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Judgment
Manjula Das, J
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
“i. Set aside the Impugned Office Memorandum No.F.20-02/2016-Estt.I dated 03.02.2022 appointing Respondent No.3 as Head of Department of Anaesthesia, Pain Medicine and Critical Care, AIIMS, New Delhi;
ii. Direct the Respondent no.1 to appoint the Applicant as the Head of Department of Anaesthesia, Pain Medicine and Critical Care, AIIMS, New Delhi with effect from 01.03.2022 being the senior most eligible person for the said post;
iii. Pass a declaration that the Guidelines dated 28.01.2020 issued vide Memorandum no.F.1-2/Misc./2020-Acad.II by the Registrar, Academic Section, AIIMS, New Delhi are not binding not having been approved by the Governing Body, AIIMS, New Delhi; and
iv. To pass any such other order as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.”
Brief facts of the case are that the applicant was appointed as Assistant Professor of Anaesthesiology at Dr. R. P. Centre, AIIMS, New Delhi on 25.01.1991 and has been part of the main Department of Anaesthesia, Pain Medicine and Critical Care and he has been on call duties, theatre/ICU duties with other responsibilities assigned by the HOD from time to time. It is stated by the applicant that he acted as HOD from 16.05.2018 to 23.05.2018, and has also been taking active part in academic activities like teaching, training assessment of UG and PG students, thesis guide and examiner. It is further submitted that the Head of Department of Anaesthesia, Pain Medicine and Critical Care has been the reporting officer of the applicant for the purpose of Annual Confidential Reports (ACRs) and all permissions, leave applications etc. are forwarded and processed through the said HOD. It is submitted that one of the conditions in the appointment letter of the applicant was that “other conditions of service, such as benefits of pension, general Provident Fund, leave etc. will be as are provided for in the Rules, Regulation etc…., of the Institute as amended from time to time”. Thereafter, vide order dated 24.01.2009, the applicant and some other officers were promoted to the grade of Professor in their respective discipline/departments from retrospective date i.e. 01.07.2007. It is stated that a Memorandum dated 28.08.2014 was issued by the Senior Administrative Officer, AIIMS, New Delhi regarding „Streamlining the working arrangement of faculty posted in various specialities in Centres and main Departments‟ whereby, as decided in the Academic Committee meeting held on 03.10.1991, which was approved by the Governing Body, the Director ordered that the faculty members working in various specialities/disciplines in various Centres of the Institute, where no separate department exists, will work under the direct control/supervision of the concerned Head of Department of the main Institute. However, this will not be applicable to those disciplines which have been granted the status of Department. It is specifically written at point No.5 of the said Memorandum that “At any point of time when it comes to entrusting the responsibility to act as Head of Department, it will be on the basis of seniority of the faculty members irrespective of his/her appointment for main Department or for the Centres (as was done in the past in the case of department of Pathology (Dr. Kusum Varma) and department of Radio-Diagnosis (Dr.S.Vashishth).”
It is stated by the applicant that on 24.12.2020 seniority list of faculty (Annexure A-12) was uploaded on AIIMS website wherein his name figured at Sl.No.4 in the list of Professors for Department of Anaesthesia, whereas respondent No.3 (Dr.Lokesh Kashyap) figured at Sl. No.5. It is further submitted that again a tentative seniority list of Professors of AIIMS as on 01.07.2021 (Annexure A-16) was issued wherein for Department of Anaesthesiology, the name of applicant figured at Sl. No.88 and that of the respondent No.3 at Sl. No.92, which clearly shows that respondent No.3 is junior to the applicant.
Learned counsel for applicant has also filed additional documents to show that only two Professors‟ were senior to the applicant, i.e., one Dr. Anjan Trikha, who has taken voluntary retirement in January 2022, and the second one Dr. Maya Dehran, who superannuated in 2021. It is contended that the applicant, who is the senior-most Professor in the Department of Anaesthesiology and having unblemished service record, as also having acted as HOD on earlier occasion, is entitled to be promoted as HOD of Department of Anaesthesiology as per the minutes of the Academic Committee meeting held on 03.10.1991. It is further contended that where no separate department exists and when it comes to entrusting the responsibility to act as Head of Department, it will be on the basis of seniority of the faculty members irrespective of his/her appointment for main Department or for the Centres. Moreover, the applicant has always been part of the main Department of Anaesthesia in AIIMS, New Delhi.
