Patna High Court
Dr. Sajjan Kumar Didwania vs The State Of Bihar And Ors. on 21 April, 1988
Equivalent citations: 1989(37)BLJR447
JUDGMENT S. Shamshul Hasan, J.
1. The petitioner and respondent No. 4 are breaking their hearts over the apple of their eyes, the Associate Professorship of Cardiology. The enchantress is Cardiology. These two have stormed the sacred portals of this building in order to achieve their hearts' desire instead of devoting their time to patient Stethoscope, E.C.G. machines, Monitors and the like. A time may come when all doctors, engineers and teachers will become qualified lawyers capable of holding their own against the most eminent members of the legal faculty while the learned counsels of this august institution will become experts in medicine, engineering and education. May this never happen, but it seems the time is not far off because of administrative improprieties committed at various levels.
2. The petitioner has invoked ADALAT as a panacea for the treatment of the infarction to his career thus necessitating beta blockers to clear the arteriosclerosis of the arteries that supply blood to the heart of the Health Department. The post which is cynosure of the eyes and for which each of them are vying is Associate Professor, Cardiology, in the Patna Medical College Hospital (PMCH). This post is said to have been created by upgrading the post of Assistant Professor of Medicine (Cardiology) which is said to have been held by the petitioner, by the use of the word Cardiology with medicine to promote falsely the prospect of respondent No. 4 because admittedly respondent No. 4 was at no time holding the post of Associate Professor of Cardiology and in fact no such post was ever in existence nor was it ever created.
3. The petitioner had originally assailed Annexure 3 which purports to be the decision of the Departmental Promotion Committee by which respondent No. 4's promotion to the post of Associate Professor Cardiology, was recommended. It appears that the promotion then was approved by the Cabinet of Ministers for only six months and a fresh Department-cum-Promotion Committee was constituted resulting in Annexure B to the Counter Affidavit filed on behalf of the respondent-State which now becomes the real Annexure to be assailed and sought to be quashed by the petitioner. Here, it will be interesting to set out the personnel of the two committee :
Committee dated 21-2-1987 (1) Sri G. K. Prasad, Joint Director.
(2) Sri S. P. Sinha, Director.
(3) Sri N. Prasad, Joint Secretary, and (4) Sri N. K. Singh, Secretary.
Committee dated 10-7-1987 (1) Sri S. K. Sen, Member, Bihar Public Service Commission.
(2) Sri Pancham Lal, Director, Revenue Administration, Irrigation Department, Bihar.
(3) Sri Nanhe Prasad, Joint Secretary, Health Education.
(4) Sri Gopal Krishna Prasad, Joint Director, Health Education.
4. Certain situations are undisputed (i) The petitioner in the gradation list Annexure 2 is placed at serial No. 11 and Respondent No. 4 at serial No. 28. All those in between are also holding the post of Assistant Professor of Medicine as the petitioner and Respondent No. 4 (ii) There was no post of Assistant Professor of Cardiology ever in the PMCH and (iii) Respondent No. 4 in any event did not hold the post of Assistant Professor of Cardiology at any time.
5. The basic attempt, it may be stated of the petitioner is to fibrosise and destroy the tissues of respondent No. 4's claim causing a complete cardiac failure of his ambition to become an Associate Professor of Cardiology over the heads of the petitioner and consequently others above him in the PMCH. As far as he himself is concerned, his desire really was to be considered competitively along with others for the coveted post of Associate Professor of Cardiology and if found suitable be endowed the object of his heart. Therefore, the heart of the problem is the problem of the heart.
6. A representation was thus sent by the petitioner to the State Government when it became apparent that his career was going to be infected by an invasion on his position by Respondent No. 4. It transpired that a communication was sent to the petitioner and, perhaps, to all others except Respondent No. 4 asking them to exercise their choice for their posting as Associate Professor, Medicine, at places other than PMCH but not for Cardiology thus clearing the deck for bestowing a favour of appointment as Associate Professor, Cardiology, in PMCH on Respondent No. 4. The petitioner claims to be more qualified and experienced apart from being admittedly senior to Respondent No. 4.
7. The attack on the Governmental action is two pronged. First, the procedure adopted was contrary to rules and in utter violation of Article 16 of the Constitution of India and secondly, on the basis that the petitioner was possessing qualification superior to Respondent No. 4.
