Srinagar, Feb 28: The High Court on Thursday nullified a State Cabinet decision and consequent government order about the appointment of principal to Government Medical College (GMC), bypassing the recommendations of a selection committee.
A division bench comprising Justices Ali Mohammad Magrey and Sanjeev Kumar while disposing off a petition by Prof Dr Javed Chowdhary said “we are constrained to intervene in the matter and hold the cabinet decision and consequential government order, impugned in the writ petition, bad in the eye of law and not sustainable.”
The Cabinet decision of 28th of April 2017 and consequential government order dated 8th May 2017, bypassed Chowdhry and appointed Dr Saima Rashid as Principal GMC, Srinagar.
Rashid was at number six in the order of merit as prepared by the Establishment-cum-Selection Committee of the government.
As a result the “cabinet decision no.50/04/2017 dated 28th April 2017 and government order no.252-HME of 2017 dated 8th May 2017, impugned in the writ petition, are quashed,” ordered the division bench.
It directed “the respondents should place the whole material, consisting of minutes of the decision of the Establishment-cum-Selection Committee along with Annexure A&B, before the Cabinet/State Administrative Council (SAC), as the case may be, for its reconsideration”.
Let the Cabinet/SAC take appropriate decision as may be warranted in light of the observations made by us herein above, within a period of four weeks from the date certified copy of this order becomes available to the respondents, said the bench.
“Till such decision is taken by the cabinet/SAC, it shall be open to the government to make the in-charge or temporary arrangement to run the day-to-day affairs of the office of the Principal, Government Medical College, Srinagar,” it directed.
The official respondents claimed that the Cabinet decision and the government order wherein it had bypassed Dr Chowdhry was justified on the ground that the recommendations of the Establishment-cum Selection Committee were not binding on the Cabinet.
The selection committee, as per the records, considered the name of five eligible professors falling in the zone of consideration for appointment to the post in question and placed Dr Javid Choudhary at position number one and recommended his name for the post of Principal.
The court held that the constitution of the Establishment-cum-Selection Committee is non-statutory in nature meant to assist the Cabinet to take an informed decision in the matter of selection and appointments, which fall within the domain of the Cabinet.
The court did not follow the line pleaded by the respondent official lawyers that the Cabinet is free to take a call independent of such recommendations and if from the material placed before it, it finds a candidate other than the one recommended by the Committee to be suitable, it can approve appointment of such a candidate and ignore the recommendations of the Establishment-cum-Selection Committee.
“We cannot countenance the proposition propounded by the learned counsel for the respondents that the decisions made by the cabinet are immune to judicial review.”
“India – a constitutional democracy – is governed by rule of law. The monarchy, which used to rule the roost in the pre-constitutional era, has since vanished. Every authority, howsoever high it may be, is bound by the constitutional law. No authority is envisaged under the constitution, which possesses the powers, the exercise whereof is not questionable in the court of law,” observed the bench.
“True it is, that the recommendations of the Establishment-cum-Selection Committee made in favor of the appellant were not binding on the cabinet, but the cabinet could not have differed with the recommendations and taken a decision different from the one recommended by the Establishment-cum-Selection Committee without assigning any reason,” it said.
It added that if the court finds that the decision is totally arbitrary, whimsical and fanciful, it would step in and quash such decision. It does not matter whether such decision is made by the Cabinet or some authority higher than that of the Cabinet.
“All decisions of the cabinet must conform to the provisions of Article 14 and 16 of the Constitution. Arbitrariness is antithetic to equality. Any decision, which is arbitrary, violates the equality clause, the soul of rule of law. We are in 21st century. Things were different in 19th century, when feudal setup had unfettered power and discretion of the crown and such concept was not alien,” it said.
The Constitution does not give any license to the Cabinet to act arbitrarily, capriciously or whimsically, it held.
