VIJAYALAKSHMI BASAVARAJ WORKING AS DEPUTY DIRECTOR TECHNICAL ALI YAVAR Vs. SECRETARY HEALTH GOVERNMENT OF INDIA MINISTRY OF HEALTH AND FAMILY

JUDGEMENT

(1.) THIS writ petition arises in the context of a public notification dated 30-3-2004 [copy at annexure-B] issued by the respondent No. 3-All India Institute of Speech and Hearing, Mysore [for short the Institute], inviting applications for fitting up the post of Director at the Institute indicating the essential qualification for the aspiring applicants, desirable qualification, age limit, last date for receipt of the application and allied matters. Petitioner was one among the aspiring applicant for the said post.

(2.) IT is averred in the writ petition that the respondent No. 3-Institute had intimated the petitioner among other applicants who were qualified to fill up the post to attend the interview to be held on 22-11-2004. It is also averred that including the petitioner, six other candidates attended the interview on this date. The version of the petitioner is that her performance in the interview was quite good, in fact, far above the performance of other candidates and that she was likely to be selected etc. ,; that as the petitioner did not receive any intimation from the respondent-Institute as a sequel to the interview being conducted, had addressed several representations dated 4-1-2005, 29-1-2005 and 13-3-2005 [copy at Annexures-E1 to E3].

(3.) FURTHER averment is that at that point of time reasonable apprehension which the petitioner had developed was that the respondent No. 4, the present Director of the Institute in the acting capacity being on deputation from the National Institute Of Mental Health and Neuro Sciences was stalling the finalisation of selection amongst the candidates interviewed for the post as the person so selected win be displacing the respondent No. 4. The pleading in this regard is at para-3 of the writ petition, which reads as under: 3. Though the appointment of 4th respondent an deputation was purely a stop-gap arrangement and directions were issued to fill up the post of Director on a regular basis, the entire process of recruitment to the post of Director stowed down the moment the 4th respondent took over as director on in charge basis. The 4th respondent not only successfully continued as in-charge director beyond the permissible limit of three years but also successfully stalled recruitment to the post of Director on am regular basis. The outer limit for continuation of an appointment on deputation is five years. In the meanwhile, the 4th respondent had also received a proforma promotion in his parent institute as Professor of Speech Pathology. He, however, was drawing the pay scale to which he was entitled to in his parent institute even while working as in-charge director in the 3rd respondent-institute. Finally on 30th March, 2004, an advertisement was issued inviting applications far the post of Director. A true copy of the same is produced herewith and marked as Annexure-B. A true copy of the OM putting the 4th respondent in charge of the post of Director on 17-4-2000 is produced herewith and marked as Annexure-C. DOPT, government of India, has issued instructions from time to time regulating transfer on deputation/foreign service. The one governing the field since 1994 is the OM dated 5-1-1994, a true copy of the same is produced herewith and marked as Annexure-D. As could be seen from the provisions of the said OM, paragraph 8 clearly stipulate the period of deputation shall be subject to a minimum of three years in all cases. Exception is made only where the recruitment rules provide otherwise. The said paragraph also comes down heavily on further extensions and has taken the matter of continuation beyond an outer limit of five years out of the purview of the administrative ministry. No continuation beyond the period of five years even in the stipulated circumstances can be granted, unless it is approved by the DPOT. In the instant case, the recruitment rules of the 3rd respondent-institute do not authorize filling up of the Directors post by deputation on a regular basis. The one and the only method of recruitment stipulated in the rules is by director recruitment. That being the position, the very appointment and continuation of the 4th respondent as Director of the 3rd respondent-institute is wholly without authority of law and is ultra vires the very powers conferred in the matter of transfer on deputation.