Dr. Madhu Jain vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 919 Del

JUDGMENT

Vikramajit Sen, J.

1. The grievance which the Petitioner has ventilated in this writ petition is against the Office Order dated 9.11.2004 whereby Dr. J.N. Banvalikar has been "assigned the charge of post of Director (Hospital Administration) in his own pay scale without any extra remuneration, in addition to his duties till further orders". This is consequent upon the superannuation of Dr. Sudhakar Patnaik. The Petitioner's contention is that in the final Seniority List of Specialists Grade-I effective from 27.12.199 while Dr. S. Patnaik was placed at Serial No. 5 she was next at Serial No.6. In that List Dr. (Mrs.) Madhur Kudesia is at Serial No.10. It is further submitted that in the past she has often been assigned the charge of Director (Hospital Administration whenever the exigencies of service so demanded.

2. It appears that a dispute pertaining to Seniority in the said Department had been raised by Dr. Madhur Kudesia, Medical Superintendent (Hospital Administration). This is clear from a perusal of paragraphs 7 to 9 of the Counter Affidavit field on behalf of Respondents 1 and 2 :-

7. That reference to the contents of Para 7 it is submitted that a number of doctors submitted representations for assignment to the charge of Director Hospital Administration after it fall vacant on 01.11.2004 after the retirement of Dr. Sudhakar Patnaik on 31.10.2004 The following doctors submitted their representation for the said post:-

S.No. Name of the Medical Officer

1. Dr. Madhu Jain

2. Dr. Pratima Sharda

3. Dr. Rohini Dhillon

4. Dr. R.C. Panda

It is also submitted that Dr. Madhur Kudesia, Medical Superintendent, Hospital Administration has also disputed the seniority List and the issue is being settled in consultation with UPSC.

8. That the representation of the Petitioner and other doctors were considered while assigning the charge of the post of Director Hospital Administration to respondent No.3.

9. That the contents of Para 9 are wrong and denied. It is submitted that there is a dispute in a seniority list of Medical Officers in the pay scale of Rs.18,400-22,400 and Rs.22,400-24,500/-. Instead of giving charge of the post of Director Hospital Administration to the senior most doctors, the same has been given to respondent No.3 in addition to his own duties till a final decision with regard to the seniority list of these officers is taken, as per rules.

3. A Counter Affidavit has also been filed by Respondent No.3 on whose behalf learned Senior Counsel, Mr. Sandeep Sethi has submitted that there is no irregularity in his impugned appointment. It is sought to be contended that bifurcation had been carried out in 2004, one unit being the public health department, the other being the administration of Hospitals. Contrary to any submission made by the MCD, Respondent No.3 has asseverated that after the retirement of Dr. Sudhakar Patnaik, the MCD had considered the Doctors on the basis of merits and had thereupon assigned the charge of post of Director, Hospital Administration to Respondent No.3. It has further been pleaded that "it is not open for this Court to weigh merits of the candidates on upset the decision of the Respondent-MCD". It is also asserted that Respondent No.3 is an MBA (Healthcare Administration) and is, therefore ably suited for the post of Director, Hospital Administration.

4. I do not entertain any doubt that it is for the MCD to state the reasons for assigning the duties of Director, Hospital Administration and not any of the incumbents. Furthermore, the order must speak for itself; nothing more can be added to it in order to justify or sustain a decision. This principle crystallized by the Privy Council has been followed by the Hon'ble Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., AIR 1978 Supreme Court 851, paragraph 8 of which reads as follows:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 S16) (at p. 18):

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public order made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".

Orders are not like old wine becoming better as they grow older.

A Caveat".

This principle was approved and applied in Chandra Singh v. State of Rajasthan, 2003 6 SCC 545, in which the pronouncement was to the effect that "it is fairly well settled that the legality or otherwise of an order passed by a statutory authority just be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit".

5. A perusal of the order makes it manifestly clear that the reasons which Respondent No.3 has arrogated in his own favor do not find mention at all in the impugned order. The case of the MCD is that since the dispute so far as the seniority of the Petitioner and Dr. Madhur Kudesia had arisen, it was expedient to appoint a third party. Reliance has also been placed on the observations of the Hon'ble Supreme Court in State of Haryana v. S.M. Sharma and others, 1993 Supp. (3) SCC 252, where it had been observed that "no one has right to ask for or stick to current duty charge". In that case, however, the current duty charge was in the first instance assigned to Mr. Sharma and thereafter withdrawn. He had filed the writ petition challenging the withdrawal. The observations of the Apex Court were made in that context and would not have direct application to the facts in the present case.

6. So far as the records of the MCD are concerned the Petitioner presently is the senior-most in the Department, senior to both Dr. Madhur Kudesia as well as Dr. J.N. Banvalikar. The Petitioner has already officiated in the post of Director, Hospital Administration without any blemish. The quarrel pertaining to seniority is not between the Petitioner and Dr. J.N. Banvalikar who is even junior to Dr. Madhur Kudesia. There is no order in existence in respect of the service controversy between the Petitioner and Dr. Madhur Kudesia. In any event it is not Dr. Madhur Kudesia who has been assigned the charge of Director, Hospital Administration but a person junior to both of them. Although the failure to specifically mention the reasons for the appointment of Dr. J.N. Banvalikar in the impugned order itself is sufficient to reject the grounds urged by Respondent No.3, these questions would properly arise if a regular appointment or promotion was being made for the post of Director, Hospital Administration. Where only an officiation or ad hoc appointment is in question there is no justification to bye-pass the senior most person especially where she has already served in that post without complaint or blemish. Arbitrary actions of this nature lead not only to heartburning within the administration, but also directly breeds nepotism.

7. In this analysis the petition is allowed and the impugned order whereby Dr. J.N. Banvalikar, Respondent No.3 has been assigned the charge of post of Director, Hospital Administration is quashed. The Respondents shall forthwith reconsider the matter and take a decision within fifteen days from today on the parameters set out hereinabove.

8. Parties to bear their respective costs.