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2019 DIGILAW 246 (KER)

Abraham Kuruvilla v. Chitra Tirunal Institute for Medical Sciences and Technology

2019-03-11

A.M.BABU, V.CHITAMBARESH

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JUDGMENT : V. Chitambaresh, J. 1. Sree Chitra Tirunal Institute for Medical Sciences and Technology (‘the Institute’ for short) functioning under the Government of India invited applications for the post of Additional Professor in Neurology. The petitioner as well as the sixth respondent applied to the post and the qualification prescribed for the same in Ext.P27 notification is as follows: “(IV) ADDITIONAL PROFESSOR (Neurology) - For Comprehensive Stroke Program(vacancy - 1) Pay Band Rs.37400-67000 (minimum pay of Rs.46000/-) and academic grade pay of Rs.9500. Upper age limit 50 years as on 31.03.2010. Qualification & Experience: Eight years of teaching and/or research experience after obtaining DM or its equivalent qualification in the case of 2 years course and seven years after DM in the case of 3 years course and thirteen years after MBBS with DM in the case of direct course. Experience in Stroke preferable.” (emphasis supplied) The sixth respondent who was appointed to the post had obtained DM (Neurology) from the Institute in the year 1998 and the following are the details regarding her teaching and /or research experience thereafter: Designation Period Tenure Ad hoc Consultant 1.2.1999-3.5.2004 5 years & 3 months Assistant Professor 5.5.2004-30.6.2006 1 year & 1 month Stroke Fellowship June, 2005-Nov., 2006 1 year & 5 months Consultant Neurologist January, 2007 till 19.4.2010 3 years & 2 months The petitioner contends that the tenure of the sixth respondent as Ad hoc Consultant for a period of 5 years and 3 months cannot be reckoned and therefore she could not have been appointed to the post. The plea in that regard was not accepted by the Central Administrative Tribunal (‘the Tribunal’ for short) by Annexure A8 order and hence this Original Petition invoking supervisory jurisdiction. 2. We heard Mr. O.V. Radhakrishnan, Senior Advocate on behalf of the petitioner and Mr. T.R. Ravi, Advocate on behalf of the first respondent Institute as well as Mr C.S. Manu, Advocate on behalf of the sixth respondent. 3. Ad hoc appointments are permitted as per the Service and Personnel Conduct Rules of the Institute and R.4 of the General Conditions of Service in Chapter II of the Rules is to the following effect: “4. T.R. Ravi, Advocate on behalf of the first respondent Institute as well as Mr C.S. Manu, Advocate on behalf of the sixth respondent. 3. Ad hoc appointments are permitted as per the Service and Personnel Conduct Rules of the Institute and R.4 of the General Conditions of Service in Chapter II of the Rules is to the following effect: “4. Ad hoc appointments: The Governing Body may appoint persons on ad hoc basis on such terms and conditions as it may deem fit for conduct of studies, investigations, research, teaching and other academic programmes undertaken by the Institute.” (emphasis supplied) The term ‘consultant’ has not been defined in the Rules aforesaid which in ordinary parlance can only mean a person, who knows a lot about a particular subject and is employed to give advice about it to others. The Supreme Court in G.V.K. Industries Ltd. v. I.T.O. (2015) 11 SCC 734 ) quoted the following passage from C.I.T. v. Bharti Cellular Ltd. (2009) 319 ITR 139 (Del.)). “‘Consultant’ itself has been defined, inter alia, as a person who gives professional advice or services in a specialised field. It is obvious that the word ‘consultant’ is a derivative of the word ‘consult? which entails deliberations. consideration, conferring with some one, conferring about or upon a matter. Consult has also been defined in the said Dictionary as ask advice for, seek counsel or a’ professional opinion from; refer to (a source of information); seek permission or approval from a proposed action. It is obvious that the service of consultancy also necessarily entails human intervention. The consultant who provides the consultancy service, has to be a human being. A machine cannot be regarded as a consultant.” (emphasis supplied) The process of deliberations, consideration and giving professional opinion thereby imparting knowledge to those who have sought consultation is necessarily a part of the teaching process which is insisted. The teaching need not necessarily be by a person holding the post designated as Professor or Assistant Professor and the spell of service as Ad hoc Consultant is sufficient. The Institute in the reply statements before the Tribunal has admitted that the nature of duty of Ad hoc Consultant and Associate Professor in Neurology are one and the same. The teaching need not necessarily be by a person holding the post designated as Professor or Assistant Professor and the spell of service as Ad hoc Consultant is sufficient. The Institute in the reply statements before the Tribunal has admitted that the nature of duty of Ad hoc Consultant and Associate Professor in Neurology are one and the same. We therefore repel the contention of the petitioner that the post of Consultant cannot be equated to that of a teacher in order to qualify for appointment to the post of Additional Professor. 