Jammu & Kashmir High Court - Srinagar Bench
Dr. Baldev Singh Wazir vs State Of Karnataka And Ors. (1998) 6 Scc ... on 4 February, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 2521 of 2011 CMP No. 4400 of 2011 CMP No. 4163 of 2011 Dr. Baldev Singh Wazir Petitioners SKIMS and others Respondents !Mr. M. A. Qayoom, Advocate ^Mr. A. Haqani, Advocate Mr. Shah Amir, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date:04 /02/2013 : J U D G M E N T :
1. Petitioner is aggrieved with Government Order No.64-SKIMS of 2011 dated 19th November 2011, whereby he has been designated as Professor, General Surgery, post of Professor in the Department of Urology is directed to be re-advertised and till the post is filled up by eligible/qualified faculty, Director SKIMS asked to function as Head of Department, Urology.
2. The background facts need to be noticed in the first instance:
3. Petitioner, with MS (Surgery) Degree to his credit, was vide Order No.23-IMS of 1989 dated 1st July 1989, appointed as Lecturer (General Surgery) in the respondent Institute. He, though appointed in the Department of General Surgery of the Institute, was asked to work in the Department of Urology. On his appointment as Assistant Professor (General Surgery) vide Order No.141-IMS of 1993 dated 16th August 1993, petitioner was retained in the Department of Urology, because of shortage of faculty. The next promotion of petitioner to the post of Associate Professor (General Surgery) was ordered vide No.13-IMS of 1997 dated 11th August 1997. The petitioner vide No.SIMS 21(P) of 2004 dated 11th March 2003, directed to act as Incharge Head of the Department of Urology till senior faculty was appointed in the department. He was thereafter vide order No.45-SKIMS of 2005 dated 17th October 2005, appointed as Professor in the Department of Urology.
4. Petitioners appointment as Professor Urology, in respondent Institute was questioned by respondent No.5 a faculty member in the Department of Urology, in a writ petition being SWP No.1122/2005, on the ground that petitioner did not possess requisite qualification and experience and was not eligible for appointment as Professor, Urology. The writ petition on 25.05.2007 was disposed of with a direction to respondent Institute to appoint a duly qualified Committee to assess the eligibility of petitioner to head of Urology, in accordance with rules and circumstances of the case and make suitable recommendations within a reasonable period of time for having a fully eligible person in place. To avoid vacuum in the department, the arrangement as on 25.05.2007 i.e. the day of judgement, in the meantime, was directed to continue.
5. The respondents in compliance of Writ Court order dated 25.05.2007, constituted a Committee to look into the matter. The Committee made its recommendations and the respondents, accepting the recommendations, vide Government Order No.64-SKIMS of 2011 dated 19th November 2011, directed re-advertisement of the post of Professor of Urology with defined criteria to appoint a suitable candidate. The petitioner is designated as Professor, General Surgery, and posted in the Department of Urology. He, in terms of the order, is to draw the salary against the post of Professor, Medical Oncology (Pediatric Oncology Unit). The respondent No.3, in terms of the order, is to function as Head of Department of Urology till such time the post of Professor in the Department of Urology is filled by eligible/qualified faculty.
6. Petitioner assails Government Order dated 19th November 2011 on the ground that the Committee, constituted in compliance of Writ Court Order dated 25th May 2007, acted beyond its jurisdiction, inasmuch as the Committee was not to assess eligibility of petitioner as Professor, Urology, but as Head of Urology. It is insisted that appointment of petitioner as Professor Urology stood concluded by Writ Court judgement dated 25th May 2007 and was no more open to any review/examination and that the controversy, if any, related to his eligibility to head the Department of Urology. The recommendations of the Committee, according to petitioner, being contrary to the directions of the Writ Court, are liable to be quashed.
7. It is next urged that respondents were under a duty to communicate recommendations made by the Committee to petitioner and allow him an opportunity to project his stand against the recommendations so made. It is pleaded that respondents by denying petitioner an opportunity to show cause against the recommendations made and action proposed to be taken on such recommendations, have prejudicially affected petitioners rights and the Government order impugned in the petition, therefore, is improper, illegal, unconstitutional and liable to be set-aside.
