Central Administrative Tribunal - Chandigarh
Prof. C.S. Gautam vs Union Territory Of Chandigarh Through ... on 21 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 060/00157/2015 &
MA No.060/0287, 0037/2015 Date of decision: 21.04.2015
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
1. Prof. C.S. Gautam, Professor, Department of Pharmacology, Government Medical College and Hospital, Sector-32, Chandigarh, R/o House No.1105, GMCH Campus, Sector-32, Chandigarh.
2. Dr. Kanchan Kapoor, Professor, Department of Anatomy, Government Medical College and Hospital 32, Chandigarh, R/o House NO.1404, Sector-42-B, Chandigarh.
APPLICANTS
BY ADVOCATE: Shri Satya Pal Jain, Senior Advocate with Shri H.S.
Sethi.
VERSUS
1. Union Territory of Chandigarh through Administrator and Secretary, Medical Education and Research, Chandigarh Admn.
2. Medical Council of India, through its Secretary Sector-8, Pocket-14, Dwarka, New Delhi.
3. Govt. Medical College and Hospital, Sector 32, Chandigarh through its Director and Principal.
4. Dr. Rajiv Kumar, Associate Professor, Department of Pharmacology, Govt. Medical College and Hospital, Sector-32, Chandigarh.
5. Dr. Mahesh Kumar Sharma, Associate Professor, Department of Anatomy, Govt. Medical College and Hospital, Sector-32, Chandigarh.
RESPONDENTS
BY ADVOCATE: Shri H.S. Sullar, for Respondents No.1 & 3).
Sh. Gurminder Singh, Senior Advocate with Shri
Manpreet Singh,for Respondent no.2
Shri R.S. Bains, for respondents No.4 & 5.
O R D E R
Mr. Sanjeev Kaushik, Member (J):
1. The applicants in the present Original Application, the Non-Medico Professors in the department of Pharmacology and Anatomy in the Government Medical College & Hospital, Chandigarh, have assailed the orders of the respondent-Chandigarh Administration dated 19.2.2015 whereby the respondents have withdrawn the charge of Head of Department from them and have given the same to the persons juniors to them(Private respondents).
2. The facts, which led to the filing of the present Applications, are that applicant no.1 Dr. C.S. Gautam, who is possessing a degree of Master of Science (M.Sc.) in Medical Pharmacology and Doctorate of Philosophy (Ph. D) in Medical Pharmacology, initially applied in pursuance to an advertisement for the post of Reader (Now Associate professor) and was selected and appointed as such on 24.4.1993. His services were regularised as such by the UPSC in the year 1999, thereafter, he was selected as professor on 18.1.2008. The applicant no.2, who possesses Degree of Masters of Science (M. Sc.) in Medical Anatomy and Doctorate in Medical Anatomy was initially joined as Demonstrator on 22.3.1992, regularised as Sr. Lecture (Now Assistant Professor) in the month of January 1998, selected as Reader (Now designated as Associate professor) in December 2003, and thereafter as professor on 23.10.2012. The Administrator, Union Territory of Chandigarh vide communication dated 18.01.2008 (Annexure A-1) was pleased to designate the applicant no. 1 as Head of Department (HOD, for short) of Pharmacology, Government Medical College & Hospital, Chandigarh. Similarly, applicant no.2 was also designated as HOD, Department of Anatomy on 14.09.2010. They are performing their duties with full devotion to the entire satisfaction of their superiors. It is the case of the applicants that their designation as Professors in their respective departments had already been approved by the Medical Council of India (MCI, for short) on a communication by the Director-Principal, Government Medical College, Chandigarh dated 27.09.2003 by MCI communication dated 18.03.2005. Thus, it cannot be said from any angle that their designation as HOD was in any way in derogation of any relevant rules. Shockingly, the respondents have passed the impugned orders dated 19.02.2015, withdrawing their earlier orders dated 18.01.2008 and 17.09.2010 respectively, designating them as Head of their respective departments; and giving the charge to Associate Professors, who are much juniors to them in the respective departments, without even putting them on notice. This act of respondent UT Adminstration is in complete violation of principles of natural justice. Hence the present Original Application.
