* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 13 July, 2011
Judgment Delivered On: 05 August, 2011
+ W.P.(C) 2727/1998
DR.K.K.SAINI ..... Petitioner
Through: Mr.R.K.Saini, Advocate
..
versus
UOI & ORS. .....Respondents
Through: Ms. Jyoti Singh, Senior Advocate
with Mr.Amandeep Joshi, Advocate
and Mr.Vijay Raut from CRPF
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Shorn of unnecessary details, the facts leading to the
filing of the present petition are that till the year 1978 the
hierarchical structure of the medical cadre in Central Police
Reserve Force (herein after referred to as „CRPF‟) was as
follows: –
Chief Medical Officer
I
Senior Medical Officer
IW.P.(C) No.2727/1998 Page 1 of 16
General Duty Medical Officer (Grade I)
I
General Duty Officer (Grade II)
I
Junior Medical Officer
2. The petitioner joined CRPF as a Junior Medical Officer
in the year 1972 and earned promotions from time to time.
3. Pursuant to an advertisement issued by CRPF for direct
recruitment to the post of Senior Medical Officer, the
petitioner applied and was selected and hence appointed as
a Senior Medical Officer. In due course of time he earned
promotion to the post of Chief Medical Officer.
4. In the year 1978 the Central Government created a
single post of Medical Superintendent in the scale of pay
`1500-2000/- in the medical cadre of CRPF, which post was
equivalent in rank to the post of Deputy Inspector General
Police. The feeder post to the post of Medical
Superintendent was the post of Chief Medical Officer.
5. On 25.10.1985, The Directorate General Central
Reserve Police Force, Ministry of Home Affairs, Government
of India issued an Office Order prescribing the duties of the
incumbents appointed to the various posts of Medical
Superintendent and Director (Medical), the relevant portion
whereof reads as under:-
“Section-II
Duties of Gazetted Officers
Duties of Medical Superintendent at Dte. General
W.P.(C) No.2727/1998 Page 2 of 16
13. (A) The Medical Superintendent is the technical
head of CRPF Medical Organization and will perform
the following duties:-
(1) Advising the Director General of CRPF and
Sector IsGP on various policy matters affecting
medical cover to the Force.
(2) Scrutinize all proposals relating to Medical set-
up from technical angle before they are processed
further.
(3) Inspection of Base Hospitals, Group Centre
Hospitals once in a year. Battalion Hospitals once in
4 years.
(4) Technical head of CRPF Medical Organization.
(5) Formulation of health policies for the Force
personnel.
(6) Liaison with other head of Medical Organization
like DGHS. Army Medical authorities, Director of
State Health services to improve the standard of
CRPF Hospitals as and when required.
(7) Personal and material management concerning
Medical Branches of CRPF.
(8) Conduct of Medical Research relevant to health
condition of CRPF.
(9) Scrutiny of Health care, delivery systems of the
Force Hospitals so as to maintain quality control of
medical care.
(10) Monitoring of Health indices of the Force by
analysis of statistical data.
(11) All service matters pertaining to para-medical
staff except Gazetted ranks.
W.P.(C) No.2727/1998 Page 3 of 16
(12) Centralized recruitment to fill-up the vacancies
of para-medical staff wherever the appointing
authority finds it difficult to fill-up these vacancies.
(13) Organize training of medical and para-medical
staff in consultation with Training Branch.
(14) Documentation, planning and advise on the
prevention of epidemic diseases to troops and their
families living in various places in India.
(15) Planning and to advise on the prevention of
diseases and promotion of health of force personnel
and their families.
(16) Arrange at very short notice medical cover of
unit called for law and order duty at any place of
India.
(17) Formulate policy regarding evacuation of
casualties and its implementation.
(18) Issue of necessary guidelines and instructions
to Units in all matters concerning health of the
Force personnel and their families.
(19) Responsible for standardization of equipments
at different hospitals.
(20) Maintenance of strength register of GOs and
NGOs of hospitals, drawal of Gradation lists and
approved lists of Staff Nurses/Pharmacists/Nursing
Assistant/Ward Boy/Girls etc. as been done
presently.
