Dr. Shachi Srivastava vs Government Of NCT Of Delhi And Ors

This Original Application has been filed by the applicant, claiming the following reliefs:-

"(a) Issue direction to respondent No.2 to consider applications dated 6.2.2017 and 27.5.2017 for extension of tenure of Applicant as Senior Resident (Ophthalmology) beyond 27.12.2017 for second year in accordance with the terms of tenure offered at the time of recruitment which is three years including previous service in a MCI recognized teaching institution.

(b) Direct Respondent No.2 to withdraw the vacancy of Senior Resident (Ophthalmology) included in Notice dated 12.10.2017, unless it is against a vacancy other than the one occupied by the Applicant;

(c) Direct Respondents No.1 and 2 to consider and extend the tenure of Senior Residency of the Applicant at par with other Senior Residents recruited and appointed in other Institutions under GNCTD consequent to advertisement dated 17.9.2016.

(d) Call for complete records of respondent No.2 regarding Senior Residents granted three years tenure as Senior Residents in the last five years to confirm if any verification was undertaken regarding past service in teaching and non teaching posts of individuals before granting three years tenure as it is understood that some individuals had concealed past experience and officials of Respondent-2 hospital are conveniently overlooking the same.

(e) Direct the respondent-1 to call for the records from Respondent-2 to check if verification was undertaken by Respondent-2 of the past service of all Senior Residents in teaching and non-teaching posts before granting extension of tenure.

(f) Allow the cost of this application to the applicant taking into consideration that the present application has arisen due to willful inaction of Respondent-2 to consider and respond in a fair and just manner to the legitimate request of the Applicant.

(g) Pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in favour of the applicant and against the respondent.

And for this act of kindness, the humble applicant as is duty bound shall ever pray."

It is the case of the applicant that in response to the advertisement for joint recruitment of Senior Residents in various disciplines in five teaching hospitals, she applied l and was selected for appointment as Senior Resident (Ophthalmologist) (teaching post) vide Lok Nayak Hospital letter dated 28.11.2016. The applicant joined the Respondent No. - 2 Hospital on 28.12.2016 after completing the requisite formalities, including the undertaking that her previous experience was in a non-teaching post. It is the contention of the applicant that despite number of applications preferred by her as to extension of tenure after 27.12.2017, the respondents have not communicated any response to her representations, though she was orally informed that her previous experience as Senior Resident in Deep Chand Bandhu Hospital has been counted as non teaching post and hence, she would not be granted further extension after completion of one year. The applicant has further challenged the inaction of the respondents in issuing a Notice for recruitment of one post of Senior Resident (Ophthalmology) on the ground that it is contrary and in violation of the policy of the Govt. of NCT of Delhi as evident from the terms of tenure of three years senior residency in teaching institution as repeatedly advertised by respondents. In this regard, the applicant has relied upon the decision of the coordinate Bench of this Tribunal dated 14.09.2010 in OA No. 2868/2009 with connected OA which were allowed and the applicants therein were permitted to continue and complete their tenure of three years as Senior Residents

The respondents, while contesting the OA, have filed their counter affidavit in which they have stated that the impugned notice was issued by the competent authority in accordance with relevant rules and instructions on the subject and the same does not suffer from any illegality or infirmity. It is further submitted that as per advertisement dated 17.09.2016, the selection of Senior Residents (tenure post of 03 years) Doctors on regular basis in various hospitals under GNCT of Delhi and one of the hospitals was GTB, Hospital. The tenure of Senior Residents was for a period of 03 years, including any service rendered as Senior Residents earlier on Ad-hoc/regular basis in any MCI recognized teaching institution. The appointment will be initially for 01 year which can be extended further up to a maximum period of 03 years subject to satisfactory performance, work and conduct report from concerned HOD. It is also submitted that as per residency scheme, the tenure of Senior Resident will be three years. However, the candidature of a person who is already working as Senior Resident in a Central Institutions/Hospitals may be considered for appointment as Senior Resident in another Central Institutions/Hospitals if his application(s) is received through proper channel. In such cases the pay drawn in the previous post will not be protected. The total period, however, should not exceed the maximum period of Senior Residency of three years. There is no specific mentioning of teaching/non-teaching.

4 The respondents, in their reply, have also stated that the selection of Senior Resident Doctors is made for a maximum period of 3 years as per guidelines contained in Office Memorandum Central Government dated 05.06.1992 (Annexure R-1). It is further submitted that the maximum period of 3 years includes any service rendered as Senior Resident in any Government/Public Sector Undertaking hospital. Moreover, the application for extension of tenure submitted by the candidate was premature as the existing tenure was up to 27.12.2017.

