Jammu & Kashmir High Court - Srinagar Bench
Mubashir Hassan Shah vs S.K. Institute Of Medical Sciences And ... on 7 February, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
S. No. 112
Supplementary list
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP (C) no. 270/2020
CM no. 482/2020
Mubashir Hassan Shah
.... Petitioner(s)
Through:- Mr Z. A. Shah, Sr. Advocate with
Mr A. Hanan, Advocate
v/s
S.K. Institute of Medical Sciences and others
.... Respondent(s)
Through:- Mr Shah Aamir, AAG for caveator.
CORAM:
HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
ORDER
07.02.2020 Caveat no. 77/2020 Heard learned counsel for the caveators. Caveat is discharged. The petitioner challenges the Government Order No. 05-SKIMS of 2020 dated 11.01.2020, for short impugned order, by virtue of which the respondent no. 3 has been appointed as Assistant Professor in the department of Neonatology of Sheri Kashmir Institute of Medical Sciences, Soura, Srinagar, for short, SKIMS. The challenge to the order is made on the ground that the appointed candidate is ineligible for the post in terms of the Advertisement Notice and the Medical Council of India Regulations.
It is stated in the writ petition that SKIMS issued an advertisement Notice seeking candidature of eligible candidates for filling up the post of Assistant Professor in the department of Neonatology vide Advertisement Notice No. 01 of 2019 dated 02.03.2019 and the prescribed qualification for the post in question was laid down as "D.M (Neonatology)/ M.D. (Paediatrics) with 02 years' special training in Neonatology".
It is further stated in the writ petition that petitioner along with other candidates responded to the advertisement notice and the Apical Selection Committee of SKIMS interviewed five candidates including petitioner and respondent no. 3 and ultimately in terms of the impugned order the respondent no. 3 came to be appointed against the post in question.
Learned senior counsel appearing for the petitioner submits that the petitioner despite being eligible has been ignored and an ineligible candidate, respondent no. 3, has been appointed against the post in question in gross violation of the applicable norms and the advertisement notice. In support of his submissions the learned senior counsel referred to the biodata of the respondent no. 3 and submitted that the respondent no. 3 has appeared in DNB Final Examination conducted by the National Board of Examination in December, 2018 and the result of the examination was issued on 20 th June, 2019, while as the last date for submission of applications was 6th April, 2019, therefore, the learned senior counsel submits that the impugned order is bad in law as it appoints an ineligible candidate against the post in question.
Furthermore, he submits that the weightage given to the 2 years Neonatology Training of the respondent no. 2 obtained from Fernandez Hospital, Hyderabad, is not a teaching hospital in terms of the MCI Notification and the said hospital is not a multi-speciality hospital and does not have more than 500 beds, therefore, while pointing towards the ineligibility of the candidate appointed against the post, the learned senior counsel submits that the petitioner is the rightful candidate for the post in question and requires to be so appointed.
Mr Shah Aamir, learned Additional Advocate General, who is on caveat on behalf of respondents, submits that there is nothing bad in the impugned order as the respondent no. 3 fulfils the criteria insofar his DNB degree is concerned. He submits that the MCI norms/ regulations have been amended in terms of Notification published in the Gazette of India dated 7 th June, 2019, by virtue of which the respondent no. 3 is very much eligible.
He further submits that even in terms of the un-amended norms of the MCI the respondent no. 3 is eligible as he has the requisite qualification prescribed in terms of the advertisement notice.
I have heard learned counsel for the parties and considered the submissions made.
At this stage the submissions made by the learned counsel for the petitioner, appear to be carrying weight in comparison to what the learned counsel appearing for the caveators/ respondents is submitting. The amendment of the Rules referred to by the learned counsel for the caveators has been issued admittedly on 7 th June, 2019, when the process of interview for the post in question was already over, therefore, the same cannot hold good to the case in hand as the law cannot have a retrospective effect.
Mr Shah Aamir, AAG, was asked to supply the record vis-à-vis declaring the respondent no. 3 eligible while screening his application. The record submitted reveals that the Screening Committee has considered the candidature of respondent/ selectee on the strength of having possessing the DM course with two years Special Training in Neonatology.
Prima-facie it appears that the selection of respondent no. 3 has been made by application of amended rules made in terms of Notification dated 7 th June, 2019, which is prospective in nature.
Admit.
Notice on instructions is waived by Mr Shah Aamir, AAG, on behalf of respondents 1 and 2. Notice shall be issued to respondent no. 3.
In the meanwhile, subject to objections of other side and till next date of hearing, the operation of the impugned order is stayed. The Director, SKIMS, is directed to ensure that the respondent no. 3 is not allowed to perform any duty in the Institute till next.
Learned appearing counsel for the SKIMS prays that shorter time be granted for filing the reply. At his request only week's time is granted for filing the reply.
List on 17th February, 2020.
Record be returned to Mr Shah Aamir, AAG.
(ALI MOHAMMAD MAGREY) JUDGE Srinagar 07.02.2020 Amjad Lone PS AMJAD AHMAD LONE 2020.02.13 09:35 I attest to the accuracy and integrity of this document