It is stated that in order to convey approval of the competent authority for the Guidelines pertaining to functioning of centers, formation of divisions & units at AlIMS, New Delhi as per Academic Committee Agenda Item No. AC-117/11 in its meeting held on 20.11.2018, Memorandum dated 28.01.2020 was issued wherein, inter alia, it was stipulated as under:
“1.1.4. Intra Specialty seniority will be considered only among faculty selected in a centre. They will not be eligible for equivalence or seniority with faculty of the same specialty in other centres or the main department. This will apply even if the faculty rotate with faculty in other centres or the main hospital. "
Aggrieved of the above guidelines dated 28.01.2020 retrospective effect whereof being arbitrary and opposed to 1983 guidelines, which were duly approved by the MoHW, the applicant sent a representation dated 20.02.2020 to the President and Chairman, Governing Body of AIIMS, seeking urgent intervention in the matter. It is stated that the applicant along with some other faculty members posted at various Centres of AIIMS, also sent a legal notice dated 15.04.2021 to the Director, AIIMS, New Delhi to withdraw the Guidelines dated 28.01.2020 and refrain from taking any action that may adversely affect the faculties posted at the Centres. The aforesaid legal notice was replied, vide reply dated 21.05.2021, inter alia, stating that the Guidelines dated 28.01.2020 are valid by deriving power conferred under AIIMS Act, 1956.
It is further submitted by the applicant that in the seniority list of Professors for Department of Anaesthesia uploaded on 24.12.2020 on AIIMS, New Delhi website, the applicant has rightly been shown senior to the respondent no.3 at sl. No. 4 and 5 respectively, and the applicant is, therefore, entitled to be promoted as HoD, since the Professors shown at serial no.1, 2 and 3 have either superannuated or taken VRS.
The applicant has, however, sent a reminder on 31.05.2021 in furtherance of representation dated 20.02.2020 against the Memorandum on "Guidelines for functioning of Centres, Formation of Divisions and Units at AIIMS, New Delhi dated 28.01.2020 requesting to withdraw the aforesaid Guidelines and to continue the operation of the 1983 Regulations and 2014 Guidelines.
It is also submitted that in the tentative seniority list of Professors AllMS, New Delhi as on 01.07.2021, the applicant is again shown senior to respondent no.3, at serial no. 88 for Department of Anaesthesia (RPC) and at serial no. 92 for Department of Anaesthesiology respectively. It is further stated that there is no separate Department Anaesthesia in Dr. R P Centre and, as such, the applicant has always been part of the main Department of Anaesthesia in AIIMS, New Delhi.
It is further stated that vide Memorandum No. F.No.2-1I2021- Genl. (GB) dated 02.08.2021, the final Minutes of 158th Meeting of Governing Body held on 18th June, 2021, as approved by the Chairman of the Governing Body, were circulated to the Chairman and all Members of the Governing Body, wherein under Item No. GB-158/l0 under the heading 'To consider the representations regarding approved Guidelines for functioning of centres, formation of divisions and units at AIIMS, New Delhi', it was stated as under:
"The Governing Body desired that this agenda and representations of aggrieved persons may be referred to the Academic Committee. Academic Committee should give personal hearing to all concerned & give recommendation on this issue. The recommendations of the committee may be put up to GB in its next meeting for consideration.”
It is further stated that the applicant submitted another representation on 07.09.2021 to Dr. D S Rana, and to Dr. Mhaseikar, Members of the Academic Committee, while referring to the 158th Governing Body/Item 10 decision on 18.06.2021, stating that even after two months of the Governing Body's decision, no personal hearing has been granted to the aggrieved persons, including the applicant. The Members were, therefore, requested to look into the matter, but to no avail.
