IN THE CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH: NEW DELHI

OA No. 2395/2010

IN THE MATTER OF 1. Dr, Manisha Malhotra

W/o Dr. Sudhansh, Malhotra R/o R-164, Greater Kailash-I, New Delhi-48

2. Dr. Jyoti PuriW/o Dr. K.B. PuriR/o B-1/5 Pashwa Prasad Apart, Gole Market, New Delhi-1

3. Dr. Madhu GuptaW/o Dr. R.P. Mittal R/o Plot 5, Sita II West Patel

Nagar, New Delhi

4. Dr. K.P. SethyS/o Late Sh. Sahadev SethyR/o D 16 E H.I.G. Flats, MayapuriNew Delhi-64

5. Dr. Niru KumarW/o Dr. G. Prem KumarR/o 13 A/4 WEA Karol BaghNew Delhi

6. Dr. Bharat SinghS/o Sh. Karam SinghR/o B 3 B/59 A Janak Puri, New Delhi -50

7. Dr. R.K. PuniaS/o Late Sh. M.L. PuniaR/o B-203 Anmol Appts. Plot 3 A Sector 2, Dwarka

New Delhi

8. Dr. Pushpa LataW/o Dr. R.K. PuniaR/o B-203 Anmol Appts. Plot 3 A Sector 2, DwarkaNew Delhi

9. Dr. Subir RoyS/o Late Sh. B. RoyR/o G-1357, Chittaranjan ParkNew Delhi

10. Dr. G.D. PaliyaS/o Sh. Chhotu RamR/o S-50 Hudio Place

AndrewsganjNew Delhi -49

11. Dr. Rajendra PrasadS/o Sh. Ishwar SinghR/o D-II/340, Pandara Road, New Delhi.

12. Dr. Rajbala KaushalW/o Dr. J.C. PasseyR/o D-II/169- West Kidwai Nagar, New Delhi-23

13. Dr. Chinmoya Kumar MohantyS/o Late Sh. Y.B. Mohanty R/o B-3/6 M.S. Flats Peshwa

Road Gole Market, New Delhi-1

14. Dr. Chandra Prakash GuptaS/o Sh. I.P. GuptaR/o 3-C, Suryan Appt. Sec. 13,

RohiniNew Delhi-85

15. Dr. Swapna TalukdarW/o Sh. Asim TalukdarR/o K-46 (F.F) Kalish Colony, New Delhi-48

16. Dr. Shailesh Kumar SinghS/o Sh. Lakshmi Naryana SinghR/o G-2, 34/1, Desu Road, Mehrauli, New Delhi-30

17. Dr. Janak PalS/o Sh. Har GulalR/o 24-L Sect-IV, Gole MarketNew Delhi

18. Dr. Meera ChakrabartyW/o Dr. A.K. ChakrabartyR/o A-8 MS Flats Tilak LaneNew Delhi

19. Dr. Sushil N.G. LugunS/o Juel LugunR/o 29 G/1, 201 Kaushik Appt.Mehrauli, New Delhi-30

20. Dr. Shashi SatijaW/o Dr. Hansraj SatijaR/o A5/7 Pashim ViharNew Delhi …Applicants

Versus

1. Union of IndiaThrough Secretary Ministry Health & Family

WelfareNirman BhawanNew Delhi

2. Ministry of Personnel, Public Grievances and Pensions

Through Secretary Department of Personnel

and TrainingNorth Block, New Delhi-110 001.

3. UPSC Through its ChairmanDholpur House, New Delhi - 110-069

…Respondents

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ORIGINAL APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT, 1985

RESPECTFULLY SHOWETH:

DETAILS OF THE APPLICATION:

1. PARTICULARS OF THE ORDER(S) AGAINST WHICH THE PRESENT APPLICATION IS FILED:

The present application is made against the illegal decision of the respondents in ignoring the applicants for considering and grant of benefits of DACP scheme introduced by the GOI vide order No. 21/14/97-PC(H)/CHS-V dated 5.4.2002 and extended upto SAG level vide OM No. A 45012/2/2008-CHS. V dated 29.10.2008 Ministry of Health & Family Welfare (in terms of VI CPC) and at the same time considering and granting the benefits to the juniors. DACP envisages grant and placement of NFSG scale Doctors to the next higher level i.e. Senior Administrative Grade and the advancement to SAG is without linkage to the availability of vacancies at the higher level. Vide impugned order No. 28021/1/2010-CHS V dated 8.7.2010 issued by the Ministry of Health & Family Welfare, (CHS-V section) (Annexure A/1 ) as published on Ministry’s website , the respondents intend to send the ‘below benchmark’ ACRs of the 392 NFSG doctors of CHS including the applicants to them calling for representations. This is being done in purported requirements of instructions issued by DOP&T vide OM No. 21011/1/2010- Estt.-A dated 13.4.2010 (Annexure A/ 2 ) which in the matter of promotion prescribes that below benchmark ACRs recorded prior to 2008-2009 be communicated to the official concerned if the employee is to be considered for promotion in a future DPC and by virtue of OM No. 2011/3/2007-Estt-D, GOI, Ministry of Personnel, Public Grievance & Pensions (DOP&T) dated 18.2.2008 (Annexure A/3 ), which prescribes that the prescribed benchmark of ‘Very Good’ should be met in all ACRs of five years under consideration. The aforesaid OM dated 13.4.2010 is impugned to a limited extent as it prescribes communication of all ACR (adverse/below benchmark) after passage of any number of years.

