Mahima Lall vs Union Of India And Others

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Aggrieved by the order of the respondents vide IHQ of MoD (Directorate of Medical Services (Army)) letter dated 13.09.2019, which gave only",,,,

partial redressal against her Statutory Complaint dated 17.04.2017, the applicant, a specialist medical officer of Lt Colonel rank, who has not been",,,,

empanelled for promotion to the rank of Colonel in the Promotion Boards (AFMS) No.3 : AMC (SPL) held on 28.11.2016, 01.03.2018 and 05.12.2018,",,,,

has filed this 0.A seeking the following reliefs:,,,,

(a) Call for the service records of the applicant including the ACR records of the applicant, and the Selection Board proceedings held on 28.11.2016",,,,

and Review Board held on 05.12.2018 for AMC officers, whereby she has been overlooked for promotion and set aside the impugned order of the",,,,

respondents dated 07.03.2019;,,,,

(b) Call for the records relating to processing of statutory complaint dated 17.04.2017 submitted by the applicant leading to issue of the impugned,,,,

Order dated 13.08.2018 and set aside the same to the extent that it does not grant the relief prayed for in the statutory complaint dated 17.04.2017,",,,,

and disposing of the same by a non-speaking order dated 13.08.2018;,,,,

(c) Set aside the two Annual Confidential Reports covering the period 11.09.2012 to 29.09.2013 and 30.01.2013 to 30.09.2013, which have been",,,,

considered by the Promotion Board due to being technically invalid; and,,,,

(d) Consider ineffective, irrational and unfair the policy for grant of points for 2 years training programme vis-a-vis higher merit 3 year Ph.D training",,,,

programme being denied due to delay upto award of Ph.D without any fault of higher merit candidate during Selection Boards held in intervening,,,,

period.,,,,

Heard the learned counsel for both sides and perused the pleadings and documents on record.,,,,

Facts germane to the case, as averred by the applicant, are that she was granted permanent commission in the Army Medical Corps (AMC) on",,,,

21.02.1998 upon successfully qualifying in MBBS from Armed Forces Medical College (AFMC), Pune and she later completed MD in Microbiology",,,,

from AFMC, Pune during 2005-08, in which she secured first rank in the examination conducted in May 2008, for which she was awarded the Col.",,,,

Jagdish Rai Memorial Silver Medal. Subsequently, in May 2009, the applicant was made to do one-year training in Pathology at the Command",,,,

Pathology Laboratory, Command Hospital (SC) Pune and was graded in Pathology after which she was posted to 150 GH, J&K. On 10.02.2010, the",,,,

Delhi High Court, in the matter of Major Mukul Bajpai v. Union of India and others (W.P(C) No. 3398 of 2008), considered the grading of",,,,

Microbiology and Biochemistry specialists in Pathology, consequent to which, the three specialities of Pathology, Microbiology and Biochemistry were",,,,

to be treated as stand-alone specialities as recognised by the Medical Council of India (MCI). Thereafter, she was posted to Army Hospital (R&R),",,,,

New Delhi, where she assumed the appointment of Graded Specialist (Pathology & Microbiology) on 12.07.2011. In the meanwhile, in May 2010,",,,,

Army Order (AO) 01/2010/DGMS was issued by Respondent No,2 wherein the channel of reporting of AMC officers was explained in detail, with a",,,,

proviso that ""any deviation in reporting from the laid down channel may render such report technically null and void."" It was also mentioned therein",,,,

that ""the RO/SRO are responsible for ensuring the correctness of the channel of reporting."" On 14.06.2012, Respondent No. 2 issued a letter",,,,

amending channel of reporting for AMC officers, wherein, at Annexure I to the Appendix, Pathology and Microbiology were laid down as separate",,,,

and independent specialities. Consequent to the applicant being approved as a Classified Specialist on 29.04.2012 (Part II order of 19.06.2013), her",,,,

