Dr. K.K. Saini vs Uoi & Anr
2010 Latest Caselaw 3352 Del

R-1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +     W.P.(C)No.632/2005

                                  Date of Decision : 19th July, 2010
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       DR. K.K. SAINI                          ..... Petitioner
                          Through : Mr. R.K. Saini, Adv.

                     versus

       UOI & ANR                              ..... Respondents
                          Through : Ms. Jyoti Singh, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                NO

3.      Whether the judgment should be                        NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The petitioner is aggrieved by the failure of the

respondents to consider him for appointment to the post of

Additional Director General (Medical) in the Central Police

Force despite meeting the prescribed eligibility requirements

and the convening of a Departmental Promotion Committee.

2. The facts giving rise to the present writ petition are in a

narrow compass and to the extent necessary, are briefly

noted hereafter. The petitioner joined service with the

Central Reserve Police Force (CRPF for brevity) as a Junior

Medical Officer on 21st February, 1972. With effect from 2nd

January, 1997, the petitioner was promoted to the post of

Director (Medical) which was equivalent to the rank of

Inspector General of Police.

3. It appears that on 2nd September, 2004, the Ministry of

Home Affairs sanctioned the Cadre Review cum

Restructuring proposal of the Medical Cadre in the Central

Police Forces similar to the pattern which was being followed

in the Armed Forces. In such cadre review, the Ministry of

Home Affairs had addressed creation and sanction of a post

of Additional Director General (Medical) in the Central Police

Forces who would head the Combined Medical Cadre.

Pursuant to the said cadre review, the Ministry of Home

Affairs had issued a letter dated 22nd November, 2004

conveying the sanction of the competent authority for inter

alia creation of one temporary post of Additional Director

General (Medical) on temporary basis in the pay scale of

Rs.22,400 - Rs.24,500 in the combined medical set up of the

Central Police Forces. The Ministry had further directed that

the post would be governed as per provisions made in the

revised scheme of medical set up in the Central Police Forces

issued by the Ministry in its letter dated 2 nd September,

2004. The approval of the Ministry of Finance by an order

dated 17th June, 2004 and the concurrence of the integrated

finance division of the Ministry of Home dated 19th

November, 2004 to the said review and recommendation was

also recorded therein.

4. Before us there is no dispute that the petitioner was the

senior most Director (Medical) in the Central Police Forces.

Our attention is drawn to the list of the eligible Directors in

the order of seniority prepared by the respondents for the

purposes of consideration for appointment to the newly

created post of Additional Director General (Medical). The

petitioner's name appears at serial No.1 whereas one Dr.

R.N. Samantray who was a Director (Medical) in ITBP is

mentioned at serial No.2 and Dr. K.K. Pal, Director (Medical)

S.S.B. is mentioned at serial No.3 in the order of seniority.

5. In view of the failure of the respondents to take further

action pursuant to the creation of the said post, the

petitioner addressed a letter dated 24th November, 2004 to

the then Joint Secretary (Police) in the Ministry of Home

Affairs requesting for implementation of the medical

restructuring. As a result, an order dated 9th December, 2004

was passed by the competent authority deciding to hold a

Departmental Promotion Committee for promotion to the

post of Additional Director General (Medical) in accordance

with the cadre review which had been undertaken.

6. It is admitted before us that the Departmental

Promotion Committee so constituted had proposed a meeting

to be convened on 15th December, 2004 to consider the

eligible candidates for promotion to the said post. However, a

letter dated 9th December, 2004 was issued by the Deputy

Secretary (Personnel - I) of the Ministry of Home Affairs,

which has been placed on record, whereby a postponement

of Departmental Promotion Committee meeting scheduled to

be held on 15th December, 2004 in the Home Secretary's

Chamber was communicated. It was further proposed that

the meeting would be held on 16th December, 2004.

7. The respondents have submitted that the Departmental

Promotion Committee was indefinitely deferred and did not

meet till the petitioner unfortunately superannuated from his

service on 31st December, 2004.

8. Aggrieved by the failure of the Departmental Promotion

Committee to meet and consider the case of the petitioner

who was eligible and placed senior most in the order of

seniority for consideration and promotion to the said post of

Additional Director General (Medical), the petitioner filed the

present writ petitioner on 18th December, 2004 seeking the

following prayers:-

"(a) A writ of certiorari calling for the records of the case for perusal;

(b) A writ of certiorari quashing the action of the respondent in not considering the petitioner for promotion to the post of Additional Director General, being the senior-most eligible officer and despite there being a sanctioned post, being illegal, arbitrary, vindictive, discriminatory and unjust and against the rules and regulations and the principles of equity justice and good conscience.

(c) A writ of mandamus commanding the respondents to forthwith consider the petitioner for promotion to the post of Additional Director General, being senior- most eligible officer, with effect from 22 nd November, 2004 i.e. the date on which said post was sanctioned and then take further consequential action in the matter."