3. The applicants have challenged the impugned orders on three counts, firstly that they were not served upon any notice prior to passing the impugned order, secondly that the orders have been passed by an authority who is not competent to do so, and thirdly that the respondents have passed the impugned orders even without waiting for the outcome of their communication to MCI wherein they have requested the MCI to allow them to continue on their respective posts.
4. Shri Jain learned Senior Advocate appearing on behalf of the applicants in support of the above contentions very vehemently argued that the impugned orders are liable to be set aside on sole ground of violation of well established principle of audi alteram partem. To substantiate his plea he submitted that the applicants, who are working in respective departments, were designated as HOD after seeking the approval from the MCI and they continued to work as such for more than approximately six years and now the respondents have withdrawn their earlier order without informing them as to how their designation as Head of the respective department is bad in law. Therefore, he submitted that the impugned orders be set aside. Further, he submitted that the impugned orders also deserve to be set aside on the ground that the same have not been passed by the authority competent under the rules. He submitted that while they were designated as HOD, the orders though were passed by the Secretary of the respective departments, but same was done with the approval by the competent authority, i.e., Administrator, UT of Chandigarh. Now the impugned orders have been passed by the Secretary of the respective departments without any reference to the approval of the Administrator, therefore, the orders cannot sustain. He also submitted that the decision of the respondents in passing the impugned orders shows colourable exercise of power and gives an impression that they wanted to help the private respondents in one way or the other, as they did not even wait for the reply from the MCI pursuant to their letter dated 15.06.2010 (Annexure A-10) whereby they sought permission to appoint non-Medical Teachers as HOD. Thus, the impugned orders smack of favoritism. Lastly, he argued that the applicants being the senior most and working as Professors in their respective departments have a preferential right for designating as HOD over the persons who are junior to them.
5. The Chandigarh Administration, respondent no.3 has filed their reply through Professor Atul Sachdeva, Director of the Institution on behalf of Respondents No. 1 & 3, where they admitted the fact that applicants were not put on notice before passing the impugned orders. It is submitted therein that as per the objection raised by the MCI during the inspections carried on 9th and 10th December, 2014, they could not have allowed the applicants to continue as HODs as it was against the rules in this regard to designate non- medico as HODs. It is submitted that in view of the decision/objection raised by the executive committee of the MCI not to allow the administration to effect admission to the 50 increased seats of MBBS for the 3rd batch i.e. for the year 2015-2016, they have passed the impugned orders in public interest only to ensure that the benefit of 50 additional seats is not denied to the GMCH.
6. The MCI, i.e., respondent no.2 has filed their separate reply wherein they disputed that the applicants who are non-medicos can be designated as Head of their respective departments. It is denied that there was approval by the MCI as alleged by the applicants to the action of the administration to designate Non-Medico as HOD against the Regulations. It is submitted that in terms of Section 33 of the Indian Medical Council Act, 1956 (for short, the Act) the Central Government have already framed the Regulations, which are known as Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998, (for short, 1998 Regulations) which mandate that Head of the Department can only be a person who possesses medical degree and non-medicos cannot be made HOD. It is submitted that the Regulations framed under Section 33 are binding in nature and cannot be flouted.
