Central Administrative Tribunal - DelhiVijay Dhankar S/O Sh. N.S. Dhankar vs Chief Secretary on 7 May, 2012Central Administrative Tribunal
Principal Bench
New Delhi 

Original Applications No.1259/2011, 1209/2011, 3936/2011, 1453/2010 and 1048/2010


Order reserved on : 16.04.2012
                                                       Order pronounced on:07.05.2012 


Honble Mr. Justice S.C. Sharma, Acting Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)OA No. 1259/20111.	Vijay Dhankar S/o Sh. N.S. Dhankar,
R/o 10/27 B, Yogmaya Mandir, Mehrauli, Delhi2.	Dr. Vivek Mohan Arora
S/o Sh, Chander Mohan
R/o D-638, Saraswati Vihar,3.	Dr. Sunayan Mahanta
S/o Sh K.C. Mahanta,
R/o 153, New Ashiana CGHS Ltd,
Sec-6, Plot No. 10, Dwarka, New Delhi4.	Dr. Mahendra Agarwal
S/o Dr. M.C. Agarwal,
R/o H.No. 94, HIG DDA Flats,
Narela, Delhi-405.	Dr. Pramod Arya
S/o Late D.R. Arya
R/o G-29/118, Sec-3 Rohini
Delhi-856.	Dr. Atul Kumar Gupta
S/o Sh. V.K. Gupta 
A-2/74,( 1st Floor),
Sec 5, Rohini, New Delhi7.	Dr. Anjana Sadana 
W/o Dr. Ashish Sadana,
86, Bank Apt,
Sec-4, Dwarka, New Delhi8.	Dr. Md. Sabir Hussain
S/o Abu Mohammad
C/o Bhagat Singh Gehlot]
C-121, Rama Park, Near Dwarka Mor Metro Stn,
Uttam Nagar, New Delhi-599.	Dr. Vikash Kumar
S/o Sh. R.J Sharma,
Flat No. B-75-A, B-Block,
Kalakaji, opposite Nehru Place, 
New Delhi10.	Dr. Vikas Dabas
VPO Lad Pur, Near Bus Stand,
New Delhi-1008111.	Dr. Tusheer Chauhan
253-B, J&K, Dilshad Garden,
Delhi-11009512.	Dr. Noor Islam Ahmed
R-66, Gali No.-11, Ramesh Park,
Laxmi Nagar, New Delhi13.	Dr. Satyajeet
S/o Sh, S. S. Singh
99-A, Platinum Enclave, Pocket I,
Sec- 18, Rohini, Delhi-8514.	Dr. Avanish Tripathi
S/o Sh. Yamuna Sharan Tripathy,
N-22C, Kaushal Puri.Azadpur, Delhi-3315.	Dr. Sanjeev Tuteja
S.o Sh.O.P Teteja
BA/139A. Janakpuri,
New Delhi-11008816.	Dr. Puja Mehta
S/o Late V.P. Mehta
D-764, Saraswati Vihar
Delhi17.	Dr. Garima Goyal
D/o Dr. B.D. Goyal
WZ-9013, II Floor,
Janakpuri, Harinagar,
New Delhi18.	Dr. Neelam Singal
D/o Sh. Om Prakash Bansal,
D-41, 2nd Floor,
Mulatan Nagar,
New Delhi-5619.	Dr. Poonam Gupta
D/o Sh. R. R. Gupta
A-123, First Floor, Phase-1,
Ashok Vihar, Delhi-5220.	Dr. Sushil Kakkar
S/o Sh. S.S. Kakkar,
34 A (1), Miranwali Colony,
Gurgaon21.	Dr. Jitender Pal Singh
S/o Late. T. S. Bhayana, 
46, Road No. 52, Punjabi Bagh West,
New Delhi -2622.	Dr. Atul Kumar Jain
Dr. B.K. Jain
1-55/68 (GF)
Sec.- 16, Rohini23.	Dr. Sanjeev Sharma
Sh. Inderjit Sharma,
2/152, Subhash Nagar,
New Delhi -11002724.	Dr. Manish Salhotra
Sh. Yashpal Salhotra,
1st Floor, 18/30 Shakti Nagar,
New Delhi25.	Dr. Ram Asre
Sh. Lal Ji
AC-32,2nd Floor, Tagore Garden,
New Delhi-2726.	Dr. Poonam Joon
Dr. Sandeep Bhagat,
R/A-B-9, Parijat Apt. West Enclave,
Pitampura, Delhi-3427.	Dr. Ashoo Gupta
W/o Dr. Gurudutt Gupta,
93, Mausam Apt, West Enclave,
Pitampura, Delhi -110034

28	.Dr. Anju Bhatia
W/o. Dr. Rajiv Bhatia,
A4/443, Pachim Vihar,
New Delhi-11006329.	Dr. Seema Pundir
W/o Sudhir Rawal
C-78, Farmers Apartments,
Rohini Sec-14, Delhi-11008530.	Dr. Sumeet Chaugh
S/o Sh. J.L. Chaugh
E-13, 1st Floor New Mulatan Nagar, Delhi.31.	Dr. Alpana Chaugh
	D/o Sh. V.K. Chawla 
	1st Floor, E-13, New Mulatan Nagar, Delhi.32.	Dr. Shikha Chadha
W/o Dr. Manish Chadha
CA-16, Tagore Garden, Delhi33.	Dr. Rajni Raina
W/o Dr Jitender Kumar
D=-15/103 Sec 7 Rohini, Delhi34.	Dr. Deepika Sethi
W/o Dr. Ashwini Sethi,
E-80, Naraina Vihar,
New Delhi-2835.	Dr. Sumant Boro
S/o Sh. Golap Boro,165,
1st Floot Pocket 21, SEC 24,
Rohini, Delhi-110085.36.	Dr. Somi Pandey
D/o RC Pandey, 170,
Lok Nayak Apartments Sec-9,
Rohini, Delhi-110085.37.	Dr. Neetu chaudhary
W/o Dr. Manoj Joon,
109 Navyug Apartments Sec-9,
Rohini, Delhi-11008538.	Dr. Ritika Gandhi
W/o Dr. Vikram Singh,
506, Janki Apartments,
Plot-7 Sec 22 Dwarka,
Delhi-110075.39.	Dr. Brijesh K. Jain
S/o Sh. V.K. Jain, 298, 1st Floor, Shakti Khand 4,
Indrapuram Gaziabad, UP.40.	Dr. Nidhi chopra
Dr. A.K.Chopra 
GP-39, Pitampura, Delhi41.	Dr. Rashmi Khatri
W/o Dr. Mukesh Joon, 
E-102 Arya aptt.Sec-16 Rohini, Delhi42.	Dr. Ajay Dua
Sh. S.L. Dua
46-C, Navyug Aptt.F Block, Vikashpuri, 
Delhi43.	Dr. Sanjeev Verma
S/o Dr. V. Verma,
E-346, East of Kailash,
Delhi-	110065.44.	Dr. Sanjeevni
W/o Dr. Divya Aggarwal,
7A Railway Colony,
Tis Hazari- Delhi-110054.45.	Dr. Misha Sethi
R/A S-17/155,
Sec 8, Rohini, Delhi46.	Dr. Upasana Goswami
153, New Ashian CGHS Ltd,
Plot No.10, Sector 6, DWaraka
New Delhi-75.47.	Dr. Manish Kumar Gupta
Sh. Shyam Sunder Gupta, 59, Y2 Block C,
Dilshad Garden, Delhi.48.	Dr. Prem Kumar Singh
Late Meer Singh,
B-1/522, Tower-16 Silver City,
Sector-93, Noida (UP)49.	Dr. S.N.  Siddarth
Sh. A.N. Siddarth,
R Extn 44, Mohan Garden,
Uttam Nagar, Delhi 110058950.	Dr. Vijay Mohan Agarwal
Sh. M.P. Agarwal,
DP-251, Pitampura., Delhi51.	Dr. Rahul Rajput
Sh. Gaje Singh Rajput,
59/26, Tigipur P.O. Bakhtawarpu,
Delhi-110036.52.	Dr. Ish Kumar Midha
Sh. Amrt lal,
A 7/71, Sec 16, Rohini, Delhi53.	Dr. Surender Kumar
	Sh. Laxman Singh,
	B 12 (A), Saraswati Garden,
	Near Kirti Nagar, Delhi54. 	Vinod Dahiya
Sh. Nahari Singh,
Gali No.4, Gautam Colony,
Narela, Delhi-11004055.	Dr. Anju Gupta
Sh. S.K. Gupta
C/o Sh. Mangal singh
R/o Gali No.4 Gautam Colony, 
New Delhi.56.	Dr. Vikas Sharma
Sh. Dev Dutt Sharma
C/o Dr. Lovekesh Monga, B-1/56,3rd Floor,
Malkaganj, Delhi-0757.	Dr. Surender Kumar Agarwal
S/o Subash Chandra Agarwal,
R/o H-18/56, Lotus Apt.Sec-7, Rohini, New Delhi				-Applicants

(By Advocates:  Sh. V.Shekhar, Senior Advocate with Ms. Jagriti 
     Singh, Shri Sunil Rana, Sh. Sanjeev Rathi with Sh     
     Jasin Rajput and Sh. Vishal Saxena)

			V E R S U S

1.	Chief Secretary,
Govt. of NCT of Delhi
9th Floor, A-Wing, Delhi Secretariat,
I.P.Estate, New Delhi-110002

 2.	Secretary,
	Department of Health & Family Welfare
	Govt. of NCT of Delhi,
	New Delhi

3.	The Chairman,
UPSC,
Dhoulpur House,
Shahjahan Road,
New Delhi							-Respondents

(By Advocates: Sh Amit Anand for NCT of Delhi
                       Sh. JB Mudgil with Sh. NS Dalal, for UPSC 
    Sh. SB Upadhyay, Sr. Advocate with Ms. Kumud           
    L.Das and Sh. S.S. Tiwary for intervenor/private    
  respondentsOA No. 1453/20101.	Dr. Vineet Relhan, 
	S/o Sh. ND Relhan, 
	R/o 35-F, Sector-7, SFS Flats, 
	Jasola Vihar, Delhi-25

