MOHAMMAD AHSAN DAR Vs. STATE OF J AND K

JUDGEMENT

(1.) The facts material for disposal of the CMP may be stated in brief. It transpires from the pleadings of the parties that the petitioner as also respondents 3 to 5 had applied in consequence to an advertisement Notice of Sher-i-Kashmir Institute of Medical sciences, Soura (for short SKIMS) for the post of Lecturer in Opthalmology. The respondents 3 to 5 succeeded in the selection process to the exclusion of the petitioner, consequently they came to be appointed in SKIMS vide Government order No. 43-IMS of 1999 dated 25.09.1999. Such appointment has not irked the petitioner but it is the selection of the respondents 3 to 5 made by the Jammu and Kashmir Public Service Commission for the post of Lecturer in the department of Health & Medical Education, the petitioner is aggrieved of, which owes its origin to the Advertisement Notice No. 21-PSC of 1997 dated 6.10.1997. The selection is impugned on the basis of a condition imposed on the respondents 3 to 5 in their appointment order issued by the SKIMS bearing No. 43-IMS of 1999 dated 25.09.1999 which is extracted for facility of reference.

(2.) Controverting the contention it is contended that the condition does not apply to their case because they had applied to the J&K Public Service Commission prior to their appointment in SKIMS Medical College, Bemina, Srinagar. The contention needs to be appreciated in the light of the contents of the Advertisement Notice No. 21-PSC of the J&K Public Service Commission which dates back to 06.10.1997 and a bare perusal of the notice reveals that the last date for receipt of application forms in case of personal delivery of applications was 17.11.1997 and for postal delivery it was 13.11.1997. In this view of the matter it can be safely inferred that respondents 3 to 5 had applied for the posts to the J&K Public Service Commission somewhere in the month of November 1997 whereas their appointment in the SKIMS Medical College,Bemina Srinagar has come into existence on 25.09.1999. These facts being not in dispute, the conclusion available is that they did not apply for the post to the Jammu and Kashmir Public Service commission after imposition of the condition but certainly prior to it.

(3.) It is next contended that respondents 3 to 5 having been selected by the SKIMS Bemina Medical College, were relieved by the Health and Medical Education Department vide communication No. HD-GAZ/93/95, dated 27.10.1999, therefore, they are not eligible for selection / appointment because their appointment was made as in-service candidates and since they have ceased to be the members of the Health & Medical Department they have lost the right of selection / appointment. This contention is refuted by the other side by making reference to the very notification of 1997 to show that right to apply was not confined to in-service candidates of Health & Medical Education Department only.