Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 8 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(I)OA. 369/CH/2011
(Reserved on 8.10.2012)
Chandigarh, this the day of October, 2012
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR.RANBIR SINGH , MEMBER(A)
Dr. Alka Sehgal W/o Dr. Rakesh Sehgal, posted as Associate Professor,Department of Obstetrics and Gynecology, Govt. Medical College, Sector 32, Chandigarh and R/o House No. 175, Sector 16, Chandigarh.
APPLICANT
BY ADVOCATE: SHRI ASHOK PAUL JAGGA
VERSUS
1. Union of India, Ministry of Human Resource Development through its Secretary, Ministry of Health and Family Welfare, New Delhi.
2. Chandigarh Administration, Departmentof Medical Education and Research, Mini Secretariat, Sector 9, Chandigarh through its Secretary.
3. Govt. Medical College & Hospital, Sector 32, Chandigarh through its Director.
4. Dr. Raj Bahadur, Director, Govt. Medical College & Hospital, Sector 32, Chandigarh.
5. Dr. Gurjit Kaur, W/o S. Jaswinder Pal Singh, Associate Professor, Department of Physiology, Consultant Incharge, Genetic Centre, Government Medical College and Hospital, Sector 32, Chandigarh.
RESPONDENTS
BY ADVOCATE: SH. AMAN CHAUDHARY FOR RESPDTS.1-3.
MS. REETA KOHLI FOR RESPDT. NO.5.
(II) OA.1051/CH/2010
Dr. Poonam Goel wife of Dr. Dheeraj Gupta age 47 years, Reader, Department of Obstetrics and Gynaecology, Government Medical College and Hospital, Sector 32, Chandigarh.
.APPLICANT
BY ADVOCATE: SHRI PUNEET GUPTA
Versus
1. Union of India, Ministry of Home Affairs, North Block, New Delhi through its Secretary.
2. Union Public Service Commission, Dholpur house, Shah Jahan Road, New Delhi 110 069 through it Secretary.
3. Chandigarh Administration through the Secretary, Medical Education and Research, Deluxe Building, Sector 9, Chandigarh.
4. The Home Secretary, Chandigarh Administration, Deluxe Building, Sector 9, Chandigarh.
5. The Government Medical College and Hospital, Sector 32, Chandigarh through its Director.
6. Dr. Alka Sehgal, wife of Shri Rakesh Sehgal, Reader, Department of Obstetrics and Gynaecology, Government Medical College and Hospital, Sector 32,Chandigarh.
RESPONDENTS
BY ADVOCATE: SH. DEEPAK AGNIHOTRI FOR RESPDT.NO.1.
SH. B.B. SHARMA FOR RESPDT.NO.2.
SH. ARVIND MOUDGIL FOR RESPDTS.NO.3-5.
SH. ALOK JAGGA FOR RESPDT.NO.6.
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
1. The simultaneous disposal of these OAs is authorized by the fact that the applicant in OA. 369/CH/2011 has a grievance that the recommendation by the UPSC in her favour for an appointment to head Obstetrics and Gynaecology Dispensation at GMCH notwithstanding, there is a cognizable refrain on the part of the respondents in issuing an order on the basis thereof; while the applicant in OA. 1051/CH/2010 has applied for the invalidation of the recommendation made by the UPSC in favour of the applicant in the former OA.
2. The applicants in these two OAs had offered their candidature for consideration for appointment to the post of Professor (Obstetrics and Gynaecology); the applications wherefor had been invited, vide Annexure A-2 dated December, 2009 (in OA. 1051/CH/2010).
3. The applicant in OA. 369/CH/2011, has a grievance that denial of issuance of promotion orders in her favour is for the reason that respondent No. 4 who is the overall head and Director of GMCH, Sector 32, Chandigarh is already facing an enquiry on the complaint filed by the applicant and that it is he who has been instrumental in withholding the promotion without any basis whatsoever. It was averred that the withholding of appointment orders is thouroughly inappropriate in view of the fact that the vigilance and integrity clearance in her favour, has been granted by the Home Secretary-cum-Chief Vigilance Officer, Chandigarh Administration and Director, Medical Education & Research, Chandigarh Administration respectively (These Certifications appear at running page 103 & 104 of the file).