2.	Dr. Sanjiv Mahajan, 
	S/o Sh. L.R. Mahajan, 
	R/o C-1/117, Lajpat Nagar-1,
	New Delhi

3.	Dr. Vishal Kumar, 
	S/o Late Sh. Amarnath, 
	R/o A-207, Narwana Apartments, 
	Plot No.89, IP Ext. Delhi-92				-Applicants

(By Advocates:  Shri Devesh Singh, Sh. RK Shukla, Ms. Harvinder 
      Oberoi and Ms. Bimla for Sh. Ajesh Luthra)


V E R S U S

1.	GNCT of Delhi, 
	Through Chief Secretary, 
	Delhi Sachivalaya, 
	New Delhi

2.	The Lt. Governor, 
	GNCT of Delhi, 
	Rajniwas,Rajpur Road, Delhi

3.	The Principal Secretary (Health),
	Department of Health & Family Welfare, 
	9th Level, Delhi Sachivalaya, 
	New Delhi

4.	Union of India, 
	Through Secretary (Health),
	Ministry of Health and Family Welfare, 
	Nirman Bhawan, New Delhi

5.	Secretary, 
	Union Public Service Commission,
	Dholpur House, New Delhi				-Respondents(By Advocates:  Sh. Amit Anand for NCT of Delhi, Ms. Alka Sharma for UPSC,   Sh. SB Upadhyay, Sr. Advocate with Ms. Kumud L.Das and Sh. S.S. Tiwary for intervenor/private respondents)OA No. 1048/2010Dr. Bimal Kishore, 
S/o Late Sh. Hari Ram Ji, 
R/o 23, C. Hari Badrinath CGHS Ltd.,
4/18, Dwarka, Delhi						-Applicant

(By Advocate:  Sh. Devesh Singh, Sh. RK Shukla, Ms. Harvinder Oberoi and Ms. Bimla for Sh. Ajesh Luthra)-V E R S U S1.	GNCT of Delhi, 
	Through Chief Secretary, 
	Delhi Sachivalaya, 
	New Delhi2.	Secretary Services, 
	GNCT of Delhi, 
	Delhi Sachivalaya, 
	New Delhi3.	The Principal Secretary (Health),
	Department of Health & Family Welfare, 
	9th Level, Delhi Sachivalaya, 
	New Delhi4.	Union of India, 
	Through Secretary (Health),
	Ministry of Health and Family Welfare, 
	Nirman Bhawan, New Delhi5.	Secretary, 
	Union Public Service Commission,
	Dholpur House, New Delhi				-Respondents

(By Advocates:	Sh. Amit Anand for NCT of Delhi,                        Ms. Alka Sharma for UPSC and     Sh. SB Upadhyay, Sr. Advocate with Ms. Kumud  L.Das and Sh. S.S. Tiwary appearing as intervenor/private respondents)OA No. 1209/20111.	Dr. Vikash Kumar Raj, 
	S/o Shri Brajnandan Prasad, 
	Aged about 31 years, 
	R/o 583, DDA Flats, Sector 3,
	Pocket -16, Dwarka, Delhi2.	Dr. Amit Shokeen, 
	S/o Shri Jagbir Singh, 
	Aged about 32 years, 
	R/o H.No.179, Mangolpur Kalan,
	Delhi-853.	Dr. Nageshwar Kumar Nagar, 
	S/o Shri Bhagwat Singh, 
	Aged about 39 years, 
	R/o 2nd Floor, Plot No.3, 
	Friends Enclave, Pitampura, 
	Delhi-344.	Dr. Rajesh Kumar, 
	S/o Shri Om Prakash, 
	Aged about 39 years, 
	H.No.102, Main Bazar, 
	Narela, Delhi-405.	Dr. Sanjay, S/o Sh. Chhote Lal, 
	Aged about 36 years, 
	R/o 165, United Apartments, 
	Plot No.34, Sector 4, Dwarka, 
	Delhi6.	Dr. Suman Sarkar, 
	S/o Shri Ujjal Kumar Sarkar, 
	Aged about 33 years, 
	R/o C-15, 1st Floor, Hari Nagar, 
	New Delhi-1100647.	Dr. Prashant Kumar, 
	S/o Dr. Bachchu Singh, 
	Aged about 36 years, 
	R/o Z-20, Dayalsar Road, 
	Uttam Nagar, New Delhi-598.	Dr. Rakesh Kumar Chaubey, 
	S/o Shri Abhimanyu Chaubey, 
	Aged about 35 years, 
	S.D.D.M.A.S.C. Residential Complex, 
	Type-IV, Q.No.2, Dabri,
	New Delhi-459.	Dr. Sukrit, S/o Sunil Kumar, 
	Aged about 30 years, 
	R/o 322/1, Top Floor, Masjid Modh,
	South Extn.Part-II,
	New Delhi-4910.	Dr. Aseem Taneja, S/o Dr. D.K. Taneja, 
	Aged about 33 years, 
	R/o BJ-91, East Shalimar Bagh, 
	Delhi-88							-Respondents

(By Advocate:  Shri Nilansh Gaur)-V E R S U S-1.	The Principal Secretary
	Ministry of Health & Family Welfare, 
	Government of NCT of Delhi, 
	Delhi Secretariat, IP Estate, 	
	New Delhi

2	Secretary, 
	Union Public Service Commission,
	Dholpur House, New Delhi3.	Chief Secretary, 
	Govt. of NCT of Delhi,
	Delhi Secretariat, 
	IP Estate, New Delhi-024.	The Secretary, 
	Ministry of Health and Family Welfare, 
	Nirman Bhawan, New Delhi				-Respondents

(By Advocate:  Sh. Amit Anand for NCT of Delhi and Sh. JB Mudgil    
with Sh. NS Dalal for UPSC.OA No. 3936/20111.	Dr. Nitin Anand, S/o Mr. Subhash Chander Anand R/o F-6/17, Krishan Nagar, Delhi-51.2.	Dr. Nishi Gupta, D/o Sh. Brij Mohan Gupta. R/o G1/41, Uttam Nagar, New Delhi3.	Dr. Madhu Sinha, R/o C4E/124 Janakpuri New Delhi-584.	Dr. Bhavna Singh Narula, R/o 7-A. Dheeva Arts. Sector-12, Rohini, Delhi-85,5.	Dr. Anuradha Garg, W/o Dr. Dheeraj Garg R/o House No. 18,     Street No. 3, New Krishna Nagar, Delhi-51.6.	Dr. Puja Jain Dewan, W/o Dr. Ashish Dewan R/o 29/409, Eastend Appartment, 	Mayur Vihar, Phase-1. (Ext). Patparganj, Delhi-96.7.	Dr. Meenakshi Sharma, W/o Dr. Amrit Sharma R/o 109, Aashirwad Enclave, Plot 104. IP Ext. Patparganj, Delhi-928.	Dr. Rohit Gupta, S/o Dr. R.K.Gupta, R/o H.No. 6, Sec7A,   Faridabad Haryana-121006.9.	Dr. Rohit Kumar, S/o Sh. R.N. Saxena R/o B-24, Qriwtal Apartment Sec-9, Rohini, Delhi-85.10.	Dr. Vivek Kumar S/o M. P. Singh R/o B-10, Teachers colony Samay Pur 	Delhi-42.11.	Dr. Vikram Kesar, S/o Sh. N. N. Kesar R/o F-13/6, Model Town-II Delhi-912.	Dr. Savita Arora W/o Dr. Peeush Anand R/o-H-85, Residency Gerrns, Sec-46, Gurgaon.13.	Dr. Sunaina Bajaj, D/o Mr. Vinood Kr. Bajaj R/o F-6/17, Krishna Nagar, Delhi-51.14.	Anubha Bansal, W/o Dr. Jitender Kumar Gupta R/o A-1/12, Mohan Garden, New Delhi-59.15.	Dr. Prabhoo Dayal S/o Shri Ganesh Ram (Age 37) R/o 27, West Avenue IIT/ Delhi Campus Haus Khas, New Delhi-16.16.	Dr.. Ashim Banergee, S/o Late Ashok Benergee, R/o B/286, DDA MIG Flats, East of Loni Road, Dekhi-93.
17,	Dr. Sonali Bisht, W/o Dr. S. D. Bisht, R/o B-32, Silver Oak Appt. 109, I. P. Extension Patparganj Delhi-92.18.	Dr. alka Siroha D/o Sh. Budh Singh R/o WP7, Wazirpur, Ashok Vihar, New Delhi-52.19.	Dr. Rashmi, D/o Sh. Sada Nand  R/o C-24, Arya Nagar Appartment Plot No. 91, Patparganj Delhi-92.20.	Dr. Rajani Mandhyan, W/o Dr Prakash Khatri, R/o TP-63m GF, Pitampura, Delhi.21.	Dr. Nandita Joshi, D/o Mr. Madan Joshi, W/o Dr. Nerupam Adlakha, R/o 191, SBI Colony, Paschim Vihar, Delhi22.	Dr. Chavi S. Sharma, W/o Dr. Puneet Sharma, R/o B-77, Vivek Vihar, Phase-II, Delhi.23.	Dr. Rakesh Kumar Prasad, S/o Brahm Dev Prasad Place of working R.T.R.M. Hospital, New Delhi-7324.	Dr. Ritika Gupta, W/o Dhamndis Gupta,25.	Dr. Sunil Solanki, S/o Sh. Sant Ram Solanki R/o H. No. 2, Matiala, New Delhi-59.26.	Dr. Rekha Luthra W/o Dr. Amit Luthra, R/o- 24A, Pocket A, Phase III, Ashok Vihar, Delhi-52.27.	Dr. Rohit Malhotra S/o Sh. Som Parkash Malhotra, R/o Qtrs. No. 1, (Type IV), Residential Complex, Dada Dev Hospital, Dabri, New Delhi-45.28.	Dr. Richa Vaishya W/o Dr. Rahul Gupta, R/o A-16, IInd Floor, Left Side, Jangpura Extension, New Delhi.29.	Dr. G. C. Verma, Resident of 5-A/165, IInd Floor, Gali No.6, WEA, Karol Bagh, Delhi.
(By Advocates:  Shri Arun Bhardwaj, Sh. Sunil Rana, Sh. Balraj Malik)-VERSUS-1.	Govt. of NCT of Delhi through 
	Chief Secretary, Delhi Secretariat, 
	IP Estate, New Delhi2.	Department of Health & Family Welfare, 
	Govt. of NCT of Delhi, New Delhi3.	The Chairman, UPSC, Dhoulpur House, 
	Shahjahan Road, New Delhi4.	The Secretary, Ministry of Health and 
	Family Welfare, Nirman Bhawan, 
	New Delhi							-Respondents 

