M.A.Khan, J. - (1.) By way of this petition the petitioner seeks for issuance of a writ order or direction in the nature of Mandamus commanding the opposite parties to hold the Selection Committee and appoint a Head of Department of Gastro Enterology ( Surgical) within a stipulated period and in accordance with the provisions of Section 22(5) of the Sanjay Gandhi Postgraduate Institute of Medical Sciences Act 1983 ( hereinafter referred to as SGPGIMS Act ).
(2.) The petitioner Prof. Rajan Saxena has filed this writ petition with the allegations that he was appointed as Professor of Gastro Enterology (Surgical) by the President of the SGPGIMS on 10.2.2000 and yet another candidate Dr. V.K. Kapoor was similarly appointed as Professor in the said Institute. Under Section 22(5) of the SGPGIMS Act, Head of the Department has to be appointed and for that purpose a Selection Committee will have to be constituted. It is said that two posts of Professors, Gastro Enterology are of equal grade and rank but inspite of it the Director, SGPGIMS on 11.2.2000 issued an office order to the effect that other Professor being the senior Professor shall continue to discharge the duties of Head of Department of Gastro Enterology. It has been pleaded that once the petitioner and one another Professor, namely, Dr V.K. Kapoor were selected and appointed as Professors in the same department against the two posts of equal rank and grade, the Director, SGPGIMS could not hold the intervener i.e. Dr. V.K. Kapoor to be senior to the petitioner and , therefore, aggrieved by the said order, the petitioner has filed a petition under Section 36 of the SGPGIMS Act before the Visitor of SGPGIMS, who allowed the petition of the petitioner and directed that the petitioner and Dr. V.K. Kapoor be required to act as Head of the Department for three years on rotational basis as both, the Professors hold equal rank and grade as Professor of SGPGIMS. Aggrieved by the above order, Dr. Kapoor then filed a writ petition No. 1169(SB) of 2001 challenging the Visitor's order and the same was partly allowed and it was provided that Dr. V.K. Kapoor shall continue to act as Head of the Department Gastro Enterology till regular selection and appointment on the post of Head of Department is made in accordance with the provisions of Sub Section (5) of Section 22 of the SGPGIMS Act. The appointment of Dr. V.K. Kapoor as Head of the department is totally transitory and temporary and the Director has not cared to appoint Head of the Department by following the provisions of Section 22(5) of the Act. The petitioner made several representations but all in vain; hence the petition.
(3.) A joint counter-affidavit for and on behalf of opposite parties No. 1 and 2, has been filed in which it has been pleaded that no post of Head of Department has ever been sanctioned or created in any of the department of the Institute since the inception of the SGPGIMS in the year 1986. Since need was felt to have an administrative figurehead in each department to function as Head of Department, as a practice the senior most teacher in every department has been designated as the Head of Department. It has further been pleaded that from the very inception the SGPGIMS has been attempting to model itself on the pattern of All India Institute of Medical Sciences, New Delhi (hereinafter referred to as AIIMS) and since the AIIMS, New Delhi also senior most teacher of each department has been working as Head of Department, the SGPGIMS is also following the said practice. The petitioner and Dr. V. K. Kapoor are both Professors in the department of Gastro Enterology (Surgical) and Dr. V.K. Kapoor is the senior most Professor and thus he was designated as Head of Department. The order passed by the Visitor of SGPGIMS was quashed by the this Court and it was directed that Dr. V.K. Kapoor shall continue to discharge the functions of the Head of Department till regular selection and appointment on the post of Head of Department is made as per the provisions of Section 22(5) of the SGPGIMS Act, 1983. Section 18 of the SGPGIMS Act, 1983 provides for constitution of the Governing Body, which is the highest body and the said body is responsible for the general superintendence direction and control of the affairs of the Institute. The judgment dated 18.3.2002 passed in Writ Petition No.1169 (S/B) of 2001 was placed in the meeting of the general body. No rule or regulation has been framed for laying down the criteria for selection as Head of Department in the SGPGIMS and in absence of any rule or regulation the selection committee could not be constituted and it does not appear to be plausible as there is no criteria or yardstick on the basis of which the said committee can make any recommendation for selection of Head of the Department. It has further been pleaded that neither the zone of eligibility has been laid down nor has any prescription been provided anywhere as to whether the Head of Department would be selected by the selection committee on the basis of the seniority or merit or merit cum seniority. It has also not been prescribed as to whether only professors of the Department can be considered for Head of Department or whether any other teacher would also be considered. It is also not specified as to whether a complete outsider, who is not even a teacher in the Institute can be considered for Head of the Department. Accordingly, in the Governing Body meeting held on 26.11.2002, it was resolved that some guidelines for appointment of Head of Department would have to be made. In this connection, legal advice of Law Department of the State of U.P. was sought and it was directed that till further orders the status-quo should be maintained. On 16.6.2002 the Director, SGPGIMS appointed a committee for preparing guidelines for appointment of Head of Departments. The said committee recommended that senior most Professor and if there is no Professor in a department then the senior most faculty Member not below the rank of Associate Professor be appointed as Head of Department. It was further recommended that if the senior most person withdraws or an Associate Professor is not available, then the governing body would designate a suitable faculty member for appointment as Head of Department. The recommendation was sent to U.P. Government to approve the aforesaid recommendations and if necessary amendments in the Act may also be made. However, but no result and, therefore, the pattern of AIIMS, New Delhi in the said matters is being adopted.;