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2013 DIGILAW 582 (JK)

Lawlex Education & Research Trust v. State Of J&K

2013-09-24

ALI MOHAMMAD MAGREY

body2013
1. This petition seeks issuance of writs in the nature of Quo-warranto and Mandamus, declaring respondents 3 and 4 as usurpers of the public offices of the posts of Assistant Professors, Cardiology and Urology, respectively, with direction to the State respondents to remove these two respondents from their respective posts and to fill up the same by promoting the eligible persons strictly in terms of the J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. 2. The petitioner is stated to be a charitable Education and Research Trust having its head office at 56, Mohalla Dalpattian, Tehsil and District Jammu, professedly, established with an object to spread legal education at large and for achieving the said object, infer alia, to establish, maintain, run, develop and improve, extend, grant donations in cash and kind and assist in establishment, maintenance, running and development etc. of institutions, colleges, workshops etc. for the benefit of students as also for the benefit of poor and socially backward classes. As averred in the petition, it is also the object of the Trust to impart legal awareness to the masses so that the respect for rule of law is maintained at all costs. One Sajid Sheikh, through whom this petition has been filed, is stated to be the Settler of the Trust. It is stated that he has been authorized by resolution of other two Trustees to file any suit, complaint, petition or any other legal proceedings before the competent court of law for the furtherance of the aims and objects of the Trust. Photocopies of the Trust Deed and the aforesaid resolution have been placed on record of this petition. 3. The case of the petitioner is that in furtherance of the activities of the Trust and with a view to expanding legal awareness amongst the masses, the petitioner has been visiting various institutions, offices and other centers of learning to keep a constant eye on the manner in which rule of law is respected by those who are enjoined the duty to maintain it. It is stated that a few days back the petitioner happened to visit the Government Medical College, Jammu, where he came to know that in some Super Specialties of the Government Medical College, sonic doctors, who were otherwise not eligible in terms of Rules, were occupying the posts thereby posing danger to the lives of patients admitted in such Super Specialties. It is averred in the petition that respondents 3 and 4 are occupying the posts of Assistant Professors in Cardiology and Urology respectively, despite the fact that both of them are not eligible to hold the posts in terms of the Rules of 1979. Giving details of the initial appointments of the two respondents and their subsequent service particulars and experiences (specific reference to which shall be made later in this judgment at appropriate places), the petitioner claims that the promotion of these respondents, ordered vide Government order no. 181-HME of 2013 dated 14.03.2013 on their respective posts in the Super Specialties, as aforesaid, tantamount to conferment of wrongful benefit upon the said respondents by respondent no. l as, according to the petitioner, they are ineligible under the rules of 1979 to hold such posts and, therefore, are usurpers of the said posts. The petitioner has accordingly, filed this writ petition for the reliefs first above mentioned. 4. Respondents 1 and 2, namely, the Government in the Health and Medical Education Department and the J&K Public Service Commission have not filed any response to the writ petition despite last and final opportunity granted vide order dated 08.08.2013. The private respondents 3 and 4 have however, filed their respective returns. 5. I have heard learned counsel for the parties on admission of this petition and considered the matter. 6. The private, respondents 3 and 4 in their reply, apart from contesting the claim of the petitioner on facts in context of the Rules of 1979, have raised such pleas as reflect upon the intentions of the petitioner underlying the filing of this writ petition, inasmuch as it is contended that this whole exercise has been commenced, and is prodded, by extraneous and mala fide considerations. I will come to the specific averments made in that behalf later. But first, in view of the fact that this petition as a whole is hinged on the plea of the petitioner that the private respondents are ineligible to hold the posts of Assistants Professors in the Super Specialties of Cardiology and Urology, respectively, let this aspect of the matter be first examined. 7. There is no dispute that the private respondents belong to the Jammu and Kashmir Medical Education (Gazetted) Service, and are governed by the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (for short' the Rules). 