Jammu & Kashmir High Court - Srinagar Bench

Dr. Mushtaq Ahmad vs Skims Soura on 4 October, 2023

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         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR

                          WP(C) No. 2749/2022
                        CM No.6956 and 927 of 2023

                                               Reserved on: 20.09.2023
                                               Pronounced on: 04.10.2023

Dr. Mushtaq Ahmad
S/O Late Abdul Salam Hakim
R/O Khrew Pampora District Pulwama
                                                              ..... Petitioner(s)
Through:      Mr. M.A. Qayoom, Advocate with
              Mr. Mian Rouf, Advocate.

                                      V/s

      1. SKIMS Soura, Srinagar, through
         Chairman Governing Body, SKIMS Soura Srinagar.

      2. Director SKIMS & (Ex-Officio Secretary to Govt.)
         SKIMS soura, Srinagar.

      3. Dr. Mudassir Shjarief Banday
         C/O Director SKIMS & (Ex-officio Secretary to Govt.)
         SKIMS Soura, Srinagar.
                                                            .....Respondent(s)

Through:      Mr. Sajad Ashraf, GA for R-1 and 2.
              Mr. Jehangir Iqbal Ganai, Senior Advocate with
              Ms. Mehnaz Rather, Advocate.
              Ms. Asifa Padroo, Advocate for R-3




BRIEF FACTS:

01. The instant petition has been preferred by the petitioner, in which

he has called in question the impugned Advertisement Notice No. 02 of

2021 dated 17th April, 2021, besides called in question the order of

Consideration bearing no. SIMS 130(P) of 2022 dated 30.07.2022 issued by

Respondent No. 2. The petitioner has also sought a Writ in the nature of P a g e |2

mandamus, seeking a direction against the respondents to select and appoint

the petitioner against the post of Assistant Professor in Clinical

Pharmacology, from amongst the Non-Medical Candidates by giving the

benefit of such appointment from the date the same has been given to the

Respondent No.3.

02. The instant petition came to be listed before this Court on 6 th

December 2022, in terms whereof this Court after feeling prima facie

satisfied, restrained the official respondents from finalizing the selection to

the post of Assistant Professor, Clinical Pharmacology.

03. Before indicating the grounds of challenge against impugned

advertisement notice, it would be apt to refer to the brief factual background

of the case, with a view to decide the controversy in question.

04. The petitioner has passed his M.Sc. Pharmacology from a

recognized University and has obtained Ph.D. in Medical Pharmacology

from a recognized University and pursuant thereto, the petitioner was

appointed as Demonstrator in SKIMS Medical College, Bemina, Srinagar,

on 8th May, 2003 and continued as such up to 26th July, 2007. The petitioner

was appointed as Assistant Professor in Mahatma Gandhi Medical College,

Jaipur on 18.10.2007 on substantive basis and he continued to work as

Assistant Professor (Pharmacology) in the said college upto 17.10.2012. The

petitioner was appointed as Associate Professor in the aforesaid college on

18.10.2012, on the basis of his Ph.D. Degree in Pharmacology. As per the

stand of the petitioner, he was also appointed as Professor, Department of

Pharmacology, on academic arrangement basis, at Government Medical

College, Doda, where the petitioner was performing his duties as Professor P a g e |3

and Head of Department, Pharmacology, at the time of filing of the writ

petition.

05. As per the stand of the petitioner, in terms of Advertisement

Notice No. 1 of 2012 dated 10th January, 2012, Respondent No. 2 invited

applications for filling up various faculty positions of Professor and

Assistant Professor, including four posts of Assistant Professor in Clinical

Pharmacology, under Direct Recruitment at SKIMS, on regular/temporary

basis. The further stand of the petitioner is that out of the four posts

advertised in terms of the advertisement notice dated 10 th January, 2012, the

respondents filled up two posts of Assistant Professors in Clinical

Pharmacology and two posts remained unfilled.

06. Further case of the petitioner is that while the process of filling

the two posts was under consideration, Respondent No. 2 issued

Government Order No. 74- SKIMS of 2013 dated 16th September, 2013,

where under, the recruitment rules for filling up of the faculty positions in

the Department of Clinical Pharmacology at SKIMS was notified, which is

reproduced as under:-

"M.D. (Pharmacology)/ MBBS with Ph.D. (Medical Pharmacology)/ M.Sc. (Medical Pharmacology) with Ph.D. (Medical Pharmacology)/ M.Sc. Medical Pharmacology with DSC (Medical Pharmacology)/ M.Sc. in Pharmacology with Ph.D."

07. As per the norms of Medical Council of India, the Department

shall have the faculty in the ratio of 70:30 (Medical/Non-Medical)

respectively. The aforesaid order was issued by the Respondent No. 2 on the

recommendations of the Standing Academic Committee which

recommendations were also approved by the Governing body of SKIMS

Soura, Srinagar.

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ARGUMENTS ON BEHALF OF PETITIONER:

08. Mr. M.A. Qayoom, the learned counsel appearing on behalf of

petitioner, submits that pursuant to the issuance of the order mentioned

supra, the Respondent No. 2 issued Advertisement Notice No. 07 of 2013

dated 30th September, 2013 and invited applications from eligible candidates

for filling up one post of Assistant Professor (Non- Medical) in the

Department of Clinical Pharmacology under Direct Recruitment quota on

regular/temporary basis. The prescribed minimum qualification, experience

and other terms and conditions for the post are as under:

i. M.Sc. (Medical Pharmacology) with Ph.D. (Medical Pharmacology)/ ii. M.Sc. Medical Pharmacology with DSC (Medical Pharmacology)/ iii. M.Sc. in Pharmacology with Ph.D.

09. It is the matter of fact that the post which was advertised in

pursuance to the aforesaid advertisement notice, was not filled up by the

official respondents because no candidate was found eligible, and as such,

the said post remained vacant. Thus, no candidate was appointed on the

strength of the aforesaid advertisement notice.

10. Pursuant thereto, another Advertisement Notice No. 04 of 2015

dated 10th July, 2015, was issued, whereby, applications were again invited

from eligible candidates for various faculty positions including the two posts

of Assistant Professor in the Clinical Pharmacology and following

qualifications were prescribed for the post:

M.D. (Pharmacology)/ MBBS with Ph.D. (Med.Pharmacology)/ M.Sc. (Med. Pharmacology) with Ph.D. (Med. Pharmacology)/ M.Sc. (Med. Pharmacology) with D.Sc (Med. Pharmacology)/ M.Sc. (in Pharmacology) with Ph.D.

