Delhi High Court

Dr. Vinod Puri vs Union Of India & Others on 30 September, 2011

Author: A.K.Sikri

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P. (C) No.4955 of 2000

                                    Reserved on: 25th August, 2011
%                             Pronounced on: 30th September, 2011


      Dr. VINOD PURI                                . . . PETITIONER

                              Through:    Mr. G.D. Gupta, Sr. Advocate
                                          with Mr. Sanjeev Joshi,
                                          Advocate.

                               VERSUS

      UNION OF INDIA & OTHERS                     . . .RESPONDENTS

                              Through:    Mr. Sachin Datta, Advocate
                                          with Ms. Gayatri Verma,
                                          Advocate.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The petitioner was appointed as the Assistant Professor,

Neurology on ad hoc basis with effect from 25.1.1985 and

thereafter was appointed on regular basis to the said post

with effect from 14.8.1987 in pursuant to the selection

process undertaken by the respondents vide advertisement

dated 29.11.1986. Prior to that, the petitioner was

appointed to the said post on ad hoc basis on 25.1.1985, the

reason for giving appointment on ad hoc was given that the

petitioner was not fulfilling the requisite stipulations

contained in the Central Health Service Rules, 1982

(hereinafter referred to as „the Rules‟). The petitioner

approached the Central Administrative Tribunal („the

Tribunal‟ for brevity) for antedating his post of Assistant

Professor from 25.1.1985 on the ground that for want of

eligible candidates, the qualification prescribed in the Rules

were relaxed in the other case and the same treatment

should have been meted out with the petitioner. The

Tribunal has not accepted the contention of the petitioner

and dismissed the same. Challenging that order the instant

petitioner is filed seeking judicial review of the impugned

decision of the Tribunal.

2. Recruitment to the various posts in the Central Health

Service is governed by the Central Health Service Rules,

1982. These Rules have been framed by the Central

Government in exercise of the powers conferred under the

proviso to Article 309 of the Constitution. In accordance

with the Rules, the lowest post in the teaching sub-cadre of

the Central Health Service is designated as Assistant

Professor, the recruitment to which is to be done by way of

direct recruitment. At the relevant time, the essential

qualifications prescribed for the post of Assistant Professor

were as under:

"i) A recognised medical qualification included in the First or the Second Schedule of Part-II of Third Schedule viz. M.B.B.S.

ii) Post Graduate Degree in the concerned Specialty mentioned in Part-A of Schedule VI or equivalent.

iii) At least three years teaching experience in the concerned Specialty as Lecturer/Tutor/Registrar/Demonstrator/Senior Resident after the requisite Post-Graduate degree qualification."

3. It is clear from the above that three years teaching

experience in the concerned specialty as Lecturer or Tutor or

Registrar or Demonstrator or Senior Resident is required,

which three years experience has to be after obtaining Post

Graduate Degree qualification. After completing his M.B.B.S.

in the year 1974, the petitioner obtained his Master‟s Degree

in Medicine (MD) in the year 1978 and went on to attain

Superspeciality Degree (DM) in Neurology in 1984. During

this period, he has served as Senior Resident in the

Department of Neurology from 10.9.1981 to 24.1.1985. This

three years teaching experience had to be in the concerned

Superspeciality, i.e., in case of Neurology, Gastro-entrology,

Cardiology, Neuro-surgery and Plastic Surgery. It had to be

after acquiring further Post-Graduate qualification of DM/

M.Ch. Though the petitioner had served as Senior Resident,

for the period 10.9.1981 to 24.1.1985, admittedly he was

not fulfilling the aforesaid criteria of teaching experience in

Superspeciality after acquiring DM degree.

4. The respondents released a number of posts in the Grade of

Assistant Professor for being filled up on regular basis in the

various Superspecialities and in particular, in the

Department of Cardiology, Plastic Surgery and Neuro

Surgery. The advertisements for these posts for the

Department of Cardiology appeared on 29.9.1984 and

05.4.1986 for the Department of Neuro Surgery, the

advertisement appeared on 30.3.1985 while for the

Department of Plastic Surgery the advertisement was issued

on 16.3.1985. For recruitment to the said posts, the

respondent No.3 conducted interviews on 25.1.1985 and

04.7.1986 for the Department of Cardiology and on

19.6.1985 for the Department of Neuro Surgery while for

Plastic Surgery, the interviews took place on 25.6.1985.

Insofar as the Department of Neurology was concerned, for

recruitment to the post of Assistant Professor in the said

Department, one advertisement was issued on 17.8.1985 for

three posts while another was issued on 25.1.1986 for one

post, but no interviews were conducted in pursuance of

either of these advertisements. The petitioner had duly

applied in pursuance of both these advertisements.

