Vikramjeet Singh (Dr.) vs State of Jammu & Kashmir and Others

Gh. Hasnain Massodi, J.—Principal, Government Medical College, Jammu - Respondent No. 3 herein, vide Advertisement Notice No.

JMC/ESTT/GD/109/5857 dated 30th October 2010, invited applications from inservice Doctors for the tenure posts of Registrars/Demonstrators

in the pay scale of 8000-13500 (pre-revised) in the departments/disciplines of Government Medical College, Jammu, shown in the notice for a

period of three years against the available vacancies as also the vacancies likely to become available. The advertisement notice laid down the

eligibility criteria for advertised positions and required the aspirants for the posts to route their applications through their Administrative Department

and at their option forward advance copies to Respondent No. 3. The interview, however, was to be conducted of only those candidates whose

applications were forwarded by their Administrative Department and received in the office of Respondent No. 3 before the date of interview. The

last date of receipt of forms was notified as 29th November 2010.

The Petitioner, a permanent resident of Jammu and Kashmir State, appointed as Assistant Surgeon in J&K Health Services following his

selection by J&K Public Service Commission in the year 2007, and posted at Sub Division Hospital Tral decided to respond to advertisement

notice. The Petitioner, accordingly, routed his application through the office of Chief Medical Officer, Pulwama, wherefrom it was forwarded to

Director, Health Services, Kashmir. The Petitioner also forwarded an advance copy of the application to Respondent No. 3. The Director Health

Services, Kashmir ? Respondent No. 3 herein, however, refused to forward the application to the Administrative Department. The efforts made by

the Petitioner to persuade the Respondent No. 2 and Administrative Department to forward his application did not bear any fruit. The Petitioner,

aggrieved that the applications of other inservice doctors for advertised posts were duly forwarded by the Administrative Department and that the

Petitioner was singled out for a discriminatory treatment despite fulfilling eligibility criteria, has filed instant writ petition seeking following reliefs:

...the Respondents be directed to allow the Petitioner to compete the process of selection for the tenure post of Registrar in Government Medical

College Jammu in terms of advertisement notice No. JMC/ESTT/GD/109/5857 dated 30.10.2010 and consequently the Respondents 1 and 2 be

directed to accept the application form of the Petitioner and forward the same to Government Medical College Jammu who shall be directed to

allow the Petitioner to compete the process of selection for the said post. In the event the Petitioner succeeds on the basis of merit in such process

of selection the Respondents shall be directed to select and appoint the Petitioner for the tenure post of Registrar Pediatrics in Government

Medical College Jammu on the basis of his merit by further directing the Respondent No. 2 i.e. Director Health Services Srinagar to relieve and

issue No Objection certificate in favour of the Petitioner for joining the said Registrar post in Government Medical College Jammu to this effect the

appropriate writs may be issued in favour of the Petitioner and against the Respondents.

The writ petition is opposed on the grounds that the Petitioner has not approached the Court with clean hands and suppressed material facts. It

is pleaded that the writ petition raises pure question of fact that cannot be dealt with while exercising extra ordinary writ jurisdiction. It is further

averred that the Petitioner cannot, at his choice leave the post held, to take another assignment and that the services of the Petitioner are required

by the State Health Services Department. The Respondents, while admitting that the Petitioner has been appointed as Assistant Surgeon vide

Government Order No. 212-HME of 2007 dated 28.03.2007, read with Government order No. 392-HME of 2007 dated 06.06.2007, and

allowed to pursue Post Graduate Course in Pediatrics in Government Medical College, Jammu, and thereafter posted at SDH Tral, deny that the

Petitioner has a right to apply for the advertised post in absence of permission from Respondents 1 and 2. It is pleaded that the Respondents 1 and

2 are within their rights to withhold/not forward, the application of Petitioner on the ground of shortage of Doctors in J&K Health Services

Department and not to spare the services of Petitioner for his appointment as Registrar, Paediatrics, in Government Medical College, Jammu. It is

pleaded' that the Registrarship is not a requirement for the post of Assistant Surgeon, already, held by the Petitioner. The Respondents dispute the

Petitioner's right to claim parity with other inservice doctors, allowed to compete for the post of Registrar/Demonstrator in Government Medical

Colleges in the State.