4. The word ‘ad hoc’ only means on temporary basis without any fixed terms and conditions and does not in any way denigrate the nature of the duty discharged by the incumbent in service. Direct Recruit Class II Engineering Officers’ Association & Ors. v. State of Maharashtra & Ors. AIR 1990 SC 1607 ) was relied on to contend that ad hoc service cannot be reckoned for seniority. Reliance was placed on State of M.P. & Anr. v. Dharam Rir (1998) 6 SCC 165 ) to contend that experience gained in a post on, ad hoc basis cannot be counted. Rudra Kumar Sain & Ors. v. Union of India & Ors. (2000) 8 SCC 25 ) was pressed into service to contend that ad hoc appointment is to meet a temporary contingency. Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (2013) 3 SCC 658 ) was referred to reiterate that officiating on ad hoc basis cannot be considered for seniority. No body has any quarrel with the propositions of law aforestated even though none of the decisions have any direct bearing on the pointed question posed for adjudication here. 5. It may at once be noticed that the qualification prescribed for appointment to the post of Additional Professor (Neurology) in Ext.P27 notification is not 7 years in a particular post after obtaining DM. The aforequoted decisions may have relevance only if Ext.P27 notification prescribes so whereas what is insisted is mere teaching and/or research experience. The experience as an Ad hoc Consultant for the requisite period after obtaining DM satisfies the qualification as we have already held that duty of a consultant takes in teaching also. Much was argued pointing out that the sixth respondent has committed fraud in obtaining employment and that the same has to be invalidated. The experience as an Ad hoc Consultant for the requisite period after obtaining DM satisfies the qualification as we have already held that duty of a consultant takes in teaching also. Much was argued pointing out that the sixth respondent has committed fraud in obtaining employment and that the same has to be invalidated. The plea in essence is that the sixth respondent had stated in her application that she had worked as an Assistant Professor though her stint of service was only as Ad hoc Consultant. But the service of the sixth respondent as Ad hoc Consultant was in the Institute itself which is the employer who has consciously given the appointment knowing the details. There is no case for the Institute that the sixth respondent has played fraud in obtaining the appointment and the petitioner has also not pleaded any collusion on their part. 6. It is trite law that constitutional courts cannot sit over decisions of expert bodies as court of appeal and compare the relative merits of the candidates when the procedure adopted is otherwise legal. The limits of judicial review in selection of candidates made by a committee of experts have been delineated in Dalpat Abasaheb Solunke v. B.S. Mahajan (1990) 1 SCC 305 ) as follows: “It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinise the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be Interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc.” (emphasis supplied) The judicial review in the absence of mala fides should be confined to the question as to whether any statutory or binding rule has been contravened in the appointment (See Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746 )). We fail to see any one of the vitiating factors in the instant case and the stint of service of the sixth respondent as Ad hoc Consultant was rightly reckoned for appointment as Additional Professor (Neurology). We fail to see any one of the vitiating factors in the instant case and the stint of service of the sixth respondent as Ad hoc Consultant was rightly reckoned for appointment as Additional Professor (Neurology). The fact that the petitioner has already retired from service on superannuation and that the sixth respondent is at the fag end of her career is also one of the dissuading factors. We dismiss the Original Petition. No costs.