CWP No.12587 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.12587 of 2010 Date of decision: 11.11.2010 Dr. Rohtas Kanwar Yadav -----Petitioner Vs. Union of India and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Puneet Bali, Advocate for the petitioner. Mr. Rajiv Atma Ram, Senior Advocate with Mr. Vikas Kuathiala, Advocate for respondent Nos.1 to 3. Mr. S.D.Sharma, Sr. Advocate with Ms. Bindu Goel, Advocate. Adarsh Kumar Goel,J. 1. This petition has been filed against order of the Central Administrative Tribunal upholding extension granted to respondent No.4 Dr. K.K.Talwar as Director-cum-Professor of Cardiology-cum- Chief of Advanced Cardiac Centre, PGI upto 30.4.2011. The Tribunal has directed that in future proper procedure be followed for appointment of Director and the post of Professor/HOD Cardiology be re-advertised and process of selection be completed preferably within six months from the date of receipt of a copy of the order. 2. Respondent No.4 Dr. K.K.Talwar was appointed as Director in the Post Graduate Institute of Medical Education and Research (PGIMER) for a tenure of five years from 1.4.2004 or upto the age of 62 years whichever was earlier. Since his term was to expire 1 CWP No.12587 of 2010 on 30.4.2008 on reaching the age of 62 years, the same was extended upto 31.3.2009 vide order dated 7.4.2008. He was given further appointment for the period from 1.4.2009 to 30.4.2011 i.e. till the age of 65 years vide letter dated 31.3.2009. 3. The petitioner, the original applicant before the CAT was employed at PGIMS, Rohtak. He filed a petition under section 19 of the Administrative Tribunals Act, 1985 on 28.6.2009 questioning order dated 7.4.2008 approving appointment of Dr. Talwar upto 31.3.2009 and letter dated 31.3.2009 giving further appointment upto 30.4.2011. 4. Case set out in the petition was that the impugned orders were passed without following any procedure consistent with Article 16 of the Constitution of giving equal opportunity to all eligible candidates. It was further submitted that on expiry of the term of the appointment of the Director, senior most Professor could have been appointed to look after the functions of the Director or the Institute itself could make appointment for a period of six months or for longer period after approval of the Central Government as per Rule 7(4) of the PGIMER Chandigarh Rules, 1967 (in short, ‘the Rules’). Appointment could not have been made by the Central Government. 5. In the reply filed by the PGI and Dr. Talwar, apart from submitting that the petitioner had no locus standi and there was delay in filing the petition, stand taken was that extension given to Dr. Talwar was valid and as per practice prevalent. The appointment of respondent No.4 was not a fresh appointment and while continuing the appointment, consideration was that age of superannuation of medical teaching specialists of Central Health Services and other medical 2 CWP No.12587 of 2010 institutes which was earlier 62 years had been raised to 65 years in the year 2007 i.e. after initial appointment of Dr. Talwar. It was also stated that Dr. Talwar was allowed to function as Professor and Head of department of Cardiology in addition to holding the post of Director as no Professor was available in the said department since 1999 inspite of advertisements issued. He was an eminent cardiologist. 6. The findings recorded by the Tribunal are as under:- i) There was no dispute about eligibility of respondent No.4 for the post ; ii) Age of superannuation of medical teaching faculty was raised to 65 years vide notification dated 30.11.2007; iii) The petitioner had the locus standi to maintain the application inspite of dismissal of CWP No.2187 of 2009 filed by one Sat Pal Bhardwaj, retired Head Clerk of the PGI by this Court on 11.2.2009 on the ground of locus; iv) Continuation upto 31.3.2009 need not be gone into as the petition itself was filed after the expiry of that period. v) As regards continuation upto 30.4.2011, there was no illegality in appointment being made by the central Government which had overriding powers under section 25 of the Act and in view of extension of age of retirement upto 65. It was further observed that term of the Institute constituted in the year 2003 had come to an end on 8.12.2008 and after re- constitution, the Institute ratified the appointment. vi) There was no illegality in functioning of Dr. Talwar as Professor and Head of the department of 3 CWP No.12587 of 2010 Cardiology in absence of availability of a suitable incumbent for the said post. vii) Though the order of continuation upto the age of 30.4.2011 was passed by the Central Government, the same was sent to the institute and approved by the Institute which was at best an irregularity which did not affect the appointment. The term of the governing body of the Institute had come to an end and on reconstitution, the institute had ratified the appointment. 