Central Administrative Tribunal - Delhi
A B Dhargave vs All India Institute Of Medical Sciences on 29 August, 2023
1
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 4235/2015
New Delhi, this the 29th day of August, 2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Anand Mathur, Member (A)
Sh. A.B. Dhargave, aged about 48 years,
S/o B.D. Dhargave,
Working as Chief Physiotherapist at AIIMS,
New Delhi and
R/o R-14, Second Floor,
Uppal South End, Sohna Road,
Gurgaon (Haryana).
...Applicant
(By Advocate: Mr. Kripa Shankar Prasad with
Ms. Alisha K. Shail and
Ms. Ritu Rajkumari)
Versus
1. Union of India through
The President,
AIIMS, Ansari Nagar,
New Delhi - 110 029.
2. The Director,
AIIMS, Ansari Nagar,
New Delhi - 110 029.
3. The Deputy Director,
AIIMS, Ansari Nagar,
New Delhi - 110 029.
4. The Chief Administrative Officer,
AIIMS, Ansari Nagar,
New Delhi - 110 029.
5. The Senior Administrative Officer,
AIIMS, Ansari Nagar,
New Delhi - 110 029. ...Official Respondents
2
6. Sh. V.P. Gupta,
Supdt. Physiotherapist/
Occupational Therapist,
AIIMS, Ansari Nagar,
New Delhi- 110 029. ...Pvt. Respondent
7. Mrs. Kanan Rohatgri,
Ex-Superintendent,
Physiotherapist,
2288, Gali Anar, Dharampura,
New Delhi- 110 006.
...Pvt. Proforma Respondent
(By Advocate: Mr.Kaushal Gautam with
Ms. Vanshika Singla)
ORDER (ORAL)
By Hon'ble Mr. Anand Mathur, Member (A):
The applicant is aggrieved of the order dated 13.07.2015 (Annexure A-1) by virtue of which the respondents have changed his date of promotion to the post of Chief Physiotherapist from 23.06.2011 to 01.06.2013 arbitrarily without affording him an opportunity of hearing. Hence, he has filed the instant OA seeking the following relief:-
(i) This Hon'ble Tribunal may graciously be pleased to quash/set aside the order dated 13.07.2015 passed by the respondents; and
(ii) This Hon'ble Tribunal may graciously be pleased to quash/set aside the review DPC held on 30.10.2014.
Interim Relief The Hon'ble Tribunal may graciously be pleased to stay the operation of the impugned order dated 13.07.2015 till the pendency of the present application." 3
2. Brief facts of the case, as enumerated in the OA, are that the applicant was appointed as Physiotherapist at All India Institute of Medical Sciences (AIIMS), New Delhi on 28.01.1992 and was subsequently promoted to the post of Senior Physiotherapist in the year 1996. He further got promoted as Superintendent Physiotherapist in the year 2002. 2.1 Consequent upon recommendation of the DPC held on 23.06.2011 and on its acceptance by the competent authority, the respondents, vide order dated 20.08.2011 promoted the applicant to the post of Chief Physiotherapist/Occupational Physiotherapist in the pay scale of Rs.7600 + other usual allowances w.e.f. 23.06.2011 and since then he has been holding the said post.
2.2 The applicant was surprised when he came to know that the respondents in partial modification of Office Order dated 20.08.2011 issued another Office Order dated 23.01.2015 promoting him to the post of Chief Physiotherapist in the Pay Band-3 of Rs.15600-39100+ Grade Pay Rs.7600 w.e.f. 01.06.2013 instead of 23.06.2011. Aggrieved, the applicant submitted a representation to Director, AIIMS with a request to withdraw the said order 4 dated 23.01.2015 being arbitrary, illegal and without any justifiable reason but the same was not responded to.
2.3 The applicant filed OA No.1720/2015 before this Tribunal, which was disposed of directing the respondents to decide his pending representation by passing a reasoned and speaking order. In compliance of the aforesaid order of the Tribunal, the respondents issued the impugned order treating his promotion as Chief Physiotherapist/ Occupational Therapist w.e.f. 01.06.2013 instead of 23.06.2011. The applicant contends that the said order being arbitrary, illegal and without any justifiable reasons, deserves to be set aside.
3. Per contra, respondent nos. 1 to 5 have filed a counter affidavit opposing the claim of the applicant stated as under:-
3.1 A DPC for promotion to the sole vacant post of Chief Physiotherapist/Occupational Therapist in Pay Band-3 of Rs.15600-39100 + GP Rs.7600/- was held on 23.06.2011. Benchmark for the said post was "Very Good" as per DoP&T guidelines. The DPC did not find Ms. Kanan Rohtagi (respondent no.7 5 herein) and Mr. V.P. Gupta (respondent no.6 herein), who were at serial nos. 1 & 2 respectively in the seniority list, eligible for promotion to the said post as they did not fulfil the required benchmark.
