Shabir Ahmad Dar (Dr.) vs State of J&K

29,Administration of Colleges and Hospitals,,,

,"(a) Medical Supdt. Of Teaching

Hospitals","(i) Same as given for item (i)

against S. No. 27 above;

and","At least five years

experience as Dy.

Medical Superintendent.",

,,"(ii) Post-graduate

qualification in

Surgery/Gynecology/or

medicine and other clinical

subjects/ Hospital

Administration.",,

,"(b) Deputy Medical

Superintendent of Teaching

Hospitals",do,"Three years working

experience of running a

Hospital after post

graduation.",

S.

No.","Name of

Officer","Present

Place of

posting","Working on

substantive/deputation/academic

arrangement basis","Qualification/experience

of the Officer

1,"Dr. Nazir

Hussain

Choudhary","SHMS

Hospital",Substantive basis,"MBBS, MD (HA)

2,"Dr.

Mushtaq

Ahmad

Rather",L.D Hospital,Substantive basis,"MBBS, MD (Pediatrics)

3,"Dr. Mohd.

Maqbool","Psychiatric

Disease

Hospital","Principal GMC Srinagar has

assigned the temporary charge of

Medical Superintendent to HOD

Psychiatric Diseases in addition to

his own duties",

4,"Dr. Navid

Nazir",C.D Hospital,"Principal GMC Srinagar has

assigned the temporary charge of

Medical Superintendent to HOD

Chest Medicine in addition to this

duties.",

,,,,

,,,,

5,"Dr.

Shafqat

Khan","G.B Panth

Hospital","Inter Cadre deputation basis vide

G.O. No. 274- HME of 2015,

dated 21.07.2015","MBBS, MHA PG

Diploma in Medico Legal

systems

6,"Dr. Shabir

Ahmad

Dar","Bone and Joint

Hospital","The Doctors is basically Assistant

Surgeon posted as Dy. Medical

Superintendent on stopgap

arrangement basis for a period of

six months or till the posts are filled

up through regular mode whichever

is earlier vide G.O No. 563-HME

of 2012, dated 18.09.2012. The

period was further extended for six

months from the date of expiry of

previous term vide G.O No. 336-

HME of 2013, dated 27.05.2013.

Further the doctor is presently

holding the additional charge of I/C

Medical Superintendent on the

orders of Principal GMC, Srinagar.","MBBS, MD (HA)

7,,"Medical

Superintendent

(Director)

Chitranjan

Mobile

Srinagar","The post has presently utilized for

the post of MD J&K Medical

supplies Corporation",

8,"Dr.

Jahangir

Bakshi","K.N Home

Gupkar

Srinagar","The doctor is basically Medical

Officer of Health Department

working on deputation basis for

two year vide G.O. No. 388-HME

of 2014, dated 01.07.2014","MBBS, MD (Radiology)

no indefeasible right has accrued to petitioner to seek the relief in the nature of writ of mandamus for his continuation. Law on the subject is settled,,,,

that courts have no power to extend the tenure of appointment beyond the sanctioned period by competent authorities.,,,,

Respondents are under law required to fill up the post by the method and manner provided under rules. Respondents cannot be allowed to,,,,

continue with the adhocism which has been deprecated by the Hon'ble Supreme Court in case titled Suraj Prakash Gupta v. State of J&K,,,,

reported in AIR SC 2000.,,,,

The Supreme Court in Suraj Prakash Gupta's case reported in (2000) 7 SCC 561 had, among other things, directed the State of Jammu",,,,

and Kashmir, to appoint a High Level Committee within a month from the date of that judgment to find out in which department the adhoc/stopgap",,,,

promotes are languishing without their cases being referred to the Service Commission/DPC for regularization within their quota. The Supreme,,,,

Court had also directed the State of J&K to fill up the vacant posts in the Gazetted cadre in accordance with rules and discontinue the policy of,,,,

adhocism detrimental to the interests of those who are eligible and are available in the open market.,,,,

Coming to the exigency of service as stated to be involved in the case in hand, it is true that the posting of Government servant appointed to a",,,,

particular transferable post from one place to another place is an incidence of service and does not affect or alter his terms and conditions of,,,,

service. The Government has power to transfer its employees from one post to another carrying equivalent pay scale and grade.,,,,

In the present case in view of the exigency of service Government has to exercise its power in a bona fide manner to meet the exigencies of the,,,,

administration, Refer to E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.",,,,

Violation of right is a Sine qua non for grant of Mandamus. Mandamus may be issued to compel the authorities to do something. It must be,,,,

shown that the statute imposes a legal duty and the aggrieved party have a legal right under the Statute to enforce its performance. Petitioner has,,,,

failed to establish his right with reference to his claim, therefore, on that count also, the writ petition has no merit and deserves to be dismissed.",,,,

In the given circumstances, the writ petition with reference challenge to Government Order No. 383-HME of 2015, dated 07.09.2015 is",,,,

dismissed. Interim direction, if any, subsisting shall stand vacated.",,,,

Petitioner shall be allowed to continue as Incharge Deputy Medical Superintendent as he was before assigning him the charge of Incharge,,,,

Medical Superintendent B&J Hospital, Burzella till the post is filled up on regular basis.",,,,

No order as to costs.,,,,