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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH: NEW DELHI

OA No. 2395/2010

IN THE MATTER OF
1. Dr, Manisha Malhotra New Delhi 14. Dr. Chandra Prakash Gupta
W/o Dr. Sudhansh, Malhotra S/o Sh. I.P. Gupta
R/o R-164, Greater Kailash-I, 8. Dr. Pushpa Lata R/o 3-C, Suryan Appt. Sec. 13,
New Delhi-48 W/o Dr. R.K. Punia Rohini
R/o B-203 Anmol Appts. New Delhi-85
2. Dr. Jyoti Puri Plot 3 A Sector 2, Dwarka
W/o Dr. K.B. Puri New Delhi 15. Dr. Swapna Talukdar
R/o B-1/5 Pashwa Prasad Apart, W/o Sh. Asim Talukdar
Gole Market, New Delhi-1 9. Dr. Subir Roy R/o K-46 (F.F) Kalish Colony,
S/o Late Sh. B. Roy New Delhi-48
3. Dr. Madhu Gupta R/o G-1357, Chittaranjan Park
W/o Dr. R.P. Mittal New Delhi 16. Dr. Shailesh Kumar Singh
R/o Plot 5, Sita II West Patel S/o Sh. Lakshmi Naryana Singh
Nagar, 10. Dr. G.D. Paliya R/o G-2, 34/1, Desu Road,
New Delhi S/o Sh. Chhotu Ram Mehrauli,
R/o S-50 Hudio Place New Delhi-30
4. Dr. K.P. Sethy Andrewsganj
S/o Late Sh. Sahadev Sethy New Delhi -49 17. Dr. Janak Pal
R/o D 16 E H.I.G. Flats, Mayapuri S/o Sh. Har Gulal
New Delhi-64 11. Dr. Rajendra Prasad R/o 24-L Sect-IV,
S/o Sh. Ishwar Singh Gole Market
5. Dr. Niru Kumar R/o D-II/340, Pandara Road, New Delhi
W/o Dr. G. Prem Kumar New Delhi.
R/o 13 A/4 WEA Karol Bagh 18. Dr. Meera Chakrabarty
New Delhi 12. Dr. Rajbala Kaushal W/o Dr. A.K. Chakrabarty
W/o Dr. J.C. Passey R/o A-8 MS Flats Tilak Lane
6. Dr. Bharat Singh R/o D-II/169- West Kidwai Nagar, New Delhi
S/o Sh. Karam Singh New Delhi-23
R/o B 3 B/59 A Janak Puri, 19. Dr. Sushil N.G. Lugun
New Delhi -50 13. Dr. Chinmoya Kumar Mohanty S/o Juel Lugun
S/o Late Sh. Y.B. Mohanty R/o 29 G/1, 201 Kaushik Appt.
7. Dr. R.K. Punia R/o B-3/6 M.S. Flats Peshwa Mehrauli, New Delhi-30
S/o Late Sh. M.L. Punia Road
R/o B-203 Anmol Appts. Gole Market, New Delhi-1
Plot 3 A Sector 2, Dwarka

20. Dr. Shashi Satija

W/o Dr. Hansraj Satija
R/o A5/7 Pashim Vihar
New Delhi …Applicants

Versus

1. Union of India 2. Ministry of Personnel, Public 3. UPSC

Through Secretary Grievances and Pensions Through its Chairman
Ministry Health & Family Through Secretary Dholpur House,
Welfare Department of Personnel New Delhi - 110-069
Nirman Bhawan and Training …
New Delhi North Block, Respondents
New Delhi-110 001.

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ORIGINAL APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT,

1985

RESPECTFULLY SHOWETH:

DETAILS OF THE APPLICATION:

1. PARTICULARS OF THE ORDER(S) AGAINST WHICH THE PRESENT

APPLICATION IS FILED:

The present application is made against the illegal decision of the respondents in ignoring
the applicants for considering and grant of benefits of DACP scheme introduced by the GOI vide
order No. 21/14/97-PC(H)/CHS-V dated 5.4.2002 and extended upto SAG level vide OM No. A
45012/2/2008-CHS. V dated 29.10.2008 Ministry of Health & Family Welfare (in terms of VI
CPC) and at the same time considering and granting the benefits to the juniors. DACP envisages
grant and placement of NFSG scale Doctors to the next higher level i.e. Senior Administrative
Grade and the advancement to SAG is without linkage to the availability of vacancies at the
higher level. Vide impugned order No. 28021/1/2010-CHS V dated 8.7.2010 issued by the
Ministry of Health & Family Welfare, (CHS-V section) (Annexure A/1 ) as published on Ministry’s
website , the respondents intend to send the ‘below benchmark’ ACRs of the 392 NFSG doctors
of CHS including the applicants to them calling for representations. This is being done in
purported requirements of instructions issued by DOP&T vide OM No. 21011/1/2010- Estt.-A
dated 13.4.2010 (Annexure A/ 2 ) which in the matter of promotion prescribes that below
benchmark ACRs recorded prior to 2008-2009 be communicated to the official concerned if the
employee is to be considered for promotion in a future DPC and by virtue of OM No.
2011/3/2007-Estt-D, GOI, Ministry of Personnel, Public Grievance & Pensions (DOP&T) dated
18.2.2008 (Annexure A/3 ), which prescribes that the prescribed benchmark of ‘Very Good’
should be met in all ACRs of five years under consideration. The aforesaid OM dated 13.4.2010
is impugned to a limited extent as it prescribes communication of all ACR (adverse/below
benchmark) after passage of any number of years.
It is submitted that since the primary instruction contained in OM dated 18.2.2008
requiring for 5 Very Good ACRs in all five years is not applicable to DACP scheme and also that
the same is applicable in situation of selectively only (which is not the case in hand as grant of
higher grade is not linked with the availability of vacancies, as per DACP Scheme), the action of
the department in applying OM dated 13.4.2010 (requiring communication of below benchmark
ACR) and consequent order dated 8.7.2010 purporting communication of below benchmark ACR
is illegal and unjustified moreso, when juniors are being considered in preference of Seniors.

