Suresh Kumar Monga

1. The pleaded case of the applicant herein is that pursuant to regular process of selection conducted by the Jammu & Kashmir Public Service Commission, his name was recommended for appointment as Assistant Surgeon. Consequent thereto, he was appointed as Assistant Surgeon vide Government Order No. 335-HME of 2010 dated 17.06.2010. In the year 2013, by way of a Government Order No. 358-G of 2013 dated 13.05.2023, he was posted in the District Hospital at Rajouri. Since, he also possessed a Post Graduate degree in Hospital Administration, therefore, pursuant to an order dated 05.06.2013 issued by the Director, Health Services, Jammu his services were utilized in the District Hospital, Rajouri as Deputy Medical Superintendent. After having served as Deputy Medical Superintendent in the District Hospital, Rajouri for a period of four years, he was transferred to Government Medical College, Jammu to work as Incharge Deputy Medical Superintendent by way of Government Order No. 494-HME of 2017 dated 11.09.2017. It has further been averred that though at that point of time, the applicant was a member of the Jammu & Kashmir Medical (Gazetted) Service and, therefore, he could not have been transferred and posted as Incharge Deputy Medical Superintendent in the Government Medical College, Jammu as the post of Deputy Medical Superintendent in the Medical College is part of a different gazetted service i.e. Jammu & Kashmir Medical Education (Gazetted) Service constituted under the provisions of Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (hereinafter referred to as '1979 Rules'). Under the '1979 Rules', post of Deputy Medical Superintendent was required to be filled up either by way of direct recruitment or by way of deputation from amongst the Chief Medical Officers of Jammu & Kashmir Medical (Gazetted) Service and it appears that the Government did not have qualified persons as Chief Medical Officers holding the Post Graduate degree in Hospital Administration, and, therefore, the applicant was posted as Incharge Medical Superintendent in Government Medical College, Jammu.

2. It has further been stated that on a requisition sent by Respondent No. 1 to Jammu & Kashmir Public Service Commission, two posts of Deputy Medical Superintendent came to be advertised and the applicant being fully eligible to hold the post responded to said advertisement.

3. It has been averred that on the basis of his merit, the applicant came to be selected and consequent upon the recommendations made by the Jammu & Kashmir Public Service Commission, he was appointed as Deputy Medical Superintendent along with one Ms. Rehana Khurshid vide Government Order No. 539-HME of 2018 dated 27.09.2018. With his fresh appointment as member of the Jammu & Kashmir Medical Education (Gazetted) Service in the capacity of Deputy Medical Superintendent, he seized to be a Member of the Jammu & Kashmir Medical (Gazetted) Service, where he was holding the substantive post of Assistant Surgeon. By way of a subsequent Government Order No. 606-HME of 2018 dated 20.10.2018, he was posted as Deputy Medical Superintendent, SMGS Hospital, Jammu against a vacant post. SMGS Hospital, Jammu is one of the associated hospitals of the Government Medical College, Jammu.

4. The applicant has further stated that Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1970 came to be repealed with the framing of the Jammu & Kashmir Health & Family Welfare (Gazetted) Service Rules, 2006 and those rules were subsequently amended in the year 2013 and the nomenclature of the post of Assistant Surgeon was changed to that of Medical Officer.

5. The Respondent No. 3 came to be appointed as Assistant Surgeon on 12.08.1997, the nomenclature of which post stands subsequently changed to Medical Officer. He possesses the qualification of MBBS and PG Diploma in Sports Medicine. He is still holding the post of Medical Officer and uptil now he has not been substantively promoted as Block Medical Officer under the Jammu & Kashmir Health and Family Welfare (Gazetted) Service Rules, 2006.

6. It has been averred that Respondent No. 1 initiated the process of promotion/placement of eligible Deputy Medical Superintendent to the post of Medical Superintendent in the Medical Education (Gazetted) Service and, therefore, by way of communication dated 03.12.2021 addressed to Respondent No. 2, sought the particulars of the eligible Deputy Medical Superintendents for their promotion/placement as Medical Superintendent. Pursuant thereto, Respondent No. 2 vide communication dated 11.12.2021 forwarded the applicant's name being the only eligible Deputy Medical Superintendent possessing more than five years' experience.

7. It has been stated that contrary to Recruitment Rules, the Respondent No. 1 issued the Government Order No. 249-JK (HME) of 2022 dated 28.04.2022 whereby Respondent No. 3, who was a Medical Officer, was asked to look after the charge of Incharge Deputy Medical Superintendent in the Government Hospital, Gandhi Nagar, Jammu and in addition, he was further asked to look after the charge of the post of Incharge Medical Superintendent, Government Hospital, Gandhi Nagar, Jammu.

8. It has further been stated that the post of Medical Superintendent, Government Medical College, Jammu was being manned by Dr. A.D.S. Manhas who was due for retirement after attaining the age of superannuation on 31.10.2022. The applicant who was the senior most Deputy Medical Superintendent possessing the Post Graduate degree in Hospital Administration and experience of more than five years, submitted a representation before Respondent No. 1 on 20.07.2022 requesting therein to consider his candidature for posting him as Incharge Medical Superintendent at Government Medical College, Jammu.

