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2011 Supreme(J&K) 432
JAMMU & KASHMIR HIGH COURT
F.M.Ibrahim Kalifulla, Acting Chief Justice, Honble Mr.Justice Mohammad Yaqoob Mir, JJ.
Arvind Kohli and Dr.Ishtiyak Ahmad Mir -Appellant
Versus
Sham Singh and Others -Resopndent
LPA No. 175 of 2010, LPA No. 181 of 2010, CMP No. 305 of 2010 and CMP No. 314 of 2010
Decided On : 08-09-2011
A candidate should satisfy the necessary eligibile qualifications as on the cut off date in order to validate their application.
Headnote:
The Court held that the appellants did not possess the "recognized medical qualifications", as prescribed under the Medical Council of India Act, 1956 and as required under the provisions of the 1979 Rules of the State and, therefore, they were not eligible to be considered for the post advertised under notification dated 06.03.2007.
Fact of the Case:
The appellants and the 1st respondent are in the medical profession and they applied for the post of Lecturer in Cardio Thoracic Surgery pursuant to notification issued by the 3rd respondent, Jammu and Kashmir Public Service Commission (hereinafter called the Commission), in notification No. 02-PSC of 2007 dated 06.03.2007.
Finding of the Court:
The Court held that having regard to the supremacy of the Central Legislation, namely, the Medical Council of India Act as regards the recognition of the qualification, the statutory prescriptions contained in the Indian Medical Council Act, 1956 have to be mandatorilly followed, more so, when such requirements prescribed under the Medical Council of India Act have been made part of the requirement under the 1979 Recruitment Rules of the State of Jammu and Kashmir.
Issues: Whether the appellants possessed the "recognized medical qualifications", as prescribed under the Medical Council of India Act, 1956 and as required under the provisions of the 1979 Rules of the State.
Ratio Decidendi: The Court held that in order to validate an application of a candidate as holding necessary eligibile qualifications, a candidate should satisfy such requirement as on the cut off date and no other explanation can be accepted to satisfy the said requirement.
Final Decision: The appeals were dismissed.
1. In these two appeals common challenge is to the order of the learned Single Judge dated 10.11.2010 passed in SWP no. 513/2007. The writ petitioner is the 1st respondent in both these appeals. The appellant in LPA no. 175/2010 was the 3rd respondent in the writ petition and the appellant in LPA no. 181/2010 the 4th respondent in the writ petition.
2. The appellants and the 1st respondent are in the medical profession and they applied for the post of Lecturer in Cardio Thoracic Surgery pursuant to notification issued by the 3rd respondent, Jammu and Kashmir Public Service Commission (hereinafter called the Commission), in notification No. 02-PSC of 2007 dated 06.03.2007. The essential qualification prescribed for the post as set out in the notification reads as under:
M.Ch in Specialty concerned after MS/FRCS or an equivalent qualification in Surgery with three years special training in the specialty concerned or specialty board (USA) in the specialist concerned after post graduation.
3. The appellants and the 1st respondent submitted their applications pursuant to the said notification. When the applications were processed and in that process the applications of the appellants were also accepted by the 3rd respondent-Commission for consideration, the 1st respondent came forward with the present writ petition with a prayer to quash the criteria applied by the Commission in entertaining the applications of the appellants and the Commission and other State respondents to be directed to follow the criteria for filling up of said post strictly in compliance to Indian Medical Council Act and J&K State Medical Council Act and apply the criteria as prescribed under the rules. The sum and substance of the stand of the 1st respondent before the Writ Court was that for the post of Lecturer in Cardio Thoracic Surgery, qualification has been prescribed under the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, that both the appellants failed to satisfy the said prescribed qualification and that the 1st respondent alone satisfied the said qualification and, therefore, the Commission ought not to have entertained the applications of the appellants herein. The contention of the 1st respondent having been accepted by the learned Single Judge and the learned Judge having declared that the appellants are not possessing the basic eligibility in terms of the advertisement notification and any recommendation made in their favour, treating the degree as valid degree, should not be acted upon for the purpose of allowing them to compete in the selection process for the post of Lecturer Cardio Thoracic Surgery. The learned Single Judge further directed the authorities to initiate the process of selection for the said post in terms of the notification by allowing only those candidates who possess the basic eligibility i.e. M.Ch degree in CVTS from Medical Institutes/ Universities which are recognized by the Medical Council of India. Aggrieved against the above order of the learned Single Judge the appellants have come forward with these appeals.
4. The grievances of the appellants though are common in nature, the variation in their respective cases have to be necessarily pointed out at the very out set.
5. In the case of appellant in LPA no. 175/2010, the said appellant holds a degree of M.Ch of CVTS from JIPMER, Pondicherry. According to the Commission the degree held by the appellant was not recognized by the Medical Council of India and, therefore, he was not eligible to compete in the selection. The appellant filed a writ petition in SWP no. 151/2009 before the Jammu Wing and an order of stay was granted by the Writ Court in the said writ petition and the writ petition is stated to be still pending. When the present writ petition was filed in SWP no. 513/2007, an interim order was passed by the Writ Court, directing the Commission to go ahead with the selection process but refrain from declaring the result. Theref
