The Delhi High Court on May 18 will continue its hearing on the plea filed against the AAP Government for extending the tenure of the Director, Institute of Human Behaviour and Allied Sciences (IHBAS), even after he has attained the age of superannuation, alleging it’s against settled law and principles.
The bench headed by the Chief Justice D.N. Patel and Justice Jyoti Singh on January 6, 2021, sought the response of the government of NCT of Delhi, Ministry of Health and Family Welfare (Delhi Government), Satyendra Jain (Health Minister), Dr. V.K.S. Gautam (Officiating Joint Director, IHBAS), Dr. N.G. Desai (IHBAS) and IHBAS.
The Delhi High Court noted that this is contrary to the rules and requirements for the appointment of Director.
On 23.02.2021, the Delhi High Court has noted in its order that the Proceedings in the matter have been conducted through video conferencing. Learned counsel for respondent No.5 / Dr Desai, submits that counter affidavit has already been filed. However, the same is not on record. He seeks time to place the same on record. Let counter affidavit be brought on record before the next date of hearing.
The reply (counter affidavit) was submitted jointly by all 03 respondents (Hon’ble Minister of Health and Family Welfare of Govt. of NCT of Delhi, Chief Secretary of Govt. of NCT of Delhi and Principal Secretary of Health & FW of Govt. of NCT of Delhi) to Hon’ble High Court of Delhi on 25/01/2021. In their reply, submitted to Hon’ble High Court of Delhi, it has been categorically admitted in para no. 11 that extension is given for limited period of 06 months which will expire on 18/04/2021. The next date of hearing of PIL filed by Dr. TB Singh is 18/05/2021.
The Delhi government also issued the advertisement on February 12, 2021 (IHBAS website) for the post of Director, IHBAS.
The petition before the Delhi High Court has been filed by Tej Bahadur Singh, a retired professor from IHBAS, challenging the extension of service tenure of Director, IHBAS Dr. Nimesh G. Desai beyond the age of 65.
“The Institute is an autonomous body registered under the Societies Act 1860, funded jointly by Ministry of Health and Family Welfare, government of India and government of NCT of Delhi. It is submitted that IHBAS is a prime Hospital and its affairs need to be organised and controlled by the authorised and legally selected and appointed person. The affairs of the government Hospital under the garb of autonomous body, cannot be hood winked and the rules and regulations cannot be thrown to the wind,” averred in the petition.
As per DoPT rule, the extension to any government employee can only be granted before the completion of tenure or age of superannuation, it cannot be given retrospectively after passing 18 days of superannuation.
In case of superannuation, if any government wishes to give the extension, the government authority must follow certain DoPT rules before the superannuation of the govt. Servant. For example: Govt. authority has to establish that he has done enough effort to fill up post timely but no suitable candidate qualified by the method of Advertisement of post and Interview conducted for the same.
But in the case of IHBAS, Delhi government failed to do so and no advertisement was issued before the superannuation (October 18, 2020) of Dr. N.G. Desai to favour him wrongfully and against the rule and regulation.
The plea said, “Dr. N.G. Desai Respondent no. 5 who was appointed as a Director in accordance with the recruitment rules, rather it can be said the existing rules, has attained the age of 65 years i.e. the age of superannuation on 18.10.2020, but he is being permitted to control the activities and affairs of the institution even after the said date and is being permitted to work as Director by Respondent no. 3 and 4, with no authority to do so and their action is totally non-est. It is submitted that the existing recruitment rules not prescribe for such extension at all.”
It was submitted that Dr. Desai has been acting in a most vulnerable and illegal manner and causing a serious prejudice to the public at large and the institution Public Hospital IHBAS imparting the most important medical services to the citizens of the country.
The petitioner has submitted, “That the transparency and fairness are the basic fabric of the democratic system of the Government. The citizens as well as authorities who are empowered to run the institution like the institute of Human Behaviour and Allied Sciences (IHBAS) etc. are duty bound to follow the rules and regulations, procedure of the law as well as precedence. The affairs of the Government body and Government institution are required to be conducted as per the settled position of law that and the individual whims and caprices cannot be permitted to be imposed upon the institution and further to flout basic rules and regulations and common law. In other words, it can be said that every person who is in the helm of the affairs for conducting the business of a Government body, are bound to follow the rules and they cannot be permitted to act in an unreasonable, unfair and arbitrary manner.”
“The custodian of the property cannot be permitted to usurp the property or to misuse the same for any other purposes than to safeguard the interest of the public at large; Further every person is bound by the rules of the law and violations thereof for causing any favour to any person, by compromising the interest of the public at large and the institution, would be the most vulnerable as well as detrimental for the citizens as well as for the institution,” stated in the plea.
The job responsibilities of Director of any medical institute require his availability 24 x7 as his availability may be required to be present physically in the institute as and when required, more so during pandemic situation of Covid-19. On Sunday dated 18/04/2021, no charge was given to anybody to act as Director. No formal order / directions from Govt. of NCT of Delhi was issued or communicated to IHBAS. Same situation is persisting till date (23/04/2021) and IHBAS is functioning without Director.
As per the website of IBHAS, it has come to light that Dr. Desai is still functioning as Director IHBAS.