7. Shri Singh learned senior Advocate appearing on behalf of the MCI vehemently opposed the prayer of the applicants for quashing the impugned orders on violation of principles of natural justice. He submitted that since in terms of clause-2 to schedule-I of the 1998 Regulations non-medicos cannot be designated as HOD, therefore their designation as such is bad in law and contrary to 1998 Regulations. He stoutly argued that if a wrong order has been passed by an incompetent person ignoring the Regulations that have binding force of law, that does not give a right to a person in whose favour the same has been passed to seek protection of the Court on a plea that the same has been withdrawn without complying with the principles of natural justice. He submitted that their initial order of designating them as HOD is in violation of 1998 Regulations and before passing that order there was no approval by the MCI, thus it cannot give any right to those who enjoyed the benefit contrary to the Statute and the Regulations. Lastly, he submitted that a conscious decision was taken while inserting clause-2 to schedule-I to 1998 Regulations that HOD will always be a person who possesses a medical degree. He submitted that to this effect they have already given reasons in para-30 of their written statement. To buttress his submission he placed reliance on a judgment in the case of State of Kerala v. T.P. Roshna, 1979 SCC 850 to the effect that it has been approved by the Lordships of the Honble Supreme Court that a responsibility has been given to MCI to discharge duties of maintenance of highest standard of medical education throughout the country. He further placed reliance on a decision of the Honble Supreme Court in the case of MCI v. State of Karnataka, 1998 (6) SCC 131, a Constitution Bench judgment in the case of Dr. Preeti Srivastava v. State of M.P., 1999 (7) SCC 120, a judgment passed by the Honble Delhi High Court in the case of Dr. Jaswinder Kaur Gambhir v. Union of India, WPC No.5692/2008 decided on 18.09.2012 and also the judgment passed by the jurisdictional High Court in the case of Dr. H.C. Mehta v. State of Haryana & Ors., decided on 24.03.2003. While concluding his arguments he submitted that there is no need to comply with the principles of natural justice in the facts and circumstances of this case. In this regard he placed reliance on the decision of the Honble Supreme Court in the case of T. Ramegowda v. R. Krishnamurthy and others, AIR 1994 SC 85, Punjab National Bank v. Manjeet Singh (Civil Appeal No.4330/2006) decided on 29.09.2006, P.D. Agarwal v. State Bank of India, (2006) 8 SCC 776) and Rajesh Namdeo v. Awadhesh Pratap Singh Vishwavidyalaya Rewa and others, AIR 1988 (MP) 138.
8. The private respondents have filed their separate reply, wherein they have defended the impugned orders and submitted that they were unaware of the fact that the appointment of applicants as HOD has not been approved by the MCI. They argued that rather they were deprived of their right for appointment as HOD of the department. They relied upon column 6 of the schedule note 2 the recruitment rule of 2003 for Department of anatomy and recruitment rules of 2002 for the department of Pharmacology which talk of only teacher with the recognized basic University Medical degree or equivalent qualification, can be designated as HOD. They submitted that as per 1998 regulations in absence of suitable teacher having medical degree, non-medico can be considered.
9. Shri Bains, learned counsel appearing on behalf of private respondents also argued on similar lines as argued by official respondents. Apart from that he submitted that the Chandigarh Administration had flouted the mandate of the Act and Regulations framed therein by designating non-medicos as Head of their respective departments. He further submitted that in terms of clause-2 to schedule-I of the 1998 Regulations they cannot be appointed as such. He also submitted that the action of the Chandigarh Administration in not appointing the private respondents as HOD on the ground that they are working as Associate Professors also shows arbitrariness on part of the Chandigarh Administration because in some of the departments in the same very Institutions the persons who are working as Associate Professors have been appointed as Head of the respective departments. To support his contentions that the applicants cannot be designated as HOD, he placed reliance upon a judgment passed by the Rajasthan High Court at Jaipur in SB Civil Writ Petitionno.6334/2012 Dr. (Mrs.) Keerti Mathur v. State and others decided on 30.05.2014 where a similar controversy, according to him, has been put to rest by holding that non-medicos cannot be appointed as HOD. Lastly he submitted that in this case though he has already argued that principles of natural justice cannot be applied once an order is bad in law and against the Statute, the fact remains that even if the applicants were granted an opportunity of hearing they could not either alter or improve what the rules and regulations provide i.e. they can not simply be designated as HOD as they do not possess a medical degree, a necessary pre requisite to be designated as HOD. Therefore, the opportunity of hearing becomes an empty formality.
10. We have given our serious consideration to the entire matter, and the judgments cited by the learned counsels for the respective parties with their able assistance.
11. The solitary contentions at the hands of the applicants that is borne out from the conjunctive perusal of the pleadings available on the record, is that the respondents have violated well established principles of natural justice. So, the key issue that emerges for adjudication is,
(i) Whether or not in the given facts of the present case, compliance of principles of natural will be merely an empty formality? In other words, is this a fit case to invoke the Useless formality theory?
12. Before answering the poser, we would like to trace the legal authorities on this issue. In early 60's and 70's, the Superior Courts had treated violation of the rules of natural justice as sufficient for invalidating administrative and quasi-judicial actions and orders without requiring the petitioner to plead and prove that his cause had been prejudiced on account of such violation. The theory of empty/useless formality was discarded on the premise that violation of the rules of natural justice is itself a prejudice. This trend has decisively changed in the recent years and, as of now, it is settled law that violation of the rules of natural justice is not sufficient to invalidate the quasi-judicial and administrative orders unless the applicant/petitioner pleads and prima facie shows that his cause has been prejudiced. We are citing few authoritative pronouncements on this issue.
