W.P.(C)/4151/2014 of SAPNA CHANNA & ORS. Vs GOVT. OF NCT OF DELHI & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 09.09.2014

+W.P.(C) 4151/2014, C.M. NO.8323/2014DR. MRS. SAPNA CHANNA & ORS...... PetitionersversusGOVT. OF NCT OF DELHI & ORS...... Respondents+W.P.(C) 4167/2014, C.M. NO.8362/2014DR. SARLA GUPTA..... PetitionerversusGNCT OF DELHI & ORS...... RespondentsThrough: Ms. Pratima. K. Gupta and Sh. AbhishekGoyal, Advocates, for petitioner in Item No.26.Sh. Rakesh Tikku, Sr. Advocate with Ms. Pratima. K.Gupta, Sh. Abhishek Goyal and Sh. Sandeep Kumar,Advocates, for petitioner in Item No.27.Ms. Zubeda Begum, Standing Counsel, GNCTD, forResp. Nos. 1 and 2 (Item Nos. 26 and 27).Sh. Naresh Kaushik with Ms. Amita Singh Kalkal andMs. Aditi Gupta, Advocates, for Resp. No.3/DHC (ItemNos. 26 and 27).

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

1.The petitioners in this case are aggrieved by the common orderof the Central Administrative Tribunal (CAT) dated 02.07.2014 inO.A. No.3145/2013, whereby their applications seeking direction for

permanent absorption in the cadre of General Duty Medical Officers(GDMOs), denied to them by the GNCTD decision, was rejected.

2.Briefly, the facts are that both the petitioners joined the GNCTDas deputationists and were working as GDMOs, discharging the dutiesof medical doctors. The petitioner in W.P.(C) 4151/2014 – Dr. SapnaChanna joined the GNCTD on 26.08.2008 in such capacity, havingbeen recommended by the selection committee, with the approval oftheLieutenantGovernor.Likewise,thepetitionerinW.P.(C)4167/2014, Dr. Sarla Gupta, was appointed as GDMO some time on29.11.2004. At these points in time in 2004 and 2008, when thepetitioners joined the GNCTD, no rules for governing the terms andconditions of such GDMOs or, for that matter, the Delhi HealthService(DHS)existed.Theseweresubsequentlyframedon23.12.2009 by the Delhi Health Service (Allopathy) Rules, 2009(hereafter referred to as “the 2009 rules”).

3.The 2009 rules provided for inter alia the method ofrecruitment to the various categories and classes of posts within theDelhi Health Service (DHS). Rule 8, which dealt with filling up ofdifferent posts by deputation, including short-term contract, providedas follows:

“8.Filling of Duty Posts by Deputation (includingshort term contract):

(1)Notwithstanding anything contained in rule 7, wherethe Government is of the opinion that it is necessary orexpedient so to do, it may for reasons to be recorded inwriting, fill not more than five percent duty posts, in the

grades of Medical Officer in the General Duty Sub-Cadreand Specialist Grade III in the Non-Teaching Specialist Sub-Cadre by transfer on deputation of suitable officers holdinganalogous posts under the Central Government (includingMinistriesofRailwaysandDefense)/StateGovernment/Union Territories or by short term contract ofsuitable officers holding analogous posts under the statutorybodies, autonomous bodies, semi-government organizations,universitiesorrecognizedResearchInstitutionsinconsultation with the Commission.

Provided that with regard to the posts filled up ondeputationitshallbeopenforthegovernment,inconsultation with the Commission, to consider appointmenton absorption basis only in the Non-Teaching Specialistssub-cadre.

(2) The period of deputation or contract shall ordinarily notexceed three years, which may, in special circumstances beextended up to five years, as the Government may think fit.

(3) For appointment to duty posts on deputation orabsorption basis, the officer shall, among others, fulfill theminimum educational and other qualifications prescribedfor the posts in Schedule – V to these rules.”

