ORDER
Muzaffar Hussain Attar, J.
1. The Government order No. 121-HME (GR) of 2008 dated 17th Oct. 2008 is called in question in this writ petition. The said Govt. order is reproduced as under:
Govt. of Jammu and Kashmir Health and Medical Education Department, Civil Secretariat, Srinagar
Sub : Nomination of candidates for Dawasaz training in ISM department.
Government order No. 121-HME (GR) of 2008
Dated 17-10-2008.
Whereas, vide Director Indian System of Medicine vide letter No. DISM/DS/Trings/3036-37 dated 29-2-2008 communicated that there will be a requirement of 500 Dawasaz in various Health institutions of ISM in the near future under National Rural Health Mission and desired that formal Advertisement Notice be issued for inviting applications from eligible candidates, and
Whereas, vide letter No. HD/51/ISM/2008 dated 27-6-2008 a list of 994 candidates was forwarded to Director ISM for further necessary action as per the directions of the then Hon'ble Minister for Health and Medical Education, and
Whereas, subsequently, vide letter No. HD/51/ISM/2008 dated 10-7-2008, the aforesaid list was kept withheld till the issue was re-examined by the Competent Authority, and
Whereas, the issue has been examined and it was found that there was no sanctioned intake for Dawasaz training course and that there were no norms/guidelines prescribed for such nominations, and
Whereas, in view of the above it was found that the list which had been forwarded to Director Indian System of Medicine was not based on any approved norms/guidelines.
Now, therefore, letter No. HD/51/ISM/2008 dated 27-6-2008 forwarding therewith the list of 994 candidates for Dawasaz training is hereby withdrawn and the said list is accordingly cancelled.
By order of the Government of Jammu and Kashmir
Sd/-
Commissioner/Secretary to Government,
Health and Medical Education Department
2. The facts which lead to the passing of the said order are partly given in the writ petition, and in the objections filed by respondents to the maintainability of writ petition.
3. The petitioners have claimed in the writ petition that respondent No. 2 sent communication No. DISM/Trings/3036-37 dated 29-2-2008 informing therein that there will be requirement of 500 Dawasaz in various Health Institution of ISM in the near future. The petitioners who belong to different Districts of State of Jammu and Kashmir claim to have applied for undergoing Dawasaz training course in Indian System of Medicine J & K, in their respective districts as they possessed the eligibility of 10th which according to petitioners is qualification required for undergoing the said Dawasaz Course. The case of the petitioners is based on the plea that they were nominated for undergoing the said training course by Minister of Health and Medical Education Department. The further case of the petitioners is that respondent No. 2 vide his No. HD/51/ISM/2008 dated 27-6-2008 forwarded the list of persons who were supposed to undergo Dawasaz Training course in ISM. Copy of communication has been placed on record as annexure-A. The record of the writ petition reveals that only communication has been placed on writ record and the enclosure (list of 994 candidates) has not been placed on the writ record. The further case of the petitioners is that respondent No. 2 published selection list of candidates for undergoing Dawasaz training course and the said notification was published in daily Srinagar Times on 9-7-2008 and Daily Excelsior on 10-7-2008. Copies of the notifications have been placed on record as annexures B and C respectively. The petitioners claim to figure in the said list. The further case of the petitioners is that despite publication of the said notification in the newspapers, classes for imparting Dawasaz training course in the Indian System of Medicines were not started. The petitioners claim to have been selected/nominated in terms of annexures A and B, for undergoing Dawasaz training course. The petitioners filed OWP No. 736/2008 on 24-9-08 before this Court praying therein that a direction be issued to respondents to implement the order/list of nominated candidates. It is alleged that in order to render the petition infructuous, respondents on 17th Oct. 2008 issued the order impugned in this writ petition. The petitioners are thus aggrieved of the same and have challenged the order impugned inter alia on the ground that same has been issued in mala fide and illegal exercise of power and without following the due procedure and without complying with principles of natural justice. It is further stated that the ground stated in the impugned order for withdrawal of the communication and cancellation of list, is bad as because the records pertaining to the said nomination have not been considered by the respondents. The further case of the petitioners is that there is no valid criteria provided, and selection has been made from decades on the basis of nomination. The petitioners claims were scrutinized and after finding that they satisfied the requirements they were ordered to be deputed for undergoing Dawasaz training course. The petitioners further claim is that they prepared themselves for undergoing the training course and had thus entertained legitimate expectations and respondents on the Doctrine of Promissory Estoppel were estopped from issuing the impugned order. Reliance in this behalf is placed on a judgment titled Southern Industries Co. Ltd. v. Electricity Inspectors ETIO and Ors. reported in : 2007 (5) SCC 447 : AIR 2007 SC 1984. Reference is also made to judgment passed by this Court in case titled Gulzar Ahmed Matkoo and Ors. v. State and Ors. SLJ 2006 (II) 656 : AIR 2007 (NOC) 860.
