Central Administrative Tribunal - Chandigarh
Dr Baljiner Singh vs Pgi Chandigarh on 23 December, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Hearing by Video Conferencing
O.A. No.060/110/2021 Order pronounced on:23.12.2021
(Order reserved on: 04.08.2021)
CORAM: HON'BLE MR. SURESH KUMAR MONGA, MEMBER (J)
(On Video Conference from Central Administrative Tribunal,
Chandigarh Bench, Chandigarh).
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
(On Video Conference from Central Administrative Tribunal,
Bangalore Bench, Bangalore)
Dr. Baljinder Singh, Professor S/o Late Sh. Lekh Singh,
age 60 years, Department of Nuclear Medicine, Post
Graduate Institute of Medical Education and Research,
Chandigarh R/o H.No. 55, Sector 24A, Chandigarh-
160023. (Group - A).
(By: Sh. Gurminder Singh, Senior Advocate with
Sh. Jasdeep Singh, Advocate)
....Applicant
Versus
1. Post Graduate institute of Medical Education and
Research, Chandigarh through its director, Sector 12,
Chandigarh-160012.
2. Dr. Anish Bhattacharya, Department of Nuclear
Medicine, Post Graduate institute of Medical Education
and Research, Chandigarh, Sector 12, Chandigarh-
160002.
(By: Sh. Amit Jhanji, Senior Advocate with
Sh. A.K Premi, Advocate)
... .Respondents
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ORDER
Per: SURESH KUMAR MONGA, MEMBER (J)
1. Dr. Baljinder Singh, the applicant herein, has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 making therein a prayer for quashing the decision dated 14.2.2007 (Annexure A-4), the minutes of meeting dated 12.1.2021 (Annexure A-3) containing a recommendation that the departments running postgraduate degrees like MD/MS/DM/M.Ch. should be headed only by a person holding a basic Medical Degree i.e. MBBS degree and an order dated 18.1.2021 (Annexure A-5). A prayer for issuance of a direction has also been made by the applicant to give him the charge of Head of Department of Nuclear Medicine being senior most Professor in the department.
2. Factual matrix of the case is that the applicant, who is having qualifications of M.Sc (Biophysics) and Ph.D (Biophysics), was appointed as Assistant Professor (Medical Physics) in the Department of Nuclear Medicine at the Post Graduate Institute of Medical Education & Research, Chandigarh (hereinafter referred to as the „Institute‟) on 30.7.1997. He was promoted as Professor on 1.7.2010. He is the senior most Professor in the Department.
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3. The applicant pleads that the specialty of Nuclear Medicine is a highly inter-disciplinary field of science and consists of Doctors, Scientists, Medical Physicists and Radio Chemists and is a continuum of various science disciplines and makes it a truly hybrid discipline. The applicant is currently holding the position of President of the Society of Nuclear Medicine-India which has Doctors, Scientists, Medical Physicists and Radio Chemists as its Members from all over India and abroad. He has also served during 2014-2017 as Dean of Indian College of Nuclear Medicine, which is an academic wing of the Society of Nuclear Medicine-India. He also has international experience of heading as "Chairman of the Indo-UK Network on radiation safety and security in Healthcare" for 2 years. It is submitted that during his service career, the applicant has also rendered other administrative duties like holding departmental inquiries and presently he is holding the functional charge of the Professor-in-Charge(Academics)- cum-Registrar of the Institute.
4. The Standing Academic Committee of the Institute held a meeting on 27.8.2005 to consider various issues including one at Item No.16, relating to appointment of Heads of Department of Clinical Medical Specialties in various departments of the Institute. The 4 said Committee decided that the departments running postgraduate degrees like MD/MS/DM/M.Ch. should be headed only by a person holding a basic Medical Degree i.e. M.B.B.S Degree. However, the Committee carved out an exception that the departments of Biochemistry and Biophysics could be headed by a person with Non- Medical qualifications i.e. other than the MBBS degree as per the past practice. On the basis of this decision a formal office order dated 14.2.2007 was issued by the Director of the Institute.
5. Prof. B.R. Mittal earlier Head of the Department of Nuclear Medicine in the Institute was selected for appointment as Director at Institute of Medical Science, Banaras Hindu University, Varanasi and as such the applicant submitted a representation dated 19.11.2020 (Annexure A-1) with respondent No.1 requesting therein to give him the charge of the office of the Head of Department of Nuclear Medicine. An Internal Committee comprising of Professors of the Institute was constituted to examine the applicant‟s claim. However, before such consideration could come to a logical conclusion, the additional charge of Head of Department of Nuclear Medicine was given to Prof. Manavjit Singh Sandhu, Head of the Department of 5 Radio-Diagnosis vide order dated 16.12.2020 (Annexure A-2).
6. The applicant has further submitted that meeting of the Internal Committee under the Chairmanship of DEAN (Academic) of the Institute was convened on 21.12.2020. However, the Committee recommended that Prof. Anish Bhattacharya, who was the senior-most medical faculty in the Department of Nuclear Medicine, may be appointed as Head of the Department of Nuclear Medicine of the Institute. Pursuant thereto, Prof. Anish Bhattacharya was appointed as Head of the Department of Nuclear Medicine with immediate effect vide order dated 18.1.2021 (Annexure A-5) which led the applicant to invoke the jurisdiction of this Tribunal.
