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2017 DIGILAW 589 (JK)

Zahid Hussain Gillani v. State of J&K

2017-08-09

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

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JUDGMENT : Dhiraj Singh Thakur, J. 1. This Letters Patent Appeal has been preferred against the judgment and order dated 20.03.2017 passed by the learned Single Judge in SWP No. 656/2017. 2. Briefly stated the material facts are as under. 3. The appellant is a Professor and Head of the Department of Pharmacology in the Government Medical College, Jammu. By virtue of Govt. Order No. 747-HME of 2015 dated 02.12.2015, he was ordered by the government to temporarily look after the work of the Principal, Medical College, Jammu, in addition to his own duties till the post was filled up on regular basis as per the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. 4. It needs to be highlighted that by this arrangement and by virtue of the same order, Prof. Ganshyam Dev, Professor & HOD Radio-Diagnosis was relieved of his duties as Principal, Govt. Medical College, Jammu, which had been assigned to him temporarily. 5. Subsequently, by virtue of order dated 30.11.2016, the appellant was granted charge allowance under rules, in terms of Article 87(b) of the J&K Civil Services Regulations. 6. By virtue of order impugned dated 13.03.2017, the Government relieved the petitioner/appellant herein as Principal, Government Medical College, Jammu and instead ordered respondent No. 2 - Dr. Sunanda Raina, HOD, Department of Anatomy to look after the work of Principal, Medical College, Jammu in addition to her duties, in her own pay and grade till further orders. 7. It was in those circumstances that the petitioner/appellant herein challenged the said order before the writ Court. The basis of challenge was that the impugned order was passed in violation of Order No. 747-HME of 2015 dated 02.12.2015, inasmuch as, the petitioner was required to continue to look after the work of the post of Principal till the said post was filled up on regular basis as per the recruitment rules applicable and further that the Government could not replace one adhoc arrangement with another especially when respondent No. 2 was junior to the petitioner in the panel prepared by the Government. 8. A writ of mandamus was also sought against the respondents to allow the petitioner to discharge the duties of Principal as such and further that the matter be referred to the Establishment-cum-Selection Committee for promotion to the said post. 9. 8. A writ of mandamus was also sought against the respondents to allow the petitioner to discharge the duties of Principal as such and further that the matter be referred to the Establishment-cum-Selection Committee for promotion to the said post. 9. The writ Court, by virtue of order impugned dated 20.03.2017 rejected the prayer to quash the order dated 13.03.2017 on the ground that the arrangement made in favour of the petitioner was temporary in character and did not create any right, interest or equity in his favour. Hence the present appeal. 10. Learned counsel for the appellant urged that the order impugned could not have been passed by the Government, replacing the appellant by respondent No. 2, inasmuch as the Government had found the appellant fit to look after the work of the post of Principal, Medical College, Jammu and has also released charge allowance in his favour. It was urged that the only necessary consequence was to regularize his service as Principal, Medical College, Jammu by referring the issue of promotions to the Establishment-cum-Selection Committee constituted in terms of the Govt. Order dated 17.11.2016 instead of showing the door to the appellant, while inducting respondent No. 2 in his place. 11. Learned counsel for the respondent-State, on the other hand, referred to an affidavit filed by the Deputy Secretary to Government, Health & Medical Education Department, wherein details have been given as to why the order impugned had been issued and the appellant replaced. 12. In the affidavit, it has been stated that the appellant had failed to place requisite indents and funds to the J&K Medical Supplies Corporation, for procurement of medicines for the year 2017-18 on time, despite the fact that as many as ten letters had been addressed by the Managing Director of the Corporation, which inaction severely affected the patient care in the premier health institutions of the Jammu region. The requisition had to be placed by 30.11.2016, so that the Corporation was in a position to procure the supplies well in time. 13. Another reason stated in the affidavit is that the appellant had failed to make a timely response to the circulars issued by the Medical Council of India seeking proposal for enhancement of postgraduate seats in the Govt. Medical College, Jammu. 13. Another reason stated in the affidavit is that the appellant had failed to make a timely response to the circulars issued by the Medical Council of India seeking proposal for enhancement of postgraduate seats in the Govt. Medical College, Jammu. It was stated that the appellant failed to take the requisite steps in terms of the letters addressed in that regard by the date fixed by the Medical Council of India and thus had adopted a very casual approach and finally submitted a proposal dated 20.02.2017, after the prescribed date, which was on 15.02.2017. 14. In addition to the above, it is stated that the Minister for Health & Medical Education, Jammu & Kashmir on his visits to the Medical College, Jammu and associated hospitals had expressed serious concern regarding unsatisfactory functioning of the Medical College, Jammu as also the hospitals and lack of implementation of directions issued in that regard. 15. In rebuttal, the appellant has also filed an affidavit, in which an attempt has been made to belie the allegations leveled against him. It is stated that had the appellant failed to implement in letter and spirit any directions issued by the Minister In-charge, same would have been followed by a show-cause notice and in the absence whereof, it is stated that the allegations levelled against him are without any basis. 