Dr. Satish Kumar Ratnakar vs Union Of India & Anr.

By Mallika Arya, AM.-

The applicant through this Original Application is seeking direction to the respondents to consider him for promotion to the post of Chief Medical Officer (CMO) w.e.f.13.07.2018 with all consequential benefits.

Brief facts of the case are that the applicant joined Indian Ordnance Factory Health Service (IOFHS) as Assistant Medical Officer (AMO) on 13.07.1998, whereas Dr. S. Sengupta was appointed on 14.10.1998. The respondent organization framed new rules, namely, Indian Ordnance Central Administrative Tribunal^{Factory Health Services (Group ‘A’ Post) Recruitment Rules, 2015 (SRO-}44), which came into force w.e.f.30.11.2015 (Annexure A-3). As per Schedule II of the said rules, promotion in the case of CMO can be made (without linkage to vacancy) from the post of Principal Medical Officer, NFSG having seven years of regular service. Otherwise, candidates having 20 years of regular service and regularly promoted as Principal Medical Officer, NFSG can be considered. As per the Recruitment Rules, the applicant is entitled to get promoted as CMO after having completed 20 years of regular service on 13.07.2018. However, Dr. S. Sengupta, who joined the IOFHS after the applicant, got promoted vide order dated 16.10.2018 w.e.f.14.10.2018, i.e. exactly after completion of 20 years of service.

In their reply, the respondents have stated that the applicant joined IOFHS as an AMO on 13.07.1998, whereas Dr. Sengupta joined as an AMO on 14.10.1998. Both these officers were recruited to the IOFHS through the Combined Medical Services Examination (CMSE) 1997 conducted by the UPSC and their inter se seniority has been assigned as per UPSC merit list. Vide orders dated 27.03.2003, the applicant and Dr. Sengupta, along with six Doctors, were promoted from AMO (Junior Time Scale) to SMO (Senior Time Scale) on 27.03.2003. Thereafter, vide order dated 14.10.2007, Dr. Sengupta, who was initially junior to the applicant in JTS and STS got promoted as PMO/JAG (Officiating Grade). The applicant was also considered in the same DPC for the panel year 2007-2008 but he was not found fit. As per the prescribed norms, once an officer is superseded in promotion, his seniority will be reckoned from the subsequent batch to which he is assigned on promotion. Thus, from the year 2007 onwards, the seniority of applicant is being reckoned with the next batch and below Dr. Sengupta. Thereafter, vide order dated 14.10.2011, Dr. Sengupta was promoted as PMO (SG) and on 14.10.2018, he was further promoted to the grade of CMO (SAG) after completion of 7 years of service as PMO (SG). The applicant got promoted to the post of PMO (OG) on 01.04.2011. His seniority has been fixed with the other officers who became PMO (OG) in 2011. Now the applicant is 04 panel years junior to Dr. Sengupta.

The applicant has filed rejoinder to the reply filed by the respondents inter alia stating that as per SRO-44, 20 years of service is required for being eligible for promotion as CMO. The applicant had completed 20 years of service before Dr. Sengupta and, as such, he ought to have been promoted at par with Dr. Sengupta. Though he was promoted to PMO (SG) w.e.f.2015, he was entitled for promotion w.e.f.2011. He gave a representation dated 04.10.2016 (Annexure RJ-8) to the Secretary, Department of Defence Production with regard to his grievance. However, nothing has been done nor any communication was made to him.

We have heard the learned counsel for the parties and perused the pleadings and the documents available on record.

The SRO-44 (Annexure A-3) provides that the Principal Medical Officer (NFSG)/Deputy Director Health Services (NFSG), who have rendered seven years of regular service in the pay scale of Rs.37400-67000 in Pay Band-4 with Grade Pay of Rs.8700/-, are entitled for promotion to Chief Medical Officer/Additional Director Health Services. It further provides that the officer, who has completed 20 years of regular service and already regularly promoted as Principal Medical Officer (NFSG)/Deputy Director Health Services (NFSG) can be promoted as CMO/Additional Director Health Services. It is evident from the record that the applicant had not only completed 20 years of regular service but also got regularly promoted as Principal Medical Officer (NFSG) in the year 2015. The reason because of the adverse entries in his ACR for the year 2006-07, which later on got expunged vide the letter dated 26.03.2013 (Annexure RJ-1). However, despite the several representations by the applicant, no action was taken by the respondents to antedate his promotion to PMO (SG).

The SRO-44 governs the conditions of eligibility for promotion to the post of CMO. The relevant provision prescribes the requisite qualifying service in the following manner:-“ the officer may become eligible on completion of seven years of regular service as PMO (NFSG failing which an officer having 20 years of regular service and having already been promoted regularly as PMO (NFSG) is also eligible to be considered.” The two qualifying situations contemplated under SRO-44 have to be given their natural meaning. The first category covers an officer who has completed the prescribed seven years of regular service in PMO (NFSG). The second category, however, specifically takes care of an officer who has completed 20 years of regular service and has already been regularly promoted as PMO (NFSG).

In the present case, it is not disputed that the applicant has completed 20 years of regular service on 13.07.2018. It is also not disputed that he has been regularly promoted as PMO (NFSG) in 2015. Thus, the applicant satisfies both the essential requirements in the alternative category contemplated by SRO-44. This fact has not been contested by the respondents in their reply or during the arguments in the matter. It is trite that the eligibility prescribed by statutory Recruitment Rules cannot be enlarged or restricted by administrative interpretation contrary to the plain language of the Rules. Once an employee satisfies the prescribed eligibility conditions, his case has to be considered in accordance with the applicable Recruitment Rules and the applicable instructions. We are, therefore, of the considered view that the respondents were not justified in not considering the applicant’s claim for promotion to CMO, w.e.f.13.07.2018 when admittedly he had completed 20 years of regular service and had already been regularly promoted as PMO (NFSG).

Accordingly, this Original Application is allowed. The respondents are directed to consider the applicant's case for promotion to the post/grade of CMO in accordance with SRO-44 from due date, treating the applicant as eligible under the alternative condition of 20 years of regular service coupled with his regular promotion as PMO (NFSG), as per rules. Let this entire exercise be completed within a period of three months from the date of receipt of a copy of this order. No order as to costs.