Jammu & Kashmir High Court
Vinod Gupta [Dr.] vs State And Ors. on 6 June, 2005
Equivalent citations: 2005(3)JKJ333
JUDGMENT Y.P. Nargotra, J.
1. The dispute pertains to the appointment to the post of Medical Superintendent in Govt. Medical College Hospital Jammu. The appointment to the post is governed by J&K Medical Education (Gazetted) Service Recruitment Rules 1979, (hereinafter referred to as Rules of 1979). The sources of appointment into the service prescribed by Rule 5 are two (A) by direct recruitment and (B) by promotion by selection in the manner indicated against each post in Schedule III. Rule 7 deals with eligibility which reads as under:
"7. Eligibility --
(1) A person shall not be eligible for recruitment/promotion to a post in the service unless he possesses the qualifications and fulfills the requirements of recruitment prescribed for that post in Schedule II.
Provided that the Commission may recommend for consideration of the Government the appointment of a person to a post in the service who otherwise not eligible under these rules is, in the opinion of the Commission, possessing exceptional merit as well as professional experience of high order in his specialty, such a case will be considered by the Government after obtaining the views of the Medical Council of India.
(2) Without prejudice to the conditions of the eligibility prescribed in Schedule II, every person appointed to a post in the service shall be a permanent resident of the State, Provided that where any permanent resident is not available for appointment to any post, the Government may appoint a non-permanent resident otherwise eligible for holding such post, on contract basis or on deputation for a term not exceeding three years as it may specify in the order;
Provided further that the Government shall have the power to renew the contract/deputation upto a maximum period of five years in suitable cases."
2. The posts of Medical Superintendents and Dy. Medical Superintendents are in the administrative wing. In terms of Schedule III item (1) the method of recruitment for the post of Medical Superintendent is by promotion from class II i.e. from the post of Dy. Medical Superintendent. In terms of Schedule II item 29 eligibility qualification prescribed for the post of Medical Superintendent of a teaching hospital is that (i) same as given for item No. 1 against S.No. 26 (should be 27) and (ii) post-graduate qualification in Surgery/Gynecology or Medicine and other clinical subjects/Hospital Administration with at least 5 years experience as Dy. Medical Superintendent. In S.No. 27 following qualification is prescribed:
Possession of recognized medical qualification included in the First or Second Schedule (other than Licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of educational qualifications included in part II of the Third schedule should fulfill the conditions stipulated in Sub-section 3 of Section 13 of the Indian Medical Council Act 1956. Therefore the post of Medical Superintendent under the scheme of 1979 Rules can be filled up by promotion from Dy. Medical Superintendents who possess the requisite qualifications and has five years experience as a Dy. Medical Superintendent.
3. For the post of Dy. Medical Supintendent in terms of item B-29 II Schedule the qualification is the same, which is prescribed for the post of Medical Superintendent, however experience required is three years working experience of running a hospital after post-graduation and in terms of Schedule III method of recruitment prescribed for the post of Dy. Medical Superintendent is from either of the two sources (A) by direct recruitment or (B) by deputation from CMO cadre of J&K Medical Gazetted service. Thus the post of Dy. Medical Superintendent can be filled either by direct recruitment from open market or by deputation from the cadre of CMOs.
4. The appointments in the C.MOs cadre are government by J&K Medical (Gazetted) Service Recruitment Rules 1970 (hereinafter referred as 1970 Rules). In terms of Schedule Part I of 1970 Rules the qualification prescribed for being eligible for appointment to the post of CMO is possession of recognized medical qualification included in the 1st and II schedule or Part II of III schedule (other than licentiate qualifications) to the Indian Medical Council Act 1956, holders of educational qualifications included in Part II of III Schedule, should fulfill the conditions stipulated in Sub-section 3 of Section 13 of the Indian Medical Council Act 1956 with five years administrative experience and the method of recruitment to the post of CMO prescribed is by promotion from category B of Clause II i.e. from the cadre of Medical Officers subject to the suitability and satisfactory record of service. The post of Medical Officer is to be filled up by promotion from class II category C i.e. from the cadre of Asstt.Surgeons including Unit Medical Officers, Medical Officers, District Family Welfare Officer, Supervising Medical Officers, Lecturers-cum-Demonstrators, Epidemiologist Dermatologists, Venerologist, Blood Bank Officers, Anaesthtist and Radiologist, provided such Asstt.Surgeons etc. have seven years working experience.
Government order No. 330-HME 2004 dated 2.8.2004 which is impugned in this petition reads as under:
"In the interest of administration, following transfers of Dy. Medical Superintendent and Medical Superintendents are hereby ordered with immediate effect:
1. Dr. Manoj Kumar Chalotra, Dy. Medical Superintendent Chopra Nursing Home (Govt. Medical College Hospital Jammu) is transferred and posted as I/C Medical Superintendent, Govt. Medical College Hospital Jammu in his own pay and grade, he shall hold the additional charge of Chopra Nursing Home till suitable arrangement is made;
2. Dr. Vinod Gupta Medical Superintendent Government Medical College Hospital Jammu is transferred and posted as Medical Superintendent Government Hospital Sarwar Jammu.
By order of the Government of Jammu and Kashmir."
5. Dr. Vinod Gupta, the out-going Medical Superintendent, is the petitioner herein while Dr. Manoj Kumar Chalotra who comes in is respondent No. 3. Admittedly none of them stands promoted to the post of Medical Superintendent on substantive basis and the post was being and has been filled up temporarily on Incharge basis. Before the rival claims of the parties to hold the post are considered it would be interesting to note that the posts of Dy. Medical Superintendents which is the feeding cadre for the posts of Medical Superintendents too have not been filled up substantively in accordance with 1979 rules. Mrs. Hakim, learned Dy.A.G. appearing for the State and Medical Education Department, was pointedly asked as to why the post of Medical Superintendent has not been filled up substantively she submits that since the post of Medical Superintendent can be filled up substantively by promotion from the cadre of Dy. Medical Superintendent it could not be so filled because no Dy. Medical Superintendent is available who fulfills the requisite qualification and holds the post substantively. According to her even the posts of Dy. Medical Superintendents are being and have been filled up on temporary basis by adjusting Asstt.Surgeons on the said posts.
6. As already said Method of recruitment to the post of Dy. Medical Superintendent is from either of the two sources i.e. direct recruitment or from the cadre of CMOs. Admittedly no direct recruitment for filling the posts of Dy. Medical Superintendents has ever been made by the State since 1979 Rules came into force. Mrs. Hakim could not give any satisfactory explanation as to why direct recruitment was not made. She submits that as no Dy. Medical Superintendent possessing the requisite qualification has been recruited from either of the sources for substantively holding the post of Dy.Mecdical Superintendent, therefore, the Government has been following the practice of adjusting senior Assistant Surgeons possessing the requisite qualification on the post of Dy. Medical Superintendents. The practice followed by the Government in filling up the posts of Dy. Medical Superintendents in Govt. Medical College Hospital Jammu on temporary basis alone without making recruitment from either of the two sources provided in 1979 rules in my view deserves to be deprecated strongly. Under the scheme of 1979 rules the post of Dy. Medical Superintendent can be filled up either by direct recruitment or by promotion from the cadre of CMOs. It is for the Government to decide in its discretion as to from which of the two modes of recruitment the recruitment should be made. The Government by not taking steps for filling up the posts of Dy. Medical Superintendent in accordance with rules appears to have been flouting the rules with impunity by adopting the mode of filling up the post on temporary basis from the cadre of Asstt.Surgeons. It is only because of this illegal method of filling up the posts of Dy. Medical Superintendents the present situation of not filling up the post of Medical Superintendent substantively has arisen. The Government being the model employer was expected to make recruitment to the posts of Dy. Medical Superintendent in accordance with rules by making recruitment from either of the two sources but for the reasons best known to it the Government has been filling up the post in the manner contrary to recruitment rules. Immediate remedial measures in this behalf are required to be taken to come out of this imbroglio.
7. It cannot be disputed that temporary arrangement for filling up the post of public office affects the public interest as the person holding the post under a temporary arrangement is likely to shirk his duty of taking independent decisions of public importance which may be required to be taken in the discharge of his duty for being under the constant threat of removal from the post by the Government. Ordinarily every civil post falling vacant under the Government must be filled up on substantive basis and only if it is likely to take such time and such post in the interest of administration cannot be left vacant, temporary arrangements may be made for filling up the post. If the Government did not think it proper to make direct recruitment for filling up the post of Dy. Medical Superintendent it ought to have filled up the post by deputing CMOs from CMOs cadre constituted under 1970 rules who possess the requisite qualification and if no CMO possessed the requisite qualification then the method of direct recruitment being the only option should have been adopted.
