Delhi High Court
Suresh Gaur vs Government Of Nct Of Delhi & Ors. on 24 May, 2023
Neutral Citation Number: 2023:DHC:3925-DB
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 20.03.2023
% Judgment delivered on: 24.05.2023
+ W.P.(C) 6050/2021 & CM APPL. 19148/2021
SURESH GAUR ..... Petitioner
Through: Mr. Avadh Bihari Kaushik, Advocate.
versus
GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr. Anupam Srivastava, ASC with
Mr. Dhairya Gupta, Mr. Vasuh Misra
& Mr. Ujjwal Malhotra, Advocates
for Respondents No.1 to 4.
Mr. Vishal Biswas, Junior Assistant
for Respondent/ Dr. B.S.A. Hospital.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SATISH CHANDRA SHARMA, C.J.
1. The instant Writ Petition has been filed by the Petitioner under Article
226 of the Constitution, in the form of a Public Interest Litigation ("PIL"),
seeking a Writ of Quo Warranto against Respondent No. 4 herein.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
2. The crux of this matter revolves around the appointment of
Respondent No. 4 as the Medical Director, Dr. Babasaheb Ambedkar
Hospital ("BSA Hospital") situated in Sector-6, Rohini, Delhi, vide Order
No. F.11/252/H&FW/2018/HR-Med./Pt.File-I/112587809/559-71, dated
10.03.2021, by Respondent Nos. 1 & 2 ("Impugned Order"), and whether
the said appointment was done in accordance with law, or not.
3. At the outset, it would be pertinent for the sake of comprehension to
give a brief background on the basis of which the aforesaid prayer has been
sought, and the basis on which contravention of statutory rules and
irregularity in procedure with respect to appointment of Respondent No. 4 as
Medical Director, BSA Hospital, have been alleged by the Petitioner.
4. When the Government of National Capital Territory of Delhi
("GNCTD") came into existence in 1992, a number of hospitals,
dispensaries and health centres were created and some existing hospitals
were also placed under GNCTD for providing health services to the
residents of Delhi. The doctors to tend to the residents of Delhi were either
borrowed from Central Health Services ("CHS") or their engagements were
made on a contract basis.
5. In 2006, GNCTD constituted its own health cadre vide Cabinet
Decision No. 1139 on 13.11.2006. The said decision lead to the formation of
the 'Delhi Health Services' ("DHS"). Pursuant to the constitution of the
DHS, 'Delhi Health Services (Allopathy) Rules, 2009' ("Allopathy Rules,
2009") were notified vide a Notification dated 23.12.2009 in the Delhi
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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Neutral Citation Number: 2023:DHC:3925-DB
Gazette, in terms of the powers conferred upon the government under
Article 309 of the Constitution.
6. Thereafter, vide a notification dated 20.08.2014, the GNCTD
appointed 528 doctors at the initial constitution stage of the DHS, in the
General Duty Medical Officer ("GDMO") and Non-Teaching Specialist
sub-cadre of the DHS, retrospectively from 23.12.2009, i.e., the date of
coming into effect of the Allopathy Rules, 2009.
7. It is submitted by the Petitioner that the Respondent No. 4 herein,
being an orthopaedic, was initially recruited on contractual and temporary
basis by the GNCTD and subsequently, he was regularised and absorbed
into the Non-Teaching Specialist Grade-III cadre of the DHS w.e.f.
23.12.2009. It is submitted that the same was however done without
carrying any seniority from his past contractual services.
8. It is submitted that a doctor such as Respondent No. 4 appointed to
the feeder non-teaching specialists sub-cadre has to complete two years in
the feeder cadre and thereafter, he becomes eligible to Specialist Grade-II
wherein he has to serve at least for four years, and only then can he become
a Specialist Grade-I officer, a level where he has to spend a minimum of
seven years in service. Only upon completion of a minimum of seven years
in service on the position of in Specialist Grade-I, the Respondent No. 4
would become entitled to Senior Administrative Grade("SAG") i.e., the
Grade wherein one would meet the minimum eligibility criterion to be
appointed as Medical Director, BSA Hospital. The Petitioner has relied upon
Rule 4 of the Allopathy Rules, 2009 to buttress his stand with regards to the
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
aforesaid procedure to be adopted for promotion within the DHS.
