This petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir has been filed by one Dr. Inder Parkash Gupta, Selection A grade specialist, Chest Disease Hospital, Jammu for a writ to quash a recommendation dated 12.6.2006 made by the Selection Committee regarding appointment of Director General in the Department of Health Family Welfare and RCH National Rural Health Mission. 2. The Union Government has launched Nation Rural Health Mission (NRHM) in April 2005 in the country with a special focus in 18 states including the state of Jammu & Kashmir. The respondents have in this behalf given the background of the Mission as under: It has been decided to raise investment in Health Sector from current 0.9% of GDI to 2.3. over next 5 years. The mission seeks to improve health infrastructure at community, Sub Health Center, BHC/CHC level. It seeks to effect a shift to District based planning for health and also to integrate the health plan with determinants of health i.e. safe drinking water, sanitation an hygiene. In addition NRHM aims to provide overarching horizontal umbrella to the existing vertical health schemes relating to Health, Family Welfare, RCH, Malaira, Blindness Control, Iodine deficiency disorder, Filarial, Kalazar, TB and Leprosy. The Mission also seeks convergence among the related social sector programs of AYUSH, Women and Child Development, Elementary (Awareness) Education by involving Panchayati Raj Institutions, MNGOs NGOs and other stake-holders at National, State, District and Block Level. The mission even embodies the health care/awareness role for ASHA ( Accredited Social Health Activists) at village/grass root level for mobilizing the opinion about importance of Health care among villagers/self-help groups through personal contacts, discussions, consultations and dissemination of information. The said mission, has time bound goals, which are expected to be achieved including unmet needs for public health infrastructure. It has also envisaged for promotion of health life styles, prevention and control of communicable and non-communicable diseases. Local endemic diseases will be taken care with access integrated comprehensive primary health care for the people living in rural areas. There will be revitalization of local health care mainstreaming of AYUSH. It has also envisaged for promotion of health life styles, prevention and control of communicable and non-communicable diseases. Local endemic diseases will be taken care with access integrated comprehensive primary health care for the people living in rural areas. There will be revitalization of local health care mainstreaming of AYUSH. The strategy is to improve health care household level to female health activists, the existing Primary Health centers and Community Health Centers shall be strengthened and to 50 beds for improving curative care of a normative standard to Indian Public Health Standards defining personnel equipment and management standards. The State Government as per the guidelines of Government of India has taken the following action for implementation of the National Rural Health Mission. (I) IDENTIFIED 2 CHCS PER DISTRICT AND ARE TAKING UP THE ISSUES FOR STRENGTHENING THE SAME AS PER INDIAN PUBLIC HEALTH STANDARDS SHORTLY. (II) CONSTITUTED STATE RURAL HEALTH MISSION, STATE RURAL HEALTH SOCIETY, STATE AS PROGRAMME MANAGEMENT SUPPORT UNIT, DISTRICT RURAL HEALTH MISSION AND DISTRICT RURAL HEALTH SOCIETY. (III) DISSOLVED ALL EXISTING HEALTH SOCIETIES AT THE STATE AND DISTRICT LEVEL AND MERGED INTO THE J&K STATE RURAL HEALTH MISSION AND DISTRICT RURAL HEALTH MISSION RESPECTIVELY. (IV) CHIEF MEDICAL OFFICER OF THE RESPECTIVE DISTRICT HAS BEEN NAMED AS HEALTH AND FAMILY WELFARE OFFICER AND WILL BE THE NODAL OFFICER FOR IMPLEMENTATION OF RURAL HEALTH MISSION IN THE DISTRICT AS PER THE GUIDELINES OF GOVERNMENT OF INDIA. It has been seen that vertically health and Family Welfare Programmes and activities have limited synerzation at operation level. The result at the ground level show that this has not been effective in implementation of various programmes of health and FW. Taking into account the operational aspects and verticalization/compartmentalisation the Ministry of Health has merged the departments of health and FW and also asked the State to merge the departments. It has been observed that the State of J&K has not availed number of Centrally Sponsored Projects due to the fact that the matter were not pursued with the Ministry and other funding organizations especially for infrastructure development and externally Aided projects. 3. It has been observed that the State of J&K has not availed number of Centrally Sponsored Projects due to the fact that the matter were not pursued with the Ministry and other funding organizations especially for infrastructure development and externally Aided projects. 