Central Administrative Tribunal - Mumbai
Dated This Tuesday The 7Th Day Of August vs The Union Of India on 7 August, 2012
1 OA NO.630/2006 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A. No.630/2006 DATED THIS TUESDAY THE 7TH DAY OF AUGUST, 2012. CORAM : HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J). HON'BLE SHRI R.C. JOSHI, MEMBER (A) Mrs. Nita Mishra R/o. Row House No.8, B-Type, Nirmal Township, Kalepadal Road, Hadapsar, Pune 411 028. .. Applicant ( By Advocate Shri S.P. Saxena) VERSUS 1. The Union of India, Through the Secretary, Ministry of Defence, DHQ, P.O. New Delhi 110 011. 2. The Director General of Armed Forces, Medical Services (Army), Army Hqrs., 'M' Block, New Delhi 110 001. 3. The Commandant, Artificial Limb Centre, Wanori, Pune 410 040. ... Respondents ( By Advocate Shri S.G. Pillai) O R D E R (Oral) Per: Shri R.C. Joshi, Member (A)
In this Original Application, the Applicant is aggrieved by denial of promotion to the post of Senior Physiotherapist in Army Hospitals under the command of Respondent No.2. The Applicant is also aggrieved that there was no promotional avenue available for her. She has, therefore, filed this Original Application.
2 OA NO.630/20062. Learned Counsel on behalf of the Applicant in the pleadings has stated that she was appointed on regular basis as a Physiotherapist at the Artificial Limb Centre w.e.f. 30.08.1999. It was also contended that the Artificial Limb Centre is an establishment coming under the Army Medical Corp and it has been established to provide artificial limbs to Army/Navy/Air Force/Civil personnel who are required to be fitted with the same. The Applicant had completed her probation period satisfactorily and she is a confirmed employee. The next promotional post for Junior Physiotherapist is Senior Physiotherapist which is filled up by promotion failing which by direct recruitment as per the Recruitment Rules of Senior Physiotherapist. The Applicant, vide her representation dated 03.01.2005, had requested the Respondents to circulate the seniority list of Physiotherapist cadre of employees which is maintained by the office of Respondent No.2. The Respondent No.3, thereafter, addressed a letter dated 13.01.2005 to Respondent No.2 requesting for forwarding a copy of the seniority list of Physiotherapists maintained by them. The Respondent No.2 vide letter dated 12.08.2005 informed the Respondent No.3 that the post of Physiotherapist at Artificial Limb Centre, Pune is not having any promotional avenue and it cannot be considered for promotion alongwith the seniority of similar posts in 3 OA NO.630/2006 other cadres/departments. It is Applicant's contention that one Shri Imran Akshlaq and Ms. Namrata Sinha of 92 Base Hospital and 151 Base Hospital respectively, were selected and appointed in the year 2001 and 2002 as Junior Physiotherapist, whereas the Applicant was appointed in the year, 1999. It is Applicant's contention that the above said individuals have also been promoted to the post of Senior Physiotherapist vide order dated 12.05.2006. Although the Applicant's case has not been considered though she is senior to the above individuals. The Applicant, thereafter, submitted a representation to Respondent No.3 vide dated 08.08.2006 on the subject of promotional avenue for Physiotherapist and requested that her name be included in the eligibility list alongwith other Physiotherapists serving in the Army Hospitals and appointed under the same Recruitment Rules for the promotion to the post of Senior Physiotherapist. The Respondent No.3 vide letter dated 30.10.2006 informed the Applicant that the post of Physiotherapist of Artificial Limb Centre, Pune has no promotional avenues and cannot be considered for promotion alongwith seniority of similar post in other cadres/departments.
3. The Applicant has sought the following remedies: 8(a) To allow the application,
(b) To direct the Respondent No.1 to create atleast two promotional avenue for the Applicant 4 OA NO.630/2006 so that she can have promotions to higher grade/post.
OR The Respondents be directed to include the Applicant in the cadre of Junior Physiotherapist of D.G.A.F.M.S. and assign a seniority promotion in the common list, and thereafter promote her to the post of Senior Physiotherapist as per Rules.