It is submitted that since the primary instruction contained in OM dated 18.2.2008 requiring for 5 Very Good ACRs in all five years is not applicable to DACP scheme and also that the same is applicable in situation of selectively only (which is not the case in hand as grant of higher grade is not linked with the availability of vacancies, as per DACP Scheme), the action of the department in applying OM dated 13.4.2010 (requiring communication of below benchmark ACR) and consequent order dated 8.7.2010 purporting communication of below benchmark ACR is illegal and unjustified moreso, when juniors are being considered in preference of Seniors.

In any case, it is submitted that communication of ACRs falling beyond the preceeding three years of the year when DPC is held is not permissible as per GOI instructions OM No. 22011/3/08-Estt. (D) dated 11.5.1990 (Annexure A/4 ). The said instruction are still subsisting.

In the context, it is relevant to point out that the last year under consideration is of 2006-2007 while the DPC has met on 15.5.2010 (i.e. year 2010-2011). The respondents in their OM dated 4.7.2010 have specifically mentioned about communication of ACRs of year 2006-2007 and also of years prior to 2006-2007. On this aspect the applicants rely upon a decision of this Hon’ble Tribunal in OA 586/2009 decided on 21.8.2009 where communication of

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adverse/below benchmark ACR after three year was held to be not permissible. Furthermore, the respondents are acting in a mechanical manner to deprive the DACP benefits to the applicants as they have not even cared to see that invariably in all the cases, either the reporting officer or the reviewing authority has already retired thereby making the whole exercise aimed to grant opportunity to concerned official to seek upgradation as a futile exercise. On this aspect, the applicants rely upon judgements passed by the Hon’ble Supreme Court in Dastikar’s case and of this Hon’ble Tribunal in OA 1644/2009 (V.P.S. Punia vs. UOI & Ors.); OA 847/2008 (R.N. Kurmi vs. The Secretary, & Ors. OA 1178/2009 (O.P. Meena Vs. UOI & Ors.). Even further, the glaring illegality crept in the recording of the ACRs in question is that the ACRs have been recorded/reviewed by such doctors who are/were regularised doctors while the applicants are regularly appointed doctors. Moreover, the ACRs have been recorded by the officials of same level as of applicants while ACRs were/are required to be recorded by officials seniors to the officer under report.

Now, on the basis of illegal and invalid ACRs recorded prior to three years and more from the date of DPC (i.e. 15/5/2010), the Govt. has denied the SAG scale to the applicants while juniors have been considered and in their cases, even such officers have been considered whose ACRs were either not written or unavailable.

Furthermore, this entire illegal exercise has been undertaken in the case of GDMO cadre only and not for other cadres of the CHS where no benchmark has been applied and consequently no ‘below benchmark’ ACR has been communicated by the Ministry of Health & Family Welfare, thus causing discrimination.

Moreover requirement of all Very Good ACRs for preceding 5 years cannot be applied when ACRs were recorded anterior to the instructions and determination of the benchmark.

Furthermore, as admitted by DOP&T no benchmark has been prescribed by it in relation to DACP Scheme.

2. JURISDICTION OF TRIBUNAL

That the applicants declare that the subject matter of the case is within the jurisdiction of this Hon’ble Tribunal.

3. LIMITATION That the applicants further declare that the case of the applicant is within limitation period as prescribed under the Administrative Tribunal Act, 1985.

4. Facts of the case:4.1 That the applicants are citizen of India and are entitled to all Fundamental Rights

as enshrined in the Constitution of India.

4.2 That the applicants are qualified doctors appointed on regular basis in the General Duty Medical officer sub-cadre of the Central Health Service (CHS, in short) which is a Group A service consisting of four Sub-Cadres viz. Teaching

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Specialist Sub-Cadre, Non Teaching Sub-Cadre, Public Health Sub-Cadre and General Duty Medical Officer Sub-Cadre.

4.3 That the applicants were initially appointed in the above said service in the year 1980 to 1986 through UPSC and were promoted as Chief Medical officer (CMO) in the years 1991 to 1996. Later the applicants were granted Non-functional selection Grade (NFSG) in the year 2000 to 2004. A chart giving the service particulars of the applicants is annexed herewith as (Annexure A/5) to the OA which may kindly be referred to herein.

4.4 That vide order No. 21/14/97-PC(H)/CHS-V dated 5.4.2002 (Annexure A/6 ) the GOI introduced Dynamic Assured Career Progress Scheme (DACP, in short) which was further extended upto Senior Administrative Grade level vide OM No. 45012/2/2008 dated 29.10.2008 (Annexure A/7).

