Central Administrative Tribunal - Delhi
Dr. Indu Kaushik vs Union Of India Through on 28 November, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3981/2012
Reserved on : 19.11.2013.
Pronounced on :28.11.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Dr. Indu kaushik,
Specialist Grade-I (Gynae & Obst.)
ESI Corporation, New Delhi
R/o A-23, Sector-34, Noida. . Applicant
(through Sh. S.C. Saxena, Advocate)
Versus
1. Union of India through
Secretary, Ministry of Labour
Shram Shakti Bhawan,
New Delhi-1.
2. Director General,
ESI Corporation,
Panchdeep Bhawan,
CIG Road,
New Delhi-2. . Respondents
(through Ms. Biji Rajesh for Sh. Gaurang Kant, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this O.A.:-
(i) Call for the records of DPC for proceedings held on 20.2.2009 and 21.7.2011.
(ii) Direct the respondent to conduct a Review DPC to consider the case of applicant for promotion/placement to SAG scale with grade pay of Rs.10,000 in pay band-4 from the date her juniors have been promoted to the above grade.
(iii) Direct the respondents to give all consequential benefits to the applicant from due date.
(iv) Award cost of the applicant.
2. Brief facts of the case are that the applicant joined the respondents as Medical Officer on 24.01.1979. On 20.02.1990 she was promoted as a Specialist through UPSC. After four years, on 20.02.1994 she was promoted as Senior Scale Specialist Grade-II. On 24.06.2006 she was further promoted as Specialist Grade-I (NFSG) in the grade pay of Rs.8700 in pay band-4. According to the applicant a Scheme known as Dynamic Assured Career Progression (DACP) Scheme for promotion of Specialists Grade-I to SAG in the grade pay of Rs.10000 in PB-4 was introduced w.e.f. 29.10.2008. This Scheme provided that a Specialist in Grade-I in the grade pay of Rs.8700 in PB-4 will be eligible for promotion to SAG grade in the grade pay of Rs.10000 in PB-4 after rendering 7 years service as Specialist Grade-I for promotion to SAG grade. By another Government of India letter dated 21.07.2009 this condition of 7 years service was dispensed with. The grievance of the applicant is that two DPCs were held on 18.02.2009 and 21.07.2011 to consider cases of Specialist Grade-I for promotion to SAG grade but in none of them the applicant was considered even though some of her juniors were considered and promoted without insisting on 7 years service. On 08.08.2011 the applicant represented against her alleged supersession.The representation of the applicant was rejected on 30.05.2012/04.07.2012 by the impugned order on the ground that the applicant was not considered as she did not fulfill the minimum required service.On 04.10.2012 the respondents have promoted several medical officers to the grade of SAG without insisting on minimum required service. Hence aggrieved by the same, the applicant has filed this O.A. before us.
2.1 According to the applicant she was eligible for promotion to SAG grade and has been illegally denied the same even though her juniors have been promoted. She claims that she meets all the requirements for promotion and has never been communicated any adverse remark or below bench-mark ACR. Further, she has stated that she is holding the post of Specialist Grade-I from a date prior to 29.10.2008 i.e. of initial implementation of DACP Scheme. Her contention is that the respondents insistence on 7 years regular service as Specialist Grade-I before promotion to SAG is in violation of the provisions of the Government of India letter dated 21.07.2009. The fact that the above provisions have been applied for other medical doctors but denied to the applicant reveals vindictive and discriminatory attitude of the respondents.
3. In their reply the respondents have not disputed the basic facts of the case. They have, however, contended that the applicant could not be promoted as she did not fulfill the minimum required 7 years service as Specialist Grade-I. Further, they have stated that the applicant is a Specialist and is governed by different set of conditions as compared to the general duty medical officers and cannot claim parity with them.
3.1 The respondents have denied that they are adopting different criteria for General Duty Medical Officers and Specialist doctors. However, they have stated that the date of initial implementation of DACP Scheme in Central Government was 05.04.2002 whereas in ESIC it was almost 6 years later on 01.03.2008. When the applicant represented against denial of promotion to her her case was examined in consultation with Ministry of Labour and Employment. That Ministry vide their letter dated 30.50.2012 clarified that grant of SAG scale to doctors working with ESIC who have been promoted as Specialist only on 23.06.2006 without fulfilling the minimum required service of 7 years as Specialist Grade-I may not be appropriate. Ministry of Health and Family Welfare and DoP&T, who were also consulted, replied back to say that they were not concerned with the implementation of DACP Scheme in ESIC. Hence on the basis of clarification received from Ministry of Labour and Employment it was decided not to promote the applicant to SAG level without fulfilling the condition of minimum required service.
4. We have considered the submissions of both sides and have perused the material on record. We have first seen the DACP Scheme which was extended to SAG level by the Ministry of Health and Family Welfare letter dated 29.10.2008. The relevant extracts of this Scheme are as follows:-
2. In so far as various sub-cadres of Central Health Service and Dental Doctors under this Ministry are concerned, the promotions under DACP scheme will be as under:-
GDMO Sub-Cadre 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 Rs.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 yrs 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.
Non Teaching and Public Heath Sub Cadre Promotions under the DACP Scheme No. of years of regular service required for promotion From To Specialist Grade-II (Junior Scale) (Grade Pay Rs.6600 in PB-3) Specialist Grade-II (Sr. Scale) (Grade Pay Rs.7600 in PB-3) 2 years in Grade Pay of Rs.6600 in PB-3 including service rendered in the pre-revised scale of Rs.10000-15200.
