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Judgment
K.S. Radhakrishnan, C.J.—These appeals have been placed before me in terms of Rule 36 of the J&K High Court Rules, 1999 since the
two Learned Judges, constituting the Division Bench, are equally divided on certain points raised in these appeals as well as on their findings and
ultimate conclusion. Hence, as per Rule 36(2) of the Rules such points have to be decided according to the opinion of the majority (if any) of the
Judges who had heard the case. When the matter came up for hearing before me, it was pointed out by Mr. Z.A. Shah, Senior Counsel appearing
for appellant in LPA No. 88/2007, that there was no due compliance of Rule 36(2) of the Rules, since the two Learned Judges had not stated the
points upon which they differed and hence the case should have gone back to the Division Bench for stating the points of difference between them.
Learned Counsel on either side, however, submitted that they wanted this Court to hear the matter finally and decide all the issues raised, rather
than sending it back to the Division Bench for proper compliance with Rule 36(2). On consent of parties, I proceeded to hear the matter on
various issues raised by the parties before the Division Bench as well as before me and also on the points on which Learned Judges differed.
The point in controversy is with regard to the appointment to the post of Director, Sher-i-Kashmir Institute of Medical Sciences, Soura,
Srinagar (for short SKIMS). The post of Director is shown as Class (A) Category I post included in Schedule II of the SKIMS (Gazetted)
Recruitment Rules, 1978. Post of Director is a selection post. On August 24, 2003, the Government had decided to advertise the post of Director,
SKIMS at national level giving full details regarding recruitment, period of appointment, qualification and experience and also other conditions of
appointment. The Government, vide order No. 946-HME of 2003 dated September 1, 2003, constituted a selection committee for recommending
a suitable candidate for the post of Director. Post was advertised vide advertisement notice dated December 6, 2004. Notice was published in
national and local newspapers. Special Secretary and Additional Secretary to Government, Health and Medical Education Department, was
assigned the job of scrutinizing the applications received. Government, later, vide order No. 50-HME of 2005 dated February 4, 2005,
reconstituted the selection committee. On March 4, 2005, Special Secretary to Government, Health and Medical Education Department,
forwarded a detailed comparative statement of bio-data dealing with educational qualification, publications, experience etc. of the candidates for
perusal of the Selection Committee. Selection Committee then met on May 31, 2005. Notice dated June 16, 2005 was issued to the eligible
candidates and they were asked to appear for an interaction with the Selection Committee on June 24, 2005. Out of eleven, ten candidates
appeared for an interaction with the members of the Selection Committee. Selection Committee then prepared a panel of three candidates in the
order of merit and suitability. Government from the panel appointed Dr. Section Jalal as Director of SKIMS vide Government order No. 802-
GAD of 2005 dated July 11, 2005.
Dr. Muhammad Ashraf Bhat, whose name did not figure in the select list/panel, approached this Court and filed writ petition, SWP No.
1022/2005, seeking a writ of certiorari to quash the Government order dated July 11, 2005 appointing Dr. Section Jalal as the Director and also
questioned the criteria applied for the selection and contended that the Governing Body alone was authorized to make appointment and was given
the power of relaxation and not the State Government. Petitioner also sought for a direction to appoint him on the post of Director. A Learned
Single Judge of this Court allowed the writ petition on April 18, 2007 holding that appointment of Dr. Section Jalal as Director, SKIMS, was not
in accordance with rules and directed the State Government to make fresh selection. Since the 3rd respondent was held ineligible to hold the post,
being over-aged, the Learned Single Judge directed the State Government to place an eligible candidate as Director of the Institute till proper
selection is made. The Government in pursuance to the order of the Learned Judge issued an order dated May 6, 2007 placing one Dr. Abdul
Hamid Zargar, who was shown as figuring in the panel submitted by the Selection Committee, as Director of the Institute. State Government also
noticed in that order that as per Note (II) of Schedule II of the Recruitment Rules, 1998 the Governing Body can only relax the age limit on the
recommendation of tljie Selection Committee. Government, however, in implementation of the judgnjent, passed the order relaxing the age limit of
Dr. Zargar and placed him in charge of the Director, holding that the decision would be placed before the Governing Body of the Institute for their
confirmation and approval to the relaxation of the age limit. Further, it was also ordered that the placement of Dr. Zargar would be subject to the
result of the letters patent appeals. Dr. Zargar, accordingly, took charge as Director on May 7, 2007.
Dr. S. Jalal, aggrieved by the judgment of the Learned Single Judge, preferred LPA No. 88/2007 and State and others preferred LPA No.
