“A democratic government should not be too sensitive to helpful criticism as it always exercised a healthy influence on it. The aim of the government publicity organisations should therefore be to stimulate public interest to invite constructive criticism so that the government machinery (is) profited by it”.
–Sardar Vallabhbhai Patel in the first issue of the Information Magazine
brought out by the Madhya Pradesh government.
The story of consultants
There had been many enigmatic episodes in the ESI Corporation during the period from 2007 onwards when the idea of medical colleges was conceived all of a sudden and executed with extraordinary alacrity causing surprise as well as disbelief. A few such episodes have, already, been dealt with in certain ‘Posts’ in this website. The episode of appointment of a person from outside as Consultant for setting up the Medical Colleges with the functional designation as Advisor (Medical Education) is discussed now.
Readers are aware that the ESIC authorities took steps to set up so many medical colleges, sanctioned large projects for construction of the buildings for those proposed-medical-colleges and incurred huge expenditure for doing spade work to commission those medical colleges even before the ESI Act authorised them to do so. So many consultants were appointed. Some of them started criss-crossing the country allegedly for their work and availing themselves of extravagant facilities. In sharp contrast, another set of consultants did not move out of Delhi even to see the buildings for which they were going to prepare remodel projects, in spite of the fact that the outlay for their projects was running into crores and crores of rupees. All, before any amendment.
Those events gave rise to genuine doubts in the minds of the public. The way the amendments were sneaked through, later, to convert the Bill into an Act during the years 2009 and 2010 compounded the mystery. The method in which the Validation Clause was inserted in the amended Act came a shocker.
RTI Act, stonewalled
One person, therefore, wanted to get at the real picture of the case as he did not want to entertain any notions on hearsay. He wanted to know what activities were got regularized through that Validation Clause. He, therefore, resorted to the provisions of the RTI Act.
He made only three requests to the CPIO of the ESIC, as per his application dated 23.10.2010, in respect of the appointment of a consultant meant for assisting the ESI Corporation in setting up the medical colleges. The information requested for was very simple and straightforward without any scope for ambiguity:
- He wanted to know the exact provision of the ESI Act under which Dr. M. Shamsudeen has been appointed as consultant for setting up of medical colleges.
- If there was no provision for appointing him as consultant at the time of his appointment, he wanted that he might be supplied with the information regarding the provision of the ESI Act, 1948 under which such appointment was regularized afterwards.
- He also requested for the copies of the orders of such regularization with retrospective effect.
A reply was, indeed, given by the Deputy Medical Commissioner, ESI Corporation vide his Note No. L-11/12/3/RTI/2009 – ME Cell dated 01.12.10 which was forwarded by the CPIO. (If readers click on the image they can get full size picture of the communication.)
|Flourishing ESIC thanks Mr. R. Krishnaswamy for having made available the documents. His commitment to the ESIC and efforts are appreciated and placed on record.|
Talking a lot without saying anything
You can see, very clearly, that the reply is typically diplomatic. It talks a lot without saying anything. It is a ‘reply’ without ‘information’.
- There is no information about the relevant provision in the ESI Act or ESI (Central) Rules or any of the ESI Recruitment Regulations or FR&SR under which the appointment had been made.
- There is no information whether this appointment was got regularized as per the Validation Clause.
Last week, we had, in the ‘Next Post’ page, said, “Answering a question without making the questioner any wiser is the art perfected by the bureaucracy. This method adopted for answering people’s representatives while answering the Parliament questions is adopted, now, with even more sophistication while answering the people themselves under the RTI Act. An interesting example is in store for the readers”.
We hope, the reads would agree that they were not disappointed. The reply given by the Medical Division talks of many other things except giving the precise Section of the Act under which the appointment was made first or regularized later. The Authority had made a strenuous attempt to explain something. His reply makes it very clear that a majestic organisation has been reduced to the stage of making special efforts to invent some explanation for its actions instead of giving plain and simple answers.
The reply says that the Chairman of the ESI Corporation, i.e., the Hon’ble Minister for Labour & Employment, had, in the 139th meeting of the ESI Corporation, “directed the Director General to initiate action for opening of Medical College and training schools for para medical staff and post graduate teaching facilities in ESIC governed hospitals to meet the shortage of staff and doctors in these hospitals”.
There is no information, in the reply, even about the date on which the 139th meeting of the ESI Corporation took place.
The reply goes further saying, “It was felt that for going ahead with setting up of Medical Educational Institutions some technical help / consultancy will be necessary”.
“Therefore, Dr. M. Shamsudeen, Managing Director, Medisys Project Consultant Pvt. Ltd, 202, Saba Apartment, D-3, Sector-44, Noida – 201303, who has been in this line of work was appointed as Advisor (Medical Education) by Competent Authority on fixed honorarium for period of six months extended subsequently from time to time”.