9. It has been averred that in anticipation of retirement of Dr. A.D.S. Manhas, the Respondent No. 1 vide communication dated 02.08.2022 sought the seniority position of Deputy Medical Superintendents to fill up the post of Medical Superintendent in the Government Medical College, Jammu. Accordingly, Respondent No. 2 vide communication dated 19.09.2022 conveyed that there are only two Deputy Medical Superintendents substantively appointed and serving in the Medical Education (Gazetted) Service and the applicant is the senior most Deputy Medical Superintendent.

10. Despite having been forwarded the seniority list twice by Respondent No. 2 stating therein that the applicant being the senior most Deputy Medical Superintendent and eligible to be considered for promotion/posting as Medical Superintendent, still the Respondent No. 1 vide order dated 31.10.2022 posted the Respondent No. 3 in the Government Medical College, Jammu and simultaneously asked him to look after the charge of Medical Superintendent in the said College.

11. Aggrieved by the aforesaid order dated 31.10.2022 (Annexure A-1), the applicant has invoked the jurisdiction of this Tribunal under Section-19 of the Administrative Tribunals Act, 1985.

12. Pursuant to notices issued by this Tribunal, the Respondent No. 1 by way of filing its reply, has joined the defence and opposed the applicant's cause. It has been stated that no cause of action has accrued to the applicant and he does not have any locus to maintain the present Original Application.

13. It has been stated that the Health and Medical Education Department vide Government Order No. 771-JK (HME) of 2022 dated 31.10.2022, amongst other Medical Officers transferred Dr. Narinder Singh Bhutiyal, Medical Officer as I/c Deputy Medical Superintendent, Government Hospital, Gandhi Nagar, Jammu and posted him in the Government Medical College, Jammu as Medical Officer with a direction that he shall also look after the work of Medical Superintendent in the said College.

14. It has further been stated that pursuant to order dated 14.11.2022 passed by this Tribunal, the applicant's representation dated 20.07.2022 has been considered and it has been found that the applicant was appointed as Deputy Medical Superintendent on 27.09.2018 and he becomes eligible for the post of Medical Superintendent, Government Medical College, Jammu after a period of five years i.e. on 27.09.2023. His case for promotion shall be considered as and when he attains the requisite eligibility as envisaged under the '1979 Rules'. The applicant's representation has been considered and rejected by way of a reasoned and speaking order dated 18.11.2022. The claim of the applicant does not merit any consideration and, therefore, the Original Application deserves to be dismissed.

15. Respondent No. 1 has further stated that Respondent No. 3 - Dr. Narinder Singh Bhutyal has been posted as Medical Officer in the Government Medical College, Jammu and he has been assigned the work of Medical Superintendent in addition to his own duties in the interest of patient care with the conditions that (i) the assignment is purely on a temporary basis till the regular assignment is made, (ii) It shall not confer any right upon Respondent No. 3 to claim any preferential treatment at the time of regularization/promotion. The assignment given to Respondent No. 3 is not the promotion in eye of law. With all these assertions, the Respondent No. 1 has made the prayer for dismissal of the Original Application.

16. Respondent No. 3 by way of filing his separate reply has stated that he has been transferred and sent on deputation to Medical Education Gazetted Service with a direction to look after the charge of the post of Medical Superintendent, Government Medical College, Jammu and he has not been promoted against the said post. The applicant has not properly understood the nature of the order dated 31.10.2022. Otherwise he himself is not eligible for appointment/promotion to the post of Medical Superintendent.

17. It has further been averred that neither the applicant nor any other Deputy Medical Superintendent in the J&K Medical Education (Gazetted) Service is eligible to hold the post in question. There are only two Deputy Medical Superintendents in the J&K Medical Education (Gazetted) Service as on today and none of them has put in five years of service to become eligible for promotion to the post of Medical Superintendent. The post of Medical Superintendent falls in the Administrative Wing of the J&K Medical Education (Gazetted) Service. The applicant being an ineligible candidate cannot question his appointment.

18. It has further been averred that the applicant's contention that he has served as Deputy Medical Superintendent in the District Hospital, Rajouri, is absolutely incorrect. Applicant has not placed on record even a single order whereby he was ever posted as Deputy Medical Superintendent in the J&K Medical (Gazetted) Service in any Hospital. The applicant was posted as Incharge Deputy Medical Superintendent, Government Medical College, Jammu for the first time vide Government Order No. 494-HME of 2017 dated 11.09.2017 by way of deputation. At the relevant point of time, he was still a Member of the J&K Medical Gazetted Service. At the time of his deputation as Incharge Deputy Medical Superintendent in Government Medical College, Jammu, he was not eligible as he was not having three years' working experience of running a Hospital after Post-Graduation. In Medical Education, there is no provision for deputation of a Medical Officer as Deputy Medical Superintendent. As per rules, deputation can be ordered only from the Chief Medical Officers cadre of J&K Medical Gazetted Service and admittedly, the applicant was not the Chief Medical Officer when he was deputed to Medical Education in the year 2017 and his experience cannot be counted as he was ineligible to hold the post. It was only in the exigency of service that the applicant was sent on deputation as Deputy Medical Superintendent in the Medical Education Department.

