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2009 DIGILAW 54 (JK)

S. Kanwarjeet Singh (Dr. ) v. State

2009-02-11

HAKIM IMTIYAZ HUSSAIN, MUZAFFAR HUSSAIN ATTAR

body2009
Muzaffar Hussain Attar, J. 1. This Letters Patent Appeal, is directed against judgment/order dated 31st Dec. 2008 passed in SWP No. 902/07. 2. The judgment/order dated 31st Dec. 2008 reveals that two writ petitions SWP No. 1113/05 and 902/07 were listed and considered together. Both the petitions were filed by appellant. The appellant, however has no grievance against impugned order so far it relates to SWP No. 1113/05, but is aggrieved of the impugned order so far it deals with the SWP No. 902/07. The appellant had filed SWP No. 1113/07 seeking following reliefs:- "a) Certiorari:- Quashing the notification No. 16 PSC of 2005 dated 13.10.2005, so far as it has reserved two posts for RBA and Schedule Tribe Category, out of three seats in the discipline of ENT. b) Mandamus:- Commanding the respondents to select candidates under open merit category against two posts and a candidate belonging to Line of Actual Control be considered for the third post." 3. During the pendency of abovesaid writ petition appellant filed second writ petition seeking following reliefs: "a) Certiorari: Quashing Government order bearing No.405-HME of 2007 dated 15.06.2007, so far as withdrawal of three posts of lecturers in the discipline of ENT is concerned. b) Mandamus: Commanding the respondents to go ahead with the process of selection for three posts of Lecturers in the discipline of ENT which stands advertised vide advertisement notice No.16-PSC of 2005 dated 13.10.2005 except that out of three posts two posts are to be meant for Open Merit and one for Schedule Tribe/RBA categories. Any other writ order or direction which the Honble Court may deem fit and proper in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents." 4. The grievance of the appellant as projected in first writ petition was that notification No. 16/PSC 25 dated 13 Oct. 2005 was required to be quashed to the extent it advertised posts of Lecturers in the discipline of ENT for the reason that out of three advertised posts two posts were reserved for reserved category candidates and one post for open merit candidates. 5. 2005 was required to be quashed to the extent it advertised posts of Lecturers in the discipline of ENT for the reason that out of three advertised posts two posts were reserved for reserved category candidates and one post for open merit candidates. 5. Both the respondents filed objections to the maintainability of the writ petition, respondent No.1 took definite stand in his objections and relevant part of the objections is reproduced as under:- "1.That in terms of letter No. ME-GM-139/2-11 dated 23.08.2005 Public Service Commission was requested to advertise some faculty posts fallen vacant in Medical Education Department including three posts of Lecturers in E.N.T. Department. Since the Commission asked for break up of the vacancies from answering respondent, as such, in terms of letter No. ME-GM-139-202-11 dated 20.09.2005 the breakup was furnished for necessary action and the break up for three posts of Lecturers in E.N.T Department was also given as R.B.A. (1), O.M. (1) and S.T. (1). 2. That on the basis of the said requisition, the Public Service Commission advertised the posts but during the process the Reservation Rules were repealed and the new Reservation Rules were framed and the Public Service Commission in terms of letter No. GM-ME-139-2002-III dated 07.08.2006 was requested to fill up the vacancies as per re-distribution of posts afresh as per SRO 294 of dt.21.10.2005. As per the said letter, one post of Lecturer in ENT Department was required to be filled up for Medical College Jammu amongst Open category candidates and two posts of Lecturers in ENT Department for Medical College Srinagar were required to be filled up as one for Open Merit and another for RBA. As such out of the total number of three posts of Lecturers two have been reserved for Open Merit candidates, therefore, the claim of the petitioner that two posts should go to Open Merit candidates has been accepted and the writ petition in this view of the matter has become infructuous. " 6. The respondent No.2 in the objections filed before the court almost also took like stand as was taken by respondent No.1. The respondents accordingly sought dismissal of the writ petition having been rendered infructuous. 7. " 6. The respondent No.2 in the objections filed before the court almost also took like stand as was taken by respondent No.1. The respondents accordingly sought dismissal of the writ petition having been rendered infructuous. 7. It appears that during pendency the earlier writ petition, respondent No.1 issued Government order No. 405/HME 2005 dated 15.6.2007 wherein and whereunder it was provided that the posts of Lecturers vacant in various discipline in Government Medical College Jammu/Srinagar, the details were having been given in the said government order, which had been referred to PSC from time to time for making selection of suitable candidates, shall be deemed to have been withdrawn as no selection has been made notwithstanding, this fact the posts were advertised. The said government order however did not withdraw three posts of Radio Diagnosis and one each post of Cardiology, Cardio Thoracic Surgery and Cardio Thoracic Anaethesia, Ophthalmology and Gynae and Obsts. The appellant-petitioner being aggrieved of the said order challenged the same in the second writ petition, wherein the writ court on 2nd July, 2007 on motion stage directed for maintenance of status quo. The record of SWP No. 902/07 reveals that reply has been filed on behalf of respondent No.3 and in the said reply reasons have been given as to how and in which circumstances the order impugned in the writ petition was issued. It has been submitted that the order came to be issued in the back drop of the fact that three posts of ENTs were advertised earlier out of which one post was advertised in open merit category and one in RBA and one in ST, but before PSC could proceed ahead with the selection process the Health and Medical Education Department vide No. ME-GM/139/2002-III dated 12th April 2006 and 7th August 2006 re-distributed the three posts of Lecturers ENT for GMC Jammu/Srinagar and this action was taken in sequel to Cabinet decision providing for bifurcating two Medical Colleges for maintaining and regulating separate seniority of members of the service. The Govt order No. 123-HME of 2005 dated 03.03.2006 was issued in this behalf. The Govt order No. 123-HME of 2005 dated 03.03.2006 was issued in this behalf. In terms of communication dated 7th August 2006 one post of Lecturer in the discipline of ENT in open merit was allocated to GMC Jammu, and out of two posts allocated to GMC Srinagar, one post was made available to open merit candidate and another to RBA category candidate. The objections further reveal that in the 22nd meeting of the Commission held on 20. 12.2006, which meeting was also attended by Secretary Health and Medical Education Department, the issues regarding bifurcation of posts in Medical College(s) came up for discussion. The members of the meeting after taking note of the provisions of relevant rules and the input given by Secretary, Health and Medical Education Department, and the Secretary J&K Public Service Commission, took the following decisions:- "1. Home department will issue orders of appointment in respect of candidates already recommended against discipline of Home Department finalized as per advertisement notifications issued against proposals received earlier; 2. The Home Department will withdraw the reference of balance posts of Medical Education Department after seeking orders of the competent authority and convey the fresh break up college-wise, with correct roster points for various categories." 8. The respondent has further stated in the objections that discussions made and exercises undertaken resulted in taking of above referred decisions, the Government issued order No. 405-HME of 2007 dated 15.06.2007. It is further pleaded that in order to make selections and appoints to three posts of Lecturers in the discipline of ENT the respondent No.1 referred these three posts afresh for being filled up on college-wise basis separately for GMC Jammu/Srinagar. The purpose for withdrawal of the posts from PSC obviously was for making the selection in tune with the decision of Government about re-distribution of posts and for maintaining separate seniority of faculty members in GMC Jammu/Srinagar. 9. The writ record further reveals that applications was also filed by respondent No.3 for vacation of interim order dated 2nd Duly 2007 passed in IA No. 1573/07 which had the potential of staying selection process. The matter accordingly was considered by the ld. Single Judge and the writ petition in view of the stand taken by the respondents in both the writ petitions was disposed of as settled. 10. The matter accordingly was considered by the ld. Single Judge and the writ petition in view of the stand taken by the respondents in both the writ petitions was disposed of as settled. 10. The appellant being aggrieved of the judgment/order passed so far it deals with SWP No. 902/07 has filed this LPA to challenge the same. Heard learned counsel for the appellant. The ld. counsel for the appellant while arguing the case submitted that the order impugned is bad as the respondents were required to bring to its logical conclusion the selection process initiated in pursuance of advertisement notice No. 16-PSC of 2005 dated 13th Oct. 2005. The ld counsel submits that no reason has been given by the respondent No.1 while issuing government order which directed for withdrawal of posts from the PSC including that of the posts in the discipline of ENT. 11. The impugned order reveals that no such ground which are sought to be projected in the appeal and argued by ld. Advocate Mr. R.A. Jan have been projected before the ld. Single Judge. It is settled position in law that the grounds of challenge which do not find place in the impugned order will be deemed to have been neither raised nor pressed at the time of hearing of the case. The appellant if, still has grievance about the same, then he may approach the ld. Single Judge by way of filing the appropriate proceedings. 12. One of the prayers in both the writ petitions seeking selection process to be taken to its logical conclusion under notification of 2005 being almost overlapping and there being no challenge thrown to the judgment so far it refers to SWP 1113/05, the appeal under consideration may not be maintainable for this reason also. 13. The ld. counsel has argued the grounds which he has spelt out in his memo of appeal. The ld. counsel, however, has not taken notice of the objections filed by respondent No.3 in his second writ petition in which the said respondent has given details about bifurcating the two Medical Colleges in pursuance of Cabinet decision and for maintaining separate seniority of members of the Medical Colleges and in sequel thereto the government order dated 3.3.2006 was issued. The advertisement notification of 2005 could not be carried forward for two valid reasons. The advertisement notification of 2005 could not be carried forward for two valid reasons. First, that three posts of Lecturers in ENT discipline in which two posts were to be filled from amongst reserved category and one from open merit candidates was reversed by ordering filling up of the two posts amongst open merit candidates and one from reserved category candidates; and secondly, the government had taken conscious decision for maintaining the separate seniority for the faculty members of GMC Srinagar/Jammu and accordingly three posts were re-distributed between two colleges. 14. It would not stand to the reason under these circumstances to carry forward the selection process in pursuance of the first advertisement notification, the basis whereof where knocked out because of subsequent developments. The decision of the government to withdraw the posts and then to refer the same back to PSC in view of the changed circumstances is valid and reasonable decision. The writ petition under these circumstances was not competent. 15. It is made clear that in view of the fact that these issues were not raised at the hearing of the writ petition as same do not find place in the impugned order, but same were raised by Mr R.A. Jan ld. advocate appearing for the appellant, we deemed it appropriate to deal with the submissions made at bar. 16. On the upshot of the above discussions this appeal fails and is accordingly dismissed. CMP No. 07/09. 17. The ld. counsel for the appellant has filed CMP No. 07/09 seeking staying the operation and implementation of notification No. 01-PSC of 2009 dated 29th of January, 2009. This application besides being beyond pleadings in the writ petition and being subsequent event cannot be considered and even, otherwise, for the conclusion arrived at in this appeal, same does not require any consideration. Dismissed.