Chronology of events
A search of the website showed that the 139th meeting of the ESI Corporation was, actually, conducted on 17.07.2007. A chronology of relevant events would, therefore, be of some help to understand the issues under discussion.
|17/7/2007||ESI Corporation decided that a Sub-Committee of the Corporation be constituted to review the existing provisions of the ESI Act and suggest amendments keeping in view the changed economic scenario.|
|22/2/2008||ESI Corporation approved the report of the Sub-Committee|
|16/10/2008||Cabinet directed the matter to be considered by the Committee of Secretaries.|
|6/1/2009||Meeting of the Committee of Secretaries was held under the chairmanship of the Cabinet Secretary.|
|7/8/2009||The `The Employees’ State Insurance (Amendment) Bill, 2009’ was introduced in Lok Sabha on 7th August, 2009|
|3/5/2010||The Bill was passed by Parliament without any discussion when the issue of Mr.Sibu Soren was engaging the attention.|
As one could see, 17.07.2007 was far far away from 03.05.2010 when the ESIC got a formal authority, by law, to set up medical colleges.
A direction without Law
Can there be a legally valid direction on 17.07.2007, then, by the Chairman of the ESI Corporation to the Director General to “initiate action” for opening of Medical College and training schools for para medical staff and post graduate teaching facilities in ESIC governed hospitals?
And that too when the Corporation had directed, on that day, just to set up a Sub-Committee to review the existing provisions of the Act and suggest amendments?
How was the appointment of Dr. M. Shamsudeen as Consultant for setting up medical college made at that early stage itself and an eight-figure remuneration paid to that consultant in addition to the huge expenditure for the cosy arrangements during his tour and to the expenses for his other paraphernalia?
The reply from the ESIC makes two things very clear:
- There had been no provision at all in the ESI Act to make such appointment.
- The appointment remains without being regularized till date and that is why the ESIC is not forthcoming with reply whether the appointment of Consultant got regularized by the Validation Clause with retrospective effect. Because, no such regularization is possible without framing the relevant Rules as promised by the Cabinet Secretary to the Committee of Secretaries on 06.01.2009.
Closer link with other ESIC contractors
Dr.M.Shamsudeen who was appointed as Advisor (Medical Education) was not only the Managing Director of M/s Medisys Project Consultants Pvt. Ltd but also close associate of M/s Mukesh & Associates, M/s Design Associates, M/s Skyline Architectural Consultants and others who have undertaken the work of construction of many buildings to the ESI Corporation during the period from 2007-08 onwards.
Readers may visit the following two sites please to know how many contractors of the ESIC joined together and to know more about M/s Medisys Project Consultants Pvt. Ltd and M/s Mukesh & Associates and others:
They remain unauthorized till date
Bureaucracy has to act as per law enacted by legislature. It can never bypass the written law on its own, to do whatever it wants, even when it feels that the existing provisions are inconvenient or insufficient.
If something new has to be done, the bureaucracy can approach the legislature to get the law enacted for that purpose. Or, it can get the law amended too.
But, law must be enacted before action is taken. The system of issuing ordinance is intended only to adhere to this essential formality. The need for invoking the Validation clause arises only in the cases of ordinances followed by formal clearance of Bill through the Parliament. Such validation is not for ratification of everything done without the authority of any law.
But, in the case of ESIC, so much expenditure was incurred and so many actions taken much before the ESI Act gave formal authority to set up medical colleges. Law did not precede but was made to follow action, in the matter of ESIC medical colleges.
In the absence of any ordinance to set up medical colleges, such pre-amendment activities were really surprising. In the absence of any Rules in spite of the promise of the Cabinet Secretary on 06.01.2009 to the COS, these appointments of consultants and the resultant expenditure incurred (after June 2010 also) remain unauthorized till date.
What about vexatious replies?
The Prime Minister is observing very often the need for having a relook at the provisions of the RTI Act, as it affects the work of the government and the people tend to misuse the provisions and ask vexatious questions in personal, private and third party matters. It would be better if he pays attention to the manner in which bureaucracy provides vexatious replies when the information to be provided is found by it to be inconvenient to it. That will help avoid the need for going for appeals to the FAA and the CIC and burdening the entire system, thereby. A cursory look at the orders issued by the Central Information Commission would show that it is the bureaucracy which is at fault in 99% of the cases.
Globalise all civil rights!
Unless the RTI Act is fortified, the existing laws will grind the poor while the rich men would rule the law, as said by Goldsmith in The Traveller. In the era of globalization admired and advocated so much by the Prime Minister, western standards are required for India more in the matter of Civil Rights, and that too on priority basis, than in the matters of commerce and trade.
Readers are welcome to add enlightening inputs!