(21) Any other duties assigned by the
IGP(HQRs)/Director General.
….
DUTIES OF DIRECTOR (MEDICAL)
(1) Advising the Director General of CRPF and
Sector IsGP on various policy matters affecting
medical cover to the Force.
W.P.(C) No.2727/1998 Page 4 of 16
(2) Scrutinize all proposals relating to Medical set-
up from technical angle before they are processed
further.
(3) Inspection of Base Hospitals, Group Centre
Hospitals once in a year. Battalion Hospitals once in
4 years.
(4) Technical head of CRPF Medical Organization.
(5) Formulation of health policies for the Force
personnel.
(6) Liaison with other head of Medical Organization
like DGHS. Army Medical authorities, Director of
State Health services to improve the standard of
CRPF Hospitals as and when required.
(7) Personal and material management concerning
Medical Branches of CRPF.
(8) Conduct of Medical Research relevant to health
condition of CRPF.
(9) Scrutiny of Health care, delivery systems of the
Force Hospitals so as to maintain quality control of
medical care.
(10) Monitoring of Health indices of the Force by
analysis of statistical data.
(11) All service matters pertaining to para-medical
staff except Gazetted ranks.
(12) Centralized recruitment to fill-up the vacancies
of para-medical staff wherever the appointing
authority finds it difficult to fill-up these vacancies.
(13) Organize training of medical and para-medical
staff in consultation with Training Branch.
W.P.(C) No.2727/1998 Page 5 of 16
(14) Documentation, planning and advise on the
prevention of epidemic diseases to troops and their
families living in various places in India.
(15) Planning and to advise on the prevention of
diseases and promotion of health of force personnel
and their families.
(16) Arrange at very short notice medical cover of
unit called for law and order duty at any place of
India.
(17) Formulate policy regarding evacuation of
casualties and its implementation.
(18) Issue of necessary guidelines and instructions
to Units in all matters concerning health of the
Force personnel and their families.
(19) Responsible for standardization of equipments
at different hospitals.
(20) Maintenance of strength register of GOs and
NGOs of hospitals, drawal of Gradation lists and
approved lists of Staff Nurses/Pharmacists/Nursing
Assistant/Ward Boy/Girls etc. as been done
presently.
(21) Any other duties assigned by ADG(HQ)/DG.”
6. On 03.06.1987 the petitioner got promoted to the post
of Medical Superintendent on ad-hoc basis. On 20.03.1987
the Ministry of Home Affairs, Government of India issued an
Office Order upgrading the post of Medical Superintendent
from the scale of pay `1500-2000/- to `2000-2250/-, as a
result whereof the post of Medical Superintendent became
equivalent in rank to the post of Deputy Inspector General
of Police. On 10.03.1988 the petitioner was appointed on
regular basis as Medical Superintendent. Vide Office Order
W.P.(C) No.2727/1998 Page 6 of 16
dated 03.01.1989 issued by the Ministry of Home Affairs,
Government of India the post of Medical Superintendent was
re-designated as Deputy Director (Medical).
7. On 04.03.1992, the Department of Personnel and
Training, Ministry of Personnel and Pensions, Government of
India issued an Office Memorandum regarding action to be
taken upon upgradation of posts, which Memorandum reads
as under:-
“OFFICE MEMORANDUM
Subject: – Revision of pay scale/upgradation of the
posts – Date of regular appointment of the
incumbent to the upgraded post.
The undersigned is directed to say that in the
event of revision of pay scale or upgradation of
posts the question as to what criteria should be
adopted in assessing the suitability of the
incumbents of the posts as well as the date of
appointment to the upgraded posts has been under
consideration in this deptt. In the matter of
appointments to upgraded posts, the following four
situations has been expected:-
(i) Upgradation of posts involves only a higher
replacement scale without any higher
responsibility/higher qualifications or higher
eligibility service.
(ii) Upgradation involves only higher replacement
scale without any higher responsibility but the
officers concerned have to fulfill the higher
eligibility service.
(iii) The upgradation of the posts involves higher
responsibility or higher qualifications or higher
eligibility service; andW.P.(C) No.2727/1998 Page 7 of 16
(iv) Upgradation involves change in group but
without higher qualifications (or higher eligibility
service).