4.The Rules also contained power of relaxation, which reads:

“16.Power to relax.

Where the Government is of the opinion that it is necessaryor expedient so to do, it may, by order, for reasons to berecordedinwriting,andinconsultationwiththeCommission, relax any of the provisions of these rules withrespect to any class or category of persons.”

5.The petitioners, who were deputationists, sought permanentabsorption with the advent of the 2009 Rules, since they wished toserve in the DHS and did not want to go back to their parent employer.

This was considered by the GNCTD, which, after taking into accountthe position in the Rules, was of the opinion that since absorption ofGDMOs was not permissible, some other method had to beconsidered. One route which fell for consideration was amendment ofthe 2009 rules to accommodate the present petitioners and others likethem, for whom absorption was not an option in view of the expressterms of Rule 8. The GNCTD also took into account the power ofrelaxation and referred the matter to the UPSC for its comments. This,apparently, was considered by the UPSC which, by its order dated07.03.2013, rejected the request of the GNCTD, stating as follows:

“F.No.11/6/2012-ADT.3UNION PUBLIC SERVICE COMMISSIONDHOLPUR HOUSE, SHAHJAHAN ROAD,NEW DELHI 110069”Dated: 7.3.2013XXXXXXXXXXXXXXXX

2.The proposal has been examined in the commission.As per Rule 8 of DHS Rules, there is no provision forabsorption of Medical Officer in GNCTD. Relaxation cannotbe resorted to bringing new method of recruitment notoriginally envisaged in the Rules. In the absence ofabsorption being provided as the mode of recruitment in theR.Rs, no relaxation of the same can be considered.”

6.The GNCTD, acting upon the UPSC’s rejection, expressed itsinability to absorb the petitioners. Aggrieved, they approached theCAT.

7.Before the CAT, the petitioners urged that Rule 8, in so far as itdenied permanent absorption to GDMOs, was violative of Article 14in as much, as, there was no intelligible basis for differentiatingbetween one class of deputationists and another. Since the Rule soughtto extend the benefit of absorption of class of deputationists – theresultant discrimination, singling out GDMOs from that benefit washostile and, consequently, also arbitrary. The second limb of argumentadvanced was that the failure to seek recourse to power of relaxationin the case of petitioners was also arbitrary and that, in any event, thereasons for denial of such relaxation was extraneous. The CATrejected both the arguments. With regard to the second argument, itwas held that:

“22.We are in agreement with the learned counsel forrespondent no.1 that proposal mooted for the absorptionof the applicant by respondent no.1 and obtaining NOCfrom the parent cadre cannot become ground to claim alegal right for absorption. In this context, we refer to KunalNanda (supra)wherein it was held by Hon’ble SupremeCourt that deputationist cannot assert and succeed in hisclaim for permanent absorption in the department where heworks on deputation unless his claim is based upon astatutory rule, regulation or order having the force of law.A deputationist can always and at any time be repatriated tohis parent department, at the instance of either borrowingdepartment or parent department. There is no vested rightin such person to continue for long on deputation or getabsorbed in borrowing department.The respondent no.1had processed the request of the applicant and her husbandin terms of the DHS Rules, 2009. The proviso to Rule 8 hasunambiguous provision that the absorption of deputationistcan be considered only for the Non-Teaching Specialistcategory of Doctors, and therefore, there is no scope forconsideration of the request of the applicant under theserules.The respondent no.1 had, therefore, proposedrelaxation of proviso to Rule 8 (1) exercising the powerunder Rule 16. Learned counsel for the applicants has notbeen able to identify the source of power of respondent no.1that would enable it to relax the provision of these ruleswithout consulting the respondent no.3. Rule 16 of the DHSRules, 2009 specifically provides that where the Governmentis the opinion that it is necessary or expedient so to do, itmay, by order, for reasons to be recorded in writing, and inconsultationwiththeCommission,relaxanyoftheprovisions of these rules with respect to any class orcategory of persons.Such consultation was, therefore,unavoidable for the respondent no.1. Another contentionraised by learned counsel for the applicants is that therespondent no.1 was not bound by the advice of therespondent no.3. We agree with this contention but at thesame time, it cannot be construed therefrom that respondentno.1 getting persuaded by the advice of respondent no.3cannot change its earlier stand or view.In this case,precisely this is what has happened, as shown by learnedcounsel for respondent no.1 by producing the original filewherein the decision making levels in the Government haveconcurred with the advice given by respondent no.3 despitethe fact that it involved reversal of their earlier view. It islogical to conclude that, as envisaged in the rules, the viewtaken by the decision making authority after consultingrespondent no.3 and considering its advice, would be thefinal view of the Govt. and not the one which had been takenwhile sending the proposal for advice of respondent no.3.

