Punjab-Haryana High Court
Mohinder Kumar vs State Of Haryana And Ors on 23 December, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
-1-
CM NOS.1467 & 2796 OF 2014 IN/AND
CIVIL WRIT PETITION NO.25019 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM NOS.1467 & 2796 OF 2014 IN/AND
CIVIL WRIT PETITION NO.25019 of 2013
DATE OF DECISION: DECEMBER 23rd, 2014
Dr. Mohinder Kumar
.....Petitioner
VERSUS
State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Dr. Mohinder Kumar-petitioner in person.
Mr. Harish Rathee, Sr. DAG, Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner, who appears in person, has filed this writ petition alleging that despite he having applied for the post of Associate Professor (General Surgery) in Shaheed Hassan Khan Mewati Government Medical College, Nalhar, Mewat (for short 'Medical College, Mewat') against advertisement No.13/2006, closing date of which was 23.08.2013 to be filled by way of direct recruitment on regular/contractual basis issued by the Government of Haryana, has not been called for interview despite having been short-listed for the said post. This, he contends on the basis of HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -2- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 Annexure P-4, the schedule of interview for the posts, prepared by the respondents, where against post of Associate Professor (General Surgery), two candidates have been mentioned. It is alleged that apart from another candidate, who was found to be lacking in experience, petitioner was the only other candidate but has not been sent the call letter for the interview by the respondents. It is admitted by him that the age of the petitioner is 52 years 01 month and 16 days on the last date of submission of the applications but there is a provision for relaxation in age in case of exigency which finds mentioned in the advertisement (Annexure P-1) itself which although otherwise prescribes the upper age limit of 50 years for the post of Associate Professor. It is contended and pleaded that despite there being a provision for relaxation in age, his case has not been considered for such relaxation with mala fide intention to oust him from the selection process. He has contended that there exists exigency and, therefore, the age limit should have been relaxed in his case. To highlight this aspect with regard to exigency, he has referred to the advertisement dated 05.10.2013 (Annexure P-3) where the post of Associate Professor (General Surgery) has again been advertised and thereafter, again an advertisement has been issued in the month of December, 2013 (Annexure P-9) for the same post where the last date of receipt of application has been fixed as 31.12.2013. Reference has also been made to the advertisement dated 01.02.2014 (Annexure P-10) where again, the same post stands advertised. He contends that as per the Medical Council of India, New Delhi (hereinafter referred to as 'the MCI') regulations first renewal inspection, after the permission for the academic year has been granted, is to be held within six months of grant of approval HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -3- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 and since the renewal inspection is to be carried out by the MCI. The exigency now also exists but the respondents are adamant in not considering the candidature of the petitioner for appointment to the post by exercising the powers available with them for relaxation of the age limit.
Reference has also been made to the affidavit dated 27.01.2014 filed by the Secretary to Government of Haryana, Medical Education and Research Department, where it has been, in compliance of the order dated 20.12.2013, explained the term 'exigency' as urgent need where patients care is severely affected or an inspection is to be carried out by the MCI or to save de-recognition of the Institution for want of staff, the provision with regard to relaxation in age limit can be exercised. These conditions are fulfilled in the case of the petitioner as he is in possession of outstanding qualifications and experience as mentioned above and the renewal inspection by the MCI was due in November, 2013 and in the months of February and March, 2014 for the academic Session 2014-15.
Petitioner has also asserted that he has been wronged against. Wrong affidavits have been filed by the Secretary to Government of Haryana, Medical Education and Research Department, to misguide this Court by placing reliance upon false documents seemingly with a mala fide intent and with mens rea to cause prejudice to the petitioner and mislead the High Court, thus, committing an offence under Section 193 of the Indian Penal Code (hereinafter referred to as 'the IPC'), apart from having committed contempt of Court. He, thus, contends that the action of the respondents deserves to be struck aside and a direction be issued to the respondents to consider the candidature of the petitioner, hold his interview HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -4- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 for appointment to the post of Associate Professor (General Surgery) by granting him relaxation in age and issue appointment letter to the petitioner. He further submits that as the petitioner fulfills the educational qualifications for the post and has FRCS from Edinburgh and Master of Surgery from Jawaharlal Nehru Institute of Postgraduate Medical Education & Research, Pondicherry and is already working as an Associate Professor in the Department of Surgery in Maharishi Markandeshwar Institute of Medical Sciences & Research, Mullana, Ambala since 05.06.2013, there is no reason as to why the petitioner should not be appointed to the post and a direction to this effect be issued.