2. The following criteria may be adopted in
assessing the suitability of the incumbents of the
post/deciding the date of appointment to upgraded
posts:-
1. Where the upgradation involves only a higher
replacement scale without any addl.
Responsibility/higher qualifications/higher eligibility
service the suitability of the incumbents need not
be assessed and they may be appointed to the post
with the higher replacement scale with effect from
the date notified by the Govt., giving effect to the
recommendations of the Pay Commissions or
similar bodies etc.
2. Where the upgradation involves a higher
replacement scale without higher responsibilities or
higher qualifications but with a higher eligibility
service, the incumbent need not be assessed for
their suitability but it should be ensured that they
have completed the requisite qualifying service for
appointments to the upgraded posts. In case they
had completed the qualifying service on or before
he date notified by the Govt., they may be
appointed to the upgraded post from that date in
the case of others who fulfill the qualifying service
on a later date, they should be appointed to the
upgraded post from the date on which they
complete the qualifying service. This would be
subject to the condition that irrespective of the date
of appointment, the original seniority of the
incumbent in the grade prior to upgradation will be
maintained for appointment to the upgraded post.
3. If the upgradation involves higher
responsibility or higher qualification or higher
eligibility service, the suitability of the incumbents
has to be assessed and if found suitable, they will
be appointed to the upgraded post prospectively
i.e. not earlier than the date of the U.P.S.C. is
W.P.(C) No.2727/1998 Page 8 of 16
advice later if the assessment is made by the
Departments themselves, the date of the
assessment.
4. If the upgradation involves change in the
group, but there is no higher responsibility or
(higher eligibility service) the suitability of the
incumbents has to be assessed and if found
suitable, they will be appointed to the upgraded
post from the date notified by the Govt.
3. These instructions may please be brought to
the notice of all concerned for guidance and
compliance.”
8. On 06.07.1994 Ministry of Home Affairs, Government
of India issued an Office Order regarding restructuring of
medical cadre in Central Police Organizations, the relevant
portion whereof reads as under:-
“Subject: – Restructuring of Medical Cadres of CPOs
Sir,
I am directed to say that the question
regarding restructuring the cadres of Medical
Officers of Central Police Organizations (CPOs) has
been under consideration of the Government.
Initially, the Government constituted an Inter-
Departmental Committee on the basis of
recommendations of the 4th Central Pay
Commission subsequently there has been
agreements with Medical Officers of CHS etc. Finally
there have been recommendations of the High
Powered Committee commonly known as Tikku
Committee. Keeping in view the combined effect of
all these aspects as accepted by the Government
the President is now pleased to decide that the
cadres of Medical Officers in CPOs may be
restructured on the following lines:-
(1) One post of Dy. Director (Medical) in CRPF &
BSF and Chief Medical Officer in ITBP may be
upgraded as Director (Medical) in the scale of
W.P.(C) No.2727/1998 Page 9 of 16
Rs.5900-6700. The eligibility criteria to be adopted
for promotion to this post shall be the same as in
CHS for promotion to the posts at Senior
Administrative Grade level.”
9. The position therefore would be that being promoted
as a Medical Superintendent, which post was re-designated
as Deputy Director (Medical), when cadre restructuring took
place on 6.7.1994, the post of Deputy Director (Medical)
held by the petitioner got upgraded to that of a Director
(Medical) and in the next above pay scale. It would be
highlighted by us that in CRPF there was only 1 post of
Deputy Director (Medical) and this single post obviously got
upgraded.
10. Before proceeding further, we note that the eligibility
criteria for promotion to the post of Director (Medical) in the
Central Health Services was 3 years service in the post
carrying the pay scale of `4500-5700/- or 17 years regular
service in the Central Health Services and that the petitioner
fulfilled the said eligibility criteria on the date of the
upgradation of the post of Deputy Director (Medical) to the
post of Director (Medical).
11. Thus, the position which emerged after the issuance of
the aforesaid Office Order dated 06.07.1994 was that the
single post of Medical Superintendent existing in the Medical
cadre of CRPF which has been re-designated as Deputy
Director (Medical) got upgraded to the post of Director
(Medical), which post was equivalent in rank to the Inspector
General.
