"No Obligation to Appoint 30% Non-Medical Faculty": J&K High Court Sets Aside Single Bench Order, Holds Respondent "Never Acquired Any Right to be Selected"
Safiya Malik
The Division Bench of the High Court of Jammu and Kashmir and Ladakh at Srinagar, comprising Justice Sanjeev Kumar and Justice Puneet Gupta, set aside the Writ Court’s decision directing retrospective consideration of a non-medical candidate for appointment to the post of Assistant Professor in Clinical Pharmacology at SKIMS. The Court observed that “there is no mandate upon the medical institute to recruit necessarily 30% of the total number of posts in the department… by appointing non-medical teachers.” It held that the interpretation adopted by the Writ Court was “built on a total wrong premise and clear misunderstanding of the relevant Regulations.”
The matter arose from the Writ Court’s judgment dated 4 October 2023 in WP(C) No.2749/2022, wherein the respondent had challenged the consideration order dated 30 July 2022 and the subsequent Advertisement Notification No.02 of 2021 issued by SKIMS for filling up one post of Assistant Professor in Clinical Pharmacology. The respondent, holding M.Sc. and Ph.D. qualifications in Medical Pharmacology, had applied in response to Advertisement Notification No.07 of 2016 for a non-medical position in the same department. Although his application was entertained and he appeared for an interview, he was not selected.
Previously, SKIMS had issued Advertisement Notification No.01 of 2012 inviting applications for four posts of Assistant Professor in Clinical Pharmacology. Only two posts were filled at that time. Subsequent notifications in 2013 and 2015 did not result in appointments. In 2016, through Advertisement Notification No.07 of 2016, SKIMS again invited applications for faculty posts including those in Clinical Pharmacology, and permitted candidates from both medical and non-medical streams. The respondent applied under the non-medical category.
Upon completion of the selection process, SKIMS uploaded a merit list on 4 October 2018, showing the selection of a candidate under the medical stream while no appointment was made under the non-medical stream. Claiming to be the sole eligible non-medical applicant, the respondent filed SWP No.2523/2018, seeking a direction for completion of the selection process and his appointment. The Court disposed of the petition on 12 May 2022, directing SKIMS to declare the respondent's result and take follow-up action if he had “made the grade.” It further directed that if found eligible, “the respondents shall consider the claim of the petitioner for giving effect to the order of his appointment from the same date, when the candidates belonging to Medical Category have been selected and appointed…”
In compliance, SKIMS issued consideration order No.SIMS/30(P) of 2022 dated 30 July 2022, rejecting the respondent’s claim on the grounds that he had secured only 48.00 points, while the benchmark for selection was 50 points, and that only one post under the open merit category was filled by a more meritorious candidate. Dissatisfied, the respondent filed WP(C) No.2749/2022, contesting the 2022 consideration order and Advertisement Notification No.02 of 2021.
The appellant in LPA No.244/2023, Dr. Majid Farooq, claimed to have participated in the selection process initiated by Advertisement Notification No.02 of 2021 and emerged successful. He challenged the Writ Court’s direction on the ground that the respondent had neither qualified in the 2016 selection nor participated in the 2021 process.
The Division Bench considered the relevant provisions under the “Minimum Qualification for Teachers in Medical Institutions Regulations, 1998” as amended. It recorded that Article 2 of Schedule-I permits non-medical teachers to be appointed “to the extent of 30%” in specific departments such as Pharmacology. However, it noted that “the word ‘may’ used in Article-2 clearly indicates that it is in the discretion of the Medical Institution to appoint non-medical teachers… there is no mandate of the Regulations to necessarily and mandatorily appoint 30% of the total posts of the department from non-medical students.”
The Court stated that the Writ Court had proceeded “on a total wrong premise that a medical college or medical institution like SKIMS is duty bound to fill up at least 30% of the total number of posts in each discipline from non-medical candidates.” It further clarified that the 30% figure represents an upper ceiling, not a mandatory quota.
In analysing the respondent’s performance in the 2016 selection, the Court referred to the merit list. The highest scorer, Dr. Mudasir Sharief Banday, had secured 70.00 points. The respondent was placed last with 48.00 points, below the 50-point benchmark. The Court remarked, “even if it was to be filled up from general category, Dr. Nasreen Jan Chashoo with a score of 68.05 would have come in the selection zone.”
The Court observed that the unfilled post was earlier earmarked for the Scheduled Caste category and later de-reserved under a revised roster issued via S.O.127 dated 20.04.2020, and subsequently advertised as open merit under Advertisement Notification No.02 of 2021. It stated, “in the face of availability of more meritorious candidates… the unfilled post could not have been filled up by appointing respondent No.1, who was last in the merit.”
The Bench held that the respondent’s challenge to the 2021 advertisement lacked locus standi, since he had not participated in that selection process. It recorded, “respondent No.1, who had not participated in the selection process will have no locus standi to challenge the advertisement notification No.2 of 2021.”
Regarding the allegation that the benchmark was introduced midway through the selection, the Court clarified that no selection criteria had been framed before the process began and that the benchmark was determined during the ongoing process. It referred to the Constitution Bench decision in Tej Parkash Pathak and others v. Rajasthan High Court and others [Civil Appeal No.2634/2013, 2024 INSC 847], stating that “it cannot be argued by respondent No.1 that… SKIMS changed the eligibility criteria or selection criteria midway.”
The Court concluded that the respondent had “never acquired any right to be selected and appointed” and held that the Writ Court’s direction for retrospective consideration lacked legal basis.
The Division Bench allowed both LPA No.244/2023 and LPA No.51/2024. The Court stated: “The judgment passed by the Writ Court dated 04.10.2023, impugned in this appeal, is set aside and the WP(C) No.2749/2022 filed by respondent No.1 is without any merit and dismissed accordingly.” It further permitted SKIMS to proceed with the selection process under Advertisement Notification No.02 of 2021 “in accordance with law.”
Advocates Representing the Parties
For the Petitioners: Mr. Jahangir Iqbal Ganai, Senior Advocate; Mr. Junaid Malik, Advocate; Mr. Abdul Rashid Malik, Senior Additional Advocate General; Ms. Rahella Khan, Advocate
For the Respondents: Mr. M.Y. Bhat, Senior Advocate; Mr. R.A. Bhat, Advocate
Case Title: Dr. Majid Farooq v. Dr. Mushtaq Ahmad and others
Case Number: LPA No.244/2023 c/w LPA No.51/2024
Bench: Justice Sanjeev Kumar, Justice Puneet Gupta
[Read/Download order]
