- (1.)PETITIONER seeks writ of mandamus against the State to appoint and post him as professor of Medicine in the Medical College, Jammu and wants a further command in respect of payment of emoluments and salary from the date of his selection i.e. January 1974 and for quashing the order of suspension. His case is as follows:
(2.)PETITIONER holds a degree of Doctor of Medicine from Nagpur University and he has many publications to his credit on the Subject. He is said to have obtained a fellowship from International College of Angiology from U.S A. He is said to have served the Medical College Nagpur and in the year 1968 he was appointed as a physician by the respondent in SMGS Hospital, Jammu. Thereafter he is said to have been appointed as Assistant Professor in Medical College, Srinagar. Later on he is said to have been appointed as ËœAâ„¢ grade physician Specialist. Petitioner was working as such till 1974. A notification is said to have been issued on 3.11.1973 for the posts of Professors in the scale of 1200 -1900 plus Rs. 400/ - as non practicing allowance in the number of specialities. A selection committee was already set up for selecting the suitable candidates. The selection committee consisted of eight persons who are mentioned in para 6 of the writ petition. Criteria for selection was also laid down by the respondent -which was to be followed by the selection Committee.
(3.)PETITIONER is said to have appeared before the selection Committee for being appointed as professor in the Medical College, Jammu. Petitionerâ„¢s name was not mentioned in the selection list though he said to have faired well in the interview which was conducted for selection of professors. One Dr. Bal Krishan, Assistant professor, post Graduate, Institute of Medical Science, Chandigarh was appointed as professor of Genera! Medicine, but he is said not to have joined the post which is still vacant. Petitioners case is that he was positively selected by the selection committee and he was entitled to be appointed as professor. Respondents have committeed illegality and irregularity in not appointing him as professor. Dr. Raj Nath Bhatâ„¢s appointment as professor is said to have been made contrary to the rules and without the sanction of Medical Council of India. The said Doctor was transferred to Srinagar alongwith his post on 14 -8 -1978.
It is stated that the then Secretary to the Government Medical Education, Dr. Santosh, Singh Anand bore ill will, malice and enemity with the petitioner. He wanted to help Dr. Raj Nath Bhat. With his manipulations and with the manipulation of Health Secretary, Shri J.P. Kesar, petitioner was excluded from selection. They are on the other hand said to have managed petitioners eviction from Quarter No ; 3 attached to the SMGS Hospital Jammu in which the petitioner was residing at the relevant time. Proceedings against the petitioner were commenced under the public premises Eviction of Unauthorised occupants Act. Petitioner was ordered to be evicted. He filed an appeal and a writ petition before the High Court which was dismissed. Ultimately the petitioner filed an LPA wh.ch was allowed and his eviction from the said house was declared. During the pendency of the LPA record of selection was not produced before the Bench hearing the LPA, The bench had therefore made certain observations which are reproduced in the writ petition. Copy of the writ petition against eviction and copy of judgment of the Single Bench which was reversed by the LPA Bench is also on record. The respondents in their counter have stated that the petitioner did appear before the Selection Committee which conducted interview of various candidates who were to be appointed as professors but he was not recommended for appointment. The said Selection Committee recommended only those persons who were found suitable for the post of professor, petitioner was hot found suitable by the Selection Committee as such his name was not recommended by it for appointment as professor. On the basis of the recommendations of the Senior Selection Committee appointed orders contained in Annexure -E were issued. Appointment of Dr. Raj Nath Bhat as professor is admitted but his appointment is justified as being valid. Petitioner could not be appointed in place of Bal Krishan Shah who had not joined his duties because petitioner was never recommended by the selection Committee for appointment. Allegation of ill will, malice and enemity attributed to the then Secretary Medical Education and Health Secretary are denied as unfounded. The matter involved in the LPA pertained only to the eviction proceedings. Any other observation made by the said bench are not concerned with the controversy which is raised in the present petition. 6. It may be stated that the petitioner had filed a writ petition for quashing the order of respondent No ; 1 in that writ petition dated 11 -7 -1974 by which the petitioner was asked to vacate the premises occupied by him as physician Specialist and also for quashing the order passed under section 5 of the J&K Public premises Eviction of Unauthorised Occupants Act of 1959, and the appellate order of the District Judge rejecting the appeal of the petitioner. In the said writ petition there were four respondents: Dr. S.S. Anand. Secretary Medical Education to the Govt; Sh. J.P. Kesar, Secretary Health Department Govt. of J&K District Judge Jammu and Assistant Commissioner Nazool (Estate officer) Jammu. State was not made a party in that writ petition. The controversy was very short. While being posted at SMGS Hospital petitioner allotted Govt. Hospital Qr. No ; 3 situated Ajaib Ghar on 10 -5 -1973. He was called to vacate the said premises allotted to him. A notice was served on him under section 4 of the public premises Eviction of Unauthorised occupants Act. Petitioner appeared before the Estate officer. He was heard but his objections were not considered and the Estate Officer declared him as an unauthorized occupant of the premises and in consequence thereof an order under section 5 of the public premises Eviction of Unauthorised occupants