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11. The further fact of the matter is that the process initiated in terms

of the advertisement notice mentioned supra, was also not taken to its

logical end by the respondents and, subsequently, another Advertisement

Notice No. 07 of 2016 dated 5th September, 2016, came to be issued,

whereby applications were again invited from eligible candidates for filling

up of the post of Professors and Assistant Professors under Direct

Recruitment at SKIMS on regular/temporary basis, from amongst the

persons possessing the requisite qualification and experience, which also

included the post of Assistant Professor in Clinical Pharmacology as well. In

the said advertisement notice, following qualifications were prescribed for

the post of Assistant Professor (Medical/Non-Medical) candidates.

Medical Candidates:-

M.D. (Pharmacology)MBBS with Ph.D (Med Pharmacology)/ Non-Medical Candidates:-

M.Sc. (Med. Pharmacology) with Ph.D. (Med. Pharmacology)/ M.Sc. (Med. Pharmacology) with D.Sc. Pharmacology)/ (Med.M.Sc. in Pharmacology with Ph.D.

12. The further stand of the petitioner is that in pursuance to the

aforesaid Advertisement Notice dated 5th September 2016, the petitioner

submitted his application for his selection and appointment against the post

of Assistant Professor in Clinical Pharmacology, from amongst the Non-

Medical Candidates, as he possessed the prescribed qualification and the

required experience.

13. The learned counsel for the petitioner further argued that two

posts were advertised by virtue of the aforesaid Advertisement Notice,

although there was no reference of the two posts in the Advertisement

Notice as one post was meant for the non-clinical candidates. It can safely be

construed that out of the two posts, which were advertised, one post was P a g e |6

meant for non-clinical candidates. He further submits that the respondents by

no stretch of imagination could have clubbed both the categories of Clinical

and Non-Clinical in the Advertisement Notice and that too without

identifying the posts (Clinical and Non-Clinical) and also without

identifying the posts, category-wise as well.

14. The learned counsel places reliance upon the Government Order

No. 74-SKIMS of 2013 dated 16th September, 2013, issued by the Director,

SKIMS, in pursuance to the recommendation of the Standing Academic

Committee and approved by the Governing Body, wherein it has been

ordered that the recruitment rules for filling of the faculty positions in the

Department of Clinical Pharmacology at SKIMS, shall be asunder:

 M.D. (Pharmacology)/ MBBS with Ph.d (Medical Pharmacology)/  M.Sc. (Medical Pharmacology) with

Ph.d (Medical Pharmacology)/

 M.Sc. Medical Pharmacology with DSC (Medical Pharmacology)/ M.Sc in Pharmacology with Phd.

15. Mr. M.A. Qayoom, the learned counsel appearing on behalf of

petitioner relying upon the aforesaid Government Order, has argued that as

per the norms of Medical Council of India, the Department of Pharmacology

was under an obligation to have followed the ratio of 70:30 (medical/non-

medical) respectively, in conformity with the terms and conditions of the

aforementioned Government Order. Placing reliance on the aforesaid

Government Order, the learned counsel submits that out of the two posts

which have been advertised by virtue of Advertisement Notice issued in the

year 2016, one post was meant for non-clinical, for which the petitioner,

participated in the selection process and has subjected to evaluate his merit, P a g e |7

eligibility and suitability. Since the petitioner was the only candidate in Non-

Clinical Category, he has a vested right for seeking appointment against the

post in question.

16. It is the specific case of the petitioner that he appeared in the

interview on 8th August, 2017 and fared well and had a legitimate

expectation of being appointed against the post in question, being the only

available candidate belonging to Non-Clinical category. However, on 4th

October, 2018, when the selection list of the selected candidates in the

specialty of Clinical Pharmacology against the Medical category alone was

uploaded on the website of SKIMS, Soura Srinagar, the petitioner came to

know that the Respondent No. 3 was appointed against the post in question.

17. The specific case which has been advanced by the learned

counsel for the petitioner is that since he was the only candidate in the Non-

Medical Category and has fared well in the interview, the respondents were

under legal obligation to select and appoint him against the post of Assistant

Professor in Clinical Pharmacology and since, the same was not done, the

petitioner filed a detailed representation to the Chief Secretary on 5th

October, 2018, which was not responded to. Thereafter, the petitioner filed

another representation on 11th October, 2018 before the Respondent No. 2,

by apprising that the petitioner was the only candidate in Non-Clinical

Category, and thus has a vested right of seeking appointment against the

said post. The petitioner filed one more representation which also was not

accorded any consideration.

18. Feeling aggrieved of the inaction on part of the respondents in

not selecting the petitioner against the post of Assistant Professor (Non-

P a g e |8

Medical) in the Department of Clinical Pharmacology, the petitioner filed

SWP No. 2523/2018 before this Court seeking the following reliefs:

I) By issuance of a Writ of Mandamus or any other writ, order or direction, the respondents be directed to complete the process of selection by declaring the result of the post of Assistant Professor (Non-Medical) in the Department Clinical Pharmacology, SKIMS Soura Srinagar against which the petitioner had applied and also appoint him against the said post, being the only candidate who had responded to the advertisement notice no. 07 of 2016 dated 05.09.2016 and on screening of his application he was found eligible for the said post and was called for interview, wherein he fared well. The Respondents be further directed not to re-advertise the post of Assistant Professor (Non-Medical) in the Department Clinical Pharmacology, SKIMS Soura Srinagar, in any manner whatsoever.

And

II) By issuance of a Writ of Mandamus or any other writ, order or direction, the respondents be directed to give effect to the order of appointment of the petitioner from the same date, from which the candidates belonging to the Medical Category have been selected and appointed by the respondents against the post of Assistant Professor (Medical) in the Department Clinical Pharmacology, SKIMS Soura Srinagar and give him all the consequential benefits as envisaged by law accordingly.

III) The Hon'ble Court may also pass any other order or direction as it may deem fit and proper under the facts and circumstances of the case."

19. The said writ petition came up for consideration before this

Hon'ble Court on 30th October 2018 and this Court was pleased to pass the

following order:

"Notice returnable within a period of four weeks. Notice in the IA as well returnable within a same period.

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List on 03.11.2018.

In the meanwhile, the post of Assistant Professor (Non- Medical) in the Department of Clinical Pharmacology, SKIMS, Soura, Srinagar, advertised in terms of Advertisement Notice No. 07/2016 dated 05.09.2016, shall not be re-advertised...."

20. The said writ petition was disposed of by this Court on 12th May

2022 with the consent of the learned counsel for the parties in the following

manner:

"......Accordingly, the writ petition is disposed of by directing the respondents to declare the result of the petitioner for the post of Assistant Professor (Non-Medical) in the Department of Clinical Pharmacology, SKIMS Soura, 07.2016 dated 05.09.2016 and if the petitioner has made the grade, necessary follow up action be taken for interviewing the petitioner.

In the event the petitioner is declared to have emerged successful in the selection process, the respondents shall consider the claim of the petitioner for giving effect to the order of his appointment from the same date, when the candidates belonging to Medical Category have been selected and appointed by the respondents against the post of Assistant Professor (Medical) in the Department of Clinical Pharmacology, SKIMS, Soura, Srinagar, in accordance with rules."

21. According to the learned counsel for the petitioner, order dated

12.05.2022 was not implemented in its letter and spirit in spite of the

issuance of the legal notice to the respondents, the petitioner filed Contempt

Petition bearing CCP(S) No. 342/2022 before this Court, in which the

respondents filed a detailed compliance report, in which a stand was taken

by the respondents that the petitioner could not make the grade as he could

secure only 48 points in OM category as against the Respondent No. 3, who

scored 70 points and, therefore, as per the stand of the official respondents,

the Respondent No. 3, in the instant petition, was appointed in terms of

Government Order No. 97-SKIMS of 2018 dated 03.10.2018. Besides, the

respondents also placed on record a detailed consideration order along with P a g e | 10

the compliance report bearing No. SIMS 130(P) of 2022 dated 30th July

2022, rejecting the claim of the petitioner.

22. The further case of the petitioner is that pursuant to the filing of

the compliance report, the petitioner has come to know that in the year 2021,

the respondents have issued another Advertisement Notice bearing no. 02 of

2021 dated 17th April, 2021, where under, besides other posts, one post of

Assistant Professor in Clinical Pharmacology in OM, has also been

advertised, for which interviews have also been conducted by the

respondents but the select list was not issued.

23. The petitioner through the medium of the instant writ petition has

called in question the aforementioned Advertisement Notice dated 17th April

2021, besides calling in question the order of consideration dated 30 th July

2022, on the grounds that admittedly four posts of Assistant Professors in

the Department of Clinical Pharmacology were advertised by the

respondents on 10th January, 2012 and out of four posts, only two posts were

filled and the two posts remained unfilled.

24. The specific case which has been advanced by the learned

counsel for the petitioner is that the respondents were under legal obligation

to have followed the ratio of 70:30 in conformity with the Government

Order mentioned supra, which has been issued as per the norms of Medical

Council of India.

25. With a view to substantiate his claim that one post ought to have

been given to Non-Clinical Candidate, the learned counsel for the petitioner

submits that the respondents have issued an advertisement way back on 30th

September 2013, inviting applications for filling one post of Assistant

Professor (Non-Medical) in the Department of Clinical Pharmacology, P a g e | 11

however, same was not brought to the logical conclusion because no

candidate was found suitable.

26. The learned counsel further submits that the very issuance of the

Advertisement Notice dated 30th September 2013 vindicates the stand of the

petitioner that one post of Non-Clinical was lying vacant and was meant for

Assistant Professor (Non-Medical) in the Department of Pharmacology. The

learned counsel further submits that issuance of the Advertisement Notice

dated 15th September, 2016 was in continuation to the earlier notifications,

which finds mention in the 2016 advertisement notice, but the respondents

deliberately omitted to refer the advertisement notification issued in the year

2013 in the subsequent notification of 2016, when in fact all other

notifications, which were issued prior to said notification, have been referred

in the notification of 2016.

27. The learned counsel for the petitioner submits that he has

responded to the subsequent notification dated 5th September, 2016, being a

Non- Medical candidate against the post of Assistant Professor in the

Department of Clinical Pharmacology (Non-Medical) and since the

respondents have selected one candidate i.e. Respondent No. 3, from

amongst medical candidates, then the second post ought to have been given

to the petitioner, being the only candidate belonging to Non-Clinical

category.

28. As per the learned counsel, the petitioner was the only candidate

from amongst the Non-Medical category, who on account of having made

the grade, had to be selected and appointed as Assistant Professor in the

Department of Clinical Pharmacology. The further case of the petitioner is

that the writ petition which has been registered as SWP No. 2523/2018 was P a g e | 12

disposed of with a specific direction not to re-advertise the post of Assistant

Professor (Non- Medical) in the Department of Clinical Pharmacology,

advertised in terms of advertisement notice dated 5 th September, 2016.

According to him, the respondents instead of filing objections to the said

writ petition, re-advertised the post of Assistant Professor in Open Merit

Category on 17th April, 2021, without disclosing the said fact. However, the

said writ petition came to be disposed of with the consent of the learned

counsel for the parties with a direction to the respondents to declare the

result of the petitioner for the post of Assistant Professor (Non-Medical) in

the Department of Clinical Pharmacology, advertised vide advertisement

notice dated 5th September, 2016, to ascertain whether the petitioner has

made the grade with necessary follow up action.

29. This Court while disposing of the said writ petition, directed the

respondents that in the event of the petitioner being declared as a successful

candidate in the selection process then the respondents were directed to

consider the claim of the petitioner for giving effect to the order of his

appointment from the date when the candidate belonging to Medical

Category have been selected and appointed by the respondents against the

post of Assistant Professor (Medical) in the Department of Clinical

Pharmacology, SKIMS Soura, Srinagar, in accordance with rules.

30. Since the direction was not complied with, the petitioner was

constrained to file a contempt petition, in which the respondents filed a

detailed compliance report along with a consideration order dated 30th July

2022, perusal whereof, reveals that in terms of Advertisement Notice dated

5th September 2016, applications were invited for the post of Professor and

Assistant Professor in various specialties at SKIMS, which included two P a g e | 13

posts of Assistant Professor (OM-1 and SC-1), in the Department of Clinical

Pharmacology. The order of consideration further reveals that total six

applications were received by the respondents, belonging to OM Category

against the post of Assistant Professor. The record further reveals that on the

basis of the performance of all the contesting candidates in the interview and

considering the records and opinion of the Technical Advisors, the

award/tabulation sheets were drawn, which shows that the petitioner could

score only 48.00 points out of 100 and the Respondent No. 3 scored 70.00

points out of 100.

