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2017 DIGILAW 963 (JK)

Javed Chowdhary v. State of J & K

2017-10-27

ALOK ARADHE

body2017
JUDGMENT : 1. In view of the order passed by the Division Bench of this Court on 24th July 2017 and with consent of the parties the matter is heard finally. 2. In this writ petition, the petitioner, inter-alia, seeks a writ of certiorari, for quashment of cabinet decision dated 28.4.2017 along with Government order dated 8.5.2017, by which respondent no. 6 has been appointed as Principal of Government Medical College, Srinagar. The petitioner, inter-alia, also seeks a direction to respondents to consider the case of petitioner for promotion against the post of Principal Government Medical College, Srinagar being the only eligible candidate and a direction to respondents to produce the records pertaining to the impugned selection. 3. The facts giving rise to filing of the writ petition, briefly stated, that it is the case of the petitioner that he became due for promotion to the post of Principal GMC Srinagar from 01.11.2013. However, on 24.2.2014, the respondents decided to grant extension in favour of Dr. Rafiq Pampori, who was due for superannuation on 28.2.2014 for a period of one year. Thereafter on 19.12.2015, the charge of the post of Principal GMC Srinagar was assigned to Dr. Kaiser Ahmad, who was junior to the petitioner. The petitioner challenged the aforesaid order in SWP No. 2783/2015 and the order dated 19.12.2015 was stayed by a Bench of this Court. Being aggrieved aforesaid Dr. Kaiser Ahmad filed LPA, namely LPA no. 07/2016, which was disposed of by Division Bench vide order dated 3.3.2016, with a direction to respondent no. 1 to fill up the post on regular basis in accordance with rules within eight weeks. It is the case of the petitioner that even though the name of the petitioner alone was recommended for appointment to the post in question by Establishment-cum-Selection Committee and the same was submitted for approval, to the State Cabinet, in the form of Memorandum, yet the State Cabinet has taken a decision to appoint respondent no. 6 on 24.8.2017 and thereafter the impugned order of appointment was passed. In the aforesaid factual background the petitioner has approached this Court. 4. 6 on 24.8.2017 and thereafter the impugned order of appointment was passed. In the aforesaid factual background the petitioner has approached this Court. 4. Learned counsel for the petitioner, while inviting the attention of this Court to memorandum of submission, has pointed out that the sanction was accorded to the appointment of the petitioner on the post of Principal GMC Srinagar in the memorandum, which was to be placed for approval before the State Cabinet. However, in gross violation of Government Business Rules, the appointment of respondent no. 6 was approved. It is further submitted that the name of petitioner alone was approved for appointment and therefore either the Cabinet should have accepted the same or should have returned the proposal and it was not open to the Cabinet to appoint respondent no. 6. 5. On the other hand, learned counsel for respondents 1, 2 and 4 has submitted that the names of five persons were considered by the Committee and the Cabinet has approved the appointment of respondent no. 6 for the post in question. It is further submitted that the decision has been taken by the Committee of Experts, bearing in mind the suitability of all the empanelled candidates and the State Cabinet was not under legal obligation to accept the recommendations made in favour of the petitioner. Learned AAG has produced the record pertaining to process of appointment in question. Mr. M.I. Dar, learned AAG, as well as counsel for respondent no. 6, has supported the submission made by learned AAG, appearing for respondents 1, 2 and 4, who has also placed reliance on the decision of the Supreme Court in U.V. Mahadkar vs. Subhash Anand Chavan and Others, 2016 (1) SCC 536 . 6. I have considered the submissions made by learned counsel for the parties and have perused the record. 7. The appointment to the post in question is governed by Medical Education (Gazetted) Service Recruitment Rules, 1979. Schedule-II appended to the Rules reads as under: S. No. Subject Designation of the post Minimum Qualification Minimum Teaching/Research Experience 1. Teaching Principal/Dean/ Professor/Associate The same qualifications as prescribed for a Professor/Head of the Teaching department. A minimum of 10 years experience as Professor in a Medical College out of which at least 5 years should be as Professor in a Department. 8. Teaching Principal/Dean/ Professor/Associate The same qualifications as prescribed for a Professor/Head of the Teaching department. A minimum of 10 years experience as Professor in a Medical College out of which at least 5 years should be as Professor in a Department. 8. Thus it is evident that minimum qualification for appointment as Principal for Medical College is same as prescribed for the post of Professor/Head of the Department and minimum 10 years teaching experience as Professor or Associate Professor in a Medical College out of which at least 05 years should be at least as Professor in Department, is required. In the instant case, admittedly petitioner and respondent no. 6 possess the aforesaid qualification. The main submission on behalf of the petitioner is that his name alone was recommended for appointment by the Selection-cum-Establishment Committee and therefore, he alone should have been appointed and the respondent no. 6 cannot be appointed as the same is in violation of the J&K Government Business Rules. No provision has been brought to the notice of the Court which provides that if a decision is taken by the Cabinet in violation of the recommendations contained in the memorandum placed before it, it provides for any consequences. In other words, the procedure prescribed in Part-II of the Government Business Rules is directory in nature. The State Cabinet is the creator of selection committee and it can scrutinize the recommendations and can either accept or reject the recommendations. 9. From the perusal it is evident that the Cabinet did not accord to the recommendations of the Committee and returned the case for submission of service record of all eligible candidates. The service records of all the eligible candidates were again considered by the Cabinet on 28.4.2017 and appointment of respondent no. 6 on the post in question was approved. The petitioner has no legally enforceable right to seek appointment on the post in question merely on the basis of recommendation made by the selection committee which is not statutory in nature. It is also pertinent to mention here that the petitioner has not alleged mala-fides against any person. The decision to appoint respondent no. 6 is taken by the Cabinet, which in the absence of any mala-fides or arbitrariness does not call for any interference. 10. In view of preceding analysis I do not find any merit in the writ petition. It is also pertinent to mention here that the petitioner has not alleged mala-fides against any person. The decision to appoint respondent no. 6 is taken by the Cabinet, which in the absence of any mala-fides or arbitrariness does not call for any interference. 10. In view of preceding analysis I do not find any merit in the writ petition. The same fails and is hereby dismissed. Interim direction, if any, granted on earlier occasion shall stand vacated.