Bombay High Court
Syed Imtiaz Jaleel vs The State Of Maharashtra And ... on 8 July, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO.47 OF 2021
SYED IMTIAZ JALEEL
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Shri Syed Imtiaz Jaleel, petitioner in person.
Shri Ashutosh Kumbhakoni, Advocate General a/w Shri S.G. Karlekar, AGP,
for respondent Nos.1 to 11/ State.
Shri Shrimant Mundhe, Advocate for respondent No.12.
Shri A.G. Talhar, ASGI, for respondent Nos.13 and 14.
Shri S.G. Chapalgaonkar, Advocate for respondent Nos.15 and 16.
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 08th July, 2021
Per Court :-
Recruitment in Class I to Class IV categories
1. The learned Advocate General of the State of Maharashtra has
pointed out an additional affidavit filed on behalf of respondent No.2 by
Dr.Sadhana Tayade, Director, Health Services, Public Health Department,
Government of Maharashtra, Mumbai dated 03.07.2021. He specifically
points out paragraphs 3, 4 and 5 of the said affidavit, which read thus:-
"3. It appears from the perusal of the aforesaid file that a
meeting in the office of the Hon'ble Governor was held
wherein the Chairman of MPSC and the Secretary, Public
Health Department were present. In the said meeting the
Chairman, MPSC appraised that the MPSC can complete
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the recruitment process within time. In view of the
aforesaid statement by chairman, MPSC, the office of the
Hon'ble Governor has returned the file to the Public
Health Department.
4. In any case, it is also pertinent to note that the
Government Resolution dated 10th October, 2018, by
which the posts of Civil Surgeon Cadre, District Health
Officer cadre and Specialty cadre were decided to be
taken out from the purview of MPSC, was to remain
effective only till 30.09.2021.
5. In that view of the matter, now the only option available
with the Department is to send appropriate requisition to
the MPSc to fill in the vacancies of the posts of Civil
Surgeon, District Health Officer and Speciality cadre, in
accordance with the extant Recruitment Rules. I say that
a proposal is already moved by the Department in the
aforesaid direction and a decision in the aforesaid regard
is likely to be taken immediately and the Department
will request the Chairman, MPSC to make an endeavour
to complete the recruitment process at the earliest, as
assured to the Hon'ble Governor."
2. The learned Advocate General further submits that the only
option available with the Government is to send a requisition to
respondent No.17/ MPSC so as to initiate the selection process for filling
up the vacancies in the Public Health Department, especially in the Civil
Surgeon cadre, District Health Officers cadre and Specialty cadre. He
graciously submits that he would make an endeavour to ensure that the
requisition is forwarded to respondent No.17/ MPSC in less than two
weeks.
3. The learned advocate appearing for respondent No.17/ MPSC
submits that he would require one week thereafter, to collect instructions
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as regards the follow-up action post receipt of requisition and the steps
that the MPSC would initiate in order to commence the selection process.
4. The petitioner-in-person, who is the Member of Parliament for
Aurangabad constituency, submits that as the Parliament would be in
session, he would not be available from 19th July, 2021 till 13th August,
2021.
5. As regards the issue of vacancies in the Health Department at
the rural levels in the State of Maharashtra, which recruitment would be
under the Rural Development Department and the recruitment process is
to be performed by the respective Zilla Parishads, the learned Advocate
General submits that since this Public Interest Litigation is not an
adversarial litigation and the recruitment in the Health Department is
bound to strengthen the health services that would be made available to
the people from all strata of the society, he would volunteer to collect
instructions as regards the vacancies in the Civil Hospitals, Primary Health
Centres and all such medical centres, which are under the aegis of the
Zilla Parishads within the scope of the Rural Development Department. As
such, this issue would be taken up in the next hearing on this PIL.
6. As such, we would be taking up this issue in a hearing which
we post on 20.08.2021 at 02:30 PM.