Hence, the review DPC recommended the applicant's name, which was at serial no.3 in the seniority list, for promotion to the said post, which was approved by the competent authority. Accordingly, vide order dated 20.08.2011, the applicant was promoted to the post of Chief Physiotherapist/Occupational Therapist w.e.f. 23.06.2011, i.e., from the date of holding of the DPC.
3.2 Respondent nos. 6 & 7 herein represented for upgradation of their ACRs for promotion. Their representations were duly considered by the competent authority and the ACRs were upgraded from 'Good' to 'Very Good' and 'Good' to 'Outstanding' respectively.
3.3 Keeping in view the upgradation of relevant ACRs of respondent nos. 6 & 7, the competent authority decided to review the proceedings of the DPC held on 23.06.2011. The review DPC, considering the upgraded ACRs of respondent nos.6 & 7, 6 recommended respondent no.7 for promotion to the post of Chief Physiotherapist/Occupational Therapist on notional basis w.e.f. 23.06.2011, respondent no.6 w.e.f. 09.07.2012, i.e., from the date of creation of post and actual benefits from the date of assumption of charge of the post, and the applicant was recommended to be promoted to the said post w.e.f. 01.06.2013 instead of 23.06.2011. Accordingly, in partial modification of Office Order dated 20.08.2011, the respondents, vide Office Order dated 23.01.2015, promoted the applicant to the post of Chief Physiotherapist/Occupational Therapist w.e.f. 01.06.2013 instead of 23.06.2011 from which date he was earlier promoted. 3.4 The aforesaid action of the respondents cannot be questioned as they have taken the decision as per rules and law.
4. Respondent no. 6 has also filed a counter affidavit stating that he has been senior to the applicant throughout his service. To the contention of the applicant that in view of DoP&T OM dated 13.04.1998 the proceedings of the DPC can be reviewed only if the DPC had not taken all the material facts into consideration or material facts 7 have not been brought to its notice or there has been grave error, respondent no.6 contended that much water has flown under the bridge since 1998, particularly after the decision of Hon'ble Apex Court in Dev Dutt's case. Further, the said OM itself clarifies that review DPC is required to be held where adverse remarks/below benchmark gradings are expunged/upgraded after the DPC had considered the case of such officers. Therefore, it is amply clear that the review DPC was rightly and lawfully held by the official respondents and no cogent reason/ground exists to set aside the recommendations of the review DPC.
5. The applicant has filed a rejoinder to the reply affidavit filed on behalf of respondent nos. 1 to 5 reiterating the averments made in the OA without adding more to that.
6. Heard Mr. Kripa Shankar Prasad assisted by Ms. Alisha K. Shail and Ms. Ritu Rajkumari, learned counsel for the applicant; Mr.Kaushal Gautam with Ms. Vanshika Singla, learned counsel for the respondents and perused the pleadings available on record.
8
7. As mentioned in the impugned order dated 13.07.2015, a DPC for promotion to the post of Chief Physiotherapist/Occupational Therapist in the Pay Band-3 of Rs.15600-39100 + GP of Rs.7600/- was held on 23.06.2011 for one vacant post. Benchmark for the post of Chief Physiotherapist/ Occupational Therapist was 'Very Good' as per DOP&T's guidelines. The DPC did not find the private respondents, namely, Ms. Kanan Rohtagi (Sl.No.1) and Sh. V.P. Gupta (Sr. no.2) suitable for promotion to the post of Chief Physiotherapist/ Occupational Therapist as they did not meet the required benchmark of 'Very Good'. Therefore, the DPC recommended the name of the applicant, who was at serial no.3 in the seniority list, for promotion to the said post. The recommendations of the DPC were approved by the President, AIIMS and vide order dated 23.08.2011 and the applicant was promoted to the post of Chief Physiotherapist/Occupational Therapist w.e.f. 23.06.2011 from the date of holding of the DPC. 7.1 In the impugned order, it has been stated that after promotion of the applicant, the private respondents represented for their promotion to the post of Chief 9 Physiotherapist/Occupational Therapist. Their representations were considered by the competent authority and their ACRs were upgraded from 'Good' to 'Very Good' and 'Good' to 'Outstanding' respectively.