7. Respondent No.1 has filed a written statement contesting the Original Application. It has been submitted that the President of the Institute is the Chairman of the Governing Body which has been vested with various powers as prescribed in the Regulations to discharge the functions of the Institute. The Institute has constituted a Standing Academic Committee which is empowered to take all the policy decisions pertaining to Education and Training Programme, subject to ratification by the Governing body and the Institute 6 Body. As per past practice, the Departments of the Institute have always been headed by the senior most faculty members of the department concerned. In the Institute, there are total 47 departments/specialties comprising of both faculties i.e. Medical as well as Non- Medical. For instance, the department of Superspeciality of Gastroenterology has faculty members with non- medical qualifications (M.Sc./Ph.D) for the teaching posts of Biochemistry and Dietetics. Similarly, the Department of Psychiatry has non-medical faculty posts for Clinical Psychology with eligibility qualification of M.A., Ph.D, Psychiatric Social Work (M.S.W. Ph.D) and the Department of Otorhinolaryngology (ENT) has non- medical faculty for Audiology and Speech Therapy.
8. It has further been submitted that with the passage of time the non-medical faculty members working in the Clinical Departments became senior in service. Therefore, the agenda was prepared and put up before the Standing Academic Committee vide agenda item no. 16 dated 27.8.2005 (Annexure R-1/1) to take policy decision as the departments wherein both medical as well as non-medical teaching posts were available, were facing extreme difficulty in developing / managing and guiding the medical research related functions in the medical field, if the department was headed by an 7 employee of non-medical background. The agenda item (Annexure R-1/1) was put up before the Standing Academic Committee in its meeting held on 27.8.2005, which decided that the departments running postgraduate degrees should be headed only by a person holding a basic Medical Degree i.e. MBBS Degree. There would be deviation only in case of Department of Biochemistry and Biophysics which can be headed by a person with Non-Medical Qualification i.e. other than MBBS degree as per the past practice. This decision was ratified by the Governing Body in its 109th Meeting held on 31.8.2005. Pursuant thereto, a formal order dated 14.2.2007 also came to be issued at the instance of the Director of the Institute.
9. The Department of Nuclear Medicine is an established clinical department of the Institute involved in patient care including patient investigations, interventions, OPD and ward for therapy. Nuclear medicine investigations like gamma camera scans, PET scans, PET-guided biopsy and cardiac stress imaging are all conducted for cancer and other disease of the heart, liver, kidneys, brain, lungs, bones etc. for the direct supervision of medical faculty/residents after administration of radioisotopes to the patients. The patients include weeks, old, children to geriatric patients 8 over 90 years in age, including very sick patients brought in on wheel chairs and trolleys, sometimes on assisted ventilation. The procedures require administration of radioisotopes to the patients mainly by intravenous injection, both for diagnosis and therapy. The diagnostic scans, like CT and MRI scans in Radiology, are not simple laboratory tests, but must be directly interpreted by medical nuclear medicine faculty with post-graduate medical qualifications in nuclear medicine. A non- medical person is not competent to sign any of these reports or record the case history of a patient or authorize the discharge of a patient treated with radionuclide therapy. The patients investigated with nuclear medicine scans are provided medical treatment by referring them to physicians based on the interpretation of these scans by nuclear medicine physicians. Nuclear medicine therapy is also administered by the medical personnel for cancer and bone pain and patients are routinely managed in the radionuclide therapy ward in the department. The patient is subsequently followed up in the department only by medical residents and medical faculty of the department.
10. It has still further been submitted that the Department of Nuclear Medicine has been classified with other Medical specialties. The website of the Institute 9 clearly defines the same. The OPD Schedule for patient evaluation in the department of Nuclear Medicine is also displayed under "OPD Services". It clearly indicated that nuclear medicine is primarily a medical specialty, requiring the services of medical faculty to run the OPD ward and other services. Pursuant to policy decisions, Dr. Ranjana W. Minz, who was 7 years junior to Dr. Sunil Arora, was appointed as Head of the Department of Immunopathology on 28.7.2006 (Annexure R-1/5).
11. The respondent Institute has further submitted that the Head of Department is neither a cadre post nor any recruitment rules have been framed in that connection. As per the past practices, the senior most faculty member becomes the Head of Department. However, there are various departments like Department of Nuclear Medicine, Endocrinology, ENT, Ophthalmology wherein faculties of both the background i.e. Medical as well as Non Medical have been working. Since the working of the said department also involves the patient care, technological up-gradation of the services, therefore, in order to avoid any ambiguity amongst the senior faculty members, above indicated policy decision was taken with regard to appointment of Head of Department.
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12. The respondent Institute has further submitted that the Department of Nuclear Medicine also conducts MD course in Nuclear Medicine and Fellowship in PET, wherein, it is mandatory to have a Medical Nuclear Medicine Faculty of the rank of Professor to conduct the final theory and practical MD examination. Non-medical faculty cannot be involved in the Nuclear Medicine MD examination. Any difference of opinion with the administrative head lacking the necessary clinical background would adversely affect the smooth functioning of the Institute. The Institute is an autonomous body having its own rules and regulations. It is not bound by the decision taken by the Institute of Nuclear Medicine & Allied Sciences and Radiation Medicine Centre. The Institute is bound by decision dated 31.8.2005 of the Governing Body.
