- (1.) Dr. S.K. Mehta, Professor and Head of Department of Gastroenterology, Post Graduate Institute of Medical Education and Research (for short 'PGIMER') Chandigarh, has sought quashing of the appointment of respondent No. 4 - Dr. B.K. Sharma, Head of Department of Internal Medicines, PGIMER, as Dean of the Institute and also sought writ of prohibition against respondent Nos. 1 to 3 from appointing Sh. B.K. Sharma as Dean of the PGIMER, Chandigarh, and further restraining respondent No. 4 - Dr. B.K. Sharma from functioning as Dean of the Institute during the pendency of the writ petition. In support of his plea the petitioner has relied upon various provisions of the Post Graduate Institute of Medical Education & Research, Chandigarh Act, 1966 (No. 51 of 1966), Rules of 1967 as amended upto-date and Regulations framed in exercise of powers under sub-section (2) read with sub-section (1) of Section 32 of the Act as well as the past practice with regard to the appointment of the Dean of the Institute wherein seniority, suitability and such other factors were invariably taken into consideration while choosing an incumbent.
(2.) Claiming the appointment on the basis of the seniority, the petitioner relied upon the seniority list, Annexure P-2, as per which the petitioner is shown at serial No. 9. The petitioner further averred that except for Dr. B. N. S. Walia, Director of the Institute, other persons whose names find mention in the seniority list have since retired and this way for all intents and purposes the petitioner is to be considered as senior most Professor as on April 1, 1993. Respondent No. 4 - Dr. B.K. Sharma in the seniority list, Annexure P-2, is at serial No. 10. In addition to his claim to the post of Dean being seniormost, the petitioner highlighted his unblemished record of service, i.e., there is no adverse annual confidential report against the name of the petitioner nor the petitioner has been punished in any departmental proceedings ever conducted. According to the petitioner, he is head of the division of Gastroenterology since the year 1966 and Head of the Department of Gastroenterology since 1978 and over the years has shouldered administrative functions of high responsibility without any blemish. As recently as on May 1, 1988, he was nominated as member of the governing body of the Institute Body. The petitioner has been a member of the Purchase Committee as well as Academic Committee of the Institute. The petitioner is also solely responsible for the development of the department of the Gastroenterology as a 'Super Speciality' and is a top class Clinical and Diagnostic Centre in the said speciality in the country. The Department of Gastroenterology in the PGIMER has also been helping other universities in the development of the particular speciality. In fact, the petitioner has rendered official assistance to the Study Groups from Benaras University, Sanjay Gandhi Postgraduate Institute, Lucknow, Indira Gandhi Institute of Medical Sciences, Patna. Presently, the petitioner has been associated as an expert by the Union Public Service Commission as well as by the Public Service Commission for the States of U.P., Rajasthan and Himachal Pradesh for selection of Gastroenterology specialists of various cadres. The petitioner is also an expert for the selection of Professor of him Gastroenterology at the All India Institute of Medical Sciences, New Delhi, as well as for selection of Director, Rohtak Medical College, Haryana. The petitioner is recipient of 'Hari Om Ashram, Alembic Award'. In addition thereto, the petitioner has been given the following awards by the Indian society of Gastroenterology :- (a) Warners, (b) Pfizer, (c) Amir Chand Trophy for the best run department in the country. This being the achievements/merit of the petitioner, his case has been greatly prejudiced by totally mala fide action of the Director who has been inimical to the petitioner from the beginning. The inimical attitude of Dr. B.N.S. Walia, Director of the Institute is writ large as is clear from the various acts/omissions even before the impugned appointment. For instance, the post of Sub-Dean was created to assist and advise the Dean incharge of his duties and ever since the creation of the post of Sub-Dean the senior-most professor next to the Dean had invariably been appointed as Sub-Dean by an unbroken practice prevalent in the PGIMER. Appointment to the post of Sub-Dean has been made by the Director of the PGIMER right from the year 1977 to April, 1992 and senior-most professor next to the Dean held this post. The appointments which were made by Dr. Walia as Director of the Institute of Dr. J.S. Gujral, Dr. B.N. Dutta and Dr. K.S. Chugh, Annexures P-8/A to P-8/C, prove the assertion made above. It is on retirement of