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Allegations against Dr.Ashish Bhivapurkar
7. On 16.06.2021, the petitioner in person, had taken up the
issue with regard to Dr.Ashish Bhivapurkar, Cardio Vascular Thoracic
Surgeon, alleging that despite being deputed to serve the Government
Medical College and Hospital, Aurangabad (GMCH) more than two years
ago, he had not joined his place of transfer at Aurangabad and was
drawing salary without serving the hospital. This Court (Coram :
Honourable the Chief Justice and Ravindra V. Ghuge, J.), therefore,
granted liberty to the petitioner to file an additional affidavit within 24
hours, vide our order dated 16.06.2021.
8. The petitioner, accordingly, has entered an affidavit dated
17.06.2021. In paragraph 11 of the said affidavit, the petitioner stated
that Dr.Bhivapurkar was appointed in April, 2018 at GMCH, Aurangabad
and has earned his salaries without working at the hospital and without
treating any patient. This Court (Coram : Honourable the Chief Justice
and Ravindra V. Ghuge, J.), therefore, observed in paragraph 7 of the
order dated 18.06.2021 that the Court would like the Director of Health
Services to deal with paragraph 11, in an affidavit to be filed by her in
terms of the said order. Dr.Kananbala Avinash Yelikar, Dean, GMCH,
Aurangabad filed an affidavit on 30.06.2021 stating in paragraph 4 that
Dr.Bhivapurkar joined duties on 19.04.2018 as the Professor and Head of
Department of the Cardio Vascular Thoracic Surgery (CVTS) at
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Aurangabad. Since then he has been working in the institute till date on
the said post, regularly. He has been paid for his duties and work. From
the face of the departmental and other records, it is evident that
Dr.Bhivapurkar had worked as the Professor and Head in the CVTS
Department.
9. We found that the above stated affidavit, on the one hand,
gave a clean chit to Dr.Bhivapurkar and on the other hand, no details of
the duties that he has discharged in the hospital, were brought on record
so as to contradict the statement made by the petitioner in his affidavit.
Hence, on 30.06.2021, as the hearing in this PIL commenced to the extent
of Dr.Bhivapurkar, we had directed the learned AGP to place before us the
attendance record of the said Professor from April, 2018 to May, 2021,
Operation Register and the Register of monthly Medical College Council
meetings. Post lunch, these documents were placed before us by the
learned AGP and since we found certain deficiencies, noticed even at a
cursory glance at these documents, we adjourned the matter so as to
enable us to have a close look at these documents before we could deal
with the allegations made by the petitioner. While adjourning the matter
to 05.07.2021, we requested the learned AGP to ensure that the bio-
metric attendance record of all professors and teachers of the CVTS
Department from April, 2018 to March, 2020 were produced before us,
keeping in view that the bio-metric attendance was prohibited after the
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national lock-down from 24.03.2020 in view of the Covid-19 pandemic.
10. After we commenced the hearing on this PIL on the issue of
Dr.Bhivapurkar today, the petitioner placed before us the copy of the
judgment dated 11.07.2018 delivered by the learned Maharashtra
Administrative Tribunal, Mumbai (MAT) on Original Application
No.535/2017 filed by Dr.Bhivapurkar for challenging his transfer order
dated 07.06.2017 from Mumbai to the GMCH at Aurangabad. Vide the
said judgment, the Original Application filed by Dr.Bhivapurkar was
dismissed thereby, upholding his transfer at Aurangabad.
11. Before we advert to the contents of the judgment dated
11.07.2018 delivered by the learned MAT, we need to make observations
as regards the bio-metric attendance mandated by the Indian Medical
Council. In paragraphs 2 and 3 of our order dated 06.07.2021, we had
noted as under :-
"2. The petitioner in person has tendered a decision by the
Indian Medical Council, Board of Governors dated
19.05.2020 which is in continuation of an earlier
communication to all the Deans, Principals of Medical
Colleges in India, dated 13.09.2019, to indicate that it
was mandatory for all Medical Colleges/ Institutions to
implement "Online Faculty Attendance Monitoring
System" (OFAMOS). These 2 documents are taken on
record and are collectively marked as Exhibit X-1 for
identification.
