Jammu & Kashmir High Court - Srinagar Bench
Dr. Mariya Habib vs State And Ors on 25 May, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 465 of 2014 Caveat No. 261 of 2014 c/w SWP no. 1704 of 2014 Contempt No. 4 of 2015 Dr. Mariya Habib Petitioners State and Ors. Respondents !Mr. M.Y.Bhat, Advocate ^Mr.Sajad Mir, Dy. AG. Mr. Sheikh Umer Farooq, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 25/05/2015 : J U D G M E N T :
(Oral)
01. Learned State counsel produced compliance report, which is taken on record. Alongwith the compliance report, copy of the Government Order No. 183-HME of 2015 dated 21st May, 2015 is also produced. In terms of aforesaid Government order, the petitioner has been appointed as Medical Officer under RBA category in the pay Band of Rs. 9300-34800 with Grade Pay of Rs. 5400/- to the J&K Health and Family Welfare (Gezetted) Service.
02. The grievance of the petitioner as projected in the writ petition(s) stands redressed.
03. In the facts of this case, the Court had directed the respondent no. 1 to consider the claim of petitioner for her appointment on the post of Medical Officer.
04. At one point of time, the respondent-State exhibited its inability to appoint the petitioner without their being recommendations from the Public Service Commission.
05. The Public Service Commission had made recommendations in favour of the petitioner which were subsequently withdrawn.
06. Though the respondent-State, in principle, agreed for appointing the petitioner, but as already stated, showed inability not to issue appointment orders without recommendations of the Public Service Commission.
07. The Court issued direction to respondent no. 1 for considering the petitioner for her appointment on the post of Medical officer in the backdrop that Public Service Commission is non-functional for quite some time because of non-appointment of Chairman and other members of the Commission.
08. In the peculiar facts of this case, not appointing the petitioner, though having been earlier selected/recommended for her appointment on the post of Medical officer would tantamount to suspending her fundamental right of being considered for being appointment on the post of Medical officer as guaranteed by Article 16 of the Constitution of India. Because of non-supplying of vacancies in the Public Service Commission, the fundamental right of the petitioner guaranteed under Article 16 would not remain suspended. It is in this fact situation that court had to step in and bridge the gap to enthuse life in Article 16. The Court in order to give effect to the fundamental right of the petitioner guaranteed under Article 16 of the Constitution directed respondent no. 1 to issue appointment order in favour of the petitioner.
09. The Public Service Commission is not functional, the effect whereof is suspending of right of scores of person(s) guaranteed under Article 16 of the Constitution. Fundamental right cannot be suspended even indirectly. Where the Executive Government fails, the Constitutional Courts have to rise up to the occasion to uphold the fundamental rights of citizen.
10. In view of the fact that petitioner now stands appointed, these writ petitions along with connected MP(s) are disposed of as settled. Interim direction, if any, shall stand vacated. The private respondent would be entitled to all the service benefits to which he is entitled to in accordance with rules, having been appointed on the post of Medical Officer, which was stayed by the Court.
11. Since the respondent no. 1 has complied with the Court Order, the Robkar is discharged and contempt proceedings shall also stand closed.
(Muzaffar Hussain Attar) Judge SRINAGAR 25/05/2015 Shamim Ahmad