Kerala High Court
Dr.Asha Kishore vs Dr. Sajith Sukumaran on 13 August, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942
OP (CAT).No.141 OF 2020
AGAINST THE ORDER IN OA 180/0291/2020 DATED 05-08-2020 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/4th RESPONDENT IN THE OA:
DR.ASHA KISHORE, AGED 60 YEARS
W/O. S. Y. KISHORE, DIRECTOR, SREE CHITRA TIRUNAL
INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY,
THIRUVANANTHAPURAM - 695 011, RESIDING AT TC 95/58,
HILL TOP GARDENS, MEDICAL COLLEGE P. O.,
THIRUVANANTHAPURAM - 695 017.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
SRI.BIJOY CHANDRAN
SRI.RAJESH NAIR
VIKRAM RAMAKRISHNAN
RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 3 IN THE OA:
1 DR. SAJITH SUKUMARAN
AGED 47 YEARS
S/O. SUKUMARAN, ADDITIONAL PROFESSOR,
DEPARTMENT OF NEUROLOGY, SCTIMST,
MEDICAL COLLEGE P. O.,
THIRUVANANTHAPURAM - 695 011 ,
RESIDING AT THEJUS, T. C. 5/2713(3),
CRA - A64(C), SREEKARYAM P. O.,
THIRUVANANTHAPURAM - 695 011.
2 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF SCIENCE AND TECHNOLOGY,
DEPARTMENT OF SCIENCE AND TECHNOLOGY,
TECHNOLOGY BHAVAN, NEW MEHRAULI ROAD,
NEW DELHI - 110 016.
OP (CAT).No.141 OF 2020
2
3 SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES
AND TECHNOLOGY
THIRUVANANTHAPURAM - 695 011,
REPRESENTED BY ITS DIRECTOR.
4 THE PRESIDENT
SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES
AND TECHNOLOGY,
THIRUVANANTHAPURAM - 695 011.
R1 BY ADV.SRI.ELVIN PETER,
SRI.P.VIJAYAKUMAR, ASGI
R3-R4 BY ADV. SRI.M.R.HARIRAJ
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 13.08.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No.141 OF 2020
3
JUDGMENT
Shaffique, J.
We have heard Sri.K.Jaju Babu, the learned senior counsel appearing for the petitioner, Sri.Elvin Peter.P.J., the learned counsel appearing for the 1 st respondent, Sri.P.Vijayakumar, the learned ASGI and Sri.M.R.Hariraj, the learned counsel appearing on behalf of respondents 3 and 4.
2. This original petition has been filed challenging an interim order dated 05.08.2020 by which the Tribunal had stayed Annexure- A15 until further orders and direction had been issued to the Union of India, to make necessary arrangments for the smooth functioning of the Sree Chitra Tirunal Institute in terms of Section 26 of the Sree Chitra Tirunal Institute for Medical Sciences & Technology, Trivandrum Act, 1980 (hereinafter referred to as, the Act , for short)
3. The original application has been filed by the first respondent challenging an order passed by the Institute extending the appointment of the petitioner herein as Director of the Institute for a period of five years until her date of superannuation i.e., on 28.02.2025. The Tribunal having considered the respective contentions had observed that there is no provision enabling OP (CAT).No.141 OF 2020 4 the Institute or its general body or President to extend the term of the Director and there is no power vested with them to extend the tenure for another term of five years. It was further observed on the basis of the submissions of the Union of India that there are certain allegations against the present Director and the Government had appointed a fact finding committee and the committee had given various suggestions. Though the suggestions were pending consideration, the term of the Director had been extended. It was, therefore, found that in the absence of a specific provision enabling an extension to be granted for the petitioner herein, Annexure-A15 order is to be stayed.
4. The learned counsel for the petitioner would submit that as per Section 11 of the Act, the Chief Executive Officer of the Institute, who is designated as a Director has to be appointed by the Institute and the first Director shall be appointed by the Central Government. The procedure for appointment is provided under Rule 7 (ii) of the Sree Chitra Tirunal Institute for Medical Sciences & Technology, Trivandrum Rules 1984, which being relevant reads as follows:
"7.Creation of posts and appointments thereto.-(i)xxx
(ii) Appointment to the post of Director shall be made by the Institute on the basis of the recommendations of a Selection Committee constituted by the Central OP (CAT).No.141 OF 2020 5 Government consisting of the Secretary, Department of Science and Technology of Government of India as Chairman, the Director-General of Indian Council of Medical Research, the President of the National Acdemy of Medical Sciences and the President of the Institution of Engineers (India) as members."
5. Apparently for appointing a person as Director, recommendation of the selection committee constituted by the Central Government is required. This is a case in which the petitioner was appointed based on recommendation of the selection committee in the year 2015 and what the Institute had done is only extending her tenure for a further period of five years. Reference is made to a judgment of this Court in W.A.No.766/2013 and W.P.(C) No.31533/2012 by which a similar issue came to be considered by the Division Bench of this Court and it is argued that the issue projected in the present case has already been settled by the Division Bench. Reference is also made to the letter issued by Dr.T.Ramasami, Ministry of Science & Technology, Department of Science & Technology, Government of India. The said letter was sent while the extension of Prof.K.Mohandas was being considered. It is stated that the Institute can issue an order to permit Prof.K.Mohandas to continue as Director till further orders are issued based on the recommendation of the Institute. It is, therefore, argued that OP (CAT).No.141 OF 2020 6 once the Institute had taken a decision to extend the period of service of the petitioner, no further permission is required either from the Central Government or from any authority. It was also contended that the original applicant/the first respondent herein had no locus standi to prefer the application.
6. The main case set up by the applicant in the original application is that even though the petitioner is given extension in the post of Director by the Institute, as per Annexure-A4 Office Memorandum dated 03.07.2006 and Annexure-A5 Office Memorandum dated 30.07.2007, the approval has to be granted by the ACC i.e., Appointment Committee of Cabinet . The original applicant also placed reliance on the letter dated 06.07.2020 issued by the Central Government to the President of the Institute to substantiate the above contention. The said letter reads as under:
No.AI/1/19/SCTIMST/2014 Dated, the 16 th July 2020 To, Shri.V.K.Saraswad, (Member, NITI Aayog) President, SCTIMST, Niti Abyog, New Delhi.
Respected Sir,
I am directed to refer to the Order
No.P&A.1/X/33/SCTIMST/2020 dated 02.06.2020 vide which the term of Dr.Asha Kishore as the Director of SCTIMST was OP (CAT).No.141 OF 2020 7 extended w.e.f.15.07.2020 till the date of her superannuation on the basis of the resolution of the Insitute Body in its meeting held on 12.05.2020. In terms of DoPT's OM NO.28/13/2006-EO(SM.II) dated 03.07.2006, the authority for approval of extension in terms of the Chief Executives of autonomous Institutions will vest with the ACC. As such, the order of extension of tenure of Dr.Asha Kishore, Director, SCTIMST is required to be issued with the approval of ACC.
2. It is therefore requested that the aforesaid order dated 02.06.2020 may be withdrawn as it has been issued without obtaining the approval of the ACC. SCTIMST may be advised to submit a detailed proposal, which includes bio-data of Dr.Asha Kishore, Vigilance Clearance Certificate etc.to this Department for processing the matter and obtaining the approval of the ACC. In the meantime, a proposal for assigning additional charge of the post of Director, SCTIMST to Dr.Asha Kishore for 3 months w.e.f 15.07.2020 may also be submitted for consideration by the Department.
7. The learned ASG after placing reliance on the report of the Special Committee constituted by the Central Government for considering the working pattern of the Institute submits that there are several allegations against the functioning of the Institute and therefore it is a matter which requires consideration and pursuant to the directions issued by the Tribunal in the impugned order, they are in the process of nominating a person to take charge as Director provisionally.
8. Apparently this is a case in which the Tribunal failed to consider the merits of the case in the proper perspective. While passing an interim order necessarily the entire aspects involved in the matter requires to be considered. From the materials placed on record especially the statutory provisions and the OP (CAT).No.141 OF 2020 8 Office Memorandum, we are of the view that for extending the service of Director of the Institute, there is no requirement to constititue a selection committee, which is required only for the initial appointment. The Institute, prima facie has the power to extend the service of a Director and the case of the original applicant is that such extension requires the approval of ACC, which is evident from the letter dated 16.07.2020 (extracted above). Of course, the petitioner has a case that even permission from ACC is not required, but from letter dated 16.07.2020, the Central Government has requested the Institute to send a detailed proposal including the bio-data of Dr.Asha Kishore/the petitioner herein, Vigilance Clearance Certificate etc., to the department for processing the matter and obtaining the approval of the ACC. It is further observed that, in the meantime, a proposal for assigining additional charge of the post of Director, SCTIMST to Dr.Asha Kishore for three months with effect from 15.07.2020 may also be submitted for consideration by the department. Therefore, prima facie, based on the aforesaid letter dated 16.07.2020, the only requirement projected by the Central Government is that permission from ACC is required. On the other hand, the petitioner herein has a case OP (CAT).No.141 OF 2020 9 that no such permission is required. This exactly is the matter which requires to be considered by the Tribunal. The controversy is whether for granting extension to the petitioner, approval of ACC is required or not. Unfortunately such an issue was not considered by the Tribunal whereas Tribunal had proceeded on the basis that there was a vigilance enquiry and no specific provision is available for extending the period of service of a Director.
