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DR. JAGDISH CHANDER versus UNION OF INDIA & ORS.

High Court of Punjab and Haryana, Chandigarh

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Dr. Jagdish Chander v. Union of India & Ors. - CWP-4387-CAT-2001 [2006] RD-P&H 2407 (19 April 2006)

CWP No. 4387-CAT of 2001 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 4387-CAT of 2001

Date of Decision: 26.4.2006

Dr. Jagdish Chander

....Petitioner

Versus

Union of India and others.

....Respondents.

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice P.S. Patwalia

Present: Mr. R.S. Bains, Advocate

for the petitioner.

Mr. Deepak Sharma, Advocate

for respondents No.1 to 4.

...

J.S. Khehar, J. (Oral).

Through the instant writ petition, the petitioner desires to impugn the order dated 20.12.2000 (Annexure P-6) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the Tribunal) in Original Application No.211-CH of 2000, which dismissed a challenge at the hands of the petitioner for setting aside the Annual Confidential Report recorded against him by respondent No.5 Dr. R.M. Joshi, for the year 1998-99. As such, the aforesaid adverse report is also implicitly subject matter of challenge.

Besides the instant Annual Confidential Report for the year 1998-99, the petitioner had challenged four other reports recorded by Dr.

R.M. Joshi, before the Tribunal. Briefly, the reports challenged and the CWP No. 4387-CAT of 2001 Page numbers

orders passed are narrated hereunder:

(i) Through Original Application No.210-CH of 2000, the petitioner challenged the adverse Annual Confidential Report for the year 1997-98.

The aforesaid original application was allowed by an order dated 13.3.2000.

Consequently, the adverse remarks were expunged by the official respondents, by an order dated 10.7.2000 (Annexure P-20).

(ii) Original Application No.967-CH of 2002, was filed by the petitioner, challenging the Annual Confidential Report recorded by respondent No.5, for the year 1999-2000. The aforesaid original application was allowed by an order dated 17.2.2003. Consequent upon the passing of the order dated 17.2.2003, the official respondents expunged the adverse remarks by an order dated 16.5.2003 (Annexure P-21). It would be pertinent to mention, that respondent No.5 challenged the order dated 17.2.2003 (referred to above) by filing Civil Writ Petition No.3182 of 2004. While disposing of Civil Writ Petition No.3182 of 2004, this Court did not interfere in the order passed by the Tribunal dated 17.2.2003.

(iii) Likewise, Original Application No.17-CH of 2004, was filed by the petitioner, challenging the adverse Annual Confidential Report for the year 2000-01. The aforesaid original application was allowed by the Tribunal on 20.4.2004. The adverse remarks recorded for the year 2000-01, were expunged by the official respondents, by an order dated 18.6.2004 (Annexure P-24). The aforesaid order dated 20.4.2004 attained finality on account of the fact, that the same was not challenged by any of the respondents.

(iv) Original Application No.18-CH of 2004 was filed by the petitioner, challenging the adverse Annual Confidential Report for the year 2001-02.

CWP No. 4387-CAT of 2001 Page numbers

The aforesaid original application was allowed by the Tribunal on 20.4.2004. Consequently, the adverse remarks recorded for the year 2001- 02, were expunged by the official respondents, by an order dated 18.6.2004 (Annexure P-25). The order dated 20.4.2004 passed by the Tribunal also attained finality as the same was not challenged by any of the respondents.

In so far as, the adverse Annual Confidential Report for the year 1998-99, i.e., the report which is subject matter of challenge through the instant writ petition, is concerned, the same must necessarily be examined in the background of the earlier orders passed by the Tribunal between the same parties. Reference in this behalf, may first of all, be made to the order passed by the Tribunal in Original Application No.967-CH of 2002, decided on 17.2.2003, wherein, the Tribunal recorded the following observations and conclusions:-