9. It is submitted by the Petitioner that keeping in mind the grade in
which the Respondent No. 4 was inducted into the DHS and time spent in
service under DHS, Respondent No. 4 is only in the grade of Specialist
Grade I, further, he has not completed the requisite, stipulated period of
seven years in the said grade at the time of filing of this PIL. Thus, the
question of him being a Senior Administrative Grade ("SAG") or being
eligible for Super Time Scale, i.e., meeting the minimum eligibility criterion
to be appointed to the post of Medical Director, BSA Hospital, does not
arise.
10. It is submitted by the Petitioner that at the time of filing of this
Petition, the Respondent No. 4 was working as Non-Teaching Specialist
Grade - I under Grade Pay 8700 and that he can in no manner be construed
to be an officer in SAG / Super Time Grade in Pay Band-4 of Rs.37400-
67000+GP 10000 (pre-revised). It is submitted by the Petitioner that the
Respondent No. 4 does not hold requisite seniority for being eligible to the
post of Medical Director and one must hold the aforesaid SAG as Per
Schedule II of the Allopathy Rules, 2009 to be considered for appointment
to the post of Medical Director in BSA Hospital.
11. It has been submitted by the Petitioner that Schedule II of the DHS
(Allopathy) Rules, 2009 stipulates that the post of Medical Director is a duty
post which is to be filled up by an officer of GDMO sub-cadre in Senior
Administrative Grade/ Super Time Grade in the Pay Band-4 of Rs.37400-
67000+GP 10000 (pre-revised). Further, that the Medical Director is the
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
overall in-charge and administrator of BSA Hospital. The Medical Director
of the BSA Hospital is a sensitive post, inter alia, possessing the important
power of preparing Annual Confidential Reports ("ACRs") of the doctors/
employees/ staff of the BSA Hospital. Thus, the relevant statutory rules are
required to be followed strictly, in letter and spirit whilst, considering
someone for the said post.
12. It is submitted by the Petitioner that as per Schedule II of the
Allopathy Rules, 2009, BSA Hospital is listed at Serial No. 20 and that in
the said list of duty posts in the schedule, the post of Medical Superintendent
does not find place. It is submitted that the post of Medical Superintendent
and Medical Director is the same and that only the nomenclature of the post
is different. It is pertinent to highlight that the said change in nomenclature
was not done with any statutory sanction or approval of the competent
authority, i.e., Lieutenant Governor of Delhi.
13. It has been submitted by the Petitioner that this appointment of
Respondent No. 4 herein as the Medical Director, BSA Hospital, in terms of
the Impugned Order of appointment, has been done in an absolutely
anomalous, illegal and arbitrary manner by Respondent Nos. 1 & 2 herein,
without keeping in mind the relevant statutory provisions.
14. It is submitted by the Petitioner that the Respondent No. 4 is neither
competent nor eligible, and otherwise too, doesn't possess the necessary
qualifications or experience to be appointed to aforesaid post. It is submitted
that Respondent No. 4 does not even possess SAG which is a basic and
essential requirement for doctors to qualify for appointment as a Medical
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
Director.
15. It is submitted that Respondent No. 4 is merely a Grade-I Specialist,
whereas, more than 100 doctors and medical officers senior to him,
possessing SAG level and working in different hospitals are eligible for the
post Respondent No.4 has been appointed to. It is submitted that many of
these eligible candidates are also working at BSA Hospital and are also
interested in the said post.
16. It is submitted by the Petitioner that in no manner can it be construed
that Respondent No. 4 was appointed to the post of Medical Director,
keeping in line with the statutory provisions.
17. It is submitted that Respondent No.4 has been chosen by Respondent
Nos. 1 & 2 for the post of Medical Director from outside the list of doctors
and medical officers possessing SAG and thus, axiomatically the impugned
action of the Respondent Nos. 1 & 2 is a clear breach and violation of all
norms, rules, governing seniority, eligibility and past practices. It is
submitted that the action of Respondent Nos. 1 & 2 is a clear breach of
service jurisprudence.
