R.K.Raina, Dr.Principal, Govt.Medical College vs State of Jammu and Kashmir

1 .Through the medium or this petition, the petitioner has prayed that writ of certiorari may be issued for quashing the Government order No.

295HME of 1998 dated 741998. In pursuance to the said order, the petitioner has been adjusted from the post of principal, Government Medical

College, Jammu as Head of the Department of pharmacology, Government Medical College, Jammu. Simultaneously, the order had upgraded the

post of professor and Head of the Department, pharmacology to the level of principal and the petitioner was allowed to hold the said post in his

personal capacity till his superannuation. Dr. H.L. Goswami (respondent No.3) professor and Head of the Department, Surgery, Government

Medical College Jammu was adjusted as Principal, Government Medical College Jammu vice the petitioner.

2.The impugned order has been challenged on the grounds that the petitioner stands lowered in his status as while working Head of the

Department of Pharmacology, Government Medical College, Jammu he has to work under the administrative control of respondent

No. 3 who is junior in service to him. Malafide intentions have also been attributed to respondents No. 1 and 2 as according to him, he had not

obliged them in giving admission to additional 20 candidates than the duly sanctioned capacity or 100 candidates in the MBBS course for the

academic year 199899. The competent authority which could pass the impugned order was the cabinet of Ministers but it has been issued by the

Under Secretary to the Government. The order as such, is void as initio.

3.Respondents No. land 2 in the objections have stated that the order in question was passed by the State Cabinet and is an order issued by the

Government of Jammu and Kashmir. In the cabinet, the item covering the order in question was referred. Under subrule (3) or Rule 19 as

nonagenda item which was permissible under Government Business Rules. Malafides are denied and annexure R2 is placed on the record, which is

a letter addressed by the petitioner to respondent No.2 regarding the admission of 120 MBBS students in the Government Medical College,

Jammu wherein the candidly had expressed no difficulty in giving admission to 120 candidates in the MBBS Course. According to him, deficiencies

pointed out by the Medical Council of India had been rectified except the establishment of infrastructure which would require 1 1/2 years to 3

years. The allegation of lowering the petitioner in status has been denied as according to Cabinet order (Annexure Rl) his pay scale and status as

Principal, Government Medical College had been retained. He has been administratively answerable not to respondent No. 3 but directly to

respondent No.2

4.Heard the arguments.

The counsel for the petitioner has contended that the impugned order has the effect of lowering the status of the petitioner, because the post of the

cadre of principal, Medical College is of higher pedestal than the post of a Head of the Department of Pharmacology, discipline in the same

institution. To buttress his contention to learned counsel has cited the case of Dr. S.K. Kakkar V/S All India Institute of Medical Sciences (1996

(10) SCC 734). In rebuttal, the counsel appearing for the respondents have contended that it is a case of pure transfer from the post of a cadre to

the post which has been upgraded of equal cadre and on facts it is not a case where it can be said that the petitioner has been lowered in rank.

Rule5 of the J and K medical Education (G) Service Recruitment Rules 1979 (hereinafter to be referred to as 'Medical Rules') has been referred

which deals with recruitment to the Gazetted service. It is provided therein that the appointment to the service shall be made (a) by direct

recruitment; or (b) by promotion by selection in the manner as indicated against each post in ScheduleIll. Schedule II or these rules provide the

minimum qualification and minimum teaching/research experience. For the post of Principal/Dean the same qualification as prescribed for a

Professor/Head of the teaching department is prescribed. A Minimum of 10 years teaching experience as Professor /Associate professor in a

Medical College out of which at least five years should be as a Professor in a department has been prescribed. ScheduleIll under Rule 5B

(promotion by selection) gives the method of recruitment by promotion from scheduleII. In the instant case the petitioner as well as respondent

No.3 stand selected by promotion. In other words, their selection was by adopting the mode of recruitment as prescribed in subclause (b) or

