Dr.K.K.Saini vs Uoi & Ors.
2011 Latest Caselaw 3761 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 13 July, 2011
                     Judgment Delivered On: 05 August, 2011

+                          W.P.(C) 2727/1998

        DR.K.K.SAINI                         ..... Petitioner
                  Through: Mr.R.K.Saini, Advocate
                  ..
                            versus

        UOI & ORS.                            .....Respondents
                  Through: Ms. Jyoti Singh, Senior Advocate
                           with Mr.Amandeep Joshi, Advocate
                           and Mr.Vijay Raut from CRPF

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the
        Digest?
PRADEEP NANDRAJOG, J.

1. Shorn of unnecessary details, the facts leading to the filing of the present petition are that till the year 1978 the hierarchical structure of the medical cadre in Central Police Reserve Force (herein after referred to as „CRPF‟) was as follows: -

Chief Medical Officer I Senior Medical Officer I

General Duty Medical Officer (Grade I) I General Duty Officer (Grade II) I Junior Medical Officer

2. The petitioner joined CRPF as a Junior Medical Officer in the year 1972 and earned promotions from time to time.

3. Pursuant to an advertisement issued by CRPF for direct recruitment to the post of Senior Medical Officer, the petitioner applied and was selected and hence appointed as a Senior Medical Officer. In due course of time he earned promotion to the post of Chief Medical Officer.

4. In the year 1978 the Central Government created a single post of Medical Superintendent in the scale of pay `1500-2000/- in the medical cadre of CRPF, which post was equivalent in rank to the post of Deputy Inspector General Police. The feeder post to the post of Medical Superintendent was the post of Chief Medical Officer.

5. On 25.10.1985, The Directorate General Central Reserve Police Force, Ministry of Home Affairs, Government of India issued an Office Order prescribing the duties of the incumbents appointed to the various posts of Medical Superintendent and Director (Medical), the relevant portion whereof reads as under:-

"Section-II

Duties of Gazetted Officers

Duties of Medical Superintendent at Dte. General

13. (A) The Medical Superintendent is the technical head of CRPF Medical Organization and will perform the following duties:-

(1) Advising the Director General of CRPF and Sector IsGP on various policy matters affecting medical cover to the Force.

(2) Scrutinize all proposals relating to Medical set- up from technical angle before they are processed further.

(3) Inspection of Base Hospitals, Group Centre Hospitals once in a year. Battalion Hospitals once in 4 years.

(4) Technical head of CRPF Medical Organization.

(5) Formulation of health policies for the Force personnel.

(6) Liaison with other head of Medical Organization like DGHS. Army Medical authorities, Director of State Health services to improve the standard of CRPF Hospitals as and when required.

(7) Personal and material management concerning Medical Branches of CRPF.

(8) Conduct of Medical Research relevant to health condition of CRPF.

(9) Scrutiny of Health care, delivery systems of the Force Hospitals so as to maintain quality control of medical care.

(10) Monitoring of Health indices of the Force by analysis of statistical data.

(11) All service matters pertaining to para-medical staff except Gazetted ranks.

(12) Centralized recruitment to fill-up the vacancies of para-medical staff wherever the appointing authority finds it difficult to fill-up these vacancies.

(13) Organize training of medical and para-medical staff in consultation with Training Branch.

(14) Documentation, planning and advise on the prevention of epidemic diseases to troops and their families living in various places in India.

(15) Planning and to advise on the prevention of diseases and promotion of health of force personnel and their families.

(16) Arrange at very short notice medical cover of unit called for law and order duty at any place of India.

(17) Formulate policy regarding evacuation of casualties and its implementation.

(18) Issue of necessary guidelines and instructions to Units in all matters concerning health of the Force personnel and their families.

(19) Responsible for standardization of equipments at different hospitals.

(20) Maintenance of strength register of GOs and NGOs of hospitals, drawal of Gradation lists and approved lists of Staff Nurses/Pharmacists/Nursing Assistant/Ward Boy/Girls etc. as been done presently.

(21) Any other duties assigned by the IGP(HQRs)/Director General.

....

DUTIES OF DIRECTOR (MEDICAL)

(1) Advising the Director General of CRPF and Sector IsGP on various policy matters affecting medical cover to the Force.

(2) Scrutinize all proposals relating to Medical set- up from technical angle before they are processed further.

(3) Inspection of Base Hospitals, Group Centre Hospitals once in a year. Battalion Hospitals once in 4 years.

(4) Technical head of CRPF Medical Organization.

(5) Formulation of health policies for the Force personnel.

(6) Liaison with other head of Medical Organization like DGHS. Army Medical authorities, Director of State Health services to improve the standard of CRPF Hospitals as and when required.

(7) Personal and material management concerning Medical Branches of CRPF.