The Petitioner, in his rejoinder, has reiterated the stand that the Respondents are following a pick and choose policy and selectively forwarding

the applications of inservice doctors. It is insisted that the applications of a number of batch mates and colleagues of Petitioner - similarly situated,

have been forwarded by the Director Health Services, Jammu, and thereafter Administrative Department to Respondent No. 3 for the advertised

post and that the Petitioner has been singled out for a treatment different from one meted out to his batch mates and colleagues. The Respondents

1 and 2, by not forwarding Petitioner's application, are said to have acted arbitrarily. It is pleaded that a number of inservice doctors have been

previously permitted to apply for the posts of Registrar/Demonstrators, to compete for the said posts and to take the appointments, and that such

inservice doctors are at present discharging their duties as Registrars and Demonstrators in Government Medical Colleges Srinagar and Jammu.

The Petitioner further insists that in case of tenure appointments, deputation orders are neither required nor as a matter of practice issued and that

the selected candidates are merely relieved in the event of their selection to join as Registrars/Demonstrators. It is pleaded that the Respondents

cannot be allowed to forward applications of inservice doctors at their whim and caprice, as such a course would make room for nepotism and

favouritism and that in absence of a policy, such treatment violates mandate of Article 14 of Constitution. It is emphasised that by refusing to

forward the Petitioner's application for the advertised post the Petitioner in effect would be deprived of an opportunity to compete for the

advertised post and an opportunity to gain experience by getting associated with a prestigious seat of learning and an important health care facility

of the State.

It is pertinent to point out that Respondent No. 3, in compliance to order dated 12.01.2011, is said to have permitted the Petitioner to

compete/participate in the selection process for the post of Registrar advertised vide aforementioned advertisement notice.

I have gone through the pleadings and heard learned Counsel for parties.

The Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules 1979 (for short as ""Medical Education Rules 1979""), govern

and prescribe recruitment to J&K Medical (Gazetted) Service, eligibility criteria for such recruitment, method of recruitment, seniority,

disqualification, probation, discipline and conduct, conditions of service etc. etc. Schedule I to the Rules catalogues posts, class, and categories of

the Service and number of posts in each class/category. As per the Schedule, posts of Registrar and Demonstrators are classified as Class-VI

posts and sanctioned strength, as on the date of commencement, of the Rules, is 58 and 60 posts respectively. Schedule III lays down, inter-alia,

method of recruitment of each class/category of the posts, including Registrars/Demonstrators in the Service. The post of Registrar/Demonstrator is

to be filled up by deputation from J&K Medical (Gazetted) Service for a specified period on the recommendation of Selection Committee of

Medical Colleges. It would be appropriate to reproduce the relevant part of Schedule 'III' to J&K Medical Education (Gazetted) Service

Recruitment Rules, 1979:

Class CategoryDesignationGrade Method of recruitment

of the post

VI I Registrar 600- By deputation from

1350 J&K Medical Colleges

II Demons tra600- -do-

tor 1350

The post of Registrar/Demonstrator, as is evident from Schedule III (supra) and the Advertisement Notice No. JMC/ESTT/GD/109/5857

dated 30th October 2010, is a tenure post, i.e., for a specified period.

It is thus evident that J&K Medical (Gazetted) Service is the exclusive source for recruitment by deputation against/to the tenure posts of

Registrars/Demonstrators under Medical Education Rules 1979. The Respondent No. 3, having regard to the mandate of Medical Education Rules

1979, vide Advertisement Notice No. JMC/ESTT/GD/109/5857 dated 30th October 2010, invited applications for the available posts of

Registrars/Demonstrators only from inservice Doctors i.e., members of J&K Medical (Gazetted) Service. The Petitioner admittedly is a member of

J&K Medical (Gazetted) Service and thus eligible to be considered for recruitment against the tenure post of Registrar/Demonstrator.

