Mitraon Uthan Samiti (Regd.) vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 5929 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 3rd October, 2012

+                                W.P.(C) No.2604/2012

       MITRAON UTHAN SAMITI (REGD.)             ..... Petitioner
                  Through: Mr. M.B. Singh, Adv.

                                    Versus

    GOVT. OF NCT OF DELHI & ORS.               ..... Respondents

Through: Ms. Zubeda Begum & Ms. Sana Ansari, Advs. for GNCTD.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This writ petition, filed in public interest, i) impugns the orders dated

23.09.2011 and 22.02.2012 of the respondent No.1 Government of NCT of

Delhi (GNCTD) of appointment of the respondent No.5 Dr. B.S. Banerjee as

the Project Director of the respondent No.2 Chaudhary Brahm Prakash

Ayurved Charak Sansthan (CBPACS), beyond the prescribed maximum age

of 62 years; ii) seeks to restrain the respondent No.1 GNCTD from

extending any further, appointment of Dr. B.S. Banerjee as Project Director

and to instead appoint a regular Project Director of CBPACS; iii) seeks to

prohibit other appointments in CBPACS; and, iv) seeks a direction for

recovery with interest of the amounts illegally paid to the said Dr. B.S.

Banerjee.

2. On the plea of the petitioner that inspite of the said Dr. B.S. Banerjee

attaining the prescribed age of 62 years, his tenure was being extended from

time to time and no steps were being taken for appointment of a Director on

regular basis, notice of the petition was issued.

3. It is the case in the writ petition:

(i) that CBPACS has been established as per the decision dated

30.03.2006 of the Council of Ministers of GNCTD and was

registered as an autonomous body under the Societies

Registration Act, 1860, though is an enterprise of GNCTD;

(ii) that as per the Articles of Association of CBPACS, the

appointment of a Director is to be for a period of five years,

extendable from time to time subject to retirement at the age

of 62 years;

(iii) that Dr. B.S. Banerjee was initially appointed to the post of

Project Director on contract basis for two years with effect

from 01.09.2009, till he attains the age of 62 years and to

function under the control of the Principal Secretary (Health

& Family Welfare);

(iv) that Dr. B.S. Banerjee is a retired Indian Administrative

Service (IAS) Officer and attained the age of 62 years on

31.08.2011; however vide order dated 23.09.2011, he was

granted further extension as Project Director for six months

with effect from 13.08.2011 or till the appointment of a

regular Project Director whichever is earlier;

(v) that no effort is being made to appoint a regular Director and

the contract of Dr. B.S. Banerjee was renewed with effect

from 13.02.2012 to 12.05.2012 or till the appointment of a

regular Director whichever is earlier;

(vi) that though the Director is to be from amongst the Ayurveda

professionals having 20 years standing experience in the

profession out of which minimum 4 years experience should

be in Administration, Dr. B.S. Banerjee has neither any

knowledge nor any experience in the subject of Ayurved;

(vii) that Dr. B.S. Banerjee has been illegally paid `8,00,000/-

more than what is permissible for a retired government

servant;

(viii) that the requisite approvals for payments to Dr. B.S.

Banerjee has not been obtained from the Finance

Department; and,

(ix) that the said Dr. B.S. Banerjee while himself illegally

occupying the post of Director, is making large scale

appointments in haste; instances of appointments made

without following the prescribed procedure have been given.

4. GNCTD and CBPACS in their joint counter affidavit have stated:

(A) that CBPACS is a newly set up Society and at the outset

required lot of inputs for coordination with various civic

agencies and different service providers to put the required

infrastructure in place;

(B) that keeping in mind the supervisory skills required during

the gestation period, contractual / temporary appointments

were resorted to for engagement of staff with the requisite

background and experience;

(C) that though the sanctioned strength for various posts in the

CBPACS is 415, only 91 persons have been engaged so as to

provide quality service to the patients visiting CBPACS;

(D) that Dr. B.S. Banerjee, an IAS Officer was serving as

Director, Indian System of Medicine and Homeopathy,

GNCTD and was in the year 2009 also holding additional

charge as Additional Secretary, Health and Family Welfare,

GNCTD and as Project Director of CBPACS; he

superannuated on 31.08.2009 on attaining the age of 60

years;

(E) that however considering the work carried out by Dr. B.S.

Banerjee as Project Director of CBPACS, he was vide order

dated 01.09.2009 re-appointed as the Project Director of

CBPACS for a period of two years on contract basis;

(F) that during the tenure of Dr. B.S. Banerjee, the Hospital of

CBPACS started functioning in December, 2009 and the

Medical College of CBPACS started functioning in

November, 2010 for Under Graduate Courses and 86 of the

100 seats were filled in the academic session 2011-12;

(G) that Dr. B.S. Banerjee as Project Director was thus able to

achieve good results for CBPACS and after expiry of two

years from 01.09.2009, his contract was extended for six

months, as part of the construction viz. Sewage Treatment

Plant (STP), installation of Central Air Conditioners,

installation and functioning of all Lifts, completion of

Medical Gas Pipeline, making of major Operation Theaters

functional, getting regular electricity connection, getting

various clearances etc., was still going on;

(H) that the present petition is mala fide and motivated as the

petitioners are also running Ayurvedic Dispensary and are in

competition with the services being provided by CBPACS;