Counsel for the State submits that admittedly, petitioner does not fulfill the eligibility condition with regard to the maximum age prescribed in the advertisement. Petitioner is harping upon a clause mentioned in the advertisement that in case of exigency, the age limit can be relaxed. He contends that this is a discretion available with the Government and in the given facts and circumstances of the present case, no such exigency existed which could have persuaded the Government to exercise its power for relaxation in age limit with reference to the petitioner. He neither fulfills the requirement of being a person holding an outstanding qualifications and experience nor does exigency exist which would hamper smooth functioning of the Medical College. He contends that vide order dated 20.10.2013, this Court had called for an affidavit with regard to the provision incorporated in the advertisement with regard to relaxation of age limit indicating as to its nature i.e. statutory or executive. Explanation of the word 'exigency' as to how it came to be introduced in the advertisement and HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -5- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 whether it was a decision taken by the Government in terms of its rules of business. This position has been clarified in the affidavit dated 27.01.2014 pointing out therein that Draft Rule 5 which is being followed of the Haryana Medical Education Service (Group-A) of the Shaheed Hassan Khan Mewati Government Medical College, Nalhar, Mewat (hereinafter referred to as 'Draft Rules') provides for relaxation in age limit under the proviso thereto. The word exigency in the advertisement has been inserted on the basis of Draft Rules. The word 'exigency' has to be interpreted and understood in the context in which it has been used in the proviso of Draft Rule 5 which has been explained in para 3 of the affidavit such as urgent need in a situation if patients care is severely affected or if inspection of MCI is to be carried out or de-recognition of the Institution may result for want of staff. Since the MCI had already given approval for the Session 2013-14, no exigency existed as there was sufficient staff available. The Government in its wisdom did not exercise its powers in view of the prevailing circumstances.
It has further been contended by the counsel for the respondents that the assertion of the petitioner that an offence under Section 193 of the IPC has been committed by the respondents, is totally misconstrued and without any basis as true and correct information stands disclosed by the Secretary to Government of Haryana, Medical Education and Research Department as per the information called for by this Court vide order dated 20.12.2013. He, thus, contends that the writ petition deserves to be dismissed.
I have considered the submissions made by the petitioner as HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -6- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 also the counsel for the State and have gone through the records of the case.
The admitted position as it emerges from the pleadings and the submissions made during the course of hearing is that the petitioner does not fulfill the requirement of the advertisement with regard to the upper age limit of 50 year as he was 52 years 01 month and 10 days on the last date of receipt of applications i.e. 23.08.2013. The petitioner is, thus, placing reliance upon the note given in the advertisement which says that in case of exigency, the age limit can be relaxed. It is apparent from the affidavit dated 27.01.2014 filed by the Secretary to Government of Haryana, Medical Education and Research Department that Draft Rule 5 deals with this aspect which reads as follows:-
"5. No person shall be appointed to any post in the service by direct recruitment who:-
a. In the case of Director, Medical Superintendent and Principal, Dental College is less than forty years, or more the fifty five years of age. b. In any other case, is less than twenty five years or more than fifty years of age, on or before the first day of the month next preceding the last date of submission of applications to the selection committee:
Provided that the Govt. may in the case of persons with outstanding qualifications and experience and in the exigencies of smooth functioning of the new College, relax the age limit."
As per the above Draft Rule 5 (b), the maximum age limit prescribed for the post of Associate Professor would be 50 years on or before the first date of the month next preceding the last date of submission HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -7- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 of the applications to the Selection Committee. Proviso to this Rule empowers the Government in certain circumstances to relax the age limit which also have been spelt out. This, obviously means that the discretion is with the Government and has to be exercised on case to case basis. While exercising such discretion, the Government would take into consideration and be guided and even influenced while considering the claim of a person possessing outstanding qualifications and experience and in a situation where the smooth functioning of the College is likely to be jeopardized and, therefore, may come to a conclusion that exigency exists as referred to in Draft Rule 5. Two of these exigencies have been spelt out as examples given by the Secretary in his affidavit; (i) where the patients care is severely affected and (ii) where urgent need could be an ensuing inspection by the MCI or a situation where de-recognition of the Institution is visualized and eminent for want of staff. It has further been mentioned that MCI had already conducted the inspection and has granted approval vide letter dated 02.07.2013. This, as per the pleadings of the petitioner was for the Session 2013-14, therefore, none of these exigencies existed as there was sufficient teachers and staff. That apart, one Professor, two Associate Professors, one Assistant Professor and four Senior Residents had been selected and were to join soon.