12. Petitioner started making representations that since
his was the single post which was upgraded, he ought to be
W.P.(C) No.2727/1998 Page 10 of 16
placed in the upgraded scale and paid salary. The
department recommended favourably but the Ministry of
Home Affairs did not allow the same and informed CRPF that
till recruitment rules were framed for the post of Director
(Medical), the petitioner could not be upgraded. Thus, the
petitioner started discharging the duties of a Director
(Medical), there being no post of a Deputy Director
(Medical), but received salary in the lower scale. It was only
when the recruitment rules were notified and a DPC was
formally constituted that the petitioner was formally
upgraded as a Director (Medical) w.e.f. 2.1.1997.
13. Aggrieved of not being upgraded as a Director
(Medical) from the date of upgradation of the post of Deputy
Director (Medical) to the post of Director (Medical), the
petitioner made a representation to the President of India,
which representation was rejected vide order dated
05.02.1998.
14. Aggrieved by the aforesaid the present petition has
been filed praying that the petitioner be directed to be
upgraded as a Director (Medical) w.e.f. 6.7.1994.
15. During hearing of the petition, it was firstly urged by
learned counsel for the petitioner that a reading of the
Office Order dated 25.10.1985 brings out that the upgraded
post of Director (Medical) carries responsibilities identically
similar to that of the post of Medical Superintendent re-
designated as Deputy Director (Medical). Since the posts of
Director (Medical) and Deputy Director (Medical) carried
same responsibilities and the holder of the post of Deputy
Director (Medical) was required to fulfill the criteria of higher
W.P.(C) No.2727/1998 Page 11 of 16
eligibility service for being appointed to the upgraded post
of Director (Medical), the case of the petitioner falls within
the purview of para 2(2) of the Office Memorandum dated
04.03.1992 and thus there was no need to assess the
suitability of the petitioner for being promoted to the
upgraded post of Director (Medical). Secondly it was urged
by learned counsel for the petitioner that there was a single
post of Deputy Director (Medical) which was held by the
petitioner and thus on upgradation of the post of Deputy
Director (Medical) he automatically became entitled to be
promoted to the upgraded post of Director (Medical) and
there was no requirement to assess his suitability by a
Departmental Promotion Committee for such promotion.
16. Per contra, learned counsel for the respondents
argued that upgradation of a post does not automatically
entitle the holder of such post for promotion to the
upgraded post for the reason when a post is upgraded the
incumbent would not automatically be upgraded. It was
further argued that the upgraded post of Director (Medical)
carried higher responsibilities than the post of Deputy
Director (Medical) and thus it was necessary to assess the
suitability of the petitioner for being promoted to the
upgraded post of Director (Medical), as the case of the
petitioners falls within the purview of para 2(3) of the Office
Memorandum dated 04.03.1992.
17. Thus, at the heart of the controversy would be whether
it is sub-para 2 of para 2 of the Office Memorandum dated
4.3.1992 which holds the field or sub-para 3 thereof. We re-
produce the said 2 sub-paras as under:-
W.P.(C) No.2727/1998 Page 12 of 16
“2. Where the upgradation involves a higher
replacement scale without higher responsibilities or
higher qualifications but with a higher eligibility
service, the incumbent need not be assessed for
their suitability but it should be ensured that they
have completed the requisite qualifying service for
appointments to the upgraded posts. In case they
had completed the qualifying service on or before
he date notified by the Govt., they may be
appointed to the upgraded post from that date in
the case of others who fulfill the qualifying service
on a later date, they should be appointed to the
upgraded post from the date on which they
complete the qualifying service. This would be
subject to the condition that irrespective of the date
of appointment, the original seniority of the
incumbent in the grade prior to upgradation will be
maintained for appointment to the upgraded post.
3. If the upgradation involves higher
responsibility or higher qualification or higher
eligibility service, the suitability of the incumbents
has to be assessed and if found suitable, they will
be appointed to the upgraded post prospectively
i.e. not earlier than the date of the U.P.S.C. is
advice later if the assessment is made by the
Departments themselves, the date of the
assessment.”
