Fayaz Ahmad Wani vs State of J & K

Heard

Admitted.

Learned counsel for the respondents submit that his objections supported by affidavit may be treated as reply. Learned counsel for the petitioner

also canvasses that the counter filed by him may be taken on record as rejoinder. As prayed for the case is taken up for disposal.

The counsel for the parties are heard.

The petitioner's case is that in the year 1992 Advisor Health to Governor, Jammu and Kashmir State, ordered his appointment as Nursing

Orderly in the Health Department which post is equivalent to Class IV post. The appointment was within the competence of the Advisor (H). The

appointment order as endorsed on 24792 on the petitioner's application's was addressed to Director/Dy. Director Health Services J and K Govt.

for adjustment of the petitioner as orderly. The Dy. Director Halth Services Srinagar further endorsed the application to the Chief Medical Officer

Pulwama on 1181992 for adjustment pursuant to instructions of Advisor (H). The application was handed over by the petitioner to the Chief

Medical officer, Pulwama (Respondent no. 3). The Respondent No.3 failed to issue order of adjustment of the petitioner, notwithstanding that

number of posts of Nursing orderlies were available in the District Pulwama. The Respondent No. 3 is still avoiding adjustment of the' petitioner,

though number of candidates have been adjusted by the Director Health Services as Nursing Orderlies in the District even after petitioner was

ordered to be adjusted by the Advisor (H) to the Governor Health Department. Petitioner having been made to take rounds of the office of

Respondent No. 3 has not been issued the orders, thereby, the rights of the petitioner have been violated.

The appointment to the post of Nursing Orderly is within the competence of the Advisor (H) as on the material date, in so far as posts of

orderlies (Class IV posts), lie outside the purview of the State Recruitment Board. The petitioner has sought a Writ of Mandamus against the

respondents for adjustment of the petitioner as Nursing orderly in terms of the order dated 24792 of Advisor (H) to the Governor of Jammu and

Kashmir.

The respondents in reply have challenged the maintainability of the petition on the ground that no rights of the petitioner have been violated.

Neither fundamental nor legal rights of the petitioner have been infracted. The endorsement of Advisor (H) to Governor on the application of the

petitioner is not an appointment of the petitioner of Class IV. The Advisor (H) is not the appointing authority to fill up the Class IV vacancies.

Infact the appointment of Class IV employees on the material date is covered by Government Order No.462GR of 1990 dated 1641990. It is the

Recruitment Board chaired by District Development Commissioner of concerned District with powers to coopt District Head of the Department to

which the recruitment relates. This Recruitment Board has powers of recruitment of sanctioned posts within their respective Districts in respect of

all categories of ClassIV posts. It is further averred that the Advisor (H) to Governor had no power of appointment of petitioner to the post. At the

most the endorsement or orders of the advisor (H) to Governor are recommendatory in nature and as such petitioner cannot claim appointment to

the post. On these grounds the petition is sought to be dismissed.

In the rejoinder it is reiterated that the endorsement dated 24792 of the Advisor (H) to the Governor is an order of appointment of the petitioner

with direction to Respondent No.3 for adjustment of the petitioner as Nursing Orderly. Besides quoting two instances, it is further averred that

many other appointments of Nursing Orderly's' and other Class IV candidates have been ordered by the Respondents in District Pulwama in

violation of Government order No.462GR of 1990 dated 1641990 and the violation of the said Govt. order and appointments made in

contravention of this order need to be declared bad in law after obtaining lists of such appointments and making the posts thus identified available

to be filled up afresh in accordance with the rules and for the purpose it is prayed that the petition may be treated as Public interest petition.

The core issue in this petition is whether the petitioner is ordered to be appointed vide endorsement dated 24792 of Advisor (H) of the Governor.

It will be seen that the Advisor (H) asked the Director/Deputy Director Health services Srinagar to order Chief Medical Officer Pulwama to adjust

the petitioner as Nursing orderly. The Deputy Director (Respondent No. 2) on his part forwarded this application with the endorsement to

Respondent No. 3 for taking action in the matter ""as instructed by the Advisor (H)

On the plain reading of the endorsement, it is obvious that neither the Advisor (H), nor Dy. Director Health Services, Srinagar passed any order

of appointment of the petitioner to the post of Nursing Orderly. This could not have been so all the more on the face of the Government order No.

462GR of 1990 dated 16041990 mandating constitution of the Recruitment Board for filing up the vacant class IV category post. The

endorsement at the most is forwarding the petitioner's case to Respondents 2 and 3 for consideration for appointment to the Nursing Orderly post

which appointment could have been ordered only by the Recruitment Board constituted for the purpose and for that matter the case of the

petitioner had to come up before the Recruitment Board which is not the case here.

The plea and contention of the learned counsel of the petitioner that other candidates have been appointed as Nursing Orderlies by the

Respondents 2 and 3, does not indicate the manner and mode in which their appointment have been ordered, if it be so. The alleged appointment

orders of two candidates referred to in para 3 of the rejoinder, have not been placed on record. There is no documentary or other material proof

to support the contention of the petitioner that any candidate has been appointed by respondents in violation of SRO 462 of 1990.

For the aforesaid reasons, the petition is dismissed on merits. However, regarding the prayer of the petitioner in the rejoinder, that his petition

may be treated as Public Interest Petition, the matter needs to be and is referred to the Public Interest Litigation Cell for orders of his Lordship

Hon'ble the Chief Justice.