‘State doesn’t enjoy unqualified prerogative to refuse appointment’
Dubs SKIMS action against petitioner as unfair, arbitrary
JAMMU, Oct 7: High Court of Jammu & Kashmir and Ladakh has held that objective satisfaction must be the basis for any executive action and State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion.
These observations were made by Justice Wasim Sadiq Nargal in a petition filed by Dr Mushtaq Ahmed seeking a direction against the respondents (SKIMS authorities) to select and appoint the petitioner against the post of Assistant Professor in Clinical Pharmacology, from amongst the Non-Medical Candidates by giving the benefit of such appointment from the date the same has been given to the private respondent.
The specific case of the petitioner was that since he was the only candidate in the Non-Medical Category and fared well in the interview, the respondents were under legal obligation to select and appoint him against the post of Assistant Professor in Clinical Pharmacology but the same was not done.
The petitioner through the medium of the writ petition called in question the Advertisement Notice dated 17th April 2021, besides calling in question the order of consideration dated 30th July 2022, on the grounds that admittedly four posts of Assistant Professors in the Department of Clinical Pharmacology were advertised by the respondents on 10th January, 2012 and out of four posts, only two posts were filled and the two posts remained unfilled.
After hearing counsels for the petitioner and respondents, Justice Wasim Sadiq Nargal observed, “an executive action must be informed by reason. An unfair executive action can only survive for a potent reason. An action which is simply unfair or unreasonable would not be sustained”, adding “it goes without saying that objective satisfaction must be the basis for an executive action. Even in case of subjective satisfaction on the part of a State, the same is liable to judicial review”.
“Reasonableness and non-arbitrariness are the hallmarks of an executive action by the State. Judged from any angle, the action on the part of the respondents in the instant case to deprive the petitioner of being selected and appointed against the post of Assistant Professor (Non-Medical) does not satisfy the test of fairness and reasonableness. Thus, the action is arbitrary and cannot sustain the test of law”, High Court said.Pointing towards the Supreme Court judgment, Justice Wasim Sadiq Nargal said, “I am supported by the observations of the Apex Court that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process”.
“The validity of the State’s decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter”, Justice Nargal further said, adding “I am further supported by another judgment of the Apex Court that when the employer is the state it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme and reason decide not to fill up the post”.
“The State must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State”, High Court said.
Keeping in view settled legal position, High Court said, “the petitioner succeeds to make out his case in the instant petition, and, accordingly, the writ petition is allowed by directing the official respondents to consider the case of the petitioner against the post of Assistant Professor Non-Medical in the Department of Clinical Pharmacology by giving him the benefit of such appointment from the same date it has been given to respondent belonging to medical category, strictly in conformity with the directions passed by this court in SWP No.2523/2018 decided on 30.10.2018”.
As a necessary corollary, the impugned Advertisement Notice No. 02 of 2021 dated 17.04.2021 and the order of consideration bearing No. SIMS 130(P) of 2022 dated 30.07.2022 issued by respondent (SKIMS) are also set aside/quashed”, High Court said, adding “since no challenge has been thrown by the petitioner against the selection/appointment of private respondent as Assistant Professor (Medical) and also in the light of the fact that the petitioner has no grievance against the said respondent, the selection/appointment of respondent is accordingly upheld”.(By Daily Excelsior)
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