It is further submitted that vide Memorandum dated 22.12.2021 with respect to the grant of winter vacation 2021 to the faculty staff, in the list of Department of Anaesthesia, Pain Medicine and Critical Care, the name of the applicant is also shown above the respondent No.3. Therefore, the applicant, being the senior-most person is eligible to be designated as HOD after retirement of the current HOD on 28.02.2022. Accordingly, the applicant made a representation to the Hon‟ble Minister of MoH & FW as well as President, AIIMS, New Delhi, for giving him the administrative responsibility as Head of Department, Anaesthesia, Pain medicine & Critical Care AIIMS New Delhi after the current HOD, who is due to superannuate on 28.02.2022.
Learned counsel for the applicant further submitted that despite the applicant being senior to the respondent no.3, vide Office Memorandum dated 03.02.2022 issued by the Administrative Officer, AIIMS, New Delhi whereby respondent no.3, Dr. Lokesh Kashyap, Professor of Anaesthesia, Pain Medicine & Critical Care has been designated as Head of Department of Anaesthesiology, Pain Medicine & Critical Care w.e.f. 01.03.2022, in addition to his own existing duties and responsibilities, ignoring the rightful claim of the applicant, who is admittedly senior to the respondent no.3.
Aggrieved of the above act of the respondents, the applicant submitted representation dated 05.02.2022 followed by reminder dated 11.02.2022 to the Minister of Health and Family welfare & President, Institute Body Chairman, Governing Body AIIMS, New Delhi and to the Director AIIMS for withdrawal of the impugned OM dated 03.02.2022 and assigning the responsibility of the Head of Department to the applicant after superannuation of Dr. Rajeshwari as HOD on 28.02.2022.
It is further sttaed that since the request of the applicant qua withdrawal of Office Memorandum dated 03.02.2022 which has been issued against the extant Rules and Regulations of AIIMS, impugned in this OA, has not been acceded to, and the junior person i.e. the respondent no.3-Dr. Lokesh Kashyap has been assigned the responsibility of the Head of Department of Anaesthesiology, Pain Medicine & Critical Care, AIIMS, New Delhi w.e.f. 01.03.2022, the applicant has filed the present OA seeking the reliefs, as quoted hereinabove.
The respondent no.1 has filed its reply to the OA raising various preliminary objections, few of which are as under:-
- As per Regulation 11 of the AIIMS Rules and Regulations, Director AIIMS is within his powers to issue impugned OM dated 03.02.2022;
- AIIMS consists of numerous departments and specialities based on their area of specialization and all the faculty members irrespective of their appointment in AIIMS form single cadre;
- usually the senior most faculty member within a department is designated as Head of Department. In some circumstances, a senior faculty member of another department may be designated as its head. However, designation of Head of Department depends on the seniority of the members within that department and not seniority among all faculties of AIIMS;
The respondent no.1 has submitted that it does not imply that seniority will be common within the department among all appointees. However, seniority within a department can only be determined among faculty within that department. It is further submitted that it is incorrect that the applicant is a part of the Department of Anaesthesia, Pain Medicine and Critical Care. It is further submitted that seniority within a department is determined among faculty selected/ appointed against posts created for that department only. It is further submitted that the „Guidelines for Functioning of Centres, formation of Divisions and units of AIIMS, New Delhi‟ have been created after extensive discussions and due process over two years, after taking into account the opinions of multiple stakeholders and the review of past documents and decisions of statutory bodies at AIIMS. It is stated that these have been made after consultations at various committees. It is further submitted that the grievance of the applicant was placed before the Governing Body of AIIMS in its 158th meeting on 18.06.2021 wherein it was decided that the said grievance may be referred to the Academic Committee in order to give a personal hearing to the applicant, and subsequent to that furnish their recommendations, and such recommendations may be put up before the GB in its next meeting. However, no next meeting of the Academic Committee has been held after the aforesaid GB meeting held on 18.06.2021.
