Delhi High Court
S.N. Aggarwal vs Union Of India And Ors. on 26 February, 1993
Equivalent citations: 2000IIAD(DELHI)225
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) This order will dispose of the application filed by three applicants who, pursuant to the orders passed by this Court, were appointed to the Delhi Higher Judicial Service as Additional District & Sessions Judges.
(2) Apprehending that there may be some delay in the conduct of the medical examinations, on 28th November, 1991 this Court directed and clarified that their appointment orders should be issued even without the receipt of medical reports but in the orders of appointment it should be stated that their appointment was subject to the candidate being found to be medically fit. On 29th November, 1991 this Court was informed that appointment orders in respect of two of the Scheduled Caste candidates, who had also been directed to be appointed, had been issued but in respect of the applicants herein appointment orders had not been issued because it was contemplated by the Lt. Governor that Special Leave Petition should be filed against the order dated 28th November, 1991 directing the appointment of applicants even without a medical certificate. In this order it was also noted that the Court had earlier stayed further promotion and extension of those officers who had been holding these posts on ad hoc basis on stop gap arrangements. On 29th November, 1991, in order that there should be no complications because appointment orders of the applicants had not been issued, this Court passed orders staying the Notification dated 28th November, 1991 which had extended the ad hoc appointments of seven Addl. Distt. & Sessions Judges. The appointment of two Scheduled Caste candidates was also stayed.
(3) When the case came up on 30th November, 1991 this Court was informed that orders of appointment of all the direct recruits viz., the two Scheduled Caste candidates and the three applicants have been issued. It appears that in respect of the three applicants certain medical tests were being carried out at Lnjp Hospital who, it seems, had advised further tests to be carried out as, according to them there was possibly some cardiac problem with two of the candidates. Vide order dated 30th November, 1991 this Court directed the medical examinations to be conducted by the G.B. Pant Hospital which is the specialised hospital of the Delhi Administration. Direction was accordingly issued to the Medical Superintendent of the G.B. Pant Hospital to constitute a Medical Board for examining the three incumbents in accordance with the rules and it was required to submit a report to the Administrator. The applicants were directed to report for examination at the G.B. Pant Hospital which they did. They were obviously to be further medically examined pursuant to the medical examination which had already commenced at Lnjp Hospital. By this order of 30th November, 1991 the interim orders were also vacated. The result was that all the five direct recruits were appointed and the appointments of seven Addt. Distt. & Sessions Judges who had been prompted on ad hoc basis were also allowed to be continued.
(4) The order of 30th November, 1991 was not appealed against and became final.
(5) It has become necessary to give the aforesaid background in order to examine the present application. It is contended in this application which was filed on 27th January, 1993 that the applicants underwent Echo Cardiogram test, X-rays and a number of other tests by a Medical Board of G.B. Pant Hospitat. It is further contended that the reports certified that all the three applicants were physically and medically fit to join their duties. Eye check up was done in Gurunanak Eye Centre and the other necessary tests were also carried out. These tests were carried out on 3rd December, 1991 and the applicants again appeared before the G.B. Pant Hospital on 8th January, 1992 for further medical examination. It is further alleged that medical report declaring the applicants to be medically-fit was forwarded by the G.B. Pant Hospital to the Delhi Administration on 8th January, 1992. The need for filing the application arose because even after more than an year had elapsed these reports had not been forwarded by the Delhi Administration to this Court and to the District and Sessions Judge. The importance of these reports lies in the fact that the appointment of the three applicants was subject to their being declared medically fit. It seems that the anxiety of the applicants was that if medical reports finding them medically fit were not forwarded their very appointments would be jeopardised.
(6) Notice of this application was issued and pursuant thereto reply was filed. On a direction issued by us the record of the Department has also been made available.
(7) This application was listed for hearing, and was heard on 16th February, 1993 and 25th February, 1993 and the Court was informed by the learned counsel appearing on behalf of the respondents that an amicable solution will be found.
(8) An affidavit dated 25th February, 1993 of Shri R.C. Jain Secretary (Law & Judicial), Delhi Admn. has been filed in Court today. Along with this affidavit is annexed a Notification dated 22nd February, 1993 formally appointing the three applicants to the Delhi Higher Judicial Service on probation for a period of two years w.e.f. 30th November, 1991. It is also mentioned in this Notification that the medical fitness certificate as required by Rule 26 of the Delhi Higher Judicial Service Rules, 1970 has since been received. Copies of the medical reports were also forwarded to this Court by the Secretary (Law & Judicial) vide his letter dated 16th February, 1993.