There is no dispute regarding eligibility of Petitioner for the advertised tenure post. The Petitioner's case, it may be stated at the cost of

repetition, is that he being eligible for the advertised post and having routed his application as required in terms of Advertisement Notice dated 30th

October 2010, through proper channel, Respondents 1 & 2 ought to have forwarded his application to Respondent No. 3, so that the Petitioner

was in a position to compete for the post and in the event he was selected to take up the appointment. The case set up by Respondents 1 and 2, in

opposition to the Petitioner's case, is that as the recruitment to the post of Registrar/Demonstrators in terms of Medical Education Rules 1979, is to

be made by deputation from J&K Medical (Gazetted) Service, it was for the Respondents 1 & 2 to depute or not to depute (to send on

deputation or not to send on deputation) a member of J&K Medical (Gazetted) Service, to the post of Registrar/Demonstrator. It is argued that

refusal of Respondents to forward Petitioner's application to Respondent No. 3 for the post of Registrar/Demonstrator, was indicative of their

decision not to send the Petitioner on deputation as Registrar/Demonstrator in J&K Medical (Gazetted) Service.

Learned Counsel for the Petitioner in his arguments reiterates the stand taken in the petition. Learned Counsel referring to the annexures to the

writ petition, is at pains to point out that the Respondents 1 and 2 have previously as also in connection with present advertisement notice, at their

choice forwarded the applications of a good number of inservice doctors to Respondent No. 3 and that the Petitioner in absence of any disability

deserves to be given the same treatment.

It is argued by Mr. Magray, learned Senior Additional Advocate General on the other hand that the Petitioner by taking up a job of Assistant

Surgeon and deciding to become member of J&K Medical (Gazetted) Service, made himself subject to the Service rules and regulations and could

not at his choice opt for some other service without consent/approval of his Administrative Department. Learned Senior Additional Advocate

General, highlighting the human resources crunch, confronted by J&K Health Department and non-availability of trained Doctors to man different

posts in District, Sub District Hospital and Allopathic Dispensaries, submits that Health department can ill afford to allow trained Doctors to flock

to other Departments and that too at their whim without consent/approval of their Administrative Departments. It is insisted that the Petitioner is not

having an absolute right to go on deputation at his choice. The decision of Respondents 1 & 2, in not forwarding his application for the post of

Registrar/Demonstrator to Respondent No. 3, it is argued, was in accordance with law and did not warrant any interference in exercise of extra

ordinary writ jurisdiction.

The social planners - rule makers in their wisdom have singled out the posts of Registrars and Demonstrators, to be treated as tenure posts or

posts for a specified period. We do not find such restriction in respect of other classes/categories of posts in teaching, wing namely Principal,

Professor, Associate Professor, Assistant Professor and Lecturer. The reason for such classification is not difficult to understand. The posts of

Registrars and Demonstrators, 118 in number, are threshold posts and open a window of opportunity for the members of J&K Medical

(Gazetted) Service, who have an aptitude for teaching, to take up teaching in a particular discipline as their profession and climb up the ladder to

the post of Professor and even Principal/Dean. A closer look at Schedule 'II' to the Medical Education Rules 1979 reveals that for the post of

Lecturer, the prescribed eligibility criteria is Registrar/Tutor, Demonstrator/Tutor or a Senior Resident for a period of two years in a recognised

teaching medical institution recognised by the Medical Council of India or the University of Kashmir/Jammu. An inservice doctor, in the

circumstance, can compete for the post of Lecturer of Medical faculty, only if he has an opportunity to work as Registrar/Demonstrator. This

apart, appointment against tenure post of Registrar/Demonstrator enables, a member of J&K Medical (Gazetted) Service, not interested in taking

up teaching job, to work at a premier care health facility, learn from his peers, rub shoulders with specialists in a particular discipline and to be

guided by super-specialist in a particular discipline. It thus affords an inservice doctor a unique opportunity to enrich his/her knowledge, excel in

his/her performance and get well equipped to go back to the field and serve the people. From any point of view, the opportunity to work as

Registrar/Demonstrator is of immense benefit to an inservice doctor/member of Medical (Gazetted) Service and cannot be extended selectively.

