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2018 DIGILAW 1044 (JK)

Sourav Sharma v. State of J&K

2018-12-31

RAJESH BINDAL

body2018
JUDGMENT : 1. The petitioner, who is working as Dental Surgeon at PHC, Ajote Block Mandi, District, Poonch has filed the present writ petition, seeking quashing of the orders dated 25th October, 2014 and 25th October, 2015. Further prayer has been made for consideration of his candidature for appointment as Registrar in the discipline of Oral Surgery in Indira Gandhi Government Dental College/Hospital, Jammu (for short, ‘the Dental College’) w.e.f. 25th October, 2014. 2. Learned counsel for the petitioner submitted that the petitioner after completing his BDS Course had joined MDS Course. When the petitioner was undergoing his MDS Course, he was selected and appointed as Dental Surgeon on 21st May, 2012. He joined his duty as Dental Surgeon on 06th April, 2014. An advertisement was issued on 19th May, 2014, inviting applications from both inservice Dental Surgeons and other doctors for selection to the post of Registrar in the Dental College. This included two posts in the discipline of Oral Surgery. The advertisement provided the conditions of eligibility. An inservice candidate should have completed two years of service in the Health Department and further permission of the Administrative Department was required to participate in the selection process. The petitioner submitted his application to Chief Medical Officer concerned for onward submission to the authorities with no objection by the department. The same was forwarded by the Chief Medical Officer, Poonch to the Director Health Services, Jammu vide letter dated 24th May, 2014. While the process of selection was still pending, on account of discrepancy in the conditions laid down in the advertisement, fresh advertisement was issued on 14th June, 2014 with the same conditions. It was specifically provided therein that the candidates, who had applied earlier need not apply. 3. It was further submitted that the petitioner came to know about the appointment of respondent No. 8 through press on 28th August, 2014. Thereafter, he filed an application under Right to Information Act, 2009 (for short, “the RTI Act”), seeking information as to whether both the posts of Registrar in Oral Surgery have been filled up and further supply the petitioner copies of the experience certificates of the candidates appointed. The same was replied to vide letter dated 08th October, 2014, mentioning that Dr. Amina Samoon was engaged, but she did not join. The same was replied to vide letter dated 08th October, 2014, mentioning that Dr. Amina Samoon was engaged, but she did not join. The communication further provided that there was no need of experience of two years for inservice candidates as only one year experience was required. Thereafter, fresh advertisement was issued on 06th August, 2015, which included the post of Registrar in Oral Surgery. After the aforesaid advertisement was issued, no select list was published. The petitioner applied for information under the RTI Act. The information supplied was that respondent Nos. 5 to 7 were engaged pursuant to advertisement notice dated 06th August, 2015, however, the details of marks secured by them were not provided. It further transpired that respondent No. 3 had been engaged pursuant to advertisement notice dated 14th June, 2014. The information was contrary to what was supplied earlier when the petitioner was informed that only one candidate had been selected. The marks secured by the respondent No. 3 were 54, whereas the petitioner had secured 69.5 marks, hence was more meritorious. 4. He further argued that the only ground raised by the official respondents to deny consideration of the application filed by the petitioner was that his application was not forwarded by the department concerned to the Dental College and further, it was submitted that experience required for inservice candidates was Two years, which the petitioner was lacking. Application of Dr. Amina Samoon was forwarded by the department though she did not have two years’ experience, however, that condition was later on modified with requirement of only one year’s experience. It was submitted that had the application of the petitioner been forwarded, he would have definitely been selected, as on merits without even a single mark awarded to him in interview, he was above the selected candidate. On the issue of the tenure of the post being over, the submission is that the petitioner should be directed to be appointed against a future vacancy, as he was not at fault. 5. On the other hand, learned counsel for the State submitted that the earlier advertisement issued for recruitment of Registrar in Oral Surgery was challenged by some of the candidates by filing SWP No. 1527/2014. Thereafter, the Government reconsidered the matter and revised the condition of experience from two years to one year. 5. On the other hand, learned counsel for the State submitted that the earlier advertisement issued for recruitment of Registrar in Oral Surgery was challenged by some of the candidates by filing SWP No. 1527/2014. Thereafter, the Government reconsidered the matter and revised the condition of experience from two years to one year. It is the admitted fact on record that for consideration of candidature of an inservice candidate, no objection from the parent department was required but the same was lacking in the case of the petitioner. The no objection is required for the reason that it is for the parent department to examine as to how much doctors it can spare, to be absorbed or appointed in other services. In fact, knowing well that his application was not forwarded by the parent department, the petitioner did not even appear for interview. As the tenure of the post for which the petitioner is seeking appointment has already expired, no relief as such can be granted to the petitioner at this stage. In case, he had any grievance regarding non-forwarding of his application, he could have raised the issue at the appropriate time. As regards the advertisement issued on 06th August, 2015, the petitioner was far below in merit, hence, cannot raise grievance. 6. In response, learned counsel for the petitioner submitted that the official respondents do not have any justification to reject the candidature of the petitioner as far as the merits of the controversy is concerned, namely, that the petitioner was more meritorious than the candidate selected. He had been deprived of his right of consideration only because his application was not forwarded by the department. In fact, there is one common department, i.e., Department of Health and Medical Education. There is no criteria laid down for forwarding the applications of the candidates, on account of which the petitioner was made to suffer. Pick and choose method was applied. 7. Heard learned counsel for the parties and perused the paper book. 8. It is claimed by the petitioner that while he was undergoing the course of BDS, he was appointed as Dental Surgeon on 21st May, 2012, but actually joined his duty on 06th April, 2014 at PHC, Ajote Block Mandi, District, Poonch. Advertisement for selection to the posts of Registrar in Oral Surgery was issued by the Dental College on 19th May, 2014. Advertisement for selection to the posts of Registrar in Oral Surgery was issued by the Dental College on 19th May, 2014. Two important conditions of eligibility as mentioned in the advertisement are extracted below:- “1. The in-service Dental Surgeon in J&K Health Department and should have rendered minimum two years service in Health Department as per the policy/guidelines issued by the Govt. vide order No. 164-HME of 2012 dated 2.3.2012. The pay scale of the post is 9300-34800 with grade pay of Rs. 5400/- for inservice doctors. 5. The in service doctors shall be allowed to participate in the selection process only with the prior permission of the Administrative Department as per the policy/guidelines issued by the Govt. vide order No. 164-HME of 2012 dated 2.3.2012.” 9. Though the issue was raised while stating that as per the rules, one year’s service was required and in fact subsequently, the government had taken a decision to that effect, but the same will not be of any relevance in the case of the petitioner, as rejection of his candidature is not on that account. The stand of the official respondents is that it was mandatory for any inservice candidate to produce permission of the Administrative Department for consideration of his application for the post of Registrar in the Dental College. There is no document produced on record by the petitioner that his application was in fact forwarded with no objection. The only document produced on record is the letter by the Chief Medical Officer, Poonch, forwarding his application to Director, Health Services, Jammu. In the absence of permission granted by the parent department, the candidature of the petitioner could not be considered. In fact, the petitioner did not even appear for the interview. This fact stated by learned counsel for the State has not been denied by the learned counsel for the petitioner. 10. Still further, the appointment was for a period of three years. Advertisement was issued on 14th June, 2014 and admittedly, the appointments were made in August, 2014. Hence, the period of three years has already expired and at this stage it will not be possible to direct the authorities to accord consideration of the candidature of the petitioner against those posts or appoint him as such. 11. Advertisement was issued on 14th June, 2014 and admittedly, the appointments were made in August, 2014. Hence, the period of three years has already expired and at this stage it will not be possible to direct the authorities to accord consideration of the candidature of the petitioner against those posts or appoint him as such. 11. In case, the petitioner had any grievance regarding non-forwarding of his application or grant of permission by the parent department, he could have raised the issue at that stage. It is too late to consider that argument, as the tenure of the post has already expired. 12. For the reasons mentioned above, I do not find any merit in the present writ petition. The same is, accordingly, dismissed.