JUDGMENT
Mukul Mudgal, J.
1. Rule DB. With the consent of the learned Counsel for the parties, this writ petition is taken up for final hearing. This writ petition challenges the order of the Central Administrative Tribunal (CAT) dated 25th April 2005 rejecting the O.A.1463/2004 filed by the petitioner. The petitioner herein has been working on the post of Deputy Drugs Controller since 1986 in the Ministry of Health & Family Welfare (hereinafter referred to as “MHFW”). The petitioner is Non Medical Scientist in the Department of Directorate General Health Services (hereinafter referred to as “DGHS”) under the MHFW and was aggrieved by the fact that even though he was inducted into the service by direct recruitment through a rigorous process of selection conducted by UPSC, there was no promotion avenues, when compared with the Non Medical Scientists, employed in other departments of Government of India such as ICMR, AIIMS, or PGI, Chandigarh. Consequently, Dr. O.Z. Hussain, the president of the National Council of Bio-Medical Scientists, filed a Writ Petition in the Hon’ble Supreme Court titled as Dr. Ms. O.Z. Hussain v. Union of India 1990 (suppl) SCC 688, under Article 32 of the Constitution of India. The said writ petition was disposed of by the Hon’ble Supreme Court on 15th November, 1989. The relevant portion of the said judgment reads as follows:
…7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical ‘A’ Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. IN a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of the Directorate.
8. This writ petition is allowed and the following directions are issued:
(1) Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall framed a set of appropriate rules, inter alia, providing suitable promotional avenue for the ‘A’ Group scientists in the non-medical wing of the establishment of Director General of Health Services;
(2) These ‘A’ Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. April 1, 1989.
(3) Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.
2. The above directions mandated framing of rules within four months from the date of the judgment delivered on 15th November, 1989 but the rules were framed by the respondents only on 28th November, 1990. Even though rules were formulated, the petitioner got no succour as he was not given the benefit of in-situ promotion as mandated by rules till 2003 even though the vacancy was of the year 1995. The relevant rules under the Department of Health (Group ‘A’ Gazetted Non Medical Scientific and Technical Posts) in Situ Promotion Rules, 1990 (hereinafter referred to as the “Rules”) necessary for the determination of the writ petition, framed pursuant to the mandamus issued by the Hon’ble Supreme Court, read as under:
In Situ promotion” means personal promotion of a candidate holding any post in Annexure II from the existing Scientist Level to the next higher Scientist Level without any change in the post or in the designation thereof.
5. Constitution of Department Assessment Board – There shall be constituted a Departmental Assessment Board for considering a Departmental Assessment Board for considering in situ promotion. Situ Promotion of all eligible candidates consisting of the following persons namely:
(a) Chairman or Member of the Commission. – Chairman.
(b) Secretary of the Department or an officer nominated by the Secretary not below the rank of Joint Secretary. – Member.
(c) Not more than two experts in the respective specialty from outside the Department nominated by the Commission – Member(s).
(d) One person from the Department who shall be a non-medical scientists to be nominated by the Secretary of the Department and who shall be at least one level above the grade for which in Situ Promotion is to be considered. – Member.
6. Preparation of List – The Department shall prepare a list of candidates who fulfilll the qualifications specified in Annexure I and who have completed or who will complete five years’ regular continuous service on the first day of April or the first day of October, as the case may be, in a post referred to in Annexure II and forward it to the Departmental Assessment Board, before every meeting of the Board referred to in Rule 7.
7. Review by the Departmental Assessment Board for In Situ Promotion – (1) The Departmental Assessment Board shall –
(a) Meet twice in the months of January and July and;
(b)Take into consideration the efficiency and overall performance of a candidate as reflected in his annual confidential reports and if deemed necessary by interview and the Assessment Board may at their discretion, consider in absentia the candidature of such officer(s) who are unable to present themselves for the interview and shall draw up a list of officers who are assessed as fit for in Situ Promotion to the next higher grade in accordance with the provisions of rule 8 and recommend to the Central Government accordingly.
9. Upgradation on promotion – Where an officer is promoted under these rules, the grade of the post immediately held by him shall stand upgraded to the next higher level to which he has been promoted and shall revert to the original level on the vacation of it by the officer holding it:
Provided that where an officer is promoted further to higher levels in the course of time, the grade of the post shall continue to be upgraded to the level to which he has been promoted as personal to him and shall revert back to the level of original recruitment to the post, i.e., level 1,2,3 or 4 as shown in the column 4 of Annexure-II.