Initiating Officer (I0) for ACR purpose should have been the Senior Advisor of the Speciality as HOD, as reiterated by the Channel of Repotting",,,,

given in letter by Respondent No.2 dated 22.03.2013. Thus, the Applicant contends that the initiation of her CR thereafter from 11.09.2012 to",,,,

29.01.2013 and from 30.01.2013 to 30.09.2013 by Col. (later Brig) Reena Bhardwaj, Senior Advisor (later Consultant), Pathology & Onco-Pathology",,,,

as 10, was in contravention to policy and hence needs to be set aside, being technically invalid. She claims that, the correct TO in the channel of",,,,

reporting was Col. Sourav Sen, HOD Microbiology at AH R&R, in keeping with the contents of the relevant AO and policy letters issued from time to",,,,

time.,,,,

The applicant has averred that, based on sponsorship subsequent to deep selection and comparative merit within the Armed Forces, she",,,,

successfully qualified the entrance test in the All India Competitive Exam on 29.01.2014 for undergoing Post-Doctoral (Ph.D) qualification programme,,,,

in Virology and Retro-Virology at AIIMS, New Delhi for 3 years from 2014 to 2017, and secured first position. While she was attending her Ph.D.",,,,

programme on Study Leave, Respondent No.2 issued letters dated 29.04.2015 and 05.02.2016 whereby it was specified that, for Lt. Col. to Col.",,,,

Promotion Board (No.3), the award of quantified marks for 'two year structured training during study leave for super speciality' would be 0.5 marks",,,,

and for Ph.D qualification would be 1.0 mark. Hence, the applicant claims that she should have been granted at least 0.5 marks during the Promotion",,,,

Boards held from 2016 onwards, after she had completed the first two year of her Ph.D programme. She had completed her Ph.D programme in",,,,

February 2017 and received her Ph.D on 04.11.2019. The applicant's complaint with regard to the consideration of her Statutory Complaint is that,",,,,

though she had raised a number of issues viz, review of CRs for inconsistency/subjectivity, technical validity of two CRs and non-award of any marks",,,,

for super speciality qualification, the respondents have, in their order, only referred to the issue of inconsistency in CR which resulted in expunction of",,,,

SRO's rating in ACR-2012, whereas they have ignored the other issues that were raised. Hence, the impugned order of 13.08.2018, being in the",,,,

nature of a non-speaking order, needs to be quashed.",,,,

Brig Dinkar Adeeb (Retd), learned counsel for the applicant has put forth the details of the applicant's brilliant academic record in terms of",,,,

achieving first position both in her MBBS and MD programmes at AFMC, Pune as well as her selection for Ph.D programme at AIIMS, New Delhi.",,,,

Despite that, her brilliance and related achievements have not been reflected in her Promotion Board results, whereby she was not empanelled for",,,,

promotion.,,,,

Learned counsel has argued that the applicant's ACRs were technically invalid though the applicant herself had submitted her ACR form,,,,

inadvertently to Col. (later Brig.) Reena Bhardwaj, Senior Advisor (later Consultant) Pathology & Onco-Pathology for initiation as JO, instead of Col",,,,

Sourav Sen, HOD Microbiology, due to lack of knowledge of the policy as given in AO 1/2010/DGMS. He pointed out that it is stated in the said AO",,,,

that the RO and SRO are responsible to ensure correctness of the ACR reporting channel.,,,,

Further, learned counsel has argued that it was the responsibility of the respondents, who had the latest records on the applicant, to have",,,,

automatically granted her 0.5 marks for Super Speciality once she had completed two years of her Ph.D programme. The cryptic order on her,,,,

Statutory Complaint made no mention, whatsoever, of this issue and it is only in the counter affidavit that, at Para 21, there is acknowledgement that",,,,

0.5 marks have been awarded to her, but only in the second and third Boards of 2018, and not in her first Board of November 2016. The applicant,",,,,

having completed the first two years of her Ph.D programme prior to conduct of her first Promotion Board in November 2016, she is clearly entitled to",,,,

award of 0.5 marks for Super Speciality in that Board too.,,,,

Mr. Tarunvir Singh Khehar, learned counsel for the respondents, has refuted the claims made on behalf of the applicant. Learned counsel has",,,,

averred that, based on the applicants' Statutory Complaint, she has already been granted partial redressal in terms of expunging the SRO's marks and",,,,