31. Based on the overall merit, the Respondent No. 3 was appointed

against the post of Assistant Professor in the Department of Clinical

Pharmacology, SKIMS. The record further reveals that the recommendations

against the post falling under SC Category could not be made due to non-

availability of the candidates in the said category. Pursuant to the

recommendations made by the Apical Selection Committee, duly approved

by the Governing Body on 24th September, 2018, order dated 3rd October,

2018 was issued in favour of Respondent No. 3 and he stood appointed

against the post of Assistant Professor in the Department of Clinical

Pharmacology.

32. The petitioner in the instant petition has called in question the

order of consideration issued by the Respondent No. 2 being fallacious and

based on unfounded grounds with a view to deprive the petitioner of his

legitimate right of seeking selection and appointment against the post of

Assistant Professor in Clinical Pharmacology from amongst the Non-

Medical candidates, being the only candidate falling in that Category.

P a g e | 14

33. It has been further argued by the learned counsel appearing on

behalf of the petitioner that in the Advertisement Notice No. 07 of 2016

dated 5th September 2016, the respondents deliberately did not indicate the

number of posts to be filled up, nor there was any whisper in the said

Advertisement Notice that one post was meant for Open Merit Category and

the other was meant for Scheduled Caste Category. The learned counsel

further submits that it has come to fore only when the consideration order

was passed that one post was meant for Scheduled Caste Category and one

was meant for Open Merit Category, otherwise there was no whisper with

regard to the same in the Advertisement Notice.

34. The learned counsel further submits that this stand which has

now been taken by the respondents in the order of consideration is not in

tune with the terms and conditions of the Advertisement Notice dated 5th

September 2016, wherein there was no whisper with regard to the

advertisement of the vacancy under Schedule Caste Category. Had the post

been meant for Schedule Caste Category, then what prevented the

respondents from advertising the said post, is not forthcoming from the

record.

35. The learned counsel appearing on behalf of petitioner further

submits that assuming the post was meant for Scheduled Caste Category,

then the respondents were under a legal obligation to have advertised the

said post category-wise while also identifying whether the posts are meant

for Clinical or Non-Clinical category, so that the candidates belonging to the

Scheduled Caste Category, have a right of participation. He further submits

that without advertising the posts under the Scheduled Caste Category, the

candidate belonging to Scheduled Caste Category, has been deprived of P a g e | 15

participating in the said selection process. Therefore, according to the

petitioner, the stand of the respondents which has been taken now in the

consideration order is contrary to the terms and conditions of the

Advertisement Notice.

36. The learned counsel further submits that the stand taken by the

respondents in the Order of Consideration even otherwise is also in flagrant

violation of the Government Order dated 16th September 2013, which has

been issued as per the norms of the Medical Council of India, wherein, the

Faculty of Pharmacology was under legal obligation to have followed the

ratio of 70:30 (medical/non-medical), respectively. Therefore, according to

the learned counsel for the petitioner, the Order of Consideration dated 30th

July, 2022 is contrary to the terms and conditions of the aforesaid

Government Order and also to the terms and conditions as envisaged in the

Advertisement Notice dated 5th September, 2016.

37. It is the specific stand of the petitioner that since the Order of

Consideration reveals that no candidate could be appointed against the one

post of Assistant Professor under Scheduled Caste Category due to the non-

availability of the candidates in the said Category, then how and under what

circumstances, the subsequent Advertisement Notice dated 17th April 2021,

has been issued, which is the subject matter of the instant writ petition,

wherein the respondents have advertised the said post of Assistant Professor

in Clinical Pharmacology, by changing the Category from Scheduled Caste

to Open Merit.

38. According to Mr. Qayoom, since it is the same post of Assistant

Professor (Non-Medical) which had remained unfilled from 2013, therefore,

the respondents have no authority under law, power or competence to issue P a g e | 16

Advertisement Notice dated 14th April 2021, for filling up the said post in

Open Merit Category, when according to their own admission, this post was

meant for Scheduled Caste Category. Thus, the very issuance of the

Advertisement Notice, which is the subject matter of the instant writ

petition, is contrary to the stand taken by the respondents in the Order of

Consideration.

39. Lastly, Mr. M.A. Qayoom, the learned counsel appearing on

behalf of petitioner has referred to the fresh Advertisement Notice No. 02 of

2021 dated 17th April, 2021, which is the subject matter of the instant writ

petition, in which the respondents have specifically mentioned with respect

to Clinical Pharmacology, that as per the norms of the National Medical

Commission, the Department shall have the faculty in the ratio of 70:30 i.e.

Medical/Non-Medical, respectively.

ARGUMENTS ON BEHALF OF OFFICIAL RESPONDENTS:

40. Per contra, reply has been filed by Mr. Sajad Ashraf, learned

GA, on behalf of official respondents and the specific stand has been taken

that in terms of advertisement notice dated 5th September 2016, all the 06

candidates including the petitioner were informed to present themselves

before the Apical Selection Committee on 08.08.2017. Dr. Semira, however,

did not appear before the said committee on the said date, while as the other

five candidates appeared before the Committee. The further stand of the

respondents is that on the basis of performance of all the contesting

candidates conducted by Apical Selection Committee and considering the

records and opinion of technical advisors, the award/tabulation sheets were

drawn with the cumulative score mentioned against each, which is shown

hereunder:-

P a g e | 17

S.No. Name of the candidate Score out of 100

1. Dr. Mohammad Younis Bhat 61.75

2. Dr.Muddasir Sharief Banday 70.00

3. Dr.Nasreen Jan Chashoo 68.05

4. Dr. Shakil-u-Rehman 56.00

5. Dr. Semira Absent

6. Dr.Mushtaq Ahmad Hakeem 48.00

41. Respondents have taken a specific stand that the cut-off marks to

be obtained by the candidates for consideration of selection was fixed as 50

marks for the OM (open merit) category and 45 marks for reserved category.

Further stand of the respondents is that since the petitioner has secured 48

marks only out of 100 marks, which is below the cut-off/ bench mark of 50,

which was necessary for consideration of selection under OM category and

thus he could not figure in the merit list, recommended by Apical Selection

Committee, SKIMS. Respondents have specifically admitted in their reply

affidavit that number of posts advertised under the direct recruitment quota

under various advertisement notifications was not mentioned. Respondents

have also admitted that the category under which these posts were allocable

was not indicated in the advertisement notices, and this aspect of the matter

was brought to the notice of Apical Selection Committee conducting

interviews. The Apical Selection Committee, was further apprised of the fact

that the previous advertisement notices, which were for the direct

recruitment to the post of Assistant Professors were issued in the year 2005,

2008, 2010, 2011 and 2013.