However, no appointment was made to the post of Assistant

Professor in the Department of Neurology, as none was

found eligible.

5. Since the aforesaid condition in the Rules of 1982 was

causing some problems, as candidates with the requisite

qualifications were not available, these Rules were amended

with effect from 25.7.1986 and the amended provision

provided that the requisite qualification shall be counted

from the date of MD/MS and not from the DM/ M.Ch. On

29.11.1986, another advertisement appeared for the post of

Assistant Professor in the Department of Neurology. The

petitioner again applied for this post and was interviewed.

By this time, he had acquired the experience of three years

teaching. He was considered for the post and was selected

and placed at No.1 in merit. Pursuant to which, he was

given appointment to the post of Assistant Professor in the

Department of Neurology. After his selection, the petitioner

made representation dated 03.3.1988 requesting for

counting his seniority/service with effect from 25.1.1985.

Number of reminders followed this representation.

Ultimately, the representations were decided by the

respondents on 25.1.1990 whereby the respondents agreed

to the request of the petitioner partially by giving him the

seniority with effect from 25.7.1986.

6. The petitioner did not take any step immediately thereafter.

However, the controversy triggered again when one Dr. M.M.

Mehandiratta who was placed at No.2 in the selection panel

along with the petitioner, was given the benefit of seniority

from the date when one of the candidates in another

Superspeciality Department was selected. Decision in

respect of Dr. Mehandiratta was taken on 02.6.1995.

Feeling emboldened with the said treatment meted out to

Dr. Mehandiratta, the petitioner requested the respondents

to revive his seniority/service vide his representation dated

17.7.1995. This representation was, however, rejected on

04.9.1996. At this stage, the petitioner moved the Tribunal

by filing O.A. in January, 1997, which was dismissed vide

impugned orders dated 27.6.2000.

7. We may state at this stage that the case set up by the

petitioner before the Tribunal and which was pressed before

us as well, was that as per the Rules, 1982 (before

amendment in 1985), no candidates were available, who

could fulfil the eligibility of three years‟ teaching experience

after DM degree and, therefore, these Rules were relaxed in

the case of other persons. It was pointed out that after

coming into force the Rules of 1982, first advertisement was

issued in the year 1983 for recruitment to the post of

Assistant Professor in the Department of Neurology. At that

time, Dr. L.C. Thakur was place at Sl. No.1 in the Selection

List and Dr. I.M.S. Sawhney was at Sl. No.2. Since Dr.

Thakur did not join, Dr. Sawhney was offered the

appointment. Dr. Sawhney had also worked as Senior

Resident from April, 1980 to July, 1983, but he had

completed his DM/ M.Ch. degree and did not have three

years experience after completing his Superspeciality. It

was only in 1984 that the objection was raised that three

years‟ teaching experience had to be after gaining the

degree in Superspeciality, as per the Rules of 1982.

However, the feeling was that such an interpretation was

totally impractical. So much so, when a question was raised

in Rajya Sabha, answer was given on 08.05.1985 by the

then Minister of Health and Family Welfare clearly stating

that teaching experience of three years as contemplated by

the Rules shall be counted after the Post Graduate

qualification of MD/MS and not after DM/M.Ch. in concerned

Superspeciality.

8. Ultimately, UPSC agreed to amend the Rules, which were

formally amended on 29.7.1986 stipulating the condition of

three years teaching experience from the date of completion

of MD/MS in place of DM/M.Ch. On this basis, it was argued

that the aforesaid amendment was only clarificatory in

nature, as the respondents had not only interpreted the

Rules that three years‟ teaching experience from the date of

obtaining degree in Superspeciality, but even acted upon a

such which was clear from the appointment of Dr. Sawhney.

9. This contention was, however, not accepted by the Tribunal.

The Tribunal noted that insofar as Rules at the relevant time

are concerned, they were quite clear, i.e., the experience of

three years had to be after acquiring Post-graduation

qualification in DM/M.Ch. and therefore, if the respondents

deviated therefrom in some other case(s), that was not

appropriate course of action taken by the respondents. In

any case, opined the Tribunal, wrong orders cannot be the

foundation for claiming the equality and two wrongs cannot

make a right. For this proposition, the Tribunal referred to

the judgment of the Supreme Court in the case of State of

Haryana & Ors. Vs. Ram Kumar Mann, 1997 SCC (L & S)

801.

