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PETITIONER: DR. V.P. MALIK AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT08/12/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K.

CITATION:  1996 AIR 1048            1996 SCC  (1) 454  JT 1995 (9)   182        1995 SCALE  (6)774

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA, J.      The petitioners  are members of the teaching specialist sub-cadra of  the Central  Health Service under the Ministry of Health  and Family  Welfare. They are engaged in teaching and doing  clinical work in Lady Harding Medical College and associate hospitals  at New Delhi. Their grievances are that the  Tikoo  Committee  Report  which  recommended  that  the teaching specialists  should  be  placed  in  the  grade  of Rs.4,500-5,700/- after  four years  of the  granting of  the scale  of   Rs.3,700-5,000/-  and  distinction  between  the functional grade  and non-functional  grade may be done away with and  promotion be made to the grade of Rs.4,500-5,700/- on  a   time  bound  basis  on  completion  of  8  years  as specialists have  not been  implemented from the date of the submission of  the report  (31.10.1990), but from 1.12.1991, which date  according to  the petitioners  is arbitrary  and would have adverse effect on seniority of some. The stand of the Ministry,  however, is  that as  the  Office  Memorandum could be  issued only on November 14, 1991 incorporating the decisions  of   the  Government   relating  to  the  various recommendations of  the  Committee,  the  benefit  was  made available from  the first  day of  the  ensuing  month  i.e. December, 1991.      2.   Dr. Singhvi,  learned counsel  appearing  for  the petitioners,  strenuously   contended  that   the  delay  in implementing the  recommendation has  not only  deprived the petitioners of  the financial benefit, but has also affected their seniority  inasmuch as  the higher  scale of Rs.4,500- 5,700/- is  meant for Professors; and so, if that would have been given  from 31.10.1990, the petitioners would have been deemed  to  have  become  Professors  from  that  date.  The postponing of  the date  to 1.12.1991 has thus postponed the date  of   acquiring  the   status  of   Professor  by   the petitioners, all of whom were, earlier to that date, holding

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the post  of Associate  Professor. It  is contended that the scale of  Rs.4,500-5,700/- being  meant only  for Professors and the  Tikoo Committee  having recommended to do away with the  distinction  between  the  functional  grade  and  non- functional grade  and having  also recommended for promotion to the  grade of  Rs.4,500-5,700/- on  the completion  of  4 Years of  service for which period petitioners had served by 31.10.1990, the  giving of  the grade  w.e.f. 1.12.1991  has injuriously affected  the petitioners both in terms of money and service  prospect. This  being for  no good  reason, the decision to  make available the aforesaid pay from 1.12.1991 has to be regarded as arbitrary. 3.   Shri  Goswami,   learned  counsel   appearing  for  the Ministry of  Health, contends that as the recommendations of the Tikoo  Committee had  even to be considered by the Union Cabinet, the  time lag  has to  be regarded as justified and the benefit having been made available from the first day of the next  month in  which the Office Memorandum spelling out the decisions of the Government was issued, the petitioners’ aforesaid two  grievances have  no merit.  It has  also been submitted  that   the  petitioners’   grievance  qua   their seniority cannot be heard in this petition inasmuch as those who  would  be  adversely  affected,  if  the  case  of  the petitioners were to be accepted, are not before the Court. 4.   There is  enough  merit  in  the  stand  taken  by  the Ministry of  Health inasmuch  as what  has been contained in the Tikoo Committee Report being recommendatory in nature, a decision  was   required  to   be   taken   which   of   the recommendations could  be accepted  and which  not.  As  the final  decision  was  taken  within  about  a  year  of  the submission of  report, we  would not  regard  the  time  lag unjustified,  because  the  recommendations  being  many  in number involving  huge financial  implications  and  needing sorting out  of some  service problems,  the period of about one year  taken to  finally come  to a  decision has  to  be regarded as reasonable. 5.   As to  whether the fixation of the date (1.12.1991) can be regarded  as arbitrary, it may be stated that fixation of a cut-off  date can  be so  regarded by court if the same be one about  which it can be said that it has been "picked out from a  hat", as  stated by this Court in D.R. Nim vs. Union of India,  1967 (2)  SCR 325. A Bench of this Court to which one of us (Hansaria,J.) was a party examined the question of fixation of  cut-off date on the touchstone of Article 14 in Union of  India vs.  Sudhir Kumar Jaiswal, 1994 (4) SCC 212. In that  case the case of D.R. Nim (supra) was noted in para 4, followed  by reference  to other  important decisions  on this aspect  in paras 5 to 7. We do not propose to reiterate what was  stated in  Jaiswal’s case.  It would  be enough to point out  that the  observation of  Holmes, J in Louisville Gas and  Electric Company vs. Clell Coleman, 277 US 32, that a choice  of cut-off  date can  be interfered  with  if  the fixation be  "very wide  of any  reasonable mark"  was cited with  approval   by  this   Court  in  Union  of  India  vs. Parmeswaran Match  Works, 1975(1)SCC  305.  It  was  further added that  a choice of date * be dubbed as arbitrary unless it  is   shown  to   be  capricious   or  whimsical  in  the circumstances. 6.   In the  present case,  the date (1.12.1991) having been fixed because  of the  issuance  of  the  Office  Memorandum containing the  decisions of  the Government  on  the  Tikoo Committee recommendations on 14.11.1991, the cut-off date of 1.12.1991 is  far from arbitrary and whimsical; it is really reasonable. It  has not  been picked  out from a hat, but is founded on logic.