(9) In the affidavit now filed Shri R.C.Jain has stated that he has the highest regard and respect for this Court and that he had no doubt that administrative and judicial orders of this Court must be fully observed and strictly complied with. With regard to medical examination it has been stated in this affidavit that avoidable delay occurred in finalising these appointments owing to misunderstanding about requirements of rules of medical examination. It has further been stated that it was brought to his notice that G.B. Pant Hospital did not have a statutory Medical Board which was the requirement of the Rules, according to him, and that it was under these circumstances that a suggestion was made that the applicants should be examined by a hospital which had the validly and regularly constituted medical board.
(10) This affidavit has to be read in conjunction with the note dated 15th February, 1993 of the Lt. Governor, Delhi when the papers were put up to him for approval of the appointments of the applicants herein on the acceptance of the medical reports received from G.B. Pant Hospital. In this note the Lt. Governor had desired that the Standing Counsel should make submissions to this Court on the following lines; "The Appointing Authority has given serious consideration to the various aspects of this case. Complications seem to have arisen in the smooth implementation of the rules for diverse reasons. The selection process which was completed in 1988 was left unfinished for nearly 3 years where after three candidates of the general category were ordered to be appointed by the Hon'ble Court subject, as usual, to medical fitness. It is unfortunate that thereafter, to begin with on the orders of the Hon'ble Court and later on account of unsatisfactory handling of matters in various departments of the Administration unconscionable delay occurred. In the meanwhile, the candidates had' already been appointed conditionally, i.e., subject to their medical fitness. The understanding of the Appointing Authority now is that the Hon'ble Court having considered the matter at length is inclined to accept that the Medical Board report of the G.B, Pant Hospital is adequate fulfillment of the rules and compliance of their orders dated 30.11.1991. Therefore, the Appointing Authority will now proceed to issue formal appointment orders with retrospective effect from the relevant date(s) unconditionally."
(11) In view of the aforesaid observations of the Lt. Governor, inter alia, to the effect that there had been unconscionable delay which had occurred firstly after the orders of this Court and later on account of unsatisfactory handling of the matters in various departments of the Administration we do not think it is necessary or appropriate to examine the matter in any great detail. It is evident that even the Lt. Governor is of the view that the matters were not satisfactorily handled and an unconscionable delay had occurred.
(12) We have also gone through the files of the Law & Judicial Department of the Delhi Administration as well as other departments which have been placed before us and we are in full agreement with the aforesaid observations of the Lt. Governor with regard to unconscionable delay having occurred. What has caused some concern to us is the fact that the delay seems to have occurred primarily because of the role played by the Law & Judicial Department of Delhi Admn., which is headed by none other than an officer of the Delhi Higher Judicial Service who has been sent there on deputation.
(13) It is strange indeed that more than one year had elapsed and still formal appointment of the applicants was not notified. Despite the fact that this Court vide its order dated 30th November, 1991 had directed the constitution of a Medical Board by the Medical Superintendent of the G.B. Pant Hospital as also the fact that a report from this Hospital was issued on 8th January, 1992, still further attempt was made to thwart the medical clearance of these applicants. Despite the fact that atleast on two different occasions the Department of Law & Judicial had put up the proposal that the Medical examination reports of the G.B. Pant Hospital which had declared the applicants to be medically fit, should be forwarded to this Court, this was not done and an effort was made, which would have succeeded but for this application, for a declaration that the medical examination conducted by the G.B. Pant Hospital was not valid. The endeavor to have the medical reports of the G.B. Pant Hospital declared invalid commenced after 26th March, 1992 when the proposal which was put forth by the Superintendent in the Law & Judicial Department was that the department may now send the medical reports of the three officers viz., the applicants herein, to the Registrar, High Court of Delhi, because a Committee of competent Doctors had declared them to be medically fit. The Secretary (Law & Judicial), however, noted that he would like to see the relevant rules regarding medical examination and a note to this effect was given on 6th April, 1992. It is strange that the Secretary (Law & Judicial) should think about seeing the relevant rules regarding medical examination more than four months after the same had been ordered by this Court on 30th November, 1991 and the medical examination had been carried out by the G.B. Pant Hospital. What is more surprising is that on 28th April, 1992 the Secretary (Law & Judicial) decided to consult the Services Department as to the validity of the medical examination/certificate issued by the Medical Board of the G.B. Pant Hospital. Ordinarily advice with regard to validity is sought from the Law Department but here, strangely, enough, the question as to the validity of medical examination waris sought to be clarified from the Services Department by the Law Department. It sterns that there were some verbal talks between the two Secretaries viz., the Secretary (Law & Judicial) and the Secretary (Medical), Delhi Admn., and prior to Secretary (Law) opinion from the Medical Department on 14th0ctober, 1992, the Under Secretary(Law) in a note put up to the Secretary (Law & Judicial ) observed as follow: "PRECISELY,the medical reports furnished by G.B. Pant Hospital seem to suffer from the following:- (1) The Medical Reports are palpably incorrect. (2) Some of the columns prescribed in the prescribed proforma of the Medical Report are unfilled. (3) The validity of the Constitution of the Medical Board i.e. whether the Medical Board constituted for the purpose was validly constituted Board in accordance with the rules applicable on the subject. Submitted for consideration and orders please."