In any case, it is submitted that communication of ACRs falling beyond the

preceeding three years of the year when DPC is held is not permissible as per GOI instructions
OM No. 22011/3/08-Estt. (D) dated 11.5.1990 (Annexure A/4 ). The said instruction are still
subsisting.

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In the context, it is relevant to point out that the last year under consideration is of
2006-2007 while the DPC has met on 15.5.2010 (i.e. year 2010-2011). The respondents in their
OM dated 4.7.2010 have specifically mentioned about communication of ACRs of year 2006-
2007 and also of years prior to 2006-2007. On this aspect the applicants rely upon a decision of
this Hon’ble Tribunal in OA 586/2009 decided on 21.8.2009 where communication of
adverse/below benchmark ACR after three year was held to be not permissible. Furthermore,
the respondents are acting in a mechanical manner to deprive the DACP benefits to the
applicants as they have not even cared to see that invariably in all the cases, either the reporting
officer or the reviewing authority has already retired thereby making the whole exercise aimed to
grant opportunity to concerned official to seek upgradation as a futile exercise. On this aspect,
the applicants rely upon judgements passed by the Hon’ble Supreme Court in Dastikar’s case
and of this Hon’ble Tribunal in OA 1644/2009 (V.P.S. Punia vs. UOI & Ors.); OA 847/2008 (R.N.
Kurmi vs. The Secretary, & Ors. OA 1178/2009 (O.P. Meena Vs. UOI & Ors.). Even further, the
glaring illegality crept in the recording of the ACRs in question is that the ACRs have been
recorded/reviewed by such doctors who are/were regularised doctors while the applicants are
regularly appointed doctors. Moreover, the ACRs have been recorded by the officials of same
level as of applicants while ACRs were/are required to be recorded by officials seniors to the
officer under report.

Now, on the basis of illegal and invalid ACRs recorded prior to three years and
more from the date of DPC (i.e. 15/5/2010), the Govt. has denied the SAG scale to the applicants
while juniors have been considered and in their cases, even such officers have been considered
whose ACRs were either not written or unavailable.

Furthermore, this entire illegal exercise has been undertaken in the case of GDMO
cadre only and not for other cadres of the CHS where no benchmark has been applied and
consequently no ‘below benchmark’ ACR has been communicated by the Ministry of Health &
Family Welfare, thus causing discrimination.

Moreover requirement of all Very Good ACRs for preceding 5 years cannot be
applied when ACRs were recorded anterior to the instructions and determination of the
benchmark.

Furthermore, as admitted by DOP&T no benchmark has been prescribed by it in

relation to DACP Scheme.

2. JURISDICTION OF TRIBUNAL

That the applicants declare that the subject matter of the case is within the
jurisdiction of this Hon’ble Tribunal.
3. LIMITATION
That the applicants further declare that the case of the applicant is within limitation
period as prescribed under the Administrative Tribunal Act, 1985.

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4. Facts of the case:
4.1 That the applicants are citizen of India and are entitled to all Fundamental Rights
as enshrined in the Constitution of India.

4.2 That the applicants are qualified doctors appointed on regular basis in the
General Duty Medical officer sub-cadre of the Central Health Service (CHS, in
short) which is a Group A service consisting of four Sub-Cadres viz. Teaching
Specialist Sub-Cadre, Non Teaching Sub-Cadre, Public Health Sub-Cadre and
General Duty Medical Officer Sub-Cadre.

4.3 That the applicants were initially appointed in the above said service in the year 1980 to
1986 through UPSC and were promoted as Chief Medical officer (CMO) in the
years 1991 to 1996. Later the applicants were granted Non-functional selection
Grade (NFSG) in the year 2000 to 2004. A chart giving the service particulars of
the applicants is annexed herewith as (Annexure A/5) to the OA which may kindly
be referred to herein.

4.4 That vide order No. 21/14/97-PC(H)/CHS-V dated 5.4.2002 (Annexure A/6 ) the GOI
introduced Dynamic Assured Career Progress Scheme (DACP, in short) which was
further extended upto Senior Administrative Grade level vide OM No.
45012/2/2008 dated 29.10.2008 (Annexure A/7).

