Early Times Report
JAMMU, Aug 13: The High Court of Jammu & Kashmir and Ladakh has upheld the Central Administrative Tribunal's (CAT) decision to set aside the Government order assigning Dr Mushtaq Ahmad Rather additional charge as Director, Family Welfare, MCH & Immunization, J&K, ruling that the posting was in violation of cadre eligibility rules.
A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar dismissed in limine Dr Rather's writ petition, observing that he belongs to the J&K Medical (Gazetted) Service and is not part of the feeder cadre under the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013.
The Division Bench underlined that the post of Director, Family Welfare can be filled only from Class-II Categories "A" and "B" of the Health and Family Welfare Service through promotion or direct recruitment, and there is no provision for transfer from another service.
Under the 2013 Rules, the post of Director, Family Welfare, is to be filled from within the Health & Family Welfare (Gazetted) Service, either by direct recruitment or promotion from designated "feeding cadres" in a prescribed ratio. Appointment by transfer from another service is not recognised under the rules.
Dr. Rather belongs to the J&K Medical (Gazetted) Service, a separate cadre, and was holding the post of Director, Coordination, New Medical Colleges at the time of his additional charge appointment.
The Bench noted that the Government's decision to bring in an officer from outside the service cadre, overlooking in-service officers, could not be sustained.
The petition was argued by Jahangir Iqbal Ganai, Senior Advocate, with Ahtsham Hussain, Advocate for Dr Rather. Sunil Sethi, Senior Advocate, with Kunal Saini, Advocate appeared for respondent Dr Poonam Sethi, while Raman Sharma, Additional Advocate General represented the UT Government. The dispute arose after the Government, through Order No. 893-JK(HME) of 2024 dated December 23, 2024, gave Dr Rather additional charge of the post. Dr Poonam Sethi, then Deputy Director (Schemes) in the Health Department, challenged the move before the CAT, which on March 26, 2025, quashed the order and directed that the charge be given to the senior-most eligible officer within the cadre.
The Government defended its choice citing Dr Rather's previous stints as Director Health Services Kashmir, Director AIDS Control Society, and Director Coordination of New Medical Colleges. However, the Bench said that "administrative convenience cannot override statutory provisions" and criticised the Health Department for failing to convene timely Departmental Promotion Committee meetings, leading to a shortage of eligible officers.
In a significant observation, the Division Bench held that even an ineligible officer within the cadre can challenge the appointment of another ineligible outsider if the decision appears arbitrary or shows favouritism.
"When the Government has to pick an ineligible person to manage the post, it should prefer one from within the service rather than importing from a different service," the Bench remarked.
The petition was accordingly dismissed.
(JNF) |
