JAVED CHOWDHARY Vs. STATE OF JAMMU & KASHMIR

JUDGEMENT

(1.) This intra court Appeal is directed against the judgement of the Writ Court dtd. 27/10/2017, passed in SWP no.894/2017, titled Javaid Choudhary v. State of J&K and others, whereby the challenge of the appellant to the Cabinet Decision dtd. 28/4/2017 and consequential Government Order dtd. 8/5/2017, has been rejected by the Writ Court.

(2.) The brief facts leading to the filing of this Appeal and as projected by the appellant in the writ petition are that in the year 2013 the respondents initiated the process to fill up the post of the Principal, Government Medical College (GMC), Srinagar, on regular basis. As per the Note prepared by the Department of Health and Medical Education (H&ME), for placement before the Establishment-cum-Selection Committee, the appellant was figuring at serial no.2, amongst the eligible candidates. It is stated that the respondents ignored the claim of the appellant and decided to re-employ Dr Rafiq Ahmad Pampori, after his retirement on 28/2/2014, for a period of one year. This was done by the respondents vide Government Order no.122-HME of 2014 dtd. 25/2/2014. Dr. Rafiq Ahmad Pampori, however, tendered resignation before the date of expiration of his extension and in his place Dr. Qaiser Ahmad Koul, who was figuring at serial no.3 of the Eligibility List, was picked up and made incharge Principal, vide Government Order no.814-HME of 2015 dtd. 19/12/2015. The petitioner claims that he assailed the appointment of Dr Qaiser Ahmad Koul as incharge Principal, GMC, Srinagar in this Court and succeeded, but the respondents permitted Dr Qaiser Ahmad Koul to continue on the arrangement. It was only on 8/5/2017, when respondent no.6 came to be appointed as the Principal on regular basis, Dr Qaiser Ahmad Koul gave way. It is submitted that with a view to fill up the post of the Principal, GMC, on regular basis, a memorandum was prepared by the Health and Medical Education Department for submission to the Government. It is stated that as is evident from the memorandum, there was a Panel of five senior most Professors falling in the zone of consideration, which was considered by the Establishment-cum-Selection Committee. The appellant was senior most of all, whereas respondent no.6 was at the bottom. The Committee assessed the service records of all the Professors in the zone of consideration and on the basis of assessment of their service record, performance, comparative merit as reflected in their Annual Performance Reports (APRs) and other eligibilities, graded them in the order and ultimately recommended the appointment of the appellant as Principal, GMC, Srinagar. The appellant has also placed on record of the writ petition the minutes of meeting of the Establishment-cum-Selection Committee. It is alleged that the Cabinet, acting arbitrarily and in most perfunctory manner, picked up respondent no.6 and approved her for appointment as Principal, GMC, Srinagar. The decision in this regard was taken by the Cabinet on 28/4/2017 and in pursuance thereto respondent no.1 vide Government Order no.252-HME of 2017 dtd. 8/5/2017, appointed respondent no.6 as Principal, GMC, Srinagar.

(3.) Aggrieved, the appellant, claiming to be senior most Professor and a candidate recommended by the Establishment-cum-Selection Committee on evaluating the overall merit, assailed the Cabinet Decision no.50/04/2017 dtd. 28/4/2017 as well as Government Order no.252-HME of 2017 dtd. 8/5/2017 in SWP no.894/2017. The order impugned in the writ petition was assailed by the appellant primarily on the ground that the Cabinet Decision impugned and the consequential government Order issued for appointment of respondent no.6, was illegal, arbitrary and violative of Article 14 and 16 of the Constitution. It was urged before the Writ Court that once the Establishment-cum-Selection Committee had recommended the name of the appellant on the basis of his overall merit and suitability, the Cabinet could not have taken a contrary decision and that too without recording any reason. It was asserted that once the Committee was constituted to evaluate the merit and to make the recommendations of a suitable candidate after evaluating the merit and suitability of all eligible candidates falling in the zone of consideration, the Cabinet ought to have given respect to the aforesaid recommendations and even if it had to differ, it must have only been done by recording the reasons.