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Judgment
Petitioner, by means of this petition, seeks to quash Government order No.l30HME of2004dated 13.02.2004whereby Government order No.
102HME of 2004 dated 10.02.2004 has been rescinded and respondent no.5 posted as Chief Medical Officer, Baramulla was attached with
Directorate of Family Welfare and petitioner Dr. Manzoor Ahmad , Asstt. Surgeon, District Hospital, Baramulla, posted as Chief Medical Officer,
Baramulla.
Respondent No.5 while working as Chief Medical Officer, Baramulla, in stopgap arrangement in his own pay and grade, was transferred and
attached vide Government order No. 102HME of 2004 dated 10.02.2004 with the Directorate of Family Welfare, pending enquiry in
embezzlement case against him as ExBMO,Ganderbal/Lar and in his place petitioner Dr. Manzoor Ahmad, Assistant Surgeon, District Hospital,
Baramulla was posted as Chief Medical Officer, Baramulla, in his own pay and grade, pending clearance by the DPC and without prejudice to the
seniority of others.
While respondent No.5 while working as Chief Medical Officer, Baramulla, filed petition SWP No. 1 295/03 which came to be disposed of on
04.08.03 directing the respondents to allow the petitioner to hold the charge of the post of Chief Medical Officer till the DPC is constituted and his
case is considered alongwith other eligible persons. On consensus of the parties, this petition was finally disposed of on 04.08.03.
The petitioner has challenged impugned order dated 13.02.04 on the ground that respondent no.5 being involved in an embezzlement case could
not have been promoted and permitted to work as Chief Medical Officer, Baramulla, and once the petitioner was posted as Chief Medical Officer,
Baramulla, in his own pay and grade, pending clearance by DPC should not have been withdrawn therefrom. It is averred that the order of transfer
of respondent No.5 has been issued with a design to frustrate the enquiry ordered to be instituted against him vide order dated 10.02.04 and that
he has wrongly used the order of Court dated 04.08.2003 and mislead the respondent No.2 to believe that order dated 10.02.04 could not have
been issued.
Respondent No.5 and other respondents have filed their reply separately controvert the averments of the petition. Respondent no.5 has
submitted that there was no enquiry pending against him on the date of issuance of the order dated 10.02.04. Respondent no.2 would not have
passed the order in presence of the direction of the Court dated 04.08.2003, directing the respondents to take steps to complete the process of
filling up of the post and till the process is complete, the present status of respondent no.5 shall not be disturbed.
Respondent no.1 to 4 has submitted that at the time of issuance of order dated 10.02.2004, the fact of judgement dated 04.08.2004 was not
placed before the Hon'ble Minister who is the approving authority for transfer and posting of the Chief Medical officers. Respondent no.5
represented to the Government and his case was examined afresh. It was found that according to the direction of the Court, respondent was
required to be continued as Chief Medical Officer till the post is filled up on substantive basis. It is also stated that by rescinding order dated
10.02.04, it has not caused any prejudice to the rights and interests of the petitioner who is only an Assistant Surgeon and yet to become Block
Medical Officer which is the next promotional post for the Assistant Surgeon. The Assistant Surgeon cannot be promoted as Chief Medical Officer
under rules. Respondent no.5 is holding the post of Block Medical Officer since nine years. It is also submitted in para 6 of the reply that pendency
of an enquiry or departmental proceedings is no ground for attachment of the respondent No.5. The order dated 10.02.2004 was rescinded on the
ground being inconsistent with rules.
The petition is admitted to hearing. Objections filed by the respondents are treated as Counter. Affidavit. With the consensus of learned counsel
for the parties, this petition is taken up for final disposal.
Heard learned counsel for the parties and perused the record.
Mr. R. A. Jan, learned counsel for the petitioner has urged that impugned order dated 13.02.2004, rescinding order dated 10.02.04 whereby
the petitioner was posted as Chief Medical Officer, Baramulla, is illegal on the face of it and is designedly issued to frustrate the enquiry directed to
be conducted against Respondent No.5. He could not have been permitted to function as Chief Medical Officer, Baramulla, being involved in
embezzlement and not having clean record of service.
Mr. A. M. Magray, learned counsel for the respondents has submitted that at the time of framing order dated 10.02.2004,order dated
04.08.2003 passed in SWP No. 1295/03 could not be brought to the notice of Minister, the authority for effecting transfers and postings against
the post of Chief Medical Officer. Respondent No.5 represented to the Government and brought to its notice the order of the Court and in
implementation of the said order, impugned order has been issued. The relevant portion of the order dated 04.08.03 for appreciation is extracted
below:
......respondents will take steps to complete the process of filing the post of Chief Medical Officer, in accordance with rules and also consider the
case of the petitioner alongwith other eligible persons for promotion. Till the process is complete, the present status of the petitioner shall not be
disturbed.
Mr. Magray, has further submitted that there is no substance in the plea of learned counsel for the petitioner that the impugned order has been
framed to frustrate the enquiry ordered against respondent No.5. The enquiry has been instituted and he shall be dealt with in accordance with law.