23.With regard to the contention that UPSC’s advicewas contrary to the rules and against the public interest, wedo not find much force in this argument.The learned

counsel for respondent no.3 has shown that the initialappointment of the applicant and continuation of thedeputation from second year onwards after the expiry of theinitial deputation term without consultation with UPSC wasunauthorised. The learned counsel for the applicant has notbeen able to refute this submission by respondent no.3except saying that on each occasion of extension ofdeputation, the approval was given by LG, Delhi. It is tritethat when there are express provisions in the rules to do athing in particular manner, the same has to be done in thatmanner. In this case since the rules provided consultationwith respondent no.3 and the same was not done, theapproval of LG, Delhi alone cannot cure the defect in theprocedure that was followed while appointing or givingextensions to the applicant.The learned counsel for theapplicant has also referred to the decision of this TribunalinOA-3827/2013andOA-2565/2013whereinitwasobserved that:

When the Cabinet, Delhi Government has taken adecision to relax the rules, the role of UPSC is only tosuggest the method of carrying out such relaxation andits implementation. Consultant cannot confer upon theauthority required to be consulted, the power ofaccepting or rejecting authority. The function ofconsultation is entirely different from that of approvaland acceptance. Nevertheless the consultation may notbe understood as mechanical concurrence. It is theduty of the consultant to apply its mind on the subjectand give its expert opinion fairly.”

8.Even though the CAT’s order was challenged before this Courton both grounds – discrimination and erroneous findings with regardto the refusal to grant relaxation, during the course of hearing - thechallenge on the ground of Article 14 was given-up.

9.Learnedcounselurgedthattheterms“relaxation”and“amendment” convey different meanings. Underlining that Rule 16requires merely “consultation” with the UPSC, whose opinion cannotbe taken as conclusive, learned Senior Counsel urged that the GNCTDproceeded on the erroneous premise that unavailability of the route ofabsorption in Rule 8 acted as bar. Learned counsel submitted that therelaxationrulewasengraftedtoprovideforallmannerofcontingencies, including the present one, where the GDMOs werebrought in on deputation through transparent and publically notifiedprocess. Emphasising that the denial of absorption was on account ofno fault on their part, learned counsel stressed that they weredischarging the duties of doctors to the utmost satisfaction of theGNCTD. That in 2009, statutory rules outlining the terms andconditions for service of doctors in the DHS were framed, whichconsciously excluded the GDMOs from the denial of absorption asdeputationists, was not within their control. Such being the case, thepower of relaxation was wide enough and permitted the GNCTD, asan employer, to grant permanent absorption to the petitioners.

