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J&K High Court · body

2015 DIGILAW 1 (JK)

Reyaz Ahmad Untoo v. State

2015-01-01

DHIRAJ SINGH THAKUR

body2015
1. Petitioner claims to have been appointed as Assistant Professor in Ophthalmology in the Jhelum Valley College of Medical Sciences (JVCMS) in the year 1996. Subsequently, the said Medical College was taken over by Sher-e-Kashmir Institute of Medical Sciences, Soura pursuant to Govt. Order dated 12th of October, 1998. The petitioner claims that upon such a takeover, he was appointed as Assistant Professor and Head of Department, Ophthalmology, SKIMS Medical College and continued as such upto 18.7.2005. Subsequently, he was promoted as Associate Professor and HOD on 19.7.2005 and worked as such upto 29th of October, 2010 when he was appointed as Professor and HOD. 2. In the present petition, the petitioner challenges the Govt. Order bearing No. 118-SKIMS of 2012 dated 6.11.2012 issued by respondent No. 3 i.e., Director, SKIMS. He also seeks a mandamus against the respondents to follow Govt. Order No. 08-SKIMS of 2005 dated 29.1.2005 for filing up the post of Principal, SKIMS Medical College and Hospital, Bemina Srinagar. 3. The impugned order dated 6.11.2012 has been challenged primarily on two grounds: 4. Firstly, that the order dated 6.11.2012 is discriminatory as it prescribes an upper age limit for the post of Principal as 58 years in regard to the faculty of SKIMS Medical College and Hospital, Bemina, Srinagar as against 60 years in respect of faculty of SKIMS, Soura. It is urged that the faculty of SKIMS Medical College has been discriminated as regards the age limit qua the faculty of SKIMS Soura. An apprehension has been expressed that faculty of SKIMS, Soura would be adjusted as Principal thus turning the post of Principal as a post-retirement refuge for the faculty of SKIMS Soura. 5. The second ground on which the order impugned has been challenged is that the essential qualification and experience prescribed for the post of Principal were much higher than the one prescribed for filling up the post of Director, SKIMS and on that ground, it was urged that the same was required to be quashed as arbitrary. 6. As a necessary consequence, the counsel for the petitioner urged that the Government was under an obligation to follow Govt. Order No. 08-SKIMS of 2005 dated 29.1.2005 for purposes of filling up the post of Principal. 7. On a reading of the Govt. Order No. 08 (supra) dated 29.1.2005, it appears that the aforementioned Govt. 6. As a necessary consequence, the counsel for the petitioner urged that the Government was under an obligation to follow Govt. Order No. 08-SKIMS of 2005 dated 29.1.2005 for purposes of filling up the post of Principal. 7. On a reading of the Govt. Order No. 08 (supra) dated 29.1.2005, it appears that the aforementioned Govt. Order was issued after the recommendations of the committee constituted by the governing body of SKIMS in its XXIX meeting held on November 4, 2004 were upheld. One of the decisions taken and reflected in the Govt. Order No. 08 of 2005 was as under: "(iii) The eligibility for promotion of the existing faculty members and appointment of Lecturers at the entry level shall be determined by reference to the Govt. Medical College Rules/Medical Council of India norms". 8. The Jammu and Kashmir, Medical Education (Gazetted) Service Recruitment Rules of 1979, notified vide SRO 517 govern the service conditions of the faculty in the Govt. Medical Colleges at Jammu and Srinagar. According to the said rules, the post of Principal can be filled up from clause (ii) i.e., Professor with a minimum of 10 years teaching experience as Professor/Associate professor in a Medical college out of which at least 5 years should be as Professor in a department. 9. Learned counsel for the petitioner juxtaposed Govt. Order dated 10.5.2010, prescribing the eligibility conditions for appointment as Director of SKIMS, Soura to show that for appointment as Director SKIMS, a candidate was required to possess the following:- (a) teaching and research experience of not less than 10 years and experience of not less than 25 years in the profession; (b) experience of running an important Scientific Medical Education institution as its head or head of department. 