Dr. P.N. Shukla vs Union Of India

Dr. P.N. SHUKLA AND OTHERS … Appellant(s)

VERSUS

UNION OF INDIA AND OTHERS … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

1. The present appeal questions the legality of the order1

passed by the High Court2, vide which the orders3 passed by the

Tribunal4 were upheld by the Division Bench of the High Court.

FACTS

2. The appellant No.1 joined the Commission for Scientific and

Technical Terminology5 as a Research Assistant (later redesignated as

Signature Not Verified

Dated 15.07.2011 in Writ Petition (Civil) No.3791 of 2011 Digitally signed 1 by SONIA BHASIN Date: 2023.12.05

High Court of Delhi 2 14:09:14 IST Reason:

3

Dated 01.06.2010 in O.A.No.1762/2010 and Dated 03.08.2010 in Review Application No.203/2010 4 The Central Administrative Tribunal, Principal Bench, New Delhi 5 Hereinafter referred to as ‘CSTT’.

1 Assistant Scientific Officer) on 03.01.1990. The recruitment was made

in terms of the Central Hindi Directorate (Research Assistant)

Recruitment Rules, 19806.

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 Date of Joining Officer/Discipline 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

6

Hereinafter referred to as ‘the 1980 Rules’

2

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 Serial No(s). 3, 5, 6, 8 and 9, respectively, whereas

respondent no.4 was shown at Serial No.13. The name of appellant no.1

was not in the seniority list of Research Assistants as he had already

been promoted to the post of Scientific Officer on 20.05.1997.

8. Vide order dated 20.07.2000, various posts in the CSTT

were redesignated. As a result, the post of Research Assistant was

redesignated as Assistant Scientific Officer, whereas the post of

Assistant Education Officer was redesignated as Scientific Officer.

9. On 18.10.2000, the respondent No.4 submitted

representation for upgradation of his pay-scale. However, the same

was rejected vide order dated 26.06.2001/03.07.2001.

10. On different dates from 2002 to 2006, the appellants No.2 to

6 were promoted as Assistant Scientific Officers.

3

11. On 12.06.2005, the respondent No.4 left CSTT to join as

Ayurvedic Physician, in the Directorate of Indian Systems of Medicine

& Homeopathy, Puducherry. On 06.09.2005, he joined as Medical

Officer (Ayurveda) in the Directorate of Daman and Diu Medical &

Health Services and thereafter on 30.01.2006, he joined the Central

Council for Research in Ayurveda and Siddha7, New Delhi, an

autonomous body. All these posts were in the pay scale of ₹8000-

13500.

12. On 13.12.2006 an order was issued by the Directorate8

upgrading the scale of pay of the respondent No.4 from ₹6500-10500 to

₹8000-13500. In the aforesaid order, reference was made to para 52.33

of the report of the Commission9, which dealt with the pay scales of

doctors. The post of Assistant Scientific Officer (Medicine) was

equated with that of a doctor. Even though the respondent No.4 was not

practising as a doctor in CSTT, he was granted higher pay-scale. He

also got Non-Practising Allowance (‘NPA’). Revision of pay was made

w.e.f. 18.01.1999, i.e., the date of his joining.

13. Immediately after passing of the aforesaid order and

finding that it may be illegal to grant higher pay-scale to one of the

7 Hereinafter referred to as CCRAS.

8 Central Hindi Directorate, Ministry of Human Resource Development, Department of Secondary and Higher Education.

9 Fifth Central Pay Commission Report.

4 officers belonging to the same cadre, governed by the same Rules

another order was passed by the Directorate on 20.04.2007, declaring

the post of Assistant Scientific Officer (Medicine) to be an ex-cadre

post, in view of the grant of upgraded pay-scale to the respondent

No.4.

14. Representations were made by the appellants for grant of

the same pay-scale and perquisites as had been granted to the

respondent No.4, in view of the fact that they were governed by the

same set of Rules and discharging the same duties. As the prayer made

by them was not accepted, an Original Application10 was filed by the

appellants before the Tribunal11. However, the same was permitted to

be withdrawn by the Tribunal on 10.08.2009 with liberty to the

appellants to file a comprehensive representation before the

competent authority.

15. On 04.09.2009 a comprehensive representation was filed

by the appellant No.1, which was rejected by the Chairman, CSTT vide

order dated 04.01.2010, on the ground that the post in-question,

namely, Assistant Scientific Officer (Medicine) had been declared as

an ex-cadre post, thus there could not be any equation of pay-scale.