13. In Keshav Mills Co Ltd. v. Union of India, (1973) 1 SCC 380, the Honble Apex Court extracted with approval the observations of Lord Reid in Ridge v. Baldwin, (1963) 2 W.L.R. 935 and said:
8. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re H.K. (an infant), (1967) 2 QB 617. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case (supra) as insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J., observed in Russell v. Duke of Norfolk, [1949] 1 All ER 109:
The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with and so forth.
14. In the case of M.C.Mehta v. Union of India 1996 SCC Page 60), the lordships of the Honble Apex Court in para no 12 framed the questions and after dealing the arguments have given their findings in Para 21 of the judgment. The relevant Para reads as under:-
12. On the above submissions, the following points arise for consideration:
(1) Whether this court, in exercise of powers under Article 32 (or the High Courts, generally, under Article 226), is bound to declare an order of Government passed in breach of principles of natural justice as void or whether the court can refuse to grant relief on the ground that the facts of the case do not justify exercise of discretion to interfere or because de facto prejudice has not been shown?
(2) Whether the court is not bound under Article 32 (or High Courts under Article 226) to quash an order of Government on ground of breach of natural justice of such an action will result in the restoration of an earlier order of Government which was also passed in breach of natural justice or which was otherwise illegal?
..........
18. We would next refer to another case, where, though there was no breach of principles of natural justice, this court held that interference was not necessary, if the result of interference would be the restoration of another order which was not legal. In Mohammad Swalleh and others v. Third Additional District Judge, Meerut, and another 1988 (1) SCC 40, which arose under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of section 43(2)(rr) of the Act. The District Court entertained an appeal by the landlord and allowed the landlord's appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. This was a correct plea. But the High Court refused to interfere. On further appeal by the tenant, this court accepted that though no appeal lay to the District Court, the refusal by the High Court to set aside the order of the District Judge was correct as that would have restored the order of the prescribed authority, which was illegal.
19. Learned senior counsel for Bharat Petroleum contended that once natural justice was violated, the court was bound to strike down the orders and there was no discretion to refuse relief and no other prejudice need be proved.
20. It is true that in Ridge v. Baldwin [1964] A.C. 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this court in several cases, but we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S. L. Kapoor v. Jagmohan 1980 (4) SCC 379. After stating (page 395) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification (page 395) as follows :
"As we said earlier, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs."
21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice.
14. In Graphite India ltd. And Another v. Durgapur Project Ltd. And others [1999) 7 SCC 645], it has been held that the principles of natural justice can be waived.
In 'Administrative Law', 8th Edn., by William Wade and Christopher Forsyth at page 491, it has been stated :
"...At the other end of the spectrum of power, public authorities themselves are now given the benefit of natural justice, as illustrated at the end of this section. Basically the principle is confined by no frontiers.
On the other hand it must be a flexible principle. The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that 'it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter'. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. 'In the application of the concept of fair play there must be real flexibility'. There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice."
15. In Divisional Manager, Plantation Division A and N Islands v. Munnu Barrick , the Supreme Court held that the principles of natural justice cannot be put in straight jacket formula and in a case involving violation of the rules of natural justice, the Court can insist upon proof of prejudice before setting aside the order impugned before it. The Supreme Court further held that the Court may invoke "useless formality theory" and decline to interfere with the order under challenge if the petitioner fails to prove prejudice.
16. We may finally refer to the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, where this Honble supreme Court with approval quoted the following observations of Sir Willam Wade (Administrative Law, 9th Edn. pp.468-471) it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth.
17. In Karnataka State road Transport Corporation v. S.G. Kotturappa Civil appeal 4868/1999 decided on 3.3.2005, the Honble Supreme Court held as under:
The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given.
18. In Punjab National Bank v. Manjeet singh (Civil appeal 4330/2006 ) decided on 29.9.2006, the Honble Supreme Court opined as under:
The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice.
