HC directs respondents to treat petitioner notionally appointed as Lecturer GMC Srinagar from 2011

09/06/2019

JAMMU, JUNE 8: In a petition filed by Dr. Javed Ahmed Chachu challeneging the order of PSC whereby the claim of the petitioner was rejected.
In the petitioner it has been submitted that Pursuant to two Notifications, bearing Nos.04-PSC of 2010 dated 4th of June, 2010 and 09-PSC of 2010 dated 28th of August, 2010, issued by the Jammu and Kashmir Public Service Commission (hereinafter referred to as the "Commission"), the petitioner, alongwith other candidates, applied for the post of Lecturer in Medicine in the Government Medical College, Srinagar/ Jammu. The petitioner was an open merit category candidate. After completion of the selection process, the respondent Commission published the select list dated 18th of January, 2011, wherein the name of the petitioner did not figure. Thereafter, on the recommendations of the Commission, the selected candidates were appointed as Lecturers in the Government Medical College, Srinagar in terms of Government Order No. 72-HME of 2011 dated 28th of January, 2011. Aggrieved thereby, the petitioner approached this Court through the medium of SWP No.148/2011. The said writ petition, on consideration and in terms of judgment dated 31st of August, 2012, came to be disposed of by this Court.
Justice Ali Mohammad Magrey after hearing both the sides observed that Testing the instant case on the touchstone of the law laid down above, it needs must be said that the case of the petitioner cannot be treated on a different footing as compared to the ones, who were appointed with him in pursuance of the notification issued by the Government for the appointment of the Lecturers. The law is that the adherence to the rule of equality in the public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. There can be no discrimination between the appointees on the same set of facts. The petitioner did not err anywhere and, thus, cannot be made to suffer for the negligence, which the respondents committed. Therefore, the retrospective effect to the appointment of the petitioner from the date when the ineligible Officers were appointed as Lecturers has to be given to him and having regard to the above discourse; coupled with the fact that the selected candidates have already been appointed in January, 2011, which appointment, now, cannot be disturbed; and, in order to ensure substantial justice is done to the petitioner, the petition of the petitioner is with the direction that the impugned consideration order dated 8th of January, 2013 passed by the respondent Commission shall stand quashed.
Justice Ali Mohammad Magrey further directed respodent to treat the petitioner as having been notionally appointed as a Lecturer in Government Medical College, Srinagar from 28th of January, 2011, i.e. the date from which the selected candidates were appointed.
The benefit of notional appointment and seniority of the petitioner shall be taken into account by the respondent No.1 for the purposes of fixation of his pay as well as for benefit of his promotion in Government Medical College, Srinagar. It goes without saying that the seniority of the petitioner shall be fixed as Lecturer after the selected/ appointed Lectures of January, 2011 in the Government Medical College Srinagar. JNF

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