HIGH COURT OF JAMMU & KASHMIR AT JAMMU Date:31.10.2008 SWP Nos.762/2008, 763/2008, 764/2008, 790/2008, 800/2008, 881/2008 and 946/2008 Dr. Neeraj Mahajan vs State & ors. Dr. Suchi Gupta vs State & ors. Dr. Gagan Gopal vs State & ors. Dr. Deepak Kumar vs State & ors. Dr. Rajesh Kumar & anr. vs State & ors. Dr. Rajesh Bhagat vs State & ors. Dr. Rashmi Kumari vs State & ors. Hon’ble Mr. Justice Y. P. Nargotra, Judge. Whether approved for reporting? For Petitioners : M/S R. K. Gupta, Abhinav Sharma, Rakesh Sharma, Y. E. Tak and Mrs. Swati Gupta, Advocates. For respondents : Mrs. Shahista Hakim, Dy. A. G., and Mr. F. A. Natnoo, Advocate. The dispute in these writ petitions relates to advertisement notices No.DIP/J- 850 dated 8.5.2008 and No.MC/ESTT/GD/109/1458 dated 11.6.2008 issued by the Principal, Government Medical College, Jammu, whereby applications have been invited for the posts of Registrars/Demonstrators in various disciplines from the in- service J&K Medical (Gazetted) Service doctors, who have put in at least two years service as Assistant Surgeon, for their deployment as Registrars/Demonstrators in Government Medical College, Jammu on tenure basis for a period of two years. 2 The writ petitioners who do not have the two years experience but have one year of service at their credit, for having been rendered ineligible to apply, have filed the instant writ petitions for questioning the validity of the advertisement notices. Their case is that in terms of the recruitment rules, the Assistant Surgeons with one year experience are eligible for selection for the post and, as such, could not be legally denied the right to compete for the post. Recruitment to the posts of Demonstrator/Registrar is governed by Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. Schedule II of the Rules describes the minimum qualification and experience required for being eligible for selection, while Schedule III gives the method of recruitment for the post. As per entry A(VI)(I) & (II), the following is the prescribed method of recruitment: SCHEDULE ‘III’ Class Category Designation of the post Grade Method of recruitment 1 2 3 4 5 A Teaching Wing: I - - - - II - - - - III - - - - IV - - - - V - - - - VI I Registrar 600-1350 By deputation from J&K Medical (Gazetted) Service for a specified period on the recommendation of the Selection Committee of Medical Colleges). II Demonstrator 600-1350 do 3 Therefore, the only mode prescribed for filling up the post is by deputation for a specified period of an officer who is in the J&K Medical Gazetted Service and who has been selected by the Selection Committee of the Medical College, J&K Medical Service comprises of the members selected and appointed on the cadre posts in terms of J&K Medical (Gazetted) Service Recruitment Rules, 1970, indicated in the Schedule appended thereto. ‘Member of Service’ has been defined by Rule 3(c) as follows: ‘Member of service’ means a person appointed to a post in the service under the provisions of these rules or the rules and orders superseded by Rule 2.” In terms of Rule 9, persons appointed have to be on probation for two years. Rule 9 reads: “9. Probation:- Persons appointed to any class or category in the Service shall be on probation for two years and their continuation in the class or category shall be regulated under the provisions of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956.” The post of Assistant Surgeon in the grade of 300-750 (old) is one of the posts in the service constituted under J&K Medical (Gazetted) Service Recruitment Rules, so the persons holding the posts in the cadre of Assistant Surgeons can be validly considered for being deputed for the post, but for being so considered they are also required to satisfy the eligibility conditions relating to qualification and experience prescribed by Schedule II. 4 Entries 27(ii) and 28 of Schedule II provide as follows: SCHEDULE ‘II’ S.No. Subject Designation of the Post Minimum Qualification Minimum Teaching/research experience 1 2 3 4 5 27(ii) Basic Sciences & Microbiology and Pharmacology. Demonstrators (i) For medical persons: Same as for (i) above. (ii) For non-medical persons: Post- graduate qualifications in the concerned subject from a recognized University or Institute. Preference will be given to Ph.D., M.B.B.S; M.S.?M.D. in the subject will be preferred. One year experience as a House Officer or equivalent recognized experience. 28. … Registrars do do Here we are concerned with the experience part of the rule. The rule stipulates two alternate conditions relating to the experience “(i) one year experience as a House Officer, or (ii) equivalent recognized experience.” An Assistant Surgeon, who satisfies either of the two conditions, would be eligible for selection. Thus, an Assistant Surgeon who has one year’s experience of House Officer at his credit would be eligible for selection. Likewise, an Assistant Surgeon who does not have one year’s experience of House Officer but has ‘equivalent recognized experience’ would also be eligible for selection. It needs to be kept in view that in terms of J&K Medical (Gazetted) Service Recruitment Rules, 1970 one year experience as a House Office is not a condition precedent for selection and appointment for the post of Assistant Surgeon. Admittedly, the job of a House Officer is not in the nature of a regular service but is an optional one. The persons who have obtained a degree in Medicine and Surgery etc. may be appointed as a House Officer in Government College Hospitals for a year for assisting the Doctors appointed substantially in providing medical care to the patients and for 5 which they are paid monthly stipend and not salary. A person who has not performed the job of a House Officer after obtaining his medical degree still is eligible for being appointed as Assistant Surgeon directly. An Assistant Surgeon appointed directly without having one year’s experience of working as House Officer would also be eligible for being considered for deputation to the post of Demonstrator or Registrar in terms of the above rule, if he satisfies the later part of the experience rule, i.e., equivalent recognized experience. What would the expression “equivalent recognized experience” mean? Neither the rules nor in any government order the expression has specifically been defined or clarified. The contention of Mrs. Hakeem, learned Deputy A. G., is that meaning of the expression has to be understood in the light of Government Order No.872- HME of 2007 dated 20.12.2007. The said Government order reads follows: “It is hereby ordered that no Assistant/Dental Surgeon shall be considered/eligible for the tenure posting of Registrar/Demonstrator in Government Medical/Dental Colleges unless he/she has completed probation period of two years as provided in Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956.” On the strength of the above quoted order, Mrs. Hakeem submits that one year’s experience of House Officer shall be equivalent to two years experience of working on the post of Assistant Surgeon as a Probationer as provided in J&K Civil Services (Classification, Control & Appeal) Rules, 1956. 