Act against the petitioner was passed. Petitioner is said to have filed an appeal before the District Judge against the said order. His appeal was dismissed. He challenged the eviction order as also the appellate order through the medium of a writ petition. Petitioner had challenged the legality of notice under section 4 as also order of eviction under section 5 of the public premises Eviction of Unauthorised occupants Act. He failed before a learned Single Judge and he had filed an LPA. During the pendency of LPA, he had made an application that respondents be directed to produce the minutes of the Selection Committee which had interviewed the candidates in connection with the appointment of professors of Medicines in Government Medical College Jammu. A direction was issued to the respondents in that LPA to produce the aforesaid minutes of the Selection Committee and if no minutes were recorded, then file an affidavit of the concerned Officer to the effect. No minutes were produced. An affidavit is said to have been filed by the Deputy Secretary to the Government Medical Education. 7. Two questions had fallen for consideration before the LPA bench. One, Whether the order of eviction passed against the appellant is b id in law as there has been violation of provisions of sections 4 and 5 of the public premises Eviction of Unauthorised occupants Act: Second, whether the aforesaid order has been passed malafide. After discussing the provisions of sections 4 and 5 of public premises Eviction of Unauthorised occupants Act and after considering the notice and eviction order under the Act, the LPA bench came to the conclusion that the petitioner was not an unauthorised Occupant. The order of eviction was passed without considering the objections of the petitioner and the order of the Single Judge was accordingly set aside. Notice under section 4 of the Act was also quashed. The order of eviction passed by the Estates Officer and the appellate order of the District Judge was quashed. 8. However, some observations seems to have been made by the LPA bench about the petitioners selection to the post of professor of Medicine by the Selection Committee. Since the record of the Selection committee was not made available, therefore presumption was drawn that had the record been produced, it would Nave surely belied the assertion of the respondents that the appellant vas not selected for the post of professor. Ground of malafide was not accepted by the LPA bench also, because for want of specific pleadings the said ground had failed. 9. Mr. S P. Gupta appearing for the petitioner has contended that in so far as petitionerâ„¢s selection to the post of professor is concerned, that is held to have been proved by the LPA bench deciding the writ petition against the order of eviction of the petitioner from Quarter No 3. It is contended that in the said writ petition the Division Bench has ruled that petitioner was selected as professor, therefore, it is not open to the respondents now to contend that the petitioner was not selected by the selection Committee. He contends that this finding will operate as res -judicata and will be beyond the pale of challenge in this petition. 10. His next contention is that the petitioner was selected by the Selection Committee, but his appointment could not be made because of malafides and ill -will harboured by one Dr. Santosh Singh and J.P Kesar against him. His exclusion from list of appointees is therefore illegal and bad. Neither Dr. Santosh Singh nor Mr. J.P. Kesar are parties to the present petition to answer the plea of malice levelled against them. The State is the only party in this writ petition. All those persons who were respondents in the earlier writ petition are not parties to the present writ petition 12. Mr. A.V. Gupta, learned Additional Advocate General has contended that observations made by the LPA bench while deciding the LPA No; 13/76 are only obiter dicta because in that LPA questions of petitioners selection to the post of professor or his exclusion from the list of appointees was not involved nor was that question relevant for the disposal of the LPA which was filed against the order of eviction of the petitioner from quarter No ; 3. petitioner had challenged that order as being bad and violative of section 4 and 5 of the public premises Eviction of Unauthorised Occupants Act, 1959. Therefore the short question which was required to be decided in that appeal was as to whether the eviction of the petitioner was legal or illegal. The LPA bench finding in that writ petition was in favour of the petitioner and the LPA bench had made some observations about the petitioners selection and drawn inferences, would not operate as res -judicata in the present case, It was further contended by Mr. A.V. Gupta that State was not a party in the previous writ petition therefore any finding recorded in the earlier writ petition by the LPA bench would not operate as res -judicata against the State. It is contended that petitioner was not selected and to this effect an averment is made in the counter affidavit on oath. Therefore the petitioner cannot say that he was selected. 13. In so far as the first argument of Mr. S.P. Gupta regarding the petitioner having been declared to have been selected by the Selection Committee by the LPA bench and that finding operating as res -judicata in the present writ petition against the State is concerned, I have no difficulty in saying that the said finding cannot operate as res -judicata against the State in the present writ petition. The reasons for this are given hereunder: 14. The LPA No : 13/1976 decided on 19 -1 -1979 was filed against the judgment of the learned Single Judge of this court whereby the writ petition of the petitioner was dismissed Petitioner had fifed a writ petition against the order of Secretary Medical Education whereby he was asked to vacate the premises occupied by him as physician Specialist. It had also challenged the order of Estates Officer under Section 4 and 5 of the public premises Eviction of Unauthorised Occupants Act as also