Dr. Des Raj Bhagat Vs. State of J and K and ors. - Court Judgment

Excerpt:
- 1. the petitioner is an assistant surgeon working in the health department and so are respondents no. 5 and 6. principal government medical college, jammu, issued advertisement notice under no. gmc/estt/gd/109/6560 dated 31st january 2003 in the following terms for the tenure posting of assistant surgeons as registrars for a period of three years:-'applications on the prescribed form which can be had from this office on cash payment of rs. 10 (rupees ten only) are invited from in service doctors who have put in atleast two years service as assistant surgeon in j&k; health department for tenure posting as 'registrar for a period of three years in the pay scale of assistant surgeon (rs. 8000-13,500) which are vacant or likely to fall vacant in the following department:- 1. anesthesiology 2. dermatology 3. ent 4. medicine 5. surgery condition & eligibility 1. the applicant should be mbbs with postgraduate qualification in the discipline concerned i.e. specialty applied for the post. 2. no postgraduate doctor will be considered for appointment as registrar unless he/she has completed two years minimum active service as assistant surgeon in the health department after obtaining postgraduate degree. 3. those doctors who have already completed their tenure ship, as registrar in any discipline need not apply and their applications shall not be considered. however, this restriction shall be applicable in respect of such doctors who have not done their tenure ship in the discipline in which they have passed their post graduation. 4. those doctors who were earlier appointed as registrar but had left service before completing their tenure need not apply. 5. the application should be accompanied with an affidavit on the stamp of proper value duly attested by notary declaring that the applicant has not done registrar ship/senior residency earlier within and outside the j&k; state. 6. a passport size photograph should be pasted on the appropriate place in the application form. the candidates are advised to send their application forms through director, health services, jammu/srinagar. no advance copy shall be entertained. the application form should reach to the office of the undersigned on or before 22-02-2003 along with attested true copies of the following documents :- 1. physical active service/rural service certificate after post graduation issued by the director, health services, jammu/srinagar. 2. attempt certificate ist, iind, pre-final and final mbbs examination issued by the university concerned. 3. distinction/national scholarship duringmbbs/honour/medal/academic merit certificate. 4. house job certificate (senior/junior) issued by the principal concerned. 5. postgraduate degree/diploma certificate. 6. professional publications in a standard medical journal if any. 7. mbbs degree & international completion certificate. the selection of the candidate will be made in accordance with the terms prescribed by the government for the purpose and on the basis of combined academic merit and performance at the interview. no ta/da will be admissible on this account.' the petitioner and respondents no. 5 and 6 have applied through their applications for the said tenure posting. the selection process admittedly had not been completed as yet and no selection has been made.the petitioner through the medium of this petition, has challenged the selection process on two grounds, firstly, that eligibility criteria as set out in condition no. 2 of the advertisement notice is going to be changed by the respondents and if that is allowed to be done, it will be detrimental to the interest of the petitioner.the stand of the respondents is that challenge on this count at this stage cannot be allowed to be made by the petitioner as no decision in this regard has yet been taken nor any such relaxation or change in the criteria has been made by the respondents. in view of the stand taken by the respondents, the petitioner cannot be allowed to urge that eligibility criteria cannot be changed specially when he is himself admittedly not eligible as per the criteria set out in condition no. 2 of the advertisement notice and when selection process has not been completed.the second challenge laid by the petitioner is that reservation to schedule caste candidates has not been provided in the advertisement notice for the vacancies of registrars, which are going to be filled up through selection process. learned counsel for the petitioner submits that rule 10 of sro 126 of 1994, requires that 8% of the vacancies should be reserved for scheduled caste candidates and according to the petitioner, he belongs to that category. the submission of learned counsel for respondents no. 1 to 4 is that sro 126 has no application to the selections to be made for the posting of assistant surgeons as registrars for the reasons that it is not a vacant post or a promotional post. the posting of assistant surgeons as registrars is only a tenure post for a period of three years and in view of the rule position as per clause 6 of schedule iii of the jammu and kashmir medical education (gazetted service recruitment rules) 1979, the posting as registrar is only by way of deputation from jammu and kashmir medical gazetted service for a specified period on the recommendation of selection committee of medical colleges. i am in agreement with the learned counsel for therespondents. in view of the nature of the post for which the advertisementnotice has been issued, i am of the view that sro 126 is not applicable. thechallenge laid by the petitioner in this behalf is, therefore, untenable. evenotherwise, the petition of the petitioner is not maintainable ex-facie becausethe petitioner himself offered his candidature in the selection process andselection process has not been completed yet. until and unless selectionprocess is completed and appointments are made, a person, who is participating in the selection, cannot be allowed to challenge the selection process. the petition of the petitioner merits dismissal. the petition is admitted and taken up for hearing with the consent of the parties and is accordingly disposed of along with connected cmps. stay order, if any, shall stand vacated. the petitioner is at liberty to challenge the selection when made, if he so chooses.