As far as seniority is concerned, learned counsel for the respondent no.1 has stated that the data reproduced from the AIIMS website is not the official seniority list of AIIMS faculty. The respondent has denied that the applicant is part of the Department of Anaesthesia, Pain Medicine and Critical Care. Learned counsel has, however, added that the absence of a Department of Anaesthesia in RPC does not imply that the applicant is a member of that department in the main hospital. It is further submitted that notice for grant of vacation is not a reflection of seniority within the department. However, it is true that Dr. Anjan Trikha was faculty in the Department of Anaesthesia, Pain Medicine and Critical Care but not the applicant. Hence, he cannot claim parity with Dr. Anjan Trikha. It is contended that the seniority being referred to by the applicant relates to seniority within the overall cadre and not the seniority within the same department. The respondent no.1 has stated that the applicant cannot be treated to be senior to the respondent no.3 as he is not the member of the Department of Anaesthesia, Pain Medicine and Critical Care and, therefore, the instant OA is liable to be dismissed.
The respondent no.3 has filed its reply denying the averments made by the applicant in the OA and submitted that the present OA deserves to be rejected on the ground of maintainability and even on merit. Learned counsel for the respondent no.3 has also submitted that the applicant has challenged the OM dated 03.02.2022 without exhausting the departmental remedies in accordance with Section 20 of the Administrative Tribunals Act, 1985, as he has not made any representation against the aforesaid OM, which has been impugned in this OA. It is further staed that he has simply stated that there is no departmental remedy in respect of the grievance raised in this OA.
The respondent no.3 has further stated that the AIIMS Act, 1956 or AIIMS Regulations, 1999 do not create orrecognize a substantive post of „Head of Department‟. In the cadre of AIIMS faculty, the sanctioned posts are – Professor, Additional Professor, Associate Professor and Assistant Professor. It is further submitted that Head of Department is not a promotional post as this designation of a senior faculty member is an administrative arrangement for the management of various departments and centres at AIIMS. In support of his argument, the respondent no.3 has submitted that the impugned order dated 03.02.2022 clearly states that “Dr. Lokesh Kashyap (respondent no.3) will not be entitled to any remuneration/honorarium for the aforesaid additional assignment.” Hence, the applicant cannot claim seniority over the respondent no.3 in respect of grant of designation as Head of Department being not part of the department in question as he is a Professor in Anaesthesia at the Rajendra Prasad Centre for Ophthalmic Science (RPC) at AIIMS, which is a distinct centre at AIIMS i.e. one of various other centres providing specialized care in various areas which is not provided in the main Institute. It is further submitted that there is no automatic relation of duties or privileges for faculty of a particular centre, at other centre or the main department. It is stated that faculty at one centre may discharge the duties at another centre or the main department with the approval of the Director and all other relevant factors as per the administrative decisions contained in the minutes of meeting of the Academic Committee of AIIMS dated 22.11.2018; minutes of the meetings of the Governing Body of AIIMS dated 24.01.2019 and 18.06.2021. The respondent no.3 has also submitted that various office orders have been issued at AIIMS designating faculty as Head of Department on the basis of the faculty‟s presence and status in the department and not on the basis of overall seniority at the entire AIIMS. He has further pointed out that the applicant‟s service record refers to RPC, whereas the respondent no.3 is not in RPC. He, therefore, submits that the seniority list of all professors, relied upon by the applicant, showing him at serial no.88 is meant for overall seniority in Anaesthesia and not of RPC, whereas the respondentno.3 is part of the main department, which ranks him seniormost faculty in the main department w.e.f. 01.03.2022. However, it is not in dispute that the applicant is senior to respondent no.3 in the overall seniority list of all faculty employed at AIIMS, but not in the main department. The respondent no.3 has further stated that there is no rule of seniority in the AIIMS Act, 1956 that renders the applicant entitled for designation as Head of Department.
The respondent no.3 has submitted that challenge to earlier proceedings relating to 1983 and 2014 is wholly misplaced as the prior administrative hierarchy contemplated therein has been overridden by the decisions taken from 2018 onwards, which have not been challenged by the applicant in the present OA.
Learned counsel for respondent no.3 has stated that the synopsis given by the applicant is misleading. It is misleading to state that minutes of the 117th meeting dated 20.11.2018 of the Academic Committee have not been approved by the Governing Body. He has further stated that the guidelines dated 28.01.2020 only reiterate the valid administrative decisions already taken by the Academic Committee and Governing Body, hence, it cannot be said that these guidelines are not in consonance with the Act, Rules or Regulations.
