Central Administrative Tribunal - Delhi
Dr. A.K. Rai, Consultant And Hod/Ent, ... vs Union Of India (Uoi) Through The ... on 12 December, 2007
ORDER Meera Chhibber, Member (J)
1. By this OA, applicant has challenged order dated 10.9.2007 whereby respondent No. 4 has been asked to act as Head of Department (HOD) of ENT in supersession of previous orders. He has also sought that applicant should be allowed to continue as HOD of ENT Department.
2. The brief facts as stated by the applicant are that applicant and respondent No. 4 both belong to Non-Teaching Specialist Sub-Cadre of CHS. As per the seniority list issued on 1.1.2005 (page 13-23), applicant is shown at Sl. No. 77 while respondent No. 4 is shown at Sl. No. 78 in the said seniority list. The seniority list has never been challenged by respondent No. 4. Therefore, it is admitted fact that applicant was senior to him in the Non-Teaching Specialist Sub-Cadre of ENT. It is stated by the applicant that it was only on 12.9.2000 that applicant was posted at Sardarjung Hospital. Earlier since respondent No. 4 was senior most in Safdarjung Hospital in the ENT Department, he was made HOD w.e.f. 8.9.2000 but after applicant joined, since he was the senior most, case was processed to designate the applicant as HOD, which is evident from page 107. Accordingly on 14.9.2000, an order was issued in suppression of previous order dated 8.9.2000 and Dr. A.K. Rai, Sr. ENT Specialist was asked to function as HOD with immediate effect and till further order (page 24). From 14.9.2000, applicant was functioning as HOD, but to his utter surprise, another order was issued on 10.9.2007 without any justification, by which respondent No. 4 was asked to act as HOD of ENT Department till further orders with immediate effect (page 12). It is this order, which has been challenged by the applicant in the present OA.
3. It is stated by the counsel for applicant that since applicant is senior most in the Non-Teaching Specialist Sub-Cadre of ENT, there was absolutely no justification for removing him as HOD and asking his junior to officiate as HOD in ENT Department. Applicant had sought information under Right to Information Act from Dr. R.M.L. Hospital by putting a specific question as follows (page 98):
Who is the Designating authority in regard to head of departments.
Can a senior officer work under junior officer who has been designated as Head of Department. Please clarify rule position on the subject. List of HOD in different specialty in aforesaid Govt. Hospitals and their seniority position in the specialty in the particular hospitals. Under what circumstances a working head of department is removed.
4. Dr. R.M.L. Hospital informed vides letter-dated 25.10.2007 that the senior most functionary of the concerned Department is designated as HOD. They had also replied that normally the senior most person in the Department is designated as HOD and the practice of making a senior officer to work under junior officer has not yet been followed. Similarly, he relied on the reply received from Lady Hardinge Medical College who also stated that "as far as this Institution is concerned, only the senior most faculty is nominated as HOD" (page 102). They had also stated that all the HODs are the senior most faculty in their respective Department. He also referred to the letter written to the Safdarjung Hospital wherein he had specifically asked whether a senior officer could be compelled to work under junior officer and if yes, the relevant Govt. of India Rules may be provided under which this is possible (page 105). Reply given by Safdarjung Hospital was "NO" to Question No. 8 (page 106). He also invited our attention to page 107 to show that when applicant was made HOD, proper case was put up stating therein that he is senior most, therefore, he should be made HOD (page 107) whereas when respondent No. 4 was made HOD, it was done on the oral instructions of the Additional M.S. and the reasons given therein, was by rotation (page 110). Counsel for the applicant submitted that "by rotation" was also inserted subsequently and was not part of the original noting. According to him, this was done with some oblique motive. He also submitted that in other disciplines, namely, Radiology, Pediatrics and Anesthesia in the same Safdarjung Hospital, HOD are those persons, who are seniors as per the seniority list in their respective disciplines irrespective of the fact whether they were declared as Assistant Professor or Reader in the Teaching Medical College. For demonstrating this fact, he invited our attention to page 51 wherein Dr. R.N. Salhan and Dr. S.S. Uppal were designated as Professor in Pediatrics while Dr. M.S. Prasad was shown as Reader in Pediatrics yet Shri