4.5 That vide GOI, Ministry of Health & Family Welfare OM bearing F. No A. 45012/2/2008-
CHS V (CSH Division) dated 29.10.2008, a CMO (NFSG) official of the GDMO sub
cadre in the Grade Pay Rs. 8700 in Pay Band-4 is entitled for placement in SAG
Grade (Grade Pay Rs. 10,000 in PB-4) for which 7 years in Grade Pay of Rs. 8700
in PB-4 including service rendered in the pre-revised scale of Rs. 14300-18300 or
20 years of regular service is required. Copy of OM dated 29.10.2008 is annexed
herewith as (Annexure A/8). Later, the methodology of computation of requisite
length of service for grant of SAG pay structure has been prescribed and illustrated
vide OM of even number dated 21.7.2009 (Annexure A/9). It was thus prescribed
that the requisite seven years of regular service is not required in the CMO (NFSG)
scale and a doctor who has rendered 20 years of regular service and already
promoted as CMO /NFSG (grade pay of Rs. 8700 in the Pay Band-4) on the date
of initial implementation of the DACP scheme shall be entitled for SAG pay
structure without rendering full 7 years of service in the NFSG grade.

4.6 That all the applicants are eligible for grant of SAG pay structure in terms of above
mentioned related OMs. A copy of seniority list/Civil list as on 1.3.2010 is
annexed herewith as Annexure A/10.

4.7 That a Departmental Promotion Committee Meeting has been convened on 15.5.2010 by
the respondents for grant of SAG pay structure under DACP scheme to over 1000
CMO/NFSG doctors of GDMO Sub-cadre of the CHS.

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4.8 That though juniors of the applicants have been considered in the said DPC, however for
392 eligible doctors including the applicants, the Govt. has taken the impugned
decision to communication these old and invalid ACRs. The cases of such doctors
have also, perhaps, not been put before DPC.
4.9 That in the case of these left out 392 doctors including the applicants, the Ministry has
published an OM NO. 28021/1/2010-CHS V (CHS-V section) July 2010 which
reveals that the ACR dossiers of eligible CMO (NFSG) of GDMO sub-cadre of CHS
were sent to UPSC in connection with their promotion to SAG level. However, 392
officers including the applicants fall in a category of officers having ‘below
benchmark’ ACRs and thus as per GOI (DOPT) OM No. 2011/1/2010-Estt. A dated
13.4.2010, an opportunity shall be afforded to these 392 doctors (including the
applicants ) to represent against such below Benchmark ACR of a particular year
(as mentioned in annexures to said OM) which shall be sent to them in due course
for purposes of granting an opportunity to seek upgradation thereof. Relevant
extract of annexure to OM dated 8.7.2010 in respect of applicants is annexed
herewith as Annexure A/11 for a ready reference.

4.10 That at this stage, it shall not be out of place to mention here that in the case of DACP
Scheme, no benchmark has been prescribed by the DOP&T. This is admitted by
DOP&T in reply to a query under RTI Act, 2005. Copy of the reply under RTI is at
Annexure A/12. Furthermore, the Ministry of Health & Family Welfare has also not
prescribed any Benchmark for promotion under DACP scheme and rightly so
because placement in higher grade (SAG) to the doctors in DACP is not linked to
the availability to vacancies. This is further augmented from the fact, that in one of
the other sub-cadres namely specialist Sub-cadre all the CMO/NFSG doctors have
been placed in the SAG grade after holding a DPC in the year 2010.

4.11 That it appears that the Ministry of Health & Family Welfare, for the purposes of
‘benchmark’, has taken into consideration an OM of GOI (DOP&T) issued vide No.
2011/3/2007-Estt.(D) dated 18.2.2008 which lays down a requirement of all ‘Very
Good’ ACRs of five years under consideration. However, if that is so, even the
said OM shall have no application towards the applicants for DACP purposes, as
the said prescription is in order to ensure greater selectively which means and
implies selection of few amongst many which selection has to be restricted to the
corresponding number of available posts. Therefore, said OM does not apply to
the facts and circumstances of the present case more particularly since DACP
scheme is not linked to availability of vacancies.

4.12 That as there is no requirement of Benchmark, in DACP scheme, the OM dated 13.4.2010
has no application.

4.13 That, without prejudice to the above, it is submitted that the OM dated 13.4.2010 is illegal
to the extent it prescribes communication of ‘below benchmark ACR’ recorded prior
to determination of Benchmark as it is bound to create uncertainty in service career

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of the employees of the Govt. A ‘Very Good’ ACR of the current year may meet the
requirements of benchmark today but if there is a change in benchmark in near
future, the same grade will have an adverse effect and therefore such an ACR
which does not call for any upgradation now, may require the related exercise in
future, may be after three years. This shall not only lead to uncertainty and chaos
but also defeat the very objective of writing and communicating ACRs in order to
improve the work efficiency of the concerned official.

4.14 That it is further submitted that GOI DOPT instructions, vide OM No. 22011/3/08—Estt (D)
dated 11.5.1990 envisage that when a DPC finds an uncommunicated adverse
remark of a sufficient gravity to influence its assessment of the officer concerned,
the consideration will be deferred and the uncommunicated adverse remark/ACR
shall be communicated to the officer concerned for purposes of allowing him an
opportunity to represent against it provided the ACR pertainS to three immediate
preceeding years prior to the year in which DPC is held. In cases, where Adverse
ACR is of the period beyond three preceding years, it has to be ignored.

