Vir Bala Manhas vs All India Institute Of Medical ...
2001 Latest Caselaw 1274 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. The petitioner is working as an Additional Professor in the Department of Anatomy of the All India Institute of Medical Sciences (hereinafter referred to as Institute). A post of Professor in the Department of Anatomy of the Institute fell vacant. The post of Professor in the Institute is a selection post to be filled up by open competition. The employees working in the Institute fulfillling the eligibility criteria as also outside candidates could apply for appointment as against the post of Professor. The post is filled up on competitive through interview and in the nature of fresh appointment and not as departmental promotion.

2. The institute published an advertisement somewhere in April, 1999 inviting applications for 12 posts of Professors, one of which was a post of Professor of Anatomy. The petitioner, as also respondent No. 3, submitted their applications for appointment to the aforesaid post of Professor of Anatomy. The Institute has a Standing Selection Committee consisting of amongst others two technical experts on the subject. So far the post of Professor of Anatomy is concerned, altogether four applications were received. The Screening Committee of the Institute scrutinised the applications in December, 1999 and recommended the names of three candidates, including the petitioner and respondent No. 3, to be called four interview. All the three candidates appeared in the interview and the Standing Selection Committee recommended the name of respondent No. 3 for being appointed as against the aforesaid post of Professor of Anatomy. The aforesaid recommendation of the Standing Selection Committee was unanimous and was made on 17.2.2000. The said recommendation was placed before the Governing Body, which is the appointing authority, in its meeting held on 19.2.2000. The Governing Body considered the papers placed before it and upon consideration of the same approved the recommendation of the Selection Committee in respect of said post of Professor of Anatomy. Pursuant to the aforesaid decision of the Governing Body accepting the recommendation and approving the name of respondent No. 3 as a selected candidate, letter of appointment was issued to respondent No. 3. However, on receipt of the aforesaid letter of appointment, respondent No. 3 submitted an application dt. 5.3.2000 seeking for extension of time for joining the said post. On consideration of the said application the competent authority allowed extension of time to the petitioner to join the said post of Professor of Anatomy. The respondent No. 3 joined the said post of Professor of Anatomy on 31.8.2000. Being aggrieved by the aforesaid action of the respondent/Institute in selecting respondent No. 3 superseding the claim of the petitioner and appointing him to the said post of Professor of Anatomy and also in allowing extension of time of joining beyond the period of six months, the present petition was filed seeking for a direction to the respondent/Institute to appoint the petitioner as Professor of Anatomy w.e.f. 21.2.2000 after setting aside the order dt. 21.2.2000 by which the respondent No. 3 was appointed to the said post and also for setting aside the order dt. 22.3.2000 extending the joining time beyond 21.3.2000.

3. Mr. Manhas, learned counsel appearing for the petitioner, submitted that the Selection Committee acted illegally and without jurisdiction in appointing the respondent No. 3 the post of Professor of Anatomy as the petitioner was far better candidate than respondent No. 3. It was submitted that the aforesaid selection was made by the Selection Committee ignoring the better claim of the petitioner because in view of bias of respondent No. 2, who is the Director of the Institute. Allegations have been made as against the conduct of respondent No. 2 in order to establish a plea of bias against him. it is alleged that respondent No. 2 was to retire on superannuation in 2001 and he was looking around for post-retirement re-settlement and in that view a nexus of mutual reciprocal interest has been created between respondent No. 2 and respondent No. 3, consequent to which respondent No. 3 has appointed respondent No. 2 as member of Academic Council of Gulf Medical College, which has brought about substantial benefits to respondent No. 2. In order to prove that respondent No. 2 had financial involvement with the aforesaid Gulf Medical College, a letter is placed on record indicating that the respondent No. 2 was invited to attend the academic council meeting, as a special invitee. It was also submitted that not only the respondent No. 3 was favored with the aforesaid appointment but he was also shown undue favor by extending the joining time beyond the stipulated period and, therefore, the appointment of respondent No. 3 to the aforesaid post should be quashed and the petitioner should be appointed to the said post as she was also a selected candidate.

4. Mr. Mukul Gupta, counsel appearing for the respondents, however, strongly denied and refuted the aforesaid allegations of bias and submitted that the Selection Committee after considering the cases of the candidates and after interviewing them selected only respondent No. 3 and the name of petitioner was never recommended by the Selection Committee. In support of the said contention the proceedings of the said Selection Committee were also placed before me for my perusal. it was also submitted that the C.C.CS. Joining Time Rules, on which the petitioner relies upon in support of his contention, are not applicable to the facts and circumstances of the present case. It was also submitted that on the request of respondent No. 3, the joining time was extended by the competent authority keeping in view the fact that the said respondent No. 3 was on long term assignment abroad with the prior approval of the President of the Institute and Ministry of External Affairs. it was submitted that the said extension of joining time was given to respondent No. 3 in accordance with rules and powers vested in the competent authority in that regard.

5. In the light of the aforesaid submission of the counsel appearing for the parties, I have carefully perused all the records placed before me and also the connected provisions of the regulations and C.C.S. Joining Time Rules relied upon by the counsel appearing for the parties.

6. Section 29 of the All India Institute of Medical Sciences Act empowers the Institute to make regulations consistent with the Act and the Rules with the previous approval of the Central Govt. The said regulation is to be notified in the official Gazette. In exercise of the aforesaid powers conferred under Section 29 of the Act, the Institute has made a set of regulations called the "All India Institute of Medical Sciences Regulations hereinafter called the Regulations in short.

7. Counsel appearing for the petitioner relies upon Regulation 35 of All India Institute of Medical Sciences Regulations, 1958. The said regulations made in 1958 were, however, repealed and stood superseded by the set of regulations called "All India Institute of Medical Sciences Regulations, 1999. Regulation 35 thereof, on which counsel appearing for the petitioner places reliance reads as follows:-

"35. Other conditions of service:- In respect of matters not provided for in these regulations, the rules as applicable to the Central Government servants regarding the general condition of service, pay, allowances including traveling and daily allowances, leave salary, joining time, foreign service terms and orders and decisions issued in this regard by the Central Government from time to time shall apply to the employees of the Institute."

8. Relying on the said provisions, counsel appearing for the petitioner submitted that rules with regard to joining time and the decision issued in that regard by the Central Government from time to time would, therefore, be applicable to the employees of the Institute by virtue of the aforesaid provisions of Regulation 35. Counsel also submitted that by virtue of the aforesaid provision the provisions of the C.C.S. Joining Time Rules, 1979 would be applicable to the Institute. Counsel also relied upon the Government of India's Office Memoranda dt. 6.6.1978 and 9.8.95, which deal with the provisions regarding seniority in cases of delay in reporting for duty after selection. Counsel specifically relied upon the following provisions thereof:-

4. Seniority in cases of delay in reporting for duty after selection - Relative seniority of Direct recruits appointed on the recommendations of the UPSC or any other authority is determined by the order of merit in which they are selected for such appointment, the persons appointed as a result of an earlier selection being placed above those appointed as a result of the subsequent selection.

ii) If, however, within the specified period, a request is received from the candidate for extension of time, it may be considered by the Ministries/Departments but extension beyond three months should not be granted liberally and it may be granted only as an exception where facts and circumstances so warrant and in any case only up to a maximum of six months from the date of issue of the original offer of appointment. An offer of appointment would lapse automatically after the expiry of six months from the date of issue of the original offer of appointment. The candidates who join within the above period of six months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority.

iii) If, even after the extension(s), if any, granted by the Ministry/Department, a candidate does not join with the stipulated time (which shall not exceed a period of six months), the order of appointment should lapse."

9. Pursuant to the aforesaid advertisement for filling up the post of Professor of Anatomy, three persons were called for interview. All the three candidates, including the respondent No. 3 and the petitioner, appeared before the Standing Selection Committee consisting of renowned persons including Doctors as also experts on the subject. The records placed before me clearly prove and establish that the said Standing Selection Committee recommended only the name of respondent No. 3 for being appointed as the Professor of Anatomy in the Institute. The aforesaid recommendation of the Selection Committee was approved by the Governing Body, which is the appointing authority.

10. So far the allegation of bias pleaded in the petition is concerned, I am constrained to hold that the said allegation is without any basis. The allegation of bias was sought to be sustained on the ground that respondent No. 2 was due to retire from service in the year 2001, but as of date the said respondent No. 2 has been given two years extension of service as a Director of the Institute by the competent authority. Besides, it is specifically stated that respondent No. 2 although was invited to a meeting of Academic Council of the Gulf Medical College, he did not attend the same. The allegation of bias must be proved by placing cogent and reliable evidence on record and the same cannot be sustained only on the basis of an invitation letter sent by the Gulf Medical College, which meeting was not attended by the respondent No. 2. It also transpires from the records that respondent No. 3, at the time of his selection, was working on a long terms assignment in the said Gulf Medical College with prior approval of the President, AIIMS & the Ministry of External Affairs. The respondent No. 2, therefore, has no connection at all with the aforesaid long term assignment of respondent No. 3, as the approval of the same was given by the President, AIIMS and Ministry of External Affairs. The allegation of bias therefore, has no merit.

11. The selection in the present case was also made by the Standing Selection Committee consisting of reputed persons and eminent doctors including experts on the subject. The bio-data and the service profiles of the petitioner as also of respondent No. 3 are also placed on record. A bare glance through the same would clearly establish that the respondent No. 3 was definitely a meritorious candidate. The said records also prove and establish that no finger could be raised as against the recommendation of the name of respondent No. 3. As the selection was made by the Standing Selection Committee consisting of reputed and eminent persons and experts on the subject, this court cannot sit over as an appellate authority over the said recommendations of the Selection Committee. The aforesaid recommendations of the Selection Committee were also approved by the Governing Body of the Institute and only after approval of the said recommendations, respondent No. 3 was appointed to the post of Professor of Anatomy. Therefore, the aforesaid selection and appointment of respondent No. 3 to the post of Professor of Anatomy in the Institute cannot be said to be illegal or invalid. Since the name of the petitioner was not at all recommended by the Standing Selection Committee, no direction could also be issued in this writ petition for appointing her to the said post, even if it is assumed that the aforesaid selection was bad in law. Therefore, the first relief as sought for by the petitioner cannot be granted under any circumstances.