3. Respondents state that for overall coordination integrated approach the National Rural Health Mission envisages that there will be a single point for this programme directly working under the Principal Secretary Health and Medical Education Department, so it has been felt necessary to have a post of Director, General Health who shall also work as a Mission Director. A proposal to this effect was therefore sent to the Finance Department for up gradation of the existing post of Director Family Welfare in the pay scale of Rs. 142300-18300 to that of Director General, Health and Family Welfare in the pay scale of Rs. 18400-22400. It has been decided that the funds for this will be made available 100% by the Ministry of Health and Family Welfare, Government of India and there shall be no financial burden on the State. The Government has also decided that the senior most Director will be posted as the Director General and staff for the office of the Director General will be arranged by internal arrangement from the two divisions and on contractual appointments. 4. The Finance Department vide UO No. A/251/(02)1-1325 dated 6.1.2006 has conveyed its agreement to the proposal for up gradation of the post of Director Health and Family Welfare from pay scale of 14300-18300 to the pay scale of 18400-500-22400 to be designated as Director General Health, FW, RCH and National Rural Health Mission. This has been issued with the approval of the Chief Minister. The Project Director (RCH) is to be integrated with NRGM and the Director General shall be responsible for maintaining liaison with the ministry of Health and other ministries and implementation of other centrally sponsored schemes and ensuring medical care services at State level besides monitoring and supervision of all projects under plan, externally aided projects, manpower development, trainings, ambulatory services and accountability at all levels for better patient care. 5. The Petitioner states that he is the senior most Selection A grade Specialist in the Health Department and is presently working in the Chest Disease Hospital, Jammu. 5. The Petitioner states that he is the senior most Selection A grade Specialist in the Health Department and is presently working in the Chest Disease Hospital, Jammu. Under Medical (Gazetted) Service Recruitment Rules, 1970, the petitioner is the only officer who is eligible for the post of Director General, Health Services. The petitioners grievance is that the respondents constituted a selection committee headed by the Chief Secretary for making selection for the post of Director General and that the Committee has vide its recommendations dated 12.6.2006 recommended the name of one Dr. Muzaffer Ahmad for appointment to the post while as said Muzaffar Ahmad is not borne on the cadre of the Health Department. The petitioner further alleged that there are vigilance cases against Dr. Muzaffar, but the selection committee has not only exonerated Dr. Muzaffar Ahmad from various vigilance cases but rewarded him by recommending his appointment as Director General. The petitioner states that he being a Selection Grade Specialist was eligible for the post but he has not been duly considered and recommended. The recommendation made by the selection committee is, according to the petitioner, arbitrary and contrary to law. The petitioner has prayed for an appropriate writ to quash the recommendation made on 12.6.2006 by the Selection Committee. He has also prayed that the respondent No. 1 be directed to consider the officers borne on the cadre of the Health Department for the said post. 6. In the year 2006, the petitioner had filled a writ petition being SWP No. 436 of 2006, which came to be decided by this Court on 19th May, 2006. The Court directed the respondents to consider the petitioner for promotion to the post of Director General along with other eligible candidates. 7. Respondents have in reply to the present petition given the background of the creation of the post of Director General and Family Welfare in the pay scale of Rs. 18400-22400. They state that the post of Director General has been created and a committee was appointed to make selection of the candidate for the post. They have stated that as per the decision of the Government the post of Director General Health, Family Welfare, RCH and Rural Health Mission is to be filled up by considering the cases of senior most Directors of Health Services as per their seniority. They have stated that as per the decision of the Government the post of Director General Health, Family Welfare, RCH and Rural Health Mission is to be filled up by considering the cases of senior most Directors of Health Services as per their seniority. According to the respondent A Grade Physician Specialist is not a feeding category for promotion against the said post, therefore, the question of petitioners claim for such promotion does not arise. It is stated that the post of Director is the selection post which requires inter alia 7 years administrative experience of a person in the feeding cadre i.e. Dy. Director/A-Grade Specialist. The objective sought to be achieved is intelligible as the administrative experience is a sine-qua non for entrustment of such responsibilities. The post of HOD in all organizations is a selection post with requisite administrative experience. Going by this ratio, the petitioner who is an A-Grade Specialist lacks 7 years requisite administrative experience for the post of major Head of Department (Director Health Services) as such he is not eligible for the post of Director Health Service as per the recruitment rules. According to the respondents when the petitioner is not eligible for the post of Director, Flealth Service how could he be considered for the post of Director General. 