JAVED IQBAL Vs. STATE OF J&K

JUDGEMENT

(1.) THE case of the petitioners is that they have been appointed as Medical Assistants on stop -gap basis by the Chief Medical Officer, Poonch against the clear vacancies and as such are entitled to regularisation. Besides, seeking regularisation, they have also challenged the selection of respondents No.6 to 10 on the ground that interview was an eyewash to accommodate their favourites.

(2.) A perusal of the photostat copies of the appointment orders issued in favour of the petitioners indicates that they were appointed between 1992 and 1994 as Medical Assistants on stop -gap basis each time for a period of 30 days. One of the petitioners namely, Shabir Hussain was appointed for 30 days even in leave vacancy as per order dated 14.9.92, but only for 30 days. Similarly, petitioner Javed Iqbal was also appointed on leave chance, but again for 30 days only. It appears the Chief Medical Officer was aware of the fact that he was not competent to make such appointments because under rule -14 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, such appointments could be made only in accordance with ruie -14 after obtaining the approval of Chief Minister in coordination which is possible only if the requirements of said rule are satisfied. The orders indicate that Chief Medical Officer had not even informed the Director, Health Services for making such appointment muchless his approval. These appointments are thus void -ab -initio creating no right in the petitioners. So the appointments of petitioners were not covered under any rules and therefore, the question for regularisation does not arise.

(3.) HOWEVER , it is the admitted case of the petitioners that respondents No.6to 10 have been selected by the Service Selection Board constituted under the J&K Subordinate Service Recruitment Rules 1992 issued vide notification SRO 194 dated 18.8.92, the body constituted for making such selections. It is admitted that the post of Medical Assistant carrying pay scale of Rs.950 -1500 was to be filled only after the selection is made in accordance with SRO 194/92. Respondents No.6 to 10 have admittedly been selected by the Service Selection Board. It is admitted by the petitioners that they also appeared in the interview but were not selected. Having appeared in the interview they are estopped from challenging selection in view of the law laid down in case Madan Lal Vs. State of J&K (AIR 1995 SC 1088) holding that: - "In the case of Om Parkash Shukla Vs. Akhilesh Kumar Shukla, (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination the High Court should not have granted any relief to such a petitioner. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view of that in this petition we cannot sit as a court of appeal and try to assess the relative merit of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better."