Central Administrative Tribunal - Delhi
Rama Chaudhry vs All India Institute Of Medical Sciences on 9 December, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1982/2015
New Delhi this the 9th day of December, 2015
Hon''ble Mr. A.K.Bhardwaj, Member (Judicial)
Hon''ble Mr. V.N.Gaur, Member (A)
Dr. Rama Chaudhry,
Professor Aged about 57 years,
W/o Dr. Kamlesh Chaudhry,
R/o D-28, Mansarovar Garden,
New Delhi-110 015
Presently Posted at
All India Institute of Medical Sciences,
Department of Microbiology,
New Delhi. ... Applicant
(By Advocate Ms. Jyoti Singh, senior counsel with Shri Amandeep
Joshi, Ms. Tinu Baweja, Ms. Ekta Kapil and Ms Atishree Sood)
VERSUS
1. All India Institute of Medical Sciences,
Through its Director,
Ansari Nagar, New Delhi-110029
2. Dr. Gita Satpathy,
Aged about 60 years,
W/o Dr. S.K.Panda
Posted at
All India Institute of Medical Sciences
Department of Ocular Microbiology,
New Delhi. ... Respondents
(By Advocate Mr.R.K.Gupta and M.K.Singh)
ORDER
Hon'ble Mr. A.K.Bhardwaj, Member (J):-
The prayer made in the OA filed under Section 19 of the Administrative Tribunals Act, 1985 read thus:-
"(a) Allow the present OA and set aside the impugned office memorandum dated the 15th May 2015 (Annexure A-1);2 OA 1982/2015
(b) Declare that it is the original applicant who is entitled to be appointed as a head of the Department of microbiology, being the senior most in the Department of microbiology, alongwith all consequential benefits.
(c ) Any other relief/order which this Hon''ble Tribunal deems fit and proper in the facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.
(h) award costs of the proceedings in favour of the applicant."
Ms. Jyoti Singh, learned senior advocate appeared for the applicant and submitted:
(i) The Impugned Office Memorandum no.F.20-
3/2014-Estt.1 dated 15.05.2015 is vitiated for the reason that Dr.Gita Satpathy, Professor of Ocular Microbiology being junior to applicant could not have been appointed Head of the Department of Microbiology.
(ii) The Ocular Microbiology is a stream different from Microbiology and a Professor in Ocular Microbiology cannot be appointed as Head of the Department of Microbiology.
(iii) The appointment of the respondent No.2 as Associate Professor was made in Dr.R.P.Centre of Ophthalimic sciences and not in department of Microbiology, AIIMS, thus on retirement of Dr. J.C.Samantary, Professor & head Department of Microbiology, the applicant being next senior most 3 OA 1982/2015 Professor should have been appointed as Head of the department and not the respondent no.2.
(iv) In terms of Office Memo. No. F.6-14/83-Estt.1 dated 07.01.2015 on attaining the age of superannuation, Dr. J.C.Samantary, Professor & Head, Department of Microbiology was requested to handover the charge of HOD of Microbiology to the next senior most faculty member in the department i.e the applicant, herein.
(v) In the year 2013, when Dr. J.C.Samantary proceeded on medical leave, the applicant being the senior most faculty was given look after charge of department of Microbiology.
2. Opposing the OA, Mr. R.K.Gupta, learned counsel appeared for learned counsel for respondent no. 1 and 2 raised the preliminary objection regarding maintainability of the Original Application and submitted that once the applicant has not complied with the provision of Section 20 of Administrative Tribunals Act, 1985, the OA is premature and is liable to be rejected on this ground alone. He further espoused:
(i) The initial appointment of both the applicant and respondent no. 2 was as Lecturer/Assistant Professor and respondent No. 2 being appointed in such capacity on 20.05.1988 i.e. much ahead of applicant who was so appointed on 11.05.1992, thus the respondent no.2 is indubitably senior to the applicant herein.4 OA 1982/2015
(ii) Both the applicant and respondent No.2 were recommended for their appointment as Assistant Professor by the same Screening Committee and the Ocular Microbiology is a subject not different from Microbiology but is one of the branch of Microbiology, as the expertise of the applicant herein also is in Aerobic and Anaerobic. The other branches of Microbiology are Mycology, Parasitology and Zoonotic infection.