4.15 That it is therefore relevant to point out here that vide impugned order of July 2010, the
respondents have violated the aforesaid existing instruction in as much as the DPC
has met in the year 2010 i.e. year 2010-2011 but the ACRs falling beyond the three
immediately preceeding years are sought to be communicated to the prejudice of
the applicants. Even the OM dated 13.4.2010 is illegal to the extent it prescribes
communication of below benchmark ACR for any of the five years relevant period
as it circumvents the subsisting OM of 1990. Besides, this is in complete violation
of judgement of Hon’ble Supreme Court in AIR 1987 SC 1201 where
communication of adverse ACR after 27 months was held band in law.
4.16 That it is further significant to mention here that the reporting officer of the applicants have
been the regularised doctors and/or of the same level of the applicants and in
many cases, the concerned officer (reporting or reviewing or both) has retired by
now, and because of their retirement, such ACRs cannot be communicated for
purposes of representation as held by the judical forum in many cases. The
applicants are mentioning these events hereinbelow as follows:
Sl. Name of Period Reporting Officer and Rep.O- Reviewing Rev.O-Retd(R)/
No. Officer rank Retd(R)/ Officer and inservice(IS)
inservice(IS) rank
1 Dr. Manisha 2003-04 Dr. Adarsh Kumar AD Dr.Sudhir Retired
Malhotra SZ CGHS, Retired Chandra
Director
CGHS
2. Dr. Jyoti Puri 2006-07 Dr.Anjali Prakash- Retired Dr.S. IS
CMONFSG(Regularised) Bhattacharya
“
3 Dr. Madhu 2003-04 AD CZ CGHS Retired Dr. Sudhir Retired

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Gupta Chandra
Director
CGHS
4 2006-07 Dr. JK Naik Retired Dr.S. IS
CMONFSG(Regularised) Bhattacharya
“
5 Dr. Neeru 2006-07 No Reporting Officer Certificate by IS
Kumar Dr.S.
Bhattacharya
“
6 Dr Bharat 2002-03 Dr. Kohli, AD NZ CGHS Retired Dr.L.Nongpiur, Retired
Singh Director
CGHS
7 Dr.RK Punia 2002-03 Dr. S MajumdarCMO Retired Dr. Rekha Retired
NFSG, Regularised Aggarwal, AD
SZ CGHS
2005-06 Dr.Asha Bansal, AD SZ Retired Dr. PK Retired
CGHS Phukan,
Director
CGHS
8 Dr. Pushplata 2002-03 Dr. Rekha Aggarwal, AD Retired Dr.L.Nongpiur, Retired
SZ CGHS Director
CGHS
2004-05 Dr. Adarsh Kumar, AD Retired Dr.Sudhir Retired
SZ CGHS Chandra
Director
CGHS
9 Dr. S.Roy 2002-03 Dr. KK Kalra(SAG) Retired Dr.L.Nongpiur Retired
Director
CGHS
10 Dr. GD Palia 2003-04 Dr. CP IS NK
Gupta,CMONFSG
Regular
11 Dr. Rajendra 2006-07 Dr. KK Goswami IS Dr.S. IS
Prasad CMONFSG(Regularised) Bhattacharya
“
12 Dr. Rajbala 2006-07 Dr. VM Aggarwal IS Dr.S. IS
Kaushal CMONFSG(Regularised) Bhattacharya
“
13 Dr.CK 2003-04 AD CZ CGHS Retired Dr. Sudhir Retired
Mohanty Chandra
Director
CGHS
14 Dr. K.K
Dr CP Gupta 2002-03 Dr.R. Barua Retired Kalra(SAG)* Retired
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CMONFSG(Regularised) ADCZ CGHS
15 Dr. Sapna 2001-02 Dr. R.R. Kishore, CMO Retired Dr. K.K. Kalra Retired
Talukdar (NFSG) (Regular) (SAG)
ADCZ CGHS
2004-05 Dr. V.M. Aggrawal IS Not Known
CMONFSG(Regularised)
16 SK Singh 2003-04 Not Known Not Known
2006-07 Dr.MR Bhowmick IS Dr.S. IS
CMONFSG(Regular) Bhattacharya
“
17 JP Singh 2005-06 Dr.Bhupinder Nath Retired Dr. M.Balani Retired
CMONFSG(Regular) AD CZ,CGHS
2006-07 Dr.Bhupinder Nath Retired Dr.S. IS
CMONFSG(Regular) Bhattacharya
“
18 Dr. Meera 2002-03 Dr.R. Barua Retired
Chakravorty CMONFSG(Regularised) -
2003-04 Dr.R. Barua Retired
-
“
2005-06 Dr.R.Barua Retired -
“
2006-07 Dr. JK Naik Retired Dr.S. IS
CMONFSG(Regularised) Bhattacharya
“
19. Dr. Shashi 2002-03 Not known Not known Not known Not known
Satija

20. Dr. Susheel 2003-04, Not Known Not known Not known Not known
N.G. Lugun 2004-05
& 2005-
06

4.17 That even in cases where no ACR is available, the DPC has considered the cases of
others/juniors on the basis of ‘Certificates’ to the effect that there is nothing
adverse against the said official. Even such officers are being granted benefits of
DACP scheme. Copy of ACR monitoring as downloaded from the CHS website is
annexed herewith as Annexure A/13. This further goes to show that there is no
prescribed benchmark.

