Delhi High Court
Dr.H.L.Raskaran vs Uoi & Ors. on 6 September, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 6th September, 2011
+ W.P.(C) 799/2008
DR.H.L.RASKARAN ..... Petitioner
Through: Mr.Raman Kapur, Senior Advocate with
Mr.Puneet Bajaj, Advocate for petitioner.
Ms.Jyoti Singh, Senior Advocate with
Mr.Amandeep Joshi, Advocate for
Review Applicant.
versus
UOI & ORS. .... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Ms.Anjana Gosain, Mr.Ruchir Mishra,
Mr.Sandeep Bajaj and Mr.Gurpreet
S.Parwarda, Advocates for UOI.
Ms.Rekha Palli, Ms.Punam Singh and
Ms.Amrita Prakash, Advocates for
R-5 - 10, 12, 15, 16, 18, 20, 22-24.
W.P.(C) 800/2008
DR.S.K.SRIVASTAVA & ORS. ..... Petitioners
Through: Mr.Raman Kapur, Senior Advocate with
Mr.Puneet Bajaj, Advocate for petitioners
Ms.Jyoti Singh, Senior Advocate with
Mr.Amandeep Joshi, Advocate for
Review Applicant.
versus
UOI & ORS. ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Ms.Anjana Gosain, Mr.Ruchir Mishra,
Mr.Sandeep Bajaj and Mr.Gurpreet
S.Parwarda, Advocates for UOI.
W.P.(C) No.800/2008 & Connected Matters Page 1 of 16
Ms.Rekha Palli, Ms.Punam Singh and
Ms.Amrita Prakash, Advocates for
R-5 - 10, 12, 15, 16, 18, 20, 22-24.
Mr.D.K.Rustagi, Advocate for R-26.
W.P.(C) 803/2008
DR.SHEKHAR JAISWAL ..... Petitioner
Through: Mr.Raman Kapur, Senior Advocate with
Mr.Puneet Bajaj, Advocate for petitioner.
Ms.Jyoti Singh, Senior Advocate with
Mr.Amandeep Joshi, Advocate for
Review Applicant.
versus
UOI &ORS. ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Ms.Anjana Gosain, Mr.Ruchir Mishra,
Mr.Sandeep Bajaj and Mr.Gurpreet
S.Parwarda, Advocates for UOI.
Ms.Rekha Palli, Ms.Punam Singh and
Ms.Amrita Prakash, Advocates for
R-5 - 10, 12, 15, 16, 18, 20, 22-24.
W.P.(C) 7136/2008
DR.O.P.NIMESH ..... Petitioner
Through: Mr.Raman Kapur, Senior Advocate with
Mr.Puneet Bajaj, Advocate for petitioner.
Ms.Jyoti Singh, Senior Advocate with
Mr.Amandeep Joshi, Advocate for
Review Applicant.
versus
UOI & ORS. ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Ms.Anjana Gosain, Mr.Ruchir Mishra,
Mr.Sandeep Bajaj and Mr.Gurpreet
S.Parwarda, Advocates for UOI.
Ms.Rekha Palli, Ms.Punam Singh and
Ms.Amrita Prakash, Advocates for
R-5 - 10, 12, 15, 16, 18, 20, 22-24.
W.P.(C) No.800/2008 & Connected Matters Page 2 of 16
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE SURESH KAIT
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.
R.P.No.385/2011 & R.P.No.341/2011
1. R.P.No.341/2011 has been filed in W.P.(C) No.800/2008.
R.P.No.385/2011 has been placed in the file of W.P.(C) No.7136/2008.
However, we find that in the said review petition it is stated that it be
treated seeking review of the judgment and order dated 2.5.2011
which is common to 4 writ petitions i.e. the above captioned writ
petitions.
2. 4 writ petitions No.799/2008, 800/2008, 803/2008 and
7136/2008 were disposed of by a common judgment and order dated
2.5.2011, in which directions issued were in para 19 which reads as
under:-
"It is apparent that there is a complete arbitrariness in
the action of the official respondents and thus we dispose
of the writ petitions quashing the impugned combined
seniority list of CMO (SG) and issue a direction that the
list would be re-drawn with reference to the date the
incumbent joined as a Medical Officer i.e. the lowest post
in the cadre, subject to the condition that the person
concerned would lose said benefit if at any stage while
being promoted he was declared unfit in a particular year
and gained fitness in a subsequent year and hence
thereby earned a promotion."