Insofar as processing of ACRs, leave and other permissions in respect of the applicant being processed by HOD of the main department is concerned, the respondent no.3 has only stated that he is not aware as to whether or why the HOD of the main Department is the applicant‟s reporting officer for ACRs etc. However, if there is some anomaly in extant procedure, it may be rectified administratively by respondent no.1. To the averment of the applicant that there is no separate department of Anaesthesia in Dr. RP Centre and as such, he has always been part of the main department of Anaesthesia in AIIMS, the respondent no.3 stated that the service record of the applicant clearly reveals that he is part of RPC and not of the main department. Hence, the applicant cannot challenge the administrative arrangement made by the respondent no.1, vide order dated 03.02.2022, by virtue of which the respondent no.3 has been designated as Head of Department. He has, therefore, prayed for dismissal of the instant OA.
The applicant has filed the rejoinder to the counter reply filed on behalf of the respondent no.3 denying the averments made therein and has reiterated the averments made in the OA.
Heard Mr. Nalin Kohli, assisted by Ms. Nancy Shah and Ms. Nimisha Menon, learned counsel for the applicant; Mr. Dushyant Parashar, learned counsel for respondent no.1; Mr.Shlok Chandra, learned counsel for respondent no.2; and Mr. Santosh Krishna, learned counsel for respondent no.3, and perused the material available on record.
During the course of argument on 28.02.2022, certain points emerged necessary for proper adjudication of the case. Therefore, the Tribunal, vide its order of even date, directed the learned counsel for the respondents to obtain instructions to answer the following queries and produce the relevant records on the next date of hearing:-
“i) Who is the Reporting Authority to write applicant’s APAR?
ii) What is the procedure and the guidelines i.e. the criteria for the appointment of HOD?
iii) Is there any Anaesthesia Department in Dr. R.P. Centre?
iv) How there was supersession of HOD, Anaesthesia in 1983, 1992, 2014 when there is no Department of Anaesthesia?”
When the matter was taken up for further hearing on 02.03.2022, learned counsel for the respondent no.1/AIIMS answered point no.1 stating that as on date the reporting authority to write applicant‟s APAR is the Head of Department. However, he added that henceforth in compliance of the guidelines issued vide order dated 28.01.2020, the reporting authority of the applicant will be the Chief of Centre (CoC), as has been in earlier point of time. To the contrary, learned counsel for the applicant has argued that since the aforesaid guidelines do not have the approval of the GB, the same are not binding on the applicant. Hence, till date the reporting authority to write applicant‟s APAR is the Head of Department and not CoC.
Insofar as Points no.2 & 3 i.e. ‘what is the procedure and the guidelines i.e. the criteria for the appointment of HOD’ and ‘Is there any Anaesthesia Department in Dr. R P Centre’ are concerned, learned counsel for the respondent no.1/AIIMS has stated that usually the senior most faculty member within a department is designated as Head of Department. In some circumstances, a senior faculty member of another department may be designated as its head. However, designation of Head of Department depends on the seniority of the members within that department and not seniority among all faculties of AIIMS. He has further argued that it does not imply that seniority will be common within the department among all appointees. However, seniority within a department can only be determined among faculty within that department. It is further argued that since the applicant is not a part of the Department of Anaesthesia, Pain Medicine and Critical Care, he is not entitled to be designated as HOD being appointed in the Centre. He further argued that seniority within a department is determined among faculty selected/appointed against posts created for that department only. He further argued that the „Guidelines for Functioning of Centres, formation of Divisions and units of AIIMS, New Delhi‟ have been created after extensive discussions and due process after taking into account the opinions of multiple stakeholders and the review of past documents and decisions of statutory bodies at AIIMS in consultations at various committees. He further argued that the grievance of the applicant was placed before the Governing Body of AIIMS in its 158th meeting on 18.06.2021 which decided that the said grievance may be referred to the Academic Committee to give a personal hearing to the applicant and subsequent to that furnish their recommendations, and such recommendations may be put up before the GB in its next meeting. However, learned counsel admitted at the Bar that no such meeting of the Academic Committee has been held after the aforesaid GB meeting held on 18.06.2021.
