Mukesh Kumar Sharma vs Govt. Of Nct Of Delhi & Ors.
2019 Latest Caselaw 3869 Del

$~54
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 21.08.2019

+      W.P.(C) 8955/2019 & CM APPL. 36957/2019
       MUKESH KUMAR SHARMA                              ..... Petitioner
                         Through     Mr.V.K. Garg, Sr. Adv. with Mr.Amit
                                     Kumar & Ms.Noopur Dubey, Advs.

                         versus

       GOVT. OF NCT OF DELHI & ORS.             ..... Respondents
                     Through   Mr.Ramesh Singh, Standing counsel
                               with Mr.Ankur Chhibber, Mr.Chirayu
                               Jain, Mr.Bhanu & Mr.Ishan Agrawal,
                               Advs.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks direction thereby

declaring the action of respondents in passing an order of suspension dated

01.08.2019 as illegal, bad in law and accordingly quash and set aside the

impugned inquiry reports dated 17.10.2018, 20.12.2018, order dated

28.02.2019 of 15th Governing Council and order dated 14.06.2019 of 16th

Governing Council.

2. Further seeks direction thereby to declare that the Petitioner meets the

eligibility criteria as prescribed in advertisement no. 01/2016 issued by R-2

for appointment to the post of Associate Professor in Ch. Brahm Prakash

Ayurved Charai Sansthan and accordingly issue consequential directions to

continue the Petitioner as Associate Professor with all consequential

benefits.

3. The case of the petitioner is that on 11.06.2016, the respondent no. 2

issued an Advertisement No. 01/2016 to fill up the post of Associate

Professor & Assistant Professor in different discipline. On 12.07.2016, the

petitioner also applied for the aforesaid post as the petitioner was meeting

the eligibility conditions as prescribed in the advertisement, therefore, he

had all the reasons to be called by competent authority to participate in the

selection process. However, before the aforesaid exercise could be

undertaken by competent authority, the Respondent No. 3 namely Dr.

Vidula S. Gujjarwar, threatened the Petitioner, who was serving under

Respondent No. 2 as Associate Professor on contract basis. Initially, the

Petitioner took the said threat lightly inasmuch as, he was aware that the

selection to the post of Associate Professor was to be finalized by R-2 and

said Respondent No. 3 being HOD in Rog Nidan Department had no role to

play in the recruitment. However, when the Petitioner came to know that the

R-3 has been made part of Scrutiny Committee constituted for the purpose

of scrutinizing the applications received for various posts which were

advertised vide advertisement no. 01/2016 dated 11.06.2016, he

immediately sent a mail dated 12.07.2016 to Respondent No. 2 to ensure

that the respondent no.3 should not successful in obstructing the selection of

the petitioner to settle personal score. On 09.08.2016, the aforesaid report

was duly examined and thereafter a comprehensive proposal was prepared

for taking further action pursuant to the advertisement no.01/2016. The said

proposal was considered by competent authority and it was directed that the

candidates in respect of whom some clarifications are required may be

treated as provisionally eligible, subject to verification of documents.

Accordingly, a Committee under the Chairmanship of Dr. Santhosh S. R.

Nair was constituted for the purpose of short-listing the applications

received for various posts.

4. Accordingly, the office order dated 09.08.2016, the aforesaid

Committee was constituted under the Chairmanship of said Dr.Santhosh

S.R. Nair, D.D (Admn) and it was specified that the short-listing was

required to be done as per the guidelines attached. On 23.08.2016, on receipt

of recommendations of said Committee, the respondents called the eligible

candidates including Petitioner to appear in interview held on 23.08.2016.

The respondents called total 8 candidates including Petitioner for

appointment to the post in question. All the candidates called for interview

were directed to bring the original documents to prove their eligibility. The

Petitioner also submitted all original documents in support of his educational

qualification and experience. The Petitioner also clarified the queries as

raised by Short-listing Committee. Thereafter, the Petitioner was subjected

to interview by the duly constituted Board. The Petitioner performed well in

the interview and expected his selection and consequent appointment.