Rule5, which does not fix any tenure for holding such a post. Annexure Rl is the decision of the Cabinet bearing No.65/5 dated 3031998 which is

a nonagenda item and states that the Cabinet had approved the appointment of respondent No.3 (Professor and Head of the Department of

Surgery as Principal, Medical College, Jammu in place of Dr. R.K.Raina (petitioner). The latter was posted as head of the Department of

Pharmacology retaining the pay scale and status of Principal, Medical College, Jammu. The order is under the signatures of the Secretary to the

Cabinet and was sent to the General Department for record. A copy of the order was sent to the Secretary to Govt. Health and Medical

Education Department for further action. This order is dated 3031998and thereafter the impugned order was issued by respondent No.2 on

741998 (Annexure P7). The Cabinet order in question deals with the appointment of respondent No.3 by promotion method to the post of

Principal, Govt. Medical College, Jammu and transfer of the petitioner as Head of the Department of Pharmacology retaining his pay scale and

status of Principal, Govt. Medical College, Jammu. The case of the petitioner does not fall within the category of reversion to his previous post but

it is a case of simple transfer wherein his status and pay have been protected. In other words, the petitioner is not being reverted to that post from

where he was selected as the Principal of the Govt. Medical College, Jammu. These are the distinguishable facts of the present case from the facts

of Dr. S.K.Kakkar's case (supra) and hence the law laid down by the Apex court in that case has no bearing to the facts of the present case. The

counsel appearing for the respondent cited the cases of Union of India and others V/S S.L.Abbas (AIR 1993 SC 2444) and Mohd Sikander Bhat

V/S State of J and K (1989 KLJ 186). In S.L.Abbas's case (supra) it has been held that order of transfer made without following the guidelines

cannot be interfered with by the court unless it is vitiated by malafides or is made in violation of statutory provision. In the case of Mohd Sikander

Bhat (supra) the Division Bench of this court has held that it is the prerogative of the State Government to post and transfer its employees and

posting and transfer of employee would not relate to the condition of service of an employee. Only those orders are justiciable which are framed in

relaxation to governance of conditions of service and which are inconsistent with rules already framed. The facts constituting malafides must have

direct nexus with ill will. The plea of malafide cannot be said to be established merely because petitioner's alleged activities has taken place prior to

issuance of the order.

5.The transfer in question in the instant case does not violate any statutory provision or is inconsistent with rules governing the conditions or service.

As already held it has not lowered him in status as his cadre stands protected. The allegation of malafide is not borne out from any evidence. The

record reveals that the petitioner in his letter No. JMC/ FAC/2524 dated 1721998 (Annexure R2) addressed to respondent No.2 herein had

stated that all the deficiencies pointed out in the report (regarding the admission of additional number of 20 students in the M.B.B.S. Course)

would be rectified during the year 19981999 subject to the timely release of funds during the next financial year. He had even pointed out that

these defects were not likely to hamper the additional quota of 20 students in any manner and suggested that by the time the batch of students to

be admitted in March 1999 would come to these phases, the said deficiencies would have been removed. In the backdrop of such suggestions and

admissions how it could be in the mouth or the petitioner to say that he was not succumbing to the pressure of respondents No. 1 and 2 in giving

admission to 20 additional students and for his upright that straight forward puritan conduct he stands victimised on the basis of ill will and

malafides. Rather the petitioner had guided and helped respondents No. 1 and 2 in accommodating the additional quota of 20 students in the

M.B.B.S. Course. On facts it is found that it is a case where port is calling the cattle black, it is an accusation leveled for the sake of own

convenience and not based on any material to be taken into account. Equally, the allegation that the order in question was passed by and

imcompetent person is found baseless as it is an order of the Cabinet (Annexure Rl) issued under the signatures of respondent No.2

(CommissionercumSecretary to Govt. Health and Medical Education Department).

Taking a global view of all the facts and circumstances of the case, it is found that the allegations made in the petition could not be substantated

by the petitioner and as such, the petition is meritless and consequently dismissed.

No order as to costs.