4. The respondents in their objections have stated that in terms of the note submitted by respondent No. 2 dated 28-2-08 it was proposed to impart training to Dawasaz (now pharmacists) after the criteria/guidelines are issued and sanction is also accorded about the intake capacity by the Government. The proposed criteria has been referred to in the objections and is reproduced as under:
A. Eligibility. The candidate shall
a - have passed the 10+2 examination with science or above from recognized Board of Examinations.
b - Age not less 17 years and not more than 35 years as on first day of January of the year in which the advertisement for admission for training course is issued.
B - Application Form
1 - The application form for admission to Dawasaz shall be same as prescribed for AMT School Jammu/Srinagar.
2-i- Fee Rs. 100/- per application
ii- Two passport size photograph duly attested by Gazetted Officer should be attached with the application form.
iii-No stipend etc. shall be paid to the selected candidates during the training except as provided under rules.
C- Intake capacity.
Discipline Kashmir Div. Jammu Div.Dawasaz 200 200Selection of candidates for undergoing Dawasaz (Pharmacist) in AMT School Jammu/Srinagar shall be made by the following Selection Committee in terms of SRO 294 on the basis of strictly on academic merit of 10+2 examination with science.
1- Director ISM Department Chairman2- A-Grade Specialist/B-GradeSpecialist Unani/Ayur (as the case may be) Member3- Representative of Adm Department Member Reservationsa- Reservations of 20% of total seats sanctioned for Dawasaz (Pharmacist) training course for nomination by the Hon'ble Minister for Health and Medical Education shall be made from amongst eligible candidates possessing minimum qualification of 10+2 belonging to socially/economically/educationally backward sections and individual hard hit cases.
b- The selection for nomination of Class IV in service candidates for Dawasaz training shall be made by the Director ISM department from amongst the candidates having minimum of three years service and possessing minimum 10+2 qualification with science. Seniority and suitability shall be kept in view while making selection.
c- The Director ISM shall distribute the candidates so selected/nominated for Dawasaz training in various ISM institutions/hospitals
d- The syllabus already in vogue in Directorate of ISM for one year Dawasaz (Pharmacist) training course shall be re-framed by Director ISM for two years course.
e- The examination of trainees shall be conducted as usual by the Divisional Examination Boards already existing in the Directorate of ISM.
5. The further case of the respondents is that immediately after publication of the list by Director ISM, the Chief Secretary received complaints regarding irregular nominations of about 1000 candidates for Dawasaz training course without following any procedure and without sanction of any intake capacity which complaint prompted the authorities to keep the nominations withheld till the matter was examined, and after examination of the matter it was found that the proposed nominations were not based on any valid criteria and were made in violation of the settled legal principles and accordingly the order impugned in the writ petition was passed.