12. Since the selection and appointment of respondent No. 3 is found to be legal and valid, the only question that remains to be considered is the fact of extension of joining time to the respondent No. 3 at his request. The contention of counsel appearing for the petitioner is that such extension of joining time could not have been given by the Institute, which is in violation of the procedure of C.C.S. Joining Time Rules as also the Office Memoranda issued by the Government of India. Rule-1 of the C.C.S. Joining Time Rules deals with the preliminary and it states that the aforesaid Rules would apply to transfers effected on/or after coming into force of the said Rules. In the present case, the appointment was made on the basis of an open competition and the post was a selection post and, therefore, these Rules, namely, the Central Civil Services (Joining Time), Rules 1979, have no application at all to the facts and circumstances of the present case.

13. So far the applicability of Office Memoranda dt. 6.6.78 and 9.8.95 are concerned, a perusal of the contents thereof would sho ;w that the same deal with the question of seniority in case of delay in reporting for duty after selection. The aforesaid procedure laid down therein is applicable both in cases of selection through interview and examinations. It is provided that in terms of the said procedure, when an offer of appointment is issued by different Ministries/Departments, it is necessary to clearly indicate that the offer would lapse if the candidates did not join within a specified period not exceeding one or two months. It is further provided that if, however, within the specified period a request is received from the candidate for extension of time, it may be considered by the Ministries/Departments but extension beyond three months should not be granted liberally and it may be granted only as an exception where facts and circumstances so warrant and in any case only up to a maximum of six months from the date of issue of the original offer of appointment. It is also provided that an offer of appointment would lapse automatically after the expiry of six months from the date of issue of the original offer of appointment and the candidates who join within the above period of six months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without depression of seniority. It is also provided that even after the extension(s), if any, granted by the Ministry/Department, a candidate does not join with the stipulated time which should not exceed a period of six months, the order of appointment should lapse. Clause (iv) thereof provides that an offer of appointment, which has lapsed, should not ordinarily be revived later, except in exceptional circumstances and on grounds of public interest.

14. In this connection, reference may also be made to Schedule-I of the regulations. Under the aforesaid schedule the extent and nature of powers and the authority, who could exercise such powers, have been prescribed. Clause-65 thereof gives full power to the Director of the Institute to extend joining time within a maximum period of thirty days. However, the President of the Institute has been given full power to extend joining time beyond thirty days. Therefore, the power is vested both on the Director as also the President of the Institute to extend the joining time for the stipulated period. The aforesaid schedule gives full power to the President of the Institute to extend the joining time beyond thirty days but without any restrictions on the upper limit. Exercising the aforesaid power, the competent authority, namely, the President of the Institute has extended the joining time to the respondent No. 3 and within the extended time of joining, respondent No. 3 had joined the said post of Professor of Anatomy. Since in the present case regulation envisages and lays down specific provision for extension of joining time by giving power to the President to extend joining time beyond one month the said provision governs the field and the same cannot be curtailed by any other circular. On the other hand, even assuming that the said circular is applicable to the facts of the case, the same provides for revival of appointment on special circumstances. Since respondent No. 3 was allowed to take up a foreign assignment with the approval of the President of the Institute and Ministry of External Affairs, the aforesaid joining time was extended in accordance with the powers vested in the competent authority. Therefore, in the present case, it could be said that exceptional circumstances and public interest exist. Besides, the joining time was extended by the President at the request of the respondent No. 3 and he joined the post within the extended period of joining time. Therefore, the respondent No. 3 was not responsible even if there was any lapse and therefore, he cannot be penalised. In view of the aforesaid position and situation the appointment and continuation of respondent No. 3 in the said post of Professor of Anatomy cannot be quashed.

15. However, it is found on record that even after the respondent No. 3 joined the post of Professor of Anatomy, he has been allowed to go on leave by the President, AIIMS for a further period of two years and accordingly, the respondent No. 3 as of date, is still on leave. In my considered opinion, the case of leave beyond a reasonable period of time should not be left to the discretion of President, AIIMS alone and such power of extension beyond a reasonable period should be vested with the Governing Body of the Institute or atleast the Governing Body should be required to take a decision for ratification or otherwise of the decision of the President. The same logic also applies to extension of joining time beyond a reasonable period. it is expected that the appropriate authority would consider the matter and do the needful. Considering all the pros and cons, I am of the considered opinion that the matter relating to grant of leave to respondent No. 3 for a period of two years should be placed before the Governing Body, being the appointing authority of respondent No. 3 for its consideration, decision and ratification for the need of the Institute is also to be kept in view as the Institute is, at present, deprived of the services of respondent No. 3 in the Institute.

16. In the facts and circumstances of the present case, I do not find any merit in the submissions of the counsel appearing for the petitioner and the same stand rejected. The writ petition stands dismissed but with the aforesaid observations and directions, which shall be complied with by the Institute immediately. There shall be no order as to costs.