42. Further stand of the respondents is that the notification in respect

of the post of Assistant Professor in various departments issued and selection P a g e | 18

list finalized upto 17.10.2005 attracted the provisions of SRO 126 of 1994

dated 28.06.1994. The advertisement notices which were issued by the

respondents, in which selections were made after 17.10.2005, will attract the

provisions of SRO 294 dated 21.10.2005 and the respondents have drawn up

reservation roster discipline-wise in respect of various

notifications/selections made after 2008, 2010, 2011, 2013 and 2016. It has

been further pleaded by the respondents that the last selection was made in

the year 2013 and after that, number of faculty members retired, thereby,

affecting the patient care/research activities, considerably. Accordingly, the

Apical Selection Committee felt that the slots which would remain unfilled

on account of non-availability of the eligible candidates from the particular

reserved category, shall be filled from amongst the candidates, who have

applied under OM category. Accordingly, as per the distribution of 100

points roster provided in SRO 294, four posts of Assistant Professors in the

department of clinical Pharmacology were to be allocated as follows:-

Category No. of posts

43. As per the stand of the respondents, since two posts of OM and

RBA category were filled in the year 2013 and the remaining posts which

were advertised in 2016 were meant to be filled from OM and SC

candidates, to which the petitioner also responded. The record reveals that

one post of OM category was filled while as one post belonging to SC

(Scheduled Caste) category remained unfilled due to non-availability of

suitable candidate in the said category. However, based on the overall merit

secured by the candidates, the Apical Selection Committee recommended P a g e | 19

Dr. Mudassir Sharief Banday having secured 70 marks in aggregate for

appointment to the post of Assistant Professor in the department of Clinical

Pharmacology, SKIMS. Besides this, the Apical Selection Committee

recommended the placement of Dr.Nasreen Jan Chashoo having secured

68.05 marks in aggregate in the waiting list.

44. As per the stand of the respondents, the recommendations made

against the post falling under SC category could not be made due to non-

availability of the candidate in the said category. It has been further

submitted that the recommendations made by the Apical Selection

Committee were duly approved by the Chairman, Governing Body, SKIMS

i.e., Hon'ble Governor on 24.09.2018. Accordingly, in terms of the

Government order No. 97-SKIMS of 2018 dated 03.10.2018, respondent

No.3 was appointed as Assistant Professor in the department of clinical

Pharmacology, SKIMS under the OM category. Respondents in compliance

to the orders of this Court issued detailed consideration order on 30.07.2022,

whereunder the claim of the petitioner was considered and was found bereft

of any merit.

45. It is the specific stand of the respondents that prior to the

issuance of the advertisement notice no. 2 of 2021 dated 14.04.2021, the

J&K Reservation Rules, 2005 were amended in terms of S.O 127 dated

20.04.2020 with inclusion of certain reserved categories and modifications

in allocation of share in percentage to reserved categories, besides a revised

roster of 100 vacancies was also issued. It has been further pleaded by the

respondents that SKIMS advertised the posts of Assistant Professor and

Professor in various disciplines vide advertisement notice no. 2 of 2021

dated 17.4.2021, wherein amongst others, one post of Assistant Professor P a g e | 20

was advertised in the Department of Clinical Pharmacology under the OM

category instead of SC category as per the revised roster and distribution of

share. Even the clarification with regard to application of revised roster in

terms of S.O 127 for the posts of Assistant Professor and Professor in

various disciplines advertised vide notice dated 17.4.2021, was obtained

from the Department of Law, Justice and Parliamentary Affairs vide No.

Law-Ser1/21-2021-10 dated 22.11.2021 and the Law Department has opined

as under:-

"....I am directed to convey that any vacancy which has to be advertised after issuance of notification S.O 127 dated 20.04.2020 is to be advertised as per the said notification starting from roster point No.01, which includes the advertisement under reference also. However, the posts which have been advertised before the issuance of said notification shall continue to be governed by the earlier rules/SRO applicable at that time."

ARGUMENTS ON BEHALF OF THE PRIVATE RESPONDENT:

46. Reply has also been filed by Ms. Asifa Padroo, learned counsel

appearing for respondent No.3, which has been taken on record on

15.09.2023 by this Court, in which Rule position has been discussed. It is

pleaded that the rules are to be read in consonance with the advertisement

and the SKIMS was under no authority to increase or decrease the number of

posts. According to Ms Padroo, whether mentioned or not in the

advertisement, the posts are to be filled as per the Rule 5 of J&K

Reservation Rules, 2005. Accordingly, rules have been applied and the

effect of the same has expressly conveyed to the petitioner in terms of the

consideration order. It is therefore, pleaded that the order of consideration,

which is impugned in the instant petition, does not suffer from any illegality.

P a g e | 21

ARGUMENTS ON BEHALF OF INTERVENER

47. Mr. Jehangir Iqbal Ganai, learned senior counsel, has filed an

application bearing CM No.927/2023 on behalf of the applicant, namely,

Dr.Majid Farooq seeking impleadment in the instant case as party

respondent, on the ground that as per the own stand of the petitioner, his

claim is on the post of Assistant Professor clinical Pharmacology (non-

medical), therefore, he has no right to challenge the advertisement notice

dated 17.04.2021 issued for filling the post of Professor and Assistant

Professor clinical Pharmacology (medical). The applicant further pleaded

that he had applied pursuant to the advertisement notice dated 17.04.2021

and is figuring in the list of eligible candidates for the post of Assistant

Professor in the Department of clinical Pharmacology.

48. The aforesaid application is opposed by the petitioner, who has

filed objections to the said application, wherein, reiterating the grounds

urged in the instant writ petition, it is contended that the petitioner does not

claim any relief against the applicant as such, he is neither a necessary nor a

proper party to the writ petition.

LEGAL ANALYSIS:

49. With the consent of learned counsel for the parties, the instant

petition is taken up for final disposal. Admit.

50. Heard learned counsel for the parties at length and perused the

record.

51. The petitioner in the instant petition is aggrieved of the

advertisement notice No.02 of 2021 dated 17.04.2021 and the order of

consideration dated 30.07.2022 issued by respondent No.2. Admittedly, four P a g e | 22

posts of Assistant Professors in the Department of clinical Pharmacology

were advertised by the respondents on 10.01.2012 as per the record. Out of

the four posts, only two were filled up and the other two posts remained

unfilled. The respondents, in terms of the Government order dated

16.09.2013, were under a legal obligation to follow the ratio of 70:30

medical/non-medical, respectively as per the norms of Medical Council of

India. Thereafter, Respondent no.2 issued advertisement notice dated

30.09.2013 inviting applications from eligible candidates for filling one post

of Assistant Professor(non-medical) in the department of clinical

Pharmacology under direct recruitment quota.

