Dr.Shipra Paul vs Union Of India & Others l

Upon the final order dated 13th November, 2018 being passed against the writ petitioner upholding the order dated 19th January, 2018 relieving her from current duty charges as Director of Health Services, the medical professional is again before this Court.

It may be apposite to mention that at the interim stage the Tribunal had protected the petitioner by permitting her to act as Director (In-charge) of Health Services except for dealing with sensitive mattes namely procurement of goods, materials, medicines, pharmaceuticals etc. and to refrain from exercising any power of financial liability. The Administration appealed against such interim order which came to be set aside by a Coordinate Bench of this Court in WPCT No.22 of 2018. The Bench, however, in the said order clarified that it was not making any observation with regard to the merits of the claim application in the original application. Subsequently, after hearing the parties the Tribunal by the impugned order has turned down the prayer of the petitioner to quash the order of the respondent administration relieving the writ petitioner from discharging duties as Director (In-charge) of Health Services.

Learned counsel appearing for the petitioner has strenuously argued that the Tribunal had not independently applied its mind to the facts of the case and had merely reiterated the findings in the earlier order passed by this Court at the interim stage. It is her contention that her client stands on the same footing as Dr.R.Thulasidasan who was restored to the position of Director (In-charge) of Health Services by the order of the Hon'ble Apex court. It is also argued that mere registration of FIR or filing of Departmental charge-sheet ought not to be a ground to deny the petitioner her right to be appointed as Director (In-charge) of Health Services as she is senior-most Medical Officer in the said Department.

She has also argued that the appointment of Dr.S.P.Burma who is not a member of the Andaman and Nicobar Health Services Cadre is illegal. Accordingly, she prayed that the order of the Tribunal as well as that of the Administration relieving her client from the charge of Director, Health Services be quashed.

On the other hand, learned counsel appearing for the Administration argued that the petitioner does not stand on the same footing as Dr.R.Thulasidasan. In the case of Dr.R.Thulasidasan investigation had resulted in filing of closure report exonerating him of the criminal charges unlike the petitioner. That apart, the petitioner has no legal right for appointment to the post of Director of Health Services as she has not been substantively appointed to the feeder cadre of CMO(NFSG). The decision of DPC dated 14th December, 2017 promoting the petitioner to the feeder cadre had been kept on hold as the vigilance clearance relating to the petitioner had been withdrawn in view of the registration of the criminal case against her and such decision was proposed to be kept in sealed cover. It is also argued that the decision to relieve the petitioner from the post of Director (In-charge) of Health Services was not a malafide one but had been taken in view of the fact that she was under a cloud of suspicion owing to registration of a criminal case of corruption in discharge of her official duties. Such decision was prompted to maintain high standards of probity and transparency in public administration, particularly in a high and sensitive post like the present one.

From the materials on record it appears that the petitioner is presently holding the post of GDMO in the Andaman and Nicobar Health Cadre. She was appointed on an ad hoc basis to the superior post, namely, CMO(MFSG) i.e. the feeder cadre to the post of Director of Health Services. Her promotion to the feeder cadre vide DPC dated 14th December, 2017 appears to have been kept on hold because of the criminal case registered against her in October, 2017. In the said criminal case, it has been alleged that the petitioner had taken illegal gratification from suppliers for the purpose of her daughter's marriage and also had illegally made purchases of branded medicines instead of generic ones causing unlawful loss to the Department.

The allegations of corruption against the petitioner are grave and require thorough investigation. In this backdrop, the Administration by the impugned memorandum dated 19th January, 2018 had relieved the petitioner from continuing as Director (In-charge) of Health Services - pivotal leadership post in the Department of Health Services. It has been strongly contented that the petitioner had a right to be continued in the said post as she was the senior-most medical officer in the Health Department.

We are unable to persuade ourselves that the petitioner has a legal right for appointment to such post. She has not been promoted to the feeder cadre, namely, CMO(NFSG) till date. Hence, the Health Department was under no legal obligation to appoint the petitioner as Director (In-charge) of Health Services in view of her seniority in the Department, as urged. At its height, the petitioner may have a legitimate expectation to be considered for ad hoc appointment as Director (In-charge) of Health Services but it cannot be said that she had any vested legal right to be appointed to such post.

