Dr. Javed Ahmad Chachoo vs State Of Jammu & Kashmir & Ors

Pursuant to two Notifications, bearing Nos.04-PSC of 2010 dated 4th of June, 2010 and 09-PSC of 2010 dated 28th of August, 2010, issued by the Jammu and Kashmir Public Service Commission (hereinafter referred to as the "Commission"), the petitioner, alongwith other candidates, applied for the post of Lecturer in Medicine in the Government Medical College, Srinagar/ Jammu. The petitioner was an open merit category candidate. After completion of the selection process, the respondent Commission published the select list dated 18th of January, 2011, wherein the name of the petitioner did not figure. Thereafter, on the recommendations of the Commission, the selected candidates were appointed as Lecturers in the Government Medical College, Srinagar in terms of Government Order No. 72-HME of 2011 dated 28th of January, 2011. Aggrieved thereby, the petitioner approached this Court through the medium of SWP No.148/2011. The said writ petition, on consideration and in terms of judgment dated 31st of August, 2012, came to be disposed of by this Court, operative portion whereof reads thus:

"13. In the aforementioned backdrop, and in view of peculiar circumstances of this case and in the interests of justice, without disturbing the selection already made by the Commission, I deem it proper to direct the Commission to examine the case of the petitioner afresh after obtaining opinion from an expert body as to whether the petitioner is entitled for any marks for 15 publications, besides the experience gained by him, as is discussed hereinabove and if so, the petitioner should be given the requisite marks. And after award of such marks, if he makes the grade, he shall be considered for selection/ appointment against the post which was directed to be kept vacant in terms of order dated 21.07.2011, or against any other available vacancy."

Thereafter, the respondent Commission issued the consideration order dated 8th of January, 2013, whereby the claim of the petitioner was rejected. This consideration order has been assailed by the petitioner herein this petition.

Mr Bhat, the learned counsel for the petitioner, submits that by judgment dated 31st of August, 2012, passed by this Court, the respondents were directed to reconsider the matter in light of the observations made in the judgment as the publications as well as the experience of the petitioner were not taken into consideration by the Commission on the basis of which he was entitled to be given 72 points and that the calculation of marks by the Committee was absolutely arbitrary and illegal which had awarded only 67 points to the petitioner. It is contended that notwithstanding the directions passed by this Court, the respondents, again, did not take into account the said experience and publications in favour of the petitioner and no reasons have been recorded in the consideration order as to why marks have not been given for the said publications and experience. The learned counsel further pleads that the publications and experience of the petitioner were considered by the Commission in a subsequent selection process, when the petitioner competed the process of selection initiated for the post available in Government Medical College, Jammu, wherein the petitioner was awarded 77 marks on the basis of same criteria which was in vogue at the time of the earlier selection process. In that backdrop, the learned counsel has further proceeded to state that it clearly establishes the claim of the petitioner that petitioner was entitled to 72 marks in earlier selection process and was deserving to be selected against the available post in Government Medical College, Srinagar. It is further submitted that the other reasons with regard to publications and experience given in the said consideration order are also contrary to the record and are in conflict to the decision of the Commission itself. The petitioner's experience gained after Post-graduation has not been considered and the publications of the petitioner has not been considered when same publications have been awarded marks in subsequent selection process. Therefore, the action of the respondents is absolutely unjustified and arbitrary. The further claim of the petitioner has reference to his permanent adjustment in Government Medical College, Srinagar, in continuation to Government Order No. 199-HME of 2015 dated 4th of June, 2015. It is submitted that during the pendency of the writ petition and while the petitioner is continuing as Lecturer (Medicine), Government Medical College, Srinagar, pursuant to Government Order (supra), the post has become available as Dr. Vinod Mitla, Lecturer (Medicine), Government Medical College, Srinagar, under transfer to Government Medical College, Jammu, has left the job, as is evident from the withdrawal of writ petition bearing SWP No. 357/2018 filed by the said Vinod Mitla, where he had made a claim for his continuation as Lecturer (Medicine) Government Medical College, Jammu, which writ petition stands dismissed on 25th of April, 2019. It is further submitted that the petitioner, admittedly, continued as Lecturer either on academic arrangement or on permanent basis from 22nd of October, 2011, as the petitioner's appointment against the available post was made vide Government Order No. 577-HME of 2011 dated 22nd of October, 2011.

The respondent No.3 has filed objections, wherein it is stated that the competent authority only after considering the matter in light of the judgment and after obtaining the opinion of the expert, the case/ claim of the petitioner was rejected in view of the merit position having remained unchanged and petitioner having not fallen within the selection zone.

