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2022 DIGILAW 23 (JK)

Sheelo Devi v. State of J&K

2022-02-07

SINDHU SHARMA

body2022
JUDGMENT : SINDHU SHARMA, J. 1. The District Health Society Udhampur invited applications for recruitment of contractual staff for various posts including ANM/FMPHW under NHM and RNTCP scheme vide Advertisement Notice No. 01 of 2017 dated 14.11.2017. 2. The petitioner being eligible applied for the post of ANM/FMPHW for sub-center Lalli (Panchari). The qualification prescribed for these posts were Matric with diploma in FMPHW training course from SMF or any other recognized Institute by the J&K Medical Faculty. The allocation of marks and the mode of selection in terms of the Advertisement Notice for aforesaid posts is as under: (i) Screening Test 60 Points (ii) Matric 10 Points (iii) Diploma in FMPHW from SMF or other recognized Institute 15 Points (iv) Viva Voce 15 Points Total 100 Points 3. The Vice Chairman District Health Society (Chief Medical Officer) Udhampur, respondent No. 3 vide Order No. CMO/Udh/NHM/2017-18/3716-22 dated 27.03.2018 issued the selection list of candidates for engagement for the post of ANM/FMPHW on contractual basis under NHM scheme at Sub-Centre Lalli, Medical Block Panchari. As per the select list, respondent No. 4 was selected as FMPHW in Sub-Centre Lalli. 4. The petitioner is aggrieved of selection/engagement of respondent No. 4 as FMPHW in Sub-Centre Lalli on the ground that the respondent No. 4 lacks the local criteria as advertised and, as such, she could not be appointed to the said post. 5. The contention of the petitioner is that respondent No. 4 has been shown to be the resident of Village Damnote at present Lalli is not actual resident of the Village Lalli. In fact, according to the petitioner, respondent No. 4 in connivance with the other respondents have wrongfully shown to be the resident of Village Lalli. After her selection, the inhabitants of Village Lalli have made a detailed representation before respondent No. 3 and it was brought to his notice that husband of the respondent No. 4 is not a resident of Village Lalli and does not own any land in the village Lalli as for the last more than 30 years, he alongwith respondent No. 4 is residing in Udhampur. It is urged that the selection of respondent No. 4 is illegal and arbitrary and the same is against the criteria as mentioned in the Advertisement Notice, therefore, her selection is required to be set aside. 6. Mr. It is urged that the selection of respondent No. 4 is illegal and arbitrary and the same is against the criteria as mentioned in the Advertisement Notice, therefore, her selection is required to be set aside. 6. Mr. H.A Siddiqui, learned Senior AAG submits that respondent No. 4 is a resident of Village Lalli whereas the post exists i.e. Sub-Centre Lalli, Medical Block Panchari, therefore, her selection was based on the local criteria. Since the merit of the respondent No. 4 was higher i.e. 53.75% than that of the petitioner whose merit is 47.73% thus, the respondent No. 4 was selected due to her superior merit. The respondent No. 4 despite service has chosen not to appear and is, accordingly, set ex-parte. 7. The submission of the petitioner is that respondents have not followed the local criteria, as per the Advertisement Notice while making selection to the post of FMPHW, as such, the selection of respondent No. 4 is bad and the same is required to be set aside. In terms of the Advertisement Notice No. 01 of 2017 dated 14.11.2017, the local criteria is defined in Clause-15, which reads as under: “15. Local Criteria for Selection: The preference for Selection to the posts mentioned in Annexure “A” (S. No. 02) under National Health Mission under District Health Society Udhampur shall be given to the candidates from the same village subject to their availability and merit. If the candidates are not available within the village the candidates available with 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, and the candidates from within the district shall be considered. As regard, the S. No. 01 and 05 in Annexure “A” the post of JSN and ISM Pharmacist under NHM and S. No. 01 Annexure “B” Jr. Pharmacist the candidates from within the Medical Block shall be considered. As regard, the posts of District Hospital Udhampur, DEIC Udhampur, national Urban Health Mission (NUHM), the candidates from within the district shall be considered. As regard, the post of Accountant in RNTCP in the office of DTC Udhampur the candidates from within the district shall be considered.” 8. Pharmacist the candidates from within the Medical Block shall be considered. As regard, the posts of District Hospital Udhampur, DEIC Udhampur, national Urban Health Mission (NUHM), the candidates from within the district shall be considered. As regard, the post of Accountant in RNTCP in the office of DTC Udhampur the candidates from within the district shall be considered.” 8. The petitioner has placed on record her State Subject as well as marriage certificate in support of her claim that she is a resident of Village Lalli, however, so far as the respondent No. 4 is concerned, her State Subject shows that she is the resident of Village Damnote at present Lalli. Though admittedly respondent No. 4 is more meritorious than the petitioner but as per the local criteria, the preference has to be given to the candidates from the same village and it is only in case if no candidate is available within the village then candidates from Medical Block will be given preference and in case, they are also not available then candidates from Tehsil and the District would be preferred. 9. There is no conclusive proof on record regarding the eligibility of respondent No. 4. She has also not come forth place anything on record. Keeping in view the disputed question of fact regarding the residence of the respondent of village Latti and the fact that the PRC of respondent No. 4 also reflects Damnote village and in view the contention that she alongwith her husband is a resident of Udhampur, it would be appropriate if all the facts are enquired. 10. Accordingly, Deputy Commissioner, Udhampur is directed to enquire about the actual residents of the petitioner as well as respondent No. 4-Monika Rani after issuing notice to both the parties within eight weeks and pass a speaking order in this regard which has to be conveyed to both the parties as well as official respondents. The decision of the Deputy Commissioner shall be considered by the official respondents as regards the selection impugned. 11. Disposed of alongwith connected applications, if any.