3. The learned AGP has placed before us a Government
Resolution dated 23.06.2016 which mandates
implementation of "Aadhar Enabled Bio-metric
Attendance System" (AEBAS) in all Government Health
Institutions in Maharashtra. The said Government
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Resolution is marked as Exhibit X-2 for identification."
12. Today, the learned AGP has stated, on instructions, that the
OFAMOS was not implemented in the GMCH at Aurangabad as most of
the bio-metric machines supplied by the MCI were defective. A letter
dated 21.05.2020 is cited before us, which is addressed by the Dean,
GMCH, Aurangabad to Dr.Reena Nayyar, In-charge Secretary, MCI, New
Delhi, which is taken on record and marked as "X-3" for identification. The
learned AGP submits that the said communication would evidence the
grievance voiced by the Dean as regards the defective 14 bio-metric
machines and 05 machines, which were yet to be installed. On
instructions, he candidly submits that neither was any response received
from the Secretary, MCI, nor did the Dean thereafter, pursue the matter.
13. We have carefully perused the records shown to us by the
learned AGP, which are as follows :-
(a) Attendance Register No.1 (Class 1 Class 2). From 2016 upto
June, 2021.
(b) Attendance Register of College Council meetings. From
19.07.2016 to 04.12.2018.
(c) Attendance Register of College Council meetings. From
01.01.2019 to 01.01.2020.
(d) CVTS OT Procedure Book, 2019.
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14. From perusal of these records, we noticed the following
aspects :-
(a) Insofar as the surgeries performed by Dr.Bhivapurkar in
between 19.04.2018 till 03.12.2019 are concerned, he has performed only
08 surgeries between 02.01.2019 till 03.12.2019.
(b) Insofar as 62 meetings of the College Council that were held
in between 24.05.2018 to 22.06.2021, Dr.Bhivapurkar attended only one
meeting on 22.06.2021 and rest of the meetings were attended by a
person by name Smt.Suchita Joshi, who was the OSD of the said
Department.
(c) It cannot be ignored that during this entire period,
Dr.Bhivapurkar was shown to be present in the GMCH, Aurangabad (going
by the physical attendance records), though only 8 surgeries were
performed on the dates mentioned above.
(d) The manual attendance register indicates that Dr.Bhivapurkar
joined on 19.04.2018, but did not sign the attendance register for that
month.
(e) The manual attendance register reflects the following facts:-
a. He joined on 19th of April But did not sign attendance register of the said
2018 month.
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b. May 2018 Shows Dr. More was on leave on 9, 10, 11 &
28, but he put his signatures.
c. Till October 2018 except No holiday columns were shown in the register,
single holiday in June 2018 however, Dr.Bhivapurkar put signatures on
Sunday and other holidays. Dr. Bhivapurkar
signed even on 15th August, 2018.
d. October 2018 Signed even on Sunday.
e. January 2019 4th and 26th day left blank.
f. February 2019 onwards Signed on all days of month.
g. June and July 2019 He signed, but then scored it entirely.
h. August to September 2019 Some corrections are made applying whitener.
i. July 2020 Tried to sign on 19th the Sunday.
j. August 2020 to April 2021 Bears his sole name and signatures.
(f) It is, therefore, apparent that the attendance register raises a
serious doubt about it's genuineness. The fact that Dr.Bhivapurkar
appears to have signed on all days even in the months when he was on
leave and later on noticing the mistake has scored out the attendance,
makes things more serious.
15. Referring to the judgment dated 11.07.2018 delivered by the
learned MAT would be a fruitful exercise. Following factors came up
before the learned MAT :-
(a) Dr.Bhivapurkar, as an applicant before the learned MAT, was
said to have been posted as Professor at GMCH, Aurangabad vide the
Government order dated 15.09.2014 on the recommendation letter of the
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Maharashtra Public Service Commission (MPSC) dated 28.05.2014. He
was relieved from the J.J. Medical College, Mumbai on 09.10.2014
(Afternoon) to join the GMCH, Aurangabad, but he never joined the post
and remained absence from 10.10.2014 to 07.11.2014 (Before noon).
(b) From 09.10.2014 to 07.11.2014, when Dr.Bhivapurkar did
not report for duties at Aurangabad, he succeeded in getting this period
sanctioned as extraordinary leave.
