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2023 Supreme(Del) 6026
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Shakdher, Amit Bansal, JJ.
Union of India - Appellant
Versus
Dr. Shailja Saxena - Respondent
W.P.(C) 4731 of 2017, W.P.(C) 4830 of 2017 and W.P.(C) 9348 of 2018
Decided On : 27-09-2023
Mr Ruchir Mishra, Mr Sanjiv Kumar Saxena, Mr Mukesh Kumar Tiwari, Ms Poonam Shukla and Ms Reba Jena Mishra, Advocates, for the Petitioner in W.P.(C) 4731 of 2017, W.P.(C) 4830 of 2017.
Mr. M.K. Bhardwaj, Advocate, for the Respondent in W.P.(C) 4731 of 2017, W.P.(C) 4830 of 2017.
Mr. Rajeshwar Singh, Advocate, for the Respondent in W.P.(C) 4830 of 2017.
Mr.Jaswinder Singh, Advocate, for the Petitioner in W.P.(C) 9348/2018.
Mr.Ashish Mohan and Ms.Sagrika Tanwar, Advocate, for the Respondent in W.P.(C) 9348/2018.
IMPORTANT POINT
The central legal point established in the judgment is the correct interpretation and application of Rule 8 of the Central Health Service Rules, 1996, in the absorption of deputationists, and the consequences of misrepresentation of facts in a judicial proceeding.
Headnote:
Review Petitions - Absorption of Deputationists under Central Health Service Rules, 1996 - Rule 8 - Article 309 of the Constitution of India - W.P.(C) 4731/2017, W.P.(C) 4830/2017, W.P.(C) 3809/2018, W.P.(C) 9348/2018
Fact of the Case:
The review petitions were filed by respondents seeking review and recall of the judgment that set aside the judgments passed by the Central Administrative Tribunal (CAT) in favor of the petitioner Union of India. The main ground for review was the misrepresentation of the method of absorption of the review petitioners under the Central Health Service Rules, 1996.
Finding of the Court:
The court found that the review petitioners were actually absorbed under Rule 8 of the Central Health Service Rules, 1996, and not under Article 309 of the Constitution of India as misrepresented by the petitioner. The court also noted that identically placed persons were given the benefit of entire service for further promotion, and the review petitioners were absorbed even prior to the amendment of Rule 8 in 2006.
Issues: The main issue was the method of absorption of the review petitioners under the Central Health Service Rules, 1996, and the misrepresentation of facts by the petitioner.
Ratio Decidendi: The court's decision was influenced by the fact that the review petitioners were actually absorbed under Rule 8 of the Central Health Service Rules, 1996, and the benefit of entire service for further promotion was given to identically placed persons. The court also considered the absorption of the review petitioners prior to the amendment of Rule 8 in 2006.
Final Decision: The review petitions were allowed, and the judgment dated 2nd March, 2021 was recalled. Consequently, the writ petitions filed by the Union of India were dismissed.
JUDGMENT
Amit Bansal, J.
REVIEW PET. 144/2021 & CM No.30685/2021 in W.P.(C) 4731/2017
REVIEW PET. 143/2021 & CM No.29187/2022 in W.P.(C) 4830/2017
REVIEW PET. 194/2021 in W.P.(C) 3809/2018
REVIEW PET. 116/2021 & CM No.30915/2022 in W.P.(C) 9348/2018
1. The present review petitions have been filed on behalf of the respondents in the writ petitions, seeking review and recall of the judgment dated 2nd March, 2021 whereby, the writ petitions filed on behalf of the petitioner Union of India were allowed and the judgments passed by the Central Administrative Tribunal (CAT) were set aside. Since all the review petitions raise substantially the same grounds, they are being taken up together.
2. Notice in the present review petitions was issued on 10th September, 2021. The replies filed on behalf of the petitioner are on record and both sides have also filed their respective Written Submissions.
3. With the consent of the parties, we have heard the counsels for the parties on the review petitions as well as the main writ petitions.
4. The main ground on which review is sought by the review petitioners is that the petitioner misrepresented the fact that the review petitioners were absorbed under the inherent powers of the Government under Article 309 of the Constitution of India, whereas in fact, the review petitioners were actually absorbed by the Government under Rule 8 of the Central Health Service Rules, 1996 (CHS Rules), as amended by the Central Health Service (Amendment Rules), 2001. In this regard, reference has been made to the minutes of the Appointments Committee of the Cabinet (ACC) of 22nd January, 2010 and the self-contained note of the Ministry of Health and Family Welfare (MoHFW), which were not placed on record by the petitioner when the original writ petitions were heard. The said documents have been filed along with the review petitions.
5. Counsel for the review petitioners submits that identically placed persons namely Dr. Hirabati Naik and Dr. Mridula Sinha, who were absorbed along with the review petitioners in 2010, were given the benefit of entire service for further promotion as Senior Medical Officer (SMO)/Chief Medical Officer (CMO). In the case of Dr. Hirabati Naik, the MoHFW did not even challenge the order passed by the CAT and Dr. Mridula Sinha got the benefit pursuant to the judgment dated 28th July, 2016, passed by the Patna High Court in CWJC 21710/2014 titled Dr. Mridula Sinha v. Union of India, the SLP against which was dismissed by the Supreme Court.
6. Counsel for the review petitioners further submits that in W.P.(C) 3809/2018 and W.P.(C) 9348/2018 the review petitioners were absorbed even prior to the amendment of Rule 8 in 2006, when the Rules permitted for absorption of deputationists.
7. Per contra, counsels appearing for the Union of India submit that there is no error apparent in the judgment dated 2nd March, 2021 passed by this Court. It was submitted that the absorption of the review petitioners was pursuant to the inherent power as at the relevant time of absorption, there was no provision for absorption under the rules. Therefore, review petitioners were treated as direct recruits and consequentially, benefit of past services could not be given to them for the purposes of further promotion.
8. In the self-contained note of the MoHFW, the MoHFW has disagreed with the advice of the UPSC that the review petitioners were not entitled for absorption under the Rules and had placed the matter before the ACC for their approval. In the disagreement note, it has clearly been stated that as per the advertisement, the officers appointed for deputation were also to be considered for absorption as these officers were on deputation and fulfilled the eligibility criteria prior to the date when Rule 8 was amended removing the provisions for absorption. The relevant extracts from the aforesaid note (Annexure RA-24 to the review petition 144/2021) are reproduced hereunder:
"The Ministry sought the advice of the Ministry