7. There is no dispute that the private respondents belong to the Jammu and Kashmir Medical Education (Gazetted) Service, and are governed by the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (for short' the Rules). Rule 7 of the Rules prescribes the eligibility criteria for recruitment / promotion to a post in the services. It is extracted hereunder: "(1) A person shall not be eligible for recruitment / promotion to a post in the service unless he possesses the qualification and fulfills the requirements of recruitment prescribed for that post in Schedule II. Provided that the Commission may recommend, for consideration of the Government, the appointment of a person to a post in the service who otherwise not eligible under these rules is, in the opinion of the Commission, possessing exceptional merit as well as professional experience of high order in his specialty, such a case will -be considered by the Government after obtaining the views of the Medical Council of India. (2)...................." The discipline/ subject of Cardiology is shown at serial no. 16 of Schedule II appended to the Rules. It would be advantageous to extract hereunder the contents of the relevant columns and rows of the said Schedule. The same read as under: S.No. Subject Designation of the post Minimum qualification Minimum teaching / research experience 16 Cardiology (a) Professor D. M. (Cardiology) after M.D., Medicine or M. D. Paediatrics or MRCP or an equivalent qualification, Medicine with three Years special training in Cardiology. (b) Associate Professor -do- (c) Assistant Professor -do- As Lecturer in Cardiology for three years in a Medical College or a recognized teaching medical institution such as AIMS, New Delhi, PGI Chandigarh, JIMER, Pondicherry and such other institutions, as are recognized by the Medical Council of India. A bare reading of the relevant provision of the Schedule II appended to the Rules makes it manifest that a person, in order to be eligible for appointment as Assistant Professor in Cardiology, should possess the minimum qualification of D. M.(Cardiology) after M.D., Medicine or M.D. Paediatrics or MRCP or an equivalent qualification, Medicine with three years special training in Cardiology. Further, such a person should also possess the Minimum teaching / research experience as Lecturer in Cardiology for three years in a Medical College or a recognized teaching medical institution such as AIIMS, New Delhi, PGI Chandigarh, JIMER, Pondicherry and such other institutions, as are recognized by the Medical Council of India. 8. As already mentioned above, the case of the petitioner is that respondent no.3 is ineligible to hold the post of Assistant Professor. In this behalf it is submitted that respondent no.3 joined his services as Lecturer in the Specialty of Medicine in Government Medical College, Jammu in pursuance of Government Order no:- 567-HME of 2009 dated 24.12.2009 and worked there till he was appointed as Lecturer in Cardiology in the said Medical College vide Government Order no.710-HME of 2012 dated 4.12.2012. It is further averred that respondent no.3 abandoned his appointment as Lecturer Medicine and joined as Lecturer Cardiology on 4.12.2012. It is contended that appointment of respondent no.3 as Lecturer in Cardiology on 4.12.2012 was a fresh appointment made on the recommendations of the Public Service Commission and was not in continuation of his earlier appointment as Lecturer in Medicine. In nut shell, what is sought to be pleaded is that respondent no.3 was appointed as Lecturer in Cardiology on 4.12.2012, which was a fresh appointment, therefore, he did not have the requisite teaching/research experience as prescribed by the Rules so as to be eligible to be appointed as Assistant Professor, Cardiology. 9. In contra, respondent no.3 in his reply has averred that he has undergone post doctoral course, i.e., D. M. in Cardiology from SKIMS, Soura, Srinagar. After acquiring the said qualification, he was appointed as B-Grade Physician. However, in view of his qualification as D. M. Cardiology, experience and length of service, he was posted in the Department of Cardiology on 16.06.2009. While so posted, he was selected by the Public Service Commission as Lecturer and, on the recommendations of the Commission, he was appointed as Lecturer in the Department of Medicine vide Government order dated 24.12.2009 on which post he joined on the same day. Thereafter, on 04.01.2010 directed to work in the Cardiology Department alongwith one Dr. Sanjeev Bhat to tide over the crises in that Department. Thereafter, on 04.01.2010 directed to work in the Cardiology Department alongwith one Dr. Sanjeev Bhat to tide over the crises in that Department. Ever since, he has been working as Lecturer in the Cardiology Department without any interruption, not only in the interests of public and patient care, but he has been regularly teaching classes as a Lecturer in Cardiology. All these statements are supported by documents. Thereafter, pursuant to an advertisement notice issued in that behalf, he was selected by the Public Service Commission as Lecturer in Cardiology and appointed as such in terms of Government order dated 04.12.2012. It is stated that, thus, counting from 04.01.2010, the date he was directed to perform duties in Cardiology Department as Lecturer on the basis of his qualifications, respondent no.3 by now has more than 3 and a 1/2 years' teaching experience, therefore, he has been properly promoted as Assistant Professor, being eligible for the post. 10. The contention raised by the petitioner is that since upto 04.12.2012, respondent no.3 was working in the Cardiology Department in his capacity, as Lecturer, Medicine and was appointed as Lecturer in Cardiology only on 04.12.2012, his teaching experience for purposes of promotion to the post of Assistant Professor has to be counted only from 04.12.2012 and not prior to that date, and going by the requirement of the Rules, respondent no.3 did not possess the requisite teaching experience. 