Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. while dismissing the present writ petition directed the respondent Service Selection Board to proceed ahead with the selection process in accordance with a communication dated 03-08-2018.

The facts of the case are that in the year 2015, a requisition was sent by the Director for direct recruitment of vacancies to the Service Selection Board (the Board) for the post of Junior Anesthesia Assistant, for which qualification was “10+2 with Science and Diploma in Anesthesia Technology from SMF or any other recognized Institute” for the districts Baramulla, Pulwama, Budgam and Kupwara. On the basis of these requisitions, the Service Selection Board advertised the posts of Junior Anesthesia Assistant on 02-12-2015.

On 18-12-2015, the Directorate of Health Services informed the Secretary to Government, Health & Medical Education Department that due to an error the qualification for the post of Jr Anesthesia Assistant was incorrectly mentioned. On 26-03-2012, by a Government Order (GO), it was communicated that the correct qualification is 10+2 with Diploma in Anesthesia/ Operation Theatre Technology; however, degree holders in Anesthesia/ Operation Theatre Technology would be preferred. Thereafter, by this order Board allowed the candidates to participate in the selection process. Years later, on 30-12-2018, a provisional selection list was notified on the basis of the Government Order dated 26-03-2012. Aggrieved by this notification, petitioners filed a representation before the Government which was forwarded to the Board. For clarification, the Director-General, Health services informed the Government that the qualification as per the GO dated 26-03-2012 be taken as the qualification for the said post. The Board was instructed/communicated dated 29-06-2018 to first appoint applicants who hold Diploma in “Anesthesia Assistant Technology” and if seats are not filled then the ones who have Diploma in “Operation Theatre Technology”. This communication was stayed by an order of the Court dated 04-07-2018. The Government withdrew its communication dated 29-06-2019 and instructed the Board on 03-08-2018 to start making selections by Government Order dated 26-03-2019. It is the last communication dated 03-08-2018 which has been questioned by the petitioners and seek a ‘Writ of Mandamus’ commanding the respondent Board to give effect to the notice dated 30-12-2017.

The respondent/Service Selection Board after stating the facts pleaded that the power to make selections is conferred to them by law. It was also contended by the Board that its sole work is to recruit therefore it cannot add or subtract any qualification and that a list of qualifications for a post is the prerogative of the concerned department/State and the Board has no role in laying down of qualification for a post.

It is well settled that prescribing qualifications is regulated by rules and regulations governing the field, however, in absence of such recruitment rules, the Government has the powers to notify the qualification by virtue of executive orders.

The post of Junior Anesthesia Assistant has no place in the J&K Non-Gazetted (Sub-Ordinate) Service Recruitment Rules, 1992, therefore, the Government came up with the notification through an executive order.

In the cases Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 and Ashish Kumar v. State of UP, (2018) 3 SCC 55 it was declared that in case variation between advertisement and statutory rules occurs, statutory rules would take precedence.

After taking note of the above facts and law laid down in the above cases, the health department directed the Board to make the selection as per the GO dated 26-03-2012.

The Court dismissed the petition for having no merit. [Javid Ahmad Mir v. State of JK, 2019 SCC OnLine J&K 542, decided on 03-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Single Judge Bench comprising of Vandana Kasrekar, J., against the order of respondents where petitioner’s representation with regard to his transfer was rejected.

Facts of the case are that petitioner was working on the post of Patwari and was also the President of the District Unit of the “Patwari Association”. Petitioner was transferred in response of which he filed representation to cancel the transfer on the ground that his wife was seriously ill and he himself was suffering from 40 percent of physical disability. Since no action was taken, a writ petition was filed and respondents were directed to reply to representation made by petitioner thereafter the representation was rejected and his services were transferred. Again petitioner submitted representation against the above transfer of services where again the representation was not responded to and petitioner had to file a writ before this court whereby respondents were ordered to respond to representation of the petitioner. Respondents rejected his representation once more and aggrieved by the same petitioner had filed this instant petition.

Petitioner opposed the rejection of his representation on two grounds. First, that respondents should have taken a lenient approach by considering his disability and ill health of his wife. Second, that petitioner is immune from transfer as he was the Office Bearer of recognized Association. Court while responding to the first ground stated by petitioner, observed that humanitarian considerations for employees posting cannot outweigh administrative exigency in the posting. Court also observed that it cannot interfere unless the transfer order suffers from malafide exercise of powers. While referring to Sanjeet Hardaha v. Sachin Jain, W.A. No.50 of 2018, Ramesh Kumar Soni Vs. State of MP, W.P. 12231 of 2017 and Prashant Shrivastava v. State of M.P., W.A. No.912 of 2018 it was stated that petitioner failed to show any malafide or violation of statutory rules in passing the impugned order. Therefore, the writ petition was dismissed. [Jagendra Pipri v. State of M.P., 2018 SCC OnLine MP 499, dated 29-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court:  A writ petition was decided by a Single Judge Bench comprising of Sujoy Paul, J., wherein it was held that the order of sanctioning leave of the petitioner granted by the Executive Engineer was well within the powers of such officer as provided for in the statutory rules, and the benefit of such order could not be taken away from the petitioner.

The petitioner was a government employee and on an earlier occasion, the Executive Engineer had passed an order whereby he sanctioned the earned leave to the petitioner for 79 days. However, subsequently the said officer canceled his earlier order in light of the administrative instructions passed by the Engineer-in-Chief, according to which the leave could be sanctioned only by the Engineer-in-Chief. Learned counsel for the petitioner assailed the said order contending that M.P. Civil Services (Leave) Rules, 1977, provide that for class-III employees, the office head has full power to grant earned leave.

The High Court, after a due consideration of submissions made on behalf of the parties was of the view that the Executive Engineer, being the office head, was well within his powers to sanction the earned leave of the petitioner who was a class-III employee. The Court observed that it is a trite law that by issuing executive instructions, statutory rules cannot be supplanted although the same can be supplemented. Since the statutory rules recognized powers of the Executive Engineer as competent authority to sanction earned leave, such power could not be taken away by issuing executive instructions by the Engineer-in-Chief. Benefit of the said power could not be taken away from the petitioner. Resultantly, the petition was allowed and the impugned order canceling leave of the petitioner was set aside. [Piyush Verma V. State of M.P., 2018 SCC OnLine MP 116, order dated 27-2-2018]