"Therefore, it is quite apparent that Dr. Joshi wrote certain very damaging remarks without any foundation whatsoever. The remark in column 1 that he was involved in unethical research was found to be untrue and unjustified. Similarly, the remark that Dr. Jagdish Chander could not bring about any improvement in the Emergency Microbiology Lab was also found to be unjustified. The remark that Dr. Joshi was physically fit but confused at times was also found to be unjustified. dr. Joshi also recorded damaging remarks in as much as he termed the integrity of Dr. Jagdish Chander to be extremely poor and suspected him to have encouraged the medical practice of his wife directly/indirectly and also accused him of unethical research. All these remarks were found to be CWP No. 4387-CAT of 2001 Page numbers

untrue. A person who wrongly judges another person's integrity to be poor and to be confused and guilty of unethical practices cannot be termed as fair and just in his assessment of other facts of the personality of the officer whom he assesses.

Even a man of common prudence can realise that if a person judges another of being unethical and of poor integrity without any justification he cannot be fair in judging the other facts of his personality. For example, Dr. Joshi has rated the relations of Dr. Jagdish Chander with the other members of his staff and team to be poor and his general bearing also to be poor. Since, Dr. Joshi was already biased by thinking that Dr. Jagdish Chander did not have a good integrity and was unethical in his practice, he would definitely have allowed his wrong judgement also to influence his judgement of the other aspect of Dr. Joshi's personality. I am, therefore, convinced that Dr.

Joshi's attitude towards Dr. Jagdish Chander was unfair and unjust. Since some of the remarks which are extremely damaging in nature, have been found by the Chandigarh Administration itself to be highly unjust and undeserving to be continued to remain in Dr. Jagdish Chander's ACRs. I see no reason that all the adverse entries in the impugned order should also not be expunged. Another reason for coming to this conclusion is that the Chandigarh Administration in the Medical Department, did not record a speaking order as to why only certain entries were considered fit for expunction and certain others were not. I am also convinced that the race for CWP No. 4387-CAT of 2001 Page numbers

the post of Professor and Head of the Department of Microbiology led to Dr. Joshi being extremely bitter and vindictive against Dr. Jagdish Chander. Another Hon'ble Member of this Tribunal has also been convinced of similar bitterness, directed that Dr. Joshi should not record any further ACRs of Dr. Jagdish Chander. This only confirms my deductions that Dr. Joshi was fully biased against Dr. Jagdish Chander. Such efforts must be deprecated. Dr. Jagdish Chander had also arrayed Dr. Joshi as a respondent in this case and Dr. Joshi has not been able to satisfactorily repel my view that he was biased against Dr. Jagdish Chander.

Likewise, reference must be made to the order passed by the Tribunal, in Original Application No.17 and 18-CH of 2004, decided on 20.4.2004, wherein the following observations and conclusions need to be noticed: "After going through the pleadings and hearing learned counsel for the parties at length, one becomes conscious of a bitter competition and animosity leading to continuous litigation between the applicant and respondent No.5, Shri R.M. Joshi.

Applicant had started his career in 1992 and was made regular in 1998. The post of Professor in Microbiology for the first time was advertised by the UPSC on 14.12.1996. It is also not disputed that both the applicant and respondent No.5 were candidates for the said post and had applied, thus, making them competitors. Respondent No.5 had not been appointed till then on regular basis and had infact continued on contract basis.

UPSC had found the applicant eligible for the post advertised CWP No. 4387-CAT of 2001 Page numbers

again vide Annexure A-10 in 1998 but candidature of respondent No.5 was cancelled declaring him to be ineligible on account of the requisite experience of 12 years which has been discussed in a number of judgements. Both applicant and respondent No.5 alongwith other respondents have been before this Tribunal continuously, firstly both fighting bitterly for their selection by the UPSC for the post of Professor in Microbiology and subsequently applicant fighting to defend himself from the actions of respondent No.5, who happened to be Head of Department for applicant. The cases which have come to this Tribunal are O.A. No.776/99 decided on 25.4.2000; O.A. No.529/2000 decided on 27.2.2001, O.A.

No.468/2001 decided on 4.6.2002, O.A. No.529/2002 (Annexure A-15) decided on 10.12.2002 and O.A.

