VIJAY DHANKAR Vs. CHIEF SECRETARY, GOVT. OF NCT OF DELHI 9TH FLOOR, A-WING, DELHI SECRETARIAT, I.P.ESTATE, NEW DELHI

JUDGEMENT

(1.) All the above OAs involved the same controversy, have been instituted in order to challenge the validity of Rule 6(2) of Delhi Health Service Rules, 2009. OA No. 1453/2010 and OA No. 1048/2010 have been instituted in order to challenge the provisions of Rule 6(2) regarding inclusion of ad hoc/contractual appointed doctors in different government hospitals because it has been mentioned in Rule 6(2) that the doctors, who were appointed on or before 18.12.2006, will form the constitution of the cadre and these applicants -doctors were appointed in the Central Health Services cadre after conducting due process of selection by the UPSC; whereas ad hoc/contract doctors were appointed by Government of NCT of Delhi without following the normal procedure through UPSC. OA No. 1259/2011, OA No. 1209/2011 and OA No. 3936/2011 have been instituted by ad hoc/contract doctors appointed after 18.12.2006 and prior to 23.12.2009. Hence with the consent of the parties, and in order to avoid repetition and avoid conflicting orders, all OAs are decided by a common order.

(2.) The applicants of OA No. 1453 and OA No. 1048/2010 have instituted the OAs for the following reliefs: -

