Dr. (Mrs.) Neena Sharma vs The Secretary, Ministry Of Labour ...
2011 Latest Caselaw 4082 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   WP(C) No.724/2007 & CM No.1353/2007

%                        Date of Decision: 23.08.2011

Dr. (Mrs.) Neena Sharma                                 .... Petitioner

                      Through Nemo

                                Versus

The Secretary,                                      .... Respondents
Ministry of Labour & Ors.

                      Through Nemo



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers               NO
        may 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?


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 3rd May, 2006

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No.740/2005, titled as 'Dr.(Mrs.) Neena Sharma v.

Director General, Employees State Insurance Corporation & Ors.'

assailing the order dated 17th November, 2003 conveying to the

petitioner that her name has not been recommended for promotion to

the post of CMO by the Departmental Promotional Committee (DPC).

2. The brief facts to comprehend the dispute between the parties

are that the petitioner is presently working as Senior Medical Officer

(SMO) in ESIC in the scale of Rs. 10,000-325-15,200. The petitioner

was appointed as IMO Grade-II, on regular basis on 14th May, 1992

in ESIC and she was further promoted as SMO on 14th May, 1996

after completing four years of regular service as IMO, Grade-II. The

next promotion is to the post of Chief Medical Officer (CMO) in the

grade of Rs. 12,000-375-18,000/-. The petitioner was considered for

the promotion to the post of CMO by the DPC held on 29 th July,

2003, however she was not considered fit for promotion as conveyed

to her by memo dated 17th November, 2003 which was challenged by

the petitioner and in light of no action being taken by the

respondents, it was subsequently impugned before the Tribunal. The

grievance of the petitioner was that she had received adverse

remarks in her ACRs for the year 1998-1999 which were expunged

before the date of DPC meeting. The petitioner had also contended

that during the period of 1997-1998 to 2001-2002, she had received

the grading of 'good' for 1997-98 and thereafter she was rated as

'average' in the following years, as a result of which she was declared

unfit by the DPC. In the circumstances, the petitioner had contended

that the 'average' grading given after the 'good' grading received in

the year 1997-1998, should have been communicated to her as it

was below the benchmark for promotion.

3. The petitioner, in the circumstances, had sought

communication of the ACRs which were below the benchmark and

conducting a review DPC meeting for consideration of her promotion

with retrospective effect and seniority.

4. The petition was contested by the respondents contending,

inter-alia, that the respondents had followed the rules in respect of

promotions and the case of the petitioner does not warrant a review

DPC. It was also contended that in any case the original application

filed on 31st March, 2005 was hopelessly time barred as it was

pertaining to the memo dated 17th November, 2003. Before the

Tribunal, the original records of the ACR of the petitioner was also

produced and perused by the Tribunal. The Tribunal had noted that

the Senior Medical Officers are promoted as CMOs on completion of

6 years of regular service as Senior Medical Officer, or on completion

of 10 years of combined regular service as Medical Officer and Senior

Medical Officer of which at least 2 years service has to be as a Senior

Medical Officer on the basis of seniority-cum-fitness subject to

clearing the benchmark of 'good' with no zone of selection and

without linkage to vacancies. It was also held that such promotions

are to be in situ and personal to the officers promoted.

5. Considering the precedent relied on by the parties, U.P.Jal

Nigam & Ors. v. Prabhat Chandra Jain & Ors., AIR 1996 SC 1661;

and Union of India & Anr. v. Major Bahadur Singh, (2005) 9 SCALE

459, the Tribunal had held that there was no infirmity in the

procedure adopted by the respondents by following the

recommendations of the High Power Committee (Tikku Committee)

dated 14th November, 1991. In the circumstances, the Tribunal had

held that the case of the petitioner does not warrant any review DPC

since as per DOP& T OM No. 22013/97-Estt.(D) dated 13th April,

1998 it was categorically stipulated that the primary objective of

holding review DPC is to rectify any mistake that took place at the

time of holding the original DPC and the Tribunal was of the view

that there was no infirmity in the procedure followed by the

respondent.

6. On 6th July, 2011 an adjournment was sought on behalf of

learned counsel for the petitioner on the ground that she was

indisposed and the matter was not taken up for regular hearing. The

matter was adjourned at the request on behalf of the learned counsel

for the petitioner and it was allowed to remain on board in the

category of 'Regular Matters'.

7. The matter was again taken up for regular hearing on 8th July,

2011, however, no one had appeared on behalf of the petitioner. On

that date no adverse order was passed against the petitioner in the

interest of justice and the matter was allowed to remain on board in

the category of 'Regular Matters'.

8. Thereafter, the matter was taken up for regular hearing on 12th

July, 2011 and yet again an adjournment was sought on behalf of

the learned counsel for the petitioner on the ground that she was still

not well, and therefore, the matter was not taken up for regular

hearing and it was allowed to remain on board in the category of

'Regular Matters'.

9. The matter was once again taken up for regular hearing on 9th

August, 2011 and on that date also no one had appeared on behalf of

the parties.

10. Today, as well no one is present on behalf of the parties. In the

circumstances, the Court is left with no option but to dismiss the

writ petition in default for non appearance of the petitioner and his

counsel.

The writ petition is, therefore, dismissed in default. All the

pending applications are also disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

August 23, 2011.

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