19. In P.D. Agarwal v. State Bank of India 2006(8) SCC 776, the lordships of Honble Supreme Court held that the principles of natural justice cannot be put in a straight jacket formula and then observed:
Decision of this Court in S.L.Kapoor v. Jagmohan and Ors., whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice orthe same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala and Ors. v. S.K. Sharma and Rajendra Singh v. State of M.P. , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula.
20. The underlying theme of the above pronouncements is that the omnipresence and the omniscience (sic) of the principles of natural justice act as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rigid and inflexible rule or a strait-jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances.
21. To bring clarity in order to address the poser in para, we have to consider the relevant rule formations governing the condition of service. Section 33 of the Indian Medical Council Act, 1956 empowered the MCI to frame regulation with the prior sanction of Central Government. Accordingly, they framed Regulations, which is known as Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (for brevity 1998 Regulations). Regulation 3 deals with Minimum qualifications for appointment of teachers in medical college. It is not disputed by the learned counsel for the respective parties that in a number of cases it has been held by their Lordships of the Honble Supreme Court that 1998 Regulations framed under Section 33 of the Act have force of law and, therefore, the provisions are mandatory in nature and not directory. A Constitution Bench of the Honble Supreme Court in the case of Dr. Preeti Srivastava (supra) have already opined in para-37 that the MCI being a statutory authority has a right to direct a college to maintain minimum standard, which reads as under:
While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their post-graduate courses. We are not disinclined to cite other judgments as it will only add voliume to this order, perhaps unnecessarily. The controversy in this case revolves around clause-2 of schedule-I of the 1998 Regulations, which for reference, is quoted as under:
SCHEDULE I Every appointing authority before making an appointment to a teaching post in medical college or institution shall observe the following norms:
1. All Medical teachers must possess a basic University or equivalent qualification included in any one of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956). They must also be registered in a State Medical Register or Indian Medical Register.
The Clause 1A as under is included in terms of Notification published on 16.03.2005 in Gazette of India.
1A. The maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution for imparting Graduate and Post-Graduate medical education, shall be 65 years. The clause 1A was inserted after paragraph 1, vide notification dated 16.3.2005. The last words of the paragraph i.e. shall be 65 years.,shall be amended as under, in terms of notification dated 17.09.2010.
shall be 70 years.
2. In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non-medical teachers may be appointed to the extent of 30% of the total number of the posts in the department. A non-medical approved medical M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognized basic university medical degree qualification or equivalent qualification. However, in the department of Biochemistry, non-medical teachers may be appointed to the extent of 50% of the total number of posts in the department. In case of the paucity of teachers in non-clinical departments relaxation upto the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teacher in the particular non-clinical speciality is not available for the said appointment. However, such relaxation will be made only with the prior approval of the Medical Council of India. A non-medial person cannot be appointed as Director or Principal or Dean or Medical Superintendent. In the departments of Community Medicine and Pharmacology, Lecturers in Statistics and Pharmacological Chemistry shall possess M.Sc. qualification in that particular subject from a recognized University.
In the above clause the words The Heads of these departments must posses recognized basic university medical degree qualification or equivalent qualification shall be substituted with the following as amended in terms of Notification published on 24.07.2009 in Gazette of India .
Heads of the departments of pre and para clinical subjects must possess recognized basic University degree qualification i.e. MBBS or equivalent qualification.
In the above clause the words In the departments of Community Medicine and Pharmacology, Lecturers in Statistics and Pharmacology Chemistry shall possess M.Sc. qualification in that particular subject from a recognised University shall be substituted with the following as amended in terms of Notification published on 24.07.2009 in Gazette of India.
In the department of Community Medicine, Lecturers in Statistics shall possess M.Sc. qualification from a recognized University.
A plain reading of clause-2 makes it clear that it is permitted by the 1998 Regulations that in some of the departments like Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non-medical teachers may be appointed to the extent of 30% and in department of Bio-Chemistry 50% of the total number of posts in the department. They can be promoted to the post of Professor but for Head of these Departments must possess a recognized basic university medical degree qualifications or equivalent qualification. It is also clear that in the case of paucity of teachers in non-clinical department relaxation up to Head of Department may be given by the appointing authority to the non-medical persons if suitable medical teachers in the particular non-clinical facility are not available for the said appointment which is relaxable only with the prior approval of MCI. Therefore, suffice it to record that a non-medico cannot be appointed as HOD unless the rule is relaxed with the prior approval of the MCI as per 1998 regulations.
