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2018 DIGILAW 764 (JK)

Jyoti Devi v. State

2018-10-01

SANJEEV KUMAR

body2018
JUDGMENT : 1. Vide Advertisement Notification No. 11 of 2014-15 dated 16.01.2015, respondent No. 4 invited applications for filling up different positions in the District Health Society, Kathua, which included one post of Female Multipurpose Health Worker (FMPHW) for sub centre Kumri falling in Medical Block Parole of district Kathua. As per terms of this appointment, which was stated to be contractual, a candidate besides possessing requisite qualification, was required to be a resident of the J&K State and district Kathua. It was also mentioned in the notification that for the purpose of making selection, local criteria as applicable under rules shall be followed. This notification was followed by an addendum issued by notice No. 11 of 2014-15 dated 21.2.2015 which inter alia provided that for making selection at the sub centre level for the post of FMPHW, preference shall be given to the candidate available in the village concerned. It was also provided that in case from the village concerned suitable candidate is not available, the zone of consideration shall be extended to Medical Block level and if there is none available in the medical block, then the candidates from the tehsil concerned would have the right of consideration. 2. Pursuant to aforesaid notification, the selection was made and for the sub centre Kumri, respondent No. 5 came to be selected, which is apparent from the select list published by respondent No. 4 vide Notification No. DIP/J/1307-15 dated 13.5.2015. In the select list it was specifically mentioned that amongst other, respondent No. 5 has been selected by considering her merit at the block level. 3. The petitioner is aggrieved of the selection of respondent No. 5 as FMPHW in the sub centre, Kumri and has assailed the same primarily on the ground that in view of availability of local candidate i.e. the petitioner who belongs to village Androte of which Kumri is the Morha, the zone of consideration should have been restricted to the candidates belonging to the village and should not have been extended to the medical block level. 4. Official respondents have filed their reply affidavit in which it is indicated that the selection of respondent No. 5 was made at medical block level as there was no candidate belonging to village Kumri eligible for making selection. 4. Official respondents have filed their reply affidavit in which it is indicated that the selection of respondent No. 5 was made at medical block level as there was no candidate belonging to village Kumri eligible for making selection. It is claimed in the objections that the petitioner did not belong to village Kumri and therefore, respondents were left with no other option but to extend the zone of consideration to the medical block level. It is specifically pleaded in the objections that at the time of submission of her application form, the petitioner had submitted only three documents in support of her claim of belonging to village concerned i.e. PRC, Ration Card and Adhar. All these documents indicated that petitioner was resident of village Androte and not village Kumri. It is also submitted that the petitioner subsequently produced a certificate from the BDO concerned in which for the first time it was indicated that the petitioner belonged to Morha Kumri of village Androte. On these submissions, learned counsel for the respondents resisted the claim of the petitioner. 5. The respondent No.5, selected candidate has filed separate objections in which the selection and appointment has been sought to be defended on the ground that the petitioner has only challenged the selection and has not specifically assailed the order of appointment issued in her favour by the official respondents. It is also the stand taken by respondent No.5 that as per the Advertisement Notification and the addendum issued on 21.12.2015, the candidates belonging to the village where the Sub-Centre is situated, are only entitled to preference and preference would mean if all other things are equal viz-a-viz merit, the candidate residing in the village concerned shall be preferred and appointed. Reference in this regard is invited to Stipulation No.9 provided in the addendum to Notification No. 11 of 2014-15. 6. I have heard the learned counsel for the parties and perused the record. 7. From the perusal of notification No. 11 of 2014-15 dated 16.1.2015 read with addendum, it is abundantly clear that the basic zone of consideration, as indicated is village. 6. I have heard the learned counsel for the parties and perused the record. 7. From the perusal of notification No. 11 of 2014-15 dated 16.1.2015 read with addendum, it is abundantly clear that the basic zone of consideration, as indicated is village. It is further provided that in case no suitable candidate from the village is available, the zone of consideration is to be extended to medical block level and in case no eligible candidate is available in the block, then the eligible candidate from the tehsil concerned would be entitled to be considered. There is thus no dispute in so far as prescription of aforesaid qualification is concerned. What is, however, disputed before this Court by the respondents is that petitioner does not belong to village Kumri where the sub centre in question is situated. As such they had no option but to extend the zone of consideration to the block medical level. Learned counsel for the respondents states that the official respondents selected respondent No. 5 after they did not find any eligible candidate from village Kumri. 8. I have perused the documents, stated to be appended by the petitioner with her application form i.e. PRC, Ration Card and Adhar, which clearly indicate that the petitioner is resident of village Androte. Certificate of BDO which though produced by the petitioner belatedly after the interview process was over yet indicates that Kumri is Morha of village Androte. That being the position, if a candidate from village Androte i.e. the petitioner was available, the zone of consideration could not have been extended to the medical block level. The respondents, therefore, are also tentative in their submission and have not taken decision on the certificate issued by the BDO concerned. From the perusal of documents, it would transpire that since candidate in the village Androte was available for selection, the respondents could not have extended the zone of consideration to the medical block level. Respondents have committed illegality in considering the candidature of respondent No.5. That being the position, the selection of respondent No. 5 as also her appointment cannot be countenanced. 9. Respondents have committed illegality in considering the candidature of respondent No.5. That being the position, the selection of respondent No. 5 as also her appointment cannot be countenanced. 