His further submission is that adjustment of the petitioner, Assistant Surgeon as Chief Medical Officer is in violation of rules governing the services
known as The Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules,1970. The petitioner could have been adjusted/promoted to the
post of Block Medical Officer and not to the post of Chief Medical Officer. The relevant rule is extracted below:
Class Categry Desig of the Minimum Method of Post Qualification Recruitment
1 2 3 4 5
II (a) District Medical Officers
[By promotion from category (b) of Class II, subject to Superintendants of Hospitals suitability and satisfactory record of service.]
Dy. Superintendents of Hospitals
(b) Medical officer 7yrs By promotion In charge experience in from PrimaryHealfliCen1reClassIIcategory(c) Class II (BMO) category)
(c) Assistant Surgeons By direct recruitment.
Including Unit Medical Officers, Medical Officers, Medical Officers, District Family Planning Officers Supervising Medical Officers, Medical
LecturerscumDemonstrator, Epidemiologist, Dermatologist Ventriloquist Blood Bank Officer Anesthetist and Radiologists.
The aforesaid proposition of law envisages that an Assistant Surgeon can be promoted to the post of Block Medical Officer provided he has
an experience of seven years as Assistant Surgeon. Under rules an Assistant Surgeon cannot be promoted to the post of Chief Medical Officer
(earlier designated as District Medical Officer) being not the promotional post for Assistant Surgeon. The respondents are under legal obligation to
fill up the post from out of the eligible Block Medical Officers. There is a purpose to prescribe eligibility qualification to the post and the purpose is
that the officer becomes equipped with the experience to make the post functional. Respondents have posted the petitioner against the post of
Chief Medical Officer in blatant violation of the rules. Not only this Mr. Magray, learned counsel for the respondents has admitted also that while
framing the order dated 10.02.04, respondents have not taken into consideration another relevant provisions of law, contained in Regulation 85 of
the Jammu & Kashmir Civil Service Regulations which provides manner and method of appointment of an officer as in charge of a higher post
independent of his own duties. Regulation 85 reads as under:
(1) A Government servant may be:
(a) assigned the charge of another post in addition to his own duties; or
(b) appointed to be in charge of a higher post independent of his own duties.
(2) (1) where for administrative reasons or noncompletion of formalities for appointment to the higher post, a person cannot be appointed to that
post formally and is appointed in his own pay and grade to be in charge of the higher post and required to discharge full duties and responsibilities
of the post either in the same office or in a different office, in the same cadre/line of promotion or in a different cadre/line of promotion.
Government Instruction.(a) It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without
observing the required formalities of clearance from Departmental Promotion Committee etc. where, however, for reasons to be recorded, the
Administrative authorities cannot without detriment to public interests wait for formal appointments temporary stopgap arrangements maybe made
by them against such posts. In making such arrangements the competent authorities will ensure that only such officers are appointed who satisfy all
the requirements for higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc.
The aforesaid regulation also stipulates that while making stopgap adjustment it must be ensured that the officer so appointed must satisfy the
requirement for higher appointment and should be eligible to stand the scrutiny by the Departmental Promotion Committee. The petitioner herein
can not be considered by the Departmental Promotion Committee for the post of Chief Medical Officer, being holding the post of Assistant
Surgeon which is not the source for promotion to the post of Chief Medical Officer. On this ground also the adjustment of the petitioner against the
post of Chief Medical Officer cannot be maintained. The stopgap arrangement
as herein this case, does not confer any right to continue against the post. This proposition of law has been settled by the Apex Court in case titled
Ramakant Shripad Sinai Advalpalkar vs Union Of India reported in AIR 1991 SC page 1145 asunder:
.... Asking an officer who substantively holds a lower post merely to discharge duties of a higher post cannot be treated as a promotion. In such a
case he does not get the salary of the higher post; but gets only that in service parlance is called a "" Charge allowance."" Such situations are
contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person
continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stopgap arrangement.
Petitioner in terms of rules governing the services is ineligible and unless he possesses his eligibility according to rules, he has no right to seek
Mandamus for his continuation against the post. This proposition of law also has been settled by Apex Court in case titled Umakant Saran vs State
of Bihar reported in AIR 1973 SC964 holding that:
.... while respondents were eligible for appointment as lecturers and the petitionerappellant was not, therefore he could not be regarded as
aggrieved for the purpose of issue of mandamus for setting aside the appointments of the respondents.
The petitioner being ineligible is not found entitled for his continuation against the post of Chief Medical Officer.
It is also urged by learned counsel for the petitioner, Mr.R.A. Jan, that respondent No.5 is substantively holding the post of Assistant Surgeon
and has not been promoted as Block Medical Officer though he was adjusted as Block Medical Officer and thereafter as Chief Medical Officer
but not cleared by DPC, thus, is not entitled to hold the post of Chief Medical Officer. This ground has not been pleaded in the petition giving
opportunity to the respondents to meet it, therefore, is not entertained.
For the aforesaid reasons, the writ petition having found without merit is dismissed.