AKHTAR JAN NAQEEB Vs. STATE OF J&K

JUDGEMENT

(1.) AN advertisement was issued by Sher -I -Kashmir Institute of Medical Sciences, Soura, Srinagar inviting applications for appointments of i) Professor, ii) Associate Professor, iii) Assistant Professor, and iv) Lecturer in different Faculties vide Advertisement Notice No. 11 of December 16, 1963, last date for the receipt of application was February 28, 1984, A copy of the said Notification is annexed with the writ petition as Annexure -P -2. In the present writ petition, we are concerned with the post of Lecturer in Faculty of Anesthesiology in the Sheri Kashmir Institute of Medical Sciences (hereinafter called the Institute)

(2.) THE petitioner obtained her Masters Degree (M.D.) in Anesthesiology from Post Graduate Institute of Medical Sciences, Chandigarh in December. 1981 and was appointed on ad -hoc basis as Senior Resident in the said Department of the Institute vide order No 236/MS of 1981 dared Dec. 21, 1981 and joined her services on January 1, 1986, since then she is working on the said post. It is further stated that to her credit petitioner possess practical experience of working in Government Children Hospital, Srinagar, Lal Ded Hospital, Srinagar, Post Graduate Institute of Medical Sciences, Chandigarh, and all India Institute of Medical Sciences, New Delhi. The grievance of the petitioner in this writ petition under Section 103 of the State Constitution read with Article 226 of the Constitution of India is against the appointment of respondents 8, 9, 10 and 11 issued vide Order No. 87 -IMS of 184 dated June 16, 1984 with multiple prayer for a writ of Mandamus, against Respondents 1 to 7 to consider the case of the petitioner for promotion to the post of Lecturer in the Department of Anesthesiology with effect from June 16, 1984 and a Writ of Quo -warranto against the appointment of Respondent No. 11 promoting him on the said post. The order impugned is annexed as Annexure P -3 to quash for which a writ of Certiorari is prayed. On a bare reading of the writ petition, the main grievance of the petitioner is against respondent No. 11, who has been alleged not even junior to the petitioner, but lacking in the minimum period of two years, which was an essential requirement of the Advertisement Notice. The writ petition is contested and a counter affidavit is filed only by Dr. B.K. Anand, Respondent No. 2 -Director of the Institute, in which the facts regarding qualifications of the petitioner and her appointment in the Institute are not disputed and even the contents of Advertisement Notice are also not denied. About Respondent No. 11, it has been contended that the requirement of two years experience after post -graduation can be relaxed by the Governing Body, who is empowered to do so on the recommendation of the Selection Committee. The Selection Committee recommended Respondent 8, 9, 10 and 11 to he posted to the Faculty of Lecturers in the subject on the basis of qualification, experience, merit and overall performance of the said candidates at the Interview. It is further stated that the Institute has its own Recruitment criteria, under which the relevant experience could be relaxed by the Governing, Body on the recommendation of Apical Selection Committee in respect of the candidates of outstanding merit. It is not disputed that the petitioner had IV position on the basis of merit as a Senior Resident vide Government order No. 184 -IMS of 1987, dt. July 26, 1982 but at the same time it is disputed that the seniority alone is not a consideration for a post to be filled by open selection It is also stated that the petitioner was to compete for the post in open competition on the basis their is no question of her super session, as the post is not aâ„¢ promotion post and in selection since she was not selected for the post in question she has no right in the present writ petition to claim any relief. A rejoinder affidavit was also filed on behalf of the petitioner by her father. Reiterating the stand taken by the petitioner that there is no provision for relaxation of the minimum experience in the Advertisement Notice and it was represented that only those candidates fulfilling the essential requirement shall be considered on the basis of which the petitioner and all others acted and therefore, now the respondents can not claim relaxation of essential requirement prescribed in the Advertisement Notice. It is on the above said premises that the petition is to be considered and disposed of.

(3.) LEARNED Counsel for the petitioner strenuously argued referring to the Advertisement Notice that the, Essential Requirements for consideration on the post in question are enumerated as follows: - Post -graduate/Post -Doctorial Degree in the respective discipline with the following Teaching/Research/other relevant experience after post -graduation. Professor -12 years Associate Professor -8 years Assistant Professor -4 years Lecturer. - 2 years NOTE: - 1. CANDIDATES FULFILLING ESSENTIAL REQUIREMENTS ONLY SHALL BE CONSIDERED." Concentrating has arguments only with respect to Respondent No. 11, learned counsel pointed out that the experience of two years after post -graduation was one of the Essential Requirement for the relaxation of which there is no whisper in the Advertisement Notice. There is nothing Selection Committee was in a position to relax the essential requirement of minimum experience against the notice. It is also not disputed that the petitioner fulfilled all the conditions and the essential requirement of Advertisement Notice as against which respondent No 11 completed its Masters Degree on July 21, 1982 as is apparent from his Provisional Certificate a copy of which is annexed with the petition as Annexure P -I. In accordance with which he did not possess the essential requirement of two years experience even on the date of the interview, i. e, May 12. 1982, what to talk on the last date of application, which was notified as February 25. as such on that simple ground he was liable to be eliminated in view of Note -I of the Advertisement Notice (Annexure P -2) as he was not eligible for consideration. It is also submitted that respondents 1 to 7, in view of the representations made by them in the Advertisement were not in a position to relax the essential requirement having done so in the case of Respondent No 11, the selection/appointment of Respondent No. 11. is liable to be struck down being arbitrary, illegal against Notification, irrational and un -reasonable, which is also violative of the rights of the petitioner to be selected and appointed on the said post on elimination of Respondent No, 11. Strong reliance is placed on the above principle by learned counsel for the petitioner on AIR. 1979 S.C. 1628, the famous case of Ramana V/s International Air Port Authority of India. The following extract is relevant from paragraph -12 of the aforesaid judgment for the purposes of the present case : It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licenses or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power of discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licenses etc, must be confined and structured by rational, relevant and non -discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, un -reasonable and discriminatory." Learned counsel for the respondents in reply tried to meet the said argument by justifying the selection of Respondent No. 11 on the ground that under the rules of All India Medical Council for the selection of the post of Lecturers, the essential requirement of two years experience is not provided. Moreover, in the instant case since respondent No. 11 was found by the Selection committee of holding better merits and extraordinary ability the requirement of experience of two years was relaxed by the Apical Selection Committee competent to do so under the rules of the Institute and thus the rejection of the petitioner on merits does not entitle her to attack the selection merely on the said ground, as the same is neither irrational, arbitrary or discriminatory in any manner. The respondents were asked to place before the court the proceedings of the Selection Committee and of the relevant record for the scrutiny. In compliance whereof the record was placed by the respondents before the court.