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J&K High Court · body

2007 DIGILAW 50 (JK)

Mohd. Ashraf Bhat (Dr. ) v. State Of J. &K.

2007-04-18

HAKIM IMTIYAZ HUSSAIN

body2007
1. Petitioner Dr. Mohammad Ashraf Bhat S/o Abdul Aziz Bhat R/o Zaldagar, Srinagar has through the medium of present petition filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir questioned the legality of the appointment of Respondent No: 3 Dr. S. Jalal, as the Director, Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar. 2. Vide advertisement notice No. DIP/J-2486 dated 06.12.2004, respondent No. 1 invited applications from eligible candidates for the post of Director, Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar (for short the SKIMS). Besides other qualifications, the advertisement notice required that the candidate should be of 50 years age and must have extensive administrative experience of over 5 years in responsible capacity in the field of Hospital Administration or medical Education. 3. Petitioner alongwith other eligible candidates applied. A Selection Committee was constituted to select a suitable candidate for the post. The petitioner also appeared before the Committee but has not been selected instead Respondent No. 3 Dr. S. Jalal, Professor & Head, Department of Cardiology has been selected and appointed vide order No. 802-GAD of 2005 dated 11.07.2005. The petitioner is aggrieved of the same and has challenged the same on various grounds inter-alia that respondent No. 3 (Professor S. Jalal) was not possessing the requisite qualification as prescribed by the advertisement notice, that his appointment has not been made in accordance with the rules and that the appointment has not been approved by the Governing Body of the SKIMS. 4. The respondents have resisted the petition. It is stated in the detailed reply filed by he Chief Secretary of the State that selection and appointment of respondent No.3 has been made strictly in accordance with the rules, a selection committee comprising of high ranking officers of the State was constituted for the purpose to have interaction with the candidates who applied for the post and that the Committee found respondent No.3 as the most suitable candidate for the post. The selection committee has in accordance with the rules, made recommendations for the appointment of respondent No.3 and that the appointment has been ordered by the Chief Minister of the State who is also the Chairman of he Governing Body of the SKIMS. The selection committee has in accordance with the rules, made recommendations for the appointment of respondent No.3 and that the appointment has been ordered by the Chief Minister of the State who is also the Chairman of he Governing Body of the SKIMS. The respondents state that the qualification and experience of the petitioner visa-vis respondent No.3 has no comparison and that the respondent-appointee was given the benefit of age relaxation in view of his outstanding merit as was the provision in the policy. 5. Respondent No.3 has filed his separate objections wherein it is stated that the respondent was eligible for the post, that he had a very bright career at his back, that he possessed outstanding merit as such deserved relaxation of age in his favour. He further states that the relevant records bear testimony to the fact that the order of appointment has been issued by the competent authority on due observance/ completion of all the legal formalities required for the purpose. 6. Heard, I have considered the matter. I have gone through the selection record made available by Mr. A.M. Magray. 7. Mr. M.Y. Bhat, appearing for the petitioner submits that the selection and appointment of respondent No.3 on the post of director is not in accordance with the rules. He has raised four main grounds in this behalf, firstly that the petitioner was not eligible for the post as he was over age on the date of appointment; secondly that the appointment of the respondent has not been made or approved by the governing body of the Institute; thirdly that the respondent does not possess the requisite experience in the Hospital Administration as required by the Advertisement notice and fourthly that the selection committee has not made the selection in accordance with the rules and that the appointment of the respondent on the post has been made arbitrarily. 