Govt Can't Supersede Statutory Rules By Administrative Orders, May Fill Gaps With Consistent Instructions: Jammu & Kashmir High Court

The Jammu and Kashmir High Court recently reiterated that a Government cannot amend or supersede statutory rules by administrative orders. It added that where the rules are silent on any particular point, the Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed. The judgment came from Justice MA Chawdhry who said: "This court is of the opinion that the Government instruction/guidelines of the case in hand are at variance the provisions incorporated in the recruitment rules which have to be followed. In Annexure-A as schedule in terms of clause 5 of the aforesaid rules, the requisite qualification of the Lab Assistant has been provided by direct recruitment with qualification of Matric and diploma in Medical Assistant Training Course from SMF or any other recognized Institute. The petitioner admittedly was having qualification of Matric and had a diploma from the Institute of Public Health and Hygiene Delhi." BackgroundIn the present matter, the District Rural Health Society, Shopian headed by respondent no. 2 issued an Advertisement Notice in the month of September, 2013, for engagement of medical/para-medical staff on contractual basis under National Rural Health Mission (NRHM) Scheme. The petitioner in response to the notification amongst other candidates applied for the post of Lab Assistant He came to be engaged on contractual basis at a monthly consolidated remuneration of Rs. 10,800/- with no other allowances or monetary benefits, whatsoever and was posted as Lab Assistant at CHC Keller. The petitioner alleges that after some time he was not allowed to mark his attendance on the ground that somebody had filed complaint against him before respondent no. 3. The petitioner aggrieved of this action on the part of respondent no. 4 (Block Medical Officer Keller Shopian), filed this petition. The respondent argued that for the post of Lab Assistant, the requisite qualification prescribed was 10+2 (Science) with diploma in Medical Laboratory Technology from an institute recognized from J&K SMF; that the petitioner came to be appointed, however, pursuant to the complaints made against his appointment the said order was kept in abeyance till further orders. It was further argued that the post of Lab Assistant under NRHM Scheme was advertised by CMO, Shopian vide the above mentioned qualification and that the petitioner was 10+2 ( Arts) with diploma from the institute of Public Health and Hygiene New Delhi; and that despite his ineligibility his selection was considered and subsequently he was appointed against the said post though he was not having required qualification of 10+2 ( Science) but was having 10+2 ( Arts). It was contended that the criterion was adopted as per Govt. Orders issued in 2007. It was also pleaded that the petitioner without having academic qualification of 10+2 (Science) had applied for the post though he had secured diploma from the institute of Public Health and Hygiene, New Delhi during 2010-12 when the said institute had also not been recognized with the J&K State Medical Faculty. Having this view of the matter his diploma was also not valid and recognized. Private respondent No. 5 in his objections alleged that the petitioner suppressed and concealed material facts from the court thereby tried to mislead the court. He further pleaded that the answering respondent being a Science graduate with diploma from a recognized institute had applied for the post of Lab Assistant and that he had also been interviewed. However, the official respondents selected the petitioner though he was not qualified to be appointed against the post advertised and prayed that the petition be dismissed. Petitioner argued that as per the rules and norms prescribed under NRHM Scheme, eligibility for appointment against the post of Lab Assistant is Matric with diploma in Lab. Assistant training course and the eligibility shown by the respondents in Advertisement Notification as 10+2 (Science) with diploma is neither provided under recruitment rules nor under the norms prescribed by the employer/Govt. under NRHM scheme for appointment against the post of Lab Assistant. He submitted that the selection authority is not entitled to prescribe additional qualification/eligibility not envisaged by the Rules if the Rules prescribe such qualification as eligibility criterion. It was prayed that the respondents be commanded not to disturb the position of the petitioner and that he be allowed against the post for which he was selected and appointed. FindingsThe Court noted that the qualification for appointment as Lab Assistant as per Schedule of the Health and Medical (Subordinate) Service Recruitment Rules 1992 has been provided as Matric with diploma. Since the Rules of 1992 prescribed a qualification that can be changed by way of amendment in the Rules...

Govt Can't Supersede Statutory Rules By Administrative Orders, May Fill Gaps With Consistent Instructions: Jammu & Kashmir High Court

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