Union of India v. Dr. Shailja Saxena

1. The present review petitions have been filed on behalf of the respondents in the writ petitions, seeking review and recall of the judgment 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 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 (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 Observation Ministry’s Observation

(i) The Hon’ble Supreme

Court in their judgment in the matter of Rameshwar Prasad Vs.

MD UP Rajkiya Nigam Ltd. Clearly held that an employee who is on the service where he is working on deputation and that the absorption depends on service In our legal opinion the same case has been quoted but it has been further observed that whether the deputationists should be absorbed in service or not is a policy matter but at the same time once the policy is accepted and rules are framed 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 received for deputation as also absorption and those who had opted for deputation obviously had not opted for absorption. The said persons cannot seek absorption particularly when no provision exists in the RRs. The circular clearly states that officers would be selected for appointment on deputation to CHS and it further says in para 2 of the said advertisement that officers appointed on deputation may be considered for absorption in the 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: “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.”