Siraj-ud-din Ahmad (Dr.) & Anr. vs State & Ors.

Interim direction dated 31.08.2008 unless extended, fall out is its termination and extension thereto is vehemently opposed by learned counsel

for the petitioners. They being averse to the extension of the interim direction even by a week, it is deemed appropriate to finally dispose of both

the writ petitions, wherein a writ is sought for quashing the adjustment of the respondentDr. Muhammad Amin Wani as Director Health Services

Kashmir with a further prayer to accord consideration to the petitioners for their appointment against the said post. Having heard the learned

counsel for the parties, I would like to dispose of the petitions here and now and to appreciate the challenge against the adjustment of the

RespondentDirector Muhammad Amin Wani, apposite it is to reproduce the impugned order:

Government No: 274HME of 2009 Dated: 30.06.2009

In the interest of administration, it is ordered that on the expiry of the period of reemployment of Dr. Muzaffar Ahmad, Director Health Services,

Kashmir viz 30.06.2009 Dr. M. A. Wani, Project Director Aids Control Society, J&K will look after the duties of Director Health Services,

Kashmir in addition to his own duties. This arrangement will, however, be subject to outcome of the case pending in the Hon'ble Court. By order

of the Government of Jammu and Kashmir.

A bare perusal of the order reveals that the respondent No. 4 is a Project Director, Aids Control Society, J&K, and has been assigned the

charge of the Director, Health Services Kashmir in addition to his own duties till further orders. What prevented the Government from assigning the

charge to an officer falling within the consideration zone for the post of the Director, reasons have been spelt out in the reply revealing ineligibility of

the officers and to overcome the legal impediment it is stated that the Government contemplates amendment of the rules.

Next it was contended by Mr. Haqani that the RespondentDr. Muhammad Amin Wani could not have been assigned the charge because he too

is ineligible. If the argument is accepted it would mean that the Government lacks the power to borrow the officers on deputation and has also no

power to assign the charge. If that view is accepted, many offices may remain unmanned and consequence would be a chaotic situation, which is

certainly not the spirit of the rules nor is it in the public interest. Reverting to the impugned order it is very clear that it is an assignment of additional

charge till further orders, which became imperative for the respondents because of non availability of an eligible person in the department,

resultantly, assignment of the additional charge to the respondentDr. Muhammad Amin Wani, who happens to be the head of the department in the

pay scale as is admissible to the post of the Director Health Services, apparently for him it is not an assignment of higher post but charge of an

equivalent post. Examining from any angle the official respondents cannot be said to have done any wrong.

Now a word about the grouse registered by the petitioners because of their nonconsideration, answer is their own handicap traceable to their

ineligibility which position is clear from the averments made by the petitionerDr. Sirajuddin in his petition wherein he banks upon recommendation

of the Establishment/Selection Committee for relaxation of requisite eligibility. The petitionerDr. Gulzar Ahmad is also faced with disadvantage of

ineligibility. To appreciate the controversy raised in respect of eligibility, relevant entry of the Schedule II of the Jammu & Kashmir Health and

Family Welfare (Gazetted) Service Recruitment Rules, 2006 is extracted:

Class Cate Designation Grade Minimum qualification Method of

gory of the post Recruitment

I II III IV V VI

I Director 1430018300 MBBS or possession of recognized Graduate By selection

Health Medical Qualification included in the first or from Class II

Services/ second schedule or part II of the 3rd schedule category 'A'

Family (other than licentiate qualification) to the &'B'.

Welfare Indian Medical Council Act, 1965. Holders of

educational qualification included in part II of

the 3rd schedule should fulfill the conditions

stipulated in the subsection (3) of section 13

of the Indian Medical Council Act 1956, and ;

Possession of a postgraduate degree in any

subject mentioned in part 'A' of the annexure

to this schedule with seven (07) years

administrative experience.

II AB Deputy 1200016500 MBBS or possession of recognized Graduate By promotion

Director 12000 16500 Medical Qualification included in the first or from Class

Health second schedule or part II of the 3rd schedule Ill category

Services A (other than licentiate qualification) to the A, B, C, D. By

Grade Indian Medical Council Act, 1956. Holders of promotion

Specialists (i) educational qualification included in the part from Class III

II of the 3rd schedule should fulfill the category E

conditions stipulated in the subsection (3) of from the

section 13 of the Indian Medical Council Act respective

1956, with five (05) years administrative disciplines.

experience. MBBS or possession of recognized

Graduate Qualifications included in the first

or second schedule or part II of the 3rd

schedule (other than licentiate qualification)

to the Indian Medical Council Act, 1956.

Holders of education qualifications included

in part II of the 3rd schedule should fulfill the

| conditions stipulated in the subsection (3) of

3 section 13 of the Indian Medical Council Act

1956, and Possession of post graduate degree

in the concerned specialty mentioned in part

'A' of the annexure in the schedule with five

(05) years service as B Grade Specialist.

Perusal of the entry reproduced above makes it clear that the appointment of the Director has to be made by selection from Class II category

'A' i.e. Deputy Director Health Services under which the petitionerDr. Sirajuddin seeks consideration but admittedly he is not a Deputy Director

and also lacks experience of seven years. No doubt a recommendation for relaxation of eligibility was made by the Establishment/Selection

Committee in his favour but was not conceded to by the Government as is borne by the record produced for perusal of the Court by Mr. Magray,

learned Sr. AAG, returned to him then and there. Suffice it to say that the recommendation of the Establishment/Selection Committee, howsoever

highly placed its members may be, cannot amount to rewriting of the rules. Thus ineligibility is manifest.

The petitionerDr. Gulzar Ahmad Sofi has staked claim under category 'B' of the aforesaid Schedule which entitles 'A' Grade specialist to

consideration for the post of the Director Health Services which position he is yet to attain, for, he is a BGrade Specialist and also lacks

administrative experience of seven years prescribed by the rules. To escape the fall out Mr. Bashir learned counsel for the petitionerDr. Gulzar

Ahmad referred to the objections filed by the State in an earlier writ petition besides the certificates annexed with his present writ petition to

contend that the petitioner is possessed of the requisite experience and is also 'AGrade specialist' but he could not refer to any document even

worth the name which could show Dr. Gulzar Ahmad's appointment as AGrade specialist at any point of time, obviously, in absence of an order of

appointment, much less by a competent authority, he cannot claim to be 'A Grade Specialist'. Regarding certificates produced by the petitionerDr.

Gulzar Ahmad to establish his experience Mr. Magray submitted that his claim in respect of experience was examined by the Government but

found untenable, accordingly rejected vide Government order No. 160 HME of 2009 dated 31032009. Thus ineligible post and experience wise.

In the aforementioned backdrop, writ petitions are dismissed along with CMPs. Interim directions shall stand vacated. However, no order as to

costs.

SWP No. 62/2009: CMP No. 103/2009:

By medium of this writ petition, the petitioner questions the extension granted to erstwhile Director Health Services Kashmir Dr. Muzaffar

Ahmad, who has superannuated since, resultantly the writ petition (SWP 62/2009) has become inf ructuous. Dismissed along with CMPs. Interim

direction, if any, shall stand vacated.