19. Respondent No. 3 has asserted that the Government has ample powers to relax any rule in the interest of patient care, more particularly, when the Government is faced with a situation that nobody in the cadre is eligible to hold the post in question and in the given set of circumstance, the Government decided to keep the post vacant and he was asked to only look after the charge of the post of Medical Superintendent, Government Medical College, Jammu.

20. It has been stated that the Respondent No. 3 has neither been promoted nor appointed against the post of Medical Superintendent, Government Medical College, Jammu but he has been sent on deputation as Medical Officer with a further direction to look after the charge of the post of Medical Superintendent. The said order has been passed by the Government while keeping in view the vast experience of Respondent No. 3 in running the hospital administration as during covid pandemic he was instrumental in successfully managing the 500 bedded DRDO COVID Care Hospital in Jammu as Medical Superintendent. The Respondent No. 3, apart from having professional qualification, also holds a Post-Graduation Diploma in Public Health Management. He further holds a Diploma in Sports Medicine. It has been asserted that he had worked during the peak of the pandemic as Medical Superintendent of DRDO COVID Care Hospital and played a vital role in most efficient administration of the said hospital. Apart from this, he also worked as Medical Superintendent in the District Hospital, Udhampur for a period of about two years from 2015 to 2017. He was again posted as Incharge Medical Superintendent in the District Hospital, Gandhi Nagar, Jammu in the year 2022 before the order impugned came to be issued.

21. It has been averred that Dr. A.D.S. Manhas who retired on 31.10.2022 was also holding Post-Graduation in Public Health Management. The Principal, Government Medical College, Jammu had sent a communication dated 11.12.2021 and in the said communication, the applicant's experience as Deputy Medical Superintendent w.e.f. September 2017 to October 2018 was counted. But the said experience cannot be counted for the purpose of promotion to the post of Medical Superintendent as at that point of time, he was not eligible to hold the post of Deputy Medical Superintendent. With these assertions, the Respondent No. 3 has also prayed for dismissal of the Original Application.

22. Heard learned counsel for the parties.

23. Mr. Abhinav Sharma, learned senior counsel for the applicant submitted that the post of Medical Superintendent can only be filled up by way of promotion from amongst the Deputy Medical Superintendents as described in Schedule II annexed with the '1979 Rules'. The Respondent No. 3 is holding the post of Medical Officer. He was never selected and appointed as Deputy Medical Superintendent. Nor he possesses the requisite experience of 5 years as Deputy Medical Superintendent. The Respondent No. 1 has posted him as Medical Superintendent in violation of '1979 Rules'.

24. According to learned senior counsel, as per '1979 Rules' a person can be appointed as Deputy Medical Superintendent if he possesses the Post Graduation qualification in Surgery/Gynaecology/Medicine and other clinical subjects/Hospital Administration. Such an appointment can either be made directly through Public Service Commission or by way of deputation from amongst the Chief Medical Officers of J&K Medical (Gazetted) Service. The Respondent no. 3 was neither appointed as Deputy Medical Superintendent by way of direct recruitment nor by way of deputation from Chief Medical Officers' cadre of J&K Medical Gazetted Service. He is holding the post of Medical Officer till date and as such he is not eligible to be even temporarily posted as Medical Superintendent in the Government Medical College, Jammu.

25. Learned senior counsel further submitted that the Respondent No. 3 is not possessing the requisite qualification to hold the post of Deputy Medical Superintendent as he possesses only a degree in MBBS and Post Graduation Diploma in Sports Medicine. Whereas, for the post of Deputy Medical Superintendent, the minimum required qualification is MBBS with PG degree either in Surgery/Gynaecology/Medicine and other clinical subjects/Hospital Administration.

26. Learned senior counsel further submitted that the applicant herein is possessing the requisite qualification i.e. Post Graduation in Hospital Administration. He is holding the post of Deputy Medical Superintendent in the Government Medical College, Jammu. He has the requisite experience of five years as Deputy Medical Superintendent and, therefore, as per recommendations made by Respondent No. 2, he should have been posted as Medical Superintendent.

27. Learned senior counsel further submitted that the applicant's experience as Deputy Medical Superintendent from 11.09.2017 to 27.09.2018 cannot be ignored and Respondent No. 1 ought to have considered him eligible for his posting against a vacant post of Medical Superintendent. To buttress his arguments, learned senior counsel submitted that every service includes experience but every experience cannot be termed to be a service. In support of his arguments, he has relied upon a judgement of the Hon'ble Supreme Court in the case of Dr. Asim Kumar Bose Vs. Union of India and Ors AIR 1983 SC 509 [LQ/SC/1982/202] and a judgement of the Hon'ble High Court of Jammu & Kashmir in the case of Dr. Bara Singh Vs. Vice Chancellor, Sher-e-Kashmir University of Agricultural Sciences and Technology and Ors 1997 Kashmir Law Journal 84.

