Dr. Ramesh Chandra Panda, Member (A):
Dr. V. Bhuvaneswari, presently working as Professor, Radio-diagnosis in Lady Harding Medical College (LHMC), New Delhi, the applicant in the present Original Application, has moved MA No. 2424/2012 seeking certain amendments to the prayer in the OA viz. to direct the first and second respondents to allow the applicant to exercise her option as per the JIPMER (Amendment) Act, 2011. She has also sought direction of the Tribunal to initiate disciplinary action against the officers who have caused prejudice to her in rejecting her request for exercising fresh option to return back to the JIPMER.
2. Notice was issued to the respondents on the said MA and the reply affidavit has been filed on 17.12.2011 wherein the respondents submitted that the said amendment to the prayer clause is not maintainable and the MA deserves to be dismissed.
3. We have considered the applicant’s claim in the MA as to the amendment to the relief clause and other portions of the OA. In view of the fact that the JIPMER (Amendment) Act, 2011 was the basis for the respondents to issue Circular calling for JIPMER employees to exercise/re-exercise their options, the question arises whether the applicant being a CHS doctor and ex-employee of JIPMER is entitled to the said benefit or not? This question is being considered by us as part of the existing relief(s) in the OA.
4. We have heard the applicant who argued her case in person and Shri V.S.R. Krishna, learned counsel for the respondents. With their assistance we also perused the pleadings.
5. The applicant having been selected by the Union Public Service Commission (UPSC) for the post of Assistant Professor in Radio-diagnosis was appointed to JIPMER, Puducherry on 23.03.2001. On 23.03.2003, she was promoted to the post of Associate Professor as Teaching Specialist and continued to work in JIPMER under the Ministry of Health and Family Welfare. She was subsequently promoted to the post of Professor on 23.03.2007. It is an admitted fact that JIPMER became an autonomous institute by an Act of Parliament w.e.f. 13.07.2008. In July, 2009 the respondents sought option of those employees who were working in JIPMER to continue in Central Health Services (CHS) or JIPMER and the last date for exercising such option was 13.07.2009 as the JIPMER Act, 2008 came into force w.e.f. 14.07.2009 and from that date one year time was prescribed for the employees to exercise their option. The applicant opted to continue in CHS within the prescribed time limit. In the meantime, those who opted to continue in CHS, many of them were transferred from JIPMER to other places vide Circular dated 09.02.2010. The applicant having opted to be in CHS was also transferred from JIPMER to CHS, New Delhi and the Director of JIPMER was requested to relieve her immediately. However, the applicant requested vide letter dated 29.04.2010 for change of her option from CHS to revert back to JIPMER on personal grounds, which was considered by the competent authority and her request was rejected by the respondents, vide order dated 18.05.2010. The applicant submitted one more representation on 21.06.2010 to the Director, JIPMER with a copy to the Secretary, Ministry of Health and Family Welfare to grant her extension of deputation in JIPMER in public interest. Further, the applicant also submitted a request letter dated 21.07.2010 requesting to consider her option for staying back in JIPMER after withdrawing her earlier option to remain in CHS cadre. In the meantime, vide Office Memorandum dated 31.07.2010, she was ultimately relieved from her duties to enable her to report for duty at the Ministry of Health and Family Welfare, New Delhi w.e.f. 31.07.2010 (AN). Accordingly, she joined LHMC w.e.f. 01.08.2010. Thereafter, she has also given a representation dated 23.09.2011 to the first respondent requesting to accept her option of withdrawal from CHS and to post her back in JIPMER. In the meantime, there was a Circular dated 24.10.2010 issued by the Director of JIPMER seeking for option of the employees of JIPMER as on 13.07.2008 to remain or not to remain in JIPMER. The applicant sent a request letter to the Director, LHMC, New Delhi requesting for intervention in the matter. The applicant’s representation dated 23.09.2011 for change of her option for CHS to JIPMER was examined and she was informed vide OM dated 24.11.2011 that the JIPMER (Amendment) Act, 2011 envisaged that the employees who have not exercised their option and not transferred out of JIPMER as on 03.08.2011 would be eligible to exercise option and the applicant having exercised her option for CHS and posted to LHMC, her request could not be agreed to. She has been aggrieved by the impugned order dated 24.11.2011 (Page 11) whereby her request for change of option from Central Health Service (CHS) to Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER) has been turned down. Assailing the same, she has come before the Tribunal praying for the following relief(s):-
“(a) To direct respondent nos. 1 and 2 to allow applicant request for exercising choice of posting at JIPMER as per circular of R2.
(b) To quash the ‘erroneous’ rejection of respondent no.1.
(c) To call for the records to examine the promulgation of circular position in various specialties in JIPMER; examine file notings and examine nature/type of delegation of power by (R-1) to (R-2).
(d) To initiate disciplinary action and impose exorbitant cost as litigation expenses on R-3 for withholding salary of applicant to cause prejudice to applicant.
