.
2014. The qualification prescribed therein for the post was the same, as was provided for in the 1980 Rules that governed the post of Assistant Scientific Officer, which included the subject Medicine also. The method of recruitment provided in the above Rules was by way of direct recruitment.
53. Notification of Senior Scientific Officer (Medicine) Rules, 2014 dated 17.02.2014 issued only to deal with a single post of Senior Scientific Officer (Medicine) amply demonstrates that the preparation for granting undue benefit to the respondent No. 4 had started well in advance. Firstly, the post of Assistant Scientific Officer (Medicine) was re-designated as Senior Scientific Officer (Medicine) and thereafter, separate Rules were notified for that post.
54. As has already been noticed in the preceding paragraphs, immediately after joining as a Research Assistant (later on redesignated as Assistant Scientific Officer), the respondent No. 4 started making representations for granting him higher pay scale. However, when his request was not accepted, he went on deputation thrice to different places in the higher pay scale. Finally, his request for grant of higher pay scale was accepted. How a single person in the same cadre on the same post governed by the same set of Rules was granted a higher pay scale solely by relying upon the recommendations made by the Commission, which were not applicable. The other members of the cadre (appellants) had raised objections to this.
55. Then the case took a new turn. Without there being any amendment in the Rules, firstly the post of Assistant Scientific Officer (Medicine) was declared ex-cadre on 20.04.2007 and secondly, the NPA granted to the respondent No. 4, though he was not practising as a doctor, which was withdrawn on 26.07.2017. Though the appellants had not got any relief either from the Tribunal or the High Court, but still there was a sword hanging on the head of the respondent No. 4 on account of getting undue benefit. Firstly, the post of Assistant Scientific Officer (Medicine) was re-designated as Senior Scientific Officer (Medicine) vide order dated 26.08.2013 and thereafter, Senior Scientific Officer (Medicine) Rules, 2014 were framed for a single post of Senior Scientific Officer (Medicine) in CSTT. There is no document referred to from the record that the respondent No. 4 was ever appointed as a Senior Scientific Officer (Medicine) in terms of the Senior Scientific Officer (Medicine) Rules, 2014, which provided only direct recruitment as a mode of recruitment. Even the stand taken by the Government in the Original Application filed by the respondent NO. 4 before the Tribunal challenging the withdrawal of NPA was that the post under the Senior Scientific Officer (Medicine) Rules, 2014 could be filled by way of direct recruitment only. It was the specific stand of the Government that Senior Scientific Officer (Medicine) Rules, 2014 are not applicable to respondent No. 4. It is so evident from the order passed by the Tribunal.
56. If the Senior Scientific Officer (Medicine) Rules, 2014 are not applicable to the respondent No. 4, the post of the respondent No. 4 with the notification of Assistant Scientific Officer (Medicine) Rules, 2014 goes in vacuum, as this subject is not mentioned in the Assistant Scientific Officer (Medicine) Rules, 2014. As a result, he may be governed by the 1980 Rules. There was nothing pointed out or referred to at the time of the hearing regarding promotional avenues from the post of Assistant Scientific Officer (Medicine).
57. From the facts, as have been noticed above, in our opinion, the authorities were hand in gloves with the respondent No. 4 to somehow grant him a higher pay scale and repeatedly action was taken in that direction. If governed by the same set of Rules, a single post of the same cadre could not have been isolated and granted a higher pay scale by merely considering the qualifications prescribed for the post. There was no challenge laid down by the respondent No. 4 to the Rules under which he was recruited. He had accepted his appointment letter under the 1980 Rules and had joined service accordingly.
58. We do not find any justification to grant same scale to the appellants as was generously and wrongly granted to the respondent No. 4 by treating him equal to the Medical Officer working in the Ministry of Health and Family Welfare. As even that scale was wrongly granted to him, there was no justification for grant of higher pay scale to the respondent No. 4 vide order dated 13.12.2006, with effect from 18.01.1999, i.e., the date of his initial appointment. The same was certainly illegal and cannot withstand in judicial scrutiny.
59. As a consequence, the impugned orders passed by the Tribunal and the High Court are quashed. The order dated 04.01.2010 justifying the benefits granted to respondent No. 4 is set aside. As a result, even the appellants are not held entitled to higher pay scales as were granted to respondent No. 4.
60. Since during the interregnum, the respondent No. 4 had been unjustifiably paid salary in the higher pay scale, one option could be that whatever had been paid to him till date, be left as such and his pay could be directed to be re-fixed from a future date. However, having regard to the level of the post of the respondent No. 4 and the manner in which he was extended special treatment at every step and was granted higher pay scale, we do not propose to adopt that course as this is not a case of any bonafide error. It was a well-planned and deliberate infraction. We therefore direct recovery of the excess amount paid to the respondent No. 4, though in instalments and/or from the officer(s), who were directly involved in the decision-making process of granting undue benefit to the respondent No.4. Both should be made equally liable to reimburse the exchequer for the amount illegally disbursed to the respondent No.4. The exchequer should not be made to suffer on that account and either of two shall have to make good that loss of undue benefit granted to the respondent No. 4.
61. The appeal is allowed in the aforesaid terms. …..……………..J (HIMA KOHLI) …………………..J (RAJESH BINDAL) New Delhi November 30, 2023.