10 O.A. No.2443 of 2008 11

Central Administrative Tribunal, Principal Bench, New Delhi

5

16. Another application12 was filed by the appellants before the

Tribunal. However, the same was dismissed as withdrawn on

17.03.2010, with liberty to file a fresh application challenging the order

dated 04.01.2010 because the same was not impugned in the aforesaid

application.

17. Yet another Original Application13 was filed by the

appellants impugning the order dated 04.01.2010. The aforesaid

application was dismissed by the Tribunal on 01.06.2010. Thereafter,

the Review Application14 in the same Original Application filed by the

appellants was also dismissed by the Tribunal on 03.08.2010.

18. Being aggrieved, Writ Petition was filed by the appellants

before the High Court. However, the same was dismissed by the

Division Bench of the High Court. The aforesaid order is impugned

before this Court.

ARGUMENTS

19. The argument raised by the learned senior counsel for the

appellants is that the initial recruitment of the appellants as well as the

respondent No.4 was made under the 1980 Rules. It was in terms of the

12 O.A.No.874 of 2010 13 O.A. No.1762 of 2010.

14 R. A.No.203 of 2010 in O.A.1762 of 2010

6 qualifications prescribed in the 1980 Rules. It is not a matter of dispute

that the respondent No.4 was also recruited as a Research Assistant

(later redesignated as Assistant Scientific Officer), just as the

appellants were. It is also not a matter of dispute that all the Assistant

Scientific Officers were discharging the same duties. They had

qualifications in different subjects corresponding to their posts. The

respondent No.4 was not practising medicine. The Commission made

recommendations for revision of pay scales of various categories of

employees working in the Government Sector. Para 52.33 of the report

of the Commission, reliance on which was placed upon by the

Directorate in its order dated 13.12.2006, was pertaining to doctors

working with Indian Systems of Medicine & Homeopathy15. The

respondent No.4 was given parity with General Duty Officer (GDO) of

Central Health Services. In fact, the pay scales of employees working

in CSTT was dealt with in paras 71.15 to 71.17 thereof.

20. It was submitted that the aforesaid order was passed, when

the respondent no.4 was not even in service with CSTT, as he was on

deputation to CCRAS, New Delhi. Immediately, after the aforesaid

order was passed, the respondent No.4 joined back CSTT on

23.01.2007. The Commission recommended grant of parity to

15 Hereinafter referred to as ‘ISM&H’.

7 physicians of ISM&H/GDOs. In fact, they were all working as medical

officers, which had no comparison with the duties being discharged by

the respondent no.4.

21. In support of the argument that the appellants as well as the

respondent No.4 were discharging the same duties and their job

profile was inter-changeable, reference was made to the order dated

08.09.2021 issued by CSTT whereby the respondent No.4 was assigned

the duty to prepare separate glossary in ‘engineering graphics’.

Whereas by the same order, the appellants no.1 to 6 were also

assigned duties to prepare separate glossaries i.e. ‘workshop practice

lab manual’; ‘engineering environmental science’; Physics-1; Physics-

2; ‘programme of problem solving’ and ‘basic electrical engineering’

respectively. Reference was also made to the order dated 01.11.2021

passed by CSTT. The same is extracted below:

Sr. Name Name of the State English- Time No. Hindi- Regional Language

2. Dr.P.N.Shukla, Andhra Pradesh Telugu Will A.D submit Work Progress Report in the last

8 week of every month 3. Shri Mohan Lal Tamil Tamil Veena Nadu/Puducherry -do- A.D. 5. Dr. Ashok N. Punjab Punjabi Selvetkar, -do- A. D. 6. Dr. Brajesh West Bengal Bangla Kumar Singh, -do- A.D. 7. Shri Deepak Orissa Oriya Kumar -do- A.D. 8. Shri Shiv Gujarat Gujarati Kumar -do- Choudhary, A.D.