3. From the facts which we would be noting hereinunder, it
would be apparent that a most ill-drafted writ petition and equally
confusing responses, have necessitated a virtual re-hearing of the 4
writ petitions and we must express our displeasure at the callous
manner in which the writ petitions were drafted and the response
filed.
4. When the writ petitions were heard on 2.5.2011 and
disposed of by an oral judgment, in para 2 of our order under review,
we had observed:-
"From the inchoate pleadings in the writ petition as also
the counter affidavit filed on behalf of the official
respondents, nothing of substance can be gathered. But
with reference to the counter affidavit filed on behalf of
the respondents 5 to 10, 12, 15, 16, 18, 20, 22, 23 and 24
in W.P.(C) No.800/2008, we have been able to see the
distinction between the head from the tail and thus
identify the issue which arises for consideration in the
above captioned writ petitions."
5. But today, looking at the matter from hindsight and
benefited with the pleadings in the review petition, we have no
hesitation in acknowledging that our boast in paragraph 2 of our
decision which we have been called upon to review, of having been
able to see the distinction between the head from the tail was not a
correct vision. The desert of the ignorant pleadings led us into a folly
to commit an error of seeing a mirage and thinking that we have
reached the oasis.
6. Of lately, we have been lamenting time and again, that
standards of pleadings are falling abysmally low, resulting in judicial
time being wasted; contributing as one of the many reasons, amongst
others, for judicial delays. Hours are spent to grapple with the
pleadings to understand what the controversy is. We wish to
highlight that writ pleadings are pleadings of fact, evidence and law.
The annexures make good the pleadings in the writ petition and the
narratives in the various paragraphs of a writ petition have to relate
to the annexures and suffice would it be to state that the requirement
of Order 6 Rule 9 of the Code of Civil Procedure is to briefly state in
the pleadings the effect of a document upon which a party relies. The
grounds in a writ petition are intended to highlight the legal issues
which arise for consideration with respect to the pleadings and the
annexures i.e. the documents on which the pleadings rest. We are
repeatedly noting that no pleadings are being made with respect to
the effect of the annexures annexed to the writ pleadings and in most
of the cases only by way of statement of fact it is pleaded that a
document exists. Indeed, as we would be highlighting this has
happened in the instant case and the result is that we wasted nearly
2 hours on 2nd May, 2011 when the writ petitions were disposed of.
We had to spend another 2 hours on the last date of hearing i.e. 21 st
July, 2011 when issues (in review) got sorted out, which had to be
reflected upon and on 1st September 2011, i.e. the date on which we
reserved the matters for judgment, we had to spend another 1 hour
and 30 minutes. The court sitting time is from 10:30 AM to 4:30 PM
with a lunch break from 1:15 PM to 2:15 PM. The court sits for 5
hours each day for 5 days a week and 210 day in an year, and it is
most unfortunate that on a short little issue the Division Bench had to
spend 30 minutes + 1 day.
7. With the expression of woe as above, and having
regained our composure, we proceed to note the facts.
8. There are 6 Central Para Military Forces in India i.e. (i)
Border Security Force, (ii) Central Reserve Police Force, (iii) Indo-
Tibetan Border Police, (iv) Shashtra Seema Bal, (v) Central Industrial
Security Force, and (vi) Assam Rifles.
9. Each Force has a medical cadre and for which recruitment
and promotion rules were enacted separately, but admittedly are
pari-materia with each other.
10. At the constitution of the cadre in each force, the lowest
post was that of a Medical Officer Grade-II and the next above post
was of Medical Officer Grade-I. The next above post was that of a
Chief Medical Officer.
11. Since promotions were vacancy based and there was
stagnation in the medical cadre in each force and similar being the
position of doctors working in civil hospitals under the Ministry of
Health, the Government actively considered a cadre review and on
13.3.1987 constituted an Inter Departmental Committee to consider
career progression in the medical cadre.
12. The recommendations of the Committee resulted in the
Government of India issuing an office memorandum on 6th July 1994,
reconstituting the medical cadre in all Central Police Organization,
which included the Central Para Military Forces. Vacancy based
promotions were done away with up to the level of a Chief Medical
Officer (Ordinary Grade). The Cadre restructuring was as under:-
A. MO (Grade-II): Reclassified as Medical Officer (MO)
B. MO (Grade-I): Reclassified as Senior Medical Officer
(SMO)
C. Chief Medical Officer (CMO): CMO (Ordinary Grade)
13. A promotional post i.e. CMO (Selection Grade) was
created by placing 15% of the posts of CMO (Ordinary Grade) in the
selection grade when reconstitution initially took place, which was
enhanced to 30% in the year 2000 and in the year 2002 the post of
CMO (Selection Grade) was put in the time scale.
