Central Administrative Tribunal - Chandigarh
Dr Surinder Kumar Singhal vs Govt. Medical College, Chandigarh on 11 February, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No. 60/810/2023
Reserved on: 28.11.2024
Pronounced on: 11.02.2025
HON'BLE MR. RAMESH SINGH THAKUR, MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA, MEMBER (A)
Dr. Surinder Kumar Singhal, aged about 59 years, Son of late Sh.
Gainda Ram, resident of House No.3108, GMCH Residential Campus,
Sector 48-D, Chandigarh - 160048, Group - A Post.
...Applicant
(BY ADVOCATE: Mr. Adityajit Singh Chadha)
VERSUS
1. Union Territory, Chandigarh, Department of Medical Education &
Research, U. T. Secretariat, Sector - 9, Chandigarh - 160009,
through its Secretary.
2. Government Medical College and Hospital, Chandi Path, Sector 32-B,
Chandigarh - 160047 through its Director Principal.
3. Union Public Service Commission, Dholpur House, Shahjahan Road,
New Delhi - 110069 through its Secretary.
4. Dr. Roshan Verma, Professor, Department of E.N.T., 3rd Floor, B-
Block, Government Medical College Hospital, Chandigarh - 160030.
...Respondents
(BY ADVOCATE: Mr. K. K. Thakur for R1-2, Mr. B. B. Sharma for R-3
and Mr. S. S. Pathania (Through V.C) for R-4)
O R D E R(Oral)
Per: RAMESH SINGH THAKUR, MEMBER (J):
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking quashing of letter dated 14.08.2023 (Annexure A-16) whereby administrative approval dated 12.07.2023 endorsed by order dated 14.07.2023 (Annexure A-13) repatriating the respondent No.4 to his parent department has been withdrawn. The applicant is seeking the following relief:
"(i) It is prayed that order dated 14.08.2023 (Annexure A-16) whereby Administrative order dated 12.07.2023 endorsed vide order dated 14.07.2023 repatriating the respondent No.4 to his parent department has been withdrawn may kindly be set aside.
(ii) Cost of the original application be awarded in favour of the applicant;"2
2. The brief facts of the case as submitted by the applicant are that the applicant possesses an experience of about 33 years in ENT Speciality, which includes a teaching experience of about 31 years. The petitioner is as of today the senior-most regular Associate Professor working in the Department of ENT in the respondent-hospital
3. He submits that in pursuance to an advertisement issued in the year 1999 by the respondent-Hospital, the applicant was appointed on the post of Senior Lecturer (now Assistant Professor) on contractual basis. The respondent No.3 had issued an advertisement in the year 2000 whereby regular posts of Assistant Professors were advertised. The applicant had also participated in the selection process initiated by respondent No.3 in pursuance to the said advertisement and he was appointed against the regular post of Assistant Professor vide Annexure A-2.
4. It is submitted that the next promotional avenues from the post of Assistant Professor is to the post of Associate Professor and then that of Professor and respondent No.1 follows a composite method of recruitment while issuing advertisements advertising vacancies in the respondent-Hospital. The Government of India vide office memorandum dated 19.06.1986 has defined 'composite method of recruitment' which is produced as under:
"Composite Method of Recruitment 3.11.7 In cases where the method of promotion is by 'selection' and the field of promotion or feeder grade consists of only one post, the method of recruitment by "deputation (including short-term contract)/promotion" is prescribed so that the departmental officer is considered along with outsiders. If the departmental candidate is selected for appointment to the post; it is to be treated as having been filled by promotion; otherwise, the post is to be filled by deputation/short-term contract for the prescribed 3 period of deputation/short-term contract at the end of which the departmental officer will again be afforded an opportunity to be considered for appointment to the post."
5. The applicant vide order dated 25.05.2007 was designated as reader (Associate professor) w.e.f 01.11.2006 under the career advancement re-designation in higher cadre scheme.
