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Judgment
In the instant petition; which has been permitted to be amended by this Court in terms of order dated 18th of February, 2021, the petitioners have
prayed for the grant of following relief(s) in their favour:
“I. By a writ of Certiorari:
a. The impugned condition nos. ‘02’ and ‘04’ of the Government Order No. 118-SKIMS of 2012 dated 06.11.2012 may be
quashed and set aside.
b. The impugned condition nos. iii and iv under the heading of
“Other Terms and Conditions for the Post shall be as under†in the Advertisement Notice No. 01 of 2021 dated 07.01.2021 may also be
quashed and set aside.
II. By a writ of Mandamus:
The respondents may be directed to conduct selection for the post of Principal in SKIMS-Medical College strictly in compliance with the
Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979.
The Hon’ble Court may further be pleased to issue such other writ, direction or order in favour of the petitioners and against the
respondents as this Hon’ble Court may deem fit and appropriate in the facts and circumstances of the case.â€
The brief facts leading to the filing of the instant petition, as stated by the petitioners in their petition, are that the SKIMS-Medical College, Bemina,
Srinagar (hereafter referred to as the “Collegeâ€), being a pinnacle learning Institute of Under-Graduate and Post-Graduate Medical Education,
was established way back in the year 1998, without having its own rules and regulations for recruitment, regularization, promotions or any sort of
employment. It is stated that a five-member Committee was, accordingly, constituted by the Apical Governing Body, wherein it was decided that the
possibility of delinking the College was not possible at that point of time and, insofar as the process of recruitment and promotions of the Institution is
concerned, a policy decision was taken to regulate the same in terms of the J&K Medical Education (Gazetted) Service Recruitment Rules, 1979.
Thereafter, it is stated that although the Respondent No. 3, on several occasions, issued advertisement notice for filling up the post of Principal of the
College, yet, due to one or the other reason, the post was occupied and filled by the senior-most faculty member of the College on in-charge basis.
The incumbent in-charge Principal and senior-most faculty member of the College, namely, Dr. Reyaz Ahmad Untoo, is stated to have superannuated
on 31st of January, 2021 from his service and the charge of the post of Principal of the College is claimed to have been assigned to Director, SKIMS,
Soura. Thereafter, it is contended that the respondent No. 3 issued the impugned advertisement notice, laying therein that the upper age limit shall be
62 years in respect of the Faculty of the SKIMS, Soura and Faculty of the College as on January, 2021 and that the appointment shall be on tenure for
a period of two years. Feeling aggrieved of the aforesaid conditions incorporated in the advertisement notice, the petitioners have filed this petition for
the afore-stated relief(s).
When the matter came up for consideration on the very motion hearing, this Court, in terms of order dated 15th of January, 2021, while issuing
notice to the respondents, directed that the selection pursuant to the impugned advertisement notice shall not be finalized till the next date of hearing
before the Bench. This order was assailed by the respondents before the Division Bench of this Court in appeal bearing LPA No.07/2021, filed under
Clause 12 of the Letters Patent. The Division Bench, vide judgment dated 4th of February, 2021, held the appeal not maintainable by holding that the
aforesaid order did not fit in any of the tests laid down by the Supreme Court for determining as to whether the impugned order tantamounts to
‘judgment’ within the meaning of Clause 12 of the Letters Patent. Thereafter, the petitioners filed a motion, being CM No.745/2021, seeking
amendment of the Writ petition which was, subsequently, allowed by this Court in terms of order dated 18th of February, 2021 and the amended
petition, consequently, taken on record.
