UNION OF INDIA Vs. SAVITRI AGGARWAL

JUDGEMENT

(1.) The question of law in this and the connected Letters Patent Appeal No. 28 ol' 1969 is whether the services of the common Respondent No. 1 Dr. (Mrs) Savitri Aggarwal could be validly tenninated from the post of Medical Superintendent, Victoria Zanana Hospital by the Central Government (hereinafter called the Government) alone, (appellant herein) as held by the learned Single Judge in the order appealed against or whether they could be terminated by t-he Municipal Corporation of Delhi (hereinafter called the Corporation) appellant in L.P.A. 28 of 1969. as contended by both the appellants.

(2.) The answer to this question is plainly in favour of the former alterantive and the only difficulty in giving it has arisen from an unfortunate divorce of law from fact and a conflict between status and contract. Let us first look at the legal provisions relating to the post and the status of the incumbent theirof. The Victoria Zanana Hospital is managed by the Delhi Municipal Corporation. The appointments to the posts under the Corporation are regulated by the provisions of Chapter VI of the Delhi Municipal Corporation Act. 1957. Under section 90 of the said Act the Standing Committee has to prepare TWO schedules of posts setting forth the designations of municipal officers and other municipal employees who should be maintained permanently in the service of the Corporation indicating therein the salaries, fees and allowances which are proposed to be paid to such officers and other employees. In the first schedule arc included posts with a minimum salary of not less than Rs. 350.00 per month. The Corporation has to sanction the schedule of posts and it is only thereafter that appointments to the said posts could be made by the Corporation linder section 92 of the Act. The post of Medical Superintendent. Victoria Zanana Hospital is a permanent one and the appointment of the Medical Superintendent thereto would, therefore, have been made by the Corporation after the inclusion of the post in the first schedule- and the sanction of the first schedule and the post by the Corporation, In 1963, however, the Central Government formed Central Health Service by promulgating the Central Health Service Rules, 1963- G.S.R. 787 dated 1-5-1963-under the proviso to Article 309 of the Constitution. The duty posts included in the Service were enumerated and classified in the First Schedule to the Rules. Part A. of the First Schedule enumerated the posts under the Central Government proper while Part B of the Schedule enumerated the deputation posts which existed under bodies other than the Central Government proper. These posts were called "deputation posts" because the officers of the Central Health Service would be deputed under authorities other than the Central Government to work in these deputation posts in which they would work under these authorities and would be paid by them. As contrasted with the officers of Central Health Service working in the duty posts included in Part A of the First Schedule, the officers occupying the deputation posts in Pari B thereof would not be working directly under the Government. Several posts in hospitals managed by the Corporation find place in Part U of the First Schedule including the post of Medical Superintendent. Victoria Zenana Hospital which is in the ji.inior scale category of Rs. 425-950 per month. Some other posts of the Corporation were included in the senior scale category C of Rs. 675-1300 per month in Part B of the First Schedule. The posts included both in categories C and D were Class I posts. Had these deputation posts not been included in the Central Health Service cadre then the officers of the C-.;iitral Flealth Service would have to be sent to man these posts on the ordinary deputation terms such as payment of deputation allowance for working on foreign, service. The initiative to borrow the Central Health Service officers would then have been with the Corporation. By inclusion of these posts in the Central Health Service cadre, however. the posts themselves became deputation posts to be manned exclusively by the officers of the Central Health Service. The Central Health Service is one of the Central Civil Services and as such governed by the Central Civil Services (Classification, Control & Appeal) Rules, 1957 and 1965 [hereinafter called the CCS (CCA) Rules of 1957 and 1965 respectively. According to rule 10 of the CCS (CCA) Rules of 1957 and rule 8 of the CCS (CCA) Rules of 1965, all appointments to Central Civil Services, Class I, and Central Civil posts, Class I, shall be made by the President. The Second Schedule to the Centra! Health Service Rules, 1963 required direct recruitment to I he posts in the Central Heatith Service cadre to be made through the Union Public Service Commission.

(3.) With the inclusion of the post of the Medical Superintendent, Victoria Zanana Hospital and many other posts of the Corporation in the Central Health Service cadre, these posts were taken out of the First Schedule of posts under the Corporation sanctioned by the Corporation under section 90 of the Corporation Act. Consequently the Corporation ceased to have any power to make the appointment of Medical Superintendent, Victoria Zanana Hospital under section 92 as the power thereunder is limited to the posts inculded in the First Schedule and sanctioned by the Corporation. The power to make the appointment vested in the President since the promulgation of the Central Health Service Rules, 1963. The Central Health Service and the posts included therein were "service" and "posts in connection with the affairs of the Union" within the meaning of the proviso to Article 309 of the Constitution. The members of the Service and the incumbents of the posts included in it would, therefore, be "members of a Civil Service of the Union" within the meaning of Articles 310 and 311 of the Constitution. Under section 16 of the General Clauses Act. 1897, the authority who has power to make an appointment is presumed also to have the power to dismiss any person so appointed. According to the legal position stated above, therefore, the President alone had the power to appoint Dr. (Mrs) Savitri Aggarwal to the post of Medical Superintendent, Victoria Zanana Hospital and to terminate her services from that post.