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2012 DIGILAW 536 (JK)

Bashir Ahmad Naikoo v. State of J&K & Ors.

2012-08-31

MANSOOR AHMAD MIR

body2012
1. Petitioner, being eligible, had offered his candidature for selection and appointment as a Lecturer in the discipline of Medicine in the Health and Medical Education Department of the State of Jammu and Kashmir against one of the posts notified by the Jammu and Kashmir Public Service Commission (hereinafter for short referred to as ‘the Commission’). The Commission vide Notification No. 13-PSC of 2008 dated 31.12.2008, inter alia, notified one post of Lecturer, General Medicine in the Open Merit Category, lying vacant in the Health and Medical Education Department. The Notification also notified the place, i.e., the Medical College, where this vacancy had cropped up. It is stated that the petitioner duly responded to the said Notification. However, the Commission did not proceed further with the process of selection, except receipt of application forms from the candidates desirous of competing for the post in question. Thereafter, on 17.07.2009, the Commission issued another Notification notifying, inter alia, three more posts of Lecturer in the Discipline of Medicine under the Open Merit Category. The petitioner again responded to the said notification and offered his candidature. Vide this Notification, again, the Commission notified the name of the Medical Colleges where these vacancies had cropped up. 2. Though the posts were advertised by two different notifications, it appears, and there is no denial to the said fact, that the Commission conducted one single interview of the candidates for making the selections with respect to the posts advertised by the aforesaid two distinct notifications dated 31.12.2008 and 17.07.2009. The selection process, thus conducted, culminated into issuance of Notice dated 26.11.2009 by the Commission notifying the Select List of candidates for the posts of Lecturer etc. in Anaesthesia and Medicine. A copy of the Select List so notified by the Commission is placed on record of this writ petition as annexure ‘B’. It is reiterated here that though the posts were notified by two different and distinct notifications, there was one single interview conducted by the Commission. However, a perusal of the Select List so published and forwarded to the Government by the Commission, reveals that the Commission drew up separate selection lists under the two advertisements. The Select List of Lecturer Medicine pursuant to Notification No. 13-PSC of 2008 dated 31.12.2008 under Open Merit Category is shown at item B-Medicine at inner pages 3 and 4 of the aforesaid Selection List. The Select List of Lecturer Medicine pursuant to Notification No. 13-PSC of 2008 dated 31.12.2008 under Open Merit Category is shown at item B-Medicine at inner pages 3 and 4 of the aforesaid Selection List. It contains the name of Dr. Tajamul Hussain Mir only and he is shown to have been selected against the vacancy that had cropped up in GMC, Srinagar. Similarly, the Select List of Lecturer Medicine pursuant to Notification No. 14-PSC of 2009 dated 17.07.2009 under Open Merit Category contains the names of three candidates, namely, Vijant Singh against the vacancy of Government Medical College, Jammu; Rakesh Kumar Koul, against the vacancy of Government Medical College, Jammu and Bashir Ahmad Naikoo, the petitioner herein, against the vacancy of Government Medical College, Srinagar. 3. After the completion of the selection process and concluding the recommendatory process thereof, the Commission, issued a corrigendum, a copy whereof has been placed as annexure ‘C’ on record of this petition. It is note worthy, this corrigendum to Notice dated 26.11.2009 neither contains the date of its issue nor any dispatch number. Under this corrigendum, Dr. Vijant Singh was shown to have been selected against the vacancy of Government Medical College, Jammu; Rakesh Kumar Koul, who in the original Select List had been shown to have been selected pursuant to Notification No. 14-PSC against the vacancy available in Government Medical College, Jammu, was now shown to have been selected against the vacancy in Government Medical College, Srinagar, on which the petitioner herein was selected in the original Select List. Consequent upon this readjustment of Dr. Rakesh Kumar Koul, the petitioner’s name from the Select List was shown to have been deleted. It is note worthy here that against the vacancy available at Government Medical College, Jammu, which cropped up by aforesaid re-adjustment of Dr. Rakesh Kumar Koul, another candidate, namely Dr. Sanjeev Bhat, far below in merit than the petitioner, as would be shown herein below, has been shown to have been selected. The sole reason disclosed in the impugned corrigendum issued by the Commission is that “he (the