JUDGMENT 1. In the instant petition, petitioner is seeking quashment of Govt. Order No. 383-HME of 2015, dated 07.09.2015 issued by respondent no. 2 to the extent it relates to the posting of respondent no. 4, as Incharge, Medical Superintendent, Bone and Joint Hospital, Srinagar, with further direction to allow the petitioner to function as Incharge Medical Superintendent, Bone and Joint Hospital, Srinagar, till the regular appointment is made by the official respondents for the post of Deputy Medical Superintendent or Medical Superintendent in accordance with law and rules. Brief facts: 2. Petitioner claims to be substantatively holding the post of Assistant Surgeon in J&K Health and Family Welfare (Gazetted) Service and possesses Master's Degree in Hospital Administration. 3. It is submitted that petitioner while working as Assistant Surgeon in SMHS, Hospital, Srinagar, was made Incharge Deputy Medical Superintendent of the Hospital, by Principal/Dean Govt. Medical College, Srinagar in terms of Order No. 370 of 2010, dated 31.05.2010. 4. It is submitted that in terms of Government Order No. 563-HME of 2012, dated 18.09.2012, petitioner has been transferred and posted as Incharge Dy. Medical Superintendent, Psychiatric Hospital, Srinagar, with the condition that the arrangement is made purely on stop-gap basis and shall not confer any preferential right on the doctors for promotion, which shall be made strictly in accordance with rules. 5. It is further submitted that petitioner while working as Incharge, Deputy Medical Superintendent in Govt. Psychiatric Hospital, Srinagar, was placed as Incharge Medical Superintendent of Psychiatric Disease Hospital Srinagar in addition to his own duties and responsibilities, relieving Dr. Mushtaq Ahmad, Medical Superintendent Lalla Ded, Hospital from the additional charge of Medical Superintendent Psy. Diseases Hospital, Srinagar in terms of order dated 05.10.2012 issued by Principal/Dean Government Medical College, Srinagar. 6. Petitioner's tenure as Incharge, Deputy Medical Superintendent, in Government Medical College Srinagar and its Associated Hospitals has been extended for a further period of six months from the date of expiry of previous term or till the pots are filled up through regular mode whichever is earlier with the stipulation that the arrangement is made purely on stop-gap basis and shall not confer any preferential right on the doctors for promotion, which shall be made strictly in accordance with the rules of J&K Medical Education (Gazetted) Services Recruitment Rules, 1979. 7. 7. Petitioner in terms of Order No. AH/MC/Est-Ist/09/12, dated 17.12.2013 has been made as Incharge, Medical Superintendent, Bone and Joint, Hospital Barzulla, in addition to his own duties by Principal/Dean Govt. Medical College Srinagar. In terms of Govt. Order No. 383-HME of 2015, dated 07.09.2015 impugned in the writ petition, respondent no. 4, Associate Professor, Govt. Medical College Srinagar has been posted as Incharge, Medical Superintendent Bone and Joint Hospital, Srinagar. The Petitioner has questioned the impugned order on the following grounds: "(i) That the respondent no. 4 is not qualified/eligible to be posted as Incharge Medical Superintendent B&J Hospital Srinagar, the petitioner in this behalf has made reference to the J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. The relevant portion is extracted as under: 29Administration of Colleges and Hospitals (a) Medical Supdt. Of Teaching Hospitals(i) Same as given for item (i) against S. No. 27 above; andAt least five years experience as Dy. Medical Superintendent. (ii) Post-graduate qualification in Surgery/Gynecology/or medicine and other clinical subjects/ Hospital Administration. (b) Deputy Medical Superintendent of Teaching HospitalsdoThree years working experience of running a Hospital after post-graduation. (ii) That as per Rule position it is submitted that the respondent no. 4 should be Post-Graduate in Surgery, Gynae or medicine and other clinical subjects/hospital administration and should have an experience as Dy. Medical Superintendent for five years. It is submitted that a doctor can be made Incharge or considered for the post of Dy. Medical Superintendent on teaching experience, provided, he had same qualification as mentioned hereinabove, but in addition to the qualification, a person should have three years working experience of running a hospital after Post Graduation. It is submitted that the respondent no. 4 has no experience so cannot be considered for appointment to the post of Dy. Medical Superintendent as such cannot be and could not have been made I/C Medical Superintendent