Saleem-ur-Rehman (Dr.) vs State and Others

Hasnain Massodi, J.

Heard and considered.

The writ petition is admitted to hearing and on consensus of learned Counsel for parties taken up for final disposal.

On superannuation of Dr. Jasbir Singh, Director Health Services, Jammu on 30th September, 2010 and Dr. Kulbushan Pandotra, Director

Family Welfare oh 31st October, 2010, the official Respondents as a stop-gap/ad hoc, arrangement have given the charge of Director Health

Services, Jammu and Director Family Welfare to the Respondents 4 and 3 respectively. In case of Respondent No. 4, no formal order asking the

Respondent No. 4 to hold the charge of Director Health Services, Jammu, appears to have been passed. The direction was conveyed by

Respondent No. 2 telephonically as is evident from communication No. ES-3/2066 dated 30th September, 2010 addressed by Dr. Jasbir Singh,

retiring Director Health Services, Jammu to the Respondent No. 2. However, as regards Respondent No. 3, a formal Government Order bearing

No. 555-HME of 2010 dated 29th October, 2010 came to be issued, giving additional charge of Director, Family Welfare to the Respondents, in

addition to his own duties as Director, Chitranjan Mobile Hospital, Srinagar.

The Petitioner, a member of Health and Family Welfare (Gazetted) Service, at present posted as Incharge Deputy Director, Schemes Kashmir

is aggrieved of the aforesaid ad hoc/stop-gap arrangement for the following reasons;

(i) That as per Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006 (hereinafter Recruitment Rules, 2006)

governing the field, neither Respondent No. 3 nor Respondent No. 4 is eligible for appointment as Director Health Services/Family Welfare

inasmuch as the Respondent No. 3 is not a member of the Jammu and Kashmir Health and Family Welfare (Gazetted) Service nor borne on the

cadre of Health and Family Welfare Department and the Respondent No. 4 though a member of Jammu and Kashmir, Health and Family Welfare

(Gazetted) Service and borne on the cadre of Health and Family Welfare Department does not fulfill the eligibility criteria, prescribed under rules;

(ii) That the Petitioner appointed as Assistant Director, Family Welfare vide Government Order No. 355-HME of 2003 dated 08-04-2003

regularized against the said post vide Government Order No. 165-HME of 2009 dated 02-04-2009 and posted as Incharge Deputy Director,

Schemes Kashmir vide Government Order No. 409-HME of 2010 has more than seven years of administrative experience to his credit and is thus

eligible to be considered against the post of the Director in terms of Jammu and Kashmir Health and Family Welfare (Gazetted) Service

Recruitment Rules, 2006.

The writ petition is opposed on the grounds that the Petitioner on his own showing being not eligible to be appointed as Director Health

Services/Family Welfare in terms of Recruitment Rules, 2006, lacks locus-standii to maintain the writ petition. It is insisted that the Petitioner having

no right to be considered for appointment as Director Health Services/Family Welfare, can least complain of infringement of any of his legal,

constitutional or fundamental rights. The order/direction impugned in the writ petition, it is pleaded, being of pure administrative character only to

ensure smooth functioning of two important offices in the Directorate of Health Service and Family Welfare pending filling up of the posts on

substantive basis, is not open to challenge. It is pleaded that the Respondents 3 and 4 as senior most officers in the Department having maximum

length of service as also the requisite qualification are well suited to be given the additional charge of Director Health Services, Jammu/Director

Family Welfare in addition to their duties.

The Respondent No. 3 in addition to challenge thrown to locus of the Petitioner to file the writ petition, insists that the post of Director Health

Services/Family Welfare, notwithstanding Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006 has been

since 1997 manned by the members of Medical Education (Gazetted) Service borne on the cadre of Medical Education Department; that as the

Respondent No. 3 is a member of Medical Education (Gazetted) Service, the Respondents having regard to the present position held by the

Respondent No. 3, were right in giving additional charge of Director Family Welfare to the Respondent No. 3. Respondent No. 3 claims to have

22 years administrative services to his credit as also Post-Graduate qualification from All India Institute of Medical Sciences, New Delhi and thus

amongst the available officers most suitable to hold charge of Director Family Welfare. The stop-gap arrangement made vide Government Order

No. 555-HME of 2010 dated 29th October, 2010, it is averred, is unquestionable on law as well as facts.