(iii). In the seniority list of Associate Professor as on 31.12.2011, the seniority position of respondent No.2 is at serial no. 45 and that of applicant is at serial no. 46, thus even otherwise also it cannot be said that the applicant is senior to respondent no. 2.
Finally, the learned counsel relied upon the judgments of Hon'ble Supreme Court in Malcom Lawrence Cecil D'Souza Vs. Union of India and Ors (1976) 1 SCC 599) and P.S.Sadasivaswamy Vs. State of Tamil Nadu (1975) 1 SCC 152) to espouse that the settled issue of seniority and promotion cannot be reopened after long delay.
3. Rejoining the submission, Ms. Jyoti Singh, learned senior advocate submitted that in terms of Regulation 26 of AIIMS Regulations, 1999 as well as rules/decisions of the G0verning body/Institute regarding fixation of seniority of faculty members appointed / promoted either under open selection or under 5 OA 1982/2015 assessment promotion Scheme, the seniority of employees of the institute in each category should be determined in the order of merit in which they are selected for appointment to the grade in question and those selected on an earlier occasion should be placed above those selected later. According to her, once the Selection Committee met on 06.3.1992 included the applicant in select list above the respondent No.2, the said respondent could not have been treated senior to applicant. Even in the counter affidavit filed on behalf of respondent no. 1 & 2, it has specifically been mentioned that it is always senior most person, who is entitled to be head of Department at AIIMS. It is only a member of the same faculty who is made HOD and in consonance with the principle when Dr.Chandralekha from Anaesthesiology stream retired, the next senior most faculty member Dr. N.K.Shukla was not made HOD as he was from a different stream i.e. surgical oncology and it was Dr. M.K.Arora alone who was made head of the Department. The seniority list relied upon by the learned counsel for the applicant is not the seniority list, but is only a list of members of faculties, as there cannot be common list for the members of different faculty. A compilation of names of faculty members in hay way order is wrongly depicted by the applicant as seniority list. The learned counsel for the respondents again intervened and submitted that as far as Dr.R.P Centre is concerned, the units therein have not yet been declared as full fledged department and further as can be seen from memorandum No. F.20- 11/89-Estt.1 dated 20.5.1994, the faculty members of RP Centre are 6 OA 1982/2015 transferable to the parent department i.e. AIIMS. In the Memo No. F.No.6-14/83-Estt.1 dated 07.01.2015 available in the record of AIIMS, there is no mention that the same is marked to applicant. Continuing her submission in rejoinder, Ms. Jyoti Singh, learned senior advocate espoused:-
(i) May be the faculty Member from RP centre are transferable to AIIMS, but first the respondent no. 1 should have transferred respondent no.2 from RP Centre to AIIMS in Microbiology department and only then it could have appointed her as HOD, if permissible.
(ii) As can be seen from the minutes of the Academic Committee held on 3.10.1991, the Units in RP Centre have already been designated as departments, thus the respondents are not correct in submitting that the units of RP Centre are not full-fledged department. The plea of learned counsel for applicant that the date of joining of applicant as Lecturer/Assistant Professor was ahead that of respondent no. 2 cannot be accepted, for the simple reason that the applicant herein had initially joined in UCMS in 1987.
She concluded her arguments by submitting that in view of the law declared in SI Roop Lal and Another Vs. Lt. Governor though Chief Secretary, Delhi and Ors (2000 (1) SCC 644), the counsel for AIIMS should not have represented respondent No. 2. and the OA is liable to be allowed on this ground alone that the respondent no.1 7 OA 1982/2015 filed affidavit on behalf of respondent no.2 also who is beneficiary of its illegal action.
4. We heard counsel for parties and perused the record. The applicant herein joined UCMS w.e.f 19.05.1987 and worked their till 11.05.1992 when she joined AIIMS as Lecturer/Assistant Professor. The Office Memo No.11-1/92-Estt.1 dated 27.04.1992 in terms of which the applicant was appointed as Assistant Professor of Microbiology in AIIMS read thus:-
"Memorandum Sub: Appointment of Dr.Rama Choudhary to the post of Assistant Professor of Microbiology at the All India All India Institute of Medical Sciences, New Delhi.