(8) Conduct of Medical Research relevant to health condition of CRPF.

(9) Scrutiny of Health care, delivery systems of the Force Hospitals so as to maintain quality control of medical care.

(10) Monitoring of Health indices of the Force by analysis of statistical data.

(11) All service matters pertaining to para-medical staff except Gazetted ranks.

(12) Centralized recruitment to fill-up the vacancies of para-medical staff wherever the appointing authority finds it difficult to fill-up these vacancies.

(13) Organize training of medical and para-medical staff in consultation with Training Branch.

(14) Documentation, planning and advise on the prevention of epidemic diseases to troops and their families living in various places in India.

(15) Planning and to advise on the prevention of diseases and promotion of health of force personnel and their families.

(16) Arrange at very short notice medical cover of unit called for law and order duty at any place of India.

(17) Formulate policy regarding evacuation of casualties and its implementation.

(18) Issue of necessary guidelines and instructions to Units in all matters concerning health of the Force personnel and their families.

(19) Responsible for standardization of equipments at different hospitals.

(20) Maintenance of strength register of GOs and NGOs of hospitals, drawal of Gradation lists and approved lists of Staff Nurses/Pharmacists/Nursing Assistant/Ward Boy/Girls etc. as been done presently.

(21) Any other duties assigned by ADG(HQ)/DG."

6. On 03.06.1987 the petitioner got promoted to the post of Medical Superintendent on ad-hoc basis. On 20.03.1987 the Ministry of Home Affairs, Government of India issued an Office Order upgrading the post of Medical Superintendent from the scale of pay `1500-2000/- to `2000-2250/-, as a result whereof the post of Medical Superintendent became equivalent in rank to the post of Deputy Inspector General of Police. On 10.03.1988 the petitioner was appointed on regular basis as Medical Superintendent. Vide Office Order

dated 03.01.1989 issued by the Ministry of Home Affairs, Government of India the post of Medical Superintendent was re-designated as Deputy Director (Medical).

7. On 04.03.1992, the Department of Personnel and Training, Ministry of Personnel and Pensions, Government of India issued an Office Memorandum regarding action to be taken upon upgradation of posts, which Memorandum reads as under:-

"OFFICE MEMORANDUM

Subject: - Revision of pay scale/upgradation of the posts - Date of regular appointment of the incumbent to the upgraded post.

The undersigned is directed to say that in the event of revision of pay scale or upgradation of posts the question as to what criteria should be adopted in assessing the suitability of the incumbents of the posts as well as the date of appointment to the upgraded posts has been under consideration in this deptt. In the matter of appointments to upgraded posts, the following four situations has been expected:-

(i) Upgradation of posts involves only a higher replacement scale without any higher responsibility/higher qualifications or higher eligibility service.

(ii) Upgradation involves only higher replacement scale without any higher responsibility but the officers concerned have to fulfill the higher eligibility service.

(iii) The upgradation of the posts involves higher responsibility or higher qualifications or higher eligibility service; and

(iv) Upgradation involves change in group but without higher qualifications (or higher eligibility service).

2. The following criteria may be adopted in assessing the suitability of the incumbents of the post/deciding the date of appointment to upgraded posts:-

1. Where the upgradation involves only a higher replacement scale without any addl. Responsibility/higher qualifications/higher eligibility service the suitability of the incumbents need not be assessed and they may be appointed to the post with the higher replacement scale with effect from the date notified by the Govt., giving effect to the recommendations of the Pay Commissions or similar bodies etc.

2. Where the upgradation involves a higher replacement scale without higher responsibilities or higher qualifications but with a higher eligibility service, the incumbent need not be assessed for their suitability but it should be ensured that they have completed the requisite qualifying service for appointments to the upgraded posts. In case they had completed the qualifying service on or before he date notified by the Govt., they may be appointed to the upgraded post from that date in the case of others who fulfill the qualifying service on a later date, they should be appointed to the upgraded post from the date on which they complete the qualifying service. This would be subject to the condition that irrespective of the date of appointment, the original seniority of the incumbent in the grade prior to upgradation will be maintained for appointment to the upgraded post.

3. If the upgradation involves higher responsibility or higher qualification or higher eligibility service, the suitability of the incumbents has to be assessed and if found suitable, they will be appointed to the upgraded post prospectively i.e. not earlier than the date of the U.P.S.C. is

advice later if the assessment is made by the Departments themselves, the date of the assessment.

4. If the upgradation involves change in the group, but there is no higher responsibility or (higher eligibility service) the suitability of the incumbents has to be assessed and if found suitable, they will be appointed to the upgraded post from the date notified by the Govt.