10. Dr. BhimSen Uttar Pradesh Urdu Behera, Sr. Sc. -do- Officer (Medical Science)

22. On 07.07.2017, an Office Memorandum was issued by the

Department of Expenditure, Ministry of Finance, whereby it was stated

that NPA was to be granted only to the employees holding a clinical

post. It was argued that the illegality in grant of scale especially, the

non-practicing allowance (NPA) granted to the respondent No.4 having

come to the notice of the authorities, an order was passed by Chairman,

CSTT in compliance of the aforesaid OM on 26.07.2017, withdrawing

9 the NPA given to the respondent No. 4 w.e.f. 01.07.2017. Being

aggrieved by the aforesaid order, respondent No. 4 had submitted a

representation to Chairman, CSTT on 27.07.2017, response whereto

was given by the Chairman, CSTT on 21.08.2017. The same was

challenged by the respondent No.4 by filing an Original Application16,

which was dismissed by the Tribunal vide order dated 31.07.2019. The

stand taken by the Government in the aforesaid case was that the

respondent No.4 was working on the post of Senior Scientific Officer

(Medicine) in CSTT and the duties assigned were evolution of

Technical Terminology and related work only and no clinical duties

were assigned to him. As for the doctors working in the Ministry of

Health and Ministry of AYUSH, they were discharging clinical duties

and since they were barred from private practice, NPA was granted to

them. As regards further status of the case, learned counsel for the

respondent No.4 submitted that the same was challenged by filing

W.P.(C) No.12660 of 2019 in the High Court, which was disposed of as

withdrawn vide order dated 15.03.2023 with liberty to the respondent

No.4 to file a representation before the competent authority.

23. In the aforesaid factual matrix, the arguments raised by the

learned senior counsel for the appellants are that the respondent no.4

16 O.A. No.3062 of 2017 10 could not have been taken back in service in CSTT, after he had served

on different posts in various departments in the Directorate of Medical

and Health Services, Daman and Diu, followed by the Directorate of

ISM&H, Puducherry and thereafter in the CCRAS, New Delhi, an

autonomous body, as his lien on the post had already been lost.

Secondly, grant of higher pay-scale to the respondent no.4 was totally

illegal. The post of which the pay-scale was granted to the respondent

No.4, was of doctors, who were discharging clinical duties in hospitals.

The case of the respondent No.4 was not similar. In fact, a wrong

paragraph from the recommendations of the Commission was relied

upon to grant him benefit. Thirdly, one of the officers recruited and

working in the same cadre and governed by the same Rules, was made

ex-cadre without there being any legal justification therefor and

without following the due process of law. Even in the order creating a

separate cadre for the respondent No.4, the only reason assigned was

that he had been granted a higher pay-scale. The prayer made by the

appellants is that the orders passed by the High Court and the Tribunal

be set aside, the prayers made by the appellants in the Application17

filed before the Tribunal be granted and as a consequence thereof,

orders dated 13.12.2006 and 20.04.2007 issued by the Directorate be

17 O.A.No.874 of 2010 11 set aside or in the alternative, the appellants being governed by the

same set of Rules and discharging the same functions, be granted the

same pay-scales and allowances as has been granted to the respondent

No.4.

24. Learned counsel appearing for the Union of India,

submitted that after being selected as an Ayurvedic Physician in

Directorate of ISM&H, Government of Puducherry, in the pay scale of

₹8000-13500, the respondent No.4 was relieved from CSTT w.e.f.

10.06.2005. However, his lien was maintained. After being relieved

from the Directorate of ISM&H, Puducherry on 21.07.2005, respondent

NO. 4 joined back in CSTT on 22.07.2005. He was again relieved on

05.09.2005 as he was selected as a Medical Officer (Ayurveda) in the

Directorate of Daman and Diu, Medical and Health Services in the pay

scale of ₹8000-13500. Even at that time, his lien was maintained in the

CSTT. While in service in the Administration of Daman and Diu, the

respondent no.4 applied for a No Objection Certificate and the same

was granted to him on 18.11.2005 by CSTT to appear in the interview

to be held on 19.11.2005, for the post of Research Officer in CCRAS,

New Delhi. At that time, he was serving with the Administration of

Daman and Diu. After he was selected as a Research Officer in the

CCRAS, he sought permission from CSTT to join CCRAS by 30.01.2006.

12 He was relieved from the post of Medical Officer (Ayurveda) in the

Administration of Daman and Diu w.e.f. 30.01.2006 and on the same day

he joined in CSTT. Further, he was relieved on the same day forenoon

to join as Research Officer in CCRAS in the pay scale of ₹8000-13500.

