COVER STORY

A key appointment under a cloud

The basis on which Dr. S.P. Agarwal was chosen to the post of Director-General of Health Services two years ago comes under question.

T.K. RAJALAKSHMI
in New Delhi

ALMOST two years after Dr.S.P. Agarwal was appointed Director-General of Health Services under the Union Ministry of Health and Family Welfare, the appointment has come under a cloud. There have been allegations regarding the Annual Confidential Reports (ACR) based on which the appointment was made on April 10, 1997, and certain documents have been made available to Frontline in support of these allegations.

One of the most relevant documents that have evidentiary value is a copy of a letter written by Dr.Narendra Bihari, former Additional DGHS, to the then Health Secretary, P.P. Chauhan, admitting that he had prepared the ACRs pertaining to Agarwal for four years (1988-89 to 1991-92) on one particular date on the instructions of the then DGHS, Dr G.K. Vishwakarma, who signed them as the reviewing officer. This, according to Bihari, was done in the presence of Agarwal himself. Although the letter was sent to the Health Secretary in July-August 1996, no action has been initiated either against Bihari or any other official concerned.

In his hand-written letter to Chauhan, dated July 22, 1996 and marked 'Confidential', Bihari said that the ACRs had not been written year-wise. Bihari wrote: "I was called along with Dr.S.P. Agarwal by the then DGHS and asked to report his ACRs for the above years 'Outstanding', which were reviewed in front of me by Dr. G.K. Vishwakarma." Bihari added that he was not the reporting officer during that period as he was of the same rank as Agarwal and that the ACR should have been written by the DGHS and reviewed by the Health Secretary. The letter said that "necessary action as deemed fit" could be taken.

The fact that these ACRs were not written at the end of the relevant years is borne out by Bihari's official seal, which shows him to be on a pay scale of Rs.7,300-Rs.7,600, for which he was made eligible only by a Government Order dated November 11, 1991. (The ACR for 1988-89 also carries this seal.) Similarly, Vishwakarma could not have reviewed them before this date. The dates mentioned in Vishwakarma's remarks as reviewing officer are June 10, 1990 for 1989-90 and May 25, 1991 for 1990-91, both dates prior to the date on which Bihari could have written the ACRs.

According to another document, on September 11, 1990, Vishwakarma recorded a note saying that as he was not in office during 1989-90 for more than eight months, he had sought the opinion of the Director, Vigilance on the appropriateness of his reviewing the confidential reports concerned. This indicates that by September 11, 1990, he had not reviewed the ACRs of any officer for the year 1989-90 since he doubted his competence to do so. The question, therefore, is whether his remarks as a reviewing officer for Agarwal for 1989-90, with the date of the review being shown as June 6, 1990, will not amount to falsification.

In Bihari's case, apparently after the receipt of his letter of July 22, 1996, the Health Ministry seems to have looked into the matter and decided to "paper over" his remarks as the reporting officer for the year 1990-91. A note from C.L.Bhatia, Under Secretary to the Government of India, dated September 26, 1996, states: "Since Medical Superintendent, Dr.Ram Manohar Lohia Hospital, was not the prescribed reporting authority during 1990-91 in respect of Dr. Agarwal, the remarks made by him in his capacity as the reporting officer has been papered over and the remarks of DGHS allowed to stand."

Yet, Agarwal was appointed Director-General on the basis of these ACRs. Moreover, Vishwakarma, the then DGHS, marked the grade 'Outstanding' on the ACRs for the four years. Prashant Bhushan, Senior Advocate, Supreme Court, and member of the Centre of Public Interest Litigation, alleges that Agarwal had participated in a conspiracy to falsify his own ACRs. He argues that it amounts to forgery under Sections 463 and 464 of the Indian Penal Code. The sections define forgery as the making of a document by a person with the intention of causing it to be believed that such document was made at a time at which he knows that it was not made or executed. The writing of four ACRs on one day and back-dating them to make them appear that they had been written year-wise amounted to forgery under Section 463 and 464 of the IPC, Prashant Bhushan says.

