Union Public Service Commission vs Dr.Akshay Bahadur & Ors.
2013 Latest Caselaw 4931 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision: October 28, 2013
+                              W.P.(C) 6260/2013

       UNION PUBLIC SERVICE COMMISSION          ..... Petitioner
               Represented by: Mr.Naresh Kaushik, Advocate with
                               Ms.Amita Kalkal Chaudhary, Ms.Adity
                               Gupta, Advocates
                               versus
       DR. AKSHAY BAHADUR & ORS.                 ..... Respondents
                Represented by: Mr.Atul Bandhu, Advocate for R-1
                                Mr.Sanjay Ghose, Advocate with
                                Mr.Mohd.Farukh, Advocate for R-2
                                Mr.Ashok Kumar Mohapatra, Advocate
                                for R-3
                                Ms.Aishwarya Bhati, Advocate with
                                Mr.Amit Verma, Advocate for R-4, 5, 6
                                Ms.Zubeda Begum, Advocate with
                                Mr.Sikhar Garg, Advocate for R-7 & 8

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J. (Oral)

1. Respondents No.1 to 6 were the applicants before the Central Administrative Tribunal and have obtained an order dated May 28, 2013 favourable to them in Original Application No.3653/2012 and Union Public Service Commission is aggrieved by the order because a standard for evaluation by the Selection Committee constituted by the Commission has been found to be faulty.

2. Learned counsel for the petitioner urges that the reasoning of the

Tribunal would have wide spread ramification in the selection processes undertaken by the Commission and hence the Commission being the writ petitioner notwithstanding its role being that of a recommendatory body.

3. To understand the cry of anguish of the Commission, we note the relevant facts, which are that between the years 1998 till the year 2004 large number of contractual appointments of doctors were made by the Government of NCT Delhi. Initial contract period ranged from between 6 months to a year but continued for years together and in some instances for more than 12 years.

4. The appointment was governed by Rules and in the year 2009, with the consultation of the Union Public Service Commission, the Government of NCT of Delhi promulgated the Delhi Health Service (Allopathy) Rules, 2009, and as per Rule 6 thereof, the initial constitution of the service included even officers appointed on contract/ad-hoc basis before December 18, 2006. As per sub-Rule 2 of Rule 6 the deemed appointment at the initial constitution of the service had to be on the basis of their suitability assessed by the Union Public Service Commission.

5. The number of doctors having contractual appointment was 529. These included General Duty Medical Officers as well Junior Specialists.

6. The Union Public Service Commission devise the criteria to assess suitability of assigning 50 marks to the academic performance and 100 marks to a viva voce with further stipulation that fitness would be 50% marks in the aggregate out of total 150 marks.

7. So subjected to the test of fitness, out of 529 General Duty Medical Officers and Junior Specialists who were assessed to determine their fitness, 523 were found fit and only 6, being respondents No.1 to 6, were declared unfit. They faced loss of employment and hence they rushed to the Central

Administrative Tribunal before their services could be terminated. Obtaining interim orders they continued to serve and do so till date since they have succeeded before the Tribunal with a direction that their suitability be re- assessed by devising a suitable assessment procedure keeping in view their record of performance and experience; twin elements which were not given any weightage in the fitness methodology devise by the Union Public Service Commission.

8. Pithily stated, the prolix decision by the Tribunal spanning 65 pages recognizes that in the absence of any Annual Confidential Record (ACR) of contract appointed doctors the Commission would be handicapped in having any material reflecting upon the competence of the contract appointed doctors and their performance. Thus, the Tribunal has recognized Union Public Service Commission devising a suitable criteria to determine fitness. The Tribunal has wrongly treated and interpreted the applicable Rule as if it was a case of regularization of irregularly appointed employees and to this extent the observations of the Tribunal in paragraphs 26, 46, 47, 87, 88, 90, 91, 92 and 93 which are attacked by learned counsel for the Commission cannot be sustained.

9. Primacy of marks at interviews have been frowned upon by Courts because of the subjective element at an interview. Recognizing said jurisprudence, Sh.Naresh Kaushik, learned counsel for the Commission says that the proof of the pudding is in its eating. Counsel states that the objectivity of the selection process is evidenced by the fact at out of 529 appraisees 523 were found fit. 6 being found unfit translates to the rejection being just a little over 1%. The argument is: what better proof of objectivity can one have.

