29,"Administration of Colleges
and Hospital","(b) Medical Superintendent of
Teaching Hospital","(i) Same as given for item (i) against S. No. 27 above; and (ii) Post Graduate qualification in Surgery/
Gyneacology/ or Medicine and other clinical subjects/hospital administration.","Atleast 5 years experience as Dy. Medical
Superintendent.
,,"(b) Dy. Medical Superintendent
of Teaching Hospitals",-do-,"3 years working experience of running a
hospital after Post Graduation.
terms of the selection criteria, both the petitioners make the grade, and, therefore, are entitled to be selected and appointed against the post of Deputy Medical Superintendents in their respective categories i.e. Open and ST",,,,
Category respectively. The selection and appointment of respondent No. 5 is also assailed on the additional ground that the expert, who was associated in the selection, was not only the batch mate of respondent No. 5 in the",,,,
MD course, but has also co-authored a book with the respondent No. 5. It is thus submitted that the selection of respondent No. 5 is liable to be set aside on the ground of bias. There is, however, no specific challenge to his",,,,
eligibility qualification.,,,,
15. The respondents, including respondent No. 2 & 3, the J&K Public Service Commission, have filed counter affidavit and have justified the selection and appointment of respondent Nos. 5 to 7 on the ground that they were",,,,
the only candidates in the selection process who were conforming to the eligibility prescribed in the Rules of 1979. The claim of the petitioners, that they were not interviewed on the strength of interim directions of this Court",,,,
but were permitted in the interview process after obtaining fresh certificates from them and after being satisfied about their eligibility, is also refuted by the respondents. Referring to the interim directions passed in SWP No.",,,,
498/2006 and SWP No. 507/2006, the respondent no. 2 claims that it was in pursuance of the directions passed in the aforesaid writ petitions that both the petitioner were permitted to participate in the interview. The selection",,,,
Board considered the certificates submitted by them in the light of Rules of 1979 and the clarification issued by the government and found both of them ineligible, not possessing the requisite experience of three years in running",,,,
the Administration of a Hospital. The private respondents have also filed their objections and have justified their eligibility and selection on similar lines.,,,,
16. Heard petitioner in person, learned counsel appearing for the respondents and perused the record. Dr. Nazir Ahmad Khan, who has been impleaded as respondent No. 9, is also heard in the matter.",,,,
17. Before proceeding to discuss the grounds of challenge urged by the petitioners in this petition to assail the selection and appointment of respondent Nos. 5 to 7, the core issue involved in this petition as to the eligibility of a",,,,
candidate for the post of Deputy Medical Superintendent in the Health and Medical Education Department, needs to be determined.",,,,
18. From the extract of relevant rules reproduced herein below, it is clear that for the post of Deputy Medical Superintendent of a teaching hospital, a candidate must possess recognized medical qualification indicated in I or II",,,,
schedule (other than licentiate qualification) to the Indian Medical Council Act, 1956 and the Holders of educational qualification included in part II of the III schedule should fulfill the conditions stipulated in section 30 (iii) of",,,,
the Indian Medical Council Act 1956. A candidate for the post must also possess the following qualifications:,,,,
“ (i) Post graduate qualification in Surgery/Gynecology/or medicine and other clinical subjections/hospital administration should have three years working experience of running a hospital after Post Graduation.,,,,
(ii) three years working experience of running a hospital after Post Graduation.â€,,,,
19. There is no controversy so far as the first two qualifications are concerned. The petitioners and respondent Nos. 5 to 7 all possess the first two qualifications. There is, however, serious dispute with regard to 3rd",,,,
qualification, which pertains to the experience required for the post. A plain reading of the 3rd qualification would project a very vague and hazy picture. It speaks of working experience of three years of running a hospital,",,,,
without specifying the nature of hospital, Government or Private, associated hospital of the Medical College or otherwise, nor does it indicate the standard and the size of the hospital. It could be two bedded hospital; it could be",,,,
100 bedded hospital or could be 500 bedded hospital. There is absolutely no clarity in this regard. The Government clarification, strongly relied upon by the parties to this litigation also does not throw any light on this aspect,",,,,
except providing that a person who claims to have acquired working experience of running a hospital must demonstrate that he was involved in the administration of the hospital by a formal order. The clarification, as is",,,,
apparent from its plain reading, has been issued in the context of the claim of the Registrars, that during their Registrarship, they were involved in running the administration of the hospital. Interestingly, the respondent No.1, in",,,,
its clarification, also does not indicate that who should be the competent authority to issue the formal order, entrusting administration of a hospital to a Registrar, Demonstrator or a Resident Medical Officer etc. etc. It is in",,,,
view of vagueness of the relevant Rule, coupled with lack of clarity by respondent No.1, the petitioners herein and many others have been forced to litigate in this Court. Had the respondents been vigilant and realized this",,,,
uncertainty in the Rule and taken remedial measures, a lot of litigation could have been prevented, which would, in turn, have saved the precious time of the Courts.",,,,
20. It is true that during the process of selection, the respondent No.2 realized the difficulty in this regard and took up the matter with respondent No.1 to supplement the Rule by issuing some clarification, but, as noticed above,",,,,
respondent No.1 failed in the performance of its duty and instead of clarifying the position and supplementing the Rule, it introduced further confusion.",,,,
21. It may also be pertinent to note here that the post of Deputy Medical Superintendent under the Rules of 1979 has to be filled up either by way of direct recruitment or by way of deputation of the Chief Medical officers and,,,,
equivalent from the Health Department. Hardly any Chief Medical Officer or equivalent, serving in the Department of Health, have been brought on deputation to serve as Deputy Medical Superintendent in the teaching",,,,
hospitals. The respondent No.1 has all along adopted a method of pick and choose for assigning the job of Deputy Medical Superintendent to different Medical officers in sheer violation of Rules of 1979. The association of,,,,
