AI Structured Summary
Not yet generated for this judgment
Judgment
Chet Ram Thakur, J.—The Petitioner after having passed his M.B.B.S. with Honours joined as a doctor in Himachal Pradesh Union Territory in August, 1961, on ad hoc basis. He was appointed on regular basis on 19-7-1962. The Respondents 3 to 6 are merely M.B.B.S. Respondent No. 4, however, possesses a diploma in D.T.D. Respondent No. 6 joined service as a doctor in the Union Territory of Himachal Pradesh on 21-7-1955 and later on his services were regularised in 1956. Respondents 3 and 4 joined service as P.C.M.S. Class II in the composite State of Punjab on 17-1-1958 arid 25-3-1957 respectively. Respondent 5 was an employee in the State Insurance Corporation from 19-2-1957
In the year 1963 the President in exercise of the powers under Article 309 of the Constitution of India framed rules known as the Central Health Service Rules, 1963 (shortly called the Rules of 1963) and constituted a Service known as "Central Health Service" (hereinafter referred to as the Service). It was extended to the Union Territory of Himachal Pradesh also, whereby the employees working in the State cadre of the erstwhile Union Territory of Himachal Pradesh were considered for appointment to the Service. As such the Petitioner as also Respondent 6, who at the relevant time were inducted into the Service, as doctors in category ''E'', under Rule 7 of the Rules of 1963. During the period when the Petitioner was working as a doctor in category ''E'' in the Service he passed his M.S. examination in the year 1965, with the result that he became a doctor possessing Post Graduate qualification. On 9-9-1966 the President in exercise of powers under Article 309 of the Constitution incorporated certain amendment in the Rules of 1963 on the basis of the Central Health Service (Amendment) Rules, 1966 (hereinafter shortly called the Amendment Rules). Under the amended rules new categories with new scales superseding the previous category were created and the re-classified categories and scales of pay are as under:
Sl. Categories Scale of pay Classification No. I. A. Super Time Grade I of: (i) Director-General of Health Service Rs. 2,750 Class I (ii) Additional Director- General of Health Service Rs. 2250 -do- (iii) Other Posts Rs. 1800-100-2000 -125-2250. -do-
B. Super Time Grade II Rs. 1300-60-1600- 100-1800. -do-
II. Specialised Grade Rs. 600-40-1000- EB-50-1300 -do-
III. General Duty Officers Grade I Rs. 450-30-660-EB -40-1100-50-l250 -do-
IV. General Duty Officers Grade II: (i) Graduate Officers Rs. 350-25-500-30- 590-EB-30-830- 35-900 -do-
(ii) Licentiate Officers Rs. 350-15-380-20 -500-EB-20-600 Class II
After the re organisation of the Service under the amended rules the Petitioner and Respondents 5 and 6 were inducted in the Service under the new categories. The Petitioner was inducted as General Duty Officer Grade II in the pay scale of Rs. 350-900 while Respondents 5 and 6 were inducted into the Service as G.D.O. Grade I in the pay scale of Rs. 450-1250 and all these persons became members of the Service with effect from 9-9-1966. On re organisation of the State of Punjab, the Respondents 3 and 4 were also allocated to the Union Territory of Himachal Pradesh. Here they continued to be the officers . of the State cadre as in Himachal Pradesh the Central Health Service had already been extended. With a view to have a uniform cadre, it appears that the Respondents 3 and 4 were also inducted into the Service with effect from 1-11-1966 as G.D. O. Grade, I. At the time of their induction into the Service it was decided by the Central Government that all officers who had been inducted into the Service on a date subsequent to the date of initial constitution will rank en bloc junior to the officers already,working in the Central Health Service.
At a time when the Petitioner was working as G.D.O. Grade II, Respondent No. 2, i.e. the Union of India wanted to fill certain posts of G.D.O. Grade I. The Petitioner appeared before the Union Public Service Commission as a candidate for direct recruitment and in November, 1967, he was selected and appointed as G.D.O. Grade I in the pay scale given above for this category. Later on, Respondent No. 2 again wanted to fill the posts of Specialists in the scale of Rs. 600-40- 1000-EB-50-1300. The Petitioner also applied as a candidate for direct recruitment and in June, 1970 he was selected for the said post and on 9-9-1970 he was actually appointed to the Specialist''s grade.
