DR. V.P. MALIK AND ORS.versusUNION OF INDIA

A                          DR. V.P. MALIK AND ORS.
                                          v.
                                UNION OF INDIA

                               DECEMBER 8, 1995

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

          Se1Vice Law :

          Time bound promotion--Recommendation-CommiUee Reporl-lm-
C plementation of-Delay of One year-Delay affected Petitioners financially
    and their seniority, and that cut off date was arbitrary and on facts resulted
    in discrimination between officers off the same grade-Plea of writ
    petitioners:- Held, time lag justified and reasonable, the committee report
    being recommendatory in nature, decision was required to be taken-Ap-
    prehension of discrimination not real as promotion as a mauer of rule can
D   be effective only from a prospective date.

          Tikoo Committee report, recommending the teaching specialists to
    be placed in the grdde of Rs. 4500-5700 after 4 years of granting of scale
    of Rs. 3700-5000, doing away with the distinction between the functional
E   and non-functional grade, was submitted on 31.10.1990; office Memoran·
    dum in this regard was issued on 14.11.1991 and it was Implemented on
    1.12.91.

          In the memorandum of Settlement, Associate professors in the Scale
    of Rs. 3700-5000 was to be placed on scale of Rs. 4500-5700 on the
F   completion of 6 years of regular service as Associate professor or 8 years
    of combined service as Assistant Professor and Associate Professor,

        Petitioners, members of teaching specialist sub-cadre of the central
  health service, filed a writ petition challenging the cut-off date as arbitrary
  contending that the delay in implementing the recommendation deprived
G them of financial benefits and their seniority, further contending that the
  cut off date resulted in discrimination between the officers of the same
  grade, apprehending that the seniors who got promoted to the 'Non
  Functional Selection Grade' and were redesignated as Professor w.e.f.
  1.12.1991, in most cases would get promotion to the post of professor after
H serving much longer, to the feeder grade, while those junior to the
                                         334
                            V.P.MALIK v. U.0.1.                          335

Petitioners considered for promotion after 1.12.1991 would get it on com-       A
pletion of 8 years of combined service.

      the stand of the Respondent was that office memorandum could be
issued oil 14.11.1991 incorporating decision of Govt relating to various
recommendations and the benefit was made available from the first date
of ensuing month,                                                                B

      This court in i.A. on 17.10.94 passed the order that any promotion
made during the pendency of the writ petition, would abide by the result
of the petition.

        Dismissing the Writ Petition, this Conrt                                 c
      IiELD : 1. the period of one year taken to finally come to a decision
has to be regarded as reasonable. The time lag Is not nnjustified becanse
the recommendations being many in number, invoking huge financial
implications and needing sorting out of some service problems. The Tikoo        D
Committee report being recommendatory in nature, a decision was re-
quired to be taken as to which of the recommendations could be accepted
and which not. [337-F, 337-D]

       2. The cot off date of 1.12.91 is far from arbitrary and whimsical; it
is really reasonable. It has not been picked out from a hat, but is founded     E
on logic; the date having been fixed because of the Issuance of the office
Memorandnm containing the decisions of the Government on the Tikoo
Committee recommendations on 14.11.1991. [337-C]

     D.R. Nim v. Union of India, (1967) 2 SCR 325; Union of India v.
Sudhir Kumar Jaiswal, [1994] 4 SCC 212; Louisville Gas & Electric Com-          F
pany v. Cleu Coleman, 277 US 32 and Union of India v. Paremeswaran
Matchwork, (1975) 1 SCC 305, referred to.

      3. The apprehension of discrimination is more imaginary than real.
The order dated 1.10.1994 adei1uately takes care of the apprehension.           G
Promotion as a matter of rule can be effective only from prospective date
and the recommendation of Tlkko Committee is more beneficial than the
one which was part of the memorandum of settlement. (339-B, 338-E-G)

        CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 683 of
1990.                                                                           I-I
    336                  SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A         (Under Article 32 of the Constitution of India.)

          Rajinder Sachar, N.N. Goswami, Dr. A.K. Singhvi, R.P. Singh, Ajit
    Pudussery, shailendra Bhardwaj, T.C. Sharma; D.S. Mehra and K. Swami
    for the appearing parties.

B         The Judgment of the Court was delivered by

          HANSARIA, J. The petitioners are members of the teaching
  specialist sub-cadre 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
C 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-function-
  al grade may be done away with and promotion be made to the grade of
D 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
E could be issued only on November 14, 1991 incorporating the decisions of
  the Government relating to the various recommendations of the Commit-
  tee, 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 pelltloners,
p 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 heen 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
G postponed the date of acquiring the status of Professor by the petitioners,
  all of whom were, earlier to that date, holding 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
H and having also recommended for promotion to the grade of Rs. 4,500·
                  V.P. MALIK v. U.0.1. [HANSARIA, J.]                  337

5,700 on the completion of 4 years of service for which period petitioners    A
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.
                                                                              B
       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 Officer Memorandum spelling out
the decisions of the Government was issued, the petitioners' aforesaid two    C
grievances have no merit. It has also been submitted that the petitioners'
grievance c:ua their seniority cannot be heard in this petition inasmuch as
those who wou:J be adversely affected, if the case of the petitioners were
to be accepted, are not before the Court.
                                                                              D
      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     E
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 F
 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 v. U1tio11
 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 Unio11 of l11dia v. Sudhir Kumar Jaiswal, G
 (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 v. Ciel! Coleman, 277 US 32, that a H
    338                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

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 v. Parmcswaran Match Works, [1975] 1 SCC 305. It was further added
    that a choice of date cannot be dubbed as arbitrary unless it is shown to
    be capricious or whimsical in the circumstances.

B         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.
c
         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 _w!10 were
D 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. Th;c result is not
E 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 promotees because of the order
F 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 after 4 years of the
  granting of the scale of Rs. 3,700-5,000, is more beneficial than the one
G 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
H recommended promotion to the grade of Rs. 4,500-5,700 on completion of
                         V.P. MALIK v. U.0.1. [HANSARIA, J.]                  339

      8 years of service as specialist. It has been clarified in the written submis- A
      sions 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    B
      apprehension.

            9. In the aforesaid premises the grievances raised by the petitioners
      are unfounded. The writ petition is, therefore, dismissed; but without cost.

      K.K.T .                                                  Petition dismissed.   C




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