9. The contention of the learned counsel for the petitioner that in terms of Advertisement Notification read with addendum issued thereto, the eligible candidates of the village where the Sub-Centre in question is located, have only right of preference and, therefore, unless it is demonstrated by the petitioner that she was equal to respondent No.5 in all respects particularly the merit, she would not be entitled to any preferential treatment, cannot be accepted in the face of plain reading of the Advertisement Notification and the addendum issued thereto. So far as Advertisement Notification in question is concerned, it lays down the following terms of eligibility : (i) Must be resident of J&K State, District Kathua (ii) Local criteria as applicable under rules shall be followed for selection. (iii) Contract will be offered by District Health Society, Kathua. (iv) Initial contract will for the period of one year co-terminus with the financial year (i.e. 31.3.2015) etc. 10. Initial Advertisement Notification only envisaged local criteria to be followed for selection. But Later on by issuing addendum, the respondent No.4 in Clause -9 of the Contractual Terms elaborated the local criteria in the following manner : “9. For all the Sub Centres level posts of FMPHW advertised vide Notification No.11 and subsequent addendum/corrigendum thereof, the preference shall be given to the candidates are not available within the village subject to their availability and merit, if the candidates are not available within the village, the candidates available within the Medical Block shall be given preference, if the candidates are not available within the Medical Block, the candidates from the Tehsil shall be given preference. If the candidates are not available within the Tehsil, the candidates from within the district shall be considered.” 11. Conjoint reading of Clause-2 of the Contractual terms laid down in Advertisement Notification No.11 of 2014-15 and Clause-9 of the Contractual Terms given in the addendum issued vide Notice of 2014-15 dated 21.2.2015, it is abundantly clear that the word “preference” has been issued in different context and bears different connotation. Conjoint reading of Clause-2 of the Contractual terms laid down in Advertisement Notification No.11 of 2014-15 and Clause-9 of the Contractual Terms given in the addendum issued vide Notice of 2014-15 dated 21.2.2015, it is abundantly clear that the word “preference” has been issued in different context and bears different connotation. Plain reading of the two clauses would unequivocally suggest that the basic unit of selection is village concerned where the Sub Centre in question is located and the candidates belonging to said village, are to be considered in the first instance. It is only, if no eligible candidate in the village concerned is available, the zone of consideration is required to be extended to the Medical Block and if there is no eligible candidate in the Medical Block, it would be extended to Tehsil and then to the District as the case may be. The term “preference” as sought to be interpreted by the learned counsel for respondent No.5, has not been used in its strict sense and would not mean that the selection to be made necessarily at the block level and it is only if there is tie between the candidates having highest merit in the village and the candidates having highest merit in the block, the candidate from the village would be preferred. If that logic is to be accepted, then zone of consideration should have been the district and then the preference worked out in the manner suggested by the respondent No.5. Such interpretation, if accepted, would therefore, produce analogous situation not envisaged by Advertisement Notification and the addendum issued thereto. The official respondents should have been more careful and wiser in laying down the clear terms and conditions and avoided unnecessary ambiguity. 12. Be that as it may, keeping in view the object of selections made under NRHM and restricting the zone of consideration to the candidates of the village concerned is to ensure that the appointed candidates are available in the Sub Centres 24x7. It has to be accepted that the basic unit of consideration is the village concerned, where the Sub Centre in question is located and the eligible candidates belonging to the said village are entitled to the consideration to the exclusion of those who may be the residents of Block, Tehsil or District within which the Sub Centre is located. It has to be accepted that the basic unit of consideration is the village concerned, where the Sub Centre in question is located and the eligible candidates belonging to the said village are entitled to the consideration to the exclusion of those who may be the residents of Block, Tehsil or District within which the Sub Centre is located. It is only in the contingency where no eligible candidate is available in the village, the zone of consideration is to be extended to the Block and similarly to the Tehsil and the District as the case may be. That being the position, interpretation put by the learned counsel on the clause -9 of addendum, cannot be accepted. 13. Faced with the aforesaid situation, the learned counsel for the respondent No.5 made feeble attempt to even dispute the status of the habitation Kumri. It is contended that Kumri itself is an independent revenue village and since there was no candidate available in the aforesaid village, the zone of consideration was rightly extended by the official respondents to the Medical Block level. As already stated, on perusal of relevant documents which have been appended by the petitioner with the application form and accepted by the official respondents, it is beyond any doubt that Kumri is not an independent village but a Morha of village Androte and the petitioner being the only eligible candidate available in village Androte, was entitled to be selected for the post in question. The plea of respondent No.5 that in absence of any challenge to the appointment, the writ petition is not maintainable also cannot be accepted. This is so because once the selection of respondent No.5 is held to be bad and quashed, the appointment would automatically go. 14. Accordingly, the petition is allowed. Selection of respondent No.5 and her consequent appointment as FMPHW in Sub Centre Kumri impugned in this petition, is set aside. A direction is issued to respondents to consider the eligible candidates of revenue village Androte to the exclusion of others and in case the petitioner is only candidate eligible who had applied or otherwise most meritorious candidate in the village, the order of appointment in her favour shall be issued within four weeks from the date copy of this order is made available by the petitioner to the respondents. 15. Disposed of alongwith connected MPs.