Mr Azhar, the learned counsel for the respondent Commission, submits that cogent reasons have been mentioned by the Commission in the consideration order whereby the claim of the petitioner has been rejected. It is submitted that the petitioner failed to produce his M.D. Degree result notification at the time of interview and that his date of result of M.D. Degree was considered as on 18th of January, 2005 from his Degree Certificate at the time of checking his original documents which the petitioner has agreed and signed the check list of documents. It is also contended that the experience gained by the petitioner from 1st of April, 2004 to 11th September, 2004 was not considered for any weightage in view of the fact that the teaching experience, if any, gained by a candidate before the Post Gradation Degree cannot be considered as per the recruitment rules prescribed for the post in question.

Heard the learned counsel for the parties, perused the record and considered the matter.

Mr Bhat, the learned counsel for the petitioner, while strengthening the case of the petitioner, has placed explicit reliance on the law laid down by a judgment of the Apex Court of the country titled 'Inder Parkash Gupta v. State of JK & Ors.' passed in 'Appeal (Civil) No. 3734 of 2002', relevant extract whereof is reproduced below:

"Section 133 of the Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said rules are statutory in nature. Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which perse would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut off marks."

The claim of the petitioner for according him the benefit of weightage to research publications and experience has not been considered by the respondent Commission even on the directions passed by this Court vide judgment dated 31st of August, 2012. It is noticed that this Court, while considering the claim of the petitioner with reference to the relief prayed for in the earlier writ petition, having regard to the pleadings of the parties had observed that the respondent Commission has failed to award marks under the head Publications, i.e. special attribution, which was not denied by the respondent Commission in the Counter or in the Supplementary Affidavit. It was also observed by this Court that on perusal of the record produced by the respondent Commission, what gets revealed is that the marks awarded to the candidates under the head Viva-Voce do not contain the details as to how many marks were awarded by the Expert and how many were given by the Members of the Selection Committee. This Court, on proper examination of the matter, while noticing the inaction on the part of the respondent Commission, had directed the Commission to examine the case of the petitioner afresh after obtaining opinion from an expert body as to whether the petitioner is entitled for any marks for 15 publications, besides the experience gained by him and if so, the petitioner be given the requisite marks with a further stipulation that in the event the petitioner makes the grade, he shall be considered for selection/ appointment against the post which was directed to be kept vacant in terms of order dated 21st of July, 2011 or against any other available vacancy.

The order of consideration, impugned in the writ petition, reveals that no such exercise has been undertaken by the Commission and the recorded findings of the Court, as passed in the earlier writ petition filed by the petitioner, have also been ignored which has resulted in rejecting the claim of the petitioner. Taking an overall view of the pleadings in the writ petition, coupled with the arguments of learned counsel for the parties, the Court is of the considered view that the judgment has not been implemented and injustice has been done to the petitioner by not awarding him marks for the publications and experience. The commission as per admission have not given the petitioner marks for experience from 1st of April 2004 to 11th of September, 2004, on the ground that original M.D Degree was given weightage from the date of result. This finding is also substantiated by the fact that the petitioner was also selected in the subsequent selection by awarding the weightage of marks.

Admittedly, the petitioner is selected and appointed on 5th of September, 2013 on the strength of his merit, therefore, there shall be no difficulty to mold the relief by not disturbing the already selected candidate, as such, the Court is of the opinion that interest of justice would be served by directing the respondents to give effect to the appointment of the petitioner as Lecturer in Government Medical College, Srinagar, notionally from 28th of January, 2011, that is the date the selected candidates were appointed.

The petitioner also claims continuation as Lecturer (Medicine) in the Government Medical College, Srinagar, in continuation to Government Order No. 199-HME of 2015 dated 4th of June, 2015 on the ground that he deserved selection and appointment against the post of Lecturer (Medicine) in Government Medical College, Srinagar, from 28th of January, 2011, i.e. the date from which the selectee candidates were appointed in Government Medical College, Srinagar vide Government Order No. 72-HME of 2011 dated 28th of January, 2011, as a consequence to denial of his selection. The claim of the petitioner for such continuation is also supported by the recommendations of the Head of the Department, Department of Medicine, Government Medical College, Srinagar, bearing No. Med/GMC/3267 dated 17 th of September, 2016 and the recommendations of Principal/Dean, Government Medical College, Srinagar, bearing No. GS-MC/L-Med/AAB/1135-36 dated 18th of September, 2013. Needless to mention that the post of Lecturer (Medicine) Government Medical College, Srinagar, has become available as Dr. Vinod Mitla, has left the job and, therefore, he had sought dismissal of his writ petition bearing SWP No. 357/2018. The petitioner is also, admittedly, continuing as Lecturer (Medicine) Government Medical College, Srinagar from 22nd of October, 2011.