petitioner) has not applied for the post of Lecturer Medicine in Government Medical College, Jammu; his name therefore, has been deleted as he does not figure in the select list”. The sole reason disclosed in the impugned corrigendum issued by the Commission is that “he (the petitioner) has not applied for the post of Lecturer Medicine in Government Medical College, Jammu; his name therefore, has been deleted as he does not figure in the select list”. The petitioner has, therefore, knocked the doors of justice through the medium of this petition, challenging the aforesaid corrigendum and praying for restoration of the original Select List. 4. The petitioner in his petition has taken certain specific grounds, which need a short reproduction herein. It is stated that recruitment to the Jammu and Kashmir Medical Education (Gazetted) Service is regulated by the Rules of 1979 sanctioned and issued vide SRO No. 517 dated 19.09.1997 called as the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, and that the Rules so framed constitute a single integrated service of Medical Education; that the teaching programmes are carried out in different Medical Colleges, but the service as a single entity is created for all the Medical Colleges; that on 03.03.2006 the Government issued Government Order No. 123-HME of 2006 and it was provided therein that separate seniority lists of members of Medical Education (Gazetted Service) in respect of the two Medical Colleges at Jammu and at Srinagar shall be maintained after giving every faculty member free option to choose either of the two Colleges and that such an option can be exercised by a Member of the service alone after he has been recruited to the service and not before the recruitment is made; that the aforesaid Government order cannot and does not amend the aforesaid Statutory Rules, which prescribe constitution of a single Service. It is submitted that, ostensibly, relying on the said Government Order, the Commission has taken upon itself to assign the candidates to the two Medical Colleges at the selection stage itself, which is beyond its competence and jurisdiction, besides being violative of the Rules; that the removal of the petitioner from the Select List is patently illegal; that in law it was not necessary for the petitioner to opt for the post of Lecturer in any of the two Government Medical Colleges, moreso because the posts were referred to the Commission by the Health and Medical Education Department; that the Rules do not envisage, contemplate or permit creation of two distinct cadres of posts of Lecturer in one and the same discipline – one for the Jammu Government Medical College and the other for the Srinagar Government Medical College, based on occurrence of vacancies. 5. While issuing notice to the respondents on 24.12.2009 both in the main writ petition as well as in the accompanying interim stay application, one of the Co-ordinate Bench of this Court passed the following order: “Meanwhile, on the basis of material available on record coupled with the submissions made, indulgence is warranted, as such, operation of the corrigendum to the notice dated 26.11.2009, to the extent it relates to the petitioner, shall remain in abeyance. Objections, if any, within notice period.” Whereas respondent No. 2 filed his reply, respondent No. 1 chose not to file any return. His right to do so was closed vide order dated 25.7.2011. While admitting the petition to hearing, fresh notices were issued to the respondents for counter-affidavits. On 29.08.2011, Mr. Magray, learned Sr. Additional Advocate General, appearing for the respondents, made a statement at Bar that the reply filed at the pre-admission stage by respondent No. 1 (should read as respondent No. 2) be treated as counter on behalf of the said respondent. It was, accordingly, so ordered. Despite opportunities given, respondent No. 1 failed to file his counter. Consequently, his right to do so was closed on 29.03.2012. It may be apt to mention here that on 03.07.2012, when the case was finally heard, Mr. Magray, learned Sr. AAG, produced duly attested photocopies of certain records, reference to which will be made at the appropriate place in this judgment. 6. Consequently, his right to do so was closed on 29.03.2012. It may be apt to mention here that on 03.07.2012, when the case was finally heard, Mr. Magray, learned Sr. AAG, produced duly attested photocopies of certain records, reference to which will be made at the appropriate place in this judgment. 6. The reply filed at the pre-admission stage on behalf of respondent No. 2, i.e., the Commission, only states the facts which have already been narrated in the opening paragraphs of this judgment. The specific submissions made in the petition and reproduced hereinabove have remained unrebutted and have not been adverted to in the reply. Therefore, there is a legal inference available to the Court that the same are admitted as true and correct. 