10.Learned counsel urged that the UPSC’s opinion, that in theabsence of absorption as mode of recruitment, the power ofrelaxation could not be exercised to permit absorption of thepetitioners, flew in the face of the wide amplitude of the powerconferred on the administrative body, GNCTD under the Rule 16.Learned counsel also relied upon various file notings, which wereproduced during the course of hearings after having been obtained

through applications under the RTI Act. These notings dated16.11.2011, 06.01.2012, 25.01.2012, 25.04.2012, 10.07.2012, and01.10.2012, recognized the need to grant the benefit of absorption tothose like the petitioners. Learned counsel submitted that apart fromthe petitioners, 11 others were sought to be considered for permanentabsorption. It was only when the process of amending the rules wasfound to be too cumbersome that the power of relaxation was soughtto be utilized. There being no infirmity in the initial opinion formationwith regard to the need to absorb the petitioners, the GNCTD couldnot thereafter, in complete volte face, state that since the rules didnot permit such course, the power of relaxation would not beresorted to.

11.The respondents submitted that consistently, the position of theGNCTD was that the exclusion of the deputationist GDMOs from thebenefit of permanent absorption (in limited quota of 5%) – itselfbrought in by way of exception - was the result of consciousdecision. Learned counsel relied upon the counter affidavit, for thesubmission regarding unavailability of local talent at the GDMO level,to man the posts in newly created cadre under the DHS rules. It wassubmitted that even otherwise, the deputationists cannot claimabsorption in the borrowing organization as matter of right. Learnedcounsel submitted that the petitioners had overstayed the deputationperiod, and even exceeded the maximum tenure provided for thatpurpose.Suchbeingthecircumstance,theirinsistencetobeconsidered for absorption, could not have been claimed as matter ofright and certainly not one to warrant direction from the Court underArticle 226. It was submitted, in addition, that the parent employer orlending organization had repeatedly sought for repatriation ofpetitioners, and given this fact, their applications for permanentabsorption were misconceived. Learned counsel for the UPSCsubmitted that the power of relaxation has to be considered in thecontext of the Rules within which it is located. It was submitted thatcertain essential conditions, such as those relating to channels ofrecruitment, qualifications etc. are non derogable and relaxationcannot ever be resorted to. It was emphasized that in this case, theview taken by the UPSC was in consonance with the law declared bythe Supreme Court. Learned counsel relied upon the decisionsreported as State of Orissa and Ors. v. Smt. Sukanti Mohapatra andOrs. AIR 1993 SC 1650 and J.C. Yadav and Ors. v. State of Haryanaand Ors. 1990 (2) SCC 189.

12.The 2009 Rules – by Rule 4, provided for the authorizedstrength of the service. The GDMOs are provided for by Rule 4(7).Rule 7, in turn, deals with “maintenance of service” and provides thatvacancies in various grades in the second Schedule will be filled up inthe manner provided by the 2009 Rules themselves. The relevant partof the Schedule dealing with Medical Officers – the posts which thepetitioners manned, states that vacancies in the grade (MedicalOfficers PB-3) would be filled by direct recruitment on the basis ofwritten examination to be conducted by the UPSC. Thus, the 2009Rules are categorical, in that entry to the cadre under Rule 7 read with

the relevant entry in the second Schedule, could be only through directrecruitment. Seen from this perspective, Rule 8 carves out anexception in regard to certain categories of doctors, only in respect of5% of duty posts. If the GNCTD is of the opinion that it is expedientor necessary to do so, it can “for reasons to be recorded in writing, fillnot more than 5% duty posts in certain specific categories such asMedical Officers in General Duty Sub-Cadre and Specialist Grade-IIIin Non-teaching Specialist sub-cadre by transfer on deputation bysuitable officers holding analogous posts” etc. Concededly, thepetitioners do not fall within this exception. They are not MedicalOfficers in the General Duty sub-cadre, but are General Duty MedicalOfficers. Their challenge to the Rule 8(1) on the ground ofdiscrimination not having succeeded, the argument now pressed intoservice is that the UPSC’s opinion with regard to the scope of thepower of relaxation, was based upon misreading of the rules.

