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2013 DIGILAW 737 (JK)

Dimpy Shan v. State Of J&K

2013-12-20

MOHAMMAD YAQOOB MIR

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1. Vide Advertisement Notice No. 03 of 2011 dated 24.08.2011, issued from the office of the Vice Chairman District Rural Health Society (NRHM) (Chief Medical Officer) Kishtwar, applications have been invited from the eligible candidates for contractual staff which include three posts of "Laboratory Technicians" possessing qualification, i.e., Diploma in Laboratory Technician course from the Institution recognized by the J&K State Medical Faculty. Amongst others, petitioner and respondent No. 7 also applied. Respondent No. 7 was selected. Aggrieved thereof, instant petition has been filed. 2. Learned counsel for the petitioner would contend that petitioner's merit position at the level of BMLT has been taken into account when, in fact, the marks obtained by the petitioner at the level of DMLT were to be taken into account. In the memo of the petition, it is noticed that respondent No. 7 is shown to have secured 58.96 marks in total whereas, the petitioner has 57.16 marks but in case her marks at the DMLT level would have been taken, she would get 03 more marks, so in total would get 60.16 marks, admittedly, would be superior in merit as compared to respondent No. 7 figuring at S. No. 3. So instead of respondent No. 7, petitioner would figure at S. No. 3. 3. The contention of the petitioner is admitted in the reply filed by respondent Nos. 1 to 3, wherein, it has been stated that the Appointing Authority was in process of rectifying the bonafide mistake and cancelling the appointment order of private respondent. But before that could be done, clarification bearing No. SMF/verification/AT dated 01.10.2011 was received through Fax from the Office of President, J&K State Medical Faculty (Directorate of Health Services), Jammu to the effect that the diploma and degree of petitioner is from an institute which is not recognized by the J&K State Medical Faculty, which is prerequisite for the said post, as has been specifically mentioned in Advertisement Notice No. 03 of 2011 dated 24.08.2011. The petitioner is ineligible for the post because the petitioner has done diploma/degree from the Institute, i.e., from J&K State Board of Technical Education (Govt. Polytechnic for Women, Jammu). 4. Learned counsel would contend that DMLT even from Govt. recognized Institute could not be ignored, this submission is without force. The petitioner is ineligible for the post because the petitioner has done diploma/degree from the Institute, i.e., from J&K State Board of Technical Education (Govt. Polytechnic for Women, Jammu). 4. Learned counsel would contend that DMLT even from Govt. recognized Institute could not be ignored, this submission is without force. Advertisement is a general representation wherein it is categorically notified that the requisite qualification is diploma/degree recognized from the J&K State Medical Faculty, which is in accord with the Scheme, same position has not been challenged. 5. Chief Medical Officer, Kishtwar vide his communication dated 30th September, 2011 has sought clarification from the Director Health Services, Jammu regarding recognition of Diploma/degrees of Laboratory Technician, particularly in respect of following Diploma/Degrees of Laboratory Technicians: "1. DMLT by the J&K State board of Technical Education (Govt. Polytechnic for Women Jammu). 2. Institute of Public Health and Hygiene Mahipalpur New Delhi.' 3. DMLT by Institute of Advance Studies in Education Gandhi Vidya Mandir Sardarshahr-331401 Rajasthan. 4. DMLT by Vinayaka Mission University Salem Tamilnadu. 5. DMLP by Paramedical Technology Organization of India Delhi-53." 6. In response to said letter, the Registrar, J&K State Medical Faculty, Jammu vide Communication dated 01.10.2011 has conveyed to the Chief Medical Officer, Kishtwar as under:- "Kindly refer to the subject cited above. In this connection it is to inform you that as per the record available in this office that only one institution, i.e., Institute of Public Health & Hygiene Mahipalpur New Delhi has been recognized /Registered with J&K State Medical Faculty vide Govt. Order No. 301-HME of 2005 dated 10.05.2005 (Photocopy enclosed) & rest of the institutions mentioned in above referred letter are not registered with SMF." 7. What is clear from the above is that the Institute from where the petitioner has obtained DMLT is not recognized by the J&K State Medical Faculty. Learned counsel for the petitioner has not placed on record any document so as to show that the J&K State Board of Technical Education (Govt. Polytechnic for Women), Jammu is recognized by the J&K State Medical Faculty. 8. NRHM has a laudable object in tune with the object, eligibility has been prescribed. The post is a contractual post initially for a period of one year renewable for a period of one year at a time based on performance and continuation of the Scheme. 9. Polytechnic for Women), Jammu is recognized by the J&K State Medical Faculty. 8. NRHM has a laudable object in tune with the object, eligibility has been prescribed. The post is a contractual post initially for a period of one year renewable for a period of one year at a time based on performance and continuation of the Scheme. 9. Learned counsel for the petitioner would contend that as per Annexure-A to the Jammu and Kashmir Medical (Subordinate) Service Recruitment Rules, 1992, for the post of Laboratory Technician (All disciplines), the prescribed qualification is matric with diploma in Laboratory Assistant Training Course from SMF or any other recognized Institute. 10. Petitioner has done diploma from a recognized Institute. Submission is without substance. For facility of reference, relevant portion of the Annexure-A to J&K Medical (Subordinate) Service Recruitment Rules, 1992, is reproduced as under:- "Class Category Desig- nation Grade Qualification Mode of recruitment II B. Lab. Tech. 1150-2050 Matric with Diploma In Lab. Assistant training course from SMF or any other recognized institute. By promotion from category (c) having five years experience in that category" 11. If the submission of learned counsel is accepted then post of Laboratory Technicians are to be filled by promotion from category (c) having five years experience. 12. NRHM is a scheme providing mode, method and qualification so as to advance its object. The J&K Medical (Subordinate) Service Recruitment Rules, 1992 are not applicable. In addition thereto, the qualification prescribed and notified in the Advertisement Notice has not been challenged. The stand of the respondent that the DMLT possessed by the petitioner is from the Institution which is not recognized by the J&K State Medical Faculty, is sustainable. Therefore, petitioner is not even eligible to compete. 13. Viewed thus, the petition is without merit, as such, dismissed along with connected CMA(s).