SC overturns J&K HC decision, reinstates 2 APs in SKIMS

Srinagar, May 11: The Supreme Court has allowed appeals against J&K and Ladakh High Court's judgment setting aside appointment of two Assistant Professors(APs) in the Sher-I-Kashmir Institute of Medical Sciences Soura.

The appeals had questioned the correctness of a judgment and order dated 11th July 2014 passed in OWP (PIL) No.861 of 2010 and the order dated 30th March 2018 in RPIL No.43 of 2014 as well as the order dated 30th March, 2018 in RPPIL No.43/2014, by the High Court whereby appointments as Assistant Professors of Dr Sheikh Javeed Ahmad and Dr Abdul Hamid Rather were set aside as being incompatible with the rules and regulations.

A bench of the Supreme Court comprising Justices Vikram Nath, Sanjay Karol and Sandeep Mehta observed that there were two issues for consideration before the High court—one was regarding the maintainability of the public interest litigation as it pertained to service matter and the second was regarding the ‘impossibility’ of obtaining the prescribed qualifications, thereby justifying the appointment of the appellants— Dr Sheikh and Dr Rather— without the same.

“The question of maintainability was thus answered keeping in view the decision in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat & Ors, which clarified the scenarios in which the Court could issue quo warranto as against certiorari,” the bench observed, adding, “ The position in law, that the law does not compel a man to do something which is impossible, was acknowledged, but it was held that there was nothing on record to show that the appellants obtaining a diploma in PMR was impossible.”

Furthermore, the apex court said, it was held that in the event of difficulty in securing the qualifications as required by the MCI, the correct course of action would have been to seek amendment of the rules.

“In conclusion, it was held that if doctors without the requisite qualifications were allowed to continue in an institution of such repute, it would jeopardise patient care in such hospitals and negate efforts to achieve academic excellence.  The appointments, as such, were set aside,” the top Court said.

Dr Sheikh and Dr Rather were upon approval of the then Chief Minister of the erstwhile State of Jammu Kashmir, who was the Chairperson of the SKIMS Governing Body, removed from service by way of orders, cancelling the appointments on 21 May 2018.

After hearing Gaurav Pachnanda and A M Magrey, Senior Counsel for the appellants and G M Kawoosa counsel appearing for the State, the bench said: “We are of the view that the High Court erred in coming to such a conclusion in the facts of this case. The basis of the conclusion drawn by the High Court was that there was nothing on record to show that the appellant had made efforts to be admitted into the institutes offering the diploma and that their candidature had, after due consideration, been rejected.”

In other words, the Apex court said, there was no impossibility in law to secure the qualifications as required.  “....The Notification issued by the competent authority, blocking two positions of Assistant Professor for the appellants ......tells us so. It makes clear that the two candidates would be sponsored for two-year diploma in their specialty, and subsequent to the completion of which, they would serve the institution for seven years in accordance with the necessary bond/agreement, which will have to be executed,” the court said, adding, “A bond or agreement of this nature is formed when the employer financially supports the educational advancement of one of its employees, who is then expected to return and contribute to the employer's growth with the newly acquired experience and knowledge for a specific period.”

The condition is that if such an employee fails to do so, the bond they have executed, which may be for a specified amount of money, shall be forfeited, or the amount paid by the employer in sponsoring such education shall have to be returned, the bench said.

“It is clear, therefore, that SKIMS was the one who had to make arrangements to secure admission for the appellants.”

Ultimately, the Bench held that the appellants were entitled to be reinstated in service as Assistant Professors with continuity in service.

“However, this may not be treated as a precedent.  All other benefits, pecuniary and non-pecuniary, would accrue to them as well, save and except  back wages, from the date of their removal till their reinstatement, which shall take place forthwith," the Bench said and directed that the two posts be revived.