6. The applicant further submits that the Respondent No.1 in the year 2019 had advertised a regular post of Associate Professor (Annexure A-
3) wherein it is submitted that the Commission was going to follow the aforesaid composite method of recruitment while shortlisting candidates against the aforesaid advertised post. The applicant had applied against the aforesaid post and was appointed against the regular post of Associate Professor vide order dated 29.10.2020 (Annexure A-3/A).
7. It is submitted that the respondent No.1 had issued a Time Bound Designation (Upgradation) Scheme in order to compensate the employees, who could not be promoted due to non-availability of vacant promoted post. The respondent Administration vide order dated 09.11.2020 (Annexure A-4) retrospectively designated the applicant under the said Scheme as Associate Professor on 01.11.2006 as well as Professor on 01.11.2010. The condition No.5 is as under:
"5. The designation of the next higher post under TBDS will be considered for further promotion/appointment but not confer any right for seniority etc."
8. He further submits that the respondent-Commission had vide advertisement dated 06.12.2019 (Annexure A-5) advertised one vacant post of Professor (ENT). The applicant applied for the said post.
9. The service of the applicant is governed by the Government Medical College and Hospital, Chandigarh, Senior Lecturers (ENT), Reader (ENT) and Professors (ENT) Rules, 2003. It is submitted that the nomenclature 4 of the post of Senior Lecturer has been changed to Assistant Professor and that of Reader has been changed to Associate Professor.
10. The applicant vide representation dated 12.03.2022 addressed to the respondent No.3-Commission requested the respondent- Commission to also consider his case for appointment against the post of Professor (ENT) and further call him for the interview process, in view of the fact that he fulfilled all the basic/essential qualifications laid down in the advertisement. The applicant had also sent a representation dated 02.04.2022 to the respondent-Hospital.
11. It is submitted that the respondent No.3 i.e. UPSC had vide letter/recommendation dated 28.02.2022 recommended the name of the respondent No.4 for appointment against the post of Professor (ENT) being the only suitable candidate. The respondent No.1 vide order dated 27.04.2022 (Annexure A-10) had appointed the respondent No.4 i.e. Dr. Roshan Kumar Verma as Professor ENT on deputation for a period of three years in the Department of ENT. It is submitted that though respondent No.4 should have been considered for appointment on short-term contract basis as recommended by the commission, he has been appointed on deputation.
12. The applicant submits that he had earlier approached this Tribunal by way of OA No.494 of 2022 seeking a direction to the respondent authorities to consider his case for promotion as regular Professor. But he withdraw the same since his request was under active consideration, with liberty to raise his claim at a later stage.
13. He further submits that though he was eligible to seek appointment to the post of Professor by way of promotion, his case was not being considered for promotion since he had not completed 2 years of regular 5 service as a regular Associate professor. He was promoted as an Associate professor w.e.f the year 2006 under the TBDS scheme and as a regular associate professor in the year 2020 and thus he has completed 2 years of regular service on the said post as desired by the Respondents and on completion of 2 years and during the pendency of OA no. 494 of 2022 had made a representation to the competent authority seeking consideration of his case for promotion to the post of Professor.
14. In pursuance to the representation submitted by the petitioner, the respondent No.1 vide order dated 12.07.2023 has directed that the respondent No.4 be repatriated to his parent cadre i.e. PGIMER, Chandigarh considering the fact that a departmental candidate i.e. the applicant herein has become eligible for promotion to the post of Professor ENT. Vide the said order, three months time was granted to the respondent No.4 as per existing rules and regulations.
15. It is submitted that after issuance of the letter directing the repatriation of respondent No.4, an advertisement dated 18.07.2023 (Annexure A-
15) was issued by respondent No.1 whereby one post of Professor in the ENT department was advertised. The respondent No.1 has vide order dated 14.08.2023 while withdrawing the order dated 12.07.2023 endorsed vide order dated 14.07.2023 has directed the respondent hospital to not to take any consequential action in pursuance to the order dated 12.07.2023 since the same has been withdrawn.