10. While drawing out a comparison between the eligibility conditions for appointment as Principal and that of Director in the SKIMS Medical College and that of Director in the SKIMS Soura, learned counsel for the petitioner highlighted that the requirement of possessing 10 years of teaching experience as Professor/Associate Professor in respect of SKIMS faculty out of which at least five years should be spent as Professor in a department was not prescribed for the post of Director, SKIMS Soura and therefore, the conditions of eligibility prescribed for purposes of appointment as Professor were much vigorous than the one prescribed for the post of Director, SKIMS Soura. This, it was urged, has been done for malafide reasons with a view to deprive the petitioner and other faculty members working in SKIMS Medical College of an opportunity to hold the post of Principal. 11. Objections have been filed by the respondents wherein a stand has been taken that earlier the post of Principal of SKIMS Medical College and Hospital, Bemina was filled up from amongst the senior faculty members of SKIMS, Soura from time to time. Reference in this regard has been made to a decision of the governing body of SKIMS and, in particular, one taken in its XXIV meeting. A further stand has been taken that the governing body of SKIMS in its XXIX meeting held on 24.11.2004 constituted a five members committee to examine the modalities of making the SKIMS Medical College and Hospital, Bemina, Srinagar a full-fledged independent entity. However, the Committee after due deliberations came to a conclusion that it was neither viable nor desirable to de-link the SKIMS Medical College, Srinagar from SKIMS, Soura at that stage and therefore, should continue to remain as a constituent/affiliated unit of SKIMS, Soura. 12. It is further stated that a decision was taken that the eligibility for promotion of the existing faculty members and appointment of Lecturers at the entry level of the SKIMS Medical College, Bemina, Srinagar to be determined with reference to Govt. Medical College Rules/Medical Council of India norms. A further stand has been taken that the services of the petitioner are governed by a set of rules formulated by the governing body. It was stated that, in fact, by virtue of Govt. Order dated 6.11.2012, impugned in the present petition, the faculty of SKIMS Medical College has now also an opportunity to compete for appointment against the post of Principal in the Medical College, which post was being filled up till then only from amongst the senior faculty members of SKIMS Soura. 13. Learned counsel for the respondents urged that the conditions of eligibility and qualification prescribed were in line with the Medical Council of India Regulations and the rules as applicable to the post of Principal in the Medical Colleges in the State. 14. 13. Learned counsel for the respondents urged that the conditions of eligibility and qualification prescribed were in line with the Medical Council of India Regulations and the rules as applicable to the post of Principal in the Medical Colleges in the State. 14. As regards the issue of age, learned counsel for respondent No. 3 urged that there was no illegality committed at all by prescribing the age of 60 years for the faculty of SKIMS Soura and 58 years for the faculty of SKIMS Medical College, Srinagar inasmuch as the age of retirement in SKIMS Soura was 60 years and that in SKIMS Medical College was 58 years. 15. On the issue of prescribing higher standards of qualification and eligibility for the post of Principal qua the post of Director, it was stated that since the qualification was strictly in terms of the Medical Council of India Regulations and those applicable to the post of Principal in the State Medical Colleges, no exception could be taken to the said qualification as prescribed for the post of Principal. 16. Heard learned counsel for the parties. 17. The first issue that requires consideration is whether the respondents could prescribe a higher age limit of 60 years in regard to the faculty of SKIMS as against the age of 58 years in respect of the SKIMS Medical College faculty for determining the eligibility as regards age for appointment to the post of Principal and whether the same is arbitrary and thus antithetic to Article 14. 18. It is settled law that Article 14 strikes at arbitrariness and while it prohibits class legislation, it does not forbid reasonable classification. In order to pass the test of permissible classification, two conditions must be fulfilled i.e., the classification must be founded or intelligible differentia, which distinguishes persons or things that are grouped together from those that are left out of the groups and (ii) that the differentia must have a rational nexus to the objects sought to be achieved. 19. Nothing much has been stated in the reply filed by the respondents except the fact that the age of retirement in SKIMS Soura was 60 years and in the SKIMS Medical College as 58 years. 