Central Administrative Tribunal - Jaipur
Dr Renu Khandelwal vs Cghs on 29 July, 2024
OA No. 189/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 189/2022
Order Reserved on: 01.07.2024
DATE OF ORDER: 29.07.2024
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
HON'BLE MR. LOK RANJAN, ADMINISTRATIVE MEMBER
Dr. Renu Khandelwal w/o Shri Lokesh Kumar
Khandelwal, Age about 43 Resident of 90, G-2, Shree
Shyam Residency, Behind Goyal Marriage Garden,
Pravasi Nagar, Murlipura, Jaipur - 302039 Raj.
Presently working as Chief Medical Officer (group A
Officer) in CGHS Wellness 7 Vidhyadhar Nagar Jaipur-
302023.
Mobile No. 9828029788.
Email ID [email protected]
....Applicant
Shri Lokesh Kumar Khandelwal, counsel for the
applicant.
VERSUS
1. Union of India through under Secretary, Ministry of
Health and Family Welfare (CHS Division), Nirman
Bhawan, New Delhi - 110011.
2. The Director, Central Government Health Scheme,
Nirman Bhawan, New Delhi-110011.
3. The Additional Director, Central Government Health
Scheme, Jaipur-302023.
.... Respondents
Shri N.C. Goyal, counsel for respondents.
OA No. 189/2022
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER The present Original Application has been filed by the applicant praying for the following reliefs:-
"8.1 By an appropriate order or direction, the order dated 13.01.2022 may kindly be quashed and the respondent may be directed to promote the applicant in the post of chief medical officer under DACP scheme with effect from 28.08.2015 through review DPC within 3 months.
8.2 Any prejudicial order to the interest of the applicant, if passed during the pendency of the application, the same may kindly be taken on record and after examining the same be quashed and set aside.
8.3 Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant."
2. The brief facts of the case, as stated by the applicant, are that the present O.A. has been filed being aggrieved by the promotion order dated 13.01.2022 (Annexure A/1) by which she has been promoted as Chief Medical Officer Grade under Dynamic Assured Career Progression (DACP) Scheme w.e.f. 09.01.2019 while she has claimed due date of CMO promotion as 28.08.2015. She is also aggrieved by the orders dated 27" October, 2021 (Annexure A/4) and 04" August, 2014 (Annexure A/5) by which OA No. 189/2022 3 the competent authority did not consider her representations for up-gradation of APAR and expunging of adverse remarks in APAR for the year 2010-11 and 2011-12 in view of pending inquiry report made against her by reviewing authority and vigilance officer.
3. The applicant states that as per CHS Rules, 1996, which were notified on 08.10.1996, the Fifth Central Pay Commission has recommended a Dynamic Career Progression Scheme (DACP Scheme) for CHS Doctors. The matter was considered in the Ministry of Health and Family Welfare in consultation with other Ministries and orders for implementation of DACP Scheme for CHS doctors has been issued vide letter dated 05.04.2002. In this Scheme, GDMOs get their first promotion from Medical Officer (Rs. 8000-13500) to Senior Medical Officer (Rs. 10000-15200) on completion of 04 years of regular service. They get their next promotion from Senior Medical Officer to Chief Medical Officer (Rs. 12000-16500) on completion of 05 years of regular service as SMO and after completing 04 years in Chief Medical Officer grade, they are promoted to Chief Medical Officer, (NFSG Rs. 14300-18300).