18. This aspect of the matter need not detain us for long
inasmuch as a bare reading of the Office Order dated
25.10.1985 issued by the Directorate General Central
Reserve Police Force, Ministry of Home Affairs, Government
of India explicitly brings out that the upgraded post of
Director (Medical) carries similar responsibilities as the post
of Medical Superintendent re-designated as Deputy Director
(Medical). The only difference between the posts of Director
(Medical) and Deputy Director (Medical) is the fact that
whereas Deputy Director (Medical) was required to report to
W.P.(C) No.2727/1998 Page 13 of 16
the Inspector General since the post of Deputy Director
(Medical) was equivalent in rank to the post of Deputy
Inspector General of Police, Director (Medical) was required
to report to the Director General Police since the post of
Director (Medical) became equivalent in rank to the post of
Inspector General. That being the position, the petitioner is
right in contending that his case falls within the purview of
sub-para 2 of para 2 of the Office Memorandum dated
04.03.1992. As a necessary corollary thereof, it has to be
held that there was no need to assess the suitability of the
petitioner for being promoted to the post of Director
(Medical) and that the petitioner ought to have been
promoted to the post of Director (Medical) with effect from
the date of upgradation of the post of Deputy Director
(Medical).
19. Thus, the next question which was argued: Whether
the holder of a single post existing in a cadre automatically
becomes entitled to be appointed to the upgraded post on
the upgradation of the post held by him or whether his
suitability needs to be assessed before his being appointed
to the upgraded post becomes academic but we would note
that there is a decision of a learned Single Judge of this
Court reported as Jaswinder Singh (Col.) v Union of India 86
(2000) DLT 451 wherein we find the contention being urged
in relation to a single post being upgraded, but not decided.
The facts of the said case were that in order to overcome
the stagnation in higher ranks and to improve the career
prospects of service officers in the Army, the Government
had ordered a Cadre Review in the year 1979, in which 125
W.P.(C) No.2727/1998 Page 14 of 16
additional posts of Brigadier were created by upgrading
certain posts of Lt. Colonel/Colonel. The post of Director
Pioneer Corps which was held by the petitioner therein was
one of the posts accepted by the Government for
upgradation Colonel to Brigadier. After the upgradation of
the post held by the petitioner a Selection Board was
constituted which considered the case of the petitioner for
promotion to the post of Brigadier but the petitioner was not
recommended for promotion. Aggrieved thereof, the
petitioner therein filed a petition under Article 226 of the
Constitution of India which was decided by a learned Single
Judge of this Court. One of the arguments raised by the
petitioner therein before the learned Single Judge was that
the post held by him being a single post, on upgradation of
the said post he automatically became entitled to be
appointed to the upgraded post, which contention was not
dealt by the learned Single Judge; the writ petition being
decided that the rules for the post prescribed a criteria for
selection which ought to have been followed and was rightly
followed.
20. But we would observe that prima facie we find
considerable logic in the first argument advanced by the
learned counsel for the petitioner. Upgradation of a post
results in a post in the lower scale being upgraded to the
higher i.e. at the lower scale the post ceases to exist and
finds itself born in the upgraded scale. If there is only one
post which is upgraded, it is apparent that the post in
question loses its existence in the lower scale and finds its
existence in the higher scale. In such a situation what
W.P.(C) No.2727/1998 Page 15 of 16
would happen to the holder of the post if he is not to be
promoted to the upgraded post? The post which he was
holding no longer exists and since he cannot be thrown out,
it could well be argued that the logic demands that he
moves along with the post concurrently and not
disjunctively. Be that as it may, we leave this question
open, to be decided in an appropriate case.
21. In view of the above discussion, the present petition is
allowed. The respondents are directed to grant promotion to
the petitioner to the upgraded post of Director (Medical)
with effect from the date of upgradation of the post of
Deputy Director (Medical) i.e. 06.07.1994. The salary of the
petitioner be re-worked out and arrears paid within a period
of 8 weeks from today.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 05, 2011
mm
W.P.(C) No.2727/1998 Page 16 of 16