11. It becomes imperative to have a look at the experience clause of Schedule II and to ascertain the requirement of the rule. Together with the column heading, it reads, "Minimum teaching / research experience as Lecturer in Cardiology for three years in a Medical College or a recognized teaching medical institution such as AIIMS, New Delhi, PGI Chandigarh, JIMER, Pondicherry and such other institutions, as are recognized by the Medical Council of India". The requirement speaks of `teaching experience as Lecturer in Cardiology'. The Rule does not say that the incumbent should have been regularly / substantively appointed as Lecturer in the Department of Cardiology and in that capacity should have acquired the requisite teaching experience of three years; it only says that the incumbent should have been a Lecturer and gained the requisite teaching experience as such Lecturer in the Cardiology Department. Of course, it is not that any Lecturer can work in the Cardiology Department. Of course, it is not that any Lecturer can work in the Cardiology Department. The incumbent must satisfy and fulfill pre-requisites of qualification to be eligible to work as teacher in the Cardiology Department, that is, he must possess the prescribed qualifications of D. M. (Cardiology) after M.D., Medicine or M.D. Paediatrics or MRCP or an equivalent qualification, Medicine with three years special training in Cardiology. In the instant case, respondent no.3 did possess the prescribed qualification of D. M. (Cardiology) after M. D. Medicine. In fact, in the impugned Government order no.181-HME of 2013 dated 14.03.2013, the Government itself has mentioned this fact that the arrangement is made on the basis of experience acquired by the respondent while working in the department of Cardiology prior to present appointment. 12. Learned counsel for respondents has referred to and relied upon the judgment of the Supreme Court in Asim Kumar Bose v. Union of India, AIR 1983 SC 509 , where, in almost similar circumstances, the Supreme Court in paragraph 29 of the judgment has held as under: "It is necessary to emphasize that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as a Specialist in a teaching hospital with the ex-officio designation...". 13. In light of the above, it cannot be said that respondent no.3 did not possess the requisite teaching experience of three years in Cardiology. Resultantly, respondent no.3, being eligible for appointment as Assistant Professor, Cardiology, cannot be said to be usurper of the public post of Assistant Professor. 14. The case of respondent no.4 is no different. It is the petitioner's case that the said respondent was appointed as Lecturer in Surgery vide Government order no.565-HME(GR) of 2008 dated 11.07.2008 and was subsequently appointed as Lecturer in Urology vide Government order no.711-HME of 2012 dated 4.12.2013. Respondent no.4, too, has filed his reply wherein it is stated that during the period from 12.07.2008 to 08.09.2011 he has worked as Urologist in the department and, thereafter, as Assistant Professor with effect from 09.09.2011. Respondent no.4, too, has filed his reply wherein it is stated that during the period from 12.07.2008 to 08.09.2011 he has worked as Urologist in the department and, thereafter, as Assistant Professor with effect from 09.09.2011. To evidence this fact, respondent no.4 has appended a photocopy of teaching experience certificate issued in his favour by the Principal, Government Medical College, Jammu. He was, of course, appointed as a regular Lecturer in the (Super Specialty) Urology in Government Medical College, Jammu vide Government order dated 10.11.2012. 15. The prescribed qualification in terms of item no.24 of Schedule II appended to the Rules is "M. Ch. In Specialty concerned after M. S. / ERCS or an equivalent qualification in Surgery with three years special training the specialty concerned". There is no dispute about respondent no.4 possessing the requisite qualification. His instant appointment on stop gap arrangement is challenged only on the ground that he does not possess the requisite teaching experience, since, according to the petitioner, he has been appointed as Lecturer, Urology only on 4.12.2012. This assertion is belied by the aforesaid Teaching Experience certificate issued by the Principal of the College in favour of respondent no.4, which is not challenged by the petitioner. That being the position, his instant stop gap appointment too cannot be held to be contrary to Rules, neither can he be held to be usurper of the post in question. 