STATE OF J&K Vs. MOHINDER NATH GUPTA
LAWS(J&K)-1999-3-29
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 22,1999

STATE OF JANDK Appellant
VERSUS
Mohinder Nath Gupta Respondents

JUDGEMENT

- (1.) THIS appeal is directed against a judgment passed by a learned Single Bench of this Court (V.K. Gupta J, as his Lordship then was) on 31.1.1996 in SWP No. 607/94. Under the impugned order, writ petition was allowed and after passing a writ of mandamus, appellants were directed to consider the petitioner for promotion to the post of professor (orthopedics), exactly on the same line and analogy as was done in the case of respondent No.2 (Dr. G.R. Mir) who was arrayed as respondent No.3 in the writ petition. The writ court also directed that all consequential benefits be granted to the petitioner on similar lines. It was further directed that the writ petitioner would either be considered against any available vacancy in the Department of Orthopedic itself or if no vacancy was available at present in the Department of orthopedics, against any available vacancy of professor in Medical College Jammu, or on the occurrence or availability of next vacancy in the same College, The relevant finding of the writ court is reproduced as under: - For the foregoing reasons this petition is allowed. Respondent No. 1 and 2 are issued a writ of mandamus and hence directed to consider the petitioner for promotion to the post of professor (orthopedics) exactly on the same lines, and analogy as was done in the case of respondent No. 3 and by according same parity to him as was done in his case. On being accorded consideration, the consequential orders shall be passed by giving all benefits to the petitioner on similar and identical lines as was done in the case of respondent No. 3. The consideration shall be accorded to the petitioner either against any available vacancy in the department of orthopedics itself, or if no vacancy is available at present in the department of orthopedics, against any other available vacancy of professor in the Medical College Jammu or on the occurrence of availability of next vacancy in the Medical College Jammu. Mr. S.K. Anand, learned GA at this stage submitted that the relief being given to the petitioner be confined only to his consideration against a vacancy in orthopedics, and not against a vacancy in any other Department/field. 
(2.) THE writ court again reiterated the same direction in the same judgment. This direction is also reproduced as under: - Since, however, this court is now trying to undo the damage already been inflicted upon the petitioner, the ends of justice can be served only if an unequivocal direction is issued for the petitionerâ„¢s consideration against any available vacancy in the Medical College, not confining consideration to a vacancy in orthopedics only. If the consideration is confined to a vacancy in orthopedic and if no such vacancy actually is available in that department, the nature of relief granted to the petitioner may ultimately turn out to be elusive. Based on the aforesaid reasoning and considerations this petition is allowed. No order as to costs. 
(3.) THIS order has been challenged by he appellant state on the following grounds: - 1 - That the order is quite against the spirits of law and traverses beyond the scope of judicial powers of the court. A person can be appointed only on a post which is available in a department to which he belongs and not on any post other than those falling out side the department; 2 - That the learned Single Bench has proceeded on an erroneous proposition of fact. Dr. G.R. Mir was directly appointed as Assistant Professor vide Government orderNo.438 -HME of 1981 dated 15.10.1981. Thereafter he was promoted to the post of Associate Professor in orthopedics in regular capacity vide Govt. order No.649 -HME of 1987 dared 18.2.1987 witheffectfrom3.2.1986. As far respondent No. 1 Dr. Mohinder Gupta is concerned he was adjusted as Associate Professor in orthopedics vide Govt. order No.442 -GR(HME) of 1990 dated 26.3.1990. This Government order was passed pursuant to a direction issued by a single Bench of this court (K.K. Gupta J, as hi; lordship then was) on 20.12.1989, in OV/P 86/89, subsequently a post of professor in orthopedics Government Medical college Srinagar fell vacant to demise of Dr. Ashai. As per seniority list of faculty members Dr. T.S. Sethi, who was the senior most, had already been adjusted on adhoc basis as professor, The post was therefore, offered to two doctors namely Dr. Deodar Singh and Dr. V.M. Soodam, who were asked to give their consent for their adhoc promotion and adjustment against the post available at Srinagar. These doctors respectively figured in the seniority list at S.No. 1 and 2. They gave no consent. Therefore, respondent No.3 (Dr. G.R. Mir), who was senior faculty member, was promoted for a period of six months. His order of promotion was passed by the Government under Govt. order No. 891 -HME of 1993 dated 6.12.1993. Because respondent No. 1 figured below Dr. Mir, in the seniority list, therefore, offer could not be made to him. Subsequently two posts of professors which had become available in orthopedics department were referred to the PSC/DPC for being filled up under rules. On the basis of merit and seniority, the D.P.C. recommended Dr. T.S. Sethi and Dr. Deedar Singh. Dr. V.M. Soodan, who is undisputedly senior to respondent No. 1 continued to function as Associate professor. Meanwhile respondent No.2 Dr. Mir obtained a direction from the High Court that he should be considered for the post of professor and should also be allowed to continue on the post which he was holding on stopgap arrangement. Dr. Mir continues to hold the post under court orders. We have heard the arguments advanced by either side. We have also gone through the judgment impugned. We would first like to clarify the position with regard to the nature of appointment of respondent No.2 Dr. G.R. Mir as professor. Government order No.981 -HME of 1993 dated 6.12.1993 appoints Dr. G.R. Mir on stopgap basis for a period of six months or till the vacancy is filled up by the PSC/DPC, which ever is earlier. This appointment is also subject to the superior claim of his seniors and with the condition that this arrangement shall not confer any right upon him for regular appointment under rules. We for purposes of making the position clear, are reproducing the Government order as under: - Subject: - Promotion of Dr. G.R. Mir, Associate professor (orthopedics) Government Medical College. Srinagar. Government order No.891 -HME of 19927 1993. Dated06/12/1993. Sanction is accorded to the promotion of Dr. G.R. Mir, Associate Professor (Orthopedics) Government Medical College, Srinagar as Professor (Orthopedics) on stopgap basis for a period of six months or till the time the vacancy is filled by the public service commission/DPC, whichever is earlier subject to the superior claim of his seniors and with the condition that this arrangement shall not confer any right on him for regular appointment as professor under rules. By order of the Government of Jammu and Kashmir.  A birdâ„¢s eye view of this order will show that Dr. Mir has not been appointed as professor on regular basis. His appointment is couched in so many words. We can outline the features of this appointment as under: - i) This is only a stopgap arrangement for a period of six months, or till the vacancy is filled up on regular basis, whichever is earlier, ii) The appointment is subject to superior claim of his seniors, if any; iii) That the arrangement is definitely not to confer any benefit on Dr. Mir for appointment as Professor on regular basis. It all implies that his regular appointment under rules is yet to be made. ;


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