Jammu & Kashmir High Court
Dr Kuldeep Kumar Koul And Ors vs State And Ors on 16 August, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No. 1147/2007, IA Nos. 1639/2007, 221/2011
SWP No.637/2013, IA Nos. 01/2015, 2572/2014, 874/2013
SWP No.2028/2007, IA No.2927/2007
Date of order: 16 .08.2018
Dr. Kuldeep Kumar Koul and anr Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner/(s) : Mr. P.N.Bhat Advocate.
For the Respondent (s) : Mr. H.A.Siddiqui Sr. AAG.
Mr. F.A.Natnoo Advocate Mr. Kapil Gupta Advocate Mr. F.S.Butt Advocate
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No 1 The controversy raised in all the aforesaid writ petitions is interconnected and the factual averments made therein are inextricably interwoven, therefore, it is not possible for this Court to decide the one petition without reference to the other. Accordingly, all the three writ petitions, though heard on two different dates, have been taken up together and are being disposed of by this common judgment.
2 The facts stated in SWP No.1147/2007, which was the first writ petiton filed by the petitioners, are being noticed.
Pursuant to the recommendations made by J&K Public Service Commission (for short 'PSC'), the petitioners came to be appointed as Medical SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 1 of 9 Officers in ISM vide Government Order No.231-HME of 1993 dated 10.03.1993. During the currency of their service, the petitioners were nominated for undergoing M.D (Unani) course for the year 2003-04 which course they successfully completed in the year 2005-2006. Respondent Nos. 3 and 4 also did their Post Graduation in Unani. Respondent No.3 completed his M.D (Unani) from Jamia Hamdard University, New Delhi on 11.12.1995, whereas respondent No.4 had also completed his M.D (Unani) prior to the petitioners. Respondent No.1 issued final seniority list of Medial Officers, Ayurvedic/Unani of ISM wing of Health Department as it stood on 01.12.2005 vide Government Order No. 664-HME of 2005 dated 11.12.2005 in which the name of petitioner No.1 figured at S.No.76, whereas name of petitioner No.2 figured at S.No.77. Similarly, respondent No.3 and 4 were figuring at S.No.81 and 86 respectively.
The petitioners claim that they are senior to respondent Nos. 3 and 4 having been appointed as Medical Officers on 10.03.1993 and shown higher up in the seniority list than respondent No.3 and 4. During the year 2006, in the absence of statutory rules governing the recruitment of the Medical Officers, Ayurvedic/Unani, it was an Executive Order issued by the Government vide its order No.486-HME of 2001 dated 16.07.2001 that was occupying the field. As per the said order, the mode of recruitment and the qualification prescribed for the post of Physician Specialists (B-Grade), Ayurvedic/Unani was 100% by promotion from amongst the Medical Officers on the basis of their seniority in terms of service with PG Degree in Ayurvedic/Unani and possessing at least five years regular service. There were two separate seniority lists maintained in the discipline of Unani and Ayurvedic respectively.
3 The grievance of the petitioners in SWP No.1147/2007 is that despite the fact that they were senior to respondent Nos. 3 and 4 and were also possessing SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 2 of 9 the qualification of M.D, Unani, yet respondent No.5 i.e PSC recommended the promotion of respondent Nos. 3 and 4 as Physician Specialists (B-Grade), Unani ignoring the superior claim of the petitioners. It is this recommendation of the PSC made vide its communication dated 25.05.2007 which is called in question in SWP No.1147/2007. The said writ petiton has been resisted by the official as well as the private respondents, who have filed their separate objections to the maintainability of the said writ petiton.
4 In the objections filed by respondent Nos. 1 and 2, the stand taken is that prior to issuance of SRO 379 of 2006, the field was occupied by Government Order dated 16th July 2001 and the post of B-Grade Specialist was required to be filled up 100% by promotion from amongst the Medical Officers on the basis of their seniority in terms of service with PG Degree in Ayurvedic/Unani and possessing at least five years regular service. It is stated by respondent Nos. 1 and 2 that respondent Nos. 3 and 4, who were having the requisite service and were possessing M.D qualification in Unani, were promoted as B-Grade Specialists in their own pay and grade against clear vacancies prior to issuance of SRO 379 of 2006. It is further stated that it may be true that the petitioners are senior to respondent Nos. 3 and 4 as Medicals Officers, Unani, but at the time of occurrence of vacancies for promotion to the post of B-Grade Specialists, the senior most eligible Medical Officers with M.D qualification were respondent Nos. 3 and 4 and, therefore, they were made In-charge B- Grade Specialists pending clearance by DPC/PSC. It has been categorically submitted by the official respondents that at the time when two posts of B- Grade Specialist were filled up by promoting respondent Nos. 3 and 4 in In- charge capacity, none of the petitioners was possessing the qualification of Post Graduation in Unani.
SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 3 of 95 In nutshell, the stand taken by respondent Nos. 1 and 2 is that since respondent Nos. 3 and 4, who were otherwise eligible in terms of Rules then in- vogue, had been put In-charge B-Grade Specialists, as such, their cases were placed before DPC/PSC for confirmation against the said posts. The DPC/PSC, after finding them eligible and being senior most eligible candidates available when posts were filled up in In-charge Capacity, recommended the promotion of respondent No. 3 notional w.e.f 01.05.2000 and regular w.e.f 17.01.2002. Similarly, the promotion of respondent No.4 was recommended notional w.e.f 01.04.2002 and regular w.e.f 17.05.2002. In the separate reply filed by respondent Nos. 3 and 4, similar stand has been taken. It is submitted by them that the statutory recruitment rules were issued vide SRO 379 of 2006 dated 12.12.2006 which provided that the post of B-Grade Specialist would be filled up 100% by direct recruitment and not through promotion. It is, thus, submitted that prior to 12.12.2006, the field was occupied by an Executive Order which provided that the post of B-Grade Specialist was required to be filled up 100% by promotion from amongst Medical Officers (Unani) having five years service and possessing Post Graduation i.e M.D (Unani). On the lines of the official respondents, respondent Nos. 3 and 4 have contended that when the posts of B-Grade Specialist became available, respondent Nos. 3 and 4 were the senior most eligible candidates, for, by that time, none of the petitioners had completed his/her Post Graduattion i.e M.D in Unani. In nutshell, the stand taken by respondent Nos. 3 and 4 is that in the light of Executive Order (supra), they were righty made In-charge B- Grade Specialists in Unani and were, therefore, entitled to be regularised w.e.f the date they had been placed as In- charge B-Grade Specialists. The PSC, therefore, committed no illegality in directing the regularization of promotion of respondent No.3 and 4 from the retrospective dates as indicated in the impugned communication dated 25.05.2007.
SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 4 of 96 It appears that while SWP No.1147/2007 was pending, respondent No.1 acted upon the recommendations made by PSC impugned in the said writ petiton and issued Government Order dated 06.07.2007 whereby the services of respondent No.3 as B-Grade Specialist were regularised notional w.e.f 01.05.2000 and regular w.e.f 17.02.2002. This Government Order was made subject matter of challenge by the petitioners in SWP No. 2028/2007. There is no need to refer to the facts of the said writ petiton for the reason that the order impugned in the said writ petiton is only a fall out of the recommendations of the PSC impugned in SWP No. 1147/2007. The petitioners have filed yet another writ petiton being SWP No.637/2013 in which the petitioners have again called in question the Government Order dated 06.07.2007 and have sought a direction for their promotion as B-Grade Specialists ahead of respondent No.3 with all consequential benefits.
7 From the perusal of the facts narrated by the petitioners in all the three writ petitions, it is abundantly clear that the only question which needs determination is as to whether respondent Nos. 3 and 4, particularly respondent No.3 Dr.Showkat Hussain Ittoo was rightly given the promotion to the post of B-Grade Specialist notionally w.e.f 01.05.2000 and regularly w.e.f 17.05.2002. The said question would determine the fate of all the three writ petitions which primarily arise in the same context of facts. An allied question, which also requires determination is, as to whether the qualification of M.D (Unani) acquired by respondent No.3 without having been in service for five years and without requisite permission from the competent authority could be taken to be valid qualification for the purposes of granting further promotion.
8 I have heard learned counsel for the parties and perused the record.
9 There is no dispute that both the petitioners are senior to respondent Nos. 3 and 4. It is also a fact that respondent Nos. 3 and 4 like the petitioners have SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 5 of 9 also done their M.D in Unani. It has come on record that two posts of B- Specialists were available for promotion from amongst the eligible Medical Officers in the year 2002 and during the said year, the mode of recruitment and qualification was not governed by any statutory rules, but by the Executive Order i.e Order dated 16.07.2001. As per the said order, the post of B-Grade Specialist was to be filled up 100% by promotion from amongst Medical Officers on the basis of their seniority in terms of service with PG Degree in Unani and possessing at least five years regular service. The petitioners, who qualified their M.D in the year 2005 were, thus, not eligible for promotion, though they were senior to respondent Nos. 3 and 4. Respondent Nos. 3 and 4 being eligible in terms of service and otherwise having done their M.D (Unani) were, thus, considered and were promoted as In-charge B-Grade Specialist vide Government Orders dated 17.01.2002 and 17.05.2002 respectively. While they were continuing in service and holding the aforesaid posts in In-charge capacity, the statutory rules, providing for mode of recruitment and minimum qualification for promotion to the post of B-Grade Specialist, came to be issued vide SRO No.379 of 2006 and the post of B-Grade Specialist was provided to be filled up 100% by direct recruitment.
