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2018 DIGILAW 520 (JK)

Sameer H. Naqash v. State of J&K

2018-07-16

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. By this common judgment I proceed to decide and dispose of these two clubbed writ petitions, though separately. 2. The first of these two petitions is SWP no.871/2013. Before adverting to the case of the petitioner in this petition, it may be mentioned that by Order no.SIMS-63(P) of 2011 dated 19.05.2011 sanction was accorded to the establishment of the Department of Surgical Oncology at SKIMS for management of cancer patients of Surgical Oncology which was to function as a full-fledged Super Speciality Department. Subsequent thereto, the Director, SKIMS, in his capacity as Ex-Officio Secretary to Government, circulated the directions of the Chairman of the Governing Body, SKIMS, given in the meeting held on 26.05.2011, which, inter alia, said that the department of Surgical Oncology shall work independently and all unfilled posts shall be advertised in the same hierarchy as sanctioned in Government order no.26 of SKIMS of 2008 dated 10.03.2008. Insofar as the Department of Surgical Oncology is concerned, the aforesaid Government order dated 10.03.2008 accorded sanction to the creation of the following posts: Professor: 01 post Additional Professor: 01 post Associate Professor: 02 posts Assistant Professor: 02 posts Senior Resident: 02 posts Thereafter, by advertisement notice no.01 of 2012 dated 10.01.2012 applications were invited for filling of the vacant faculty positions mentioned therein by direct recruitment, which included one post of Professor and one post of Assistant Professor in Surgical Oncology. 3. It appears that in response to the aforesaid advertisement notice, private respondent no.5, namely, Dr. Sameer Naqash, shown by the petitioner as Additional Professor, General Surgery, C/o Director, SKIMS, Soura, applied for his consideration against the post of Professor, Surgical Oncology. 4. It further appears that the Chairman, Medicine and Allied Specialties, SKIMS, Srinagar, addressed communication no.SIMS 301 02 09/12-6036 dated 14.06.2012 to the Chairman, Board of Governors, Medical Council of India, New Delhi, informing him that SKIMS had started the Department of Surgical Oncology and that, whereas there was no response for the post of Professor, one candidate with two years’ training in Surgical Oncology was taken as Assistant Professor. It was further stated therein that in response to the new advertisement notice, only one application had been received from a candidate who was working as Additional Professor in the Department of General Surgery for five years and had an overall experience of 15 years in General Surgery on different faculty positions, and that from his initial appointment as Assistant Professor at SKIMs he had been actively involved in the management of oncology patients. The Chairman, Board of Governors, MCI, was requested to allow the Institution to consider the application of the said candidate for the post of Professor Surgical Oncology. 5. The petitioner has challenged the aforesaid communication no. SIMS 301 02 09/12-6036 dated 14.06.2012, and has sought mandamus to direct the respondents to re-advertise the post and other faculty positions on the ground that respondent no.6 does not have any experience in Surgical Oncology; that the respondent Institution has mislead MCI that Dr. Sameer Naqash has Fellowship in GI Oncology from National Cancer Centre Japan; and that the advertisement notice was published only in local newspapers and was not published on national level to avoid any response from qualified and eligible candidates. 6. Both, the official respondents as well as private respondent no.6, have filed their objections to the writ petition, contesting the claims of the petitioner on the facts and grounds taken by them in their respective responses. 7. It may be relevant to mention here that when the petition first came up for consideration, the Court on 22.05.2013, while issuing notice directed the respondents not to finalise the selection for the post of Professor, Surgical Oncology and observed that interview, if any, conducted would be at the risk of the candidates appearing in interview. 8. I have heard learned counsel for the parties and considered the matter. 9. It is to be borne in mind that in order to maintain a writ of certiorari a petitioner is required to show to the Court that any of his legal or constitutional right has been infringed or impinged upon by any executive action which is sought to be quashed. Unless such a cause is shown, a writ for issue of certiorari would not lie. 10. In the instant case, it is the specific case of the petitioner, as averred in para 7 of the writ petition, that he is eligible for appointment as Additional Professor. Unless such a cause is shown, a writ for issue of certiorari would not lie. 10. In the instant case, it is the specific case of the petitioner, as averred in para 7 of the writ petition, that he is eligible for appointment as Additional Professor. His precise grievance is that the said post of Additional Professor has not been advertised. In this regard, paras 5, 6 and 7 of the writ petition assume importance. These paragraphs are quoted hereunder: “5. That the respondents in spite of clear directions of Chairman Governing Body did not advertise any vacant hierarchy posts of Professor 1/Additional Professor 1/Associate Professor 2 / Assistant Professor 2, lying vacant since creation of Surgical Oncology in 2008, copy of vacant posts is market as Annexure C. 6. That respondent Institute finally advertised few vacant posts in Department of Surgical Oncology vide advertisement Notice No.01 of 2012 dated January 10.0l.2012, marked as Annexure-D and to petitioners surprise only one post of Professor and two posts of Assistant Professor in Surgical Oncology were advertised and other posts were as usual blocked. 