8. Petitioner, admitting that he was appointed as Lecturer in General Surgery, claims to have all along remained posted in the Department of Urology and therefore, not liable to be shifted from the Department at the fag end of his service. It is pleaded that petitioner, even in terms of Writ Court judgement dated 25.05.2007, had to continue as Head and Professor of Department of Urology till the post was filled up by appointing a suitable candidate and that the Director SKIMS, neither in terms of the Writ Court judgement nor recommendations of the Committee, had any power to function as Head of the Department of Urology.
9. The writ petition is opposed by respondents 1 to 4 on the ground that the recommendations made by the Committee constituted in compliance of Writ Court order dated 25.05.2007 in SWP No.1122 of 2005, are in conformity with Writ Court order and that the Government Order No.64-SKIMS of 2011 dated 19th November 2011, based on such recommendations, therefore, is beyond challenge. The Committee is said to have found petitioner not eligible to hold the post of Professor Urology and head the Department of Urology. It is next pleaded that petitioner, having been found ineligible by the Committee for the post of Professor Urology, had no right to continue as head Department of Urology and was rightly designated as Professor, General Surgery. It is insisted that petitioner, because of his ineligibility for the post of Professor Urology, cannot stand in the way of re-advertisement of the post and appointment of a suitable candidate against the post.
10. The writ petition is resisted by respondent No.5 an Associate Professor in the Department of Urology, on the ground that Sher-e- Kashmir Institute of Medical Sciences is to follow and abide by the Minimum Qualification for Teachers in Medical Institution Regulations 1998, made by Medical Council of India, while making appointments of Medical Teachers and that as the petitioner does not possess the qualification prescribed for Professor Urology, he has no right to maintain the petition and continue in such position. It is insisted that the Regulations of 1998 are statutory in nature and to be adhered to by all the Medical Colleges/ Medical Institutions including respondent Institute. It is pointed out that in terms of the Regulations of 1998, an aspirant for the post of Professor of Urology must hold M.Ch. (Urology) degree, have four years experience as Reader/Associate Professor in the Urology, and preferably must have minimum of four Research publications indexed in Index Medicus/national journal and one in International Journal to his credit. It is emphasised that petitioner neither holds M.Ch. (Urology) Degree nor has four years experience as Reader/Associate Professor in Urology, so as to be eligible to seek consideration for post of Professor Urology, muchless be appointed against the post. The very basis of the writ petition, it is pleaded, is devoid of any substance and the writ petition, therefore, liable to be dismissed.
11. I have gone through the pleadings and heard learned counsel for the parties.
12. It is now well settled that Medical Council of India Regulations have overriding effect and any law, rules, regulations or Government instructions made by the State Government on the subject have to give way to the MCI Regulations to the extent such law, rules and regulations are in conflict with MCI Regulations, unless these provide for higher standards of qualification and experience as compared to Indian Medical Council Act, 1956, or MCI Regulations. The object and purpose of the MCI Regulations is to provide high and uniform standards in all medical institutions in India. The reason being that the medical education is a field where not even the slightest compromise with the requirements of high standards, can be allowed. The Supreme Court in Medical Council of India Vs. State of Karnataka and ors. (1998) 6 SCC 131, while commenting upon the Indian Medical Council Act, 1956, and Regulations made under the Act observed:
The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III (Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council At, it will have mandatory force.
13. The Constitution Bench of the Supreme Court in Dr. Preeti Srivastava and ors. Vs. State of M.P. and ors. (1999) 7 SCC 120, reiterated law on the subject as under:
the Regulations made by Medical Council of India in exercise of its powers under Section 20 read with Section 33 are binding and the States cannot, in exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon regulations framed by Medical Council of India for Postgraduate Medical Education.
14. The principle has been followed in Arvind Kohli (Dr.) Vs. Sham Singh (Dr.) and ors. 2011 (3) JKJ 328 [HC] by the Division Bench of this Court.
15. Medical Council of India in exercise of powers, conferred by Section 33, Indian Medical Council Act, 1956, with the previous sanction of the Central Government, has made regulations called Minimum Qualifications for Teachers in Medical Institution Regulations, 1998 (hereinafter referred to as Regulations of 1998). The objectives of the Regulations of 1998 are spelt out at para 2 of Regulation (2), which reads as under:
Objectives: Appointment of medical teachers with minimum qualification and experience in various departments of medical colleges and institutions imparting graduate and post-graduate medical education is a necessary requirement to maintain a standard of teaching.
