Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 30, 2024
Pronounced on: August 09, 2024
+ W.P.(C) No. 7718/2022 & CM No. 23620/202 & 23621/2022
DR. DILIP RAMBHAU SHENDE ...... Petitioner
Through: Ms. Ruchira & Ms.Pooja Tripathi,
Advocates
Versus
AIIMS AND ORS. .....Respondents
Through: Mr.Atul Kumar & Ms.Sweety Singh,
Advocates for respondent No.1
Mr.Santosh Krishnan, Ms.Sonam
Anand and Ms.S.L.Soujanya,
Advocates for respondent No.3
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE GIRISH KATHPALIA
JUDGMENT
SURESH KUMAR KAIT, J
1. The present petition under Article 226 of the Constitution of India has
been filed by the petitioner seeking quashing and setting aside of order dated
09.03.2022 passed by the learned Central Administrative Tribunal („CAT‟)
in OA No. 391/2022 and OM dated 03.02.2022 whereby respondent no.3
has been appointed as the Head of Department of Anaesthesiology and
Critical Care, AIMS, New Delhi w.e.f 01.03.2022. A direction is sought to
the respondents to appoint petitioner as the HoD, Department of
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Anaesthesiology, Pain medicine and Critical Care, being the senior most
person in the said department.
2. Vide the Office Memorandum No. 391/2022 dated 03.02.2022 issued
by the Senior Administrative Officer of Indian Institute of Medical Sciences
(AIIMS), respondent No. 3 Dr. Lokesh Kashyap, has been designated as the
Head of Department of Anesthesia, Pain Medicine and Critical Care,
AIIMS, New Delhi w.e.f. 01.03.2022.
3. The grievance of the petitioner is that he was promoted to the post of
Professor in the Department w.e.f. 01.07.2007 whereas, Dr. Lokesh
Kashyap was promoted in the grade of Professor w.e.f. 01.07.2008 and
thereby his name has featured above Dr. Lokesh Kashyap hence the O.M.
dated 03.02.2022 deserves to be set aside.
4. The backforth of the case is that vide communication dated
31.03.1983 written by Under Secretary, Government of India, Ministry of
Health and Family Welfare to the Director of AIIMS it was mentioned that
there will be no separate cadre for the staff of the centres for the purposes of
seniority and promotion.
5. The governing body of AIIMS based upon the aforesaid
communication dated 31.03.1983, issued order dated 02.05.1983 formulated
regulations reiterating and finalizing the guidelines issued by the Ministry of
Health and Family Welfare.
6. The petitioner claims that since anesthesia is not a core specialty at
Dr. R.P. Center, he was appointed as Assistant Professor of Anesthesiology
(RPC), AIIMS, New Delhi vide Memorandum No. F 11-6/89-Estt. I dated
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25.01.1991 issued by the Director, AIIMS and since then, he has been part
of main Department of Anesthesia, Pain Medicine & Critical Care AIIMS.
According to the petitioner, like other faculty members of the Department,
he has been on call duties, theatre/ICU duties with other responsibilities as
assigned by the HoD from time to time. Besides he has also been taking
active part in academic activities like teaching, training, etc.
7. According to the petitioner, the HoD of Department of
Anesthesiology, Pain Medicine and Critical Care, AIIMS has been the
reporting Officer for the purposes of petitioner‟s Annual Confidential
Report (ACR), leave applications and promotion etc .
8. Vide Memorandum dated 24.01.2009 issued by the Director
(Officiating) AIIMS, on the recommendations of the Standing Selection
Committee and with the approval of the Governing Body, the petitioner
along with other officers, was promoted to the Grade of Professor in their
respective Disciplines/ Departments w.e.f. 01.07.2007.
