Point of Law: Posts of Assistant Controller Drugs - Eligibility criteria - If essential educational qualification for recruitment to a post is not satisfied, same cannot be condoned ordinarily - An appointment which is contrary to Statute would be void in law - Such a person would have no legal right to continue on post.

JUDGMENT :

Pankaj Mithal, J

1. Under challenge in this Letters Patent Appeal is the judgment and order dated 24.08.2018 passed by the learned Single Judge disposing of writ petition SWP No.1390/2018: Nazir Ahmad Wani v. State and others.

2. Before proceeding to express any opinion on the validity of the order impugned, it would be prudent to narrate some of the facts leading to the filing of the above writ petition and the relief sought therein.

3. The dispute essentially relates to Assistant Controller Drugs/Assistant Drug Analyst, Deputy Controller Drugs and Food/Drug Analyst and promotion to the post of Controller Drugs and Food in the Health and Medical Education Department of the Union Territory of Jammu and Kashmir.

4. In the present appeal or the writ petition wherefrom this appeal has arisen, the dispute is interse the petitioner-appellant-Nazir Ahmad Wani and respondent no.2-Mrs. Lotka Khajuria but it refers to four other persons, namely, Ashok Kumar Gupta, Shuban Lal Koul, Satish Kumar Gupta and Mrs. Irfana Ahmad.

5. It is pertinent to mention here that all the above six persons, namely, Ashok Kumar Gupta, Shuban Lal Koul, Satish Kumar Gupta, Mrs. Irfana Ahmad, Mrs. Lotika Khajuria and Nazir Ahmad Wani, were working in the Health and Medical Education Department, Government of Jammu & Kashmir and in the year 2000 were posted as Senior Drug Inspectors. All of them were accorded promotion as Assistant Controller Drugs vide order dated 01.01.2002 in their own pay and grade subject to clearance by the Departmental Promotion Committee (DPC)/Public Service Commission (PSC). These promotions were made against the 80% quota meant to be filled up by promotion from amongst the Senior Drug Inspectors; whereas the remaining 20% of the posts of the Assistant Controller Drugs were to be filled up by direct recruitment on selection and recommendation by the Commission.

6. The State Public Service Commission, Srinagar, vide notification dated 24.10.2000 advertised one post of Assistant Drug Controller/Assistant Drug Analyst to be filled up by open merit i.e., direct recruitment and invited applications from the eligible candidates. Two of the above persons Lotika Khajuria and Nazir Ahmad Wani who had already been promoted as Assistant Drug Controller subject to clearance by the DPC/PSC also applied as the Rules permitted persons already in service to apply and compete for direct recruitment within the quota prescribed. The Commission on the basis of the overall performance which included the academic merit, experience, interview and other relevant factors recommended the name of Lotika Khajuria for appointment as open merit candidate. The other candidate Nazir Ahmad Wani was placed in the waiting list.

7. On the basis of the recommendation of the Commission, the Under Secretary to the Government Health and Medical Education Department vide order dated 20.03.2003 accorded sanction to the appointment of Lotika Khajuria as Assistant Drug Controller/Assistant Drug Analyst in the pay scale of Rs.7500-12000 in the Drug and Food Control organization. In this way Lotika Khajuria came to be appointed by direct recruitment on the post of Assistant Drug Controller/Assistant Drug Analyst foregoing her earlier promotion on the said post accorded vide order dated 01.01.2002 which was in her own pay and grade subject to clearance by the DPC/PSC. Since at the relevant point of time Lotika Khajuria was on deputation to the State Aids Control Society, Chandigarh, and was allowed to continue on deputation despite her direct recruitment on the post of Assistant Drug Controller, the Government by the same order dated 20.03.2003 appointed Nazir Ahmad Wani who was in the waiting list of open merit as the Assistant Drug Controller/Assistant Drug Analyst in the same pay scale of Rs.7500-12000.

8. The above facts clearly reflect that both Lotika Khajuria and Nazir Ahmad Wani appeared for the direct selection on the post of Assistant Controller Drugs and that the Comm