(By Advocates:  Sh. Amit Anand for NCT of Delhi, Sh. SB Upadhyay, Sr. advocate with Ms. Kumud L. Das and Sh. SS Tiwary for intervenor/private respondents, Sh. JB Mudgil for UPSC and Sh Mitabh Gosain for private respondents) 

O R D E R

Justice S.C. Sharma:All the above OAs involved the same controversy, have been instituted in order to challenge the validity of Rule 6(2) of Delhi Health Service Rules, 2009.  OA No. 1453/2010 and OA No. 1048/2010 have been instituted in order to challenge the provisions of Rule 6(2) regarding inclusion of ad hoc/contractual appointed doctors in different government hospitals because it has been mentioned in Rule 6(2) that the doctors, who were appointed on or before 18.12.2006, will form the constitution of the cadre and these applicants-doctors were appointed in the Central Health Services cadre after conducting due process of selection by the UPSC; whereas ad hoc/contract doctors were appointed by Government of NCT of Delhi without following the normal procedure through UPSC.  OA No. 1259/2011, OA No. 1209/2011 and OA No. 3936/2011 have been instituted by ad hoc/contract doctors appointed after 18.12.2006 and prior to 23.12.2009.  Hence with the consent of the parties, and in order to avoid repetition and avoid conflicting orders, all OAs are decided by a common order.2.	The applicants of OA No. 1453 and OA No. 1048/2010  have instituted the OAs for the following reliefs:-(a)	quash and set aside the impugned rule being arbitrary, illegal and ultra vires the Constitution of India and(b)	direct the respondents to initiate process of direct recruitment for purposes of filling up the posts and consider the applicants therein.(c)	or in the alternative, the applicants be also considered in initial Constitution of service in Specialist sub-cadre of DHS(d)	award costs of the proceedings and(e)	pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.3.	Pleadings of the parties may be summarized as follows:-It has been alleged by the applicants that they are qualified MBBS, MD in different fields.  That they have joined the Central Health Services (hereinafter referred to as CHS) a Group A service consisting of four Sub-Cadres viz. Teaching Specialist Sub-Cadre, Non Teaching Specialist Sub-Cadre, Public Health Sub-Cadre and General Duty Medical Officer Sub-Cadre, in 2001, 1999 and 2007 respectively.  That they were appointed fulfilling all the essential eligibility conditions of Non Teaching Specialist Sub-Cadre and they are posted at present as Specialists in different hospitals.  Government of NCT of Delhi is a participating unit in the CHS and the applicants are posted with the Govt. of NCT of Delhi.  Government of NCT of Delhi does not have a Group A service of its own and as such the CHS officials are posted in Delhi.  Despite the services of the applicants placed at the disposal of GNCT of Delhi, applicants continue to remain under the administrative control of the Ministry of Health and Family Welfare which is the cadre controlling authority for the applicants and other similarly placed doctors working in CHS.  The Gazette Notification dated 8.10.1996 was notified wherein Govt. of NCT of Delhi is shown as a participating unit and the said notification is at Annexure A-2.  That the applicants by virtue of their post-graduate qualification and three years requisite experience were eligible for the post of Non-Teaching Specialists.  They wanted to become Non-Teaching Specialists with the Government earlier also but were denied opportunity since the appointments being made by GNCT of Delhi were only ad hoc/contractual appointments.  That the ad hoc/contractual appointments have no legal right for regularization and this legal position has always discouraged them to join the post in Non-Teaching Specialists Sub-Cadre.  The applicants have earlier been selected for ad hoc/contractual appointments as Specialist by the GNCT of Delhi but due to their regular appointment through UPSC in the CHS as Medical Officer (GDMO Sub-Cadre) they were deprived of the appointment being casual in nature and in this manner, the applicants have been denied grooming up their career as Non-Teaching Specialist.  Under the Rule 6(2), the respondents shall be regularizing contractual Medical Officers also on the post of Junior Specialist.  The mala fide intention has clearly evident from the orders of appointment issued in few cases where appointment to the post of Medical Officer has been made of doctors having P.G. qualification as Jr. Specialist.  That after the grant of Semi-Statehood to Delhi Administration in the year 1992, GNCT of Delhi started appointing certain doctors as Medical Officers on contract basis on a consolidated monthly pay, without insisting them to undergo the prescribed selection process through UPSC.  Simultaneously, GNCT of Delhi stopped getting these newly created posts encadered with CHS.  If the newly created posts are not encadered the cadre controlling authority could not request the UPSC to select the candidates suitable for appointment against these posts.  And in these circumstances, on the one hand, GNCT of Delhi continued to create new posts as per requirement and also continued to fill those on contract basis on the other hand on the premise that regular selections take a lot of time.  Slowly the number of such contractual doctors has increased and these are reasons for creation of DHS.  The CHS consists of four Sub-Cadres whereas DHS is being proposed for two cadres only i.e. Non Teaching Specialist Cadre and General Duty Medical Officer.  The respondents No. 1 to 3 alone can explain the reason behind this action.  The GNCT of Delhi continued recruiting contractual doctors in direct contrast to the Government of India, Ministry of DOPT OM dated 23.7.2001.  The OM clearly directed that no appointment shall be made on ad hoc basis by direct recruitment from open market and where the vacant posts cannot be kept vacant for functional consideration.  The appointment of such officers was also without following the due process and with an understanding and stipulation that such a service would not confer to them either any right of regular appointment or seniority to be reckoned from the aforesaid date.  The respondents No.1 to 3 have never sought any concurrence from DOP&T.   The method of recruitment adopted when a vacancy arisen is on either ad hoc or contract basis without any referral to the UPSC.  The first batch of contract/ad hoc specialists was appointed without any requisite experience and eligibility conditions.  There were no existing notified recruitment rules for the posts of Specialists and GDMO,  Govt. of NCT of Delhi. A reference was made to the UPSC.  The GNCT of Dehi being only a Union Territory did not have power to recruit Group A service.  A letter was also written in this connection by the Ministry of Health & Family Welfare-respondent to the Principal Secretary (Health), Govt. of NCT of Delhi.  That the ad hoc/contractual appointments were made without consultation with the UPSC and these recruitment are dehors the rules and GNCT of Delhi allowed the posts to accumulate thus the contractual doctors have grown manifold.   That on 13.11.2006, a Cabinet meeting of GNCT of Delhi took place and the Cabinet approved the recommendation of respondent No.3 and decided to formulate the new service known as Delhi Health Service.The decision of Govt. of NCT of Delhi dated 13.11.2006 is annexed as Annexure A-6.  The initial methodology adopted was not to repatriate or to surrender the CHS officers who have been functioning in Govt. of Delhi but they were offered to exercise option to be a part of new service and at the same time appointment on contract/ad hoc basis from 1995 onwards shall be a part of the DHS, and in this connection, a decision was taken.   It was also decided that future management of the new service Ministry will not fill up the vacant posts of GDMO teaching and non-specialist cadre instead transfer the vacant post to the cadre proposed for Delhi was agreed upon.  And in this connection, the judgment of the Honble Supreme Court in the case ofSecretary, State of Karnataka and others v. Umadevi and others, 2006 (4) SCC 1.  It was not clarified before the Cabinet of Delhi that respondent No.4, cadre controlling authority, has taken a decision to de-cadre the CHS posts.  Vide OM dated 18.12.2006, Allopathic system of medicine has been constituted DHS-a new Group A Service.  It was also inter alia notified that GNCT of Delhi has decided to seek option from members of CHS who were appointed on the basis of Combined Medical Services Examination held by UPSC.  And it was also notified that officers who intend to remain in CHS are liable to be posted anywhere in India.  Vide Gazette Notification dated 23.12.2009, the Delhi Health Service (Allopathy) Rules 2009 were notified in the Delhi Gazette. Annexure A-10 is the copy of the notification and the public notice was also issued in national dailies.  Earlier numerous cases were filed by ad hoc/casual/contractual doctors that they may be regularized, but the Tribunal had not accepted the claim for regularization and the Tribunal recorded a finding that these were backdoor entries and they may be entitled for regular appointments as per rules and not for regularization.  Although Tribunal awarded regular scales and restrained the Government to dispense with their service till regular appointee joins.   The doctors, who were appointed in casual/ad hoc basis, were without facing an open competition and without any recruitment drive by the UPSC, and now the Tribunal had already dismissed their plea for regularization but the Govt. of NCT of Delhi are inducting such doctors through backdoor method in the DHS-a new Service.  It is provided in Rule 6(1) that all Non Teaching Specialists appointed under the CHS Rules 1996 and working with the GNCT of Delhi as on the date of publication of said rules and who opt to be a part of the service shall be deemed to have been appointed as Non Teaching Specialists in the Delhi Health Service.  As per Rule 6(2), all such ad hoc/(contractual appointees till 18.12.2006 shall also form part of initial constitution.  They are merely to be assessed by UPSC for the purposes of suitability and it is absolutely illegal.  