4. The learned counsel appearing on behalf of Dr. Alka Sehgal would rely upon the view obtained by this Tribunal in OA. 12/CH/2012 titled A.K. Tandon Vs. UOI & OA. 720/JK/2011 titled C.K. More Vs. UOI, to canvass that the surfacing of the complaints during the post-consideration period, cannot validate denial of the indicated appointment to her. The learned counsel further argued that the view obtained by this Tribunal in C.K. Mores case (supra), had been affirmed in Judicial Review Jurisdiction (CWP. 6724/2012) by the High Court, vide order dated 29.5.2012.
5. The claim raised by the applicant (Dr. Alka Sehgal) was contested on behalf of the respondents No. 1-3 who averred that the issuance of appointment orders had been withheld on account of the pendency of certain complaint against Dr. Alka Sehgal. In the context of that averment, it was averred that the pendency aforementioned had been indicated in the communication itself vide which the application filed by Dr. Sehgal had been forwarded to the UPSC (While sending the proposal to UPSC through Chandigarh Administration, the attention of the authorities had also been invited towards the pending complaints against the applicant)It was also averred that the UPSC had, vide letter dated 6.11.2009 (Annexure A-6 in OA. 1051/CH/2010), recommended disciplinary action against Dr. Sehgal. Reliance, in support thereof, was placed upon Annexure A-6 (supra), paras 5 to 7 whereof are extracted hereunder.
5. Further, Dr. Alka Sehgal specifically stated in her letter dated 3.6.2009 that the complaint was also telephonically conveyed to an official as Under Secretary, in UPSC. Dr. Sehgal went on to allege that certain officials of UPSC have worked in collusion with the officer mentioned above to ignore a genuine complaint and helped him to get promoted due to reasons best known to them. Dr. Sehgal further adds that no cognizance of the complaint was taken by the UPSC and then this was done on purpose to help the above mentioned officer promoted inspite of the complaint.
6. Above allegation against UPSC is baseless, motivated and frivolous.
7. The Commission have taken a serious view of the misconduct on her part and desired that Chandigarh Administration should bring the same to the notice of the disciplinary authority for taking suitable action against her. Action taken in the matter may kindly be intimated to the office. (In that context, it was averred that a show cause notice dated 24.8.2011 has been issued to the applicant but till date no reply to the said show cause notice has been received from the applicant.)
6. In the context, it was further averred that one complaint has been received in the Chandigarh Administration through CBI and Central Vigilance Commission. These allegations have been inquired into by the Chief Vigilance Officer, UT, Chandigarh by having a vigilance inquiry conducted in the matter.
7. In continuity of that averment, the counter filed by the respondents No. 1 to 3 proceeds to aver that further one more complaint has been received against the applicant for filing of an affidavit by her in support of a private clinic which is also being looked into.
8. No counter came to be filed on behalf of respondent No. 4.
9. In the course of the replication, the applicant did not controvert that the recommendation made by the UPSC against her (vide letter dated 6.11.2009) had been indicated in the communication vide which her application for appointment to the post under reference had been forwarded. The applicant, however, proceeded to indicate the circumstances under which that recommendation by the UPSC (in the course of letter dated 6.11.2009) had come about. She challenged the appropriateness of the recommendation as it had not been preceded by any preliminary enquiry. The further averment in the context is that the recommendation for her appointment having come about in spite thereof would indicate that the fact and import of that communication was not found to be adequate enough to impede the grant of a recommendation for appointment in her favour by the UPSC. By relying upon the administrative instructions (Annexure A-9), the applicant averred that the issuance of an appointment order in pursuance of the UPSC recommendation, cannot be validly withheld as no charge sheet in the context of the communication dated 6.11.2009, had been issued till date. That a copy of the communication dated 6.11.2009 was never forwarded to her is the further plea raised by the applicant.
