Doctors Litigating In Court:High Court Pulls Up Govt For ‘Outright Unfairness’

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Srinagar—The Jammu and Kashmir High Court has pulled up government for “outright unfairness” in providing benefit to a doctor leading to litigation between the two doctors and affecting the patient care. 

“Having gone through all these (five) petitions and the documents placed on them, I am constrained to observe, at the very outset, that the two Doctors have been litigating in the Court for the last eight years and the whole mess has been created by the surreptitious conduct of certain persons in the Government in the Health and Medical Education Department,” a bench of Justice Ali Mohammad Magrey observed while disposing a bunch of clubbed petitions. “Someone there, under a well planned design to tamper with normal course of things, has been instrumental in throwing the established law and Rules to winds, which has not only given rise to severe multiplicity of litigation between two persons belonging to a noble profession, but has also, in some sense and way, unsettled things settled long before by established law, and left serious repercussions thus far on the service career and functioning of the concerned Doctors,” the court said.

Consequently, the court said, it must have also impacted the students and patient care in Government Medical College Hospital or the Super Specialty Hospital, Jammu. “What is curious enough is that the Government is not even ashamed of its outright unfairness exhibited by it by its double standards at two different stages of the litigation– one while defending its action of conferring an undue advantage, unknown to law, on one of the Doctors and then defending its action when such undue advantage wasreversed by it,” the court said, adding, “It is disgusting that the Government in the Health and Medical Education Department has stooped so low as to manipulate things without any basis.”

Case

In 2000, a post of Lecturer in the Scheduled Tribe (ST) category in the discipline of Medicine was available in the Health and Medical Education Department of the State. The post was filled up by a “general category” candidate. Dr.Shoket M. Chowdry, who had got admission to MD Course in Medicine at PGI Chandigarh in January, 2000.

As observed by the court, Chowdry stated to have undergone the MD course from January 2000 to December 2002. “Obviously, therefore, any attempt on the part or on behalf of the (Chowdry) to derive any advantage from such action of the Government or claim deprivation on that count would naturally be untenable and inconsequential as, according to his own stand, he became eligible for the post of Lecturer in the year 2005.”

 Thereafter, the court said, one more Lecturer’s post of the ST reserved category in the department of Medicine became available in Medical College, Jammu. It was referred to the Jammu and Kashmir Public Service Commission  for selection of a suitable candidate under general category. The PSC advertised the post by notification (no.07-PSC of 2007) on 4 July 2007.

The DrChowdry challenged the notification and high court directed the PSC to accept his application form for the post and to allow him to participate in the selection process, but the result be not declared till the disposal of the petition. Subsequently, on 12.12.2007, the Court quashed the advertisement notification qua the post of Lecturer in the stream of Medicine with direction to the PSC to issue fresh advertisement notification, treating the vacancy reserved for ST category. However, such fresh advertisement notification was not issued, at least, within the time stipulated by the Court.

In 2008, PSC issued notification on 31.12.2008, notifying two posts – one each in RBA and SC categories. Dr Chowdry filed a contempt petition for non-compliance of the Court. Subsequenlyt, the Government in implementation of the judgment on 12.12.2007 referred one post of Lecturer under ST category to the PSC. The Government referred two more posts of Lecturers under general category in the stream to the PSC on 17 April 2009. The PSC advertised the three posts – two in general category and one under ST category – by notification no.14-PSC of 2009 on 17 July 2009.

After conclusion of the selection process, the Government issued order (no.569-HME f 2009) on 24 December 2009 appointing three Doctors as Lecturers in the discipline of Medicine in Government Medical College, Jammu. Dr.Vijant Singh Chandail (petitioner), figured as the first candidate in the order as a general category candidate and Dr Chowdry, figured as the last candidate as a ST category candidate. Both were appointed pursuant to advertisement notice no.14-PSC of 2009 dated 17.07.2009.

 On 23.4.2014,  the government accorded sanction to the segregation of the service of Dr. Chowdry, showing him as Assistant Professor (OPG) from his parent cadre—Medicine to Gastroenterology, Government Medical College, Jammu and transfer of his lien from Medicine to Gastroenterology for seniority and promotion purposes.

Dr. Vijanat challenged the order, being his third one in sequence. It was averred by him that he was a Doctorate of Medicine in Gastroenterology and fully qualified and eligible to hold and man the post of Assistant Professor in Gastroenterology, and that by all means he has a superior claim to be appointed on the post, being senior to Dr Chowdry and more meritorious than him. 

The court replied the ‘core” question whether a Lecturer belonging to ST category, or, for that matter, any category, appointed in the Medical Education Department on direct recruitment basis against the category post pursuant to a specified advertisement notification, can claim, or be granted, notional benefit to his appointment from a retrospective date of the issue of a previous notification, in negative.

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