The Respondent No. 4 in his reply, claims to have 33 years of service to his credit as member of Health and Family Welfare (Gazetted) Service

and far senior to the Petitioner. The Respondent, on the strength of his service profile detailed in the reply, insists to have a better right to be

appointed as director Health Services/Family Welfare and thus to have been rightly given the charge of Director Health Services, Jammu, in

addition to his own duty. The Respondent No. 4 while admitting that as on date, none of the members of Health and Family Welfare (Gazetted)

Services was eligible to be substantively appointed to the post of Director Health Services insists that the arrangement ordered vide telephonic

message reflected in communication No. ES-3/2066 dated 30th September, 2010, is only an interim measure without any rights following

therefrom.

The Health Services in the State comprise of two distinct Services namely J&K Health and Family Welfare (Gazetted) Service and J&K

Medical Education (Gazetted) Service. The method of recruitment to various posts in the J&K Health and Family Welfare (Gazetted) Service is

regulated by J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006 whereas mode and manner of recruitment and allied

matters in case of J&K Medical Education (Gazetted) Service are governed by J&K Medical Education (Gazetted) Service Recruitment Rules

1979. The posts of Director, Health Services and Director, Family Welfare are borne on the cadre of J&K Health and family Welfare (Gazetted)

Service and to find out the mode of recruitment of said posts, one has to fall back upon J&K Health and Family Welfare (Gazetted) Service

Recruitment Rules 2006. The Recruitment Rules of 2006 prescribe the method of recruitment for the posts of Director, Health Services/Family

Welfare as under:

ClassCategoryDesignation of Grade Minimum Qualification Method

the Post nt

I II III IV V VI

Director Health 14300-MBBS or possession of

Services/Family 18300 recognized Graduate

Welfare Medical qualification

included in the first or

second schedule or

Part-II of the 3rd

Schedule (other than

licentiate qualification)

to the Indian Medical

Council Act, 1965.

Holders of educational

qualification included in

Part-II of the 3rd

Schedule should fulfill

the conditions stipulated

in the sub-section (3) of

Section (13) of the

Indian Medical Council

Act. Possession of a

post graduate degree in

any subject mentioned

in Part ""A"" of the

annexure to this

schedule with seven

(07) years

administrative

experience., By

Selection from Class II

Category ""A""7""B

II ""A"" Dy. Director 12000-

Health Services 16500

B"" A-Grade 12000-

Specialist in 16500

Medicine

It follows that in order to be eligible for appointment as Director Health Services/Family Welfare, a member of Health and Family Welfare

(Gazetted) Service must be either holding the position of Deputy Director Health Services or A-Grade Specialist in the discipline shown in the

schedule to the Recruitment Rules of 2006, having the minimum qualification shown in Column-V of the schedule and must have also seven years

of administrative experience. It is not necessary to have requisite administrative experience of the prescribed time period in a particular position. It

would be suffice, if an aspirant for the post of Director Health Services/Family Welfare has overall administrative experience of seven years.

Rule-5(1) of the Recruitment Rules of 2006 creates a bar against appointment or promotion of any person to any post in J&K Health and

Family Welfare (Gazetted) Service except in accordance with the Rules. It reads:

Qualification and Method of Recruitments

(1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he/she possesses the

qualifications as laid down in the Schedule-II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in

force.

It is no more res integra that compliance with eligibility criteria prescribed under rules governing recruitment etc. to the post in a particular

service is not to be restricted only to substantive promotions. The authority competent to make the recruitment/promotion is expected, nay,

required to follow the prescribed eligibility criteria under rules even in case of stop-gap/ad hoc arrangements. The law on the subject has been

succinctly laid down in Nazir Ahmad Wani v. State and Ors. 2004(2) S.L.J. 461: 2005 (1) JKJ HC 71, as under;

...Thus it is obligatory upon the competent authority to ensure that the person upon whom assignment of the charge of a higher post is

contemplated does fulfill the requirement of the post. It has to be so because assignment has the effect of giving charge of a public office, therefore,

the pre-requisite conditions of eligibility laid by the rules have to be fulfilled. The proposition of law in my opinion is countenanced by clause of

equal opportunity enshrined in Article 16 of the Constitution. Regard being had to the constitutional mandate, adjustment made by pick and choose

against any office under the State denying the right of consideration to the eligible persons even if it is a stop gap arrangement amounts to violation

of Article 16 of the Constitution.