(3.) Pleadings of the parties may be summarized as follows: - It has been alleged by the applicants that they are qualified MBBS, MD in different fields. That they have joined the Central Health Services (hereinafter referred to as CHS) a Group A service consisting of four Sub -Cadres viz. Teaching Specialist Sub -Cadre, Non Teaching Specialist Sub -Cadre, Public Health Sub -Cadre and General Duty Medical Officer Sub -Cadre, in 2001, 1999 and 2007 respectively. That they were appointed fulfilling all the essential eligibility conditions of Non Teaching Specialist Sub -Cadre and they are posted at present as Specialists in different hospitals. Government of NCT of Delhi is a participating unit in the CHS and the applicants are posted with the Govt. of NCT of Delhi. Government of NCT of Delhi does not have a Group A service of its own and as such the CHS officials are posted in Delhi. Despite the services of the applicants placed at the disposal of GNCT of Delhi, applicants continue to remain under the administrative control of the Ministry of Health and Family Welfare which is the cadre controlling authority for the applicants and other similarly placed doctors working in CHS. The Gazette Notification dated 8.10.1996 was notified wherein Govt. of NCT of Delhi is shown as a participating unit and the said notification is at Annexure A -2. That the applicants by virtue of their post -graduate qualification and three years requisite experience were eligible for the post of Non -Teaching Specialists. They wanted to become Non -Teaching Specialists with the Government earlier also but were denied opportunity since the appointments being made by GNCT of Delhi were only ad hoc/contractual appointments. That the ad hoc/contractual appointments have no legal right for regularization and this legal position has always discouraged them to join the post in Non -Teaching Specialists Sub -Cadre. The applicants have earlier been selected for ad hoc/contractual appointments as Specialist by the GNCT of Delhi but due to their regular appointment through UPSC in the CHS as Medical Officer (GDMO Sub -Cadre) they were deprived of the appointment being casual in nature and in this manner, the applicants have been denied grooming up their career as Non -Teaching Specialist. Under the Rule 6(2), the respondents shall be regularizing contractual Medical Officers also on the post of Junior Specialist. The mala fide intention has clearly evident from the orders of appointment issued in few cases where appointment to the post of Medical Officer has been made of doctors having P.G. qualification as Jr. Specialist. That after the grant of Semi -Statehood to Delhi Administration in the year 1992, GNCT of Delhi started appointing certain doctors as Medical Officers on contract basis on a consolidated monthly pay, without insisting them to undergo the prescribed selection process through UPSC. Simultaneously, GNCT of Delhi stopped getting these newly created posts encadered with CHS. If the newly created posts are not encadered the cadre controlling authority could not request the UPSC to select the candidates suitable for appointment against these posts. And in these circumstances, on the one hand, GNCT of Delhi continued to create new posts as per requirement and also continued to fill those on contract basis on the other hand on the premise that regular selections take a lot of time. Slowly the number of such contractual doctors has increased and these are reasons for creation of DHS. The CHS consists of four Sub -Cadres whereas DHS is being proposed for two cadres only i.e. Non Teaching Specialist Cadre and General Duty Medical Officer. The respondents No. 1 to 3 alone can explain the reason behind this action. The GNCT of Delhi continued recruiting contractual doctors in direct contrast to the Government of India, Ministry of DOPT OM dated 23.7.2001. The OM clearly directed that no appointment shall be made on ad hoc basis by direct recruitment from open market and where the vacant posts cannot be kept vacant for functional consideration. The appointment of such officers was also without following the due process and with an understanding and stipulation that such a service would not confer to them either any right of regular appointment or seniority to be reckoned from the aforesaid date. The respondents No.1 to 3 have never sought any concurrence from DOP&T. The method of recruitment adopted when a vacancy arisen is on either ad hoc or contract basis without any referral to the UPSC. The first batch of contract/ad hoc specialists was appointed without any requisite experience and eligibility conditions. There were no existing notified recruitment rules for the posts of Specialists and GDMO, Govt. of NCT of Delhi. A reference was made to the UPSC. The GNCT of Dehi being only a Union Territory did not have power to recruit Group A service. A letter was also written in this connection by the Ministry of Health & Family Welfare -respondent to the Principal Secretary (Health), Govt. of NCT of Delhi. That the ad hoc/contractual appointments were made without consultation with the UPSC and these recruitment are dehors the rules and GNCT of Delhi allowed the posts to accumulate thus the contractual doctors have grown manifold. That on 13.11.2006, a Cabinet meeting of GNCT of Delhi took place and the Cabinet approved the recommendation of respondent No.3 and decided to formulate the new service known as Delhi Health Service. The decision of Govt. of NCT of Delhi dated 13.11.2006 is annexed as Annexure A -6. The initial methodology adopted was not to repatriate or to surrender the CHS officers who have been functioning in Govt. of Delhi but they were offered to exercise option to be a part of new service and at the same time appointment on contract/ad hoc basis from 1995 onwards shall be a part of the DHS, and in this connection, a decision was taken. It was also decided that future management of the new service Ministry will not fill up the vacant posts of GDMO teaching and non -specialist cadre instead transfer the vacant post to the cadre proposed for Delhi was agreed upon. And in this connection, the judgment of the Honble Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1. It was not clarified before the Cabinet of Delhi that respondent No.4, cadre controlling authority, has taken a decision to de -cadre the CHS posts. Vide OM dated 18.12.2006, Allopathic system of medicine has been constituted DHS -a new Group A Service. It was also inter alia notified that GNCT of Delhi has decided to seek option from members of CHS who were appointed on the basis of Combined Medical Services Examination held by UPSC. And it was also notified that officers who intend to remain in CHS are liable to be posted anywhere in India. Vide Gazette Notification dated 23.12.2009, the Delhi Health Service (Allopathy) Rules 2009 were notified in the Delhi Gazette. Annexure A -10 is the copy of the notification and the public notice was also issued in national dailies. Earlier numerous cases were filed by ad hoc/casual/contractual doctors that they may be regularized, but the Tribunal had not accepted the claim for regularization and the Tribunal recorded a finding that these were backdoor entries and they may be entitled for regular appointments as per rules and not for regularization. Although Tribunal awarded regular scales and restrained the Government to dispense with their service till regular appointee joins. The doctors, who were appointed in casual/ad hoc basis, were without facing an open competition and without any recruitment drive by the UPSC, and now the Tribunal had already dismissed their plea for regularization but the Govt. of NCT of Delhi are inducting such doctors through backdoor method in the DHS -a new Service. It is provided in Rule 6(1) that all Non Teaching Specialists appointed under the CHS Rules 1996 and working with the GNCT of Delhi as on the date of publication of said rules and who opt to be a part of the service shall be deemed to have been appointed as Non Teaching Specialists in the Delhi Health Service. As per Rule 6(2), all such ad hoc/(contractual appointees till 18.12.2006 shall also form part of initial constitution. They are merely to be assessed by UPSC for the purposes of suitability and it is absolutely illegal. That the direct recruitment was made by illegal appointment under initial constitution. At the time of appointment on ad hoc/contractual basis, there was no stipulation of promotion that such contractual appointments would be regularized. These appointments were made with the stipulation that these appointments were only for a specific period conferring no right for regularization and were to be continued till regular appointee joins. The State is under no obligation to include such contractual appointment for initial constitution of the service and all the posts must be advertised. In view of Article 320 of the Constitution, it is the constitutional duty of UPSC to conduct the examination for appointments to the public service of State. Assessment in regard to suitability is not compliance that the respondents are going to make the rules against the provisions of law and judgment of the Hon ble Supreme Court. Hence, these deserve to be quashed so far as relates to Rule 6(2) of Delhi Health Service (Allopathic) Rules 2009.