10. As pointed out above, submissions remain the same before

us as well. It was stressed by Mr. G.D. Gupta, learned

Senior Counsel appearing for the petitioner, that none was

found having Senior Resident qualification of three years

after MS/M.Ch. and finding this anomaly, this amendment

was made and the amendment should be treated as

clarificatory in nature. He further submitted that the answer

of the Minister of Health and Family Welfare at the Floor of

the House clearly reveals that even the Government

interpreted the Rules to amend three years experience after

acquisition of MD/M.Ch.

11. It is not possible to agree with the aforesaid submission of

Mr. Gupta. Insofar as the position of Rule is concerned, that

is clear a crystal. The unamended Rules provided for three

years teaching experience after attaining Superspeciality. It

would be a different matter that this provision was little

harsh and causing convenience, which resulted in

amendment therefor. However, this amendment was

brought in force only with effect from 25.7.1986.

Amendment of this nature cannot be treated as clarificatory

at all, although it was aimed at removing the hardship cause

as a result of original provision. Once we look into the

matter from this angle, it would be clear that as on

25.1.1985, the petitioner was not eligible for appointment to

the post of Assistant Professor. Therefore, one cannot claim

seniority from that date. When the advertisement for the

post of Assistant Professor in Neurology was issued and

nobody was found eligible and for this reason, no interview

was conducted, this act on the part of the respondents

cannot be legally questioned. It is only when the Rules were

amended, which made the petitioner eligible for the post of

Assistant Professor and advertisement thereafter was issued

on 21.11.1986, the petitioner could be appointed to the said

post. He was duly appointed with effect from 14.8.1987.

Though in these circumstances, the petitioner could claim his

seniority only on 14.8.1987, we are of the opinion that the

respondents showed leniency and benevolence in his case by

antedating his seniority with effect from 25.7.1986 when the

Rules were formally amended making the petitioner eligible.

It is impermissible for the petitioner to ask for more.

12. We are of the opinion that the Tribunal is correct in

observing that if some appointments were made in violation

of 1982 Rules, that wrong cannot justify the commissioning

of another wrong. The relief which the petitioner is claiming

would be contrary to the Rules prevalent at the relevant

time and, therefore, no such mandamus can be issued.

13. Mr. Datta, learned counsel appearing for the respondents,

has rightly pointed out that if relief is granted to the

petitioner, it may bring contradictory results, as many

similarly situated persons had claimed such relief which was

denied to them. We may like to mention that one other

person, viz., Dr. Satbir Singh had claimed identical relief,

which was rejected by the Tribunal and this Court also

dismissed his writ petition, viz. W.P.(C) No.2851/2000 vide

orders dated 11.8.2010 affirming the order of the Tribunal.

In that case, the petitioner had stated that he be granted

the benefit of his ad hoc service for the purpose of seniority

(like the case of present petitioner, who is seeking seniority

with effect from 25.1.1985 when he was appointed on as

hoc basis). The Tribunal had rejected the request of that

petitioner basing its decision on the Constitutional Bench

judgment of the Supreme Court in the case of Direct

Recruits, Class II Engineers Officers Association Vs.

State of Maharashtra, (1990) 2 SCC 715, wherein the

following propositions were laid down:

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not from the date of his confirmation.

The corollary of the above rule is that where initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following

the procedure laid down by the rules, but the appointee continues on the post uninterruptedly till the regularization of his service in accordance with rules the period of officiating will be counted.?

The CAT found that it was not even the case of the petitioner that the ad hoc appointment was made in accordance with the Rules.

The CAT found that the case of the petitioner did not fall in the proposition (B) above but the corollary to proposition (A). It has also been noticed that upon the speciality of Radiology being bifurcated into two different specialities of Radio Diagnosis and Radio Therapy, a requisition for filling up six (6) vacant posts of Assistant Professor of Radio Diagnosis was sent to UPSC on 23.11.1987 but the UPSC did not agree to advertise the posts till the CHS Rules were amended to provide for recruitment to the specialities of Radio Diagnosis and Radio Therapy. It is only after the amendments were carried out were the posts finally advertised by the UPSC on 10.2.1990."

14. Significantly, the case of this petitioner was cited to press

the relief for giving seniority, at least, from the date of

coming into force the amendment of Rules. Even that was

not accepted for the following reasons:

"In the end learned counsel for the petitioner sought to canvass that one Dr. Vinod Puri was given the benefit of continued service from the date of the amendment to the Rules though not for the complete period of the ad hoc service. If that has been done, we find no

reason on the issue of parity to give the benefit to the petitioner on an incorrect legal principle. Article 14 of the Constitution of India is a positive concept and not meant to perpetuate illegality. There is no basis whatsoever for granting petitioner the benefit of service from the date of amendment to the Rules when the petitioner has been recruited soon thereafter through the regular process of selection in November, 1990 by the UPSC, the process beginning in February, 1990.