No.967/2002 decided on 17.2.2003 (Annexure A-16). We have been taken through these judgements which, in our opinion, are sufficient to show that there was a bitter animosity between respondent No.5 and the applicant.

xx xx xx xx

This Bench finds itself in complete agreement that the opinion expressed by the Bench in Annexure A-16 that both applicant and Dr. Joshi being in race for the post of Professor and Head of the Department of Microbiology, had become extremely bitter and vindictive against Dr. Jagdish Chander. Note is taken of order at Annexure A-21. This is an order dated 9.10.2002 when O.A. No.967-CH-02 had been filed and which CWP No. 4387-CAT of 2001 Page numbers

has ultimately been allowed by order Annexure A-16 wherein applicant had prayed for restraining the respondent No.5 from recording of his ACRs for the next years of 2001-02. The Bench had found existence of a prima facie case of possible irreparable damage being done to the applicant if respondent No.5 was not restrained from writing further ACRs of the applicant. Respondent No.5 was, thus , restrained from writing further ACRs of the applicant. Bench again agrees with the opinion recorded in Annexure A-16 that Dr. Joshi was totally biased against Dr. Jagdish Chander and tried to destroy career of the present applicant."

On the basis of the aforesaid conclusions recorded by the Tribunal, which have attained finality, there can be no doubt, that there was proven bias and animosity between the petitioner and Dr. R.M. Joshi respondent No.5. It is, therefore, keeping in view the aforesaid factual position, that we must assess the Annual Confidential Report for the year 1998-99, which was (like all the remaining Annual Confidential Reports referred to above) recorded by the aforestated Dr. R.M. Joshi (respondent No.5). Since both, the petitioner and respondent No.5 were professional rivals with proven bias and animosity, the recording of petitioner's report at the hands of respondent No.5, is clearly unsustainable in law, and as such, is liable to be set aside.

In view of the above, the petitioner's Annual Confidential Report for the year 1998-99 recorded by respondent No.5, is hereby set aside. It has implicitly the effect of setting aside the order passed by the Tribunal in Original Application No.211-CH of 2000, decided on CWP No. 4387-CAT of 2001 Page numbers

20.12.2000 (Annexure P-6).

Before we part with the instant controversy, it would be necessary to notice, that a Division Bench of this Court passed the following order on 26.10.2005, during the course of proceedings in the instant case:-

"After hearing the learned counsel for the parties, we have suggested to the learned counsel for respondents No.1 to 4 to see if the respondents can be persuaded to take a suitable decision on the adverse remarks which are subject matter of the present writ petition. We have adopted this course in view of the judgements rendered by the Central Administrative Tribunal in O.A.967/CH/02 decided on 17.2.2003, O.A.

No.17/CH/04 decided on 20.4.2004 and then in O.A.

No.18/CH/04 decided on 20.4.2004. Learned counsel for the respondents seeks time to get instructions." By the aforesaid order, the official respondents were required to take a suitable decision on the adverse Annual Confidential Report, under reference, in the background of the decisions of the Tribunal dated 17.2.2003 and 20.4.2004 (relevant portions whereof have been extracted hereinabove). Despite the fact, that clear conclusions of bias and animosity were recorded by the Tribunal between the petitioner and respondent No.5, the official respondents refrained from passing the only possible order that could have been passed in the facts and circumstances of this case. We are of the opinion, that the official respondents failed to discharge their duties honestly, as they ought to have, in the facts and circumstances of this case.

It is for such like circumstances, when Courts have to pass orders CWP No. 4387-CAT of 2001 Page numbers

repeatedly, on all simple administrative actions, that matters pile up with Courts, resulting in arrears. We, therefore, hereby require the official respondents to take the responsibility of passing order, as and when called upon, so that this unnecessary burden is not shifted to Courts.

Disposed of in the aforesaid terms.

( J.S. Khehar )

Judge.

( P.S. Patwalia )

Judge.

26.04.2006

sk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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