The respondents further submitted that as per offer of appointment to the post of Senior Residents on Regular Basis issued by GTB Hospital, it was clearly mentioned that initially appointment is for one year and may be extended on yearly basis maximum up to 03 years subject to satisfactory work and conduct report and willingness of the officer and availability of post in concerned department. The officer is required to apply for extension before one month of completion of his tenure. However, the total duration of senior residency also cannot go beyond three years (Adhoc+Regular), in any circumstances, including the duration of senior residency already rendered by him/her in any govt/public sector undertaking hospital as per the residency scheme notified by Ministry of Health & Family Welfare, Govt. of India/MCI from time to time and also as per the advertisement given by Lok Nayak Hospital for recruitment of Senior Resident in the participating hospitals. Being Union Territory Delhi Governments follows Residency Scheme Rules issued by Ministry of H & FW, Govt of India vide order dated 05.06.1992.

We have heard the learned counsel for the parties and perused the records.

We may first examine the judgment relied upon the applicant in the case of Dr. Rajeev Kumar v. Union of India (OA No. 2868/2009 with connected OA) to determine whether the facts and the issue involved in the case in hand are similar to that of OA No.2868/2009 and connected OA which was allowed by a coordinate Bench of this Tribunal vide order dated 14.9.2010. Dr. Rajeev Kumar, applicant of OA No.2868/2009, had worked as a Senior Resident (ENT) in Aruna Asaf Ali Hospital, New Delhi, against a non-teaching post. He applied for and was appointed as Senior Resident in the ENT Department of Safdarjung Hospital for a period of three years against a teaching post. The post was to be temporary on tenure basis for a period of three years including ad hoc period and Senior Residency done in any other Government recognized institution, if any. When Dr. Rajeev Kumar had put in ten months service as Senior Resident, it came to the notice of the respondents that he had earlier worked in the Aruna Asaf Ali Hospital as Senior Resident (ENT) for about two years. He was, therefore, issued a memo asking him to explain why he had suppressed the fact of his earlier assignment while applying for the Senior Residency in Safdarjung Hospital. He responded to the show cause notice, wherein he stated that he had not informed the respondents about his earlier assignment as he was not, at the relevant time, in possession of the experience certificate of having worked in the said assignment, and that the experience certificate was issued to him later on 18.2.2009. The explanation furnished by the applicant was not found to be satisfactory and vide impugned orders dated 18.10.2008 he was relieved from the Hospital strength. He filed the OA which was initially dismissed by this Tribunal on the ground that the applicant while seeking his posting as Senior Resident in Safdarjung Hospital had concealed material facts. Aggrieved, the applicant filed a writ petition in the High Court of Delhi which was allowed. The view of the CAT that the OA was required to be dismissed because of concealment of facts was not approved by the Hon'ble High court as, in its view, concealment was not a ground on which the impugned order had been passed. The High Court was of the view that the applicant had not been relieved on any specific finding, as the impugned order dated 18.10.2009 did not mention anything that he was being relieved on account of suppressing information, nor that the applicant had completed three years' residency (including two years' residency in Aruna Asaf Ali Hospital. Accordingly, the matter was remitted to the Tribunal to adjudicate upon the same. After referring to the residency scheme, the Coordinate Bench of this Tribunal had observed as follows:

".....It is admitted at all ends that the applicant while working as Senior Resident in Aruna Asaf Ali Hospital was not employed on a teaching post. It is also admitted position that to obtain a teaching post like Assistant Professor in at least some of the reputed Hospitals, like AIIMS and PGI, experience on teaching job as Senior Resident is essential. In the situation as mentioned above, we find no embargo in the way of a Senior Resident working on a non-teaching post to resign and take up a fresh teaching assignment. Insofar as the last para of the residency scheme, on which the respondents have placed reliance, is concerned, the same does not appear to be applicable in the facts and circumstances of the case. The tenure of Senior Residency of course has to be of three years. All that the para aforesaid contains is that the candidature of a person who is already working as Senior Resident in a Central Institution/Hospital may be considered for appointment as Senior Resident in another Central Institution/Hospital if his application is received through proper channel, but in such a case the pay drawn by him in the previous post will not be protected. The total period, however, shall not exceed the maximum period of Senior Residency of three years. First of all, it is admitted position that Aruna Asaf Ali Hospital is not a Central institution/hospital. Further, the applicant is not wanting the period spent by him in the said Hospital to be counted for the purpose of his teaching experience. The same cannot also be counted, as surely, in Aruna Asaf Ali Hospital the applicant was not holding a teaching post. In fact, the applicant wants to spend the entire period of three years on the teaching post in Safdarjung Hospital. The scheme does not contain any bar for a Senior Resident working on a non-teaching post to apply and be selected for a teaching post of Senior Resident in another Hospital...."

Probably, the aforesaid judgment was the reason for the applicant of this OA to be allowed to continue as a Senior Resident on the first day of institution of this OA, i..e, 09.11.2017 and the coordinate Bench of this Tribunal had directed that "the applicant shall be allowed to continue as Senior Resident till further orders". Hence, we direct the respondents to now pass a detailed and speaking order with regard to the total period for which the applicant has completed her service under the category of Senior Resident and in case, she has not completed the period of Senior Residency as per the Government Scheme, she may be permitted to complete the said period. Accordingly, the OA stands disposed of. No order as to costs.