16. Regulation (3) makes mandatory for all the Medical Colleges/Institutions, imparting Graduate and Post Graduate medical education to adhere to the minimum qualification prescribed under Regulations, while making appointments of Teachers in various departments, as laid down in Schedules I & II of the Regulations. It would be advantageous to reproduce hereunder Clauses 3 and 6 of the Schedule I:
3. Medical teachers in all Medical Colleges except the Tutors, Residents, Registrars and Demonstrators must possess the requisite recognized Postgraduate Medical qualification in their respective subject.
6.The teachers in a medical college or institution having a total of eight years teaching experience out of which at least five years teaching experience as Lecturer or Asst. Professor gained after obtaining postgraduate degree shall be recognised as postgraduate teachers in broad specialties. In the case of super-specialties only those teachers who possess eight years teaching experience out of which at least five years teaching experience as Lecturer/Asst. Prof. gained after obtaining the higher speciality degree shall be recognised as postgraduate teachers.
17. Regulations of 1998 in Schedule-II prescribe following qualification and experience for the post of Professor, Urology:
UROLOGY (A) Professor M.Ch.(Urology)
(i) As Reader/Associate Professor in Urology for four years in a recognised medical college/teaching institution.
Desirable
(ii) Minimum of four Research publications indexed in Index Medicus/national journal and one in International Journal.
18. It is pertinent to point out that the Regulations of 1998 stand amended vide Notifications dated 24th July 2009 and 15th December 2009. However, for the purpose of present controversy, the Regulations of 1998 occupy the field as is made clear by Notification dated 15th December 2009. The Regulations as amended upto date vide Notifications dated 24.07.2009 and 15.12.2009, may nevertheless be noticed:
(A) Professor M.Ch.(Urology)
(i) As Associate Professor in Urology for three years in the recognized medical college.
(ii)Minimum of four research publications in indexed/national journals.
(ii)Minimum of four research publications in indexed/national journals.
Provided that these research publications are published/ accepted for publication in the Journals by the National Associations/Societies of the respective specialities as the First Author. Further provided that the requirement of 4 research publications for promotion to the post of Professor should be taken on cumulative basis with minimum of 2 research publications must be published during the tenure of the Associate Professor.
Further provided that for the transitory period of 4 years w.e.f.
24th July, 2009, the appointment /promotion to the post of Professor can be made by the institutes in accordance with the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 as prevailing before notification of Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2009.
19. The petitioners eligibility for the post of Professor is to be assessed at the touchstone of qualification and experience prescribed under the Regulations of 1998.
20. The petitioner, by his own admission, has done M.S. (Surgery) in November 1985 from Postgraduate Institute of Medical Education and Research, Chandigarh. He, as per Annexure A to the petition, during two years Postgraduate Programme, worked in General Surgery and as per programme format rotated in all the surgical specialities i.e. Cardiothoracic and Vascular Surgery, Neuro-Surgery, Ortho-Surgery, Plastic Surgery, Urology, Paediatric Surgery and Emergency. He, vide Government Order No.23-IMS of 1989 dated 1st July 1989, was appointed as Lecturer, General Surgery. The petitioner, admittedly, does not have M.Ch. Urology Degree to his credit and therefore, does not have qualification prescribed under the Regulations of 1998, for the post of Professor of Urology.
21. It is pertinent to point out that petitioner was appointed as Assistant Professor (General Surgery) in respondent Institute vide order dated 16th August 1993 and thereafter appointed as Associate Professor (General Surgery) vide Order dated 11th August 1997. The petitioner, therefore, did not hold the position of Associate Professor, Urology, to seek consideration for appointment as Professor, Urology. He, in the circumstances, does not possess experience prescribed under Regulations of 1998, for the post of Professor, Urology. This destabilises the very foundation of petitioners case, warranting its dismissal without any further discussion. However, in view of case set up, it would be appropriate to deal with the grounds urged to seek the relief claimed in the petition.