13. After making the general assertions and turning to the case of the applicant, the respondents submit that no doubt the applicant is senior to respondent no.2 but he belongs to Non-medical background having qualification of M.Sc. (Biophysics) and Ph.D (Biophysics). He is senior most faculty member in the Department of Nuclear Medicine. Applicant as well as respondent no.2 had submitted representations for appointment as Head of Department. The Internal 11 Committee in its meeting held on 12.1.2021 recommended that respondent no.2 may be appointed as Head of Department, in consonance with decision taken by Governing Body on 31.8.2005 and as such impugned order, Annexure A-5 was issued which has been challenged by the applicant.
14. We have heard Shri Gurminder Singh, learned Senior Advocate for the applicant and Sh. Amit Jhanji, learned Senior Advocate for the respondents.
15. Shri Gurminder Singh, learned senior counsel for the applicant argued that the classification drawn by the respondents between the medical and non- medical qualifications for appointment as Head of Department of Nuclear Medicine is bereft of any logic or reason and is without any basis as there is no such requirement in the statutory recruitment rules and any decision taken contrary to the rules cannot be sustained in the eye of law. Learned senior counsel further argued that there is no logic or reason for arriving at the indicated decision as Head of Department is not a post but only a designation conferred upon a senior most faculty member in the Department. When number of other departments have the Head of Department with Non-Medical qualification, there is no earthily reason to deny such benefit to the applicant.
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16. On the other hand, Shri Amit Jhanji, learned senior counsel for the respondents argued that once the competent authority has taken a policy decision to confer powers of Head of Department of Nuclear Medicine to a faculty member having medical qualification as per requirement of the job with due application of mind, this Tribunal cannot and should not tinker with such a decision as it is well within the power and authority of the competent authority to take a call in the best interest of various departments of the Institute. Learned senior counsel further submitted that a policy decision was taken by the Standing Academic Committee in accordance with law and there is no reason to interfere with the same.
17. We have thoughtfully considered the rival contentions of learned counsels for the parties and have also perused the records.
18. Undisputed facts of the case are that the applicant herein joined the Department of Nuclear Medicine of the Institute as Assistant Professor (Medical Physics) in the year 1997 and has risen to his current level of Professor since July 2010. Dr. B.R. Mittal joined as Assistant Professor in the year 1995 and, in due course, he became the Professor in July, 2008 and the first regular Head of the Department of Nuclear Medicine 13 in the year 2006 as he was the senior-most faculty member in the department. Dr. Anish Bhattacharya (Respondent No. 2 herein) joined the department as Assistant Professor later in the year 1999 and became Professor in July, 2013. Dr. Anish Bhattacharya is three years junior to applicant as Professor and six years younger to him in age. Applicant and the Respondent No. 2 herein are the members of the cadre of Professors irrespective of the fact that they have different qualifications.
19. Consequent upon selection of Dr. B.R. Mittal, Head, Department of Nuclear Medicine, as Director of the Institute of Medical Sciences, Banaras Hindu University, Varanasi, the office of the Head of Department in Nuclear Medicine was to fall vacant and, therefore, the applicant herein, being the senior-most Professor in the cadre after Dr. B.R. Mittal, submitted a representation dated 19.11.2020 with the Director of the Institute requesting therein to give him the charge of Administrative Head in the Department of Nuclear Medicine. The said representation was pending consideration and the charge of the office of Head of Department in Nuclear Medicine was given additionally to Professor Manavjit Singh Sandhu, Head, Department of Radio-Diagnosis on 16.12.2020 upon appointment of Dr. 14 B.R. Mittal as Director, Institute of Medical Sciences, Banaras Hindu University, Varanasi.
20. The record reveals that the applicant‟s representation dated 19.11.2020 was referred to a committee consisting of six members and headed by Dean (Academic) as its Chairman. In order to consider the said representation, a meeting of the Committee was convened on 21.12.2020 wherein, after a great deal of discussions, some of the members were of the opinion that Dr. Baljinder Singh, the applicant herein, should be given a chance to head the Department of Nuclear Medicine. However, the views were also expressed that there are already specific guidelines existing in the Institute having been duly approved by the Standing Academic Committee/Governing Body to the effect that the departments running post graduate courses like MD/MS/DM/M.Ch. should be headed only by a person holding a basic medical degree i.e. MBBS. It was also observed during the proceedings of the meeting that since the applicant herein is a non-medical faculty, therefore, appointing him as such will be a major departure from extant guidelines. It may also cause inviting repercussions from the faculty members of the other departments having basic medical qualification i.e. MBBS degree and, therefore, appointing the applicant 15 herein as administrative head of the department would not largely be in the best interest of both i.e. the Department of Nuclear Medicine as well as the Institute. If at all, the applicant herein is still to be appointed as administrative head of the department, the Institute would need to have approval from the competent committees/bodies of the Institute for modification in the extant rules and before that the matter also requires to be discussed in a big forum like Staff Council of the Institute.