4.5 That vide GOI, Ministry of Health & Family Welfare OM bearing F. No A. 45012/2/2008-CHS V (CSH Division) dated 29.10.2008, a CMO (NFSG) official of the GDMO sub cadre in the Grade Pay Rs. 8700 in Pay Band-4 is entitled for placement in SAG Grade (Grade Pay Rs. 10,000 in PB-4) for which 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 is required. Copy of OM dated 29.10.2008 is annexed herewith as (Annexure A/8). Later, the methodology of computation of requisite length of service for grant of SAG pay structure has been prescribed and illustrated vide OM of even number dated 21.7.2009 (Annexure A/9). It was thus prescribed that the requisite seven years of regular service is not required in the CMO (NFSG) scale and a doctor who has rendered 20 years of regular service and already promoted as CMO /NFSG (grade pay of Rs. 8700 in the Pay Band-4) on the date of initial implementation of the DACP scheme shall be entitled for SAG pay structure without rendering full 7 years of service in the NFSG grade.

4.6 That all the applicants are eligible for grant of SAG pay structure in terms of above mentioned related OMs. A copy of seniority list/Civil list as on 1.3.2010 is annexed herewith as Annexure A/10.

4.7 That a Departmental Promotion Committee Meeting has been convened on 15.5.2010 by the respondents for grant of SAG pay structure under DACP scheme to over 1000 CMO/NFSG doctors of GDMO Sub-cadre of the CHS.

4.8 That though juniors of the applicants have been considered in the said DPC, however for 392 eligible doctors including the applicants, the Govt. has taken the impugned decision to communication these old and invalid ACRs. The cases of such doctors have also, perhaps, not been put before DPC.

4.9 That in the case of these left out 392 doctors including the applicants, the Ministry has published an OM NO. 28021/1/2010-CHS V (CHS-V section) July 2010 which reveals that the ACR dossiers of eligible CMO (NFSG) of GDMO sub-cadre of CHS were sent to UPSC in connection with their promotion to SAG level. However, 392 officers including the applicants fall in a category of officers having ‘below benchmark’ ACRs and thus as per GOI (DOPT) OM No. 2011/1/2010-Estt. A dated 13.4.2010, an opportunity shall be afforded to these 392 doctors (including the

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applicants ) to represent against such below Benchmark ACR of a particular year (as mentioned in annexures to said OM) which shall be sent to them in due course for purposes of granting an opportunity to seek upgradation thereof. Relevant extract of annexure to OM dated 8.7.2010 in respect of applicants is annexed herewith as Annexure A/11 for a ready reference.

4.10 That at this stage, it shall not be out of place to mention here that in the case of DACP Scheme, no benchmark has been prescribed by the DOP&T. This is admitted by DOP&T in reply to a query under RTI Act, 2005. Copy of the reply under RTI is at Annexure A/12. Furthermore, the Ministry of Health & Family Welfare has also not prescribed any Benchmark for promotion under DACP scheme and rightly so because placement in higher grade (SAG) to the doctors in DACP is not linked to the availability to vacancies. This is further augmented from the fact, that in one of the other sub-cadres namely specialist Sub-cadre all the CMO/NFSG doctors have been placed in the SAG grade after holding a DPC in the year 2010.

4.11 That it appears that the Ministry of Health & Family Welfare, for the purposes of ‘benchmark’, has taken into consideration an OM of GOI (DOP&T) issued vide No. 2011/3/2007-Estt.(D) dated 18.2.2008 which lays down a requirement of all ‘Very Good’ ACRs of five years under consideration. However, if that is so, even the said OM shall have no application towards the applicants for DACP purposes, as the said prescription is in order to ensure greater selectively which means and implies selection of few amongst many which selection has to be restricted to the corresponding number of available posts. Therefore, said OM does not apply to the facts and circumstances of the present case more particularly since DACP scheme is not linked to availability of vacancies.

4.12 That as there is no requirement of Benchmark, in DACP scheme, the OM dated 13.4.2010 has no application.

4.13 That, without prejudice to the above, it is submitted that the OM dated 13.4.2010 is illegal to the extent it prescribes communication of ‘below benchmark ACR’ recorded prior to determination of Benchmark as it is bound to create uncertainty in service career of the employees of the Govt. A ‘Very Good’ ACR of the current year may meet the requirements of benchmark today but if there is a change in benchmark in near future, the same grade will have an adverse effect and therefore such an ACR which does not call for any upgradation now, may require the related exercise in future, may be after three years. This shall not only lead to uncertainty and chaos but also defeat the very objective of writing and communicating ACRs in order to improve the work efficiency of the concerned official.

