Jammu & Kashmir and Ladakh HC: The present petition was filed under Article 226 of the Constitution challenging an order of the Central Administrative Tribunal, Jammu Bench (‘Tribunal’) passed on 26-03-2025 on the ground that the Tribunal failed to appreciate that Respondent 1 had no locus standi to challenge the Government Order (‘GO’) dated 23-12-2024 by which the petitioner was appointed as the Director, Family Welfare, MCH & Immunization (Director, Family Welfare’). The Division Bench of Sanjeev Kumar* and Sanjay Parihar, JJ., dismissed the petition, holding that the petitioner was ineligible for appointment as the Director, Family Welfare as he was not even a member of J&K Health and Family Welfare (Gazetted) Service (‘Gazetted Service’).
Background:
The petitioner held the post of Medical Superintendent in the Jammu & Kashmir Medical (Gazetted) Service constituted by the J&K Medical (Gazetted) Service Recruitment Rules, 1970. He was posted as the Director, Coordination New Medical Colleges. Through the GO dated 23-12-2024, he was assigned the additional charge of the Director, Family Welfare. Respondent 1 was, at the time of filing of the OA, posted as Deputy Director (Schemes), Jammu vide GO dated 29-12-2024, which was in the feeding cadre to the post of Director, Health and Director, Family Welfare.
Feeling aggrieved by the assignment of additional charge to the petitioner, Respondent 1 approached the Tribunal and challenged the GO and sought direction from the Government to assign the charge of the Director, Family Welfare to an eligible member. The petition was contested by the petitioner as well as Respondent 2. Respondent 2 submitted that the post of Director, Family Welfare was an HOD cadre post and, therefore, required to be manned by an experienced person holding HOD position. It was submitted that the petitioner, having worked as Director, Health Services, Director, Aids Control Society as well as Director, Coordination New Medical Colleges, was found to be the most suitable person for the post of Director, Family Welfare. Regarding Respondent 1, it was submitted that she was substantively holding the post of Assistant Director and figured at Serial No.16 of the seniority list issued by Respondent 2. It was specifically pleaded that there were three serving officers who were senior to Respondent 1 and therefore, her posting as the Director was out of question.
The Tribunal concluded that the petitioner was not even a member of the Gazetted Service and therefore, could not have been assigned the additional charge of the post of Director, Family Welfare. By a writ of certiorari, the Tribunal quashed the GO dated 23-12-2024 and directed the Government to assign the post of Director, Family Welfare to the senior most and eligible member of the Gazetted Service.
Analysis and Decision:
The Court observed that the post of Director, Family Welfare fell under the Gazetted Service as per the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013 (‘2013 Rules’), and must be filled from Class-II Categories ‘A’ and ‘B’ in a 2:1 ratio, by persons having at least three years of substantive service with a minimum service of 15 years in the gazette cadre. However, the requirement of minimum service of 15 years would not apply to Category B. Since the petitioner belonged to the J&K Medical (Gazetted) Service and not to either of the eligible categories, he was not entitled to hold the post.
The Court clarified that as per Rule 5(1) of the 2013 Rules, no person was eligible for appointment or promotion to any post in the service unless he possessed the qualification as laid down in Schedule-II and fulfilled other requirements as provided in the Rules. Similarly, Rule 5(2) provided that appointment to a post could be made only by direct recruitment, promotion or partly by direct recruitment and partly by promotion in the ratio and in the manner mentioned against each post in Schedule-II.
The Court acknowledged Respondent 2’s challenge in appointing an eligible Director, Family Welfare, but emphasized that this did not justify selecting someone from outside the designated service. The Court noted that the issue arose from delays in convening DPC/PSC meetings, which created a situation where not even a single candidate in the service was eligible to hold the post of Director. While temporary assignment to an ineligible person might be acceptable, the Court questioned why such a person was not chosen from within the service itself.
The Court opined that the petitioner was already holding the position in the Department of Medical Education and therefore, importing him to the Department of Health and Family Welfare smacked of an act of favourtism. The Court emphasised that ordinarily a person who himself was not eligible to hold the post could not challenge the appointment of another candidate. However, where one ineligible person was ignored at the cost of another ineligible person without reasonable basis or rationale, the ineligible person, who was ignored, could raise his voice and approach the Court to find out the reasons for his exclusion and rue the inclusion of another ineligible candidate that too, who did not even belong to the service.
Consequently, the Court dismissed the petition in limine, finding no merit in it.
[Mushtaq Ahmad Rather v. Poonam Sethi, WP(C) No. 2138 of 2025, decided on 12-08-2025]
*Judgment authored by: Justice Sanjeev Kumar
Advocates who appeared in this case:
For the Petitioner: Jahangir Iqbal Ganai, Sr. Advocate with Ahtsham Hussain, Advocate.
For the Respondents: Sunil Sethi, Sr. Advocate with Kunal Saini, Advocate, Raman Sharma, AAG.
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