9. Vide Memorandum dated 28.08.2014, Senior Administrative Officer,
AIIMS notified that in light of decision of Academic Committee Meeting
held on 03.10.1991 and approved by Governing Body in its meeting held on
14.12.1991, the faculty approves that the faculty members working in
various specialties/disciplines in various centres of the Institute, where no
separate department exists, will work under the direct control/supervision of
the concerned Head of Department of the Main Institute. These faculty
members are part and form the core Faculty of the respective Departments
of AIIMS. They must participate in all activities of the Department of the
Main Institute. This will not be applicable to those disciplines which have
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been granted the status of “Department”.
10. Vide Memorandum dated 27.12.2016 issued by Director & Member
Secretary, AIIMS it was notified as under:
“ …..These faculty members will be part and form core
faculty of the respective departments of main AIIMS.
The Head of department will be responsible for writing
of Annual Confidential Reports of all such faculty
members where separate department does not exist
within the Centre in concerned specialty/specialties. At
any point of time when it come to entrusting the
responsibility to act as Head of Department it will be
on the basis of seniority of the faculty members
irrespective of his/her appointment for the main
department or for the centres. This will not be
applicable if a separate Department of that specialty
has been notified in that center.”
“It was also informed that this issue has already been
approved in the Academic Committee meeting dated
03.10.1991 vide agenda item no. AC/11 and approved
by Governing Body in its meeting held on 14.12.1991.
Further this is also in accordance with the
recommendations by DR. Karan Singh Yadav
Committee.
…..
The above proposal was approved with the
modification that HOD of respective departments
should ensure that faculty of various disciplines
working in various centers should participate in all
activities (teaching, research, patient care) of the main
department.”
11. According to petitioner in the Annual Report for the year 2017-2018;
2018-2019 and 2019-2020, his name was shown being Senior to respondent
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No. 3 in the Department. He acted as HOD of the Department from
16.05.2018 till 23.05.2018.
12. Vide Memorandum dated 11.01.2019, the respondent forwarded
guidelines for functioning of Centres, formation of Divisions and Units,
whereunder Dr.R.P. Centre was also recognized.
13. On 04.12.2019, the petitioner made a representation to the Chairman,
Governing Body of AIIMS for consideration of his candidature for
administrative responsibilities, based upon his seniority and the guidelines
for working arrangement for centre faculty at AIIMS.
14. However, vide Memorandum dated 28.01.2020, the Registrar of
AIIMS notified the guidelines for functioning of Centres, formation of
Divisions and Units at AIIMS stating as under:
“….
1.1.4. Intra Specialty seniority will be considered
only among faculty selected in a centre. They will
not be eligible for equivalence or seniority with
faculty of the same specialty in other centres or the
main department. This will apply even if the faculty
rotate with faculty in other centres or the main
hospital.”
15. The petitioner made another representation dated 20.02.2020
challenging the aforesaid guidelines dated 28.01.2020, as the same were in
opposition of guidelines issued in the year 1983, which were issued pursuant
to approval by various Committees‟ guidelines as well as Ministry of Health
and Family Welfare.
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16. Vide Letter dated 13.03.2020 written by Administrative Officer,
under reference of Ministry of Health and Family Welfare on this issue, the
petitioner was informed that his representation has to be referred to
Academic Section for examination and comments.
17. The Academic Schedule for the year 2020 of Department of
Anesthesiology, Pain, Medicine and Critical Care allocated duties to the
petitioner being a part of the Department. On 25.11.2020, the petitioner
received an e-mail from the associate Dean (Exam) appointing him as the
integral examiner to conduct DM Critical Care Examination, as he has been
appointed since 2004-2005.
18. The petitioner again made a representation dated 15.12.2020 to the
Administrative Officer, AIIMS, to assign him administrative
responsibilities.
19. A seniority list dated 24.12.2020 of faculty was uploaded by AIIMS
on its website where petitioner‟s name featured at Serial No. 4 in the list of
Professors of Department. The name of A Rajeshwari featured at serial No.
1 who superannuated on 28.02.2022; Dr. Anjan Trikha at serial No. 2, who
took VRS on 31.01.2022; Dr. Maya Dehran at serial No. 3, who
superannuated in 2021 and and Dr. Lokesh Kashyap, respondent No. 3
herein, at serial No. 5.