21. The record further reveals that one of the committee members recorded his disagreement with the Minutes of Meeting on 28.12.2020. The recommendations made by the said committee were pending consideration before the Director of the Institute and, in the meantime, the representations were also received from Dr. Anish Bhattacharya (Respondent No. 2 herein) for his appointment as Head of the Department of Nuclear Medicine. Those representations were also marked to the aforesaid committee for consideration and making its recommendations. Accordingly, a meeting of the committee headed by Dean (Academic) was again convened on 12.01.2021 and by making the observations that there is a clear cut stipulation in the PGI guidelines that the departments running post 16 graduate courses like MD/MS/DM/M.Ch. should be headed only by a person holding a basic medical degree i.e. MBBS, a recommendation was made to appoint Dr. Anish Bhattacharya (Respondent No. 2 herein) as Head of Department in Nuclear Medicine.
22. After making the aforesaid recommendation, the committee also observed that there are some other departments where such like issues are likely to arise in future. Those departments are Anatomy, Experimental Medicine and Biotechnology, Forensic Medicine, Immunopathology and Physical and Rehabilitation Medicine. The committee was alive of the fact that though the said aspect of the matter was not within its purview, however, still it suggested that some guidelines for the same also need to be in placed so as to avoid unnecessary controversies in future.
23. Acting upon the aforesaid recommendations, Dr. Anish Bhattacharya (Respondent No. 2 herein) was appointed as Head of the Department of Nuclear Medicine by way of an order dated 18.01.2021 which has been impugned herein.
24. In sum and substance, it was the policy decision taken by the Standing Academic Committee in its meeting held on 27.08.2005, making therein a provision that the departments running post graduate 17 degrees like MD/MS/DM/M. Ch. should be headed only by a person holding a basic medical degree i.e. MBBS, became the basis to make recommendation for appointment of Respondent No. 2 as Head of the Department of Nuclear Medicine taking departure from the principle of seniority in the cadre. A perusal of the record reveals that the policy decision taken by the Standing Academic Committee in its meeting held on 27.08.2005 was further ratified by the Governing Body of the Institute which ultimately took the shape of an office order dated 14.02.2007.
25. Whether the aforesaid policy decision taken by the Standing Academic Committee and ratified by the Governing Body was within the parameters of the Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966 (hereinafter referred to as the „1966 Act‟) and the Rules and Regulations framed thereunder? Whether the said policy decision could be made the basis to decline the applicant‟s representation dated 19.11.2020 and issue the order dated 18.1.2021, in order to appoint respondent no.2 as Head of the Department of Nuclear Medicine? These are the questions with which we are confronted with in the case in hand.
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26. The Post Graduate Institute of Medical Education and Research, Chandigarh is a creation of the „1966 Act‟. It is a body corporate with perpetual succession and common seal and powers subject to the provisions of the said Act. The institute has been declared as an Institution of national importance by virtue of the provisions of Section 2 of the said Act. Section 5 of the Act makes a provision for composition of the Institute which consists of the following members.
(a) the Vice-Chancellor of the Punjab University, ex-officio;
(b) the Director-General of Health Services, Govt. of India, ex-officio;
(c) the Director of the Institute, ex-officio;
(d) three representatives of the Central Government to be nominated by that Government, one each from the Ministry of Finance, Ministry of Education and Ministry of Health and Family Welfare;
(e) seven persons of whom one shall be a non-medical scientist representing the Indian Science Congress Association, to be nominated by the Central Government;
(f) four representatives of the medical faculties of Indian Universities to be nominated by the Central Government in the manner prescribed by rules; and
(g) three members of Parliament of whom two shall be elected from among themselves by the members of the House of the People (Lok Sabha) and one from among themselves by the members of the Council of States (Rajya Sabha)."
27. The body so constituted is popularly known and called as the Institute Body. The Institute has been established in order to achieve the objects as prescribed in Section 12 of the „1966 Act‟ with an endeavour to develop patterns of teaching in under-graduate and post-graduate 19 medical education in all its branches so as to demonstrate a high standard of medical education; to bring together, as far as may be, in one place educational facilities of the highest order for the training of personnel in all important branches of health activity; to attain self sufficiency in post graduate medical education to meet the country‟s needs for specialist and medical teachers.
28. With a view to promote the objects as specified in Section 12 of the „1966 Act‟, the functions of the Institute have been enumerated in Section 13 of the said Act which are reproduced here as under:
"13. Functions of Institute:
With a view to the promotion of the objects specified in section 12, the Institute may -
(a) provide for undergraduate and postgraduate teaching in the science of modern medicine and other allied sciences, including physical and biological sciences;
(b) provide facilities for research in the various branches of such sciences;
(c) provide for the teaching of humanities;
(d) conduct experiments in new methods of medical education, both undergraduate and postgraduate, in order to arrive at satisfactory standards of such education;
(e) prescribe courses and curricula for both undergraduate and post-graduate studies;
(f) notwithstanding anything contained in any other law for the time being in force, establish and maintain :-
(i) one or more medical colleges with different departments, including a department of preventive and social medicine, sufficiently staffed and equipped to undertake not only undergraduate medical education but also postgraduate medical education in different subjects;20
(ii) one or more well-equipped hospitals;
(iii) a dental college with such institutional facilities for the practice of dentistry and for the practical training of students as may be necessary,
(iv) a nursing college sufficiently staffed and equipped for the training of nurses,
(v) rural and urban health organisations which will form centres for the field training of the medical, dental and nursing students of the Institute as well as for research into community health problems, and
(vi) other institutions for the training of different types of health workers, such as physiotherapists, occupational therapists, pharmacists, drug analysts and medical technicians of various kinds;
(g) train teachers for the different medical colleges in India;
(h) hold examination and grant such degrees, diplomas and other academic distinctions and titles in undergraduate and postgraduate medical education as may be laid down in the regulations;
(i) institute, and appoint persons to, professorships, reader-ships, lecturerships and posts of any description in accordance with regulations;
(j) receive grants from the Government and gifts, donations, benefactions, bequests and transfers of properties, both movable and immovable, from donors, benefactors, testators or transferors, as the case may be;
(k) deal with any property belonging to, or vested in, the Institute in any manner which is considered necessary for promoting the objects specified in section 12;
(l) demand and receive such fees and other charges as may be prescribed by regulations;
(m) construct quarters for its staff and allot such housing to the staff in accordance with such regulations as may be made in this behalf.