4.14 That it is further submitted that GOI DOPT instructions, vide OM No. 22011/3/08—Estt (D) dated 11.5.1990 envisage that when a DPC finds an uncommunicated adverse remark of a sufficient gravity to influence its assessment of the officer concerned, the consideration will be deferred and the uncommunicated adverse remark/ACR shall be communicated to the officer concerned for purposes of allowing him an opportunity to represent against it provided the ACR pertainS to three immediate

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preceeding years prior to the year in which DPC is held. In cases, where Adverse ACR is of the period beyond three preceding years, it has to be ignored.

4.15 That it is therefore relevant to point out here that vide impugned order of July 2010, the respondents have violated the aforesaid existing instruction in as much as the DPC has met in the year 2010 i.e. year 2010-2011 but the ACRs falling beyond the three immediately preceeding years are sought to be communicated to the prejudice of the applicants. Even the OM dated 13.4.2010 is illegal to the extent it prescribes communication of below benchmark ACR for any of the five years relevant period as it circumvents the subsisting OM of 1990. Besides, this is in complete violation of judgement of Hon’ble Supreme Court in AIR 1987 SC 1201 where communication of adverse ACR after 27 months was held band in law.

4.16 That it is further significant to mention here that the reporting officer of the applicants have been the regularised doctors and/or of the same level of the applicants and in many cases, the concerned officer (reporting or reviewing or both) has retired by now, and because of their retirement, such ACRs cannot be communicated for purposes of representation as held by the judical forum in many cases. The applicants are mentioning these events hereinbelow as follows:

Sl. No.

Name of Officer

Period Reporting Officer and rank

Rep.O-Retd(R)/inservice(IS)

Reviewing Officer and rank

Rev.O-Retd(R)/inservice(IS)

1 Dr. Manisha Malhotra

2003-04 Dr. Adarsh Kumar AD SZ CGHS,

Retired

Dr.Sudhir Chandra Director CGHS

Retired

2. Dr. Jyoti Puri 2006-07 Dr.Anjali Prakash-CMONFSG(Regularised)

Retired Dr.S. Bhattacharya

“

IS

3 Dr. Madhu Gupta

2003-04 AD CZ CGHS Retired Dr. Sudhir Chandra Director CGHS

Retired

4 2006-07 Dr. JK Naik CMONFSG(Regularised)

Retired Dr.S. Bhattacharya

“

IS

5 Dr. Neeru Kumar

2006-07 No Reporting Officer Certificate by Dr.S.

Bhattacharya“

IS

6 Dr Bharat Singh

2002-03 Dr. Kohli, AD NZ CGHS Retired Dr.L.Nongpiur, Director CGHS

Retired

7 Dr.RK Punia 2002-03 Dr. S MajumdarCMO NFSG, Regularised

Retired Dr. Rekha Aggarwal, AD SZ CGHS

Retired

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2005-06 Dr.Asha Bansal, AD SZ CGHS

Retired Dr. PK Phukan, Director CGHS

Retired

8 Dr. Pushplata 2002-03 Dr. Rekha Aggarwal, AD SZ CGHS

Retired Dr.L.Nongpiur, Director CGHS

Retired

2004-05 Dr. Adarsh Kumar, AD SZ CGHS

Retired Dr.Sudhir Chandra Director CGHS

Retired

9 Dr. S.Roy 2002-03 Dr. KK Kalra(SAG) Retired Dr.L.NongpiurDirector CGHS

Retired

10 Dr. GD Palia 2003-04 Dr. CP Gupta,CMONFSG Regular

IS NK

11 Dr. Rajendra Prasad

2006-07 Dr. KK Goswami CMONFSG(Regularised)

IS Dr.S. Bhattacharya

“

IS

12 Dr. Rajbala Kaushal

2006-07 Dr. VM Aggarwal CMONFSG(Regularised)

IS Dr.S. Bhattacharya

“

IS

13 Dr.CK Mohanty

2003-04 AD CZ CGHS Retired Dr. Sudhir Chandra Director CGHS

Retired

14Dr CP Gupta 2002-03 Dr.R. Barua

CMONFSG(Regularised)Retired

Dr. K.K Kalra(SAG)*ADCZ CGHS

Retired

15 Dr. Sapna Talukdar

2001-02 Dr. R.R. Kishore, CMO (NFSG) (Regular)

Retired Dr. K.K. Kalra (SAG)ADCZ CGHS

Retired

2004-05 Dr. V.M. Aggrawal CMONFSG(Regularised)

IS Not Known

16 SK Singh 2003-04 Not Known Not Known2006-07 Dr.MR Bhowmick

CMONFSG(Regular)IS Dr.S.

