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J&K High Court · body

2013 DIGILAW 776 (JK)

Sushil Sharma v. State Of J&K

2013-12-30

MOHAMMAD YAQOOB MIR

body2013
1. Vide Advertisement Notice No. 1 of 2012 dated 04.02.2012, issued from the office of Vice-Chairman District Health Society (NRHM) (Chief Medical Officer), Udhampur, applications have been invited for recruitment of contractual staff of various categories which include one post of ISM Pharmacist for PHC, Ghordi and five posts of ANM/Female Multi Purpose Health Workers for SC Saryan, SC Ballnaala, SC Mand, SC Battalbalian and SC Paria Chappor. 2. Petitioner No. 1 has applied for the post of Pharmacist, whereas Petitioner Nos. 2 and 3 have applied for the posts of ANMs. 3. Respondent No. 4 has been selected as against the post of Pharmacist whereas respondent No. 5 has been selected as ANM. 4. During the pendency of the writ petition, petitioner No. 3 and respondent No. 5 in another process of selection have been engaged respectively as FMPHW in HC Ghordi against the post of Staff Nurse under NRHM on contractual basis whereas respondent No. 5 has been selected and appointed as FMPHW and adjusted at Sub Centre Strori Medical Block Majalta. Same is specifically made mention of in the reply filed by respondent Nos. 2 and 3, wherein it is also mentioned that the post of FMPHW at Sub-Centre Satyan against which respondent No. 5 was selected, under challenge, is at present vacant. 5. During the course of arguments, learned Deputy Advocate General appearing for respondent Nos. 1 to 3 rightly stated that the case vis-a-vis petitioner No. 3 and respondent No. 5, no more survives for any consideration whereas petitioner No. 2 would be considered as against the vacancy of FMPHW at Sub Centre, Satyan. 6. The only question which now survives for consideration is as to whether petitioner has a case against respondent No. 4. 7. Petitioner has projected that selection of Pharmacist was to be on village basis. Petitioner being resident of village Ghordi had a preferential right of selection, as being a local candidate. Respondent No. 4, who has been selected against the post, is resident of village Barmeen. Admittedly, both village Ghordi and Barmeen are located in Medical Block, Ghordi of Tehsil Ramnagar. This is also an admitted position that respondent No. 4 is superior in merit. In case selection is restricted to village then irrespective of merit position of respondent No. 4, petitioner has right of selection and appointment. The answer lies in the Advertisement Notice itself. Admittedly, both village Ghordi and Barmeen are located in Medical Block, Ghordi of Tehsil Ramnagar. This is also an admitted position that respondent No. 4 is superior in merit. In case selection is restricted to village then irrespective of merit position of respondent No. 4, petitioner has right of selection and appointment. The answer lies in the Advertisement Notice itself. In the Advertisement Notice, terms of contract are specified. Condition No. 14 reads as under:- "14. Only local candidates shall be considered for selection. In case of FMPHWs/MMPHWs local candidates with highest merit belonging to that particular village where the health Sub Centre/Medical Aid Centre is located will be considered for selection and for all other categories a local candidate with highest merit from that particular Medical Block where the vacancy exists shall be only considered for selection. However, if a suitable candidate for above mentioned categories is not available in the village/Block, the candidates from the adjoining village/block within the District shall be considered for selection. Interested candidates should apply by sending their applications on the prescribed format given below. The duly filled in application form along with testimonials, one recent Passport size photograph should reach in the office of the Convener/Vice-Chairman District Health Society (Chief Medical Officer) Udhampur by or before 20.02.2012 and interview dates shall be intimated lateron. No separate call letter will be sent." 8. The condition is clear to the effect that selection of a candidate for the post of Pharmacist has to be filled from a candidate with highest merit from the particular Medical Block where the vacancy exists. Admittedly, vacancy is in PHC Ghordi. Village Ghordi and village Barmeen fall within the Medical Block Ghordi. Therefore, all candidates of the Block had a right of competition and in the process, respondent No. 4 has been found to be meritorious, was selected. 9. Confronted with the same position, petitioner tried to project that respondent No. 4 is basically resident of Udhampur where he has been residing for the last four decades. In addition, stated that respondent No. 4 obtained RBA certificate so as to show himself as resident of village Barmeen. 10. Respondent No. 4, in his response to the said affidavit, has repelled the contention of the petitioner by stating that no RBA category certificate has been obtained by him nor he possess the same. So the question of fabrication is imaginary. 10. Respondent No. 4, in his response to the said affidavit, has repelled the contention of the petitioner by stating that no RBA category certificate has been obtained by him nor he possess the same. So the question of fabrication is imaginary. In order to establish his position of being resident of village Barmeen, he has annexed with the response, Permanent Resident Certificate, LPG connection, Ration Card, certificate issued by Sarpanch, Panchayat Halqa Lower Barmeen Block Ghordi, Voter List and the Election Identity Card, which clearly show that respondent No. 4 is resident of Barmeen. 11. Position of respondent No. 4 being resident of village Barmeen has remained to be refuted. He being meritorious as compared to the petitioner is not denied. Village Barmeen falls within Medical Block Ghordi is not denied. Thus selection of respondent No. 4 at Block level on the basis of merit, has to be maintained. 12. Vis-a-vis petitioner Nos. 1, 3 and 4 petition is dismissed. Respondents shall accord consideration within six weeks in accordance with the Scheme on the basis of merit for adjustment of petitioner No. 2 as against the post of FMPHW at Sub Center Satyan which is presently vacant in view of appointment and adjustment of respondent No. 5 as FMPHW at Sub-Centre, Satrori Medical Block Majalta. 13. Disposed of as above along with connected CMA(s).