(n) borrow money, with the prior approval of the Central Government, on the security of the property of the Institute.21
(o) do all such other acts and things as may be necessary to further the objects specified in section
12."
29. In order to achieve the aforesaid laudable objects and for efficient administration of the „1966 Act‟, the rule making power has been conferred upon the Central Government under Section 31 of the said Act.
30. Apart from this, Regulations making power has been conferred upon the Institute Body by virtue of the provisions of Section 32 of the „1966 Act‟. However, in terms of Section 32 (2) of the said Act, the first regulations making power was conferred upon the Central Government with a rider that any regulations so made may be altered or rescinded by the Institute body in exercise of its power under sub-section (1) of the said Section.
31. Accordingly, while deriving powers from Section 31 of the „1966 Act‟, the Central Government promulgated the „Post Graduate Institute of Medical Education and Research, Chandigarh, Rules, 1967‟ (hereinafter called as the „1967 Rules‟)
32. Similarly, while deriving powers from the provisions of Section 32 of the „1966 Act‟, the Central Government had promulgated the first regulations known as the „Post Graduate Institute of Medical 22 Education and Research, Chandigarh, Regulations, 1967‟ (hereinafter called as the „1967 Regulations‟).
33. Apart from the above powers conferred under Section 31 and 32 of the „1966 Act‟, the Central Government is also conferred with the powers to issue directions for the efficient administration of the Act and the Institute is made liable to carry out those directions by virtue of the provisions of Section 25 of the said Act.
34. On perusal, we find that Regulations 30 to 40A of the „1967 Regulations‟ lay down the service conditions of the employees appointed in the Institute against the posts, permanent or temporary. Regulation 31 makes a provision defining the nature of posts that is permanent/temporary and work charged/work charged (Regular) with definite rate of pay sanctioned for such posts. Regulation 32 makes a provision for age, experience and other qualifications for appointment to a post with a rider that non-medical personnel shall not be appointed to the post of Director and Medical Superintendent in the Institute. Regulation 40A makes a specific provision that various posts in the Institute and the scales of pay and allowances attached thereto shall be as specified in Schedule III of the „1967 Regulations‟. 23
35. On perusal of Schedule III annexed with the „1967 Regulations‟ we find that various posts with different nomenclatures/designations from Sl. No. 1 to 366 have been specified. Out of the said list of various posts with different nomenclatures/designations, the entries made at Sl. No. 24 to 36 talk about the faculty members in a department of the Institute which comprises of Professor in Senior Scale, Professor, Additional Professor, Joint Medical Superintendent, Associate Professor, Genetist, Assistant Professor, Deputy Medical Superintendent, Senior Resident, Junior Resident, Educationist-cum-Lecturer I/c, Education Cell, Senior Demonstrator and Junior Demonstrator.
36. It appears that the Central Government while promulgating the first regulations in the year 1967 might have construed it appropriate that these are the posts required for efficient administration of the „1966 Act‟. It requires to be noticed here that no post of Head of the Department was incorporated in Schedule III annexed with the „1967 regulations‟. In whole of the scheme of the „1966 Act‟ and the Rules and Regulations framed thereunder, neither such a post nor an office or a designation with the nomenclature of Head of Department has been prescribed.