98/2007. Both the LPAs came up for hearing before a Bench comprising Shri Justice Y. P. Nargotra and Shri Justice Bashir Ahmad Kirmani, JJ.
Shri Justice Y. P. Nargotra found no illegality in the selection and appointment of Dr. Section Jalal and allowed the appeals, setting aside the
judgment of the Learned Single Judge, and dismissed the writ petition. Shri Justice Y. P. Nargotra, held it was for the Selection Committee to
make selection of a suitable candidate for the post, irrespective of the age, age being not the necessary criterion for selection. Further, it was also
held that it was for the appointing authority to consider relaxation of age of the selected candidate who happened to be more than 50 years of age.
Learned Judge also referred to Rule 8 and held that relaxation of age could be granted by the appointing authority if the merit of the candidate is
outstanding. Learned Judge also held since the Selection Committee has submitted a panel in which the 3rd respondent's name figured and the
Government has appointed him, there must be a deemed relaxation of age. Learned Judge also noticed that the Selection Committee was
constituted by the Government. Learned Judge also noticed that for the post of Director the appointing authority is neither the Chairman of the
Governing Body nor the Selection Committee is the recommending body. Learned Judge held it is the Government who is the appointing authority
and that power has been exercised by the Chairman, Governing Body in his capacity as the Chief Minister. Reference is made to Sections 36, 37
and 43 of the Constitution of Jammu and Kashmir. Shri Justice Bashir Ahmad Kirmani took a contrary view and dismissed both the appeals,
holding that the selection and appointment of Dr. Jalal suffers right from the beginning due to wrong constitution of Selection Committee, wrong
method of selection, age bar which was never relaxed, etc. Due to the difference of opinion expressed by two Learned Judges on various points,
the matter has been placed before me in terms of Rule 36 of the J&K High Court Rules.
Before I refer to various points on which the Learned Judges differed, it would be appropriate to refer to the pleadings in the writ petition.
Petitioner in writ petition was an applicant for the post of Director, SKIMS. Post was advertised vide Advertisement Notice dated December
6, 2004. Petitioner along with others was called for an interaction vide notice dated June 16, 2005. Referring to the Selection Committee,
petitioner has stated as follows:
The petitioner could find that Chief Secretary, Principal Secretary and two Commissioners, namely, Sonali Kumar and S.L. Bhat were members of
the selection committee who are in no way having any kind of knowledge, experience or expertise in hospital administration. However, only one
Doctor, Dr. Nasir Ahmad Shah was present who is basically postgraduate in medicine who is not an expert either in hospital administration or in
field of surgery in which petitioner has specialization. Therefore, there was no expert from the field of hospital administration.
The above mentioned pleadings would clearly indicate that the petitioner was questioning the competency of the members of the selection
committee and their knowledge, experience and expertise in hospital administration and in the field of surgery and not in the field of Medical
Education. Petitioner further averred as follows:
It is submitted here that the contestants, including the petitioner, were not informed to appear for interview before the said selection committee, but
were informed to have interaction with the selection committee members. But unfortunately the said interaction was treated as criteria for selection
and the selection process was finalized on the basis of said interaction and in consequence to same the government order was issued whereby Dr.
S. Jalal was appointed as Director SKIMS, Soura.
Petitioner, therefore, says that he was not informed to appear for an interview but for an interaction which, according to the petitioner, is not a
sound mode of selection of such a high post of Director. Further, it was also stated that a written test should have been conducted. Petitioner has
also pleaded that neither any criteria was disclosed to the contestants nor any fair criteria/procedure was applied by the respondents in the matter
of selection.
Petitioner has also stated that appointment of Dr. Section Jalal was approved by the Chairman of the Governing Body, but the appointment was
made by the Government. Petitioner has stated that since the SKIMS is an autonomous body, the appointment of Dr. Jalal can be approved only
by the Governing Body of the Institute and the Government has no power or authority to make appointment to the post of Director. Further, it was
also contended that the Chairman of the Governing Body has no exclusive authority to make appointment to the post of Director. Petitioner has
also stated that in terms of advertisement notice, the required age limit for the post of Director was 50 years and the petitioner alone had satisfied
that eligibility criterion and other persons, who were included in the panel, were over-aged. It was stated that age limit could be relaxed only if it
was found that the candidate was having outstanding merit, that too, by the Governing Body of the Institute. The Governing Body did not consider
the question of relaxation of age bar of any of the candidates in the panel, who were all having outstanding merit. Writ petition was preferred,
mainly, on the above mentioned pleadings.