9. It is clear from the materials placed on record that even on earlier occasions also, the tenure of Directors had been extended by the Institute. Therefore, there is nothing wrong in the Institute taking such a decision. The only question is whether it requires approval of ACC. This aspect of the matter was not considered by the Tribunal. We are not expressing any opinion in that regard as the Tribunal may have to finally decide the issue.
10. We are therefore of the view that the impugned order requires to be set aside and the matter requires consideration on merits. It is pointed out that the matter is listed for hearing on 23.09.2020. All parties shall file appropriate pleading in the case and the Tribunal shall make every endeavour to dispose of OP (CAT).No.141 OF 2020 10 the matter, as expeditiously as possible. In the meantime, Annexure-A15 shall continue to operate subject to any decision being taken by the Central Government in that regard. The Tribunal shall consider the matter untrammelled by any of the observations made by us in this judgment.
Sd/-
A.M.SHAFFIQUE, JUDGE sd/-
GOPINATH.P, JUDGE AMV/13/08/2020 OP (CAT).No.141 OF 2020 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE O.A.NO.291/2020 ALONG WITH ANNEXURE A1 TO A15 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
ANNEXURE A15 TRUE COPY OF ORDER NO.P AND A 1/X/33/SCTIMST/2020 DATED 2.6.2020 ISSUED BY THE 3RD RESPONDENT EXTENDING THE TENURE OF THE 4TH RESPONDENT.
ANNEXURE A1 TRUE COPY OF THE NOTIFICATION ADVT. NO.P&A II/13/DIR/SCTIMST/2014 DATED 30.04.2014 ISSUED BY THE 2ND RESPONDENT ALONG WITH TYPED COPY.
ANNEXURE A2 TRUE COPY OF THE MINUTES OF THE IB MEETING ALONG WITH TYPED COPY.
ANNEXURE A3 TRUE COPY OF THE ORDER NO.PER AND G1.ADMN/SCTIMST/2015 DATED 13.7.2015 ISSUED BY THE 3RD RESPONDENT APPOINTING THE 4TH RESPONDENT AS DIRECTOR OF SCTIMST ALONG WITH TYPED COPY.
ANNEXURE A4 TRUE COPY OF THE OFFICE MEMORANDUM NO.28/13/2006-EO(SM.II) DATED 3.7.2006 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE OFFICE MEMORANDUM NO.AB.14017/11/2004-ESTT.(RR) DATED 30.07.2007.
ANNEXURE A6 TRUE COPY OF THE OFFICE MEMORANDUM NO.20/7/2014/EO (SM II) DATED 5.01.2015 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE ORDER NO.PER AND G1.
ADMN.1/23/SCTIMST/94 DATED 9.5.2014 ISSUED BY THE DIRECTOR APPOINTING DR. K. MOHANDAS AS DIRECTOR OF SCTIMST.
ANNEXURE A8 TRUE COPY OF THE LETTER NO.A1/SET/007/1999 DATED 14.7.2000 ISSUED BY THE 1ST RESPONDENT EXTENDING THE TENURE OF DR. K. MOHANDAS AS DIRECTOR OF SCTIMST.
ANNEXURE A9 TRUE COPY OF THE LETTER ISSUED BY THE 3RD
RESPONDENT NO.PER AND G1 ADMN.I
OP (CAT).No.141 OF 2020
12
1/34/SCTIMST/2004 DATED 22.9.2004 EXTENDING THE SERVICE OF DR. K. MOHANDAS AS DIRECTOR OF SCTIMST.
ANNEXURE A10 TRUE COPY OF THE LETTER DATED 10.03.2020 SENT BY THE K. V. SACHIDANANDAN, CHAIRMAN OF THE FACT FINDING COMMITTEE TO THE HON'BLE UNION MINISTER DR. HARSH VARDHAN. ANNEXURE A11 TRUE COPY OF THE FACT FINDING COMMITTEE REPORT SUBMITTED ALONG WITH EXT.P10 TO THE HON'BLE MINISTER DR. HARSH VARDHAN.