OA No. 189/2022
4. The applicant further states that through letter dated 21.04.2022 (Annexure A/3), it was mentioned that the applicant is unfit for CMO promotion w.e.f. 28.08.2015 in DPC meeting held on 10.07.2018 due to non-availability of vigilance clearance while on the other hand, Ministry issued a letter of satisfactory completion of probation period through letter dated 239 September, 2014 (Annexure A/10) and DPC issued her SMO promotion through letter dated 31% March, 2015 (Annexure A/11) and as per letter dated 10.09.2012 (Annexure A/12), she is clear from vigilance angle, which seems to be contradictory. In the letter, it is mentioned that her two APAR for the years 2010-11 and 2011-12 is below benchmark due to which she is unfit for promotion w.e.f. 28.08.2015, however, she was fit for a block of 2019. As per CHS Rules, she needed 05 'Very Good' APAR for her CMO promotion. As the applicant joined CHS service on 28.08.2006, she got her SMO promotion from 28.08.2010 after 04 years completion of service and she needed 05 'Very Good' APAR for CMO promotion. Unfortunately, for the years 2010-11 and 2011-12, her APAR is below benchmark. Still she has 05 'Very Good' APAR from 2012-13, 2013-14, 2014-15, 2015- OA No. 189/2022 5 16 and 2016-17 and she should be given CMO promotion from 2017 instead of 2019, as other employees got their promotion. She questions that if Ministry considered her APAR from 2016-17, 2017-18, 2018-19 for her CMO promotion then why APARs of 2012-13, 2013-14, 2014-15, 2015-16 were not considered.
5. The applicant states that as per order dated 04 August, 2014, her APAR is not considered for up- gradation in view of pending inquiry and disciplinary action against her and through letter dated 27t October, 2021, it is not reconsidered in view of DOPT order. As per letter dated 31 March, 2022, this matter has been treated as closed, which makes the applicant free from all charges leveled against her. The applicant further states that as inquiry has been closed and matter has been dropped by Ministry then all adverse remarks needs to be expunged from applicant's APAR and should be up-graded to 'Very Good' and she should be granted her promotion from due date i.e. 28.08.2015. Besides, the applicant has made allegations against the senior officers with regard to harassing her and, consequently, granting below benchmark and also stated that the competent OA No. 189/2022 6 authority decided her representation against below benchmark APARs of the years 2010-2011 and 2011- 12 in 2014 through letter dated 04™ August 2014 i.e. after 03 years of submission of representation against the below benchmark of APARs for the year 2010-11 and 02 vyears after submission of representation against the below benchmark for the APAR of the year 2011-12, which is totally illegal and in violation of DOPT Rule.
6. The applicant states that now as all pending inquiry has been closed and the Ministry has dropped the charges put against her then all the adverse remarks should be expunged from both APAR of the years 2010-11 and 2011-12 and upgrade to 'Very Good' and she be granted her CMO promotion from 28.08.2015. She is aggrieved by the action of the respondents' order dated 13.01.2022 by which she was promoted to CMO from 09.01.2019 and not been promoted on the post of Chief Medical Officer under DACP Scheme w.e.f. 28.08.2015.
7. The respondents have filed their reply stating that the applicant has been rightly promoted w.e.f. 09 January, 2019 on the post of CMO vide order dated 7 OA No. 189/2022 13.01.2022. As per CHS Rules, 2014 and CHS Recruitment (Amendment) Rules, 2017, the minimum benchmark grading for promotion from SMO to CMO, whose promotion is due after 07.04.2014 is "Very Good". It is also stated that the DPC guidelines provide that the suitability of the officers for promotion is to be considered on the basis of their service record with particular reference to the ACRs/APARs for preceding 05 years, which became available during the year immediately preceding the vacancy / panel year. Accordingly, the reckonable ACRs/APARs to be considered for promotion for the panel years 2015-16 to 2019 is as under: -
Panel Year Reckonable period of
assessment
From To
2015-16 2009-10 2013-14
2016-17 2010-11 2014-15
2017-18 2011-12 2015-16
2018* 2011-12 2015-16
2019% 2012-13 2016-17
*As per DOPT's OM No. 22011/4/2013-Estt. (D) dated 08.05.2017 vacancy year shifted to calendar year and prescribed reckonable years APAR assessment for the year 2018 onwards.