Preliminary objections were preferred by respondents 1, 8, 9 and 10, stating that the petitioner had failed in the process of selection against the
post of Director, SKIMS and on the basis of recommendation of the selection committee Dr. Section Jalal was appointed as Director, SKIMS on
the basis of his outstanding merit and suitability. It was pointed out that the selection committee had interacted with the candidates and also
assessed their qualifications and credentials and after assessing their merit and suitability a panel was prepared in which the petitioner did not figure.
Contention of the petitioner that the selection committee members had no knowledge/experience or expertise in hospital administration was denied.
It was stated that Dr. Naseer Ahmad Shah had vast experience in the field having remained Principal Government Medical College, Srinagar for
number of years. It was also pointed out that Dr. Section Jalal was in possession of Degree of DM Cardiology/Fellow Cardiology etc. and had 22
years service career as Consultant, besides having continuously worked as Professor and Head of the Department of Cardiology since July 1999.
It was also pointed out that he had remained Dean of the Faculty of Medicine in the Institute from December 1999 to December 2001. It was
stated that while the petitioner had failed to make the grade even for being placed in the selection panel as he had no outstanding merit than those
who were placed in the selection panel. Further, it was also stated that the appointee was given the benefit of age relaxation in view of his
outstanding merit and that the Selection Committee had included only those persons in the panel who had crossed 50 years of age. It was pointed
out that appointment of Dr. Section Jalal was approved by the Chairman of the Governing Body of the Institute/Chief Minister, who was
competent to make such approval. It was also stated that appointment order was issued by the General Administration Department and by no
stretch of imagination it could be said that the order was issued without authority. The third respondent has also filed detailed objections traversing
the various contentions raised by the petitioner and also highlighted his credentials.
The first and foremost question that arises for consideration is whether, after having participated in the selection process and having failed to
qualify, can the petitioner question the constitution, composition and competence of the selection committee and also the various orders passed
subsequent thereto by the Chairman of the Governing Body/Chief Minister, and the Government etc. so as to give effect to the decision taken by
the Selection Committee?
It may be relevant to note here that all the participants were subjected to the same selection process viz. assessment of their qualifications,
experience, expertise, quality of publications etc. by a process of interaction not interview. Selection Committee after examining the qualification
prescribed as per rules, including their Post-graduate qualification, standing in the profession, administrative experience in hospital administration or
medical education, prepared a panel containing three names in the order of merit and suitability in which the petitioner did not figure.
Before examining the various contentions raised by the petitioner in the writ petition, let me briefly examine the steps initiated by the
Government to effect appointment to the post of Director. Process started in the year 2003; a meeting was convened on August 24, 2003 under
the Chairmanship of the Chief Minister who was the Chairman of the Governing Body of the Institute. It was decided to advertise the post. The
Government, vide order dated September 1, 2003, accorded sanction to constitute a selection committee for selection of a suitable candidate for
the post of Director, SKIMS, Srinagar with the following members:
Chief Secretary Chairman
Financial Commissioner, Finance Department; Member
Principal Secretary, Planning & Dev. Deptt.; Member
Principal Secretary General Admn. Deptt.; Member
Medical Scientist of National Importance as an Member
Expert;
Secretary to Govt., Health & ME Deptt. Member Secretary
Later, the Government passed an order, Goverr nent Order No. 173-GDA dated February 10, 2004, stating that decisions taken by the
Governing Body of the Institute and approved by the Chairman of the Governing Body (Chief Minister) would not be required to be submitted to
the Cabinet for ratification. The post was then advertised by the Government vide advertisement notice dated October 6, 2004. Notification
specifically stated that the appointing authority would be Governing Body of the Institute. Period of appointment was stipulated as 5 years but
would be extendable to maxim period of 10 years by the Governing Body or upto 60 years of age. Power was also given to the Governing Body
to relax the age of 50 years in case of candidates of outstanding merit.
