{"id":243864,"date":"2011-08-05T00:00:00","date_gmt":"2011-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-k-k-saini-vs-uoi-ors-on-5-august-2011"},"modified":"2015-08-08T06:04:39","modified_gmt":"2015-08-08T00:34:39","slug":"dr-k-k-saini-vs-uoi-ors-on-5-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-k-k-saini-vs-uoi-ors-on-5-august-2011","title":{"rendered":"Dr.K.K.Saini vs Uoi & Ors. on 5 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Dr.K.K.Saini vs Uoi & Ors. on 5 August, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                    Judgment Reserved On: 13 July, 2011\n                     Judgment Delivered On: 05 August, 2011\n\n+                          W.P.(C) 2727\/1998\n\n        DR.K.K.SAINI                         ..... Petitioner\n                  Through: Mr.R.K.Saini, Advocate\n                  ..\n                            versus\n\n        UOI & ORS.                            .....Respondents\n                  Through: Ms. Jyoti Singh, Senior Advocate\n                           with Mr.Amandeep Joshi, Advocate\n                           and Mr.Vijay Raut from CRPF\n\n         CORAM:\n         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n         HON'BLE MR. JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the\n        Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      Shorn of unnecessary details, the facts leading to the
\nfiling of the present petition are that till the year 1978 the
\nhierarchical structure of the medical cadre in Central Police
\nReserve Force (herein after referred to as \u201eCRPF\u201f) was as
\nfollows: –\n<\/p>\n
                           Chief Medical Officer
\n                                      I
\n                           Senior Medical Officer
\n                                      I<\/p>\n
    W.P.(C) No.2727\/1998                               Page 1 of 16<\/span>
\n                    General Duty Medical Officer (Grade I)
\n                                      I
\n                   General Duty Officer (Grade II)
\n                                      I
\n                           Junior Medical Officer\n<\/p><\/blockquote>\n
2.    The petitioner joined CRPF as a Junior Medical Officer
\nin the year 1972 and earned promotions from time to time.\n<\/p>\n
3.    Pursuant to an advertisement issued by CRPF for direct
\nrecruitment to the post of Senior Medical Officer, the
\npetitioner applied and was selected and hence appointed as
\na Senior Medical Officer. In due course of time he earned
\npromotion to the post of Chief Medical Officer.\n<\/p>\n
4.    In the year 1978 the Central Government created a
\nsingle post of Medical Superintendent in the scale of pay
\n`1500-2000\/- in the medical cadre of CRPF, which post was
\nequivalent in rank to the post of Deputy Inspector General
\nPolice.    The    feeder     post    to     the   post   of     Medical
\nSuperintendent was the post of Chief Medical Officer.\n<\/p>\n
5.    On     25.10.1985,     The    Directorate     General     Central
\nReserve Police Force, Ministry of Home Affairs, Government
\nof India issued an Office Order prescribing the duties of the
\nincumbents appointed to the various posts of Medical
\nSuperintendent and Director (Medical), the relevant portion
\nwhereof reads as under:-\n<\/p>\n
                              “Section-II<\/p>\n
                     Duties of Gazetted Officers<\/p>\n
          Duties of Medical Superintendent at Dte. General<\/p>\n
  W.P.(C) No.2727\/1998                                        Page 2 of 16<\/span>\n<\/p><\/blockquote>\n
     13. (A) The Medical Superintendent is the technical
\n    head of CRPF Medical Organization and will perform
\n    the following duties:-\n<\/p><\/blockquote>\n
    (1) Advising the Director General of CRPF and
\n    Sector IsGP on various policy matters affecting
\n    medical cover to the Force.\n<\/p><\/blockquote>\n
    (2) Scrutinize all proposals relating to Medical set-
\n    up from technical angle before they are processed
\n    further.\n<\/p><\/blockquote>\n
    (3) Inspection of Base Hospitals, Group Centre
\n    Hospitals once in a year. Battalion Hospitals once in
\n    4 years.\n<\/p><\/blockquote>\n
    (4) Technical head of CRPF Medical Organization.\n<\/p><\/blockquote>\n
    (5) Formulation of health policies for the Force
