Reyaz Ahmad vs State of Jammu & Kashmir

This is an appeal filed by one Dr. Reyaz Ahmad challenging the judgment and order passed by the learned Single Judge. The appellant has been

holding the post of Assistant Surgeon in the department of health on substantive basis. He was deputed vide order dated 20.10.2012 to look after

the duties of Deputy Medical Superintendent Super Specialty Hospital, Jammu in his own pay scale. He was also given extension on 22.05.2013

as incharge Deputy Medical Superintendent till further orders or till the post is filled up through PSC/DPC whichever was earlier. It is also pertinent

to noticed that the appellant was allowed to continue as General Manager, J & K Health and 2 Medical Supplies Corporation. The aforesaid post

was created pursuant to Cabinet decision dated 23.06.2003.

However, vide order dated 08.01.2014 the working of the appellant as Deputy Medical Superintendent, Super Specialty Hospital, Jammu was

transferred and he was directed to report to the Principal, Indira Gandhi Government Dental College, Jammu. The aforesaid order was subject

matter of challenge before the Writ Court and the same has been upheld.

The order dated 08.01.2014 was challenged before the learned Writ Court principally on the ground of malafide labelled against the Minister

Incharge of Health and Medical Education Department. The learned Writ Court found as a fact that the appellant was not qualified to hold the post

of Deputy Medical Superintendent as he lacked basic qualification and the qualification obtained by him from Royal College of Physicians and

Surgeons of the United States of America was not a qualification equivalent to post graduation degree in Surgery or Gynaecology or Medicine or

Hospital Administration, as required by J & K Medical Education(Gazetted) Service Recruitment Rules, 1979 (for brevity, Rules of 1979). The

learned Writ Court after hearing the arguments, rejected the allegations of malafide which is 3 evident from a perusal of paras 17, 18 and 19, the

same are set out below:-

It is true that the allegations of malafides leveled against the Minister I/C have remain unrebutted. During the course of arguments, it was

suggested by the learned counsel for the petitioner that the entire PPP mode was resorted to with a view to confer benefit to respondent No. 6.

However, this may not be the case at all. The decision to adopt a particular policy in regard to supply of equipments etc. in PPP mode would be in

the nature of policy decision, which, as was suggested by the learned counsel for the respondent, was taken in a meeting Chaired by the Hon'ble

Chief Minister. Pursuant to that decision, tenders were invited according to the petitioner himself to which only one firm responded i.e. respondent

No. 6, namely, M/s. KZRSNA Diagnostic Pvt. Ltd. Pune India. Had it been the case of favouritism in favour of respondent No. 6, then the

respondents would not have resorted to floating tenders or invited expression of interest from reputed firms. It is a different thing that only

respondent No. 6 responded, but that by itself would not be sufficient for the petitioner to carve out a ground of malafides on that basis alone.

Furthermore, the petitioner in the open court made a statement, upon a query by the Court, that he himself had signed the document i.e.

expression of interest along with the Officiating Administrator, Associated Hospitals Jammu, I/C Medical Store, MCH, Jammu and Medical

Superintendent, MCH Jammu. It was, however, suggested that it was done by the petitioner under undue coercion from the Minister I/C, who had

threatened to ruin his career. The allegation that the petitioner was under undue coercion to sign the document i.e. expression of interest, without

expressing any detail as to what was the coercion and in what manner it was exercised, cannot be accepted at all.

This is a typical case of running with the hare and hunting with the hounds. If the petitioner really was opposed to the idea of PPP mode being

resorted to in the hospitals, he ought not to have signed the document i.e., expression of interest which was done on January, 2014. Allegations of

such malafides even when they remain unrebutted, do not carry that conviction which could persuade this Court to quash the transfer order on that

ground alone.

It is well settled that allegations of malafide are labelled with ease but are rarely proved.

On the issue of eligibility, learned Writ Court concluded that the appellant could not have been adjusted even as incharge arrangement against

the post of Deputy Medical Superintendent as he lacked requisite qualification prescribed by the Rules. Even clarification to that effect was

obtained from Medical Council of India, which opined that the qualification possessed by the appellant did not answer the requirement of Rules of

1979. However, the learned Writ Court directed that the process of selection for appointing Deputy Medical Superintendent was in progress and

the candidate was to be appointed in accordance with the rules. It was further clarified that the official respondents were to allow only a duly

qualified person to hold the post of Deputy Medical Superintendent/Medical Superintendent according to rules.

We have heard learned counsel for the parties at length and are of the view that the opinion expressed by the learned Writ Court does not suffer

from any legal infirmity warranting interference of this Court. It is conceded as a fact that the appellant is substantive holder of the post of Assistant

Surgeon in the Health Department and does not possess requisite qualification for appointment as Deputy 5 Medical Superintendent or Medical

Superintendent. That being the factual background the appellant cannot claim, as of right to continue working on the post of Deputy Medical

Superintendent/Medical Superintendent. The allegations of malafide have remained unsubstantiated and the impugned order dated 08.01.2014 did

not suffer from any extraneous consideration.

The appeal is devoid of merit and does not warrant admission and is, accordingly, dismissed.