(c) Dr.Bhivapurkar was relieved from Mumbai on 09.06.2017 and
the record at GMCH, Aurangabad indicates that he purportedly reported
on 19.04.2018 and did not sign the register in that month.
16. In view of the above, the petitioner contends that the case of
Dr.Bhivapurkar may appear to be a solitary case before this Court.
However, similar such cases in the medical department in the State of
Maharashtra cannot be ruled out. Hence, he prays for a judicial enquiry
into this matter.
17. Insofar as the bio-metric attendance is concerned, the
Government Resolution dated 23.06.2016 issued by the Government of
Maharashtra, Public Health Department (Exhibit-X-2) before us, indicates
the purpose for which the bio-metric attendance Aadhar Enabled Bio-
metric Attendance System (AEBAS) was made compulsory in paragraph 3
of the Government Resolution which reads as under :-
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"3. In addition, Hon'ble Chief Minister, Government of
Maharashtra (GoM), has directed Public Health
Department vide its letter dated 25th February, 2016, to
review Biometric system in all the public health care
facilities, so that the Aadhaar of the staff and salary can
be linked. The letter advises, to replicate the experience
of Government of India wherein Hon. Prime Minister has
effectively used the biometric system with Aadhaar for
increasing the efficiency and accountability in the
functioning of officers. In this regard Govt. Resolution,
Govt. Addendum and Govt. Circular mentioned at Ref. 1
to 3, has been issued."
18. In the resolution at page 3, clause 3 mandates the concerned
employee to register himself and the responsibility of entering correct
information on the portal was with such personnel. The learned AGP
submits, on instructions from the Dean, GMCH, Aurangabad, that
Dr.Bhivapurkar did not get himself registered on the central portal and
never recorded his attendance through AEBAS. This conduct of
Dr.Bhivapurkar further strengthens the suspicion expressed by the
petitioner that on the one hand, he avoided AEBAS and on the other hand,
he has hurriedly marked his presence in the attendance register after
noticing that his issue is being taken up in this PIL, which further indicates
that he was relying on the physical attendance register so as to manipulate
his attendance. In his hurriedness in signing for all months for almost
three years after purportedly joining at Aurangabad, he has also marked
his attendance in the months in which he was on leave and even on
Sundays and national holidays.
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19. We make it clear that we have not formed any opinion about
whether, Dr.Bhivapurkar has committed any misconduct or not since it is
not within our jurisdiction to draw such conclusion. It is based on the
material before us and as this serious issue has been raised by the
petitioner in this PIL, that we deem it appropriate to direct the appropriate
authority to initiate a departmental enquiry in the light of the allegations
made against Dr.Bhivapurkar and the material that we have noticed as
reproduced above. The Dean, GMCH, Aurangabad, present in the Court,
informs the learned AGP to state that it would be the Director of Medical
Education, State of Maharashtra, who would be the competent authority
to initiate the disciplinary proceedings against Dr.Bhivapurkar.
20. We, therefore, direct the Director of Medical Education,
Maharashtra State, to initiate such disciplinary proceedings so as to
investigate as to whether, the allegations against Dr.Bhivapurkar could
turn out to be true and in the event of the said allegations being true,
appropriate action would then have to be initiated by the Director of
Medical Education strictly in accordance with the service rules applicable.
21. We direct the learned Registrar (Judicial) of this Court as well
as the Dean, GMCH, Aurangabad to place a copy of this order before
Dr.Dilip Mhaiskar, in-charge Director of Medical Education, State of
Maharashtra, within one week so as to enable the said authority to follow
the due process of law and initiate disciplinary proceedings with reference
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to the attendance issue of Dr.Bhivapurkar.
22. We expect the learned AGP to place a compliance report of
our directions, on the next date.
23. We also direct the learned Registrar (Judicial) of this Court to
draw photostat copies of the original documents that have been supplied
to us as noted above and preserve them in a sealed envelope in his
custody and thereafter, return the original documents to the learned AGP
under due acknowledgment.
24. Stand over to 20.08.2021 at 02:30 PM.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