8. Be it so, the fact remains that there is no Dy. Medical Superintendent available who possesses the requisite qualification and experience for being appointed to the post of Medical Superintendent. Question arises in such a situation how the post of Medical Superintendent should have been filled up. The answer lies in Rule 7 of 1979 Rules. The proviso to sub-ruled) quoted above provides that the Commission may recommend for consideration of the Government appointment of a person to a post in the service who otherwise not eligible under these rules is in the opinion of the Commission is possessing exceptional merit as well as professional experience of high order in the specialty and such case will be considered by the Government after obtaining the views of Medical Council of India. Sub-rule (2) of Rule 7 further provides that where any permanent resident is not available who possesses eligibility prescribed under Schedule II for appointment to any post, the Government may appoint even a non-permanent resident otherwise eligible for holding such a post either on contract basis or on deputation for a term not exceeding three years as it may specify in the order. The Government has been vested with the power to renew such contract or deputation upto a maximum period of five years in suitable cases. In view of the specific provision made in the Rule 7 if no eligible Dy. Medical Superintendent is available for appointment to the post of Medical Superintendent the post can be filled up by the government in the aforesaid manner. No steps appears to have been taken by the Government to fill up the post of Medical Superintendent even by adopting the procedure envisaged by Rule 7 and instead the Government has been filling up the posts and has filled up the post of Medical Superintendent from the cadre of Assistant Surgeons which is clearly not in tune with the recruitment rules.
9. For holding the post of Medical Superintendent the petitioner and respondent No. 3 have put up their rival claims. It will be pertinent to note here the respective status and qualifications possessed by them.
10. The petitioner was appointed as Asstt. Surgeon on 14.2.1979 by Govt. order No. 284-MDA of 19778 dated 12.8.1978. By Govt. order No. 856-ME of 1993 dated 26.11.1993 he was transferred and posted as Dy. Medical Superintendent Medical College Hospital Jammu in his own pay and grade. By Govt. order No. 102-HME of 1995 dated 13.3.1995 he was posted as Medical Superintendent in C.D. Hospital Jammu again in his own pay and grade. By Govt. Order No. 524 HME of 1997 dated 23.5.1997 he was transferred and posted as Medical Superintendent Dental/Children Hospital Jammu in his own pay and grade. By govt. order No. 956/HME of 2000 dated 26.12.2000 he was again posted as Medical Superintendent as Medical Superintendent CD Hospital. By Govt. order No. 459-HME of 2003 dated 14.11.2003 he was transferred from CD Hospital Jammu and posted as Medical Superintendent Govt. Medical College Hospital in his own pay and grade. Wherefrom after ten months he has been transferred as Medical Superintendent in Sarwal Hospital Jammu. The petitioner has obtained post-graduate degree in Master in Hospital Administration in the year 1992 from All India Institute of Medical Sciences New Delhi.
11. Respondent No. 3 was initially appointed as Assistant Surgeon and thereafter like the petitioner he was deputed by the State Government for undergoing Master Degree Course in Hospital Administration at Tata Institute of Social Sciences Mumbai. He obtained that degree in the year 1999. He was also transferred from Health Department and posted as Dy. Medical Superintendent Col. R.N. Chopra Nursing Home Medical College Jammu in his own pay and grade. By Govt. Order No. 52-HME of 2004 dated 22.1.2004 he was transferred from that post and posted at Sarwal Hospital as Assistant Surgeon for assisting the Medical Superintendent in Hospital administration of that hospital. On 23.1.2004 the Government by its Order No. 114-GAD kept the order of his transfer to Government Hospital Sarwal in abeyance with immediate effect. Then the Government by the impugned order transferred and posted the respondent No. 3 as I/C Medical Superintendent Govt. Medical College Hospital Jammu in place of the petitioner in his own pay and grade. He was allowed to hold the additional charge of Chopra Nursing Home, which he was earlier holding till suitable arrangements were made.
