C.W.P.No.9686 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.9686 of 2010 Date of Decision:- 09.07.2010 Dr.Bhushan Kumar ....Petitioner(s) vs. Union of India and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Sudershan Goel, Advocate and Mr.Gaurav Jindal, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. Through this writ petition, challenge has been posed to the order dated 11.2.2010 (Annexure P-1) passed by the Central Administrative Tribunal, Chandigarh Bench, vide which the Tribunal has dismissed the petition preferred by the petitioner challenging order dated 28.5.2007 (Annexure P-2) depriving the petitioner of higher pay-scale with effect from 1.12.2002 i.e. the date on which persons junior to him were granted the said scale. Counsel for the petitioner contends that the petitioner retired as Professor and Head of the Department of Dermatology, Post Graduate Institute of Medical Education and Research, Chandigarh (PGIMER) on 31.12.2004. A decision was taken by the governing body of PGIMER- respondent No.2 to place 25% Professors in the higher pay scale. To C.W.P.No.9686 of 2010 -2- determine the eligibility of Professors who were to be placed in the higher pay-scales, guidelines were formulated in the meeting held on 10.1.2002. According to those guidelines, the Professors were to be given higher pay- scales on the basis of seniority-cum-merit and ACRs with grading 'Good' to be considered eligible for placement in higher pay-scale. Apart from this, merit was to be assessed in the light of over-all contributions towards teaching and research for which it was proposed that a brief curriculum vitae (C.V.) may be obtained from each of the Sr. Professors under consideration. There was a backlog of vacancies which were to be considered for placement of Professors in the higher pay-scale for the year 2002 onwards. A decision was taken in the meeting of the governing body of respondent No.2-PGIMER on 19.9.2006 to fill up all vacancies and grant higher pay-scale to eligible Professors for the years 2002 to 2006. The petitioner was informed of the said decision dated 19.9.2006 and in response thereto, he submitted his bio-data in support of his claim to be placed in the higher pay-scale with effect from the date the vacancy became available. The Departmental Promotion Committee (hereinafter referred to as the DPC) of respondent No.2 recommended 16 persons to be awarded higher pay scale. The governing body accepted the said recommendations and vide order dated 28.5.2007, awarded higher pay scales to these 16 persons as recommended by the DPC. The name of the petitioner did not find mention in this order while persons junior to him were awarded the higher pay-scale. The petitioner sought information under the Right to Information Act to find out the reason for dis-approval of the claim of the petitioner for the higher pay-scale while granting the same to his juniors. C.W.P.No.9686 of 2010 -3- Since, the information so supplied to the petitioner did not disclose any reason for not granting the benefit to him, he served a legal notice dated 30.4.2008 on respondent No.2-PGIMER and respondent No.3-the President, governing body of the PGIMER, Chandigarh. On seeing no response to the said notice, the petitioner preferred a writ petition in this Court which was transferred to the Tribunal for adjudication on a notification being issued by the Union of India during the pendency of the writ petition conferring jurisdiction on the Central Administrative Tribunal, Chandigarh Bench, to adjudicate the service matters relating to the said Institute. Written Statement was filed by the respondents wherein the reasons assigned for non-grant of higher pay-scale were the aberrations committed by the petitioner prior to the date of his appointment as a Professor. The Central Administrative Tribunal accepted the stand of the Respondent-PGIMER and dismissed the case of the petitioner vide order dated 11.2.2010. Counsel for the petitioner submits that the petitioner was appointed as a Professor on 11.2.1995 but the material and the allegations against him pertained to the period prior thereto which could not have been taken into consideration by the respondents for depriving the petitioner of the benefit of higher pay scale. He contends that the petitioner could not have been deprived of the benefit on the basis of material which was relied upon by the respondents as it was not after the appointment of the petitioner as a Professor and further that the recommendations of the DPC are based on extraneous and irrelevant factors especially when the petitioner had been exonerated when the proceedings against the petitioner were dropped by the competent Authority way back on 8.2.1995. He accordingly prays for setting aside the order dated 11.2.2010 (Annexure P-1) passed by the C.W.P.No.9686 of 2010 -4- Central Administrative Tribunal as also the order dated 28.5.2007 (Annexure P-2). We have