Reproduced in facsimile, the reporting officer's assessment for the purposes of the Annual Confidential Report of Dr.S.P. Agarwal for 1989-90. The official seal of the reporting officer, Dr. Narendra Bihari, mentions his own pay scale as "Rs.7,300 to Rs.7,600", which indicates that the entry was not made at the end of the relevant year. (Below) The Government Order dated November 11, 1991 which fixes the pay scale of Bihari at Rs.7,300-100-7,600 plus a non-practising allowance (NPA) of Rs.1,000.

The ACR for 1992-93, dated July 13, 1993, has been written by Dr. A.K. Mukherjee without indicating the date but with a seal that shows him as the DGHS. It has been reviewed by the then Health Secretary, R.L. Mishra, and the date of the review is given as January 31, 1994, which, incidentally, was the last date of his service. The 'history sheet' of 1993-94 written by Agarwal carries the date January 23, 1994. Once again, the grade 'Outstanding' was given without indicating a date and the report was reviewed by R.L. Mishra on January 31, 1994. A.K. Mukherjee became the DGHS only on October 6, 1993, through a Government notification dated October 10, 1993, and so during 1992-93 he was not the DGHS as is indicated in the ACR for that period. Therefore, the Centre for Public Litigation has reason to believe that these ACRs were written after October 6, 1993, on which date Mukherjee took over as DGHS. These ACRs were also taken into consideration by the Government while taking a decision to appoint Agarwal the DGHS.

The next lot of ACRs, for the years 1994-95 and 1995-96, also appears to have been prepared through a process similar to the one through which the other ACRs were prepared. The ACR for 1994-95 was written by Mukherjee and reviewed by M.S. Dayal on April 12, 1996 after the latter had retired as Health Secretary. Dayal's remarks were papered over on June 19, 1996 on the grounds that having retired, he was not competent to be a reviewing officer. The ACR for 1995-96 was in two parts, one for the period between April 1, 1995 and September 11, 1995 and the other for the period between September 12, 1995 and March 31, 1996. In the first part, Mukherjee is once again seen to have signed without giving a date as the reporting officer and the review by Dayal has been dated April 12, 1996. It was again papered over on July 19, 1996 on the grounds that a retired Health Secretary could not be the competent reviewing officer. Apparently the ACRs for these two years were prepared on or around April 12, 1996 although Dayal retired from the Indian Administrative Service (IAS) on January 31, 1996. Despite this, he signed on the ACRs as reviewing officer.

That the ACR for the year 1994-95 was reported by Mukherjee only after March 20, 1996 is evident from a noting he made on a letter from the Joint Secretary, Ministry of Health, on the same date. The Joint Secretary's letter requests Mukherjee to "send the above ACRs duly reported, preferably within the next two or three days". The ACRs mentioned are those of Agarwal, Bihari and Dr.J.L. Srivastava, all Central Government Health Service officers. Mukherjee's handwritten note says that none of the ACRs was with the D-G's office. Hence it is contended that the ACR for 1994-95 was written only after March 20, 1996 and not in 1995. The second part of the ACR for the period between September 12 and March 31, 1996 was again written undated by Mukherjee and was not reviewed because the Health Secretary's post was vacant at that time.

It is alleged that a number of rules have been bent to appoint Agarwal to the post when there were two other contenders - Bihari, who was the ADGHS in 1994-95, and Srivastava, who was the Head of the Department of Burns and Plastic Surgery at Safdarjung Hospital, Delhi. It is alleged that while the competence of these officers could have been tested, more than one person in the Health Ministry went out of the way to ensure that Agarwal became the DGHS.

Although Frontline made repeated attempts to contact Agarwal, he was unavailable for comment.

The Centre for Public Litigation has brought these points to the attention of the Cabinet Secretary and the Central Vigilance Commissioner (CVC). The centre, in a letter dated March 5, requested the CVC to take action against the officials concerned for criminal misconduct under the Prevention of Corruption Act (PCA). Section 13 (1) DII of the PCA defines criminal misconduct as an act of a public servant who "by abusing his position as a public servant obtains for himself or for other persons any valuable thing or pecuniary advantage." The Centre for Public Litigation has contended that the officials abused their positions as public servants by forging the confidential reports of Agarwal in order to get him promoted and appointed DGHS. The letter has warned of legal proceedings unless the investigating agency takes up the issue immediately.