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37. Undisputedly, a faculty member appointed to such office of the Head of Department in the Institute exercises the superior powers and authority to look after the administrative work in the department as has been narrated by the applicant in para 4 (3) of the Original Application and not disputed by the respondents. Apart from this, in terms of the assertions made in para 5 of the preliminary objections in the written statement, the said faculty member on appointment as Head of the Department also become an authorized competent authority to sign any of the reports, records with regard to case history of a patient, to authorize discharge of a patient treated with radionuclide therapy. The assertions made by the respondent Institute in paragraph 5 of the preliminary objections of the written statement are reproduced here as under in verbatim:
"Department of Nuclear Medicine is an established clinical department of PGIMER, Chandigarh involved in patient care including patient investigations, interventions, OPD and ward for therapy. Nuclear medicine investigations like gamma camera scans, PET scans, PET-guided biopsy and cardiac stress imaging are all conducted for cancer and other diseases of the heart, liver, kidneys, brain, lungs, bones etc. for the direct supervision of medical faculty/residents after administration of radioisotopes to the patients. The patients include weeks-old children to geriatric patients over 90 years in age, including very sick patients brought in on wheelchairs and trolleys, sometimes on assisted ventilation. The procedures require administration of radioisotopes to the patients mainly by intravenous injection, both for diagnosis and therapy. The diagnostic scans, like CT and MRI scans in Radiology, are not simple laboratory tests, but must be directly interpreted by medical nuclear medicine faculty with post-graduate medical qualifications in nuclear medicine. A 25 non-medical person is not competent to sign any of these reports, or record the case history of a patient or authorize the discharge of a patient treated with radionuclide therapy. The patients investigated with nuclear medicine scans are provided medical treatment by the referring physicians based on the interpretation of these scans by nuclear medicine physicians. Nuclear medicine therapy is also administered by the medical personnel for cancer and bone pain and patients are routinely managed in the radionuclide therapy ward in the department. The patients are subsequently followed up in the department only by medical residents and medical faculty of the department"
38. From the pleadings as quoted hereinabove, in our opinion, on appointment of a faculty member as Head of the Department, one steps towards advancement of a higher position with honour and dignity.
39. In TARSEM SINGH VS STATE OF PUNJAB (1994) 5 SCC 392, the Hon‟ble Supreme Court propounded the meaning of promotion in these words:
"Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour."
40. While keeping in view the aforesaid principle in Tarsem Singh (supra), it can safely be inferred that in the matter of appointment of Head of the Department, there is an element of promotion and without there being a post created in the Regulations whether such an appointment can be made merely on 26 the basis of a policy decision taken by Standing Academic Committee and ratified by the Governing Body.
41. There is no dispute with regard to the fact that the applicant is the senior-most Professor in the Department of Nuclear Medicine. He is a Member of the cadre of Professors. The Professors in the cadre, apart from having different qualifications, are homogenous class and, therefore, there was no reason with the respondent Institute to appoint Respondent No. 2 as Head of the Department who, in any case, is junior to applicant according to the seniority list.
42. The argument of Shri Amit Jhanji, learned senior counsel for the respondent Institute that the order impugned herein has been issued in consonance with the policy decision and since the applicant does not possess the basic medical qualification of MBBS degree, therefore, he cannot be appointed as Head of the Department in the Nuclear medicine, in our considered view, cannot be countenanced.
43. In our opinion, there is no power vested with the Standing Academic Committee to evolve a policy decision to make an appointment as Head of the Department to supervise the day to day administrative 27 work of a department. Neither the Governing Body of the Institute has such a power to ratify such a policy decision. As has been discussed in the preceding paragraphs, the Central Government has promulgated the „1967 Rules‟ while deriving its power from Section 31 of the „1966 Act‟. The first regulations were also framed by the Central Government while invoking its powers under sub-section 2 of Section 32 of the said Act. Neither the „1966 Act‟, nor the Rules and Regulations framed thereunder make a provision for creation of an office and appointment thereto with designation of Head of the Department.
44. A perusal of Rule 7(1) of the „1967 Rules‟ reveals that the Institute may create posts, subject to specific provision in the budget, on such scales of pay as are approved by the Central Government, classify them into grades and specify their designations. As per the proviso to Rule 7 (1), no post above the level of Associate Professor can be created except with the prior approval of the Central Government. Meaning thereby, for creation of a post above the level of Associate Professor, the Institute is required to seek approval of the Central Government. In such like situation, it is beyond our comprehension that how an appointment of a faculty member to the office of Head of the Department to 28 oversee and supervise the day to day administrative work of all the employees including the faculty members can be made merely on the basis of a policy decision taken by the Standing Academic Committee and ratified by the Governing Body of the Institute.
45. As is clear from the provisions of Section 31 and Section 32 (2) of the „1966 Act‟, in order to give efficient administration of the Act, the power to make rules and the first regulations is vested with the Central Government only. In order to fill up the gaps, the legislature in its wisdom, has conferred a further power upon the Central Government under Section 25 of the Act to issue directions from time to time for efficient administration of the Act and the Institute is bound to carry out those directions. At the cost of repetition, here it is required to be noticed that while considering the representation of the applicant and the respondent no.2, the Committee was alive to the fact that the extant rules are required to be modified. Even it was not considered appropriate by the Committee to advise the competent authority to seek the requisite directions from the Central Government.
46. As noticed in the preceding paragraphs, apart from the above powers of the Central Government, the 29 Institute is also vested with the power to make Regulations consistent with this Act and the rules made thereunder to carry out the purposes of the Act and in terms of sub-section 2 of Section 32 of the „1966 Act‟, the first regulations made by the Central Government could have been altered, rescinded or modified by the Institute in exercise of its power under sub-section 1 of the said Section. In any case, if the institute was of the opinion that an eventuality has arisen for creation of the office of Head of the Department then it ought to have resorted to its power to amend suitably the regulations and Schedule-III attached thereto. But this has not happened.