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7.   In the  additional written  submissions filed on behalf of the  petitioners on  November 29, 1995, another grievance made is  that the  fixing of  cut-off date  as 1.12.1991 has resulted in  discrimination between  officers  of  the  same grade in  that those  juniors to  the petitioners  who  were considered  for   promotion  after   1.12.1991  got   it  on completing  8   years  of   combined  service  as  Assistant Professor and Associate Professor, while the seniors who got promoted to  the "Non-Functional  Selection Grade"  and were re-designated as  Professors with  effect from 1.12.1991 are being treated  differently  and  in  most  cases  would  get promotion to the post of Professor after serving much longer in the  feeder grade.  This result  is not  really likely to follow, because  as submitted  in the written submissions on behalf of the respondents, promotion as a matter of rule can be effective only from a prospective date. This apart, those of the  juniors who  were promoted after the issuance of the Office Memorandum  of November 14, 1991 cannot steal a march over the  earlier promotes because of the order passed in IA No.4 of  1993 on  17.10.1994 stating that any promotion made during the  pendency of  the writ  petition in  the teaching sub-cadre will  abide by  the result  of the petitioners. It also deserves  to be  pointed out that the recommendation of the Tikoo  Committee for placing of the teaching specialists in the  grade of  Rs.4,500-5,700/-, is  more beneficial than the one  which was  part of  the Memorandum  of  Settlement, according to  which, Associate  Professor in  the  scale  of Rs.3,700-5,000/- was  to be placed in the scale of Rs.4,500- 5,700/- on  completion of  6 years  of  regular  service  as Associate Professor  or 8  years  of  combined  services  as Assistant Professor  and  Associate  Professor.  It  may  be stated that  the Tikoo  Committee also recommended promotion to the grade of Rs.4,500-5,700/- on completion of 8 years of service as  specialist. It has been clarified in the written submissions of  the respondents  that  service  as  lecturer cannot to be taken in account in this regard. 8.   The discrimination about which mention has been made in the additional  written submissions  thus seems  to be  more imaginary than  real. In  any case,  the aforesaid  order of 17.10.1994 adequately takes care of the apprehension. 9.   In the  aforesaid premises the grievances raised by the petitioners are  unfounded. The writ petition is, therefore, dismissed; but without cost.