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Meghalaya High Court · body

2020 DIGILAW 16 (MEG)

Virender Baboria v. Union of India

2020-03-13

MOHAMMAD RAFIQ

body2020
ORDER : Mohammad Rafiq, J. 1. This writ petition has been filed by Dr. Virender Baboria under Article 226 of the Constitution of India inter alia, with the prayer that the order dated 17.07.2015 passed by the Director General, Assam Rifles, Shillong (respondent No. 2) be quashed and set aside and the respondents be directed to grant him the benefit of the first promotion as Deputy Commandant (SMO) under the Dynamic Assured Career Progression Scheme (for short 'DACP Scheme') w.e.f. 01.01.2008 on completion of 4 years of service in the Grade Pay of Rs. 5400 in Pay Band 3 and further consider him for the second promotion to the rank of CMO (2IC) w.e.f. 01.01.2013 on completion of 5 years of service in the Grade Pay of 6600 in Pay Band 3. 2. The facts pleaded in the writ petition are that the petitioner joined the services of the Assam Rifles on 01.01.2004 as an Assistant Commandant (Medical Officer) after having been selected by the Medical Officer Selection Board held at ITBP Headquarter New Delhi. Career Progression of the Medical Officers serving the Central Government, is currently regulated by the Office Memorandum No. F No. A.45012/2/2008-CHS.V dated 29.10.2008 issued by the Ministry of Health & Family Welfare, CHS Division, Government of India. As per the said Office Memorandum, a Medical Officer is granted four time bound promotions in the following manner:- “Promotions under DACP Scheme No. of years of regular service required for promotion From To Medical Officers (Grade Pay Rs. 5400 in PB-3) SMO (Grade Pay Rs. 6600 in PB-3) 4 years in Grade Pay of Rs. 5400 in PB-3 including service rendered in the pre-revised scale of Rs. 8000-13500 SMO (Grade Pay Rs. 6600 in PB-3) CMO (Grade Pay Rs. 7600 in PB-3) 5 years in Grade Pay of Rs. 6600 in PB-3 including service rendered in the pre-revised scale of 10000-15200 CMO (Grade pay Rs. 7600 in PB-3) CMO (NFSG) (Grade Pay Rs. 8700 in PB-4 4 years in Grade Pay of Rs. 7600 in PB-3 including service rendered in the pre-revised scale of Rs. 12000-16500 CMO (NFSG) (Grade pay Rs. 8700 in PB-4) SAG Grade (Grade Pay Rs. 10000 in PB-4 7 years in Grade Pay of Rs. 8700 in PB-4 including service rendered in the pre-revised scale of Rs. 14300-18300 or 20 years of regular service” 3. 7600 in PB-3 including service rendered in the pre-revised scale of Rs. 12000-16500 CMO (NFSG) (Grade pay Rs. 8700 in PB-4) SAG Grade (Grade Pay Rs. 10000 in PB-4 7 years in Grade Pay of Rs. 8700 in PB-4 including service rendered in the pre-revised scale of Rs. 14300-18300 or 20 years of regular service” 3. It is not in dispute that the Dynamic Assured Career Progression Scheme is applicable to the Assam Rifles which is a Central Para-Military Force. The Directorate General, Assam Rifles (MS) clarified this aspect in the signal bearing No. DE SHG SER No. 080595 that the promotion of the Medical Officer in CPMFS till Senior Administrative Grade shall be time bound as per Ministry of Health and Family Welfare Order Memorandum dated 29.10.2008. According to the petitioner, he was required to be promoted from the rank of Assistant Commandant (MO) to the rank of Deputy Commandant (SMO) w.e.f. 01.01.2008. In fact, the petitioner along with others was promoted to the rank of Deputy Commandant (SMO) in SITU from the rank of Assistant Commandant (MO) w.e.f. 01.01.2008 under the authority of Note Sheet No. CF/32230194/2013/PERS(III) dated 09.10.2013 issued by the Ministry of Home Affairs, a copy thereof has been placed on record at Annexure-3 to the writ petition. The fact that the petitioner was actually promoted to the rank of Deputy Commandant (SMO) w.e.f. 01.01.2008 is evident from Part Two Order: AR Cadre Officer at Annexure-4 to the writ petition. The petitioner thereafter continued to serve the respondents with his seniority being fixed at his original place and being counted from 01.01.2008. As per the DACP Scheme, the petitioner was due to be promoted to the next rank of CMO (2IC) w.e.f. 01.01.2013. Since he fulfilled the qualifying requirement, the DPC was required to consider him in the year 2014. When no action was initiated by the respondents, he pleaded his case before his seniors. He was however surprised to know that his case for consideration by the DPC has been deleted since orders fixing his seniority w.e.f. 01.01.2008 had been cancelled and the seniority would now be fixed w.e.f. 2013 and he would now be eligible for promotion to Deputy Commandant (SMO), only in the year 2018. The petitioner submitted a representation dated 26.06.2015 (through proper channel) addressed to the Directorate General, Assam Rifles -respondent No. 2. The petitioner submitted a representation dated 26.06.2015 (through proper channel) addressed to the Directorate General, Assam Rifles -respondent No. 2. The Commandant, 17 Assam Rifles duly forwarded his representation recommending that the grievance of the petitioner deserves redressal. The Director General, Assam Rifles vide order dated 17.07.2015 informed that the due date of promotion in respect of the petitioner as Assistant Commandant to Deputy Commandant is now to be taken as 29.10.2013 instead of 01.01.2008. Consequently, the petitioner would now be promoted to the rank of Chief Medical Officer (2IC) after completion of 5 years w.e.f. 29.10.2018. 