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2019 DIGILAW 360 (JK)

Abdul Roof v. State of J&K

2019-07-30

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 petitioners are seeking the following relief(s) in their favour: “That the respondents be directed to allow the petitioners to compete the process of selection for the tenure posts of Registrars and Demonstrator in disciplines of Social and Preventive Medicine and Anatomy in respondent no.3 college, advertised in terms of advertisement notification dated 20-5-2019 and 13-6-2019 and consequently the respondents 1 and 2 be directed to issue NOC to the petitioners and respondent no.3 be directed to allow the petitioners to compete the process of selection for the said tenure posts. In the event the petitioners succeed on the basis of their merit in such process of selection the respondents shall be directed to select and appoint the petitioners for the tenure posts of Registrars and Demonstrator in their respective disciplines in respondent no.3 college on the basis of their 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 petitioners 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 petitioners and against the respondents as same shall be in the interest of justice and equity.” 02. The petitioner Nos. 1 and 2 claim that they were appointed as Medical Officers in the respondent Department in June, 2010; petitioner No.3 in August, 2005 and the petitioner No.4 in March, 2014. It is stated that by notifications dated 20th of May, 2019 and 13th of June, 2019, issued by the respondent No.3, applications were invited for tenure posts of Registrars/ Demonstrators in different disciplines, including the disciplines of Social & Preventive Medicine and Anatomy, from the eligible (in-service/ Non-PSC doctors) candidates. It is stated that the eligible in-service doctors, possessing the requisite qualification, were 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, were 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 petitioners, being eligible, submitted their application forms against the tenure posts in their respective disciplines before the respondent No.3, but without NOC from their parent department on the ground that the respondent Nos. 1 and 2 did not issue the same in their favour and that the respondent No.3 accepted the application forms of the petitioners against the said tenure posts. 03. The grouse of the petitioners, at this stage, is that since the respondents are contemplating to conduct the interview for the posts in question and, therefore, they are seeking a direction in the name of the respondent No.3 to allow them to compete in the process of selection for the post of Registrar/ Demonstrator in the disciplines of Social & Preventive Medicine and Anatomy, notwithstanding the issuance of NOC in their favour by the respondent Nos. 1 and 2 and, thereafter, appoint the petitioners in their respective disciplines on the basis of their merit. 04. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 05. 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 apply for tenure posts/ 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 petitioners have applied for undergoing selection against the tenure posts of Registrar/ Demonstrator on their 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. 06. It is, thus, clear that the process of applying for tenure posts/ 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. 06. It is, thus, clear that the process of applying for tenure posts/ 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/Registrarship/ 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 alongwith 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. 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, moreso, 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/ applying for tenure posts, viz. Registrarship, Demonstrarship, 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/ applying against the tenure posts to procure permission from the Administrative Department for consideration of his/ her application form for the said higher study course. 07. The eligibility criteria stipulated for the in-service candidates in the advertisement notices in question clearly provides that the applicants working in the Health and Medical Education Department are required to submit their application forms alongwith ‘No Objection Certificate’ from their parent Department without which their applications forms shall not be entertained. In the instant case, apparently, the petitioners appear to have applied for applying against the tenure posts/ pursuing the higher study courses on their 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 notices. In case, the petitioners were desirous of applying for tenure posts/ undergoing higher study course, it was incumbent upon them 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 notices. The petitioners have placed nothing on record which would show that they have, in fact, followed the guidelines laid by the Government in the process of applying for tenure posts/ undergoing higher study course. The petitioners have placed nothing on record which would show that they have, in fact, followed the guidelines laid by the Government in the process of applying for tenure posts/ undergoing higher study course. In absence of any such material, this Court is unable to pass any direction upon the respondents for allowing the petitioners to compete in the process of selection for the tenure posts of Registrar/ Demonstrator in the disciplines of Social & Preventive Medicine and Anatomy. 08. In the above background, this petition is found to be without any merit, as a sequel thereto, the same shall stand dismissed alongwith the connected CM. 09. Before parting with the instant case, I may note that this issue of pursuing higher study courses/ applying against the tenure posts by the in-service Medical Officers of the Health and Medical Education Department repeatedly keeps cropping up before the Court. The Government, in addition to the policy formulated by them in the shape of Circular No.03-HME of 2019 dated 27th of May, 2019 for regulating the process of undergoing higher study courses/ applying against the tenure posts by the in-service Medical Officers, having regard to providing quality health care facilities to the general public as also the rights and interests of the in-service Medical Officers, need to devise a mechanism so that no in-service Medical Officer is dragged to the Court unnecessarily. In this regard, the Court proposes to issue the following directions for regulating the process of undergoing higher study courses/ applying against tenure posts by the in-service Medical Officers: I. The Government shall constitute a Committee for issuing NOC in favour of such eligible in-service Medical Officers/ other Doctors desirous of undergoing higher study courses/ applying against the tenure posts from now onwards; II. The Committee, so constituted, shall invite applications from amongst the eligible in-service Medical Officers/ other Doctors desirous of undergoing higher study courses/ applying against the tenure posts in the first week of January of each year; III. The Committee, so constituted, shall invite applications from amongst the eligible in-service Medical Officers/ other Doctors desirous of undergoing higher study courses/ applying against the tenure posts in the first week of January of each year; III. The Committee shall, thereafter, scrutinize the applications received from the in-service Medical Officers/ other Doctors and, on proper consideration and having regard to the guidelines framed vide Circular No.03-HME of 2019 dated 27th of May, 2019 with reference to providing quality health care facilities to the general public as also the rights and interests of these eligible Medical Officers/ other Doctors, make recommendations in favour of eligible Medical Officers/ other Doctors for undergoing higher study courses/ applying against tenure posts in a particular year on the basis of seniority; IV. The Government shall, thereafter, consider the recommendations of the Committee and finalize the list of Medical Officers/ other Doctors with reference to grant of NOC in the last week of February of each year; and V. No application form of any in-service Medical Officer/ other Doctor shall be entertained after the aforesaid process is completed. 10. Registry to convey the order to the Chief Secretary of the State, copy whereof shall also be furnished to Mr Shah Aamir, the learned Additional Advocate General.