The main legal point established in the judgment is that the absorption of deputationists in the CHS was as direct recruits, and their past service in their parent cadre could not be counted for the purposes of qualifying service for promotion in CHS.

JUDGMENT

Rajiv Sahai Endlaw, J. - All the four petitions though impugn the separate orders of Central Administrative Tribunal (CAT), Principal Bench, New Delhi in separate OAs preferred by each of the respondent, all now in the General Duty subcadre of the Central Health Services (CHS), but each order directs the petitioner Ministry of Health and Family Welfare, Union of India, to count the past service of each of the respondent as qualifying service for the purposes of promotions, post absorption in the CHS.

2. The petitions were entertained and notice thereof ordered to be issued.

3. We have heard the counsels for the petitioners and the counsels for the respondents.

4. The Central Health Service Rules 1996, in Rule 3 provide for composition of service, in Rule 4, the authorised strength of service, in Rule 5, the members of the service, in Rule 6, the initial constitution of the service and in Rule 7, for the filling up of future vacancies in the service. Rule 7 refers to Schedule II and III to the Rules and which inter alia provide for method of recruitment, the field of selection for promotion including the minimum qualifying service in the immediate lower grade or grades for appointment or promotion to the posts in the respective sub-cadre and specialties within the sub-cadre concerned included in the service. In Schedule III, the method of recruitment, in the General Duty sub-cadre posts of Medical Officer is by direct recruitment on the basis of a written examination and the method of recruitment of the next higher posts of Senior Medical Officer, Chief Medical Officer and Chief Medical Officer (Non-Functional Selection Grade) is by promotion from the immediately lower cadre post, with the prescribed qualifying service. Thereafter, Rule 8 provides as under:

"8. Filling of Duty Posts by Transfer on Deputation (including short term contract):

(1) Notwithstanding anything contained in rule 7, where the Government is of the opinion that it is necessary or expedient so to do, it may for reasons to be recorded in writing and in consultation with the Commission, fill not more than twenty duty posts in all, in the grades of Medical Officer/Senior Medical Officer in General Duty Sub-Cadre and Specialist Grade II (Junior Scale) in the Non-Teaching Specialist SubCadre and Public Health Sub-Cadre by transfer on deputation of suitable officers holding analogous posts under the Central Government (including Ministries of Railways and Defence)/State Governments/Union Territories and by Short Term Contract of suitable-officers holding analogous posts under the statutory bodies, autonomous bodies, semigovernment organisations, universities or recognised Research Institutions.

(2) The period of deputation/contract shall be for a period not exceeding three years, which may, in special circumstances be extended upto five years, as the Government may think fit."

The aforesaid Rule, though provides for appointment by transfer/deputation, to the General Duty Medical sub-cadre posts, inter alia from State Governments but only for a maximum period of five years and does not provide for absorption of deputationists in the General Duty Medical sub-cadre posts of CHS, which could only be by direct recruitment.

5. However vide Central Health Service (Amendment Rules), 2001, notified on 30th July, 2001, in place of Rule 8 aforesaid, the following rule was substituted:

"8. Filling of duty posts by deputation (including short term contract)/absorption:

(1) Notwithstanding anything contained in the rule 7, where the Government is of the opinion that it is necessary or expedient so to do, it may for the reasons to be recorded in writing and in consultation with the Commission, fill not more than one hundred duty posts in all, in the grades of Medical Officer or Senior Medical Officer or Chief Medical Officer in the General Duty Medical Officer sub cadre and Specialist Grade II (Junior and Senior Scale) or Specialist Grade I in the NonTeaching and Public Health