OA Nos. 3139, 3140, 3141, 3142 and 3145/2013. Case: Sarla Gupta Vs GNCT of Delhi. Central Administrative Tribunal

Case NumberOA Nos. 3139, 3140, 3141, 3142 and 3145/2013
JudgesV.N. Gaur, Member (A) and Rajvir Sharma, Member (J)
IssueConstitution of India - Articles 14, 309
Judgement DateJuly 02, 2014
CourtCentral Administrative Tribunal


V.N. Gaur, Member (A), (Principal Bench, New Delhi)

  1. These OAs have been filed by General Duty Medical Officers (GDMO) who came on deputation to Govt. of NCT of Delhi (GNCTD) at different points in time and made a request for absorption in the Delhi Health Service (DHS) cadre. The respondent No. 1 after initially taking a decision to consider their request favourably, referred the matter to respondent No. 3, UPSC for advice. The respondent No. 3 has advised that the relaxation of the relevant rules cannot be resorted to accommodate the requests of the applicants as the DHS Rules do not have provision for absorption of Medical Officers in GNCTD. The applicants, apprehending that the respondent No. 1 may issue formal orders of repatriation, have filed these OAs.

  2. Since the facts of these cases are quite similar and the points of law involved are the same, we had heard these OAs together and these will be disposed of through this common order.

  3. As a representative case, we will be discussing OA-3145/2013. The following prayer has been made in the OA:

    1. quash and set aside the impugned Rule i.e. proviso of Rule 8(1) of the DHS Rules, (Allopathy), 2009, being illegal, discriminatory, arbitrary and ultra virus to the Constitution of India;

    2. Direct the respondent No. 1 & 2, to ignore the wrong advise dt. 07.03.2013 of the UPSC and as the decision to relax the rules has already been approved by the Hon'ble L.G., the process of absorption of applicant be completed and applicant be directed to be absorbed under the Delhi Health Services and formal order of absorption of the applicant be passed;

    3. award the costs of proceedings;

    4. any other and further relief as deemed fit and proper by the Hon'ble Tribunal may also be passed.

  4. The applicant in this case joined Haryana Civil Medical Services as a GDMO on 06.04.1996 and came on deputation to Delhi Govt. with effect from 29.11.2004. Earlier also, she had remained on deputation in Delhi Govt. from April 1999 to March 2004. She had applied for this deputation in response to a circular issued by respondent No. 1 inviting applications from Doctors from all the States for appointment on deputation basis.

    The selection was made by a Committee consisting of Principal Secretary (Health & Family Welfare), Medical Superintendent (Lok Nayak Hospital) and Director (Health Services). The deputation of the applicant was extended on yearly basis up to 5th year and a term of deputation for 6th year was also approved by Lt. Governor subject to clearance from DOP&T beyond 5th year. Later it was approved by Ministry of Home Affairs subject to the condition that no further extension of deputation shall be considered. Applicant, in the meanwhile, submitted a representation dated 28.01.2009 with a request for permanent absorption in DHS. On 08.07.2010 the husband of the applicant also submitted a representation in view of the policies of the Govt. of India regarding posting of husband and wife at the same station vide DOPT OM dated 03.04.1986, 12.06.1987 and 30.09.2009. The respondent No. 1 processed his request and also obtained NOC from the parent department of the applicant, i.e., Health Department of Govt. of Haryana. The respondent No. 1 vide letter dated 10.02.2012 to respondent No. 3-UPSC sought relaxation of Rule 8 of DHS Rules, 2009 to consider absorption of Doctors who were on deputation from other State cadres. This was necessitated because as per the DHS Rules 2009 in proviso to Rule 8, it has been stated that with regard to the posts filled up on deputation it shall be open for the Govt. in consultation with the Commission to consider appointment on absorption basis only in the Non-Teaching Specialist Sub-Cadre. There was no provision for absorption of GDMOs on deputation. Rule 16 of the same Rules give powers to the Govt. to relax any of the provisions of the Rules. The LG, Delhi had taken a view that officers on regular appointment in other State Cadres could be absorbed in GNCT of Delhi. Accordingly, vide letter dated 27.12.2012, the respondent No. 1 informed the respondent No. 3 that the respondent No. 1 was considering a proposal to amend Rule 8 of DHS Rules, 2009 to incorporate the provision for absorption of GDMO also within the limit of 5% of the sanctioned posts of GDMOs, by invoking Rule 16 of DHS Rules, 2009 in consultation with UPSC.

    As the amendment in the Rules will take some time, respondent No. 3 was requested again to grant a one time exemption for absorption of GDMOs from other States. Respondent No. 3 vide letter dated 07.03.2013 declined the request stating the following:

  5. The proposal has been examined in the commission. As per Rule 8 of DHS Rules, there is no provision for absorption of Medical Officer in GNCTD. Relaxation cannot be resorted to bringing a new method of recruitment not originally envisaged in the Rules. In the absence of absorption being provided as the mode of recruitment in the R.Rs, no relaxation of the same can be considered.

  6. Mrs. P.K. Gupta, learned counsel for the applicants stated that the proviso to Rule 8(1) of the DHS Rules (Allopathy), 2009 was illegal, discriminatory and arbitrary. Clause (1) of Rule 8 provided for filling of Duty Posts by deputation (including short terms contract). It provided that the grades of Medical Officer in the General Duty Sub-Cadre and Specialist Grade-III in the Non-Teaching Specialist Sub-Cadre could be filled up by deputation up to a level of 5% of duty posts. This did not differentiate between GDMOs and Non-Teaching Specialists. However, in the proviso to the same rule, a distinction has been made between GDMO and Non-Teaching Specialist and enabling provision has been kept for absorption of deputationists in Non-Teaching Specialist Sub-Cadre in consultation with the UPSC. Such a discrimination was totally irrational and violative of the constitutional provisions. The proviso to Rule 8 was not there even in the draft rules prepared by respondent No. 1 for DHS (Dental Surgeon Cadre). It was further submitted that the DHS Rules, 2009 was a replica of the CHS Rules. The only difference being that instead of 5%, the CHS Rules had a provision to fill up 20% of duty posts by deputation without any differentiation between GDMO & Non-teaching Specialists Cadre. Therefore, a deviation from CHS Rules by conferring on the Non-Teaching Specialist cadre with a special privilege and opportunity of absorption was not justified. The learned counsel relying on E.V. Chinnaiah vs. State of A.P. and others, AIR 2005 SC 162 stated that such sub-classification can not be made to leave out a few Sub-Cadres of Medical Officers and absorb a Sub-Cadre of other Medical Officers. The Hon'ble Supreme Court in this case has held:

    The very idea of placing different castes or tribes or group or part...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT