Z. A. SHAH Vs. SHAH AMIR

JUDGEMENT

(1.) Petitioners who have been appointed as Medical Officers in Health and Medical Education Department in terms of government order no. 49-HME of 2019 dtd. 14/1/2019, have filed the instant writ petition challenging Rule 8, 9 and 10 of SRO 202 dtd. 30/6/2015. It is prayed that the said rules may be declared as ultra vires the constitution, with a further prayer for certiorari quashing the government order no. 49-HME of 2019 dtd. 14/1/2019 in so far as it provides impugned conditions and probation for a period of five years and posting for the said period. The petitioners also seek a direction upon the respondents to fix the period of probation in the same manner as has been fixed for the Medical Officers appointed as per J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013 and their posting shall be regulated in tune with the mandate of these rules and other rules as are applicable to the appointments made under J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013 (hereafter referred to as Rules of 2013).

(2.) Petitioners have responded to notification of J&K Public Service Commission bearing no. 12-PSC (DR-P) of 2018 dtd. 15/10/2018 for selection against the post of Medical Officers. The notification stated that the candidate selected shall be governed by J&K Special Recruitment Rules issued vide SRO 202 of 2015 dtd. 30/6/2015. On completing the selection process, the petitioners have been selected and consequently appointed as Medical Officers. In terms of their recruitment, the petitioners have to join the respective places of posting by 4/2/2019. However, the petitioners have questioned the rules 8, 9, and 10 of SRO 202 of 2015 and their pay fixation and denial of increment, etc. citing that these rules are in contravention of the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013, and the Classification, Control and Appeal Rules and other rules with reference to governing their posting and probation.

(3.) Mr. Shah, learned senior counsel appearing the petitioners submits that the application of SRO 202 of 2015 has reference to governing the process and the mode of selection while as the appointment is made as per the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013. Mr. Shah, learned senior counsel, submits that the rules under challenge with reference to fixation of probation and posting are against the application of the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013, which is the basic service to which the petitioners belong to. He further states that by the application of the rules under challenge, the petitioners are treated differently though being a class similar to the Medical Officers belonging to J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013. He further states that the application of the rules 8, 9 and 10 and the denial of the pay scale and increments amounts to violation of Articles 14 and 16 of the constitution. While strengthening his argument with reference to the equity and the rules on the subject, Mr. Shah, learned senior counsel, further submits that the government while undertaking the exercise of posting of these Medical Officers has not applied the principle of "closer to residence" and has adopted an arbitrary method of posting, which for the purpose of illustration is demonstrated in the writ petition at page 34. It is submitted that the Health and Medical Education department while making posting of these Medical Officers has resorted to pick and choose policy by retaining some Medical Officers in their native districts while placing others at far off places like Kargil, etc.