K N PATEL Vs. V A SATHE

JUDGEMENT

(1.) Heard the learned advocates.

(2.) The petitioners in these two petitions preferred under Article 226 of the Constitution of India are the Doctors in Class-I Service of the Government of Gujarat. The petitioners challenge the appointment of the concerned respondent no.1-IAS Officers as Commissioner of Health, Medical Services & Medical Education being contrary to the recruitment rules. The petitioners seek writ of quo warranto against the said respondents. By Government Notification dated 4th July, 2002 Shri V.A Sathe, an IAS Officer, the respondent no. 1 in Special Civil Application No. 15559 of 2003 was appointed as Commissioner of Health, Medical Services & Medical Education. The said appointment has been challenged in Special Civil Application No. 15559 of 2003. Pending the said petition, by Notification dated 28th December, 2003, the said Shri Sathe was replaced by Shri Amarjit Singh, an IAS Officer; the respondent no. 1 in Special Civil Application No. 174 of 2004. Feeling aggrieved, the concerned petitioners have preferred Special Civil Application No. 174 of 2004 and has prayed for a writ of quo warranto.

(3.) Learned advocate Mr. Upadhyay has submitted that by Government Resolution dated 20th December, 1988 the erstwhile post of Director-Health, Medical Services & Medical Education was redesignated as Commissioner, Health, Medical Services & Medical Education [hereinafter referred to as, "the Commissioner"]. The appointment to the post of Director was and now to the post of Commissioner is governed by the Director of Health, Medical Services & Medical Education [Recruitment] Rules, 1984 [hereinafter referred to as, "the Rules of 1984"]. The Rules of 1984 has been made by the Governor of Gujarat in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. The Rules of 1984 is, therefore, statutory in nature. Mr. Upadhyay has submitted that the Rules of 1984 provides for appointment to the post of Commissioner by transfer or by promotion or by direct selection. In any case, the candidate concerned is required to possess a Post Graduate Degree in any branch of Medical Education. Hence, a medical person alone can be appointed to the post of Commissioner. The State Government has, by impugned Notifications, appointed IAS Officers who admittedly do not possess the required medical qualification or experience. The said two respondents, therefore, have no right or authority to occupy the post of the Commissioner. He has further submitted that the State Government has acted smart and has, pending the Special Civil Application No. 15559 of 2003, appointed Shri Amarjit Singh in place of Shri V.A Sathe so that the said Special Civil Application No. 15559 of 2003 becomes infructuous. The State Government has thus tried to overreach the process of the Court. In support of his contention, Mr. Upadhyay has relied upon the judgment of this Court in the matter of K.D Vohra v. Kamleshbhai Gobarbhai Patel [2003 (2) GLR 1343].