12. It is also admitted case of the parties that in pursuance to Govt. order No. 595-HME of 1988 dated 22.7.1988 the petitioner was placed in CMO's grade w.e.f. 1.4.1994 by order dated 20.6.1994 issued by the Principal Medical College Jammu and respondent No. 3 also claims that in terms of the Govt. order of 1988 the grade of CMO was released in his favour vide Order No. 510-G of 2002. The petitioner in his rejoinder however has asserted that said grade is not the grade of CMO being a grade of Rs. 10000-15200. He however admits that the said grade was released in favour of respondent No. 3 w.e.f. 1.4.2000.
13. By the impugned order respondent No. 3 has been posted as I/C Medical Superintendent Govt. Medical College Hospital Jammu. The order of his posting is subject matter of challenge in this petition. The petitioner has claimed issuance of following three writs:
1- Writ of quo-warranto declaring the respondent No. 3 as usurper of a public office;
2- Writ of certiorari quashing govt. order No. 330-HME dated 2.8.2004 whereby respondent No. 3 has been appointed as Medical Superintendent, Govt. Medical College Jammu;
3- Writ of mandamus directing respondents to permit the petitioner to continue working as Medical Superintendent govt. Medical College Jammu.
14. For maintaining a writ of quo-warranto Mr. Thakur learned Counsel for the petitioner has submitted that respondent No. 3 being in the cadre of Asstt.Surgeon and having obtained post-graduate degree from an unrecognized institute is not eligible for appointment to the post of Medical Superintendent even on temporary basis. The degree must be from an institute recognized by Medical Council of India. According to him respondent No. 3 is therefore usurper of a public office and deserves to be ousted from the post irrespective of the fact whether the petitioner can be appointed in the said post or not.
15. The contention of Mr. J.P. Singh learned Counsel for respondent No. 3 is that in the first place the petitioner is not entitled to maintain a writ petition simultaneously for seeking writ in the nature of quo-warranto as well as certiorari. He argues that no basis in the petition has been laid for seeking a writ of quo-warranto by the petitioner. According to him the petitioner essentially seeks quashing of the order impugned by issuance of writ of certiorari with direction to the respondents to allow him to continue on the said post. He argues that the petitioner is in the cadre of Asstt.Surgeon and therefore is not eligible for appointment to the post of Medical Superintendent. He further submits that for maintaining a writ of certiorari the petitioner must possess a legal or constitutional right in himself whereas for writ of quo-warranto no such right is necessary and writ can be filed by a citizen in the public interest. He submits that the petitioner has inter-mingled the aforesaid considerations in one petition. On the one hand he is advocating his personal right for holding the post and on the other hand he is seeking ouster of respondent No. 3 in the public interest. Mr. Singh further submits that writ of quo warranto can be issued only if a person not eligible for the post is shown to be holding a public office. In the petition the petitioner has not indicated what is the nature of the office in issue therefore the writ petition of the petitioner is not maintainable.
16. The stand of the State is that the petitioner and respondent No. 3 both being in the cadre of Assistant Surgeons are not eligible for consideration to the appointment to the post of Medical Superintendent. According to Mrs. Hakim temporary arrangements for holding the post have been made by passing simple order of transfer, transfer being an exigency of service no right stands vested in the petitioner to claim that he should be allowed to continue on the said post especially when he is not eligible to hold the post.
17. Mr. Singh learned Counsel for respondent No. 3 however submits that though respondent No. 3 is an Assistant Surgeon yet until the post is filled substantively no exception can be taken to his temporary appointment. So far as challenge of the petitioner to the post-graduation qualification of respondent No. 3 is concerned he submits that his qualification is duly recognized by the State Government. There is no requirement under rules that such degree which has been obtained by respondent No. 3 from Tata Institute Mumbai must be recognized by Medical Council of India. He submits that respondent No. 3 was deputed by the Government itself to undergo training from the said Institute, he has completed the course and obtained the degree and therefore no objection can be allowed to be raised in view of the rule position to the validity of the degree.
18. Writ of quo-warranto is one of the commands, which can be issued by the High Court in exercise of jurisdiction vested in it under Article 226 of the constitution. What is the nature of such writ and what are the conditions which are to be satisfied for issuance of such writ needs to be examined. In , University of Mysore v. Govinda Rao it was observed as follows:
"Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf they tend to protect the public from usurpers of public office, in some cases persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clearly that before a citizen can claim a writ of quo warranto he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
In , Ramchandran v. Alligiriswami, the Division Bench of that court held as follows:
"Quo warranto is generally regarded as an appropriate and adequate remedy to determine the right or title to a public office and to oust an incumbent who has unlawfully usurped or intruded into such office or is unlawfully holding the same."
