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2019 DIGILAW 115 (JK)

Sheeraz Ahmad Dar v. State of J&K

2019-03-08

ALI MOHAMMAD MAGREY

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Judgment 1. In the instant petition, petitioner prays for the following reliefs:— “(A) A writ of certiorari quashing the condition/clause (I) in the select list for the post of Consultant Pediatrics in Health and Family Welfare Department Government of J&K Government order No. 192-HME of 2019 dated 21.02.2019 (Annexure-I). (B) A writ of mandamus further be directed to be passed commanding respondents to take all necessary steps so that petitioner is allowed to complete few months of his Senior Residency at Sheri-Kashmir Institute of Medical Sciences and also allowed to join the post of Consultant Pediatrics in Health and Medical Education Department so that his post as Consultant be kept on hold.” Brief Facts 2. Petitioner states to have been engaged as Senior Resident at SKIMS in the department of Neonatology/Pediatrics and joined on 20.03.2017. Petitioner, while working as Senior Resident, states to have applied for the post of Consultant Pediatrics in the Health Department and on competing the process of selection, petitioner has been selected and appointed against the post of Consultant Pediatrics in RBA category vide Government order No. 192-HME of 2019 dated 21.02.2019. The petitioner has to join in the Directorate of Health Services, Kashmir, within a period of 21 days from the date of issuance of the order, failure whereof will result in deemed cancellation of his appointment. 3. Petitioner is aggrieved of the condition (i) of the appointment order and challenges the same with further relief of allowing the petitioner to complete the Senior Residency course at SKIMS and thereafter be allowed to join the post of Consultant Pediatrics in Health Department. The condition No. (i) being relevant for the decision of the writ petition is taken note of:— “The appointee(s) shall not be allowed to continue with PG/Tenures of Senior Residency/Registrarship/Demonstratorship etc., and shall have only one choice either to opt for appointment or opt out and go for PG/Tenures of Senior Residency/Registrarship/Demonstratorship etc. 4. Challenge to condition (i) of the appointment order has reference to working harshly and causing inconvenience by such condition, is violative of rights guaranteed under the Constitution of India and Constitution of Jammu and Kashmir, further ground to challenge has reference to violation of right to public employment guaranteed under the Constitution of Jammu and Kashmir read with Constitution of India. Petitioner has right to be appointed and any deprivation would amount to violation of fundamental right as same would amount to deprivation of rights enshrined in Article 14 and 16(1) of the Constitution. Further ground to challenge is that the Government cannot deny the petitioner to exercise his right to continuation as Senior Resident till he completes period of appointment. It is submitted that the State has already incurred some expenses on petitioner for undergoing Senior Residency and petitioner having spent lot of time has acquired knowledge and expertise which will benefit the patent care in peripheral areas of the State of Jammu and Kashmir. The condition impugned if given effect will amount wastage of State exchequer and will further amount to action ultra vires to the Constitution. Deprivation of the petitioner from completing the tenure appointment as Senior Resident by pressing into service the impugned condition is devoid of intelligible differentia, which in other words mean respondents by incorporating condition (i) have failed to show any rational nexus between the basis of not allowing petitioner to complete his Senior Residency and the object intended to achieve. Petitioner also submits that he can be allowed to join the post and subsequent thereto grant study leave for remaining few months. 5. Heard learned counsel for the petitioner, considered the matter and perused the records. 6. The challenge to the condition (i) in terms of the ground taken in the writ petition has no substance. Petitioner on selection and appointment has to join the post, so as to enable the department to avail his services for the patient care and in the event such course is not acceptable to petitioner, he has no option but to lose the appointment. It is stated that the petitioner challenges the said condition (i) as being arbitrary, unreasonable and violative of the rights of the petitioner guaranteed under the Constitution of India. The right, which has accrued to the petitioner is with reference to his appointment against the post which benefit of the post he can be allowed only on joining the post, but there can be no law on the subject to keep the post vacant, till the petitioner completes the tenure appointment as Senior Resident. 7. A similar issue was raised in SWP No. 294/2019 titled Aezaz Ahmad Bhat and Ors. Vs. 7. A similar issue was raised in SWP No. 294/2019 titled Aezaz Ahmad Bhat and Ors. Vs. State and Anr., by some of the Doctors, who were appointed against the post of Assistant Surgeons in the Health Department and on consideration, this Court has rejected their claim for continuation of PG/tenure appointments as Registrarship/Senior Resident/Demonstrators. 8. Admittedly, the petitioner on completion of the process of selection against the post of Consultant Pediatrics advertised by the Public Service Commission stands selected/appointed on the said post. The petitioner instead of joining challenges the condition (i), of the appointment order, which provides that the petitioner shall not be allowed to undergo the Senior Residency course and has only choice to join within a stipulated period. Admittedly the selection and appointment of petitioner has been made in terms of Jammu and Kashmir Health and Family Welfare Gazetted Service Rules, with reference to the requirement in the department. There is no scope for the petitioner to seek extension in joining time from the Court, as the Court cannot pass such direction by extending the period of joining till the petitioner completes his tenure appointment as Senior Resident in the SKIMS, Srinagar and in the event such relief is allowed same will amount to interference with the decision of the Government. The Government while making the appointment of the petitioner on the recommendation of Public Service Commission against the post of Consultant Pediatrics, consequently posted him in Health Department and provided the period of joining time with the object to make available the Doctors in the most difficult areas of State of Jammu and Kashmir. The requirement for providing Doctors to the patients in the State of Jammu and Kashmir is in fulfilment of dire need of such Doctors, therefore, these appointments are made with reference to special needs for the patient care of the State. 9. The Government in order to meet the public interest, have made these appointments of the Doctors and their postings, which needs no interference from the Court. In the event, any indulgence is shown by the Court for the relief prayed for, same will amount to depriving the patient care of the State. The post against which petitioner has been appointed, cannot be kept unfilled on account of non-availability of petitioner, who is appointed as Senior Resident in different Institutions. 10. In the event, any indulgence is shown by the Court for the relief prayed for, same will amount to depriving the patient care of the State. The post against which petitioner has been appointed, cannot be kept unfilled on account of non-availability of petitioner, who is appointed as Senior Resident in different Institutions. 10. Learned counsel for the petitioner was pointedly asked as to how the impugned condition of appointment challenged in the writ petition is violative of fundamental or legal rights of the petitioner, which he could not point out, therefore, the claim made is by no stretch of imagination worth to be allowed. 11. For all what has been said hereinbefore, the petition is held to be meritless, therefore, dismissed along with connected IA at its threshold.