The Government vide its order dated February 4, 2005 accorded sanction for reconstituting the Selection Committee with the following members:
Chief Secretary Chairman
Financial Commissioner, Home; Member
Financial Commissioner, (Prpl. Secretary to CM); Member
Dr. Syed Naseer Ahmad; Member
Director, PGI, Chandigarh; Member
Commr./Secretary H&ME Deptt. Member Secretary
The composition of the selection committee would indicate that the committee comprised of high ranking officers of the State with Chief
Secretary as its Chairman, which included Dr. Naseer Ahmad Shah, former Principal Government Medical College, Srinagar as one of its
members. Dr. Naseer Ahmad Shah having remained as Principal Government Medical College, Srinagar, had vast experience in the field of
medical education and hospital administration. True that Director, PGI, Chandigarh could not participate in the process of selection due to personal
reasons, but presence of Dr. Naseer Ahmad Shah would be sufficient to evaluate the knowledge of the candidates in the relevant field so also
others who are experts in the field of administration. In any view, the expertise and experience of Dr. Naseer Ahmad Shah was not questioned in
the writ petition apart from the vague averment that he is not an expert either in the field of hospital administration or in the field of surgery. The fact
that he had remained as Principal of the Government Medical College, Srinagar for number of years would be sufficient enough to show that he
was conversant with the field of hospital administration and medical education. In any view, the petitioner having participated in the selection
process and failed to make the grade cannot question Lie competence or composition of the selection committee especially when he has not
attributed allegation of any bias or arbitrariness against any of the members of the Selection Committee. Law on the point has been well settled by
the decision of the Apex Court in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , wherein the Court, dealing with the scope
of Rule 10 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967, held that, it is now well settled that if a candidate takes a
calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and
subsequently contend that the process of interview was unfair or the selection committee was not properly constituted. Reference may also be
made to the decision of the Apex Court in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , and K.H. Siraj Vs. High Court of
Kerala and Others, Reference may also be made to a recent decision of the Supreme Court in Dhanajay Malik and Ors. v. State of Uttaranchal
and Ors. 2008 (2) Supreme 328. Referring to the various previous decisions on the point, including the one in Madan Lai v. State of J&K (supra),
the Apex Court held as under:
It is not disputed that the writ petitioners-respondents herein participated in the process of selectipn knowing fully well that the educational
qualification was clearly indicated' in the advertisement itself Having unsuccessfully participated in the process of selection without any demur, they
are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications
were contrary to the Rules.
Petitioner, in my view, after having participated in the selection process without any demur and failed to make the grade cannot be allowed to
challenge the composition of the selection committee or the mode of assessment of merit.
Rules governing the selection and appointment to the post of Director, SKIMS do not lay down any procedure as such for the Selection
Committee to follow to assess the merit and suitability of the candidates. Selection Committee in its wisdom felt it is proper to follow the process of
interaction, rather than interview to assess the merit of the candidates. The decision of the selection committee to adopt the procedure of
interaction was communicated to all the candidates and they were subjected to the same selection process viz. interaction. Justice Kirmani has
made an endeavour to explain the etymology of the words 'interview' and 'interaction' and has concluded that the Selection Committee has
committed a fundamental flaw by following the procedure of interaction in the process of selection, a view I do not subscribe. Learned Judge has
also committed an error in thinking that the Special Secretary, Health and Medical Education, had participated in the selection process. Facts
would show that he had only prepared a format for the perusal of Selection Committee and had never participated in the selection process. It was
the Principal Secretary to Government, Health and Medical Education, who was a member of the Selection Committee, and not the Special
Secretary, as noticed by Justice Kirmani.
I am of the view that it is for the Selection Committee to follow a procedure which they consider to be fair and just in assessing the suitability
and merit of the candidates and a Writ Court in its wisdom cannot substitute its own method of selection other than the one adopted by the
selection committee unless the method followed is illegal, unfair and arbitrary or has caused any prejudice to any of the candidates. Reference in
this regard may be made to the decision of the Supreme Court in Banking Service Recruitment Board, Madras Vs. V. Ramalingam and Others, ,
wherein the Apex Court was dealing with the appeal by the Banking Service Recruitment Board. In that case different cut-off marks were fixed for
each of the four papers by the independent examining body, National Institute of Bank Management. The Apex Court held that so long as the
same cut-off marks in each subject are applied to the papers of all the candidates, there is nothing irregular about fixing different cut-off marks for
each paper. The Supreme Court further held that the High Court cannot substitute its own method of selection.
Learned Counsel for the petitioner brought to my knowledge and relied on a judgment of the Apex Court in Dr. Krushna Chandra Sahu v.