8OA No. 189/2022
8. The respondents further state that the applicant was considered for promotion to CMO level for the panel year 2015-16 i.e. w.e.f. 28.08.2015 in the meeting of the DPC held on 10.07.2018. However, the DPC deferred its assessments in respect of her due to non-availability of vigilance clearance. The applicant was again considered for promotion to CMO level for the panel year 2015-16 i.e. w.e.f. 28.08.2015 in the meeting held on 30.08.2019 under the Chairmanship of the then Special Secretary (Health) and the DPC assessed her "Unfit" for promotion to CMO level w.e.f. 28.08.2015 due to below benchmark ACRs for the years 2010-11 (Good) and 2011-12 (Average) which were in the reckonable period of assessment. The grading in the APAR 2010-11 (Good) was upgraded from 'Average' to 'Good', while grading in APAR 2011-12 was retained as "Average'.
9. The respondents also state that in the meeting of DPC held on 22.12.2021 under the Chairmanship of the then Additional Secretary (Health), she was considered for the subsequent panel years. However, due to below benchmark ACRs for the years 2010-11 (Good) and 2011-12 (Average), the DPC assessed her "Unfit" for promotion to CMO level for the panel year OA No. 189/2022 ?
2016-17; and due to below benchmark ACR of 2011- 12 (Average), the DPC assessed her "Unfit" for promotion to CMO level for the panel years 2017-18 and 2018. The DPC held on 09.01.2019 assessed her "Fit" for promotion to CMO level for the panel year 2019 by reckoning her ACRs / APARs for the assessment years from 2012-13 to 2016-17. Subsequently, promotion order dated 13.01.2022 was issued for promoting her to CMO grade w.e.f. 09.01.2019.
10. The respondents state that the applicant had filed an OA No. 52/2022 before this Bench of the Tribunal praying for the following reliefs:-
"By an appropriate order or direction, the order dated 13.01.2022 may kindly be quashed and the respondents may be directed to promote the applicant on the post of Chief Medical Officer under DACP scheme with effect from 28.08.2015 or alternatively respondents may be directed to decide the representation dated 18.01.2022 submitted by the applicant within a period of 2 weeks."
The respondents further state that the aforesaid O.A. (OA No. 52/2022) is still in the hearing stage before this Bench of the Tribunal and decision is yet to be delivered.
10OA No. 189/2022
11. The applicant has also filed a rejoinder reiterating the pleadings made in the present Original Application.
12. Heard both the sides and the matter was reserved on 01.07.2024 for orders.
13. On perusing of the file, we noticed that the applicant had previously also filed an O.A. No. 52/2022 before this Bench of the Tribunal praying for the relief, as has been made in the present O.A. The main prayer made in the O.A. No. 52/2022, reads as under: -
"By an appropriate order or direction, the order dated 13.01.2022 may kindly be quashed and the respondents may be directed to promote the applicant on the post of Chief Medical Officer under DACP scheme with effect from 28.08.2015 or XXXXX."
The main prayer made by the applicant in the present Original Application reads as under:
"8.1 By an appropriate order or direction, the order dated 13.01.2022 may kindly be quashed and the respondent may be directed to promote the applicant in the post of chief medical officer under DACP scheme with effect from 28.08.2015 through review DPC xxxxx."11 OA No. 189/2022
However, the fate of the aforementioned earlier O.A. (OA No. 52/2022) was not revealed by either of the parties. On searching the Tribunal's record, we found that the above mentioned O.A. was dismissed as withdrawn by the applicant, without seeking or grant of any liberty, vide order dated 29.11.2022 passed by this Tribunal. The order in the above mentioned OA (as searched by us) is reproduced below: -
"Shri Lokhesh Kumar appearing as proxy for Shri Sandeep Saxena, learned counsel for the applicant states that the applicant wishes to withdraw the present Original Application. Allowed.
Accordingly, the Original Application is dismissed as withdrawn.
In view of the the Original Application being dismissed as withdrawn, nothing survives in Misc. Applications No. 97/2022 & 242/2022. Accordingly, both the Misc. Applications are also disposed of as having been rendered infructuous."
It is pertinent to mention that even the respondents had not brought this order on record.
