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Judgment
There is no representation on behalf of petitioner No. 2. Accordingly, the petition is dismissed in default insofar it pertains to petitioner No. 2.
In this petition, the petitioner has called in question the Government Order No. 594-HME of 1998 dated 28.09.1998 insofar as it pertains to the appointment of respondent Nos. 3 and 4 as Lecturer Gynaecology and Obstetrics in the Health and Medical Education Department.
Briefly stated, the facts leading to the filing of this petition are that the petitioner being eligible participated in the selection process initiated by respondent No. 2 vide Advertisement Notification No. 21-PSC of 1997 dated 06.10.1997 for filling up the 06 posts including three in the open merit category in the discipline of Lecturer Gynaecology and Obstetrics. The petitioner came to be selected by respondent No. 2 and in pursuance to the recommendations made, she was appointed as Lecturer in Gynaecology and Obstetrics by respondent No. 1 vide Government Order No. 556-HME of 1999 dated 27.10.1999. It is claimed that the petitioner with the passage of time, came to be promoted to the next higher rank and is presently serving as Professor in the Department of Gynaecology and Obstetrics in GMC Jammu.
The grievance of the petitioner as projected in this petition is that though she came to be appointed as Lecturer after facing selection process which was initiated in the year, 1997, yet respondent Nos. 3 & 4 without even participating in any selection process came to be directly recruited as Lecturers by the Government in terms of the order impugned and were, thus, placed senior to the petitioner.
The order impugned has been challenged by the petitioner inter-alia on the ground that the same amounts to backdoor entry to the Medical Gazetted Services as respondent Nos. 3 and 4 were appointed as Lecturers Gynaecology and Obstetrics in the Health and Medical Education Department without undergoing any selection process and without any consultation with Public Service Commission. It is stated that the post of Lecturer borne on cadre of J&K Medical Gazetted Services created by the J&K Medical Education (Gazetted) Services Recruitment Rules, 1979 is required to be filled up 100 % by Direct Recruitment and this selection was to be made by the Public Service Commission. There is no provision in the rules which provides for relaxation of the mode of the recruitment. Otherwise also, there could be no relaxation in the method of recruitment. This is so held in the case of J&K Public Service Commission Vs. Dr. Narinder Mohan; 1994 SCC (2) 630 and later judgment of Suraj Parkash Gupta and ors. Vs. State of J&K and ors; 2000 AIR (SC) 2386. Except for PSC, none of the respondents have filed their reply to justify the order impugned.
Having heard learned counsel for the parties and perused the record, I am of the view that the appointment of respondent Nos. 3 and 4, on the face of it, is contrary to the J&K Medical Education (Gazetted) Services Recruitment Rules, 1979 and Section 133 of the J&K Constitution which makes it mandatory for the Government to have consultation with the Public Service Commission in the matter of appointment of the employees to the Gazetted Services of the State. The order impugned was issued in the year, 1998 and the petition was filed in the year, 2001. This petition is pending since 17 years and during this period, the respondent Nos. 3 and 4 have also got further promotions and are stated to be holding the posts of Professors at present. Declaring their appointment as null and void at this stage perhaps would not be equitous. But at the same time, the petitioner who is succeeding in this petition also cannot be denied the relief. At this stage, it may be pertinent to take note of the fact that the petitioner has filed an another writ petition, i.e, SWP No. 613/2002, whereby the petitioner has called in question the promotions of respondent Nos. 3 and 4 as Assistant Professor made vide Government Order No. 197 HME of 2002 dated 19.02.2002. Once the very initial appointment of the respondents is held to be bad, as a consequence thereof, their promotion would also be void. But as already said since more than two decades have passed when the order impugned in SWP No. 2812 was passed, I am not inclined to disturb their status at this stage. Had the petition been taken up for disposal in the year, 2001 or 2002, the result, however, would have been different.
Taking into consideration all these aspects and the fact that the initial appointment of respondent Nos. 3 and 4 was through backdoor and not in consonance with law, I am of the view that they cannot be allowed to steal march over the petitioner who is directly recruited as Lecturer and, therefore, respondent Nos. 3 and 4 are liable to be shown junior to the petitioner. If that being the position, the petitioner would be entitled to promotion as Assistant Professor, w.e.f 28-09-2001 from which the respondent Nos. 3 and 4 have been promoted as Assistant Professors in terms of Government Order No. 197-HME of 2002 dated 19-02-2002.
This petition is disposed of by directing respondent No. 1 to treat the petitioner senior to respondent Nos. 3 and 4 in the cadre of Assistant Lecturer Gynaecology and Obstetrics borne on the Health and Medical Education Gazetted Services and treat her promotion in the cadre of Assistant Professor Gynaecology and Obstetrics w.e.f 28.09.2001, i.e, with effect from the date respondent Nos. 3 and 4 have been so promoted in terms of Government Order No. 197-HME of 2002 dated 19.02.2002. Needless to say that the petitioner would also be entitled to all consequential benefits including further promotions on the basis of her promotion as Assistant Professor, w.e.f from 28.09.2001.
Respondent No. 1 shall consider the case of the petitioner within a period of two months from the date a certified copy of this order is made available to him by the petitioner.