10. Qua the pendency of the complaint about the filing of an affidavit, it was averred that the complaints had been manufactured only to stall the promotion and that the purported complainant had even denied having made it.
11. It may be noticed, at this stage, that MA. 481/12 was filed by Dr. Gurjit Kaur (Associate Professor, Department of Physiology Consultant Incharge, Genetic Centre, GMCH-32) for her impleadment as a party-respondent. That plea of hers came to be allowed by a learned Coordinate Bench of this Tribunal, vide order dated 6.8.2012. In the course of the MA, Dr. Gurjeet Kaur made certain averments qua the conduct of Dr. Alka Sehgal. Dr. Gurjeet Kaur further claimed to have filed a defamation complaint against Dr. Alka Sehgal wherein the latter stands summoned to stand trial as an accused. It was also averred that Dr. Sehgal had further furnished a false notarised affidavit dated 5.8.2008 before the District Consumer Forum, Hoshiarpur in a Consumer Case Smt. Sheela Versus Gulati Surgical Hospital, about which even the Administration is unaware as is evident from a perusal of the reply filed by the Additional Director of the College in the captioned OA. In the course of the OA .1051/CH/2010, Dr. Poonam Goel made a grievance that Dr. Alka Sehgal (Respondent No. 6 therein) did not possess the rule-related eligibility for appointment as Professor(Obstetrics and Gynaecology) in view of the fact that she did not have the required four-year experience as a Reader at the time the consideration in her favour at the hands of the UPSC came about. Dr. Poonam Goel staked her own claim for the appointment aforementioned.
12. The UPSC (respondent No. 2 in OA. 1051/CH/10) reiterated the validity of its recommendation by relying upon UPSC Versus H.L. Dev & Others, (AIR 1998 SC 1069), Dalpat Abasaheb Solanke Vs. B.S. Mahajan, (AIR 1990 SC 484) and Nutan Arvind Vs. UOI & Another, (1996(2) SCC, 488). It also relied upon the view obtained by the Honble Apex Judicial Dispensation in Anil Katiyar Vs. UOI & Others (1997(1) SLR, 153) to indicate the limited contours of the Judicial Review Jurisdiction of a Court/Tribunal in the matters of such like selections at the hands of a DPC.
13. Dr. Poonam Goel, the applicant in OA. 1051/CH/10, raised a pure and simple challenge (to the appointment of respondent No. 6 herein applicant in OA. 369/CH/2011) on an averment that the latter was not qualified for consideration as she did not have the required expertise.
14. The OA filed by Dr. Poonam Goel was contested by the respondents other than Respondent No.1. In so far as the respondent No. 1 is concerned, no counter on its behalf came to be filed as its impleadment is formal in character. This fact stands noticed in the course of the order dated 14.2.2011 of a learned Coordinate Bench of this Tribunal.
15. Respondent No. 2 therein(UPSC) reiterated the appropriateness of the recommendation made by it in favour of respondent No. 6 herein. The further averment made in the course of the counter is that it is the exclusive prerogative of the DPC/Selection Committee to judge the suitability/fitness or otherwise of that candidate to a particular post and a court/tribunal is not expected to function as an Appellate Authority or as an umpire in the context of the consideration by the Selection Committee. In the course of the counter itself, reliance was placed upon Nutan Arvind Vs. UOI & Another {1996(2) Supreme Court Cases, 488}, UPSC Vs. H.L. Dev & Others (AIR 1988 SC 1069), Dalpat Abasaheb Solanke Vs. B.S. Mahajan (AIR 1990 SC 484) and Anil Katiyar Vs. UOI & Others {1997(1) SLR 153}.
16. Respondents No. 3-5 contested the very locus of the applicant herein to challenge the outcome of the selection process in view of the fact that she had herself participated at that selection process, but could not make the grade. It was further asserted that the applicant and respondent No. 6 herein, were both otherwise, eligible to be considered for promotion to the relevant post. The maintainability of the OA itself was challenged, for want of a contest through the validity of the recruitment rules in the relevant behalf.
17. Respondent no. 6 too, asserted the correctness of the recommendation (for appointment) in her favour on the very premise indicated in the course of OA. 369/CH/2011.
18. The learned counsel appearing on behalf of the respondents, contested the validity of the plea raised on behalf of the applicant by arguing that those complaints had not surfaced during the period subsequent to the consideration by the UPSC and that the pendency of the complaints had been indicated in the Communication vide which the application filed by the applicant had been forwarded. The learned counsel appearing on behalf of Dr. Gurjeet Kaur(whose impleament, as a party-respondent, had been ordered by a learned coordinate Bench of this Tribunal vide order dated 6.8.2012) argued that the applicant in that OA is not worthy of consideration to head any facet of the Medical Dispensation in view of the proven tendency on her part to create fissures in the intra-dispensation circle.
19. The learned counsel, appearing on behalf of the official respondents reiterated the averment, in the course of their counter, about the justification of withholding the issuance of an appointment order in favour of the applicant, during the pendency of the indicated complaints against Dr. Alka Sehgal.
20. A fairly unenviable factual scenario is evident from a perusal of the pleadings raised by the parties in these two OAs and the documentation enclosed by them in support of the respective stances averred by them.
21. Inexplicably though, the Administrative Wing of the UT Health Dispensation, Chandigarh, is proved to have exhibited an indefensible attitude by having issued a Certification qua the vigilance and integrity clearance in favour of the applicant (Dr. Alka Sehgal) which (clearance) included a Certification as well that no complaint is pending against her. That certification was, obviously, factually inaccurate (regarding the certification qua the non-pendency of a complaint) in view of the fact that the communication, vide which the application filed by Dr. Alka Sehgal had been forwarded to the UPSC, noticed the pendency of certain complaints against her. The recommendation made by the UPSC for initiation of disciplinary proceedings against the applicant, stands extracted in para 4 of this order. There could be no better exemplication of the proverbial age-old adage of the left hand not knowing what the right hand is doing. She has a grievance that the retention of the issuance of the appointment letter in abeyance is motivated and actuated by certain complaints which had surfaced only with a view to impede the grant of promotion to her. The plea raised thereby is that the averred complaints, not having culminated in any disciplinary action by the time the recommendation in her favour came about, the denial of recommended appointment to her is inappropriate and not in accord with law.
22. By the very nature of things, a finding qua malafides has to be preceded by the adducing of conclusive material in support thereof. We must announce, in the context, that our attention during the course of hearing had not been invited towards any material which could prove the charge of malafides against respondent No. 4. There certainly appear to be creases in the working relationship of Dr. Alka Sehgal with Respondent No. 4 as also certain other colleagues in the Hospital Administration, but the mere averment in the relevant behalf would not validate the recording of a finding of allegation of malafides.
23. We would categorically announce that the applicant has not been able to prove any malafides, vis a vis her, on the part of the respondent No. 4. The allegations, in the absence of any material in support thereof, would appear to be baseless in hue, particularly when the orders in the relevant behalf have to be issued by the Chandigarh Administration and not by Respondent No. 4. The mere apprehension in her mind that it is he only who is thwarting the issuance of the appointment letter in her favour, would appear to be too far fetched.
24. We would also like to announce that though the Health Dispensation (on the administrative side of UT Administration) has been proved to have acted in a lackadaisical manner, there is no proof adequate enough to validate the charge that the delay is motivated.
25. During the course of the hearing, it was argued by the learned counsel for the respondents that it would not be in the interests of administrative efficiency to issue appointment order in pursuance of the UPSC recommendation, till the consideration in the complaint pending against the applicant concludes. For a person facing such accusations to be allowed to head a medical Dispensation, it was argued in continuity, would not be in the interest of discipline.
26. While the resistance offered on behalf of the official respondents may not be held to be misconceived or inappropriate, we also cannot conceptualize an Administration acting at a cognizably slow pace in such matters which involve the appointment of an individual to the post of Head of the relevant Medical Dispensation which (appointment) gets stalled, may be due to the pendency of certain complaints against her for a considerable period.