That the direct recruitment was made by illegal appointment under initial constitution.  At the time of appointment on ad hoc/contractual basis, there was no stipulation of promotion that such contractual appointments would be regularized.  These appointments were made with the stipulation that these appointments were only for a specific period conferring no right for regularization and were to be continued till regular appointee joins.  The State is under no obligation to include such contractual appointment for initial constitution of the service and all the posts must be advertised. In view ofArticle 320of the Constitution, it is the constitutional duty of UPSC to conduct the examination for appointments to the public service of State.  Assessment in regard to suitability is not compliance that the respondents are going to make the rules against the provisions of law and judgment of the Honble Supreme Court.  Hence, these deserve to be quashed so far as relates to Rule 6(2) of Delhi Health Service (Allopathic) Rules 2009.4.	The respondents contested the case and filed the counter reply.  Separate counter affidavits have been filed on behalf of the Govt. of NCT of Delhi and UPSC, respondent No.5.  It has been alleged by the Govt. of NCT of Delhi in counter reply that Delhi Health Service (Allopathy) Rules, 2009 have been duly notified on 23.12.2009 and these include all the service conditions.  The DHS has been constituted as there was no separate health cadre of Government of NCT of Delhi and it was dependent on Ministry of Health & Family Welfare, Government of India.  Government of India did not encadre the newly created posts of doctor for a long time and also suggested that Delhi Government should have its own cadre.  The decision for formation of new service was taken in consultation with the Ministry of Health & Family Welfare, Govt. of India.  As per Rule 6(1), it has been mentioned that the officer appointed under the Central Health Service Rules, 1996, who had been working in the Govt. of NCT of Delhi as on the date of publication of these rules and who opt to be part of the service shall be deemed to have been appointed under these rules and they shall be members of the service in the respective grades.  It is also provided that as per Rule 6(2) of the DHS (Allopathic) Rules, 2009 the contract doctors shall not automatically become the part of DHS but they sill be subject to assessment of their suitability by the Commission and requisite qualifications and experience prescribed for the post and being found fit, shall be deemed to have been appointed under these rules and assigned to the sub-cadres of GDMO or Non Teaching Specialist, as the case may be, and they shall be members of the Service at the entry level of the respective sub-cadre at the initial constitution stage.  Hence, it is wrong to allege that there will be any backdoor entry and deprive the applicants of the reasonable opportunity.  It was decided with the consultation of the Ministry of Health and Family Welfare, Govt. of India, that in the first phase Government of NCT of Delhi should take up these 2 cadres i.e. Non Teaching Specialist and General Duty Medical Officer for the purpose of formation of Delhi Health Service.  Teaching sub-cadre and Public Health Sub-cadre shall be subsequently included in Delhi Health Service.  A communication to the CHS, Government of India regarding consent for induction of teaching cadre and Public Health Sub-Cadre into Delhi Health Service has already been sent.   That the Ministry of Health & Family Welfare Govt. of India did not encadre the posts of doctors of Delhi Government in the year 1996 onwards and had suggested that Government of NCT of Delhi should have its own cadre for filling up of vacant posts of doctors in consultation with them.  Keeping in view the fact that the population of Delhi has been increasing day-by-day and the needs to provide Good Health Delivery to all, the residents of Delhi, necessitated the opening up gradation of hospitals and consequently creation of posts and recruitment of doctors.  In past Delhi Government did not have its own cadre and formation of being a long process took time and to meet the requirement of providing health facilities to the people, Delhi Government has been recruiting doctors on contract basis in public interest.  That the recruitment of contract doctors has been done keeping in view the provisions of CHS Rules, as the rules of Delhi Government have not been framed.   That such doctors will be subject to assessment of their suitability by the Commission and requisite qualification and experience prescribed for the post and being found fit, shall be deemed to have been appointed under these Rules.  That the OA lacks merit and is liable to be dismissed.5.	The respondent No.5, UPSC, filed a separate counter affidavit.  It has been alleged that proposal of the Govt. of NCT of Delhi  for framing of National Capital Territory of Delhi Health Service (Allopathy) Rules, was initially received on 18.2.2008 (Annexure R-4-1) and the proposal was examined and after series of discussion with the representative of the Government of NCT of Delhi, various clarifications were sought from the Department.  The proposal of the Government of NCT of Delhi was based on the decision of the Government of Delhi to form a new Service known as National Capital Territory of Delhi Health Service.  The OM was issued on 18.12.2006.  It was also stated by the GNCT of Delhi that existing members of the CHS shall be appointed in the new Service under the scheme of initial constitution to the extent of posts that may be de-cadred from the Central Health Service subject to suitability and acceptability of the concerned officer for which option shall be sought by the Govt. of NCT of Delhi as well as from CHS doctors.  The Commission considered various legal aspects having a bearing on the judgments of the Apex Court including the case of Secretary, State of Karnataka and Ors. vs. Uma Devi and others.  The Commission concurred to the proposal of the Government of Delhi for inclusion of contractually employed Medical Officers as well as Specialists in the mainstream of the Delhi Health Service in respect of those contract/ad hoc doctors who were on post as on the date of constitution of the service i.e. 18.12.2006 and their suitability shall be decided by the Commission.  A proposal was also received by the Government of NCT of Delhi for regularization of the contract employees who were on the post on the date of notification of rules that there is no bar in creation of new Service Rules by the Govt. of NCT of Delhi.  That the OA is liable to be dismissed.6.	There is another group of doctors working with the Government of NCT of Delhi on contract/ad hoc basis who were appointed in the period from 18.12.2006 to 23.12.2009. And they have filed separate OAs for the following relief:-(i)	to quash and set aside the para 6 of the Recruitment Rules of DHS (Allopathy) dated 23.12.2009.(ii)	To direct the respondents to consider the applicants as deemed members/initial constituents in their respective sub-cadre as initial constitution of the service,(iii)	To allow the original application with cost of the litigation.(iv)	To pass such other and further order which their Lordships of this Honble Tribunal fit and proper in existing terms and circumstances of the case.7.	It has been alleged by the applicants that they were appointed as qualified doctors by the Government of NCT of Delhi on contact/ad hoc basis in the period from 18.12.2006 to 23.12.2009 that the date on which the notification was issued and they had been working in various hospital/dispensaries at different places of Delhi.  That till 1996, the requirements of doctors for the purpose of operation and maintenance of health delivery in the NCT of Delhi were being met exclusively from the Central Health Service cadre.  In 1990, the Central Government stopped the process of en-cadrement of new posts that were created by the Lieutenant Governor of NCT of Delhi to meet the growing requirement of health delivery.  Consequently, a large number of such posts remained outside the Central Health Services cadre.  As it was practically difficult in managing the health services  in NCT of Delhi.  Hence, the proposal was put up before the Cabinet when a decision was taken on 13.11.2006 for creation of DHS.  The Govt. of NCT of Delhi continued the practice of contract appointment and extended the term of engagement of the doctors appointed on contract/ad hoc on year to year basis.  It was adversely affecting the quality of health service.  In order to resolve the impasse, on 26.4.2006 a meeting was held between the officers of the Government of NCT of Delhi and the Ministry of Health & Family Welfare wherein it was decided that a practical solution to the current impasse lies in requesting the Government of NCT of Delhi to form its own cadre of doctors.   On 18.12.2006, in pursuance of the Cabinet decision, an OM was issued by the Government of NCT of Delhi for formation of new Service, known as Delhi Health Service for medical officers under the allopathic system of medicine.  That during the period of 18.12.2006 and 23.12.2009, Govt. of NCT of Delhi continued to make contractual/ad hoc appointments of Medical Officers and Government of Delhi continued to adopt the practice which was prevalent prior to 18.12.2006 for appointment on contract basis.  That the applicants were appointed by the competent authority after following the prescribed guidelines under CHS Rules 1982 as in the case of the doctors who were appointed prior to 18.12.2006 on contract/ad hoc basis.   The representation was submitted by the applicants regarding inclusion of names of the applicants in DHS and they must not be deprived just because they were recruited after 18.12.2006.  It has been provided in the OM that the doctors who were appointed on or before 18.12.2006 shall be deemed to have been appointed under these rules.  Hence, Para 6(2) of the Recruitment Rules is highly arbitrary, discriminatory and biased and violative ofArticles 14and16of the Constitution.  There is no rational in fixing a cut-off date.  There appears no justification for getting the matter pending from 18.12.2006 to 23.12.2009.8.	