M.S. Prasad is the HOD in the Pediatric Department. In the Radiology Department Dr. S.B. Grover is Professor and Dr. B.B. Thukral who is only a Lecturer yet in Radiology Department also Dr. B.B. Thukral was declared as HOD. It is thus submitted that it is only in the ENT Department that a junior Doctor viz. respondent No. 4 has been made as HOD, simply on the ground that he has been designated as Professor in teaching side. He submitted that the grant of Hony. Teaching designation cannot affect inter se seniority of Specialists, therefore, there is no justification in designating the respondent No. 4 as HOD by withdrawing the same from the applicant. He also referred to OM dated 16.7.2007 (page 112) to show that in fact Safdarjung Hospital had itself taken a defence in one of the cases when Dr. Gogia was made HOD in Anesthesia Department as per length of his service whereas Dr. Vishnu Dutt was claiming that he should be made HOD on the basis of his being Professor in Anesthesia. Counsel for the applicant thus submitted that respondents couldn't be allowed to take contradictory stand by adopting the policy of pick and choose. He also submitted that as per respondents" own showing, respondent No. 4 was already working as Supervisor for the Under Graduates students in the year 2000 itself, when applicant had joined Safdarjung Hospital, yet knowing this fact fully well, respondents had themselves made applicant the HOD by superceding the earlier order, whereby respondent No. 4 was asked to act as HOD, therefore, it is not open to them to now take a somersault.
5. Counsel for the applicant also submitted that in the reply, respondents have stated that HOD is not a post nor a promotion and it is the discretion of the authority to appoint any one as HOD but none the less, even discretion has to be followed in a fair manner and while exercising discretion, the authorities are bound by reasons and justice. For this purpose, he relied on the judgment in the case of DTC Mazdoor (1991) Supp. 11 SCC 600 (Page 230, 235 & 716). He also relied on the judgment given by the Hon'ble Supreme Court in the case of UOI v. Kuldeep Singh ).
6. Counsel for the applicant next argued that it is a settled law that reasons have to be given at least in the file and if no reasons are given in the file, they cannot be supplemented by way of an affidavit by the respondents. For this purpose, he relied on the case of G. Bhuvneshwari 1991 (18) ATC 788 (Para 6) and the judgment in the case of M.S. Gill given by the Hon'ble Supreme Court. Counsel for the applicant strenuously argued that while deciding to give HOD to respondent No. 4, it was nowhere mentioned by the respondents in their file that it is being done because of his teaching designation given as Professor. On the contrary, the reasons as shown is by rotation, therefore, the stand taken by the respondents in the counter affidavit is an after thought and liable to be struck down.
7. Official respondents, on the other hand, have stated that there is no post known as HOD. It is only an internal arrangement made for the smooth functioning of the Department. It is submitted that there were some allegations and counter allegations made by both the doctors i.e. the applicant and the respondent No. 4 herein against each other. Therefore, an inquiry was conducted under the Chairmanship of Dr. N.K. Mohanty, Consultant and H.O.D. (Urology), who looked into the matter by calling all the faculty members and thereafter an Advisory Note was issued to both the doctors. It is explained by them that respondent No. 4 i.e. Dr. V.P. Venkatachalam, Consultant ENT was designated as Professor in ENT whereas, applicant herein was designated only as a Reader in ENT, Safdarjung Hospital and V.M.M.C. thereafter Dr. V.P. Venkatachalam cannot said to be junior to the applicant. They have further stated that respondent No. 4 i.e. Dr. V.P. Venkatachalam is also a recognized Supervisor of PG Students of Delhi University since April 1994. Therefore, by virtue of the designation and experience, respondent No. 4, being the Professor designated, automatically becomes the teaching head of both the Under Graduates and Post Graduates students. He is not junior to the applicant in teaching designation, as applicant is only Reader. Therefore, respondent No. 4 has rightly been designated as HOD with the approval of the competent authority.
8. They have also stated no disrespect has been shown to the applicant. There is no post of HOD, therefore, applicant cannot claim it, as a matter of right nor as it a condition of service, and therefore, applicant does not have any enforceable right. They have thus stated that there is no illegality in the orders passed by the respondents. Therefore, OA may be dismissed.