16. There is yet another important factor in the case. Both these respondents have been appointed as Assistant Professors m their respective Departments on stop gap arrangement in their own pay and grade for a period of six months only. The order specifically mentions that the appointment is purely on stop-gap arrangement basis and shall not confer any preferential right on these doctors for promotion which shall be made strictly in accordance with J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. In any case, as observed hereinabove, no fault can be found in the appointment of the respondents so as to entitle the petitioner to the relief of issuance of writ of Quo Warranto. It is settled law that Quo Warranto can be issued only when there is infraction of the statutory provisions. No such infraction in the instant case has been made out. 17. It is settled law that Quo Warranto can be issued only when there is infraction of the statutory provisions. No such infraction in the instant case has been made out. 17. Respondents 3 and 4 have made numerous submissions in their respective replies in order to demonstrate that the instant petition has been filed with a mala fide intention and for extraneous considerations. It has been pleaded that the petitioner has not challenged similar other orders issued around the same time, details whereof have been specifically given in the replies. Objection has also been taken to the maintainability of this petition for issue of writ of Quo Warranto and the Mandamus of the nature sought by the petitioner. 18. Since the main ground of ineligibility of respondents 3 and 4 to hold the posts of Assistant Professors in Cardiology and Urology, respectively, taken by the petitioner has been held to be not made out, I deem it unnecessary to deal with the other pleas raised by the learned counsels. However, a few things averred by the petitioner in this petition cannot be lost sight of. It is averred by the petitioner that in furtherance of the activities of the Trust and with a view to expanding legal awareness amongst the masses, the petitioner has been visiting various institutions, offices and other centers of learning to keep a constant eye on the manner in which rule of law is respected by those who are enjoined the duty to maintain it. It is not comprehendible under what authority or law the petitioner is visiting various institutions and offices etc. to act as a watch dog. It is none of the business of the petitioner to act in a manner as is depicted by them in this petition. It seems as if the petitioner has created a parallel system to supervise the functioning in various governmental institutions and departments. It needs to be mentioned here that the documents appended by the petitioner with this petition, which are copies of government orders, have not been obtained by him in due course of law, say under Right to Information Act. A bare perusal of these documents shows that some of these have been photocopied from the concerned Government files. It needs to be mentioned here that the documents appended by the petitioner with this petition, which are copies of government orders, have not been obtained by him in due course of law, say under Right to Information Act. A bare perusal of these documents shows that some of these have been photocopied from the concerned Government files. For instance, Government order dated 04.12.2012, annexure D appended to the petition is shown to have actually been endorsed to HRM Section; and Government order dated 11.07.2008, annexure `E' appended to the petition is shown to have been endorsed to Government Order file. This casts a serious cloud on the bona fides and intentions of the petitioner. The petitioner professes to espouse the public cause of legal awareness, but at the same time has himself not obtained the documents, relied upon by him, in a legal manner. It is not disclosed by the petitioner how he has come in possession of these documents. After all, there is a legal mechanism established by law for obtaining copies of governmental documents. These government orders have not been photocopied from any Government Gazette. I leave it to the discretion of the Government in the Health and Medical Education Department to hold an enquiry, or take such other legal course as may be available, to ascertain how these documents have been photocopied from the Government record files; who is responsible for the same and what action should be taken for such a lapse. Reading between the lines, the contention of the respondents about the mala fides of the petitioner cannot wholly be brushed aside. Law is settled that busybodies, meddlesome interlopers, wayfarers or officious interveners have absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity. 19. This petition is, accordingly, dismissed in limine with costs of Rs. 10,000 alongwith the connected CMA. Costs shall be deposited in Lawyers Welfare Fund within one month from today, failing which Registrar Judicial shall frame Robkar against petitioners for non-compliance of directions of this Court, and list the same as suo-moto contempt petition.