8. In order to appreciate the pleas raised by the petitioner, we may go through the record to see as to how the selection and appointment of respondent No.3 on the post has been made. The process started in the year 2003 when on 24.08.2003 a meeting was held under the chairmanship of the Chairman, Governing Body, SKIMS (Chief Minister of the State) to make appointment of the Director. The process started in the year 2003 when on 24.08.2003 a meeting was held under the chairmanship of the Chairman, Governing Body, SKIMS (Chief Minister of the State) to make appointment of the Director. Minister for health & Medical Education, Minister of State for Health and Medical Education, Chief Secretary, J&K State, and Secretary to Govt. Health and Medical Education Department participated in the meeting. It was, among other things decided that the post of Director SKIMS be advertised at National level giving full details regarding recruitments, period of appointment. After receiving a response to this advertisement a suitable candidates shall be recommended by a Committee consisting of the following: - 1. Chief Secretary Chairman 2. Financial Commissioner Finance Deptt. J&K State. Member 3. Principal Secretary Planning & Dev. Deptt. J&K State. Member 4. Principal Secretary General Administration Department. Member 5. Commr./Secretary, Health & Education Deptt. Member 6. An Eminent Medical Scientist of National importance to be nominated by the Chairman of the committee who shall act as an expert for the purpose of selection. Member 9. It was also decided that till such time a suitable candidate is selected for the post of Director SKIMS, Dr. S. Jalal Prof, and HOD Cardiology shall hold the charge of Director SKIMS relieving Dr. Mehraj-ud-Din who shall continue to work as Professor & HOD of Anesthesiology SKIMS. Consequent upon it vide Govt. Order No 923-HME of 2003 dated 25.8.2003 it was ordered that Dr. S. Jalal Prof. & HOD Cardiology shall hold charge of Director SKIMS Srinagar in addition to his own duties. 10. Subsequently, vide a Govt. Order No. 173-G AD of2004 dated 10.02.2004, it was ordered that: a. decisions taken by the Governing Body of the Sher-i-Kashmir Institute of Medical Sciences Soura and approved by the Chairman of the Governing Body (Honble Chief Minister) will not be required to be submitted to the Cabinet for rectification. 10. Subsequently, vide a Govt. Order No. 173-G AD of2004 dated 10.02.2004, it was ordered that: a. decisions taken by the Governing Body of the Sher-i-Kashmir Institute of Medical Sciences Soura and approved by the Chairman of the Governing Body (Honble Chief Minister) will not be required to be submitted to the Cabinet for rectification. b. In partial modification of Government order No. 127-GAD of 2001 dated 27.10.2001, the Director Sher-i-Kashmir Institute of Medical Sciences Soura is also designated as ex-offico Secretary to Government in regard to all matters pertaining to the Institute (which is also a deemed University) and shall exercise necessary powers for implementation of decisions taken by the Governing Body and other Standing Committees of the Institute after their approval by the Honble Chief Minister in his capacity as the Chairman of the Governing Body whenever required.� 11. On 06.12.2004 the post was advertised and the advertisement notice prescribed various requirements/ qualifications for the post, including the age and experience. 12. On 07.12.2004 the selection committee was reconstituted by the Chief Secretary as under: - 1. Chief Secretary Chairman 2. Financial Commissioner/Pr. Secretary to Honble Chief Minister. Member 3. Dr. Naseer Ahmad, Former Principal Govt. Medical College, Srinagar Member 4. Director, P.G.I. Chandigarh Member 5. Expert to be nominated by Chief Secretary (as Chairman) 13. In pursuance to the notification issued on 06.12.2004 following eleven candidates including the petitioner and respondent No.3 applied for the post, namely: 1. Dr. M.A. Shah. 2. Dr. Ghulam Jeelani. 3. Dr. M.A. Wani. 4. Dr. M.I. Qadri. 5. Dr. Mohd. Ashraf Bhat (petitioner). 6. Dr. Ghuiam Jeelani Qadri. 7. Dr. Abdul Hamid Zargar. 8. Dr. S. Jalal. 9. Dy. Syed Amin Tabish. 