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2016 DIGILAW 305 (JK)

Ifshana v. State of J&K

2016-05-31

JANAK RAJ KOTWAL

body2016
JUDGMENT : Janak Raj Kotwal, J. 1. Petitioners are doctors (Medical Officers) in the Jammu and Kashmir Health and Family Welfare (Gazetted) Service (hereinafter referred to as the Department of Health). They have been appointed at different times. Pursuant to different vacancy notifications, some of them have now been selected for appointment on deputation to the tenure post of Registrar or Demonstrator in the Government Medical College, Srinagar and some have been similarly selected for appointment to the tenure post of Senior Residency in Sher-i-Kashmir Institute of Medical Sciences (SKIMS) Srinagar. The Department of Health, which is their Parent Department, however, has refused to relieve them to enable them to join the said tenure posts. Petitioners have thus approached this Court by the medium of these writ petitions. I have heard learned counsel for the parties and perused the record. 2. Petitioners in general and primarily seek writ of mandamus directing the State through Administrative Secretary, Health and Medical Education Department-Respondents No. 1 and Director, Health Services, Kashmir-Respondent No. 2 to relieve them from their Parent Department to enable them to join as Registrar/Demonstrator/Senior Residency. In SWP Nos. 174/2016, 178/2016 and SWP No. 2348/2015, the petitioners in addition have sought writ of certiorari quashing Circular No. 5-HME of 2015, dated 19.10.2015, whereby Respondent No. 1 has directed all the Heads of the Department of Health not to recommend any case for sending a Doctor/Medical Officer for undergoing Registrar-ship/Demonstrator-ship/Senior Residency etc. and has further provided that no such request shall be entertained till further orders in this regard. In SWP No. 2348/2015, petitioner has in addition sought quashing of Circular No. 6-HME of 2015, dated 19.10.2015, which is akin to Circular No. 5-HME of 2015. 3. Case set up by the petitioners is that they have a right to undergo Registrar-ship/Demonstrator-ship/Senior Residency, which in essence is a practical training given to the doctors working in the field. This provides them the opportunity of getting teaching and research experience and to deal with patients suffering from chronic diseases under the guidance of senior doctors of the faculty of the Medical Colleges. This provides them the opportunity of getting teaching and research experience and to deal with patients suffering from chronic diseases under the guidance of senior doctors of the faculty of the Medical Colleges. It is contended also that the Department of Health resorts to pick and choose method in permitting or relieving the doctors for joining Registrar-ship/Demonstrator-ship/Senior Residency and likewise the concerned Medical Colleges do not relieve the doctors even after completion of their tenure of three years that results in depriving other deserving doctors from undergoing these tenure posts. It is contended also that depriving the field doctors from undergoing Registrar-ship/Demonstrator-ship/Senior Residency will in turn deprive them from opting for faculty posts in the Medical Colleges in spite of possessing requisite qualification because in that case they would be unable to acquire experience of working on these tenure posts, which is a condition for entering faculty of Medical Colleges under the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (for short the Rules of 1979). In regard to impugned Circulars dated 19.10.2015, it has been contended that they have been issued by the Administrative Secretary without approval of the competent authority as required under Government Business Rules. 4. The precise and explicit stand of Respondents 1 & 2, in their reply affidavit filed in SWP No. 2355/2015, which, as per the statement made by the learned Additional Advocate General, Mr. M.I. Dar, on 27.04.2016, has been adopted in all the petitions as also in the reply affidavits filed in some other petitions, is that they are not in a position to spare any more doctor to join tenure post of Registrar/Demonstrator/Senior Residency as they are facing dearth of doctors in the field. Respondents 1 & 2 have given in tabulated form the detail about the sanctioned strength of the doctors in the Department of Health and those working in and outside the Department. This table is culled out here below: 1. Sanctioned strength of m edical o fficers 1521 2. 4% d eputation r eserved q uota 61 3. 6% t raining Reserve 91 4. 10% leave reserved 152 5. No. of Medical Officers presently working in the department 1090 6. No. of Medical Officers who are on unauthorized absence 81 7. No. of Medical Officers presently on deputation to other Departments/Institutions 43 8. No. of Medical Officers migrated from the Valley 87 9. 6% t raining Reserve 91 4. 10% leave reserved 152 5. No. of Medical Officers presently working in the department 1090 6. No. of Medical Officers who are on unauthorized absence 81 7. No. of Medical Officers presently on deputation to other Departments/Institutions 43 8. No. of Medical Officers migrated from the Valley 87 9. No. of Medical Officers who are on deputation to GMC, Srinagar/SKIMS Medical College, Bemina, Srinagar 226 10. No. of Medical Officers undergoing Registrar-ship/Demonstrator-ship/Senior Residency within and outside the State 345 11. No. of Medical Officers undergoing DM/MCH (Super Specialty course) within and outside the State. 27 12. Total No. of Doctors outside the department (Serial No. 05 to 10) 809 5. In addition, Respondents 1 & 2 have contended that Respondent No. 1, considering the urgent need of improving the man power availability in the field units of Department of Health, has issued Circular No. 5-HME of 2015, dated 19.10.2015 directing the Directorates not to recommend any case for sending a Doctor on deputation for the purpose of training, Registrar-ship/Residency-ship etc. 6. In backdrop of the respective stands of the two sides, following issues arose for discussion at the bar: (i) Whether the Department of Health (Parent Department) is under obligation to relieve all those doctors, who are selected for tenure post of Registrar/Demonstrator/Senior Residency? (ii) Whether the Department of Health is resorting to pick and choose method and acting arbitrarily in relieving doctors for joining the tenure post of Registrar/Demonstrator/Senior Residency? (iii) Whether Circular No. 5-HME of 2015 and Circular No. 6-HME of 2015, are illegal and if so, what is its effect? 7. Central line of argument of all the learned counsel appearing for the petitioners was that petitioners, who are in-service doctors of the Department of Health, have a Fundamental Right of applying for and, if selected, to join the aforementioned tenure posts and depriving them, that too arbitrarily and by resorting to pick and choose method, infracts their Fundamental Right under Articles 14 and 16 of the Constitution. It is urged that all the petitioners are post-graduate in various streams of Medical Science. Under the Rules of 1979, they can opt for faculty positions in Medical Colleges only after they possess experience as Registrar/Demonstrator/Senior Residency. It is urged that all the petitioners are post-graduate in various streams of Medical Science. Under the Rules of 1979, they can opt for faculty positions in Medical Colleges only after they possess experience as Registrar/Demonstrator/Senior Residency. Denying them opportunity to join and work on these tenure posts tantamount depriving them of the opportunity of availing eligibility qualification for applying for faculty posts in the Medical Education Department. It is argued with vehemence that undergoing these tenure courses by the in-service doctors of the Department of Health is in general public interest because after completing these courses, such doctors join their duties in the field with rich experience and expertise gained by them under the guidance of senior doctors in the Medical Colleges. It is argued that refusing NOC or not to relieve doctors for joining these tenure posts is violative of the Rules of 1979 as it is provided under these Rules that these tenure posts, even though they are borne on the cadre of Medical Education Department, are to be filled up by deputation of doctors from Department of Health. In regard to Circular No. 5-HME of 2015 and 6-HME of 2015, it has been argued that these evidently have been issued by the Administrative Secretary without approval of the Government and are contrary to the aforementioned Rules. Reliance is placed on an earlier judgment of this Court in Dr. Vikaramjeet Singh v. State & Ors., 2011 SLJ 703 : 2011 (2) JKJ 60 [HC] : JKJ Soft JKJ/25826 and it is urged that in a similar situation, this Court has allowed the writ of the petitioner therein. 8. Per contra, star argument of learned Additional Advocate General, Mr. Dar, was that under the Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013 (for short the Rules of 2013) only 6% of the sanctioned strength of the doctors (Medical Officers) in the Department of Health has been earmarked as 'Training Reserve' meant for deputing the doctors against the tenure posts of Registrar/Demonstrator/Senior and higher studies so the Department is not obliged to allow or relieve the doctors for these tenure posts more than the quota reserved in this behalf under the Rules. Mr. Dar submitted that the Department can neither be compelled nor can afford to relieve doctors exceeding this quota. Mr. Mr. Dar submitted that the Department can neither be compelled nor can afford to relieve doctors exceeding this quota. Mr. Dar argued that as on date more than 1/3rd of the total sanctioned strength of the doctors of the Department of Health are working outside the Department for undergoing such like courses/higher studies or are on deputation to other departments, which has caused dearth of doctors in the field resulting in hardship to the poor public at large. In regard to Circular Nos. 5-HME of 2015 and 6-HME of 2015, Mr. Dar argued that these are simple reminders to the Heads of the Department not to recommend the cases for issue of NOC, issued in the backdrop of the fact that large number of doctors are working outside the Department. Mr. Dar also placed reliance on Dr. Vikaramjeet Singh's case (supra) and submitted that in compliance to the direction issued by this Court in that case, the Government has issued Order No. 164-HME of 2012, dated 02.03.2012, whereby guidelines have been laid down for deputing the doctors for these tenure posts, which are being followed and deputation of the petitioners has been refused strictly as per these guidelines. 9. Discrepancy in the information provided in aforementioned table has been noticed. Sanctioned strength of doctors (Medical Officers) is shown as 1521 on one hand. On the other hand, however, the number of the doctors working in the Department has been shown 1090 and those working outside the Department as 809, which collectively is more than the sanctioned strength. That apart, it is not clear whether this information relates to the entire State or to the Directorate of Kashmir only, which is respondent in this case. For understanding the scenario in regard to the entire State a reference to the Rules of 2013 notified vide 1SRO 325 of 2013, dated 12.07.2013, which have repealed the earlier Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006 (for short the Rules of 2006) would be useful and the picture would be further clear from the affidavit filed by the Administrative Secretary of the Administrative Department-Respondent No. 1, Dr. M.K. Bhandari. 10. Rule 4 of the Rules of 2013 read with Schedule-1 thereto gives the strength and composition of the Service in the Department of Health. M.K. Bhandari. 10. Rule 4 of the Rules of 2013 read with Schedule-1 thereto gives the strength and composition of the Service in the Department of Health. Strength of the doctors (Medical Officers) in the Department of Health in the State as at the time of formulation of these rules is given as 2764 that also includes 4% (111) of them as 'Deputation Reserved)', 10% (276) as 'Leave Reserve' and 6% (166) as 'Training Reserve'. It has been stated in paragraph 7(b) of the reply affidavit of Respondents 1 & 2 that the 6% (166) quota earmarked as 'Training Reserve' is meant for the doctors, who have to go for Registrar-ship/Demonstrator-ship/Senior Residency/Post graduation and Super Specialty courses etc. This is not disputed. What is thus clear is that the sanctioned strength of the doctors (Medical Officers) in the Department of Health as at the time of the formulation of the Rules of 2013 was 2764. Out of these 2764 doctors, 6% (166) are earmarked as 'Training Reserve' for deputing them for Registrar-ship/Demonstrator-ship/Senior Residency/Post graduation and Super Specialty courses etc. and another 4% (111) are earmarked as 'Deputation Reserve' for sending them on deputation to other departments. 11. On consideration of the information, in particular the breakup of the in-service doctors working in and outside the Department of Health, that is, the Parent Department given in the reply affidavit of Respondents 1 & 2, this Court on 17.02.2016 directed the Administrative Secretary of the Administrative Department to appear in person before the Court with record, more particularly, that relating to the 81 doctors, who were shown on unauthorized absence from duty. The Administrative Secretary appeared before this Court on 09.03.2016 and stated that services of 100 Medical Officer/Consultants, who were on unauthorized absence from duty, have been terminated and vacancies so created shall be referred to recruitment agencies. The Administrative Secretary appeared before this Court on 09.03.2016 and stated that services of 100 Medical Officer/Consultants, who were on unauthorized absence from duty, have been terminated and vacancies so created shall be referred to recruitment agencies. This Court upon hearing the Administrative Secretary and INTER ALIA taking notice of the fact that 'the total number of doctors who are on deputation to other departments/institutions or undergoing various training courses are 809 as against sanctioned strength of 1521 Medical Officers', directed him to furnish following details on his personal affidavit: (i) Details of Medical Officers/Consultants, who are on deputation on account of undergoing various training courses/Registrar-ship/Demonstrator-ship/Senior Residency etcetera; (ii) Details of Medical Officers/Consultants, who are on deputation to other Departments with reference to their period of deputation and sanctioned strength of those posts to be filled by deputation; (iii) Details of doctors, who have migrated from Kashmir with their place of posting within or outside the State. By the same order, this Court directed all the Heads of Medical Colleges/Institutions to relieve all those doctors, who have completed their tenure of Registrar-ship/Demonstrator-ship/Senior Residency without waiting for further orders from the Court. Having so directed, the Principals of Medical Colleges and Director, SKIMS were also directed to file their personal affidavits giving details of doctors, who have been relieved. 12. The Administrative Secretary of the Administrative Department, Dr. M.K. Bhandari, in his affidavit has informed: (i) That 526 Medical Officers/Consultants are undergoing various training courses/Registrar-ship/Demonstrator-ship/Senior Residency/Super Specialty courses etc., of which 264 are from Directorate of Health Services, Jammu and 262 from Directorate of Health Services, Kashmir. Break up is given in Annexure R-1 to the affidavit, which is as under: Directorate, Health services, Jammu Registrars/ d emonstrators in GMC j mmu = 151 PG/SR-ship in or outside State = 83 Super s pecialty outside State = 30 Total = 264 Directorate, Health services, Kashmir Registrars in GMC, Srinagar = 95 Demonstrators in GMC Srinagar = 21 PG at SKIMS = 34 SR in SKIMS = 44 DM/MCH within/outside State = 31 PG/Diploma at GMC, Srinagar/Jammu = 37 Total = 262 (ii) That 353 Medical Officers/Consultants comprising of 147 from Directorate of Health Services, Jammu and 206 from Directorate of Health Services, Srinagar are on deputation to Government Medical College, Jammu/Srinagar, SKIMS and other departments. (iii) That 13 doctors of Directorate of Health Services, Kashmir have migrated and are working on the establishment of Directorate Health Services, Jammu and 36 doctors are drawing migrant salary from the office of the Resident Commissioner, J&K, Delhi and are not working in the Department; And (iv) That services of 100 doctors, who were on unauthorized absence, have been terminated vide two Government orders dated 4.3.2016 and out of the vacancies so created 97 have been referred to Public Service Commissioner for selection. 13. The indisputable picture thus emerging is that as against 6% (166) of the total sanctioned strength of the doctors in the Department of Health reserved as 'Training Reserve' quota meant for deputing the in-service doctors for taking up tenure posts like Registrar-ship/Demonstrator-ship/Senior Residency and higher studies like MD, MCH etc., 526 in-service doctors are presently working outside the Department of Health on this score. They inter alia comprise of 151 doctors from Jammu Directorate and 160 (95 + 21 + 44) doctors from Kashmir Directorate undergoing Registrar-ship/Demonstrator-ship/Senior Residency alone in the two Government Medical Colleges and SKIMS in the State, besides those who are undergoing higher studies, specialization/super specialization in and outside the State. This means, the Training reserve' quota, which is relevant in this case, has been enormously overstepped inasmuch the number of the in-service doctors presently working against the tenure posts of Registrar/Demonstrator/Senior Residency within the State itself is double than the total quota reserved in this behalf. Not only that, as against 4% (111) quota reserved as 'Deputation Reserve', 353 doctors, 147 from Jammu Directorate and 206 from Kashmir Directorate, are on deputation to Government Medical College, Jammu, Government Medical College, Srinagar, SKIMS and other Departments. Such overstepping is totally unjustified and cannot be justified even if it is believed that there is some increase in the sanctioned strength after formulation of the Rules of 2013. In addition, 100 doctors are said to have been terminated for unauthorized absence and 36 doctors are drawing Migrant salary from the office of the Resident Commissioner, J&K, Delhi without working in the Department. The result of all this is that as on date the Department of Health has been deprived of services of 1015 (526 + 353 + 100 + 36) in-service doctors out of the total strength of 2764 doctors as at the time of formulation of the Rules of 2013. 14. The result of all this is that as on date the Department of Health has been deprived of services of 1015 (526 + 353 + 100 + 36) in-service doctors out of the total strength of 2764 doctors as at the time of formulation of the Rules of 2013. 14. Questions raised for determination in these writ petitions are to be considered in backdrop of the aforementioned factual scenario without entertaining any dispute relating to, much less undermining, the importance of undergoing Registrar-ship/Demonstrator-ship/Senior Residency for a doctor working in the field in the Department of Health, both, in his personal interest and in the general public interest. In deputing and permitting the in-service doctors for joining the tenure posts of Registrar/Demonstrator/Senior Residency or for that purpose for undergoing higher studies, specialization or ex-cadre postings, the Department of Health is not and cannot be expected to ignore its adverse impact on health care in the vast area of the State nor to ignore, undermine or bypass the Rules. Once the Competent Authority by way of a legal provision of duly formulated Rules has prescribed a fixed quota for such deputations, the Department of Health neither is obliged nor expected to and in no case can be directed by issue of a writ to depute doctors outside the parent department over and above such quota as long as such legal provision exists. Quota having been clearly laid down in the Rules, any assail to the two Circulars, Nos. 5-HME of 2015 and 6-HME of 2015, dated 19.10.2015, loses any importance because they are neither contrary nor beyond the scope of Rules or anything more than an advisory to the Heads of the Department to follow the rule position. 15. Personal interest of a doctor in availing the tenure posting of Registrar/Demonstrator/Senior Residency cannot be considered and weighed in isolation of general public disadvantage involved in uncontrolled deputation of the doctors for these assignments. In this view of the matter, it having been shown that as on date the deputation under the 'Training Reserve' quota has been enormously exceeded, the Respondents 1 & 2 cannot be said to have acted illegally or in violation of Rules in not granting the petitioners NOC/permission or not relieving them for such a deputation. In this view of the matter, it having been shown that as on date the deputation under the 'Training Reserve' quota has been enormously exceeded, the Respondents 1 & 2 cannot be said to have acted illegally or in violation of Rules in not granting the petitioners NOC/permission or not relieving them for such a deputation. No writ can be issued against Respondents 1 and 2 to relieve more doctors for taking up the assignments of Registrar/Demonstrator/Senior Residency and the matter would stand closed. But, the matter cannot be closed like this and the allegation of pick and choose and arbitrariness in allowing such deputations cannot be left without consideration, having regard to the situation that has been allowed to arrive at by all the concerned. 16. The allegation of the petitioners that Department of Health resorts to pick and choose method and acts arbitrarily in relieving the in-service doctors for aforementioned tenure posts and the Principals of the Medical Colleges do not relieve in time the doctors who complete their tenure has not been aptly met with by the Respondents 1 & 2 in their reply affidavits but for their simple denial in this regard and is supported by the detail furnished by the Administrative Secretary in bis affidavit. It may be underlined that both, the Department of Health and the Medical Education Department, function under the administrative control of the same Administrative Department, herein Respondent No. 1. While as the picture in regard to the in-service doctors working outside the Department of Health depicted by the Administrative Secretary in his personal affidavit is disturbing, neither in this affidavit nor in the reply affidavit filed on behalf of Respondents 1 and 2 it has been stated as to how this picture has developed in spite of the Government having laid down quota in this regard in the Rules of 2013 as also in the earlier Rules of 2006. Respondents 1 & 2 were expected to state and explain the factors responsible for enormous violation of the quota, both under the head 'Deputation Reserve' and under the head 'Training Reserve'. This, however, has not been done. 17. Various statements annexed to the affidavit filed by the Administrative Secretary would show indeed that things in the Department of Health as also in the Medical Education Department have not gone well over last few years. This, however, has not been done. 17. Various statements annexed to the affidavit filed by the Administrative Secretary would show indeed that things in the Department of Health as also in the Medical Education Department have not gone well over last few years. Most of the 151 doctors holding tenure post of Registrar/Demonstrator in the Government Medical College, Jammu have joined these posts after the year, 2012 over and above the overall quota fixed in this behalf and a good number of doctors are overstaying the three years' tenure. Picture is no good or different in regard to the doctors holding such tenure posts in the Government Medical College, Srinagar and the doctors holding the posts of Senior Residency in SKIMS. In addition, as many as 353 doctors have been allowed to work on deputation in the two Medical Colleges of the State, the SKIMS and other Government Departments, some of them for years together, notwithstanding that only 4% (111) posts have been earmarked for this purpose. The most upsetting is the admission on the part of Respondent No. 1 that 30 doctors posted in Department of Health are presently undergoing super-specialist course outside the State of Jammu and Kashmir without any permission. If all this is said not to be a case of pick and choose or arbitrariness then it is a clear case of violation of Rules and inaction on the part of those who should act and take action. 