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2009 DIGILAW 428 (JK)

Suraya Jabeen v. State Of J. &K.

2009-08-28

MUZAFFAR HUSSAIN ATTAR

body2009
1. Following reliefs are sought in this writ petition: ".. It is therefore prayed that by issuance of writ of Mandamus the respondents be directed to consider the petitioner for appointment against Staff Nurse post by allowing her to compete the process of selection and allow her to appear in all tests and interview. The respondents be also directed to permit the petitioner to sit in the written examination to be conducted on 28.8.2006 and allow her to appear in all tests and interview to be conducted in future." 2. The case of the petitioner is that she being eligible and qualified, applied for the post of Staff Nurse in respondent Institute in pursuance to advertisement Notice No. 2 of 2001 whereby permanent posts of staff Nurses were advertised. Further claim of the petitioner is that instead of appointing the petitioner on substantive basis on her merit, she was appointed on consolidated basis against vacant post of Staff Nurse. Petitioner challenged the said action of the respondents by filing SWP No. 688/2004, in which this Court directed the respondents to continue the petitioner against the post of Staff Nurse. 3. The claim of the petitioner is that though she has been engaged on contractual basis but she has been denied the benefit of Government order No. 168-GAD of 2004 dated 09th of February, 2004, the paragraph-V of which is reproduced as under: "The selection agencies shall consider the eligible candidates including the adhocees/contractual appointees referred to in this order as may apply before such selection agencies in accordance with the recruitment and reservation rules. Such of the adhocees/contractual appointees, who may have crossed the upper age limit prescribed for Government service and who may apply before the selection agencies shall also be considered by such selection agencies and their upper age limit shall be deemed to have been relaxed to the extent required for this purposes." 4. Though the petitioner was not allowed to compete in the selection process but in terms of court order she was allowed to compete in the selection process for seeking selection/appointment to the post of Staff Nurse. 5. Respondents have filed objections. In the objections, it has been stated that in terms of advertisement notice No. 1 dated 31.5.2006, petitioner was not found eligible as she was over-age on 1st of January, 2006. 5. Respondents have filed objections. In the objections, it has been stated that in terms of advertisement notice No. 1 dated 31.5.2006, petitioner was not found eligible as she was over-age on 1st of January, 2006. It is further admitted that petitioner was invited as a special case for written test conducted on 28.8.2006 pursuant to the orders of selection committee. 6. At paragraph-2 of the objections, it is submitted that petitioner was selected and engaged as Staff Nurse on consolidated remuneration of Rs. 3000/- per month initially for a period of 60 days in the first instance which period has been extended from time to time. It is further admitted that petitioner is still continuing in the service of the respondent institute. 7. In respect of Government order (supra), it is pleaded that petitioner cannot be given benefit for relaxation of age as she was not an ad-hoc employee converted into the contractual employee. It is on these pleadings, respondents seek dismissal of writ petition. 8. Heard learned counsel for parties. Considered the matter. 9. The controversy has narrowed down and it is only to find out as to whether petitioner is entitled to the benefit of Government order No. 168-GAD of 2004 dated 9th of Febuary, 2004 so as to enable her to seek selection/appointment as Staff Nurse on substantive basis in future selection/appointments for which process may be undertaken by the respondent institute. 10. In order to find out as to whether petitioner is entitled to such benefits, the engagement order Ref No. SIMS 302 02 03 2002-973-997 dated 10th of May, 2002 is reproduced as under: "GOVERNMENT OF JAMMU AND KASHMIR SHER-I-KASHMIRI INSTITUTE OF MEDICAL SCIENCES SRINAGAR By Registered Post. Sub: Engagement of staff Nurses on contract basis. You have been considered for engagement as Staff Nurse at this Institute on contract basis for a period of 60 days in the first instance on a consolidated remuneration of Rs. 3,000/- per month. As such, if interested, you are advised to report in the office of the Senior Administrative Officer (Policy) Sher-i-Kshmir Institute of Medical Sciences, Soura, Srinagar within a period of 15 days from the date of issue of this letter along with the original certificates of your qualifications, age, experience, etc. Assistant Administrative (Policy) Mrs. Suraya Jabeen W/o Mr.Syed Ahmad Shah Ms./Mrs. R/o Peemia (Vii) C/o Public Book Depot Iqbal Market Sopore Ref. Assistant Administrative (Policy) Mrs. Suraya Jabeen W/o Mr.Syed Ahmad Shah Ms./Mrs. R/o Peemia (Vii) C/o Public Book Depot Iqbal Market Sopore Ref. No. SIM 302 02 03 2002 973-997 Dated: May 10, 2002" 11. On close scrutiny of this order, it becomes manifestly clear that petitioner was considered for engagement as Staff Nurse on contract basis for a period of sixty days but she was to be paid consolidated amount of Rs. 3,000/- per month. The very text and language of the order shows that the petitioner is engaged on contract basis at a consolidated remuneration of Rs. 3000/- per month which fixation of remuneration does not take away the status of the petitioner of having been engaged on contractual basis. 12. In view of the paragraph --V (supra) of the Government order no. 168-GAD of 2004 dated 9th of February, 2004, petitioner is thus entitled for having benefit of upper age relaxation in future recruitments by the respondent institute. 13. This petition is, accordingly, disposed of with the direction to the respondents that in the future recruitment to the post of Staff Nurse, petitioner application form shall be entertained and she shall be considered for being selected/appointed to the said post, subject to possessing eligibilities and on the basis of her merit. Disposed of along with all connected CMP(s).