19. Nothing much has been stated in the reply filed by the respondents except the fact that the age of retirement in SKIMS Soura was 60 years and in the SKIMS Medical College as 58 years. While prescribing the age of eligibility for the post of Principal, however, it was urged by the counsel for the respondents that by prescribing the age of 60 years as on 1st of January of the year in which the applications are called the zone of consideration would not be restricted and that professors with better exposure and experience would also be considered. Admittedly, the employer can always decide to fill up a post from sources more than one. In this case, the faculty of both SKIMS Medical Colleges and SKIMS Soura would be eligible for the posts of principal. Admittedly, the age of retirement of faculty in SKIMS Medical Colleges is 58 years in SKIMS Soura it is 60 years. 20. To make eligible the prescribed faculty upto the age of 58 years and 60 years respectively for SKIMS, Medical College and SKIMS Soura as on the first of January of the calendar year in which the applications are invited for selection does qualify the test of `intelligible differentia'. In fact, if the upper age limit in the case of Faculty of SKIMS, Soura, were to be limited to 58 years as is asserted by the petitioner, it would be difficult for the respondents to justify the exclusion of faculty for such a consideration, who would have crossed the age of 58 years but were to continue working in SKIMS, Soura upto 60 years. 21. The object that the official respondents achieve prescribing this eligibility condition is clear and obvious. Admittedly, Sher-e-Kashmir Institute of Medical Sciences (SKIMS) Soura is one of the finest medical institutes in the State of Jammu and Kashmir at par with similar institutes like AIIMS Delhi. The faculty working in the institute is also one of the finest, who have further been exposed to working in other premium medical institutes in the country. To make eligible the members of the faculty from such an institute for appointment as Principal would, in fact, be beneficial for the functioning of the SKIMS Medical College. 22. Thus, the argument that the classification is antithetic to Article 14 is without any legal basis and is, therefore, rejected. 23. To make eligible the members of the faculty from such an institute for appointment as Principal would, in fact, be beneficial for the functioning of the SKIMS Medical College. 22. Thus, the argument that the classification is antithetic to Article 14 is without any legal basis and is, therefore, rejected. 23. The apprehension of the petitioner that by permitting recruitment from SKIMS Soura, the petitioner would be subjected to discrimination is an apprehension without any basis. Even when the faculty of SKIMS Soura has been made eligible upto 60 years, it does not necessarily imply that a member from the faculty of SKIMS Medical College would stand no chance of appointment, which has to follow a proper mode of selection. The petitioner has only a right of consideration for promotion, which is available, if he otherwise fulfils the requirements of eligibility as prescribed. The argument that the petitioner would be discriminated against is clearly premature especially when it is admitted that the petitioner is not even possessed of the requisite minimum experience as prescribed for the post of Principal. 24. The other ground urged was that the conditions of eligibility including qualification and experience were much rigorous than those prescribed for the Post of Director. However, it is not denied that the same were in consonance with the MCI regulations as also in line with the prescribed qualification and experience prescribed by the Jammu and Kashmir, Medical Education (Gazetted) Service Recruitment Rules, 1979. According to the said rules, the minimum teaching experience prescribed is as under:- Designation Minimum Qualification Experience. Principal/Dean The same qualification as prescribed for a Professor/Head of the teaching department. A minimum of 10 years teaching experience as Professor, Associate Professor in a medical college out of which at least 5 years should be as a Professor in a Department. 25. Since the teaching experience prescribed is in line with the rules, the challenge to the same cannot succeed only on the ground that it is more rigorous than the one prescribed for the post of Director, SKIMS. 26. Needless to say that the respondents have prescribed the same criteria as they were statutorily required to fix as per the Medical Council of India regulations and as were applicable to other medical colleges in the state. 