7. To put the nut into the shell, the defence taken by the respondents is that Shri Rakesh Kumar, who figured at serial No. 2 in the original Select List as having been selected against the vacancy of Lecturer in Medicine in Government Medical College, Jammu, pursuant to Notification no. 14-PSC dated 17.07.2009, had not actually applied for that post, but had applied for the vacancy in Government Medical College, Srinagar. Therefore, his selection against the vacancy in Government Medical College, Jammu was a mistake. Similarly, the petitioner had not applied for the vacancy in Government Medical College, Jammu; therefore, on readjustment of Rakesh Kumar Koul, petitioner did not fall within the selection zone. 8. The moot questions, thus, involved in the petition are firstly “whether it is within the competence of the Commission to bifurcate the selection of candidates, irrespective of the merit obtained by them in the selection process, on the basis of the place of vacancy” and second, “whether it is competent for the Commission to disintegrate the single Service into two carders based on the location of the vacancy”. 9. Before adverting to the aforesaid questions, it becomes imperative to know and determine that if such a course is adopted or allowed to be adopted by the Commission, what would be its implication(s). There is no denying the fact that all gazetted posts are borne on the state cadre of the State. The holders of the posts borne on the state cadre are inter-transferable, unaffected by the division of the State’s political/administrative set up into two divisions, namely, the Kashmir Division and the Jammu Division. There is no denying the fact that all gazetted posts are borne on the state cadre of the State. The holders of the posts borne on the state cadre are inter-transferable, unaffected by the division of the State’s political/administrative set up into two divisions, namely, the Kashmir Division and the Jammu Division. Whereas selections and the consequent appointments to the divisional cadre posts has a nexus with the place of occurrence of the vacancy in a particular Division, that does not hold good for the state cadre posts. Admittedly, the posts of lecturers in the Medical Education Department are gazetted posts, borne on the state cadre of the Medical Education Department of the State. Therefore, an action seeking to make the selections against these posts with reference to the place of occurrence of vacancy or with reference to a particular Medical College would tantamount to dividing the posts of lecturers borne on the cadre of Medical Education (Gazetted) Service on the basis of the location of the Medical Colleges and consequently conversion of state cadre posts into divisional cadre posts, which is beyond the jurisdiction and competence of the Commission, besides being antithetic to the scheme of the Rules governing the Service as would be referred to herein below. 10. At this stage, it would be appropriate to refer to the various provisions contained in the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. The ‘Service’ in Rule 2(e) is defined as ‘the Jammu and Kashmir Medical Education (Gazetted) Service. Rule 3 provides for the constitution of service and its classification. It reads thus: “(1) There shall be constituted the Jammu and Kashmir Medical Education (Gazetted) Service with effect from the date of issue of these rules. (2) The service shall comprise the following wings, namely: (i) Teaching; (ii) Administrative; and (iii) General. (3) Each wing of the service shall consist of such posts, classes and categories and such number of them as may be determined by the Government from time to time, that at the commencement of these rules the service shall consist of the posts, classes and categories as specified in Schedule I”. Schedule ‘I’ appended to the Rules specifies the Lecturers as Class V posts and their total number at the commencement of the rules is shown to be 80. 11. Schedule ‘I’ appended to the Rules specifies the Lecturers as Class V posts and their total number at the commencement of the rules is shown to be 80. 