A Writ of Mandamus cannot be issued unless the petitioners have a vested right of appointment: High Court Of Jammu & Kashmir And Ladakh

The competent authority seemed to have considered the detailed opinion rendered by the Law Secretary and instead of taking a policy decision, had directed the matter to be closed. Such an opinion was held by The Hon’ble High Court Of Jammu & Kashmir And Ladakh before The Hon’ble Mr. Justice Sanjeev Kumar in the matter of Dr. Jahangir Rashid Beigh and another vs. State of J&K and others [SWP No.602/2019]. 

The facts of the case are associated with the advertisement published by the Sher-i-Kashmir Institute of Medical Sciences (SKIMS), inviting applications for filling up positions of Professor and Assistant Professor in different departments. In response to said advertisement, numerous applications from eligible doctors including petitioners were received for the post of Assistant Professor in Cardiology. The application of the petitioner and 8 others were found eligible by the Screening Committee constituted by the Government. The Apical Selection Committee (ASC) framed the merit list after the conclusion of the interview and appointment. The list was topped by Dr. Aamir Rashid followed by petitioner No.1 and petitioner No.2. Dr. Aamir Rashid, who was first in the order of merit, as Assistant Professor, Cardiology was issued. 

Further, the proposal submitted to the finance department by the petitioners received the concurrence of the finance department. In the department of cardiology, the SKIMS needed faculty and the petitioners were found qualified and meritorious in the selection process conducted by the ASC. A reply affidavit was filed by the respondents wherein they contended that according to the advertisement only one available post of Assistant Professor in the department of Cardiology was notified for selection, and on the basis of selection and recommendations made by the ASC, was filled up by the appointment of the top candidate Dr. Aamir Rashid. Petitioners no 1 and 2 were not offered any appointment since there were no posts to accommodate them. 

The Chief Secretary conveyed the concurrence of the finance department, called upon the Director, SKIMS to revise his proposal earlier submitted by him. The Chairman, Governing Body through Chief Secretary was forwarded the revised proposal and further he had directed to get clarification on the legality of such proposal. The said matter finally landed before the department of law for opinion. The Law Secretary had such opinion that “the exigency pointed out by the Director, SKIMS on account of non-availability of Cardiologists in SKIMS, would fall within the purview of an emergent situation and exceptional circumstances and, therefore, the respondents may take a policy decision in this regard.”

After going through all submissions The Hon’ble High Court held that “… They cannot, in law, seek a mandamus to the respondents to create supernumerary posts and adjust them on the ground that they are next in merit to the candidate selected and appointed. Viewed from any angle, I find no merit in this petition. The same is, accordingly, dismissed.” 

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Judgment reviewed by Bipasha Kundu

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