9. Respondent No. 4 who has now been asked to officiate as HOD has also filed his reply. He has stated that applicant has not come to the Court with clean hands, in as much as applicant has misled this Tribunal by taking the ground in Para 5.6 of the OA that the applicant so far has been the initiation officer for writing ACR of the respondent No. 4 whereas, this is absolutely wrong. Applicant was never initiating any ACR of respondent No. 4 nor respondent No. 4 can act as an initiating officer for ACR of the applicant. He has relied on the letter-dated 14.3.2007 for this purpose. Otherwise, he has adopted the contentions of official respondents. He has thus prayed that the OA may be dismissed.
10. We have heard all the counsel and perused the pleadings as well as records, which were directed to be produced by the respondents.
11. Perusal of the records show that when applicant had joined Safdarjung Hospital, a proper note sheet was put up (page 107) that since applicant is senior to Dr. V.P. Venkatachalam, therefore, he should be made the Head of Department. Accordingly, an order-dated 14.9.2000 (page 24) was issued (in suppression of earlier order dated 8.9.2000), whereby applicant (who was senior most ENT Specialist) was asked to function as Head of Department till further orders. Applicant had been continuing thereafter as HOD.
12. From the records it is also apparent that not only applicant and respondent No. 4 were quarrelling on non-issues but there were number of complaints against both the Doctors by other SR/RG Doctors. We need not go into all that. Suffice is to note that the matter was referred to Dr. N.K. Mohanty, Professor & Head of Department, Urology, who after discussion with all the P.Gs and SRs of ENT Department gave some solutions on the basis of it. It is relevant to note that Dr. Mohanty had also concluded that by virtue of his designation as Professor, ENT, Dr. Venkatachalam should prepare the teaching schedule for the undergraduates and postgraduates in ENT Department and get it approved by the Head of Department. This, according to us, would have been the best solution. It is relevant to note that on the basis of suggestions given by Dr. N.K. Mohnty, both applicants as well as respondent No. 4 were advised accordingly (page 47 and 49 respectively).
13. It is not disputed that applicant is indeed senior to respondent No. 4 as ENT Specialist Non-Teaching Sub Cadre as per the seniority list dated 10/18.1.2005 (page 13 at 23). Therefore, in normal course naturally, senior most person should be designated as HOD except when there are valid justifications, recorded at least in the file, as to why, it is necessary to make a junior person as HOD. We tried to find in vein because there is no such reasoning whatsoever in the files, as to why respondent No. 4 is made the HOD except the noting that as per verbal orders of Additional Medical Superintendent, Dr. V.P. Venkatachalam, is declared as HOD. The only word used is "by rotation". On page 110, one could understand if the incumbent was incompetent or there were so many complaints against him that he was not able to run the Department then such an action could have been taken but no such note is prepared. In fact, as we have noticed, complaints are in abundance against both the persons, so by no stretch of imagination, can it be said that respondent No. 4 would be a better HOD than the applicant on that account also. In fact, the suggestion of Dr. Mohanty, as mentioned above, should have been followed.
14. The reason given at page 110 "by rotation" is also not explained. Why such necessity arose, has not been explained nor is it the norm adopted by respondents in other disciplines. Applicant has demonstrated that in Safdarjung Hospital itself, in Radiology, Pediatrics and Anesthesia disciplines, the Doctors who are senior most as per the seniority list are made the HOD even though there are Professors also available in these disciplines in the Medical College, but they have not been made the HOD. Respondents have also not explained how was the word "by rotation" coined in and does it mean that after 6 months again applicant would be brought in or what would be the duration of rotation according to the respondents. It does not sound reasonable at all because no work started by the earlier incumbent would be completed by the other because he would like to start any given work in his own style especially in these circumstances, when they are fighting like small children on the smallest issue as is apparent from the record. It would definitely not be in the interest of department, therefore, the impugned order cannot be justified on this count also.