11. A bare perusal of the aforesaid Rule(s) thus clearly demonstrates that the posts of Lecturer constitute one single class and category of posts. The Rule(s) do not envisage or contemplate further classification or categorization of these posts on any count or basis, whatsoever, muchless on the basis of place of occurrence of a vacancy. Further, recruitment to the Service is prescribed in Rule 5 of the Rules. It provides as under: “Appointment to the service shall be made– (a) by direct recruitment; or (b) by promotion by selection; in the manner as indicated against each post in Schedule III.” Schedule III appended to the Rules prescribes the method of recruitment for the post of Lecturer ‘by direct recruitment’. Thus, there is nothing in the Rules as would authorize any authority or the Government to make selection or appointments against any post borne on any cadre of the service on the basis of place of occurrence of a vacancy. The Administrative Department being one, the Service being one, the class of posts being one, it is not competent and permissible to sub-classify the posts borne on the service on the basis of their availability in two different Medical Colleges under the Administrative Control of one and the same department, governed by one and the same set of Rules and forming one single integrated service. It might be that the Administrative Department concerned has in its referral letter(s) to the Commission shown the place of existence of vacancies for its own administrative convenience, that will not authorize the Commission to devise a method to bifurcate or disintegrate the Service for the purpose of making selections, more so throwing the merit of a candidate, like the petitioner, to winds. 12. Irrespective of the clarity of the Rules as discussed above, even if one could assume that the Commission could lay a condition that a candidate has necessarily to opt for the vacancy in his application form itself, then such a condition ought to have been laid down and prescribed in the Notifications whereby applications for the posts in question were invited from eligible candidates. There is not even a whisper made by the Commission in any of the two Notifications about such a condition, muchless an express one. That being so, it was not permissible for the Commission to resort to a methodology not envisaged, contemplated, prescribed, or indicated to the candidates, either in the Rules or in the Advertisement notices. The petitioner is, therefore, right in claiming that he has been grossly prejudiced in the matter of selection to the post. 13. The records produced by the learned Senior Additional Advocate General comprise the merit lists/award rolls of candidates prepared by the Commission separately with respect to each of the Notifications whereby applications had been invited; the original minutes styled as ‘selection for the post of B-Grade Specialist and Lecturer (Medicine) in Health and Medical Education Department’; and another document styled as ‘selection for the posts of Lecturer Medicine – Review of Select List’. 14. The Merit List in Open Merit Category for “Lecturer Medicine in Health and Medical Education Department, Notification No. 13-PSC of 2008 dated 31.12.2008 (L-13)’ reveals the following position of the first three selectees in so far as their total points/marks awarded to them are concerned: Rakesh Kumar Koul: … 75.50 Tajamul Hussain Mir: … 75.50 Bashir Ahmad Naikoo: … 75.25 Similarly, the Merit List in Open Merit Category for “Lecturer Medicine in Health and Medical Education Department, Notification No. 14-PSC of 2009 dated 17.07.2009 (L-14)’ reveals the following position with respect to first seven candidates in so far as their total points/marks awarded to them are concerned: Vijant Singh Chandail: … 77.00 Rakesh Kumar Koul: … 76.00 Tajamul Hussain Mir: … 75.50 Bashir Ahmad Naikoo: … 75.25 Mohammad Hayat Bhat: … 74.00 Khalid Mohi-ud-din Mir: … 73.00 Sanjeev Bhat: … 72.75 Before proceeding further, it may be apt to mention here that in all 4 posts of Lecturers in Medicine under the Open Merit Category had been advertised vide the two Notifications by the Commission. Going by the merit position obtained by the competing candidates, as referred to above, the candidates would fall in the following line: Vijant Singh Chandail: … 77.00 Rakesh Kumar Koul: … 75.50 Tajamul Hussain Mir: … 75.50 Bashir Ahmad Naikoo: … 75.25 Mohammad Hayat Bhat: … 74.00 Khalid Mohi-ud-din Mir: … 73.00 Sanjeev Bhat: … 72.75 Consequently, Bashir Ahmad Naikoo, the petitioner, having obtained 4th position on the basis of merit, would fall as the fourth candidate and he would, therefore, be entitled to selection against the 4th vacancy. That, of course, was done by the Commission vide its Select List dated 26.11.2009 published both in print and electronic media, including on its own website. There is also nothing on record to show that the Select List was not sent to the Government simultaneous with its publication by the Commission. By the impugned corrigendum the above position based and obtaining on the merit of each candidate, has altogether been changed and the petitioner, having secured 75.25 marks/points, has been shown exit from the select list. Instead, one Sanjeev Bhat, who in the aforesaid merit list is shown to have obtained only 72.75 points/marks in the selection process, which is far below the petitioner’s merit position, has been sought to be brought on the select list. This cannot, but be termed only a clandestine machination to convert merit into demerit and, therefore, is unsustainable in law. 15. Lastly, reference also needs to be made to the Government order No. 123-HME of 2006 dated 03.03.2006, which seems to have been relied upon by the Commission while bifurcating the service and the selections into two cadres, namely, Government Medical College, Jammu and Government Medical College, Srinagar. It is useful to reproduce the Government order aforementioned, which reads as under: “It is hereby ordered: i/that the seniority of Members of J&K Medical Education (Gazetted) Service shall be regulated/maintained separately in respect of Government Medical College, Srinagar and Government Medical College, Jammu under the provisions of J&K Civil Service ( Classification, Control and Appeal) Rules 1956, after giving every faculty member free option to choose either of the two colleges; ii/…. By order of the Government of Jammu and Kashmir.” The order relates to only members of service, not the persons who offer their candidature for selection and appointment against the posts borne on the service. By order of the Government of Jammu and Kashmir.” The order relates to only members of service, not the persons who offer their candidature for selection and appointment against the posts borne on the service. Assignment of candidates to the two Medical Colleges is the function of the Government after they are appointed and, that too, on obtaining option from the concerned members of the service. The Commission cannot usurp such a power to itself that too, before a person becomes a member of the service. It would be advantageous to reproduce Rule 4 of the Rules hereunder which defines the Members of the service. It reads thus: “The members of the service shall be such persons as are appointed to the service under these rules; Provided that the members of the service under the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1974, in force immediately before the commencement of these rules, shall be deemed to have been appointed to the corresponding posts, in the service, specified in Schedule II.” A bare reading of the aforesaid provision of the Rules, thus, makes it abundantly clear that the phrase ‘members of the service’, as envisaged in the aforesaid Government order, does not relate to the candidates, but only to those who are appointed to the service pursuant to the Rules of 1979 or those who had been appointed to the service pursuant to the repealed rules. 16. For all what has been discussed above, the questions involved and raised hereinabove have to be answered in the negative and it is so held. 17. Now the question that falls for consideration is what relief can be granted at this stage to the petitioner. His specific prayer is that the corrigendum may be quashed and the original Select List restored. He has also prayed for any other writ, direction or order, as may be deemed fit in the facts and circumstances of the case. As noticed in this judgment above, a Co-ordinate Bench of this Court, while issuing notice to the respondents had ordered that ‘the operation of the corrigendum to the notice dated 26.11.2009, to the extent it relates to the petitioner, shall remain in abeyance’. This order was made subject to objections of the other side. Till the date of final hearing of this petition, the respondents have chosen not to file any objections. This order was made subject to objections of the other side. Till the date of final hearing of this petition, the respondents have chosen not to file any objections. They have also not filed any application for alteration, amendment or vacation of the order. Therefore, the inference is that they have tacitly accepted and abided by the interim direction. 18. In view of the above, in allowance of this writ petition, the corrigendum issued by the J&K Public Service Commission, impugned in this petition, deserves to be quashed and is, hereby so quashed. The petitioner shall, accordingly, be entitled to be considered for appointment on the post on the analogy of similarly placed candidates selected in the same process. It is for the Government to make the consequential adjustments of the appointees. Should the Government face any difficulty in making such consequential adjustments of the appointees, or feel that such adjustments would cause any kind of disturbance in the service, it is provided that the Government would be within its powers to create a supernumerary post to mitigate any such difficulty or disturbance in the service. If such a course is adopted, the supernumerary post shall subsist only till such time a regular vacancy becomes available. It least needs a mention here that the petitioner, in law, would be entitled to notional seniority from the date persons similarly situated were appointed as Lecturers pursuant to the selections in question. 19. No order as to costs.