16. Learned counsel for the private respondent No. 2 herein, on the other hand, urged that notwithstanding the fact that the appellant had been allowed to look after the post of Principal, Government Medical College, Jammu, he was not actually eligible to hold such a post in accordance with the rules. 17. It was further urged that in terms of the J&K Medical Education (Gazetted) Recruitment Rules, 1979, the appellant did not have the requisite ten years teaching experience as Professor as on 13.03.2017, inasmuch as, the appellant physically started acquiring teaching experience as Associate Professor only on 30.03.2007 and as Professor only on 17.08.2011. Reliance was placed on the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, where the teaching experience is prescribed as under:- S. No. Subject Designation of the post Minimum qualification Minimum teaching/ research experience 1. --- Principal/Dean The same qualification as prescribed for a Professor/Head of the Teaching Department. Reliance was placed on the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, where the teaching experience is prescribed as under:- S. No. Subject Designation of the post Minimum qualification Minimum teaching/ research experience 1. --- 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 Professor in a Department. 18. Heard learned counsel for the parties. 19. Order dated 02.12.2015, which formed the basis of the claim made by the appellant is reproduced hereunder:- Government of Jammu & Kashmir Health & Medical Education Department Civil Secretariat, Jammu Subject:- Charge of the post of Principal, Government Medical College, Jammu. Government Order No. 747-HME of 2015 Dated: 02.12.2015 In the interest of the Administration and patient care, it is hereby ordered that Dr. Zahid Hussain, Professor & HOD Pharmacology, Govt. medical College, Jammu, shall temporarily look after the work of the pot of Principal, Medical College, Jammu in addition to his own duties till the post is filled up on regular basis as per the J&K Medical Education (Gazetted) Recruitment Rules, 1979, relieving Dr. Ganshyam Dev, Professor & HOD Radio-Diagnosis of the additional charge, which was temporarily assigned to him. The above arrangement shall be subject to the following conditions:- (1) It shall not create any right, interest or equity in favour of the doctor for his promotion, as and when appointment/promotion to the post of Principal, Govt. Medical College, Jammu will be made in accordance with the provisions of the J&K, Medical education (Gazetted) Recruitment Rules 1979. (2) That the placement of the doctor to the post of Principal, Govt. Medical College, Jammu shall be in his own pay and grade and subject to the outcome of the writ petitions pending, if any, before any competent court of law. By order of the Government of Jammu & Kashmir. Sd/- Secretary to Government Health & Medical Education Department, Civil Secretariat, Jammu. No. ME/GAZ/68/2014 Dated: 02.12.2015 20. From a reading of the aforementioned order, it thus becomes clear that the appellant was asked to look after the post of Principal, Government Medical College, Jammu in addition to his own duties, till the said post was filled up on regular basis. 21. No. ME/GAZ/68/2014 Dated: 02.12.2015 20. From a reading of the aforementioned order, it thus becomes clear that the appellant was asked to look after the post of Principal, Government Medical College, Jammu in addition to his own duties, till the said post was filled up on regular basis. 21. The order further clarified that the arrangement would not create any interest, right or equity in favour of the appellant for his promotion, which would be made in accordance with the provisions of J&K Medical Education (Gazetted) Recruitment Rules, 1979. 22. While the order did envisage that the appellant was to hold the post till the same was filled up on regular basis, it cannot be lost sight of the fact that such a phrase did not create any permanent right in favour of the appellant, which could be said to be indefeasible or one which could not be put to an end, if circumstances so warranted. 23. The reasons behind discontinuing arrangement made by virtue of order dated 02.12.2015 are contained in the affidavit filed by the Deputy Secretary to Government, Health & Medical Education Department. The Government appears to have felt not satisfied with the working of the appellant and, therefore, appears to have issued the order dated 13.03.2017, whereby respondent No. 2 - Dr. Sunanda Raina has been asked to look after the post of Principal, Govt. Medical College, Jammu. 24. In the absence of there being any mala-fides alleged against any of the officers at the helm of affairs in the Government or the Minister In-charge, the reasons for removal of the appellant as a Principal, which are otherwise contained in the affidavit on record cannot be doubted. It must be presumed that the Government did issue the order impugned for the reasons more elaborately stated in the affidavit filed by the State. 25. We are also not convinced with the argument advanced by the learned counsel for the appellant that since charge allowance had been released in favour of the appellant, same would disable the Government from discontinuing the arrangement made vide Govt. Order dated 02.12.2015. 26. 25. We are also not convinced with the argument advanced by the learned counsel for the appellant that since charge allowance had been released in favour of the appellant, same would disable the Government from discontinuing the arrangement made vide Govt. Order dated 02.12.2015. 26. We also find no force in the argument of the counsel for the appellant that the official respondents could not have ignored the seniority of the appellant qua respondent No. 2 while passing the order impugned for the simple reason that the appellant had been removed on account of the administrative inefficiency. 27. We, however, do not wish to comment anything regarding the alleged lack of teaching experience of the appellant at this stage in these proceedings. 28. For the reasons mentioned above, the letters patent appeal is found to be without any merit and is, accordingly, dismissed along with connected MP.