Quashed

Dr. Ninad S. Gaikwad v. Mumbai Municipal Corporation, Mumbai and 3 Ors.

Bombay HC4 Jan 2012WP/1064/2011

Case brief

AI extract

What is this about?

This writ petition challenges the replacement of the petitioner as Head of Department by an ad-hoc professor. The High Court of Bombay quashed the impugned 2011 order solely because it was passed without affording the petitioner an opportunity of being heard, violating principles of natural justice, and noted political motivation by senior leaders.

What did the court decide?

The impugned order dated 31 May 2011 appointing the fourth respondent is set aside and the rule is made absolute in these terms.

Dr. Ninad S. Gaikwad Vs Mumbai Municipal Corporation… — Service and Employment | Bombay HC (2012)

wp1064-11

Dmt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶5

ORDINARY ORIGNAL CIVIL JURISDICTION

¶6

WRIT PETITION NO. 1064 OF 2011

¶7

Dr. Ninad S. Gaikwad. .. Petitioner.

¶8

versus

¶9

Mumbai Municipal Corporation & Ors. .. Respondents.

¶10

.....

¶11

Mr. N.V. Bandiwadekar for the Petitioner.

¶12

Mr. R.S. Apte,Sr. Adv. with Mr. J.J. Xavier for the Respondents.

¶13

......

¶14

CORAM : DR.D.Y.CHANDRACHUD &

A. A. SAYED, JJ.

04 JANUARY 2012.

P.C. :

Rule, by consent returnable forthwith. With the

¶19

consent of Counsel and at their request the Petition is taken up

¶20

for hearing and final disposal.

wp1064-11

Dmt

The Petitioner belongs to a Scheduled Caste (Hindu Mahar). Besides holding an MBBS qualification, the Petitioner holds post-graduate qualifications of M.S., DCRL, and a DNB in ENT. The Petitioner was initially appointed as a Lecturer in ENT on 11 March 1997 at the Seth G.S. Medical College conducted by the Municipal Corporation of Greater Mumbai. Thereafter the Petitioner was appointed on 25 July 2006 as an Associate Professor in the Department of ENT in a reserved vacancy with effect from 3 July 2006. On 2 February 2011, the Petitioner was promoted as a Professor on a regular basis on the recommendation of the Promotion Committee of the Mumbai Municipal Corporation. On 5 March 2011, an order was issued by which the Petitioner came to be appointed as Head of Department in the same pay-scale. On 13 June 2011, the Petitioner received an order dated 31 May 2011 by which the Fourth Respondent has instead and in place of the Petitioner been appointed as Head of Department in the ENT super-speciality. The order appointing the Fourth Respondent

wp1064-11

Dmt

in substitution of the appointment which was issued to the Petitioner has admittedly been passed without affording an opportunity of being heard to the Petitioner.

¶29

In response to a query under the Right to

¶30

Information Act, the Petitioner has been informed in a communication dated 8 April 2011 that no Rules have been made by the Municipal Corporation for appointment as Head

¶31

of Department and that an office order for the reversion of the Petitioner has been issued in accordance with the directions of the Additional Municipal Commissioner (W.S.) and the Municipal

¶32

Commissioner. As regards the Fourth Respondent, it has been stated that she is working on an ad-hoc basis as a Professor in ENT against a post to be filled in by a reserved category candidate through the MPSC. Several documents have been furnished to the Petitioner under the Right to Information Act. From the material on record it emerges that the AMC (WS) put

¶33

up a file note on 11 April 2011 seeking directions of the Municipal Commissioner as to whether preference is to be

wp1064-11

Dmt

given to a senior Professor who has worked for a larger

¶38

number of years as a Professor but on an ad-hoc basis or alternatively to a Professor who is admittedly junior to the adhoc Professor but holds a regular appointment as Professor. The Municipal Commissioner on 16 April 2011 approved of the former course of action, namely, to allow preference to be given to a Professor who has worked for a larger number of years though on an ad-hoc basis. The documents which have been disclosed to the Petitioner also contain a note which was put up on 18 May 2011 by the Director (Medical Education & Major Hospitals). The note refers to the fact that the Petitioner was appointed as Head of Department on 5 March 2011 since he was senior in appointment as Professor on a regular basis in the ENT Department. The file note contains a reference to the fact that telephonic requests were received from senior“ political leaders to the effect that the Fourth Respondent” should be restored to the post of Head of Department. It appears that prior to the appointment of the Petitioner on 5 March 2011, the Fourth Respondent had held the position as

wp1064-11

Dmt

Head of Department from 12 October 2006 until the Petitioner

¶43

came to be appointed as Head of Department, being the senior-most Professor appointed in a regular capacity.