18. To buttress his contentions, the Petitioner has stated the names of
doctors who are working in BSA Hospital, who are appointed through a
selection process conducted by UPSC and are drawing pay in the SAG/
Super-Time Grade with a Grade Pay of 10000 (pre-revised). A list of 17
doctors was provided by the Petitioner, whom, according to the Petitioner,
possess the aforesaid qualification, are working in BSA Hospital, and are
eligible to be appointed to the post of Medical Director, BSA Hospital.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
19. It is submitted by the Petitioner that ever since Respondent No. 4 has
been appointed as the Medical Director, there has been clear
mismanagement, chaos, indiscipline, atrocity and anarchy in BSA Hospital.
Despite objections and grievances being lodged with concerned authorities,
no remedial action has been taken against the Respondent No. 4. In light of
this, the Petitioner, being a resident of the area where BSA Hospital is
located, took it upon himself to approach this Court to bring to its notice the
injustice being perpetrated.
20. It is submitted that due to the illegal appointment of the Respondent
No. 4 as Medical Director of BSA Hospital, the doctors and employees of
the Hospital are in grave distress and are anguished. Due to the illegal
appointment of Respondent No. 4 to the post of Medical Director, the
Association of the BSA Hospital made a written representation dated
07.04.2021 to the office of the Lieutenant Governor of Delhi, however, no
action has been taken by the authorities against the illegal appointment of
Respondent No. 4.
21. The representation dated 07.04.2021 had stated that the
implementation of the impugned order of appointment of Respondent No. 4
would lead to an anomalous situation and perpetrate instances of
insubordination by junior doctors. The Impugned Order itself creates a
situation wherein a junior doctor has been granted a post, bypassing more
than 100 doctors who in fact possess SAG with the requisite grade pay for
being appointed as Medical Director. It was stated in the representation that
the impugned order of appointment has bypassed the norm of seniority and
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
would lead to a situation wherein a doctor junior to many, would be writing
senior doctors/ SAG officers' ACRs. The Association had pleaded that the
Lieutenant Governor to take action against the said impugned order of
appointment.
22. It is submitted by the Petitioner that there has been utter
mismanagement of the BSA Hospital ever since Respondent No. 4 has taken
charge as Medical Director,and that the Medical Director terribly failed at
putting a system in place whilst the coronavirus pandemic was laying waste
to the country and that people in the hospital could not provide an adequate
response to the need of the hour, as no reasonable arrangements had been
made to treat the affected people.
23. It is submitted that a short and limited issue is involved for
adjudication by this Court under Writ Jurisdiction herein. That whether
Respondent No. 4 possesses the relevant grade/ qualification for
appointment to the post of Medical Director or not.
24. Responding the contentions put forth by the Respondent No. 2 in this
Writ Petition regarding its maintainability, it is submitted that though it is
settled law that the scope of PILs is limited in service matters, however, at
the same time, it is also equally an equally well settled proposition of law
that a non-eligible and non-qualified person has no right to remain on a post
for which he is not eligible.
25. It is submitted that this PIL in the nature of a Writ for Quo Warranto
is maintainable before this Court even though the subject matter of dispute
pertains to a service matter as in this case, an absolutely unqualified and
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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Neutral Citation Number: 2023:DHC:3925-DB
ineligible person has been appointed in clear violation of statutory rules. It is
submitted that that the issue is no more res integra in light of the Judgement
of the Hon'ble Supreme Court in the case of Rajesh Awasthi v. Nand Lal
Jaiswal (2013) 1 SCC 501.
26. It is submitted that the Petitioner most certainly has a locus to file the
instant PIL and that it is a well settled position of law that a person, despite
being unrelated to the matter, can move the Court under its Writ Jurisdiction
praying for a Writ of Quo Warranto challenging the illegal and arbitrary
appointment of any person on a government post. It is submitted that in case
of the aforesaid situation arising, the person bringing the lis becomes a
relater to the issue involved. The same was settled in the case of Rajesh
Awasthi (supra).