10 Since respondent Nos. 3 and 4 had been continuing in In-charge capacity and were holding the said posts subject to their confirmation from DPC/PSC, their cases were placed before DPC/PSC for consideration. The PSC vide its communication impugned in SWP No. 1147/2007 recommended their cases for their retrospective promotion with effect from the date they were holding the said posts in In-charge capacity. On the recommendation of PSC to give effect to the promotion of respondent No.3 notionally w.e.f 01.05.2000 and regularly w.e.f 17.01.2002, the Government issued Order dated 06.07.2007 which is impugned in SWP Nos. 2028/2007 & 637/2013.
SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 6 of 911 The grievance of the petitioners as projected in all the three writ petitions is two fold. One, that the petitioners being senior were entitled to be considered for promotion prior to respondent Nos. 3 and 4 and another, that when the matter was placed before DPC/PSC for promotion to the post of B-Grade Specialist i.e on 25.05.2007 and when the order of promotion of respondent No.3 was issued on 06.07.2007, the petitioners had acquired the requisite eligibility and had qualified their M.D course in Unani and, therefore, they being senior to respondent Nos. 3 and 4 should have been considered and promoted. The arguments of learned counsel for the petitioners do not hold any substance for the reason that respondent No.3 and respondent No.4 were put In-charge B-Grade Specialists in the year 2002 and 2003 and, therefore, they were entitled to be promoted from the said date, provided the official respondents would have placed their cases before DPC/PSC with reasonable dispatch. It is none of their faults that their cases could not be placed before the DPC/PSC for almost four years and in the meantime, the petitioners also acquired the eligibility qualification.
12 In view of the law laid down by the Supreme Court in Suraj Parkash Gupta vs State of Jammu and Kashmir and ors, AIR 2000 SC 2386, respondent Nos.3 and 4 herein, whose promotion alone has been called in question in these writ petitions were entitled to be regularised as B-Grade Specialists w.e.f the date they were put In-charge B-Grade Specialists .This was only subject to the fulfilment of following conditions:
i. That there were posts available when respondent Nos.3 and 4 were made In-charge B-Grade Specialists;
ii. That the post was meant for promotion;
iii. That respondent Nos. 3 and 4 were fully eligible in terms of the rules then in-vogue to hold the said posts.SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 7 of 9
13 Admittedly, respondent No.3 was satisfying all the three conditions and, therefore, was rightly placed as B-Grade Specialists along with respondent No.4. The right of regularization/promotion to the post of B-Grade had vested in respondent Nos. 3 and 4 w.e.f the date they were legitimately holding the said posts, though in in-charge capacity. That being so, no fault can be found either with the recommendations of the PSC or with the Government Order giving promotion to respondent No.3 with retrospective effect as indicated in the Government Order dated 06.07.2007.
14 Faced with the aforesaid position, learned counsel for the petitioners contended that very acquisition of qualification by respondent No.3 is disputable. It is stated that being in-service Medical Officer, respondent No.3 could not have acquired the M.D qualification without having rendered minimum service of five years in the Department and without there being permission from competent authority. I am not inclined to accept the said contention for two reasons. First, this was never called in question by the petitioners till promotion of respondent No.3 came to be regularised by the Government on the recommendations of PSC. Second, it is not in dispute that respondent No.3 has been holding the aforesaid post in In-charge capacity since the year 2002 and had acquired the qualification of M.D prior thereto and, therefore, nothing prevented the petitioners to raise the issue of validity of qualification of M.D acquired by respondent No.3 at the relevant point of time. Otherwise also, similar issue had come up for consideration before this Court in SWP No. 459/2014 clubbed with SWP No. 2542/2013. This Court vide its judgment dated 22.07.2014 passed in the said writ petitions after elaborate discussion in paragraph 16 held thus:
"While addressing argument, counsel for the official respondents tried to suggest that the petitioners had obtained M.P.Ed. degrees by availing SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 8 of 9 casual leave etc, which was unauthorised and, therefore, such degrees or certificates possessed by them deserve no credit.
This argument, however, does not carry any force. The validity of a degree or certificate in possession of a candidate has to be assessed independently. It cannot be connected with either his un-authorised absence from duty or such related conduct. If a candidate has remained absent unauthorisedly to undergo a course and obtained a degree, the right course for employer is to proceed against him in terms of the rules. The employer cannot invalidate such a degree or refuse to take it into consideration for purposes of determining the eligibility for promotion under rules"
15 Following the ratio of aforesaid judgment dated 22.07.2014 rendered in SWP No. 459/2014 decided along with SWP No.2542/2013, I am not inclined to accept the argument raised by the petitioners with regard to the validity of the qualification acquired by respondent No.3 on the ground that it was acquired without the permission of the employer and without having requisite years of service.
16 For the reasons aforesaid, I find no merit in all the aforesaid writ petitions. Same are, therefore, dismissed along with connected MPs.
(Sanjeev Kumar) Judge Jammu 16.08.2018 Sanjeev SWP Nos. 1147/2007, 2028/2007, 637/2013 Page 9 of 9