\n    personnel.\n<\/p><\/blockquote>\n
    (6) Liaison with other head of Medical Organization
\n    like DGHS. Army Medical authorities, Director of
\n    State Health services to improve the standard of
\n    CRPF Hospitals as and when required.\n<\/p><\/blockquote>\n
    (7) Personal and material management concerning
\n    Medical Branches of CRPF.\n<\/p><\/blockquote>\n
    (8) Conduct of Medical Research relevant to health
\n    condition of CRPF.\n<\/p><\/blockquote>\n
    (9) Scrutiny of Health care, delivery systems of the
\n    Force Hospitals so as to maintain quality control of
\n    medical care.\n<\/p><\/blockquote>\n
    (10) Monitoring of Health indices of the Force by
\n    analysis of statistical data.\n<\/p><\/blockquote>\n
    (11) All service matters pertaining to para-medical
\n    staff except Gazetted ranks.\n<\/p><\/blockquote>\n
W.P.(C) No.2727\/1998                              Page 3 of 16<\/span><\/p>\n
     (12) Centralized recruitment to fill-up the vacancies
\n    of para-medical staff wherever the appointing
\n    authority finds it difficult to fill-up these vacancies.\n<\/p><\/blockquote>\n
    (13) Organize training of medical and para-medical
\n    staff in consultation with Training Branch.\n<\/p><\/blockquote>\n
    (14) Documentation, planning and advise on the
\n    prevention of epidemic diseases to troops and their
\n    families living in various places in India.\n<\/p><\/blockquote>\n
    (15) Planning and to advise on the prevention of
\n    diseases and promotion of health of force personnel
\n    and their families.\n<\/p><\/blockquote>\n
    (16) Arrange at very short notice medical cover of
\n    unit called for law and order duty at any place of
\n    India.\n<\/p><\/blockquote>\n
    (17) Formulate policy regarding evacuation of
\n    casualties and its implementation.\n<\/p><\/blockquote>\n
    (18) Issue of necessary guidelines and instructions
\n    to Units in all matters concerning health of the
\n    Force personnel and their families.\n<\/p><\/blockquote>\n
    (19) Responsible for standardization of equipments
\n    at different hospitals.\n<\/p><\/blockquote>\n
    (20) Maintenance of strength register of GOs and
\n    NGOs of hospitals, drawal of Gradation lists and
\n    approved lists of Staff Nurses\/Pharmacists\/Nursing
\n    Assistant\/Ward Boy\/Girls etc. as been done
\n    presently.\n<\/p><\/blockquote>\n
    (21)  Any    other   duties      assigned     by      the
\n    IGP(HQRs)\/Director General.\n<\/p><\/blockquote>\n
    ….\n<\/p><\/blockquote>\n
               DUTIES OF DIRECTOR (MEDICAL)<\/p>\n
    (1) Advising the Director General of CRPF and
\n    Sector IsGP on various policy matters affecting
\n    medical cover to the Force.\n<\/p><\/blockquote>\n
W.P.(C) No.2727\/1998                                   Page 4 of 16<\/span><\/p>\n
     (2) Scrutinize all proposals relating to Medical set-
\n    up from technical angle before they are processed
\n    further.\n<\/p><\/blockquote>\n
    (3) Inspection of Base Hospitals, Group Centre
\n    Hospitals once in a year. Battalion Hospitals once in
\n    4 years.\n<\/p><\/blockquote>\n
    (4) Technical head of CRPF Medical Organization.\n<\/p><\/blockquote>\n
    (5) Formulation of health policies for the Force
\n    personnel.\n<\/p><\/blockquote>\n
    (6) Liaison with other head of Medical Organization
\n    like DGHS. Army Medical authorities, Director of
\n    State Health services to improve the standard of
\n    CRPF Hospitals as and when required.\n<\/p><\/blockquote>\n
    (7) Personal and material management concerning
\n    Medical Branches of CRPF.\n<\/p><\/blockquote>\n
    (8) Conduct of Medical Research relevant to health
\n    condition of CRPF.\n<\/p><\/blockquote>\n
    (9) Scrutiny of Health care, delivery systems of the
\n    Force Hospitals so as to maintain quality control of
\n    medical care.\n<\/p><\/blockquote>\n
    (10) Monitoring of Health indices of the Force by
\n    analysis of statistical data.\n<\/p><\/blockquote>\n
    (11) All service matters pertaining to para-medical
\n    staff except Gazetted ranks.\n<\/p><\/blockquote>\n
    (12) Centralized recruitment to fill-up the vacancies
\n    of para-medical staff wherever the appointing
\n    authority finds it difficult to fill-up these vacancies.\n<\/p><\/blockquote>\n