6. An additional affidavit was filed by respondent No. 1 in pursuance to the order of this Court dated 26-2-2009 wherein respondent No. 1 was directed to provide information about norms/guide lines, if any, framed for making nomination for undergoing Dawasaz training course. In the said affidavit it is stated that no norms/guide lines have been sanctioned for undergoing the Dawasaz training course. It is further stated in the said affidavit that the recruitment rules governing method of recruitment for the post of Dawasaz have been sanctioned vide SRO-20 of 1992, the prescribed qualification for the post of Dawasaz is matric with Dawasaz training.
7. Heard learned Counsel for the parties. Considered the material and also record produced by the Ld. counsel for respondents.
8. The case of the petitioners is based on the assumption that they have been selected and nominated to undergo Dawasaz training course in terms of communication No. HD/51/ISM/2008 dated 27-6-2008 and the notification published in two daily newspapers. In order to ascertain as to whether the communication supra and the notification vested any legal right on the petitioners it becomes imperative to reproduce the said communication as under:
Government of Jammu and Kashmir Health and Medical Education Department.
The Director Indian System of Medicine,
Srinagar.
No. HD/51/ISM/2008 dated 27-6-2008
Sub : Nomination of candidates for Dawasaz training.
Sir,
The Hon'ble Minister for Heath and Medical Education Department has ordered nomination of 994 candidates (list enclosed duly signed by him) for Dawasaz training the Department of Indian System of Medicines which is enclosed herewith for favour of further necessary action at your end.
Yours faithfully,
sd/-
Under Secretary t6 Government
Health and Medical Education
Department.
9. The opening part of the notification annexure 'B' is also reproduced as under:
Directorate of Indian System of Medicine Govt. of Jammu and Kashmir, Srinagar.
NOTIFICATION
Ref. Administrative department letter No. HD/51/ISM/2008 dated 27-6-08
In pursuance of Health and Medical Education Department letter No. HD/51/ISM/2008 dated 27-6-08 the following candidates will deposit their certificates/testimonials in duplicate duly attested by Gazetted Officer to concerned Assistant District Medical Officers/Nodal officers of their respective districts within 21 days from the date of publication of the notice.
Mere production of certificate will not confer any right upon the candidates to claim nomination for Dawasaz training course as such will be subjected to further securitization by the department.
10. In democratic setup like ours Government which is repository of the trust of the people works for the benefit of the people in accordance with the settled norms, which norms have to satisfy the basic constitutional requirements. The State of J&K; has its constitution called the Constitution of J&K.; The Constitution of India also covers the State of J&K; so far as it is made applicable to the State. The Constitution of India as also the Constitution of J&K; provide for Cabinet system of Government in which Governor is the formal head of the State. The Governor exercise his powers and functions, conferred on him by or under the Constitution, with the aid and advise of the council of ministers save in spheres where Governor is required by or under the Constitution to exercise his functions in his discretion. The satisfaction of the Governor in the exercise of powers or functions required by Constitution is not the personal satisfaction of the Governor but is the satisfaction in the Constitutional sense under the Cabinet system of the Government of the Council of Ministers headed by Chief Minister. The executive is to act subject to control of the legislature. The executive power of the State is vested in the Governor as head of the Executive. The real executive power however, is vested in the Council of ministers of Cabinet which is headed by Chief Minister as its head to aid and advise the Governor in the exercise of its functions. Referred to : AIR 1974 SC 292. The Hon'ble Supreme Court in R.K. Jain v. U.O.I. reported in : (1993) V.4 SCC 120 : AIR 1993 SC 1769 has held that the Cabinet system is a Constitutional mechanism to ensure that before important decisions are taken, many sides of the questions are weighed and considered.
11. Section 35 of the Constitution of J&K;, provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions.
12. Section 36 of the Constitution of J&K;, provides that the Chief Minister shall be appointed by Governor and the other Ministers shall be appointed by the Governor on the advice of Chief Minister.
13. Section 37 of the Constitution of J&K;, provides that Council of Ministers shall be collectively responsible to the Legislative Assembly.
14. Section 43 of the Constitution of J&K;, provides that the Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business.