heard counsel for the petitioner and have gone through the records of the case as also the impugned orders. At the very outset, it must be noted that the petitioner had not placed any documents on record to press and show or demonstrate his over all contributions towards teaching and research which was required to assess the merit. No mala fides have been alleged by the petitioner against the respondents while considering his case for grant of higher pay-scale. The criteria evolved and approved by the governing body for consideration to determine the eligibility of the candidates who were to be placed in the higher pay-scales as formulated in its meeting held on 10.1.2002 has also not been questioned which reads as follows:- “(1) The Committee suggested that the placement of Professors in the higher grade may be decided on the basis of seniority-cum-merit. (2) They further suggested that merit be assessed in the light of overall contributions towards teaching and research. For this purpose, the Committee suggested that a brief curriculum vitae may be obtained from each of the Senior Professors under consideration on the prescribed format at Annexure-A. (3) As regards the ACRs the Committee proposed that Professors with minimum overall ACR grading of 'GOOD' may be considered eligible for placement in the higher grade of 22400-525-24500, subject to seniority C.W.P.No.9686 of 2010 -5- and assessment of merit as proposed in (2). It was also agreed that only ACRs written by independent reporting and reviewing authorities be considered. (4) The Committee recommended that vigilance clearance of all the eligible Professors must be obtained and considered while making its recommendations for placement of Professors in the higher pay-scale.” The Departmental Promotion Committee in its meeting held on 10.1.2002 (Annexure P-3) decided to suggest that 5 ACRs written by the independent Reporting and Reviewing Authority of each Professor prior to 2000 may be considered even if some of those ACRs related to the period prior to the year 1995 keeping in view the instructions contained in 6.2.1(c) of G.I.Deptt. of Per. & Trg. OM No.22011/5/86-Estt.(D), dated 10.4.1989 as amended by OM No.22011/5/91-Estt, (D) dated 27.3.1997, which provides for consideration of the confidential reports by the DPC. Thus, the ACRs which were to be taken into consideration for the purpose of granting higher pay scales were from 1995 to 2000 and even prior thereto. It is not in dispute that the aberrations committed by the petitioner for which explanation was sought by the Director of the PGIMER, Chandigarh vide letter dated 7.5.1993 came to be finalized by taking a lenient view in the matter since the petitioner had regretted and apologized and accepted his mistake vide letter dated 8.2.1995 of the Government of India, Ministry of Family Health and Welfare (Annexure R-10). The criteria as laid down by the governing body has been reproduced here-in-above and clause 2 thereof provides for the assessment of the merit of the candidate which provides for taking into consideration the over-all contribution towards teaching and C.W.P.No.9686 of 2010 -6- research of such a candidate. In the written statement filed by the respondents, in para 1 of the preliminary submissions and reply on merits, the over all record of the petitioner and the complaints against him have been mentioned as follows:- “So far as the petitioner is concerned, there have been several complaints against him regarding submission by him of false and incorrect research papers for publication. The petitioner has been indulging in plagiarism. Though there are several complaints by the Head of the Department, Department of Dermatology against the sending of incorrect and false information by the petitioner for publication, some of them are highlighted below for the kind perusal of this Hon'ble Court: a) The petitioner had purportedly co author with his wife to an article titled “Oral Acyclovir Versus Placebo in acute herpes zoster”. It was sent to the Chief Editor, Indian Journal of Dermatology, Venereology and Leprology. On scrutiny it was found that the culture part of the study had never been done at all. In this regard the Chief Editor, Indian Journal of Dermatology, Venereology and Leprology wrote to the petitioner regarding how disappointed he was regarding his false research paper. The Chief Editor, Indian Journal of Dermatology, Venereology and Leprology also sent his remarks to the Professor and Head, Department of C.W.P.No.9686 of 2010 -7- Dermatology as also to the Director of the respondent- institute. When the petitioner found that his act had been discovered, he attempting to cover up the whole issue wrote to the Chief Editor, Indian Journal of Dermatology, Venereology and Leprology wherein he accepted misreporting. Copies of the letters dated 28.11.1991, 30.11.1991, 29.11.1991, 30.11.1991, 30.11.1991 and 20.9.1991 are annexed herewith