(c) To pass any other appropriate orders which may be considered necessary in the facts and circumstances of the present case,
(d) To award cost of application.
4. Learned Counsel on behalf of the Respondents in the pleadings has stated that the Applicant was appointed by direct recruitment as a Physiotherapist on 30.08.1999. The post belonged to Director General of Armed Forces Medical Services (DGAFMS) Cadre, recruited in accordance with the Memorandum dated 10.08.1963 issued by DGMS (Army). The post of Physiotherapist (Female) is a DGAFMS Cadre with no promotional avenue. It is further contended the Artificial Limb Centre, Pune is under DGAFMS and is a peace establishment and, the Applicant was appointed in this organisation as Physiotherapist. There exists no other post of a Senior Physiotherapist at Artificial Limb Centre, Pune nor any cadre of such nature exists in the office of DGAFMS. However, as per Government of India, Ministry of Personnel, Public Grievances and Pensions letter dated 09.08.1999, there is a provision for giving financial benefits by granting ACP I and II after completion of 5 OA NO.630/2006 12 and 24 years respectively, if there are no promotional avenues in that post. It was contention of the learned counsel that the Applicant is not entitled for relief sought by her.
5. We have gone through the pleadings, perused the documents on record and have extensively heard the rival sides.
6. It is seen from the case papers that the Applicant is aggrieved by lack of promotional avenues in the Artificial Limb Centre, Pune where the Applicant is presently working. She, therefore, seeks that she may be promoted and posted at any other centre where her services could be utilised and she could also be considered for grant of suitable promotional avenues.
7. Per contra, the Respondents contention is that the Director General of Armed Forces Medical Services (DGAFMS) and Director General Medical Services are not in a hierarchical chain. The Director General of Medical Services are the Principal Staff Officers of Chiefs of respective services and their responsibility and accountability are different. However, the Director General of Armed Forces Medical Service (DGAFMS) controls certain organisations directly and Artificial Limb Centre, Pune is one such organisation. It has also been contended that the civilian employees working in Director General of Armed Forces Medical Service (DGAFMS)controlled organisations are governed by 6 OA NO.630/2006 separate rules for promotional avenues depending on vacancies available and promotional prospect of the concerned post. It was also argued that DGAFMS cannot direct the Director General Medical Services to transfer an employee belonging to DGAFMS cadre to Director General Medical Services cadre or vice versa, unless there is appropriate vacancy and sanction from the Competent Authority. It is also averred that the cadre of DGMS in Army, Air Force and Navy cannot be equated with DGAFMS cadre. The recruitment of the Applicant as a Physiotherapist at Artificial Limb Centre is as per the office of the DGMS (Army) Memorandum dated 10.08.1963 but the promotion, pension etc. will be as per the promotional rules and vacancies available in DGAFMS cadre.
8. During the oral arguments, it is also contended that the applicant belongs to the DGAFMS cadre and was appointed against the vacancy belonging to the DGAFMS cadre. The said vacancy does not have any promotional prospect which was known to the individual prior to the appointment. It is also stated that the services of the employees under DGAFMS controlled units are not transferable from one service to another, even if qualifications or charter of duties may remain the same. It is also highlighted that the applicant's case was taken up by Artificial Limb Centre, Pune with the headquarters of DGAFMS to encadre the Applicant into 7 OA NO.630/2006 Director General of Medical Services (Army) cadre, which was declined by Director General of medical Services (Army).
9. It is seen from the pleadings and case papers that there exists no post of Senior Physiotherapist in the Peace Establishment of the Artificial Limb Centre (Pune) available for which the Applicant seeking promotion and, therefore, the question of consideration of promotion to the said post which is not in existence, is not tenable. The Applicant would, however, be entitled for benefits under the ACP Scheme which is essentially meant for the employees who did not have the opportunities for promotion in the service.
10. In view of the above, therefore, we do not find any merit in the present Original Application which is dismissed. No order as to costs. (R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma.