Lt. Col. (Dr.) S.C. Dash vs Uoi & Ors.
2009 Latest Caselaw 2819 Del

                HIGH COURT OF DELHI: NEW DELHI

                         W.P. (C) No. 6828/2009

                                         Date of Decision: July 24, 2009

Lt. Col. (Dr.) S.C. Dash, YSM, VSM           ...     Petitioner
                            Through: Mr. Kamal Mehta, Mr. Brijesh
                            Oberoi & Ms.Lakhshana Oberoi, Advocates.

                            Versus

UOI AND ORS.                                .... Respondents
                            Through: Ms. Jyoti Singh, Advocate
CORAM:
Hon'ble Mr. Justice B.N. Chaturvedi
Hon'ble Mr. Justice S.L. Bhayana

1.    Whether reporters of local papers may be allowed
      to see the judgment?                                     Yes
2.    To be referred to the Reporter or not?                   Yes
3.    Whether the judgment should be reported in the digest or not?
                                                               Yes
S.L. BHAYANA, J.

The present writ petition has been filed by the Petitioner under

Article 226 of the Constitution of India, for appropriate writ, order or

direction for quashing the order dated 15th December 2008 as illegal,

arbitrary and malafide, and for directing the Respondents to grant the

Petitioner permission to join the fellowship programme which is the

subject matter of this writ petition.

2. The prefatory facts building up the factual edifice would be

essential. The Petitioner is Lieutenant Colonel in the Armed Medical

Corps. The Petitioner completed his M.B.B.S. and joined the Armed

Medical Corps (AMC) in the year 1986. The Petitioner claims that he

has been serving AMC for 22 years with utmost dedication, devotion

and missionary zeal and has received various commendations and

awards from time to time for his excellence.

pg. 1 of 15

3. The Petitioner completed post graduation being masters of

Surgery (General Surgery) from Armed Forces Medical College, Pune.

Thereafter, in 2001, the Petitioner cleared the super-specialty entrance

examination of All India institute of Medical Sciences (AIIMS) and on

that basis he was selected to do the MCh Urology Course. While doing

this MCh Course at AIIMS, which is of three and a half years duration

course, the Petitioner remained attached with a local Army hospital on

active duty for one and a half years. Two years study leave granted to

him was extended to three and a half years. The Petitioner during his

training at AIIMS was also trained in laparoscopic surgery and various

branches of urologic surgery and he also learnt about many latest

developments in this field during his training. Hence he thought of

applying for advanced laparoscopic and robotic surgery training with a

view to keep abreast with the latest developments in the field of

urology, and for starting the same in the Army. For this purpose, in

January 2004, the Petitioner prepared a research project and submitted

it along with an application addressed to the commandant, Army

Hospital (Research & Referral). However, this proposal was not agreed

to by the Army Headquarters.

4. However, in January 2004 itself, the Petitioner came across an

advertisement from the Department of Biotechnology, under the

Ministry of Science and Technology, Government of India for

"Biotechnology Overseas Associateship Award 2003-2004" for

conducting advance research or undergoing specialized research

training in overseas research institutions/laboratories in the priority

pg. 2 of 15 area of biotechnology. The Petitioner applied for the said associateship

along with a certificate given by Dr. Narmada P.Gupta, a well- known

authority in the specialized field of urology and by a statement from the

Army through the Dean Academics, Army Hospital, Delhi Cantonment

stating that if the Petitioner is selected he shall be granted deputation

leave for availing the associateship.

5. The Department of Biotechnology informed the Petitioner vide

letter dated 24.5.2004 that he has been selected for the "Long Term

Associateship Award" for a period of one year. The Petitioner was

required to join the Cleveland Clinic and Vattikutti Urology Institute

and Tulane University, Los Angles, USA and was accordingly asked to

send his acceptance with the following documents:

(i) The service bond to be executed by the candidate as per the prescribed Performa

(ii) No Objection from the cadre controlling authority/ parent organization

(iii) The deputation order from the parent organization/institution for availing the Associateship by the candidate.

Pursuant to this the Petitioner applied for No Objection Certificate

(NOC) from the Army Hospital (R&R), Delhi Cant. His application was,

however, not accepted by the Commandant of the Army hospital. As

the Petitioner had to submit the documents within a month, he sought

personal audience/request to reconsider the case by letter dated

31.5.2004, which was also rejected vide letter dated 23.6.2004. In

September 2004, the Petitioner again requested his department for

giving NOC and leave, which was summarily rejected. Since the time

period in which the Petitioner was required to submit the documents

pg. 3 of 15 had expired, he applied the Department of Biotechnology to carry

forward the approval of associateship to the year 2005-06. The same

was granted to him by vide letter dated 28.12.2004.

6. In August 2005, the Petitioner again made an application to

Respondents for grant of NOC and the same was again rejected by an

army signal/telegram in October 2005. In December 2005 the

Petitioner made another representation before Respondent No.3,

Director- General, Armed Forces Medical Services (hereinafter

referred to as DGAFMS) for considering his application for leave.

Simultaneously, the Petitioner‟s associateship was once again

extended and carried forward for the year 2006-07 vide letter dated

8.2.2006.

7. Thereafter, the Petitioner approached this Court by filing WP (C)

No.12814/2006) in August 2006 for directing the Respondent, to grant

leave to the Petitioner, wherein the Division Bench of this Court passed

a judgment dated 25.9.2008, setting aside the Respondent‟s order vide

which the Petitioner‟s application was rejected and directed the

Respondent to reconsider the case of the Petitioner within a month on

merits, taking into consideration all the factors including the ones

which were pointed out by the court in the judgment.

8. In view of the above directions issued in WP (C) No.12814/2006,

the Respondents sought three months‟ extension for reconsideration of

the Petitioner‟s application by moving an application before this Court

in October 2008. The Respondents were given one month‟s time by this

pg. 4 of 15 Court to comply with the judgment dated 25.9.2008. However, even

after the extended time had elapsed, there was no communication from

the Respondents side, the Petitioner filed a contempt petition alleging

that despite specific directions of the Division Bench dated 25.9.2008,

the Respondents have failed to reconsider the case of the Petitioner.

However in the meanwhile, the Respondents reconsidered the

Petitioner‟s case on merits and rejected it by a speaking order dated

15th December 2008. Consequently, the contempt petition was

disposed of but the Petitioner was given the liberty to challenge the

Respondent‟s order dated 15th December 2008 or to initiate fresh

proceedings. Hence the Petitioner has filed the present writ petition.

9. On the strength of above-mentioned facts, learned counsel for

the Petitioner has argued that the refusal of grant of leave by the

Respondents is illegal, wrongful, malafide, unreasonable and arbitrary,

being ex facie influenced by totally irrelevant and extraneous

considerations, despite the specific directions of the Division bench of

this court. The learned counsel for the Petitioner has alleged that the

impugned decision dated 15-12-2008 is just a cut and paste exercise

done arbitrarily with total non-application of mind, upon considerations

which have already been rejected by the Division Bench of this Court.

10. Learned counsel has submitted that the Petitioner being a

medical professional has a fundamental right as well as duty to upgrade

his skills and the organization cannot come in the way of Petitioner‟s

strive for excellence and advancement in his field, particularly when it

is in the larger national interest.

pg. 5 of 15

11. Learned counsel has contended that the Petitioner is the most

deserving and hard working candidate and he has been selected out of

500 candidates for the said associateship and the Respondents have no

jurisdiction to comment upon the qualification of the Petitioner to

undergo the training and have only to perform a ministerial act of

granting the leave to the Petitioner.

12. Learned counsel has further submitted that the advanced

laparoscopy and robot assisted surgery would be of immense benefit to

the Army not only to the troops but also their families at far flung areas.

On the issue of utility in the Armed Forces, learned counsel informed

the Court that the armed forces have a dedicated satellite links by

which all the apex and zonal army hospitals can be easily linked and

expertise can be well utilized.