10. Dr. G.Q. Khan. 11. Dr. Azra Shah. 14. The selection committee called all the candidates who had applied for the post for an interaction. Out of these candidates Dr. G.Q. Khan, did not appear before the selection Committee. From the record as well as from the submissions made at the Bar, it appears that no written test or a formal interview was conducted. Keeping in view the status of the post, the selection committee adopted the procedure to have an interaction with the candidates. The Committee met for the purpose on 24.06.2005. Dr. S.S. Bloeria, Chief Secretary, Sh. Vijay Bakaya, Financial Commissioner/ Pr. Secretary to Hon™ble Chief Minister, Sh. S.D. Singh, Financial Commissioner Home Department and Dr. Keeping in view the status of the post, the selection committee adopted the procedure to have an interaction with the candidates. The Committee met for the purpose on 24.06.2005. Dr. S.S. Bloeria, Chief Secretary, Sh. Vijay Bakaya, Financial Commissioner/ Pr. Secretary to Hon™ble Chief Minister, Sh. S.D. Singh, Financial Commissioner Home Department and Dr. Naseer Ahmed attended the meeting. Director, PGI, Chandigrah could not attend the meeting due to his previous engagements. The Committee on consideration of the matter submitted a panel of three doctors for the post, namely: i Dr. Abdul Hamid Zargar. ii. Dr. S. Jalal. iii. Dr. M.A.Wani. 15. Though no minutes have been maintained by the Committee and the record does not show what was the criteria adopted by the Committee to make the selection but the record would show that the committee found these three doctors suitable on the basis of information provided in the form of a chart which has been maintained and which forms part of the record. 16. The committee has out of the three doctors graded Dr. Abdul Hamid Zargar as Very good� and placed him at S.No.1, respondent No.3 has been placed at S.No.2 while Dr. M.A. Wani has been placed at S.No.3. The panel so prepared by the Committee was placed before the Chairman of the Governing Body of SKIMS, Srinagar (Chief Minister of the State) who on 11.07.2005 approved the name of Dr. S. Jalal (respondent No.3) for his appointment as the Director, SKIMS, Srinagar. 17. The Advertisement notice No. DIP/J-2486 dated 06.12.2004 gives the age limit for the post as under: - 50 years relaxable by the Governing Body in case of candidates having outstanding merit.� 18. Thus the maximum age fixed for the post is 50 years. The Governing Body had the powers to relax the age in case of candidate having outstanding merit. Admittedly, respondent No.3 was of more than 50 years of age at the time the selection was made. His date of birth as shown by him in Annexure R4 to his reply is 13.09.1949. Thus at the time of his selection on 11.7.2005 he was about 56 years old. The respondents state that in view of the outstanding merit of respondent No.3, he was given the benefit of age relaxation. Same thing is stated by respondent No.3 also. His date of birth as shown by him in Annexure R4 to his reply is 13.09.1949. Thus at the time of his selection on 11.7.2005 he was about 56 years old. The respondents state that in view of the outstanding merit of respondent No.3, he was given the benefit of age relaxation. Same thing is stated by respondent No.3 also. But from the record, I could not find any such relaxation in favour of respondent No.3. Only the Governing Body of the SKIMS was competent to grant such a relaxation, but the record would show that the list of suitable candidates prepared by the Committee has never been placed before the Governing Body to consider and grant relaxation of age in favour of respondent No.3. 19. Under the rules relaxation of age could be claimed only by the candidate possessing an outstanding merit. The Panel prepared by the selection committee and submitted to the Chairman gives the name of Dr. Ab. Hamid Zargar at S.No. 1 while as the name of respondent No.3 figures at serial No.2 which shows that Dr. Ab. Hamid Zargar was more suitable and meritorious than respondent No.3. Dr. Abdul Hamid Zargar was also over age at the time of selection as his date of birth is 12.4.1951. Since out of the two candidates he was more meritorious being at S.No. 1, if any relaxation was required to be given it should have been given to him. How could respondent No.3 claim relaxation when he figured at S.No.2 in the merit list and was thus below in merit than Dr. Ab. Hamid Zargar. 20. Since respondent No.3 was over age at the time of selection and no relaxation in age has been given to him by the competent authority, I find his selection and appointment on the post was not in order. 21. Admittedly, the appointing authority for the post of Director is the Governing Body of SKIMS. This fact is clear even from clause 1 of the Advertisement Notice dated 6.12.2004. The appointment of respondent No.3 has been made by the Chairman and not by the Governing Body. Learned Counsel for the respondents submits that the Governing Body had delegated the powers to the Chairman but from the record I could not find any such delegation. This fact is clear even from clause 1 of the Advertisement Notice dated 6.12.2004. The appointment of respondent No.3 has been made by the Chairman and not by the Governing Body. Learned Counsel for the respondents submits that the Governing Body had delegated the powers to the Chairman but from the record I could not find any such delegation. The record also shows that the list of selected candidates was never placed before the Body which means that the Governing Body has not been consulted at all in the matter. The record, as noticed above would show that the Governing Body had met only once when it decided to advertise the post, thereafter it has never met nor has it authorized the Chairman to make appointment on behalf of the Governing Body. There being neither any approval of the Governing Body nor delegation of powers to the Chairman in this behalf, I find the appointment of the respondent on the post is not in accordance with the rules. 22. I find due force in the arguments of the learned counsel for the petitioner that selection and appointment of respondent No.3 has been made illegally, arbitrary and in violation of the rules. 23. I have given the circumstances under which the committee has made the selection of the petitioner. On a careful perusal of the record I find the whole exercise has been undertaken in a casual manner and the appointment of the respondent has been made in the most arbitrary manner. The Selection Committee has not followed any criteria while making the selection nor has the Chairman acted in a fair manner while selecting respondent No.3 out of the panel of three candidates prepared by the Committee. On a close perusal of the record I find even the Selection Committee was not properly constituted. 24. When the Governing Body met on 24.8.2003 to consider the issue of appointment of the Director, it constituted a selection committee headed by the Chief Secretary. In this behalf a Govt. Order No. 946-IIME of 2003 dated 1.9.2003 was issued by means of which a committee of the following officers was constituted for making selection of a suitable candidate for the post. 1. Chief Secretary Chairman 2. Financial Commissioner, Finance Deptt. Member 3. Prpl. Secretary, Planning & Dev. Deptt. Member 4. Prpl. Secretary, General Admn. Deptt. Member 5. Order No. 946-IIME of 2003 dated 1.9.2003 was issued by means of which a committee of the following officers was constituted for making selection of a suitable candidate for the post. 1. Chief Secretary Chairman 2. Financial Commissioner, Finance Deptt. Member 3. Prpl. Secretary, Planning & Dev. Deptt. Member 4. Prpl. Secretary, General Admn. Deptt. Member 5. Medical Scientist of National Importance as an expert. Member 6. Secretary to Govt. Health & M.E. Deptt. Member 25. The record, however, shows that the Chairman, Governing Body (Chief Minister of the State) without any delegation from the Governing Body or without consulting them reconstituted the selection committee on 04.01.2005 as under: - 1. Chief Secretary Chairman 2. Financial Commr. (home). Member 3. Financial Commr. (Pr. Secy., to Honble Chief Minister). Member 4. Dr. Syed Naseer Ahmed. Member 5. Director, PGI, Chandigarh. Member 26. Commissioner/Secretary to Govt. Health and Medical Education Department was to act as Secretary to the Committee. 27. Thus the three members i.e. the Financial Commissioner, Finance Department, Principal Secretary, Planning and Development, Department and Principal Secretary, General Administration Department were replaced by Financial Commissioner (Home) & in addition to it the Chief Minister got his own Principal Secretary inducted as one of the member of the Committee. In place of a Medical Scientist of National Importance as an expert, Dr. Syed Naseer Ahmed, Former Principal Government Medical College, Srinagar was nominated as a member, besides, Director, PGI, Chandigrah was also nominated as member. The said Director has not, however, attended the meeting. 28. The petitioner states that when he appeared for interaction before the Selection Committee, he found only one doctor i.e. Dr. Naseer Ahmed, was present besides other members of the Committee. Dr. Naseer Ahmed, according to the petitioner is basically post graduate in medicine who is not an expert either in hospital administration or in the field of surgery in which petitioner has got specialization. Thus there was no expert present at the meeting. 29. The respondents have contested this fact and stated that Dr. Naseer Ahmed has vast experience in the field having remained Principal Government Medical College, Srinagar and the petitioner can not sit on judgment of the Selection Committee and say that Dr. Naseer Ahmed had no experience in hospital administration. 30. Even if the contentions of the respondents are accepted, the question still remains as to whether Dr. Naseer Ahmed has vast experience in the field having remained Principal Government Medical College, Srinagar and the petitioner can not sit on judgment of the Selection Committee and say that Dr. Naseer Ahmed had no experience in hospital administration. 30. Even if the contentions of the respondents are accepted, the question still remains as to whether Dr. Naseer Ahmed was a Medical Scientist of National Importance which was the requirement, as there is no averment in the reply of the respondents on it. It is interesting to note that Commissioner/ Secretary, Health and Medical Education has on 31.01.2005, while commenting upon the issue of nomination of Dr. Naseer Ahmed, observed that the pay scale of the post for which selection has to be made is the same (Rs.26,000 fixed) as that of the Chairman of the Committee and member but Dr. Naseer Ahmed has retired from the Government at a lower level in the grade of Rs. 18400-500-22400. At another stage it has been proposed to drop the name of Dr. Naseer Ahmed as his niece was one of the applicants but all these objections have not been considered by the Chairman while making the nomination of Dr. Naseer Ahmed. 31. By referring to all these facts, I do not intend to doubt the competence, fairness and integrity of Dr. Naseer Ahmed, I have noticed these facts only to arrive at a conclusion that the Committee for the selection of the Director was not properly constituted. 32. Since the Governing Body is the appointing authority it was basically its job to constitute a selection committee and once the body constituted such a committee on 24.08.2003, the Chairman should not have reconstituted the Committee without the concurrence of the Governing Body. The Chairman had no powers to re-constitute the committee, as such, I find the selection committee was not validly constituted so any selection made by it was not a proper selection at all. 33. It is well settled now that the selection committee must be properly constituted. When the rules/statute prescribe the manner of the constitution of committee, a committee which is not so constituted acts illegally and without jurisdiction. 34. Petitioner has stated that the committee had prescribed/ adopted no criteria for making the selection. This fact is substantiated by the record. As observed above, the selection committee has not conducted any written test or interview for the purpose. 34. Petitioner has stated that the committee had prescribed/ adopted no criteria for making the selection. This fact is substantiated by the record. As observed above, the selection committee has not conducted any written test or interview for the purpose. I agree with the contentions of Mr. Magray, that keeping in view the status of the post, the committee rightly decided to have interaction with the candidates. This perhaps was the most suitable method. But what criteria the committee adopted to select the suitable candidate after having an interaction with them is again not clear from the record. There are no minutes/ record to show how the committee assessed the candidates. The Chief Secretary, who was the Chairman of the Committee and who has filed the reply has not stated in it, what method was adopted by the committee to assess the suitability and merit of the candidates and on what basis the committee came to the conclusion that the three candidates selected, were suitable for the post. 35. The Chief Secretary has in the reply stated that for high ranking posts like Director SKIMS, which is a major head of the department, there is no scope for written test but only the merit and suitability of a candidate is required to be seen by the selection committee and suitability for appointment is the domain of the competent authority. The petitioner had failed to make the grade even for being placed in the selection panel as he had no outstanding merit than those who were placed in the selection panel and had no match for the merit and suitability as of respondent No.3. But from the record we find totally a different picture. The record shows that the whole matter has been-dealt with in a casual manner and inconsistent stands have been taken while making the selection. This fact is evident from the perusal of the chart showing the particulars of the candidates which is part of the record and on which notes have been made. 36. In case of the petitioner, in remarks column, it has been said that he has no administrative experience, while as in the column ˜Professional/Adm. Experience™ his experience has been shown as under: 17 years in Hospital Administration at SMHS, Srinagar (since 97 till date) as B.Grade Specialist at SKIMS/ CMC, Srinagar.� 37. Not only the petitioner but Dr. M.I. Qadri and Dr. Experience™ his experience has been shown as under: 17 years in Hospital Administration at SMHS, Srinagar (since 97 till date) as B.Grade Specialist at SKIMS/ CMC, Srinagar.� 37. Not only the petitioner but Dr. M.I. Qadri and Dr. Syed Amin Tabish have not been selected on the ground that they have no administrative experience but a similar remark i.e. ˜Has no administrative experience™, has been made against the name of Dr. Abdul Hamid Zargar, who has no only been selected but also given very good and placed at S.No.1 of the panel. Even Dr. Gh. Jeelani Qadri, who has been rated as good, has as per the chart, no administrative experience but he too has been considered by the committee. 38. The candidature of Dr. M.A. Shah, has been rejected on the ground that he is ˜54 years of age and is not eligible for appointment for the post™, but Dr. Ab. Hamid Zargar and Dr. S. Jalal have been considered though both of them too were overage. 39. The requirement for the post, as per the advertisement notice is: ˜Extensive administrative experience of over 5 years in responsible capacity in the field of Hospital Administration or Medical Education.™ 40. The chart placed on file shows that respondent No. 3 does not possess 5 years of experience in the field of Hospital Administration. 41. Mr. Magray, would in this behalf submit that the experience can be even in Medical Education and that since the respondent has acted as Dean also, this should be taken as a sufficient experience. I fear this cannot be accepted as the Committee has itself rejected Dr. Gh. Jeelani who had only one years administrative experience as Principal, Government Medical College, Srinagar but who had worked for 30 years including HOD/Surgery and has retired as Principal/ Dean Government Medical College, Srinagar. 42. Dr. S. Jalal has got 22 years standing including Professor/ Head of the Department, while as Dr. Azra shah has 27 years standing including as Professor/ Head of the Department. 43. It is basically the job of the selection committee to determine the suitability of a candidate on the basis of qualification and experience possessed by him. I have pointed out these facts to satisfy my self that the committee, in the present case has not properly and duly considered the comparative merit and suitability of the candidate and has selected candidates capriciously. 44. I have pointed out these facts to satisfy my self that the committee, in the present case has not properly and duly considered the comparative merit and suitability of the candidate and has selected candidates capriciously. 44. The panel prepared by the committee has been placed before the Chairman, SKIMS, (the Chief Minister) who has on 11.07.2005 directed as under: Dr. Jalal approved to be appointed as Director. Sd/Mufti Mohmmad Syed 11.7.2005.� 45. Here again I find the appointment of respondent No.3 has been made arbitrarily and without due application of mind. 46. A panel of three doctors was submitted, namely 1. Dr. Abdul Hamid Zargar. 2. Dr. S. Jalal. 3. Dr. M.A. Shah. 47. On what basis Dr. Jalal has been selected out of the three candidates, when he was figured at S.No.2, is not clear from the notes on the file. The Chairman was expected to act fairly in the matter but I find the name of respondent No.3 has been approved in utter disregard to the rules. 48. For the foregoing reasons, I find that the selection of respondent No.3 to the post of Director, SKIMS, Srinagar, is not in accordance with the rules. This petition is, therefore, allowed and the order of appointment of respondent No.3 bearing No. 802-GAD of 2005 dated 11.07.2005, impugned in the present petition is hereby set aside. The respondent State is directed to make a fresh selection for the post. Since respondent No.3 is in eligible, being over age, to hold the post, the State may make immediate arrangements for placing an eligible candidate as in charge Director of the Institute till a proper selection is made by the competent authority in accordance with rules. 49. Registry to return the official record to Mr. A.M. Magray, after placing Photostat copies of the same on file.