...
With reference to his/her her interview of 6/3/92 for the post of Assistant Professor of Microbiology at this Institute and on the recommendations of the Selection Committee, the Governing Body/Institute are pleased to approve of his/her temporary appointment to a temporary post of Assistant Professor of Microbiology at the All India Institute of Medical Sciences on a pay of Rs.3500/-p.m.plus such other allowances as are admissible to the Central Government servants of his/her status stationed at Delhi/New Delhi or Ballabhgarh (Haryana) as the case may be, in the scale of pay of Rs.3500-125-4500+NPA.
Accordingly, the aforesaid post is offered to him/her on the terms and conditions as are made applicable at the Institute from time to time, some of which are indicated hereunder:-
1. Private practice, of every kind, including laboratory and consultant practice, is prohibited.
2. The post is temporary but is likely to continue on a year to year basis.
3. His/her appointment is temporary and may be terminated at any time with a month's notice by either side, viz,, the appointee or the appointing authority, without assigning any reason whatsoever, It will be open to the Institute to pay, in lieu of notice, pay for the period by which the notice falls short of one month. Similarly, if he/she wishes to resign his/her post, he/she may do so by depositing with the Institute pay and allowances in lieu of the notice period by which it falls short of one month.8 OA 1982/2015
4. The appointment will be further subject to the compliance of the following requirements on the part of appointee:
i) production of a certificate of fitness from the Medical Board of the Institute before he/she assumes charge of the post- the time and date for medical examination will be intimated to him/her separately.
ii) Production of the following certificates, in original, in proof of his/her academic qualifications and age
a) Degree/diploma/certificates;
b) Certificate of age;
c) Good character certificate from two gazetted
officers of the Central/State Govt.or
Stipendiary Magistrate in the prescribed form (Annexure 1);
d) Discharge certificate from his/her previous employer;
e) A statement of marital declaration in the form enclosed (Annexure II);
f) Attestation form in duplicate in the form enclosed (Annexure III)
g) Statement in regard to personal data in the form enclosed (Annexure-IV)
5. Other conditions of service, such as benefits of Pension, General Provident Fund, leave etc. will be as are provided for in the Rules, the Regulation etc of the Institute as amended from time to time.
6. He/she may please note that he/she will be required to conform to the rules, regulation, discipline and code conduct prevailing in this Institute and those imposed by the Institute on their employees from time to time.
7. His/her application for post/s outside the Institute will be forwarded as per rules of the Institute on the subject applicable from time to time.
8. He/she is advised to apply for the allotment of Institute's accommodation in the AIIMS campus within a fortnight of his/her joining this Institute so as to qualify for grant of Delhi Compensatory and House Rent Allowances, if otherwise admissible.
9. He/she shall be liable to serve, as and when needed, for a minimum period of four years (including the period spent on training) in the Defence Services or on work relating to defence efforts, anywhere in India or abroad. If so required and that the liability to serve in the Defence Services will be limited to 10 years. (Applicable only to medical and engineering graduate).9 OA 1982/2015
10. He/she is liable to serve in any of the Rural Health Centres of the Institute, if so required.
11. If any of the declaration made or information furnished by him/her is proved to be false or if he/she is found to have wilfully suppressed any material information, he/she will be liable to removal from the Institute's service besides any other action that the Institute may deem necessary.
12. Stay in the Institute's campus, as soon as a residence is allotted, is compulsory in the case of members of the faculty and such other staff, as are included in the 'essential' list of the AIIMS allotment of Residences Rules, 1961.
13. If the offer is acceptable to him/her on the aforesaid conditions, he/she may please communicate his/her acceptance to the undersigned immediately and also report himself/herself for duty as early as possible, but not later than the 27th of.......... If he/she does not send his/her acceptance immediately and does not join the post by the stipulated date, he/she should consider this offer of appointment as cancelled/withdrawn.
14. No travelling or other allowances will be payable to him/her for obtaining the medical or other certificates or for joining the post at the Institute.
