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Judgment
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.",
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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.,,,,