Appointment made in contravention of advertisement notice, rules is invalid: CAT

Srinagar, Jan 10: The Central Administrative Tribunal (CAT) held on Wednesday that an appointment made in contravention of statutory provisions or advertisement notice is “void ab intio” that is invalid from the beginning.

A bench of D S Mahra Member (J) and Prasant Kumar Member (A) made the observations while allowing Dr Mehnaz Habib’s application challenging appointment of a private respondent doctor as Lecturer Anesthesiology in Government Medical College (GMC) Srinagar . The private respondent was appointed by the government on June 1, 2021 following the JKPSC’s recommendations.

Dr Mehnaz had challenged JKPSC’s recommendation as well as subsequent appointment of the private respondent as Lecturer Anesthesiology in GMC Srinagar with the contention that the private respondent had not the necessary teaching experience as required in terms of the advertisement notice and Rules applicable as she had obtained the same from the Hospital not recognized by the Medical Council of India (Now National Medical Commission) MCI/NMC).

Dr Mehnaz’s counsel, Faizan Majid Bhat referred to Apex Court’s judgment dated 21 October 2022 to contend that an appointment de hors (in contravention to law) the provisions of regulation /rules in vogue, is illegal and is to be quashed by the Courts.

“….The private respondent has submitted a certificate dated 20.09.2017 in the first instance in which it is certified by ……hospital that the private respondent has worked as Critical Care Trainee in the department of Anesthesia from 01.07.2016 to 01.07.2017. The said experience being irrelevant was rejected by the PSC and the private respondent has thereafter submitted another certificate from the same Hospital stating that she has worked as Senior Resident for the same period in the same hospital,” the Bench observed.

“The said second certificate issued only 7 days after the first one has been surprisingly accepted by PSC and the private respondent has been permitted to compete the selection process despite its glaring contradiction with the first certificate”, it added.

The bench said: “The doubt casts a serious shadow on the eligibility of the private respondent even if the issue of non recognition of the college is kept aside for a moment”.

While the Bench underscored that these facts coupled with the position that even the private respondent did not choose to rebut these allegations before us, it said: “We are constrained to hold that the private respondent was ineligible in terms of the advertisement notice and thus not entitled to be selected and appointed”.

“Had her candidature been rejected at the right point of time by the PSC, it is the petitioner who would have been selected and appointed being next in merit without having to face a long drawn legal battle of about two years.”

After recording these observations, the bench declared as “void ab-initio” the appointment of the private respondent as Lecturer, Anesthesiology who was appointed in keeping with notification no 32-PSC (DR-S) of 2021 dated 20 May 2021 and her appointment was made by Government on 1 June 2021.

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