Specialist Grade-II (Sr.Scale) (Grade Pay Rs.7600 in PB-3) Specialist Grade-I (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.
Specialist Grade-I (Grade Pay Rs.8700 in PB-4) Consultant/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.
This Scheme was further modified on 21.07.2009 and the following clause is relevant for our purpose:-
5(b) A specialist with more than 13 years of regular service and already regularly promoted as specialist Gr.I (grade pay of Rs.8700 in the Pay Band-4) on the date of initial implementation of the Scheme can be granted SAG pay structure of grade pay of Rs.10000 in the Pay Band-4 without rendering full 7 years of service in the grade pay of Rs.8700/-. 4.1 We notice that this Scheme was primarily meant for doctors of Central Government. However, as stated by the respondents, ESIC also decided to adopt this Scheme. We further notice from the provisions of the Scheme that as far as GDMO sub-cadre is concerned the minimum service required for reaching the grade of CMO i.e. grade pay of Rs.8700 in PB-4 is 13 years on initial induction as a Medical Officer. On the other hand for the specialist cadre after induction as Specialist Grade-2 the minimum service required to reach Specialist Grade-I i.e grade pay of Rs.8700 in PB-4 is 6 years. Thus, it is obvious that comparison between the two cadres cannot be made. We also notice that the applicant stated in her O.A. that many of her juniors have been promoted to SAG without insistence of 7 years service in the feeder grade. She has quoted the following instances:-
Sl.No. Name Date of Date of Promotion
Promotion to SAG Scale with
As CMO-NFSG grade pay of
1. Dr. Santram 1.3.2008 1.4.2011
2. Dr. Parveen Ghuliani 1.3.2008 27.6.2011
3. Dr. Pratima Dave 1.3.2008 27.6.2011
4. Dr. Deepika Govil 1.3.2008 27.6.2011
5. Dr. Geeta Gupta 1.3.2008 8.7.2011
6. Dr. Monica Seth 3.3.2008 26.6.2011
7. Dr. Manisha Chawla 7.3.2008 27.6.2011
8. Dr. Rachita Biswas 23.3.2008 27.6.2011
9. Dr. Anita Midha 8.3.2008 3.7.2011
10.Dr. Poonam Arora 7.3.2008 27.3.2011
11.Dr. Nirupma Sachdeva 1.3.2008 9.7.2011
12.Dr. Jitendra Prasad Jain 1.3.2008 27.6.2011
13.Dr. Alka Gupta 1.3.2008 11.7.2011
14.Dr. Anuradha Tiwari 1.3.2008 17.7.2011
4.2 However, in our opinion all the instances quoted above are CMOs i.e. doctors belonging to the GDMO Cadre. As mentioned above, there cannot be comparison between the GDMO Cadre and the Specialist Cadre as they are governed by different set of conditions. Therefore, the applicants claim that her juniors have been promoted is not tenable since she is making a comparison with doctors belonging to entirely a different cadre. She could not produce combined seniority list of the two cadres on the basis of which she could claim that she was senior to those promoted.
4.3 Further, we notice that when modified DACP Scheme was accepted it contained a clause that those Specialist Grade-I who had been promoted as such on the date of initial implementation of the Scheme can be granted SAG grade even if they had not rendered full 7 years of service in that grade. The respondents had stated that in consultation with Ministry of Labour they had decided not to implement this clause and insisted on 7 years service in the grade of Specialist Grade-I before promotion to SAG. The reason given by the respondents during arguments was that the date of initial implementation of the Scheme was different for Central Government and ESIC. Thus, for Central Government the date of initial implementation of this Scheme was 05.04.2002. Consequently, Specialist being promoted after being given benefit of this clause would have rendered almost 6 = years of service by the time the modified DACP Scheme was adopted w.e.f. 29.10.2008. However, as far as ESIC is concerned since the date of initial implementation of DACP was 01.03.2008, if this clause had been implemented then Specialist Grade-I with even 6 months service as such would have become eligible for promotion to SAG. Consequently, the Ministry of Labour had clarified that it would be appropriate to insist on the requisite service before promotion.
4.4 In our opinion, the stand taken by the respondents is totally justified. The DACP Scheme was primarily issued by the Ministry of Health and Family Welfare for Government doctors falling under that Ministry. Initially this Scheme was implemented from 05.04.2002. On 29.10.2008 it was extended to SAG grade as well. The modification introduced in this Scheme on 21.07.2009 further provided that those Specialists who were holding the Specialist Grade-I post on the date of initial implementation of the Scheme could be promoted to SAG without insisting on 7 years service. All these clauses were primarily intended for Government of India doctors with the full knowledge that the DACP Scheme has been implemented w.e.f. 05.04.2002. The ESIC subsequently decided to adopt this Scheme and they did so w.e.f. 01.03.2008. However, if the clause dealing with dispensing with 7 years service as Specialist Grade-I for promotion to SAG had been mutatis mutandis applied to ESIC also it would have given unintended extra ordinary benefits to the doctors of ESIC considering the fact that there was a gap of 6 years in the date of initial implementation of the Scheme in Central Government and ESIC. Such a situation was neither envisaged nor is desirable. Hence we agree with the stand taken by the respondents.
5. In view of the above analysis, we come to the conclusion that none of the grounds taken by the applicant is tenable. The O.A. is dismissed being devoid of merit. No costs.
(Shekhar Agarwal) (G. George Parakcen)
Member (A) Member (J)
/Vinita/