3. The above rules thus clearly indicate that as per Rule 7 (a) and (b), the Departmental Assessment Board (hereinafter referred to as the “DAB”) was required to meet twice in the months of January and July every year and required to draw up the list of officers assessed for in-situ promotion to the next higher grade. Rule 9 clearly indicates that where any officer is promoted under these rules the grade of the officer immediately held by him shall stand upgraded to the next higher level to which he was promoted. Thus, the above rules clearly reflect the rationale of the judgment of the Hon’ble Supreme Court in the case of Dr. Ms. Hussain (supra) and are intended to redress promptly the grievance of the petitioner which occurred due to stagnation to the deserving candidates. The very fact that Rule 7 (a) & (b) of the Rules require that DAB for in-situ promotion is required to meet twice a year is sufficiently indicative of the fact that these upgradation had to be done at least twice a year. In spite of the fact that the above Rules indicated a timely appraisal and a consequent benefit subsequent to such appraisal, the benefit was transmitted to the petitioner only in the year 2003. The CAT while considering the above question has detailed the following observations on the issue of promotion:
20. Lastly, we may also refer with advantage to a decision of the Supreme Court in the case of Indian Council for Agricultural Research v. Satish Kumar and Anr. . The Supreme Court held:
15. … Moreover, no question of promotion as such involved. Any Scientist of S-I grade having 12 years’ service could go to the next higher grade irrespective of the fact that there is nay vacancy in the higher grade or not. Of course, he cannot pick up the higher grade merely on completion of 12 years’ service and his work has to be assessed. It is also not the case of the respondent that any Scientist had been treated differently than him after 1.1.1986….
From the aforesaid, it is clear that in normal circumstances, promotion means advancement to the next post in the hierarchy, which would only mean promotion when it is higher pay scale or a higher post. It is a different matter that the Scheme by itself prescribes that it is not a promotion and a financial upgradation only. In the present case before us, we have already referred to the Scheme that has been framed. It shows clearly that it is a promotion to a higher scale even if it be taken that no specific post has been created.
4. However, on the cardinal issue of delay the CAT has only held as under:
21. It is not a case of malafides because respondents have expalined that promotion from SL-IV to SL-V is vacancy based. They were floated posts which were manned by SL-IV officers. They started the process but it took unusually long time to compile the documents, i.e., two and a half years. The name was sent to the UPSC in November, 2000. The meeting of the Departmental Assessment Board was held on 5.6.2002, and thereafter the file was submitted to the ACC. On receipt of the approval, the appointment orders were issued.
22. It is true that there has been a delay but in the absence of any malafides or any other extraneous factors, we find that promotion could only be given prospectively. The same has been so done.
5. In our view, the above judgment of the CAT indicates that the issue of delay particularly, in the light of in-situ upgradation has been unfortunately linked with the normal promotion sought to be done in DPC meeting by the CAT as is evident from paragraph 20 of the impugned judgment. In our view, aspects which govern a meeting of a DPC and promotion subsequent thereto are not necessarily attracted when in-situ upgradation was involved, particularly in accordance with the Rules which we have extracted above. In our view, the CAT’s judgment has failed to properly address the main issue of unexplained delay and in spite of finding that there was delay no justification was found for such delay. Even if malafide is absent, indifference and unexplained delay could unfairly and adversely affect an employee as in the present case.
6. Mr. Rajesh Katyal, the learned Counsel for the respondents, in order to explain the delay, has relied upon the judgment of the Hon’ble Supreme Court in K. Madhavan and Anr. v. Union of India and Ors. . The relevant portion of this judgment reads as follows:
15. There be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala-fide cancelled without any reasonable justification therefore to the prejudice of an employee and he is not considered for promotion to a higher post, the Government in a suitable case can do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. But, if the cancellation or postponement of the meeting of the DPC is not arbitrary and is supported by good reasons, the employee concerned can have no grievance and the Government will not be justified in appointing the employee to the higher post with retrospective effect. An employee may become eligible for an appointment to such post as a matter of right.
7. In the above judgment, the Hon’ble Supreme Court has clearly held that where any DPC scheduled to be held is arbitrarily or mala-fide cancelled without any reasonable justification, the Government can suitably do justice to such an employee by granting him promotion or appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. The Hon’ble Supreme Court also held in the above judgment that if the cancellation of the meeting of the DPC is not arbitrary and is supported by good reasons, then no grievance can be raised by an employee. In our view, the aforesaid judgment would not ipso-facto apply to the present case because this is not a case where under Rule 7(a) DPC was required to meet at least twice a year. Furthermore, for the in-situ upgradation for the vacancy of 1995 the petitioner has been fully found fit though belatedly in the year 2003. Merely, because the Departmental Assessment Board mandated by Rule 7 to meet twice every year does not do so cannot be a ground to deny a legitimate upgradation earned by the petitioner and similarly situated scientists by the judgment of the Hon’ble Supreme Court dated 15th November, 1989. Accordingly, this judgment cannot be applied, in fact, a part of it leads us to hold that the Departmental Assessment Boards were unfairly delayed without any reasonable justification to deny in-situ promotion right from 1995.