13.The power to relax, found in Rule 16, states that when theGovernment is of the opinion that it is necessary or expedient, forreasons to be recorded in writing, coupled with the consultation withthe UPSC, it may relax any of the provisions of the Rules with respectto any class or category of persons. The judgment in Sukanti (supra)interpreted the power of relaxation., as one which does not confer ablanket power; its scope would be limited to relaxing any rule, such aseligibility criteria, but would not expand to forcing the government todisregard the Rules altogether. The Supreme Court observed:

“8............................Rule 14, we are afraid, does not confersuch blanket power; its scope is limited to relaxing anyrule, e.g., eligibility criteria, or the like, but it cannot beunderstood to empower Government to throw the Rulesoverboard. If the rule is so constructed it may not stand thetest of Article14of the Constitution. The proviso to Rule 13can come into play in the matter of fixation of senioritybetween candidates who have successfully cleared theexamination and candidate who cleared the examinationafter availing of the benefit of relaxation. We are, therefore,of the opinion that the Tribunal committed no error inunderstanding the purport of Rule 14.”

14.Likewise, in J.C. Yadav (supra), the object of framing thepower of relaxation was underlined to mean the power to mitigateundue hardship or to meet particular situation in the followingmanner:

“6............The scope of Rule is wide enough to confer poweron the State Government to relax the requirement of Rules inrespect of an individual or class of individuals to the extentit may consider necessary for dealing with the case in justand equitable manner. The power of relaxation is generallycontained in the Rules with view to mitigate unduehardship or to meet particular situation. Many timesstrict application of service rules create situation where aparticular individual or set of individuals may sufferundue hardship and further there may be situation whererequisite qualified persons may not be available forappointmenttothe service.In such asituation theGovernment has power to relax requirement of Rules. TheState Government may in exercise of its powers issue ageneral order relaxing any particular Rule with view toavail the services of requisite officers. The relaxation even ifgranted in general manner would enure to the benefit ofindividual officers.”

15.In the present case, the discussion in the extracts of the notesproduced along with the petition, no doubt discloses that the GNCTDwas of the opinion that the petitioners, i.e. GDMOs stood excludedfrom the benefit of Rule 8(1), but on account of their service, GNCTDwas desirous of absorbing them. Initially, the method suggested was toamend the rules; however, the opinion of the UPSC was sought withregard to the permanent absorption. The UPSC was of the view thatsince the relaxation would entail introduction of an entirely differentchannel of entry into the grade, when such channel is non existent,under Rule 8(1), relaxation would be impermissible. This Court is ofthe opinion that the petitioners’ submissions with regard to either theUPSC or the GNCTD misinterpreting Rule 16 does not arise.

16.Secondly, as held by the CAT, no public employee has rightto insist that he ought to be permanently absorbed in an organizationwhen his lien is with some other public employer. As deputationist,he can only seek permanent absorption if the Rules so permit. Morepertinently, in this case, Rule 8(1) constitutes an exception – (i) to theextent of 5% of the entirety of each cadre; (ii) in respect of specifiedposts which do not include the GDMO category.

17.In other words, the route of deputation itself is confined to aspecified category with upper cap of 5%. The GDMOs clearly do notfall in that category. Furthermore, Rule 8(1) itself is premised uponthe recording of the opinion of the Government that “it is necessary orexpedient so to do” to fill duty posts by transfer by deputation. Thatpower is again confined to non-GDMO category officers. Having

regard to this position, the UPSC’s opinion, accepted by the GNCTDcan hardly be said to violate Article 14, as urged by the presentpetitioners. The public employer, i.e. GNCTD cannot achieve, byvirtue of relaxation through the backdoor, what is impermissible in theRule itself. This position is fortified by the decisions of the SupremeCourt mentioned above. For the above reasons, we are of the opinionthat there is no infirmity with the impugned order of the CAT. Thewrit petitions are accordingly dismissed along with the pendingapplications.

SEPTEMBER 09, 2014‘ajk’

S. RAVINDRA BHAT(JUDGE)VIPIN SANGHI(JUDGE)