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2015 DIGILAW 325 (JK)

Riyaz Ahmad Thokar v. State of J&K

2015-07-07

HASNAIN MASSODI

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JUDGMENT : Hasnain Massodi, J. 1. Petitioner responded to Advertisement Notice No. 01 of 2006, dated May 31, 2006, issued by Director, Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar, inviting applications from eligible candidates for post of Lab. Assistant in grade of 2610-3540, in respondent institute. Petitioner participated in selection process. However, he did not find place in Select List, published in Local Daily on January 06, 2009. Petitioner, aggrieved with his non-selection, has approached this Court with writ petition on hand. Petitioner's case is that selected candidates - respondents 3 to 12 herein, did not satisfy eligibility criteria, and therefore, did not have right to participate in selection process muchless get selected against advertised posts. He on strength of averments made in petition, seeks following relief : "(i) A writ of certiorari, quashing selection/appointment of private respondents selected pursuant to advertisement notification No. 1 of 2006, dated 31st May 2006, selected by way of impugned selection list dated 6th January 2009; (ii) A writ of mandamus, commanding respondents to consider petitioner for selection to the post of Lab Attendant." 2. Writ petition is opposed by respondents 1 & 2 on the ground that petitioner was considered but could not make it to select list as his overall merit was far below merit of selected candidates. It is denied that selected candidates or any one of them did not fulfil eligibility criteria notified in advertisement notice. 3. Respondents 3 to 12 resist writ petition on similar grounds as urged in reply filed by respondents 1&2. Respondents refer to eligibility criteria laid down in advertisement notice to support their claim that all of them were eligible for advertised posts and rightly selected on the basis of their performance in selection process. Official as well as private respondents, insisting that petitioner did not have cause to invoke writ jurisdiction of the Court, seek outset dismissal of writ petition. 4. I have gone through pleadings as also record placed on file made available by learned counsel for respondents 1&2. I have heard counsel for parties. 5. In view of controversy raised, our attention is first to go to advertisement notice. Relevant part of advertisement notice dated 31st May 2006 may be noticed : S.No. Name of the post with scale/pay Tentative no. of posts Qualification 14. Lab. I have heard counsel for parties. 5. In view of controversy raised, our attention is first to go to advertisement notice. Relevant part of advertisement notice dated 31st May 2006 may be noticed : S.No. Name of the post with scale/pay Tentative no. of posts Qualification 14. Lab. Assistant (2610-3540) 18 (OM=09, RBA=04, SC=02, ST=02, LAC=01) i Matric with Science ii Experience in Clinical Lab in a Hospital recognized by the Govt. 6. A bare look at above reproduced part of advertisement notice would reveal that a candidate eligible for post of Lab. Assistant is to have Matriculation with Science to his credit. Candidate is also to have experience in Clinical Lab in a Hospital recognised by Government. 7. Let us now scan selection record to find out whether respondents 3 to 12 have Matriculation with Science to their credit and experience in Clinical Lab in a Hospital recognised by Government. From perusal of selection record, it transpires that respondents 5, 10 & 12 did not satisfy eligibility criteria as they did not have experience in Clinical Lab from Hospital recognised by Government. Respondents instead relied upon certificates from unrecognised institutes, outside the State, showing them to have qualified Medical Lab Assistant and other courses. It would be advantages if the academic qualification and experience/professional course to the credit of respondents are tabulated : Name Academic qualification Experience Whether recognized by Govt. Respondent no. 3 10+2 from JK BOSE Lab 2nd Yr from Govt. A.M.T. School Sgr. Recognised Respondent no. 4 10+2 from JK BOSE Sub District Hospital, Charari Shareif Recognised Respondent no. 5 10+2 from JK BOSE i) Institute of Paramedical Technology, New Delhi ii) Dr. Gian Chand Jain X-ray Clinic, New Delhi iii) Jaipur Golden Hospital, New Delhi Not-recognised Respondent no. 6 11th from JK BOSE A1 Kareem Hospital And Heart Centre, Sgr. Recognised Respondent no. 7 10th from JK BOSE Ahmad Hospital, Sgr. Recognised Respondent no. 8 10 from JK BOSE Khanam’s Hospital & Nursing Home, Sgr. Recognised Respondent no. 9 10+2 from JK BOSE Ramzaan Hospital, Sgr. Recognised Respondent no. 10 10+2 from JK BOSE B.Sc. 2nd year Standard Diagnostic Center, Sgr. Not-recognised Respondent no. 11 B.Sc. from Kashmir University Classic Hospital, Hyderpora Recognised Respondent no. 12 10th from JK BOSE Mid-Night Diagnostic Laboratory Not-recognised 8. Recognised Respondent no. 9 10+2 from JK BOSE Ramzaan Hospital, Sgr. Recognised Respondent no. 10 10+2 from JK BOSE B.Sc. 2nd year Standard Diagnostic Center, Sgr. Not-recognised Respondent no. 11 B.Sc. from Kashmir University Classic Hospital, Hyderpora Recognised Respondent no. 12 10th from JK BOSE Mid-Night Diagnostic Laboratory Not-recognised 8. A bare look at above table would show that only respondents 3, 4, 6, 7, 8, 9 & 11 fulfil eligibility criteria and were rightly selected against advertised posts. Respondents 5, 10 & 12, on other hand, did not fulfil eligibility criteria as they did not possess experience in Clinical Laboratory in government recognized hospital. Certificates relied upon by respondents 5, 10 & 12 to show that they had done Diploma courses. The Diplomas are of no use as none of Institutes is shown to have been recognised by State Medical Faculty or examination conducted by State Medical Faculty. Respondents 1&2, therefore, ought to have not allowed respondents 5, 10 & 12, to participate in selection process muchless selected them against advertised posts. 9. Let us now find out whether petitioner satisfied eligibility and whether he was eligible for advertised post. It needs to be pointed out that petitioner was allowed to participate in selection and therefore respondents 1&2 accept him to be eligible for the post. This apart, annexures to petition would indicate that petitioner did his Matriculation from J&K Board of School Education with Sciences as one of subjects. He worked in Laboratory Section at Subsidiary Health Centre, Aripal-Government Hospital, on voluntary basis with effect from 01.12.2003 to ending January 2006. He was, therefore, rightly allowed to participate in selection process. 10. Petitioner was awarded 26.74 points out of 70 points earmarked for merit in Matriculation and secured in aggregate 45.74 points. Cut-off merit, as per available record, is 57.35 points. It is to be examined by respondents 1 & 2 whether petitioner would be able to make to select list even after respondents 5, 10 & 12, are dropped from select list. It remains to be known whether there is any candidate who has higher merit than petitioner. 11. For reasons discussed, writ petition is allowed and Select List for the posts of Laboratory Attendants advertised vide Notification No. 01 of 2006, dated 31st May 2006, published in Daily Greater Kashmir on 6th January 2009, quashed to the extent of respondents 5, 10 & 12. 11. For reasons discussed, writ petition is allowed and Select List for the posts of Laboratory Attendants advertised vide Notification No. 01 of 2006, dated 31st May 2006, published in Daily Greater Kashmir on 6th January 2009, quashed to the extent of respondents 5, 10 & 12. Resultantly, their appointment as Laboratory Assistants in respondent Institute is also set-aside. Respondents 1 & 2 are directed to reframe Select List after exclusion of respondents 5, 10 & 12 and include petitioner in Select List, provided he, on the strength of his merit, is able to make it to the redrawn select list. In the event petitioner finds place in redrawn Select List, he shall be considered for appointment against one of advertised posts in accordance with rules. Disposed of.