In , Mahabir Prasad Shamra v. Prafulla Chandra Ghose and Ors. it was held:
"It is not enough for a person holding a public office whose appointment is challenged in a quo warranto proceedings merely to produce a warrant or notification of appointment. He must go further and satisfy the court that the appointment is legal and valid."
19. On the basis of the aforesaid authorities Mr. J.P. Singh submits that before a writ of quo warranto is issued it must be established that the person whose ouster is sought by issuance of a writ of quo warranto is holding a public office. What is a public office, he submits that it must be an office created by a statute. According to him the office of Medical Superintendent is not a public office but only a post under the Government, appointment to which is regulated by the recruitment rules framed by the government, therefore no writ of quo warranto can lie.
20. Writ of quo warranto is a judicial proceeding to determine whether a public office has been usurped. It is a remedial proceeding whereby the court inquires into legality of the claim which a party asserts to an office or a franchise and to oust him from enjoyment if claim put in is not well founded. The office must be a public office i.e. to say the duties of the office must be of a public nature. The term "public office" has nowhere been defined either in the constitution or in General Clauses Act. Code of Civil Procedure defines a public officer Under Section 2(17). That sub-section contains several Clauses a to h. What is material in the present context is provided in Sub-clause (h) and it reads as under:
"Every officer in the service or pay of the Government or remuneration by fees or commission in the performance of any public duty."
Section 21 of Ranbir Penal Code also defines a public servant. Clause (1) of the section provides that every civil servant of the State is a public servant. Both these definitions in the two statutes though govern only the subject matter of respective enactments yet for understanding the words what is meant by public office cue can be taken from the two definitions. In my considered opinion every civil servant who being a public servant gets his pay or remuneration for his services from the Government performs public duty. Therefore the holder of any civil post as a civil servant of the State is to be deemed to be holder of a public office and if such a servant shows no authority of law for holding such a public office he can be ousted by issuance of a writ of quo warranto.
In Mir Ghulam v. Union of India, 26 officers belonging to the Senior Scale of the State Civil Service of the State of J&K had made the writ petition challenging in substance (a) the promotion of respondents Nos. 8 to 32 to the State cadre of the Indian Administrative Service;(b) the promotion of respondent No. 33 to the State cadre of the All India Services; (c) appointment of respondents Nos. 34 to 37 to the State cadre of the Indian Administrative Service in officiating capacity and (d) the appointment of respondents Nos. 38 to 41 to a special grade of Rs. 900-1800. One of the grounds alleged before the Constitution Bench was that some officers who could not be considered for promotion of I.A.S. had been selected by the Committee. It was suggested if eligibility had been correctly determined there would have been some vacancies against which some of the petitioners could have been absorbed. Their lordships in that case observed as follows:
"In our opinion if there is any complaint about the appointment or promotion of an officer who is not eligible under the rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto and since the petitioners have not done so, this particular complaint cannot be entertained in this petition."
21. The office of the Medical Superintendent of Govt. Medical College Hospital is a public office. The officer holding the post is a civil servant and the duties to be performed by him as such officer are in my view of a public nature, because the Medical Superintendent is the person who has to lookafter the management of the hospital and on the management of hospital Medicare of the general public depends. The contention of Mr. Singh that office of the Medical Superintendent is not a public office is, therefore, not tenable.
22. The objection of Mr. Singh that writ of quo warranto and writ of certiorari simultaneously cannot be maintained in one petition, is also not tenable. The petitioner being a public servant is also a citizen of the State. He is entitled to put up alternative pleas. In the capacity of a citizen he can maintain a writ of quo warranto against the usurper of a public office like the present one i.e. Medical Superintendent and at the same time he can also project his right to hold the post. The case of the petitioner is that he is competent to hold the post for being in the cadre of CMO. His claim cannot be accepted. He has only been put in the grade of CMO on the basis of Govt. Order No. 595 HME of 1988 dated 22.7.1988. The order envisages only a scheme of time-bound promotions to the grade and not to the post. From the reading of the order of 1988 it is evident that it is only for the purpose of grade benefit and not for the purpose of granting substantive promotion. It is not the case of the petitioner or respondent No. 3 that they have been promoted on substantive basis after being considered for the same by the Public Service Commission. On the basis of release of grade in their favour it cannot be argued by any of them that he has been promoted to the post of CMO substantively. Both of them are Asstt. Surgeons and under Rules of 1979 it is only from the cadre of Dy. Medical Superintendents promotion can be made to the post of Medical Superintendent, provided he possesses the requisite qualifications. Therefore, none of them is eligible to be appointed on the post of Medical Superintendent. In this view of the matter the question whether post-graduation degree possessed by respondent No. 3 is recognized by Medical Council of India or not is irrelevant and needs not to be gone into.