5. Mr.Vinay Garg, learned senior counsel appearing for the petitioner

submits that after completion of all the interviews, the respondents prepared

the final result and all the selected candidates were sent offer of appointment

at their addresses. The Petitioner also received his offer of appointment

dated 17.10.2016. The Petitioner accepted the said offer of appointment and

joined on 27.10.2016. However, respondent no.3 crossed all the limits of

arbitrariness and issued Show Cause Notice dated 18.02.2019 to the

Petitioner with sole intention to take away his appointment itself and the

same is proved from the said Notice itself. The 15th meeting of Governing

Council passed the final order against the Petitioner on 28.02.2019 for

termination of services of the Petitioner.

6. Being aggrieved, the Petitioner challenged the show cause notice

dated 18.02.2019 vide Writ Petition being W.P.(C) No.2087/2019, wherein

vide order dated 28.02.2019, a notice was issued to the respondents and till

further orders, the respondents were restrained to take further action upon

the said show cause notice.

7. Further, on 07.05.2019, the petitioner withdrew the aforesaid writ

petition on the observation made by this Court that there was no adverse

order against him and, accordingly, the Petitioner was permitted to file reply

to the show cause notice dated 18.02.2019. Thereafter, the Petitioner filed

his reply on 20.05.2019 to the show cause notice dated 18.02.2019. But

respondent no.3 without considering the Petitioner's reply dated 20.05.2019,

malafidely and arbitrarily passed an order dated 01.08.2019 of suspension

from service against the Petitioner. The Petitioner, who has earned

reputation by rendering outstanding services, requires protection of this

Court in the interest of Justice.

8. Mr.Garg, learned senior counsel submitted that the petitioner was

selected through the procedure and based upon his experience and

documents submitted before the selection committee. The competent

authority approved the same and thereafter a show cause notice was issued

to the petitioner which is contrary to the settled law.

9. The respondents did not follow due procedure and further vide order

dated 01.08.2019 issued suspension order against the petitioner.

10. To strengthen his arguments, learned senior counsel has relied upon

the case of U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. Vs. Sanjiv

Rahan with Director, Rajya Krishi Utpadan Mandi Parishad & Anr. Vs.

Narendra Kumar Malik & Anr.: 1993 Supp (3) SCC 483 whereby the

Hon‟ble Supreme Court observed that "whether the employees should or

should not continue in their office during the period of inquiry is a matter to

be assessed by the concerned authority ordinarily, the Court should not

interfere with the orders of suspension unless they are passed mala fide and

without there being even a prima facie evidence on record connecting the

employees with the misconduct in question."

11. Mr.Ramesh Kumar, learned Standing counsel appearing on behalf of

the Government of NCT of Delhi submits that the candidature of the

petitioner was rejected by the First Scrutiny Committee and thereafter

Scrutiny Committee was constituted. The case of the petitioner was cleared

in the second scrutiny committee. There is nothing on record to show that

the recruitment of Reader/Associate Professor was carried out in accordance

with the provisions of the RRs. It is also not clear as to why a proposal was

moved to fill up the post by direct recruitment, whereas, as per the

provisions of the RRs, the post belonged to promotion quota. This is a

glaring mistake and all the higher authorities including Hon‟ble Minister

(Health)-GNCTD officials of the CBPACS declined to follow the RRs to fill

up the newly created posts of Associate Professor/Reader. Even, if there

was an urgency, the officials should have first tried to fill up the posts by

promotion i.e. by conducting DPC meeting, and the posts could have been

filled up easily. If the posts could not be filled up by promotion due to non-

eligibility of departmental candidates, then the process to fill the posts by

deputation should have been followed, failing which the method of direct

recruitment should have been adopted.

12. Learned standing counsel further submits that the entire noting in the

file no.F1(788)/16/CBPACS/Adm./recruitment of faculty for PG courses is

silent about the provisions of RRs. It is apparent that the same were

concealed intentionally for the vested interest of the officers/officials

involved in the entire recruitment process.

13. Learned standing counsel has pointed out that another glaring/

conspicuous mistake regarding recruitment to these posts is the adoption of

objective marking criteria for 100 marks on the basis of 08 points namely 1.

Teaching experience, 2. Patent/copy right obtained as individual/team, 3.

Ph.D., 4. Research work published in peer reviewed journals, 5. Books

published as single author and co-author related to the subject concerned, 6.