4.18 That in these facts and circumstances, when the Govt. has deprived consideration and
grant of SAG under the DACP scheme to the applicants and have held a DPC
meeting for juniors and orders granting benefits to the juniors are apprehended to

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be issued shortly, the applicants are left with no others legal efficacious remedy
except to approach this Hon’ble Tribunal in following grounds interalia:

5 GROUNDS OF RELIEF WITH LEGAL PROVISIONS

A. Because the impugned order/action is illegal, arbitrary, unjustified and violative of

principles of natural justice.
B. Because in the matters of promotions and DACP scheme juniors cannot be
considered for promotion in preference of or in ignorance of the seniors.
C. Because the seniors have a pre-emptive right for promotion and consideration thereof.
Similarly, for the purposes of DACP scheme, seniors are required to be considered
prior to the juniors.
D. Because grant of higher scale/grade to the juniors without there being any
consideration of seniors is illegal.
E. Because placement of juniors in higher grade prior to the seniors cannot be
countenanced in law. This does not only lead to discouragement and frustration
amongst the left out seniors but also leads to insubordination and bad administration.

F. Because the very purpose and objective of formulation of DACP scheme is negated if
such beneficial scheme are implemented in a wrong and arbitrary manner like the
present one.

G. Because the benefit of advancement or consideration thereto in respect of officials

should not be delayed on flimsy grounds, more particularly when juniors are
considered.

H. Because, the decision to communication the alleged ‘below benchmark/adverse ACR’

at this juncture after passage of number of years is of no purpose except to prejudice
the applicants.

I. Because the Hon’ble Supreme Court in State of Haryana Vs. P.C. Wadhwa (AIR 1987
SC 1201) has held to the effect that the action of communication of adverse ACR after
27 months as bad in law.

J. Because the DPC has been held on 15/5/2010. By this time, DOP&T OM dated 13 th
April 2010 regarding communication of below benchmark ACRs had already come into
being. Therefore, is an event the said OMs were applicable to the applicants it was
incumbent upon the Ministry of have communicated such ACRs to its officials including
the applicants prior to holding of a DPC. It appears that the ACRs dossiers of the
applicants have not been placed before DPC at all so as to delay the cases of
applicants by involving them into a process of seeking upgradation and meanwhile
grant benefits to others including the juniors. Thus, even the DPC has been held in an
arbitrary manner. Convening a DPC in piecemeals or creating a division amongst the
officials is malafide and illegal.

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K. Because even as per GOI OM No. 22011/3/08-Estt. (D) dated 11.5.1990 no adverse
ACR should be communicated after 3 years and for the matters of promotion, the
adverse ACR falling beyond 3 years should not be taken into consideration at all and
in these circumstances, the department is not even required to fall back on previous
ACRs to complete the numeric figure of 5 years ACR.

L. Because in an event, the decision of communication the alleged below

benchmark/adverse ACR is taken after placing the ACR dossiers before the DPC,
even then the impugned action is illegal unjustified and arbitrary. Therefore, any
action of and in furtherance of the DPC meeting held on 15.5.2010 requires to be
stalled and quashed as seniors have been illegally ignored.

M. Because in Devi Dutt’s case the Hon’ble Supreme Court did not lay down the law that
in all the matters of promotion, downgraded entries/ACR must be communicated and
representation of the official be called for. The principle established by the Hon’ble
Supreme Court in the said judgement is that a grading in the ACR below the
prescribed benchmark would be considered as an adverse entry. No law has been
laid down as to how to deal with it which is merely a procedural aspect which is
required to be dealt with according to the instructions and facts and circumstances of
each case. Devi Dutt’s case does not even deal with the point as to how such
downgraded or below benchmark entries /ACRs are to be dealt. This submission is
strengthen by a later decision of the Hon’ble Supreme Court in Dastikar’s case and of
this Hon’ble Tribunal in Krishna Mohan Dixit case and various other cases. Copy of
order of this Hon’ble Tribunal in OA No. 586/2009 (Krishan Mohan Dixit vs. UOI & Ors.
decided on 21.8.2009 is annexed as Annexure A/ 14.

N. Because the respondents vide impugned OM dated 4.7.2010 have taken a decision to
communication such ACRs where even the reporting and/or reviewing authority have
retired by now. Therefore, the decision to communicate such alleged below
benchmark/adverse ACR is not going to serve any purpose. This Hon’ble Tribunal has
invariably held that where such authorities have retired, the contextual ACR has to be
ignored. The applicants place reliance on decision of this Hon’ble Tribunal, on this
aspect in OA 847/2008 (R.N. Kurmi Vs. The Secretary & Ors.) (Annexure A/15 ) OA
1178/2009 (O.P. Meena Vs. UOI & Ors. ) (Annexure A/16) and OA 1644/2009 (V.P.S.
Punia Vs. UOI & Ors.) (Annexure A/17) where has been upheld by the Hon’ble Delhi
High Court in CWP 4474/2010 decided on 9.7.2010 (Annexure A/18).
O. Because in cases of benchmark, in order to determine whether the officer concerned
meets the benchmark, the DPC is required to make are overall cumulative assessment
of the ACR record of a specified number of years of the officer concerned and on the
basis of this cumulative assessment an overall grade is awarded. If the overall grade
awarded to an officer by the DPC meets the pre-determined standards of promotion
i.e. the benchmark, the officer is recommended for promotion.

