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2010 DIGILAW 81 (JK)

Ali Mohd. Mir v. State

2010-02-22

MOHAMMAD YAQOOB MIR

body2010
1. Vide advertisement notice No.01 of 2006 dated May 31, 2006, applications were invited from eligible candidates as against various posts which include the posts of Lab Attendants figuring at serial No. 14 in the advertisement notice. Petitioner has also responded and participated in the process of selection for being selected under RBA category. The process culminated in the selection of respondent No.4 to 9 as against the posts reserved for RBA category. The respondent No. 10 figure at serial No.1 in the waiting list pertaining to the category "RBA". 2. The contention of learned counsel for the petitioner is that in terms of the advertisement notice only four posts for category "RBA" were advertised, instead six candidates i.e. respondent No.4 to 9 have been selected which is unwarranted. 3. This contention is rightly controverted by learned counsel for respondent No.1 to 3 by stating that the advertisement notice itself provides that number of vacancies can be reduced or increased without any notice. Same position is supported by Para IX of the advertisement notice which reads as :- "IX) The number of vacancies shown in Annexure `B to this notice are tentative and can be reduced or increased without any notice". 4. The petitioner while competing has accepted all the stipulations/conditions as contained in the advertisement notice, now after final selection cannot challenge the same. 5. It is true that 18 posts of Lab Attendants were available at the time of advertisement with the following break-up:- OM = 9 posts RBA = 4 posts SC = 2 posts ST = 2 posts LAC = 1 post 6. But when same is read conjointly with condition No. IX as reproduced hereinabove, then it would provide that the number of vacancies was shown as tentative so open for increase or decrease. This contention of the learned counsel for the petitioner accordingly fails. 7. Next it is contended that in the select list of RBA candidates, the candidate, namely, Ghulam Mohammad Dand (respondent No.7) is shown to possess experience certificate from a private Clinical Lab when as per the advertisement notice the experience was required to be of Clinical Lab in a hospital recognized by the Government, therefore, in violation of this condition respondent No.7 has been selected. 8. 8. The contention raised is opposed by the counsel appearing for the respondents by stating that the criteria for selection as adopted by the Selection Committee in its meeting held in the year 2007 has not been challenged and the marks have been allocated to all candidates as per the criteria. The criteria so adopted is quoted here-under:- "a) Points earmarked for marks in 10th class examination. 70 points b) Points earmarked for experience/ Diploma as per following break up: 10 points 1. For one years experience in Hospitals like SKIMS Soura SKIMS MC Bemina and other large Gout. Hospitals. 05 points 2. For two years experience in Hospitals like SKIMS Soura SKIMS MC Bemina and other large Govt. Hospitals. 10 points 3. For one years experience in small Govt. District Hospitals Govt. Dispensaries etc and private Labs as well. 02 points 4. For two years experience in small Govt. District Hospitals Govt. Dispensaries etc. and private labs as well. 04 points 5. Marks for one years diploma in Govt./Private recognized institutions 04 points 6. Marks for two years diploma in Govt./private recognized institutions. 08 points Viva Voce 20 points Total 100 points 9. The criteria so fixed would indicate that the points have also been allocated vis-a-vis experience gained by candidate in Government/Private recognized institutions. The respondent No.7, Ghulam Mohammad Dand, is not the only person who has been selected on the basis of such experience certificate. There are other candidates also who had obtained experience certificate from private government recognized clinics who figure in the selection list of open merit category. 10. It is also stated that the respondent No.7 possess the certificate of registration which has been issued by M/S Patient Care Point Clinical Laboratory situated at Main Braripora Chowk, Iddgah. The said concern is duly registered by the Directorate of Health Services, Kashmir under registration No.DHSK/REG/149/2006. The certificate of registration is also placed on record. 11. It is also added that the petitioner has no locus to challenge the selection in view of the merit obtained by him. Elaborating this submission, it is stated that the petitioner has obtained only 37.12 points when for filling up the posts under RBA category, the cut off merit was 46.89 points. 11. It is also added that the petitioner has no locus to challenge the selection in view of the merit obtained by him. Elaborating this submission, it is stated that the petitioner has obtained only 37.12 points when for filling up the posts under RBA category, the cut off merit was 46.89 points. Joining the submission, the learned counsel for the impleaded respondent No. 10 contended that the respondent No. 10 figure at serial No.1 in the waiting list of RBA category candidates, so if at all contention of the petitioner is accepted, the post would automatically go to the respondent No. 10 being more meritorious. 12. The criteria adopted for selection has not been challenged which now is not open to challenge to the petitioner. That apart, the merit position of the petitioner also disables him from challenging the selection, otherwise also it will be of no help to him. Mushtaq Ahmad Rather who figure at serial No.1 in the waiting list has obtained 45.70 points in the merit list serially from Mushtaq Ahmad to petitioner, there are as many as 16 candidates in RBA category who have more merit than that of the petitioner which in turn would show that the petitioner has no locus to challenge the selection. The contention raised by the learned counsel for the petitioner in view of the said reason fails. 13. Learned counsel would further contend that the appointment of respondent No. 4 to 9 except respondent No.6 has been made in violation of the order of stay issued by this Court regarding which a separate contempt petition has been filed. 14. Repelling this submission, learned counsel for the respondents would contend that the selection of private respondents was stayed on 2.2.2009 but the order was communicated to the respondents on 5.2.2009 when the appointment orders have been issued on 5.1.2009, therefore, no violation has been committed. 15. Be it as it is. It is a matter to be looked into in the contempt petition which is separately pending but, however, at this stage this submission is of no help to the petitioner as the selection on such basis cannot be quashed. Additionally the appointment of the private respondents too has not been challenged by the petitioner. 16. Be it as it is. It is a matter to be looked into in the contempt petition which is separately pending but, however, at this stage this submission is of no help to the petitioner as the selection on such basis cannot be quashed. Additionally the appointment of the private respondents too has not been challenged by the petitioner. 16. The counsel for the respondent No. 10 would contend that since the respondent No.6 figuring at serial No.3 in the select list of RBA category has not joined, therefore, respondent No. 10 has a right of appointment as he ranks No.1 in the waiting list of the RBA category. 17. This submission is not opposed by the counsel for respondent No.1 to 3, rightly so because it is for the authorities to look into the matter and in case the vacancy is available, then they shall be within their powers to appoint the respondent No. 10 in accordance with applicable rules. 18. Petition is found to be devoid of merit, as such, dismissed along with all connected CMPs. 19. The selection record as produced by the learned counsel for the respondent No.1 to 3 Mr. Magray be returned to him.