After attainment of Statehood by the Union Territory, the Petitioner as also Respondents 3 to 6 continued to be the members of the Central Health Service and were deemed to be working in the State of Himachal Pradesh as doctors of the Central Health Service on deputation, as contemplated under Sub-section (7) of Section 40 of the Himachal Pradesh State Act of 1970. They were to be governed by the Rules of 1963. In Himachal Pradesh no such cadre has yet been created. It has been averred that Respondent No. 6 was promoted as Chief Medical Officer, Solan, on 19-9-1972. According to the Petitioner the posts of all District Medical Officers/Chief Medical Officers are included in the schedule attached to the Central Health Service Rules and they are the posts belonging to the Specialists grade, as indicated above. The Petitioner felt aggrieved because according to him''it was he, who, being a member of the Service in the Specialist''s grade, was entitled to be appointed against the post and he, therefore, lodged a representation with Respondent No. 1. He was informed that promotion, of Respondent 6 in no way jeopardises his seniority and the Specialist grade is a higher grade at present and that regular posting will be made after taking into account all factors. But again on 19-9-1973 , Respondent No. 1 issued another order, which was termed to be posting and transfer order, Annexure J, promoting and posting Respondents 3 to 6 as Chief Medical Officer/District Medical Officers in the Specialist grade at Kangra, Chamba, Kinnaur and Sirmur respectively. Because of this promotion/posting Respondent 6 has been assigned better duties and is further expected to write the confidential reports about the work and conduct of the Petitioner. Respondents 3 to 6 do not possess any Post-Graduate qualification as envisaged by the conditions of eligibility detailed in Central Health Service Rules. The Specialist grade post can only be held by the doctors possessing Post Graduate qualification. None of the Respondents 3 to 6 possess such a qualification and as such they are usurpers of public office. The promotion and posting of Respondents 3 to 6 were made in violation of the Central Health Service Rules and the controlling authority in respect of the Central Health Service is the Government of India in the Ministry of Health, and no orders have been passed by the competent authority in respect of the aforesaid Respondents. Respondent No. 1 cannot assume the powers of the controlling authority and the Himachal Pradesh Public Service cannot assume the powers of the Union Public Service Commission and the State of Himachal Pradesh Act does not in any manner annul the Rules of 1963, as amended in 1966. Further the appointments are violative of Articles 14 and 16 because the Petitioner had not been considered for the post of Chief Medical Officer/District Medical Officer. All these posts (continue to be on the authorised strength of the Central Health Service. It was on the basis of these averments that the Petitioner prayed for quashing of the order detailed in Annexure J and also prayed for issue of a direction in the nature of a writ of quo warranto requiring the Respondents 3 to 6 to show the authority or rule under which their claim to the posts of Chief Medical Officer/District Medical Officer included in the Specialist grade in the Service can be sustained and for their failure to satisfy this Court they be declared as usurpers of the public office. Further, Respondents 1 and 2 to be directed to fill the post held by these persons in accordance with the Rules of 1963 and after quashing the order dated 19-9-1973, the Petitioner may be declared entitled to all consequential benefits.
Respondents 1 and 2 have averred that Respondents 3 to 6 had not been promoted or appointed as Chief Medical Officers in the scale of Rs. 600-1300. However, it has been stated that they have been allowed to work as such in their existing pay scale of Rs. 450-1250 and that there had been no irregularity whatsoever in the posting. No right of the Petitioner has been violated. Therefore, from this it follows that in a way it is admitted that Respondents 3 to 6 have been posted to work as Chief Medical Officers, although without allowing the scale of pay in the Specialists grade. It is also admitted that after the attainment of Statehood all the Central Health Service doctors posted in Himachal Pradesh by the Government of India are treated on deputation without paying any deputation allowance to them and they are governed under the Rules of 1963. However, it was averred that the formation of Himachal Pradesh Health Cadre relating to the Service of the doctors is under active consideration of the Himachal Pradesh Government, which means that the Central Health Service still continues and as such the Petitioner as also Respondents 3 to 6 are governed under the said rules. It was also admitted in reply to . para 16 (a) of the petition that the Chief Medical Officers in respect of Himachal Pradesh are included in the Specialists grade of Central Health Service, but Respondents 3 to 6 have been allowed ''to work as Chief Medical Officers in their own pay scale and they have the right to hold the post by virtue of their length of service and experience. The averments with regard to violation of Articles 14 and 16 of the Constitution were denied.
