Dr. Showkat Hussain Yatoo vs State Of J&K & Ors.

By Hon’ble Mr. Anand Mathur, Member (A)

Mr. Tasaduq H. Khawja, learned counsel for the applicant and Mr. Bikram Deep Singh, learned counsel for the official respondents and Mr. Syed Faisal Qadri, Sr. Advocate, learned counsel for the private respondent No.4 are present.

Learned counsel for the applicant stated that the applicant had been appointed as Medical Officer on 10.03.1993. Thereafter, he was appointed as B-grade Specialist w.e.f. 06.07.2007 and as A-grade Specialist w.e.f. 20.02.2019. He further stated that as per the Recruitment Rules, the post of Director is to be filled as under:-

He claims that the applicant is the only person with Post-graduation in Unani and fulfills the prescribed criteria for promotion to the post of Director. Although, the rules do not provide for deputation of any outsider on the post of Director yet Dr. Mohan Singh, who is an outsider, was posted as Director, Indian System of Medicine, J&K on deputation basis vide Government Order No.1091-GAD of 2019 dated 11.10.2019. This order is clearly in violation of the Recruitment Rules as Dr. Mohan Singh is not even a member of the Service and does not satisfy the prescribed criteria for filling up the post of Director. In view of the above, the applicant has sought following relief(s):-

Learned counsel for respondent no.4 mentioned that as per Article 52 of the J&K Civil Services Rules, the Government can resort to deputation in case inhouse candidates do not satisfy the criteria and the post cannot be left vacant. He further stated that this arrangement is only on deputation basis and is not a permanent posting. Learned counsel for the respondent further contends that the OA deserves dismissal on count of misinterpretation of the Rule position as indicated in the Jammu & Kashmir Indian Systems of Medicine (Gazetted) Service Recruitment Rules of 2006. The Rules unambiguously indicate the qualifications of eligibility as well as the requirement of administrative experience of 03 years to be an essential component for competing towards selection for the Post of “Director” ISM. It is the admitted position on part of the applicant that the administrative experience of 03 years is lacking in his favour so as to allow him to become eligible for the post in question. Furthermore, the pleadings as indicated in Paragraph 8 of the petition under reply clearly indicate that the petitioner interprets Rule position according to his own understanding, i.e. according to the petitioner, the 03 years administrative experience is not required in case of a candidate holding a degree of Post Graduation in Unani/Ayurveda. On this count also the petition deserves dismissal for misinterpretation of the rule position on part of the petitioner.

The petition further deserves dismissal on account of the fact that the post in question, is a “Selection Post” and not a Post which is required to be filled up by way of Promotion. The petitioner could have agitated in case the Post in question was to be filled up by way of promotion and he had the eligibility to seek consideration against the said post. On the contrary, the post being a selection Post is to be filled by way of a Notice to all the eligible candidates who fulfill the criteria. This is to be done by the Government at the time when a decision with regard filling up of such post is taken. In the instant case, no such decision has been taken by the government for a reason that the candidates available in the Department of ISM are yet to acquire eligibility to compete for the same. It was under these circumstances, a decision of deputing the Answering Respondent was taken by the Government, and hence the decision can neither be termed as arbitrary, illegal or beyond competence. The petition, therefore, deserves to be dismissed on this count as well.

In any case, unless the selection to the post of Director ISM is initiated by the Government i.e. Respondent No.2 and 3 herein, the petitioner cannot have any grievance against the answering respondent having been deputed on the post in question in light of the facts narrated herein above. It is not the case of the petitioner that the Government be directed to fill up the post by way of selection from amongst the 04 categories of Doctors available within the department falling under category A,B,C and D. On the contrary the petitioner makes a specific prayer of directing the respondents for selecting the petitioner without even the process of selection having been commenced by the Government. Moreover, the prayer cannot be sought in view of the fact that the selection can only be made from amongst eligible officers of the above stated 04 categories. The petitioner failing to satisfy eligibility cannot therefore, seek a direction against the Government to select him against a post, which cannot be directed by way of the instant T.A. The answering respondent although having been deputed on pure deputation basis does have to his credit a degree Post-graduation in Health Administrative with more than 20 years administrative experience. The answering respondent has served on the post of Mission Director National Health Mission J&K from 2015-2018, Project Director Aids Control Society Govt of J&K from 2014-2015, Medical Superintendent Govt Dental College Jammu from 2004-2014. Apart from this the answering respondent has attended his duties against various posts in the respondent department. On this count also, the petition deserves dismissal.

The main thrust of the petitioner while challenging the impugned order rests on the premise that the petitioner being eligible has not been considered for the post in question. In view of the fact, that to the best understanding of the Government, the Post in question has not been put to selection till date, therefore, the question of eligibility of the petitioner falls into insignificance till the time the post is decided to be filled up by the Government upon good number of candidates having acquired the eligibility from amongst category A,B,C. and D to compete for the same. Hence, the premise on which the petition/application is based is completely erroneous and deserves to be dismissed.

We have heard the argument of both the counsel at length. The bone of contention is the posting of Dr. Mohan Singh on deputation basis in terms of impugned Government Order No.1091-GAD of 2019 dated 11.10.2019 wherein, he has been posted as Director Indian System of Medicines, J&K on deputation basis. Although the Recruitment Rules do not specifically provide for filling up the post of Director on deputation basis yet it is also a fact that if the government felt that no inhouse candidate was eligible and that the post could not be left vacant, the government was well within its right to fill it up with a suitable candidate on a temporary deputation basis. However, the impugned order does not specify the period for which the said deputation has been approved.

Learned counsel for the applicant has vehemently argued that as on date, the applicant is eligible and deserves to be considered for selection to the post of Director, Indian System of Medicines, J&K.

However, as may be seen from the prayer clause of the T.A. (Para-3 of this order), the applicant seeks quashing of the impugned order dated 11.10.2019 and wants his own case to be considered for the post of Director, ISM, J&K. Learned counsel for the respondents has clearly brought out that the post of Director is a selection post and only the most suitable candidate who gets selected after due process of selection is to be posted as a Director, ISM on a regular basis. Therefore, the contention of the applicant for his promotion as Director, ISM is not tenable. Further, the impugned order dated 11.10.2019 had been issued by the Government due to the fact that eligible inhouse candidates were not available but the Government was well within its right to depute someone from outside since the post could not be kept vacant. The suitability of the incumbent, Dr. Mohan Singh has been well brought out by the respondents in Para-6 above.

In view of the discussions made above, we find that none of the prayers of the applicant is tenable. Thus, this T.A. is devoid of merit and is liable to be dismissed on this count. The T.A. is accordingly dismissed.

Before parting with the case, we may add that while appreciating the compulsion of the government to fill up the vacant post of Director, ISM in 2019 on deputation basis, we feel that with the passage of more than 2 and ½ years it would be in the interest of justice for the government to review the position and consider holding the selection process for filling up the post of Director, ISM as per the procedure prescribed under the relevant rules.

Parties are directed to bear their own costs.