Reference to the case of Dr.R.Thulasidasan in this regard is not apposite. We have gone through the order of the Hon'ble Apex Court in the case of Dr.R.Thulasidasan Vs. The Union of India and others, (Special Leave to Appeal (Civil) No.7547 of 2016 dated 29th March, 2016). In the facts of the said case, the Hon'ble Apex Court had permitted Dr.Thulasidasan to act on ad hoc basis as Director (In-charge) of Health Services pending the disciplinary proceedings against him primarily in view of the fact that the criminal case of corruption registered against him had ended in a final report. No unequivocal declaration of law that the senior-most medical officer of the Health Department must be appointed as Director (In-charge) of Health Services had been made in the said order. On the contrary, as Dr.Thulasidasan was absolved from the accusation of corruption in the criminal case, he was permitted to act as Director (In-charge) of Health Services on an ad hoc basis. It is relevant to bear in mind that the investigation with regard to the serious charges of corruption against the petitioner is still subsisting and she cannot be said to stand on the same footing as Dr.Thulasidasan so as to claim parity with him in the present case.

We are further of the opinion that the decision of the Administration to relieve the petitioner from discharging in-charge duty in the topmost post of the Health Services owing to a cloud of suspicion lingering over her on charge of corruption is a justified and reasonable one. Nothing has been placed on record to show that the registration of FIR was either malafide or is being used as an instrument to harass the petitioner. On the other hand, to permit the petitioner to continue as Director (In-charge) of Health Services notwithstanding the pendency of criminal investigation relating to corruption would, in our considered opinion, be contrary to a fair exercise of administrative discretion keeping in mind the high ideals of institutional integrity and transparency in public administration.

Although pendency of criminal investigation against an employee may not be an appropriate stage to come to any firm opinion with regard to his/her guilt, discretion of his employer to take into consideration pendency of such investigation relating to corruption while arriving a decision on her continuing to hold a sensitive pivotal post cannot be faulted on the anvil of irrelevant consideration or unfair treatment. On the contrary, exercise of such fair and prudent discretion to ensure that the highest post in the Health Department is not in the hands of an employee who is under a cloud of suspicion relating to corruption in public office is a laudable one. Maintenance of individual and institutional integrity in sensitive and important posts is a pre-requisite of fair and transparent administration as held by the Apex Court in a catena of decisions. [See Centre for PIL Vs. Union of India (2011) 4 SCC 1 and State of Punjab Vs. Salil Sablok (2013) 5 SCC 1]. Failure to take cognizance of the said antecedent of the petitioner would have seriously impaired public confidence in the functioning of the Department. Such decision of the administration, though not an adverse inference with regard to her culpability in criminal law, is a sine qua non to ensure fairness and transparency in public administration and was justly resorted to.

Furthermore, the earlier arrangement of appointing the petitioner as Director in-charge sans financial liability also does not appear to be a prudent course inasmuch as it creates dual centres of authority - one for administration and another for financial purposes, which is neither convenient nor desirable.

We are also of the opinion that appointment of Dr.S.P.Burma to the ex-cadre post, namely, Director of Health Services cannot be said to be unlawful and the same cannot be brought into question at the behest of the petitioner, who for reasons as discussed above, does not merit continuation as an ad hoc appointee to the said post.

The impugned decision of the Tribunal, is, therefore, neither illegal nor unjustified in the facts of the case and is thus upheld.

Before parting, we observe that the FIR against the petitioner has been registered on 11th October, 2017 and the investigation is continuing for more than 1½ years. The departmental proceeding is also pending against the petitioner for more than a year. Though we choose not to interfere with the prudent decision of the Administration in not permitting the petitioner to continue as Director in-charge for the aforesaid antecedents, we are equally mindful of the fact that her career prospects should not be

jeopardized due to tardy progress of the aforesaid investigation and/or the departmental proceeding. Accordingly, we request the investigating agency namely, CBI to take prompt steps in the matter and conclude the investigation as early as possible. We also request the Administration to conclude the departmental proceeding against the petitioner in accordance with law at the earliest preferably within three months from the date of communication of this order, provided the petitioner is ready and willing to cooperate with the department in such exercise.

With the aforesaid observations, the writ petition is disposed of.