10. The argument of learned counsel is attractive at first blush but overlooks one very important factor. After obtaining degrees and getting involved in a

job, the theoretical knowledge starts fading because the practical knowledge fills up the space. After all, brain cells in every human being are limited and the knowledge storing capacity is likewise limited. To fill new knowledge, some part of the old must either shrink or fade away. It translates like this. One ceases to be impressive on the theory of a subject if quizzed as a quiz master quizzes a participant.

11. To highlight as above we note the journey profiled by the 6 respondents after taking contract employment as either General Duty Medical Officers or Junior Specialists with the Government of NCT of Delhi.

12. The first respondent Dr.Akshay Kumar, after acquiring MBBS Degree obtained a Masters Degree in Surgery in the year 1997. He completed senior residency i.e. 3 years PG experience from Maulana Azad Medical College New Delhi and joined pursuant to a contract on February 26, 2000. Till today he has worked as Incharge of the Surgery Department for 9 years and has performed more than 2000 major surgeries including Cholecystectomy, Pyelolithotomy, Thyroidectomy, Perotidectomy, Resection of half of the liver, Laparoscopic and advanced laparoscopic surgeries. Major Cancer surgeries including Breast Cancer, Cancer of Kidney, Cancer of Intestines, testicular cancer, prostate cancer and cancer of skin etc. Till date, to his credit, the mortality rate in all surgeries conducted by him is Nil. He was twice nominated for advance 'No- Scalpel Training' to China because he had performed maximum number of NSV cases. Respondent No.2 Dr.Beena Aggarwal, after acquiring MBBS Degree obtained a Masters Degree in Surgery from Swai Man Singh Medical College Jaipur in the year 1987. She completed senior residency i.e. 3 years PG experience from Hindu Rao Hospital Delhi and joined pursuant to a contract on May 01, 1999. Since the year 2004 she has worked as Incharge of

the Surgery Department. She was the pioneer in Laparoscopic surgeries at G.G.S.G.Hospital established by the Government of NCT Delhi at North Delhi and had performed major surgeries exceeding 4000 including Cholecystectomy, Pyelolithotomy, Thyroidectomy, Perotidectomy, Laparoscopic and advanced laparoscopic surgeries. Major Cancer surgeries including Breast Cancer, Cancer of Intestines, testicular cancer and cancer of skin etc. She has also performed plastic surgeries like cleft lip. Respondent No.3 Dr.Saroj Bala, obtained MBBS Degree followed by a Post Graduate Degree in Paediatrics. Obtaining employment on contract in June 04, 2004 she has been posted at the N.C.Joshi Hospital Karol Bagh. She has been the Nursery Incharge for sick new born children. The neo-natal death rate is below the statistical death rate in India in the nurseries of which she was incharge of. She has handled thousands of sick new born children. Respondent No.4 Dr.Vimla, obtained MBBS Degree followed by a Post Graduate Degree in Pathology from King George Medical College Lucknow and took contract employment on June 07, 2004. Not a single pathological opinion given till date has been found to be wanting or a wrong analysis. Apart from working in the Path Lab senior resident teaching experience has been acquired. Respondent No.5 Dr.Narender K.Verma, as also respondent No.6 Dr.Ashish Gopal, after obtaining MBBS Degree obtained Post Graduate Degree in ENT. The former took contract employment on June 30, 2000 and the latter in July, 2000. Both of them have performed surgeries in the field of ENT with no mortality till date. The two have acquired expertise in use of laser and cryo technique.

13. In other words the work of all six respondents is not only extensive but is rich in experience. At the cost of public exchequer the five out of six have acquired new skills with new technology being introduced. Surely, all this is

relevant and must find a weightage in the criteria of evaluation.

14. But since every decision must have a backing of, if not a rule of law, a jurisprudence on the subject, we would only say that the evaluation of contract appointed doctors and specialists had to be at a point of time which was at a distance from the point as of when the evaluation for fitness had to be done i.e. suitability had to be assessed as on the date of contract employment. If today i.e. on October 28, 2013 we are required to appraise an event as of October 28, 2003, across the arch of the years, in the perspective of the distance, the events to be recollected may have a vivid place but the recollection cannot be sans what happened between October 28, 2003 and October 28, 2013.

15. Thus, we concur with the final destination arrived at by the Tribunal but not for the reasons given by the Tribunal.

16. The writ petition is dismissed in limine but without any orders as to costs.

CM No.13682/2013 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE OCTOBER 28, 2013 mamta