22. Coming then to the facts of this case in hand. We cannot persuade ourselves to agree with the arguments advanced on behalf of the applicants for the simple reason that concededly, the applicants neither having medical degree nor they have shown any documentation from the competent authority to the effect that their qualifications have been declared equal to the Medical degree, so that their case can come under exception clause. On the other hand there was an unequivocal assertion by the MCI during the arguments that for the above displines no equivalence exists or is prescribed in the statutes today.Suffice would it to record that as per clause 2 to schedule 1 of the 1998 regulations the applicants are not eligible to be designated as HOD of their respective department. In the wake of clear emergence of aforesaid factual scenario, we have no hesitation in our minds to hold that in the fact and circumstance of the present case notice/hearing prior to decision would have been a futile excercise. Because, remitting this case back to the UT Administration to pass fresh order will not change the outcome of the present case in the given circumstances, as narrated in the preceding paragraphs. Even otherwise we have already given the applicants the opportunity to place such documents that establish equivalence of their degree to the medical degree as stipulated in the regulation. The only grievance raised on behalf if the applicant is that had they been given an opportunity to explain their side of the case they could have convinced the authorities that their HoD order is not required to be withdrawn. Be that as it may, fact remains that we have given them an opportunity to stake their defence by placing documentation which may strengthen their case qua equivalency of the qualification possessed by them so as to make them eligible for the charge of HoD. The learned counsel for the applicant was unable to place on record any document which may indicate that the qualification possessed by them would make them eligible for holding the charge of HoD. Once they have failed to prove their eligibility, therefore, the plea that principle of natural justice was required to be followed, appears to be an exercise in futility as the same would not make any change in ultimate view taken by respondents. At the cost of repetition we may state that in the instant case following of principles of natural justice would be nothing more than useless formality theory. Accordingly the poser framed in para 11 is answered in negative holding that compliance of principles of natural will be merely an empty formality and would come within the ambit of Useless formality theory.
23. Though the applicants have also taken the ground of lack of jurisdiction against the authority that had passed the impugned orders, the fact that the first poser is decided against them, this ground also loses validity because irrespective of the competence of the authority issuing the impugned order, the applicant are simply ineligible to be designated as HODs. In view of this fact, this other ground of lack of jurisdiction does not merit consideration.
24. Before parting with the order, we cannot escape noticing from the records, written statements and replies and rejoinders that the additional 50 seats were allocated to GMCH two years ago i.e. from the academic session 2013-14 and has continued till now. In this period of last over two years, several visits and inspections of MCI officials have taken place and it is difficult to believe that this so called deficiency, which is the subject matter of this OA was not in their knowledge. The MCI has not been able to explain why this particular deficiency should now come in the way of fresh admission of these 50 additional seats this year, when despite this deficiency MCI had chosen to allow the GMCH to continue with these additional seats in last two years. A decision to discontinue the admissions to these 50 additional seats not only affects public interest in a serious manner but it also denies an opportunity to 50 young boys and girls to join a cherished academic career. In view of this extra ordinary situation, we also direct the MCI not to withdraw their permission to fill the additional 50 seats for the current year and give the UT Administration of Chandigarh a reasonable time to make good this deficiency. We must, however hasten to add that this direction would apply only in respect of this particular deficiency and in respect of no other.
25. We also deem it fair and just that the applicants be given the liberty to move a representation to the MCI either for relaxation of the eligibility condition for the post of HOD,or to declare their qualification as equivalent to a medical degree, or both; if they so wish. In case such a representation is made then, the MCI if it the competent authority or in case it is not, whoever is the competent authority constituted under the law/rules for grant of equivalency shall consider their representation objectively and pass reasoned and speaking order thereafter expeditiously.
26. No other point was raised and argued.
27. In view of the above discussion, the original application fails and is accordingly dismissed
28. No order as to cost.
(SANJEEV KAUSHIK) MEMBER (J) (UDAY KUMAR VARMA) MEMBER (A) Place: Chandigarh Dated: 21.04.2015 San. ??
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OA NO.060/00157/2015 (Prof. C.S.Gautam & Another vs. UOI & Ors.).
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