8. During the pendency of this petition certain clarifications/additional information was obtained from the the respondents which has been submitted vide supplementary affidavit filed on 17.2.2007. The respondents state that Dr. Muzaffar Ahmed the then Medical Superintendent in Medical Education Department was adjusted/appointed in Health Department as Director Health Service Kashmir vide Government Order No. 2-HME of 1998 dated 1.1.1998. Since then he is continuing as Director Health Services Kashmir. The post of Medical Superintendent in Medical Education Department stands filled up by another substitute. The respondents have further stated that the post of Medical Superintendent in Medical Education Department was equivalent to the post of Director Health Services and Dr. Muzaffar Ahmed was already working in that scale i.e. 14300-18300 equivalent to the scale of Director Health Services Kashmir. They have further stated that Dr. Muzaffar Ahmed was appointed as Director Health Services in the year 1998 and he impliedly acquired his lien in Health Department in terms of Art. 37-C and D of the Jammu & Kashmir Civil Services Regulations. 9. Heard. I have considered the matter. 10. They have further stated that Dr. Muzaffar Ahmed was appointed as Director Health Services in the year 1998 and he impliedly acquired his lien in Health Department in terms of Art. 37-C and D of the Jammu & Kashmir Civil Services Regulations. 9. Heard. I have considered the matter. 10. Learned Counsel for the petitioner submits that the recommendations made by the selection committee regarding the selection of Dr. Muzaffar Ahmad are not in accordance with the rules as Dr. Muzaffar Ahmad does not belong to the State Health Service but belongs to the Medical Education Service. The post of the Director General is borne on the cadre of the Health Service as such a member of the Medical Education Service is not eligible for the post at all. He would submit that the petitioner has been excluded from consideration on the ground that A Grade Specialists is not eligible for the post of Director General but the exclusion of the petitioner is illegal as there are no rules which provide for mode of recruitment to the said post and in the absence of any rule or criteria formulated by the Government for prescribing the eligibility, the selection committee could not have legally excluded the petitioner from consideration zone particularly when the post created was in the Health Department. 11. Per contra, learned Advocate General has vehemently opposed the present petition and has objected to the very right of the petitioner to file the present petition. He submits that the Government has, as a matter of policy, decided to consider only the Director, Health Services for the post of Director General , the petitioner being only a A Grade Specialists was not eligible for the post at all. The committee has on due consideration of the matter found Dr. Muzaffar Ahmad, Director Health Services, Kashmir eligible and suitable for the post as such has rightly recommended his name for the post. The petitioner did not object at the time Dr. Muzaffar was posted as the Director Health Services as such he is estopped from challenging the recommendations of the committee now particularly when the petitioner is the junior most member of the service who has got promotion from time to time, on the basis of court directions. 12. The post of Director General Health Services is borne on the Jammu & Kashmir Health and Family Welfare (Gazetted) Service. 12. The post of Director General Health Services is borne on the Jammu & Kashmir Health and Family Welfare (Gazetted) Service. Earlier the service was known as Kashmir Medical Gazetted Service and was governed by the J&K Medical Gazetted Service Recruitment Rules, 1970. The said rules have now been repealed and new recruitment rules framed vide SRO 260 of 2006 dated 14.8.06. Neither the 1970 rules nor the 2006 rules carry the post of Director General perhaps due to the fact that the post was not in existence at the time 1970 rules came into force and was in the process of creation when the 2006 rules were being framed. However, there is no dispute on the fact that the post is borne on the cadre of the said service so the post is to be filled up from the persons borne on the cadre only. It is clue to this fact that the Government has decided to fill up the post `by considering the cases of senior most Directors of Health Services as per their seniority. 13. Under 1970 rules method of recruitment to the post of Director Health Services was as under:-- Class Category Designation of the post Grade Minimum qualification Method of recruitment 1 2 3 4 5 6 1 ... Director Health Services 1200-1800 (i) Possession of recognized medical qualifications included in the First or Second Schedule or Part II of the Third Schedule (other than Licentiate qualifications) to the Indian Medical Councils Act,1956. Holders of educational qualifications included in Part II of the Third Schedule should fulfill the conditions stipulated in Sub-section (3) of section13 of the Indian Medical Council Act,1956;and                                                                                   (ii)Possession of post-graduate degree qualification in any subject mentioned in Part A of the Annexure to this Schedule with seven years administrative  experience., OR Possession of post-graduate diploma qualification in any subject mentioned in Part B of the Annexure to this Schedule with ten years administrative experience., By selection from Class II Selection Category and from III Category(a). Similarly under 2006 rules the qualification and method of recruitment is as under:-- Qualification and Method of Recruitments-(1)-No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he/she possesses the qualifications as laid down in the Schedule-II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force." (2) First appointments to a service or class may be made:-- (a) by promotion or by transfer from another service or class; or (b) by direct recruitment; or (c) partly by (a) and partly by (b) in the ratio and in the manner mentioned against each posts in Schedule-II (i) Provided that all the posts under direct recruitment shall be filled through J&K Public Service Commission as per the rules/orders of the Government issued for the purpose (ii) Provided further all posts to be filled by promotion/transfer shall be filled through departmental promotion, Committee/Jammu and Kashmir Public Service Commission, unless any post/category of posts is exempted from the purview of the Public Service Commission in terms of J&K Public Service Commission (Limitation Functions) Regulations, 1957 by the Government by specific order. (iii) The departments shall refer vacancies in the direct/promotion quota to Public Service Commission and Departmental Promotion Committees, as per SRO 166 dated 14.6.2005 14. Under the Rules the method of recruitment for the post of Director Health Services is as under: Class Category Designation of the post Grade Minimum Qualification Method of recruitment I II III IV V VI Director Health Services/Family Welfare 14300-18300 MBBS or possession of recognized Graduate Medical qualification included in the first or second schedule or Part-II of the 3rd Schedule (other than licentiate qualification) to the Indian Medical Council Act, 1965. Holders of educational qualification included in Part-II of the 3rd Schedule should fulfill the conditions stipulated in the sub-section (3) of Section (13) of the Indian Medical Council Act Possession of a post graduate degree in any subject mentioned in Part "A" of the annexure to this schedule with seven (07) years administrative experience., By Selection from Class II Category "A" 7 "B" 15. Under both the rules only the persons borne on the cadre of Medical Gazetted Services can man the post of Director, Health Services. Under both the rules only the persons borne on the cadre of Medical Gazetted Services can man the post of Director, Health Services. Since the Government has decided to fill up the post of Director General by considering the cases of senior most Directors, it would mean a Director duly appointed under the Medical Gazetted Service Rules ( now under the Health and Family Welfare Gazetted Service Rules) could only be considered for the post of Director General. 16. The Government constituted a committee under the chairmanship of the Chief Secretary for the selection of the Director General. The committee has considered the matter and submitted its report as under:-- "The Committee was informed that the Health and Medical Education Department has created a post of Director General Health, Family Welfare, RCG and National Rural Health Mission in the Pay scale of Rs. 18,400-22,400 for overall coordination and adoption of integrated approach to various schemes of the Health Department. There is no prescribed mode of recruitment to the post and the department proposes to fill up the post from amongst the senior most suitable officers/Directors. The Health Department accordingly placed the cases of the following officers before the Committee:-- (i) Dr. Muzaffar Ahmed, Director, Health Services, Kashmir. (ii) Dr. Jasbir Singh, Director, Family Welfare J&K presently holding the charge of Director, Health Services, Jammu in addition to his own duties since February 2005. (iii) Dr. R. K. Khajuria, Director RCH Further, the Honble High Court of Jammu and Kashmir has in a writ petition filed by Dr. I.P. Gupta, A. Grade Specialist vide its order dated 19.5.2006 directed as under:-- "In view of the submission made by the learned counsel or the parties, the petition is admitted to hearing and is accordingly disposed of with a direction to the respondents to consider the petitioner for appointment to the post of Director General Health Services, along with other eligible candidates, subject to his eligibility under the relevant statutory recruitment rules governing the said post....." The Committee was informed that A-Grade Specialists are eligible for being considered for promotion to the Director level posts and not to the post of Director General, Further the officer does not have much administrative experience. After considering his case the committee felt that Dr. I.P. Gupta besides being not eligible for the post of Director General would not be a suitable choice for the post. After considering his case the committee felt that Dr. I.P. Gupta besides being not eligible for the post of Director General would not be a suitable choice for the post. The Committee was informed that the vigilance organization had recommended sanction to the prosecution of various members of the purchase Committee including Dr. Muzattar Ahmad who was the Chairman of the committee for allegedly purchasing drugs at exorbitant rates and for purchasing Sub-standard medicines. The case was examined in the General Administration Department and it was felt that there was no conclusive evidence to prove criminal intentions or conspiracy on the part of the purchase Committee to by sub-standard medicines at higher rates. The Health and Medical Education Department has been requested to constitute a Committee of two principals of the Medical Colleges or two senior Doctors not below the rank of Professors to examine the report of the Vigilance Organization and peruse the departmental records and suggest what measures should the Government take to streamline the purchase policy for buying drugs and medicines in the Health Department and to Pin point wrongs if any committed by the committee. The principal secretary, Health and Medical Education Department informed the Committee that she has examined the report and the follow up action has been initiated. She however stated that Dr. Muzaffar is a dynamic and outstanding officer his integrity cannot be doubted. The Committee assessed the service record of the three directors and on the basis of overall merit as reflected in their APRs recommended appointment of the senior most Director, Dr. Muzaffar Ahmed, Director Health Services, Kashmir as Director General Health, Family Welfare, RCH and National Rural Health Mission in the pay scale of Rs. 18,400-22400. 17. The report of the committee would show that the Committee has considered the cases of Dr. Muzaffar Ahmed presently holding the post of Director Health Services; Kashmir, Dr. Jasbir Singh, Director Family Welfare J&K presently holding the charge of Director Health Services Jammu in addition to his own duties and Dr.R.K. Khujuria, Director RCH. The committee has assessed the service record of all the three doctors and on the basis of over all merit as reflected in the APRs has recommended the name of senior most Director Dr. Muzaffar, Director Health Service Kashmir for the post Director General Health Family Welfare RCH and National Rural Health Mission in the pay scale of Rs. The committee has assessed the service record of all the three doctors and on the basis of over all merit as reflected in the APRs has recommended the name of senior most Director Dr. Muzaffar, Director Health Service Kashmir for the post Director General Health Family Welfare RCH and National Rural Health Mission in the pay scale of Rs. 18400-22400. The record which was made available by the State shows that the Government has now acted on the report of the committee and has prepared a draft resolution which is likely to be submitted to the Cabinet for approval. The draft resolution is as under:-- "Sanction is hereby accorded to the appointment Dr. Muzaffar Ahmad, Director, Health Services, Kashmir as Director General, Health, Family Welfare, RCH and National Rural Health Mission in the pay scale of Rs. 18400-22400 for the overall coordinated and effective control, monitoring and supervision of Health & Family Welfare Sector. 18. Thus from the report of the Committee as well as from the draft resolution it appears that the Government intends to appoint Dr. Muzaffar Ahmed Director Health Services Kashmir on the post. 19. Petitioners grievance as noticed above is that said Dr. Muzaffar Ahmad is not borne on the cadre of Jammu & Kashmir Medical Gazetted Service but is a member of Medical Education Gazetted Service as such he is not eligible for the post. 20. In the State of Jammu & Kashmir, Health Service consists of two different sets of services. One service is called J&K Medical Gazetted Service (also known as Health Service) and is governed by the J&K Medical (Gazetted) Service Recruitment Rules, 1970 (the rules have now been substituted by the Jammu and Kashmir Health & Family Welfare Gazetted Service Recruitment Rules, 2006 vide SRO 260 of 2006 Dated 14th August, 2006) and the other service is called J&K Medical Education Gazetted Service and is governed by the J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. Both the services are separate services and the officers borne on the two cadres belong to two different services. Admittedly Dr. Muzaffar Ahmed was basically appointed in the Medical Education Gazetted Service. There is no dispute over this fact. The petitioner states that he still belongs to the service but the respondents assert that he has become a member of Health Service now as he was appointed Director Health Service Kashmir vide Order No. 2. Admittedly Dr. Muzaffar Ahmed was basically appointed in the Medical Education Gazetted Service. There is no dispute over this fact. The petitioner states that he still belongs to the service but the respondents assert that he has become a member of Health Service now as he was appointed Director Health Service Kashmir vide Order No. 2. HME of 1998 dated 1.1.1998 and has impliedly acquired his lien in the Health Department. Order No. 2-HME of 1998 dated 1.1.1998 is on file which reads as under:-- "... It is hereby ordered that Dr. Muzaffar Ahmed Medical Superintendent Chitranjan Mobile Hospital Srinagar shall take over a Director Health Services, Kashmir from Dr. Mohammad Yousuf Bhat-I with immediate effect. Dr. Mohammad Yousuf Bhat-I is transferred to Medical Education Department and posted as Medical Superintendent, Chitranjan Mobile Hospital, Srinagar." 21. From this order it appears that Dr, Muzaffar Ahmad has only been asked to take over as Director Health Service Kashmir with immediate effect. It no where shows that he has been permanently posted on the post and absorbed in the State Health Services. Thus the fact that he has been permanently adjusted in the services vide the said order and his lien stands absorbed in the said service does not appear to be factually correct. 22. The petitioner has placed on file copy of the Government Order No. 749-HME of 2002 dated 17.7.2002 which shows that Dr. Muzaffar Ahmad was a member of the Medical Education Gazetted service even in the year 2002. Vide the said order the Government has up dated the seniority list of Medical Superintendents, Dy. Medical Superintendents of J&K Medical Education Gazetted Service vide Annexure-A to the said Government order. The said annexure shows the name of Dr. Muzaffar Ahmed at Serial No. 1 besides the names of other members of the service. It reads as under:-- GOVERNMENT OF JAMMU & KASHMIR HEALTH & MEDICAL EDUCATION DEPARTMENT Sub:-- Seniority list of Medical Superintendents/Deputy Medical Superintendents of Medical Education Department. Government Order No. 749-HME of 2002 Dated 17.7.2002 Whereas, the seniority list of Medical Superintendents and Dy. Medical Superintendents of Medical Education (Gazetted) Service were issued vide Government Order No. 163-HME of 1997 dated 20.2.1997. Whereas, consequent upon some change in. the service, it has become necessary to issue an updated senioritylist; Now therefore, an updated seniority list of medical Superintendents and Dy. Medical Superintendents of Medical Education (Gazetted) Service were issued vide Government Order No. 163-HME of 1997 dated 20.2.1997. Whereas, consequent upon some change in. the service, it has become necessary to issue an updated senioritylist; Now therefore, an updated seniority list of medical Superintendents and Dy. Medical Superintendents of J&K Medical Education ( Gazetted) Service forming Annexure A&B respectively are issued. By Order of the Government of Jammu & Kashmir. Annexure-A to Government Order No. 749-MME of 2002 dated 17.7.2002 S. No. Name of the doctor D.O.B. Date of regular appointment as Medical Superintendent Remarks 1 2 3 4 5 1. Dr. Muzaffar Ahmed 2.12.50 10.12.85 The doctor has been adjusted as Director Health Services Kashmir 2. Dr. Jasbir Singh 1.10.52 12.1.95 The Doctor has been adjusted as Director Health Services Jammu 3. Dr. Rakesh Khajuria 9.01.55 5.4.96 The Doctor is presently posted as Medical Superintendent in SMGS Hospital, Jammu. 