Dr. K.S. Chugh on December 31, 1992, that the petitioner made a representation to respondent No. 2 seeking appointment to the post of Sub-Dean on the basis of the seniority amongst the Professors and other representation of respondent No. 3 in this regard, whereupon respondent No. 2 while replying to the communication indicated that the appointment of the Sub-Dean would be considered by the governing body. This stand of respondent No. 2 was per se contrary to the provisions of the Act/Rules. As a matter of fact, the appointment to the post of Sub-Dean is not within the jurisdiction of the governing body and it has never been referred to the governing body for any earlier appointment to the said post. This way, Dr. B.N.S. Walia by not appointing the petitioner despite he being the senior most amongst Professors exhibited a clear bias. Not only this, the petitioner was deprived of his rightful appointment as Chairman of Group B Department. Though Dr. B.N.S. Walia was appointed as Director of the Institute on February 25, 1991, and so vested with the responsibility of writing of annual confidential report of Professors and Heads of Department, he chose to record the annual confidential report of the petitioner from April 1, 1990 to March 31, 1991. In fact, he had no jurisdiction to record the annual confidential report. On representation made by the petitioner, the adverse remarks in the annual confidential report of the petitioner for the year 1991 were expunged by the President of the Institute. Mala fide is writ large upon the action of respondent No. 2 as he intentionally prepared the agenda in respect of item No. 51 in a manner so as to prejudice the other members of the governing body. On these averments the petitioner states that animosity of respondent No. 2 qua the petitioner is writ large. Be it an appointment as Sub-Dean or as Chairman of Group B Department or recording of annual confidential report, respondent No. 2 has designedly been giving an impression to the other concerned that petitioner is unworthy of these posts. With a view to achieve his aim in depriving the petitioner of his eligible right, respondent No. 2, though not authorised, chose to appoint Dr. B.K. Sharma to the post of Dean of the PGIMER on temporary basis. This appointment was challenged by the petitioner by means of a writ petition and this Court was pleased to order stay of the operation of order dated April 2, 1993. Vide order dated April 6, 1993, Dr. B.K. Sharma was restrained from functioning as Dean till further orders by the Court. Subsequently, stay order was vacated on the statement of Sh. J. N. Kaushal to the effect that the governing body of the Institute will meet on May 15, 1993 and decide as to the permanent appointment of the Dean of the Institute. Though respondent No. 2 being Secretary Member of the governing body was expected to place before the members the bare essentials mentioning length of service, achievements, confidential reports and other such relevant material, yet with a view to prejudice the members of the governing body respondent No. 2 purposely made reference to various extraneous matters. Besides highlighting that seniority, suitability and other facts are to be kept in view while making this appointment, agenda referred to the pre- eminent role of the Director and his overall administrative control over various departments of the Institute. Thus thereby suggesting as if the Dean of the Institute is to carry out the direction of the Director which insertion in the agenda item No. 12 is contrary to the provisions of the Act and the Rules. This agenda item also suggests that the Dean has a pivotal post and has to maintain cordial relations with the colleagues, good rapport with student community and harmonious relations with the Director of the Institute. In addition thereto, unwarranted reference was made to the earlier appointment of Dr. B. K. Sharma as temporary Dean of the faculty, filing of the writ petition challenging his appointment by the petitioner, interim orders passed by the Court and all these matters were inserted by the Secretary Member-Director of the Institute - with a mala fide intention and to prejudice the other members of the governing body. The petitioner also assailed the selection of respondent No. 4 as Dean of the Faculty on the ground seniority, suitability and other factors referred to in Rule 7(4) of the Rules stood revealed and in this way the criteria adopted by the governing body was contrary to the Act and the Rules. Thus, in the absence of any adverse report against the petitioner who admittedly is senior and suitable deserves to be appointed as Dean of the PGIMER as per practice prevalent. On these premises, the petitioner sought the quashing of the appointment of respondent No. 4.