7.2 Thereafter, a review DPC was held and the private respondents were given the benefit of promotion to the post of Chief Physiotherapist/Occupational Therapist thereby taking away the benefit of promotion already granted to the applicant w.e.f. 23.06.2011. The applicant's promotion was postponed to 01.06.2013 without affording him an opportunity to represent. This action of the respondents has been challenged by the applicant in the instant OA.
7.3 A bare perusal of the aforementioned facts shows that the sole ground for not recommending the names of the private respondents for promotion was that their ACRs did not meet the prescribed benchmark. In order to make them eligible for promotion, their ACRs were upgraded by the respondents and the promotion already granted to the applicant, in supersession of these two employees, was taken away and postponed to a 10 much later date i.e. 01.06.2013. The respondents did this through a review DPC which was held on 30.10.2014, i.e., more than three years after the original DPC, held on 23.06.2011.
7.4 Learned counsel for the respondents has referred to DOP&T's OM dated 13.04.1998, para nos. 1(f) and 3 whereof read as under:-
"(f) Where adverse remarks in the CRs were toned down or expunged after the DPC had consider the case of the officer.
3. In this connection, it is clarified that the situations enumerated in the aforesaid paras (6.4.2 and 18.1) are only illustrative and not exhaustive. As already mentioned in para 18.1 of the said Office Memorandum, the primary objective of holding a review DPC is to rectify any mistake that took place at the time of holding of the original DPC. Over-reporting of vacancies is also one of the mistakes which needs to be rectified by holding a review DPC. Therefore, the provision made in para 18.1 was/is required to be read to cover this situation also. However, it is directed that in the case of over-reporting of vacancies, a review DPC may be held only if the change in the number of vacancies would result in exclusion of any person(s) empaneled by the original DPC on account of over-reporting of vacancies which led to inflated zone of consideration. As such, no review DPC need be convened where it may prove to be an infructuous exercise."
7.5 He further states that since the ACR gradings of the private respondents were below the prescribed benchmark, the same were required to be communicated to them. Upon upgradation of ACRs 11 of the private respondents, a review DPC was constituted to rectify the said mistake. 7.6 We find that the contention of the learned counsel for the respondents is not tenable in view of the fact that there was no mistake committed by the original DPC held on 23.06.2011 inasmuch as they had gone by the ACRs/APARs available on record. Moreover, as per OM dated 05.12.2011, the respondent-AIIIMS had clearly stated as under:-
"Subject: Regarding the promotion to the post of Chief Physiotherapist.
With reference to your representation dated 01-11-2011, it is to inform that there was no such provision to communicate grading given below bench mark earlier as the office memo no.F.21011/I/2005-Estt.(A)(pt.II) dated 14.05.2009 and 13th April 2010 of Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training dated 14-05-2009 and 13th April, 2010 have not been received in the Institute."
This reveals that it was not incumbent upon the respondents to communicate the Below Benchmark ACRs/APARs. Therefore, there was no reason for holding the review DPC as no error had been committed by the DPC.
7.7 Moreover, as the language of DOP&T's OM dated 13.04.1998 itself indicates, a review DPC can be held only where adverse remarks in the ACRs are 12 either toned down or expunged. In this particular case, there were no such adverse remarks in the ACRs of the private respondents. Therefore, it was incorrect on the part of the respondents to hold a review DPC meeting. Further, DPCs are required to give their recommendations only for a specified period and for the specified posts referred to them. A review DPC cannot exceed its brief by giving recommendations of placing the applicant's name for the year 2013, taking away the benefit already granted to him from 23.06.2011. Therefore, the recommendations of the review DPCs are in violation of the prescribed rules and procedures. 7.8 As far as the issue of principles of natural justice is concerned, we find that the benefit of promotion already extended to the applicant w.e.f. 23.06.2011 has been taken away without even affording him an opportunity of representing/hearing. This is a clear case of violation of principles of natural justice.
8. In the conspectus of the facts brought out above, we find that action of the respondents in issuing the impugned order dated 13.07.2015 is violative of principles of natural justice and is also not in conformity with the prescribed rules and procedure. 13 We accordingly quash and set aside the impugned order dated 13.07.2015 and the Review DPC held on 30.10.2014. The respondents are hereby directed to restore the promotion of the applicant w.e.f. 23.06.2011. All the benefits taken away from him shall be restored. If any further consequential benefits accrue to the applicant on this account, the same shall also be extended to him on a notional basis.
9. The instant OA stands disposed of in the aforesaid terms.
10. No order as to costs.
(Anand Mathur) (Justice Ranjit More) Member (A) Chairman /na/