15. The only defense taken by respondents in the counter is that Dr. V.P. Venkatachalam, has been designated as Professor in ENT while applicant was only designated as Reader. Moreover, Dr. V.P. Venkatachalam, is a recognized supervisor of PG students of Delhi University since 1994, therefore, he had to be declared as teaching head of both the Under Graduates as well as Post Graduate students. However, as we have just noted above, this was not at all the reasoning given in the files while deciding to declare respondent No. 4 as HOD. Obviously respondents are now trying to put up a new defense but the same cannot be allowed. It has already been held by Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner that reasons should exist at least in the files. They cannot be supplemented in the counter affidavit and any order passed by the administration has to be tested on the basis of reasons given therein. In the present case, we have seen no such reason was recorded in the files and respondents are trying to give the present reasoning as an after thought, therefore, this cannot be accepted. Even otherwise, if this defense is tested on merits, it is found that admittedly both the Doctors belong to Non Teaching Specialist sub cadre of ENT. Simply because they have opted to teach in the Medical College, their inter se seniority cannot be altered. It may be a different thing to make respondent No. 4 as in-charge in the medical college for the purpose of preparing the teaching schedule that too subject to approval by Head of Department, as suggested by Dr. Mohanty, because of his experience, but there is no justification to make him HOD of the ENT Department in the hospital.
16. Let us examine it from a different angle. Respondents" case is that respondent No. 4 has been designated as Professor by Guru Govind Singh Indraprastha University, but neither applicant belongs to that University nor he is an employee of the said University, therefore, any honorary designation given by the said University, cannot partake the status of Doctors in their own cadres, to which they belong. Undisputedly both belong to Non Teaching Specialist sub cadre of ENT. Supposing, respondent No. 4 is transferred from Safdarjung Hospital to Dr. RML Hospital today, will he still be allowed to carry the designation of Professor and make use of it. Answer is "no" because that is not where he belongs to. His seniority has to be seen in the cadre to which be belongs and in the cadre of Non-Teaching specialty of ENT, definitely he is junior to the applicant, therefore, we are satisfied, the impugned order is passed in an arbitrary manner, therefore, the same is not sustainable in law.
17. Counsel for the respondents next contended that it is the discretion of Medical Superintendent to designate anyone as HOD and no one can claim to be the HOD as a matter of right. It is right that there is no such post as HOD and HOD is designated to have smooth functioning of the department but discretion also has to be exercised in a just and fair manner. Discretion does not mean one can act as per whims and fancies and adopt pick and choose policy. If it were allowed, it would give arbitrary powers to the Medical Superintendent. Arbitrariness is the antithesis for fair play. At this juncture, it would be relevant to quote from the judgment of Hon'ble Supreme Court in the case of Union of India v. Kuldeep Singh . In this judgment discretion has been dealt with very beautifully and it has been explained that even discretion has to be used in a just and fair manner. "The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humor. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself." In this backdrop, let us examine the act of respondents. Can it be said that the decision is based on any rationale or logic or any justified reason. We find none, therefore, in other words discretion has been exercised in an arbitrary manner, which cannot be countenanced in law.
18. It goes without saying that if juniors were made HOD without any justification, it would cause unnecessary heart burning to the senior/seniors and would further vitiate the atmosphere. Probably that is why, in all other hospitals also, the practice being followed is that the senior most person from the discipline is made HOD unless of course there are valid reasons to be expressed in writing as to why junior should be made the HOD.
19. Counsel for Private respondent adopted the arguments of official respondents. Apart from it, he also submitted that applicant has not come to the court with clean hands inasmuch as he has stated, earlier applicant was initiating respondent's ACRs whereas now respondent No. 4 would be initiating his CR. This is absolutely wrong, therefore, OA should be dismissed on this ground alone.
20. It is correct that applicant has stated so in Para 5.6 without substantiating the same and it may not be the correct position because a person in the same grade cannot initiate another's ACR but applicant did not press this point at all at the time of argument therefore, he cannot be ousted on this ground. Though we hasten to add here that applicant should have been cautious in making the averments. No other point was raised by the respondents.
21. In view of the above discussion, order dated 10.9.2007 is found to be arbitrary and not sustainable in law. The same is accordingly quashed and set aside. OA is accordingly allowed. No order as to costs.