Excelsior Correspondent
Srinagar, July 31: High Court while clarifying the eligibility for the post of Controller Drugs and Food (CD&F) in the Health and Medical Education Department, said both the claimant and the present incumbent are not eligible and qualified for the post as they don’t have minimum seven years of experience of Deputy Controller Drugs in substantive capacity.
The Division Bench of Chief Justice Pankaj Mithal and Justice Vinod Chatterji Koul has agreed with the submission of Senior Advocate B A Bashir, that Lotika Khajuria (present incumbent) is also not eligible and qualified for promotion as she also does not have to her credit a minimum of seven years of experience as Deputy Controller Drugs in substantive capacity.
The DB also recorded that the appellant Nazir Ahmad Wani (claiming for the post of Controller) having no right to hold the post of the Controller of Drugs, if have been disallowed to function on it. “We are of the opinion that no illegality has been committed and at the same time, there is no flaw in the impugned judgment which may permit us to intervene in the matter”, the DB said.
It dismissed the appeal of claimant-Nazir Ahmad Wani challenging the writ court judgment by recording that it lacks merit and clarified that none of the observations made by the court would come in the way of either of the parties in getting their inter-se seniority determined in any other forum or in any litigation that may be pending between them.
The writ court, after narrating and dealing with the issue in controversy, pointed out that the Government had issued a circular dated 20.07.2018 stating that since certain appointments have been made at the level of the department without the approval of the Cabinet or concurrence of the Finance Department, all such appointments are required to be relooked.
Thus, in the wake of the circular, the writ court disposed of the petition to examine the issue of appointment of Nazir Ahmad Wani on the post of Controller Drugs and the subsequent order rescinding it to find out which of the orders shall hold the field or who is the person competent to hold the post of Controller of Drugs.
The DB while applying the eligibility criteria for the post in question said both Nazir Ahmad Wani and Lotika Khajuria lack the basic eligibility conditions of seven years minimum experience of the post of Dy. Controller of Drugs as prescribed by Rule 5 read with Schedule-II of Rules for promotion to the post of Controller of Drugs as such they have no legal vested right to continue on the said post and as such rescinding of any order authorizing them to work on it suffers from no illegality.
“A person who does not possess the requisite qualifications or who is not eligible cannot even apply for recruitment. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and such a person cannot even approach the court for any relief as he does not have the right to hold the post”, the DB mentioned while referring to the Supreme Court ruling.
Court said, an appointment which is contrary to the Statute would be void in law and such a person would have no legal right to continue on the post. In such circumstances where a person is not eligible, termination or revocation of his appointment would not be illegal.
Court while examining the decision taken by the respondents to promote Nazir Ahmad Wani on temporary basis as Controller of Drugs and could have been validly rescinded. In this connection, court clarified that claimant-Wani cannot be recognized as the senior most person in the department as Lotika Khajuria is exfacie senior to him.
Both of them were appointed on the same day as Assistant Controller Drugs by direct recruitment and the name of Lotika Khajuria appeared as the only name after selection in merit list for appointment whereas Nazir Ahmad Wani was in the waiting list.
It is under Rule 5 read with Schedule II, the post of Controller of Drugs is required to be filled up by promotion through selection from Deputy Controller Drugs and Food having a minimum of seven years of service but appellant-Wani was not having seven years of service as Deputy Controller Drugs and Food in substantive capacity and as such, is not eligible for the post of Controller Drugs.
The DB said, Nazir Ahmad Wani was allowed to function as Controller of Drugs in complete violation of the Rules and seniority and, as such, no illegality had been committed in rescinding the order dated 22.03.2018 by which he was allowed to function as Controller of Drugs.
High Court has already directed the Public Service Commission to accord consideration to the proposal for filling up the post of Deputy Controller Drugs and Food on substantive basis and once the posts of Deputy Controller are filled up on regular basis to accord consideration to the eligible Deputy Controller Drugs and Food for filling up the post of Controller Drugs.
“To accord consideration to all Incharge Deputy Controllers Drugs in accordance with the rules for placement of one of them as Incharge of the post of Controller Drugs and in the intervening period i.e., the date posts of Dy. Drug Controller are filled up on substantive basis and the date the post of Controller of Drugs is so filled up, the charge of Controller of Drugs shall be given to senior most Dy. Drug Controller but this arrangement shall not continue beyond a period of eight weeks”, Court had directed.
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