Dr. Aniece Choudhary vs State of J&K and others

In this writ petition, the petitioner inter alia has prayed for a writ of mandamus to command the respondents to strictly adhere to the recruitment",,

rules coupled with the procedure prescribed in the Government Order No. 1139-GAD of 2004 as well as guidelines framed by the Medical,,

Council of India for selection to the post of Principal Government Medical College, Jammu. The petitioner also seeks writ of mandamus",,

commanding the respondents to finalize the selection of the petitioner to the post in question taking into account Rule 8 of the Jammu and Kashmir,,

Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter referred to as the 1979 Rules). During the pendency of the writ",,

petition, the petitioner has superannuated as Incharge Principal Government Medical College, Jammu on 30.4.2013. Therefore, the petitioner has",,

modified the relief claimed in the petition and has sought a direction to the respondents to release the grade of Rs. 37400-67000 +Grade pay of,,

Rs. 10,000/- attached to the post in question for the period from 01.07.2012 till 30.04.2013 and to grant ex post facto sanction to regularization",,

of the petitioner on the post of Principal Government Medical College and to settle the case of the petitioner for pension accordingly.,,

The facts giving rise to the filing of the writ petition briefly stated are that the petitioner was appointed on 26.06.2001 on the post of Professor in,,

Medical College, Jammu and was the senior most Professor in the college. The petitioner on 1.7.2012 was asked to perform the duty of the",,

Principal Medical College, Jammu in addition to his own duties as the then Principal had applied for relieving him from the post of Principal on",,

account of his personal difficulties. Admittedly, the petitioner held the post as Incharge Principal Government Medical College, Jammu till his",,

superannuation, i.e., 30.4.2013. The service conditions of the petitioner as well as respondent No. 5 are governed by 1979 Rules. Rule 8 of the",,

aforesaid Rules which deals with the method of recruitment provides that while making selection to the teaching wing of the service, the",,

Departmental Promotion Committee shall have due regard to the academic qualification of the candidate, teaching experience, research experience",,

and publication and previous record of work, if any. An Establishment-Cum-Selection committee was constituted vide Government order No.",,

26.12.2011. The aforesaid order also provided the procedure which was to be adopted by the Committee. The aforesaid committee considered,,

the panel comprising of five Professors forwarded to it by the General Administration Department which included the name of the petitioner. The,,

Establishment-cum-Selection Committee after following the procedure and after considering the overall suitability of the candidates recommended,,

the name of respondent No. 5 for appointment to the post of Principal Government Medical College, Jammu. In the aforesaid factual background",,

the petitioner has approached this Court.,,

The petitioner, who has appeared in person, submitted that there is no material on record to establish the fact that the Committee, while",,

assessing overall performance of the candidates has taken into account the criteria laid down in Rule 8 (1) (c) of 1979 Rules. It is further submitted,,

that the Committee has only taken into account Annual Appraisal Reports of the candidates for the preceding five years. It is also submitted that,,

even though the APR of the petitioner for the year, 2009- 2010 was upgraded from good to very good by the Accepting Authority i.e. Minister",,

Incharge, however, the same has not been reflected in the service records of the petitioner and the same has been taken to be only good by the",,

Committee, which has caused prejudice to the case of the petitioner. It is also submitted that the vast research and teaching experience and several",,

publications of the petitioner were not taken into consideration by the committee. It is argued that respondent No. 5 was graded very good in the,,

APR of 2010-2011 yet the committee without acceptance of the aforesaid Annual Appraisal Report by the Accepting Authority i.e. Minister,,