47. The Institute while creating the office of the Head of the Department and to make appointment to such an office, neither amended the IIIrd Schedule annexed with „1967 Regulations‟ nor solicited the directions from the Central Government to create such an office for efficient administration of the Act, in terms of Section 25 of the „1966 Act‟. The policy decision taken by the Standing Academic Committee on 27.08.2005, ratified by the Governing Body of the Institute, in our considered view is, therefore, non-est right from its inception as neither the Standing Academic Committee was conferred with such a power nor any such power 30 was conferred upon the Governing Body to ratify such a policy decision. Thus, the action of the respondent Institute declining the applicant‟s representation dated 19.11.2020 and to make appointment of Respondent No. 2 as Head of the Department based on the aforesaid policy decision cannot be sustained.
48. Looking at the matter from another angle, we find that pursuant to representation dated 19.11.2020 given by the applicant, no order declining the said representation was issued by the respondents. Straightaway an office order dated 18.01.2021 was issued by the Director of the Institute stating therein that in pursuance of recommendations dated 21.12.2020 and 12.01.2021 of the Committee constituted under the Chairmanship of Dean (Academic), Dr. Anish Bhattacharya is appointed as Head of the Department of Nuclear Medicine with immediate effect. Neither an order on applicant‟s representation was issued nor the copies of recommendations as made by the committee were supplied to him.
49. In S.N. MUKHERJEE VS UNION OF INDIA (1990) 4 SCC 594, the Hon‟ble Supreme Court while expanding the principles of natural justice has held that the requirement to record reason in an order can be 31 regarded as one of the principles of natural justice which governs the exercise of power by administrative authorities.
50. Reason is the heartbeat of every administrative order. Reason introduces clarity in an order and without a reason, an administrative order becomes lifeless.
Absence of order renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. This has been so ruled by the Hon‟ble Supreme Court in SANT LAL GUPTA & ORS VS. MODERN CO-
OPERATIVE GROUP HOUSING SOCIETY LTD. AND ORS (2010) 13 SCC 336 and IN SECRETARY & CURATOR, VICTORIA MEMORIAL HALL VS.
HOWRAH GANATANTRIK NAGRIK SAMITY AND OTHERS (2010) 3 SCC 732.
51. In the case in hand, the applicant, in order to find out the reasons behind the order dated 18.01.2021, had to submit an application under RTI Act, 2005 and pursuant thereto the respondent Institute supplied the copies of the Minutes of Meetings recorded by the committee on 21.12.2020 and 12.01.2021 while dealing with the representations of the applicant and the Respondent No. 2.
32
52. On perusal of the Minutes recorded by the committee on 21.12.2020, we find that the committee was aware of the fact that in case Dr. Baljinder Singh, the applicant herein, is to be appointed as administrative head in the department then the institute would need to have an approval from the competent committee/body for modification in the extant rules. Whereas, while dealing with the representation of Respondent No. 2 on 12.01.2021, the committee opted to rely upon the PGI guidelines issued in the guise of a policy decision taken by the Standing Academic Committee in the year 2005. A recommendation was thus made to appoint Professor Anish Bhattacharya (Respondent No. 2 herein), as Head of the Department of Nuclear Medicine. After making the said recommendation, the committee still further observed that there are other departments where such like issues are likely to arise in future and a suggestion was made to have some guidelines in order to avoid unnecessary controversies in future. On perusal of the Minutes of Meeting dated 21.12.2020 and 12.01.2021 we are of the view that though the committee was alive of the fact that rules are required to be amended to avoid such like controversies in future but still it opted to make a recommendation of the name of Respondent No. 2 for his appointment to the office of Head of the 33 Department merely by placing reliance upon the policy guidelines evolved by the Standing Academic Committee in the year 2005 and ratified by the Governing Body which, in any case, had no support of law.
53. In T. CHANDRAN VS UNION OF INDIA 2004 (5) SLR 674, a Division Bench of the Hon‟ble High Court of Kerala has ruled that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution of India or the governing Act or the general principles of law of the land or it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. Whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. The repository of power should act within the bounds of the power delegated and should not abuse his power.
54. In the case in hand, we find that the committee to whom the applicant‟s representation was forwarded has failed to discharge the obligation to apply its mind to pertinent questions with regard to powers vested with the Central Government and has opted to rely upon a 34 decision of the Standing Academic Committee which had no bearing in law. The decision taken by the Director of the Institute pursuant to aforesaid recommendations, in our considered opinion is, therefore, contrary to the provisions of the „1966 Act‟ and the Rules and Regulations framed thereunder.
55. Shri Gurminder Singh, learned Senior Counsel representing the applicant in order to claim appointment of the applicant to the office of Head of the Department has placed heavy reliance upon the observations made in paragraph 18, 22, 41, 52, 54 and 55 of a judgment rendered by a Division Bench of the Hon‟ble High Court of Punjab and Haryana in the matter of PROFESSOR C.S. GAUTAM AND ANOTHER VS UNION TERRITORY OF CHANDIGARH AND OTHERS (CWP No. 19265/2016) decided on 22.02.2019. On the other hand, Shri Amit Jhanji, learned senior counsel for the respondent Institute, while placing reliance upon a Division Bench judgment of the Hon‟ble High Court of Delhi in the matter of JASWINDER KAUR GAMBHIR & ANR VS UNION OF INDIA AND OTHERS (WP (C) 5692/2008 and WP (C) 934/2009 decided on 18.09.2012) submitted that the judgment in Professor C.S. Gautam (supra) cannot be pressed into service in order to support the cause of the applicant as the 35 principles laid down by the Hon‟ble High Court of Delhi in Jaswinder Kaur Gambir (supra) will cover up the whole controversy and the issue arisen herein can be settled in terms of those principles.