3. These instructions may please be brought to the notice of all concerned for guidance and compliance."

8. On 06.07.1994 Ministry of Home Affairs, Government of India issued an Office Order regarding restructuring of medical cadre in Central Police Organizations, the relevant portion whereof reads as under:-

"Subject: - Restructuring of Medical Cadres of CPOs Sir, I am directed to say that the question regarding restructuring the cadres of Medical Officers of Central Police Organizations (CPOs) has been under consideration of the Government. Initially, the Government constituted an Inter- Departmental Committee on the basis of recommendations of the 4th Central Pay Commission subsequently there has been agreements with Medical Officers of CHS etc. Finally there have been recommendations of the High Powered Committee commonly known as Tikku Committee. Keeping in view the combined effect of all these aspects as accepted by the Government the President is now pleased to decide that the cadres of Medical Officers in CPOs may be restructured on the following lines:-

(1) One post of Dy. Director (Medical) in CRPF & BSF and Chief Medical Officer in ITBP may be upgraded as Director (Medical) in the scale of

Rs.5900-6700. The eligibility criteria to be adopted for promotion to this post shall be the same as in CHS for promotion to the posts at Senior Administrative Grade level."

9. The position therefore would be that being promoted as a Medical Superintendent, which post was re-designated as Deputy Director (Medical), when cadre restructuring took place on 6.7.1994, the post of Deputy Director (Medical) held by the petitioner got upgraded to that of a Director (Medical) and in the next above pay scale. It would be highlighted by us that in CRPF there was only 1 post of Deputy Director (Medical) and this single post obviously got upgraded.

10. Before proceeding further, we note that the eligibility criteria for promotion to the post of Director (Medical) in the Central Health Services was 3 years service in the post carrying the pay scale of `4500-5700/- or 17 years regular service in the Central Health Services and that the petitioner fulfilled the said eligibility criteria on the date of the upgradation of the post of Deputy Director (Medical) to the post of Director (Medical).

11. Thus, the position which emerged after the issuance of the aforesaid Office Order dated 06.07.1994 was that the single post of Medical Superintendent existing in the Medical cadre of CRPF which has been re-designated as Deputy Director (Medical) got upgraded to the post of Director (Medical), which post was equivalent in rank to the Inspector General.

12. Petitioner started making representations that since his was the single post which was upgraded, he ought to be

placed in the upgraded scale and paid salary. The department recommended favourably but the Ministry of Home Affairs did not allow the same and informed CRPF that till recruitment rules were framed for the post of Director (Medical), the petitioner could not be upgraded. Thus, the petitioner started discharging the duties of a Director (Medical), there being no post of a Deputy Director (Medical), but received salary in the lower scale. It was only when the recruitment rules were notified and a DPC was formally constituted that the petitioner was formally upgraded as a Director (Medical) w.e.f. 2.1.1997.

13. Aggrieved of not being upgraded as a Director (Medical) from the date of upgradation of the post of Deputy Director (Medical) to the post of Director (Medical), the petitioner made a representation to the President of India, which representation was rejected vide order dated 05.02.1998.

14. Aggrieved by the aforesaid the present petition has been filed praying that the petitioner be directed to be upgraded as a Director (Medical) w.e.f. 6.7.1994.

15. During hearing of the petition, it was firstly urged by learned counsel for the petitioner that a reading of the Office Order dated 25.10.1985 brings out that the upgraded post of Director (Medical) carries responsibilities identically similar to that of the post of Medical Superintendent re- designated as Deputy Director (Medical). Since the posts of Director (Medical) and Deputy Director (Medical) carried same responsibilities and the holder of the post of Deputy Director (Medical) was required to fulfill the criteria of higher

eligibility service for being appointed to the upgraded post of Director (Medical), the case of the petitioner falls within the purview of para 2(2) of the Office Memorandum dated 04.03.1992 and thus there was no need to assess the suitability of the petitioner for being promoted to the upgraded post of Director (Medical). Secondly it was urged by learned counsel for the petitioner that there was a single post of Deputy Director (Medical) which was held by the petitioner and thus on upgradation of the post of Deputy Director (Medical) he automatically became entitled to be promoted to the upgraded post of Director (Medical) and there was no requirement to assess his suitability by a Departmental Promotion Committee for such promotion.

16. Per contra, learned counsel for the respondents argued that upgradation of a post does not automatically entitle the holder of such post for promotion to the upgraded post for the reason when a post is upgraded the incumbent would not automatically be upgraded. It was further argued that the upgraded post of Director (Medical) carried higher responsibilities than the post of Deputy Director (Medical) and thus it was necessary to assess the suitability of the petitioner for being promoted to the upgraded post of Director (Medical), as the case of the petitioners falls within the purview of para 2(3) of the Office Memorandum dated 04.03.1992.