27. 26. Needless to say that the respondents have prescribed the same criteria as they were statutorily required to fix as per the Medical Council of India regulations and as were applicable to other medical colleges in the state. 27. Relief has been claimed by the petitioner also for the issuance of a Writ of Mandamus, directing the respondents to follow Govt. Order No. 08 SKIMS of 2005 dated 29.1.2005. 28. The reason for making such a prayer was explained by the learned counsel for the petitioner to the effect that if the rules as are applicable to the Govt. Medical College are applied, then the post of Principal could only be filled up by promotion and not by selection. To test this argument, it is necessary to reproduce the relevant rule 7 of the Medical Education (Gazetted) Service Recruitment Rules, 1979. "7. Eligibility: (i) A person shall not be eligible for recruitment/promotion to a post in the service unless he possess the qualification and fulfils the requirements of recruitment prescribed for the post in schedule-II. 29. A reference to Schedule II would make it clear that for the post of Principal, it prescribes the minimum qualification and teaching/research experience. In fact, Schedule III to the 1979 rules prescribes the method of recruitment and envisages promotion to the post of Principal from that of Class II Professors. What the decision i.e Govt. Order No. 08-SKIMS of 2005 dated 29.1.2005 aimed at was only to ensure that insofar as the faculty of SKIMS Medical College is concerned the same eligibility conditions would be followed as prescribed by the Govt. Medical College rules/Medical Council of India norms. It did not at all confine the source of recruitment for the post of Principal to a particular Medical college as was sought to be urged in the present case. 30. Be that as it may, the petition is found to be without merit and is accordingly dismissed. SWP Nos. 1449/2013, CMA No. 3681/2013 & SWP No. 2549/2013, CMA No. 4150/2013 Contempt No. 743/2013, CMA No. 4000/2013 Contempt No. 97/2013 31. The genesis of all these petitions lies in an interim order dated 3.1.2013 passed in SWP No. 33 of 2013, which reads as under: "As against the recruitment rules, 2012 issued vide Govt. SWP Nos. 1449/2013, CMA No. 3681/2013 & SWP No. 2549/2013, CMA No. 4150/2013 Contempt No. 743/2013, CMA No. 4000/2013 Contempt No. 97/2013 31. The genesis of all these petitions lies in an interim order dated 3.1.2013 passed in SWP No. 33 of 2013, which reads as under: "As against the recruitment rules, 2012 issued vide Govt. Order No. 118-SKIMS of 2012 dated 6.11.2012, petitioner has twice represented before the authorities concerned as against the various conditions incorporated in the said rules, but no decision so far has been taken. Respondents shall accord consideration to the representations as filed by the petitioner, dependent on decision thereof, advertisement notice for filling up the post of Principal, SKIMS Medical College/Hospital Bemina Srinagar, if contemplated, shall be issued." 32. Contempt No. 97 of 2013 was filed for the alleged disobedience of the aforementioned order dated 3.1.2013. 33. Orders dated 11.2.2013 and 8.7.2013, purporting to be in compliance with the directions given vide order dated 13.3.2013, were challenged in a fresh petition being SWP No. 1449/2013 on the ground that the orders were not in compliance with the letter and spirit of the said order. 34. During the pendency of the aforementioned petition, respondents yet again passed an order dated 9.12.2013, according fresh consideration to the representation of the petitioner in purported compliance to the orders of the court dated 3.1.2013. However, the representation was rejected. This order dated 9.12.2013 has yet again been challenged by the petitioner in SWP No. 2549/2013. 35. Learned counsel for the petitioner urged that the third and final order of consideration dated 9.12.2013 suffered from non-application of mind to the extent that the respondents had failed to redress the grievances of the petitioner as had specifically been raised in his representations. It was urged that the qualification prescribed for the post of Principal, SKIMS Medical College was contrary to the rules and regulations framed by the Medical Council of India. Besides, it was reiterated that the senior faculty members of SKIMS Medical College would be deprived of the chances of getting appointed to the post of Principal. 