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| DB decides appeal with difference of views | | Set aside judgment of single judge quashing appointment of Dr. Jalal | | Early Times Reporter
Jammu | Dec 31
In a much publicized case of Dr. Sheikh Jalal- ud-Din's appointment as Director Sher-i- Kashmir Institute of Medical Sciences (SKIMS) Soura Srinagar, which was quashed by the Single Judge, the Division Bench has set aside the judgment and dismissed the writ petition of the respondent with the observation that the Bench did not find any illegality in the appointment of appellant Dr Jalal and allowed the appeals.
Dr. S Jalal and State of J&K & Ors, had filed an appeal in the Division Bench against the order which was decided by the Division Bench of the Jammu and Kashmir High Court. Srinagar Wing comprising Justice YP Nargotra and Justice Bashir A Krimani.
In his 32 page judgment written by Justice Nargotra, in which AAG AM Magray appeared for the state whereas Adv MY Bhat and Sr. Adv ZA Shah with Adv Vipin Gandotra appeared for the respondents, observed that from the selection record it transpires that the name of Dr. S Jalal was approved for appointment by the Chief Minister. According to the writ Court, the Chief Minister being the chairman of the governing body, which was appointing authority, could not have made the selection of a candidate for appointment without the approval of the Governing Body and since there was no such approval, the appointment of the said appellant is illegal. Justice Nargotra further observed that there is no manner of doubt that if the Chief Minister was to select a candidate for appointment in his capacity as chairman of the governing body, he could have done so only on the recommendation of the governing body and not otherwise, but in our opinion the writ Court in taking that view lost the site of the fact that Chief Minister had the dual capacity i.e Chairman of the governing body and that of the Chief Minister of the state. When the Government of J&K also was appointing authority, in the capacity of the Chief Minister of the State, he approved the name of Dr. S Jalal for appointment which was followed by the Government order dated July 11, 2005. It may be argued that the Government order for appointment Dr. S Jalal could not have validly being issued at the behest of Chief Minister alone without their being any consultation by him with the cabinet. The argument would be untenable, the Executive Power of the State u/s 26 of the State Constitution vested in the Governor and can be exercised by him either directly or through officers subordinate to him in accordance with the constitution section 35 provides that there shall be a council of ministers with Chief Minister at the head to aid and advise the Governor in exercise of his functions u/s 36.
Justice Nargotra further said that though it is not the case of the petitioner that Chief Minister by acting alone in the matter violated the rules of business, but assuming that under the rule of business framed by the Governor, the Chief Minister was required to consult the cabinet before the issuance of Government order for the appointment of appellant, whether such consultation would render the Government order invalid and referred the case of Canal Power House and said that being position in law, it cannot be allowed to be urged that the Government order issued for appointment of Dr. S Jalal was not a valid order for having been issued only on the approval of the Chief Minister. The writ court has also held that the Dr. S Jalal was ineligible for appointment as he did not possess five years experience in the field of hospital administration by observing that Mr. Magray would in this behalf submitted that the experience can be in even in medical education and that since the respondent has acted as Dean also, this should be taken as a sufficient experience. Justice Nargotra said that " I fear this cannot be accepted as the committee has itself rejected Dr. Gh Jeelani who had only one years administration experience as Principal GMC Srinagar but also had worked for 30 years including HOD/Surgery and has retired as Principal / Dean GMC Srinagar". The requirement of experience for the post as per the advertisement notice is extensive administrative experience of over five years in responsible capacity in the field of hospital administration of Medical Education. It is manifest that the experience envisaged is extensive administrative experience in responsible capacity either in the field of hospital administration or in the field of medical education. Undisputedly Dr. S Jalal possessed by years standing including Professor/ HOD/ as well as being the Director of the institute, therefore, he possessed the requisite experience in the medical education. Merely because he did not possess the experience in hospital administration alone would not rendered him ineligible. The finding of writ court on this aspect cannot be legally sustained. The selection committee was to make the selection of such candidate who is its opinion was most suitable for the post irrespective of the age, the age being not the necessary criterion for the selection. It was for appointing authority to consider the relaxation for appointment if the selected candidate happened to be of more 50 years of age. In the present case it is a fact that all the doctors in the panel submitted to the Government by the selection committee were more than 50 years of age and out of them Dr. S Jalal has been appointed. Therefore, relaxation of age in his favour is to be deemed despite the fact that there is no specific order for relaxation of age, more so, when there is no challenge to his appointment by other selected doctors of the panel. For the reasons given above do not find any illegality in the selection and appointment of Dr. S Jalal, therefore allowed the appeals, set-aside the impugned judgment and dismissed the petition of the petitioner/ respondent. The stop-gap arrangement, if any, made during the pendency of these appeals shall be terminated forthwith. JNF |
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