In the case on hand, it is admitted position of the Respondents that neither Respondent No. 3 nor Respondent No. 4 fulfilled the eligibility

criteria for the post of Director Health Services/Family Welfare prescribed under the Recruitment Rules of 2006. The Respondent No. 3,

admittedly, is not a member of Health and Family Welfare (Gazetted) Service. The Respondent No. 3 in the circumstances, notwithstanding his

qualification, length of service and experience could not be considered at all for the post of Director Health Services/Family Welfare because of his

being not a member of the service to which the post of Director Health Services/Family Welfare belongs. The mere fact that Respondents 1 and 2

have during last one and half decade brought officers from Medical Education (Gazetted) Service, in the name of stop-gap arrangement to man the

post of Director Health Services/Family Welfare and thereafter, managed to continue with the stop-gap arrangement in violation of rules does not

clothe Respondent No. 3 with any right to be appointed in stop-gap/ad hoc arrangement or otherwise, as Director Health Services/Family Welfare

nor impart any credibility to the practice which is on the face of it illegal and against rules. The Respondents for any stop-gap/ad hoc arrangement,

if dictated by imperatives of smooth administration and public interest, are to look at the cadre i.e. Health and Family Welfare (Gazetted) Service

cadre for such arrangement and not travel beyond the service/cadre. Respondent No. 3, thus, could not be considered for assignment of charge of

Director Family Welfare in addition to his own duties. The argument that as the Respondent No. 3 on the date, he was given additional charge of

Director Family Welfare was holding the post of Director, Chitranjan Mobile Hospital, Srinagar, carrying same pay-scale as-that of Deputy

Director, Health Services/Family Welfare and thus, was rightly chosen for said additional charge, is specious and does not come to rescue of the

Respondents. It may be stated, at the cost of repetition, that Respondent No. 3 borne on Medical Education (Gazetted) Service may have right to

hold the charge of a post higher to his present position in Medical Education (Gazetted) Service, but is not eligible for consideration against the

post borne on the cadre to which the Respondent No. 3 does not belong. The Respondent No. 4 on his own showing, does not satisfy the

eligibility criteria laid down in Recruitment Rules of 2006, for the post of Director Health Services/Family Welfare (Gazetted) Service. Though a

post-graduate in E.N.T., as per the record available on the file, left un-controverted, Respondent No. 4 substantively holds the post of Assistant

Surgeon and figures at serial No. 29 in the seniority list of Assistant Surgeons.

The Respondent No. 4, while holding the post of Malariologist, claimed to be equivalent in pay-scale to the post of Deputy Director Health

Services/Family Welfare, does not belong to the class forming feeding source for the post of Director. So viewed, neither of the two officers were

eligible for consideration even as stop-gap/ad hoc arrangement for the post of Director Health Services/Family Welfare. The impugned

Government Order No. 555-HME of 2010 dated 29-10-2010 and the direction of Respondent No. 2 to Dr. Jasbir Singh directing him to hand

over charge of the post of Director Health Services to Respondent No. 4 as reflected in communication No. ES-3/2066 dated 30-09-2010,

against the aforesaid backdrop, run contrary to Recruitment Rules of 2006 and thus, cannot stand legal scrutiny. The Respondents 3 and 4

because of their long experience may be suitable to hold the charge of Director Health Services/Director Family Welfare but that by itself does not

make them eligible for the post when the Respondents are either not members of the service on which the posts sought to be filled up are borne or

do not satisfy the eligibility criteria prescribed under the Recruitment Rules of 2006. Suitability, it has been held, cannot be a substitute for eligibility

and has to give way to the eligibility.

The argument that the stop-gap/ad hoc arrangement, ordered vide Government Order No. 555-HME of 2010 dated 29-10-2010 impugned

in the writ petition as also the direction issued by the Respondent No. 2 must survive ""hard look"" on the ground of ""Doctrine of necessity"" does not

sound convincing and is destined to fail. ""Doctrine of necessity"" cannot be used as camouflage or cover up to accomplish something not permissible

under rules. It has been held in Mahmooda Nazki v. State of J&K 2006 (1) S.L.J. 212 : 2006 (1) S.L.J. 212 that Doctrine of necessity"" cannot be

invoked by the State to justify an action, which is in flagrant violation of the recruitment (rules) and where the candidate lacks the basic

qualifications provided by the rules. In the circumstances, mere fact that the official Respondents could not find any officer in the cadre of J&K

Health and Family Welfare (Gazetted) Service fulfilling the eligibility criteria under the Recruitment Rules of 2006, for the post of Director, does not

justify their traveling beyond the Service or picking up an officer at 29th place in the Order of seniority holding substantive status of Assistant

Surgeon.