28. Learned senior counsel further submitted that the action of Respondent No. 1 while issuing the order dated 31.10.2022 is contrary to principles laid down by the Hon'ble High Court of Jammu & Kashmir in the matter of Dr. Vinod Gupta Vs State of Jammu & Kashmir 2005 (3) JKJ 333. In Dr. Vinod Gupta's case, Hon'ble High Court issued a categorical direction that no ineligible person can be appointed as Medical Superintendent but still the Respondent No. 3, who is not eligible to hold even the post of feeder cadre has been asked to look after the charge of the post of Medical Superintendent.

29. Per contra, Mr. Amit Gupta, learned Additional Advocate General submitted that the Respondent No. 3 has been transferred as Medical Officer to Government Medical College, Jammu and he has been simply asked to look after the charge of Medical Superintendent in the said College. It is neither a promotion to the post of Medical Superintendent nor it is a deputation.

30. Learned Additional Advocate General further submitted that the Respondent No. 3 has been asked to look after the charge of Medical Superintendent only because of his vast experience gained in the hospital administration during spread of Covid-19 pandemic as he was able to successfully manage a five hundred bedded DRDO Covid Care Hospital at Jammu.

31. Learned Additional Advocate General further submitted that the applicant who does not possess the five years requisite experience as Deputy Medical Superintendent being ineligible for promotion to the post of Medical Superintendent has no locus to maintain the present Original Application. He has not even laid a challenge to order dated 18.11.2022 passed by Respondent No. 1 on his representation pursuant to a direction issued by this Tribunal vide order dated 14.11.2022.

32. Adopting almost the similar line of arguments, Mr. Rahul Pant, learned senior counsel for Respondent No. 3 further submitted that the applicant's experience as Deputy Medical Superintendent from 11.09.2017 to 27.09.2018 cannot be considered for the purposes of promotion to the post of Medical Superintendent as his appointment as Deputy Medical Superintendent in the year 2017 in the Government Medical College, Jammu was contrary to rules. To support his arguments, learned senior counsel placed reliance upon a judgement of the Hon'ble High Court of Patna in the matter of Krishna Pratap Singh and others Vs. State of Bihar and others 2017 (3) PLJR 642 [LQ/PatHC/2017/994] and a judgement of the Hon'ble High Court of Allahabad in the matter of Suneel Kumar Singh and Another Vs. State of U.P. and others 2013 (1) ADJ 391. [LQ/AllHC/2012/2847]

33. Learned senior counsel argued that the applicant cannot claim the seniority on account of his appointment as Deputy Medical Superintendent in the year 2017 which was contrary to rules. To support his arguments, learned senior counsel placed reliance upon the judgements of the Hon'ble Supreme Court in Keshav Chandra Joshi Vs. Union of India AIR 1991 SC 284 [LQ/SC/1990/680] , Sanjay K Sinha Vs. State of Bihar 2004 (10) SCC 734, [LQ/SC/2004/720] C.K. Anthony Vs. B. Murleedharan 1998 (6) SCC 630 [LQ/SC/1998/871] and Bhupendra Nath Hazarika Vs. State of Assam 2013 (2) SCC 516 [LQ/SC/2012/1057] .

34. While placing reliance upon another judgement of the Hon'ble Supreme Court in the matter of Shripal Bhati Vs State of U.P. 2020 (12) SCC 87, [LQ/SC/2020/135 ;] learned senior counsel further submitted that the applicant being ineligible for the post of Medical Superintendent has no locus to challenge the order whereby Respondent No. 3 has been deputed to look after the charge of the post of Medical Superintendent.

35. Learned senior counsel still further submitted that no direction can be issued by this Tribunal to appoint the applicant as Medical Superintendent in the Government Medical College, Jammu in contravention of the statutory rules. In order to support his argument, learned senior counsel placed reliance upon Supreme Court judgements in the matter of State of West Bengal Vs. Subhash Kumar Chatterjee 2010 (11) SCC 694 [LQ/SC/2010/850] and Santosh Kumar Verma Vs. State of Bihar 1997 (2) SCC 713 [LQ/SC/1997/67] .

36. We have thoughtfully considered the arguments of learned counsel for the parties and have perused the records carefully.

37. The posts of Medical Superintendent and Deputy Medical Superintendent in the teaching hospitals of the Union Territory of Jammu & Kashmir are governed by Jammu & Kashmir Medical Education (Gazetted) Service Rules, 1979. Rule-3 of the said rules makes a provision for constitution of service and its classification. The word 'service' has been defined as Jammu & Kashmir Medical Education (Gazetted) Service in Rule-2 (e) of the '1979 rules'. As per Rule-3 (2) of the said rules, the service comprises of three different wings namely (i) Teaching; (ii) Administrative and; (iii) General. Schedule 'I' appended with the said Rules describes the nomenclature and number of posts in each category of the service. In terms of Rule-5 of the '1979 Rules', appointment to the service in all the three wings can be made by way of direct recruitment or by way of promotion by selection in the manner as indicated against each post in Schedule III.

38. According to Rule-7 of the '1979 rules', a person shall not be eligible for recruitment/promotion to a post in the service unless he possesses the qualifications and fulfils the requirements of recruitment prescribed for that post in Schedule II. As per Clause-I of Schedule 'II', apart from the qualification as mentioned against Serial No. 27 of the said Schedule, a candidate is required to have Post Graduation degree in Surgery/Gynaecology/or medicine and other clinical subjects/Hospital Administration for appointment to the post of Medical Superintendent. In addition to requisite qualifications, he is also required to have five years' experience as Deputy Medical Superintendent. Whereas, for appointment to the post of Deputy Medical Superintendent, two modes are prescribed in Clause-II of Schedule 'III' appended with '1979 Rules'. A candidate can be appointed as Deputy Medical Superintendent by direct recruitment or by deputation from Chief Medical Officers' cadre of Jammu & Kashmir Medical (Gazetted) Service.

39. Here, it requires to be mentioned that the post of Chief Medical Officer in the Jammu & Kashmir Medical (Gazetted) Service was earlier governed by the Jammu and Kashmir Medical (Gazetted) Service Recruitment Rules, 1970, which were later on repealed by the Jammu & Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006. Even the '2006 rules' were also repealed later on by Jammu and Kashmir Health and Family Welfare (Gazetted) Service Rules, 2013. According to '2013 Rules', the post of Chief Medical Officer can be filled up 100% by promotion from amongst the members of service in Class-IV Categories 'A' 'B' having at least five years substantive service as such, meaning thereby that a Block Medical Officer/Deputy Chief Medical Officer/District Health Officer/District Tuberculosis Officer/District Immunization Officer and the Medical Officer School Health become eligible for the purposes of promotion to the post of Chief Medical Officer.

40. The Medical Officer as described in Class-IV, Category 'C' does not even fall in the zone of consideration for the purposes of promotion to the post of Chief Medical Officer.

41. In the case in hand, Respondent No. 3, who is admittedly holding the post of Medical Officer, and a member of service as defined in Rule 3 of the '2013 Rules', in order to become eligible to hold the post of Medical Superintendent in the hierarchy prescribed under '2013 rules', he is first required to get promotion as Block Medical Officer and then as Chief Medical Officer. Because as per Schedule II, the Post of Medical Superintendent as defined in Class-II, Category 'A' under the '2013 rules' can only be filled up 100% by promotion from amongst Class III, Categories 'A', 'B', 'C', 'D' having atleast 3 years substantive service as such. Meaning thereby in the hierarchy of various posts as described under the '2013 Rules', the Respondent No. 3 is not even eligible to get promotion as Chief Medical Officer what to talk about the post of Medical Superintendent.

42. On perusal of the impugned order dated 31.10.2022, we find that the Respondent No. 1 has ordered the posting of Respondent No. 3 as Medical Officer in the Government Medical College, Jammu with a further direction to him to look after the charge of post of Medical Superintendent in the said college.

43. It is not understandable that how the Respondent No. 3, whose services are governed by '2013 Rules' and who is a member of the Jammu and Kashmir Health and Family Welfare (Gazetted) Service can be posted outside his cadre as Medical Officer to a service known as Jammu and Kashmir Medical Education (Gazetted) service which is governed by a different set of rules, i.e. '1979 Rules'. In our considered view such a posting is neither permissible under '1979 Rules' nor under the '2013 Rules'.

44. Apart from this, it is again beyond our comprehension that how a Medical Officer who is not even eligible for promotion to the post of Chief Medical Officer under the '2013 Rules' can be assigned the charge of Medical Superintendent in the service governed by a separate set of rules.

45. Since, Mr. Amit Gupta, learned Additional Advocate General, with great vehemence argued that the vast experience gained by Respondent No. 3 in the hospital administration during the spread of Covid-19 pandemic while managing a 500 bedded hospital, weighed with the authorities before issuance of the impugned order, therefore, in order to find out the reasons behind the impugned order we directed the learned counsel to produce the records in original as the plea raised was not supported with the assertions made in the written statement filed on behalf of Respondent No. 1. Very reluctantly, the photo-copies of the records from the Office of Respondent No. 1 were made available by the learned Additional Advocate General

46. On perusal of the record as made available to us, we find that the Director of Health Services, Kashmir vide his communication dated 25.10.2022 and the Director of Health Services, Jammu vide his communication dated 28.10.2022 had submitted the proposals for filling up various administrative level posts which included the posts of Incharge Medical Superintendent SMHS Hospital, Srinagar, Incharge Deputy Medical Superintendent JLNM Hospital, Srinagar, Incharge Medical Superintendent, Government Hospital, Gandhi Nagar, Jammu and Incharge Medical Superintendent, Government Medical College, Jammu.

47. So far as the posts mentioned at Serial No. 1, 2 & 3 i.e. Incharge Medical Superintendent SMHS Hospital, Srinagar, Incharge Deputy Medical Superintendent JLNM Hospital, Srinagar and Incharge Medical Superintendent, Government Hospital, Gandhi Nagar, Jammu are concerned, all these three posts are governed by '2013 Rules' and the members of the Jammu & Kashmir Health and Family Welfare (Gazetted) Service could have been ordered to be deputed/posted/transferred against the said posts.