    (13) Organize training of medical and para-medical
\n    staff in consultation with Training Branch.\n<\/p><\/blockquote>\n
W.P.(C) No.2727\/1998                                 Page 5 of 16<\/span><\/p>\n
      (14) Documentation, planning and advise on the
\n     prevention of epidemic diseases to troops and their
\n     families living in various places in India.\n<\/p><\/blockquote>\n
     (15) Planning and to advise on the prevention of
\n     diseases and promotion of health of force personnel
\n     and their families.\n<\/p><\/blockquote>\n
     (16) Arrange at very short notice medical cover of
\n     unit called for law and order duty at any place of
\n     India.\n<\/p><\/blockquote>\n
     (17) Formulate policy regarding evacuation of
\n     casualties and its implementation.\n<\/p><\/blockquote>\n
     (18) Issue of necessary guidelines and instructions
\n     to Units in all matters concerning health of the
\n     Force personnel and their families.\n<\/p><\/blockquote>\n
     (19) Responsible for standardization of equipments
\n     at different hospitals.\n<\/p><\/blockquote>\n
     (20) Maintenance of strength register of GOs and
\n     NGOs of hospitals, drawal of Gradation lists and
\n     approved lists of Staff Nurses\/Pharmacists\/Nursing
\n     Assistant\/Ward Boy\/Girls etc. as been done
\n     presently.\n<\/p><\/blockquote>\n
     (21) Any other duties assigned by ADG(HQ)\/DG.”\n<\/p><\/blockquote>\n
6.   On 03.06.1987 the petitioner got promoted to the post
\nof Medical Superintendent on ad-hoc basis. On 20.03.1987
\nthe Ministry of Home Affairs, Government of India issued an
\nOffice Order upgrading the post of Medical Superintendent
\nfrom the scale of pay `1500-2000\/- to `2000-2250\/-, as a
\nresult whereof the post of Medical Superintendent became
\nequivalent in rank to the post of Deputy Inspector General
\nof Police. On 10.03.1988 the petitioner was appointed on
\nregular basis as Medical Superintendent. Vide Office Order<\/p>\n
 W.P.(C) No.2727\/1998                             Page 6 of 16<\/span>
\n dated 03.01.1989 issued by the Ministry of Home Affairs,
\nGovernment of India the post of Medical Superintendent was
\nre-designated as Deputy Director (Medical).\n<\/p>\n
7.   On 04.03.1992, the Department of Personnel and
\nTraining, Ministry of Personnel and Pensions, Government of
\nIndia issued an Office Memorandum regarding action to be
\ntaken upon upgradation of posts, which Memorandum reads
\nas under:-\n<\/p>\n
                        “OFFICE MEMORANDUM<\/p>\n
     Subject: – Revision of pay scale\/upgradation of the
\n     posts – Date of regular appointment of the
\n     incumbent to the upgraded post.\n<\/p><\/blockquote>\n
           The undersigned is directed to say that in the
\n     event of revision of pay scale or upgradation of
\n     posts the question as to what criteria should be
\n     adopted in assessing the suitability of the
\n     incumbents of the posts as well as the date of
\n     appointment to the upgraded posts has been under
\n     consideration in this deptt. In the matter of
\n     appointments to upgraded posts, the following four
\n     situations has been expected:-\n<\/p><\/blockquote>\n
     (i)   Upgradation of posts involves only a higher
\n     replacement        scale   without      any  higher
\n     responsibility\/higher    qualifications   or higher
\n     eligibility service.\n<\/p><\/blockquote>\n
     (ii) Upgradation involves only higher replacement
\n     scale without any higher responsibility but the
\n     officers concerned have to fulfill the higher
\n     eligibility service.\n<\/p><\/blockquote>\n
     (iii) The upgradation of the posts involves higher
\n     responsibility or higher qualifications or higher
\n     eligibility service; and<\/p>\n
 W.P.(C) No.2727\/1998                             Page 7 of 16<\/span>\n<\/p><\/blockquote>\n
     (iv) Upgradation involves change in group but
\n    without higher qualifications (or higher eligibility
\n    service).\n<\/p><\/blockquote>\n
    2.   The following criteria may be adopted in
\n    assessing the suitability of the incumbents of the
\n    post\/deciding the date of appointment to upgraded
\n    posts:-\n<\/p><\/blockquote>\n
    1.    Where the upgradation involves only a higher
\n    replacement       scale     without     any      addl.