Participated in national and international seminar as organizing secretary or

as member of organizing committee, 7. Paper presented in national or

international seminar, 8. Participated in national or international seminar on

any topic concerned with Ayurveda as speaker. This criterion was arbitrarily

adopted in violation of provisions of RRs and guidelines issued by the

Governing Council. As stated earlier RRs prescribes only three desirables

qualifications, viz. (i) Patent/copyright obtained as individual/team (2)

Research work and publication in Peer reviewed journals, (3) Ph.D. apart

from the essential qualifications.

14. Another irregularity noticed related to the constitution of the Security

Committee, the Hon‟ble Minister (Health)-GNCTD had approved the

Scrutiny Committee Comprising the following members vide Office Order

dated 23.06.2016:-

1. Prof. (Dr.) Tanuja Nesari, H.O.D./Addl. Director

(Academics), Chairperson

2. Prof. (Dr.) Unnikrishnan S. Professor, Swasthvritta, Member

3. Prof. (Dr.) Vidula Gujjarwar, Professor Rognidan, Member

4. Sh. K.K. Yadav, Sr. Accounts officer, Member

15. This Committee was not apprised about the details of scoring by

objective marking without any justification. However, the said Scrutiny

Committee scrutinized all thirty-nine applications so received for the post of

Reader and determined the eligibility as per the criteria mentioned in

advertisement. Later on, all of a sudden, the O.S. (Admn.), CBPACS, Sh.

Rajesh Tanwar proposed constitution of a fresh Scrutiny/Short Listing

Committee comprising the following members:

1. Dr. Santhosh S. R. Nair, DD-Admin-CBPACS - Chairman

2. Dr. Sudhir Kumar, Asso. Prof. -Member

3. Dr. Kamleshwar Kalia, Asso. Prof. - Member

4. Dr. A. N. tiwari, Asso. Prof. - Member

16. Accordingly, fresh Committee was approved by the Director -

Principal, CBPACS himself without obtaining approval of the competent

authority i.e. Hon‟ble Minister (Heath)-GNCTD. The newly constituted

Scrutiny/Short listing Committee again scrutinized thirty nine applications

so received and shortlisted eligible candidates haphazardly/randomly/on

pick and choose basis without giving marks in objective criteria to all the

applicants. One of the criteria for selection was that where for a particular

subject, more than 10 applications were received, only 10 candidates will be

called for the interview. However, if the number of application would be

less than 10, then all eligible candidates would be called for interview. But

the candidates were called for the interview without preparing the merit list

of all the candidates.

17. Learned standing counsel further submitted that the second Scrutiny

Committee made them eligible and short listed for interview. Surprisingly,

they were selected and allowed to join the department. Regarding the case

of the petitioner, it has been observed that on the date of interview he

submitted various certificates including experience through a covering letter

by quoting "as required" whereas in the interview letter it was specified that

the candidate has to bring all the original certificate/testimonials (w.r.t.

copies of the certificates/documents submitted by the applicant along with

his/her application before the cut-off date) for verifications and it was

nowwhere specified that he/she has to submit any additional

certificates/documents. Further the DV Committee in its proceeding sheet

has mentioned, „verify the teaching experience in the concerned subject at

the time of interview'. Surprisingly, the same Committee on the date of

interview i.e. 23.08.2016, mentioned that „experience in the concerned

subject verified". Thus, it is a clear case of manipulation of records by the

DV Committee to favour him for his illegal selection to the post of

Associate Professor/Reader.

18. Learned counsel further submits that since the selection of the

petitioner is contrary to the rules and procedure and without approval of the

competent authority, therefore, the respondents have first issued show cause

notice and thereafter put the petitioner under suspension which is under

challenge before this court.

19. The chargesheet is almost ready and same will be issued against the

petitioner within a week or 10 days time, as stated by learned standing

counsel.

20. Therefore, in the facts and circumstances and submission of the

standing counsel recorded above, it is not appropriate to intervene in this

matter at this juncture.

21. It is made clear as argued by counsel for the petitioner that there is no

misconduct on the part of the petitioner at the time of passing the suspension

order, therefore, the petitioner is at liberty to challenge the chargesheet in

accordance with law.

22. Moreover, the suspension order can be issued under Rule 10(i)(A) if

the departmental inquiry is pending or contemplated against the delinquent

officer.

23. In view of above, I find no merit in the present petition and the same

is, accordingly, dismissed.

24. Pending application stands disposed of.

25. Order dasti under the signatures of Court Master.

(SURESH KUMAR KAIT) JUDGE AUGUST 21, 2019 ab