S JALAL (PROF ) Vs. STATE OF J&K

JUDGEMENT

(1.) These appeals have been placed before me in terms of Rule 36 of the J&K High Court Rules, 1999 since the two learned Judges, constituting the Division Bench, are equally divided on certain points raised in these appeals as well as on their findings and ultimate conclusion. Hence, as per Rule 36(2) of the Rules such points have to be decided according to the opinion of the majority (if any) of the Judges who had heard the case. When the matter came up for hearing before me, it was pointed out by Mr. Z. A. Shah, senior counsel appearing for appellant in LPA no.88/2007, that there was no due compliance of Rule 36(2) of the Rules, since the two learned Judges had not stated the points upon which they differed and hence the case should have gone back to the Division Bench for stating the points of difference between them. Learned counsel on either side, however, submitted that they wanted this Court to hear the matter finally and decide all the issues raised, rather than sending it back to the Division Bench for proper compliance with Rule 36(2). On consent of parties, I proceeded to hear the matter on various issues raised by the parties before the Division Bench as well as before me and also on the points on which learned Judges differed.

(2.) THE point in controversy is with regard to the appointment to the post of Director, Sher -i -Kashmir Institute of Medical Sciences, Soura, Srinagar (for short SKIMS). The post of Director is shown as Class (A) Category I post included in Schedule II of the SKIMS (Gazetted) Recruitment Rules, 1978. Post of Director is a selection post. On August 24, 2003, the Government had decided to advertise the post of Director, SKIMS at national level giving full details regarding recruitment, period of appointment, qualification and experience and also other conditions of appointment. The Government, vide order no.946 -HME of 2003 dated September 1, 2003, constituted a selection committee for recommending a suitable candidate for the post of Director. Post was advertised vide advertisement notice dated December 6, 2004. Notice was published in national and local newspapers. Special Secretary and Additional Secretary to Government, Health and Medical Education Department, was assigned the job of scrutinizing the applications received. Government, later, vide order no.50 -HME of 2005 dated February 4, 2005, reconstituted the selection committee. On March 4, 2005, Special Secretary to Government, Health and Medical Education Department, forwarded a detailed comparative statement of bio -data dealing with educational qualification, publications, experience etc. of the candidates for perusal of the Selection Committee. Selection Committee then met on May 31, 2005. Notice dated June 16, 2005 was issued to the eligible candidates and they were asked to appear for an interaction with the Selection Committee on June 24, 2005. Out of eleven, ten candidates appeared for an interaction with the members of the Selection Committee. Selection Committee then prepared a panel of three candidates in the order of merit and suitability. Government from the panel appointed Dr. S. Jalal as Director of SKIMS vide Government order no.802 -GAD of 2005 dated July 11, 2005.

(3.) DR . Muhammad Ashraf Bhat, whose name did not figure in the select list / panel, approached this Court and filed writ petition, SWP no.1022/2005, seeking a writ of certiorari to quash the Government order dated July 11, 2005 appointing Dr. S. Jalal as the Director and also questioned the criteria applied for the selection and contended that the Governing Body alone was authorized to make appointment and was given the power of relaxation and not the State Government. Petitioner also sought for a direction to appoint him on the post of Director. A learned Single Judge of this Court allowed the writ petition on April 18, 2007 holding that appointment of Dr. S. Jalal as Director, SKIMS, was not in accordance with rules and directed the State Government to make fresh selection. Since the 3rd respondent was held ineligible to hold the post, being over -aged, the learned Single Judge directed the State Government to place an eligible candidate as Director of the Institute till proper selection is made. The Government in pursuance to the order of the learned Judge issued an order dated May 6, 2007 placing one Dr. Abdul Hamid Zargar, who was shown as figuring in the panel submitted by the Selection Committee, as Director of the Institute. State Government also noticed in that order that as per Note (II) of Schedule II of the Recruitment Rules, 1998 the Governing Body can only relax the age limit on the recommendation of the Selection Committee. Government, however, in implementation of the judgment, passed the order relaxing the age limit of Dr. Zargar and placed him in charge of the Director, holding that the decision would be placed before the Governing Body of the Institute for their confirmation and approval to the relaxation of the age limit. Further, it was also ordered that the placement of Dr. Zargar would be subject to the result of the letters patent appeals. Dr. Zargar, accordingly, took charge as Director on May 7, 2007.