27. It is submitted by the Petitioner that the law laid down by the Hon'ble
Supreme Court has been repeatedly followed by the Hon'ble Supreme Court
in a catena of Judgements which have been passed thereafter. It is submitted
that the position as elucidated in the case of Rajesh Awasthi (supra) was
followed in the case of M/s Society Standing For a You Mass Awareness
and Anr. v. Union of India & Ors., W.P. (C) 10600/ 2015, Judgement dated
23.03.2016.
28. Per contra, at the outset it has been submitted by Respondent No. 2
that the instant PIL has been filed in the case of a service matter and that it is
no more res integra that PIL cannot be sustained in service matters.
29. It is submitted by Respondent No. 2 that Respondent No. 4 was
appointed in a completely legal manner, following due process. Keeping in
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
mind the administrative skill, vigilance report/ clearance, managerial
experience and capability of the candidate, i.e., Respondent No.4, he was
appointed to the post of Medical Director.
30. It is submitted by Respondent No. 2 that the Impugned Order of
appointment of Respondent No. 4 is a purely administrative decision and
that the post of Medical Director is not a promotional post, nor is it based on
seniority.
31. The Respondent No. 2 further submitted that the instant PIL has been
filed with malafide and ulterior motives for creating undue pressure on the
concerned authorities. Further, there is no locus standi for the Petitioner to
be interfering with the general functions of appointment of officials by the
GNCTD, being a person who is not a concerned party and is unrelated to the
management/ administration of the BSA Hospital.
32. Respondent No. 2 submitted that Respondent No. 4 is an experienced
doctor, having served in the medical field for over 16 years and that he has
been working with the GNCTD since 2004 with utmost diligence. It is
submitted by Respondent No. 2 that the post of Medical Director of BSA
Hospital is not even included within Schedule II of the Allopathy Rules,
2009 as alleged by the Petitioner. It is submitted that the position of Medical
Director is an administrative position created by GNCTD and as GNCTD IS
the competent authority, it is empowered to appoint any doctor to the said
post based on relevant criterion it sets for eligibility, i.e., on the basis of
managerial, administrative and medical skill. Further, the said appointment
of Respondent No. 4 has also been confirmed by the Lieutenant Governor of
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Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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Neutral Citation Number: 2023:DHC:3925-DB
Delhi vide notice dated 03.03.2021.
33. It is submitted by Respondent No. 2 that most of the doctors, as has
been claimed by the Petitioner are eligible to the post of Medical Director at
BSA Hospital, have in fact attained the age of 62 years and are thus not
eligible to the post of Medical Director, as that is the outer limit with regards
to age up to which one can hold the post of Medical Director.
34. The Respondent No. 2 has thereafter proceeded to give explanations
categorically tackling names of doctors, whom according to the Petitioner
are eligible to be considered to the post of Medical Director, giving
explanations as to why the said doctors were not considered to the post of
Medical Director.
35. It is further submitted by Respondent No. 2 that there are no
complaints which have been received by the competent authority against
Respondent No. 4, and that he has been working efficiently in BSA
Hospital. Further, it is denied by Respondent No. 2 that there was any
fallacy or negligence in him conducting his duties, especially during the 2nd
wave of the coronavirus pandemic. The Respondent No. 2 has annexed a
total count of RAT and RT-PCR tests conducted by the BSA Hospital
during the months of April-June, 2021, to substantiate its submissions that
Respondent No. 4 has been working with utmost diligence.
36. It is submitted by the Respondent No. 2 that Schedule II of the
Allopathy Rules, 2009, would not be applicable to the post of Medical
Director, BSA Hospital, as that is not a duty post which comes under the
said rules. It is submitted that the post of Medical Director is an
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
administrative post which was created by the GNCTD for smooth
functioning of hospitals and is in no manner related to the post of Medical
Superintendent, as given in Schedule II of the Allopathy Rules, 2009.
