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2016 DIGILAW 338 (JK)

Showkat Ahmad Wani v. State of J&K

2016-06-29

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. PAUL VASANTHA KUMAR, J. 1. This appeal is preferred against the order of the Writ Court made in SWP No. 970/2008 dated 08.06.2015 dismissing the writ petition filed by the appellant, seeking appointment on the basis of merit secured by him for the post of Medical Officer, Indian System of Medicines (ISM) under RCH-II of NRHM scheme. The case of the appellant before the Writ Court was that respondent No. 4 vide Notification No. DCA/09 of 2007 dated 19.10.2007 invited applications from the eligible candidates for appointment on contractual basis to the post of Medical officer, ISM under RCH-II of National Rural Health Mission in different blocks of District Kulgam. The total number of posts advertised was 30. On 03.11.2007 the said notification was superseded and a further notification was issued on 15.11.2007 based on which the appellant applied. The application of the appellant was entertained and the appellant was subjected to interview by the selection Committee of the respondents. Interviews were held of the eligible candidates in the month of March 2008 and on the basis of the performance in the interview and other relevant factors, a merit list/select list was prepared and the appellant was shown to have secured 59.60 marks/points whereas the respondent Nos. 8 to 13 were shown to have secured following marks: Respondent No.8 : 59.38 Marks Respondent No.9 : 58.92 Marks Respondent No.10 : 57.93 Marks Respondent No.11 : 54.60 Marks Respondent No.12 : 57.97 Marks Respondent No.13 : 58.08 Marks 2. The appointment orders were issued based on the said select list on 02.04.2008 and in spite of superior merit of the appellant when compared to respondent Nos. 8 to 13 on the basis of academic performance and interview and other relevant factors, he was denied appointment against the post of Medical Officer (ISM) in District Kulgam on the ground that preference has to be given to the person hailing from the Block. The said action of the official respondents was challenged by the appellant in the writ petition, the prayer of which was amended during the pendency of the writ petition, seeking to quash the selection and consequent appointment on contractual basis of respondent Nos. The said action of the official respondents was challenged by the appellant in the writ petition, the prayer of which was amended during the pendency of the writ petition, seeking to quash the selection and consequent appointment on contractual basis of respondent Nos. 8 to 13 as Medical officer (ISM) in District Kulgam for District Rural Health Society Anantnag, the order dated 02.04.2008 issued by respondent No. 6 and the consequent and subsequent notification dated 01.02.2010 and directing the respondent Nos. 1 to 7 to consider the merit position of the appellant in the selection for appointment as Medical officer (ISM) and appoint him by considering his superior merit with all service benefits with effect from 02.04.2008. The Writ Court, by relying on the advertisement issued, stating that preference will be given to the candidates below the age of 40 years, who are residents of the Block where the Health Institution is located so as to ensure continuous presence of the Doctor/Paramedic for 24 hrs X 7 days service, dismissed the writ petition against which order this appeal is filed. 3. Mr. R.A. Jan, learned senior counsel appearing for the appellant contended that the word "preference" used in the advertisement notice, preferring a candidate belonging to the Block where the health institution is located, should be read if the marks of the candidates competing are equal and if the interpretation given by the Writ Court is accepted, it will have the effect of preferring the local residents for appointment i.e. based on place of birth/residence, which is impermissible under Article 16(2) of the Constitution of India. The learned Senior counsel heavily relied upon a Division Bench judgment of this Court in passed in LPA No. 165/2014 (Arjumand Hamid v. J & K PSC & Ors. 2016 (2) JKJ 35 [HC]: JKJ Soft JKJ/30353) dated 03.09.2015 wherein a similar issue with regard to preference given in appointment to the post of Lecturer Grade-II in the discipline of Secretariat Practice was considered. The learned senior counsel further argued that if appellant's claim based on his performance in the 2008 selection is accepted and he is selected, the appellant will not press the quashing of subsequent notification inviting applications. 4. The learned senior counsel further argued that if appellant's claim based on his performance in the 2008 selection is accepted and he is selected, the appellant will not press the quashing of subsequent notification inviting applications. 4. The learned counsel appearing for the private respondents, on the other hand, argued that in the subsequent notification issued the appellant applied and he was not selected and, therefore, challenge of appellant with regard to second notification is not maintainable. 5. We have considered the rival submissions. 