16. It is alleged by the applicant that the respondent No.4 had been appointed as Professor ENT on deputation for a period of three years, however, the UPSC while recommending the appointment of the said respondent had recommended that he be appointed on short term 6 contract basis. It is submitted that as per Rules and Regulations issued by the Chandigarh Administration as well as the Department of Personnel and Training initially if an appointment is made on deputation, it shall be for a period of one year, however, in the present case, the respondent No.4 has been appointed for a period of three years.
17. The respondents filed reply wherein it is stated that the applicant was appointed as Senior Lecturer in the Department of ENT on contract basis with the respondents till the regular incumbent joins through UPSC, New Delhi vide order dated 22.03.1999 and he joined as such on 23.03.1999
18. It is submitted that the Recruitment Rules for the post of Assistant Professor, Associate Professor and Professor have been notified vide GSR No. 129 dated 04.03.2003:
"PROFESSOR: as per the method prescribed in the Recruitment Rule for the post of Professor/ENT is promotion/Deputation (including short term contract) failing which by direct recruitment.
ASSOCIATE PROFESSOR: Promotion/Deputation (including short term contract) failing which by direct recruitment. ASSISTANT PROFESSOR: Direct recruitment."
19. It is submitted that the Chandigarh Administration notified the Career Advancement (re- designation in higher cadre scheme) to the regular faculty of GMCH-32 vide gazette notification dated 01.03.2007 on the following terms and conditions:-
"a. A Senior Lecturer will be re-designated as Reader once after putting in regular service when he/she starts drawing the basic pay of the post of Reader. Similarly a Reader will be re-designated as Professor once after putting in regular service when he/she starts drawing the basic pay of the post of Professor. The re-designation shall be given from the date when a faculty member becomes eligible for the higher post in case such a date is later than the date when he starts drawing the basic pay of the higher post.7
b. The re-designation is further subject to the condition that it will be allowed to only those faculty members, who fulfil all the requirements prescribed in the recruitment rules. c. The re-designation in the higher cadre made under this scheme will be on 'in-situe basis and therefore, the work allocation of teaching and clinical/Para clinical workload will remain the same after re-designation in the higher cadre. d. The re-designation under the above scheme will be made irrespective of the vacancies in the higher cadre and the incumbent will keep on drawing the same emoluments as per his/her existing pay scale and the re-designation shall not entitle the incumbent for any additional financial benefit whatsoever.
e. The norms prescribed for promotion to the respective posts shall be applicable for assessing the suitability for re- designation.
f. In the case of the already appointed faculty through UPSC, the benefit of re-designation will be given from the date when the incumbent became eligible for higher designation. In case, the employee is found ineligible for re-designation on a particular date, his case will be reviewed thereafter on year to year basis and he will be granted the benefit of re- designation from the date when he becomes suitable for the same. The suitability for this purpose shall be considered after taking into consideration the Annual Confidential Reports of the faculty member concerned of each year.g. The non-grant of benefits under this scheme shall not be considered as punishment under the Punjab Civil Services (Punishment and Appeal) Rules, 1970.
h. The terms and conditions for effecting the regular promotions into the higher cadre shall remain to be governed by the existing provisions contained in the notified Recruitment Rules, as amended from time to time and the instructions applicable. That means if the regular post of a Reader and/or Professor falls vacant retirement/demise/resignation/new creation, the due to re- designated incumbent shall be required to undergo the same procedure and meet the same standards as contained in the Recruitment Rules/instructions and the re-designation earned under this scheme will not bestow upon any right to him/her for selection to the vacant/newly created post. i. The competent authority for grant of benefit under this scheme shall be the appointing authority."
20. It is submitted that point no. 03 of the above notification which clearly states that "the re-designation in the higher cadre made under this 8 scheme will be on 'in-situe' basis and therefore, the work allocation of teaching and clinical/Para clinical workload will remain the same after re-designation in the higher cadre.
