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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
P.R. Ramachandra Menon, CJ. and Parth Prateem Sahu, J.
UNION OF INDIA - Appellant
Versus
BINU MATHEW - Respondent
Writ Petition (S) No. 4667 of 2019, 4899 of 2019
Decided On : 27-02-2020
All India Institute of Medical Sciences Act, 1956 - Administrative Tribunals Act, 1985 - Section 14(3) - Notification issued - Civil Writ Jurisdiction - A common order passed by Central Administrative Tribunal Jabalpur Bench in relevant TAs (Transferred Applications) preferred by private Respondents herein declaring that they are entitled to a Basic Pay + Grade Pay from their date of appointment simultaneously directing arrears including recovery made if any shall be paid within days (without interest) and thus allowing TAs is subjected to challenge in these writ petitions filed by Respondents in TAs - Issue pertains to appointment to post of Assistant Professor (Nursing) in All India Institute of Medical Sciences (AIIMS) Raipur (C-G-) which is a statutory body brought into existence in terms of All India Institute of Medical Sciences Amendment Act 2012 - In fact All India Institute of Medical Sciences was created by Central Government in terms of All India Institute of Medical Sciences Act 1956 – Held, In view of discussion as to obscurity with regard to status of similar post of Assistant Professor (Nursing) if exists in AIIMS (to which post Respondents/Applicants have been appointed as per Annexure-R/4) this Court finds it fit to direct 1st Respondent in T-A- (1st Petitioner herein) to consider above aspects and pass a speaking order after affording an opportunity of hearing to Respondents/Applicants- It is ordered accordingly - This shall be done as expeditiously as possible at any rate within three months from date of receipt of a copy of this judgment - Right of recovery of excess payment if any shall be subject to orders to be passed by 1st Respondent in T-A - Writ petitions stand disposed of
Key Points: - The Tribunal directed the 1st Respondent to consider the status of similar posts and pass a speaking order after hearing, within three months (!) (!) . - The appointment letter (Annexure-R/4) specifies that pay structure shall be as applicable to counterparts in AIIMS, New Delhi (!) (!) . - Clause 18 of the appointment order and Annexure-P/8 undertaking bind the respondent not to insist on selection procedure matters (!) (!) . - The advertisement contained a mistake in pay fixation for Assistant Professor (Nursing), which can be corrected at the earliest (!) (!) . - Recovery of excess payment is subject to orders passed by the 1st Respondent in the Transferred Application (!) (!) . - The respondents are entitled to the full salary and Grade Pay as payable to Assistant Professor (Nursing) in AIIMS, New Delhi (!) (!) . - The Tribunal’s order is set aside as it was not based on merits but on adverse inference (!) (!) . - Minimum pay scales for Assistant Professor and other posts are specified in Annexure-P/5 (!) (!) . - The appointment was made on the basis of higher qualification and experience, warranting corresponding pay (!) (!) . - Writ petitions are disposed of after directing reconsideration on payment and recovery (!) (!) .
JUDGMENT
P. R. Ramachandra Menon, Chief.Justice. - A common order passed by the Central Administrative Tribunal, Jabalpur Bench in the relevant TAs (Transferred Applications) preferred by the private Respondents herein, declaring that they are entitled to a Basic Pay of Rs.30,000 + Grade Pay of Rs.8,000 from their date of appointment, simultaneously directing the arrears including the recovery made, if any, shall be paid within 60 days (without interest) and thus allowing the TAs, is subjected to challenge in these writ petitions filed by the Respondents in the TAs.
2. Writ Petition (S) No. 4667/2019 arising from TA No.203/00004/2018 is treated as the lead case and the parties and proceedings are referred to as mentioned therein, except where it is separately adverted to, with reference to the context.
3. We heard Mr. B. Gopa Kumar, the learned Assistant Solicitor General appearing for the Petitioners and Dr. N.K. Shukla, the learned Senior Counsel for the private Respondents.
4. The issue pertains to appointment to the post of Assistant Professor (Nursing) in the All India Institute of Medical Sciences (AIIMS), Raipur (C.G.), which is a statutory body brought into existence in terms of the All India Institute of Medical Sciences Amendment Act, 2012. In fact, the All India Institute of Medical Sciences, New Delhi was created by the Central Government in terms of the All India Institute of Medical Sciences Act, 1956. Later, the Government felt the necessity to set up 'six' more similar Institutes in different parts of the country in the same line and accordingly, the Act was sought to be amended as per the All India Institute of Medical Sciences (Amendment) Ordinance 2012 notified in the Official Gazette on 13.09.2012, which gave way to the All India Institute of Medical Sciences Amendment Act, 2012, brought into force w.e.f. 16.07.2012. As per the said amendment, similar units were established at Rishikesh, Bhopal, Jodhpur, Patna, Bhuwaneshwar and also at Raipur.
5. In connection with the setting up of the new institute at Raipur, in similar lines as of the AIIMS, New Delhi, Annexure-P/2 Notification dated 28.12.2011 was issued by the 1st Petitioner / Central Government, inviting applications for posts in four different categories; such as Professor, Additional Professor, Associate Professor and Assistant Professor. The dispute is only in relation to appointment of 'Assistant Professor (Nursing)' and as stipulated under paragraph XII 'Qualifications', in respect of Nursing, it shall be as per recommendations of the Nursing Council of India. Under paragraph XIII dealing with 'Experience', in the case of Assistant Professor, it was stipulated that it would be 3 years of Teaching / Research Experience, after Qualifying degree or 3 years as Senior Resident or Equivalent. Under paragraph XIV dealing with the 'Pay', the post of Assistant Professor was to be in 'Pay Band-3' with Rs.15600-39100 with Grade Pay of Rs.8000 with a minimum of Rs.30,000/- + NPA (NPA for medically qualified candidates only); with provision to move to PB-4 after three years (Rs.37400-67000 wrongly typed as 6700) with Grade Pay of Rs.8700.
6. The Respondents, being qualified in all respects and working in different capacities elsewhere, applied for the post of Assistant Professor (Nursing) and on completion of the process of selection, as per Annexure-R/3 dated 31.01.2013, their selection was approved by the Ministry and appropriate direction was given to the Director of the Institute to issue appointment orders to the selected candidates. It was accordingly, that Annexure-R/4 appointment order dated 23.03.2013 came to be issued to the Respondents. On selection and appointment as above, the Respondents in both the cases, who were working elsewhere with rich experience and holding higher level posts, resigned from the said posts considering the better prospects and joined the AIIMS, Raipur on 28.03.2013 and 17.04.2013 respectively and they were drawing the 'Sala
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