Doctors/ Medical officers of different ranks in the administration of the Medical Colleges/Teaching Hospitals has always been at the sweet will of the people at the helm of affairs. There has never been any rationale criteria,,,,
or yardstick to pick up a Medical officer for running a hospital. Those, who have say in the corridors of the power that be, manage their posting and get themselves associated some how with the administration of running a",,,,
teaching hospital, and, it is on the basis of this illegitimately acquired experience, they stake claim for the post of Deputy Medical Superintendent in teaching hospitals. This has exactly happened in the instant case as well.",,,,
22. Though, respondent No.1 has not specified as to who is the competent authority to issue a formal order in favour of the Registrars to look after the administration of a teaching hospital. The clarification issued by it, is as",,,,
vague as anything, yet no authority other than the Government in the Health and Medical Education Department could be said to be a competent authority to confer the administration duties of running a teaching hospital on the",,,,
Registrars. Registrar and Demonstrator is a tenure post and would end with the expiry of three years term. During the course of Registrarship or Demonstratorship, the candidate performs the assigned duties, like OPD/Ward",,,,
duty/ night duty/ wait duty and deliveries, depending upon their specialization. Given the duties the Registrar is obliged to perform, it cannot be said that he, by virtue of being a Registrar, also acquires the working experience of",,,,
running a hospital.,,,,
23. The post of Deputy Medical Superintendent is a post to be filled up by direct recruitment and persons, who are not in Government service, are also entitled to be considered for the post provided they possess the requisite",,,,
eligibility. They can always rely upon the experience of running a hospital, if any, gained by them in running the administration of a Private hospital. The doctors serving in the Department of Health, who are serving as Chief",,,,
Medical Officers in the District and Medical Superintendent in the District hospitals may also claim to have acquired the said experience. It would thus be travesty of justice if the only candidates, who have some how",,,,
remained associated with some aspects of administration of Medical College Hospital alone, are considered for the post, that too, on the basis of certificates issued either by the Head of the Department concerned or the",,,,
Principal of the Government Medical College, with which the teaching Hospital is associated. Viewed from this angle and looking to the fluidity and flexibility of the interpretation that can be put on the recruitment Rule, it is",,,,
case where all are either eligible or all are ineligible for the post. The respondent No.2 cannot be permitted to accept the certificate of some as valid and reject almost similar certificates possessed by the other. The certificate,,,,
of experience, whether issued by the Head of Department or the Principal or even by the Government, stand on the same footing insofar as the recruitment Rules in question are concerned. Merely, because some Registrar or",,,,
a Medical Officer, has come to be associated with some aspects of administration of a hospital does not mean that such person has a working experience of running a hospital. The term ‘working experience of running a",,,,
hospital’ is required to be given meaningful interpretation. The Medical Superintendent or a Deputy Medical Superintendent in a teaching hospital runs the administration in all its aspects. Maintaining roster of para- medical,,,,
staff, ensuring sanitation of the hospital, providing requisite men and supplies to cater to the needs of the patients, acting as Drawing and Disbursing officer for payment of emoluments of the staff working in the hospital and",,,,
looking after so many other aspects associated with the administration of a hospital. The Casualty Medical officer looking after the emergency of the hospital or a Resident Medical Officer, looking after the ward, cannot be",,,,
said to be persons responsible for running the administration of the hospital. True it is that the vagueness in the recruitment Rules and lack of efforts on the part of respondent No.1 to supplement the Rule by requisite,,,,
clarification, the respondent No.2 always had a field day. I am not doubting the wisdom of respondent No.2. It, in the given circumstances, has perhaps acted in the best possible manner but that does not satisfy the",,,,
requirement of Rules.,,,,
24. Under these circumstances, if the Court holds all the candidates including the selected candidates, except respondent No.5, ineligible, not possessing the requisite experience, I have to quash the whole selection. But, at the",,,,
same time this Court cannot loose sight of the fact that the selected candidates, after having been appointed, have been continuously working and have got further promotion to the post of Medical Superintendents in the",,,,
teaching hospitals of the Health and Medical Education Department. Accordingly, the only way out, in these circumstances, is to grant the relief to the petitioners who have been litigating in this Court for the last more than 11",,,,
years.,,,,
25. Accordingly, I propose to dispose of this petition by providing as under:-",,,,
(i) The selection of Respondent Nos. 5 to 7 shall remain intact and is not interfered with.,,,,
(ii) The petitioners shall also be entitled to be appointed as Deputy Medical Superintendents in the Health and Medical Education Department, with effect from the date respondent Nos. 5 to 7 have been appointed",,,,
retrospectively with all consequential benefits minus the monetary benefits. However, the petitioners shall be entitled to the monitory benefits from the date of their actual appointment.",,,,
(iii) The respondent No.1 is directed to take note of the observations made herein above and to take immediate remedial measures to set right the Rule prescribing qualification for the post of Deputy Medical Superintendents,,,,
so that un-necessary litigation on the subject is avoided and the posts of Deputy Medical Superintendents are filled up in time.,,,,
(iv) It shall be appropriate for the respondent No.1 to do away with the practice of making temporary / adhoc or contractual appointments against the posts of Deputy Medical Superintendents and instead fill up the same by,,,,
way of deputation of Chief Medical Officers/Medical Superintendents or equivalent from the Department of Health as provided in the existing Recruitment Rules.,,,,
26. Ordered accordingly.,,,,
27. Respondents to comply the above directions within four weeks from the date they are served with the certified copy of this judgment.,,,,
28. Registry to forward a copy of this judgment to the Chief Secretary of the State for taking a call in the matter so that future un-necessary litigation on the issue is avoided.,,,,