21. It is further submitted that on the basis of recommendations of UPSC, New Delhi, Dr. Surinder Kumar Singhal (Assistant Professor) has been appointed as Associate Professor on promotion basis in the Department of ENT, GMCH-32, Chandigarh vide order dated 29.10.2020 and he joined as such on 29.10.2020. According to the provision of notified Recruitment Rules, the above said post is required to be filled up by way of Promotion/Deputation (Including Short Term Contract) as first method of recruitment. The following conditions of eligibility have been prescribed in col. No. 12 of the RRs:-
1. Officers of Central/ State Governments/ Union Territories Administrations/ Statutory bodies / Autonomous Organizations/ Research Institutions: -
(a) (1) Holding the analogous posts on regular basis; OR
(ii) With two years regular service in posts in the scaleof pay of Rs.
16400-20000/- or equivalent; and
(b) Possessing the educational and other qualifications prescribed for direct recruits.
22. However, the last date for receipt of application for the post of Professor/ENT was 29.01.2020 and Dr. Surinder Kumar Singhal was promoted to the post of Associate Professor after 10 months i.e.,29.10.2020. Resultantly, he had not completed two year regular service in the pay scale of Rs.16400-20000 which was a requirement for the post of Professor/ENT as per notified Recruitment Rules. 9
23. It is submitted that earlier, the case was examined by the Administrative Department and it was conveyed vide their letter dated 12.07.2023 to repatriate Dr. Roshan Kumar Verma, Professor/ENT presently on deputation in GMCH-32, Chandigarh from PGIMER, Chandigarh to his parent cadre after serving a three months advance notice which was served to Dr. Roshan Kumar Verma vide this office letter dated 14.07.2023 (Annexure-IX) and the advertisement was also released vide this office letter dated 14.07.2023 (Annexure-X). Thereafter, the Administrative Department has also conveyed vide their letter dated 14.08.2023 that it has been observed by the Competent Authority that the selection is done by UPSC based on the advertisement which mentions about deputation up to 05 years. Subsequently, the department of Health and Family Welfare issued order for deputation for 03 years. Hence, it has been decided by the Competent Authority that there is no reason to disturb the aforementioned arrangement and the services of Dr. Roshan Kumar Verma, Professor/ENT, GMCH-32, Chandigarh on deputation from PGIMER, Chandigarh are not to be disturbed and he may complete his tenure and further requested to immediately withdraw the repatriation order issued in pursuance of the above said letter and public notice and other consequence actions taken in pursuance of the above said letter. As such the three month notice as well as public appointment notice earlier issued have been withdrawn.
24. Respondent No.4 has filed reply wherein it is submitted that he had worked as Associate Professor on regular basis wef 01-07-2011 to 30- 06-2014; as Additional Professor for 01-07-2014 to 30-06-2018 and thereafter, as Professor wef 01-07-2018 to 06-06-2022 in Post 10 Graduate Institute of Medical Education Research (PGIMER) Chandigarh. Presently working as Professor & Head of ENT Department in respondent Govt Medical College & Hospital (GMCH), Sector-32, Chandigarh wef 06- 06-2022. He further submits that he was appointed as Professor on deputation (ISTC) basis for three years vide order dated 27- 04-2022 (Annexure A-10A), was permitted to join as Professor on deputation (ISTC) basis in the Department of ENT, Govt Medial College & Hospital, Chandigarh for a period of three years from the actual date of relieving by PGIMER, Chandigarh. On being relieved by the parent Institute (PGIMER), he joined as Professor (ENT) on 06-06-2022 (FN).
25. He submits that applications were invited to fill up one post of Professor in Department of ENT in the pay scale of Rs 18,600-600- 22,100+ NPA (plus other allowances as admissible to UT Govt employees. Post was unreserved and Revised Pay Scale was 37, 400 - 67, 000 + GP 10,000/- in Govt Medical College & Hospital (GMCH), Chandigarh under the aegis of Department of Medical Education & Research, Chandigarh Administration by way of Promotion/ Deputation (including Short Term Contract) through Union Public Service Commission (UPSC), New Delhi
26. Further it is submitted that the CAS promotion is an incentive to prevent brain drain and CAS promotion does not affect the seniority, salary, cadre and duties to be performed much less to be considered for higher promotion without putting in requisite regular service. Since the applicant was promoted to Associate Professor on regular basis on 29- 10-2020 and last date for receipt of applications was 29-01-2020. It is further submitted that eligibility of the applicant for consideration to the promotional post / appointment of the answering respondent on the 11 same lone post, does not license the applicant to get the answering respondent thrown out/repatriated from his post illegally.
