Showket M. Chowdhary vs State of J.&K.

Alok Aradhe, J.—With the consent of the parties, the matter is taken up for hearing.

In this petition, the petitioner has assailed the validity of the order dated 19-04-2016 passed by Principal & Dean, Government Medical

College, Jammu, by which the petitioner has been attached in the Office of the Principal, Government Medical College, Jammu, pending enquiry.

The petitioner has also assailed the validity of the order dated 18-04-2016 passed by respondent-2, by which Endoscopy Machine of Super

Speciality Block has been ordered to be shifted to Government Medical College Hospital, Jammu. The petitioner inter alia also seeks quashment

of order dated 18-04-2016, by which the Committee was constituted for shifting of Endoscopy Machine from Super Speciality Hospital to

Government Medical College, Jammu. The petitioner also seeks a writ of mandamus commanding the respondents to shift the Endoscopy Machine

of Super Speciality block to Super Speciality Hospital, Government Medical College, Jammu.

Facts giving rise to the filing of the writ petition briefly stated are that in the year 2007, one post of Lecturer in Department of Medicine,

Government Medical College, Jammu was referred by respondent-1 to J&K Public Service Commission for selection. Accordingly, an

advertisement notification dated 04-07-2007 was issued. However, the post of Lecturer in the discipline of Medicine in Government Medical

College, Jammu under ST category was not advertised for a number of years. The petitioner thereupon filed SWP No. 1372/2007 in which the

challenge was made to advertisement dated 04-07-2007, in which a writ of mandamus was sought to issue fresh advertisement treating the

advertised vacancy of Lecturer as belonging to the ST category. The writ petition was decided by a Bench of this Court by order dated 12-12-

2007 and notification dated 04-07-2007 was quashed and the respondents were directed to issue fresh notification treating the vacancy of

Lecturer in Medicine as one belonging to ST category.

Thereafter, respondent-1 referred two posts of Lecturer in the discipline of Medicine, one each in RBA and SC category and advertisement

notification dated 31-12-2008 was issued by the J&K Public Service Commission. Since the aforesaid notification was contrary to the judgment

dated 12-12-2007, therefore, the petitioner filed a Contempt Petition before this Court. Thereupon, the respondent-1 requested the J&K Public

Service Commission to advertise one more post under the ST category and, accordingly, one post under the ST category was advertised. The

petitioner was appointed as Lecturer Medicine in Government Medical College, Jammu vide order dated 24-12-2009.

Thereafter, the petitioner filed writ petition, namely, SWP No. 1582/2011, in which the petitioner sought a writ of mandamus directing to treat

him as appointed w.e.f. 04-07-2007, that is the date when initially the vacancy under Open Merit category was advertised. In the aforesaid writ

petition, a Bench of this Court by an ad interim order dated 15-10-2012 directed the respondents to consider the case of the petitioner within a

period of four weeks. The case of the petitioner was rejected vide order dated 16-10-2012. Thereafter, the writ petition preferred by the

petitioner was finally decided vide judgment dated 10-05-2013 directing the respondents to consider the case of the petitioner afresh. State

Government thereupon vide order dated 26-06-2013 directed that the petitioner shall be deemed to be appointed as Lecturer in the discipline of

Medicine, Government Medical College, Jammu notionally w.e.f. 04-07-2007. The petitioner thereafter was placed as In-charge Assistant

Professor, Medicine in his own pay and grade vide order dated 22-07-2013 till such time the post was to be filled up on regular basis.

The aforesaid order dated 22-07-2013 was challenged by one Dr. Vijayant Singh Chandel through SWP No. 1613/2013, in which by an ad

interim order dated 16-08-2013, the order dated 22-07-2013 passed in favour of the petitioner was stayed. Being aggrieved, the petitioner

preferred an appeal, namely Letters Patent Appeal No. 147/2013, which was decided vide order dated 16-09-2013 and the appeal preferred by

the petitioner was allowed.