52. Since no candidate was found eligible, therefore, the post was not

filled up and was required to be re-advertised. The respondents, thereafter,

issued another advertisement notice dated 10.07.2015, where-under again

the post of Assistant Professor in clinical Pharmacology was advertised but

the process initiated in terms of the said advertisement notice was not taken

to its logical end by the respondents for the reason that the screening of the

applicants could not be finalized due to one or the other reason. Respondents

thereafter issued advertisement notice dated 05.09.2016 for filling the posts,

inter alia, the post of Assistant Professor clinical Pharmacology from

amongst the medical as well as non-medical candidates. The respondents,

however, in the advertisement notice did not mention that how many posts

have been advertised nor it was mentioned that the posts which have been

advertised belong to OM category or SC category in the department of

Clinical Pharmacology. Even the advertisement notice was silent whether

the post of Assistant Professor in the Pharmacology Department has been

advertised separately for medical candidates or non- medical candidates or

whether both medical and non-medical candidates can apply for the said post P a g e | 23

collectively and whether their merit was required or assessed separately or

jointly.

53. However, on the other hand, the advertisement notice dated

05.09.2016 specifically provides that same has been issued to fill up the

available vacancies and the candidates who had already applied in response

to the earlier advertisement notice need not to apply afresh. In the said

advertisement notice, reference has been made with respect to advertisement

notice No. 04 of 2015 dated 10.07.2015, advertisement notice No. 01 of

2016 dated 19.03.2016 and advertisement notice No. 06 of 2016 dated

05.05.2016. However, the respondents have deliberately omitted to refer the

advertisement notice issued on 30.09.2013, where-under one post of

Assistant Professor (non-medical) in the department of clinical

Pharmacology was advertised. Since the advertisement notice dated

05.09.2016 specifically provided that same was issued to re-advertise the

available vacancies, the petitioner construed as if two posts of Assistant

Professors have been advertised in the Clinical Pharmacology for medical

candidates and non-medical candidates separately in conformity with the

Government order dated 16.09.2013, whereby, the department was under the

legal obligation to maintain faculty in the ratio of 70:30 in medical/non-

medical respectively in conformity with MCI norms. This was precisely the

reason that the petitioner did not challenge the aforesaid advertisement

notification and participated in the selection process without any demur or

grouse.

54. This Court is of the opinion that the respondents shall have

followed the norms prescribed by the Medical Council of India. The norms

provides the ratio, which is reproduced as under:

P a g e | 24

"MEDICAL COUNCIL OF INDIA Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (AMENDED UPTO 8th JUNE, 2017) In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non- medical teachers may be appointed to the extent of 30% of the total number of the posts in the department. A non- medical approved medical M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognized basic university medical degree qualification or equivalent qualification."

55. Official respondents have selected respondent No.3 in the

medical category, however, the post of Assistant Professor in non-medical

category was not filled up. This was precisely the reason that the petitioner

voiced his concern and filed detailed representations, which were not

responded and ultimately, lead to filing of the writ petition by the petitioner

registered as SWP No.2523/2018, wherein, the petitioner had prayed that the

respondents be directed to comply with the process of selection by declaring

the results for the post of Assistant Professor(non-medical) against which the

petitioner had applied, being the only candidate, who responded to the

aforesaid advertisement notice dated 05.09.2016 and was subsequently

interviewed by the Apical Selection Committee, besides claiming the effect

of the order of appointment from the date when the candidate belonging to

medical category has been selected and appointed. In the said writ petition,

this Court protected the petitioner vide order dated 30.10.2018, wherein the

petitioner got a restraint order against the respondents not to re-advertise the

post of Assistant Professor (non-medical) in the department of Clinical

Pharmacology, SKIMS advertised in terms of advertisement notice dated

05.09.2016.

P a g e | 25

56. The record further reveals that the respondents did not file any

objections to the said writ petition from 30.10.2018 till the said petition

came up for final consideration before the Court on 12.05.2022, where-under

the said writ petition was disposed of with the consent of the parties by

directing the respondents to declare the result of the petitioner for the post of

Assistant Professor(non-medical) in the department of Clinical

Pharmacology advertised vide advertisement notice dated 05.09.2016.

57. It had also been directed by the Writ Court that in the event

petitioner is declared to have emerged successful in the selection process,

the respondents shall consider the claim of the petitioner for giving effect to

the order of his appointment from the same date, when the candidates

belonging to medical category have been selected and appointed by the

respondents against the post of Assistant Professor (medical) in the

department of Clinical Pharmacology, SKIMS, Soura, Srinagar, in

accordance with rules.

58. It is the matter of the fact that the order dated 12.05.2022 came to

be passed with the consent of learned counsel for the parties and the said

order was accepted by the respondents as no appeal/review/revision was

filed by the respondents.

59. Having regard to the order dated 12.05.2022 passed in SWP No.

2523/2018, respondents could not have rejected the case of the petitioner by

virtue of the order of consideration dated 30.07.2022, which is impugned in

the instant petition as the same is in flagrant violation of the order passed by

this Court, wherein, the respondents were under a legal obligation to

consider the claim of the petitioner for giving effect to the order of

appointment from the same date when the candidate belonging to medical P a g e | 26

category have been selected and appointed provided the petitioner was

declared to have emerged successful in the selection process.

60. The plea taken by the respondents that the petitioner could not

make the grade as he had secured only 48 marks in the OM category as

against respondent No.3 who secured 70 marks and thus, the official

respondents could not appoint the petitioner, is not sustainable in the eyes of

law and has no legal basis on the ground that the said cut off /bench mark

was never known to the competing candidates. The respondents by no

stretch of imagination could have changed the rules of game/criteria after the

selection process had commenced.

61. This view is supported by the judgment of Hon'ble Supreme

Court in the case of K.Manjusree Vs. State of Andhra Pradesh& Anr.

reported as (2008) 3 SCC 512, wherein, it has been held that :-

"...selection criteria has to be prescribed in advance. Rules of game cannot be changed afterwards...."

62. Here a question also arises as to whether in absence of any

category-wise stipulation in the advertisement notice, were the respondents

justified in mentioning in the Consideration Order that one post was meant

for SC category and the other for OM category?