of the District Judge under section 9 of the Act. The prayer made by the petitioner in that writ petition, copy whereof is available on the record was to the following effect: The petitioner, therefore, prays that for the reasons raised in this petition and for the reasons to be argued at the stage of hearing of the petition, the order of the respondent No; 1, dated 11 -7 -1971; that of Respondent No; 4 dated 15 -9 -1975 and that of Respondent No; 3 dated 1 -11 -1975 be quashed. It is further prayed that the costs of the petition be also awarded in favour of the petitioner . Respondent No: 1 and 2 in that writ petition are said to have no jurisdiction to cancel the allotment of the Government Quarter allotted to the petitioner on any ground whatsoever. The eviction notice as also the eviction order passed by the Estate officer was challenged. The petitionerâ„¢s claim as regards his Selection the post of professor was not at all directly involved in that writ petition. A feeble attempt was made by the petitioner to State hat how Dr. S.S. Anand was instrumental in manipulating the appointment of Dr. Raj Nath Bhat as professor over the Head of petitioner and this was said in the context of allegations of malafides against him who was then the Secretary Medical Education. The said Dr. S.S Anand had issued the order of cancellation of allotment against the petitioner and that order was challenged as being without jurisdiction. In the grounds of writ petition, petitioner stated that cancellation of allotment could not be made by Dr. S.S. Anand and he is said to have made a representation to Chief Minister for considering the case of the petitioner as selected candidate to be appointed on the post of professor of Medicine in Government Medical College, Jammu. Thus the petitioner challenged the legality of the eviction orders and the appellate order of the District Judge. 15. The LPA bench therefore were not concerned as to whether the petitioner was selected or he was excluded from selection. Any by observation made by the LPA bench seem to be obiter dicta and those observations cannot be held to be ratio decidendi of the judgment rendered by it. The ratio of their judgment was that the petitioners eviction from the Quarter No; 3 was bad because it was violative of the provisions of the public premises Eviction of Unauthorised Occupants Act, and without considering the objections. No other question can be considered to be the ratio in the Judgment of the LPA bench. 16. The second reason which makes me to say that the judgment of the LPA bench could not operate as resjudicata the State in the present writ petition is that the State was not a party in the previous writ petition. The observations made by the LPA bench about the selection or non -inclusion of the petitioner in the select list of professor is neither made against the State nor against the persons who were members of the Selection Committee The District Judge and Estates Officer who were parties to the writ petition had nothing to do with the selection of the petitioner to the post of professor. That earlier writ petition which was ultimately allowed by the LPA bench was not concerned with the method of selection of the petitioner or against any person who was responsible for making the selection of the petitioner and others to the post of professor for various specialities in the Medical Education Department. 17. Petitioner challenges the impugned selection list of the ground that his non -inclusion in the list was due to malafides of Dr. S.S. Anand and J.P. Kesar. Both these persons are not parties to the present writ petition. The plea of malice cannot be considered in the absence of the persons who are said to have harboured ill will or malice against the petitioner. Before the plea of malice could be considered, it was incumbent upon the petitioner to afford opportunity of making a reply to the persons against whom malafides are attributed. In the absence of those two persons and without giving them right to reply allegations of malice cannot be considered against the persons named in para 18 of the writ petition. 18. It is therefore difficult for this court to believe that the petitioner was selected and he was excluded from the list of appointees because of ill will harboured against him by Dr. SS, Anand and J.P. Kesar. There are no details of malafides and for want of details the ground of malafides must fail. There is another reason also why I do not accept the ground of malafides against Dr. Santokh Singh. In the earlier writ petition, copy where of is annexed with the present petition, malafides are alleged against Dr. Santosh Singh Anand and it is stated that because of his manipulation which was due to some malice towards the petitioner, Dr. Anand was able to suppress the factum of petitioner having been selected by the Committee and in the present writ petition entriely different story of malice attributed to two different persons is pleaded. This would not inspire any confidence to a judicial mind to even consider the plea of malice because the plea of malice seem to be contradictory and in respect of the same matter different persons are attributed with malice at different stages. I would therefore hold that the plea of malice raised by the petitioner in so far as his exclusion from the list of appointees is concerned must fail. 19. In the present writ petitioner has positively started that he was selected by the selection Committee, but not appointed by the State. Members of the Selection Committee are not made parties nor is record of selection available. However, it is stated on affidavit by the Under Secretary to the Medical Education Department on behalf of the respondent that petitioner was not found suitable by the said Selection Committee and his name was not recommended by it for being appointed as a professor. This plea of the respondent cannot be held to be without substance. I am conscious that the LPA bench has made observations which deserve to be respected. The observations are that the respondent No; 1 allegation in that writ petition