P. Because the OM No. 22011/3/08-Estt (D) dated 11.51990 is still subsisting.

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Q. Because the ACRs in question have been recorded by officer of same level, though
the law requires that reporting officer should be of higher level. This recording is illegal
and prejudicial. Thus, the ACRs in question have to be ignored.
The Hon’ble Supreme Court in State Bank of India Vs. Kashi Nath Kher [(1996) 8
SCC 762] held as follows:
“The object of writing the confidential report is twofold, i.e., to give an opportunity to
the officer to remove deficiencies and to inculcate discipline, Secondly, it seeks to
serve improvement of quality and excellence and efficiency of public service. This
Court in Delhi Transport Corpn. case (supra) pointed out the pitfalls and insidious
effects on service due to lack of objectives by the controlling officer. Confidential
and character reports should, therefore, be written by superior officers higher
above the cadres. The officer should show objectivity, impartiality and fair
assessment without any prejudices whatsoever with the highest sense of
responsibility alone to inculcate devotion to duty, honesty and integrity to improve
excellence of the individual officer. Lest the officers get demoralised which would
be deleterious to the efficacy and efficiency of public service. Therefore, they
should be written by a superior officer of high rank. who are such high rank officers
is for the appellant to decide. The appellants have to prescribe the officer in rank
above the officer in rank above the officer who has written confidential report to
review such report. The appointing authority or any equivalent officer would be
competent to approve the confidential reports or character rolls. This procedure
would be fair and reasonable. The reports thus written would form the basis for
consideration for promotion. The procedure presently adopted is clearly illegal,
unfair and unjust".

R. Because the very object of working and communicating ACRs is defeated in the
present case. Besides the ACR have been recorded in an illegal manner. In
State of UP vs. Yamuna Shanker Misra [(1997) 4 SCC 7], the Hon’ble Supreme
Court has held as follows:
“It would, thus, be clear that the object of writing the confidential reports and
making entries in the character rolls is to give an opportunity to a public servant to
improve excellence. Article 51A (j) enjoins upon every citizen the primary duty to
constantly endeavour to prove excellence, individually and collectively, as a
member of the group. Given an opportunity, the individual strives to improve
excellence and thereby efficiency of administration would be augmented. The
officer entrusted with the duty to write confidential reports, has a public
responsibility and trust to write the confidential reports objectively, fairly and
dispassionately while giving, as accurately as possible, the statement of facts on
an overall assessment of the performance of the subordinate officer. It should be
founded upon the facts or circumstances. Though sometimes, it may not be part of
record, but the conduct, reputation and character acquire public knowledge or
notoriety and may be within his knowledge. Before forming an opinion to be
adverse, the reporting/officers writing confidentials should share the information
which is not a part of the record with the officer concerned, have the information
confronted by the officer and then make it part of the record. This amounts to an

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opportunity given to the erring/corrupt officer to correct the errors of the judgment,
conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving
such an opportunity, the officer fails to perform the duty, correct his conduct or
improve himself necessarily, the same may be recorded in the confidential reports
and a copy thereof supplied to the affected officer so that he will have an
opportunity to know the remarks made against him. If he feels aggrieved, it would
be open to him to have it corrected by appropriate representation to the higher
authorities or any appropriate judicial forum for redressal. Thereby, honesty,
integrity, good conduct and efficiency get improved in the performance of public
duties and standards of excellence in services constantly rises to higher levels and
it becomes successful tool to manage the services with officers of integrity,
honesty, efficiency and devotion.”

S. Because though the applicants are the regular appointee in CHS, the
reporting/reviewing authorities have been the regularised doctors. This is highly
unfair and in appropriate. In this context, it shall not be out of place to mention
here that as per judjement of Hon’ble Supreme Court, in P.P.C. Ravani’s case the
regularised doctors were to work on supernumerary posts and not on cadre posts
of CHS. This direction of this Hon’ble Supreme Court was aimed at to protect the
regularly appointed doctors. Copy of judgement in P.P.C. Ravani’s case is
annexed herewith as Annexure A/19.

T. Because the impugned order dated 8th July 2010 tends to deny the benefits of
DACP scheme to the applicants and at the same time, the juniors shall be
benefited.

U. Because the DPC has considered such candidates and found them fit is whose
cases any or more ACR for the relevant period was not available and the department
had issued of a certificate to the effect that there is nothing adverse against them.

V. Because the OM dated 18.2.2008 is illegal in as much as it requires that the

prescribed benchmark of ‘Very Good’ is met in all ACRs of five years under
consideration. By prescribing that in all 5 years ACRs an official must have 5
Very Good grades it virtually usurps the function of DPC which is required to
make its own assessment on the basis of entries in the CRs and is not to be
guided much by the overall grading except in cases where DPC makes an
assessment of ‘Unfit’ despite Very Good grades. Therefore, the objectivity and
positivity is taken away from the DPC. As an illustration, an officer having one
outstanding three ‘very good’ and one Good ACR in the preceding 5 years also
stands eliminated. Even an officer with 1 Good ACR for the preceeding 5th year
and 4 outstanding Grades in the last 4 years of assessment will also not be
eligible. This is arbitrary, unjustified and unfounded.

W. Because, it is further submitted that the OM dated 18.2.2008 shall have no application
in DACP scheme which provides for promotion without linkage to vacancies.
According to the DOP&T, the requirement of 5 Very Good ACRs in all the

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preceding 5 years is prescribed is order to ensure greater selectivity at higher level
of administration. In this context it is submitted that greater level of selectively at a
particular level of service means and implies that the number of officers under
consideration are more than the number of vacancies, thus requiring selectivity.
However, since DACP Scheme admittedly is to ensure promotion of doctors in a
dynamic and assured manner, without any linkage to vacancies of the higher level,
no zone of consideration or shortlisting of eligible officers is required to be done.

X. Because in the matters of promotion under DACP scheme neither the availability of
vacancies is a relevant factor nor any competition amongst the eligible officers is
conceivable. The denial of promotion on the grounds of not meeting the
benchmark or even prescription of a benchmark shall be illegal as the mode of
selection does not practically apply. All these factors and principles of selection
are applicable where the number of candidates exceed the number of posts.
Therefore, in a situation, like the present, where promotion is not linked to number
of vacancies, only such official can be assessed ‘Unfit’ and consequentially
denied promotion whose ACR is specifically recorded as ‘adverse’ as provided in
ACR format for any year during the relevant period of consideration.

Y. Because prescription of requirement of having very Good ACRs for all the preceding 5
years service record is unreasonable and too stringent and is too close to the
requirement of excellence and method of merit-cum suitability which leads to
supercession of seniors. Therefore, the requirement of ‘Very Good’ ACRs for
preceding five years is illegal and unjustified. It tends to defeat the very objective
underlying DACP scheme.
Z. Because the OM dated 18.2.2008 fixing the bench mark of having 5 out fo 5 very good
ACRs in admittedly not applicable to CHS officers for the purposes of DACP
scheme. The DOPT has admitted under RTI that DOP&T has not issued any
specific guidelines or specific order regarding selection criteria of five out of five
very good ‘ACRs’ for the DACP scheme.

AA. Because the impugned OMs of the respondents are unreasonable, unjustified and
illegal having no reasonable nexus with the object sought to be achieved.

BB. Because it is an admitted position by the DOP&T that for the purpose of DACP, no
benchmark has been prescribed. This is rightly so, because DACP scheme is not
linked to availability of vacancies. Therefore the Ministry’s action is based on
extraneous factors.

CC. Because if Very Good ACR for 5 years is to be treated as Benchmark, then it shall be
all the more illegal in case of applicants as ACRs for years anterior to the
determination of Benchmark have become ‘adverse’ now. Such a
system/mechanism is bound to bring in uncertainty.

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Even a ‘Very Good ‘ ACR for the current year may become adverse after 5 years if
the bench mark is changed to ‘outstanding’ after five years. This cannot be
countenanced in law.
DD. Because despite the fact that the OMs prescribing Benchmark and communication of
ACRs below benchmark are not applicable under DACP scheme, where promotion
is not linked to availability of vacancy, the respondents have applied these OMs
with an oblique motive to deny the lawful claim of the applicants, in an arbitrary
manner.

EE. Because without prejudice to the above, it is submitted that there is no uniform formula
or guidelines or instructions which may prescribe as to in what manner a grade is
to be given to an officer by his reporting /reviewing authority. One Particular officer
under report may be graded as ‘Very Good’ by one reporting officer, however for
other reporting officer, the same quality and quantity of work performed may be
graded as merely ‘Good’. There are no prescribed standards or mechanism or
methodology to rate the attributes and grade the officer as ‘Good’, ‘Very Good’ or
Outstanding which in turn is dependent upon the individual traits and personalities
of the reporting/review authority and such individual standards of such authorities
are bound to be distinct.

FF. Because the applicants have been treated in a different manner. Of all the sub-cadres
of CHS, it is only in Sub cadre of the GDMO (to which the applicants belong to )
that a benchmark has been applied.
GG. Because the impugned action of the respondents is otherwise also illegal and
arbitrary.

6 DETAILS OF REMEDIES EXHAUSTED

That the applicants declare that they have availed all the remedies available under
the law.

7. MATTER NOT PREVIOUSLY FILED OR PENDING

That the applicants declare that they have not filed any suit/writ/O.A. on the subject
matter of the present case in any other Court or Bench of this Hon’ble Tribunal.

8. RELIEF SOUGHT
Keeping in view the facts and circumstances of the case, it is respectfully prayed
that this Hon’ble Tribunal may graciously be pleased to:

(a) quash and set aside the impugned OMs at Annexure A/1 and A/2 and
(b) quash and set aside the DPC held on 15.5.2010 for purposes of grant of Senior
Administrative Grade under DACP scheme to doctors of GDMO sub-cadre of

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CHS and also declare that no benchmark is applicable for DACP scheme and
also
(c) direct the respondents to consider the cases of applicants for grant of Senior
Administrative Grade under DACP scheme by ignoring the illegal and invalid
ACRs, with all consequential benefits
(d) award costs of the proceedings and
(e) pass any other order/direction which this Hon’ble Tribunal deem fit and proper
in favour of the applicant and against the respondents in the facts and
circumstances of the case.

9. INTERIM RELIEF
Pending disposal of OA, this Hon’ble Tribunal may graciously be pleased to
restrain the respondents from giving effect to OM dated 8.7.2010 any further and also restrain
the respondents from giving effect to the DPC meeting conducted on 15.5.2010, by way of an
exparte adinterim order. Any other order wherein.

10 N.A.

11. Particulars of the Postal order:

(i) No. of IPO:
(ii) Date of issuing:
(iii) At which payable:
(iv) PO from issuing:

12. List of Enclosures:

As per Index.

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Applicant

Verification:
I S/o aged about years, r/o
do hereby verify that the contents of above paras No. 1 to 4 are true to the best of my knowledge
and paras No. 5 to 12 true on information received and believed to be true and that I have not
suppressed any material facts.

Verified at Delhi on this day of 2010.