as Annexures R/1 to R/6 respectively. b) Similarly another paper titled as “the rare coexistence of leprosy and psoriasis” which was sent by the petitioner to the Central Jalma Institute for Leprosy (Indian Council of Medical Research) for publication was also found to be based on false figures. Accordingly, the concerned authorities wrote back to the petitioner regarding the same. Copy of the letter sent to Dr.Bhushan Kumar is annexed herewith as Annexure R/7. c) The Ethics Committee took up the entire matter and the relevant portion of the decision by the Ethics Committee dated 20.4.1992 is reproduced below: “Dr.Bhushan Kumar wrote to the Editor for publishing his regrets and for withdrawing the papers which the Editor did not permit. During his clarifications to the ethnic committee also he expressed his regrets and apology for this lapse and offered no explanation or C.W.P.No.9686 of 2010 -8- defence. It is obvious that he as the senior author of this paper was not careful enough in scrutinizing the data and confirming its authenticity----. Sd/- Prof. B.K.Sharma, Chairman, Ethics Committee, 20.4.1992” d) On 7.5.1993 the then Director of the PGIMER, Chandigarh wrote to the petitioner seeking his explanation on false date in the reports. The petitioner replied to this letter through his communication dated 22.6.1993. The relevant portion of the reply by the petitioner is as under:- “It was mistake that I did not examine in detail the feasibility of Culture of Herpes Zoster Virus on egg yolk. I believed Prof. Pal's statement in the original scheme and the interim report completely.” Copies of the letter dated 7.5.1993 and 22.6.1993 are annexed herewith as Annexure R/8 and R/9 respectively. Taking a lenient view in the matter since petitioner had earlier regretted and apologized and now accepted his mistake the matter with regard to proceeding further against him was dropped and the matter was closed. A copy of this letter by the Govt. of India, Ministry of Health and Family Welfare dated 8.2.1995 to the Director of the PGI is annexed herewith as Annexure C.W.P.No.9686 of 2010 -9- R/10. 2. That the record shows several complaints against the petitioner by the Head of the Department i.e. his superior. Even the Director of the respondent-institute had brought the facts pertaining preliminary acts of omission and commission on the part of the petitioner to the then President, PGIMER, Chandigarh and Union Minister for Health and Family Welfare, New Delhi. This was done through letter dated 19.5.1992. The final decision of the Govt. of India have already been annexed hereinbefore is annexed herewith as Annexure R/10 wherein the Govt. of India considering the regret, apology and acceptance of mistake by the petitioner decided to take a lenient view in the matter and decided to close the case and not took any further action against the petitioner. Copy of the letter dated 19.5.1992 is annexed herewith as Annexure R/11. That in view of the above and considering the overall record of the petitioner it was considered that the petitioner was not meritorious enough to be placed in the higher pay scale. It was further felt that the petitioner's overall contribution towards the research was not such which would entitle him to be placed in the higher grade. In view of the above, the present petition deserves to be dismissed.” A perusal of the above shows that the claim of the petitioner C.W.P.No.9686 of 2010 -10- was duly taken into consideration by the DPC and in any case, the consideration of the claim was in accordance with law. A lenient view had been taken by the competent Authority after the petitioner had regretted, apologized and accepted his mistake. Such conduct on behalf of a senior faculty member as has been placed on record by the respondents does not entitle him to the claim of higher pay-scale. In any case, the petitioner has not pleaded or placed any document(s) on record to justify his claim for grant of higher pay-scale nor has any mala fide been alleged against any member of the DPC. The jurisdiction of the Court while considering the decisions/recommendations of the DPC does not call for any interference unless the same are found to be arbitrary or mala fide or in violation of the statutory rules. The Court cannot sit over the decisions/recommendations of the DPC as an appellate Authority nor can it assume the role of such a Committee. No illegality has been committed by the DPC nor any fault can be found with the recommendations made by the said Committee which would call for any interference by this Court in exercise of its extraordinary writ jurisdiction. Thus, order dated 11.2.2010 passed by the Central Administrative Tribunal, Chandigarh Bench being in accordance with law is upheld. There being no merit in the present writ petition the same stands dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE July 09, 2010 poonam Whether referred to Reporter? Yes/No.