On the very same day, he made a request for maintenance of his lien in

the CSTT. Pertinently, respondent No.4 got himself relieved from

CCRAS in the afternoon on 17.01.2007 and joined at CSTT on

23.01.2007, in the forenoon.

25. As regards grant of higher pay scale to the respondent

No.4, it was submitted that a representation was made by him relying

upon the recommendations of the Commission with reference to the

qualification held by him and the duties being discharged. The matter

was examined by the competent authority at different levels. It was

granted approval by the Ministry of Finance as well. Considering the

merit in the representation made by the respondent No.4, vide order

dated 13.12.2006, the Directorate granted him the pay scale of ₹8000-

13500 w.e.f. 18.01.1999. Subsequently, considering the fact that there

was some error in the order, a later order was passed by the

Directorate on 20.04.2007, in continuation to the earlier order dated

13.12.2006, as a result whereof the post on which the respondent no.4

was working, was declared ex-cadre. It was submitted that grant of a

13 higher pay scale or declaration of a post as ex cadre could be done by

way of an executive order which was passed with the approval of the

competent authority. Learned counsel further submitted that the post

on which the respondent No.4 is working, or the qualification required

for the same are not equal to the qualifications required for the other

post of Assistant Scientific Officer/Scientific Officer. This was the

reason for grant of a higher pay scale to the respondent No.4.

26. In support of her arguments, learned counsel for the Union

of India relied upon the judgment of this Court in D.S. Parvathamma

v. A. Srinivasan18.

27. On his part, learned counsel for the respondent No.4

referred to the 1980 Rules as amended by the Notification F. No. 2-2/89-

Admn., to Central Hindi Directorate, (Research Assistant) Recruitment

Amendment Rules 1993. He submitted that in the schedule attached to

the 1980 Rules, there are 74 posts of Research Assistants which were

bifurcated as 45 for Hindi, 4 for regional languages, 25 for different

subjects including Medicine. Essential qualifications for different posts

have been prescribed in the aforesaid Rules. For some posts Master’s

Degree in subjects is required, whereas for the post requiring

18 (2003) 4 SCC 705

14 knowledge of engineering, the qualification required is only Diploma.

For the post of Research Assistant (Medicine) degree in integrated

system of Indian Medicine (Bachelor of Indian Medicine & Surgery/

Bachelor of Ayurvedic Medicine & Surgery) or Ayurveda/Pharmacy or

equivalent from a recognized university or board is required. It is only

the post of Research Assistant (Medicine) that a professional degree

was required and that was not so for any other post. Hence, the

argument advanced was that all these posts could not possibly be

equated. As injustice had been caused to the respondent No. 4, it was

corrected.

28. Learned counsel for the respondent No. 4 referred to the

recommendations made by the Commission to submit that the pay

scale to which the respondent No.4 is entitled, has to be the same as

granted to the other officers working with the Central Government,

having the professional qualification of a degree in ISM&H. He further

submitted that the aforesaid recommendations mentioned that in the

Fourth Central Pay Commission, the scale of pay of doctors shall be

taken as ₹2200-4000 and a corresponding pay scale recommended by

the Commission should have been granted to the respondent No.4. In

terms of the Central Civil Services Rules 1997, as per the First

Schedule, Part-A, the corresponding scale of ₹2200-4000 was 8000-

15 13500. A representation dated 18.10.2000 was made by the

respondent No.4 for grant of higher pay scale. The matter was

examined at different levels and finally it was recommended that the

respondent No.4 should be granted the same.

29. Vide order dated 20.07.2000, issued by the Directorate, the

posts of Research Assistant and Assistant Education Officer in the CSTT

were redesignated and upgraded scale of pay was granted. The post

of Research Assistant was redesignated as Assistant Scientific Officer

with pay scale of ₹6500-200-10500; Assistant Education Officer was

redesignated as Scientific Officer with pay scale of ₹7500-250-12000.

Scales were given effect from 01.01.1996. Vide order dated 13.12.2006,

pay scale of ₹8000-13500 was granted to the Assistant Scientific Officer

(Medicine) plus NPA w.e.f. 18.01.1999 as against the existing pay-scale

₹6500-10500. It was specifically mentioned therein that a degree in

ISM&H is an essential qualification for the post of Assistant Scientific

Officer (Medicine). As the respondent No.4 was the only Assistant

Scientific Officer (Medicine) working in CSTT, a copy thereof was

endorsed to him as well.

