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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.