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Handing Over Administrative Charge To More Experienced Candidate Not Stigmatic To Predecessor: Gujarat High Court
PRIYANKA PREET
25 Feb 2022 10:15 AM IST
The Gujarat High Court has recently affirmed that merely appointing more experienced or senior candidates to an administrative post cannot be said to be stigmatic to the predecessor.In saying so, the Bench comprising Justice Biren Vaishnav has dismissed the Petition filed by the petitioner, former HOD (Anesthesia) at a medical college, challenging his removal and appointment of rather...
The Gujarat High Court has recently affirmed that merely appointing more experienced or senior candidates to an administrative post cannot be said to be stigmatic to the predecessor.
In saying so, the Bench comprising Justice Biren Vaishnav has dismissed the Petition filed by the petitioner, former HOD (Anesthesia) at a medical college, challenging his removal and appointment of rather senior candidate.
"Dr. Patel has far more experience and senior to the petitioner and handing over the charge to Dr. Patel cannot be said to be an act of stigma and, therefore, the impugned order cannot be in any manner whatsoever considered to be stigmatic and cannot even be said to be reduction in rank," it observed.
Background
The Petitioner, a degree holder of MD in anesthesia from AIIMS was engaged in Respondent No. 1 College as a Professor and Head of Department since 2017. Subsequently, he filed a complaint against an Anesthesia Assistant for irregularity and prolonged absence. Thereafter, he was interrogated from the Gender Harassment Committee per a complaint by the Assistant. In 2021, the Petitioner was removed from the post of Head of Department.
The Petitioner has averred that the order of reduction in rank without reasons violated the Indian Medical Council Act of 1956 and claimed that the removal was basis the report of the Gender Harassment Committee. He also submitted that he was offered no opportunity of hearing and his removal violated Section 51(A) of the Gujarat University Act. The Petitioner ventured on to term the order of reduction as "stigmatic" while relying on Roychan Abraham v. State of UP of the Allahabad High Court.
Per contra, Respondent No. 1 averred that the Petitioner has not been removed but merely an extra charge of the Head of Department has been withdrawn. To bolster this argument, reliance was placed on State of Punjab and others v. Arun Kumar Aggarwal and others [2007(10) SCC 402] and other precedents. Further, the Petition was not maintainable since Respondent No.1 was a private college.
Judgement
As regards the issue of maintainability, the Bench averred that merely because the college was providing medical education and was governed by the MCI, it did not become a private college. This was in accordance with the Ram Krishna Mission v. Kago Kuniya 2019 (16) SCC 303 judgement wherein the Apex Court had held:
"Before an organization can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organization as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function."
Justice Vaishnav opined that even if the Petition was maintainable, the Petitioner could not be reinstated since the appointment was purely temporary and the charge was handed over to a person senior to him. Even if he was removed basis the report of the Committee, the order was not stigmatic.
Accordingly, the Petition was dismissed.
Case Title: DINESH SHARAN THAKUR Versus DR. M K SHAH MEDICAL COLLEGE AND RESEARCH CENTRE
Citation:2022 LiveLaw (Guj) 56
Case No.: C/SCA/12227/2021