6. The only issue for consideration in this appeal is as to whether the appellant, who secured 59.60 marks, can be denied appointment solely on the basis of invoking the clause mentioned in the advertisement notice for giving preference to the residents of the Block where the health institution is located. 7. When we peruse the marks obtained by the appellant, respondent No. 11 is the lowest merit candidate having secured 54.60 marks. 8. When the matter was heard on 06.06.2016, this Court directed the official respondents to find out as to whether any vacancy is available in the Block where the appellant is seeking appointment or in a nearby Block. The learned counsel appearing for the respondents submitted that no vacancy is available. In such circumstances, we have to see as to whether the appointment of 11th respondent is justified when the appellant has secured 59.60 marks and is denied appointment when compared to the marks secured by the 11th respondent i.e. 54.60 marks. 9. The issue regarding preference was already considered by Hon'ble the Supreme Court in the decision reported in (1996) 6 SCC 282 (Secy. Health Deptt. of Health & F.W. and another v. Dr. Anita Puri & Ors.). In the said judgment the issue of preference qualification was considered. In paragraph 7 it is held thus: "7. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed." In the decision reported in AIR 2003 SC 3961 (The Secretary Andhra Pradesh Public Service Commission v. Y.V.V.R. Srinivasulu & Ors.) also the said issue was considered and it is held thus: "11. Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. If it is to be viewed the way the High Court and Tribunal have chosen to, it would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those with ordinary degree and who does not possess the additional qualification..........." Similar issue in the judgment reported in (2006) 6 SCC 474 , (State of UP & Anr. v. Om Prakash & Ors.), came up for consideration before Hon'ble the Supreme Court and it was held that question of preference will come only if other things are equal. In paragraph 16, it is held thus: "16. This Court has consistently held that when selection is made on the basis of merit assessed through the competitive examination and interview, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred. It does not mean en bloc preference irrespective of inter se merit and suitability." 10. The proposition that employment can be given or persons can be selected only on the basis of residence is clearly barred under Article 16(2) of the Constitution of India which envisages that no person can be denied employment in public service on the ground of his residence alone. In the decision reported in AIR 1970 SC 422 (A.V.S.N. Rao v. State of A.P.), while considering the provisions contained in Article 16 of the Constitution the Hon'ble Supreme Court observed as follows:- "10. By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so, that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly a|so seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are obviously controlled by the words 'residence within the State or Union territory' which words mean what they say, neither more nor less. It follows, therefore, that S. 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution." In the decision reported in AIR 2002 SC 2877 (Kailash Chand Sharma v. State of Rajasthan and Ors.) Hon'ble the Supreme Court has held that by preferring a person for appointment in government service based on residence is the overtones of parochialism and the argument to give employment on the basis of residence runs counter to the Constitutional ethos founded on unity and integrity of the nation. In paragraph 13 it is held thus:- ".........Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself be it be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that District on a preferential basis........." 11. In the light of the said judgments and having regard to the fact that if the interpretation given by the Writ Court is accepted by giving preference to the resident of the Block, without reference to the merit of the candidates, it will be in violation of Article 16(2) of the Constitution, which prohibits appointment based on residential qualification or place of birth. Thus the learned senior counsel appearing for the appellant is justified in contending that the appellant, who is meritorious having secured 59.60 marks, has to be given the appointment when compared to the appointment given to the 11th respondent who has secured only 54.60 marks. 12. The 11th respondent is continuing in service after giving him appointment. In such circumstances, for molding the relief, we are of the view that appeal can be allowed with a direction to the official respondents to accommodate the appellant in any vacant post, if any available and if it is not possible to accommodate the appellant in any vacant post, the 11th respondent shall be replaced by the appellant as the appellant is more meritorious than the 11th respondent. The said exercise is directed to be commenced and completed by the official respondents within four weeks from the date of receipt of this order. The appeal is allowed with above directions. No costs.