ANNEXURE A12 TRUE COPY OF THE LETTER NO.A1/16/33/MISE/2019 DATED 29.04.2020 SENT BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.
ANNEXURE A13 TRUE COPY OF THE LETTER DO NO.A1/1/19/SCTIMST DATED 26.12.2019 SENT BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. ANNEXURE A14 TRUE COPY OF THE RELEVANT PAGES OF THE INTERNAL AUDIT REPORT.
EXHIBIT P2 TRUE COPY OF THE M.A.NO.373/20 IN O.A.NO.291/20 FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 22.7.2020 ALONG WITH ANNEXURE A16.
ANNEXURE A16 TRUE COPY OF THE ORDER
NO.A1/1/19/SCTIMST/2014 DATED 16.7.2020
ISSUED BY THE HEAD, AUTONOMOUS
INSTITUTIONS, DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF INDIA.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT IN O.A.NO.291/20 FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 27.7.2020 ALONG WITH ANNEXURES R4(1) TO R4(8) ANNEXURE R4(1) COPY OF THE ORDER NO.P AND A .1/PF-
1904/SCTIMST/2017 DATED 15.5.2018.
ANNEXURE R4(2) COPY OF THE JUDGMENT DATED 15.7.2013 IN W.A NO.766/2013 OF THE HON'BLE HIGH COURT OF KERALA.
ANNEXURE R4(3) COPY OF THE SUMMERY OF ACHIEVEMENT OF SREECHITHIRA THIRUNAL INSTITUTE FOR MEDICAL OP (CAT).No.141 OF 2020 13 SCIENCE AND TECHNOLOGY (SCTIMST) DURING THE LAST 5 YEARS 2015-2020.
ANNEXURE R4(4) COPY OF THE LETTER NO.F
NO.142/A1/SCT/2010/RTI DATED 3.8.2010
ISSUED UNDER THE RIGHT TO INFORMATION ACT TO A CONSULTANT NEUROLOGIST UNDER THE 2ND RESPONDENT.
ANNEXURE R4(5) TRUE COPY OF THE CONCISE STATEMENT OF INTERNAL AUDIT REPORT FOR THE PERIOD OF 2017-19 AND SUMMERY OF INSTITUTES REPLY. ANNEXURE R4(6) COPY OF THE MINUTES OF THE 55TH INSTITUTE BODY MEETING OF SREECHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCE AND TECHNOLOGY (MINUTES OF INSTITUTE BODY MEETING DATED 12.5.2020.) ANNEXURE R4(7) COPY OF THE REPLY (DO NO.11014/07/04/2020-S AND T) DATTED 20.7.2020 OF THE 3RD RESPONDENT TO ANNEXURE A16.
ANNEXURE A4(8) COPY OF THE LETTER NO.SCTIMST/P&A/FFC/2019 DATED 4.5.2020 OF THE 2ND RESPONDENT INFORMING THE 1ST RESPONDENT AND 3RD RESPONDENT ABOUT ITS CONCERNS ON THE FFC REPORT.
EXHIBIT P4 TRUE COPY OF THE COUNSEL'S STATEMENT FILED BY THE STANDING COUNSEL FOR RESPONDENTS 2 AND 3 IN O.A.NO.291/2020 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ALONG WITH ANNEXURES R3(a) TO R3(d). ANNEXURE R3(a) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN W.A.NO.766/2013 DATED 15.7.2013.
ANNEXURE R3(b) TRUE COPY OF DO LETTER NO.DST/SECTY/501 SCTMIST/2006 DATED 31.7.2006.
ANNEXURE R3(c) TRUE COPY OF LETTER NO.A1/1/19/SCTMIST/2014 DATED 16.7.2020.
ANNEXURE R3(d) TRUE COPY OF DO NO.11014/07/04/2020-S&T DATED 20.7.2020.
EXHIBIT P5 TRUE COPY OF THE M.A.NO.386/2020 IN O.A.NO.291/2020 FILED BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
OP (CAT).No.141 OF 2020 14 EXHIBIT P6 TRUE COPY OF ORDER DATED 5.8.2020 IN M.A.NO.180/373/2020 AND M.A.NO.180/386/2020 IN O.A.NO.180/0291/2020 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
RESPONDENTS EXHIBITS : NIL
TRUE COPY P.A.TO JUDGE