4. Mr. R. Mazumdar, learned counsel for the petitioner submitted that the promotion of the petitioner under the DACP Scheme vide Office Memorandum dated 29.10.2008 is time bound promotion which is required to be made without any linkage to vacancies and that the benefits of promotions and all consequential benefits arising there from under the scheme are liable to be extended from the date that the incumbent completes the requisite period in certain scale of pay. Even signal bearing No. DE SHG SER No. 080595, clarifies that pay and allowances are to be fixed on due date of promotion and not on actual assumption of rank. As per clarification by the Department of Personnel and Training, promotion is to be given according to the position of the officer in the panel but this cannot be construed to mean that the promotion and consequential benefits thereof would be deferred to any later date in case there is any delay in convening the requisite DPC or in passing the actual promotion orders. In such view of the matter, the action of the respondents in issuing order dated 17.07.2015 is highly illegal and is liable to be declared illegal and be quashed. 5. Learned counsel for the petitioner argued that the respondent authorities by taking the date of promotion of the petitioner as 29.10.2013, instead of 01.01.2008, have wholly nullified the intent of affording time bound promotions to Medical officers as per the provisions of the DACP Scheme from the rank of Assistant Commandant (MO) to Deputy Commandant (SMO) w.e.f. 01.01.2008. The respondents could not have unilaterally changed the date of his promotion to 29.10.2013. Before doing so, neither any notice nor opportunity of hearing was afforded to the petitioner. The respondents could not have unilaterally changed the date of his promotion to 29.10.2013. Before doing so, neither any notice nor opportunity of hearing was afforded to the petitioner. The action of the respondents thus violated the principles of natural justice and Article 14 of the Constitution of India. 6. Referring to the counter affidavit filed by the respondents, Mr. R. Mazumdar, learned counsel for the petitioner further argued that the averments at para 4 are contradicted by the documents enclosed therewith. The table given in para 4 at Column (c) indicates that the DPC held on 16.09.2010 while considering the record of the petitioner, found that he had only 'average' grading in the ACR of 2010-11, whereas required Bench Mark for promotion was good. According to Appendix 'A' prepared for Internal Assessment for DPC 2015-16 enclosed with the Minutes of the DPC held on 17.03.2015, filed with the counter affidavit, the petitioner was given 'good' grading for the year 2010-11. Similarly, the DPC held on 26.09.2011 also indicates 'average' grading for the year 2011-12 as against the required Bench Mark of 'good' whereas the Appendix 'A' appearing in Internal Assessment for DPC: 2015-16 indicates that the petitioner had 'very good' grading for the year 2011-12. Likewise, the DPC held on 10.09.2012 while analysing the record of the petitioner was apprised that the petitioner had only 'average' grading for the year 2012-13 as against the required Bench Mark of 'good' whereas, according to Appendix 'A', the petitioner had 'outstanding' grading for the year 2012-13. Learned counsel for the petitioner therefore, submitted that not only the respondents have sworn false affidavit on oath but have also misled the DPC as regard the actual grading of the petitioner. Therefore, on merits also, there is no justification in changing the date of promotion of the petitioner. 7. Per contra, Mr. K. Paul learned CGC appearing for the respondents submitted that the petitioner was actually found unfit for promotion to the rank of Senior Medical Officer as on 01.01.2008, on account of the reasons mentioned in para 4 of the table given thereof as he then failed to achieve the requisite Bench Mark gradation of 'good' to fulfil the criteria for further promotion. He was however finally found fit for promotion to the rank of Deputy Commandant (SMO) w.e.f. 29.09.2013 when his case was again considered by the DPC in September 2013. He was however finally found fit for promotion to the rank of Deputy Commandant (SMO) w.e.f. 29.09.2013 when his case was again considered by the DPC in September 2013. His promotion has accordingly been approved by the Ministry of Home Affairs vide CF-3220195/2013 order dated 10.10.2013. It is submitted that the DPC for the year 2013-14 while considering the case of the petitioner at that point of time erroneously fixed 01.01.2008 as the date of his promotion to the rank of Deputy Commandant (SMO) though he was