The respondents contested the case and filed the counter reply.  Respondents No.1 and 2 filed separate counter affidavits; whereas respondent No.3 i.e. UPSC filed separate counter affidavit.  It is not necessary to repeat the facts.  However, it has been alleged by the respondents No.1 and 2 that as after 1996, the Ministry of Health and Family Welfare stopped encadre CHS doctors when a suggestion was given by State of Delhi to create their own cadre of doctors.  Hence, after 1996, appointments were made of the doctors after following the due process except through Public Service Commission on ad hoc/contractual basis.  On 26.4.2006, a meeting was conducted between the officers of the Govt. of NCT of Delhi and Ministry of Health and Family Welfare and it was decided that the solution lies that the Govt. of NCT of Delhi must form its own cadre of doctors and it will relieve the Central Government of the responsibility of servicing the requirements of Government of NCT of Delhi from the Central Health Service Cadre on one hand and empower the Government of NCT of Delhi to overcome the said difficulties that were being faced by it in organizing the health services.  It was agreed that initial constitution of the new Service would be drawn from two sources: (a) Member of the CHS who opt to be a part of the new Service being proposed.  (b) Individuals who have been appointed by the Government of NCT of Delhi on contract basis against ex-cadre posts from the year 1995-96 onwards.  That the appointments on ad hoc/contract basis were made by a stop gap arrangement.  Initially, these appointments were made on six months basis and at present for a period of one year.   The DHS (Allopathy) Rules, 2009 has been notified on 23.12.2009.  It was also decided as per OM dated 18.12.2006 that the doctors belonging to two streams i.e. GDMO and Non Teaching sub cadre who are/were working on contract basis on or before 18.12.2006 would be included in its initial constitution of Delhi Health Service.  Although Govt. of NCT of Delhi requested UPSC i.e. competent authority vide reference dated 9.2.2010, 11.5.2010 and 17.6.2010, for the inclusion of doctors belonging to above streams who were appointed between 18.12.2006 and 23.12.2009 i.e. the date of notification of RRs.  But the UPSC vide its letter dated 14.6.2011 have advised retention of the provision as available in Rule 6(2) of the Delhi Health Service Rules 2009.  That as OM was issued on 18.12.2006, hence this is the cut-off date.  It is wrong to allege that this date is irrational.9.	The UPSC, respondent No.3, in the separate counter affidavit rebutted the same facts which have been alleged in the connected OAs.  Hence, it is not necessary to reproduce the same  However, it has also been alleged that the UPSC is a constitutional body and discharge its functions in terms ofArticle 320of the Constitution.  In terms of the aforementioned conditional provision, Govt. of NCT of Delhi is required to frame the RRs in consultation with the UPSC.  That the proposal of the Government of NCT of Delhi for framing of National Capital Territory of Delhi Health Service (Allopathy) Rules, were initially received on 18.12.2008 and it was examined on various angles.  The proposal of Government of NCT was based on the decision to form a new Service vide OM dated 18.12.2006.  It is wrong to allege that the cut-off date is wrongly fixed.   In response to the counter reply filed on behalf of the respondents, on behalf of the applicants, rejoinder affidavit has also been filed.  They have reiterated the facts which have been alleged in the OAs.  Hence, it is not necessary to repeat the same facts.10.	We have heard Shri V.Shekhar, senior advocate, with Ms. Jagriti Singh, Sh. Sunil Rana, Sh. Sanjeev Rathi, Sh. Nilansh Gaur, Sh. Arun Bhardwaj, Sh. Sunil Rana, Sh. Balraj Malik, Sh. Davesh Singh, Sh. RK Shukla, Ms. Harvinder Oberoi and Sh. Ajesh Luthra for the applicants, and Sh. S.B. Upadhyay, senior advocate with Ms. Kumud L. Das, Sh. SS Tiwary, Sh. Amit Anand, Sh. JB Mudgil and Ms. Alka Sharma, advocate for the respondents.  Some advocates are on behalf of the applicants in one OA and some advocates on behalf of the respondents in another OAs.  Hence, it may not be confused that it has wrongly been mentioned that who is appearing on behalf of whose party.11.	From perusal of the pleadings of the parties, it is an admitted fact that prior to framing of Rules known as Delhi Health Service (Allopathy) Rules, 2009, there was no separate health service/cadre of the Govt. of NCT of Delhi.  Doctors working in the CHS cadre had been working in the capacity of GDMO and Non Teaching Specialist in different hospitals under Government of NCT of Delhi but the position has changed since the year 1996.  Ministry of Health and Family Welfare issued a notification dated 8.10.1996 regarding the framing of rules underArticle 306of the Constitution and in supersession of the Central Health Service Rules, 1982 and these rules were called Central Health Service 1996.  In the year 1996, the Ministry of Health and Family Welfare, Government of India, stopped to encadre the post of doctors of Delhi Government and the Ministry of Health and Family Welfare suggested that the Government of NCT of Delhi should have its own cadre for filling up the vacant post of doctors in consultation with them.   The Govt. of NCT of Delhi did not have its own cadre and the formation of the cadre is a long process and in order to meet the requirement of providing health service to the people, Delhi Government has been recruiting doctors on contract basis in public interest.  Doctors were also appointed on ad hoc basis.  Thereafter on 26.4.2006, a joint meeting held and in that meeting, it was suggested by the Central Government, Ministry of Health and Family Welfare to the Govt. of NCT of Delhi to form its own cadre. And the Government of NCT of Delhi also decided to form a separate cadre for doctors employed in the hospitals run by the Govt. of NCT of Delhi and in this connection, a note was put up by the Health Minister for Govt. of NCT for consideration by the Cabinet of Government of NCT of Delhi.  In the month of November, discussion and deliberations took place amongst various officials and authorities of the Government of NCT of Delhi and strong recommendation was made to the Lt. Governor of Delhi to form a new cadre for doctors engaged in the Delhi Government hospitals.  And on 18.12.2006, office memorandum was issued by the Government of NCT of Delhi for forming a new service to be known as Delhi Health Service (Allopathy) for medical practitioners, and this was only a preparatory step.  In pursuance of the office memorandum dated 18.12.2006, a notification was not issued immediately and the Government of NCT of  Delhi, in order to meet the requirement of the increasing population of the State, continue to appoint and engage doctors on contract basis.  Certain doctors were appointed up to the date of issue of notification dated 23.12.2009 and on 23.12.2009, Govt. of NCT of Delhi issued the notification constituting the Delhi Health Services and the cut-off date for being included in the service or cadre was 18.12.2006 as set out in Para 6(2).  Doctors, who came under CHS Scheme, were also included in the service/cadre, if they were in the service on the date of issue of notification i.e. 23.12.2009.  And consequently, provisions 6(1) and 6(2) were framed respectively for (a) CHS doctors and (b) for adhoc/contractual doctors appointed on or before 18.12.2006.  Because the doctors were also appointed post 18.12.2006 and prior to 23.12.2009, hence these doctors have also filed separate OA in order to challenge 6(2) of the Rules.  We have to decide the legality and validity of 6(2) of Delhi Health Service (Allopathy) Rules, 2009.12.	In view ofArticle 309of the Constitution of India, the Union of India or State Government may frame the rules for recruitment and conditions of service.  It has been provided under this Article:-Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor (***) of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.13.	It has been argued by the applicants advocate as well as by the advocate for Government of NCT of Delhi that Government of NCT of Delhi was empowered to frame the recruitment and conditions of service rules for doctors.  The applicants have not challenged the competency, authenticity and eligibility of the Government of NCT of Delhi in framing the rules.  Only Provision 6(2) has been challenged by the CHS doctors as well as by the doctors who were appointed post 18.12.2006 up to 23.12.2009.  The CHS doctors are claiming that as in view of Rule 6(2), the services of ad hoc/contractual doctors is sought to be regularized, hence it is unconstitutional and it is against the judgment of the Honble Supreme Court delivered in the case ofSecretary, State of Karnataka and others v. Umadevi and others.  Annexure A/6 is the copy of the note of council of ministers and the subject was proposal for formation of new Service Delhi Health Service for managing health delivery in the NCT of Delhi.  And in pursuance of the approval of the Cabinet note on 23.12.2009, Health and Family Welfare Department of the Govt. of NCT of Delhi issued a notification for formation of Delhi Health Service. Annexure A-10 is the copy of the notification issued by the Health and Family Welfare Department, Govt. of NCT of Delhi. We have tried to ascertain that whether this notification was issued perfectly in consonance with the Cabinet note put up before the Cabinet and approved by the Lt. Governor, Govt. of NCT of Delhi. We are of the opinion that the notification issued on 23.12.2009 is perfectly in accordance with the Cabinet note.  We are concerned with Rule 6(1) and 6(2) of these Rules because the validity of Rule 6(2) has been challenged.  Undisputedly, Rule 6(1) is meant for CHS doctors which is reproduced as follows:-All the officers appointed under the Central Health Service Rules, 1996, who are working in the Government of NCT of Delhi as on the date of publication of these rules in the official gazette and who opt to be part of this service shall be deemed to have been appointed under these rules and they shall be members of the service in the respective grades. 