The receipt of this letter may please be acknowledged." Her joining report, placed on record at page 230 read thus:-
"With reference to your letter No.F 11-1/92-Estt-1 dated the 27/4/92, I wish to inform you that the offer of appointment as Assistant Professor (Microbiology) at All India Institute of Medical Sciences, is acceptable to me on the terms and conditions mentioned therein.
Certified that I have in the forenoon/afternoon of 11 May, 1992 assumed th charge of the post of Assistant Professor (Microbiology) at the AIIMS.
Sd/-
Signature xxxxx NAME Dr (Mrs) Rama Chaudhry Designation Asstt.Professor Microbiology."10 OA 1982/2015
The Memo. No.F.11-1/88 Estt.1 dated 28.04.1988 in terms of which respondent no. 2 was appointed as Lecturer in Ocular Microbiology for Dr. RP Centre read thus:-
"Memorandum Sub: Appointment of Dr. (Mrs) Gita Satpathy to the post of Lecturer in Ocular Microbiology for Dr. R.P.Centre at the All India All India Institute of Medical Sciences, New Delhi.
...
With reference to his/her her interview of ........ for the post of Lecturer in Ocular Microbiology at this Institute and on the recommendations of the Selection Committee, the Governing Body/Institute are pleased to approve of his/her temporary appointment to a temporary post of Assistant Professor of Microbiology at the All India Institute of Medical Sciences on a pay of Rs.1500/-p.m.plus such other allowances as are admissible to the Central Government servants of his/her status stationed at Delhi/New Delhi or Ballabhgarh (Haryana) as the case may be, in the scale of pay of Rs.............+NPA.
Accordingly, the aforesaid post is offered to him/her on the terms and conditions as are made applicable at the Institute from time to time, some of which are indicated hereunder:-
1. Private practice, of every kind, including laboratory and consultant practice, is prohibited.
2. The post is temporary but is likely to continue on a year to year basis.
3. His / her appointment is temporary and may be terminated at any time with a month's notice by either side, viz., the appointee or the appointing authority, without assigning any reason whatsoever, It will be open to the Institute to pay, in lieu of notice, pay for the period by which the notice falls short of one month. Similarly, if he/she wishes to resign his/her post, he/she may do so by depositing with the Institute pay and allowances in lieu of the notice period by which it falls short of one month.
4. The appointment will be further subject to the compliance of the following requirements on the part of appointee:
i) production of a certificate of fitness from the Medical Board of the Institute before he/she assumes charge of the post- the time and date for medical examination will be intimated to him/her separately.11 OA 1982/2015
ii) Production of the following certificates, in original, in proof of his/her academic qualifications and age
h) Degree/diploma/certificates;
i) Certificate of age;
j) Good character certificate from two gazetted
officers of the Central/State Govt.or
Stipendiary Magistrate in the prescribed form (Annexure 1);
k) Discharge certificate from his/her previous employer;
l) A statement of marital declaration in the form enclosed (Annexure II);
m) Attestation form in duplicate in the form enclosed (Annexure III)
n) Statement in regard to personal data in the form enclosed (Annexure-IV)
5. Other conditions of service, such as benefits of Pension, General Provident Fund, leave etc. will be as are provided for in the Rules, the Regulation etc of the Institute as amended from time to time.
6. He/she may please note that he/she will be required to conform to the rules, regulation, discipline and code conduct prevailing in this Institute and those imposed by the Institute on their employees from time to time.
7. His /her application for post/s outside the Institute will be forwarded as per rules of the Institute on the subject applicable from time to time.
8. He /she is advised to apply for the allotment of Institute's accommodation in the AIIMS campus within a fortnight of his/her joining this Institute so as to qualify for grant of Delhi Compensatory and House Rent Allowances, if otherwise admissible.
9. He/she shall be liable to serve, as and when needed, for a minimum period of four years (including the period spent on training) in the Defence Services or on work relating to defence efforts, anywhere in India or abroad. If so required and that the liability to serve in the Defence Services will be limited to 10 years. (Applicable only to medical and engineering graduate).