Bhattacharya“

IS

17 JP Singh 2005-06 Dr.Bhupinder Nath CMONFSG(Regular)

Retired Dr. M.BalaniAD CZ,CGHS

Retired

2006-07 Dr.Bhupinder Nath CMONFSG(Regular)

Retired Dr.S. Bhattacharya

“

IS

18 Dr. Meera Chakravorty

2002-03 Dr.R. Barua CMONFSG(Regularised)

Retired -

2003-04 Dr.R. Barua “

Retired -

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2005-06 Dr.R.Barua “

Retired -

2006-07 Dr. JK Naik CMONFSG(Regularised)

Retired Dr.S. Bhattacharya

“

IS

19. Dr. Shashi Satija

2002-03 Not known Not known Not known Not known

20. Dr. Susheel N.G. Lugun

2003-04, 2004-05 & 2005-06

Not Known Not known Not known Not known

4.17 That even in cases where no ACR is available, the DPC has considered the cases of others/juniors on the basis of ‘Certificates’ to the effect that there is nothing adverse against the said official. Even such officers are being granted benefits of DACP scheme. Copy of ACR monitoring as downloaded from the CHS website is annexed herewith as Annexure A/13. This further goes to show that there is no prescribed benchmark.

4.18 That in these facts and circumstances, when the Govt. has deprived consideration and grant of SAG under the DACP scheme to the applicants and have held a DPC meeting for juniors and orders granting benefits to the juniors are apprehended to be issued shortly, the applicants are left with no others legal efficacious remedy except to approach this Hon’ble Tribunal in following grounds interalia:

5 GROUNDS OF RELIEF WITH LEGAL PROVISIONS

A. Because the impugned order/action is illegal, arbitrary, unjustified and violative of principles of natural justice.

B. Because in the matters of promotions and DACP scheme juniors cannot be considered for promotion in preference of or in ignorance of the seniors.

C. Because the seniors have a pre-emptive right for promotion and consideration thereof. Similarly, for the purposes of DACP scheme, seniors are required to be considered prior to the juniors.

D. Because grant of higher scale/grade to the juniors without there being any consideration of seniors is illegal.

E. Because placement of juniors in higher grade prior to the seniors cannot be countenanced in law. This does not only lead to discouragement and frustration amongst the left out seniors but also leads to insubordination and bad administration.

F. Because the very purpose and objective of formulation of DACP scheme is negated if such beneficial scheme are implemented in a wrong and arbitrary manner like the present one.

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G. Because the benefit of advancement or consideration thereto in respect of officials should not be delayed on flimsy grounds, more particularly when juniors are considered.

H. Because, the decision to communication the alleged ‘below benchmark/adverse ACR’ at this juncture after passage of number of years is of no purpose except to prejudice the applicants.

I. Because the Hon’ble Supreme Court in State of Haryana Vs. P.C. Wadhwa (AIR 1987 SC 1201) has held to the effect that the action of communication of adverse ACR after 27 months as bad in law.

J. Because the DPC has been held on 15/5/2010. By this time, DOP&T OM dated 13 th

April 2010 regarding communication of below benchmark ACRs had already come into being. Therefore, is an event the said OMs were applicable to the applicants it was incumbent upon the Ministry of have communicated such ACRs to its officials including the applicants prior to holding of a DPC. It appears that the ACRs dossiers of the applicants have not been placed before DPC at all so as to delay the cases of applicants by involving them into a process of seeking upgradation and meanwhile grant benefits to others including the juniors. Thus, even the DPC has been held in an arbitrary manner. Convening a DPC in piecemeals or creating a division amongst the officials is malafide and illegal.

K. Because even as per GOI OM No. 22011/3/08-Estt. (D) dated 11.5.1990 no adverse ACR should be communicated after 3 years and for the matters of promotion, the adverse ACR falling beyond 3 years should not be taken into consideration at all and in these circumstances, the department is not even required to fall back on previous ACRs to complete the numeric figure of 5 years ACR.

L. Because in an event, the decision of communication the alleged below benchmark/adverse ACR is taken after placing the ACR dossiers before the DPC, even then the impugned action is illegal unjustified and arbitrary. Therefore, any action of and in furtherance of the DPC meeting held on 15.5.2010 requires to be stalled and quashed as seniors have been illegally ignored.

M. Because in Devi Dutt’s case the Hon’ble Supreme Court did not lay down the law that in all the matters of promotion, downgraded entries/ACR must be communicated and representation of the official be called for. The principle established by the Hon’ble Supreme Court in the said judgement is that a grading in the ACR below the prescribed benchmark would be considered as an adverse entry. No law has been laid down as to how to deal with it which is merely a procedural aspect which is required to be dealt with according to the instructions and facts and circumstances of each case. Devi Dutt’s case does not even deal with the point as to how such downgraded or below benchmark entries /ACRs are to be dealt. This submission is strengthen by a later decision of the Hon’ble Supreme Court in Dastikar’s case and of this Hon’ble Tribunal in Krishna Mohan Dixit case and various other cases. Copy of order of this Hon’ble Tribunal in OA No. 586/2009 (Krishan Mohan Dixit vs. UOI & Ors. decided on 21.8.2009 is annexed as Annexure A/ 14.