36. It was urged that the qualification prescribed for the post of Principal, SKIMS Medical College was contrary to the rules and regulations framed by the Medical Council of India. Besides, it was reiterated that the senior faculty members of SKIMS Medical College would be deprived of the chances of getting appointed to the post of Principal. 36. Order dated 9.12.2013 was also questioned in the aforementioned petition on the ground that it was a colourable exercise of power by the respondents with a view to accommodate one or the other candidate from SKIMS Soura or that by providing upper age limit of 60 years for SKIMS Soura, the faculty of SKIMS Soura would have a chance to serve for two more years post the active service of 60 years while depriving the said opportunity to the faculty of SKIMS Medical College, Bemina, Srinagar. 37. During the course of arguments, a number of judgments of the Apex Court were cited by the counsel for the petitioner. The same also find mention in the written submissions filed for and on behalf of the petitioner. Briefly stated, learned counsel for the petitioner relied upon a judgment Food Corporation of India & ors v. Parashotam Das Bansal & ors, (2008) 5 SCC 100 to emphasize the point that the petitioner along with other faculty members had a right of consideration for promotion and that the order dated 6.11.2012 would have the effect of stalling the same. It was, thus, urged that the order dated 6.11.2012 was violative of articles 14 and 16 of the constitution. 38. Reliance was placed on a judgment, J. Ranga Swamy v. Govt. of Andhra Pradesh & ors, AIR 1990 SC 535 , [ (1990) 1 SCC 288 ] to the effect that the petitioner had a legal right to agitate his grievances by filing representation to the rule making authority, who is bound to look into these grievances and redress the same. Reliance was also placed on a judgment, Pratibha Co-operative Housing Society Ltd. & anr v. State of Maharashtra & ors, AIR 1991 SC 1453 and Kalpana Mazumdar v. State of Qrissa, AIR 2002 SC 2826 that courts had the power to interfere with the policy decision in the nature of a Govt. Order dated 6th of November, 2012, which, according to the learned counsel, was not a statutory rule or regulation but a policy decision. Order dated 6th of November, 2012, which, according to the learned counsel, was not a statutory rule or regulation but a policy decision. Interference was urged on the ground that the said policy decision did not qualify the test of Articles 14 and 16. It was also urged that the consideration allegedly accorded by virtue of the order impugned dated 9.12.2013 was legally nonest. 39. Another ground urged was that the petitioner ought to have been given a personal hearing, in the absence whereof, it could not be said that the petitioner had been accorded a proper consideration of the representation thereby reflecting compliance of order passed by this court dated 3.1.2013. Reliance in this regard was placed on a judgment, The Divisional Personnel Officer, Southern Railway and anr v. T.R. Chellappan along with connected appeals, (1976) 3 SCC 190 . 40. The entire controversy in all these petitions have thus originated from an interim order dated 3.1.2013 passed in SWP No. 33/2013. The question that arises is should this court at all go into the issue as to whether the consideration accorded was in accordance with the spirit of the order dated 3.1.2013 when the petition bearing SWP No. 33/2013 has itself been dismissed. The answer is quite obvious. This court having itself gone into the question of the legality of the issues raised by the petitioner in SWP No. 33/2013 in regard to the fixation of the age criteria and the criteria with regard to the fixation of teaching experience prescribed for the post of Principal, there is no need at all for this court now to go into the question as to whether the consideration accorded by virtue of the order dated 9.12.2013 was in the spirit of the order dated 3.1.2013 or not. The issues raised in the present petitions and the judgment thereupon would only be rendered academic in purpose. 41. For the reasons mentioned hereinabove, in view of the fact that the main petition bearing SWP No. 33/2013 already stands dismissed, upholding the criteria as regards age and qualification prescribed for the post of Principal, the present petitions, which arise as a consequence of an interim order passed in the aforementioned petition i.e., SWP No. 33/2013 accordingly do not survive and are consequently dismissed along with connected applications. 42. Interim direction, if any, shall stand vacated. 43. 42. Interim direction, if any, shall stand vacated. 43. Copy of the written submissions filed by learned counsel for the parties shall form part of the court file.