The petitioner has strengthened his claim for deemed appointment from 28th of January, 2011 on the ground that he has been continuing in the Government Medical College, Srinagar on adhoc/ academic arrangement from the year 2010 till the time he was permanently absorbed as a Lecturer in the Medical Education Department in September, 2013, after his selection by the Commission. Admittedly, the petitioner continued in Government Medical College, Srinagar as Lecturer on academic arrangement against the available post and has drawn the benefits also, therefore, he is only found entitled for notional appointment for the post of Lecturer in Government Medical College, Srinagar from 28th of January, 2011.

The question that, now, arises in this case is whether or not the petitioner is entitled to the service benefits from the day when the others were appointed as Lecturers in furtherance of the same advertisement notice in which the petitioner participated in the selection process. To understand this issue in the proper perspective, the relevant excerpts of the judgment rendered by a Division Bench of this High Court in the case of 'State & Anr. V. Sushma Sharma & Ors.', being LPA(SW) No.201/2017, decided on 7th of December, 2017, require to be enumerated below and these read as under:

"2................In the aforesaid background, the respondents craved the indulgence of this Court in issuing a writ of mandamus commanding the appellant No.1 to give effect to their appointment as Teachers with effect from the year 1998, when the other selectees were appointed pursuant to the Advertisement Notice No.6 of 1996, with a further relief that all the consequential benefits with effect from 1998 be accorded to them. The learned Single Judge after assessing and evaluating the material on record along with the annexures came to the following conclusion:

"In view of the preceding analysis, I deem it appropriate to dispose of the writ petition with a direction to the respondents to accord the benefit of notional seniority to the petitioners w.e.f. the date when other candidates, who responded to the advertisement notice issued in the year 1996 were given seniority. Needless to state that the aforesaid notional seniority, which may be granted to the petitioners shall be taken into account by the respondents for the purposes of fixation of pay as well as benefits of promotion."

The Judgment of the learned Single Judge is lucid and clear. It does not call for any interference. The respondents herein could have not been discriminated against on the face of the appointment of Anuradha on the basis of directions of the Division Bench of this Court extended vide order dated 18.10.1999 passed in LPA No.364/1999 whereby the respondent SSRB was directed to recast the criteria for evaluation of candidature of the candidates and to make the appointments. Thereafter, on the strength of the decision of the Division Bench the said Anuradha was appointed as Teacher with effect from 24.04.2003. The case of the respondents herein was treated on a different pedestal. They were deprived of the benefit of appointment without there being any fault on their part, although their case was similarly circumstanced with that of Anuradha.

The learned Additional Advocate General has relied upon the law laid down in the cases of the State of Karnataka & Ors. v. C. Lalitha, (2006) 2 SCC 747 and State of Uttranchal & Anr. v. Dinesh Kumar Sharma, (2006) 1 SCC 683, in carving out a case in favour of the appellants.

On the basis of above, the learned Single Judge held that the dictum of law laid down above, does not have any application to the facts and circumstances of the case. The law is that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme of public employment, when the appointment is in terms of the relevant rules and after a proper competition among qualified persons, there can be no discrimination between the appointees on the same set of facts. Looking at the instant appeal from the above perspective, the case of the respondents could have not been tested and treated on different scales. It had to be judgedon the same standards as were evolved in the case of Smt. Anuradha."

Testing the instant case on the touchstone of the law laid down above, it needs must be said that the case of the petitioner cannot be treated on a different footing as compared to the ones, who were appointed with him in pursuance of the notification issued by the Government for the appointment of the Lecturers. The law is that the adherence to the rule of equality in the public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. There can be no discrimination between the appointees on the same set of facts. The petitioner did not err anywhere and, thus, cannot be made to suffer for the negligence, which the respondents committed. Therefore, the retrospective effect to the appointment of the petitioner from the date when the ineligible Officers were appointed as Lecturers has to be given to him.

Having regard to the above discourse; coupled with the fact that the selected candidates have already been appointed in January, 2011, which appointment, now, cannot be disturbed; and, in order to ensure substantial justice is done to the petitioner, the petition of the petitioner is allowed and, as a sequel thereto, the following Writs are issued:

i. By a 'Writ of Certiorari', the impugned consideration order dated 8th of January, 2013 passed by the respondent Commission shall stand quashed; and

ii. By a 'Writ of Mandamus', the respondent No.1 is directed to treat the petitioner as having been notionally appointed as a Lecturer in Government Medical College, Srinagar from 28th of January, 2011, i.e. the date from which the selected candidates were appointed. The benefit of notional appointment and seniority of the petitioner shall be taken into account by the respondent No.1 for the purposes of fixation of his pay as well as for benefit of his promotion in Government Medical College, Srinagar. It goes without saying that the seniority of the petitioner shall be fixed as Lecturer after the selected/ appointed Lectures of January, 2011 in the Government Medical College Srinagar.

Writ petition disposed of as above, alongwith the connected IA(s).