The argument that the Petitioner lacks locus-standii to file the petition inasmuch as the Petitioner himself does not satisfy the eligibility criteria for

the post of Director prescribed under the Recruitment Rules of 2006 is untenable. It is pertinent to point-out that the Respondent No. 2

immediately before Dr. Jasbir Singh and Dr. Kulbushan Pandotra were to attain superannuation, initiated a memo/note for submission to

Establish-cum-Selection Committee"". The note was put up with the approval of Minister of Health before the Committee for consideration and

recommendation, for the posts likely to fall vacant on the superannuation of the aforesaid officers. The memo/note which has gone uncontroverted

and is not disowned by the Respondent No. 2, author of the memo/""note"" tabulates the service particulars of officers borne on Health and Family

Welfare (Gazetted) Service and holding the post of Incharge Deputy Director. The Petitioner is shown to have the substantive status of Assistant

Director as against substantive status of Assistant Surgeon held by the Respondent No. 4, to have a post-graduate degree in Public Health to is

credit and to have administrative experience of seven years and five months. The Respondent No. 2 after discussing different aspects of the matter

appears to have zeroed in on Petitioner No. 1 and Respondent No. 4 and reproduced their AP Rs. The Petitioner is shown to have been graded

as out-standing all through for the period of 2005-2010, whereas Respondent No. 4 has been graded 'good' for the year 2005-2006, 2007-2008,

2009-2010. The Petitioner is posted as Incharge Deputy Director, Schemes, Kashmir and vide Order dated 24th December, 2009 in SWP No.

1983/2009, the Respondents have been directed to consider promotion of the Petitioner to the post of Deputy Director.

The contention that the Petitioner though appointed as Assistant Director, Family Welfare in his own pay and grade vide Government Order No.

355-HME of 2003 dated 08-04-2003, was regularized against the post only on 02-04-2009 vide Government Order No. 165-HME of 2009

and thus, is yet to complete the period of probation is devoid of any merit, for the reason that the Petitioner was already a member of Health and

Family welfare (Gazetted) Service having been appointed as Assistant Surgeon vice Government Order No. 658-HME of 1987 and thus,

completed the period of probation, at the time of his initial appointment, and is not to be treated as on probation on his appointment as Assistant

Director. Reference in this behalf may be made to law laid down in Dr. Neeraj Mahajan v. State and Ors. 2009(2) S.L.J. 696 : 2008 (3) JKJ HC

In the above background, the Petitioner as a member of service and by own admission of the Respondent No. 2 falls within the consideration

zone and cannot be held to have no interest even as member of Health and Family Welfare (Gazetted) Service in appointment on substantive or

stop-gap/ad hoc basis, of a member of service fulfilling the eligibility criteria laid down under the Recruitment Rules of 2006. The power of the

State in the matters of employment is subject to the constitutional limitations and to make such limitations, operational State u/s 124 (Proviso)

Constitution of Jammu and Kashmir, has been given power to make rules regulating the recruitment and laid down conditions of service of the

persons serving the State. Violation of Recruitment Rules more so, as a matter of practice, amounts to violation of the Constitutional limitations. In

such case, even a member of public, let alone a member of the particular Service may have sufficient interest to challenge such a practice not

permitted by the Recruitment Rules. Supreme Court in ""D.C. Wadhwa (Dr.) v. State of Bihar (1987) 1 SCC 578, though in a different context has

observed;

The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it

be the legislature or the executive or any other authority should be within the constitutional limitations and if any practice is adopted by the

executive which is in flagrant and systematic violation of its constitutional limitations, Petitioner 1 as a member of the public would have sufficient

interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and

adjudicate upon the validity of such practice.

The challenge to the maintainability of the petition on the ground of absence of locus-standii, thus must fail.

Public employment, it needs no emphasis, brings with it status and authority and has been held to be the repository of State power. The mode

and method of appointment to public service, in the circumstances can ill-afford to be in conflict with the principle of Rule of law ? core-concepts

of our Constitution. It is shocking to note that in case of appointment of Director Health Service/Director Family Welfare, the Respondents 1 & 2

have followed a pattern which violates said fundamental principle. The Respondents 1 & 2 as a matter of fact have by following such pattern,

perpetuated illegality. The Respondents 1 & 2 as is evident from the record available on the file and the case law referred to (SWP Nos.