Hence, perusal of the Rule 6(1) provides that all the doctors appointed under the CHS Rules 1996 working with the Govt. of NCT of Delhi on the date of publication of the Rules in the official gazette and opt to be part of the service, shall be deemed to have been appointed under these Rules and they said the members of the service.  The CHS doctors, who have challenged the validity of 6(2), have not stated that this provision is unconstitutional or invalid, but they are challenging the inclusion of the doctors who were appointed on contract/ad hoc basis on or before 18.12.2006.  As we have stated above that the Govt. of NCT of Delhi continue to make appointments post 18.12.2006 the date of issue of OM upto 23.12.2009 the date of issue of notification in the official gazette, and hence different category has come forward to challenge the cut-off date i.e. 18.12.2006 and it is stated that this cut-off date is irrational.  Firstly, we will have to examine the validity of 6(2), and if we conclude that the provision 6(2) of the Rules is unconstitutional, then we will not require to consider the rational of the cut-off date i.e. 18.12.2006.  It has been argued by the learned advocate for the respondents that prior to framing Delhi Health Service (Allopathy) Rules, 2009 a concurrence of the UPSC was also obtained.  It has been alleged by respondents No.5, UPSC, that the proposal was initially received from the Govt. of NCT of Delhi on 18.2.2008 (Annexure R-1) and it was examined and after series of discussion with the representative of the Government of Delhi, various clarifications were sought from the department.  The proposal of the Government was based on the decision of the Government of Delhi to form a new service known as National Capital Territory of Delhi Health Service for Medical Practitioners under Allopathy system, and OM was issued in this respect on 18.2.2006. It was also agreed by the Govt. of NCT of Delhi with the approval of the Central Government that it will appoint existing members of CHS in the new service on the scheme of initial constitution to the extent of post that may be de-cadred from CHS subject to the suitability and eligibility of the concerned officer for which option shall be sought by the Government of NCT of Delhi for members of CHS.  The advice of the UPSC was conveyed to the Govt. of NCT of Delhi to notify the rules as approved by the Commission and thereafter, the Govt. of NCT of Delhi issued the notification 2009 as approved by the commission and as suggested in the OM that 18.12.2006 shall be the cut-off date for inclusion of the doctors, who had been working on or before 18.12.2006 on ad hoc/contractual basis, in the initial constitution of the cadre.  It has been provided underArticle 320of the Constitution of India that it shall be the duty of the Union and the State Public Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.  And it shall also be the duty of the Union Public Service Commission, if requested by any two or more states so to do, to assist those States in framing and operating schemes of joint recruitment for any services.  Accordingly, in view ofArticle 320, the UPSC advised the Govt. of NCT of Delhi to frame the rules for the newly created service for the doctors.14.	Prior to considering the point of inclusion of ad hoc/contractual appointed doctors in the initial constitution of the cadre, it will be material to state and it was also argued by the learned advocate for the applicants that various letters were written by the Government of NCT of Delhi on 9.12.2010, 10.5.2010 and 17.6.2010 to include the doctors in the initial constitution of the cadre who were appointed on contract/ad hoc basis post 18.12.2006 but before issuing notification on 23.12.2009.  The respondent-Govt. of NCT of Delhi has not disputed this fact.  But it has been argued that the UPSC has not agreed to the request of the Govt. of NCT of Delhi to include the contractual/ad hoc appointed doctors            post-18.12.2006.  In this connection, Clause 18 of the Rules will be material.  It has been provided in Clause 18 interpretation, if any questioned relating to the interpretation of these rules, it shall be decided by the Government in consultation with the Commission. And it has been stated on behalf of the applicants who are post-18.12.2006 appointees that when the Government of NCT of Delhi suggested that post-18.12.2006 appointees are also to be included in the initial constitution of the cadre, and if the Commission did not agree, then the Government of NCT of Delhi should have taken a decision, and the final authority, in these circumstances, might have been the Govt. of NCT of Delhi and that might prevail.  But in our opinion, the decision regarding the cut-off date is not included in the interpretation.  It may be a fact that the Government of NCT of Delhi subsequent to the publication of the notification, suggested the UPSC to include post-18.12.2006 appointees, but the UPSC has not acceded to that.  Hence, it cannot be said that the Government of NCT of Delhi or UPSC has committed some manifest errors.  Moreover, it is the Government of NCT of Delhi who decide that 18.12.2006 will be the cut-off date for the purpose of inclusion of contractual/ad hoc appointees in the initial constitution of the cadre.15.	It has been argued by the advocate of the CHS doctors, Mr. Devesh Singh that the decision of the Govt. of NCT of Delhi of inclusion of contractual doctors for initial constitution of the cadre was unconstitutional.  That the Honble Supreme Court in the case of Uma Devi (supra) has decided that ad hoc or contractual appointees cannot be regularized.  The Honble Apex Court in the judgment reported in JT 2006(4) 420, has held as under:-Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting underArticle 226of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.16.	We have perused the judgment of the Honble Supreme Court and it has been held that unless the appointment is made in terms of the relevant rules and after proper competition among qualified persons, the same would not confer any right on the appointee.  The contractual appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, then the courts must not pass an order for absorption or regularization or permanent continuance unless recruitment itself was made regularly in terms of the constitution scheme.  The learned advocate argued that the contractual/ad hoc appointees were ranked outsider and their appointment was without following any procedure; whereas, the applicants were duly appointed through the Commission on attaining the experience of certain years of service and the contractual/ad hoc appointees were appointed illegally.  It will be material to state that if the employment has been made without following the relevant rules for appointment, but in the present case, we have specifically stated that for the appointment of doctors, no rule was existing and to meet the day to day requirement of the increasing population of the State of Delhi, ad hoc/contractual appointments were made.  Hence, it cannot be said that the appointments of the contractual/ad hoc doctors were made illegally and in violation of the existing Rules.  In the year 1996, the Ministry of Health and Family Welfare, Union of India, suggested to the Government of NCT of Delhi to create its own cadre of doctors and refused to encadre the CHS doctors.  Hence, it was the dire need to meet the requirement of the public that ad hoc/contractual appointments were made  If the Rules might have been existing and the appointments were made in violation of the existing Rules, then it can be said that in view of the judgment of the Supreme Court in Uma Devi (supra), the appointments were made illegally, in valid and hence, they cannot be included in the initial constitution of the cadre.  We are not dealing with the matter of absorption or regularization of the ad hoc/contractual doctors, but we are dealing with the matter of inclusion of these contractual/ad hoc doctors also in the initial constitution of the cadre.   Hence, we have to follow this exigency also and will have to keep in mind that whether the Rules could have been followed in making the ad hoc appointments or contractual appointments.  However, it has also been argued by the advocate for Govt. of NCT of Delhi that these contractual/ad hoc doctors were also appointed possessing requisite qualifications and their eligibility was also decided by the competent authority and hence, it cannot be said that their appointments were made illegally in violation of the rules.  In this connection, the learned advocate for applicants cited the judgment of the Honble Supreme Court reported in (2006) 7 SCC 684 Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad & Ors..  The same principle has been laid down by the Honble Supreme Court as has been decided in the case of Uma Devi (supra), But we have stated above that the facts were slightly different in the present case.  Considering the facts of the case as stated above, we are required to decide-what type of doctors are required to be included in the initial constitution of the newly cadre service.  We have also stated that earlier there was no Service Rules of the Govt. of NCT of Delhi for the appointment of doctors, and it was in the year 2006 that after the decision of the Cabinet approved by the Lt. Governor of Delhi, an OM was issued for inclusion of the ad hoc/contractual appointees in the initial constitution of the cadre in view of Section 6(2) of the Rules.  We have been given to understand that guidelines were prepared for framing/amendment/relaxation of the Recruitment Rules, and it has been provided in Part 3 of the Guidelines on preparing schedule & notification Initial Constitution  In cases where a new service is formed and the Recruitment Rules are framed for the first time and that there are officers already holding different categories of posts proposed to be included in the service on a regular/long term basis, a suitable Initial Constitution Clause may be inserted in the Notification so as to count the regular service rendered by such officers before the date of notification of the Rules.. In view of this Rule, for initial constitution of the cadre, it has been provided that for the first time the officers already holding different categories of posts may be included in the service and on the strength of these Rules, it has been argued by the learned advocate for the respondents that respondents were justified to frame the Rule 6(2) to include the ad hoc/contractual appointed doctors.The learned advocate for the respondents also cited the judgment of the Honble Supreme Court reporting in (1981) 3 SCC 271 S.S. Moghe & Ors. Vs. Union of India & Ors.  Ithas been decided by the Honble Supreme Court that when a new service is proposed to be constituted by the government, it is fully within the competence of the government to decide as a matter of policy the sources from which the personnel required for manning the Service are to be drawn.  It is in the exercise of the said power vested in the government, that the impugned provision has been made by sub-rule (1).  The direct recruits as well as deputations were all functioning in the temporary ARC Organization on an ad hoc basis.  Equal opportunity was given to all of them by sub-rule (1) of Rule 6 to get permanently appointed in the new ARC (Technical) Service subject to their being found fit by the Screening Committee referred to in sub-rule (2).  Therefore, Rule 6(1) cannot be said to be violative ofArticles 14and 16. On the strength of the judgment of the Supreme Court, it has been argued by the learned advocate for the respondents that even ad hoc/contractual appointees can be included in the initial constitution of the cadre, and it is within the competence of the Government to decide as a matter of policy the sources from which the person required for manning the service are to be drawn.    The learned advocate for the respondents argued that the Government of NCT of Delhi to their wisdom decided that the ad hoc/contractual appointees must also form the initial constitution of the cadre of DHS.  The learned advocate for the respondents also argued that all the ad hoc/contractual doctors will not be included in the initial cadre without following the due process of law. Even in the matter of ad hoc/contractual appointees, due procedure shall be followed and the suitability will be decided by the UPSC and the eligibility will be decided by the Govt. of NCT of Delhi and the Honble Supreme Court has also held that by the Screening Committee, it must be decided that they are fit and in the present case, the suitability shall be decided by the UPSC.  Hence, it cannot be said that ad hoc/contractual appointees prior to 18.12.2006 shall be included without following the due process of law, and at the time of initial constitution of the cadre, the Government is within its right.17.	The learned advocate for the respondents also argued and cited the judgment of the Honble Supreme Court reported in (2009) 4 SCC 753 Dilip Kumar Garg and Anr. Vs. State of Uttar Pradesh & Ors.  The learned advocate argued that the Supreme Court has held that to what extent the courts and the tribunals can exercise the power of judicial review and it must not be to the stage of breaking.  The Honble Supreme Court has held that In our opinionArticle 14should not be stretched too far, otherwise it will make the functioning of the administration impossible.  The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal  The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions.18.	Hence, in view of the judgment of the Honble Supreme Court,Article 14of the Constitution should not be stretched too far, otherwise it will make the functioning of the administration impossible.  