63. It is apparently clear from the records that the respondents did

not advertise the posts category-wise, nor there was any indication given in

the advertisement notice that out of the two posts one belonged to OM

category and the other belonged to SC category. Moreover, there was also

no indication in the advertisement notice whether both the posts have been

advertised separately as per the MCI norms. Having failed to do so, the

respondents by no stretch of imagination could plead in the order of P a g e | 27

consideration that one post belonged to OM category and the other to the SC

category. Had it been so, the respondents were under a legal obligation to

have advertised the posts category wise so that the candidates belonging to

the SC category have the right of participation against their category.

64. In case Ramkhiladi Sharma and Others Vs. National Health

Mission and Others 2020 SCC OnLine MP 2975, the Court has observed

that:

"...According to service jurisprudence the rules of game cannot be changed, once it has begun. The aforesaid time tested principle is based on sound reasoning that in case such change in the rules of recruitment is permitted then large number of persons who had not applied for being not eligible as per the recruitment and who would become eligible based on the relaxation made, would be deprived of their right to be considered for public employment which would amount to violation of their fundamental right under Article 16 of the Constitution..."

65. Respondents have fairly admitted in their stand that the two posts

belonging to the medical and non-medical were not advertised category-wise

and having failed to do so, the candidates belonging to the SC category have

been deprived of their right of participation against the said post and this was

precisely the reason that no suitable candidate from the Category could make

the grade.

66. It is a trite principle of service jurisprudence that once the

process of recruitment commences on issuance of advertisement; no changes

in the essential qualification/disqualification can be made during subsistence

of the said recruitment.

67. The second ground of contention of the respondents that since

the petitioner could not secure the marks above the bench mark and thus, he

has not been selected and appointed, is not legally sustainable on the ground P a g e | 28

that the rules did not fix any cut-off points as it was nowhere stated in the

advertisement notice or in any subsequent notices that the said criteria was

ever published before holding of the interview that the candidate shall have

to obtain 50 marks in the process of selection and if any candidate obtains

less than bench mark, then the candidate will not be selected/appointed.

68. Thus, this Court is of the view that the minimum qualifying

marks which were alleged to have been fixed by the Apical Selection

Committee for interview, were not published and the same was required to

be advertised in advance.

69. In case Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC

11 : (2008) 2 SCC (L&S) 203, the Apex Court has held as under;

"15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal."

70. This Court is of the view that the prescription of the minimum

marks by the respondents in the viva-voce by the Apical Selection

Committee subsequently was not permissible and is illegal. Had it been so,

then the respondents ought to have taken a specific stand before the writ

court in the earlier round of litigation, when SWP 2523/2018 was pending

adjudication before this Court for years together. In absence of any specific

stand of the respondents, the respondents are now precluded under law to

take a different stand altogether, through the medium of order of P a g e | 29

consideration, with a view to defeat the rights of the petitioner and to oust

the petitioner from the consideration zone being the only candidate

belonging to non-medical category.

71. Had the respondents in the advertisement notice dated 5.09.2016

stated that out of the two posts of Assistant Professor in the Clinical

Pharmacology, one was meant for OM category and the other for SC

category, then the position would have been altogether different.

Respondents could not have done so because in terms of the Government

order dated 16.09.2013, which is as per the norms of MCI, the department of

Pharmacology was required to have the faculty in the ratio of 70:30 in

medical/non-medical category. Thus, the consideration order dated

30.07.2022 being contrary to the mandate and spirit of Government order

dated 16.09.2013, cannot sustain the test of law and is liable to be set aside.

72. The stand taken by the respondents in the order of consideration

is bereft of any logic as there was no indication in the advertisement notice

by the respondents that out of two posts of Assistant Professors, one belongs

to OM category and the other belongs to SC category. It a is well settled

principle that once the advertisement notice is issued for filling the post,

selection has to continue as per the terms and conditions of the notice and

not otherwise.

73. I draw support from the law laid down by the Apex Court in case

titled Madan Mohan Sharma & Anr. Vs. State of Rajasthan & Ors.

reported as AIR 2008 SC 1657, wherein Apex Court has observed that :-

"...Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid P a g e | 30

down and it cannot be on the basis of the criteria which has been made subsequently..."

74. As per the stand of the respondents, once out of five candidates

one was selected and appointed against the post of Assistant Professor

(medical), then, the other post belonging to non-medical stream had to be

offered to the petitioner and the contention of the respondents that since the

petitioner has secured 48 points, which is below bench mark, is not legally

sustainable in the light of the fact that the petitioner had neither applied for

the post of Assistant Professor (medical) nor could have been considered and

appointed against the post of Assistant Professor (medical). It was also not

known whether the benchmark of 50 points, which has come to the

knowledge of the petitioner pursuant to the issuance of the consideration

order, was made applicable to both the candidates belonging to medical and

non-medical category collectively or there was a different benchmark for

non-medical candidates.

75. In the light of the fact that the qualification and the experience

prescribed for the post of Assistant Professor (medical) and Assistant

Professor (non-medical) were totally different as per the advertisement

notice issued in 2013, 2015 and 2016, thus, by no stretch of imagination, the

Apical Selection Committee could have evaluated the merit belonging to one

category with the merit of the candidate belonging to other category,

especially when, in the advertisement notice, the respondents have nowhere

stated that the merit of the candidates belonging to two categories will be

assessed jointly.

76. In conclusion, the stand of the respondents is not legally

sustainable and is liable to be rejected and the consideration order which is

an after-thought, is not sustainable in the eyes of law and is liable to be P a g e | 31

rejected as the same has been issued with a view to defeat the rights of the

petitioner.

77. The contention raised by the respondents that the petitioner is

estopped from challenging the order of consideration and the fresh

advertisement notice dated 17.04.2021 because the petitioner has failed to

challenge the advertisement notice dated 05.09.2016 and has subjected

himself to the process of selection against the said advertisement notice, is

not maintainable in the light of the fact that the petitioner is competing

against the post in the non-clinical category and has no grievance against the

private respondent who has been appointed in the Clinical Category. As the

petitioner was the only candidate in the non-clinical category and there was

no benchmark prescribed in advance, the petitioner has a preferential right of

being considered for the said post in the non-clinical category, where there

was no competition.

78. From the perusal of the record, with particular reference to the

advertisement notice dated 05.09.2016, it is apparent that there was nothing

in the said advertisement notice which could have made basis for challenge

by the petitioner. The record, however, reveals that the petitioner in fact had

actually responded to the advertisement notice dated 01.05.2015 and the

process was not taken to its logical conclusion and a fresh notice dated

05.09.2016 was issued in which it was stated that the candidates who have

already applied need not to apply. Thus, the petitioner did not apply again,

rather submitted his updated bio-data in pursuance to the advertisement

notice dated 05.09.2016.

