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PETITIONER: JOINT ACTION COUNCILOF SERVICE DOCTORSORGANIZATIONS ETC.ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT14/12/1995

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

CITATION:  1996 SCC  (7) 256        JT 1995 (9)   142  1995 SCALE  (7)224

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA, J.      The petitioner  is basically  an association of Service Doctors who  are about 10,000 in number, of whom about 4,500 are members  of Central  Health  Service.  This  Service  is divided into  four sub-cadres  : (1)  General  Duty  Medical Officers;  (2)   Specialist  non-teaching;   (3)  Specialist teaching and (4) Public Health. 2.   The Service Doctors have been agitating, soon after the recommendations of  the IVth Central Pay Commission in 1986, about  cadre  review.  To  give  teeth  to  the  agitational programme,  a   Joint  Action  Council  of  Service  Doctors Organizations was  formed,  which  body  is  the  petitioner herein. A  delegation of  this body  had gone  on indefinite strike in  July 1987,  after they felt dissatisfied with the working etc., of the High Power Committee which had been set up in  the wake of the unsatisfactory recommendations of the IVth  Pay   Commission.  A  package  of  benefits  was  then announced by the Health Ministry which included some interim reliefs. As  these benefits  were not  implemented,  further agitation was  launched, which  ended  in  a  Memorandum  of settlement of  21.8.1989. One of the terms of the settlement was setting up of a high power committee, which was notified in  February,  1990.  Constitution  of  this  Committee  was changed in  May,  1990.  Shri  R.K.  Tikoo,  Secretary  (Co- ordination)  in   the  Cabinet  Secretariat,  was  made  the Chairman and the terms of the reference were approved by the Cabinet.  The   Committee  deliberated   on  the  terms  and submitted its report on 31st October, 1990. The present writ petition was filed on 3rd April, 1991 as the recommendations had not been fully implemented. 3.   The grievance  of the  petitioner is that, not to speak of not  implementing all  the recommendations  of the  Tikoo Committee, some  of the terms incorporated in the Memorandum of  Settlement   are  yet  to  be  fully  implemented.  Some

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grievance has  also been  made about  non-implementation  of what has been described as 1987 Package Deal. Grievances relating to 1987 Package Deal : ------------------------------------------ 4.   The grievances on this aspect are three fold : (1) non- inclusion   of    Non-Practicing   Allowance   (NPA)   while determining entitlement  for residential  accommodation; (2) non-creation of  required number  of posts  of Chief Medical Officer, pay  scale for  which was  agreed to  be  Rs.3,700- 5,000/- ; and (3) non-giving of scale of Rs.4,500-5,700/- to the Associate  Professors  on  completion  of  the  required period of service. 5.   The case  of the  Union of  India regarding  the  first grievance is  that the  NPA is  not taken  into account  for determining the  eligibility of  accommodation in   view  of Government  of   India’s  order   under  the   Allotment  of Government Residences  (General Pool  in Delhi) Rules, 1963. The further  case is that even special pay is not taken into account for this purpose. The petitoner’s stand, however, is that as the NPA is treated as part of basic pay for purposes of computation  of dearness  allowance,  terminal  benefits, house building advance, travelling concession benefits etc., there is no justifiable reason to exclude this allowance for the purpose  of entitlement to residential accommodation. It is urged  that merely  because the  special pay is not taken into account  for this  purpose, does  not provide  a cogent reason for  excluding non-practicing  allowance inasmuch  as special pay  is not  treated as  part of  basic pay  for the aforesaid purposes as well. 6.   According to us, the present is basically a question of policy and  the claim  in this  regard is not founded on any right as  such. In  so far as the policy is concerned, there may be  some justification  for excluding the non-practicing allowance for  the purpose at hand because this allowance is seemingly not  paid to  all the Service Doctors. So, if this allowance is  included for the purpose at hand, the same may be disadvantageous  even to  some Service Doctors. We do not say more  than this,  as  this  matter  is  presently  under examination of the Vth Pay Commission. 7.   In so  far as  the creation of required number of posts of Chief  Medical Officers  in the scale Rs.3,700-5,000/- is concerned, it  may be  pointed out  that in  the  settlement which was  arrived at  in 1989,  it was agreed upon that the promotion as  Chief Medical  Officer shall  be  "subject  to availability of  vacancies".  In  the  additional  affidavit filed on  behalf of Ministry of Health and Family Welfare in September, 1995  by one  M.M. Perumal,  Dy. Secretary of the Ministry, it has been stated that the upgradation was of 500 posts on  ’functional basis’ by identifying posts in various participating Units/Institutions  of Central  Health Service with a  view to  cover all  the eligible  officers who  have requisite eligibility  service and  had been  recommended by the DPC. 8.   In so  far as  the non-giving  of  scale  of  Rs.4,500- 5,700/- meant  for teaching  sub-cadre, the  averment in the aforesaid affidavit  is that  the package envisaged that all the promotions  would be  with prospective effect and so the petitioner’s contention  that  placement  in  the  aforesaid scale should  have been  with effect  from 1.8.1987  is  not correct. 9.   The aforesaid  averments, the authenticity of which has not been  disputed, do  establish  due  fulfillment  of  the package benefits. 1989 Settlement : -----------------