PROCEDURE
8. The procedure adopted was that initially, one post of Assistant Professor of Medicine was upgraded to the post of Associate Professor of Cardiology in the PMCH by notification No. 14/1 dated 8-1-1987 by mis-describing the post of Assistant Professor, Medicine, as Assistant Professor of Cardiology also indicating the fact that Respondent No. 4 was holding the post. Thereafter, without issuing any advertisement or calling for any application from any other persons, a meeting of the depleted Departmental Promotion Committee was held on 21-2-1987 which consisted of the members mentioned above. Ex facie, the Committee did not have the Chairman or a Member from the Bihar Public Service Commission (BPSC) as required by the Circular issued by the Government. The sole object, it appears, of this Committee was to favour Respondent No. 4. Surely, the member of the Committee, who were high ranking officers of the Department of Health must have" been aware that there were several doctors senior to Respondent No. 4 who were at least fit to be considered for the post that was being given to Respondent No. 4. The matter then went to the Cabinet which granted approval for six months. A meeting of the Departmental Promotion Committee was again called on 10-7-1987 under the Presidentship of a member of the BPSC Sri S. K. Sen and one Sri Pancham Lal, Director, Revenue Administration, from the Department of Irrigation, as one of the members, a peculiar inclusion because, an expert in Irrigation can hardly be considered to be an expert in matters of Health, particularly, coronary diseases when was not a member of the BPSC and the appointment was to be for a position of specialisation in Health. This Committee, as was with the last Committee, was only confronted with the task of examining the suitability of Respondent No. 4 without a comparative appraisal with other Assistant Professors of Medicine in the same department. As it appears from the list of people composing the Committee, the Joint Secretary of Health and the Joint Director were members yet for reasons best known to them and which can only be left for one to imagine, once again they completely ignored the cases of other senior Assistant Professors of Medicine. As I have stated above, surely and undoubtedly, the high ranking officers, who were the members of this Committee were also expected to be aware of the fact that a large number of doctors were senior to Respondent No. 4 whose names were required to be considered along with Respondent No. 4 yet they chose an unjustified course of ignoring this vital aspect. The memorandum placed before the Committee which was prepared by the Department of Health, contained two significant misstatements or as described by the learned counsel for the Respondent No. 4 "loosely done" that the petitioner was holding the post of Assistant Professor of Cardiology which was factually incorrect to the knowledge of at least the Secretary and other officers of the Health Department concerned. On the basis of this misstatement. It was stated in the memorandum that the petitioner's case was similar to two other doctors Dr. U. C. Shamuel and Dr. Ganpati Mishra, who were Assistant Professors of Cardiology in the Nalanda Medical College Hospital and Darbhanga Medical College Hospital, respectively, though there was a Cardiology unit in existence in those institutions but there was none in the PMCH, This Committee then approved the appointment but thereafter no further steps could be taken because the petitioner had already moved this Court and all further actions were stayed.
9. Ex facie, therefore, from the situations spelt out above, the patent defects are :
(i) that the post was not advertised to get the most suitable candidates and the department proceeded on its own ipse dixit that Respondent No. 4 was alone the most suitable candidate for the post on an inference drawn from the fact that he was the Registrar and was connected with the Intension Care Unit (ICU) of the PMCH for a considerable period,
(ii) that consequently no other names were considered for this post although there were a large number of persons senior to the petitioner who might have been found to be equally and even more suitable for the post,
(iii) that patent misstatements were made from the very inception to create justification and" grounds for singling out Respondent No. 4 for beneficient endowment of the coveted post of Associate Professor of Cardiology after highlighting his case,
(iv) that the concerned Health Commissioner-cum-Secretary and other high functionaries of the Department ignored the cases of other persons senior to Respondent No. 4 who could have been more suitable for the reasons best known to them,
(v) the unconnected members of the Departmental Promotion Committee one of whom was ex officio from the BPSC could not get a glipse of the entire picture relevant to the proposal under consideration before the Committee, and
(vi) that the upgraded post of Assistant Professor of Medicine from Associate Professor of Medicine, Cardiology, was also achieved by misdescription because there was no post of Assistant Professor of Cardiology, a fact that has to be admitted because it could not be proved either by the State or the Respondent No. 4.
10. While making selection to a post, it is not open to the functionaries of the department to select a person for a particular post by a predetermined desire and then try to create a convenient scenario to achieve this objective by subbing under the carpet like rubbish the relevant matters and facts concealing the real state of affairs from the members of even an independent tribunal who came from the BPSC and other outside sources. Being in the Committee, I feel that the officers of the department have entirely misused their positions in misguiding the independent members Sri Pancham Lal and the member of the BPSC. It is a sad spectale indeed that favour should be bestowed ignoring completely the justifiability of the claims of others and that too for a post of considerable public importance which involves the treatment and may even the life of a large number of people suffering from cardiac problems. I have, therefore, no hesitation in holding that the procedure followed was not only contrary to law and rules and violative of Article 16 of the Constitution but was entirely unjustified with a view to bestow favour on Respondent No. 4.