¶44

The principal grievance which has been urged on behalf of the Petitioner is that the order divesting him of the position of Head of Department has been passed without complying with the principles of natural justice. Moreover, it has been submitted that the Petitioner was appointed after a due process of selection in a regular capacity as a Professor in the ENT Department whereas the Fourth Respondent is an adhoc Professor. Learned Counsel submitted that the entire action appears to have been motivated, as the file itself discloses, by a request made by political leaders. Moreover, it has been submitted that in the absence of Rules, the Petitioner as a senior Professor appointed on a regular basis was validly

¶45

appointed as Head of Department and there was no reason or justification to deprive him of that post particularly in breach of the principles of natural justice. The seniority list which

wp1064-11

Dmt

has been disclosed to the Petitioner under the Right to

¶50

Information Act in fact does not contain the name of the Fourth Respondent.

¶51

On the other hand, it has been urged on behalf of

¶52

the Respondents that the post of Head of Department is not a promotional post. The Fourth Respondent held that post from 2006 to 2011 until the Petitioner was appointed on 5 March 2011. The Fourth Respondent was, it was submitted, deprived of the post of Head of Department by the Municipal Corporation without complying with the principles of natural justice. Though the Fourth Respondent is an ad-hoc Professor whereas the Petitioner holds a regular appointment, the Fourth Respondent has been working continuously and is senior in appointment to the Petitioner. Therefore, it was urged that there is no basis or justification in the grievance of the Petitioner and the Municipal Corporation has acted fairly in appointing a more senior person as Head of Department.

wp1064-11

Dmt

There is no dispute about the factual position. The

¶57

Petitioner was appointed as a Lecturer on 1 March 1997 whereas the Fourth Respondent was appointed in 1993. The Petitioner was appointed as an Associate Professor in a regular capacity following an interview by the MPSC on 3 July 2006. The Fourth Respondent was appointed on 21 February 2000; at that stage, according to the Municipal Corporation, interviews were conducted for the post of Associate Professor by a Municipal Committee. While the Petitioner was promoted as a Professor on a regular basis on 2 February 2011, the Fourth Respondent was appointed in an ad-hoc capacity since the process of selection has not taken place through MPSC. In response to his query under the Right to Information Act, the Petitioner has been informed that the Fourth Respondent holds the post of a Professor in ENT on an ad-hoc basis against a post to be filled in by a reserved category candidate through MPSC.

¶58

In our view, the manner in which the Fourth

wp1064-11

Dmt

Respondent has been appointed instead and in place of the Petitioner is in breach of the principles of natural justice. Learned Counsel appearing on behalf of the Municipal Corporation urged that the Fourth Respondent was deprived of the position as the Head of Department, a position which she has held between 2006 and 2011, without complying with the principles of natural justice in the first place. That, however, cannot furnish a justification for the Municipal Corporation to deprive the Petitioner of the position, once he was appointed on 5 March 2011, without complying with the principles of natural justice. The Fourth Respondent has not made any grievance before the Court in regard to the order appointing the Petitioner to the post of Head of Department in supersession of the appointment of the Fourth Respondent which was made earlier. If, as the file notings indicate, the process was motivated at the behest of certain political leaders, then, the action which is adopted by the Municipal Corporation

¶63

leave much to be desired. Evidently, the record before the Court does disclose a written note dated 18 May 2011 of the

wp1064-11

Dmt

Director (Medical Education & Major Hospitals) expressly referring to the fact that certain senior political leaders had“ ” telephonically indicated that the Fourth Respondent should be restored to the post of Head of Department. Municipal officers, including the Additional Municipal Commissioner and the Municipal Commissioner should act on an objective basis. – The careers of municipal officers in the present case doctors – in municipal hospitals cannot be made to depend upon the whims and fancies of political personalities. Even if the Fourth Respondent had a grievance about being divested of the – post of Head of Department held by him from 2006 2011 and in regard to the order appointing the Petitioner, a fair procedure had to be followed. Since the order by which the Petitioner was divested of the post of Head of Department was passed without even affording an opportunity of being heard, we quash and set aside the impugned action purely on that ground. If the Municipal Corporation is advised to adopt any further proceedings, it will have necessarily to do so after complying with the principles of natural justice.

wp1064-11

Dmt

Accordingly, and for the aforesaid reasons, we set aside the impugned order dated 31 May 2011 (Exhibit J-1) to the Petition. Rule is accordingly made absolute in the aforesaid terms. There shall be no order as to costs.

¶72

Stay refused.

¶73

(Dr. D.Y. Chandrachud, J.)

¶74

(A. A. Sayed, J.)

Dr. Ninad S. Gaikwad v. Mumbai Municipal Corporation, Mumbai and 3 Ors.

Case brief

What is this about?

What did the court decide?

Dr. Ninad S. Gaikwad v. Mumbai Municipal Corporation, Mumbai and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Maharashtra Shaishanik and Arogya Vidyanagari, Thane and Ors. Vs Director of Technical Education, Maharashtra State and Ors.

Sound Casting Pvt. Ltd. Vs Deputy Commissioner of Income Tax, CIRCLE-2 and Ors.

M/S. Hindalco Industries Ltd. Vs the Addl. Commissioner of Income Tax -I(5) and 5 Ors.

B.N. Upadhyay Vs Union of India and 3 Ors.

Maharashtra General Kamgar Union Vs the State of Mharashtra and 5 Ors.

Shipping Corporation of India Limited Vs Union of India and 2 Ors.