Summary
The High Court, in a PIL, had set aside the appointments of two doctors as Assistant Professors in Physical Medicine and Rehabilitation at SKIMS, Srinagar, because they lacked the two-year diploma on which their appointment had been conditioned. The Supreme Court held that the High Court proceeded on a mistaken view of fact: SKIMS itself, as sponsor, had undertaken to arrange the diploma and could not do so because the course was discontinued, the appellants completed the AIIMS short-term training recommended by the AIIMS head of department, and the competent authority relaxed the condition. The appointments were restored with reinstatement and continuity of service but without back wages.
Issues
- Whether the High Court was right in setting aside the appellants' appointments as Assistant Professors on the ground that they had not obtained the prescribed diploma and that there was no impossibility in acquiring it.
- Whether the High Court was justified in disregarding the recommendation of the Head of Department of PMR at AIIMS, New Delhi that short-term training sufficed for the appellants to work as faculty.
- What relief follows where the posts blocked for the appellants were treated as deemed abolished during the pendency of the proceedings.
Provisions considered
- Section 103, Constitution of Jammu and KashmirThe PIL seeking cancellation of the appellants' appointments was filed under this provision. The High Court treated the PIL as maintainable on the quo warranto exception for appointments contrary to statutory rules; the Supreme Court recorded this but decided the appeals on the merits without construing the provision. (¶¶ 3.7, 4, 4.1)
Held
- The High Court's conclusion that nothing on record showed an effort to secure the diploma, and hence no impossibility, was a mistaken position of fact. The notification blocking two Assistant Professor posts for the appellants made SKIMS the sponsor obliged to arrange the two-year diploma under a service bond; SKIMS's own counter affidavit acknowledged that the sponsorship could not materialise because the institutions had discontinued the course. (¶¶ 7, 8, 9)
- The High Court was unjustified in casting aside the recommendation of the Head of Department of PMR at AIIMS, the apex Government hospital, by insinuating that his opinion was elicited only to justify a foregone conclusion; the person consulted was qualified to opine and the request for guidance was not misplaced. (¶ 10)
- The High Court erred in accepting, without verification, the PIL petitioners' list of colleges said to offer the diploma, when both the AIIMS expert and the appointing authority had found that various colleges had shut down the course. The appellants did complete the AIIMS training and the first appellant secured a letter of recommendation from the AIIMS head of department. (¶¶ 11, 12, 13)
- Where the State's own inquiry showed that one named PIL petitioner denied having filed the petition and another could not be traced, the High Court ought to have examined the propriety of its order on receipt of that affidavit. (¶ 2)
- The appellants are entitled to reinstatement as Assistant Professors with continuity of service and all pecuniary and non-pecuniary benefits except back wages for the period from removal to reinstatement; the two posts, treated as deemed abolished for remaining vacant over two years, are directed to be revived. The decision is not to be treated as a precedent. (¶¶ 14, 15)
Result
Appeals allowed; High Court judgment dated 11.07.2014 in the PIL and the review orders dated 30.03.2018 set aside. Appellants to be reinstated forthwith as Assistant Professors with continuity of service and all benefits except back wages; the two blocked posts directed to be revived. Not to be treated as a precedent. Parties to bear their own costs; pending applications disposed of.