(e) To pass such other and further order/orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case in favour of the applicant.
(f) To quash the rejection order dated 18.05.2010 issued by Respondent no.1, stating the last date to exercise option was 13.07.2009 in Annexure-5, page no.18. This last date has been changed to 13.01.2012 by the Parliament amendment making rejection letter null and void.
6. The applicant would argue that she was the employee of JIPMER and only by virtue of the option, which she had exercised, she was transferred out of JIPMER and was being treated as an ex-employee whereas similarly placed ex-employees had been taken back in JIPMER. On a query from the Bench to know as to whether any discrimination had been meted out to her by taking back other similarly placed and circumstanced doctors who exercised their option for CHS and their option was changed and they were taken back in JIPMER, the applicant would submit that she had sought such information from the respondents under RTI Act, 2005 but the same had not been received by her. On this issue, learned counsel for the respondents would submit that no such order was passed accepting withdrawal of option from any doctor after joining CHS from JIPMER due to the exercise of option. As such, the applicant’s contention does not have any support since she could not demonstrate specific instances of discrimination. Hence, we note that no discriminatory treatment has been meted out to her.
7. Pursuant to notice issued by the Tribunal, respondents have filed their counter affidavit through Shri V.S.R. Krishna, learned counsel. The respondents had taken the stand that the applicant, who had exercised her option to remain in CHS, which was accepted by the respondents, and she was transferred from JIPMER to CHS, New Delhi. She joined LHMC as a Member of CHS and had become an ex-employee of JIPMER. Therefore, the option sought for under the JIPMER (Amendment) Act, 2011 by which period of exercising of option by the employees of JIPMER, Puducherry was extended from one year to 3= years by amending Section 28(1) of the JIPMER Act, 2008, would not be applicable to the applicant as she had already exercised her option. Moreover, her withdrawal of the option came much after the last date of filing options (13.07.2009) whereas the applicant submitted her letter to withdraw her option in April, 2010 by which time, her option had been accepted and she was transferred out of JIPMER. Further, Shri Krishna would contend that there was no examples of any change of option allowed after the last date and that too after having accepted such options of the employees of JIPMER by the respondents. Further, after her relief from JIPMER in July, 2010, she was posted in LHMC, New Delhi, where she joined subsequently. The applicant’s case is not covered under the JIPMER (Amendment) Act, 2011, as she is no longer the employee of JIPMER. In this background, Shri Krishna would urge that the Original Application does not have merit and, therefore, the same needs to be dismissed.
8. The applicant has also submitted her rejoinder more or less taking the same facts as has been stated in the OA and has stated therein that she has been selected as Additional Professor in JIPMER, subsequent to her transfer to CHS and in case she accepts such an appointment at JIPMER, she would be demoted as she has been working as Professor. This aspect is not an issue before us. Hence, we refrain to dwell on the same.
9. Two issues are to be determined by us in the present case. (i) Whether the applicant is legally entitled to withdraw her option already exercised to remain in CHS? (ii) Whether the applicant can get the benefits of the provisions of the JIPMER (Amendment) Act, 2011 to re-exercise her option to remain in CHS or in JIPMER?
10. In respect of the first issue, we may give certain chronology of events though there may be some repeatition of facts. By an Act of Parliament the JIPMER, Puducherry, Act, 2008 came into force with effect from 14.07.2008 and JIPMER was constituted as a body corporate as an institution of national importance. Section 28 of the said Act envisaged that from the date of commencement of the Act every employee holding a post in JIPMER would continue as an employee of JIPMER for a period of one year unless he/she within the said period of one year opts not to be an employee of JIPMER. Every employee who opts not to be an employee of JIPMER shall be governed by the rules and orders as applicable to the Central Government employees. Thus, it means that period of one year during which option can be exercised was upto 13.07.2009. Accordingly, the Ministry of Health and Family Welfare requested Director, JIPMER vide letter dated 02.09.2008 to inform about the status of doctors belonging to CHS exercising option, on the basis of which JIPMER issued a circular dated 17.09.2008 seeking option of the CHS doctors. It is seen that the last date of option fixed by JIPMER is 13.07.2009. JIPMER sent the option letters of 28 doctors including that of applicant in the letters dated 14.07.2009, where it was indicated that the applicant (serial no.26) had opted to remain in CHS. The Union of India directed the doctors including the applicant to report for posting vide letter dated 31.07.2009. She requested to be at JIPMER till 31.07.2010 on the ground of her mother’s illness which was agreed to. Accordingly, she was relieved from JIPMER on 31.07.2010 and she joined the Ministry of Health and Family Welfare on 08.09.2010. There after she was posted to LHMC, New Delhi.