Incharge on its own treated the same to be outstanding, without any authority. It is also argued that the then respondent No. 4 had no authority to",,

review the APR of respondent No. 5 for the year 2010-2011, who rated him as outstanding as respondent No. 4 had already demitted the office",,

on 30.04.2012 and had no power to review the APR beyond 30.6.2012. Therefore, he could not have reviewed the APR of respondent No. 5 in",,

month of August, 2012. It is contended that the petitioner being the senior most Professor and having better merit than the respondent No. 5 ought",,

to have been appointed on the post in question. It is also pointed out that recommendation dated 18.10.2012 of the Establishment-Cum-Selection,,

committee made in favour of respondent No. 5 for the post of Principal Government Medical College, Jammu was never acted upon and was not",,

accepted by the State Government. However, subsequently in the year 2014 the respondent No. 5 was assigned the charge of the post of",,

Principal Government Medical College, Jammu. Lastly, it is urged that the respondents be directed to consider the case of the petitioner for",,

regularization on the post in question for a period from 01.07.2012 till 30.04.2013 and to accord him all consequential benefits and fix his pension,,

accordingly.,,

Learned Additional Advocate General has submitted that the Committee constituted vide Government order dated 26.12.2011 has followed the,,

procedure and after considering the overall merit and suitability of the candidates had recommended the name of respondent No. 5 for the post in,,

question. It is further submitted that it is not only the length of service which was required to be taken into account but merit and suitability of a,,

candidate is also required to be assessed. The respondent No. 5 was recommended on the basis of his overall service record, relative merit and",,

suitability. It is submitted that selection committee had taken into account the criteria laid down in the 1979 Rules as well as the APRs of the,,

candidates and made recommendation in favour of respondent No. 5. It is further submitted that proceeding conducted by the committee does not,,

suffer from any infirmity. It is also submitted that the committee which met twice on due diligence recommended the case of respondent No. 5 for,,

the post of Principal Government Medical College, Jammu. It is submitted that teaching experience of the candidates has also been considered",,

while making recommendation as the expression ""teaching"" would include the teaching experience as well. In support of his submissions, learned",,

Additional Advocate General has referred to the decision of the Supreme Court in the case of Nutan ARvind vs. Union of India, 1996 AIR",,

(SCW) 2752.,,

Mr. A. V. Gupta, learned senior counsel for the respondent No. 5 submitted that this Court has no jurisdiction to sit in appeal over the decision",,

taken by the selection committee and the matter of grading in the ACRs falls within the realm of the competent authority and the Court normally,,

cannot interfere with evaluation made in the ACRs. In support of his submission, learned senior counsel has referred to the decisions of the",,

Supreme Court in the cases of UPSC vs. K. Rajaiah and others, 2005 AIR (SC) 2853 and Dalpat Abasaheb Solunke vs. Dr. B. S. Mahajan,",,

1990 (1) SCC 305.,,

I have considered the submissions made on both sides and have perused the record. Before proceeding further, it is apposite to take note of",,

Rule 8 of 1979 Rules, which reads as under:",,

S. No.,Name of the Professor,Grading

1.,Dr. Aniece Choudhary,Good

2.,Dr. Shashi Gupta,Good

3.,Dr. Ghanshyam Dev,Very Good

4.,Dr. Rakesh Saraf,Very Good

5.,Dr. Zahid Gillani (not eligible.,Good

the post of Principal Government Medical College, Jammu for the period SWP No. 2650 of 2012 Page 8 of 8 from 01.07.2012 till 30.04.2013",,

by taking into account the APR of the petitioner for the year, 2009-2010 to be very good and in the light of the criteria laid down in Rule 8 of the",,

1979 Rules. Let the aforesaid exercise be carried out by the respondents within a period of three months from today. Needless to state that in case,,

the petitioner is found entitled for regularization of his services on the post of Principal Government Medical College, Jammu, all consequential",,

benefits shall be awarded to him and his pension shall be fixed accordingly within a further period of two months. It is reiterated that the State,,

Government shall be entitled to fill up the post of Principal Government Medical College, Jammu on substantive basis in terms of Rule 8 of the",,

1979 Rules.,,

With the aforesaid directions, the writ petition is disposed of alongwith connected MP.",,