The learned advocate for the respondents also cited in this connection the judgments of the Honble Supreme Court reported in (1990) 2 SCC 707 Mallikarjuna Rao & Ors. Vs. State of Andhra Pradesh & Ors. and (1993) 2 SC 340 P.Murugesan & Ors. Vs. State of Tamil Nadu & Ors.   The learned advocate also argued that the Government has the prominence in framing the rules and there is nothing unconstitutional or violation of the provision.  That the CHS doctors have got the right to exercise their option either to be included in the initial constitution of the service or to go to their parent CHS service because their seniority shall be maintained there.And in this connection, the learned advocate for the respondents cited the judgment of the Honble Supreme Court reported in (1992) 4 SCC 683 R.N. Gosain Vs. Yashpal Dhir.  It has been held by the Honble Supreme Court that Law does not permit a person to both approbate and reprobate.  This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage...  The learned advocate for the respondents argued that CHS doctors are not challenging the validity of 2009 Rules, but they are challenging only the provisions of Rule 6(2) of the Rules which is relating to the ad hoc/contractual appointments.  Rule 6(1) is meant for the CHS doctors.  They shall also be included in the initial constitution of the cadre and those, who had been working on the date of issue of notification, shall be included in the initial constitution of the cadre subject to filing the option in this connection, otherwise they will be reverted back to their parent CHS.  The applicants-CHS doctors have not challenged the validity of 6(1) for inclusion of the CHS doctors and they have also not challenged the validity of Rules for creation of new cadre DHS Rules 2009, but they have only challenged the provisions of 6(2).   The applicants shall be benefited by provision 6(1), and hence they have opted not to challenge this provision and they have only opted to challenge 6(2) which is not beneficial to them.  In view of judgment of the Honble Supreme Court as quoted above, it is not permissible to the applicants.19.	It has been argued by Mr. Devesh Singh, advocate for CHS doctors, that earlier ad hoc/contractual doctors filed Original Applications No.2108/99, 2749/99, 2843/99,2546/97, 2584/97, 2983/97, 2590/97, 2858/97, 2685/97, 2750/97, 114/98 and  115/98 in the years 1999-2002 claiming regular pay scales and continuity of service.  That the Tribunal had awarded them the regular scales and also restrained the Government to dispense with their services till regular appointee joins.  The ad hoc/contractual appointed doctors also filed different OAs for regularization of their service, but the Tribunal recorded a categorical finding that this was a backdoor entry and also that many other eligible candidates have been denied opportunity for appointments and the advertisement was issued for contractual/ad hoc appointees and there were also chances of favouritism by the departmental committees making selection, and the UPSC was not involved in making the selection and the Tribunal also decided that the contractual appointees cannot be stated as a separate bloc and the UPSC cannot be directed to consider their claims wholly on the basis of their performance in ad hoc service and the OA No. 988/2011 with connected OAs was decided on 19.9.2002. Annexure A/12 is the copy of the order of the Tribunal.  The Tribunal has decided and observed the applicants in these OAs have been appointed on ad hoc basis some time in the later part of 1998.  No doubt, they have been appointed in pursuance of the advertisement issued in May/July/August/1998 and as many as 234 candidates were interviewed, out of whom a totally 35 including some of the applicants in these OAs were recommended for ad hoc appointments. The vacancies then available were shown as 23 ad hoc service is something unknown to the relevant rules and the procedure.  Following such a hybrid procedure cannot be sustained in law, and for this, reasons are available in plenty in the cases ofJ.K. Public Service Committee & Others(supra) andShri Sandeep & Others(supra).  With these observations, the OAs were dismissed which were then filed for regularization of the ad hoc/contractual doctors.  The learned advocate also argued that the judgment was also upheld by the Honble Supreme Court.In this connection, the learned advocate for the applicants also cited judgment of the Honble Supreme Court reported in (2007) 1 SCC 353 Municipal Corporation of Jabalpur Vs. Om Prakash.  But we are dealing with the case of initial constitution of the service/cadre and who will be included in the initial constitution of the cadre is the sole prerogative of the Government concerned in view ofArticle 309of the Constitution of India.20.	Much reliance has been placed by the advocate for CHS doctors, Mr. Devesh Singh, on the judgment of the Honble Supreme Court reported in (1983) 1 SCC 305 D.S. Nakara & Ors. Vs. Union of India.  The Honble Apex Court has held if the liberalization was considered essential for augmenting social security in old age to government servants, then those who retired earlier cannot be worse off than those who retired later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date.  Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service.  How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension?..................  The matter before the Honble Apex Court was regarding the two categories of pensioners; one who retired prior to a specific date, and those who retired after a specified date and two different categories were created.  It was held by the Honble Apex Court that it was not permissible.  We have also perused the relevant portion of the judgment.  There can be no denial of the fact that the division in a homogenous class is not permissible, but where the question is regarding creation of a new service/cadre and the question arises as to who must be included in the initial constitution of the service/cadre.  The Honble Supreme Court in the earlier judgment had held that even ad hoc employees can be included in the initial constitution of the service and it is prerogative of the Government to include the categories of employees in the initial constitution of the service.  Government of NCT of Delhi in their wisdom decided that those CHS doctors, who had been working with the Govt. of NCT of Delhi on the date of issue of notification dated 23.12.2009, shall be included in the initial constitution of the cadre subject to filing the option.  But as CHS doctors were not in sufficient number, and after 1996, Govt. of India, Ministry of Health and Family Welfare, refused to encadre the CHS doctors with the Govt. of NCT of Delhi, then the Govt. of NCT of Delhi decided to make ad hoc/contractual appointees to meet the requirement of the growing population of the State.  This is most essential service of the day and this is to be maintained.  And that is why these ad hoc/contractual appointments were made of the doctors.  It has also been argued by the learned advocate of the respondents that these ad hoc/contractually appointed doctors also were appointed by in-house mechanism and in view of Rule 6(2), their suitability would be decided by the UPSC.  The ad hoc/contractually appointed doctors shall not be included without adopting the mechanism and as is essential to follow the procedure as provided by the UPSC.  The suitability shall be decided by the UPSC.The learned advocate for the applicants also cited the judgments of the Honble Supreme Court reported in 1980 (Supp) SCC 524 B.S. Yadav & Ors. Vs. State of Haryana & Ors., (2006) 12 SCC 148 Anil Kumar Vitthal Shete & Ors. Vs. State of Maharashtra and Anr., 1992 Supp(2) SCC 318 R.L. Bansal & Ors. Vs. Union of India & Ors., and 1992 Supp(2) SCC 338 Ajaib Singh Vs. State of Haryana, on the same point.  Many other judgments have also been produced on the same facts, but the present case is somehow different because in the present case, the question is of inclusion of certain categories of the doctors in the initial constitution of the cadre.  It cannot be said that it is violative ofArticles 14and16of the Constitution of India because if the applicants-CHS doctors will be put at loss, then liberty is available to them to exercise their option to join the DHS and otherwise they are free to go back to their parent-CHS cadre.  But much injustice has been caused to the ad hoc/contractual doctors, who had been working with the Govt. of NCT of Delhi after 1996 and they were equally eligible and possessing the requisite qualification.  It has been argued by the respondents advocate that some of the doctors are even holding the post of Superintendent of the concerned hospital, and it will be injustice to them not to include these doctors in the initial constitution of the cadre.  We are concerned with that what prejudice shall be caused to the applicants-CHS doctors in inclusion of the ad hoc/contractual doctors in the initial constitution of the cadre.  They will be on different parameters and the others doctors will be on different parameters.  We are not concerned at this stage with the determination of the seniority, it shall be determined by the respondents later on.21.	On the basis of the above discussion, we have come to the conclusion that the respondents-Government of NCT of Delhi are well within their rights to create a new service known as Delhi Health Service, and in the initial constitution of the cadre, they have rightly included the CHS-doctors working with the Delhi Administration on the date of issue of notification provided the filing of their options for joining the DHS.  We are of the opinion that the respondents-Govt. of NCT of Delhi is justified in providing the provision 6(2) for inclusion of qualified doctors appointed by the Govt. of NCT of Delhi on ad hoc/contractual basis on or before 18.12.2006 on the date of issue of OM in pursuance of the recommendation of the Cabinet and approved by Lt. Governor of Delhi.22.	There is another category of the doctors, who were appointed on ad hoc/contract basis after 18.12.2006 and prior to 23.12.2009 when the notification was issued.  They have also filed separate OA to challenge the provision 6(2) and especially the cut-off date i.e. 18.12.2006.  It has been prayed that the cut-off date i.e. 18.12.2006 be declared as ultra vires and against the provision of the Constitution of India.  They have also prayed to include these doctors in the initial constitution of the service by deeming the cut-off date as 23.12.2009 in Rule 6(2) of DHS Rules 2009 with all consequential benefits.  It has been alleged in the OA that earlier in the year 2004, the UPSC was approached by the Govt. of NCT of Delhi to fill up the post of GDMOs on adoption of Recruitment Rules and process at par with the CHS and providing age relaxation to the ad hoc/contract doctors.  The OA was also filed and it was dismissed even by the Honble High Court and Supreme Court.  That the Commission approved as one time measure to fill up the vacant post of medical officers as the method of recruitment and also agreed to provide age relaxation to the contractually employed doctors. That the UPSC sought the particulars of the appointments made by the Govt. of NCT of Delhi to the post of doctors on contract basis since 18.12.2006.  Initially Govt. of NCT of Delhi was restricted in order to include the contract doctors in the initial constitution on the cut-off date of 18.12.2006. This was a legal fiction created by the Govt. of NCT of Delhi and different parameters have been adopted for the doctors who were appointed on or before 18.12.2006 and post 18.12.2006 earlier to 23.12.2009 from the date of issue of notification.23.	It has been alleged by the applicants that on the date of issue of notification of Rules, they were members of the Service in the capacity of the contractual service and they were to be regularized/inducted to DHS after assessment of the suitability by the competent authority.  Numerous doctors were appointed after 18.12.2006, it will be great injustice to these doctors.  The applicants are also forming the same class at par with the contractually appointed GDMOs in 2004, 2005 up to 18.12.2006.  Somehow, some of them who have completed one year, two years and few years, have not been included in the initial constitution of the cadre, and it is discriminatory to the applicants.  Hence, this cut-off date is ultra vires and violative ofArticles 14and16of the Constitution of India.  As there will be different yardsticks for the doctors, who were appointed on or before 18.12.2006 and doctors, who were appointed post 18.12.2006 up to 23.12.2009.24.	The respondents-UPSC as well as Govt. of NCT of Delhi filed their separate counter replies, and it has been stated that until 1996, the doctors for the purpose of operation and maintenance of health delivery in the Govt. of NCT of Delhi were being met exclusively from the CHS cadre, but in mid 1990s the Central Government had stopped the process of encadrement of news posts that were created by the Lt. Governor of NCT of Delhi.  On 26.4.2006, a meeting was held between the officers of the Government of NCT of Delhi and the Ministry of Health & Family Welfare, Government of India and a decision was taken that the Govt. of NCT of Delhi may form its own cadre of doctors. This would relieve the Central Government of the responsibility of servicing the requirements of the Govt. of NCT of  Delhi from the CHS.   Since the exercise of formation of Delhi Health Service has taken a long time, hence, appointments were made on ad hoc/contractual basis as a stop gap arrangement.  The OM was issued on 18.12.2006 for creation of DHS cadre and on 23.12.2009, a notification was issued and 18.12.2006 is an important date as on this date, OM was issued for creation of the posts.  