From the pleadings of the parties what follows is that the Respondents admit that the post of a specialist against which the Petitioner is placed is a superior post because it carries a scale of Rs. 600- 1300, whereas the post of G.D.O. Grade I to which category the Respondent No. 6 belongs, and, carries a scale of Rs. 450-1250 is inferior to that of the Specialist. Admittedly, the Petitioner belongs to a higher category both in the matter of qualification and scale of pay. He is in the Specialists category whereas the Respondent No. 6 is in the category of G.D.O. Grade I. On the enforcement of the rules the Petitioner and Respondent No. 6 were departmental candidates as envisaged under Rule 2(f) of the Rules of 1963. However, after the amendment of the Rules of 1963 new categories with new pay scales of pay were created in 1966, as already stated above. Therefore, the Petitioner and the Respondents fell under the new categories under the amended rules of 1966. The Petitioner was placed in category B in the Specialists grade and Respondent was placed as G.D.O. Grade I, giving them two different scales. The Respondent, admittedly, is in a lower scale.
Now the submission made by the Petitioner is that he was already working in a higher scale which scale is equivalent to that of a Chief Medical Officer and when Respondent No. 6 along with the other Respondents 3 to 5 was promoted and posted as Chief Medical Officer, the claim of the Petitioner for posting as such had not been considered. The Respondents were having less qualification and were also in the lower scale of pay. To this the submission of the Respondents is that they have been appointed as such because of their length of service and experience. Further, this is an ad hoc arrangement during the period of transition because the State is going to create its own State Health Cadre and options have been invited from the Petitioner as also the Respondents to indicate whether they want to be governed by the State Health cadre 6r they want to continue in the Central Health Services Cadre. The Petitioner has also opted for the same and screening is being done. The Respondents who have been posted as Chief Medical Officers have been posted as such only to carry on the day to day duties, otherwise they have not been granted the scale of pay which is equivalent to that of a specialist. It has been averred by the Petitioner that admittedly there is no difference in the scale of pay of a Specialist and a Chief Medical Officer/District Medical Officer, but the fact remains that the C. M.O./ D.M.O. is the chief administrative officer in the district and the Petitioner as a Specialist has to take orders from the C.M.O. who happens to be his junior. Further that the C.M.O./D.M.O. is to write the C. Rs. of even of the Specialists and on that basis he contents that the submission made by the Respondent is not valid that they have only been promoted and posted to carry on the day to day duties without any monetary gain allowed to them and that it was purely an ad hoc arrangement. The rules do not provide for any such ad hoc arrangement. There are rules for promotion from one category to the other and a strength has also been fixed. The Petitioner as also Respondents 3 to 6 are governed under the Central Health Service Cadre Rules of 1966 and they are on deputation with the Himachal Pradesh Government and this is not denied by the Respondents. Therefore, the Respondents 1 and 2 cannot make any appointment in a manner not envisaged under the rules to the detriment of the Petitioner. The Himachal Pradesh State Health Cadre has not so far been created as is admitted by the Respondents. They say that it is in progress. Unless the same is finalised the Petitioner and the Respondents 3 to 6 are governed under the Rules of 1963, which still hold the field. There cannot be any departure from those rules in making the appointment or posting even if the same are on stop gap or ad hoc basis. The post of a Chief Medical Officer carries a pay scale equivalent to that of a Specialist. However, the C.M.O. is required to perform administrative duties. He is in overall control and supervision of the medical officers in the district including the Specialists. Therefore , on that account, in my opinion, the submission of the Petitioner appears to be quite correct that he has been ignored from consideration and which is admitted by the Respondents that he was not considered . According to them these appointments are only on ad hoc basis without any pecuniary benefit to them, hence he was not considered . But this is not warranted by the rules.