7. The petitioner in view of his qualifications and experience, as depicted in his bio-data annexed herewith as Annexure–E was eligible for appointment as Additional Professor and could have been appointed as such on the basis of his qualification and merit had such posts been advertised.” Above being the specific case and grievance of the petitioner, when the petitioner himself, on his own specific showing, is not eligible for the post of Professor, Surgical Oncology, it is not comprehendible what locus does he have to challenge the impugned communication. 11. There is yet another aspect of the matter. The petitioner has placed on record of the writ petition as annexure J thereto a photocopy of Minimum Qualification for teachers in Medical Institutions Regulations 1998 issued by the MCI. Clause 6 under Schedule-I appended thereto contains the following proviso: “Provided that in case of super-speciality courses which are being newly instituted, matter regarding relaxation of qualification and experience of post-graduate teachers may be taken up by the appointing authority with the Medical Council of India.” This proviso of the Regulations makes it axiomatic that in case of super-specialities, which are being newly instituted, the appointing authority has been given the discretion to take up the matter regarding relaxation of qualification and experience of post-graduate teachers with MCI. Otherwise also, unless the MCI would consider such a request, mere request made by the appointing authority or any other authority of an institution would not give a cause of action. It would be premature to challenge such a request without there being a consideration accorded thereto by the competent authority. So is the case herein. The petitioner has prematurely come to the Court challenging the impugned communication. This communication neither confers any right, interest, or benefit on respondent no.6, nor does it give a cause to the petitioner to challenge the same. 12. During the course of arguments, the learned counsel for the petitioner cited and relied upon two Division judgments of the Court: the first being in Baldev Singh Wazir (Dr.) v. SKIMS, 2013 (4) JKJ 95 [HC], and the other being Mohd. Syed Shah v. State of J&K, 2015 (2) JKJ 103 [HC]. I have minutely gone through these judgments. These judgments are wholly distinguishable on facts and are not attracted, even in the least, to the facts of this Case. 13. In light of the above, it is held that the petitioner has no locus to challenge the communication no.SIMS 301 02 09/12-6036 dated 14.06.2012 written by Chairman, Medicine and Allied Specialities, SKIMS, Srinagar, to the Chairman, Board of Governors, Medical Council of India, New Delhi, and the writ petition is wholly premature. It, therefore, deserves to be dismissed. 14. This writ petition is, accordingly, dismissed alongwith the connected MP. Interim direction subsisting shall stand vacated. 15. The second of these writ petitions, SWP no.1355/2017, has been filed by Dr. Sameer H. Naqash, respondent no.6 in the aforesaid writ petition, praying for a mandamus to command the respondents to declare the result of the interview conducted of the petitioner and other eligible candidates pursuant to advertisement notification no.01 of 2012 dated 10.01.2012 with a further direction to them not to fill up the post in question by any mode pursuant to advertisement notice no.04 of 2015 dated 10.07.2015, no.06 of 2016 dated 05.05.2016 and no.07 of 2016 dated 05.09.2016. 16. It is the case of the petitioner that he offered his candidature for the post of Professor, Surgical Oncology pursuant to advertisement notice no.01 of 2012 dated 10.01.2012 and, having been found eligible, he was called for and was interviewed in May 2013. 16. It is the case of the petitioner that he offered his candidature for the post of Professor, Surgical Oncology pursuant to advertisement notice no.01 of 2012 dated 10.01.2012 and, having been found eligible, he was called for and was interviewed in May 2013. However, there was a stay granted by the Court against finalization of the selection against the post as a result of which the result of the interview was not declared. The grievance of the petitioner is that despite there being a stay on finalization of the selection against the post, the respondents sought to fill up the post by issuing three advertisement notifications bearing nos.04 of 2015 dated 10.07.2015, 06 of 2016 dated 05.05.2016 and 07 of 2016 dated 05.09.2016. Hence the present writ petition for the reliefs mentioned above. 