17. Thus, at the heart of the controversy would be whether it is sub-para 2 of para 2 of the Office Memorandum dated 4.3.1992 which holds the field or sub-para 3 thereof. We re- produce the said 2 sub-paras as under:-

"2. Where the upgradation involves a higher replacement scale without higher responsibilities or higher qualifications but with a higher eligibility service, the incumbent need not be assessed for their suitability but it should be ensured that they have completed the requisite qualifying service for appointments to the upgraded posts. In case they had completed the qualifying service on or before he date notified by the Govt., they may be appointed to the upgraded post from that date in the case of others who fulfill the qualifying service on a later date, they should be appointed to the upgraded post from the date on which they complete the qualifying service. This would be subject to the condition that irrespective of the date of appointment, the original seniority of the incumbent in the grade prior to upgradation will be maintained for appointment to the upgraded post.

3. If the upgradation involves higher responsibility or higher qualification or higher eligibility service, the suitability of the incumbents has to be assessed and if found suitable, they will be appointed to the upgraded post prospectively i.e. not earlier than the date of the U.P.S.C. is advice later if the assessment is made by the Departments themselves, the date of the assessment."

18. This aspect of the matter need not detain us for long inasmuch as a bare reading of the Office Order dated 25.10.1985 issued by the Directorate General Central Reserve Police Force, Ministry of Home Affairs, Government of India explicitly brings out that the upgraded post of Director (Medical) carries similar responsibilities as the post of Medical Superintendent re-designated as Deputy Director (Medical). The only difference between the posts of Director (Medical) and Deputy Director (Medical) is the fact that whereas Deputy Director (Medical) was required to report to

the Inspector General since the post of Deputy Director (Medical) was equivalent in rank to the post of Deputy Inspector General of Police, Director (Medical) was required to report to the Director General Police since the post of Director (Medical) became equivalent in rank to the post of Inspector General. That being the position, the petitioner is right in contending that his case falls within the purview of sub-para 2 of para 2 of the Office Memorandum dated 04.03.1992. As a necessary corollary thereof, it has to be held that there was no need to assess the suitability of the petitioner for being promoted to the post of Director (Medical) and that the petitioner ought to have been promoted to the post of Director (Medical) with effect from the date of upgradation of the post of Deputy Director (Medical).

19. Thus, the next question which was argued: Whether the holder of a single post existing in a cadre automatically becomes entitled to be appointed to the upgraded post on the upgradation of the post held by him or whether his suitability needs to be assessed before his being appointed to the upgraded post becomes academic but we would note that there is a decision of a learned Single Judge of this Court reported as Jaswinder Singh (Col.) v Union of India 86 (2000) DLT 451 wherein we find the contention being urged in relation to a single post being upgraded, but not decided. The facts of the said case were that in order to overcome the stagnation in higher ranks and to improve the career prospects of service officers in the Army, the Government had ordered a Cadre Review in the year 1979, in which 125

additional posts of Brigadier were created by upgrading certain posts of Lt. Colonel/Colonel. The post of Director Pioneer Corps which was held by the petitioner therein was one of the posts accepted by the Government for upgradation Colonel to Brigadier. After the upgradation of the post held by the petitioner a Selection Board was constituted which considered the case of the petitioner for promotion to the post of Brigadier but the petitioner was not recommended for promotion. Aggrieved thereof, the petitioner therein filed a petition under Article 226 of the Constitution of India which was decided by a learned Single Judge of this Court. One of the arguments raised by the petitioner therein before the learned Single Judge was that the post held by him being a single post, on upgradation of the said post he automatically became entitled to be appointed to the upgraded post, which contention was not dealt by the learned Single Judge; the writ petition being decided that the rules for the post prescribed a criteria for selection which ought to have been followed and was rightly followed.

20. But we would observe that prima facie we find considerable logic in the first argument advanced by the learned counsel for the petitioner. Upgradation of a post results in a post in the lower scale being upgraded to the higher i.e. at the lower scale the post ceases to exist and finds itself born in the upgraded scale. If there is only one post which is upgraded, it is apparent that the post in question loses its existence in the lower scale and finds its existence in the higher scale. In such a situation what

would happen to the holder of the post if he is not to be promoted to the upgraded post? The post which he was holding no longer exists and since he cannot be thrown out, it could well be argued that the logic demands that he moves along with the post concurrently and not disjunctively. Be that as it may, we leave this question open, to be decided in an appropriate case.

21. In view of the above discussion, the present petition is allowed. The respondents are directed to grant promotion to the petitioner to the upgraded post of Director (Medical) with effect from the date of upgradation of the post of Deputy Director (Medical) i.e. 06.07.1994. The salary of the petitioner be re-worked out and arrears paid within a period of 8 weeks from today.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE AUGUST 05, 2011 mm