48. We, however, fail to understand how a proposal could be submitted by the Director of Health Services, Jammu to fill up the post of Incharge Medical Superintendent, Government Medical College, Jammu by posting a Medical Officer (Respondent No. 3 herein) who is admittedly a member of the Jammu & Kashmir Medical Education (Gazetted) Service and whose services are governed by '2013 Rules'. Whereas, the posts in the hierarchy in the Government Medical College, Jammu from Medical Officer to Medical Superintendent are governed by '1979 Rules'.

49. From the record made available to us, we could not find any reason as to how such a proposal was submitted by the Director, Health Services, Jammu. Respondent No. 1 has also remained oblivious about the provisions of '1979 Rules' and '2013 Rules' while acting upon the proposal submitted by the Director of Health Services, Jammu.

50. In S.N. MUKHERJEE VS UNION OF INDIA (1990) 4 SCC 594, [LQ/SC/1990/477] the Hon'ble Supreme Court while expanding the principles of natural justice has held that the requirement to record reason in an order can be regarded as one of the principles of natural justice which governs the exercise of power by administrative authorities.

51. Reason is the heartbeat of every administrative order. Reason introduces clarity in an order and without a reason, an administrative order becomes lifeless. Absence of reason renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. This has been so ruled by the Hon'ble Supreme Court in SANT LAL GUPTA & ORS VS. MODERN CO-OPERATIVE GROUP HOUSING SOCIETY LTD. AND ORS 2010 (13) SCC 336 [LQ/SC/2010/1117] and in SECRETARY CURATOR, VICTORIA MEMORIAL HALL VS. HOWRAH GANATANTRIK NAGRIK SAMITY AND OTHERS 2010 (3) SCC 732 [LQ/SC/2010/250] .

52. In the case in hand, we do not find any reason recorded by the Director of Health Services, Jammu while making a proposal for posting of Respondent No. 3 as Medical Officer outside his cadre and further to assign him the charge to the post of Medical Superintendent in the Government Medical College, Jammu. Nor any reason is recorded by Respondent No. 1 to take a departure from the statutory rules. The impugned order, therefore, in our opinion cannot be sustained.

53. Looking at the case from another angle, the impugned order still cannot be sustained on account of one more reason as in whole of the written statement filed on behalf of Respondent No. 1, nowhere it has been stated by Respondent No. 1 about the experience of Respondent No. 3 which he gained during Covid-19 pandemic while managing a 500 bedded DRDO Covid Hospital, Jammu.

54. No doubt, Respondent No. 3 has spoken volume about the said experience in his written statement.

55. It appears that Mr. Amit Gupta, learned Additional Advocate General while advancing his argument focused on the assertions made in the written statement of Respondent No. 3 to the effect that it is the vast experience gained by Respondent No. 3 during Covid-19 pandemic, weighed with the authorities to assign him the charge to the post of Medical Superintendent in the Medical College, Jammu. Mr. Gupta, however, remained unmindful about the record wherein the proposal so submitted by the Director of Health Services, Jammu without quoting any such reason.

56. On careful perusal of the record as produced by respondent No. 1, we do not find any such reason, as has been asserted in the written statement filed on behalf of respondent No. 3 and argued by Mr. Amit Gupta, learned Additional Advocate General while representing respondents No. 1 & 2 before this Tribunal. Such a stance cannot be approved in view of the principles laid down by the Hon'ble Supreme Court in MOHINDER SINGH GILL VS. THE CHIEF ELECTION COMMISSIONER (1978) 1 SCC 405 [LQ/SC/1977/331] wherein it has been held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Hon'ble Supreme has further gone to the extent that otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds brought out later.

57. In the case in hand, the respondent No. 1, in its written statement has not even attempted to validate the order by quoting the vast experience gained by respondent No. 3 as a reason behind the impugned order. But still an argument was proposed by learned counsel while keeping himself oblivious of the record.

58. In our opinion arbitrariness in the action of Respondent No. 1, while issuing the impugned order acting upon the proposal of Director of Health Services, Jammu, is writ large as while submitting the proposal, the Director of Health Services, Jammu was totally unmindful about the principles and guidelines laid down by the Hon'ble High Court of Jammu & Kashmir at Jammu in the matter of DR. VINOD GUPTA VS. STATE OF JAMMU & KASHMIR 2005 (3) JKJ 333. The relevant observations made in paragraphs 8, 21, 23 and the guidelines in paragraph 33 of the report are produced herein below:-