17. It is really painful that the Government and/or the Institute had taken such a huge step of establishing a Super Speciality concerning a most crucial department in the field of Surgery, but its functioning, in effect and in essence, has got stalled for a long period of more than five years, for, the selection process initiated against the post of Professor has remained halted. This must have certainly cost dearly and perilously to the huge number of patients. This depicts a pathetic state of affairs and this Court cannot absolve itself, by any amount of reasoning or difficulty it may be faced with, of its bit that has gone into prolonging the finalization of the process and, thereby and resultantly, the misery of the patients. I feel that there may be many similar petitions pending in the Court where the concerned authorities are not in a position to complete the selection process on account of operation of ad-interim orders of the Court, and thereby the patient care might be suffering hugely. Some direction needs to be passed in that regard so that such cases, if any, are listed before the Courts for final disposal. However, the Registry of its own may not be in a position to verify such cases unless the concerned State counsel bring the particulars of such cases, if any, to the notice of the Registrar Judicial. At the top of it, it would be appropriate that any action proposed or ordered in this regard should first be placed before his lordship, Hon’ble the Chief Justice for approval and orders. 18. At the top of it, it would be appropriate that any action proposed or ordered in this regard should first be placed before his lordship, Hon’ble the Chief Justice for approval and orders. 18. It is, therefore, provided that the State counsel representing the General Administration Department, Health and Medical Education Department, SKIMS and the Public Service Commission could be required to furnish the particulars of the cases within their knowledge, if any, concerning any Hospital/Medical Department/Institution, where there is a stay operating against the selection process of a faculty member / Doctor for more than a year. If any such case is brought to the notice of the Registrar Judicial and, on verification, it is found to be true, the cases could be ordered to be listed by Lord Chief Justice before the appropriate Bench for consideration and final disposal, if a case is ripe, and, if the case is not ripe for final hearing, for making an endeavour to bring it to that stage by giving shorter dates for completing the processes. 19. The aforesaid objective can be achieved by publishing a notice in the weekly cause list for information of the concerned State Counsel. The Registrar Judicial shall place a note before lord Chief Justice on the aforesaid lines for his lordship’s perusal, approval and issuance of orders, as may be deemed appropriate in this regard. 20. Now, coming back to the case at hand, once the Court was seized of the matter in SWP no.871/2013 and there was an order in operation not to finalise the selection process, the best course for the official respondents was either to press for vacation of the aforesaid order or to seek early decision in the petition so as to be able to go ahead with the selection process. It was wholly unnecessary and unwarranted for the respondents to have issued fresh advertisement notices vis-a-vis the said post. These notifications, therefore, to that extent cannot withstand the scrutiny of law. 21. Apart from the above, now that the SWP no.871/2013 has been decided and the ad-interim order of stay has been vacated, there remains no impediment for the respondents to proceed ahead with the process of filling up of the post by a suitable candidate possessing the prescribed qualifications requisite for the post in accordance with the relevant Rules. 22. 21. Apart from the above, now that the SWP no.871/2013 has been decided and the ad-interim order of stay has been vacated, there remains no impediment for the respondents to proceed ahead with the process of filling up of the post by a suitable candidate possessing the prescribed qualifications requisite for the post in accordance with the relevant Rules. 22. This petition is, therefore, disposed of, quashing the advertisement notices no.04 of 2015 dated 10.07.2015, no.06 of 2016 dated 05.05.2016 and no.07 of 2016 dated 05.09.2016 issued by the Institute to the extent the same related to the post of Professor, Surgical Oncology, and leaving the Institute free to proceed ahead with the process of filling up of the post by a suitable candidate possessing the prescribed qualifications requisite for the post in accordance with the relevant Rules. 23. This also disposes of the connected MP. Interim direction, if any passed and subsisting, shall abie by the final decision in the case. 24. No order as to costs. 25. While parting with the judgment, it may be observed that during the course of arguments the learned counsel for the Institute produced a Book like compilation titled the Re-organization Structure (Cadre Strength & Recruitment Rules) 1998 prepared by the Policy Section of the Administration of SKIMS. This compilation is reportedly not available in the market or in the Government Press. Consequently, it is also not available in the High Court Library. The Registrar Judicial shall address a communication to the Director, SKIMs, to provide two updated copies of this compilation for the High Court Library for use by the High Court as and when required. The compilation produced by the learned counsel is returned to him in the open Court.