DELHI
DATED: Applicant

Through
(Ajesh Luthra)
Advocate
541, Western Wing,
Tis Hazari Court, Delhi -54

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A

SYNOPSIS & LIST OF DATES AND EVENTS

The applicants who are doctors belonging to GDMO sub-cadre of Central Health
Service (CHS, in Short) are aggrieved by the denial of benefits of Dynamic & Assured Career
Progression Scheme (DACP) which envisages grant of Senior Administrative Grade to the
applicants for which they have attained the requisite length of service.

A DPC met on 15.5.2010 while juniors have been considered and the Govt. in the
process of issuing orders in their respect, the applicants have been denied the DACP benefits
and a decision has been taken vide OM dated 8.7.2010 to communicate to them the ACRs which
were below the benchmark hence adverse. 5 years ACR including and preceding the year 2006-
2007 were considered in the DPC. This decision to communication of ACRs falling beyond
preceding three years is against the settled legal position as per various verdicts of this Hon’ble
Tribunal in OA 586/2009 (decided on 21.8.2009) and also the decision of Hon’ble Supreme Court
in AIR 1987 SC 1201 (State of Haryana vs. P.C. Wadhwa) where the communication of adverse
ACR after 27 months was held bad.

Further, the impugned action of communication of ACRs (below

benchmark/adverse) is not sustainable in law and violative of various judgements of this Hon’ble
Tribunal in OA 1178/2009 (O.P. Meena Vs. UOI & Ors.); OA 847/2008 (R.N. Kurmi vs. The
Secretary & ors) and also OA 1644/2009 (V.P. Punia vs. UOI & Ors. ) which has been upheld by
the Hon’ble High Court of Delhi in CWP 4474/2010 decided on 9.7.2010 as either the reporting
officer or reviewing authority or both (in few cases) have retired by now.

Besides the above, these ACRs have been recorded by officers of same level
while these were required to be reported by officers of senior level. This too, is in complete
disregard and contravention of judjement of Hon’ble Supreme Court in State Bank of India vs.
Kashi Nath Kher [(1996) 8 SCC 762]

1981-86 Applicants, appointed in CHS on regular basis

2008 DACP scheme extended upto Senior Administrative Grade

15.5.2010 DPC meeting Juniors are considered.

8.7.2010 OM published by Ministry of Health & Family Welfare conveying decision to

communicate alleged to be below benchmark for the year 2006-2007 and
prior thereto.

Hence this OA .

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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH: NEW DELHI

O.A. No. /2010

IN THE MATTER OF

Dr. Manisha Malhotra & Ors. …Applicants

Versus

Union of India & Ors. …Respondents

INDEX
Sl. No. PARTICULARS PAGES
COMPILATION-I
A. List of Dates and events A
1. Original Application
2. Annexure A/1: Copy of order dated 8.7.2010
3. Annexure A/2: Copy of OM dated 13.4.2010
4. Annexure A/3: Copy of OM dated 18.2.2008
5. Annexure A/4: Copy of OM dated 11.5.1990

COMPILATION-II
6. Annexure A/5: Copy of chart giving the service
particulars of the applicants
7. Annexure A/6: Copy of order dated 5.4.2002
8. Annexure A/7: Copy of OM dated 29.10.2008
9. Annexure A/8: Copy of OM dated 29.10.2008
10. Annexure A/9: Copy of OM dated 21.7.2009
11. Annexure A/10: Copy of seniority list/Civil list
as on 1.3.2010
12. Annexure A/11: Copy of OM dated 8.7.2010
13. Annexure A/12: Copy of reply under RTI Act
2005
14. Annexure A/13: Copy of OM dated 18.2.2008
15. Annexure A/14: Copy of OM dated 11.5.1990
16. Annexure A/15: Copy of ACR monitoring as
downloaded from the CSH website
17. Annexure A/16: Copy of order dated 21.8.2009
in OA 586/2009

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18. Annexure A/17: Copy of judgement in OA
847/2008
19. Annexure A/18: Copy of judgement in OA
1178/2009
20. Annexure A/19: Copy of judgement in OA
1644/2009
21. Annexure A/20: Copy of judgement dated
9.7.2010 in CWP 4474/2010
22. Annexure A/21: Copy of jugement in P.P.C.
Ravani

23. Misc. Application for joining together in a single

application alongwith affidavits
24. Vakalatnama
DELHI
filed by
DATED
(Ajesh Luthra)
Advocate
541, Western Wing,
Tis Hazari Court, Delhi -54

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IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI

O.A. No. /2010

IN THE MATTER OF

Dr. Manisha Malhotra & Ors. …Applicants

Versus

Union of India & Ors. …Respondents

MISC. APPLICATION UNDER RULE. 4(5) (A) RULES 1985 FOR JOINING TOGETHER IN A
SINGLE APPLICATION

RESPECTFULLY SHOWETH:

1. That applicants have filed the aforesaid OA before this Hon’ble Tribunal and crave
leave to read the contents of same as part and parcel of the present Misc. application
as the same are not reproduced here for the stake of brevity and conciseness.

2. That the applicants have a common cause of action and similar facts and same
prayer. Thus they pray to be permitted to file a joint Original Application.

It is therefore respectfully prayed that the applicants may be allowed to join in one OA,
in the interests of justice.

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Applicants
DELHI

DATED:
Through

(Ajesh Luthra)
Advocate
Ch. No. 541, Western Wing,
Tis Hazari Courts, Delhi-54.

(a)
(b)

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