27. The applicant filed rejoinder reiterating the averments made in the O.A and rebutting the submissions made by the respondents stating that when a situation arises for premature reversion to the parent cadre of the deputationists, his services could be so returned after giving an advance notice of at least three months to the lending Ministry/Department and the employee concerned. He submits that he had completed 2 years as a regular Associate Professor in the year 2022 and is fully eligible to seek appointment to the post of Professor by promotion.
28. He submits that the respondents at the first instance had rightly issued order dated 14.07.2023, whereby respondent no. 4 was repatriated to his parent cadre so that the post occupied by him i.e. Professor ENT can be re-advertised and the applicant be given an opportunity in the said selection process to seek appointment by promotion to the post of Professor ENT.
29. He submits that a perusal of the internal noting Annexures A-20 and A-
21 would also reveal that a decision was taken to issue a fresh advertisement and grant 3 months notice to the respondent no.4 for repatriation to his parent cadre and that the Administration had come to a conclusion that the respondent no.4 was wrongly granted appointment for a period of 3 years since as per relevant rules and regulations, the appointment on deputation should have initially been for a period of 1 year which shall be extended from time to time.
30. As per the internal noting (Annexure A-22), the applicant submits that submits that the Administrator has acted on the representation 12 preferred by respondent no. 4, however, the applicant vide RTI information dated 30.11.2023 (Annexure A-23) has been informed that no representation from Dr. Roshan Kumar Verma i.e. respondent no. 4 has been received.
31. It is submitted that the applicant is at the fag end of his career and denying him the right for considering him for promotion to the post of Professor is complete unjust and unfair and in violation of Article 14 of the Constitution of India.
32. Heard learned counsel for both the sides and perused the material available on record.
33. From the pleadings it is admitted case by the parties that the applicant was initially appointed on the post of Senior Lecturer (now Assistant Professor) on contractual basis and in the year of 1999 and thereafter on the basis of advertisement in the year 2000, the applicant was appointed as assistant professor on regular post. It is also admitted case that the next promotional avenue for the post of Assistant Professor is to the post of Associate Professor and then that of Professor. The composite method of recruitment was defined by the Government of India vide memo dated 19.06.1986. The applicant vide order dated 25.05.2007 was designated as Associate Professor with effect from 01.11.2006 under the Career Advancement Re-designation in Higher Cadre Scheme. It is also admitted fact that the applicant through advertisement in the year 2019, was appointed against the regular post of Associate Professor vide order dated 29.10.2020 (Annexure A-3/A).
34. UPSC had vide advertisement dated 06.12.2019 (Annexure A-5) has advertised one post of Professor (ENT). The applicant had applied for 13 the said post. The competent authority on recommendation of respondent No.3 has appointed respondent No.4 as Professor (ENT) vide order dated 27.04.2022 (Annexure A-10) on deputation for a period of three years in the Department of ENT. The applicant filed O.A 494 of 2022, the same was withdrawn with liberty to raise his claim at a later stage. The applicant made representation to respondent No.1 whereby the respondent No.1 has directed the repatriation of respondent No.4 to his parent cadre, i.e., PGIMER, considering the fact that a departmental candidate, i.e., the applicant has become eligible for promotion to the post of Professor ENT and ultimately the repatriation order was passed.
35. The further contention of the applicant is that though the post was advertised by the Commission dated 18.07.2023 (Annexure A-15) but the same was subsequently withdrawn.
36. The applicant submits that the respondent No.4 has been appointed as professor (ENT) on deputation for a period of three years, however, the UPSC has recommended respondent No.4 for appointment on short- term basis.