22. The first and foremost ground urged in the petition relates to petitioners placement as Lecturer in the Department of Urology in respondent Institute in wake of his appointment as Lecturer, General Surgery, vide order No.23-IMS of 1989 dated 1st July 1989 and his long stay, stretching over a period of little-over 23 years in the said department. The petitioner insists that he, by serving in the Department of Urology in the respondent Institute for such a long time, has gained enough experience and immense public confidence, to man the post of Professor Urology. The petitioner pleads that he has been given a rough deal by respondent Institute, by retaining him in the Department of Urology and declining his request made way back in 1993 to depute him for the M.Ch. (Urology) Course. The facts set out may evoke sympathy for the petitioner but does not clothe him with any right to seek consideration, let alone appointment against the post of Professor Urology. It is pertinent to point out that the petitioner, after he was appointed as Lecturer, General Surgery, on 1st July 1989 and about 10 days thereafter deputed to Department of Urology, sought his promotion to the next higher position in his own discipline i.e. General Surgery. He was, accordingly, promoted/appointed as Assistant Professor, General Surgery, vide Government Order No.14-IMS of 1993 dated 16th August 1993 and thereafter Associate Professor in General Surgery on 11th August 1997. The petitioner did not question the order dated 16th August 1993 or order dated 11th August 1997, on the ground that he, having worked in the Department of Urology, was to be appointed as Assistant Professor Urology/Associate Professor, Urology, in the respondent Institute.
23. Petitioner, even while responding to Advertisement Notice No.01 of 2004 dated 31.12.2004, applied for the post of Professor, Urology, and also for appointment by promotion for the post of Professor, General Surgery, under Assessment Merit Promotion Scheme (AMPS) Rules. He, however, did not appear before the Apical Selection Committee on 25th August 2005, though he figured in the list of candidates before the Committee and in the Column titled Recommendations, he was reported not interested and not evaluated. He, for the reasons best known to him, decided to ride two boats and aspire for a post for which he was, to his knowledge, not eligible. Petitioner accepted the appointment/promotion that came his way in the Department of General Surgery. He, on the strength of his posting in the Department of Urology, cannot claim a right to be considered for Professorship in Urology when he neither possesses the qualification nor experience prescribed for the post under the Regulations of 1998. It would be dangerous proposition to hold that a person, neither having prescribed qualification nor equipped with experience as prescribed under rules, should be considered for a faculty position only because he, in view of administrative exigency, has been asked to serve in a particular department. The petitioner might have served in the Department of Urology to the satisfaction of one and all and gained necessary experience but that, by itself, does not confer on him right to seek Professorship in a super-speciality.
24. The petitioners case that the Writ Court in SWP No.1122/2005, while directing constitution of Committee vide order dated. 25.05.2007, restricted the scope of its power to consider petitioners eligibility to head of Urology Department in accordance with rules and the Committee, while examining petitioners eligibility for the post of Professor Urology, had overstepped its jurisdiction and violated mandate of Writ Court judgement, is bereft of any merit. The petitioner cannot pickup one line from para 08 of the judgement in question, divorced from the context in which the direction was passed, to build up his case. It needs to be pointed out that the Order No.45-SKIMS of 2005 dated 17th October 2005, whereby petitioner was appointed as Professor, Urology, in the respondent Institute, had been in effect questioned by respondent No.5 while asking for a writ of quo warranto, on the ground that petitioner was not eligible for the post and was a usurper thereof. The Writ Court order dated 25.05.2007 in SWP No.1122/2005, in its first para sums up writ petitioners (respondent No.5 herein) case as under:
The petitioner is a faculty member of Urology department in SKIMS, Srinagar who impugns the appointment of respondent No.5 as professor in the department on the ground that he did not have the requisite qualification for being selected/appointed against the post or to hold it in continuity and accordingly seeks issuance of a writ to have him removed from the post as a usurper thereof with active connivance of respondents 1 to 3.
25. The respondent Institute questioned respondent No.5s/writ petitioners locus standi, to throw challenge to the petitioners appointment as Professor, Urology, and insisted that while all other Doctors had left the State in pursuit of better prospects, the petitioner had stood back to serve the people and rendered valuable service while performing his duties in the Department of Urology. The Writ Court, after summarising the pleadings, observed as under:
.even while not having a M.CH degree and lacks in eligibility on that count, particularly because he originally belongs to the department of General Surgery even while admittedly working in Urology department right since 1989.