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10.  The  only  point  relating  to  nonfulfillment  of  the settlement is  that the benefits had not been made available from 1.10.1987.  In the aforesaid affidavit the statement is that  various   allowances  like  non-practicing  allowance, annual  allowance   (contingency  allowance)   for  academic research  and  other  professional  pursuit  and  conveyance allowance have  been granted  with effect from 1.10.1987. As to the  benefits accruing  from the  Office Memorandum dated 14.11.1991 (infra),  which has incorporated the Government’s decisions  qua  the  Tikoo  Committee  recommendations,  the averment made  is that  they are  to be  from a  prospective date. There is merit in this contention. Tikoo Committee recommendations : --------------------------------- 11.  A perusal  of the  report of  the Tikoo Committee shows that  the   recommendations  are   32  in   number.  As  the recommendations had  huge financial  implications and needed sorting out  some service  matters also,  in-depth study was required and  after this  was done the Government considered the recommendations  and its  decisions qua  then came to be incorporated in  the Office  Memorandum dated  November  14, 1991.  In  so  far  as  the  recommendations  of  the  Tikoo Committee which have not been accepted, the first contention of Shri  Goswami on  behalf of  the Union  of India  is that there is  ample justification  for  nonacceptance.  He  then urges that  instead of  this Court examining the question of justification or  otherwise of  the same,  the matter may be left to  be decided  by the Vth Pay Commission which was set up recently  and is  in seizing  of many  of the matters. To satisfy our  mind that this Pay Commission is examining many matters relating to the improvement in the service prospects of the  doctors working  under the  Central Health  Service, Shri Goswami  placed on  record a  communication of  the Dy. Secretary of  the  Commission  bearing  No.DOF/14554/94/PC-B dated  9th   September,  1994  seeking  information  of  the Ministry of Health on a number of points, which information, as per this communication, is needed for a detailed analysis of the  demand of the doctors who have submitted a number of memoranda before  the Commission.  This communication  shows that the  information sought  relates, inter  alia,  to  the cadre size  and structure, pay scale in each sub-cadre, time bound  promotion   scheme,  reasons  in  not  treating  non- practicing allowance  as part of basic pay for entitlement a Government accommodation despite treating it as such for all purposes and possibility of formation of a unified cadre for all sub-cadres of doctors. 12.  Shri Sachar  contended in  the Court  as well as in his written-submission filed on 28.11.1995, that the matters may not be  left to  be decided  by the  Pay Commission because, according to  him, the  rights which  have  accrued  to  the members  of   the  petitioner-Association,   following   the recommendation of  the Tikkoo  Committee, are  vested rights and if  the same  are not  made available,  the  same  would violate  Articles   14,  16  and  21  of  the  Constitution, redressal of  which is not within the realm and jurisdiction of the  Pay Commission.  It has,  therefore, been  implored, that we  ourselves should  decide the merits of the left out matters, otherwise  the entire exercise undertaken so far as by the  petitioner would  be rendered  futile.  The  further submission is  that as  what the Pay Commission would decide would be in a nature of recommendation, which the Government may accept  or may not, whereas what this Court would decide would be binding on it. 13.  We have  duly applied our mind to the rival contentions and, according to us, as it would be within the jurisdiction

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of the Pay Commission not only to examine the pay structure, but also  the question of cadre review, on which much stress has been  given by  Shri Sachar. So, the submission that the Pay Commission  cannot give the relief being claimed in this petition is  not sustainable.  Of course,  what view the Pay Commission would take in the matter is for the Commission to decide, and  all that can be said in this regard is that the Commission,  while   making   its   recommendations,   would definitely  bear  in  mind  the  historical  background,  in particular the recommendations of the Tikoo Committee. 14.  As  to   the  contention   that  the   members  of  the petitioner-Association have come to be clothed with a vested right, we  would say  this is  not so  inasmuch as  what the Tikoo  Committee   has  said   is  also  in  the  nature  of recommendation and  unless accepted  cannot be  said  to  be binding on the Union of India. No vested right has thus been created  by   the  force   of  the  recommendations  of  the Committee.  It   is,  of   course,  correct  that  what  Pay Commission would  say would  be recommendatory in nature, as distinguished from  the decision  of this  Court; but, as is known, recommendations  of a high powered committee like Pay Commission are  not rejected without cogent reasons. We have no doubt  that in  the background of the present litigation, the  Central   Government,  while  taking  decision  on  the recommendations to be made by the Pay Commission, would bear in mind  its commitment  to Service Doctors given at various points of  time. Another reason which has weighed with us in accepting  the  contention  of  Shri  Goswami  is  that  the benefits to  a particular  service  may  not  be  viewed  in isolation; the  same have to be dove-tailed and matched with benefits to be given to members of other services. 15.  For the  aforesaid reasons,  it would be appropriate to await the recommendations of the Vth Pay Commission on those matters qua which the Government of India did not accept the recommendations of the Tikoo Committee. 16.  The result  is that  in so  far as the 1987 Package and 1989 Settlement are concerned, no further direction or order of  this   Court  is   required.  As   to   the   unaccepted recommendations of  the Tikoo Committee, the recommendations of the Vth Pay Commission may be awaited. 17.  The writ  petition is  disposed of  accordingly with no order as to costs. Writ Petition (C) No.1092 of 1990 ---------------------------------      In view of the above, nothing further is required to be stated in  this Writ  Petition. It  also stands  disposed of accordingly.