79. Both the advertisement notices dated 10.07.2015 and 05.09.2016

were silent with respect to the fact that two posts which were advertised, one P a g e | 32

post was meant for OM category (medical/non-medical) and second was

meant for SC category, as projected by the respondents subsequently in the

consideration order. On the other hand, in both the advertisement notices,

without indicating number of posts, only the qualification and experience

has been specified. Thus, the plea of estoppel by conduct, cannot be made

applicable to the petitioner in the aforesaid backdrop.

80. Since, this Court in the earlier round of litigation has specifically

directed the respondents to consider the claim of the petitioner for giving

effect to the order of appointment from the same date when the candidate

belonging to medical category has been selected and appointed in the event

the petitioner has been declared to have emerged successful in the selection

process and the said order/judgment has assumed finality and has not been

called in question by the respondents. Accordingly, the respondents are

under legal obligation qua petitioner to have selected/appointed the

petitioner being the lone candidate belonging to non-medical category in the

selection process as the objections of the respondents that the petitioner has

secured the merit below the benchmark, cannot be made applicable in his

case in absence of the said criteria published in advance.

81. Thus, the respondents after having given their consent in the

earlier round of litigation for disposal of the said petition, cannot take a

stand contrary to records, with the sole object to defeat the rights of the

petitioner.

82. I am supported by the judgment of Apex Court in a case Ramesh

Kumar Vs. High Court of Delhi & Anr. reported as (2010) 3 SCC 104,

wherein, it has been held:

P a g e | 33

"that when a person has wrongly been denied appointment, a direction can be given for his appointment but he will be entitled to all the service benefits from the date of appointment."

83. Further, the Apex Court in case titled as Shankarsan Dash vs

Union of India reported as AIR 1991 SC 1612, has observed as under:

"Ordinarily, advertisement notification merely amounts to an invitation to qualified candidates to apply for recruitment but on their selection they do not acquire any right to the post merely figuring in the select list. However, that does not mean that the State has the license of act in an arbitrary manner and that the decision not to fill up the vacancies has to be taken bonafide for appropriate reasons or otherwise."

84. In the instant case, the respondents have selected and appointed

the candidate against the post of Assistant Professor out of the medical

category who had responded to the said advertisement notice along with the

petitioner. However, the respondents did not fill up the said vacancy in the

non-clinical category, which ought to have been given to the petitioner,

being the only candidate in the said category. Instead, the respondents have

issued fresh notification dated 17.04.2021, which is in flagrant violation of

order dated 30.10.2018 passed by this Court in SWP No. 2523/2018. It

would be worthwhile to mention that the respondents did not file any

objections in the said writ petition nor took any steps for vacation of the said

order and instead consented for disposal of the said writ petition, with a view

to give effect to the order of the petitioner from the same date the benefit has

been extended to medical category candidate.

85. In so far as advertisement notice dated 17.04.2021 is concerned,

which is impugned in the instant petition, the respondents have advertised P a g e | 34

the remaining one post of Assistant Professor in Clinical Pharmacology in

OM category.

86. Once, the selection process of one post belonging to non-medical

category which has commenced in pursuance to 2013 notification, has not

been brought to the logical conclusion, then it may safely be concluded that

out of the two posts which were advertised, one post was meant for non-

clinical candidates in the Department of Pharmacology. Therefore, the

respondents have no authority or competence to issue fresh advertisement

notice dated 17.04.2021 for filling the said post in OM category, which post

belongs to non-medical category, and for which the petitioner has the

preferential right of being considered for appointment in conformity with the

order passed in SWP No.2523/2018.

87. This Court on the very first date of hearing i.e. 06.12.2022 has

restrained the official respondents from finalizing the selection in pursuance

to the advertisement notice dated 17.04.2021 and this post till date has not

been filled up. The respondents are required to consider the case of the

petitioner for selection/appointment against the said post from the date the

benefit has been given to respondent No.3 belonging to the medical category

in the light of the direction passed by this Court vide order dated 30.10.2018

passed in SWP No. 2523/2018. Thus, the impugned advertisement notice

dated 17.04.2021, so far it relates to the commencement of selection process

for the post of Assistant Professor in the Department of Pharmacology,

cannot sustain the test of law and is liable to be quashed.

88. An executive action must be informed by reason. An unfair

executive action can only survive for a potent reason. An action which is

simply unfair or unreasonable would not be sustained. It goes without saying P a g e | 35

that objective satisfaction must be the basis for an executive action. Even in

case of subjective satisfaction on the part of a State, the same is liable to

judicial review. Reasonableness and non-arbitrariness are the hallmarks of

an executive action by the State. Judged from any angle, the action on the

part of the respondents in the instant case to deprive the petitioner of him

being selected and appointed against the post of Assistant Professor (non-

medical)in light of being the only candidate, who had applied does not

satisfy the test of fairness and reasonableness. Thus, the said action is

arbitrary and cannot sustain the test of law.

89. In this regard I am supported by the Apex Court Judgment titled

East Coast Railway & Anr. V. Mahadev Appa Rao & Ors. reported as

(2010) 7 SCC 678, wherein the Hon'ble Court has observed that:

" It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter."

90. In another judgment titled Dinesh Kumar Kashyap & Ors vs

South East Central Railway & Ors, reported as (2019) 12 SCC 798, Apex

Court has observed as under:

"Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling of a large number of posts, a large number of un-employed youth apply for the same. They spend P a g e | 36

time in filling the form and pay the application fees, thereafter; they spend time to prepare for the examinations. They spend time and money to travel to the place where written test is held. If they qualify the written test, they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the state must give some justifiable, non- arbitrary reason for not filling up the post. When the employer is the state it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme and reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State."

CONCLUSION:

91. Therefore, in the light of the above discussion coupled with the

settled legal position, this Court is of the view that the petitioner succeeds to

make out his case in the instant petition, and, accordingly, the writ petition is

allowed by directing the official respondents to consider the case of the

petitioner against the post of Assistant Professor non-medical in the

Department of clinical Pharmacology by giving him the benefit of such

appointment from the same date it has been given to Respondent No.3

belonging to medical category, strictly in conformity with the directions

passed by this Court in SWP No.2523/2018 decided on 30.10.2018.

92. As a necessary corollary, the impugned advertisement notice No.

02 of 2021 dated 17.04.2021 and the order of consideration bearing No.