Kavi Raj & Ors vs State Of J&K & Ors

3. In June, 1997 the Public Service Commission after completing the process of selection, prepared a select list of successful candidates. The names of the appellants herein, appeared in the list of successful candidates. Consequent upon the selection of the appellants as Assistant Surgeons by the Public Service Commission, the Department of Health and Medical Education, issued an order dated 12.8.1997 appointing the appellants against the advertised posts of Assistant Surgeons. An extract of the aforesaid order, relevant to the present controversy, is being reproduced hereunder:

4. A Government Order pertaining to the posting of Assistant Surgeons, was issued by the Department of Health and Medical Education on 17.7.1997. Paragraph 5 of the aforesaid Government Order is relevant, and is accordingly being extracted hereunder:

Buildings.” Sub-paragraph (f) of paragraph 5 extracted hereinabove leaves no room for any doubt, that Assistant Surgeons could be posted in Hospitals of Jammu and Srinagar including evening/urban clinics, “….and after that…”, in medical education and other organizations. In consonance with the Government Order dated 17.7.1997, the Principal, Government Medical College, Jammu, by an Office Order dated 30.12.1997, posted all the appellants against the vacant posts of Senior/Junior House Officers, at the Government Medical College, Jammu (and at hospitals associated with the said college).

5. Despite posting of the appellants at the Government Medical College, Jammu (and/or at hospitals associated therewith), on 30.12.1997; within a week thereof, by an order dated 7.1.1998, the Principal, Government Medical College, Jammu, reverted the appellants to their parent Department, namely, the Directorate of Health Service, Jammu. The instant order dated 7.1.1978 was first assailed by the appellants before the High Court of Jammu and Kashmir (hereinafter referred to as “the High Court”). It is now the subject matter of challenge by them, before this Court. Since the present controversy relates to the order dated 7.1.1998, whereby, the appellants were ordered to be reverted/repatriated to their parent department, the same is being extracted hereunder:

Whereas the Health, FW and Medical Education Deptt issued appointment orders in favour of 1097 Assistant Surgeons and directed the two directors of Health Services to post these doctors in rural areas and other places in pursuance of guidelines as embodied in Government Order no.635 HME of 1997 dated 17.7.97.

21. For the reasons expressed hereinabove, we are satisfied, that the impugned order passed by the Letters Patent Bench of the High Court on 24.2.2006, does not suffer from any factual or legal infirmity. The same is therefore, affirmed.

25. The factual position in the present controversy is slightly different. Before this Court two Special Leave Petitions were filed. The Assistant Surgeons against whom the Letters Patent Appeal was dismissed in default, are also before this Court. They have also been afforded an opportunity of hearing. This Court has expressed the opinion that the order passed by the Letters Patent Bench of the High Court on 24.2.2006 deserves to be upheld. If the Assistant Surgeons whose Letters Patent Appeal was dismissed in default, had not been before this Court, it may not have been possible for us to re-adjudicate upon their claim. Since all of them are before us, and have been represented through counsel, we have no doubt in our mind, that the determination on merits in the instant controversy should be extended to them, as well. Since such a choice can be made in the present case, we are of the view, that the proposition which has been upheld as legal, should be extended to the others similarly situated. The converse proposition, does not commend itself for acceptance. It would be unthinkable to implement an order, which has been set aside after due notice and hearing. We therefore, find no merit in the technical plea advanced at the hands of the learned counsel for the appellants.

26. The reversion/repatriation of the appellants to their parent department, i.e., the Directorate of Health Services, Jammu, is affirmed. The appellants who have continued to discharge their duties eversince their induction into service at the Government Medical College, Jammu (and/or at hospitals associated therewith), will be repatriated/reverted to the Directorate of Health Services, Jammu. Now, that the matter has attained finality, they must be relieved from their postings in the Directorate of Medical Education. So as to enable them to accept the reality of the situation, and to acclimatize them with the position emerging from our order, we consider it just and appropriate to direct, that the appellants be allowed to be continued at their present place of posting till 31.3.2013. They shall be relieved from their posting in the Directorate of Medical Education under all circumstances on the afternoon of 31.3.2013, for onward posting against a cadre post in the Directorate of Health Services.

Disposed of in the aforesaid terms.

January 9, 2013.