Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, dismissed a petition challenging an order of the Central Administrative Tribunal, Jammu Bench, which had quashed a government order assigning additional charge of Director, Family Welfare, MCH & Immunization, Jammu & Kashmir. The Division Bench held that the petitioner was “absolutely not entitled to be posted as Director” and directed that the charge of the post be given to the senior most and eligible member of the J&K Health and Family Welfare (Gazetted) Service. The Court concluded that the petition was devoid of merit and dismissed it in limine.

The petition before the High Court arose from a challenge to an order dated 26 March 2025 passed by the Central Administrative Tribunal, Jammu Bench, in O.A. No.61/73/2025. The dispute concerned a government order, Government Order No.893-K(HME) of 2024 dated 23 December 2024, by which the petitioner, substantively a Medical Superintendent in the Jammu & Kashmir Medical (Gazetted) Service, was assigned additional charge of Director, Family Welfare, MCH & Immunization, Jammu & Kashmir. At the time of the order, the petitioner was serving as Director, Coordination, New Medical Colleges, which is not a post traceable to the Medical (Gazetted) Service.

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The respondent had earlier been posted as ADMO, Labour Department vide Government Order No.966-JK(HME) of 2023 dated 29 November 2023 and was subsequently posted as Deputy Director (Schemes), Jammu, vide Government Order No.914-JK(HME) of 2024 dated 29 December 2024. The post of Deputy Director, though held in an officiating capacity, is in the feeding cadre to the post of Director, Health and Director, Family Welfare, MCH & Immunization.

The respondent approached the Tribunal challenging the government order assigning the petitioner additional charge, also seeking a direction that the post be assigned to an eligible member of the J&K Health and Family Welfare (Gazetted) Service. The petitioner and the Government of the Union Territory of Jammu & Kashmir contested the matter. It was contended that the respondent had no locus standi to challenge the order as she was herself ineligible, and that the Government had discretion to appoint an appropriate person to run the Directorate.

The Government submitted before the Tribunal that the post of Director, Family Welfare, being a Head of Department (HOD) cadre post, required to be manned by an experienced person holding HOD position. It was further stated that the petitioner had served in various Director-level positions, including Director, Health Services, Kashmir, Director, AIDS Control Society, and Director, Coordination, New Medical Colleges, and was thus found most suitable. With respect to the respondent, it was contended that she was substantively an Assistant Director, placed at Serial No.16 in the seniority list dated 26 September 2023, and that at least three serving officers were senior to her, making her appointment as Director out of question.

The Tribunal, after considering the contentions, concluded that the petitioner was not a member of the J&K Health and Family Welfare (Gazetted) Service and, therefore, could not have been assigned the additional charge. By writ of certiorari, the Tribunal quashed the order dated 23 December 2024 and directed the Government to assign charge to the senior most eligible officer of the Service. It is this order that was brought before the High Court in the present petition.

The High Court examined the statutory framework governing appointments. It noted that the post of Director, Health Services/Director, Family Welfare is borne on the J&K Health and Family Welfare (Gazetted) Service constituted by the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2013. The sanctioned strength of the posts is three, to be filled “by selection from Class-II Categories ‘A’ and ‘B’ in the ratio of 2:1 respectively having at least three years substantive service as such with a minimum service of 15 years in the gazette cadre.”

The Court observed: “Indisputably, the petitioner, who is a member of J&K Medical (Gazetted) Service is neither an officer from Category ‘A’ or Category ‘B’ of Class-II of the J&K Health and Family Welfare (Gazetted) Service.” It further recorded: “There is no dispute that the petitioner is neither a senior consultant in any of the discipline mentioned in Class-II Category ‘B’… nor does he holds the post of Deputy Director, Health Services, Medical Superintendent/State Malariologist/ADMO Labour.” The Bench concluded: “It is, thus, a foregone conclusion that the petitioner is absolutely not entitled to be posted as Director, Family Welfare, MCH & Immunization J&K.”

The Court also examined Rule 5 of the Rules of 2013, noting that eligibility is strictly confined to the qualifications and methods prescribed. It recorded: “The appointment by transfer is not one of the modes prescribed in the Rules. There is no provision in the Rules of 2013 for relaxation of the prescribed qualifications and mode of recruitment.”

The Court stated: “In view of the aforesaid legal position, the petitioner, who belongs to a different service and does not fall in the feeding cadre to the post of Director in question, is absolutely not eligible to hold the post even in officiating capacity.” The Bench noted the difficulties arising from the failure to convene Departmental Promotion Committee or Public Service Commission meetings for regular promotions, but held: “That does not give absolute discretion to respondent No.2 to pick up any person from any service and impose it on the Health and Family Welfare (Gazetted) Service.”

Further, the Court observed: “If for some reasons beyond the control of respondent No.2, the working of the office of Director, Family Welfare, MCH and Immunization is required to be carried out by giving temporary charge to an ineligible person, it would be in the fitness of the things to pick up such person from within the service.”

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On the issue of locus standi, the Court stated: “Ordinarily a person who himself is not eligible to hold the post cannot throw challenge to the appointment of another candidate. However, in a case where one ineligible person is ignored at the cost of another ineligible person without reasonable basis or rationale, ineligible person, who has been ignored, can raise his voice and approach the Court.”

The Division Bench upheld the Tribunal’s judgment in full. It recorded: “For all these reasons and also elaborate reasons given by the Tribunal in its judgment, we find no merit in this petition and the same being devoid of any merit is dismissed in limine.” The effect of this dismissal is the confirmation of the Tribunal’s quashing of Government Order No.893-K(HME) of 2024 and the directive that the Government assign the charge of Director, Family Welfare, MCH & Immunization, Jammu & Kashmir to the senior most and eligible member of the J&K Health and Family Welfare (Gazetted) Service.

Advocates Representing the Parties

For the Petitioners: Mr. Jahangir Iqbal Ganai, Senior Advocate with Mr. Ahtsham Hussain, Advocate
For the Respondents: Mr. Sunil Sethi, Senior Advocate with Mr. Kunal Saini, Advocate; Mr. Raman Sharma, AAG

Case Title: Dr. Mushtaq Ahmad Rather v. Dr. Poonam Sethi & Anr.
Neutral Citation: 2025: JKLHC-JMU:2289
Case Number: WP(C) No.2138/2025
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar