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2012 DIGILAW 714 (JK)

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

2012-11-16

MANSOOR AHMAD MIR

body2012
1. The crux of the claim put forth by the petitioner in this writ petition may be summarized 2. It is stated by the petitioner that, having been appointed as Assistant Surgeon in the year 1990 and, thereafter, as B-Grade Specialist in Surgery in the year 1997, he was eligible to be appointed as A-Grade Specialist in the year 2002 after putting in five years' service as B-Grade Specialist, but he was not appointed as A-Grade Specialist despite he having made representations in that behalf. Even so, the petitioner imagines himself to be so appointed in 2002. Counting his imaginary experience as an A-Grade specialist since 2002, he proceeds to claim to be eligible for appointment as Director, Health Services Kashmir. He is aggrieved of the placement of respondent No. 3 as Incharge, Director Health Services, Kashmir. 3. According to the petitioner, respondent No. 3, possessing a Bachelor's Degree in Medicine, was initially appointed as Assistant Surgeon and, thereafter, on the recommendations of the Public Service Commission, as Assistant Director, Family Welfare, Srinagar on 02.04.2009. It is further his case that respondent No. 3 filed a writ petition, SWP No. 1983/2009, wherein the Court passed an interim order dated 24.12.2009 directing the respondents to consider his case for promotion to the post of Deputy Director, if eligible, as per rules. Pursuant to the interim direction, respondents considered his case and appointed him as Deputy Director vide Government order No. 409-HME of 2010 dated 05.08.2010. He further goes on to state that respondent No. 3 filed yet another petition SWP No. 1539/2010, challenging the ad hoc and stop-gap arrangement made on the post of Director, Health Services, Jammu and Director Family Welfare, J&K, made by the Government. According to his own showing, the said writ petition was allowed by the Court, quashing the orders impugned therein, with direction to the respondents to take immediate steps for filling up the post of Director, Health Services, and Director, Family Welfare on substantive basis in accordance with the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006. Thereafter, according to the petitioner, the Government issued order No. 231-HME of 2011 dated 31.03.2011, whereby respondent No. 3 has been given the charge of the post of the Director, Health Services, Kashmir. 4. Petitioner is aggrieved of the aforesaid orders dated 05.08.2010 and 31.03.2011, whereby respondent no. Thereafter, according to the petitioner, the Government issued order No. 231-HME of 2011 dated 31.03.2011, whereby respondent No. 3 has been given the charge of the post of the Director, Health Services, Kashmir. 4. Petitioner is aggrieved of the aforesaid orders dated 05.08.2010 and 31.03.2011, whereby respondent no. 3 was appointed firstly as Deputy Director, Health Services in 2010 and, thereafter, given the charge of Director, Health Services, Kashmir in 2011. Apart from challenging the said two orders, petitioner has prayed for a direction to the respondents to promote him as A-Grade Specialist with effect from 2002 and, thereafter, to select him as Director, Health Services/Director, Family Welfare, strictly in accordance with the Rules on the strength of his having worked as Senior Resident/Assistant Surgeon/B-Grade Specialist and having two Post-graduate Degrees to his credit. 5. The official respondents have filed their respective replies on affidavits. They have stated that the petitioner lacks the eligibility. Respondents 1 and 2 in paragraph 3 of their reply have stated that working as Senior Resident/Assistant Surgeon/B-Grade Specialist does not count for administrative experience. According to them, the Government vide communication no. HD(Gaz.)Gen-210/67-II dated 02.09.2009, addressed to the J&K Public Service Commission, have made it clear that the term 'administrative experience' is quite clear and unambiguous, meaning that the doctors should have handled the assignments of Administrative nature as distinguished from the clinical/technical experience. As to the claim of the petitioner for appointment as A-Grade Specialist, in paragraph 4 of the reply, it is stated that promotion on the post of A-Grade Specialist depends upon the availability of the post and other allied conditions of recruitment. 6. I have heard learned counsel for the petitioner, Mr. S. R. Hussain; Mr. A. M. Magray, learned Sr. AAG representing respondents 1 & 2; and Mr. Jahangir Iqbal Ganai, learned counsel appearing for respondent No. 3, and have considered the matter. 7. It is curious that the petitioner is himself contradicting his averments, insofar as, on the one hand he imagines himself to be working as A-Grade Specialist since the year 2002, counts the said period towards his administrative experience as such and, at the same time, admits that he was not promoted as A-Grade Specialist despite his numerous representations made in that behalf, and, on the other hand, is seeking a direction to the respondents to promote him as A-Grade Specialist with effect from 2002. In face of such contradictory facts and claims put forward by the petitioner and relied upon by him for the purpose of the reliefs prayed for in the petition, the petition is not maintainable. 8. The petitioner has given the Rule position in paragraph 10 of the petition and so have respondents 1 and 2 given it in paragraph 10 of their reply. Appointment to the post of Director, Health Services/Family Welfare is governed by the J&K Health and Family Welfare (Gazetted) Recruitment Rules of 2006. The method of recruitment to the post is provided by selection from Class II Category "A" and "B" posts. Class II, Category "A" post is shown to be Dy. Director, Health Services, and Class II, Category "B" post is shown to be A-Grade Specialist in 16 of the various disciplines mentioned therein. Petitioner, admittedly, neither holds the post of Deputy Director, nor is he an A-Grade Specialist. Therefore, he is ineligible to be considered for the post of Director. The question that emerges, therefore, is whether the petitioner can legitimately have a justiciable grievance against the appointment of respondent No. 3. as Incharge Director on the ground that he does not possess the requisite experience, especially so when he seeks a writ of certiorari. The answer has to be in the negative. The petitioner himself does not even have the requisite qualification and eligibility to claim the right to be considered for the post. Therefore, he cannot seek a certiorari. 9. On the other hand, the official respondents in paragraph 9 of their reply filed on affidavit have categorically stated that respondent No. 3 is the only doctor having the Administrative Experience since 2003 and is the only doctor in the State Health Cadre who is enjoying a substantive status as Assistant Director on the basis of which he was placed as Deputy Director and, thereafter, asked to look after the post of the Director, Health Services, Kashmir. 10. There is yet another aspect of the matter. The petitioner has questioned the Government order dated 05.08.2010, whereby respondent no. 3, pursuant to a Court direction, was promoted as Deputy Director. The petitioner has neither challenged that Court direction in appropriate proceedings, nor has sought his impleadment in that writ petition to contest the claims of respondent no. 3 put forth in that petition. 11. The petitioner has questioned the Government order dated 05.08.2010, whereby respondent no. 3, pursuant to a Court direction, was promoted as Deputy Director. The petitioner has neither challenged that Court direction in appropriate proceedings, nor has sought his impleadment in that writ petition to contest the claims of respondent no. 3 put forth in that petition. 11. Admittedly, the petitioner herein has filed yet another writ petition, bearing SWP No. 1895/2012, challenging Government order No. 74-HME of 2012 dated 01.02.2012 whereby the Government has accorded sanction to, the adjustment of about 28 B-Grade Doctors as Incharge A-Grade Specialists. It, therefore, becomes axiomatic that the petitioner has not been found eligible for being appointed as A-Grade Specialist even in 2012. His claim for being considered for selection and appointment as Director, is, consequently, rendered ingenuine. 12. Viewed thus, the writ petitioner has failed to carve out a case for admission. It is dismissed in limine along with CMP. The writ record which was called shall be segregated and shall be listed at its own turn.