In pursuance of the decision taken by the Cabinet on 29-03-2010, a separate Department of Gastroenterology was created vide order 03-04-

2010. Minister for Medical Education directed the shifting of the Department of Gastroenterology in the newly constructed Block of Super

Speciality Hospital, Jammu. Thereafter, by order dated 25-03-2014, the Principal, Government Medical College, Jammu requested respondent-1

for issuance of necessary order for segregation of Gastroenterology, Hepatology and Human Nutrition from Medicine Department. The

respondent-1 thereupon granted sanction for establishment of a separate Department of Gastroenterology at Super Speciality Hospital, Jammu

vide order dated 23-04-2014 and the Principal, Government Medical College, Jammu was further directed to provide space and staff at Super

Speciality Hospital, Jammu to make Department of Gastroenterology fully functional. It is the case of the petitioner that the petitioner was

instrumental in getting the Endoscopy Machine installed in the Gastroenterology Department of the Super Speciality Hospital of Government

Medical College, Jammu. Thereafter, the Principal, Government Medical College, Jammu vide orders dated 08-07-2014, 23-08-2014 and 24-

10-2014 provided subordinate staff as junior Nurses and Multi-Purpose Health Workers to the Department of Gastroenterology in Super

Speciality Hospital, Jammu.

The State Government vide an order dated 22-04-2014 revoked the orders passed by the Principal, Government Medical College, Jammu.

Thereupon, the petitioner approached this Court by filing SWP No. 1216/2015 and an interim order was passed on 28-04-2015, by which the

status quo was directed to be maintained. Being aggrieved, the petitioner preferred a Letters Patent Appeal, namely, LPA bearing No. 40/2015

against the order dated 28-04-2015 and the Division Bench of this Court stayed the operation of the Government Order dated 22-04-2015.

However, it is the case of the petitioner that the petitioner was not allowed to work smoothly despite the order passed by the Division Bench. By

an order dated 25-06-2015, the staff working with the petitioner in Gastroenterology Department of Super Speciality Hospital, Jammu was

directed to report to Medical Superintendent, Government Medical College, Jammu and relieving order was passed. Thereafter, by an order dated

18-04-2016, a Committee of five Officers was constituted for shifting the Endoscopy Machine from Super Speciality Hospital, Jammu to

Government Medical College, Jammu. By another order dated 19th April, 2016, the petitioner was attached in the Office of Principal and Dean,

Government Medical College, Jammu, pending enquiry. In the aforesaid factual background, the petitioner has approached this Court seeking the

reliefs as stated supra.

Learned counsel for the petitioner submitted that the impugned order dated 19-04-2016 is ab initio void as the respondent-2 has no authority in

law to pass this order. It is further submitted that respondent-2 is neither the Disciplinary Authority nor the Appointing Authority of the petitioner

and, therefore, could not have passed the order. It is also submitted that petitioner has been rendered jobless and required to be given job

commensurate to his status. It is also urged that the impugned order suffers from vice of non-application of mind. It is further submitted that this fact

is evident from the impugned order, as copy of the impugned order dated 19-04-2016 has been endorsed to Secretary to Government, Health

and Medical Education Department, Civil Secretariat, Jammu for information and confirmation of the action taken. It is further submitted that the

petitioner is being victimized without there being any fault on his part. In support of his submissions, learned counsel for the petitioner has placed

reliance on the decisions of the Supreme Court in cases P.K. Chinnasamy v. Government of Tamil Nadu, AIR 1988 SC 78 and Ramesh

Chandra Tyagi v. Union of India, 1994 (2) SCC 416 and decisions of this Court in the cases of Gh. Mohd, Qazi & Ors. v. Managing

Director, J&K Tourism Development Corp., & Ors., 1989 SLJ 295 and Shah Mohd. v. Managing Director, 1995 KLJ 391. It is also

pointed out by the learned counsel for the petitioner while referring ground (vi) of the writ petition that respondent-2 is an In-charge Principal,

Government Medical College, Jammu and, therefore, even otherwise, he has no authority to pass the impugned order.

On the other hand, learned Additional Advocate General for the respondents, during the course of arguments, produced a copy of the order

dated 18-05-2016 and argued that the order dated 19-04-2016, by which the petitioner was attached in the Office of Principal, Government

Medical College, Jammu has already been ratified by the competent authority, namely, the State Government. It is further submitted that by the

aforesaid order, preliminary enquiry was directed against the petitioner. It is also submitted that there is no rule which prescribes that the order of

attachment has to be passed by the Head of the Department only. It is further submitted that there has been neither any violation of any legal or

statutory right of the petitioner and the petitioner cannot claim any right against shifting of Endoscopy Machine to Super Speciality Hospital, Jammu

from Government Medical College, Jammu. Learned Additional Advocate General has referred to the brief history of the case and also referred to

paragraphs 17, 21 and 22 to 25 of the reply. It is also urged by learned AAG that no rejoinder has been filed on behalf of the petitioner in reply to

the return.