Although Govt. of NCT of Delhi made other request to the UPSC for inclusion of ad hoc/contractual GDMOs and Non Teaching Specialists who were appointed after 18.12.2006 upto the date of notification i.e. 23.12.2009, but the UPSC have advised retention of the provision in Rule 6(2) of DHS (Allopathy) Rules 2009.  It is wrong to allege that it is ultra vires.25.	The learned advocate for the applicants vehemently argued that there appears no logic and rationale in fixing 18.12.2006 as cut-off date for inclusion of the doctors in the initial constitution of the cadre.  As respondents made appointments of doctors post-18.12.2006 earlier and continued to make appointment like after 23.12.2009, the date of issue of notification, hence these doctors are also to be included in the initial constitution of the cadre.  We have to adjudicate whether the legislature can provide the cut-off date.In this connection, the learned advocate for the applicants placed reliance on the judgment delivered by the Honble Supreme Court in the case ofD.S. Nakara(supra).  It has been held by the Honble Supreme Court that the respondent is not justified in division of one homogenous class of the employees.  But that case was relating to the fixation of pension of the retired Government servants.  Different parameters were provided for the Govt. servants who retired on or before a specified date and those who retired post that date.   But in the present case, position is entirely different.  A new Service Rules have been created as DHS Rules 2009 and in these Rule 6(2), it has been provided that the cut-off date will be 18.12.2006.  It has been argued by the learned advocate for the applicant that there was no history of fixing this cut-off date when notification was issued on 23.12.2009.  Hence, the cut-off date must be 23.12.2009 and not 18.12.2006.  It will be material to state that on 18.12.2006, OM was issued by the Govt. of NCT of Delhi for creation of DHS and that is why 18.12.2006 has been provided as cut-off date.  The learned advocate for the respondents argued that rightly this date has been fixed as the cut-off date.In support of the argument, the learned advocate cited the judgment of the Honble Supreme Court reported in (2009) 5 SCC 208, State of Himachal Pradesh & Ors. Vs. Anjana Devi & Ors.. Ithas been held by the Honble Supreme Court The respondents could have complained of discrimination only if a benefit had been introduced retrospectively by fixing a cut-off date arbitrarily thereby dividing a single homogeneous class into two groups and subjecting them to different treatments. This is not a case here.  Choice of date i.e. 3-5-1983 for extension of benefit of option is not arbitrary selection of a cut-off date.  It is logical and rational, being the date on which reservation was applicable to technical services.  Hence, the Honble Supreme Court has held that if there is some logic in fixing the cut-off date, then the cut-off date can be retrospective and certain benefits can be granted to certain persons, and the other persons cannot claim that it is a discriminatory.  It can also be position that cut-off date may divide the single homogenous into two groups.  Because in the present case, there is one homogenous class of doctors appointed on contract or ad hoc basis and working in different hospital of Govt. of NCT of Delhi.  The doctors, who had been working on contract or ad hoc basis on or before 18.12.2006, they have been included in the initial constitution of the cadre, but a new class has come up, who were appointed post-18.12.2006 and prior to issue of notification dated 23.12.2009.  Although these doctors were also appointed by following the same procedure, but some criteria is to be adopted.  We can provide that the respondents may take a decision to include these doctors also by inducting them to DHS cadre after providing the age relaxation which can be as one time measure.  Because the respondents-Govt. of NCT of Delhi stated that they have recommended the matter of these doctors to the UPSC for inclusion in the initial constitution of the cadre and granting age relaxation, but the UPSC has not agreed.  In view of Rule 18, if the dispute is regarding the matter, then the Govt. of NCT of Delhi will prevail.  But as the UPSC did not agree to the recommendation for inclusion of doctors appointed post-18.12.2006 in Rule 6(2) and the Govt. of NCT of Delhi agreed to that, then there was no question for taking decisive decision by the Govt. of NCT of Delhi under this provision.   As regards the validity of the cut-off date is concerned, in view of judgment of the Honble Supreme Court, it is justified.26.	The learned advocate for the respondents also cited the judgment of the Honble Supreme Court reported in (2008) 12 SCC 1, Balbir Kaur & Anr. Vs. Uttar Pradesh Secondary Education Services Selection Board, Allahabad & Ors.  The Honble Supreme has held Though Section 18 was reintroduced by the 1995 Amendment Act with certain conditions yet the Legislature fixed 6th August, 1993 as the cut off date as the State Government had decided to make regular selection and steps in that behalf had already been initiated.  Thus, it cannot be held that fixing of 6th August, 1993 as the cut off date for regularization is arbitrary or whimsical, warranting interference by the Court. Moreover, the State is not obliged to regularize all ad-hoc appointments merely on the strength of their continuance on the post for a long period, particularly when their original appointments were not made by following a due process of selection as envisaged in the relevant rules.  Hence, in view of the judgment of the Honble Supreme Court, the service of ad hoc employee can be regularized by providing a cut-off date and the appointees post-that date cannot say it as arbitrary.27.	In our opinion, in view of judgment of the Honble Supreme Court, it cannot be said that cut-off date is irrational or arbitrary or it divides one homogenous class into two groups.  It is a fact that on 18.12.2006, OM was issued for inclusion in the initial constitution of the cadre, but due to certain reasons, notification could not be issued in the official gazette.  The Honble Supreme Court has held that the State Legislature can frame the rule with retrospective effect by providing a cut-off date, providing benefits to certain class of persons and it cannot be said that it is unjustified.  Moreover, in view of Rules, it is one time age relaxation.28.	We have perused the counter reply filed by the Govt. of NCT of Delhi.  The Govt. of NCT of Delhi stated in the counter reply that they approached the UPSC to reconsider their proposal for extension of benefit of regularization/inclusion in the initial constitution of the cadre of all contractually employed doctors beyond 18.12.2006 to up to 23.12.2009.  Several letters were sent by the Govt. of NCT of Delhi on 9.12.2010 (Annexure R-2-1).  In so many words, the Govt. of NCT of Delhi has requested the Commission for inclusion of GDMOs and Non Teaching Specialist, who were appointed after 18.12.2006 up to the date of notification i.e. 23.12.2009, but  the UPSC have advised as a policy matter to retain the provision of cut-off date.  The Govt. of NCT of Delhi was entitled to take a final decision in the matter, but they have not taken any definite decision in this matter and they agreed with the suggestion of the USC for retention of the cut-off date.  It is provided in Rule 18 of the Rules that if any question relating to the interpretation of the rules arises, it shall be decided by the Government in consultation with the Commission.  Hence, in the present case, with the advice of the Commission, the Govt. of NCT of Delhi decided for retention of provision of Rule 6(2) of the Rules.  We are concerned with the validity of this provision, and we are of the opinion that in view of the judgment of the Honble Supreme Court, if the cut-off date has been provided with retrospective effect in the notification issued subsequently, then it is valid and it is within their legitimate competence.  Although we can provide that even then the respondents-Govt. of NCT of Delhi may consider for inclusion of such contractually appointed doctors in the initial constitution of the DHS cadre or providing age relaxation or provision may be made that how they are to be included in the cadre.  But they are certainly entitled for the age relaxation because they had been working in the hospitals of the Govt. of NCT of Delhi since 2006 and it may be possible that some of the doctors may be overage.  In the earlier cases also, the age relaxation was granted.  In Rule 17, the Govt. of NCT of Delhi is empowered to grant age relaxation and other concessions.  Although it is for the SC/ST candidates but it can be provided to others because in Rule 16, it has been provided that the Government may relax any of the provisions in consultation with the UPSC.  But as these doctors were appointed by following the same procedure, hence, they are also entitled to be considered.  Although we decide the validity of the cut-off date.29.	For the reasons mentioned above, we are of the opinion that Rule 6(2) for inclusion of ad hoc/contractually appointed doctors in the initial constitution of the cadre is justified, and it cannot be said that it is a discriminatory or violative ofArticles 14and16of the Constitution of India.  The CHS doctors have got the option to exercise in order to become members of the DHS (Allopathy) Rules, 2009.  If the CHS doctors are of the opinion that they will be put at loss, if the contractually appointed doctors are included in the initial constitution of the cadre. In view of the judgment of the Honble Supreme Court, the CHS doctors are not entitled to challenge one part of the Rule 6 which is not beneficial to them and not to challenge the other part of Rule 6 which is beneficial to them.  Because in view of Rule 6(1), all the doctors of CHS cadre, who had been working in the hospitals of Govt. of NCT of Delhi, on filing the option, may be included in the initial constitution of the cadre.  But the Government is empowered to make provisions which other categories are to be included in the initial constitution of the cadre and the Govt. of NCT of Delhi decided that ad hoc/contractually appointed doctors since 1996 shall also be included in the initial constitution of the cadre subject to their suitability to be assessed by the UPSC.  It is not like that all the doctors, without deciding the suitability by the UPSC, shall form part of the initial constitution of the cadre. A precarious condition can be created if CHS only are included in the initial constitution of the cadre.  Since 1996 contractually appointed doctors are manning the hospitals of the Govt. of NCT of Delhi and they are providing the medical assistance to the public of the State. We are also of the opinion that the provision of Rule 6(2) is perfectly justified and valid.  It cannot be called as ultra vires.  As some of the contractually appointed doctors have challenged the cut-off dated i.e. 18.12.2006 for inclusion in the initial constitution of the cadre.  We have decided earlier that the State Government may decide the cut-off date with retrospective effect providing certain benefits to certain class of persons and depriving others.  It cannot be said that it is discriminatory or it is violative ofArticles 14and16of the Constitution of India.  We are also concerned with the contractual/ad hoc doctors, who were appointed post-18.12.2006 and prior to 23.12.2009.  The Govt. of NCT of Delhi also had a sympathetic attitude towards such doctors and they recommended to the UPSC for inclusion of such doctors in the initial constitution of the cadre and also granting age relaxation.  Although, we have decided the validity of the cut-off date, but at the same time, we may impress upon the Govt. of NCT of Delhi to consider inclusion of such doctors in the initial constitution of the DHS cadre or subsequently granting them age relaxation.  Under these circumstances, OAs deserve to be disposed of accordingly.30.	Before parting with this order, it will be justified on our part to record our thanks to the respectable advocates to assist the court for arriving at a definite conclusion, and we express our special thanks to Shri V.Shekhar and Shri S.B. Upadhyay, senior advocates for applicants and respondents respectively, along with other advocates, namely, Ms. Jagriti Singh, Sh. Sunil Rana, Sh. Sanjeev Rathi, Sh. Jasin Rajput, Sh. Vishal Saxena, Sh. Nilansh Gaur, Sh. Arun Bhardwaj, Sh. Sunil Rana, Sh. Balraj Malik, Sh Devesh Singh, Sh. RK Shukla, Ms. Harvinder Oberoi, Sh. Ajesh Luthra, Sh. Amit Anand, Sh. JB Mudgil, Ms. Kumud L., Sh. NS Dalal, Sh. Mitabh Gosain, Sh. SS Tiwary and Sh. J.B. Mudgil.31.	OA No. 1453/2012, OA No. 1048/2010, OA No. 1209/2011, OA No. 1259/2011 and OA No. 3936/2011 are dismissed.  It is held that provision in Rule 6(2) of the DHS (Allopathy) Rules 2009 is perfectly valid and in accordance with Constitution of India.  It is also held that the cut-off date i.e. 18.12.2006 is also perfectly valid.32.	Before parting with the order, we consider our solemn duty to make certain observations in the concluding part of the order also in the light of the observations made in the body of the order regarding doctors who were appointed post-18.12.2006 and prior to 23.12.2009 for inclusion in the constitution of the cadre.  We advise the Govt. of NCT of Delhi as is their stand regarding the post-18.12.2006 appointed doctors to seek advice of UPSC to consider the contractually appointed such doctors for inclusion in the constitution of the cadre.  The Govt. of NCT of Delhi shall also consider the matter of age relaxation of these doctors.  No order as to costs.(Dr. R.C. Panda)						(S.C. Sharma)
Member (A)							Acting Chairman

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