956/2009, 980/09, 62/09 and Inder Prakash Gupta, Dr. Vs. State, have over the years observed Recruitment Rules of 2006 and Rules in force

earlier thereto, in complete breach. The Respondents 1 & 2 have during last 13 years drawn officers from Medical Education (Gazetted) Service

and appointed them as Director Health Services/Director Family Welfare, first in the name of ""stop gap arrangement"" and thereafter, continued

with the arrangement till their superannuation. The Respondents 1 & 2 in the process have blocked the promotional avenues of the officers of

Health and Family Welfare (Gazetted) Service. The official Respondents in 1998 vide No. 2-HME of 1998 dated 1st January, 1998 directed Dr.

Muzaffar Ahmad, a member of Medical Education (Gazetted) Service, to ""take over the charge of Director Health Services, Kashmir"". The

arrangement which appears to be nothing, but a stop-gap arrangement was allowed to continue and he occupied the post of Director Health

Services, Kashmir till 30th June, 2009. Dr. Muzaffar as is evident from events summarized in Inder Prakash Gupta, Dr. Vs. State,

The Respondents 1 & 2 thereafter, once the period of re-employment of Dr. Muzaffar Ahmad as Director Health Services came to an end on 30th

June, 2009, vide Government Order No. 274-HME of 2009 dated 30.6.2009, asked Dr. M. A. Wani, Project Director AIDS and Controls

Society, J&K to look after the duties of Director Health Service, Kashmir ? the stop gap arrangement, as stated by learned counsel for the

Petitioners, continues as on date. In the like manner Dr. Jasbir Singh, who retired on superannuation as Director Health Services, Jammu was a

member of Medical Education (Gazetted) Service and thus not eligible to be appointed as Director Health Services, Jammu. Dr. Jasbir Singh,

nonetheless, was allowed to continue as Director Health Services till his retirement on superannuation i.e. 30th September, 2010. The

Government, as is set out, in para 23 of Inder Prakash Gupta, Dr. Vs. State, admitted on the floor of the House (State Legislature) that

appointments of Dr. Muzaffar Ahmad and Dr. Jasbir Singh to the post of Director Health Service/Family Welfare (Gazetted) Service were made in

violation of basic Recruitment Rules as also in violation of the Supreme Court Judgment. The Government extended an assurance that as the

eligible officers were available, the post of Directors Health Service/Family Welfare would be filled in accordance with the rules.

It is disappointing to note that the Respondents 1 & 2 notwithstanding above admissions, assurances and a resolve to amend the Recruitment Rules

of 2006 continue to violate with impunity its own Recruitment Rules, least realizing that by doing so the Respondents were not only acting contrary

to imperatives of rule of law but also depriving the members of Health and Family Welfare (Gazetted) Service of their right to be considered for

promotion under the Recruitment Rules of 2006. The right of eligible employees to be considered for promotion is an integral part of fundamental

right guaranteed under Article 16 of the Constitution and any practice, no matter for how long observed, that violates the right to be considered for

promotion, amounts to infringement of the aforesaid fundamental right.

The Apex Court in Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and Others, while dealing with the failure of the State

Government to undertake periodical cadre review, in effect depriving the eligible candidates of right to be considered for promotion, observed:

It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right

guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from

guarantee of equality under Article 14 of the Constitution.

The Respondents 1 and 2 by following practice of stop-gap arrangements for 13 long years in disregard of the Recruitment Rules of 2006,

have violated the fundamental rights of members of Health and Family Welfare (Gazetted) Service who were not even considered for promotion to

different levels in the service, because of unending adhocism resorted to by the Respondents.

For the reasons discussed above, the writ petition is allowed and by a writ of certiorari order No. 555-HME of 2010 dated 29th October, 2010

and No. ES-3/2066 dated 30.9.2010 are quashed. The Respondents 1 & 2 are directed to take immediate steps for filling up the posts of

Director Health Services, Jammu and Director Family Welfare on substantive basis, in accordance with J&K Health and Family Welfare

Recruitment Rules, 2006 and the amendments on anvil, if any, incorporated in Rules and complete the exercise within four weeks. The present

stop-gap/adhoc arrangement, in any case, shall stay in force for a period of one month with effect from the date of this judgment and cease to stay

in place thereafter. Needless to mention that the Respondents 1 & 2 shall be at liberty to order stop-gap/ad hoc arrangement, if necessary in place

of present arrangement within the aforesaid period of one month in accordance with the Recruitment Rules of 2006, but such stop-gap/adhoc

arrangement, if made shall also come to an end after the said period of one month.

SWP No. 1539/2010 along with connected CMP(s) is disposed of.

Registry to segregate SWP No. 1983/2009 and list in due course.