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2011 DIGILAW 273 (JK)

Jyoti Sakral & Ors. (Dr. ) v. State of J&K & Ors.

2011-05-20

J.P.SINGH

body2011
1. Responding to the Government Medical College Jammu's Advertisement No. JMC/ESTT/GD/109/5857 dated 30th October, 2010, the petitioners, who are the members of the Jammu and Kashmir Medical Gazetted Service, submitted their Applications through Director Health Services, Jammu, seeking consideration for selection and appointment against the post of Registrar/Demonstrator in the respective disciplines in the Jammu and Kashmir Medical Education (Gazetted) Service. 2. Their forms were not forwarded to the Competent Authority, by the Director Health Services, Jammu. Aggrieved thereby, they approached this Court seeking a command to the Director Health Services Jammu and Kashmir, Jammu to forward their Application Forms facilitating their interview for the tenure post of Regis­trar/Demonstrator. 3. Vide interim order dated 24.11.2010, the Director Health Services was directed to forward forthwith their Application Forms to the Principal, Government Medical College, Jammu to permit them to participate in the Selection process. The declaration of their results was, however, directed to await the final directions of the Court. 4. In its response to the Writ Petition, the Medical Education Department says that the petitioners would be interviewed in case their Forms were routed through their Administrative Department before the scheduled date of interview. 5. The Director Health Service, Jammu has not filed any Response to the Petition. Its learned counsel, however, opted to make parol submissions. According to Mrs. Hakim, the learned counsel appearing for the Director Health Services, Jammu, the Jammu and Kashmir Medical (Gazetted) Service, was suffering because of the non-availability of the Doctors and it may not, therefore, be in the interests of public health, that the petitioners were deputed to work as Registrar/Demon­strator in another service of the State Government, i.e., Medical Education Gazetted Service. 6. Appearing for the petitioners, their learned counsel, Mr. Abhinav Sharma, submitted that being eligible to compete for the post of Registrar/Demonstrator in the Jammu and Kashmir Medical Education (Gazetted) Service, which in terms of the Rules were to be filled up only by deputation of eligible Assistant Surgeons of the Jammu and Kashmir Medical (Gazetted) Service, the authorities of the Medical Service could not, in law, refuse forwarding the petitioners' Application Forms to the Principal, Government Medical College, Jammu and if selected, their deputation to the Jammu and Kashmir Medical Education (Gazetted) Service. He, therefore, submitted that the respondents are required to be commanded to send their Application Forms to the Principal, Government Medical College, Jammu and if selected for Registrar/Demonstrator's tenure post, to sanction their deputation to the Jammu and Kashmir Medical Education (Gazetted) Service. 7. Considered the submissions of learned counsel for the parties and perused the petitioners' pleadings and those filed on behalf of the Medical Education Gazetted Service. 8. The petitioners' eligibility to compete for selection as Registrar/Demonstra­tor in the Medical Education (Gazetted) Service, was not disputed by the learned counsel appearing for the respondents at the time of consideration of the Petition. It is also not disputed that the Application Forms of those in-service Assistant Surgeons of the Medical Gazetted Service, who were desirous of competing for the post in the Medical Education Department, were required to be routed through the Director Health Services. 9. In view of the above admitted factual position, the functionaries of the Jammu and Kashmir Medical (Gazetted) Service cannot refuse sending the Appli­cation Forms of the desirous members of its service facilitating their consideration for selection by the functionaries of the Medical Education Gazetted Service, par­ticularly when the only mode provided for filling up the posts in the Jammu and Kashmir Medical Education (Gazetted) Service, was by deputation of the in-service eligible Assistant Surgeons of the Jammu and Kashmir Medical (Gazetted) Service. 10. The inaction of the functionaries of the Jammu and Kashmir Medical (Gazetted) Service in not forwarding the petitioners' Application Forms to the Principal, Government Medical College, Jammu, cannot, therefore, be justified. 11. Insofar as the petitioners' learned counsel's submission for issuance of directions to the functionaries of the Jammu and Kashmir Medical (Gazetted) Service to sanction the petitioners' deputation to the Jammu and Kashmir Medical Education (Gazetted) Service, in case of their success in selection, was concerned, it would be pre-mature for this Court to dwell on the issue for two reasons, viz., (i) the petitioners have not prayed for any such relief in their writ petition and (ii) it is the prerogative of the lending Department to consider the request of the borrowing Department, keeping in view its own interests too, while taking decision as to whether or not the deputation was warranted in the circumstances. 12. 12. As no occasion has yet arisen for the petitioners to project their case for deputation nor had their employer-Department any occasion to deal with the issue, so issuance of directions as sought for by the petitioners for their deputation may not be permissible at this stage. 13. However, as the petitioners' Application Forms have now been entertained by the Principal, Government Medical College, Jammu and they have been inter­viewed too, so the interim order issued by the Court on 24.11.2010 needs to be made absolute issuing further directions for declaration of the their results. 14. This Petition, therefore, succeeds and is, accordingly, allowed with a direction to the Principal, Government Medical College, Jammu to declare forth­with the petitioners' results. In the event of their success, they would be free to approach their Department to seek their deputation to the Jammu and Kashmir Medical Education (Gazetted) Service, which request, when so received, it is hoped, shall be considered by the functionaries of the Jammu and Kashmir Medical (Gazetted) Service, for taking appropriate decision thereon, as warranted in the circumstances, expeditiously.