15. Section 45 of the Constitution provides that all executive action of the Government shall be expressed to be taken in the name of the Governor or of the Government of Jammu and Kashmir.
16. Sub-section (2) of Section 45 provides that orders and other instruments made and executed in the name of Governor or of the Government of J&K; shall be authenticated in such manner as may be specified in the rules to be made by the Governor etc.
17. The Hon'ble Supreme Court in case titled Bhuri Nath and Ors. appellant v. State of J&K; and Orsi respondents reported in : AIR 1997 SC 1711, while dealing with the exercise of powers in a Cabinet system of Government, explained constitutional' mechanism as devised for convenient transaction of business of the executive power of the State. Para 20 is reproduced as under:
20. The constitutional mechanism, i.e. Cabinet system of Government is devised for convenient transaction of business of the executive power of the State vests in the Governor, he does not, unless Constitution expressly conferred on him, personally take the decision. The decision are taken according to business rules at different levels and ultimately the decision rests with the authority specified in the name of Governor. In substance and the reality, decisions are taken by the Council of Ministers headed by the Chief Minister or the Minister or Secretary as per business rules. But they are all expressed to be taken by the Council of Ministers in the name of the Governor and authenticated by an authorized officer. The Governor being the constitutional head of the State, unless he is required to perform the function under the Constitution in his individual discretion, the performance of the executive power, which is co-extensive with the legislative power, is with the aid and the advice of the Council of Ministers headed by the Chief Minister.
18. The record of the case reveals that the communication dated 27-6-08 was issued as recommendations were made by Ministers, MLAs/MLCs and party functionaries of almost of all political parties as also from a number of individuals in the State. (Note 18 of the record). The office note further reveals that some officer raised objections about the manner in which candidates were sought to be nominated and deputed for undergoing Dawasaz training course as no criterion had been fixed nor intake capacity was fixed. The officer had further stated in para (19) and (20) that criteria/norms having not been approved by the Government, it would not be proper for deputing the persons for undergoing Dawasaz training course Para (22) of the record is reproduced as under:
I have again discussed with HM (H&ME;) and was apprised about it. I told him that he cannot issue any G.O. as was done in case of (sic) for 20% authorized nomination. I also explained that it would be quashed in no time by any Court. But he is very much adamant that his order be implemented immediately. In view of his directions, we may only forward the HM (H&ME;) signed list to DISM. Let. him take orders from HM (H&ME;) directly as he has been doing and even issued transfer orders without competence.
19. So no Govt. order, as required by law, issued. The communication cannot be equated with Govt. order and will not thus confer any right on petitioners.
20. Para 23 of the record reveals that Chief Secretary received complaints regarding irregular nomination of about 1000 persons of Dawasaz, accordingly, after finding that the exercise under taken in directing the petitioners to undergo Dawasaz training course having been found to be illegal, the order impugned in the writ petition was issued.
21. In order to ascertain as to whether the petitioners are clothed with any right in law to maintain this petition, it becomes imperative to take notice of the communication dated 27-6-08. This communication provides that the Hon'ble Minister for Health and Medical Education Department has ordered nomination of 994 candidates for undergoing Dawasaz training course in the department of Indian System of Medicines. This communication reflects the wish of the Hon'ble Minister and in a Cabinet System of Government and above all in the State where Constitution is supreme law, all authorities, howsoever high, are governed by supreme law, cannot in individual capacity direct for whole sale nomination of persons for undergoing Dawasaz training course. Minister in Cabinet system of Government hold the office in trust and for all his actions is accountable to the Legislative Assembly. A Minister has been held to be public servant and as such cannot be above law and in his executive functions he has to work in accordance with the laws and rules and not in accordance with his own wishes. Dawasaz training course makes a person eligible for seeking consideration for being selected/appointed as Dawasaz- Right to seek consideration for appointment/employment is a guaranteed constitutional right under Article 16 of the Constitution and on same reasoning it can be safely held that right to seek consideration for being nominated for undergoing a particular training course, in this case Dawasaz training course, which makes a candidate eligible for seeking consideration for appointment in Government service, is also a guaranteed right under Article 16 coupled with Article 21 of the Constitution. The Government in a democratic set up like ours while making such nominations in duty bound to inform all eligible candidates by a lawful mode to seek consideration for being nominated for undergoing Dawasaz training course. When one such mode is not followed the process undertaken for arriving at such decision is rendered unreasonable, arbitrary and discriminatory, thus, violative of Articles 14 and 16 of the Constitution.