actually due for promotion on 29.09.2013, the time when he fulfilled the criteria of promotion. The DPC for the year 2015-16 again considered case of the petitioner for promotion to the rank of CMO (2IC) as per the policy laid down by the Office Memorandum dated 29.10.2008 on completion of 5 years in the rank of Deputy Commandant (SMO) (Grade Pay Rs. 6600). As per seniority erroneously allotted to the petitioner in the DPC held on 30.09.2013, the respondent authorities considered 01.01.2008 as the date for his promotion to the post of Deputy Commandant (SMO). Since the petitioner had by that time completed the requisite service of 5 years, the DPC for the year 2015-16 convened on 17.03.2015 considered his case. The proceedings were forwarded to the Ministry of Home Affairs for approval by CF No. 330495/15 dated 12.06.2015, which conveyed to the Directorate, Assam Rifles that the due date for promotion of the petitioner from Assistant Commandant to the rank of Deputy Commandant be taken as 29.10.2013 instead of 01.01.2008. As per the DACP Scheme, the petitioner on completion of 5 years regular service therefrom would be eligible for promotion to the rank of Chief Medical Officer (2IC). It is therefore submitted that the petitioner would be entitled for promotion to the rank of Deputy Commandant on completion of 5 years on 29.10.2013. 8. I have given my anxious consideration to rival submissions and perused the material on record. 9. Despite pointed query of the Court, Mr. It is therefore submitted that the petitioner would be entitled for promotion to the rank of Deputy Commandant on completion of 5 years on 29.10.2013. 8. I have given my anxious consideration to rival submissions and perused the material on record. 9. Despite pointed query of the Court, Mr. K. Paul, learned CGC appearing for the respondents, in the course of argument, could neither justify nor explain the disparity between what is stated in the table given in para 4 of the counter affidavit and what is stated in Appendix 'A' prepared for the Internal Assessment for DPC: 2015-16, indicting higher grading than those indicated in the aforementioned table for the years 2010-11, 2011-12 and 2012-13. Obviously, correct information and complete record was not placed before the DPC and therefore, its recommendation was based on misreading of the relevant record. The conclusion recorded by the DPC with regard to attainment of Bench Mark by the petitioner was thus erroneously arrived, being based on wholly incorrect and unfounded facts. The action of the respondents in changing the date of promotion of the petitioner from the rank of Assistant Commandant to the rank of Deputy Commandant from 01.01.2008 to 29.10.2013 is therefore, wholly illegal and unsustainable in law. 10. Apart from the fact that recommendation of the DPC was founded on misreading of the relevant record, the impugned order is liable to be set aside also because the order was passed in breach of principles of natural justice and inasmuch as the respondents have drastically changed the date of promotion of the petitioner from the rank of Assistant Commandant to the rank of Deputy Commandant w.e.f. 01.01.2008 to 29.10.2013. This has caused serious prejudice to the petitioner. Neither did they serve any action notice inspired upon him nor did they provide to him any opportunity of hearing. The impugned order dated 17.07.2015 has been passed in utter breach of the principles of natural justice and is therefore violative of Article 14 of the Constitution of India. If the records are correctly right, the petitioner having completed the period of 4 years of service in the Grade Pay of Rs. 5400 in PB-3 including service rendered in the pre-revised scale of Rs. If the records are correctly right, the petitioner having completed the period of 4 years of service in the Grade Pay of Rs. 5400 in PB-3 including service rendered in the pre-revised scale of Rs. 8000-13500 and attained the required Bench Mark, would indeed be entitled to promotion to the rank of Assistant Commandant (MO) w.e.f. 01.01.2008 and thereafter, having again attained the required Bench Mark and completed further period of 5 years from 01.01.2008, the petitioner would be also entitled to promotion to the rank of Deputy Commandant (SMO) w.e.f. 01.01.2013. 11. In view of the above discussions, present petition deserves to succeed and is hereby allowed. The impugned order dated 17.07.2015 is quashed and set aside and first promotion granted to the petitioner to the rank of Assistant Commandant (MO) in the Grade Pay of Rs. 5400 in Pay Band 3 w.e.f. 01.01.2008 under the Dynamic Assured Career Progression Scheme is ordered to be restored. The respondents are further directed to grant second promotion to the petitioner to the rank of Chief Medical Officer (2IC) w.e.f. 01.01.2013 on completion of 5 years of service in the Grade pay of Rs. 6600. The petitioner shall be entitled to all the consequential benefits. Compliance of this judgment be made within the period of three months. 12. There shall be no order as to costs.