14. The applicant in para 7 of the present O.A. has specifically declared as below:-
"7- MATTER NOT PREVIOUSLY FILED OR
PENDING WITH ANY OTHER COURT
The applicant further declares that he has
not previously filed any application, writ
12
OA No. 189/2022
petition or suit regarding the matter in
respect of which this application has been made, before any Court of Law or any other authority or any other Bench of the Tribunal and nor any such application, writ petition or suit is pending before any of them." It clearly shows that the applicant had deliberately made wrong declaration in the present O.A. despite the fact that she had earlier filed O.A. No. 52/2022 seeking the same relief on the same issue.
In response to the aforesaid para 7, the respondents have also given stereotype reply without application of mind, which reads as under: -
"7. MATTER NOT PREVIOUS FILED OR PENDING IN OTHER COURT:
That the contents of this para are denied for want of knowledge."
It is evident that despite the fact the respondents were aware about the filing of the OA No. 52/2022 seeking the same relief on the same issue, the respondents have not specifically controverted it, rather gave wrong reply to para 7.
It is very unfortunate that neither learned counsel for the applicant nor learned counsel for the respondents brought these crucial facts before us. 13 OA No. 189/2022
15. The applicant despite having filed O.A. No. 52/2022 on the same issue, seeking same prayer, (as has been made in the present 0.A.), and having withdrawn it without seeking or grant of any liberty, has tried to seek the same relief through the present O.A. It is a settled proposition of law that if the case is withdrawn without any liberty granted by the Court, it operates as res judicata for any other application / petition seeking the same relief on the same subject/issue. The Hon'ble Supreme Court vide its judgment dated 12% July, 2023 in the case of State of Orissa & Anr. vs. Laxmi Narayan Das (Dead) thr. LRs & Ors., (Civil Appeal No. 8072/2010), has held as under: -
TXXXXX
38. Having regard to the principles laid down in M.J. Exporters Private Limited (supra), in our view, applying the principles of constructive res judicata, the present writ petition filed by the respondents after withdrawal of the civil suit, was not maintainable, in the sense that it ought not to have been entertained. In case the respondents still wanted to justify filing of the writ petition, they should have at least disclosed complete facts and then justify filing of the writ petition.
XXXXX
40. As to how a litigant who conceals material facts from the Court has to be dealt with, has been gone into by this Court, time and again in plethora of cases and the consistent opinion is 14 OA No. 189/2022 that, he is not entitled even to be heard on merits.
CONCLUSION:
54. xxxxx:
(i) xxxxx
(ii) On the application of principle of constructive res judicata, the writ petition filed by the respondents after withdrawal of the civil suit was not maintainable as no liberty was granted. In case still filing of writ petition was to be justified, at least complete facts need to be disclosed for the purpose, which were missing. In the writ petition there was no mention regarding filing of civil suit earlier for the same relief and withdrawal thereof. A litigant can be non-suited in case he is found guilty of concealing material facts from the court or mis-stating the same. Hence, the respondents are not entitled to any relief.
(i) xxxxx.""
16. Accordingly, the present Original Application is dismissed and a cost of Rs. 5,000/- (Rupees Five Thousand only) is imposed on the applicant for concealing the crucial facts, especially above cited order of withdrawal of earlier O.A. No. 52/2022 and giving wrong declaration in para 7 the present O.A., (as has been reproduced hereinabove). A cost of Rs. 2,000/- (Rupees Two Thousand only) is also imposed on the respondents for not controverting the declaration made by the applicant in para 7 of the 15 OA No. 189/2022 O.A. by not giving a specific reply to the said para (as reproduced above) and also not bringing to our notice that an O.A. seeking the same relief on the same issue had already been dismissed as withdrawn without grant of any liberty to the applicant by this Tribunal.
17. It is made clear that the costs be paid by the applicant as well as respondents, as stipulated above, to the CAT Bar Association, Jaipur, to make expenditure only for the welfare of the members of the Bar viz. for immediate relief to the needy lawyer/advocate who dies in harness or sustain permanent disability rendering him unable to practice further or to overcome the disability by getting prosthetic device(s) within two weeks of receipt of a copy of this order.
(LOK RANJAN) (RANJANA SHAHI) ADMINISTRATIVE MEMBER JUDICIAL MEMBER