Bone & Joint Hospital. (iii) That the petitioner has been working as I/C Dy. Medical Superintendent since 05.10.2012. The qualification of the petitioner is that he is Post Graduate in Hospital Administration, as such has a right to continue as I/C Medical Superintendent. It is submitted that in terms of Government order dated 07.09.2015, the petitioner has to continue till the regular appointment is made as one adhoc arrangement cannot be replaced by another, which is not permitted under law. It is submitted that in terms of Government order dated 07.09.2015, the petitioner has to continue till the regular appointment is made as one adhoc arrangement cannot be replaced by another, which is not permitted under law. (iv) That in view of the law laid down by the Hon'ble Supreme Court, one adhoc arrangement cannot be replaced by another adhoc arrangement, it is submitted that the petitioner cannot be replaced by respondent no. 4, the petitioner has been working as I/C Deputy Medical Superintendent since 31.05.2010 and as Incharge Medical Superintendent since 05.10.2012 in addition to his own duties as Dy. Medical Superintendent." 8. On notice respondent State appeared and filed reply resisted the claim of the petitioner on the ground that the petitioner cannot claim continuation on the post of Incharge Medical Superintendent, which is a gazetted post needs to be filled up in accordance with the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. Therefore, seeks dismissal of the writ petition. 9. Respondent No. 4 also appeared and submitted his reply. The relevant paragraphs are extracted as under: "(i) It is submitted that the Government Order No. 383-HME of 2015, dated 7.9.2015 made/issued by the respondent no. 1 under the exigencies of service, in the interest of patient care, posting the answering respondent no. 4 in reliance of his past performance in the year 2011, as Incharge Medical Superintendent, Govt. Bone and Joint Hospital, Srinagar, does not, in any manner whatsoever, infringe, infract or abridge legal position obtaining qua supplying a vacancy of Medical Superintendent in Associated Hospitals under the Recruitment Rules governing the Service, said to infringe, infract or abridge any of the legal, constitutional or fundamental rights of the petitioner capable of being enforced through judicial apparatus. (ii) In reply to averments made in para-2 of the writ petition, it is respectfully submitted that on the own showing of the petitioner he is the incumbent of the Post of Assistant Surgeon and not Deputy Medical Superintendent, the feeder post of promotion to the post of Medical Superintendent. A-fortiori, has in law no cause or reason to feel aggrieved of Government Order No. 383-HME of 2015, dated 7.9.2015, posting on Incharge Basis the petitioner as Medical Superintendent, Bone and Joint Surgery Hospital, Barzalla, Srinagar." 10. Heard learned counsel for the parties, considered the matter, and perused the record. 11. Mr. Z.A Qureshi, learned Sr. A-fortiori, has in law no cause or reason to feel aggrieved of Government Order No. 383-HME of 2015, dated 7.9.2015, posting on Incharge Basis the petitioner as Medical Superintendent, Bone and Joint Surgery Hospital, Barzalla, Srinagar." 10. Heard learned counsel for the parties, considered the matter, and perused the record. 11. Mr. Z.A Qureshi, learned Sr. Counsel for the petitioner submits that the petitioner is eligible for the post of Medical Superintendant with reference to the eligibility as prescribed by the J&K Medical Education (Gazetted) Recruitment Rules, 1979. 12. Mr. Qureshi, learned senior counsel further submits that petitioner besides being MD in Hospital Administration has also more than five years experience as I/C Dy. Medical Superintendent, therefore, the order impugned depriving him to hold the post of Medical Superintendent is arbitrary, uncalled for and violative of Articles 14 and 16 of the Constitution. 13. Mr. Qureshi, learned senior counsel further submits that the State has no authority to make posting of respondent no. 4 as Incharge Medical Superintendent, who is substantively holding the post of Associate Professor and not possessed of Degree/qualification/eligibility with reference to experience as Medical Superintendent, therefore, the order impugned is non-est in the eyes of law. 14. Mr. Qureshi, learned senior counsel submits that the official respondents by no stretch of imagination can put the respondent no. 4 as Incharge Medical Superintendent, unless the experience part is relaxed after reference to Medical Council of India as required in terms of The Medical Council of India Regulations, 2000. 