\n    Responsibility\/higher qualifications\/higher eligibility
\n    service the suitability of the incumbents need not
\n    be assessed and they may be appointed to the post
\n    with the higher replacement scale with effect from
\n    the date notified by the Govt., giving effect to the
\n    recommendations of the Pay Commissions or
\n    similar bodies etc.<\/p>\n<\/blockquote>\n
    2.    Where the upgradation involves a higher
\n    replacement scale without higher responsibilities or
\n    higher qualifications but with a higher eligibility
\n    service, the incumbent need not be assessed for
\n    their suitability but it should be ensured that they
\n    have completed the requisite qualifying service for
\n    appointments to the upgraded posts. In case they
\n    had completed the qualifying service on or before
\n    he date notified by the Govt., they may be
\n    appointed to the upgraded post from that date in
\n    the case of others who fulfill the qualifying service
\n    on a later date, they should be appointed to the
\n    upgraded post from the date on which they
\n    complete the qualifying service. This would be
\n    subject to the condition that irrespective of the date
\n    of appointment, the original seniority of the
\n    incumbent in the grade prior to upgradation will be
\n    maintained for appointment to the upgraded post.\n<\/p><\/blockquote>\n
    3.    If     the    upgradation      involves    higher
\n    responsibility or higher qualification or higher
\n    eligibility service, the suitability of the incumbents
\n    has to be assessed and if found suitable, they will
\n    be appointed to the upgraded post prospectively
\n    i.e. not earlier than the date of the U.P.S.C. is
\nW.P.(C) No.2727\/1998                                Page 8 of 16<\/span>
\n      advice later if the assessment is made by the
\n     Departments themselves, the date of the
\n     assessment.\n<\/p><\/blockquote>\n
     4.    If the upgradation involves change in the
\n     group, but there is no higher responsibility or
\n     (higher eligibility service) the suitability of the
\n     incumbents has to be assessed and if found
\n     suitable, they will be appointed to the upgraded
\n     post from the date notified by the Govt.\n<\/p><\/blockquote>\n
     3.  These instructions may please be brought to
\n     the notice of all concerned for guidance and
\n     compliance.”\n<\/p><\/blockquote>\n
8.   On 06.07.1994 Ministry of Home Affairs, Government
\nof India issued an Office Order regarding restructuring of
\nmedical cadre in Central Police Organizations, the relevant
\nportion whereof reads as under:-\n<\/p>\n
     “Subject: – Restructuring of Medical Cadres of CPOs
\n     Sir,
\n            I am directed to say that the question
\n     regarding restructuring the cadres of Medical
\n     Officers of Central Police Organizations (CPOs) has
\n     been under consideration of the Government.