Objections stand filed on behalf of the respondents in opposition to the amended petition filed by the petitioners, resisting and controverting the
averments made therein. The respondents have contended that the petitioners have no locus standi to maintain the present Writ petition inasmuch as
the petitioners, besides being the senior faculty members of the College and Heads of the Departments/in-charge Heads of the Departments, have
already responded to the impugned advertisement notice issued under Government Order No.118- SKIMS of 2012 dated 6th of November, 2012 read
with Government Order No. 38 SKIMS of 2017 dated 8th of June 2017 and have applied for the post of Principal of the College, thereby accepting
the terms and conditions of the impugned advertisement notice as well as Government Order No.118-SKIMS of 2012 dated 6th of November 2012
read with Government Order No. 38 SKIMS of 2017 dated 8th of June 2017. It is pleaded that the Sher-i-Kashmir Institute of Medical Sciences, a
deemed University, has a Governing Body chaired by the Hon’ble Lieutenant Governor of the Union Territory of Jammu and Kashmir
(Hon’ble Chief Minister in the erstwhile State of Jammu and Kashmir) and the decisions pertaining to the management and administration of the
College are vested in the said Governing Body. In this context, it is pleaded that the College is not, at all, similarly situated with other Medical Colleges
of the Union Territory of Jammu and Kashmir and that the post of Principal of the College is not similarly situated with that of the Principals of other
Medical Colleges of the Union Territory of Jammu and Kashmir as claimed by the petitioners in their petition. The respondents have also averred that
the petitioners seek to challenge condition Nos. 02 and 04 of Government Order No.118-SKIMS of 2012 dated 6th of November, 2012 and condition
Nos. ‘iii’ and ‘iv’ of the impugned advertisement notice on the ground that superannuated candidate cannot be given the benefit of
additional two years, when the actual age of the petitioners, as on 1st of January 2021, is: (i) 60 years and 02 Months; (ii) 60 years and 09 months; and
(iii) 61 years and 10 Days, respectively, notwithstanding the fact that the petitioners, by applying for the post of Principal, have already accepted the
terms and conditions of the impugned advertisement notice as well as Government Order No.118-SKIMS of 2012 dated 6th of November, 2012 read
with Government Order No. 38 SKIMS of 2017 dated 8th of June 2017. It is further submitted that the post of Principal of the College, being a full-
time administrative post, is a post notified in terms of Government Order No.118-SKIMS of 2012 dated 6th of November 2012 read with Government
Order No. 38 SKIMS of 2017 dated 8th of June 2017 and that such an administrative/ tenure post does not fall under the jurisprudence of the faculty
positions, therefore, shall not have any age of superannuation attached to it. In the end, the respondents have prayed that the petition of the petitioners,
being devoid of any merit, deserves to be dismissed.
Mr R. A. Jan, the learned Senior Counsel, appearing on behalf of the petitioners, submits that given the decision of the Governing Body of the
College to the effect that the promotion of the existing faculty members and new appointments into the College shall be governed by the J&K Medical
Education (Gazetted) Service Recruitment Rules 1979, the action of the respondents in granting the additional lease of two years’ tenure to the
post in question, as has been done in terms of the impugned advertisement notice, not only amounts to deviation from the statutory rule position, but
same also smacks of discrimination between two similarly situated employees of the same institution. It is further submitted by Mr Jan that a
superannuated candidate cannot be given the benefit of additional two years, thereby making his retirement age as 64 years inasmuch as the said
action infringes the rights of all the similarly situated faculty members and deprives them of further two years of employment. It is pleaded that it is
well settled legal position that eligibility criteria should not be arbitrary or unreasonable and, if same is so found in any case, it becomes liable to be
quashed as it falls within the mischief of Article 14 of the Constitution of India which provides for equality in the eyes of law. Mr Jan has also argued
that as per the guidelines of the Medical Council of India (MCI), only the services of Medical Professionals can be utilized beyond the period of
superannuation for research and teaching purpose and not for holding/ occupying any administrative position. The learned Senior Counsel has
proceeded to contend that the petitioners, by accepting to participate in the selection process, only accepted the prescribed procedure and not the
illegality in it as, in the case on hand, the candidates are alleging misconstruction of statutory rule position and discriminating consequences arising
therefrom which cannot be condoned merely because the petitioners have partaken in it.