13. The Petitioner has contended that he has availed 5 ½ years of

training opportunities (2 years of MS course and 3 ½ years of the MCh

course) about which there is nothing exceptional as all super specialists

of the AFMS undergoing DM/MCh are given this much period of study

leave and attachment period as per the Training and Grading and

Classification Rules (TGC rules) dated 28-3-2005.

14. The Petitioner has further alleged that the Respondent‟s

argument of shortage of surgeons is a red-herring argument, made

only to digress the issue. The Petitioner alleged that the Respondents

have abused the power conferred upon them and that while he was

denied permission on the ground of shortage of surgeons, other

pg. 6 of 15 surgeons have been sent on United Nations missions, foreign

deputations and advanced trainings both in and out of India. Hence the

Petitioner has been grossly discriminated against.

15. Learned counsel for the Petitioner further alleges that the

Respondents have taken into consideration totally irrelevant

circumstances in rejecting the Petitioner‟s application and thus their

decision is hit by the „Wednesbury Principles of Reasonableness‟.

16. The Petitioner has submitted that Respondent‟s approach that

robotic surgery is not required by the Army and the same is a

regressive one. He further submitted that AFMS has already procured a

robot for Joint Replacement Centre of AH(R&R) in the year 2003 and that

basic laparoscopic urology surgery is being conducted at Army

Hospital and in various urology centers of the armed forces. The

Petitioner claims to have performed such surgeries at the Command

Hospital (WC), Chandimandir and Command hospital (NC).

17. Per contra, the learned counsel for the Respondents has refuted

all the above contentions of the Petitioner. The substratum of the

Respondents‟ case is that the decision not to grant NOC, taken by

Respondent No.3, i.e., DGAFMS is a reasoned one based on the holistic

requirement of the AFMS and on organizational needs and constraints.

Learned counsel has submitted that the AFMS are mandated to provide

combat medical support to the Armed forces of the Union. It has been

submitted by the learned counsel that an individual while fully

competent to strive for excellence, must necessarily be guided by the

pg. 7 of 15 logic of organizational constraints and goals as invested to the

organization by its mandate. The armed forces members have to suffer

hardships including privation of aspirations to meet the national

commitments of the army. Unlike the AFMS, the AIIMS is a premier

institute for fostering research and training. Thus, the Petitioner who is

a medical officer with the army, trained by the army as a surgeon and

urologist, cannot compare himself with the senior resident doctors of

the AIIMS.

18. Secondly, the learned counsel has refuted the Petitioner‟s

contention that there has been mechanical exercise by mindless

application and has averred that the competent authorities have

persistently viewed the Petitioner‟s application with open mind and

consideration based on holistic appraisal. In response to the

Petitioner‟s contention that Respondents have only a ministerial act to

perform, the learned counsel for the Respondent has averred that the

DGAFMS has the jurisdiction to decide any training in respect of the

Petitioner. On this issue the Petitioner has applied four times and all

four times his matter has been considered on file by the competent

authority and rejected.

19. In reply to the petitioner‟s submissions learned counsel for the

Respondents submitted that by forwarding his application without

explicit approval of the Respondents the Petitioner has committed a

violation of the existing procedure and as such he is amenable to

administrative proceedings against him. It is Respondent no. 3, i.e.

DGAFMS and not the OIC University Cell and Dean Academics Army pg. 8 of 15 Hospital (R&R) who is the approving authority for further procedures

involved in obtaining government sanction for the deputation of the

Petitioner. The Petitioner was never permitted by Respondent no. 3 to

apply for the associateship.

Respondent no. 3 has rejected the Petitioner‟s claims in public interest

and in the interest of the army manpower and their families. It is

rejected by them submitting that neither there is any equipment

available nor there is any plan to procure them in the near future even

in the Army Hospital (R&R), let alone the far flung areas. The learned

counsel has refuted the contention of the Petitioner that the army has

dedicated satellite links which could be used to link apex and zonal

hospitals of the armed forces by explaining that the ISRO tele-link is

only a planned tele-link for limited tele-medicine and cannot meet the

technical standards required for robotic tele-surgery.

20. Learned counsel for the respondents has further submitted that the

army has to plan their health care delivery to the clientele population

that is the troops and their families and to provide basic specialties and

to redress deficiencies in specialized fields and if the Petitioner is

deputed for the training in robotic surgery, it will accentuate the

already existing critical deficiency in field of surgery.

21. Learned counsel has further explained that the requirements of

the AFMS are being undertaken by teams of technical personnel from

time to time. The clientele population suffers a low incidence of less

than 4% from diseases that would benefit from these implements. Thus,

pg. 9 of 15 this telerobotic technology would not exercise the requirements of the

AFMS. The Prostectomy endorsed by the manufacturer of the Da Vinci

Robot in field of robotic urology is applicable for localized prostate

cancer which has an incidence of less than 4% per annum out of total of

approximately 200 cases of prostate cancer as reported in the various

centers of the Armed Forces. Thus the number of cases that would

benefit from robot would be too meager to invest huge sums of money

that would be involved.

22. Learned counsel has further explained that prostate cancer is an

ailment that affects the male population in the 6th decade of life and

beyond. Thus, only the retired servicemen would fit in this group and

this category is being looked after by the Ex-servicemen contributory

health scheme (ECHS) and not the AFMS. thus robotic urology is not a

priority of AFMS.

23. Learned counsel further submitted that the training desired by the

Petitioner will be of no use to the organization unless proper

infrastructure is planned for the same, since the techniques of

advanced laparoscopy and robotic surgery are nascent ones and have

been recently introduced in the Armed Forces and the Armed Forces

have no plan to acquire it at this stage. These are very costly

technologies. Moreover, neither robotic surgery not advanced

laparoscopy are in the roadmap of AFMS.

24. Refuting the petitioner‟s allegation regarding amendment of TGC

rules as colorable exercise, the learned counsel for the Respondents

pg. 10 of 15 has submitted that the TGC Rules were amended to bring it in

conformity with the requirement of the environment, after a study was

undertaken headed by the then DGMS (Navy) in view of the change in

age for undergoing training in sub-specialties in medical institutions

across the world.

25. Learned counsel for the Respondent has submitted that the

department of urology at Army hospital (R&R) runs a programme for

urologists from the services to acquaint themselves with advances in

laparoscopy from time to time, and the same has been offered to the

Petitioner as well. Awards and medals received by the Petitioner have

been given to him in recognition of his service to the organization and

have got no bearing with the training he has been asking for. These do

not entitle the Petitioner to ask for leave/ deputation.

26. Learned counsel has explained due to the peculiar needs of the

clientele population that a joint replacement centre has been set up in

Army hospital (R&R) as the nature of military operation and rigorous

training the joints of military personnel are more prone to injuries. To

say that the implements procured for the joint replacement centre can

also be used in urology would amount to misleading the court.

Government authorizes only 2 years of study leave to the AFMS officers.

However, to facilitate the Petitioner to complete his super specialty

course he was granted additional one and a half years attachment at the

Army Hospital (R&R) Delhi Cantt. to work at AIIMS, New Delhi. The

Petitioner has already been away from the organization for three and a

pg. 11 of 15 half years. Thus, now, the Petitioner should serve the organization in the

field in which he was trained.

27. Learned counsel has vehemently refuted the Petitioner‟s

allegations of nepotism and favoritism and has submitted that it has

been held by this court in case WP(C) 12814/2006 filed by the

Petitioner, that the Petitioner could not prove any case of nepotism or

favouritism or malafide on part of the authorities. The Respondents

have explained that the officers named by the Petitioner have been sent

on training/ programme only when approved by the competent

authority, when there was no deficiency in their respective fields.

28. We have considered the submissions made by learned counsel

for the parties and pursued the record. The question that has come up

before this court is that whether the Respondents have acted arbitrarily

and illegally in rejecting the Petitioner‟s application and whether the

Respondents should be directed to grant the Petitioner permission to

join the fellowship programme.