\n     Initially, the Government constituted an Inter-
\n     Departmental Committee on the basis of
\n     recommendations      of    the    4th  Central  Pay
\n     Commission     subsequently      there   has   been
\n     agreements with Medical Officers of CHS etc. Finally
\n     there have been recommendations of the High
\n     Powered Committee commonly known as Tikku
\n     Committee. Keeping in view the combined effect of
\n     all these aspects as accepted by the Government
\n     the President is now pleased to decide that the
\n     cadres of Medical Officers in CPOs may be
\n     restructured on the following lines:-\n<\/p><\/blockquote>\n
     (1) One post of Dy. Director (Medical) in CRPF &
\n     BSF and Chief Medical Officer in ITBP may be
\n     upgraded as Director (Medical) in the scale of
\n W.P.(C) No.2727\/1998                             Page 9 of 16<\/span>
\n       Rs.5900-6700. The eligibility criteria to be adopted
\n      for promotion to this post shall be the same as in
\n      CHS for promotion to the posts at Senior
\n      Administrative Grade level.”\n<\/p><\/blockquote>\n
9.    The position therefore would be that being promoted
\nas a Medical Superintendent, which post was re-designated
\nas Deputy Director (Medical), when cadre restructuring took
\nplace on 6.7.1994, the post of Deputy Director (Medical)
\nheld by the petitioner got upgraded to that of a Director
\n(Medical) and in the next above pay scale.        It would be
\nhighlighted by us that in CRPF there was only 1 post of
\nDeputy Director (Medical) and this single post obviously got
\nupgraded.\n<\/p>\n
10.   Before proceeding further, we note that the eligibility
\ncriteria for promotion to the post of Director (Medical) in the
\nCentral Health Services was 3 years service in the post
\ncarrying the pay scale of `4500-5700\/- or 17 years regular
\nservice in the Central Health Services and that the petitioner
\nfulfilled the said eligibility criteria on the date of the
\nupgradation of the post of Deputy Director (Medical) to the
\npost of Director (Medical).\n<\/p>\n
11.   Thus, the position which emerged after the issuance of
\nthe aforesaid Office Order dated 06.07.1994 was that the
\nsingle post of Medical Superintendent existing in the Medical
\ncadre of CRPF which has been re-designated as Deputy
\nDirector (Medical) got upgraded to the post of Director
\n(Medical), which post was equivalent in rank to the Inspector
\nGeneral.\n<\/p>\n
12.   Petitioner started making representations that since
\nhis was the single post which was upgraded, he ought to be<\/p>\n
 W.P.(C) No.2727\/1998                               Page 10 of 16<\/span>
\n placed in the upgraded scale and paid salary.                     The
\ndepartment recommended favourably but the Ministry of
\nHome Affairs did not allow the same and informed CRPF that
\ntill recruitment rules were framed for the post of Director
\n(Medical), the petitioner could not be upgraded. Thus, the
\npetitioner started discharging the duties of a Director
\n(Medical), there being no post of a Deputy Director
\n(Medical), but received salary in the lower scale. It was only
\nwhen the recruitment rules were notified and a DPC was
\nformally   constituted    that   the   petitioner   was     formally
\nupgraded as a Director (Medical) w.e.f. 2.1.1997.\n<\/p>\n
13.   Aggrieved of not being upgraded as a Director
\n(Medical) from the date of upgradation of the post of Deputy
\nDirector (Medical) to the post of Director (Medical), the
\npetitioner made a representation to the President of India,
\nwhich    representation    was    rejected   vide   order      dated
\n05.02.1998.\n<\/p>\n
14.   Aggrieved by the aforesaid the present petition has
\nbeen filed praying that the petitioner be directed to be
\nupgraded as a Director (Medical) w.e.f. 6.7.1994.\n<\/p>\n
15.   During hearing of the petition, it was firstly urged by
\nlearned counsel for the petitioner that a reading of the
\nOffice Order dated 25.10.1985 brings out that the upgraded
\npost of Director (Medical) carries responsibilities identically
\nsimilar to that of the post of Medical Superintendent re-
\ndesignated as Deputy Director (Medical). Since the posts of
\nDirector (Medical) and Deputy Director (Medical) carried
\nsame responsibilities and the holder of the post of Deputy
\nDirector (Medical) was required to fulfill the criteria of higher<\/p>\n
 W.P.(C) No.2727\/1998                                     Page 11 of 16<\/span>
\n eligibility service for being appointed to the upgraded post
\nof Director (Medical), the case of the petitioner falls within
\nthe purview of para 2(2) of the Office Memorandum dated
\n04.03.1992 and thus there was no need to assess the
\nsuitability of the petitioner for being promoted to the
\nupgraded post of Director (Medical). Secondly it was urged
\nby learned counsel for the petitioner that there was a single
\npost of Deputy Director (Medical) which was held by the