18. While as the Respondents 1 and 2 have taken due care to justify their refusal to issue NOCs to and relieve or depute the petitioners because of the dearth of doctors in the Department of Health, they should have also explained the factors responsible for huge overstepping of the quota provided for such deputations under the Rules and not providing similar treatment to the petitioners. It is not without any reason that the State Government all through and latest under the Rules of 2013 has provided a fixed quota for the doctors to be deputed out of the Department of Health for Registrar-ship/Demonstrator-ship/Senior Residency, higher studies or deputation to other departments. Fixation of quota justifies the principle of reasonable restriction and cannot be said to be violative of any Fundamental Right of a doctor, who at a given time is refused deputation on that score. Fixation of quota justifies the principle of reasonable restriction and cannot be said to be violative of any Fundamental Right of a doctor, who at a given time is refused deputation on that score. Providing such a quota is meant for maintaining a balance between availability of doctors in the field on the one hand and those to be spared for deputation for manning the aforementioned tenure posts in the Medical Colleges, undergoing higher studies or meeting the necessity of other department in which services of the doctors are required on the other. No such situation should be allowed to arise where the Department of Health, which is the Parent Department of the doctors, has to face scarcity of the doctors by itself deputing most of them outside the department. In maintaining a fine balance and achieving the desired result the operation of the Rule, however, has to be transplant, should not be arbitrary and not appear to be actuated by favouritism. 19. This Court has dealt with a similar situation in Dr. Vikaramjeet Singh's case (supra). A learned Single Judge of this in that case has held that, having regard to the benefits to the in-service doctors flowing from such deputation, the Department of Health cannot take a decision regarding deputation in an arbitrary manner and in absence of transparent and objective policy guidelines. Learned Judge also underlined the concern of the Department of Health to ensure availability of trained doctors in the field hospital and health centers arising out of shortage of doctors. In this backdrop, learned judge, while being of the view that this 'Court may not itself lay down policy guidelines to be followed by Respondents 1. & 2 in allowing deputation of in-service doctors against the post of Registrar/Demonstrator as such a course would offend the principle of separation of power' directed the Administrative Department and the Department of Health to notify policy guidelines governing deputation of in-service doctors so that chances of future litigation are excluded. In compliance with that direction, the Government, Health and Medical Education Department has issued Govt. Order No. 164-HME of 2012, dated 02.03.2012 for regulating the deputation of in-service doctors of the Department of Health against the post of Registrars/Demonstrators/Senior Residency. 20. The Govt. In compliance with that direction, the Government, Health and Medical Education Department has issued Govt. Order No. 164-HME of 2012, dated 02.03.2012 for regulating the deputation of in-service doctors of the Department of Health against the post of Registrars/Demonstrators/Senior Residency. 20. The Govt. Order No. 164-HME of 2012, provides inter alia that the deputation against the post of Registrars/Demonstrators/Senior Residency shall be made only to the extent of sanctioned strength of these posts in Medical/Dental Colleges/Institutes of the State. Contextually, it provides that the Principals of these College/Institutes shall fix a cut-off date for selection of in-service doctors against these posts and that they shall communicate the position of vacancies in these posts to the Government well before the cut-off date. It provides also that the Principals of these Colleges/Institutes shall relieve equal number of Registrars discipline wise to the respective Directors of Health Services immediately after joining of the new selectees. It is provided also that in-service doctors shall be allowed to participate in selection process only with the prior permission of the Administrative Department. 21. The issuance of the Govt. Order No. 164-HME of 2012, however, has not borne the desired result as it seems to have been observed more in breach than in compliance with inasmuch as the situation as it now exists has mostly arisen after 2012 though some of its roots date back prior thereto. Had this Government order, even though it suffers from an inherent defect, been strictly complied with, the problem would have been minimized to a great extent. Had the College/Institutes notified the vacancies in time and relieved the doctors, who had completed their tenure, in time occasions for the grievance of genuinely selected new aspirants would have been minimized and over-stepping of the quota fixed for these assignments under Rules of 2013 might have been tackled and a situation where 526 doctors of the Department of Health are presently working outside the department on this score against permissible limit of 166 doctors might not have arisen. 