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2020 Supreme(Megh) 7
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
Mohammad Rafiq, J.
Virender Baboria - Appellants
Vs.
The Union of India and Ors. - Respondent
WP(C) No. 232 of 2015
Decided On : 13-03-2020
For the Appellant : R. Mazumdar, Adv.
For the Respondents: K. Paul, CGC
Headnote:
Constitution of India,1950 - Article 14 and 226 – Quashed – Employment and Service - Petitioner was actually promoted to rank of Deputy Commandant (SMO) is evident from Part Two Order AR Cadre Officer at Annexure-4 to writ petition - Petitioner thereafter continued to serve respondents with his seniority being fixed at his original place and being counted - As per DACP Scheme petitioner was due to be promoted to next rank of CMO - Since he fulfilled qualifying requirement DPC was required to consider him in year - When no action was initiated by respondents he pleaded his case before his seniors - He was however surprised to know that his case for consideration by DPC has been deleted since orders fixing his seniority had been cancelled and seniority would now be fixed and he would now be eligible for promotion to Deputy Commandant (SMO)only in year 2018 - Petitioner submitted a representation addressed to Directorate General Assam Rifles -respondent - Commandant Assam Rifles duly forwarded his representation recommending that grievance of petitioner deserves redressal - Director General Assam Rifles vide order informed that due of promotion in respect of petitioner as Assistant Commandant to Deputy Commandant is now to be taken as - Held, Impugned order is liable to be set aside also because order was passed in breach of principles of natural justice and inasmuch as respondents have drastically changed of promotion of petitioner from rank of Assistant Commandant to rank of Deputy Commandant - This has caused serious prejudice to petitioner - Neither did they serve any action notice inspired upon him nor did they provide to him any opportunity of hearing - Impugned order has been passed in utter breach of principles of natural justice and is therefore violative of Article 14 of Constitution of India - If records are correctly right petitioner having completed period of years of service in Grade Pay of including service rendered in pre-revised scale of amount and attained required Bench Mark would indeed be entitled to promotion to rank of Assistant Commandant and thereafter having again attained required Bench Mark and completed further period of years from petitioner would be also entitled to promotion to rank of Deputy Commandant - Petition Allowed.
ORDER :
Mohammad Rafiq, J.
1. This writ petition has been filed by Dr. Virender Baboria under Article 226 of the Constitution of India inter alia, with the prayer that the order dated 17.07.2015 passed by the Director General, Assam Rifles, Shillong (respondent No. 2) be quashed and set aside and the respondents be directed to grant him the benefit of the first promotion as Deputy Commandant (SMO) under the Dynamic Assured Career Progression Scheme (for short 'DACP Scheme') w.e.f. 01.01.2008 on completion of 4 years of service in the Grade Pay of Rs. 5400 in Pay Band 3 and further consider him for the second promotion to the rank of CMO (2IC) w.e.f. 01.01.2013 on completion of 5 years of service in the Grade Pay of 6600 in Pay Band 3.
2. The facts pleaded in the writ petition are that the petitioner joined the services of the Assam Rifles on 01.01.2004 as an Assistant Commandant (Medical Officer) after having been selected by the Medical Officer Selection Board held at ITBP Headquarter New Delhi. Career Progression of the Medical Officers serving the Central Government, is currently regulated by the Office Memorandum No. F No. A.45012/2/2008-CHS.V dated 29.10.2008 issued by the Ministry of Health & Family Welfare, CHS Division, Government of India. As per the said Office Memorandum, a Medical Officer is granted four time bound promotions in the following manner:-
| “Promotions under DACP Scheme | No. of years of regular service required for promotion | |
| From | To |
|
| Medical Officers (Grade Pay Rs. 5400 in PB-3) | SMO (Grade Pay Rs. 6600 in PB-3) | 4 years in Grade Pay of Rs. 5400 in PB-3 including service rendered in the pre-revised scale of Rs. 8000-13500 |
| SMO (Grade Pay Rs. 6600 in PB-3) | CMO (Grade Pay Rs. 7600 in PB-3) | 5 years in Grade Pay of Rs. 6600 in PB-3 including service rendered in the pre-revised scale of 10000-15200 |
| CMO (Grade pay Rs. 7600 in PB-3) | CMO (NFSG) (Grade Pay Rs. 8700 in PB-4 | 4 years in Grade Pay of Rs. 7600 in PB-3 including service rendered in the pre-revised scale of Rs. 12000-16500 |
| CMO (NFSG) (Grade pay Rs. 8700 in PB-4) | SAG Grade (Grade Pay Rs. 10000 in PB-4 | 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” |
3. It is not in dispute that the Dynamic Assured Career Progression Scheme is applicable to the Assam Rifles which is a Central Para-Military Force. The Directorate General, Assam Rifles (MS) clarified this aspect in the signal bearing No. DE SHG SER No. 080595 that the promotion of the Medical Officer in CPMFS till Senior Administrative Grade shall be time bound as per Ministry of Health and Family Welfare Order Memorandum dated 29.10.2008. According to the petitioner, he was required to be promoted from the rank of Assistant Commandant (MO) to the rank of Deputy Commandant (SMO) w.e.f. 01.01.2008. In fact, the petitioner along with others was promoted to the rank of Deputy Commandant (SMO) in SITU from the rank of Assistant Commandant (MO) w.e.f. 01.01.2008 under the authority of Note Sheet No. CF/32230194/2013/PERS(III) dated 09.10.2013 issued by the Ministry of Home Affairs, a copy thereof has been placed on record at Annexure-3 to the writ petition. The fact that the petitioner was actually promoted to the rank of Deputy Commandant (SMO) w.e.f. 01.01.2008 is evident from Part Two Order: AR Cadre Officer at Annexure-4 to the writ petition. The petitioner thereafter continued to serve the respondents with his seniority being fixed at his original place and being counted from 01.01.2008. As per the DACP Scheme, the petitioner was due to be promoted to the next rank of CMO (2IC) w.e.f. 01.01.2013. Since he fulfilled the qualifying requirement, the DPC was required to consider him in the year 2014. When no action was