QUALIFICATION
11. Having held that the procedure followed was without justification and utterly improper, I am refraining from examining in depth the comparative qualifications of the two contestants for the apple of their eyes, the Associate Professorship of Cardiology, particularly, for two reasons, firstly, that ultimately there may be names of more than these two persons whose qualifications will have to be considered for the disputed post and secondly, qualifications of these two doctors may be available for examination without judicial comments on a future occasion. I will, however, deal with only one aspect of the matter which I feel it is essential to do because in my view an utterly improper use is being made of a situation by the powers that be. One factor that has been strongly utilised in favour of Respondent No. 4 not only to create him as a most qualified person for the post of Associate Professor, Cardiology, but also to single him out for that post depriving others even to the right to be considered, is the connection of Respondent No. 4 with the ICU of the PMCH which assumption has been utilised to endow Respondent No. 4 with requisite experience in Cardiology. It is not disputed that ICU in the PMCH is meant for the treatment of serious patients requiring minute to minute observation suffering from varied ailments of the body. It is used for all the diseases that are treatable by the Department of Medicine of the PMCH and undisputedly is not confined to patients of coronary diseases only. It is not disputed that serious patients of heart ailments are placed in that unit for expert intensive care. It is also not disputed that for treatment of heart patients a separate institution has been set up in the campus of the PMCH known as Indira Gandhi Institute of Cardiology with eminent physician endowed with extensive capabilities like Mr. A. K. Thakur as the Director of this unit for giving medicine and if necessary, intensive care to coronary patients in the ICU exclusively for heart ailments. Any doctor associated with the ICU of the PMCH, therefore, however closely he may be, cannot be treated to be endowed with an experience to such an extent that he can be considered to be an expert only in Cardiology. It is true that dealing with such patients in ICU would not necessarily mean dealing with cardiac patients only and it is equally true that a doctor attached to the ICU exclusively in any capacity would also be required to deal with patients suffering from ailments other than cardiac. Much stress has been laid on the fact that the petitioner was Registrar of the ICU. This would only mean that he has gained experience in regard to intensive care of patients suffering from myriad diseases and not necessarily only of cardiac because at no time there was any person attached to the ICU specifically for looking after the patients with coronary ailment. While Respondent No. 4 claims to be closely associated with ICU treating heart patients, the petitioner has also laid stress on the fact that he was also deputed to the Intensive Care Unit on roster duty and was also treating heart patients in general ward. In fact, it was also shown that one Dr. Rahman was similarly attached to the Intensive Care Unit of the PMCH as Respondent No. 4 but on the seniority list he is only one place below him but was also an MRCP. These matters, however, are left for the examination of the appointing authority if such a situation arises in future. Facts have been brought on the record by both the parties to buttress their claim of possessing superior qualification than that of their adversary. The qualifications required to endow the petitioner with a right to be selected to the post of Associate Professor, PMCH, has been laid down by the Indian Medical Association and it was shown to indicate that Respondent No. 4 was more qualified than the petitioner. Be that as it may, I refrain from expressing my view on the matter. Suffice it to say that in the absence of the observance of proper procedure, the best man for the job has yet to be found. I have, therefore, no hesitation in issuing a writ of mandamus directing the Respondents from refraining from giving effect to the recommendations made in Annexure 3 and Annexure 'B' to the counter affidavit filed on behalf of the State which are both quashed. I further direct that if in future, it is intended to appoint an Associate Professor of Cardiology or any other similar post in PMCH, they should adopt the following procedures-
(i) if the post of such Professor is non-existent then either the post of Assistant Professor of Cardiology, if in existence, should be upgraded or a proper post of such Professor should be created following the Rules and procedure in that regard.
(ii) the appointment to the post of Associate Professor should be made by constituting a Departmental Promotion Committee as envisaged in the circular and attempts should be made not only to consider all the persons who may be eligible for the post from the doctors already in the employment of the State but, if the rules prescribe, by calling for applications from outside in accordance with Article 16 of the Constitution of India. The department should not proceed on its own ipse dixit in regard to the suitability of a person.
12. This application is allowed as above but there will be no order as to costs.
Bimalendu Narayan Sinha, J.
13. I agree.