Mr D. C. Raina, the learned Advocate General, appearing for the respondents, at the very outset, raised a preliminary objection with regard to the
maintainability of the petition on hand by stating that, while issuing the advertisement notice for the post of Principal of the College, none of the rights
of the petitioners stand violated which would have necessitated the petitioners to approach this Court for seeking a ‘Writ of Mandamus’ in the
name of the respondents. It is also pleaded by the learned Advocate General that law is settled on the issue that it is the sole domain of the
Government to decide any qualification/ eligibility criteria as regards any promotional post on the basis of reasonable relation to the nature of duties
and responsibilities that go with and are attendant on such promotional post. It is contended that the eligibility criteria fixed for the post of Principle of
the College, that has been assailed by the petitioners herein this petition, cannot, in any manner whatsoever, be said to be discriminatory or arbitrary or
violative of the rights of the petitioners inasmuch as the same is a policy decision taken by the Government (employer) and it is the Government
(employer) who has to decide as to who will be suitable for the post and what should be the channel of promotion for such post. Besides, the learned
Advocate General has also contended that the petitioners, having duly participated in the selection process initiated by the responding in terms of the
impugned advertisement notice thereby having accepted the terms and conditions prescribed therein, are estopped under law to challenge the vires of
the same advertisement notice before this Court later in point of time.
Having heard the learned appearing counsel for the parties, gone through the pleadings on record and considered the matter, I am of the
considered view that there is hardly any scope for disagreement with the argument put forth by Mr Raina, the learned Advocate General, that it is for
the employer to decide the qualification or the eligibility criteria required for promotion to a higher post. An employee cannot insist on a particular
promotion policy or on certain criteria for promotion to the next level. An employer may revise promotion policy or change criteria for promotion to
higher post and, an employee, or, for that matter, the union/ association of employees, cannot be heard saying that promotion policy once decided is to
be left unchanged for all times to come. The competent authority is always free to amend, alter and change the existing promotion policy or introduce
a new policy, replacing the existing one.
It is well settled legal position that this Court, in exercise of power of ‘judicial review’, is not to embark on an exercise to find out whether
the competent authority would have devised or come up with a better promotion policy. The Court, in the name of ‘judicial review’, is not to
replace the decision taken by the competent authority by its own decision as regards the eligibility criteria for promotion to the higher post or conclude
that there ought to have been some other policy as against the one devised by the employer. All that the Court may examine is the legality of the
promotion policy or legality of eligibility criteria prescribed for consideration to promotion. It is the decision-taking process and not the decision itself
that could call for close scrutiny by the Court in exercise of power of ‘judicial review’, unless the decision offends a Constitutional provision or
Statute. In the present case, the petitioners have assailed certain conditions prescribed by the respondents in the advertisement notice issued for
purpose of making selection to the post of Principal for the College. This fixing of eligibility criteria, on the part of the respondents, is clearly a policy
decision of the respondents keeping in view the suitability for the post in question and same, in no circumstance, can be said to be discriminatory or
arbitrary or violative of any of the rights of the petitioners. The respondent authorities, in this behalf, have all the expertise in such administrative
matters and it is, ordinarily, not proper for this Court to sit in appeal over their decisions, unless, of course, it is something totally arbitrary or shocking,
which is not the eventuality in the case on hand.
Hon’ble the Supreme Court, in case titled ‘T. N. Electricity Board & Anr. v. T. N. Electricity Board Thozhilalar Aykkiya Sangam; 2008
AIR SCW 1967’, while dealing with the issue as involved hereinabove, at Paragraphs, has observed as under:
“10. This is a policy decision taken by the Board and it has been incorporated in service regulation. Therefore, the candidates were
recruited on the post of Helper possessing this qualification, their channel of promotion is only to technical post and there cannot be any
doubt about it. This was a categorical policy decision taken by the Board and therefore, the channel of promotion of these persons now will
be only to the technical post and not to the administrative post. Therefore, this provision which has been made in the service condition
cannot be said to be discriminatory or arbitrary or violative under Article 19 (1) (g) in any manner. This is a policy decision of the Board
and it is the Board who has to decide that who will be suitable for the post and what should be the channel of promotion for such pot. It is
not for the incumbent serving as a Helper to insist that the Board should amend the Regulation which suits him. It is the prerogative of the
Board to decide that what shall be the channel of promotion for technical and for non technical person. In this case, the Board has decided
on a rational basis that the channel of promotion of technical persons will be on the technical side and not on the administrative side.
In this connection, our attention was invited to the decision of this Court in case of P.U Joshi and Others vs. Accountant General,
Ahmedabad and others reported in 2003 (2) SCC 632 and this Court has very categorically stated that “There is no right in any
employee of the State to claim that rules governing conditions of his services should be forever the same as the one when he entered service
for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired of accrued at a particular point of
time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to
even an existing service.