20. The petitioner along with other faculty members of AIIMS posted at
various centres of AIIMS, vide the Legal Notice dated 15.04.2021 requested
the Director, AIIMS to withdraw the guidelines dated 28.01.2020.
(Annexure P-24)
21. The Director of AIIMS vide its reply dated 21.05.2021 stated that
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guidelines dated 28.01.2020 were valid and drafted by the deriving power
conferring under AIIMS Act, 1956.
22. The petitioner vide his reminder dated 31.05.2021, pursuant to his
representation dated 20.02.2020 to the President and Chairman of
Governing Body of AIIMS submitted that the Rules circulated in the year
2020 were not approved in the Governing Body Meeting and were wrongly
mentioned as approved by Staff Council Meeting. (Annexure P-26)
23. In the tentative seniority list of Professors of AIIMS dated
01.07.2021, petitioner‟s name appeared at serial No. 88 and name of
respondent No. 3- Dr. Lokesh Kashyap featured at serial No. 92 in the
Department of Anesthesiology. (Annexure P-27)
24. Vide his representation dated 07.09.2021 prayed for opportunity of
hearing with request to look into his matter. Thereafter another
representation dated 18.10.2021 was made by the petitioner praying for
disposal of his representation.
25. The Senior Administrative Officer, Faculty Cell, AIIMS issued
Memorandum dated 22.12.2021 wherein, name of petitioner featured above
th
respondent No. 3 and below Dr. Anjan Trikha in the 65 Annual Report of
the year 2021 of AIIMS, the petitioner was featured Senior to respondent
No. 3.
26. Dr. Anjana Trikha after taking the Voluntary Retirement from Service
(VRS) was relieved from service on 31.01.2022 and thereby, petitioner
became the next eligible person in seniority list. The petitioner made a
representation dated 01.02.2022 to the then Hon‟ble Health Minister for
giving him administrative responsibility as Head of the Department,
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Anesthesiology, Pain, Medicine and Critical Care, AIIMS.
27. However, the Senior Administrative Officer, AIIMS vide
Memorandum dated 03.02.2022 notified that Dr. Lokesh Kashyap will be
the Head of the Department of Anesthesiology w.e.f. 01.03.2022.
28. The petitioner submitted another representation dated 05.02.2022 to
the Hon‟ble Minister of Health and Family Welfare and President of
Governing Body of AIIMS for withdrawal of OM dated 03.02.2022 which
was followed by a reminder dated 11.02.2022, however, to no response.
29. Being aggrieved, the petitioner filed Original Application bearing
O.A. No. 391/2022 before the learned Tribunal seeking setting aside of OM
dated 03.02.2022.
30. The respondent- AIIMS in its counter affidavit filed before the
learned Tribunal averred that petitioner was selected for the post of
Assistant Professor of Anesthesia at the Dr. Rajendra Prasad Centre for
Ophthalmic Sciences and not for the Department of Anesthesia (renamed
now as Department of Anesthesia, Pain Medicine and Critical Care) in the
AIIMS hospital. Thus, he is not the „senior-most‟ faculty member in the
Department of Anesthesia, Pain Medicine and Critical Care and is not
entitled to be appointed as Head of the Department of Anesthesia, Pain
Medicine and Critical Care when the incumbent Head of that department
superannuates.
31. The respondent- AIIMS pleaded that data in respect of seniority list
available on the website of AIIMS, is only a subject matter of record but not
on official seniority list of AIIMS Faculty. The respondents have pleaded
that absence of Department of Anesthesiology in RPC does not imply that
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the petitioner would become a part of Department of Anesthesiology, Pain,
Medicine and Critical Care at AIIMS. It was pleaded that no meeting of
Academic Committee after the Governing Body Meeting of 18.06.2021 has
taken place. He was appointed as Assistant Professor of Anesthesiology
(RPC) and is not next in seniority in the Department of Anesthesiology,
Pain, Medicine and Critical Care.
32. Dr. Anjan Trikha was Faculty of Department of Anesthesiology, Pain,
Medicine and Critical Care, however, the petitioner is not a member of the
same Department. Also stated that seniority list referred to by the petitioner
relates to seniority within the overall cadre and no seniority within the same
Department.
33. The respondent-AIIMS also pleaded before the learned Tribunal that
impugned order was issued by Director, AIIMS which is based upon the
guidelines for functioning of centres, formation of divisions and units at
AIIMS. (PDF Page 462 para B third line) New Delhi neither illegal nor
arbitrary.
34. The learned Tribunal in light of the pleadings of the parties observed
as under:-
“ Having heard learned counsel for the parties and
perused the material on record, we come to the
conclusion that though presently the authority
competent to write applicant's APAR is the Head of
Department, but henceforth it will admittedly be the
Chief of Centre. However, as per the combined
seniority list, the applicant is senior to the
respondent no.3 being promoted to the grade of
Professor w.e.f. 01.07.2007 i.e. one year prior to the
respondent no.3, who was promoted to the grade of
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Professor w.e.f . 01.07.2008, but not as per the
seniority list as on 01.12.2021, which has been
prepared Faculty- Department-wise. We are also
convinced that the Head of Department is not a post
but is only additional duty to be discharged by the
senior most Member in the main department.
However, it is also true that the applicant is working
in the Centre and not in the Department itself, and
has not even been transferred to the Anaesthesia
Department.
In view of these circumstances, we are of the
considered view that the respondent no.3, who is
deployed Department of Anaesthesia, Pain Medicine
and Critical Care, AIIMS, New Delhi, has rightly
been designated as HoD. Therefore, we are not
inclined to interfere with the impugned order dated
03.02.2022 appointing respondent no.3 as Head of
Department of Anaesthesia, Pain Medicine and
Critical Care, AIIMS, New Delhi. However, we
dispose of this OA with the following directions:-
1. The respondent no.3 will not be the
administrative authority of the applicant, the
applicant being senior to respondent no.3 in the
combined seniority of all faculties of AIIMS.
2. The respondent no.3 will not be the
controlling/ reporting authority for writing
ACRs/APARs of the applicant.
3. The respondent no.3 will also not be the
sanctioning authority of applicant's leave and
any other administrative permissions etc.
4. Chief of Centre will be the competent
authority of the applicant in respect of
contingencies mentioned at 1,2 and 3 above.”
35. To assail the decision of the learned Tribunal, learned counsel
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appearing on behalf of the petitioner submitted before this Court that
Academic Schedule January-June 2021 was circulated with regard to the
Department of Anesthesiology, Pain Medicine & Critical Care, wherein the
Petitioner was allotted the duties of delivering lectures of the session, being
the part of the aforementioned Department. The Academic Schedule of DM
Critical Care, Department of Anesthesiology, Pain Medicine and Critical
Care, July-December, 2021 was circulated allotting duties to the Petitioner
being a part of' the Department wherein the Petitioner was allotted the duties
of delivering lectures of the session . Also allotted Thesis Guide & Co-Guide
to more than 50 Postgraduates students completing MD, Anaesthesia & to
around 10-12 Post graduate students completing DM Critical Care both in
the Department of Anaesthesia, Pain Medicine and Critical Care.
36. To the contrary, to stand the of the respondent-AIIMs is that
petitioner has placed reliance upon O.M. F-20-11/89 Estt.1 dated
27.03.1992 in continuation with O.M. dated 31.03.1983 issued by AIIMS in
respect of relationship between AIIMS and RP Centre, the intend of which
was for independent functioning of these centres. Attention of this Court
was drawn to clause- 3 of O.M. dated 31.03.1983 to show that promotion
links between the faculty employed at centres and at AIIMS are not one of
the same and so all the supportive services shall be under control of centres
whereas in some areas it shall be with the approval of the Director.
37. Learned counsel for the respondents submitted that the guidelines are
7th
approved by the Governing Body of AIIMS in its 15 Meeting and there is
no suppression of the seniority of the petitioner. The power of appointment
of an Administrative Head is vested with Director, AIIMS in terms of
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Section 11 of the Regulations of AIIMS, 2019 and the Head of the
Department can also be appointed from the outside the Department in some
circumstances and at no point of time, the petitioner was designated as the
Member of Department to Anesthesiology, Pain, Medicine and Critical
Care .
38. Learned counsel further submitted that designation of Head of
Academic Department to the senior-most faculty member with the
Department and not to a more senior faculty member from another centre.
and thus, there is no infirmity in the order and judgment passed by the
learned Tribunal and this petition deserves to be dismissed.
39. The submissions advanced by learned counsel for the parties were
heard at length and the material placed on record has been carefully perused.
40. It is not in dispute that by virtue of Memorandum No. F 11-6/89-Estt.
I dated 25.01.1991 issued by the Director, AIIMS, petitioner has been
working in the main Department of Anesthesia, Pain Medicine & Critical
Care, AIIMS and performing his duties under the HoD. Also that for the
purposes of filing his ACRs, promotion, leaves etc, the petitioner has to
report to the HoD of Department of Anesthesia, Pain Medicine & Critical
Care, AIIMS. Vide Memorandum dated 24.01.2009, petitioner was
promoted to the post of Professor by the Director, AIIMS. In respect of
faculty members working in various specialties/disciplines in various
centres of the Institute, where no separate department existed, such in the
case of petitioner, vide Memorandum dated 28.08.2014 issued by the Senior
Administrative Officer, AIIMS and it was informed that their services shall
be governed by the concerned Head of Department of the Main Institute i.e.
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AIIMS. The relevant extract of Memorandum dated 28.08.2014 reads as
under:-
“All India Institute of Medical Sciences Ansari Nagar,
New Delhi 110029
No.F.20.03/2014-Estt I Dated the 28.8.2014
Memorandum
Subject: Screaming the working management of
faculty posted in various specialties in Centres and
Main Departments at the AIIMS, New Delhi - reg.
In supersession of this office memorandum of
st
even number dated the 1 August, 2014 on the subject
cited above, it is notified for information of all
concerned that, after having detailed discussion with
various Chiefs of Centre/Heads of the Departments on
the issue of succumbing the working arrangement of
faculty posted in similar disciplines/specialties in
various Centres and main Departments at the AIIMS,
New Delhi in the light of the decision of the Academic
Committee meeting held on 3.10.1991 vide agenda
item No.AC/11 and approved by the Governing Body in
its meeting held on 14.12.1991 and also keeping in
view the recommendations made by Dr. Karan Singh
Yadav Committee, the Director is pleased to order as
under:
1. The faculty members working in various
specialties/disciplines in various Centres of the
Institute, where no separate department exists, will
work under the direct control/supervision of the
concerned Head of the Department of the Main
Institute. These faculty members are part and form the
core Faculty of the respective Departments at the
AIIMS. They must participate in all activities of the
Department of the Main Institute. This will not be
applicable to those disciplines which have been
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granted the status of “Department”.
2. The Head of the Department of the Main Institute
will rotate the faculty members, including the faculty
members of the Main Department, to various Centres
as per the functional requirement of the Centres in the
interest of uninterrupted patient care service and also
king care of career progression and professional
satisfaction of the faculties.
3. The head of the department of the Main Institute will
be responsible for writing of Annual Confidential
Reports of all such faculty members whose deployment
is on rotation basis.
4. While working under the direct control/supervision
of the Head of the Department of Main Institute, the
faculty members appointed against the sanctioned
strength of various Centres will route all their
applications through the Head of the Department of the
Main Institute and subsequently the Chief of the
concerned Centres where they are appointed.
5. At any point of time when it comes to entrusting the
responsibility to act as Head of the Department, it will
be on the basis of seniority of the faculty members
irrespective of his/her appointment for main
Department or for the Centres (as was done in the past
in the case of Department of Pathology (Dr. Kusum
Verma) and Department of Radio Diagnosis (Dr. S,
Vashisth).