37. It is submitted by Respondent No. 2 that pay band is not the only
criteria for appointment of Medical Director and that the fact that
Respondent No. 4 has been given the post of Medical Director, does not
entitle him to any additional perks, increments or promotion. It is stated that
Respondent No. 4 would still continue to be a Specialist Grade I.
38. Heard learned Counsels for the parties and perused the material
placed on record. The matter is being disposed of with the consent of the
parties at admission stage itself.
39. At the outset, we shall be dealing with the preliminary contention of
the Respondents with regards to the maintainability of this PIL, as it has
been alleged that the same is not maintainable in light of it being preferred
in a matter of service matter.
40. With regards to the preliminary objection, we do not find any weight
in the same as the same is no longer res integra. A Writ Petition seeking a
Writ of Quo Warranto is maintainable in the case of service matters, keeping
in mind the Judgement of the Hon'ble Supreme Court in the case of Rajesh
Awasthi (supra). The relevant paragraph substantiating the afore stated
position of law is produced hereunder -
"31. From the aforesaid pronouncements it is graphically clear
that a citizen can claim a writ of quo warranto and he stands in
the position of a relater. He need not have any special interest
or personal interest. The real test is to see whether the person
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ROHELLA
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holding the office is authorised to hold the same as per law.
Delay and laches do not constitute any impediment to deal with
the lis on merits and it has been so stated in Kashinath G.
Jalmi v. Speaker [(1993) 2 SCC 703 : AIR 1993 SC 1873] ."
41. Now that the preliminary objection of the Respondents has been dealt
with, we can now proceed to deal with this matter on merits. For the same, it
shall be useful to refer to a previous order of this Court passed in the instant
matter.
42. On 04.11.2022, this Court, after perusing the relevant rules had come
to the conclusion that the post of Medical Director itself, does not exist as
per the relevant Recruitment Rules. In light of this, the Court had asked the
Respondents to place on record how Respondent No. 4 came to be appointed
as a Medical Director, when the said post does not even exist as per the
Recruitment Rules. The affidavit so filed was required to also mention the
qualifications for the post of Medical Director.
43. Consequently, an additional affidavit dated 06.02.2023 has been filed
by Respondent No. 2 herein, attaching an Order dated 19.02.2016 issued by
Respondent No. 2 after approval from the Health Minister, GNCTD. The
affidavit states that the post of Medical Director was created to better
coordinate and manage hospital affairs between different Medical
Superintendents and officers. The affidavit further stated that the post of
Medical Director is not governed by the qualification criterion under the
DHS (Allopathy) Rules, 2009 and that the eligibility criterion is only
governed vide aforesaid order. The Order attached with the said affidavit is
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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reproduced hereunder for easy reference -
GOVERNMENT OF NCT OF DELHI
HEALTH & FAMILY WELFARE DEPARTMENT
9th LEVEL, A-WING, DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI-2
DATED
ORDER
In continuation of order no. ss2hfw/2015/Cab.Note/CD-
th
112333566/prsecyhfw/1238-87, dated 25 July the re-organization of
hospitals into smaller units of management under separate Medical
Superintendents is being done as under. This shall lead to intensive
management and control of Hospitals since the units shall be of a compact
nature and better manageable rather than one officer managing all the
Units/ Departments of Hospitals.
