Central Administrative Tribunal - Delhi
Dr. (Mrs.) Kiran Kumar vs Municipal Corporation Of Delhi on 25 August, 2011
Central Administrative Tribunal Principal Bench TA No.1219/2009 New Delhi, this the 25th day of August, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Dr. (Mrs.) Kiran Kumar Addl. MHO (Schools), 6, Kalidas Marg, Gulabi Bagh, Delhi-7 . Applicant. (By Advocate : Ms. Madhu Tewatia with Ms. Sidhi Arora) Versus 1. Municipal Corporation of Delhi Through its Commissioner Town Hall-Chandni Chowk, Delhi 110 007. 2. Dr. Madhur Kudesia Medial Superintendent Hindu Rao Hospital, Delhi. 3. Dr. R. B. Mittal Consultant Cardiologist and Head of the Department Delhi. Respondents. (By Advocate : Ms. Biji Rajesh for Sh. Gaurang Kanth) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Dr. (Mrs.) Kiran Kumar, applicant herein, is aggrieved by the action of the first respondent (a) in denying her promotion to the Higher Administrative Grade (HAG) despite she being the senior most Doctor in the General Duty (GD) Cadre of Municipal Corporation of Delhi (MCD) and (b) for non regularization of her promotion to the Supertime Grade-I where she was continuing on ad hoc basis. In order to get the above grievances adjudicated, she filed the Writ Petition (Civil) No.18303/2006 which on transfer has been registered as TA No.1219/2009 where the relief(s) claimed are as follows:-
A writ of certiorari or any other appropriate writ, order or direction in the nature thereof quashing the illegal and arbitrary action of the respondent in denying promotion to the petitioner in the upgraded post of Higher Administrative Grade (HAG) carrying the scale of Rupees 22400-24500 despite the fact that the petitioner is the senior most doctor in the Supertime Grade-I in the scale of 18400-22400 wef 1996 (ANI).
A writ of MANDAMUS or any other appropriate writ, order or direction in the nature declaring that the decision of the respondent/Appointment Promotion and Disciplinary Committee dated 22.11.2006 (P/13) in denying to the petitioner her legitimate entitlement to the upgraded post of HAG in the scale of Rupees 22400-24500 she being fully qualified for the same-is discriminatory, violative of well settled norms underlying Articles 14 & 16 of the Constitution of India and the law as laid down by the Honble Supreme Court of India AND A writ of MANDAMUS or any other appropriate writ, order or direction in the nature thereof directing the respondent to reckon the seniority of the petitioner/qualifying service in the Supertime Grade-I for the purpose of promotion to the HAG Grade, wef the date of her initial appointment made against a sanctioned vacant posts in accordance with the recruitment rules after considering all eligible claims that is being illegally denied to the petitioner AND A writ of MANDAMUS or any other appropriate writ, order or direction in the nature thereof directing the respondent to treat the petitioner as regularly appointed and bestow the benefits of continuous officiation in the Supertime Grade-I from the date of her ad hoc appointment made against a sanctioned vacant post in accordance with the recruitment rules for all purposes AND A Writ of MANDAMUS or any other appropriate writ, order or direction in the nature thereof declaring that the non-action of the respondent in not regularizing the services of the petitioner in the Supertime Grade-I amounts to dereliction of duty, is malfide, arbitrary and whimsical and Call for the records of the Respondent from its concerned office and award costs of the petition.
Any other appropriate writ, order or direction, as this Honble Court may deem fit and proper in the facts of the present case.
Award costs of the petition.
2. We may briefly refer to the facts of the case which led the applicant to claim the above relief(s). The applicant having been selected by the UPSC, joined as General Duty Medical Officer (GDMO) vide order dated 31.12.1986 and was granted regular Super Time Grade-II on 08.12.1987 (Annexure-P1). On promotion, she has reached Super Time Grade-I (SAG) on 19.04.1996 (Annexure-P6) in pay scale `5900-6700 revised to the pay scale of `18400-22400 w.e.f. January 1996. The SAG posting of the applicant was on ad hoc basis. It is her case that she is the senior most Doctor as per seniority list circulated on 31.01.1991 (Anexure-P2). It is averred that pursuant to the Government of India accepting recommendations of Tikku Committee on the subject of Career Progression of Medial Officers, MCD vide its decision dated 27.04.1992 extended the benefits to the Doctors in three cadres. The MCD upgraded two SAG posts to Higher Administrative Grade (HAG) whereby one from Public Health Cadre and the other from the Specialist Cadre got the benefit of HAG. She submitted a representation dated 9.08.2001 (Annexure-P3) claiming inter alia to grant her HAG as she fulfilled the eligibility criteria. It is her case that she was posted against the sanctioned vacant post of Addl. MHO-GD w.e.f. 10.01.1996 (Anexure-P7). Her claim is that Dr. K. N. Tiwari who was holding SAG post on ad hoc basis was granted ad hoc promotion to HAG vide MCD resolution dated 17.07.2001. It is averred that Private Respondents Dr. Mittal-3rd respondent and Dr. Kudesia-2nd respondent who were junior to the applicant, their ad hoc promotion to SAG was regularized on 6.01.1997 and given HAG ignoring the applicants claims. The applicant wrote to MCD in her letter dated 22.09.2006 (Annexure-P10) requesting to regularize her ad hoc SAG posting and she stated that she being senior most medical officer in SAG scale, she should be given HAG scale. Further, her case is that vide note dated 5.09.2006 (Annexure-P12) the Central Establishment Department of MCD called for applicants personal file, Service Book etc. for consideration for time bound promotion to HAG. It is further the case of the applicant that the Appointment, Promotion and Disciplinary Committee of MCD meet on 21.11.2006 considered 5 senior most Medical Officers of Specialist and GDMO cadre in which applicant was also considered but four were recommended ignoring the applicants claim. She, being aggrieved, moved the High Court of Delhi. She also represented in her letter dated 30.11.2006 (Annexure-P/15) requesting Mayor, MCD to consider granting her HAG scale.