37. The contention of the respondents is that the applicant was appointed as Senior Lecturer in the Department of ENT and joined as regular on 23.03.1999. The Recruitment Rules for the post of Assistant Professor, Associate Professor and Professor have been notified vide GSR No.129 dated 04.03.2003:
"PROFESSOR: as per the method prescribed in the Recruitment Rule for the post of Professor/ENT is promotion/Deputation (including short term contract) failing which by direct recruitment.
ASSOCIATE PROFESSOR: Promotion/Deputation (including short term contract) failing which by direct recruitment. ASSISTANT PROFESSOR: Direct recruitment."14
38. The further contention of the applicant is that as per notification for Career Advancement (Re-designation in higher cadre scheme), the gazette notification was issued on 01.03.2007 and the re-designation in the higher cadre made under the Scheme will be „in-situe‟ basis and therefore the work allocation of teaching and clinical/para clinical workload will remain the same after re-designation in the higher cadre and the terms and conditions for effecting the regular promotion into higher cadre was remained to be governed by the existing provisions contained in the Recruitment Rules. The relevant para are as under:
c. The re-designation in the higher cadre made under this scheme will be on 'in-situe basis and therefore, the work allocation of teaching and clinical/Para clinical workload will remain the same after re-designation in the higher cadre. h. The terms and conditions for effecting the regular promotions into the higher cadre shall remain to be governed by the existing provisions contained in the notified Recruitment Rules, as amended from time to time and the instructions applicable. That means if the regular post of a Reader and/or Professor falls vacant retirement/demise/resignation/new creation, the due to re-designated incumbent shall be required to undergo the same procedure and meet the same standards as contained in the Recruitment Rules/instructions and the re-designation earned under this scheme will not bestow upon any right to him/her for selection to the vacant/newly created post.
39. The specific stand taken by the respondents is that the applicant was appointed as Associate Professor through UPSC and has joined as such on 29.10.2020 and two years‟ experience as Associate Professor should have been completed on 29.01.2020 and the applicant has not completed two years on regular basis as per the Recruitment Rules and resultantly the applicant was found unsuitable and respondent No.4 was found to be suitable for the post of Associate Professor. It has been further submitted by the respondents that the case was examined and it was conveyed vide letter dated 12.07.2023 to repatriate respondent 15 No.4 to his parent cadre and ultimately advertisement was issued vide letter dated 14.07.2023 (Annexure A-10). However, on 14.08.2023 it has been observed by the competent authority that the selection is done by UPSC on the basis of advertisement which mentions about deputation upto 5 years and the Department of Health and Family Welfare issued order for deputation for 3 years. So the competent authority had decided not to disturb the aforesaid arrangement and the respondent No.4 be allowed to complete 5 years. Resultantly withdrawal of repatriation has been issued vide letter dated 14.08.2023 (Annexure R-11) and advertisement dated 14.07.2023 was withdrawn vide order dated 28.08.2023 (Annexure R-12).
40. The second contention of the applicant is that the UPSC has recommended respondent No.4 on short-term basis whereas the competent authority has recommended the respondent No.4 for three years. It has been submitted by the competent authority that the UPSC has recommended the respondent No.4 as suitable candidate on the basis of advertisement and the same has been recommended as per Recruitment Rules and ultimately decided to appoint respondent No.4 on deputation for three years and the competent authority has appointed respondent No.4 as per Recruitment Rules.
41. This Tribunal has considered the matter and is of the view that as per OM dated 17.06.2010, i.e., Guidelines regarding tenure of Deputation, firstly the respondent No.4 was appointed for three years by the Competent Authority and later on decided to extend the period of deputation upto 5 years, based on the recommendations received from UPSC at the time of recommending the respondent No.4 for the said post.
16
42. We find that the decision of the competent authority was within its competency and there is no illegality in the action of the respondents.
43. Resultantly, the O.A is devoid of any merit and the same is dismissed. No order as to costs. Pending M.As, if any, are accordingly disposed of.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
bp