State of Orissa, 1995(5) SLR 337, and submitted that selection committee does not have inherent jurisdiction to lay down criteria for selection,
nor such power can be assumed by necessary implication. I am of the view that the said decision would not apply to the facts of the case. In that
case, there was a disagreement amongst the members of the selection committee on the conduct of interview and the method of determination of
knowledge of competing candidates, and the majority view was that instead of conducting interview, CCRs of the competing candidates alone be
considered for the purpose. In the instant case there was no disagreement amongst the members of the selection committee. The decision of the
Selection Committee was unanimous. When rules are silent, it is always open to the Selection Committee to adopt a procedure to determinate the
merit and suitability of the candidates provided that the method and procedure followed is fair. Process of interaction adopted by the Selection
Committee to assess the merit and suitability of the candidates cannot be characterized as unfair or illegal. By having interaction with the
candidates, the Selection Committee would be in a better position to make a comparative evaluation of the knowledge, experience, expertise of
the candidates inter se and the Committee may be in a better position to find out the merit of each competing candidate. Further, the Selection
Committee is under no legal obligation to record reasons in support of its decision. Reference may be made to the decision of the Apex Court in
National Institute of Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Raman and others, . I, therefore, do not see any illegality, irrationality,
unreasonableness or arbitrariness in adopting the process of interaction for evaluating the merit of the candidates by the Selection Committee, and I
do not agree with the view expressed by Justice Kirmani.
Selection record reveals that th.... * Special Secretary to Government, Health and Medical Education Department, had prepared a format
containing the particulars of candidates who had applied for the post of Director, SKIMS, including the details of their qualifications,
professional/administrative experience/standing in the profession, details of their research and thesis papers, their publications, number of
conferences national and international attended, guiding research scholars etc. and was made available to the Selection Committee. Extract of the
relevant portions of the format in respect of the candidates included in the panel as well as that of the petitioner and Dr. Qadri are given below for
a comparative evaluation:
S. Name DOB Quali- Professional/Adm State Documents Remarks
No fication Experience/standing /Central enclosed
In profession Regis-.
tration
03 Dr.M.A. 20.07.4754 MBBS 1.30 yrs. Incl. as Med. 25 leaves Presently
Wani yrs 5 MS M.Ch Prof./HOD(Neuro) Council Including holding
months (Neuro) Deptt. Chairman Punjab. DD for the post of
DOB FICS Surgery (93 to 98). At Rs. 500 Principal
certificate (Neuro) present Prpl. JVC/Dean SKIMS
not Fac of Med. Medical
attached 2. Guide for M/S Prog. College
at SKIMS (since 84); (JVC),Sgr.
Attended 29 Int./ W.e.f.
National conferences/ 19.5.2004.
workshop/Trgs;
Guided for 30
students, published 61
sci./res. Papers.
05 Dr.Mohd 30.01.6143 MBBS MS 17 yrs. In Hosp. Adm. J & K 3 leaves Has no
Ashraf yrs 11 At SMHS Sgr (since 97 including admini-
Bhat months till date) as B. grade DD for strative
specialist at Rs. 500 experience.
SKIMS/GMC,Sgr.
06 Dr.Gh. 01.04.49 MBBS 1.26 yrs incl. as Registra- 13 leaves -
Jeelani (55 yrs 9 MDHA Prof./HOD/CMO(86- tion including
Qadiri months) 97) in Hosp. Adm. Certificate DDfor
(Since 86) Chief Mat. not Rs. 500
Mgt. (since 77) Prof furnished.
(since 89);
Guided 12
MDHA/PG Students;
Coordinated 14
seminars/conf.
attended 8 Tgr.
Courses, authaored 4
manuals as Hosp. Mgt.
Guided 9 MDHA thesis,
published 40 Sci./Res.
Papers.
07 Dr. Ab. 12.04.51 MBBS MD 1.17 yrs as Prof. HOD J&K 121 leaves Has no
Hamid (52 yrs 9 DM(Endo). (End) SKIMS (97 till including admini-
Zargar months) date); DD for strative
Published 131 Rs. 500 & 3 experience,
sci./Res. Papers; sets of
Attended 34 Conf. appli-
/Workshops at cations
Ntl/Inter. Level;
coordinated PG/Post-
doc. Courses/rural
diabetes detection
trgs.
Edited J. Med. Sci. &
Ind. J. of Endocrinology,
contributed chapters in
various books.
Dr. S. Jalal 13.09.49 MBBS, 1.22 yrs (83 till date) Regist- 18 leaves Holding
(55 yrs 3 MD,DM inc. Prof/HOD (7/99 to ration including the post of
months) (Cardio), 5/02).Dean(11/99 to Certificate DD for Director
Fello 12/01), Dir. (2/02 to not Rs. 500 SKIMS
(Cardio- 4/02), Dir/Dean (since attached. w.e.f.
logy/Elect. 8/03 tilld ate) also 25.8.2003.
Physio. Prof/HOD Cardiology
(6/92 till date);
Published 94 res./sci.
papers. Attended 8 Int.
conf./23 Ntl.Level Conf.
