Excelsior Correspondent
JAMMU, June 1: High Court today said that no situation should be allowed to arise where the Department of Health has to face scarcity of the doctors by itself deputing most of them outside the department.
This was observed by Justice Janak Raj Kotwal while deciding bunch of petitions filed by Medical Officers of Jammu and Kashmir Health and Family Welfare (Gazetted) Service, who have been selected for appointment on deputation to the tenure post of Registrar or Demonstrator in the Government Medical College, Srinagar and some have been similarly selected for appointment to the tenure post of Senior Residency in Sher-i-Kashmir Institute of Medical Sciences (SKIMS) Srinagar. The Department of Health, which is their parent department, however, refused to relieve them to enable them to join the tenure posts.
“No such situation should be allowed to arise where the Department of Health, which is the parent department of the doctors, has to face scarcity of the doctors by itself deputing most of them outside the department”, Justice Kotwal said, adding “for maintaining a fine balance and achieving the desired result the operation of the Rule, however, has to be transplant, should not be arbitrary and not appear to be actuated by favourtism”
The allegation of the petitioners was that Department of Health resorts to pick and choose method and acts arbitrarily in relieving the in-service doctors for tenure posts and the Principals of the Medical Colleges do not relieve in time the doctors who complete their tenure.
“The picture in regard to the in-service doctors working outside the Department of Health depicted by the Administrative Secretary in his personal affidavit is disturbing as neither in this affidavit nor in the reply affidavit filed on behalf of respondents it has been stated as to how this picture has developed in spite of the Government having laid down quota in this regard in the Rules of 2013 as also in the earlier Rules of 2006”, High Court said.
“While as the respondents have taken due care to justify their refusal to issue NOCs to and relieve or depute the petitioners because of the dearth of doctors in the Department of Health, they should have also explained the factors responsible for huge overstepping of the quota provided for such deputations under the Rules and not providing similar treatment to the petitioners”, High Court said, adding “it is not without any reason that the State Government all through and latest under the Rules of 2013 has provided a fixed quota for the doctors to be deputed out of the Department of Health for Registrarship/ Demonstratorship/ Senior Residency, higher studies or deputation to other departments. Fixation of quota justifies the principle of reasonable restriction and cannot be said to be violative of any Fundamental Right of a doctor, who at a given time is refused deputation on that score”.
With these observations, Justice Janak Raj Kotwal held that the Government Order No. 164-HME of 2012 was required to be modified and further ordered that no case for issuing writ of mandamus directing respondents to relieve the petitioners for joining the tenure posts of Registrar/Demonstrator/ Senior Residency at this stage was made out and writ to this extent was refused.
“Nonetheless, having regard to the Rule position and the facts, there is sufficient ground for showing indulgence and therefore directions are issued to Commissioner/Secretary Health & Medical Education Department as also the Principals of Government Medical College, Srinagar, Government Medical College, Jammu and Director, SKIMS to immediately relieve all those doctors of Department of Health, who have completed their prescribed tenure as Registrar/Demonstrator/ Senior Residency in these Colleges/Institutes. This shall be done within two week’s time from the date of this judgment”, Justice Kotwal said.
He further directed that that all the doctors of Department of Health working with these Colleges/Institutes as Registrar/ Demonstrator/ Senior Residency are relieved immediately after they complete their prescribed tenure and further directed for strict adherence to the Rules and Government Order No. 164-HME of 2012 while selecting/deputing doctors of Department of Health to tenure posts of Registrar/ Demonstrator/Senior Residency.
Justice Kotwal further directed that Commissioner/Secreatry shall accord consideration to modify Government Order No. 164-HME of 2012 to give effect the quota under ‘Training Reserve’ provided under the Rules of 2013 and he shall accord consideration to and issue suitable orders in regard to the doctors of Department of Health working on deputation outside the department, having regard to 4% quota fixed in this regard under the Rules of 2013. “This exercise shall be completed within four weeks’ time after the date of this judgment”, High Court ordered.
“The selection of petitioners as Registrar/ Demonstrator/ Senior Residency in their respective disciplines shall remain intact and they shall have prior right to be deputed against these tenure posts and no other doctor from the Department of Health shall be appointed or deputed against these posts”, Justice Kotwal further directed.
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