2. Re-organization shall be as under:-
Sl No. Name of Name & No. of Name of Speciality/ Units
Hospitals/ Units
Institutions
1. UCMS & Medical College 1. Medical College
Associated GTB (Principal)
Hospital 1. Surgical & Allied
GTB (Medical Services
Director) 2. Medical & Allied
Services
3. Accident & Emergency
Services
4. Maternity & Child
Health (MCH)
5. Diabetes &
Endocrinology
2. MAMC & Medical College 1. Medical College
Associated (Dean)
Hospitals (LNH, LNH (Medical 1. Surgical & Allied
GBP Hospital, Director) Services, LNH
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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GNEC) 2. Medical & Allied
Services, LNH
3. Accident & Emergency
Services, LNH
4. Maternity & Child
Health (MCH), LNH
5. Advance Paediatric
Center
GNEC 1. Eye, GNEC
GB PANT 1. Cardiology & CTVS,
(Medical GBPH
Director) 2. Neuro-Sciences, GBPH
& LNH
3. Gastro - sciences (GE &
GI Surgery), GBPH
3. BSA Hospital & Medical College 1. Medical College
Medical College (Principal)
BSAH (Medical 1. Surgical & Allied
Director) Services, BSAH
2. Medical & Allied
Services, BSAH
3. Accident & Emergency
Services, BSAH
4. Maternity & Child
Health (MCH), BSAH
4. DDU Hospital Medical Director 1. Surgical & Allied
Services, DDUH
2. Medical & Allied
Services, DDUH
3. Accident & Emergency
Services, DDUH
4. Maternity & Child
Health (MCH), DDUH
3. For hospitals mentioned above at Sl. No. 1 to 4, a Medical Director
shall be designated who shall be a coordinating officer among different MSs
of hospital as well as he shall be exercising the financial powers of the
existing Medical Superintendents.
4. For the hospitals mentioned at Sl. No. 5, out of two MSs one of the MS
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ROHELLA
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will be designated as coordinating MS as well as he shall be exercising the
financial powers of the existing Medical Superintendent of the hospital. For
the hospitals listed at Sl. No. 6, there will be one Medical Superintendent
only.
Sl No. Name of No. of Units Name of Units
Hospitals/
Institutions
5. JPCH, BSH, 02 each 1. Accident & Emergency
DCBH,BMH, Services, Medical & Allied
BJRM,SGMH, Services
DHAS, GGSGH,
MVH, SRHCH,
ASBGH, RTRMH
2. Maternity & Child Health
(MCH)
6. Attar Sain Jain 01 1. Only one MS
Eye Hospital,
DDMASC,
SVBPH,
Shusruta Trauma
Centre, NC Joshi
Hospital, AAAH,
PMMMH
5. The respective Medical Directors and Coordinating MSs will report
to Regional Director Health Services according to the region. The orders
for the different Medical Directors & Coordinating MSs will be issued
separately. The Regional Directors shall however, be responsible for
overall coordination and delivery of health services in the region.
6. All the administrative work shall be carried out by the Administration
Department and other supporting Departments centrally under the Director
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ROHELLA
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Medical/ Coordinating MSs.
7. All the Medical Superintendents stated above shall manage their
respective Units in close coordination with the Director Medical/
Coordinating MSs.
8. This issues with the approval of competent authority.
(PRADEEP KUMAR)
Dy. Secretary (HR)"
44. A perusal of the aforesaid Order dated 19.02.2016 shows that it does
not in fact stipulate any qualification/ essential criterion for being considered
for appointment to the post of Medical Director, BSA Hospital at all. The
Respondent No. 2 has stated that the same can be done on the basis of an
administrative decision, keeping in mind the administrative skill, vigilance
report/ clearance, managerial experience and capability of the candidate,
however, nowhere is the same stated in the afore produced Order.
45. It is an undisputed fact that the post of Medical Director does not find
place in the Allopathy Rules, 2009. The post of Medical Director was
created only in terms of the aforesaid mechanical Order dated 19.02.2016.
The same, or any other submissions and documents put forth by the
Respondents to build their case, has most certainly not satisfied the judicial
conscience of this Court.
46. It is without a doubt clear to the mind of this Court, that the post of
Medical Director was created without following due process. The
Respondents have not placed anything on record to state that due process
was followed for the sanctioning of post of Medical Director. Though it is
clearly stated as per Rule 4 of the Allopathy Rules, 2009 that the
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ROHELLA
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government can include posts other than the ones mentioned in Schedule II
of the Allopathy Rules, 2009 after consultation with the Union Public
Services Commission, the Respondents have not placed anything on record
to show that the said process was followed for creating the post of Medical
Director.