On going through the format, this Court felt it necessary to obtain an affidavit from Mrs. Sonali Kumar, the Member Secretary of the Selection
Committee, to explain the contents of the format and the manner in which the candidates were graded and, accordingly, this Court passed interim
order on April 21, 2008 directing her to file an affidavit as to the manner in which the candidates were graded to assess their merit and suitability.
In pursuance of the direction of the Court, she filed an affidavit on May 5, 2008. The relevant portion of the affidavit reads as follows:
It is submitted that Selection Committee comprising of high ranking officers of the State with Chief Secretary as Chairman had on the basis of their
knowledge/experience and expertise in the administration as also with the help of Dr. Naseer Ahmad Shah, who having vast experience in the field
of Medical Education and on considering the records of the candidates submitted before the Selection Committee along with the application forms
comprising of national/international publications, experience in administration/Medical Education as also after having interaction with the candidates,
the Selection Committee decided to categorize the candidates as 'very good' and 'good' on the basis of merit and suitability. Three candidates
emerged as 'very good' and on the decision of the Selection Committee, the deponent marked them as 'very good 1, 2 and 3' namely Dr. Abdul
Hamid Zarger, Dr. Section Jalal and Dr. M. A. Want on the format submitted by Special Secretary to Government, Health and Medical Education
Department before the Committee. One candidate Dr. Ghulam Jeelani Qadri on the decision of the Selection Committee emerged as 'good' and
was accordingly shown as 'good' by the deponent on the format submitted by Special Secretary to Government, Health and Medical Education
Department.
The format would clearly indicate that three persons categorized as very good had been found superior in merit and suitability to that of the
petitioner. For example, Dr. Abdul Hamid Zargar, shown at serial No. 07 of the format, was rated as the first candidate as very good. He is
MBBS/MD and DM (Endo) and has 17 years standing as Professor/HOD (Endo) SKIMS; has published 131 Scientific/Research papers; has
attended 34 conferences/workshops at national and international level and coordinated PG/Post-doctoral courses/rural diabetes detection
trainings; has edited Junior Med. Sci. & Ind. Journal of Endocrinology and contributed chapters in various books. Dr. Section Jalal, who figures at
serial No. 8 of the format, was the second candidate categorized as very good. He is MBBS, MD, DM(Cardiology), Fellow (Cardiology) and
Elect. Physio. He has 22 years of standing as Professor/HOD/Dean. He has remained as Director, SKIMS from February, 2002 to April, 2002
and then Director/Dean from August 2003 and also Prof/HOD Cardiology. He has published 94 research/scientific papers and attended 8
International and 23 national level conferences. Similarly, Dr. M. A. Wani, figuring at serial No. 03 of the format, was the third candidate
categorized as very good. He is MBBS, MS, M.Ch (Neurology) and FICS (Neurology). All these candidates have better educational qualification
and experience than the petitioner. Petitioner is only MBBS and MS with no details of publications and other credentials. Selection Committee had
the occasion to assess the quality of research papers/publications etc. submitted by the participants so as to assess their knowledge. It is after
assessing the quality of their research papers and their experience in the field of medical education or hospital administration etc. the Committee in
its wisdom categorized three candidates as very good and one candidate as good. The fact that the Selection Committee had adopted a process of
categorization would indicate application of mind. Three persons had been categorized as 'very good' and one as 'good'. Petitioner was not
included in either of those categories, meaning thereby he was not fit enough to be included even in the category of 'good' and hence found not
suitable for the post of Director. The question is whether such a person, after having undergone the selection process and having failed to make the
grade, could challenge not only the selection process but also the subsequent orders issued based on the selection list/panel, and whether those
orders would vitiate the selection process warranting a fresh selection? Shri Justice Y. P. Nagrotra is right in holding that the Selection Committee
was properly constituted and the process followed by the Selection Committee, i.e., 'interaction', was not illegal or arbitrary, but I disagree with
him on various other points which, in my view, necessitates a fresh selection.
Learned Judges have also elaborately considered the question as to who is the appointing authority for the post of Director so far as the
present selection and appointment is concerned, and on whom the power of relaxation of age has been conferred. Both sides elaborately
addressed their respective view points and, hence, I may examine those issues as well.