56. On careful perusal, we find that both the judgments as referred to by learned counsels for the parties cannot be pressed into service as in both these cases the provisions of Medical Council of India Act, 1956 and the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 wherein the eligibility qualifications with regard to appointment of a teaching faculty was considered for the purposes of appointment as Head of the Department in the Medical College. „1998 Regulations‟ promulgated under the MCI Act lays down the eligibility qualifications of faculty members who are appointed in the medical colleges.
57. Whereas, „1966 Act‟ is a special enactment in order to establish an Institute of National importance. Section 12 of the said Act while setting up the objects of the Institute makes the provision that the Institute shall develop patterns of teaching under graduate and post graduate medical education in all its branches so as to demonstrate a high standard of medical education; to bring together, as far as need be, in one place 36 educational facilities of highest order for training of personnel in all important branches of health activity; and to attain self-sufficiency in post graduate medical education to meet the Country‟s need for specialists and medical teachers. In order to achieve these objects as set up in Section 12 of the „1966 Act‟, the Central Government while invoking its powers under Section 32 of the said Act had formulated the first regulations specifying therein the eligibility qualification of all the employees in the Institute including the faculty members in various departments. Those regulations can be altered or rescinded by the Institute body while invoking its power under sub-section 1 of Section 32 of the „1966 Act‟. The Institute has attained self-sufficiency in post graduate medical education and excelled to an extent to meet the Country‟s needs for specialists and medical teachers. Therefore, in our considered view, the „1998 regulations‟ formulated under the MCI Act, 1956, laying down therein eligibility qualification for faculty members in medical colleges in the country have no bearing as the eligibility qualifications for faculty members in the Institute can only be prescribed by way of regulations framed by the Institute body.
58. A perusal of the Minutes of Meeting dated 21.12.2020 and 12.01.2021 divulges that the committee 37 constituted by the Director of the Institute has mainly relied upon the policy decision taken by the Standing Academic Committee on 27.08.2005 ratified by the Governing Body of the Institute and an apprehension was also recorded that, if the applicant herein, being a non-medical faculty, appointed as Head of the Department, it may cause inviting repercussions from the other faculty members of the Department having basic medical qualification i.e. MBBS degree. Whereas, while filing the written statement to Original Application, the respondent institute in order to support the order impugned herein has maintained a stand that the Department of Nuclear Medicine is an established clinical department of PGIMER, Chandigarh involved in patient care including patient investigations, interventions, OPD and ward for therapy. Nuclear medicine investigations like gamma camera scans, PET scans, PET-guided biopsy and cardiac stress imaging are all conducted for cancer and other diseases of the heart, liver, kidneys, brain, lungs, bones etc. for the direct supervision of medical faculty/residents after administration of radioisotopes to the patients. The patients include weeks-old children to geriatric patients over 90 years in age, including very sick patients brought in on wheelchairs and trolleys, sometimes on assisted ventilation. The procedures 38 require administration of radioisotopes to the patients mainly by intravenous injection, both for diagnosis and therapy. The diagnostic scans, like CT and MRI scans in Radiology, are not simple laboratory tests, but must be directly interpreted by medical nuclear medicine faculty with post-graduate medical qualifications in nuclear medicine. A non-medical person is not competent to sign any of these reports, or record the case history of a patient or authorize the discharge of a patient treated with radionuclide therapy.
59. The reasons which are now pointed out by the respondent Institute in its written statement do not form the part of reasons recorded by the committee in its meetings held on 21.12.2020 and 12.01.2021. Such a stance cannot be approved in view of the principles laid down by the Hon‟ble Supreme Court in MOHINDER SINGH GILL VS. THE CHIEF ELECTION COMMISSIONER, (1978) 1 SCC 405 wherein it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Hon‟ble Supreme Court has further gone to the extent that otherwise, an order bad in the beginning may, by the time it comes to court on account 39 of a challenge, get validated by additional grounds brought out later.
60. In the conspectus of discussions made hereinabove, we are of the firm view that the order dated 18.01.2021, being illegal and arbitrary cannot be sustained and the same is liable to be set aside.
61. Accordingly, the Original Application is partly allowed and the order dated 18.01.2021 is hereby quashed.
62. We shall be failing in discharge of our duty if before parting with the judgment, we do not give the observation that it is the high time when the Institute body should either amend the Regulations while deriving its powers from Regulation 32 of the „1967 Regulations‟ or it should initiate the matter with the Central Government and seek requisite directions to make appointment to the office of Head of Department in Nuclear Medicine and in all other departments, wherever the committee suspects the similar kind of controversies in future, so that an efficient administration of the „1966 Act‟ is ensured and the objects of Institute as set up in Section 12 of the said Act are achieved at its maximum. Let the necessary exercise be initiated forthwith and the whole exercise be completed within a period of 8 weeks 40 from the date of receipt of a certified copy of this order. Thereafter, if the applicant is found eligible for appointment to the office of Head of Department in Nuclear Medicine, then he be appointed forthwith as such.
63. Ordered accordingly.
64. There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
KS*