\npetitioner and thus on upgradation of the post of Deputy
\nDirector (Medical) he automatically became entitled to be
\npromoted to the upgraded post of Director (Medical) and
\nthere was no requirement to assess his suitability by a
\nDepartmental Promotion Committee for such promotion.\n<\/p>\n
16.   Per contra, learned counsel for the respondents
\nargued that upgradation of a post does not automatically
\nentitle the holder of such post for promotion to the
\nupgraded post for the reason when a post is upgraded the
\nincumbent would not automatically be upgraded.          It was
\nfurther argued that the upgraded post of Director (Medical)
\ncarried higher responsibilities than the post of Deputy
\nDirector (Medical) and thus it was necessary to assess the
\nsuitability of the petitioner for being promoted to the
\nupgraded post of Director (Medical), as the case of the
\npetitioners falls within the purview of para 2(3) of the Office
\nMemorandum dated 04.03.1992.\n<\/p>\n
17.   Thus, at the heart of the controversy would be whether
\nit is sub-para 2 of para 2 of the Office Memorandum dated
\n4.3.1992 which holds the field or sub-para 3 thereof. We re-
\nproduce the said 2 sub-paras as under:-\n<\/p>\n
W.P.(C) No.2727\/1998                                Page 12 of 16<\/span><\/p>\n
       “2. Where the upgradation involves a higher
\n      replacement scale without higher responsibilities or
\n      higher qualifications but with a higher eligibility
\n      service, the incumbent need not be assessed for
\n      their suitability but it should be ensured that they
\n      have completed the requisite qualifying service for
\n      appointments to the upgraded posts. In case they
\n      had completed the qualifying service on or before
\n      he date notified by the Govt., they may be
\n      appointed to the upgraded post from that date in
\n      the case of others who fulfill the qualifying service
\n      on a later date, they should be appointed to the
\n      upgraded post from the date on which they
\n      complete the qualifying service. This would be
\n      subject to the condition that irrespective of the date
\n      of appointment, the original seniority of the
\n      incumbent in the grade prior to upgradation will be
\n      maintained for appointment to the upgraded post.\n<\/p><\/blockquote>\n
      3.    If     the    upgradation      involves    higher
\n      responsibility or higher qualification or higher
\n      eligibility service, the suitability of the incumbents
\n      has to be assessed and if found suitable, they will
\n      be appointed to the upgraded post prospectively
\n      i.e. not earlier than the date of the U.P.S.C. is
\n      advice later if the assessment is made by the
\n      Departments themselves, the date of the
\n      assessment.”\n<\/p><\/blockquote>\n
18.   This aspect of the matter need not detain us for long
\ninasmuch as a bare reading of the Office Order dated
\n25.10.1985 issued by the Directorate General Central
\nReserve Police Force, Ministry of Home Affairs, Government
\nof India explicitly brings out that the upgraded post of
\nDirector (Medical) carries similar responsibilities as the post
\nof Medical Superintendent re-designated as Deputy Director
\n(Medical). The only difference between the posts of Director
\n(Medical) and Deputy Director (Medical) is the fact that
\nwhereas Deputy Director (Medical) was required to report to<\/p>\n
W.P.(C) No.2727\/1998                                 Page 13 of 16<\/span>
\n the Inspector General since the post of Deputy Director
\n(Medical) was equivalent in rank to the post of Deputy
\nInspector General of Police, Director (Medical) was required
\nto report to the Director General Police since the post of
\nDirector (Medical) became equivalent in rank to the post of
\nInspector General. That being the position, the petitioner is
\nright in contending that his case falls within the purview of
\nsub-para 2 of para 2 of the Office Memorandum dated
\n04.03.1992. As a necessary corollary thereof, it has to be
\nheld that there was no need to assess the suitability of the
\npetitioner for being promoted to the post of Director
\n(Medical) and that the petitioner ought to have been
\npromoted to the post of Director (Medical) with effect from
\nthe date of upgradation of the post of Deputy Director
\n(Medical).\n<\/p>\n
19.   Thus, the next question which was argued: Whether
\nthe holder of a single post existing in a cadre automatically
\nbecomes entitled to be appointed to the upgraded post on
\nthe upgradation of the post held by him or whether his
\nsuitability needs to be assessed before his being appointed
\nto the upgraded post becomes academic but we would note
\nthat there is a decision of a learned Single Judge of this
\nCourt reported as Jaswinder Singh (Col.) v Union of India 86
\n(2000) DLT 451 wherein we find the contention being urged
\nin relation to a single post being upgraded, but not decided.