Recruitment Rules, 1998 confer power of appointment on the Governing Body as well as the State Government. The word 'Government' has
been defined u/s 2(a) as the Government of Jammu and Kashmir and the word 'Governing Body' has been defined u/s 2(c) as the body constituted
by the Government. Rule 5 deals with qualification and method of recruitment which refers to Schedule II. Clause (5) of Note (II) of Schedule II
says that the appointing authority for the post of Director shall be the Governing Body or State Government. The word 'selection' used therein
obviously means appointment. Rules, therefore, have conferred power of appointment not only on the Government but also on the Governing
Body. This is made clear by the State Government in the Advertisement Notice dated December 6, 2004 inviting applications for appointment to
the post of Director. I agree with Shri Justice Nargotra that Rules permit both the Governing Body as well as the Government to effect
appointment, but I disagree with Justice Nargotra that the Governing Body is acting as a delegatee of the Government. Rule making authority has
conferred powers on the State Government as well as on the Governing Body for selection/appointment of the Director and further the
Government vide their notification had announced that for selection and appointment of Director, the appointing authority would be the Governing
Body. Rule 8, in my view, has no application in the instant case and Shri Justice Nargotra was in error in relying on Rule 8. I agree with Shri Justice
Kirmani that in the selection in question, the appointing authority is the Governing Body and not the State Government, since Rules confer power
on the State Government as well as the Governing Body to fill up the post of Director.
Petitioner has also submitted that the Selection Committee had committed an error in entertaining applications from candidates having more
than 50 years of age. Further*, it was also stated that as per rules also the Governing Body alone could relax the age limit of candidates of
outstanding merit and no such relaxation was granted to any of the three candidates included in the panel; hence, the petitioner, who was below 50
years age should have been considered for appointment rather than going for a fresh selection. Contention, in my view, cannot be fully accepted.
Rule 5 of the Recruitment Rules, 1998 deals with qualification and method of appointment. Schedule II appended to the Rules prescribes the
qualification. Note (II) 1. below Schedule II says age limit for appointment shall be 50 years relaxable by the Governing Body in the case of
candidates of outstanding merit on the recommendation of the Selection Committee. Note (II) 5 states that for the post of Director, selection shall
be made by the Governing Body or State Government. It may be noted that age limit prescribed is not an eligibility criterion for applying and
undergoing the selection process, but only a criterion governing the appointment. It is always open to the Selection Committee to select candidates
who are above the age of 50 years, but it is for the appointing authority to relax the age limit of candidates, having outstanding merit, on the
recommendation of the Selection Committee. Candidates categorized as 'very good' were included in the panel and it is for the appointing authority
to relax the age limit of a candidate who is having outstanding merit on the recommendation of the Selection Committee. Appointing authority is ill
equipped to find out who is of outstanding merit entitled to relaxation of age. Petitioner, in any view, was never rated and, hence, cannot question
the relaxation or deemed relaxation of age, if any, effected.
Selection Committee was asked to select a suitable candidate, which is evident from the Government orders dated September 1, 2003 and
February 4, 2005. Advertisement notice dated December 6, 2004 clearly states that age limit prescribed is 50 years, but relaxable by the
Governing Body in the case of candidate having outstanding merit. Note (II) 1 to Schedule II of the Recruitment Rules, 1998 specifically states that
age at the time of appointment to the above posts which take in the post of Director also, shall be 50 years relaxable by the Governing Body in the
case of candidates of outstanding merit on recommendation of the Apical Selection Committee. Further, Clause 5 of Note (II) under Schedule II
says that the appointing authority for the post of Director, for which selection is made, is either the Governing Body or the State Government, and
for all other posts only the Chairman, Governing Body. Above facts would show that power is conferred only on the Governing Body to relax the
age limit in case the candidate is of outstanding merit, on the recommendation of the Selection Committee.
Selection Committee after interacting with the candidates proposed a panel consisting of 3 candidates. Member Secretary of the Committee
placed the panel on CF side, stating that it is in the order of merit and suitability. No material has been brought to my knowledge that the
Governing Body has ever relaxed the age limit of the 3rd respondent on the recommendation of the Selection Committee that he is a candidate of
outstanding merit deserving age relaxation. Nor such a decision was taken by the State Government as well with the recommendation of the
Selection Committee. For that matter, no such recommendation has been seen in respect of any of the candidates included in the panel, including
the 3rd respondent. Assuming that all the candidates who have been included in the panel are candidates of outstanding merit, what was the yard
stick followed in picking and choosing the second person in the panel is not discernable from the files. Further, it may be noted that the Member
Secretary in the affidavit filed before this Court and in the note files has stated that the panel is prepared in the order of merit and suitability. If that
be so, Dr. Abdul Hamid Zargar shown as No. l in the category of 'very good' in the format as well as in the panel should have been rated superior
to the 3rd respondent since the panel itself was prepared in the order of merit and suitability. Even then there is nothing to show that the Selection
Committee has ever rated Dr. Zargar as outstanding recommending for relaxation of age and the Governing Body has ever relaxed his age as well.