All concerned Chiefs of Centres/heads of the
Departments are requested to ensure strict compliance
of the aforesaid orders.”
41. However, vide Memorandum dated 28.01.2020, the Registrar of
AIIMS notified that Intra Specialty seniority will be considered only among
faculty selected in a centre and that they shall not be eligible for
equivalence or seniority with faculty of the same specialty in other centres
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or the main department.
42. It is not in dispute that in the Annual Reports pertaining to the years
2017-2018; 2018-2019 and 2019-2020, petitioner has been shown being
Senior to respondent No. 3 in the Department and he also acted as HOD of
the Department from 16.05.2018 till 23.05.2018. In the seniority list dated
24.12.2020 of faculty uploaded by AIIMS on its website, petitioner‟s name
featured at Serial No. 4 in the list of Professors of Department. In the
tentative seniority list of Professors of AIIMS dated 01.07.2021, petitioner‟s
name appeared at serial No. 88 and name of respondent No. 3- Dr. Lokesh
Kashyap featured at serial No. 92 in the Department of Anesthesiology.
Meaning thereby, not only the petitioner was senior to respondent No.-3 Dr.
Lokesh Kashyap amongst the Professors of the Department but also as per
seniority list of Professors of AIIMS.
43. Thus, the observations of the learned Tribunal that respondent No.3
was senior to petitioner, as per seniority list seniority list as on 01.12.2021
which has been prepared Faculty- Department-wise, cannot be accepted.
Also, keeping in consideration the fact that petitioner, since the year 1991,
has been working in the department of Anaesthesia, Pain Medicine &
Critical Care, AIIMS and performing all the duties assigned to him and even
his service conditions such as grant of leaves etc. are governed by AIIMS,
therefore, cannot after rendering such a long service, be now said to be not
working in the said department.
44. It is not the case of respondents that petitioner is not holding the
requisite qualifications or that his service record is not good. What is
shocking is, the further directions passed by the learned Tribunal, while
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appointing respondent no.3 as the Head of the Department of
Anaesthesiology and Critical Care, AIMS, New Delhi w.e.f 01.03.2022, has
passed directions that respondent no.3 will not be the administrative
authority of the petitioner; respondent no.3 will not be the controlling/
reporting authority for writing ACRs/APARs of the applicant and that
respondent no.3 will also not be the sanctioning authority of applicant's
leave and any other administrative permissions etc.
45. It is not in dispute that earlier, the afore-noted service conditions in
respect of petitioner were governed by respondent-AIIMs by virtue of
communication dated 31.03.1983 written by Under Secretary, Government
of India, Ministry of Health and Family Welfare to the Director of AIIMS,
which also stipulated that there will be no separate cadre for the staff of the
centres for the purposes of seniority and promotion.
46. In fact, the learned Tribunal by passing of such directions, has tried to
shield the fact that petitioner‟s services are governed by respondent-AIIMs,
which cannot be permitted.
47. In light of above, the order dated 09.03.2022 passed by the learned
Tribunal in OA No. 391/2022 and OM dated 03.02.2022 whereby
respondent no.3 (now retired as informed by the learned counsel for
petitioner) has been appointed as the Head of Department of
Anaesthesiology and Critical Care, AIIMS, New Delhi w.e.f 01.03.2022, are
hereby set aside, with direction to respondent-AIIMS to take petitioner‟s
position as per seniority list dated 24.12.2020 of faculty, which was
uploaded by AIIMS on its website wherein his name featured at Serial No. 4
in the list of Professors of Department and Dr. Lokesh Kashyap, respondent
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No.3 herein, at serial No.5 and pass necessary orders in respect of
designation, fixation of pay and arrears etc. within four weeks.
48. With directions, as aforesaid, the present petition and pending
application(s) are accordingly disposed of.
(SURESH KUMAR KAIT)
JUDGE
(GIRISH KATHPALIA)
JUDGE
AUGUST 09, 2024
r
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