A look at the material on the file (annexures to petition and rejoinder) would reveal that Respondent No. l has, vide No. HD(/Gaz/Gen-

15/2009 dated 27.12.2010 (Annexure B) forwarded the applications of as many as 26 inservice doctors/members of Medical (Gazetted) Service

to Respondent No. 3 and vide order No. 483 of 2011 dated 21st January 2011, five of the inservice doctors have been appointed as Registrars in

the discipline of Paediatrics in GMC Jammu. The record available on the file reveals that Respondents 1 & 2 have followed the same methodology

over the years and forwarded applications of inservice Doctors/Assistant Surgeons at their whim, without there being any set policy guidelines,

governing deputation of inservice doctors against the post of Registrars/Demonstrators. In some cases, the Respondents 1 and 2 are said to have

allowed such inservice doctors to continue beyond the tenure/period of deputation.

While there can be no disagreement with the argument advanced by learned Senior Additional Advocate General that the power to send on

deputation lies with Respondents 1 & 2 and that such an option cannot be exercised by an inservice Doctor, aspiring for deputation, however,

having regard to the benefits to the inservice Doctors, flowing out of the deputation, Respondents 1 & 2 cannot take a decision regarding

deputation in an arbitrary manner and in absence of a transparent and objective policy guidelines. If the Respondents 1 & 2 are held to have an

absolute and unbridled power to send on deputation inservice Doctors on the posts of Registrars/Demonstrators, the Respondents shall be in a

position to virtually decide eligibility of the inservice doctors to compete for the post of Lecturer, block the prospects of a deserving inservice

doctors to opt for teaching job, and use the power to the advantage of some members of the Service and to the disadvantage of others. Such a

power, it needs no emphasis, would be in conflict with the Constitutional guarantee of equal opportunity and rule of law -core concept of our

Constitution.

There is no reason to downplay the concern shown by Respondents 1 & 2 to ensure availability of trained Doctors in hospitals, health centres

and Allopathic dispensaries of the State and to provide proper health care throughout length and breadth of the State, yet such a concern cannot

permit an arbitrary and unguided exercise of executive power that makes room for nepotism, favouritism and conferment of benefit selectively.

Against the said backdrop though the Court may not itself lay down policy guidelines to be followed by Respondents 1&2 in allowing

deputation of inservice Doctors against the posts of Registrars/Demonstrators as such a course would offend the principle of separation of powers,

yet the Court can ask Respondents 1 &2 to lay down and notify policy guidelines so that in future the applications of inservice Doctors are

forwarded/deputation made in accordance with such policy guidelines in a transparent manner, free from any element of arbitrariness, malafides or

favouritism. The Respondents 1&2 may very well make requirement of rendering service for minimum period, deemed appropriate, in the Health

Department as Assistant Surgeon before the applications inservice doctors for the posts of Registrars/Demonstrators are forwarded by the

Administrative Department to the Principals, Government Medical Colleges, Jammu and Srinagar and consent given to the deputation.

It is pertinent to point out that the question of deputation of inservice Doctors against the tenure posts of Registrars/Demonstrators has

surfaced and is resurfacing in a number of cases and the Respondents 1 & 2, by laying down the policy guidelines, shall save inservice doctors the

hassle of resorting to litigation and also lessen the burden on the Courts as well as the administrative machinery involved in contesting such matters.

The Respondents 1 & 2 shall frame and notify policy guidelines governing deputation of inservice candidates in terms of J&K Medical

Education (Gazetted) Service Recruitment Rules, 1979 within four months from the date of receipt of order, so that the chances of future litigation

on the subject relating to deputation are excluded and inservice candidates made aware well in time of the requirements and the prospects of their

deputation against the posts of Registrars/Demonstrators.

For the reasons discussed, the decision of Respondents 1 & 2 in not forwarding the application of Petitioner smacks of arbitrariness and is

violative of Article 14, Constitution of India. The writ petition is accordingly allowed and Respondents directed to declare the result of Petitioner,

who, as already pointed out, has participated in selection process and in the event he is recommended by Selection Committee, constituted for the

purpose, to appoint him as Registrar/Demonstrator in the discipline of Paediatrics in Government Medical College, Jammu, in accordance with

rules.

Disposed of with connected CMP(s).