6 The contention of Mr. Gupta, learned counsel for some of the writ petitioners is that one year experience of House Officer being optional and inferior in character can not be equated with two years experience of Assistant Surgeons. He submits that the House Officers only assist the Doctors substantially appointed for providing medical care to the patients in the hospitals, while the Assistant Surgeons directly deal with the patients in the hospitals in providing them the necessary medical care. According to him, the job of Assistant Surgeons being superior in character, their experience on the job has to be accepted as superior to that of the House Officers. He submits there can be no valid rationale for equating one year experience of a House Officer with two years experience as Assistant Surgeon. According to him, the Government Order No.872-HME of 2007 dated 20.12.2007 suffers from the vice of arbitrariness and deserves to be quashed. Mr. Abhinav Sharma, learned counsel for some of other writ petitioners submits that the rule simply speaks of experience alone without further specifying the position. If the Government has recognized the experience of an Assistant Surgeon, it has to be for the same duration which has been prescribed for the House Officer. The concept of a confirmed Assistant Surgeon or an Assistant Surgeon who has completed two years service is wholly alien to the rule for the purposes of determination of experience. I have considered the respective contentions of the learned counsel for the parties. 7 As already noticed, the experience rule incorporates two alternate conditions. The expression ‘equivalent recognized experience’ used in the second condition in view of its language needs to be read and understood in the light of first condition. The first condition postulates one year experience as House Officer, so the experience contemplated by 2nd condition has to be equivalent in duration and in the nature and character, which may be recognized as identical to that of a House Officer by the appointing authority. The experience acquired at what position or post should be recognized equivalent to the experience of a House Officer has itself by the recruitment rules been limited to the posts in the service constituted under the J&K Medical (Gazetted) Service Recruitment Rules, 1970, which includes the post of Assistant Surgeon, because the post of Registrar/Demonstrator in terms of the recruitment rules can be filled up only from such service. The Government by issuing the Government Order No.872-HME of 2007 dated 20.12.2007 has by necessary implication recognized the better experience of an Assistant Surgeon at par to the experience of the House Officer, but duration of such experience in case of Assistant Surgeon has been extended to two years. In my considered view the duration of the experience in respect of Assistant Surgeon in terms of the experience rule can not be extended, as the same has to be equivalent to the one prescribed for House Officer irrespective of whether the Assistant Surgeon has completed or not completed the period of probation, for the 8 reason that the rule speaks of experience and not of the experience acquired during the period of probation on any particular position. Vide Government Order No.872-HME of 2007 dated 20.12.2007 by making completion of two years period of probation by Assistant Surgeons an essential condition for being considered for selection, on one hand renders the Assistant Surgeons having one year service experience ineligible for selection and, on the other, excludes from competition even those Assistant Surgeons who may be eligible in terms of the recruitment rules for having one year experience as House Officer to their credit. Mrs. Hakim contends that for being eligible for selection an Assistant Surgeon, as per the prescribed method of recruitment, has to be the member of service constituted under J&K Medical (Gazetted) Service Rules, 1970 and he can be deemed to be the member of service when he completes the period of probation. She submits that after completion of such service if one has the experience of a House Officer, he would be eligible for selection and if he does not have such experience, he would become eligible after one year’s experience acquired by him after completion of period of probation. The above contention of Mrs. Hakeem in my considered opinion is not tenable. Method of recruitment envisaged by the recruitment rules provides for deputation from the Medical Gazetted Service. Medical Gazetted Service comprises of the members of service appointed on the classes and categories of the 9 posts indicated in the Schedule appended to J&K Medical (Gazetted) Service Recruitment Rules, 1970. As per the definition given in Rule 3(c), the member of service means the persons appointed under the rules. Thus appointment to the post of Assistant Surgeon is not subject to completion of period of probation. In terms of Rule 9, probation follows the appointment because as per the said rule the persons appointed to any class or category in the service are required to be on probation. Therefore, the moment an Assistant Surgeon is appointed under J&K Medical (Gazetted) Service Recruitment, 1970, he becomes the member of service. Therefore, if such Assistant Surgeon has one year experience of House Officer, he would be eligible for selection immediately after his appointment. If he does not have such experience, then he would become eligible after he has completed one year service and during such service acquired the experience in patient care. In this view of the matter, the Government Order No.872-HME of 2007 dated 20.12.2007 cannot be legally sustained, as it has rendered the eligible Assistant Surgeons ineligible for selection. Consequently, the impugned advertisement notices too cannot be declared legally valid. For the aforesaid reasons, by holding that the Assistant Surgeons, who have one year experience as House Officer and Assistant Surgeons, who have completed one year service and acquired the experience of patient care, would be eligible for selection to the post of Registrar/Demonstrator, I quash the Government Order No.872-HME of 2007 dated 20.12.2007 being contrary to rules and, consequently, 10 also quash the impugned advertisement notices. Accordingly, these writ petitions shall stand allowed. The respondents shall be free to issue fresh advertisement notice in accordance with rules. Connected CMPs shall also stand disposed of. Jammu (Y. P. Nargotra) Date:31.10.2008 Judge (Anil)