7. We have heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioner challenged the findings of the Tribunal on the ground that continuation of respondent No.4 was contrary to section 11(1A) of the Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966 (for short ‘the PGI Act’) in as much as appointment tenure could not be more than five years which expired on 31.3.2009. In case, if any extension was to be given under rule 7(4), the same could be only upto six months or more but not of such long duration as two years. In case, it was treated as fresh appointment, prescribed procedure of appointment had to be followed so as to comply with Article 16 of the Constitution. In any case, respondent No.4 could not be allowed to function as Professor and Head of the department of Cardiology in addition to the post of Director in view of judgment of the Hon’ble Supreme Court in Dr. S.K.Kacker v. All India Institute of Medical Sciences and others, 1996(5) SLR 699. It was further submitted that the finding that the term of the Institute had expired was erroneous as the Institute was a 4 CWP No.12587 of 2010 continuing body. In CM No.12388 of 2010 filed by Dr. Y.P.Sharma, Additional Professor in Cardiology, apart from adopting the contentions of the petitioner, it has been stated that he was appointed as Head of the Cardiology department on 22.7.2008 but was not allowed to function as such from 31.3.2009 without any opportunity of being heard. 9. Learned counsel for the respondents supported the findings of the tribunal. 10. Since appointment and continuation of respondent No.4 upto 31.3.2009 have not been pressed, only question for consideration is whether continuation of respondent No.4 beyond 31.3.2009 as Director, Professor and Head of Cardiology suffered from any legal infirmity. 11. The PGIMER has been constituted under the provisions of the PGI Act. On availability of the vacancy of the Director, process for filling up the post was started by issuing a notification/circular dated 5.11.2003. The Selection Committee, recommended the appointment of respondent No.4 and accordingly respondent No.4 was appointed for five years or till attaining the age of 62 years. The said letter is as under:- “In pursuance of the approval of the Central Government conveyed vide Government of India, Ministry of Health and Family Welfare letter No.17020/91/2003-ME-Desk II dated 23rd March, 2004, the Institute is pleased to appoint Prof. K.K.Talwar as Director, Post Graduate Institute of Medical Education and Research, Chandigarh for a period of five years from the date of his joining or until the age 5 CWP No.12587 of 2010 of superannuation at the age of 62 years or until further order, whichever is earlier. He will also function as Professor and Head, Department of Cardiology in addition to holding the post of Director, PGIMER, Chandigarh.” 12. On completion of the age of 62 on 30.4.2008 but before completion of period of five years, order dated 7.4.2008 was passed on representation of respondent No.4 allowing him to continue upto 31.3.2009 so as to complete the tenure of five years. The said order is as under:- “The appointments Committee of Cabinet (ACC) has approved the proposal for allowing Dr. K.K.Talwar, Professor and Head, Department of Cardiology, All India Institute of Medical Sciences, New Delhi as Director, PGIMER, Chandigarh for a tenure of five years i.e., from 1.4.2004 to 31.3.2009 on the post or until further orders, whichever is earlier. Approval is also conveyed to the functioning of Prof. K.K.Talwar as Professor and Head of the department of Cardiology in addition to holding the post of Director, PGIMER, Chandigarh.” 13. Thereafter on 31.3.2009, further order continuing respondent No.4 till 30.4.2011 i.e. till attaining the age of 65 was passed. As already noticed, age of retirement of teaching faculty in medical colleges was increased to 65 years. The said order is as under:- “In pursuance of the approval of the appointments Committee of Cabinet (ACC) conveyed by the Government of India, Ministry of Health and Family 6 CWP No.12587 of 2010 Welfare vide letter No.V.17020/66/2006-ME.II dated 31st March, 2009, Dr. K.K.Talwar, Professor and Head, Department of Cardiology, All India Institute of Medical Sciences, New Delhi is allowed to continue as Director, PGIMER, Chandigarh for a 2nd tenure of two years and one month w.e.f 1.4.2009 to 30.4.2011 i.e. till he attains the age of 65 years or until further orders whichever is earlier as per the existing terms and conditions. He will also function as Professor and head, department of cardiology in addition to holding the post of Director, PGIMER, Chandigarh.” 