9. Notice to show cause in the writ petition was directed

to be issued on 14th January, 2005. The matter has remained

pending in this Court ever since. Apart from his claim

premised on the above facts, the petitioner has submitted

that the Departmental Promotion Committee failed to

convene and consider the matter on account of prejudice of

respondent No.2 who was also a member of Departmental

Promotion Committee constituted against the petitioner.

Even though, its combined meeting was convened by the

Committee, the consideration of the eligible candidates was

unwarrantedly deferred without making any

recommendation on the ground that the Recruitment Rules

for the post of Additional Director General (Medical) in terms

of the cadre review had not been framed or notified.

10. Mr. R.K. Saini, learned counsel for the petitioner has

submitted that this ground was completely baseless and was

put forth with the sole intention of avoiding consideration

and promotion of the petitioner to the said post. In support of

this contention, reliance is placed on the order dated 26th

April, 2005 whereby despite the same position subsisting,

the respondents promoted Dr. R.N. Samantray, Director

(Medical), ITBP as the Additional Director General (Medical) in

the Central Police Forces in the pay scale of Rs.22,400 -

Rs.24,500 on ad-hoc basis with effect from the date of

assumption of charge of the post till his date of

superannuation on 31st January, 2006 or till further orders,

whichever is earlier. The petitioner contends that even on

the date of passing of the said order dated 26th April, 2005,

the Recruitment Rules for promotion to the post of Additional

Director General (Medical) had not been framed or notified

by the respondents. The submission is that the petitioner

was required to be similarly considered for promotion and

appointment prior to the date of his superannuation on 31st

December, 2004. Our attention is also drawn to the

deposition made on behalf of the respondents to the effect

that the new Recruitment Rules were sent, only on 28th July,

2006, for notification.

11. We may also notice, at this stage, that in answer to

query put by this Court, Ms. Jyoti Singh, learned counsel for

the respondents on instructions has submitted that Dr. R.N.

Samantray who was promoted on ad-hoc basis as Additional

Director General (Medical), has received his retiral benefits

as well as pension premised on the pay scale of the post of

Additional Director General (Medical) even though he had

been appointed to the said post on ad-hoc basis.

12. The only issue which arises for consideration is as to

whether the petitioner could have been denied the

consideration for promotion to the post of Additional Director

General (Medical) on the ground that the Recruitment Rules

had not been framed. Learned counsel for the petitioner

before us does not pray for a direction to appoint him to the

higher post but has made a grievance to the effect that

despite the order of convening the Departmental Promotion

Committee, it deferred its consideration without any legally

tenable justification till the petitioner had superannuated.

We find substance in the grievance made by the petitioner in

his challenge to the denial by the respondents in

consideration of his name for the purpose of promotion on

such a ground. This was unfair especially for the reason that

the respondents have subsequently proceeded to consider

the person who was below the petitioner and was placed at

serial No.2 in the order of seniority of the eligible candidates.

Such consideration has been effected despite the

Recruitment Rules not having been notified. The respondents

have thereafter not only effected his promotion on 26th April,

2005 but have also given him all benefits based on such

promotion.

13. We also find that Shri S.K. Kapoor, Additional, DIG

(Admin.) from the office of Inspector General of Police, CRPF

has deposed an affidavit dated 25th April, 2006 to the effect

that till the date of retirement of the petitioner on 31st

December, 2004, no officer junior to the petitioner had been

appointed as the Additional Director General (Medical). It is

further stated by the respondents that (even on the date of

deposition of affidavit in the writ petition) since the matter

was pending with the Ministry of Law for examination, as

such the proposed Rules may, therefore, take further time

before they are notified. The respondents have further

stated that Dr. R.N. Samantray, Additional Director General

(Medical) was appointed after the petitioner's retirement.

14. It is evident that the denial of the promotion to the

petitioner was on specious and untenable grounds. There is,

therefore, merit in the contentions of the petitioner that he

was entitled to the same consideration as has been afforded

to Dr. R.N. Samantray who was below him in the order of

seniority. There is no denial or objection to the petitioner's

eligibility for appointment to the post. The petitioner

deserved to be considered for promotion to the post of

Additional Director General (Medical) w.e.f. 16th December,

2004 when the consideration was deferred on the ground

that Recruitment Rules were not in place. The respondents

cannot possibly deny the same consideration and benefits as

have been afforded to Dr. R.N. Samantray who was similarly

placed as the petitioner.

In view of the above discussion, we direct the

respondents to forthwith convene a Departmental Promotion

Committee for consideration of the petitioner for promotion

to the post of Additional Director General (Medical) in the

Central Police Forces within four weeks, having regard to the

seniority and other relevant conditions as subsisted on 16th

December, 2004. In case, the name of the petitioner is

recommended, the consequential orders and action in the

matter shall be taken expeditiously.

This writ petition is allowed in the above terms.

Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J JULY 19, 2010 mk