11. These facts very clearly manifest that the applicant, who was appointed as doctor in CHS, joined JIPMER as such and then JIPMER was one of the constituents serviced by the CHS. Further, the applicant exercised her option within the period of one year prescribed under the JIPMER Act, 2008 and the respondents took appropriate action thereon. But, after a long period since the last date to exercise option or otherwise, she submitted on 29.04.2010 a representation to withdraw the option of continuing in CHS and to revert back to JIPMER cadre. Since the last date within which exercise of option or otherwise was 13.07.2009, submission of application to withdraw option six months after expiry of last date is not permissible. Once the applicant has exercised her option under JIPMER Act, 2008, withdrawal of the same would have been permissible within the last date i.e. 13.07.2009 not thereafter. Further more, pursuant to the said option exercised by the applicant, she had also gone and joined in the transferred post at LHMC, New Delhi in September, 2010. In view of the above, in our considered opinion, the applicant does not have a right to claim for withdrawal of her option and to change her option from continuing in CHS to revert back to JIPMER.
12. With regard to the second issue i.e. whether the applicant would be entitled for the benefits under the provisions of JIPMER (Amendment) Act, 2011, we have carefully considered the objects and reasons of the amendment of JIPMER Act, 2008 carried out through Act 10 of 2011. Section 28 of the JIPMER Act, 2008 was amended mainly to have the representations from the employees then working in JIPMER, who did not exercise their option and were not transferred out of the institute. Considering more than thousands representations, the respondents considered it necessary to carry out the amendment to the Section 28 of the Act.
13. Through Act 10 of 2011, which came into force w.e.f 27th August, 2011, the Section 28 of the Jawaharlal Institute of Post-Graduate Medical Education and Research, Puducherry Act, 2008 was amended. The JIPMER having been declared as an institution of national importance by the JIPMER Act, 2008 and having been in force w.e.f. 14.07.2008, there was necessity to meet the demands of the JIPMER employees for exercising fresh option. Prior to its incorporation as an autonomous body under Section 4 of the aforesaid Act, JIPMER was functioning as an institution under the Ministry of Health and Family Welfare. Due to the status of body corporate accorded to the institution, every employee of the Institute prior to its conversion was given an opportunity under sub-section (1) of Section 28 of the aforesaid Act to exercise his or her option within a period of one year from the date of commencement of the Act either to remain as an employee of the autonomous Institute or to opt out of the Institute and continue to remain as a Central Government employee. A number of employees of the JIPMER exercised their option. The applicant also exercised her option to remain in CHS. However, a large number of representations from its employees were received in the Ministry of Health and Family Welfare requesting for extension of the period for exercising the option from the existing one year. In order to avoid any discrimination and to provide equal opportunity to all the employees, it was decided by the Union of India to extend the benefit of enhanced option period from the existing one year to two and one-half years including those employees who have already exercised their option and to allow them to exercise option afresh. However, due to practical reasons this benefit of extension of time was limited to only those employees who have not been transferred out of the Institute consequent upon the exercise of option by them. Accordingly sub-section (1) of Section 28 of the aforesaid Act was amended for extending the period of exercising option by the erstwhile employees of the Institute to two and one-half years from the existing one year from 14th July, 2008 i.e., the date on which the provisions of the Act came into force which enabled more time to the employees of the erstwhile institution to exercise their option either to remain as the employees of the new autonomous Institute or to opt out of the Institute and continue to remain as Central Government employees. The following amendment was carried out:
“In Section 28 of the Jawaharlal Institute of Post-Graduate Medical Education and Research, Puducherry Act, 2008, in sub-section (1), -
(a) for the words "one year", at both the places where they occur, the words "three and one-half years" shall be substituted;
(b) in the proviso, for the words "Provided that", the following shall be substituted, namely -
"Provided that the employees, who have, or as the case may be, who have not, exercised their option and not transferred out of the Institute as on the date of coming into force of the Jawaharlal Institute of Post-Graduate Medical Education and Research, Puducherry (Amendment) Act, 2011, may exercise their option afresh before the specified period:
Provided further that - [Emphasis supplied]
14. The provisions added to sub sections (a) and (b) of Section 28 of JIPMER Act, 2008 by the above amendment disclosed that extended period of exercising option would be effective only to those doctors and employees who had not exercised their option and had not been transferred out of the institute on the date of coming into force of the JIPMER (Amendment) Act, 2011. JIPMER (Amendment), 2011 came into force on 27.08.2011, by which date the applicnat had already exercised her option and had already been transferred from JIPMER to CHS and she had joined months before the amendment could be carried out.
15. In view of the above, we are of the considered view that the applicant does not come within the category of employees specified therein, and therefore, she is not covered by the provisions of the JIPMER (Amendment) Act, 2011. Hence, she is not entitled to exercise fresh option. Thus, the applicant fails to convince us in the second issue seeking for our intervention.
16. Considering the totality of facts and circumstances of the case and the reasons given on both the issues in the foregoing paragraphs, we come to the considered conclusion that the applicant has not made out a case in her favour for issuing any mandamus to the respondents.
17. In the result, the Original Application being devoid of merit is dismissed. In the circumstances of the case, we do not make any order as to costs.