In backdrop of these circumstances arises the question whether or not respondent No.5 should be allowed to continue in his present position. Going by the record of his acknowledged performance, the respondent/ Institute strongly recommends his continuation which, however, strong it may be cannot be a substitute for the requisite eligibility. The Court thereafter proceeded to direct appointment of a duly qualified Committee to assess the eligibility of petitioner (respondent No.5 in SWP No.1122/2005) to head of Urology Department in accordance with rules. It was further suggested that to avoid the vacuum in the Department, the present arrangement may be continued till the Committee makes its recommendations. The Writ Court, in the operative portion of the order, spelt out object of recommendations to be made by Committee as having a fully eligible person in place. The Writ Court was prompted to make such observation only after it was satisfied that petitioner was not fully eligible for the position he held and the recommendations of the Committee would ensure that the position of Professor in the Department Urology and such positions in other departments are manned by the person(s) having requisite eligibility. The above facts abundantly makes it clear that the matter, substantially and directly in issue before the Writ Court, was whether the petitioner was eligible for the post of Professor Urology, and the Court, in unambiguous and unequivocal terms, held petitioner not eligible for the post. The Writ Court direction, therefore, is to be read in context of the case set up and the issue before the Court and not to be read in isolation. The Court not only put a question mark on petitioners eligibility for the post of Professor Urology, but declared him not eligible for the post. This apart, headship of the department is closely linked with professorship in a particular discipline. It would be highly preposterous, even to assume that a person not eligible to be Professor in a particular department or hold senior faculty position, would be eligible to head that department. The argument advanced by learned counsel for petitioner in the circumstances is specious and far from convincing. So viewed, the Committee cannot be held to have travelled beyond its jurisdiction while assessing/examining petitioners eligibility for the post of Professor Urology.
26. Learned counsel for petitioner next argues that petitioner fulfils the criteria for the post of Professor, Urology, in terms of Sher-e-Kashmir Institute of Medical Sciences Faculty Member (Revised Pay) Rules, 2000, notified vide SRO 378 dated 18th October 2000. It is pointed out that respondent Institute, in the matters of recruitment, promotion and selection process, in terms of the aforesaid Rules, has to follow the norms adhered to by All India Institute of Medical Sciences, New Delhi, (AIIMS) and that in terms of such norms, as conveyed to the respondent Institute by Registrar, AIIMS, vide its No.F.4-1/2004-Acad.I dated 16.05.2005 (Annexure P/5), the D.M./M.Ch. was not as on the date of communication essential qualification for the post of Professor, Urology. Learned counsel insists that petitioner with M.S. in General Surgery and more than 14 years teaching experience, was and continues to be eligible for the post of Professor, Urology, and therefore, rightly considered and appointed against the post. The argument must fall for the reason that SRO 378 of 18th October 2000, as already pointed out, has to give way to the Regulations of 1998 and is stripped of its force to the extent it is in conflict with aforementioned Regulations. Again, the argument is advanced oblivious to the mandate of Rule 3 of the Rules of 2000 (SRO 378). Rule 3, while making reference to norms applicable in AIIMS, New Delhi, lays equal emphasis on norms prescribed by Medical Council of India. Proviso to Rule 3 needs to be noticed. It reads:
Provided further that the revised hierarchy of the Faculty as per the first proviso shall be subject to such recruitment, promotion and selection process as is and shall be applicable in AIIMS New Delhi in relation to various Faculty Positions in accordance with the norms prescribed by Medical Council of India. Looking from any angle, petitioner is not and was not eligible for the post on the date of his appointment for the post of Professor, Urology.