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N. Because the respondents vide impugned OM dated 4.7.2010 have taken a decision to communication such ACRs where even the reporting and/or reviewing authority have retired by now. Therefore, the decision to communicate such alleged below benchmark/adverse ACR is not going to serve any purpose. This Hon’ble Tribunal has invariably held that where such authorities have retired, the contextual ACR has to be ignored. The applicants place reliance on decision of this Hon’ble Tribunal, on this aspect in OA 847/2008 (R.N. Kurmi Vs. The Secretary & Ors.) (Annexure A/15 ) OA 1178/2009 (O.P. Meena Vs. UOI & Ors. ) (Annexure A/16) and OA 1644/2009 (V.P.S. Punia Vs. UOI & Ors.) (Annexure A/17) where has been upheld by the Hon’ble Delhi High Court in CWP 4474/2010 decided on 9.7.2010 (Annexure A/18).

O. Because in cases of benchmark, in order to determine whether the officer concerned meets the benchmark, the DPC is required to make are overall cumulative assessment of the ACR record of a specified number of years of the officer concerned and on the basis of this cumulative assessment an overall grade is awarded. If the overall grade awarded to an officer by the DPC meets the pre-determined standards of promotion i.e. the benchmark, the officer is recommended for promotion.

P. Because the OM No. 22011/3/08-Estt (D) dated 11.51990 is still subsisting.

Q. Because the ACRs in question have been recorded by officer of same level, though the law requires that reporting officer should be of higher level. This recording is illegal and prejudicial. Thus, the ACRs in question have to be ignored. The Hon’ble Supreme Court in State Bank of India Vs. Kashi Nath Kher [(1996) 8 SCC 762] held as follows:

“The object of writing the confidential report is twofold, i.e., to give an opportunity to the officer to remove deficiencies and to inculcate discipline, Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corpn. case (supra) pointed out the pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by a superior officer of high rank. who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer in rank above the officer in rank above the officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form the basis for consideration for promotion. The procedure presently adopted is clearly illegal, unfair and unjust".

R. Because the very object of working and communicating ACRs is defeated in the present case. Besides the ACR have been recorded in an illegal manner. In State of UP vs. Yamuna Shanker Misra [(1997) 4 SCC 7], the Hon’ble Supreme Court has held as follows:

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“It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51A (j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting/officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.”

S. Because though the applicants are the regular appointee in CHS, the reporting/reviewing authorities have been the regularised doctors. This is highly unfair and in appropriate. In this context, it shall not be out of place to mention here that as per judjement of Hon’ble Supreme Court, in P.P.C. Ravani’s case the regularised doctors were to work on supernumerary posts and not on cadre posts of CHS. This direction of this Hon’ble Supreme Court was aimed at to protect the regularly appointed doctors. Copy of judgement in P.P.C. Ravani’s case is annexed herewith as Annexure A/19.

T. Because the impugned order dated 8th July 2010 tends to deny the benefits of DACP scheme to the applicants and at the same time, the juniors shall be

benefited.

U. Because the DPC has considered such candidates and found them fit is whose cases any or more ACR for the relevant period was not available and the department had issued of a certificate to the effect that there is nothing adverse against them.

V. Because the OM dated 18.2.2008 is illegal in as much as it requires that the prescribed benchmark of ‘Very Good’ is met in all ACRs of five years under

consideration. By prescribing that in all 5 years ACRs an official must have 5

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Very Good grades it virtually usurps the function of DPC which is required to make its own assessment on the basis of entries in the CRs and is not to be guided much by the overall grading except in cases where DPC makes an assessment of ‘Unfit’ despite Very Good grades. Therefore, the objectivity and positivity is taken away from the DPC. As an illustration, an officer having one outstanding three ‘very good’ and one Good ACR in the preceding 5 years also stands eliminated. Even an officer with 1 Good ACR for the preceeding 5th year and 4 outstanding Grades in the last 4 years of assessment will also not be

eligible. This is arbitrary, unjustified and unfounded.

W. Because, it is further submitted that the OM dated 18.2.2008 shall have no application in DACP scheme which provides for promotion without linkage to vacancies. According to the DOP&T, the requirement of 5 Very Good ACRs in all the preceding 5 years is prescribed is order to ensure greater selectivity at higher level of administration. In this context it is submitted that greater level of selectively at a particular level of service means and implies that the number of officers under consideration are more than the number of vacancies, thus requiring selectivity. However, since DACP Scheme admittedly is to ensure promotion of doctors in a dynamic and assured manner, without any linkage to vacancies of the higher level, no zone of consideration or shortlisting of eligible officers is required to be done.

X. Because in the matters of promotion under DACP scheme neither the availability of vacancies is a relevant factor nor any competition amongst the eligible officers is conceivable. The denial of promotion on the grounds of not meeting the benchmark or even prescription of a benchmark shall be illegal as the mode of selection does not practically apply. All these factors and principles of selection are applicable where the number of candidates exceed the number of posts. Therefore, in a situation, like the present, where promotion is not linked to number of vacancies, only such official can be assessed ‘Unfit’ and consequentially denied promotion whose ACR is specifically recorded as ‘adverse’ as provided in ACR format for any year during the relevant period of consideration.