"8. Be it so, the fact remains that there is no Dy. Medical Superintendent available who possesses the requisite qualification and experience for being appointed to the post of Medical Superintendent. Question arises in such a situation how the post of Medical Superintendent should have been filled up. The answer lies in Rule 7 of 1979 Rules. The proviso to sub-rule quoted above provides that the Commission may recommend for consideration of the Government appointment of a person to a post in the service who otherwise not eligible under these rules is in the opinion of the Commission is possessing exceptional merit as well as professional experience of high order in the specialty and such case will be considered by the Government after obtaining the views of Medical Council of India. Sub-rule (2) of Rule 7 further provides that where any permanent resident is not available who possesses eligibility prescribed under Schedule II for appointment to any post, the Government may appoint even a non-permanent resident otherwise eligible for holding such a post either on contract basis or on deputation for a term not exceeding three years as it may specify in the order. The Government has been vested with the power to renew such contract or deputation upto a maximum period of five years in suitable cases. In view of the specific provision made in the Rule 7 if no eligible Dy. Medical Superintendent is available for appointment to the post of Medical Superintendent the post can be filled up by the government in the aforesaid manner. No steps appears to have been taken by the Government to fill up the post of Medical Superintendent even by adopting the procedure envisaged by Rule 7 and instead the Government has been filling up the posts and has filled up the post of Medical Superintendent from the cadre of Assistant Surgeons which is clearly not in tune with the recruitment rules.

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21. The office of the Medical Superintendent of Govt. Medical College Hospital is a public office. The officer holding the post is a civil servant and the duties to be performed by him as such officer are in my view of a public nature, because the Medical Superintendent is the person who has to lookafter the management of the hospital and on the management of hospital Medicare of the general public depends. The contention of Mr. Singh that office of the Medical Superintendent is not a public office is, therefore, not tenable.

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23. As already said as per the stand of the State-respondent there is no eligible Dy. Medical Superintendent available who can be appointed/promoted to the post of Medical Superintendent. In such a situation the post of Medical Superintendent could be filled up by adopting the procedure envisaged by Rule 7 of 1979 Rules and till it is done the temporary arrangement was necessarily to be made.

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33. In the circumstances of the case I think this is an occasion where some more directions are required to be issued to the State of J&K as the State has been found to be flouting the basic recruitment rules by not filling up the posts of Medical Superintendents/Dy. Medical Superintendents in accordance with J&K Medical Education (Gazetted) Service Recruitment Rules of 1979. The following directions are accordingly issued:

1. The State Government shall take steps for filling up the posts of Medical Superintendent existing in Govt. Medical College Hospital Jammu and its associated teaching hospitals by following the procedure envisaged by Rule 7 of 1979 Rules, in case there is no eligible person available in the cadre of Dy. Medical Superintendents for being promoted to the post of Medical Superintendent substantively, it may seek the recommendation of the J&K Public Service Commission of a person to be posted as Medical Superintendent who otherwise must be eligible under rules and in the opinion of the Commission possesses exceptional merit as well as professional experience of high order in his specialty and after obtaining the views of Medical Council of India. If the Government in its wisdom does not choose to adopt the said mode for filling up the post it shall take steps for appointment of a non-permanent resident doctor who is otherwise eligible for holding such post on contract basis or on deputation for a term not exceeding three years, further extendable up to a maximum period of five years. This exercise shall be completed by the Government within a period of four months from today;

2. Appointments to the post of Dy. Medical Superintendent, governed by 1979 Rules, shall be made by following the procedure as envisaged by these rules within a period of four months by the Government. Since two alternative modes for appointment to the post of Dy. Medical Superintendents have been prescribed by the Rules therefore, the Government can in its discretion adopt any of the two modes. If the Government decides to make appointments by direct recruitment, advertisement notice shall be issued within a period of one month from today and the recruitment process shall be completed within a period of three months thereafter. In case it decides to fill up the posts by deputation from CMOs cadre constituted under J&K Medical (Gazetted) Service Recruitment Rules 1970, it shall consider the case of all the eligible CMOs who possess the requisite qualifications and experience and depute them within a period of four months from today;

3. After any of the Dy. Medical Superintendent, who has been substantively appointed, acquires eligibility under 1979 Rules to be promoted to the post of Medical Superintendent, his case shall be considered expeditiously for promotion as Medical Superintendent. When such Dy. Medical Superintendent is promoted to the post of Medical Superintendent, the temporary arrangement to be made in terms of direction No. (1) above shall cease to operate;

4. If the aforesaid directions are not carried out by the Government, within the stipulated period of four months from today, all the adhoc/temporary arrangements made for filling up of the posts of Medical Superintendents/Dy. Medical Superintendents shall come to an end after expiry of period of four months from today and all such posts shall be deemed vacant. "

59. In T. CHANDRAN VS. UNION OF INDIA 2004 (5) SLR 674, a Division Bench of the Hon'ble High Court of Kerala has ruled that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution of India or the governing Act or the general principles of law of the land and it is so arbitrary or unreasonable that no fair-minded authority could have made it. Whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing irrelevant and the remote. The repository of power should act within the bounds of the power delegated and should not abuse his power.