47. The submission of the Respondents that eligibility to the post of
Medical Director BSA Hospital, is not related to the pay band, seniority, or
governed by any of the criterion as set out in the Allopathy Rules, 2009,
further, that it is only an administrative decision keeping in mind the
administrative skill, vigilance report/ clearance, managerial experience and
capability of the candidate being considered for the post of Medical
Director, does not hold weight. In the opinion of this Court, such a vague
criterion affording an almost opaque discretion to the government for
deciding who shall be appointed to the post of Medical Director, a sensitive
and senior post in the hospital, being responsible for preparing ACRs of
various employees of BSA Hospital and obtaining relevant machinery etc.,
cannot be allowed. The State is duty bound to act in a fair and transparent
manner in matters of public employment. Any criterion which would be
arbitrary in matters of public employment, would run afoul of Articles 14 &
16 of the Constitution.
48. In this instant case, the Respondents have gone ahead to appoint a
candidate to one of the highest posts of BSA Hospital in an extremely
arbitrary manner, bypassing many candidates who were in fact more senior
to Respondent No. 4. Further, the post of Medical Director itself created by
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By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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Neutral Citation Number: 2023:DHC:3925-DB
the Respondents, in terms of the Order dated 19.02.2016 itself was not done
in accordance with due process. The Respondents were required to amend
the Allopathy Rules, 2009 if they desired to include the post of Medical
Director, or in the least show that due consultations were carried out with
relevant stakeholders for the creation of the post of Medical Director,
instead of mechanically taking out an order, one which does not even
stipulate any eligibility criterion to the post of Medical Director.
49. Further, the stance of the Respondents that the Allopathy Rules, 2009
or seniority shall not be applicable to the post of Medical Director, BSA
Hospital seems to be an afterthought on their part, keeping in mind the
minutes of meeting dated 03.03.2021 proposing the names for Medical
Director along with the Impugned Order of appointment on record. Firstly,
the post itself is one which has been created without following due process,
secondly, Respondents have appointed Respondent No. 4 to an irregular
post, whilst not even keeping in mind the criterion they themselves have
stipulated for appointment to the said post.
50. Thus, in no manner can it be construed that the appointment of
Respondent No. 4 was done keeping in mind the relevant statutory
provisions.
51. Public employment in a sovereign, socialist, secular, democratic
republic, has to be as set down by the Constitution and the laws made
thereunder. Our Constitutional scheme envisages employment by the
government and its instrumentalities on the basis of procedure established .
Equality of opportunity is the hallmark, and the constitution has provided
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
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Neutral Citation Number: 2023:DHC:3925-DB
also for affirmative action to ensure that unequals are not treated as equals.
Thus, any public employment has to be in terms of the constitutional
scheme.
52. The power of a State as an employer is more limited than even that of
a private employer inasmuch as it is subjected to constitutional limitations
and cannot be exercised arbitrarily. Herein, the Allopathy Rules, 2009 have
been framed in exercise of the powers of the government granted under
Article 309. Article 309 of the Constitution of India gives the government
the power to frame rules for the purpose of laying down the conditions of
service and recruitment of persons to be appointed to public services and
posts in connection with the affairs of the union or any of the states. It
contemplates the drawing up of a procedure and rules to regulate recruitment
and service conditions of appointees appointed to public posts. If rules have
been made under Article 309 of the Constitution, then the government can
make appointments only in accordance with the rules. The State is meant to
be a model employer. It is recognised that no government order, notification
or circular can be substituted for the statutory rules framed under the
authority of law. This is because following any other course could be
disastrous inasmuch as it will deprive the right of equality conferred on civil
servants under the constitutional scheme. It may even amount to negating
accepted principles of service jurisprudence. Therefore, when statutory rules
are framed as per Article 309 of the Constitution which are exhaustive, the
only fair means to adopt is to make appointments based on the rules so
framed.
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
Neutral Citation Number: 2023:DHC:3925-DB
53. In light of the aforesaid, this instant Writ Petition is allowed and the
Impugned Order of appointment of Respondent No. 4 as the Medical
Director, BSA Hospital is set aside.
54. The Writ Petition along with any pending application(s) is disposed of
in these terms.
(SATISH CHANDRA SHARMA)
CHIEF JUSTICE
(SUBRAMONIUM PRASAD)
JUDGE
MAY 24, 2023
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:31.05.2023
17:30:25