14. At the reconstitution of the cadre all Medical Officers
either Grade-II having 5 years' experience became eligible to be
promoted as Senior Medical Officer and it was only fitness which had
to be considered. Those who had rendered 10 years' service as
Medical Officers with 2 years' as Senior Medical Officer became
entitled to be promoted as CMO (Ordinary Grade). In other words
promotions ceased to be vacancy based. They came on a time scale.
15. It may be highlighted that the decision taken in the year
1994 was to be given retrospective effect with effect from 1.4.1988.
16. Nobody had a problem as everybody moved up the cadre
in the respective force till the year 2005, when above the post of CMO
(Selection Grade) posts of DIG (Medical) were created with integration
at said level of all Central Para Military Forces. In other words all
persons holding the post of CMO (Selection Grade) in the 6 Para
Military Forces had to be placed in an integrated seniority list for
purposes of consideration of the eligible candidates for promotion to
the integrated posts of DIG (Medical).
17. Making a cursory mention in the writ petitions that on 18th
February 2005 the Ministry of Home Affairs issued a circular listing
principles for finalization of common eligibility list for promotion to the
rank of DIG (Medical) and that pursuant thereto a seniority list was
formulated, above captioned writ petitions were filed making different
prayers. Let us note the prayers made in the 4 writ petitions.
18. In W.P.(C) No.799/2008 it is prayed:
"(a). Issue a writ of or in the nature of certiorari and
mandamus or any other appropriate writ, order of direction
to either quash the Common Eligibility list of Chief Medical
Officers (SG) of Combined Medical Cadres of Central Police
Organizations as on 01-07-2005 and direct the respondent
No.1 to recast a new one as per circular dated 06-07-1994
by placing the petitioner at serial No.106 instead of present
serial No.118 in above mentioned common eligibility list.
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents to
promote the petitioner with effect from 06-11-1992 and
pay him the salary and allowances from that date.
(c) Issue an appropriate writ, order or direction directing
the respondents to compensate the petitioner by giving
interest on the differences in the salary and allowances
pursuant to the promotion from 06-11-1992."
19. In W.P.(C) No.800/2008 it is prayed:
"(a). Issue a writ of or in the nature of certiorari and
mandamus or any other appropriate writ, order of direction
to either quash the Common Eligibility list of Chief Medical
Officers (SG) of Combined Medical Cadres of Central Police
Organizations as on 01-07-2005 and direct the respondent
No.1 to recast a new one as per circular dated 06-07-1994.
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents to
promote the petitioner No.1, 2 and 3 as Chief Medical
Officer from 15-2-1994, 19-9-1995 and 23-9-1995
respectively and pay them the salary and allowances from
that date.
(c) Issue an appropriate writ, order or direction directing the
respondents to compensate the petitioner by giving interest on
the differences in the salary and allowances pursuant to the
promotion from 15-2-1994, 19-9-1995 and 23-9-1995
respectively."
20. In W.P.(C) No.803/2008 it is prayed:-
"(a). Issue a writ of or in the nature of certiorari and
mandamus or any other appropriate writ, order of direction
to either quash the Common Eligibility list of Chief Medical
Officers (SG) of Combined Medical Cadres of Central Police
Organizations as on 01-07-2005 and direct the respondent
No.1 to recast a new one as per circular dated 06-07-1994
and circular dated 18-2-2005 by placing the petitioner
above respondents No.5-11 in above mentioned common
eligibility list."
21. In W.P.(C) No.7136/2008 it is prayed:
"(a). Issue a writ of or in the nature of certiorari and
mandamus or any other appropriate writ, order of direction
to either quash the Common Eligibility list of Chief Medical
Officers (SG) of Combined Medical Cadres of Central Police
Organizations as on 01-07-2005 and direct the respondent
No.1 to recast a new one as per circular dated 06-07-1994
by placing the petitioner at serial No.106 instead of present
serial No.119 in above mentioned common eligibility list.
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents to
promote the petitioner with effect from 01-01-1993 and
pay him the salary and allowances from that date.
(c) Issue an appropriate writ, order or direction directing
the respondents to compensate the petitioner by giving
interest on the differences in the salary and allowances
pursuant to the promotion from 01-01-1993."