22. Defect in Govt. Order No. 164-HME of 2012, has been noticed and needs to be pointed out. This order sans reflection of the aforementioned quota position. While deputing the doctors to the extent of sanctioned strength of these posts in Medical/Dental Colleges/Institutes of the State, the Department of Health cannot afford to depute doctors more than the quota fixed under the Rules of 2013. This order sans reflection of the aforementioned quota position. While deputing the doctors to the extent of sanctioned strength of these posts in Medical/Dental Colleges/Institutes of the State, the Department of Health cannot afford to depute doctors more than the quota fixed under the Rules of 2013. Under the scheme of the Rules the Department of Health is not responsible for catering to the requirement of the Colleges/Institute up to their sanctioned strength but has to do so to the extent of the quota fixed under the Rules of 2013. In case requirement of the Colleges/Institutes exceeds the quota so fixed the gap can be filled up from other sources like appointing doctors in terms of the Jammu and Kashmir Medical and Dental Education (Appointment of Academic Arrangement Basis Rules) 2009 and not by compelling the Department of Health to the violate the quota by deputing the in-service doctors beyond prescribed limit. 23. The 'Training Reserve' quota as provided under the Rules of 2013 was similarly provided under the Rules of 2006, which were in operation as at the time of judgment in Dr. Vikaramjeet Singh's case and issuance of Govt. Order No. 164-HME of 2012, though quota fixed under those Rules was 3% only as against 6% fixed under the Rules of 2013. It appears the factum of fixation of this quota had escaped notice of learned Single Judge while rendering decision in Dr. Vikaramjeet Singh's case and it similarly escaped the notice of the Government while issuing said Government order. The Govt. Order No. 164-HME of 2012, therefore, is required to be modified. 24. For all that said and discussed above no case for issuing writ of mandamus directing Respondents 1 & 2 to relieve the petitioners for joining the tenure posts of Registrar/Demonstrator/Senior Residency at this stage is made out and writ to this extent is refused. Nonetheless, having regard to the Rule position and the facts discussed above, there is sufficient ground for showing indulgence and therefore, by issue of writ of mandamus: (i) Respondent No. 1 as also the Principals of Government Medical College, Srinagar, Government Medical College, Jammu and Director, SKIMS are directed to immediately relieve all those doctors of Department of Health, who have completed their prescribed tenure as Registrar/Demonstrator/Senior Residency in these Colleges/Institutes. This be done within two week's time from the date of this judgment (ii) Respondent No. 1 as also the Principals of Government Medical College, Srinagar, Government Medical College, Jammu and Director, SKIMS are directed to ensure hereafter that all the doctors of Department of Health working with these Colleges/Institutes as Registrar/Demonstrator/Senior Residency are relieved immediately after they complete their prescribed tenure. (iii) Respondent Nos. 1 & 2 as also the Principals of Government Medical College, Srinagar, Government Medical College, Jammu and Director, SKIMS are directed to strictly adhere to the Rules and Govt. Order No. 164-HME of 2012, while selecting/deputing doctors of Department of Health to tenure posts of Registrar/Demonstrator/Senior Residency. (iv) Respondent No. 1 shall accord consideration to modify Govt. Order No. 164-HME of 2012, to give effect the quota under 'Training Reserve' provided under the Rules of 2013. (v) Respondent No. 1 shall accord consideration to and issue suitable orders in regard to the doctors of Department of Health working on deputation outside the department, having regard to 4% quota fixed in this regard under the Rules of 2013. This exercise be completed within four weeks' time after the date of this judgment. (vi) Respondent No. 1 shall accord consideration to taking appropriate action against the doctors who are undergoing Super Specialty outside the State without the permission of the State Government. This exercise be completed within four weeks' time after the date of this judgment. 25. By issue of a writ of mandamus it is directed that the Selection of petitioners as Registrar/Demonstrator/Senior Residency in their respective disciplines shall remain intact and they shall have prior right to be deputed against these tenure posts and no other doctor from the Department of Health shall be appointed or deputed against these posts. Respondents 1 and 2 shall depute them as soon as it becomes feasible, having regard to the Rule position and observations made hereinabove. 26. Interim directions now stand vacated. Disposed of. Contempt (SWP) No. 772/2015. Segregated. Be listed in due course.