Further, the Selection Committee was specifically directed to select a suitable candidate, but instead of selecting a suitable candidate as such, they
submitted a panel after categorizing them as 'very good' 1, 2, 3 in the order of merit and suitability. In the format against the name of Dr. Abdul
Hamid Zargar there is a noting as 1 as well as 'very good' and 3rd respondent, Dr. Jalal, as '2' and Dr. Wani as '3'. No records have been
produced before me to show that the panel prepared by the Selection Committee was ever placed before the Governing Body. Further, I fail to
see what is the competence of the Chairman to pick and choose the 2nd candidate from the panel without placing it before the Governing Body?
Rule 2(c) defines the Governing Body as body constituted by the Government of Jammu and Kashmir. The Governing Body was in place
when the selection process was on and appointment could be effected only by the Governing Body constituted by the Government vide order
dated August 25, 2003 as per rules. Government had also passed an order No. 173-GAD dated February 10, 2004 stating that the decisions
taken by the Governing Body of the Institute approved by the Chairman of the Governing Body (Chief Minister) would not be required to be
submitted to the Cabinet for ratification. Note (II), Clause 5 of the Schedule says except the post of Director, the appointing authority shall be the
Chairman of the Governing Body on the recommendation of the Selection Committee and the Governing Body be informed accordingly. But, in the
case of Director there is no question of passing any such appointment order by the Chairman but only by the Governing Body. Government in the
advertisement notice in the present case has clearly indicated that the appointing authority will be the Governing Body itself which is permissible
under rules. Hence, the action taken by the Chairman, not the Governing Body, to appoint 3rd respondent is not in order and to that extent I
disagree with the views expressed by Shri Justice Nargotra.
For the above mentioned reasons, I record the following findings:
(1) The Government Order No. 802-GAD of 2005 dated July 11, 2005 appointing the 3rd respondent as Director of the Institute is illegal and
without following the procedure laid down in the Recruitment Rules and against the terms of the Notification dated December 6, 2004. To that
extent I disagree with Shri Justice Y.P. Nargotra;
(2) Recruitment Rules, 1998 empower both the State Government as well as the Governing Body to make appointment to the post of Director.
Government Notification dated December 6, 2004, specifically empowers the Governing Body to effect appointment to the post of Director which
is in consonance with the Rules. Hence the Government or the Chairman of the Governing Body was not justified in usurping powers conferred on
the Governing Body by the Rules and the Advertisement Notice dated December 6, 2004;
(3) I find no illegality in the constitution, composition of the Selection Committee and the Selection Committee committed no error in following the
method of 'interaction' for assessing the merit and suitability of the c andidates. To that extent I disagree with Shri Justice Bashir Ahmad Kirmani;
(4) Selection Committee has not recommended any particular candidate as 'outstanding' for the purpose of relaxation of age limit of 50 years. Note
(II) 1. of Schedule II of the Recruitment Rules, 1998 says that age limit can be relaxed only by the Governing Body with the recommendation of
the Selection Committee. No recommendation was made by the Selection Committee and no order of age relaxation was issued by the Governing
Body and, hence, the appointment of the 3rd respondent without following the above statutory rule is illegal;
(5) Governing Body cannot be treated as a delegatee of the Government for appointment of Director in consonance with Notification dated
December 6, 2004; Recruitment Rules empower the Governing Body also to effect appointment to the post of Director and it is that procedure
which should have been followed in the present selection;
(6) Petitioner is right in contending that since no candidate is classified as outstanding by the Selection Committee and no order of relaxation is
made by the Governing Body based on that recommendation, the Governing Body or the State Government, as the case may be, has to go for a
fresh selection;
(7) No order or direction for appointment of the petitioner can be issued, since petitioner was not graded by the Selection Committee. Prayer by
the petitioner to appoint him as Director is, therefore, rejected;
(8) State Government is free to maintain its order dated May 6, 2007 placing Dr. Abdul Hamid Zargar in charge of the Director till proper
selection is made to the post of Director by the Governing Body or the State Government, as the case;
(9) Selection Committee should have maintained proper performance appraisal records so that action would have been more transparent and they
would have gained more respect, recognition and credibility in the eye of the general public and the candidates.
For the above mentioned reasons, I agree with Shri Justice Bashir Ahmad Kirmani that the appeals deserve dismissal and are, accordingly
dismissed though for different reasons stated hereinbefore. Government order dated May 6, 2007 will continue till a proper selection and
appointment is made by the State Government or the Governing Body, as the case may be, to the post of Director, SKIMS.