3. Ms. Madhu Tewatia assisted by Ms. Sidhi Arora, learned Counsel for the applicant narrating the background of the case would contend that the applicant was senior to two private respondents taking into account the date of their initial appointment vis a vis applicants. thus, it was urged that the applicant being not only senior amongst SAG Doctors but also senior most in GDMO Cadre, should have been granted HAG scale. It is contended that there has been no identification of posts in a particular cadre and proper selection was not followed by MCD while granting HAG to private respondents. Thus, she submits that the selection process has been suffering from the legal infirmities. Her further contention is that applicants ad hoc status in SAG cannot be the ground for her non promotion to HAG scale, as the respondents are responsible for not sending her name to UPSC to regularize ad hoc service in SAG. She submits that there are catena of judgments of Honble Supreme Court holding that continuous officiation/even on ad hoc basis on a particular post against which an incumbent is appointed in accordance with Rules prescribed for regular and substantive appointment in the service against regular service, such employee is entitled to be the consequential purposes of seniority, promotion and pay scales. In view of the above contentions, Ms. Tewatia pleads that the applicant deserves to get regularized in the SAG and to be granted HAG scale of pay.
4. On receipt of notice from High Court of Delhi, the respondent MCD has entered appearance through Shri Gaurang Kanth, learned Counsel. On his behalf Ms. Biji Rajesh opposing the grounds taken by the applicant and her counsel, would contend that the applicant belonged to General Duty Medical Officers (GDMO) Cadre whereas the Private respondents worked in the Specialist Cadre. She submits that MCD has three cadres and entry to each cadre, the recruitment and qualification are different and up to the SAG pay scales Doctors in each cadre move as per their respective channel of promotion and seniority. For the HAG pay scale the feeder category is from the SAG level Doctors from all the three cadres and seniority in the SAG posts is the basis to get HAG posts as well as pay scales. She would further contend that the applicant was junior to two private respondents and the number of HAG posts being four, the applicant was considered but could not be granted HAG but her seniors were granted HAG. Referring to the additional affidavit filed by MCD on 20.05.2011, she contended that two Private respondents got their SAG ad hoc promotion in 1995 and regular in 1997 whereas the applicant was promoted to SAG on ad hoc basis in January, 1996. On the basis of the facts, the applicant is junior to them at the SAG level and she has not been granted HAG pay and promotion as there has been no vacant post. However, the counsel for the MCD concedes that applicants case for regularization at the SAG post can be done as per rules even now by the MCD.
5. At this stage, it is noted that the 2nd and 3rd respondents have filed their respective reply affidavit on 4.2.2008 and 6.2.2007 respectively. They have averred that they belong to Specialist Cadre and are senior to the applicant in SAG posts, having been promoted about a year prior to applicants promotion to SAG posts. They have requested to dismiss the TA.
6. In view of the above contentions of the rival parties, with their assistance, we perused the pleadings. Two claims are to be determined in the case by us. Those are: (i) whether the applicant is entitled to be regularized in the SAG post? (ii) whether she was senior to the private respondents in the SAG post to be granted HAG post and pay scale.
7. We may advert to the first issue. Admittedly, the applicant reached the SAG post through promotion on ad hoc basis on 19.01.1996. The 1st respondent MCD in its additional affidavit has indicated that the regularization of the ad hoc service of private respondents who have got SAG posts in Specialist Cadre in 1995, has been done in 1997. Normally, the applicants case should have been considered for regularization when the regular vacancy would have arisen. But the 1st respondent submits that even after best efforts, the answering respondent could not trace out the regularization file of the applicant in the SAG level. Therefore, the answering respondent is not in a position to explain the reason for not regularizing the applicant in SAG level. It is noted that two private respondents ad hoc SAG promotion was regularized after two years in 1997. Of course, the applicants ad hoc promotion could not have been done in SAG level in 1997. But, her case should have been considered and regularization done in 1998 as she was the senior most SAG officer, though on ad hoc, in GDMO cadre. Instead of directing the respondent MCD to reconstruct the file for regularization and process the same to UPSC which may prolong the process, in the peculiar nature of the case where regularization file is not available, we direct the MCD to issue an order regularizing the applicants ad hoc promotion to SAG level on completion of her 2 years of ad hoc service. This would mean that she would be in regular SAG w.e.f. 19.01.1998 (ad hoc SAG being from 19.01.1996). The applicant would be entitled to the consequential benefits for the said post in SAG as per law.
