ASHWINI KUMAR Vs. UOI
LAWS(DLH)-2007-3-126
HIGH COURT OF DELHI
Decided on March 13,2007

ASHWINI KUMAR Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

MUKUL MUDGAL,J. (oral) - (1.) Rule DB. With the consent of the learned counsel for the parties, this writ petition is taken up for final hearing. This writ petition challenges the order of the Central Administrative Tribunal (CAT) dated 25th April 2005 rejecting the O.A.1463/2004 filed by the petitioner. The petitioner herein has been working on the post of Deputy Drugs Controller since 1986 in the Ministry of Health and Family Welfare (hereinafter referred to as "MHFW"). The petitioner is Non Medical Scientist in the Department of Directorate General Health Services (hereinafter referred to as "DGHS") under the MHFW and was aggrieved by the fact that even though he was inducted into the service by direct recruitment through a rigorous process of selection conducted by UPSC, there was no promotion avenues, when compared with the Non Medical Scientists, employed in other departments of Government of India such as ICMR, AIIMS, or PGI, Chandigarh. Consequently, Dr. O.Z. Hussain, the president of the National Council of Bio-Medical Scientists, filed a Writ Petition in the Hon'ble Supreme Court titled as Dr. Ms. O.Z. Hussain v. Union of India, 1990 (suppl) SCC 688, under Article 32 of the Constitution of India. The said writ petition was disposed of by the Hon'ble Supreme Court on 15th November, 1989. The relevant portion of the said judgment reads as follows: ".....7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. IN a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate. 8. This writ petition is allowed and the following directions are issued: (1) Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall framed a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services; (2) These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. April 1, 1989. (3) Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today."
(2.) The above directions mandated framing of rules within four months from the date of the judgment delivered on 15th November, 1989 but the rules were framed by the respondents only on 28th November, 1990. Even though rules were formulated, the petitioner got no succour as he was not given the benefit of in- situ promotion as mandated by rules till 2003 even though the vacancy was of the year 1995. The relevant rules under the Department of Health (Group 'A' Gazetted Non Medical Scientific and Technical Posts) in Situ Promotion Rules, 1990 (hereinafter referred to as the "Rules") necessary for the determination of the writ petition, framed pursuant to the mandamus issued by the Hon'ble Supreme Court, read as under: "In Situ promotion" means personal promotion of a candidate holding any post in Annexure II from the existing Scientist Level to the next higher Scientist Level without any change in the post or in the designation thereof. 5. Constitution of Department Assessment Board " There shall be constituted a Departmental Assessment Board for considering a Departmental Assessment Board for considering in situ promotion. Situ Promotion of all eligible candidates consisting of the following persons namely :- (a) Chairman or Member of the Commission. - Chairman. (b) Secretary of the Department or an officer nominated by the Secretary not below the rank of Joint Secretary. - Member. (c) Not more than two experts in the respective specialty from outside the Department nominated by the Commission " Member(s). (d) One person from the Department who shall be a non-medical scientists to be nominated by the Secretary of the Department and who shall be at least one level above the grade for which in Situ Promotion is to be considered. - Member. 6. Preparation of List " The Department shall prepare a list of candidates who fulfill the qualifications specified in Annexure I and who have completed or who will complete five years' regular continuous service on the first day of April or the first day of October, as the case may be, in a post referred to in Annexure II and forward it to the Departmental Assessment Board, before every meeting of the Board referred to in Rule 7. 7. Review by the Departmental Assessment Board for In Situ Promotion " (1) The Departmental Assessment Board shall " (a)Meet twice in the months of January and July and; (b)Take into consideration the efficiency and overall performance of a candidate as reflected in his annual confidential reports and if deemed necessary by interview and the Assessment Board may at their discretion, consider in absentia the candidature of such officer(s) who are unable to present themselves for the interview and shall draw up a list of officers who are assessed as fit for in Situ Promotion to the next higher grade in accordance with the provisions of rule 8 and recommend to the Central Government accordingly. 9. Upgradation on promotion " Where an officer is promoted under these rules, the grade of the post immediately held by him shall stand upgraded to the next higher level to which he has been promoted and shall revert to the original level on the vacation of it by the officer holding it: Provided that where an officer is promoted further to higher levels in the course of time, the grade of the post shall continue to be upgraded to the level to which he has been promoted as personal to him and shall revert back to the level of original recruitment to the post, i.e., level 1,2,3 or 4 as shown in the column 4 of Annexure-II.
(3.) The above rules thus clearly indicate that as per Rule 7 (a) and (b), the Departmental Assessment Board (hereinafter referred to as the "DAB") was required to meet twice in the months of January and July every year and required to draw up the list of officers assessed for in-situ promotion to the next higher grade. Rule 9 clearly indicates that where any officer is promoted under these rules the grade of the officer immediately held by him shall stand upgraded to the next higher level to which he was promoted. Thus, the above rules clearly reflect the rationale of the judgment of the Hon'ble Supreme Court in the case of Dr. Ms. Hussain (supra) and are intended to redress promptly the grievance of the petitioner which occurred due to stagnation to the deserving candidates. The very fact that Rule 7 (a) and (b) of the Rules require that DAB for in-situ promotion is required to meet twice a year is sufficiently indicative of the fact that these upgradation had to be done at least twice a year. In spite of the fact that the above Rules indicated a timely appraisal and a consequent benefit subsequent to such appraisal, the benefit was transmitted to the petitioner only in the year 2003. The CAT while considering the above question has detailed the following observations on the issue of promotion: "20. Lastly, we may also refer with advantage to a decision of the Supreme Court in the case of Indian Council for Agricultural Research v. Satish Kumar and Anr., 1998(4) SCC 219. The Supreme Court held: "15. .... .... .... Moreover, no question of promotion as such involved. Any Scientist of S-I grade having 12 years' service could go to the next higher grade irrespective of the fact that there is nay vacancy in the higher grade or not. Of course, he cannot pick up the higher grade merely on completion of 12 years' service and his work has to be assessed. It is also not the case of the respondent that any Scientist had been treated differently than him after 1.1.1986................" From the aforesaid, it is clear that in normal circumstances, promotion means advancement to the next post in the hierarchy, which would only mean promotion when it is higher pay scale or a higher post. It is a different matter that the Scheme by itself prescribes that it is not a promotion and a financial upgradation only. In the present case before us, we have already referred to the Scheme that has been framed. It shows clearly that it is a promotion to a higher scale even if it be taken that no specific post has been created.";


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