27. The recommendation by a recommendatory dispensation of whatever level has a statutory ambience. Though it would not be appropriate to hold that a recommendation by the relevant category would be binding upon the Authority under all eventualities, the latter ought to indicate reasons, or at least a semblance thereof, for the non-acceptance thereof. It would be particularly so when the recommending authority is none else or other than the UPSC which is a Constitutional dispensation itself.
28. In the present case, the respondents have indeed indicated certain reasons which presently impede the acceptance/implementation of the UPSC recommendation. If the ultimate outcome of the pending consideration at the hands of the Appointing Authority is favourable to the applicant (in OA. 369/CH/2011), she would have no grievance. If it is otherwise, the factors impelling the view to her detriment have to be indicated to her in order to enable her to raise a challenge thereto.
29. While, thus, noticing that there has indeed been cognizable delay on the part of the health dispensation of the UT Administration, we would also say that the retention of the issuance of appointment orders in favour of the applicant (Dr. Alka Sehgal) in abeyance cannot be held to be altogether unjustified. We would, at the same time, announce that it will be incumbent on the part of the competent authority to take a call in the matter of the complaints etc. against her and, then, conclude a view in the context within a period of three months from the date a copy of this order is delivered in its office. In case, no decision comes to be made within the time frame, the competent authority must proceed to forthwith take a conscious decision in the matter of the recommendation made by the UPSC. We would, however, like to make it clear that the consideration in the relevant behalf shall not impeded by the fact of pendency of the indicated complaints which are not disposed of within the indicated time-frame.
30. The reliance placed by the learned counsel for the applicant (in OA. 369/CH/2011) upon A.K. Tandon and C.K. More (supra) would appear to be misconceived. In the present case, the UPSC recommendation (for initiation of disciplinary proceedings against her) had not surfaced during the post-UPSC consideration period. The pendency thereof is proved to have been noticed in the course of the communication vide which the application of the applicant (for appointment) had been forwarded to the UPSC. Though a consideration in the relevant behalf has to necessarily come about on merits thereof, it may not be appropriate to suggest that it (recommendation for disciplinary action) can be put under the wraps just like that. The applicant had sought certain documentation in order to be able to respond to a show cause notice which came to be issued in pursuance thereof. Without going into the merits or otherwise of the grievance about whether that documentation had been supplied by the Chandigarh Administration or not, we may indicate that the applied-for documentation was made available to the applicant during the proceedings before the Tribunal.
31. We must announce on point of fact that Dr. Gurjit Kaur whose impleadment as a party respondent came to be ordered by a learned coordinate Bench of this Tribunal vide order dated 6.8.2012, does not have a locus standi to what she did in this case. She is not a candidate at the relevant selection process. The law does not recognise the locus standi of a non-candidate to challenge the eligibility credentials of a candidate who made the grade.
32. The conceded eligibility of Dr. Poonam Goel for consideration for the relevant post notwithstanding, the claim raised by her deserves outright invalidation in respectful accord with the law announced by the Honble Apex Judicial Dispensation in 2007(4) SCT 487 (Trivedi Himanshu Ghanshyambhai Vs. Ahmedabad Municipal Corporation and Ors.) to the effect that it is incompetent on the part of an unsuccessful candidates to challenge the appointment of a selected candidate. Our attention was not invited to any law to the contrary, during the course of hearing.
33. In the light of discussion in the course of the preceding paras of this order, the OA (No. 369/CH/2011) filed by Dr. Alka Sehgal shall stand disposed of in terms of the directions indicated in para 27 of this order. The OA (No. 1051/CH/2010) filed by Dr. Poonam Goel shall stand dismissed.
34. The parties shall bear their own costs of the cause in the facts and circumstances of the case.
35. Disposed of accordingly.
(JUSTICE S.D.ANAND) MEMBER(J) (RANBIR SINGH) MEMBER(A) Dated: October 19th, 2012 ND* 1 OA. 369/CH/2011