22. Admittedly, in the present case no such exercise has been undertaken but the nominations as reflected in para 18 of the record has been made on the recommendations of Ministers/MLAs/MLCs and party functionaries of almost all political parties, such act on the face of it offends safeguards contained in the Constitution and such action cannot be sustained in law. The Government has rightly withdrawn the communication dated 27-6-08 and cancelled the proposed nomination list. Even otherwise in terms of the constitutional provisions referred to hereinabove and the business rules communication made by Under Secretary to Government cannot be said to be a Government order and said communication cannot be pressed into service to claim that it has clothed the petitioners with any right in law. Even the proposed nomination list annexure 'B' which has been published in the news papers specifically provide that mere production of certificates will not confer any right upon the candidates to claim nomination for Dawasaz training course, as such will be subjected to further scrutinizing by the department. The very expression used in the notification clearly demonstrates that the petitioners were never nominated to undergo Dawasaz training course but it was only a list published in the newspapers in view of the recommendations of the Minister concerned, complaints having been filed and rightly so, the Government in its wisdom has rightly cancelled and revoked the nomination/list and no fault can be found with the order impugned in this writ petition.
23. Ld. Counsel for petitioner has referred to the Southern Industries Co's case to suggest that on the basis of Doctrine of Legitimate Expectations and Doctrine of Promissory Estoppel the Government could not pass the order impugned in the writ petition. The facts in that case were materially different from the facts in the case in hand. In that case benefit was extended under a statute to entrepreneurs. Otherwise, also the Doctrine of Promissory Estoppel and Legitimate Expectations can be pressed into service where petitioners in pursuance of a valid and lawful order had changed their position to their detriment. In the present case the petitioners are seeking to derive benefit from not only illegal but an unconstitutional exercise of power. The Legitimate Expectations cannot be build on illegal exercise of power, nor Government can be bound on the Doctrine of Estoppel to give benefit which on the face of it is illegal. If such an interpretation in placed on the Doctrine of Promissory Estoppel and Doctrine of Legitimate Expectations then a chaotic situation will be created in the society. The edifice of society is build on rule of law which has positive traits. The Doctrine of Legitimate Expectations and Doctrine of Promissory Estoppel cannot be enforced for achieving negative goals. Looking from different angle, petitioners have been recommended by Ministers/MLAs/MLCs and other office bearers of political parties and were not brought on any selection list in pursuance of lawful selection process for deputing them to undergo Dawasaz training course. Thus are not entitled to any relief. The exercise undertaken as already held being bad in law and all other similarly situated persons having not been informed about the same would be violative of the guaranteed principles of fairness, reasonableness as also violative of principles of natural justice. Doctrine of Legitimate Expectations has been held to be complementary to natural justice by Hon'ble Supreme Court in case CSIR and Ors. v. Ramesh Chandra Agrawal and Anr. reported in : JT 2009 (1) SC 562 : 2009 AIR SCW 1848. The claim of petitioners on this score also fails. The 1d. Counsel for petitioner, however, referred to 'Matkoo's' case but the facts of that case are also different and the said judgment even negatives the contention of the petitioners.
24. For the above stated reasons, this writ petition is dismissed. The respondents, however, are directed to expeditiously frame and formulate the norms/procedure for making nominations for undergoing Dawasaz training course and select people in accordance with mandate of this judgment.
25. Disposed of.