Learned counsel for the respondent no.1/AIIMS has vehemently argued that for being designated as HoD, one should either be from the Department or should have been transferred from Centre to the Department, as the faculty from the Centre is not entitled to be designated as such. Since the applicant is a faculty member of Dr. RP Centre and has not been trasnferred to the main Department, he cannot be designated as HoD. With regard to the question of seniority, learned counsel for the respondent/AIIMS has argued that the data reproduced from the AIIMS website is not the official seniority list of AIIMS faculty. He further argued that the applicant is not part of the Department of Anaesthesia, Pain Medicine and Critical Care, and the absence of a Department of Anaesthesia in RPC, which is not a fullfledged department, does not imply that the applicant is a member of a department in the main hospital, and, therefore, cannot be treated senior to the respondent no.3 for being designated as HoD. In support of his arguments, learned counsel for the respondent/AIIMS relied upon the decision of this Tribunal in Dr. Rama Chaudhry vs. All India Institute of Medical Sciences & Anr. [OA No.1982/2015 decided by the Principal Bench on 09.12.2015]. Learned counsel for the applicant has also relied upon the aforesaid decision to espouse that the Head of Department is not a post but is only additional duty to be discharged by the senior most faculty member in the department.
During the course of arguments, learned counsel for the respondent/AIIMS has handed over the department wise seniority list as on 01.12.2021, but the same cannot be taken note of as the claim of the applicant is based on earlier combined seniority list where he has been shown senior to the respondent no.3. Moreove, learned counsel for the applicant has argued that the above seniority list cannot be treated to be final as neither applicant‟s grievances have been considered nor has an opportunity been afforded by the Academic Committee for furnishing recommendations to be placed before the next GB, which is admittedly not yet met.
Learned counsel for the respondent no.1/AIIMS has not been able to answer the Point No.4, i.e., „how there was supersession of HoD, Anaesthesia in 1983, 1992 & 2014 when there is no Department of Anaesthesia‟ in RPC, which, in our view is not necessary to adjudicate the present case.
Having heard learned counsel for the parties and perused the material on record, we come to the conclusion that though presently the authority competent to write applicant‟s APAR is the Head of Department, but henceforth it will admittedly be the Chief of Centre. However, as per the combined seniority list, the applicant is senior to the respondent no.3 being promoted to the grade of Professor w.e.f. 01.07.2007 i.e. one year prior to the respondent no.3, who was promoted to the grade of Professor w.e.f. 01.07.2008, but not as per the seniority list as on 01.12.2021, which has been prepared Faculty-Department-wise. We are also convinced that the Head of Department is not a post but is only additional duty to be discharged by the senior most Member in the main department. However, it is also true that the applicant is working in the Centre and not in the Department itself, and has not even been transferred to the Anaesthesia Department.
In view of these circumstances, we are of the considered view that the respondent no.3, who is deployed Department of Anaesthesia, Pain Medicine and Critical Care, AIIMS, New Delhi, has rightly been designated as HoD. Therefore, we are not inclined to interfere with the impugned order dated 03.02.2022 appointing respondent no.3 as Head of Department of Anaesthesia, Pain Medicine and Critical Care, AIIMS, New Delhi. However, we dispose of this OA with the following directions:-
The respondent no.3 will not be the administrative authority of the applicant, the applicant being senior to respondent no.3 in the combined seniority of all faculties of AIIMS.
The respondent no.3 will not be the controlling/ reporting authority for writing ACRs/APARs of the applicant.
The respondent no.3 will also not be the sanctioning authority of applicant‟s leave and any other administrative permissions etc.
Chief of Centre will be the competent authority of the applicant in respect of contingencies mentioned at 1, 2 and 3 above.
In view of the above directions, this OA stands disposed of. MA No.430/2022 also stands disposed of.
There shall be no order as to costs.