15. Mr. Sajad Ahmad Id Dy. AG submits that since the petitioner is not eligible for holding the post of Medical Superintendent, therefore, there is no grant of relief seeking quashment of the arrangement made by respondents in exercise of its executive powers. It is submitted at present out of sanctioned strength of 8 posts of Medical Superintendents 5 are held by the consultant/doctors on incharge basis in addition to their own duties and two posts are held by the incumbent on substantive basis while as one post is vacant. The details of the posts and the vacancies are as under: S.No.Name of OfficerPresent Place of postingWorking on substantive/deputation/ academic arrangement basisQualification/ experience of the Officer 1.Dr. Nazir Hussain ChoudharySHMS HospitalSubstantive basisMBBS, MD (HA) 2.Dr. Mushtaq Ahmad RatherL.D HospitalSubstantive basisMBBS, MD (Pediatrics) 3.Dr. Mohd. The details of the posts and the vacancies are as under: S.No.Name of OfficerPresent Place of postingWorking on substantive/deputation/ academic arrangement basisQualification/ experience of the Officer 1.Dr. Nazir Hussain ChoudharySHMS HospitalSubstantive basisMBBS, MD (HA) 2.Dr. Mushtaq Ahmad RatherL.D HospitalSubstantive basisMBBS, MD (Pediatrics) 3.Dr. Mohd. MaqboolPsychiatric Disease HospitalPrincipal GMC Srinagar has assigned the temporary charge of Medical Superintendent to HOD Psychiatric Diseases in addition to his own duties 4.Dr. Navid NazirC.D HospitalPrincipal GMC Srinagar has assigned the temporary charge of Medical Superintendent to HOD Chest Medicine in addition to this duties. 5. Dr. Shafqat KhanG.B Panth HospitalInter Cadre deputation basis vide G.O. No. 274- HME of 2015, dated 21.07.2015MBBS, MHA PG Diploma in Medico Legal systems 6.Dr. Shabir Ahmad DarBone and Joint HospitalThe Doctors is basically Assistant Surgeon posted as Dy. Medical Superintendent on stopgap arrangement basis for a period of six months or till the posts are filled up through regular mode whichever is earlier vide G.O No. 563-HME of 2012, dated 18.09.2012. The period was further extended for six months from the date of expiry of previous term vide G.O No.336-HME of 2013, dated 27.05.2013. Further the doctor is presently holding the additional charge of of I/C Medical Superintendent on the orders of Principal GMC, Srinagar.MBBS, MD (HA) 7. Medical Superintendent (Director) Chitranjan Mobile SrinagarThe post has presently utilized for the post of MD J&K Medical supplies Corporation 8.Dr. Jahangir BakshiK.N Home Gupkar SrinagarThe doctor is basically Medical Officer of Health Department working on deputation basis for two year vide G.O. No. 388-HME of 2014, dated 01. 07.2014MBBS, MD (Radiology) 16. In the reply, it is also mentioned that respondent no. 4 Ab. Rashid Budoo, Associate Professor Department of Orthopedics Bone & Joint Hospital Burzella, Srinagar, because of the interim order passed in the instant petition has not been allowed to continue. 17. It is submitted that the respondent no. 4 is also substantively holding the post in the same service, therefore, on the basis of his past service and experience and qualifications he has been posted as Incharge Medical Superintendent against which post the petitioner has no right in law. 18. Mr. R.A Jan, Id senior counsel appearing on behalf of respondent no.4 stated that the petitioner has no locus standi with reference to making incharge Medical Superintendent. Mr. Jan further submits that the respondent no. 18. Mr. R.A Jan, Id senior counsel appearing on behalf of respondent no.4 stated that the petitioner has no locus standi with reference to making incharge Medical Superintendent. Mr. Jan further submits that the respondent no. 4 is admittedly a member of J&K Medical Education (Gazetted) Service Recruitment Rules, 1979 and the petitioner is born on J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006, therefore, has no right to claim appointment/posting against the post of Medical Superintendent against which post, he has no right to claim consideration. 19. Contention of Mr. Z.A Qureshi, Id counsel for the petitioner with reference to claim of petitioner for the post of incharge Medical Superintend-ant has no substance as admittedly petitioner is not entitled for the post which is a promotional post to be filled up from the category of Dy. Medical Superintendent born on J&K Medical Education (Gazetted) Service Recruitment Rules, 1979. It is also a fact that the petitioner is holding the post of Assistant Surgeon born on the service of J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006. Petitioner's removal from the post of Incharge Medical Superintendent B&J Hospital, Burzella, has not caused any prejudice for his rights and there is no violation of any right accrued to the petitioner. There is no cause for maintaining the writ petition for the relief claimed. 