10. He/she is liable to serve in any of the Rural Health Centres of the Institute, if so required.
11. If any of the declaration made or information furnished by him/her is proved to be false or if he/she is found to have wilfully suppressed any material information, he/she will be liable to removal from the Institute's service besides any other action that the Institute may deem necessary.12 OA 1982/2015
12. Stay in the Institute's campus, as soon as a residence is allotted, is compulsory in the case of members of the faculty and such other staff, as are included in the 'essential' list of the AIIMS allotment of Residences Rules, 1961.
13. If the offer is acceptable to him/her on the aforesaid conditions, he/she may please communicate his/her acceptance to the undersigned immediately and also report himself/herself for duty as early as possible, but not later than the 27th of.......... If he/she does not send his/her acceptance immediately and does not join the post by the stipulated date, he/she should consider this offer of appointment as cancelled/withdrawn.
14. No travelling or other allowances will be payable to him/her for obtaining the medical or other certificates or for joining the post at the Institute.
The receipt of this letter may please be acknowledged." Apparently the applicant was appointed as Lecturer Microbiology in AIIMS while the respondent No. 2 was appointed as Lecturer in Ocular Microbiology for Dr.RP Centre. The relationship between the Institute and the Centres at the AIIMS, New Delhi has been defined in Memorandum No. 20-11/89-Estt.1 dated 27.03.1992 which read thus:-
"Sub: Relationship between the Institute and the Centre at the AIIMS, New Delhi.
...
In continuation of this Office Memorandum No.22-43/71- Estt.1 dated 27.04.1983 on the subject noted above, with the approval of the Academic Committee/Governing Body, the following orders are issued for the functioning of the Departments vis-à-vis Centres at the AIIMS:-
1. Units of specialization in various centres should be created with a view to develop them into fulfledged departments in the long run so as to make the centres fully self-sufficient.
2. Till such time, these units are declared as fulfledged departments on the basis of well laid down guidelines, they will be a part of the parent department of AIIMS.13 OA 1982/2015
3. The detailed guidelines for declaring a department have already been laid down and it should be ensured that departments are not created without proper justifications.
4. An EFC memo on the basis of which centres are created should be discussed in the Committee of the Institute.
5. The units existing in RP Centre are already designated as departments.
6. The units, as they are part of the main department, will participate in teaching and other activities including administration of the main Institute.
7. The Head of the Department will be responsible for ensuring supportive services of the Centre being provided by the units now existing.
8. Efforts should be made to declare the units as departments as early as possible. Hearing may be given to other members of the faculty who have remained in the present departments.
9. The budget, space and other supportive staff etc. for the concerned faculty members who are working on the strength of the Centres will be provided by the concerned Centres.
The above orders may be implemented by all the Chiefs of Centres/Head of the Departments (Institutes)..."
5. As can be seen from the aforementioned Memo, the Units existing in R.P.Centre have already been designated as Departments. May be in terms of OM No.F.ZO-11/89-Estt.1 dated 20.05.1994, the permanent transfer of faculty members from Centre to the parent Department (AIIMS) and vice versa is permissible, but it is not clear whether a faculty member of centre can straightway be posted as Head of any Department in AIIMS. As can be seen from the stand taken by the respondents in their counter reply, the head of the department is not a post but is only additional duty to be discharged by the senior most faculty member in the department and it is the senior most person who is required to discharge the function as head of the Department. Para 5(b) and part of para 5 (i) of the reply read thus:-
14 OA 1982/2015
"5(b) With regard to the statement made in paragraph 5(b) of the Original Application, it is fact that it is always the senior most person who is entitled to be the head of the Department at AIIMS. This practice/system applies to all the Departments of the AIIMS. It is pertinent to mention here that the respondent no.2 was appointed on 28.4.1988 to the post of Lecturer re-designated as Assistant Professor in Ocular Microbiology, AIIMS and she joined the said post on 20.5.1988 and since then she has been working as AIIMS. Copy of the appointment letter dated 28.4.1988 and joining letter dated 20.5.1988 and the memorandum showing the re-designation of the faculty posts at AIIMS are Annexure R-9 colly.