Therefore, in this view of the matter that the Board has decided to lay down a qualification for appointment to the post of Helper i.e.
NTC/NAC and provided a channel of promotion for such persons to the higher post on technical side such provision cannot be said to be
ultra vires of Articles 14, 16 and 19 (1) (g).â€
In the light of the above legal and factual position, it can quite safely be said that the respondents are well within their right to fix the eligibility criteria
for the post in question keeping in view the suitability and other technical issues, which this Court, in ‘judicial review’, cannot go into as it is
solely the domain of the employer to do so.
Apart from the above perspective, the other important aspect, as highlighted by the learned Advocate General, to which the attention of the
learned Senior Counsel for the petitioners was invited is whether with the fixation of the impugned criteria, any of the rights of the petitioners stands
violated as would warrant the petitioners to approach this Court for seeking a ‘Writ of Mandamus’ in their favour. The learned Senior Counsel,
however, could not convince the Court on this issue as well.
‘Mandamus’ literally means a command. The essence of ‘Mandamus’ is that it is a command issued for directing performance of a
public legal duty. A ‘Writ of Mandamus’ is issued in favour of a person who establishes a legal right in himself. A ‘Writ of Mandamus’ is
issued against a person who has a legal duty to perform, but has failed and/ or neglected to do so. Such a legal duty emanates from either in discharge
of a public duty or by operation of law. The ‘Writ of Mandamus’ is of a most extensive remedial nature. The object of mandamus is to prevent
disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice, despite
demanded, has not been granted.
The Hon’ble Apex Court of the country, while dealing with the scope of ‘Mandamus’, in case titled ‘State of Kerela V. Smt. A.
Lakshmikutty & Ors.; (1986) 4 Supreme Court Cases 632’, at Paragraph No.34, has observed as under:
“34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the
State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There
must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a
duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statu- tory duties by public
bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles
stated in Halsbury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been
recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor
bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:
“It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the
High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for
appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is
given by the High Court. Article 233 re-quires that the Governor should obtain from the High Court its views on the merits and demerits of
persons selected for promotion and direct recruitment.â€
The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion
appears to be that in the case of non-selection to a post, no writ of mandamus lies.â€
Again, in the case of ‘State of UP & Ors. V. Harish Chandra & Ors.; (1996) 9 Supreme Court Cases 309’, at Paragraph No.10, the
Hon’ble Supreme Court has held thus:
“10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some
earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous.
Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make
recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he
has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the
date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders
having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do
something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules
we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the
select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not
subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the
Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel
appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in
some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the
learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even
after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an
applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such
appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and
we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same
time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had
expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the
date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition
was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the
aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one
vacancy in the year 1987 is correct or not.â€
From the perusal of the law laid down above, it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a
‘Writ of Mandamus’. In the case on hand, the petitioners have not been able to show as to which of their right has been violated by the
respondents while fixing the eligibility criteria for the post in question, which can be directed to be enforced by way of issuing a ‘Mandamus’
from this Court. In this context, the irrefutable conclusion which can be drawn is that none of the rights of the petitioners stand violated by the
respondents in the process of fixing the eligibility criteria for the post of Principal of the College for which a ‘Writ of Mandamus’ can be issued
in their favour.
The next contention of the learned Advocate General qua the petitioners being estopped by their conduct to challenge the vires of the
advertisement notice as well as the Government order (supra), on which the said advertisement notice was based, after initially responding to the said
advertisement notice without any demur is also worth consideration. This is so because the petitioners, at the time of responding to the advertisement
notice, gladly accepted the terms and conditions prescribed in the said advertisement notice without any protest and, as such, cannot, now, turn around
and contend that certain portion of the advertisement notice is bad in law or violative of any of their rights. This conduct, on the part of the petitioners,
itself, knocks the bottom out of the case set up by the petitioners in their petition.
For the foregoing reasons, I do not find any merit in the instant petition which is, accordingly, dismissed along-with all pending CMs therewith.
Interim directions, if any, subsisting as on date, shall stand vacated.