\nThe facts of the said case were that in order to overcome
\nthe stagnation in higher ranks and to improve the career
\nprospects of service officers in the Army, the Government
\nhad ordered a Cadre Review in the year 1979, in which 125<\/p>\n
W.P.(C) No.2727\/1998                              Page 14 of 16<\/span>
\n additional posts of Brigadier were created by upgrading
\ncertain posts of Lt. Colonel\/Colonel. The post of Director
\nPioneer Corps which was held by the petitioner therein was
\none   of    the   posts   accepted     by   the   Government     for
\nupgradation Colonel to Brigadier. After the upgradation of
\nthe post held by the petitioner a Selection Board was
\nconstituted which considered the case of the petitioner for
\npromotion to the post of Brigadier but the petitioner was not
\nrecommended        for    promotion.    Aggrieved    thereof,   the
\npetitioner therein filed a petition under Article 226 of the
\nConstitution of India which was decided by a learned Single
\nJudge of this Court. One of the arguments raised by the
\npetitioner therein before the learned Single Judge was that
\nthe post held by him being a single post, on upgradation of
\nthe said post he automatically became entitled to be
\nappointed to the upgraded post, which contention was not
\ndealt by the learned Single Judge; the writ petition being
\ndecided that the rules for the post prescribed a criteria for
\nselection which ought to have been followed and was rightly
\nfollowed.\n<\/p>\n
20.   But we would observe that prima facie we find
\nconsiderable logic in the first argument advanced by the
\nlearned counsel for the petitioner. Upgradation of a post
\nresults in a post in the lower scale being upgraded to the
\nhigher i.e. at the lower scale the post ceases to exist and
\nfinds itself born in the upgraded scale. If there is only one
\npost which is upgraded, it is apparent that the post in
\nquestion loses its existence in the lower scale and finds its
\nexistence in the higher scale.         In such a situation what<\/p>\n
W.P.(C) No.2727\/1998                                    Page 15 of 16<\/span>
\n would happen to the holder of the post if he is not to be
\npromoted to the upgraded post?         The post which he was
\nholding no longer exists and since he cannot be thrown out,
\nit could well be argued that the logic demands that he
\nmoves     along    with   the   post   concurrently   and     not
\ndisjunctively.    Be that as it may, we leave this question
\nopen, to be decided in an appropriate case.\n<\/p>\n
21.   In view of the above discussion, the present petition is
\nallowed. The respondents are directed to grant promotion to
\nthe petitioner to the upgraded post of Director (Medical)
\nwith effect from the date of upgradation of the post of
\nDeputy Director (Medical) i.e. 06.07.1994. The salary of the
\npetitioner be re-worked out and arrears paid within a period
\nof 8 weeks from today.\n<\/p>\n
                                (PRADEEP NANDRAJOG)
\n                                       JUDGE<\/p>\n
                                   (SUNIL GAUR)
\n                                       JUDGE
\nAUGUST 05, 2011
\nmm<\/p>\n
 W.P.(C) No.2727\/1998                                 Page 16 of 16<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Dr.K.K.Saini vs Uoi & Ors. on 5 August, 2011 Author: Pradeep Nandrajog * 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-243864","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDr.K.K.Saini vs Uoi & Ors. on 5 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-k-k-saini-vs-uoi-ors-on-5-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.K.K.Saini vs Uoi & Ors. on 5 August, 2011 - 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