20. True it is, that the post of Medical Superintendent is required to be filled up by promotion from Dy. Medical Superintendents having five years experience and the requisite qualification, but the official respondents in their reply have substantiated the ground for making Incharge arrangement of respondent no. 4 and they are in the process of filling up of this post. 21. Respondents are in the process of implementing the judgment passed by this Court in LPA No. 83/2014 titled Dr. Kanwarjeet Singh v. State and Ors. decided on 28.10.2015, whereby the Court while dismissing the appeal and upholding the judgment of the Id Single Bench the Division Bench of this court directed the State to implement the judgment of Id Single Bench dated 04.04.2014 and fill up all the posts of Dy. Medical Superintendents. 22. When asked about the posting of the petitioner, Mr. Sajad Id State counsel, submits that he is holding the post of Dy. Medical Superintendent on Incharge basis. 23. Medical Superintendents. 22. When asked about the posting of the petitioner, Mr. Sajad Id State counsel, submits that he is holding the post of Dy. Medical Superintendent on Incharge basis. 23. Admittedly the petitioner is substantively holding the post of Assistant Surgeon in Heath Department, therefore, his arrangement as Incharge Medical Superintendent made by the Principal/Dean Medical College Srinagar, and its Associated Hospitals, cannot be allowed to continue and no indefeasible right has accrued to petitioner to seek the relief in the nature of writ of mandamus for his continuation. Law on the subject is settled that courts have no power to extend the tenure of appointment beyond the sanctioned period by competent authorities. 24. Respondents are under law required to fill up the post by the method and manner provided under rules. Respondents cannot be allowed to continue with the adhocism which has been deprecated by the Hon'ble Supreme Court in case titled Suraj Prakash Gupta v. State of J&K reported in AIR SC 2000). 25. The Supreme Court in Suraj Prakash Gupta's case reported in (2000) 7 SCC 561 had, among other things, directed the State of Jammu and Kashmir, to appoint a High Level Committee within a month from the date of that judgment to find out in which department the adhoc/stopgap promotes are languishing without their cases being referred to the Service Commission/DPC for regularization within their quota. The Supreme Court had also directed the State of J&K to fill up the vacant posts in the Gazetted cadre in accordance with rules and discontinue the policy of adhocism detrimental to the interests of those who are eligible and are available in the open market. 26. Coming to the exigency of service as stated to be involved in the case in hand, it is true that the posting of Government servant appointed to a particular transferable post from one place to another place is an incidence of service and does not affect or alter his terms and conditions of service. The Government has power to transfer its employees from one post to another carrying equivalent pay scale and grade. 27. In the present case in view of the exigency of service Government has to exercise its power in a bona fide manner to meet the exigencies of the administration, Refer to E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ). 28. 27. In the present case in view of the exigency of service Government has to exercise its power in a bona fide manner to meet the exigencies of the administration, Refer to E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ). 28. Violation of right is a Sine qua non for grant of Mandamus. Mandamus may be issued to compel the authorities to do something. It must be shown that the statute imposes a legal duty and the aggrieved party have a legal right under the Statute to enforce its performance. Petitioner has failed to establish his right with reference to his claim, therefore, on that count also, the writ petition has no merit and deserves to be dismissed. 29. In the given circumstances, the writ petition with reference challenge to Government Order No. 383-HME of 2015, dated 07.09.2015 is dismissed. Interim direction, if any, subsisting shall stand vacated. 30. Petitioner shall be allowed to continue as Incharge Deputy Medical Superintendent as he was before assigning him the charge of Incharge Medical Superintendent B&J Hospital, Burzella till the post is filled up on regular basis. 31. No order as to costs. Petition dismissed