14. Section 11(1A) and Rule 7(4) are as under:- “11(1A). The Director shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty five years whichever is earlier. xx xx xx xx xx xx” “Rule 7(4). In the event of the Director proceeding on leave or resigning, retiring or the post otherwise falling vacant, till such time a new Director is appointed, the President may appoint the Senior-most Professor to look after the functions of the Director for a period not exceeding six months; Provided that the Institute may appoint, for reasons to be recorded in writing, any other person as Director for a period not exceeding six months; Provided further that if the period of such appointment is likely to exceed six months, prior approval of the Central Government shall be taken 7 CWP No.12587 of 2010 before granting extension of such appointment beyond six months.” 15. It is clear from Section 11(1A) of the PGI Act that appointment can be maximum for a period of five years or upto the age of 65 whichever is earlier. Though respondent No.4 will be completing the age of 65 on 30.4.2011, objection is to extension of tenure beyond the statutory period of five years. In our view, the said provision applies only to first appointment. There is no bar to second appointment or extension if otherwise permissible. Normally, for giving a second appointment, same procedure as is adopted for the first appointment ought to be followed but this requirement cannot be held to be rigid. Object of wide publicity is to get the best available candidate for the Institute and also to provide opportunity to all eligible candidates. Procedure for due publicity has been adopted by the PGI under its regulations and was followed at the time of initial appointment. The same was not followed for further continuation/extension. Every public appointment has to be normally made after due publicity and selection process. However, extension does not contemplate the same procedure as it is merely stop gap arrangement. Temporary tenure appointment also may not always require any rigid procedure. Reference may be made to judgment of the Hon’ble Supreme Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Association, (2006) 11 SCC 731, paras 75 and 91 to 93. If having regard to nature of post, utility of the incumbent and the age of retirement, period for which 8 CWP No.12587 of 2010 appointment is to be made, there may be no illegality involved in such appointment being given. We are not concerned with a case where action may be malafide. Rule 7(4) of the rules itself permits an extension even beyond period of six months with the approval of Central Government. In the present case, Central Government itself made the appointment which has been ratified by the Institute. Even if Institute was continuing appointment by Central Government and ratification by PGI did not render the appointment void nor caused any prejudice to anyone. The view taken by the Tribunal does not, thus, call for any interference. 16. As regards objection to functioning of respondent No.4 as Professor and Head of the department, in addition to the post of Director, we do not find any legal bar in such course being adopted when in the order of appointment itself, it was so contemplated. It is not disputed that respondent No.4 is duly qualified to hold the said post and the post of Professor is still vacant. The judgment relied upon on behalf of the petitioner in Dr. S.K.Kacker does not apply to the present situation. In the said case, claim of Dr. S.K.Kacker was to lien to the post of Professor after ending of his tenure as Director. Negativing the claim, it was observed that on appointment as Director, his lien on the post of Professor ended. The said lien could not continue as he could not hold two substantive posts at a time. In the present case, issue is different. Respondent No.4 was appointed as Director as well as professor and Head of Cardiology. He was not claiming independent retaining of lien de hors appointment as in the case of Dr. Kacker. 9 CWP No.12587 of 2010 There is no violation of right of Dr. Sharma who was allowed to officiate as HOD for some period as stop gap arrangement. 17. We, thus, do not find any merit in this petition and the same is dismissed. (Adarsh Kumar Goel) Judge November 11, 2010 (Ajay Kumar Mittal) ‘gs’ Judge 10