Y. Because prescription of requirement of having very Good ACRs for all the preceding 5 years service record is unreasonable and too stringent and is too close to the requirement of excellence and method of merit-cum suitability which leads to supercession of seniors. Therefore, the requirement of ‘Very Good’ ACRs for preceding five years is illegal and unjustified. It tends to defeat the very objective underlying DACP scheme.

Z. Because the OM dated 18.2.2008 fixing the bench mark of having 5 out fo 5 very good ACRs in admittedly not applicable to CHS officers for the purposes of DACP scheme. The DOPT has admitted under RTI that DOP&T has not issued any specific guidelines or specific order regarding selection criteria of five out of five very good ‘ACRs’ for the DACP scheme.

AA. Because the impugned OMs of the respondents are unreasonable, unjustified and illegal having no reasonable nexus with the object sought to be achieved.

BB. Because it is an admitted position by the DOP&T that for the purpose of DACP, no benchmark has been prescribed. This is rightly so, because DACP scheme is not

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linked to availability of vacancies. Therefore the Ministry’s action is based on extraneous factors.

CC. Because if Very Good ACR for 5 years is to be treated as Benchmark, then it shall be all the more illegal in case of applicants as ACRs for years anterior to the determination of Benchmark have become ‘adverse’ now. Such a system/mechanism is bound to bring in uncertainty.

Even a ‘Very Good ‘ ACR for the current year may become adverse after 5 years if the bench mark is changed to ‘outstanding’ after five years. This cannot be countenanced in law.

DD. Because despite the fact that the OMs prescribing Benchmark and communication of ACRs below benchmark are not applicable under DACP scheme, where promotion is not linked to availability of vacancy, the respondents have applied these OMs with an oblique motive to deny the lawful claim of the applicants, in an arbitrary manner.

EE. Because without prejudice to the above, it is submitted that there is no uniform formula or guidelines or instructions which may prescribe as to in what manner a grade is to be given to an officer by his reporting /reviewing authority. One Particular officer under report may be graded as ‘Very Good’ by one reporting officer, however for other reporting officer, the same quality and quantity of work performed may be graded as merely ‘Good’. There are no prescribed standards or mechanism or methodology to rate the attributes and grade the officer as ‘Good’, ‘Very Good’ or Outstanding which in turn is dependent upon the individual traits and personalities of the reporting/review authority and such individual standards of such authorities are bound to be distinct.

FF. Because the applicants have been treated in a different manner. Of all the sub-cadres of CHS, it is only in Sub cadre of the GDMO (to which the applicants belong to ) that a benchmark has been applied.

GG. Because the impugned action of the respondents is otherwise also illegal and arbitrary.

6 DETAILS OF REMEDIES EXHAUSTED

That the applicants declare that they have availed all the remedies available under the law.

7. MATTER NOT PREVIOUSLY FILED OR PENDINGThat the applicants declare that they have not filed any suit/writ/O.A. on the subject matter of the present case in any other Court or Bench of this Hon’ble Tribunal.

8. RELIEF SOUGHT Keeping in view the facts and circumstances of the case, it is respectfully prayed

that this Hon’ble Tribunal may graciously be pleased to:

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(a) quash and set aside the impugned OMs at Annexure A/1 and A/2 and (b) quash and set aside the DPC held on 15.5.2010 for purposes of grant of Senior

Administrative Grade under DACP scheme to doctors of GDMO sub-cadre of CHS and also declare that no benchmark is applicable for DACP scheme and also

(c) direct the respondents to consider the cases of applicants for grant of Senior Administrative Grade under DACP scheme by ignoring the illegal and invalid ACRs, with all consequential benefits

(d) award costs of the proceedings and (e) pass any other order/direction which this Hon’ble Tribunal deem fit and proper

in favour of the applicant and against the respondents in the facts and circumstances of the case.

9. INTERIM RELIEFPending disposal of OA, this Hon’ble Tribunal may graciously be pleased to

restrain the respondents from giving effect to OM dated 8.7.2010 any further and also restrain the respondents from giving effect to the DPC meeting conducted on 15.5.2010, by way of an exparte adinterim order. Any other order wherein.

10 N.A.

11. Particulars of the Postal order:(i) No. of IPO:(ii) Date of issuing:(iii) At which payable: (iv) PO from issuing:

12. List of Enclosures:As per Index.

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Applicant

Verification:I S/o aged about years, r/o

do hereby verify that the contents of above paras No. 1 to 4 are true to the best of my knowledge and paras No. 5 to 12 true on information received and believed to be true and that I have not suppressed any material facts.

Verified at Delhi on this day of 2010.DELHI DATED: Applicant

Through(Ajesh Luthra)

Advocate541, Western Wing,

Tis Hazari Court, Delhi -54

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A

SYNOPSIS & LIST OF DATES AND EVENTS

The applicants who are doctors belonging to GDMO sub-cadre of Central Health Service (CHS, in Short) are aggrieved by the denial of benefits of Dynamic & Assured Career Progression Scheme (DACP) which envisages grant of Senior Administrative Grade to the applicants for which they have attained the requisite length of service.