23. As already said as per the stand of the State-respondent there is no eligible Dy. Medical Superintendent available who can be appointed/promoted to the post of Medical Superintendent. In such a situation the post of Medical Superintendent could be filled up by adopting the procedure envisaged by Rule 7 of 1979 Rules and till it is done the temporary arrangement was necessarily to be made.
24. The post was being held by the petitioner before respondent No. 3 came to be appointed. The case of the petitioner is that respondent No. 3 has been appointed in colourable exercise of power by the Government as according to the petitioner respondent No. 3 happens to be the son of Sh. Girdharilal Chalotra, MLA who is Chairman of the State Advisory Board for Scheduled Caste J&K Government enjoying the status of a Minister of State. Said Chairman made a representation to the Government that his son who was working as Dy. Medical Superintendent Col. Chopra Nursing Home possessed the eligibility qualification for the post of Medical Superintendent and also has experience of five years in the administration, he belongs to scheduled caste category and has requested him (his father) for providing promotion to him on the basis of said category so Dr. Manoj Chalotra (his son) should be promoted as Medical Superintendent. The representation of the Chairman Scheduled Caste Advisory Board (father of respondent No. 3) was examined by the Government. As per note of the Under Secretary to Government, appended as annexure B with the writ petition, sought approval of the Government for appointment of Dr. Manoj Kumar Chalotra as Incharge Medical Superintendent Government Hospital Sarwal Jammu, which post had fallen vacant, in his own pay and grade in view of the fact that Dr. Vinod Kumar Gupta petitioner and Dr. Yashpal had premature stay and pre-mature transfer was against the Government policy formulated as per Govt. order No. 912-GD of 1988 dated 16.6.1988 dated 16.6.1988. The case of the petitioner is that the Government under pressure exerted by Sh. G.L. Chalotra ensured the appointment of his son respondent No. 3 when he was not eligible to hold the post in accordance with rules.
25. The stand of the respondent-State in this regard is that:
"Respondent No. 3 has submitted an application to the then Hon'ble Minister Health and Medical Education for his promotion as Medical Superintendent on the plea that his juniors are working as Incharge Medical Superintendents. The then Minister for Health and Medical Education while forwarding the representation to the Commissioner/Secretary Health and Medical Education had observed as under:
"Make promotion as requested"
A copy of the said application is enclosed as annexure R5. The case of respondent No. 3 was under consideration in the department, as regular promotion has to be made in consultation with Public Service Commission. When no relief was received by respondent No. 3 he again approached to the department through MOS/Chairman Scheduled Caste Advisory Board. The application filed by the MOS was thoroughly examined in the department and it was observed that respondent No. 3 can be posted as Incharge Medical Superintendent in his own pay and grade as stop-gap arrangement on the same analogy which has been adopted in the case of other doctors of the same cadre."
26. How could Minister for Health and Medical Education direct for promotion of the petitioner as Medical Superintendent, without considering the question of his eligibility, can be any body's guess. Why respondent No. 3 was found to be entitled to be posted as Incharge Medical Superintendent in his own pay and grade as a stop-gap arrangement in Govt. Medical College Hospital Jammu when the transfer of earlier holder of the post i.e. the petitioner was premature as per Government policy in vogue, is also not understandable. Be it so, the fact remains that allegations of mala fide are directed against father of respondent No. 3, Shri G.L. Chalotra Chairman S.C. Advisory Board. He was impleaded as respondent No. 4 but later on he has been deleted from the array of respondents by learned Counsel for the petitioner. In the absence of respondent No. 4, as per Mr. J.P. Singh, appearing on behalf of respondent No. 3 the question of considering malafide against him does not arise at all. The contention of Mr. Singh however is that Shri G.L. Chalotra was Chairman of S.C. Advisory Board and if his son felt aggrieved that he was not being considered for appointment to the post of Medical Superintendent on temporary basis like his other colleagues, he had a right to represent before the Scheduled Caste Advisory Board and so his representation was not to his father but to the Board and Shri G.L. Chalotra in the capacity of Chairman S.C. Advisory Board could have recommended for promotion of respondent No. 3 for safeguarding and protecting the rights of a scheduled caste category candidate to which respondent No. 3 belongs. Therefore, according to Mr. Singh no exception can be taken to the sending of representation to the Government by Shri G.L. Chalotra.