30. Learned counsel referred to an order of the Directorate

dated 20.04.2007, issued in continuation of the earlier order dated

13.12.2006, clarifying inter-alia that the post of Assistant Scientific

16 Officer (Medicine) in CSTT which was granted the upgraded pay scale

of ₹8000-13500 plus NPA, will be an ex-cadre post.

31. Learned counsel for the respondent no.4 then referred to

the report of the Sixth Central Pay Commission submitted in March

2008 with reference to the post of Assistant Scientific Officer (Medicine)

in CSTT. He pointed out that as there were no promotional avenues for

the post in question, Assured Career Promotion Scheme was

recommended to alleviate the problem of stagnation. The post in

future was recommended to be filled on a contractual basis. It was also

recommended that the administrative machinery may consider

revising the designation of the post appropriately to avoid any

confusion vis-à-vis other similarly designated posts. The

recommendations made by the Sixth Central Pay Commission were

accepted by the Government.

32. Vide two separate Notifications issued by the Ministry of

Human Resource Development dated 17.02.2014, two sets of Rules

were notified by the Government. The first being titled as ‘The

Assistant Scientific Officer (Medicine) Rules, 201419 providing for 24

posts in different subjects with a pay scale of ₹9300-34800 plus Grade

19 Assistant Scientific Officer (Medicine), Commission for Scientific and Technical Terminology, New Delhi, Recruitment Rules, 2014.

17 Pay ₹4600. Vide separate Notification, Rules titled as ‘The Senior

Scientific Officer (Medicine) Rules, 201420 were notified providing for

a single post of Senior Medical Officer (Medicine) in the pay scale

₹15600-39100 plus Grade Pay ₹5400.

33. Learned counsel for the respondent No. 4 further referred

to an order dated 26.08.2013, issued by the Department of Higher

Education, MHRD, Government of India directing redesignation of the

post of Assistant Scientific Officer (Medicine) in the pay scale ₹8000-

13500 plus NPA as that of Senior Scientific Officer (Medicine).

34. In support of his arguments, learned counsel for the

respondent no.4 relied upon the judgments of this Court in A.K. Dass

v. National Federation of Cooperative Sugar Factories Ltd. and

others21, Union of India and others v. M.V. Mohanan Nair22, and

Punjab State Power Corporation Limited and another v. Bal

Krishan Sharma and others23.

35. In response, learned senior counsel for the appellants

submitted that para 52 of the recommendations made by the

Commission pertained to the officers possessing a degree in ISM&H

20 Senior Scientific Officer (Medicine), Commission for Scientific and Technical Terminology, New Delhi, Recruitment Rules, 2014.

21 (1994) 2 SCC 520.

22 (2020) 5 SCC 421.

23 (2022) 1 SCC 322

18 and working with the Ministry of Health and Family Welfare on Group

‘B’ and ‘C’ posts. Respondent No.4 may have the same qualification, but

he was not in the Health Department, practicing as a doctor. She further

submitted that before the representation made by the respondent No.4

was accepted, earlier thereto, similar representations made by him

were rejected. She further referred to the stand taken by the Union of

India before the Tribunal in a challenge made by the respondent No.4

to the withdrawal of non-practicing allowance granted to him earlier.

It was stated that the respondent No.4 is not governed by the (Senior

Scientific Officer (Medicine), Commission for Scientific and Technical

Terminology, New Delhi, Recruitment Rules, 2014) as those Rules are

meant for fresh direct recruitment. Further, the stand was that the

Office Memorandum dated 07.07.2017 is not applicable to the

respondent No. 4 and therefore, the subsequent order of the Chairman,

CSTT dated 26.07.2017 withdrawing NPA granted to the respondent

No. 4 was non-est in the eyes of law. She referred to the judgment of

this Court in Ajit Kumar Bhuyan and others v. Debajit Das and

others24, in support of her arguments.

36. We have heard learned counsel for the parties and perused

the relevant referred record.

24

(2019) 12 SCC 275

19

37. Before we proceed to deal with the respective arguments

raised by learned counsel for the parties, we deem it appropriate to

sum up the facts of the case in a chronological order.

37.1 The appellants No.2 to 6 joined CSTT as Research Assistants

on various dates as detailed below:

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

20 the respondent No. 4 for upgradation

of his pay were also rejected.