Once the Petitioner succeeds in showing that he is a member of the Service he has got a right to challenge that a person is a usurper. According to him, the Respondents 3 to 6 have not been appointed in accordance with law and that they are holding the posts without any authority and as such they should be directed to show by what authority they were holding offices which admittedly are to be manned by persons from within the cadre of Central Health Service and, for which there are rules framed by the President in exercise of the powers under Article 309 of the Constitution. It has rightly been submitted that only the persons who are eligible to hold the posts are to be appointed to such posts. The Petitioner is a person who possesses all the requisite qualifications as a Specialist and he was eligible for consideration to the post. In order to see whether the Respondents are eligible to hold these posts it has got to be considered whether the posts fell in the cadre of the Specialists. It is not denied that the posts of the Chief Medical Officer/District Medical Officers are in the Specialists grade. It is also not denied that these very rules are still continuing to govern the conditions of service of the Petitioner as also the Respondents 3 to 6. It is also not denied that Respondents 3 to 6 do not possess any Post Graduate qualification as envisaged from the conditions of eligibility detailed in the rules. As such the Respondents 3 to 6 are usurpers of public offices because they are holding the offices without any right.
Further, it is also not denied that the promotion or posting in the higher scale are made by the State Government whereas the controlling authority in respect of the Central Health Service cadre is the Government of India in the Ministry of Health and no orders of the competent authority have been obtained in this regard. By the appointment of the Respondents 3 to 6 the State Government as also the State Public Service Commission have contravened the rules framed by the President governing the conditions of service of the Central Health Service cadre people to which Service the Petitioner as also the Respondents 3 to 6 belong. In these circumstances the Petitioner undoubtedly has got the right to question the appointment of Respondents 3 to 6 to the posts of C.M. Os./D.M. Os., which are public offices. In view of this the appointment of the Respondents 3 to 6 cannot be said to be valid, not having been done in accordance with the rules, and, therefore, the Respondents can be said to be usupers . What are the conditions to be satisfied for issue of a writ in the nature of quo warranto is clear from the The University of Mysore and Another Vs. C.D. Govinda Rao and Another, which says:
Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office.. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and if such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must be satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the inquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
Therefore, it is apparent that the offices held by the Respondents are public offices. The Petitioner is a member of the Central Health Service cadre and he was eligible for consideration for appointment to the post because he was having higher qualification and was in a higher grade of Specialists which is equivalent to the scale admissible to the C. M. O./D. M. O. and the Respondents in order to be eligible for appointment to this particular grade had to apply direct under the rules provided they fulfilled the academic qualification and which they admittedly did not. The Respondents 1 and 2 have connived in their appointment to these public offices under the ''pretext that it is purely a stop gap arrangement or till the finalisation of the Himachal Pradesh State Health Cadre and that they have not been given any higher scale. The appointment of these Respondents to these public offices is against the statutory provision and, therefore, it is the duty of the Court to protect the right of the Petitioner from being deprived of the public office to which he also has got a right. The Respondents 3 to 6 have undoubtedly no right to the posts, as already stated above, and this is not seriously contested by the Respondents , except that their appointments are on ad hoc basis with no additional emoluments.
It is evident from the averments of the Petitioner and which are not denied by the Respondents that Respondent No. 6 had been appointed as Chief Medical Officer, Solan, in the year 1972. Therefore , this appointment which has lasted for over two years cannot be said to be ad hoc, because ad hoc appointment cannot last for such a long period. Further, the Petitioner has been transferred and posted as Chief Medical Officer vide this Annexure J, which is the impugned one. By this very annexure other Respondents 3 to 5, who were previously medical officers, have also been appointed as Chief Medical Officers/District Medical Officers. Therefore, these appointments are in contravention of the rules because they do not satisfy the requirements of the rules for appointment as Chief Medical Officer, which is included in the category of Specialists grade. In view of this the Respondents who are holding the public offices without any legal right are usurpers and as such they are liable to be ousted.
In these circumstances, I have no option but to allow this petition and to quash the order, Annexure J, to the extent that the, appointment and posting of Respondents 3 to 6 are bad. This is a separable order, therefore, there is nothing wrong in quashing the same to that extent. Further, the Respondents 3 to 6 are held to be usurpers of the public offices because they are found to be holding the offices without any legal right. The Respondents 1 and 2 are accordingly directed to fill the posts of Chief Medical Officers/District Medical Officers in accordance with the Rules of 1963 and 1966 and it is further directed that the peitioner shall also be considered for the post.
No order as to the costs.