It is wrong to state that when the selection was made for the post of Assistant Professor in the year 1992, it was the applicant who was higher in the merit and was at No.1. The respondent No.2 was at second place in the merit list and therefore she was given ocular microbiology while the applicant being higher in the merit was given microbiology, and since then Applicant has been continuously serving in the Department of microbiology. The ever mentioned version of the applicant is totally incorrect and false. The applicant is directed to produce documents to sustain her above mentioned statement otherwise it will amount to making false statement before this Hon'ble Tribunal to get favourable order. As a matter of fact, the respondent No.2 has been discharging her duties as Lecturer ( re-designated as Assistant Professor), Associate Professor, Additional Professor and Professor in Ocular Microbiology at Dr. R.P.Centre, AIIMS from 1988.
Dr.R.P.Centre and other centres namely C.N.Centre, IRCH Centre, Dental Centre, J.P.M.Trauma Centre are part of the AIIMS and common seniority was always prepared for the working faculties, which is evident from the seniority list of Additional Professor at AIIMS issued in the year 1997, 2000 and 2005. All the Centres and the Departments of AIIMS get fund from the Budget of AIIMS and it is distributed according to their needs and requirement. Simply, the respondent No.2 has been getting all the benefits and facilities from Dr.R.P.Centre, AIIMS, does not change the status and hierarchy of the Respondent No.2 at AIIMS.
xxx xxx 5(i). It is submitted that on 28.8.2014 another memorandum was issued on the same subject matter after superseding the earlier memorandum dated 1.8.2014 regarding streamlining of the working arrangement of faculty posted in various specialities in centre and main Department at the AIIMS, New Delhi. It is wrong to state 15 OA 1982/2015 that memorandum dated 28.8.2014 has been issued without approval from the Governing Body. It is apt to mention here that the Director has issued the Memorandum dated 28.8.2014 on the basis of the minutes of Academic Committee, AIIMS dated 3.10.1991 which was approved by the Governing Body on 14.12.1991 and Memorandum dated 27.3.1992 and 20.5.1994. Therefore, there is no illegality in issuing the memorandum dated 28.8.2014. Moreover, the Director is competent to issue Memorandum dated 28.8.2014 as per Section 11 of the AIIMS Act, 1956 and Regulations 11 of AIIMS Regulations.
(m) With regard to the statement made in paragraph 5(m) of the Original Application, it is submitted that it has been replied in the earlier paragraph (i) above.
It is pertinent to mention here that Head of Department is not a post. Rather it is additional duty to be decided by the senior most candidate of the department in addition to its usual and normal duties without having any remuneration or honorarium."
Once it is for the senior most faculty member of the department to discharge the duty as head of the department, the respondent no 2 should first have been transferred to department of Microbiology and only then the question of her discharging the additional duty of HOD could arise. When it is the stand of the respondents themselves that HOD is not a post and senior most faculty member in the department should discharge additional duty of HOD, the respondent no. 1 itself has issued an order posting the respondent no. 2 as HOD of Microbiology when at that point of time she was posted in Dr.RP Centre. The issue should have been addressed to while determining the entitlement of applicant and respondent no. 2 to resume the charge of head of Microbiology Department. As far as the issue of seniority is concerned, ex-facie, in the seniority list amongst Professor as on 31.12.2011, the respondent No. 2 Dr. Gita Satpathy has been 16 OA 1982/2015 shown senior to applicant herein, but the Selection Committee met on 06.03.1992 had placed the applicant herein above respondent no. 2 in the select list for the post of Associate Professor of Microbiology. However, after appointment as Associate Professor, both the applicant and respondent No. 2 could get promotions as additional Professor and Professor w.e.f 1.07.1996 and 1.07.2004. On their promotion when the applicant was posted as Professor (Microbiology), Respondent 2 was posted as Professor ( Ocular Microbiology), R.P. Centre, AIIMS. Various dates of appointment and promotion of applicant and respondent no. 2 mentioned in the counter reply of respondents read thus:-
Dr.Gita Satpathy Dr.Rama Chaudhry
Respondent No.2 Applicant
Date of birth 25.11.1954 2.1.1958
Lecturer/Assistant 20.5.1988 (re-designated) as 11.5.1992
Professor Assistant Professor, Ocular
Microbiology, AIIMS
Associate 7.7.1992 07.07.1992
Professor
Additional 1.7.1996 Ocular Microbiology 01.07.96-Microbiology
Professor
Professor 1.7.2004(Ocular Microbiology, 1.7.2004-Microbiology
R.P.Centre, AIIMS)
As has been argued on behalf of the applicant, in terms of All India Institute of Medical Sciences Regulation 1999, the seniority of employees of the Institute in each category should be determined in the order of merit in which they were selected for appointment to the grade in question and those selected on an earlier occasion should be ranked senior to those selected later. Regulation 26 read thus:-
"26. The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question and those selected on an earlier occasion being ranked senior to those selected later."17 OA 1982/2015
Also in Rules/decisions of the Governing body/institute body regarding fixation of seniority of faculty members appointed/promoted either under open selection or under assessment promotion scheme at the AIIMS, it is provided that the seniority of employees of the Institute in each category should be determined by the order of merit in which they were selected for appointment to the grade in question and those selected on an earlier occasion should be ranked senior as a block to those selected later. Relevant excerpt of the decision read thus:-
"The seniority of employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question and those selected on an earlier occasion being ranked senior as a block to those selected later. (Regulation 26 of AIIMS Regulations, 1958)."