22. It is apparent that in the writ petitions filed in the year
2008 the petitioners were claiming a right to be promoted as Chief
Medical Officers from dates as interior as the year 1992 and one
could simply have dismissed the writ petitions as barred by delay and
laches.
23. But noting the fact that the fortuitous circumstance when
Screening Boards met to determine fitness in various Central Para
Military Forces and made recommendations, had resulted in persons
being promoted on the time scale, in Central Para Military Forces, on
different dates and being made to understand that the result thereof
was that persons who joined at the lowest in the cadre on a date
earlier than their counterparts in some Central Police Organizations
becoming junior, prima facie finding the same to be unjust and
noting, in para 17 of our decision dated 2nd May 2011 that the stand
projected by the Government was that it was the length of service
rendered as CMO (SG) and if this was the same, the date of promotion
in the immediately lower grade would be the deciding factor,
observing that the fortuitous circumstance of the date on which
Screening Committee is met cannot result in seniority being effected,
had issued the direction in para 19 of our decision dated 2 nd May
2011, which direction has been reproduced by us in para 2 above.
24. Regretfully we must say that neither counsel drew our
attention, though we must confess that in all the writ petitions there
is a reference to the office order dated 18th February 2005, that the
principles of integration of the cadre at the level of CMO (SG) had
been enlisted therein and we must highlight that it was only during
arguments in the review application that it was highlighted through
the medium of the review applications that the Government had
finalized the common eligibility list with reference to the 4 principles
enunciated in the said office order, which reads as under:-
"MINISTRY OF HOME AFFAIRS
Pers-II
Sub: Finalization of Common Eligibility Lists of promotion to
the ranks of DIG (Med) and above in the Combined
Medical set-up of Central Police Forces
Reference is invited to this Ministry's letter
No.II.27012/93/2003-PF-III dated 02.09.2004 regarding
restructuring of Medical set-up of CPFs which inter alia
envisages that at the level of DIG and above the
promotions will be common to all Forces based on
combined gradation of Medical Officers.
2. Therefore in order to prepare Common Eligibility
lists of the ranks of CMO (SG) (which is the feeder
cadre to the rank of DIG (Med) and above a Committee
was constituted in MHA. The Committee has prepared
draft common Eligibility lists based on the following
principles.
(i) To prepare the eligibility list for promotion the
duration of regular service in the present grade i.e. the
date of promotion to this grade has been taken into
account as provided in para 3(8)(ii)(a) to (d) & 9 of
Gazette No.-A/12019/1790-CHS-V vol-II GOI, dated 08
Oct.1996 for promotions to higher floating posts of
CHS from various specialist/non specialist sub cadres.
(ii) If the length of service in the present grade is
same the date of promotion to the immediate lower
grade was the deciding factor and soon.
(iii) If all the duration of service in all higher grades
are same the date of joining was taken into account
and if that also happened to be same the date of birth
(iv) The inclusion of the civilian component of SSB
Medical Officers in the combined combatized CPF
Medical cadre is subject to exercising their option for
combat zing as one time measure in the event of any
Medical Officer remaining unwilling for the same such
name(s) shall deleted from the list.
3. CPFs are requested to circulate the draft eligibility
lists among all concerned for information and inviting
objections if any within a period of 30 days so that the
lists could be finalized Objections received within the
specific period may kindly be examined and forwarded
to this Ministry along with your comments.
Encl: As above
-sd-
(Manoj Aggarwal)
Director (Pers.)
Ph-23092956
DG, BSF: (Shri R.S.Moosahary)
DG, CRPF: (Shri J.K.Sinha)
DG, ITBP: (Shri K.J.Singh)
DG, CISF: (Shri K.M.Singh)
DG, SSB: (Shri Himanshu Kumar)
DG, AR: Lt.Gen Bhupinder Singh) Through LOAR)
MHA.UO No-I-45024/02/2005/PERs-II dated 18th Feb
2005."
25. Now, the rule of pleading enshrined under Sub-Rule 9 of
Rule 6 of the Code of Civil Procedure reads as under:-
"9. Effect of document to be stated. - Wherever the
contents of any document are material, it shall be
sufficient in any pleading to state the effect thereof as
briefly as possible, without setting out the whole or
any part thereof, unless the precise words of the
document or any part thereof are material."