27. Assuming what is submitted by Mr. J.P. Singh is correct and the Chairman S.C. Advisory board had made recommendation for appointment of respondent No. 3 as Incharge Medical Superintendent on the analogy of the Asstt.Surgeons who had been appointed as Incharge Medical Superintendents the Government after considering the case of respondent No. 3 had found his grievance genuine, the respondent No. 3 could have been posted as Incharge Medical Superintendent in Sarwal Hospital instead of posting him as Incharge of Medical Superintendent Govt. Medical College Hospital, without displacing the petitioner prematurely from the post in violation of Government's own transfer policy. Petitioner's stay on the post of Medical Superintendent was premature. Respondent No. 3 could easily be adjusted as Incharge Medical Superintendent Sarwal Hospital, the post which was lying vacant but this was not done and instead as per recommendation of the Chairman S.C. Advisory Board he was adjusted at the post of Medical Superintendent Govt. Medical College Hospital Jammu. What was the special reason for adjusting respondent No. 3 on the said post is not forthcoming from the counter affidavit of the State-respondent. If there was no special reason for ouster of the petitioner from the post he was holding prematurely and the post of Medical Superintendent at Sarwal Hospital was available, the only reason for his appointment as Medical Superintendent Govt. Medical College Hospital Jammu appears to be that there was a strong recommendation of the Chairman S.C. Advisory Board in his favour. The Government could adjust respondent No. 3 on the post of Medical Superintendent in exercise of its administrative power after considering the representation of the Chairman if it would have come to the view that such action was in tune with equity, fair play and justice, being the role model for good governance.
In Onkar Bajaj v. Union of India, their lordships of the Supreme court observed as follows:
"The role of modern governance and decision taken thereon should manifest equity, air play and justice. The cardinal principle of governance in a civilized society based on rule of laws not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity an fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it the decision may look legitimate but as a matter of fact the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
28. The plea that respondent No. 4 stands deleted from the array of respondent therefore the question of malafide cannot be gone into by this Court is without any merit in view of the admitted position. The State respondent has admitted the fact that respondent No. 3 had approached the Department for his appointment as Incharge Medical Superintendent through Chairman S.C. Advisory Board. The state has not denied genuineness of annexure B which is a note of the Under Secretary to Government. The recommendation made by the Chairman S.C. Advisory Board has not been placed on record by the State and in the note annexure B it is interesting to note that it says:
"In the representation Hon'ble Minister of State/Chairman S.C. Advisory Board Sh. G.L. Chalotra has requested that Dr. M.K. Chalotra (respondent No. 3) be posted as Medical Superintendent Govt. Medical College Hospital Jammu or SMGS Hospital Jammu vice Cr. Vinod Gupta (petitioner) and Dr. Yashpal Sharma.
Since both these doctors i.e. Dr. Vinod Gupta and Dr. Yashpal Sharma have premature stay and since premature transfer is against the Government policy of the Government as per Govt. order No. 312-GAD of 1988 dated 16.6.88."
29. Thus it is evident from the aforesaid noting of the Under Secretary to Government that Sh. G.L. Chalotra Chairman S.C. Advisory Board's recommendation was not simpliciter that respondent No. 3 deserved promotion and appointment to the post of Medical Superintendent. The recommendation was for his appointment to the post of Medical Superintendent Medical College Hospital Jammu or SMGS Hospital Jammu. The Chairman Advisory Board thus identified the post for respondent No. 3 and Government readily appointed him on the post so identified without bothering for its transfer policy pointed out by its Under Secretary. It is not the case of the Government that the question of suitability for holding the post of Medical Superintendent Govt. Medical College Hospital Jammu was ever objectively considered and respondent No. 3 was found more suitable to hold the post than the petitioner herein. As there was a representation of the Chairman S.C. Advisory Board, who happens to be the father of respondent No. 3, the Government appears to have appointed respondent No. 3 on the post identified by him. If this is not colourable exercise of power by the Government, what else it can be. If no Dy. Medical Superintendent qualified for being appointed on the post of Medical Superintendent was available and if by way of temporary arrangement it was being manned by a person not competent to hold the post, there was no reason why he should have been replaced by another who was also not qualified under the rules to hold the post. The petitioner's stay was not complete on the post as per the Government policy itself. He ought not to have been transferred.