29. We have gone through the impugned order dated 15-12-2008,

whereby Respondent No.3 has given the following reasons for rejecting

the grant of NOC to the Petitioner:

1. Functional deficiency of 40.89% as regards availability of

surgeons in the AFMS.

2. The Petitioner has already undergone training for a period

of 3 ½ years in allied discipline of urology and the organization

cannot spare him for further time especially for any training

pg. 12 of 15 which does not meet organizational requirements. This is

coupled with the fact that the Petitioner took an undertaking at

the time of applying for grant of study leave „to be available at all

times to undertake the duties of a General Surgeon

notwithstanding any training undertaken subsequently.

3. The AFMS clientele suffer in very small percentage of less

than 0.4% as per the AFMS records from diseases which would

benefit from robotic urology.

4. Though advanced laparoscopy in the field of robotic

urology is performed at army hospital (R&R) the report by a

collegiums of urologists of the AFMS has opined that " at present

AFMS does not have any requirement for robotic surgery in

urology as the number of cases meriting such surgery is very

limited. "and that " long term training in this field is not

recommended".

30. We do not find any arbitrariness, illegality or unreasonableness

in this order. The Respondents have reached the above decision after

examining all the relevant aspects and the requirements and mandate

of the AFMS. Also, the Respondents have duly complied with the

directions of the judgment of division bench of this court.

31. The action of the Respondents is completely in conformity with

law and is not required to be interfered by the court. The records do

not reflect any arbitrariness or breach of the Wednesbury principles of

reasonableness. The Wednesbury principles of reasonableness say

that discretion must be exercised reasonably. As per the Wednesbury

pg. 13 of 15 principle, the exceptional circumstances for judicial review in

administrative matters are illegality, irrationality and procedural

impropriety. Irrelevant matters must be excluded from consideration

and relevant material ought to be considered. As per Lord Diplock in

CCHQ case in 1985, irrationality means a decision which is so

outrageous in its defiance or of logic or of accepted moral standards

that no sensible person who had applied his mind to the question to be

decided could have arrived at it. Modern trend points towards judicial

restraint in administrative actions because authorities are specialist in

matters relating to administration and therefore ordinarily such matters

should be decided by administrative authorities for a decision not to be

hit by Wednesbury principle, it is essential that there should be no

infirmity in decision making process. Petitioner cannot insist his right in

public interest decision. It is specifically pleaded in the case of

respondent that there is a shortage of such specialized medical officers

and therefore the request of the petitioner cannot by accepted at this

stage, in view of exigencies of service and in public interest.

32. It is relevant to take note of Union of India and Ors. v. Lt. Gen.

Rajendra Singh Kadyan and Anr., (2000) 6 SCC 698, wherein it was held

"it is a well-known principle of administrative law that when relevant

considerations have been taken note of and irrelevant aspects have

been eschewed from consideration and that no relevant aspect has

been ignored and the administrative decisions have nexus with the

facts on record, the same cannot be attacked on merits. Judicial review

is permissible only to the extent of finding whether the process in

pg. 14 of 15 reaching decision has been observed correctly and not the decision as

such."

In exercise of judicial review we are concerned with the

decision-making process and not the merit of the decision unless it is

shown that the decision of the Respondent is irrational or is perverse or

contrary to some law, the court cannot interfere with such a decision.

33. While exercising powers under Article 226 of the Constitution of

India, we would interfere with any administrative decision only if it

appears to us to be unconscionable or perverse or irrational in the

Wednesbury mould. In the light of the contentions put forward by the

respective sides and after a careful perusal of the entire material

placed before us, we do not find any infirmity in the Respondents action

in this case. Resultantly, we are not inclined to accept this petition.

34. In the net result, the petition is without any merit and the same is

therefore dismissed.

35. No costs.

S.L.BHAYANA, J.

B.N. CHATURVEDI, J.

July 24, 2009

pg. 15 of 15