A DPC met on 15.5.2010 while juniors have been considered and the Govt. in the process of issuing orders in their respect, the applicants have been denied the DACP benefits and a decision has been taken vide OM dated 8.7.2010 to communicate to them the ACRs which were below the benchmark hence adverse. 5 years ACR including and preceding the year 2006-2007 were considered in the DPC. This decision to communication of ACRs falling beyond preceding three years is against the settled legal position as per various verdicts of this Hon’ble Tribunal in OA 586/2009 (decided on 21.8.2009) and also the decision of Hon’ble Supreme Court in AIR 1987 SC 1201 (State of Haryana vs. P.C. Wadhwa) where the communication of adverse ACR after 27 months was held bad.

Further, the impugned action of communication of ACRs (below benchmark/adverse) is not sustainable in law and violative of various judgements of this Hon’ble Tribunal in OA 1178/2009 (O.P. Meena Vs. UOI & Ors.); OA 847/2008 (R.N. Kurmi vs. The Secretary & ors) and also OA 1644/2009 (V.P. Punia vs. UOI & Ors. ) which has been upheld by the Hon’ble High Court of Delhi in CWP 4474/2010 decided on 9.7.2010 as either the reporting officer or reviewing authority or both (in few cases) have retired by now.

Besides the above, these ACRs have been recorded by officers of same level while these were required to be reported by officers of senior level. This too, is in complete disregard and contravention of judjement of Hon’ble Supreme Court in State Bank of India vs. Kashi Nath Kher [(1996) 8 SCC 762]

1981-86 Applicants, appointed in CHS on regular basis

2008 DACP scheme extended upto Senior Administrative Grade

15.5.2010 DPC meeting Juniors are considered.

8.7.2010 OM published by Ministry of Health & Family Welfare conveying decision to communicate alleged to be below benchmark for the year 2006-2007 and prior thereto.

Hence this OA .

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IN THE CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH: NEW DELHI

O.A. No. /2010

IN THE MATTER OF

Dr. Manisha Malhotra & Ors. …Applicants

Versus

Union of India & Ors. …Respondents

I N D E XSl. No. PARTICULARS PAGES

COMPILATION-IA. List of Dates and events A1. Original Application2. Annexure A/1: Copy of order dated 8.7.20103. Annexure A/2: Copy of OM dated 13.4.20104. Annexure A/3: Copy of OM dated 18.2.20085. Annexure A/4: Copy of OM dated 11.5.1990

COMPILATION-II6. Annexure A/5: Copy of chart giving the

service particulars of the applicants 7. Annexure A/6: Copy of order dated 5.4.20028. Annexure A/7: Copy of OM dated 29.10.20089. Annexure A/8: Copy of OM dated 29.10.200810. Annexure A/9: Copy of OM dated 21.7.200911. Annexure A/10: Copy of seniority list/Civil list

as on 1.3.2010 12. Annexure A/11: Copy of OM dated 8.7.201013. Annexure A/12: Copy of reply under RTI Act

2005 14. Annexure A/13: Copy of OM dated 18.2.200815. Annexure A/14: Copy of OM dated 11.5.199016. Annexure A/15: Copy of ACR monitoring as

downloaded from the CSH website 17. Annexure A/16: Copy of order dated

21.8.2009 in OA 586/2009 18. Annexure A/17: Copy of judgement in OA

847/200819. Annexure A/18: Copy of judgement in OA

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1178/200920. Annexure A/19: Copy of judgement in OA

1644/200921. Annexure A/20: Copy of judgement dated

9.7.2010 in CWP 4474/2010 22. Annexure A/21: Copy of jugement in P.P.C.

Ravani

23. Misc. Application for joining together in a single application alongwith affidavits

24. VakalatnamaDELHI

filed by DATED

(Ajesh Luthra)Advocate

541, Western Wing, Tis Hazari Court, Delhi -54

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IN THE CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH: NEW DELHI

O.A. No. /2010

IN THE MATTER OF

Dr. Manisha Malhotra & Ors. …Applicants

Versus

Union of India & Ors. …Respondents

MISC. APPLICATION UNDER RULE. 4(5) (A) RULES 1985 FOR JOINING TOGETHER IN A SINGLE APPLICATION

RESPECTFULLY SHOWETH:

1. That applicants have filed the aforesaid OA before this Hon’ble Tribunal and crave leave to read the contents of same as part and parcel of the present Misc. application as the same are not reproduced here for the stake of brevity and conciseness.

2. That the applicants have a common cause of action and similar facts and same prayer. Thus they pray to be permitted to file a joint Original Application.

It is therefore respectfully prayed that the applicants may be allowed to join in one OA, in the interests of justice.

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ApplicantsDELHI

DATED:Through

(Ajesh Luthra)Advocate

Ch. No. 541, Western Wing,Tis Hazari Courts, Delhi-54.

(a)(b)

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