60. Undisputedly, the office of the Medical Superintendent in the Government Medical College, Jammu is a public office. The functions and duties to be performed by an officer, in our considered view are public functions as the person assigned to discharge the duties of the post of Medical Superintendent has to look after the management of the Hospital. The management in any case is bound to ensure the right to service to citizens. The Respondent No. 3 who is not even eligible for promotion as Chief Medical Officer nor he has the requisite qualification to hold the post of Medical Superintendent in the Government Medical College, Jammu, has been assigned to discharge the duties and functions of the office of Medical Superintendent though on temporary basis. The record as produced by respondent No. 1 is silent as to how his experience has been equated with the requisite qualification as prescribed in the '1979 Rules'. The order impugned herein, can thus be termed to be an order suffering from the vice of arbitrariness.

61. In E.P. Royappa Vs State of Tamil Nadu and others 1974 (1) SLR 497 [LQ/SC/1973/358] , a Constitution Bench of the Hon'ble Supreme Court has observed that equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. The State action must be based on valid relevant principles and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. The relevant observations from paragraph 82 of the said report are reproduced here as under:-

"82. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Arts 14 and 16".

62. So far as the argument of learned counsels for the respondents that the applicant has no locus to maintain the present Original Application, as he does not possess the requisite experience to hold the post of Medical Superintendent, is concerned, we are not inclined to countenance the said argument.

63. In any case, the applicant was deputed as Incharge Medical Superintendent by the Government vide order dated 11.09.2017 and he continued as such uptil 27.09.2018. The said assignment as Deputy Medical Superintendent was, however, followed by his regular appointment as Deputy Medical Superintendent pursuant to recommendations made by the Jammu & Kashmir Public Service Commission.

64. In the peculiar facts and circumstances, the experience earned by the applicant right from 11.09.2017 to 27.09.2018 ought to have been considered in comparison to candidature of Respondent No. 3 who is not even having the requisite qualification to hold the post in question. The judgements cited by learned senior counsel representing Respondent No. 3 in the cases of Krishna Pratap Singh (supra), Suneel Kumar Singh (supra) and Shripal Bhati (supra) cannot be applied in the facts and circumstances of the present case for the reason that if the Respondent No. 1 was of the opinion that the applicant's experience from 11.09.2017 to 27.09.2018 could not have been taken into consideration, then what were the reasons to opt for another ineligible candidate like Respondent No. 3 to hold the post of Medical Superintendent in Government Medical College, Jammu. In our considered view, if both the Deputy Medical Superintendents in the Jammu & Kashmir Medical Education (Gazetted) Service were not considered eligible then the only course available was to follow the provisions of Rule-7 of the '1979 Rules' which have already been interpreted by the Hon'ble High Court of Jammu & Kashmir in the case Dr. Vinod Gupta (supra). However, the Respondent No. 1 did not opt to follow the well enunciated principles of law in the case of Dr. Vinod Gupta (supra). We, therefore, hold that the applicant has a locus standi to maintain the present Original Application before this Tribunal.

65. We also do not find any substance in the arguments of learned counsels for the respondents that the applicant has not laid a challenge to order passed by Respondent No. 1 pursuant to his representation dated 20.07.2022 and, therefore, the Original Application cannot be maintained.

66. On perusal of the representation dated 20.07.2022, we find that the applicant had specifically asserted that he has earned the experience as Deputy Medical Superintendent from 11.09.2017 to 27.09.2018 and during his said tenure, he was entrusted with the responsibility as Medical Superintendent during the absence of the then Medical Superintendent of the Government Medical College, Jammu. While deciding the applicant's representation pursuant to this Tribunal's order dated 14.11.2022, the Respondent No. 1 has totally ignored the said fact and without appreciating the experience earned by the applicant during the said period of one year, has opted to reject the representation. Apart from this, the Respondent No. 1 also ignored the applicant's assertions made in Para-5 with regard to his experience earned while working as Nodal Officer of the designated Covid Hospital i.e. SMGS Hospital, Jammu.

67. On perusal of the order dated 18.11.2022 passed on the applicant's representation, we find that the relevant factors have been totally ignored and not taken into consideration by respondent No. 1. The relevant factors which ought to have been considered by Respondent No. 1 was the recommendation made by the Principal, Government Medical College, Jammu with regard to applicant's eligibility; the experience earned by him during 11.09.2017 to 27.09.2018; the experience earned by him while managing the dedicated Covid-19 Hospital and the principles laid down by the Hon'ble High Court of Jammu & Kashmir in Dr. Vinod Gupta's case (supra). However, no such consideration has taken place which in our considered opinion renders the order dated 31.10.2022 as non est and the same is liable to be ignored.

68. In the conspectus of discussions made herein above, the Original Application deserves to be allowed.

69. Accordingly, the Original Application is allowed. The order dated 31.10.2022 (Annexure A-1) qua the Respondent No. 3 herein is hereby quashed. The Respondent No. 1 is directed to reconsider the applicant's representation dated 20.07.2022 while taking into consideration the observations made in the preceding paragraph 67 and the principles laid down by the Hon'ble High Court of Jammu & Kashmir in Dr. Vinod Gupta's case (supra). A reasoned and speaking order be passed within a period of three weeks from the date of receipt of a certified copy of this order.

70. Ordered accordingly.

71. However, there shall be no orders so as to costs.