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1 Print Copy GDMO__OA2010

1 Print Copy GDMO__OA2010

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01/17/2013

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IN THE CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH: NEW DELHI
OA No
.
2395/2010 
IN THE MATTER OF
1. Dr, Manisha MalhotraW/o Dr. Sudhansh,MalhotraR/o R-164, GreaterKailash-I,New Delhi-482.Dr. Jyoti PuriW/o Dr. K.B. PuriR/o B-1/5 Pashwa PrasadApart,Gole Market, New Delhi-13.Dr. Madhu GuptaW/o Dr. R.P. MittalR/o Plot 5, Sita II WestPatel Nagar,New Delhi4.Dr. K.P. SethyS/o Late Sh. SahadevSethyR/o D 16 E H.I.G. Flats,MayapuriNew Delhi-645.Dr. Niru KumarW/o Dr. G. Prem KumarR/o 13 A/4 WEA KarolBaghNew Delhi6.Dr. Bharat SinghS/o Sh. Karam SinghR/o B 3 B/59 A JanakPuri,New Delhi -507.Dr. R.K. PuniaS/o Late Sh. M.L. PuniaR/o B-203 Anmol Appts.Plot 3 A Sector 2,DwarkaNew Delhi8.Dr. Pushpa LataW/o Dr. R.K. PuniaR/o B-203 Anmol Appts.Plot 3 A Sector 2,DwarkaNew Delhi9.Dr. Subir RoyS/o Late Sh. B. RoyR/o G-1357, ChittaranjanParkNew Delhi10.Dr. G.D. PaliyaS/o Sh. Chhotu RamR/o S-50 Hudio PlaceAndrewsganjNew Delhi -4911.Dr. Rajendra PrasadS/o Sh. Ishwar SinghR/o D-II/340, PandaraRoad,New Delhi.12.Dr. Rajbala KaushalW/o Dr. J.C. PasseyR/o D-II/169- WestKidwai Nagar,New Delhi-2313.Dr. Chinmoya KumarMohantyS/o Late Sh. Y.B.MohantyR/o B-3/6 M.S. FlatsPeshwa RoadGole Market, New Delhi-114.Dr. Chandra PrakashGuptaS/o Sh. I.P. GuptaR/o 3-C, Suryan Appt.Sec. 13, RohiniNew Delhi-8515.Dr. Swapna TalukdarW/o Sh. Asim TalukdarR/o K-46 (F.F) KalishColony,New Delhi-4816.Dr. Shailesh KumarSinghS/o Sh. Lakshmi NaryanaSinghR/o G-2, 34/1, DesuRoad,Mehrauli,New Delhi-3017.Dr. Janak PalS/o Sh. Har GulalR/o 24-L Sect-IV,Gole MarketNew Delhi18.Dr. Meera ChakrabartyW/o Dr. A.K. ChakrabartyR/o A-8 MS Flats TilakLaneNew Delhi19.Dr. Sushil N.G. LugunS/o Juel LugunR/o 29 G/1, 201 KaushikAppt.Mehrauli, New Delhi-30
20.Dr. Shashi SatijaW/o Dr. Hansraj SatijaR/o A5/7 Pashim ViharNew DelhiApplicantsVersus
1.Union of India Through SecretaryMinistry Health &Family WelfareNirman BhawanNew Delhi
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2.Ministry oPersonnel, PublicGrievances and Pensions Through SecretaryDepartment of Personnel and TrainingNorth Block,New Delhi-110 001.3.UPSC Through itsChairmanDholpur House,New Delhi - 110-069Respondents
ORIGINAL APPLICATION UNDER SECTION 19 OF THEADMINISTRATIVE TRIBUNAL ACT, 1985RESPECTFULLY SHOWETH:DETAILS OF THE APPLICATION:
1.
PARTICULARS OF THE ORDER(S) AGAINST WHICHTHE PRESENT APPLICATION IS FILED:
 The present application is made against the illegal decision of the respondents in ignoring the applicants for considering and grantof 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 levelvide OM No. A 45012/2/2008-CHS. V dated 29.10.2008 Ministryof Health & Family Welfare (in terms of VI CPC) and at the same timeconsidering and granting the benefits to the juniors. DACP envisagesgrant and placement of NFSG scale Doctors to the next higher leveli.e. Senior Administrative Grade and the advancement to SAG iswithout linkage to the availability of vacancies at the higher level.Vide impugned order No. 28021/1/2010-CHS V dated 8.7.2010 issuedby the Ministry of Health & Family Welfare, (CHS-V section)(
Annexure A/1 )
as published on Ministrys website , therespondents intend to send the ‘below benchmark’ ACRs of the 392NFSG doctors of CHS including the applicants to them calling forrepresentations. This is being done in purported requirements of instructions issued by DOP&T vide OM No. 21011/1/2010- Estt.-Adated 13.4.2010 (
Annexure A/ 2 )
which in the matter of promotionprescribes that below benchmark ACRs recorded prior to 2008-2009be communicated to the official concerned if the employee is to beconsidered 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
), whichprescribes that the prescribed benchmark of ‘Very Good’ should bemet in all ACRs of five years under consideration. The aforesaid OMdated 13.4.2010 is impugned to a limited extent as it prescribes
22
 
communication of all ACR (adverse/below benchmark) after passageof any number of years.It is submitted that since the primary instruction containedin OM dated 18.2.2008 requiring for 5 Very Good ACRs in all fiveyears is not applicable to DACP scheme and also that the same isapplicable in situation of selectively only (which is not the case inhand as grant of higher grade is not linked with the availability of vacancies, as per DACP Scheme), the action of the department inapplying OM dated 13.4.2010 (requiring communication of belowbenchmark ACR) and consequent order dated 8.7.2010 purportingcommunication of below benchmark ACR is illegal and unjustifiedmoreso, when juniors are being considered in preference of Seniors.In any case, it is submitted that communication of ACRsfalling beyond the preceeding three years of the year when DPC isheld is not permissible as per GOI instructions OM No. 22011/3/08-Estt. (D) dated 11.5.1990 (
Annexure A/4
). The said instruction arestill subsisting.In the context, it is relevant to point out that the last yearunder consideration is of 2006-2007 while the DPC has met on15.5.2010 (i.e. year 2010-2011). The respondents in their OM dated4.7.2010 have specifically mentioned about communication of ACRsof year 2006-2007 and also of years prior to 2006-2007. On thisaspect the applicants rely upon a decision of this Hon’ble Tribunal inOA 586/2009 decided on 21.8.2009 where communication of adverse/below benchmark ACR after three year was held to be notpermissible. Furthermore, the respondents are acting in amechanical manner to deprive the DACP benefits to the applicants asthey have not even cared to see that invariably in all the cases, eitherthe reporting officer or the reviewing authority has already retiredthereby making the whole exercise aimed to grant opportunity toconcerned official to seek upgradation as a futile exercise. On thisaspect, the applicants rely upon judgements passed by the Hon’bleSupreme Court in Dastikar’s case and of this Hon’ble Tribunal in OA1644/2009 (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 ACRsin question is that the ACRs have been recorded/reviewed by suchdoctors who are/were regularised doctors while the applicants areregularly appointed doctors. Moreover, the ACRs have been recordedby the officials of same level as of applicants while ACRs were/arerequired to be recorded by officials seniors to the officer under report.
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