Though in the select list for appointment as Associate Professor, the applicant was senior to respondent no.2, but admittedly thereafter both the applicant and respondent no. 2 had got two promotions and it is not clear that what was their position in the select list prepared by the DPC for their promotion to the post of Professor. Normally when a post is filled up by way of promotion the promotee carry along with him the seniority assigned to him in feeder category. Thus, the second important issue arise to be addressed for determination of the controversy in the present case is the position of the applicant in the select list for the post of Professor recommended by Selection Committee/DPC. While determining such issue, it would also be required to be looked into whether the inter se seniority determined as Associate Professor should have ramification on determination of 18 OA 1982/2015 seniority in next promotional grade including Professor. The third proposition arise to be determined is whether Professor (Ocular Microbiology) could be posted as Head of the Department of Microbiology. Learned counsel for the applicant has given certain examples to espouse that in certain department when Professor from different stream posted in the department were senior, only the Professor from the stream to which department belonged was made HOD. We could have determined the controversy ourselves, but the plea put forth on behalf of respondents that before approaching the Tribunal the applicant could not made a representation to respondent no. 1 cannot be ignored. Though in view of the fact that in making the respondent No. 2 HOD Microbiology (AIIMS), the respondent No. 1 ignored the representation of the applicant, the OA cannot be rejected as premature, but at the same time since the various pleas raised on behalf of applicant in the present OA, could not be examined by the respondents, in the spirit of provision of Section 2o of Administrative Tribunals Act, 1985, we deem it appropriate that the OA should be disposed of with direction to respondents to take a view on the said issue. In the wake, the respondent no. 1 is directed to examine:-
(1) Whether the respondent No.2 being faculty member of Dr.R.P. Centre designated as department could be directly made HOD of Microbiology department of AIIMS?.
(2) Once in the select list prepared for appointment to the post of Associate Professor, the applicant was above respondent no. 2, whether the seniority assigned to her in the seniority of Professor is in order?.19 OA 1982/2015
(3) Whether a Professor in Ocular Microbiology could be posted as HOD of Microbiology?.
(4) When in temporary absence of HOD of Microbiology (AIIMS), the applicant herein was given the charge of the post, whether on retirement of Dr.J.C.Samantary, Professor and head Department of Microbiology, the applicant who was senior most faculty member should not have been made HOD?.
(5) When there was conflict of interest between the applicant and respondent no. 2, how respondent No. 1 joined respondent No. 2 in filing its affidavit and could not act as a neutral entity, what is expected from an instrumentality of the State.
Having examined the said issue, the respondent No.1 should take a final view regarding entitlement of applicant to the charge of HOD of Microbiology (AIIMS) within a period of four weeks from the date of receipt of a copy of this order. The decision so taken should be communicated to the applicant and respondent no. 2 by way of detailed reasoned and speaking order. The OA stands disposed of. No costs.
(V.N.Gaur ) (A.K.Bhardwaj) Member (A) Member (J) 'sk'