30. Mr. J.P. Singh submits that the petitioner belonged to the Health Department from where he had been brought in the Medical Education Department and posted as Incharge Medical Superintendent Govt. Medical College Hospital from where he has been transferred back to the Health Department and pursuant to the transfer order he was relieved on 3.8.2004 whereafter he submitted his joining report on 4.8.2004 as Medical Superintendent Sarwal Hospital, after having joined the post, he cannot be directed to be put back on the post of Medical Superintendent Govt. Medical College Hospital Jammu.
31. I am not in agreement with Mr. Singh. Merely because the petitioner has joined at Sarwal, it cannot be said that his joining creates a bar upon him for challenging the legality of the order under which he was transferred to Sarwal. The order impugned, having been passed in colourable exercise of power by the Government cannot be sustained in law and therefore once the order impugned is set aside the necessary consequence would be restoration of the position, as it was existing before the order impugned came to be passed.
32. Therefore the writ petition of the petitioner is allowed and the order impugned, govt. order No. 330-HME of 2004 dated 2.8.2004 is quashed. The petitioner shall be allowed to join back on the post of Incharge Medical Superintendent Govt. Medical College Hospital, Jammu forthwith.
33. In the circumstances of the case I think this is an occasion where some more directions are required to be issued to the State of J&K as the State has been found to be flouting the basic recruitment rules by not filling up the posts of Medical Superintendents/Dy. Medical Superintendents in accordance with J&K Medical Education (Gazetted) Service Recruitment Rules of 1979. The following directions are accordingly issued:
1. The State Government shall take steps for filling up the posts of Medical Superintendent existing in Govt. Medical College Hospital Jammu and its associated teaching hospitals by following the procedure envisaged by Rule 7 of 1979 Rules, in case there is no eligible person available in the cadre of Dy. Medical Superintendents for being promoted to the post of Medical Superintendent substantively, it may seek the recommendation of the J&K Public Service Commission of a person to be posted as Medical Superintendent who otherwise must be eligible under rules and in the opinion of the Commission possesses exceptional merit as well as professional experience of high order in his specialty and after obtaining the views of Medical Council of India. If the Government in its wisdom does not choose to adopt the said mode for filling up the post it shall take steps for appointment of a non-permanent resident doctor who is otherwise eligible for holding such post on contract basis or on deputation for a term not exceeding three years, further extendable up to a maximum period of five years. This exercise shall be completed by the Government within a period of four months from today;
2. Appointments to the post of Dy. Medical Superintendent, governed by 1979 Rules, shall be made by following the procedure as envisaged by these rules within a period of four months by the Government. Since two alternative modes for appointment to the post of Dy. Medical Superintendents have been prescribed by the Rules therefore, the Government can in its discretion adopt any of the two modes. If the Government decides to make appointments by direct recruitment, advertisement notice shall be issued within a period of one month from today and the recruitment process shall be completed within a period of three moths thereafter. In case it decides to fill up the posts by deputation from CMOs cadre constituted under J&K Medical (Gazetted) Service Recruitment Rules 1970, it shall consider the case of all the eligible CMOs who possess the requisite qualifications and experience and depute them within a period of four months from today;
3. After any of the Dy. Medical Superintendent, who has been substantively appointed, acquires eligibility under 1979 Rules to be promoted to the post of Medical Superintendent, his case shall be considered expeditiously for promotion as Medical Superintendent. When such Dy. Medical Superintendent is promoted to the post of Medical Superintendent, the temporary arrangement to be made in terms of direction No. (1) above shall cease to operate;
4. If the aforesaid directions are not carried out by the Government, within the stipulated period of four months from today, all the adhoc/temporary arrangements made for filling up of the posts of Medical Superintendents/Dy. Medical Superintendents shall come to an end after expiry of period of four months from today and all such posts shall be deemed vacant.
Disposed of accordingly.