4. Dr. Mohd. Amin Wani 14.3.53 5.4.96 The Doctor has been adjusted as Project Director, AIDS. 23. The petitioner has also placed on file a copy of the communication of Commissioner-cum-Secretary to Govt. of Health & Medical Education Department which shows that the Government has stated in the State Assembly that both Dr. Muzaffar and Dr. Jasbir Singh belong to the Medical Education Services and have been transferred and posted as Director Health Service Kashmir & Jammu in the year 1998 and 2000 respectively and that the appointment has not been made according to the recruitment rules. The Government has further stated, on the floor of the House, that since the eligible officers are now available these posts will be filled in accordance with the rules. The relevant portion of the communication is as under:-- "The General Administrative Department have previously advised all Administrative Department to adhere orders of the Honble Supreme Court passed in the case of Suraj Prakash vs. State and others. The relevant extract regarding posting/appointments of officers in relaxation of rules is reproduced as under-- "The State of Jammu & Kashmir will ensure that no relaxation of basic recruitment rules is made to direct recruitment through PSC or for purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by Government and implemented in accordance with the rules and in accordance with law without unreasonable delay. Thus posting of Dr. The recommendations of the Committee referred to above may be considered by Government and implemented in accordance with the rules and in accordance with law without unreasonable delay. Thus posting of Dr. Jasbir Singh as Director Health Services Jammu was not only contradictory to the recruitment rules Government but also in violation of the above Honble Supreme Court Judgment. It is also pertinent to mention here that during the last session of the State Legislature Shri Usman Abdul Majid, Honble MLA had tabled the started A. Q. No. 396 to which the reply was submitted by the Department as under:-- Question Reply a) Whether it is a fact that Recruitment/promotions are made in accordance with the recruitment rules. If not, the reasons for violating the rules. a) The postings, promotions and transfer of all the Gazetted officers working in Health Family Department J&K are being made by the Administrative Department in accordance with recruitment rules. b) Whether Director Health Service Kashmir and Director Health Services Jammu have been appointed with recruitment rules; and b) As per J&K Health (Gazetted Service Recruitment rules the posts of Director Health Services are filled up by selection from Dy. Director/ equivalent statues and from A-Grade Specialists. However, Dr. Muzaffar Ahmed and Dr. Jasbir Singh who belong to the Medical Education Services have been transferred and posted as Directors of Health Services Kashmir/ Jammu in 2.1.1998 and 20.12.2000 respectively. These have not been made according to recruitment rules. c) Whether it will appoint Director Health Services Kashmir Director Family Welfare and Director ISM in accordance with Recruitment rules. if so. when? c) Since the eligible officers are now available these posts will be filled in accordance with Recruitment Rules. Shri Usman Abdul Majid has vide Letter No. UAM/J/535-35 dated 27.1.2004 reminded the Department for fulfilling the assurance given to the house. Keeping in view the directions given in the judgment of Supreme Court in the case of Suraj Prakash v. State and others and the assurance given by the Department in the State Legislature the Department has started the process of posting the officers strictly in accordance with the recruitment rules. Dr. Jasbir Singh who is basically confirmed as Medical Supdt. in Medical Education Department and is not eligible for the post of Director Health Services has been transferred and posted as Director Family Welfare Jammu and Dr. Dr. Jasbir Singh who is basically confirmed as Medical Supdt. in Medical Education Department and is not eligible for the post of Director Health Services has been transferred and posted as Director Family Welfare Jammu and Dr. B. S. Dogra senior most A-Grade Specialist ( Selection Grade) who was eligible for the post of Director Health Services has been posted as I/C Director Health Services Jammu." 24. This communication and the statement of the Government in the House has not been denied by the respondents. 25. The petitioner has placed on record some other documents to show that even other doctors considered by the committee, are the members of Medical Education Service. 26. A copy of the affidavit of Dr. Jasbir Singh Deputy Medical Superintendent has been placed on file wherein the said doctor has stated that his services have been transferred from Health Department to the Medical Education Department in the cadre of Deputy Medical Superintendent and that he will not claim seniority on account of services already rendered by him in the Health Department. If the doctor has himself stated that he will not claim seniority in the Health Department then how the committee has considered his case for the Director General in the Health Department? 