37.5 08.06.2005 Respondent No. 4 was relieved by the

CSTT to enable him to join the

Directorate of ISM&H, Puducherry as

a Ayurvedic Physician.

37.6 12.6.2005 Respondent No. 4 joined the

Directorate of ISM&H, Puducherry as

a Ayurvedic Physician in the pay

scale of 8000-275-13500.

37.7 21.07.2005 Respondent No.4 was relieved by the

Directorate of ISM&H, Puduchery.

37.8 22.07.2005 Respondent No. 4 joined back in

CSTT, Delhi.

37.9 05.09.2005 Respondent No. 4 was relieved by the

CSTT, Delhi.

37.10 06.09.2005 Respondent No. 4 joined as a Medical

Officer (Ayurveda) in the Directorate

of Daman & Diu, Medical and Health

Services in the pay scale of ₹8000-

275-13500.

21 37.11 28.01.2006 Respondent No. 4 was relieved by the

Directorate of Daman & Diu, Medical

& Health Services as Medical Officer

(Ayurveda) in the pay scale of 8000-

275-13500.

37.12 30.01.2006. Respondent No. 4 rejoined CSTT,

Delhi.

On the same day, respondent No. 4

was relieved by the CSTT and he

joined CCRAS, Delhi as a Research

Officer (Ayurveda) in the afternoon

in the pay scale of 8000-275-13500.

37.13 13.12.2006 Upgradation of pay was granted to

the respondent No. 4. w.e.f.

18.01.1999. The pay scale of the

respondent No. 4 was upgraded from

6,500-10,500 to 8,000-13,500 plus

NPA.

37.14 17.01.2007 Respondent No. 4 was relieved from

the CCRAS, Delhi.

37.15 23.01.2007 Respondent No. 4 joined the CCST as

22 Assistant Scientific Officer

(Medicine).

37.16 20.04.2007 Post of Assistant Scientific Officer

(Medicine) was declared as an ex-

cadre post.

37.17 14.08.2008 Representation was made by the

appellants for grant of the same pay

scale as was granted to the

respondent No. 4, as they belonged

to the same cadre.

37.18 2008 The representation filed by the

appellants was not accepted. OA No.

2443 of 2008 was filed by the

appellants seeking direction to the

official respondents for grant of the

same pay scale, as was granted to the

respondent No. 4.

37.19 10.08.2009 The OA filed by the appellants was

withdrawn with liberty to them to file

a representation before the

competent authority.

23 37.20 04.09.2009 A comprehensive representation was

made by the appellant No. 1.

OA No. 874 of 2010 was filed by the

appellants.

37.21 04.01.2010 The aforesaid representation was

rejected stating that the post of the

respondent No. 4 had been declared

as an ex-cadre post, hence, equation

of pay is not possible.

37.22 17.03.2010. The aforesaid OA was dismissed as

withdrawn with liberty to the

appellants to file a fresh application

challenging the order dated

04.01.2010.

37.23 2010 OA No. 1762 of 2010 was filed by the

appellants impugning the order

dated 4.01.2010.

37.24 01.06.2010 The aforesaid OA was dismissed by

the Tribunal.

37.25 03.08.2010 Review Application No. 203 of 2010

24 against the order of the Tribunal

dated 01.06.2010 was also dismissed.

37.26 17.05.2011 A writ petition was filed before the

High Court of Delhi challenging the

orders dated 01.06.2010 and

03.08.2010.

37.27 15.07.2011 The said writ petition was dismissed

by the High Court. It is the aforesaid

order that has been impugned before

this Court.

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.

25 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 [re-

26 designated 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

27 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 52.32. The Tikku Committee & Homoeo Medical Service recommended a separate organised

28 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

29 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 Rs.4500-5700 - Medical Officer (Selection Grade) 2nd ACP Chief Rs.3700-5000 4 yrs. Medical Officer 1st ACP Senior Rs.3000-4500 5 yrs. Medical Officer Entry Medical Rs.2200-4000 4 yrs. Officer

Career progression beyond the selection

grade will continue to be based on

30 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

31 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 71.15 The main task of the Commission functions 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

32 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 71.16. We feel that the cadre structure of Recommendations CSTT 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

33 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 71.17 The cadre of research posts in the Directorate 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

34 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.

35

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.

36

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

37 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,

25 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.

38 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 re-

designated 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

39 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

40 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.

41

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

42 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.

43