Petitioner has asserted himself to be a person possessing outstanding qualifications and experience and this, he submits on the basis of the alleged observations made by this Court in the order dated 15.11.2013 where it is mentioned that the petitioner is FRCS from Edinburgh and MS from Jawaharlal Nehru Institute of Postgraduate Medical HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -8- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 Education & Research which is an institute of national importance. This submission of the petitioner cannot be accepted as these are not the observations of the Court rather the same are the contentions of the petitioner. The relevant part of the order reads as follows:-
"In terms of the Time Schedule of the interviews notified inter alia for the post in question two persons were called for interview. It is the assertion of the petitioner appearing in person that one of those two was him. He further submits on the strength of information received verbally that the other doctor was found lacking in experience. If this is the position then the post of Associate Professor (General Surgery) will remain vacant. The age prescribed for the post laid down in the advertisement is that person should be less than 50 years. The petitioner is 52 years 1 month and 16 days on the cut off date. He points out to another note which reads "however in case of exigency the age limit can be relaxed". The petitioner is FRCS from Edinburgh and MS from Jawaharlal Nehru Institute of Postgraduate Medical Education & Research which is an institute of national importance."
In any case, the competent authority to take the final decision with regard to relaxation in relation to outstanding qualifications and experience of a person, is the Government which in its wisdom did not find the petitioner to be possessing such qualifications and experience which would require exercise of the discretionary powers in his favour. It may be not out of way to point out here that in the affidavit dated 21.01.2014, it has been stated that the provision relating to exigency have not been invoked in any of the recruitments so far as there is no exigency in existence. In any HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -9- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 case, no mandamus needs to be issued to the Government for exercising its discretion in a particular manner when the reasons for not exercising discretion have been pointed out and have been found to be bona fide, reasonable and just. The Government has to be given some leverage and allowed space to exercise its discretion and need not be forced and thrust upon it in any manner.
Exigency with reference to the inspection to be carried out by the MCI for renewal of the approval already granted for the Session 2013- 14 and for the coming Session 2014-15 which has been sought to be impressed upon by the petitioner by contending that the respondents are issuing one advertisement after another, such as the advertisement dated 05.10.2013 (Annexure P-3), advertisement in the month of December, 2013 (Annexure P-9) and advertisement dated 01.02.2014 (Annexure P-10), would not be of any help to the case of the petitioner especially when it has been stated that there are enough teachers and staff which would fulfill the requirement for approval of the Medical College, Mewat by the MCI. Merely because an endeavour and effort is being made by the respondents to fill-up the vacant posts would not fall within the term exigency as provided for in the proviso to Draft Rule 5.
At the cost of repetition, it may be added that one Professor, two Associate Professors, one Assistant Professor and four Senior Residents have already been selected and were to join soon as per the affidavit dated 27.01.2014. It has further been mentioned that there are sufficient doctors and staff in the Department of Surgery to take care of the patients and, thus, it would not require immediate or urgent recruitment to the post on which HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -10- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 the petitioner is seeking appointment.
The assertion of the petitioner that the respondents have committed an offence under Section 193 of the IPC is totally misplaced and without any basis rather the same is based on conjectures and surmises. Merely because subsequently advertisements have been issued by the respondents to fill-up the post of Associate Professor (General Surgery) cannot be stated to be a reason or ground, much less justifiable, for coming to a conclusion that the assertion of the Secretary to Government of Haryana, Medical Education and Research Department in his affidavit dated 27.01.2014 that there does not exist any exigency to invoke the powers of the Government as per proviso to Draft Rule 5 is false or incorrect and the same have been effectuated on the basis of false documents with mala fide intent and mens rea so as to cause prejudice to the petitioner and mislead this Court and, thus, it cannot be accepted.
The assertion of the petitioner that order dated 20.12.2013, which stated that "the post of Associate Professor (General Surgery) be not filled till further orders" has been violated by the respondents on issuing advertisement dated 01.02.2014 (Annexure P-10) for filling-up the post, cannot be accepted as this is merely an advertisement and the contempt could have been said to have been committed by the respondents, had the post been filled-up. Admittedly, one post of Associate Professor (General Surgery) is still lying vacant. It cannot be said that the order dated 20.12.2013 passed by this Court in this case has been violated.
In view of the above, I do not find any merit in the present writ petition or the miscellaneous applications preferred by the petitioner and HARISH KUMAR 2014.12.23 16:45 I attest to the accuracy and authenticity of this document -11- CM NOS.1467 & 2796 OF 2014 IN/AND CIVIL WRIT PETITION NO.25019 of 2013 dismiss the same.
Since the petitioner is appearing in person, let a certified copy of this order be sent by the Registry to the petitioner forthwith.
December 23rd, 2014 ( AUGUSTINE GEORGE MASIH )
Harish JUDGE
HARISH KUMAR
2014.12.23 16:45
I attest to the accuracy and
authenticity of this document