26. In no writ petition the effect of office order dated
18.2.2005 containing the principles on which common eligibility list
had to be prepared has been pleaded. The only pleading is to the
matter of fact of it existing and not its effect. The least what was
required was to plead that the effect of the office order is that it is the
date of promotion to the grade of CMO (SG) which form the basis to
prepare the seniority list with reference to the duration of regular
service in the said grade. Further, if length of service in the grade of
CMO (SG) was the same, it was the date of promotion in the
immediate lower grade which became the deciding factor and if
duration of service in the grade was the same it was the date of
joining the cadre which became relevant and if even this happened to
be the same, it was the date of birth which would have broken the
deadlock. It had to be pleaded that when applied, it had an effect
which was based on a fortuitous circumstance. The challenge ought
to have then been made to the principles laid down i.e. the office
order had to be challenged as containing arbitrary principles while
dealing with the subject of cadre integration at the rank of DIG
(Medical).
27. But the petitioners have done nothing of the sort. They
have prayed that their promotions in the lower posts be ante-dated.
28. Since everything was confusing and lest even our decision
looks confusing, we highlight what the problem is.
29. Beginning with noting the facts in the 4 captioned writ
petitions, the petitioners are doctors in BSF and highlighting that BSF
had followed the constant practice of convening Screening
Committees and completing the screening process by September
each year, promotions were effected w.e.f. 1st October.
30. As noted by us hereinabove, cadre restructuring took
place in all Central Police Organizations in the year 1994, given
retrospective effect w.e.f. 1988, and simply stated the cadre
restructuring was that all Medical Officers (Grade-II), re-designated as
Medical Officers, having rendered 5 years' regular service till
20.8.1987 became eligible to be promoted as Medical Officer (Grade-
I) re-designated as Senior Medical Officer and those joined after
1.10.1987 became eligible for promotion upon rendering 4 years'
service. Senior Medical Officers i.e. erstwhile Medical Officers (Grade-
I) became eligible for promotion as Chief Medical Officer with 6 years'
of regular service as Senior Medical Officer or 10 years' service in the
medical cadre out of which 2 years' service had to be as Senior
Medical Officer. In other words, upon completing 10 years' service in
the medical cadre and found fit for promotion at the first instance
when they became eligible for promotion, these doctors would
become Chief Medical Officers on completing 10 years' service.
Aforesaid is the position which stands culled out from the office
memorandum dated 6th July 1994, and we immediately highlight that
now the prayers made by the writ petitioners get enlightened,
inasmuch as we find that one prayer in each writ petition is that
petitioners' promotion as Chief Medical Officer be ante-dated in light
of the Office Memorandum dated 6.7.1994.
31. Whereas most of the Central Para Military Forces
completed the screening process before doctors completed 10 years'
service and those found suitable were promoted as Chief Medical
Officers on completion of 10 years' service or where screening was
delayed, these organizations gave retrospective effect to the date
from which persons were promoted as Chief Medical Officer, BSF did
not do so. Let us highlight with one illustration. In the eligibility list of
Chief Medical Officers (Selection Grade) of Combined Medical Cadre of
CPS as on 1.7.2005 i.e. the list in dispute, at serial No.118 is the name
of Dr.H.L.Raskakaran, an officer under BSF (petitioner of WP(C)
No.799/2008), who was born on 9.12.1956 and joined as a Medical
Officer (Grade-II) on 6.11.1982. He was promoted as a Medical
Officer (Grade-I) on 1.10.1987 and as CMO on 1.10.1993. The next
two persons at serial No.119 and 120 of the same list i.e. Dr.Om
Prakash Nimesh and Dr.Ashok Kumar Dass who joined after him on
1.1.1983 and 20.6.1983 were promoted as Medical Officer (Grade-I)
on the same date as he i.e. 1.10.1987 and were further promoted as
CMO as Dr.H.L.Raskakaran w.e.f. 1.10.1993. In other words all these
officers of BSF reach the rank of CMO and were so treated by their
organization after they had rendered more than 10 years' service, in
fact, Dr.H.L.Raskakaran reached the said post after 11 years' service.
Now, the office order dated 6.7.1994 made promotions on a time
scale and not vacancy based. To be promoted as a Chief Medical
Officer, those who had rendered 10 years' service as a Medical Officer
out of which 2 years had to be a Senior Medical Officer, became
entitled to be promoted. Whereas some organizations adhered to the
letter and spirit of the office memorandum by promoting their officers
on rendering 10 years' service, but BSF followed the conventional
path of effecting promotions after Screening Committees met and not
ante-dating the same.
32. The principles of integration as per circular dated
18.2.2005 stipulate that length of service as a Chief Medical Officer
would be the basis to determine seniority has obviously resulted to
the prejudice of those who were working in BSF and the prejudice has
been highlighted by us hereinabove. The fortuitous circumstance of
BSF completing screening by the September of each year and
effecting promotions w.e.f. 1st October of the same year has resulted
in doctors who joined BSF as Medical Officers (Grade-II) re-designated
as Medical Officers, in spite of having rendered 10 years' service on
an earlier date, being promoted as Chief Medical Officer from a later
date. These officers never raised a grievance as the delayed
promotion by a few months had hardly any effect as regards further
promotion; only effect being salary in the higher scale being paid
from a date a little later and this was too petty a cause to litigate
upon. But when the decision was taken in the year 2005 to integrate
the cadres at the level of CMO (SG) and when the principles of
determining seniority were specified in the circular dated 18.2.2005,
adverse effect becoming apparent vis-à-vis the officers in BSF.
33. Now, unfortunately for them, the petitioners have not
challenged the principles on which seniority has to be integrated as
enshrined in the officer order dated 18.2.2005; the claim predicated
on the office memorandum dated 6.7.1994 being highly belated; but
having understood the problem, and as reflected hereinabove, the
question would be what relief needs to be granted while disposing of
the review petitions.
34. Law is clear. In the matter of integration of a service, be
it in its entirety, or be it at a particular level, all issues which have a
bearing have to be properly taken into account and suffice would it be
to state that any decision which ignores a relevant matter which
should be taken into account is tainted, in that, it suffers from the
vice of arbitrariness. We do not fault the Government which
otherwise appears to have taken into account the well-recognized
factors on which seniority has to be determined when two streams
merge at a particular point, but since nobody highlighted before the
Government, as above, that whereas some organizations abided by
the letter and spirit of the cadre review decision notified on 6.7.1994
and strictly promoted eligible candidates whose suitability was
assessed and made them Chief Medical Officers upon rendering 10
years' service, BSF did not do so resulting in doctors in BSF being
promoted as Chief Medical Officers on dates ranging between a few
month up to 1 year after they had completed 10 years' service. We
do not know what decision the Government would have taken if this
was made known to the Government, but surely nobody can argue
that the said fact is not relevant. Thus, in the absence of any
challenge being made to the office order dated 18.2.2005 which
enshrines the principles on which seniority has to be determined and
noting that the prayer made of ante-dating seniority of the petitioners
with effect from dates in the year 1992 and 1993 hits the writ
petitions by the missile of delay and laches, but unable to close our
eyes to the perceived wrong which appears to be resulting, we
dispose of the review petitions recalling the mandamus issued vide
order dated 2nd May 2011 and in its place directing that the
Government of India, Ministry of Home Affairs i.e. the Cadre
Controlling Ministry of the Central Police Organization would look into
the grievance of the writ petitioners i.e. BSF granting promotion to
them as Chief Medical Officer not upon they completing 10 years'
service as Medical Officers, but on dates subsequent thereto, and the
consequential effect thereof on their service. If as a result of finding
merit in what these petitioners state, suitable modifications would be
effected in the office order dated 18.2.2005 and in said eventuality
the seniority list would be re-drawn but after preparing a draft
seniority list, inviting objections and then finalizing the same.
35. While reserving the matters for pronouncing our decision
as recorded in the order dated 1.9.2011 we had noted that one,
Dr.R.S.Rathore has been re-appointed on contractual basis as ADG
(Medical) probably for the reason the seniority dispute is hampering
the Government to effect promotion to the post of ADG (Medical). It
appears to us that Dr.R.S.Rathore has fished in troubled waters and
has misled the bureaucrats in the Ministry of Home Affairs for the
reason we find that the inter-se seniority dispute is not affecting the
persons who are first 10 in the seniority list and on whatever principle
the seniority would be determined, these 10 persons would retain
their position and noting that as per Rules the zone of consideration is
1:4, we see no reason why DPC should not meet to empanel a
candidate for promotion as ADG (Medical).
36. The review petitions stand disposed of in terms of para 34
hereinabove and a direction is issued that DPC be convened to
empanel a candidate for promotion as ADG (Medical) and the process
be completed within 12 weeks from today.
37. No costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
SEPTEMBER 06, 2011
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