Promotion Board

(Med) No. 3","Total officers

considered","Merit position of the

last empanelled

officer","Merit position of the

Applicant","No. of officers with

higher merit to

applicant and not

empanelled

28 Nov 2016,197,56,164,107

01 Mar 2018,193,46,151,104

05 Dec 2018,233,60,151,37

05 Dec 2018 (Review

Promotion Board)",25,"Reviewed against promotion held on:

28.11.2016 Not Selected (NS)

01.03.2018 Not Selected (NS)",,

teaching designations were ascribed to the medical specialists/advisors/consultants also functioning as part of the teaching faculty linked to the,,,,

teaching functions at/by Army Hospital (R&R). Moreover, Col (later Brig) Reena Bhardwaj, being the senior most officer and functional head of the",,,,

Pathology Department, she was reporting as JO in ACRs and, accordingly the applicant herself had repeatedly handed over her ACR forms to the",,,,

former after showing her own appointment as Classified or Graded Specialist and her speciality as Pathology (Microbiology). Having considered the,,,,

arguments on both sides, we are in agreement with the stance of the respondents that the applicant's impugned ACRs were correctly initiated by Col",,,,

(later Brig) Reena Bhardwaj, who was the senior most officer/HoD in the Pathology Department and thus there is no technical infirmity on this count.",,,,

On the issue of grant of marks for post-doctoral super speciality qualification, the enunciated policy grants 0.5 marks for two years full time",,,,

structured training in a super speciality subject' during study leave or alternatively, 1 mark for Ph.D recognised by MCI. The applicant contends that",,,,

her 3 year Ph.D Programme at AIIMS, New Delhi had commenced in February 2014 and by the time her Promotion Board was held in November",,,,

2016, she had completed over two and a half years of her training. Thus, she should have been granted 0.5 marks in her Promotion Boards for post-",,,,

doctoral super speciality. The applicant contends that it would only have been fair for the respondents to have sought a confirmation about her,,,,

completion of two years of her Ph.D programme and grant her the marks for the same instead of taking it on themselves to not award any marks. The,,,,

respondents, in response to her representation, on their own, decided to grant her 0.5 marks in her second and third Promotion Boards conducted in",,,,

2018, once a certificate was received from the Professor, Department of Microbiology, AIIMS on 03.04.2017 to the effect that the applicant had",,,,

completed her 3 year Ph.D programme in February 2017. They did not give 1 mark as the award of Ph.D was still pending, which was completed",,,,

subsequently in 2019. However, she was not awarded any marks in the first Board in 2017. Having considered the contending arguments, we are of",,,,

the opinion that, knowing fully well that the applicant had commenced her 3 year post-doctoral Ph.D programme at AIIMS and had completed 2 years",,,,

of that programme by February 2016, the respondents should have sought confirmation from AIIMS about the situation prior to conduct of her first",,,,

Board in November 2016 and, after due receipt of confirmation, should have granted her 0.5 marks for the same. Leaving it to the applicant to make a",,,,

claim, whereas the respondents could well have sought the information before conduct of the applicant's Board, has resulted in related disadvantage to",,,,

the applicant/ which issue needs remedy in the interest of justice.,,,,

In the result, the respondents are directed to also grant 0.5 marks to the applicant during the first Promotion Board on account of her post-doctoral",,,,

qualification, having completed two years of her Ph.D programme at AIIMS prior to conduct of the Board in November 2016. This relief is in addition",,,,

to the redressal already granted by the respondents by way of expunging the SRO's ratings in ACR-2012. Fresh Review Board be conducted,,,,

accordingly within three months and the applicant be granted benefit of promotion to the rank of Colonel if she qualifies for the same.,,,,

The 0.A thus stands partly allowed as above. No order as to costs.,,,,

Pronounced in open Court on this the 5th day of March 2020.,,,,