27. The Government Order No.64-SKIMS of 2011 dated 19th November 2011, impugned in the petition, as stated, is also questioned on the ground of violation of principles of natural justice. There can be no quarrel with the proposition that principles of natural justice are to be adhered to even while passing an administrative order, having civil consequences. The principle of audi alteram partem obligates the authority to afford affected person an opportunity of being heard before passing an order. The Committee, according to learned counsel for petitioner, ought to have afforded an opportunity to petitioner to project his stand before making its recommendations and that respondents, before acting on the recommendations, should have issued a show cause notice to petitioner. The argument is to be appreciated against factual backdrop of the case. The petitioner, as already held, had neither qualification nor experience required under the Regulations of 1998 for the post of Professor, Urology. He, because of lack of prescribed qualification and experience, could not have been considered muchless appointed as Professor, Urology, in the respondent Institute. The right of hearing to petitioner in the circumstances would have been nothing except an empty or idle formality for the reason that petitioner admittedly did not have M.Ch. Urology to his credit nor had four years experience as Reader/Associate Professor, Urology. Even if petitioner was issued show cause notice and given an opportunity to project his case, it in view of admitted position, would not have served any purpose. The Government Order No.45-SKIMS of 2005 dated 17th October 2005 qua petitioner being illegal ab initio, quashment of Government Order No.64-SKIMS of 2011 dated 19th November 2011, on the ground of violation of principles of natural justice, is bound to revive an illegal order. Such a course is not permissible under law. While holding so, I draw support from the following reported cases:-
i) In M.C. Mehta v. Union of India (1999) 6 SCC 237, Supreme Court, referring to law laid down in Gadde Venkateswara Rao v.
Government of Andhra Pradesh and others AIR 1966 SC (828), observed:
The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party in violation of the principles of natural justice or is otherwise not in accordance with law.
ii) The principle was reiterated in Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others (1999) 8 SCC 16, where Supreme Court declined to set-aside an order, observing In the event it is set aside it would amount to reviving an invalid order.. It may be stated at the cost of repetition that Government order No.45-SKIMS of 2005 dated 17th October 2005, whereby petitioner was appointed as Professor, Urology, was in conflict with the Regulations of 1998 and, therefore, on the face of it, illegal and de hors the Rules. The petitioner, in the circumstances, cannot be heard saying that he was not provided an opportunity to show cause against Government Order No.64-
SKIMS of 2011 dated 19th November 2011, that in effect recalled the Order No. 45-SKIMS of 2005 dated 17th October 2005, for being violative of Regulations of 1998 and therefore, deserved to be cancelled, as setting aside Government Order No.64-SKIMS of 2011 dated 19th November 2011 on the basis of violation of principles of natural justice, would amount to restoration of an illegal order. Needles to say that Government Order No. 64-SKIMS of 2011 dated 19th November 2011 has been passed in compliance of Writ Court order dated 25.05.2007, and in the background of observation made by the Court that petitioner was not eligible for the post of Professor, Urology.
28. The petitioner, though a member of Department of General Surgery, has been allowed to continue in the Department of Urology for last more than two decades. He, as already pointed out while accepting promotion after promotion in his parent department without any objection, only because he has taken a liking to the Department of Urology, cannot claim Professorship in Urology when, to his knowledge, he does not possess requisite qualification and experience. The petitioner at no stage of his career has been put to any disadvantage because of his posting in the Department of Urology, as he was, notwithstanding his posting, given promotion as Assistant Professor and Associate Professor in his department (General Surgery) at right time and allowed to complete for the post of Professor Surgery under Assessment Merit Promotion Scheme (AMPS) Rules, though he decided not to appear before the Apical Selection Committee. The petitioner appears to have no reason to complain as the Government order impugned in the petition, designates him Professor of General Surgery and therefore, does not lower down his status. The petitioner cannot have grouse as regards Director of the respondent Institute being asked to function as Head of Department of Urology till the post is filled up by eligible/suitable faculty as the petitioner having no right to hold the post of Professor Urology, and Head of Department, Urology, has nothing to do with the day-to-day administration of the Department. The Director of the respondent Institute, otherwise exercising overall administrative control of the respondent Institute and discharge duties connected therewith, is equally competent to run the affairs of the Department of Urology for the brief interval or transitory period till such function are taken over by a duly selected candidate.
29. For the reasons discussed, writ petition is without any merit and is, accordingly, dismissed. Interim order, if any, in force, is recalled. This is to clear the decks for initiating selection process for selection/appointment for the post of Professor, Urology, in accordance with rules. The respondent Institute is expected to be alive to the urgency involved in the matter and complete the selection process by 5th March 2013.
( Hasnain Massodi ) Judge Srinagar 04/02/2013 Ajaz Ahmad