8. We now take up the second issue. In MCD there are 3 categories of Doctors belonging to 3 different cadres viz. (i) General (GDMO) Cadre, (ii) Public Health Cadre and (iii) Non-Teaching Specialist Cadre. Each Cadre has its recruitment and Promotion prospects up to Super Time Grade-I/Senior Administrative Grade (SAG). These three cadre officers when reach the SAG they get into one cadre and seniority list for further promotion to HAG becomes the basis. However, Doctors below the SAG have many differences. Qualification for the appointment at the entry level to each cadre is different, channels of promotion, years of regular service for promotion, scales of pay differ in these three cadres. Each cadre has its own seniority list. The applicant and the Private respondents belong to General Cadre and Specialist Cadre respectively. As per the respondents and not disputed by the applicant, the organizational hierarchy and their lines of promotion up to SAG is as follows:-
General Cadre Specialist Cadre SAG SAG Chief Medical Officer Specialist Grade-I (Non Functional Selection Grade) Chief Medical Officer Specialist Grade-II (Senior Scale) Senior Medical Officer Medical Officer Specialist Grade-II (Entry Level) (Junior Scale) (Entry Level)
9. It is noted that the Doctors in the General Cadre has to pass through four promotions to reach the SAG whereas Doctors in the Specialist Cadre have to pass through three promotions to reach SAG. The next higher post is Higher Administrative Grade-I (HAG-I) and as per the Tikku Committee recommendations there are 4 HAG-I posts. Admittedly the Doctors at the SAG in all three cadres are eligible to be considered for promotion in order of their seniority in SAG subject to their eligibility. The mode of appointment to the post of HAG-I is as follows:-
Three years regular service in Suppertime Grade in the pay scale of Rs.5900-6700 (pre-revised) failing which Suppertime Grade Officers in the scale of Rs.5900-6700 with 12 years regular service after being appointed or as the case may be promoted to the level of Specialist Grade-I, Professor or Chief Medical Officer (NFSG) are eligible to be appointed to the said Grade.
10. The respondents vide their order dated 03.01.2007 granted promotion to four senior most Doctors from three cadres in the SAG level and they are (i) Dr. Madhu Jain, (ii) Dr. J. N. Banwalkar, (iii) Dr. Madhur Kudesia and (iv) Dr. R. B. Mittal. Initially, the applicant considered all four of them as her juniors and impleaded them in the array of party respondents in the WP(C) No.13803/2006 but on 11.12.2006, the learned counsel for the applicant conceded that Doctors at Sl. No. (i) and (ii) above were seniors to the applicant and accordingly their names were deleted from the list of respondents. However, counsel for the applicant then submitted that although the applicant was senior to the Doctors at Sl. No.(iii) and (iv) above, yet she was not promoted and her juniors had been made senior and promoted. The counsel for the respondents took the plea that the Private respondents were regularized whereas the applicant was in the SAG on ad hoc basis. Of course, the regularization of her services in the SAG is one of her claims. On 11.12.2006, High Court ordered that the promotions, if any, made would be subject to the final orders of the Court.
11. Now, the principal issue- who is senior in the SAG, the applicant or the private respondents- is to be determined. Admittedly, the applicant got her SAG in January, 1996 whereas the private respondents were in SAG scale in the year 1995 on ad hoc basis. Their relative seniority is as follows:-
___________________________________________________________ Sl. Applicant/ Name Cadre Ad hoc Regular No. Respondent promotion to promotion SAG to SAG _______________________________________________________________________________
1. Applicant Dr. Kiran Kumar General 19.01.996 not yet done
2. Respondent No.2 Dr. Madhur Kudesia Specialist 02.03.1995 6.01.1997
3. Respondent No.3 Dr. R. B. Mittal Specialist 03.03.1995 6.01.1997 _________________________________________________________________________________ As per the rules for getting HAG scales, there are two alternative eligibility criteria i.e. 3 years of regular service in SAG which the applicant has not get, or SAG level officers with 12 years of regular service after being appointed to the Specialist Grade-I or Chief Medical Officer (NFSG), the applicant becomes eligible in the year 2008 for consideration in HAG level pay scale and post. It is seen that when the private respondents were promoted vide order dated 3.01.2007, there were only 2 vacancies but as no other vacancy existed the applicant could not be granted HAG. Thus, on the second issue, the applicant does not convince us for any interference for the above reasons,.
12. Considering facts in their entirety, the OA is disposed of in terms of our direction in Paragraph 7 within. There is no order as to cost.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/