(3.) Pursuance to the notice of motion issued by the Court, the respondents put in appearance. Respondents No. 1 to 3 have filed joint written statement controverting the various averments made by the petitioner. By means of preliminary objection, it has been averred that there is no rule providing for the appointment of a person as Dean of the Institute solely on the basis of the seniority. It is further averred that in compliance with the order of the Court dated April 21, 1993, governing body of the Institute in its meeting held on May 13, 1993, considered the matter regarding the selection/appointment of the Dean - a selection post in a dispassionate manner and after thorough consideration, selected Dr. B.K. Sharma as Dean of the Faculty. The selection made by the governing body cannot be challenged, On merits, the petitioner's achievements in the academic field or his appointment as Member etc. were admitted as correct. The respondents denied the assertion of the petitioner that in view of the amendment of Rule 7 Schedule A to the Rule is no longer applicable. On the contrary, it was asserted that recruitment rules were approved by the governing body on 9.6.1982 and by the Institute Body on 10.6.1982. The rules have been amended by the Institute Body from time to time in regard to the method of recruitment, qualification/experience etc. for various posts of the Institute. Not only this, these rules have been followed and applied invariably while making recruitment/appointment to various posts and the same have been referred, considered, applied and upheld by the Courts in various cases. Besides these rules, there are no other rules which provide for the method of recruitment, qualification and experience etc. to the various posts. Referring to amended Rule 7(5) of the Rules, the same provides for the method of recruitment, age limit, educational qualification and other method relating to the appointment to various posts in the Institute which is to be determined in the manner provided for by the Regulation. Regulation 32(1) empowers the Institute to lay down the age, experience and other qualifications for appointment to any post and this way the criteria for appointment to the post of Dean is neither contrary to the Rule or Regulation framed under the PGIMER Act of 1966. In any case, in the absence of Rules, the criteria so adopted is preferably legal and just. Referring to the various instances cited by the petitioner for the view that invariably the senior most person has held the office of Dean, the respondents have urged that it is a mere coincidence that in all those appointments senior most Professor was found suitable for the post on all those occasions. In fact, the same method/procedure has been followed in the case of appointment of Dr. B.K. Sharma, respondent No. 4, as Dean of the Institute. Further controverting the assertion of the petitioner that he being the senior most and in view of his unblemished record of service was, in fact, entitled to the appointment as Dean, the respondents asserted that the post of Dean is selection post and for such appointment merit is the main consideration. Challenging the assertion of the petitioner that he had unblemished record, reference was made to the annual confidential report of the petitioner for the year 1975-76,76-77, when adverse remarks were conveyed to the petitioner and even on his representation those adverse remarks were not expunged. Mention was also made to the names of Dr. P.N. Chhuttani, Dr. J.S. Neki and Dr. P.L. Wahi who had reported adversely on the petitioner's performance and otherwise also pointed out serious shortcomings in his nature and personal relationship with the members of the Department of Gastroenterology. Reference was also made to the petitioner's relation with his immediate junior faculty member of the department of Gastroenterology which immediately led to vertical bifurcation of the Department of Gastroenterology into two functional administrative units by the President of the Institute. Further denying the assertion of the petitioner that on account of mala fide and ill-will respondent No. 2 did not appoint him as Sub-Dean, it was urged that the petitioner was not a suitable person for appointment to the post of Sub-Dean. Defending the agenda deliberation and the final conclusion arrived at by the governing body, the respondents averred that the governing body considered the matter dispassionately, objectively and impartially. Respondent No. 2 as a Member Secretary of the governing body was duty bound to present the agenda before the governing body and participate in the discussion wherever required and afford clarification or supply information, if any, required by any member. Thus, mere presence of respondent No. 2 cannot be, in any manner, construed as prejudicing other nine Hon'ble Members of the governing body. As a matter of fact, the governing body dispassionately deliberated over the matter for over one hour and it is only thereafter decided to select Dr. B.K. Sharma, respondent No. 4 for the post of Dean of the Institute. It is wrong to suggest that the members of the governing body examined the matter with a bias against the petitioner. It is also wrong to suggest that any recommendation was made by respondent No. 2 in favour of respondent No. 4 as is clear from the agenda item. The matter concerning the appointment of Dean detailing bare essentials as per rules along with the summary of orders passed in the earlier writ petition filed by the petitioner was placed before the governing body. Reference to earlier writ petition and the interim order passed by the Court was necessitated as undertaking had been given by the counsel for the Institute that the matter with regard to the appointment/selection of the Dean will be considered by the governing body at its meeting to be held on 13.5.1993. Further refuting assertion of the petitioner that the role of the Dean is neither sub-servient nor complementary to that of the Director of the Institute, it was asserted that the Director of the Institute is the Chief Executive Officer of the Institute of all the departments i.e. he has an overall administrative control. To assist the Director in the matters relating to training in various Courses, appointment of Examiner, holding of entrance and other examinations, the Dean of the Faculty takes care of these and this way his role is complementary. In fact, Dean aids and advises the Director in academic matters. The averment made by the petitioner that the Dean holds an office independent of the Director is wrong. The respondents further denied the averment of the petitioner that there is no question of any coordination for the purpose of discharge of the duties of the Dean either with the Heads of the Department or the Director of the Institute. Referring to Regulation 25(2) the respondents averred that the Director is the overall incharge of the administration of all wings of the Institute and can allocate duties to officers and employees of the Institute and exercise such supervision and executive control as is deemed necessary. Thus, there is no escape from the conclusion that the Dean works under the Director and performs such duties as are allocated to him by the Director.;