27. The said affidavit has been filed by Dr. Jasbir Singh under the Government Order No. 33-HME of 1990 dated 12.1.1990 a copy of which has been placed on file and which reads as under:-- Government of Jammu & Kashmir Health and Medical Education Department. Sub:-- Transfer of Services of Dr. Jasbir Singh Deputy Medical Superintendent, S.M.G.S. Hospital, Jammu Ref:-- GDC-166/CM/89 dated 5.1.1990 from General Administration Department. ... Govt. Order No. 33 HME of 1990 Dated 12-03-1990 Sanction in relaxation of rules is accorded to the transfer of services of Dr. Jasbir Singh presently functioning as Deputy Medical Superintendent, S.M.G.S. Hospital Jammu from Health Department to the Medical Education Department (Dy. Medical Supdt. cadre) provided he undertakes that he will not claim seniority etc. on account of services already rendered by him in the Health Department. His seniority in the category of Deputy Medical Superintendents in the Medical Education Department will be determined from the date of this order. By order of the Government of Jammu and Kashmir. Similarly Government Order No. 432-HME of 1991 dated 5.4.1991 which is on file, shows that the services of Dr. His seniority in the category of Deputy Medical Superintendents in the Medical Education Department will be determined from the date of this order. By order of the Government of Jammu and Kashmir. Similarly Government Order No. 432-HME of 1991 dated 5.4.1991 which is on file, shows that the services of Dr. Romesh Khajuria have been transferred from Health to Medical Education cadre. The order reads as under:-- Government of Jammu & Kashmir Health & Medical Education Department. Sub:-- Transfer of lien from Health Department to Medical Education Department. Ref:-- No. GDC-42/CM/91 dated 2.4.1991 from General Administrative Department. Govt. Order No. 432 HME of 1991 Dated: 05-04-1991 Sanction is relaxation of rules, is hereby accorded to the transfer of services of Dr. Rakesh Khajuria presently working as Deputy Medical Superintendent, Medical College Hospital Jammu from Health to Medical Education Cadre as Deputy/Medical Superintendent subject to the condition that he will figure last in the seniority list of existing Deputy Superintendents of the Medical Education Service. By order of the Government of Jammu and Kashmir. 28. From these orders as also from the stand taken by the Government on the floor of the Assembly it appears that neither Dr. Muzaffar Ahmad nor Dr. Jasbir Singh or Dr. R.K. Khujuria, who have been considered by the Selection Committee for the post of Director General are borne on the cadre of State Health Service. I find all these facts have not been considered by the committee at all. If the Committee was so keen to ascertain the eligibility of the petitioner for the post it should have also looked into the eligibility of other candidates. 29. What I have observed above is on the basis of the annexures placed on file. The State has not produced any order on the basis of which it could be said that Dr. Muzaffar Ahmad ( or the other two persons considered by the Committee) has ceased to become the members of the Medical Education `Service and has been permanently absorbed in the Medical Service. The record produced by the State also does not help us on the issue. Muzaffar Ahmad ( or the other two persons considered by the Committee) has ceased to become the members of the Medical Education `Service and has been permanently absorbed in the Medical Service. The record produced by the State also does not help us on the issue. In the circumstances I find the issue needs further examination on the basis of relevant service record of the said doctors, particularly when the statement of the Government on the floor of the Assembly containing altogether a different stand than what has been taken in the present case, has come on record. 30. In the facts of the case, I feel it just and proper that the matter be examined by the committee afresh. Till that is done the Government may not act upon the recommendation impugned in the present petition. The Committee shall consider the service record of the three persons considered by it and find out as to whether they are the members of the service or still belong to the Medical Education Service. While doing so the committee may give personal hearing to the petitioner as well as the three doctors considered by it earlier. The committee shall also peruse the record relating to the statement of the Government on the floor of the house, as reproduced above and see its effect on the present matter. 31. If on reconsideration of the matter the committee comes to the conclusion that Dr. Muzaffar Ahmed is a member of the Health Service as such eligible for the post, the Govt. may proceed with the recommendations of the committee but if it is found that the three persons considered earlier belong to the Medical Education Department, the recommendation made shall stand quashed and the committee shall in that case make a fresh recommendation after considering only the eligible members of the Health service, for the post. In view of the directions of this Court in SWP 436 of 2006 the petitioner be also considered for the post alongwith other eligible candidates. 32. Let the committee consider and take a final decisions on it within one month from the date a copy of this order is served on the Chief Secretary. 33. The petition is disposed of as indicated above.