(14) This note with the endorsement of the Secretary (Law & Judicial) was then sent to the Secretary (Medical). The file was returned with the advice dated 16th November, 1992 of the Medical Department to the effect that there was no regular Medical Board in G.B. Pant Hospital and, however, if expert opinion regarding any speciality is required then Medical Superintendent, Lnjp Hospital can seek the expert advice in G.B. Pant Hospital/Gurunanak Eye Centre. On receipt of the file it is noted on 15th January, 1993 that the Secretary (Law & Judicial) has desired that the medical examination of the three applicants herein be conducted by the Medical Board where regular medical board exists. It is also stated in this note that the Medical Department be requested to issue instructions " that the medical examination conducted in the G.B. Pant Hospital on the direction of the Hon'ble High Court is not valid as there is no regular Board exists and the direction to have medical examination in the Lnjp Hospital, New Delhi may also be issued". In the files placed before us there is also a draft of an order, which draft has been initialled by us and is in File No. F.27/11/90, which was proposed to be issued to the effect that the medical examination of the three applicants is set aside and a regular medical examination in respect of these candidates will be held in Lnjp Hospital by a duly constituted Board. It is the perusal of this proposed order by this court that compelled this Court to direct the retention of the files firstly in this Court and thereafter, by a subsequent order, by the Standing Counsel for the Delhi Administration.
(15) The facts hereinabove clearly show that it was at the behest of the Law & Judicial Department that an effort was made to require the Medical Department of the Delhi Administration to issue an order cancelling the medical examination which had been conducted under orders of this Court and further requiring the applicants to undergo a further medical examination in the Lnjp Hospital.
(16) We have no manner of doubt that at every opportunity an effort was made to see that the medical clearance of the applicants herein is delayed. Scant regard seems to have been paid to the order dated 30th November, 1991 whereby Medical Board was directed to be constituted. The advice for constituting a fresh medical board was clearly in conflict with the orders of this Court dated 30th November, 1991.
(17) The noting on all the files make it clear that it is the Law & Judicial Department of the Delhi Administration which was taking a lead in seeing that the clearance given by the G.B. Pant Hospital is not forwarded to this Court and the perusal of the record shows that every action was taken by the Law Department with the concurrence sometimes and more often than not under the orders of the Secretary (Law & Judicial). It is perhaps seeing all this from the records of the Department that the Lt Governor in the aforesaid note observed that there was unsatisfactory handling of the matters in various Departments of the Administration and that unconscionable delay had occurred. To say the least we are pained to find that an officer of the judicial service has played a questionable role in this episode.
(18) Looking at the situation as a whole we feel that it is not advisable for officers belonging to Judicial Service to go on deputation for manning purely administrative posts. There is always a tendency of judicial officers, while manning administrative posts and white functioning not under the control of the High Court to loose their objectivity. We are conscious of the fact that it is in the interests of the officers of the Delhi Judicial Service/Delhi Higher Judicial Service to be appointed to ex cadre posts specially when there are better emoluments available. Ex-Cadre posts to which Judicial Officers are appointed are normally of two kinds, firstly those posts where the Judicial Officers carry out judicial functions like the Motor Accidents Claims Tribunal, Industrial Tribunal etc. The other Ex-cadre posts which are manned by Judicial Officers on deputation are purely administrative and except for administrative posts in the High Court itself the other administrative posts are under the Control of administrative authorities and a Judicial officer, while on deputation and holding such an administrative post is not under the direct supervision of this Court. While working in an administrative department a permanent officer of the judicial service would be exposed to forces and elements which are not conducive to judicial discipline. We, therefore, feel that judicial officers should not be sent on deputation for holding administrative posts outside the superintendence and control of the High Court.
(19) With the aforesaid observations, this application is disposed of.