(I) that the College of CBPACS has completed its professional

undergraduate course and the second professional course

was to start in June, 2012 and there was a necessity to have a

minimum staff of faculty members before respondent No.4

Central Council of Indian Medicine visited for inspection to

accord approval for second professional course;

(J) that to fulfill all codal formalities, 14 posts were filled on

contract / temporary basis; it is denied that Dr. B.S. Banerjee

as Project Director has any role in the appointments made in

CBPACS; it is stated that the Selection Committee for the

teaching posts comprised of Dean of the Maulana Azad

Medical College, Advisor (Ayurved) of the Government of

India, Ex-Advisor (Ayurved) of the Government of India,

President, All India Ayurved Congress and two Subject

Experts in the respective field;

(K) that as the Recruitment Rules are yet to be notified, no posts

have been filled on regular basis or through Delhi

Subordinate Services Selection Board (DSSSB) or Union

Public Service Commission (UPSC) which is required only

for appointments on regular basis and not for contractual /

temporary appointments;

(L) that the appointment of Dr. B.S. Banerjee as a Project

Director was as an interim measure and he has been paid in

accordance with the Rules; and

(M) that the process of framing of Recruitment Rules for the post

of Director of CBPACS is underway and is pending approval

of the Services Department; and

(N) that the temporary / contractual appointments till now are of

eligible persons.

5. The petitioner has filed a rejoinder to the aforesaid counter

affidavit.

6. The counsel for the petitioner has during the course of hearing

handed over notices published by the Project Director of CBPACS for

filling up of various posts in CBPACS and on the basis thereof has

pointed out that Dr. B.S. Banerjee though appointed as Project Director is

performing the role of the Director of CBPACS.

7. Per contra, the counsel for the respondents No.1 to 3 has argued

that Dr. B.S. Banerjee was appointed and continued as Project Director,

as distinct from Director, for completing the project of setting up of

CBPACS and the rule of maximum age of 62 years prescribed for

Director thus does not apply to him. On enquiry, though not pleaded in

the counter affidavit, on instructions it is stated that the Medical

Superintendent of Hospital of CBPACS is performing the duties of

Director and the said duties are not being performed by Dr. B.S. Banerjee

who is merely the Project Director. As to the construction / infrastructure

works pending as of today, it is stated that the work of installation and

operation of the elevators still remains to be completed. It is further

assured that immediately on the Recruitment Rules for the post of

Director being framed; regular Director of CBPACS shall be appointed.

8. We have considered the matter. The Articles of Association of

CBPACS describe the Director as the Chief Executive Officer of

CBPACS, responsible for proper administration of affairs and funds of

CBPACS and to function under the guidance of the Governing Council of

CBPACS. We find it strange that inspite of Hospital of CBPACS having

commenced operations nearly three years back in December, 2009 and

the college of respondent no.2 having also made admissions in the

academic year 2011-12, the post of Director has not been filled up as yet.

We are not satisfied with the reason given for not filling up the said post

and for leaving the CBPACS headless; there is no explanation as to why

in the last more than five years since when CBPACS was formed,

Recruitment Rules for the post of Director and for other posts could not

be framed.

9. Though it is argued that the Project Director, to which post Dr.

B.S. Banerjee has been appointed, is distinct from the post of Director but

we may mention that Articles of Association of CBPACS while providing

for the composition of the Governing Council of CBPACS, describe the

'Project Director / Director' as the Member Secretary / Ex-Officio

member of the said Governing Council. The Articles of Association

elsewhere also do not make any distinction between the Director and the

Project Director. Further, as per the said Articles of Association, the

Director CBPACS is to exercise supervision and disciplinary control over

the staff and officers of CBPACS and is to prescribe their duties and

functions; all officers and staff of CBPACS are also under the

administrative control of the Director. This coupled with the notices

published inviting applications for filling up the posts in CBPACS in the

name of the Project Director, make us suspect the role of the Project

Director as only for completing the project of the infrastructure of the

Hospital and College of CBPACS and to doubt the statement of the

counsel for the respondents No.1 to 3 that Dr. B.S. Banerjee as the

Project Director is not performing the functions of the Director.

10. It is not in dispute that Dr. B.S. Banerjee, having attained the age

of 62 years as far back as on 31.08.2011, is not competent to occupy the

Office of the Director of CBPACS. The CBPACS cannot be allowed to

suffer for the lethargy in appointment of its Director, when as aforesaid it

is fully functional.

11. We in the circumstances, dispose of this petition by directing the

respondents No.1 to 3 to as soon as possible and latest within three

months of today, frame the Recruitment Rules for all the posts in

CBPACS and in any case for the post of Director and appoint a Director

in terms thereof and in accordance with law. Though it has already been

stated that Dr. B.S. Banerjee has not been and is not performing the

functions of the Director of CBPACS and by which statement we bind the

respondents, we further direct that continuance of Dr. B.S. Banerjee after

the expiry of three months shall be strictly for completing the project if

any remaining. As far as the claim in the petition for recovery of excess

payments made to Dr. B.S. Banerjee is concerned, we direct the

respondents No.1 to 3 to treat this petition as a representation of the

petitioner and to within six months herefrom pass a reasoned order

thereon. We grant liberty to the petitioner to within one month of today,

make further representation if needed in this regard. A copy of the

reasoned order disposing of the said representation be furnished to the

petitioner within six months herefrom.

With the aforesaid directions, the petition is disposed of. No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE OCTOBER 03, 2012 'gsr'