8. In considering the above plea, Mr. Shakdhar, the learned Senior Counsel for the petitioner has relied upon the letter sent by the Respondent No. 3 MHFW, which supported the petitioner’s stand by issuing O.M. dated 16th September, 2002 in the following terms:
No. 32012/8/97-CHS-VI
GOVERNMENT OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
(DEPARTMENT OF HEALTH)
NIRMAN BHAVAN,
NEW DELHI
DATE SEPTEMBER 16, 2002
OFFICE MEMORANDUM
Subject: In-situ Promotion of Group ‘A’ Gazetted Non-Medical Scientists working under the Ministry of Health & Family Welfare/Dte.GHS to Scientists level-V Posts (Rs.18,400-22,400)
The undersigned is directed to forward herewith a proposal in the prescribed proforma for appointment of six Non-Medical Scientists of S-IV level (Rs.14,300-18,300) to S-V level (Rs.18,400-22,400)(one for the vacancy for the year 1995-96, three for vacancies for the year 1996-97, one for the vacancy for the year 1997-98 and one for vacancy carried forward from 1997-98 to 1998-99) on In-Situ Promotion basis.
2. The Union Public Service Commission in their letter No. F 1/90(9)/99-AP-I dated 12.6.2002 (copy enclosed at Annexure-V)have recommended the following officers for In-situ Promotion for level-V on the basis of their assessment by the Departmental Assessment Board.
PANEL FOR 1995-96 (1 VACANCY)
(i) Shri Ashwani Kumar, C.D.S.C.O., Dte. GHS.
PANEL FOR 1996-97 (3 VACANCIES)
(i) Dr. Ajit Sahai, JIPMER, Pondicherry.
(ii) Dr. S. R. Gupta, CDSCO, Dte. GHS.
(iii) Dr.R. L. Yadav, NAMP, Delhi (since retired w.e.f. 31.7.1997)
PANEL FOR 1997-98 (2 VACANCIES)
(i) Professor A. Majumdar, AIIH & PH, Kolkata.
PANEL FOR 1998-99 (1 VACANCY CARRIED FORWARD FROM 1997-98)
(i) Dr. R. Sundaresan, JIPMER, Pondicherry, (Taken volunatry retirement w.e.f. 1.8.2001)
3. The Ministry of Health and Family Welfare has approved the promotion of the above-mentioned 6 officers to S-V level effective from 1st October of the vacancy year.
4. It is confirmed that though these posts pertained to the years 1995-96 to 1997-98 but never remained vacant as these are floating posts and were manned by S-IV level officers.
5. It is also confirmed that no vigilance proceedings are either pending or contemplated against any of the 6 officers whose names have been recommended for promotion to S-V level.
6. It is requested that the approval of the Appointments Committee of the Cabinet to the in-Situ Promotion of above mentioned 6 officers to S-V level (Rs.18,400-22,400) from the cut off date of eligibility, i.e., 1st October of the panel year may kindly be obtained and communicated to this Ministry at an early date. In this connection is is mentioned that earlier also retrospective effect to these promotions was allowed during 1996. A copy of Department of Personnel and Training letter No. 5/12/96-EO (SM II) dated 24.10.1996 in this connection is enclosed (Annexure-IX) for ready reference.
7. The ACR dossiers of all the 11 officers are also enclosed for kind perusal and return.
(B.P. SHARMA)
JOINT SECRETARY TO THE GOVT. OF INDIA
9. The above letter, in our view, clear and correctly redressed the grievance raised by the petitioner and paragraph 6 of the above letter indeed reflects the intent of the Rules and the mandate laid down by the Hon’ble Supreme Court in Dr. O. Z. Husain’s case(supra). In our view, Department Assessment Board was required to meet twice a year as per Rule 7 and because the petitioner was the only claimant and no question of inter-se seniority involved and detailed explanation sought to be given by the respondent as expressed in the counter affidavit merely indicates the movement of files between various sections and has several gaps and no proper and rational explanation is coming forth for the inordinate delay of 8 years. Accordingly, we are of the view that the judgment of the CAT cannot be sustained and mandamus must issue to the respondents to enforce the Office Memorandum dated 16th September, 2002 issued by the Respondent No. 3 MHFW in terms of the mandate as enunciated in para 6 of the judgment of the Hon’ble Supreme Court in Dr. O.Z. Husssain’s case (supra), which reads as under:
This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have th benefit of promotion, the non-medical ‘A’ Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have the obligation of the Ministry of Health to attend representations of the Council and its members and provide promotional avenue for this category of office. It is therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of the Directorate.
10. The above mandamus shall be carried out and all benefits accruing under the O.M. dated 16th September, 2002 shall be granted to the petitioner on or before 15th May 2007. Accordingly, the writ petition stands disposed of along with CM 12138/2005.