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2019 DIGILAW 355 (JK)

Masarat Jehan v. State of J&K

2019-07-25

ALI MOHAMMAD MAGREY

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JUDGMENT : Ali Mohammad Magrey, J. Through the medium of this petition, filed under Article 226 of the Constitution of India read with Section 103 of the State Constitution, the petitioner is seeking the following relief’s in her favour: “That the respondents be directed to allow the petitioner to compete the process of selection for the tenure posts of Demonstrator in discipline of Anatomy in respondent no.3 college, advertised in terms of advertisement notification dated 13-6-2019 and consequently the respondents 1 and 2 be directed to issue NOC to the petitioner and respondent no.3 be directed to allow the petitioner to compete the process of selection for the said tenure post. In the event the petitioner succeeds on the basis of her merit in such process of selection the respondents shall be directed to select and appoint the petitioner for the tenure posts of Demonstrator in her respective discipline in respondent no.3 college on the basis of her merit and suitability by properly relieved by the respondent no.1 and 2 to that effect the appropriate writs may be issued in favour of the petitioner and against the respondents as same shall be in the interests and equity. Any Other writ, orders or directions which this Hon’ble Court may deem fit in the circumstances of the case may also be passed in favour of the petitioner and against the respondents as same shall be in the interest of justice and equity.” 2. The petitioner contends that she has been appointed as a Medical Officer in the respondent Department in June, 2014 and by virtue of order dated 2nd of July, 2014 was sent on inter-cadre deputation in the Government Medical College, Srinagar. Thereafter, vide order dated 7th of July, 2014, the petitioner was posted as Medical Officer. It is stated that by notification No. 03 of 2019 dated 13th of June, 2019, issued by the respondent No.3, applications have been invited for tenure posts of Registrars/ Demonstrators in different disciplines have been advertised, including the discipline of Anatomy, from the eligible (in-service/ Non-PSC doctors) candidates. It is stated that the eligible in-service doctors, possessing the requisite qualification, are required to submit their application forms with NOC from their parent department as reflected in the conditions prescribed in the advertisement notification. It is stated that the eligible in-service doctors, possessing the requisite qualification, are required to submit their application forms with NOC from their parent department as reflected in the conditions prescribed in the advertisement notification. It is contended that the petitioner, being eligible, submitted her application form against the tenure post in the discipline of Anatomy before the respondent No.3, but without NOC from his parent department on the ground that the respondent Nos. 1 and 2 did not issue the same in her favour and that the respondent No.3 accepted the application form of the petitioner against the said tenure post because the petitioner, being on inter-cadre deputation, was already working under the control of respondent No.3, therefore, there was no need to seek NOC from the petitioner in such eventuality. 3. The grouse of the petitioner, at this stage, is that since the respondents are contemplating to conduct the interview for the posts in question and, therefore, she is seeking a direction in the name of the respondent No.3 to allow her to compete in the process of selection for the post of Demonstrator in the discipline of Anatomy, notwithstanding the issuance of NOC in her favour by the respondent Nos. 1 and 2 and, thereafter, appoint the petitioner in her respective discipline on the basis of her merit. 4. Heard the learned counsel for the petitioners, perused the pleadings on record and considered the matter. Caveat stands discharged. 5. The respondents, through Mr Shah Aamir, the learned Additional Advocate General, have adopted a categoric stand that they only allow those in-service/ Medical Officers to undergo higher study courses who comply with the mandate of the policy notified by the Government vide circular No.03-HME of 2019 dated 27th of May, 2019. The learned Additional Advocate General submits that in the instant case, the petitioner has applied for undergoing the higher study course on her own, thereby not only violating the policy of the Government circulated vide circular dated 27th of May, 2019, but also failing to meet the eligibility criteria prescribed in the advertisement notice. 6. It is, thus, clear that the process of undergoing higher study courses on the part of the in-service Doctors/ Medical Officers is regulated by the policy of the Government notified vide Circular No.03-HME of 2019 dated 27th of May, 2019. 6. It is, thus, clear that the process of undergoing higher study courses on the part of the in-service Doctors/ Medical Officers is regulated by the policy of the Government notified vide Circular No.03-HME of 2019 dated 27th of May, 2019. In terms of the said policy, the Government have, while discussing the subject on the touchstone of the rules governing the field and having regard to the importance of public health care, ordered as under: “Now, therefore taking above circumstances into consideration and in the interest of health and patient care, the following instructions are brought to the notice of all concerned for strict compliance: - 1. The concerned HoD shall not forward/recommend any case of doctor intending to appear in the selection process by NEET or Senior Residency/Registrar ship/ Demonstratorship/PG/Diploma etc. unless or until concerned doctor has completed prescribed period of probation or 3 years of service, whichever is later and is intending to undergo such course for the first time during his/her service for which a categoric certificate shall be furnished by the concerned HoD. 2. The concerned HoD while forwarding/recommending case of any eligible doctor shall also ensure that in absence of such doctor, health care facilities are not defeated and proper internal arrangement is made for looking after his/her duties. 3. The concerned eligible doctors shall submit their cases through the concerned HoD well within the prescribed time by the selection agencies along with all service particulars enabling Administrative Department to take decision prior to cut-off date, as the case may be. 4. The concerned HoD shall furnish a specific certificate stating that the work & conduct and punctuality of the said doctor has remained satisfactory during his past service. 5. The concerned eligible doctors shall in no case appear/undergo any such selection process sat their own without adhering to the aforesaid guidelines, failing which disciplinary action shall be initiated against the said doctor. 6. The concerned HoD shall ensure that all other conditions as laid down in Government order No. 164-HME of 2012 dated 02-.03-2012 are observed/ fulfilled strictly.” A perusal of the aforesaid policy of the Government reveals that the Government have, with a view to provide adequate healthcare facilities in the peripheral areas, more so, in the remote areas of the State, framed certain guidelines with reference to allowing the in-service doctors/ Medical Officers for undergoing higher study courses, viz. Registrar ship, Demonstrar ship, Senior residency, PG, Diploma, Tutor, etc. Keeping this object in mind, the respondents have made it mandatory for any in-service candidate desirous of undergoing any higher study course to procure permission from the Administrative Department for consideration of his/ her application form for the said higher study course. 7. The eligibility criteria stipulated for the in-service candidates in the advertisement notice in question clearly provides that the applicants working in the Health and Medical Education Department are required to submit their application forms along with ‘No Objection Certificate’ from their parent Department without which their applications forms shall not be entertained. In the instant case, apparently, the petitioner appears to have applied for pursuing the higher study course on her own and without adopting the procedure prescribed in terms of the policy of the Government notified vide circular dated 27th of May, 2019 and carried forward in the advertisement notice. In case, the petitioner was desirous of undergoing higher study course, it was incumbent upon her to do so while following the mandate of the policy of the Government as well as strictly adhere to the terms and conditions prescribed in the advertisement notice. The petitioner has placed nothing on record which would show that she has, in fact, followed the guidelines laid by the Government in the process of applying for undergoing higher study course. In absence of any such material, this Court is unable to pass any direction upon the respondents for allowing the petitioner to compete in the process of selection for the tenure posts of Demonstrator in the discipline of Anatomy. 8. In the above background, this petition is found to be without any merit, as a sequel thereto, the same shall stand dismissed along with the connected CM.