By way of rejoinder reply, learned counsel for the petitioner has submitted that service of the petitioner is governed by Jammu and Kashmir

Medical Education (Gazetted) Services Recruitment Rules, 1979 and if the petitioner has committed any misconduct, action against him should

have been taken under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. It is further submitted that even if

the order, which initially lacks jurisdiction is ratified, the same has no sanctity in the eye of law. Reference has also been made to the compliance

report filed in Contempt Petition (LPA) No. 16/2016 and attention of this Court has been invited to R-2 (appended compliance report dated 04-

10-2016). It is further submitted that Additional Secretary to Government, Health & Medical Education Department has directed Principal,

Government Medical College, Jammu to make the Department of Gastroenterology, Super Speciality Hospital, Jammu functional and to ensure

availability of sufficient accommodation and necessary equipments.

I have considered the submission made by learned counsel for the parties and have perused the record.

The moot question which arises for consideration in the instant writ petition in the context of reliefs claimed by the petitioner is with regard to

the validity of the order dated 19-04-2016 passed by respondent-2, namely, Principal, Government Medical College, Jammu, A specific stand

taken by the petitioner in ground (iv) of the writ petition that the respondent-2 is holding the post of Principal, Government Medical College,

Jammu on In-charge basis, has not been denied by the respondents in their reply. It is also not in dispute that the respondent-2 is neither the

Appointing Authority nor the Disciplinary Authority of the petitioner. In the instant case, the order of attachment simpliciter has not been passed but

the same has been passed pending an enquiry. Thus, the impugned order dated 19-04-2016 has been passed by way of punitive measure by

respondent-2, which is evident from the averments made in the reply wherein it is stated that the petitioner had allegedly called a Press Conference

and had tried to stall and hamper the process of shifting of Endoscopy Machine. The fact remains that respondent-2 on the date of passing of the

order dated 19-04-2016 had no authority to pass the impugned order, and therefore the impugned order is ab initio void.

It is well settled in law that if an order is ab initio void, it cannot be cured by subsequent ratification. The order dated 19-04-2016 bears the

mark of invalidity on its forehead and is void, therefore, no legal sanctity can be attached to subsequent ratification. See State of Kerala v. M.K.

Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, (1996) 1 SCC 435 : (AIR 1996 SC 906) and Punjab University

v. V.N. Tripathi and another, (2001) 8 SCC 179 : (AIR 2001 SC 3672). In view of aforesaid enunciation of law by the Supreme Court, no

sanctity can be attached to the order dated 19-04-2016 passed by respondent-2. Accordingly, the same is quashed.

So far as the reliefs claimed by the petitioner with regard to shifting of Endoscopy Machine and quashment of order dated 18-04-2016 is

concerned, it would be profitable to refer to the averments made by the respondents in their reply. The respondents in their reply have stated that

in Government Medical College, Jammu, 250-300 procedures are performed on Endoscopy Machine per month, whereas in Super Speciality

Hospital, Jammu, only 50 procedures are performed per month. The aforesaid averment of fact has not been denied by the petitioner by filing

rejoinder. Therefore, the same has to be taken to be admitted in view of law laid down by the Supreme Court in the case Naseem Bano (Smt.)

v. State of U.P. and others, 1993 (Supp) (4) SCC 46 : (AIR 1993 SC 2592). Accordingly, the decision was taken to shift the Endoscopy

Machine to Government Medical College, Jammu. The petitioner neither has any statutory nor any legal right over the Endoscopy Machine, as the

petitioner is not owner of the Endoscopy Machine, in absence of any statutory right vested in favour of the petitioner, it cannot be said that there

has been infraction of the legal or statutory right which has accrued to the petitioner. Therefore, writ of mandamus prayed for by the petitioner with

regard to quashment of order dated 18-04-2016 concerning shifting of Endoscopy Machine to Super Speciality Hospital, Jammu, in the

considered opinion of this Court, cannot be granted to the petitioner, Needless to state that the respondents would be at liberty to proceed against

the petitioner with regard to alleged misconduct committed by the petitioner in accordance with law.

With the aforesaid directions, the writ petition is disposed of.

Order accordingly.