that the petitioner was not selected for the post of professor of Medicines by the Selection Committee was false. The Division Bench was concious that examination of the minutes of the Selection Committee were irrelevant for the decision of LPA. Yet it made the observation and insisted upon the respondents in that petition to produce the record of selection. It is contended by Mr. A.V. Gupta that respondents in that writ petition could not be said to be custodian of the record. Petitioners plea that he was selected as professor was accepted on presumption. The presumption was drawn because the respondents in that case did not produce the record of selection. The selection record pertains to a matter which was not relevant for the disposal of LPA No. 13/1876. Therefore the presumption raised by the LPA bench cannot be used by the petitioner as a finding in his favour to the effect that he was a selected candidate for the post of professor of Medicine. 20. Even if the petitioner is said to have been selected and even if the observations of the Division Bench are taken into consideration in this regard, the question which remains to be decided is whether the petitioner has a right to seek appointment to the post of professor of Medicines. His selection would entitle him to be considered for appointment. The Selection Committee are said to have made recommendations cannot be said to be binding on the State which was not a party in the LPA No; 13/1976. Even after the selection was crude the appointing authority was not bound to accept the recommendations because the recommendations of the Selection Committee and not mandatory. They are only directory. 21. Mr. A.V. Gupta has drawn my attention to an authority of the Supreme Court in Manbodhan Lal Srivastave Versus State of U.P. (AIR 1957 S.C: 912). Art. 320 (3) (c) provides that the Union Public Service Commission or the State Public Service Commission as the case may be shall be consulted among other matters on all disciplinary matters effecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. The word, shall, in the said Article was construed to be only directory, The requirement of consultation does not extend to making the advice of the Commission on those matter binding on the Government, On the same analogy it is difficult to lay down that the advice of the Selection Committee is mandatory and binding on the appointing authority. Therefore, on the basis of the recommendations pensioner cannot lay a claim on the post and seek a mandamus that he shall be deemed to have bean appointed in 1974 when the Selection Committee had made appointments to various posts in the Medical Education Department on 17 -1 -1974. The respondent -State has denied that the petitioner was ever selected. Therefore this court cannot draw the presumption that the petitioner was selected to the post of professor. If the petitioner was infact selected and / or recommendation was made by the Selection Committee in respect of his appointment to the post of professor, this court could direct the respondent -State to consider him for appointment. Direction to appoint the petitioner could not be made even if the petitioner was selected by the Selection Committee. On the basis of recommendations of the Selection Committee petitioner would be rendered only eligible for consideration for appointment. The recommendations made by the Selection Committee would not per se entitle this court to make a direction that the petitioner should be appointed and deemed to have been appointed in 1974 as is suggested by Mr. S.P. Gupta. 22. Petitioner has stated on affidavit that he was selected by the Selection Committee. Respondent also have stated on affidavit that he was not selected by the Selection Committee. So it is difficult to disbelieve the affidavit of the respondents who are supposed to be in know of the fact as to who was selected and who was not selected. Petitioner attributes his exclusion from appointment to the malice and ill will of different persons That is not proved on record and it is held by me that ground of malice must fail for want of details and for not inspiring any confidence due to contradictions made in this petition and the earlier writ petition in respect of the persons who are said to have harboured ill will against the petitioner. There is no other reason why the petitioner should have been excluded from the list of appointees. The reason of ill will and malice has failed. Therefore, this court cannot held that the respondent deliberately or intentionally excluded the petitioner from the list of appointees. The only presumption that can be raised is that the petitioner must not have bean selected, therefore he did not figure in the list of appointees. 23. In this writ petition for mandamus, petitioner should have applied for summoning of the record of the selection Committee which was relevant to appreciate the plea of selection raised by him in the petition. The necessity of summoning the record seems to have been obviated by him because of the judgment of the LPA No; 13/1976. The import of that judgment has been explained by me. However, no inference can be drawn against the respondent -State for non -production of the record in this petit on because they were never required to produce the record of selection. In the affidavit the respondents have stated that the averments made by them are true to their knowledge which is gathered by the respondents from the official record. That would mean that the counter filed by the respondents based on the official record. No rejoinder was filed by the petitioner. Therefore, in the absence of an rebuttal this court cannot presume that the respondent has stated some thing in the affidavit which is contrary to the record maintained by it. The plea of the petitioner that he was selected by the Selection Committee in 1974 cannot therefore be accepted in the light of the counter filed by the State and in the absence of any rebuttal by the petitioner thereto. The result is that this writ petition fails and is dismissed. There will be no order as to costs.