LPASW/80/2010 of SAJDA BEGUM Vs STATE TH.MED.EDUCATION DEPTT.AND ORS on 30 November 2010

HIGH COURT OF JAMMU AND KASHMIR ATJAMMU.|

MK OOK OK

LPA(SW) No. 80/2010CMP No. 115/2010.

Dt.30.11.201L0|

Sajda Begum |v. State of J&K and others

Coram:

Hon'ble Mr Justice Virender Singh, Judge.Hon’ble Mr Justice Sunil Hall.Jud,e Appearing counsel For the Appellant(s) |: Mr N.P. Kotwal, Adv.For the respondent(s)_: Mrs. S.Hakim, Dy.A.G

Whether approved forReporting In-Yes.'Dgest#Journal#Media 8Per Sunil HallJ.

Having competed in a selection process for.the posts of Auxiliary Nursing Midwives (In short.ANMs), in pursuance to a notification No. DIP/J-6896 at. 6[tn]of Feb’09, issued under NationalRural Health Mission 2005-2012, (here-in-aftercalled the Scheme), the appellant came to beselected against the said post. Later on, vide.order No. 1/73-DDC) of 2009 at. 1[th]of Nov’09,.the select list issued in this regard by the DistrictHealth Society, Jammu, dt. 20[th]of Oct’09, cameto be withdrawn and a fresh advertisement dct.2?[nd]of Marchn’10, was issued, which action of the|respondents was the subject matter of challengein writ petition SWP No. 1089/2010. A learned.

Single Judge of this court did not find favour withtne pleas taken by the appellant-writ petitioner in-tne writ petition and vide order impugned at. 14[tn]of July 10, nas dismissed the same. It is againstthe above order, the present appeal has beenpreferred.

Mir.Kotwal,learned|counsel.fortheappellant submitted that the appellant havingbeen selected against the post of ANM in a dulyselection process initiated by the respondents.under the Scheme, cannot be deprived of herlegitimate right of appointment against the said.post. The respondents nave withdrawn the select.list without assigning any reason which action oftheirs is against the principles of natural justice.

The further contention raised by the learnedcounsel for the appellant is that the learned writcourt while passing the order impugned has not.taken into consideration the eligibility criteria as_laid down in the advertisement notice dt. /[th]OT |Feb’'09, in pursuance to which the selection wasmade.In|terms.OT theeligibility.criteria.prescribed in the aforementioned notification,Candidate seeking consideration for appointment.to the post of ANM was required to be a resident.of State of J&K and should nave a Diploma inAuxillary Nursing Midwifery from an_ Instituterecognized by the J&K Medical Faculty. It is.Stated that once the eligibility was prescribed inthe notification and the selection process wasinitiated and concluded on the basis of the same,the resultant action of the respondents in issuing:

the select list snould be deemed to be final and.tne said select list snould be acted upon. It Is,thus, contended tnat the action of respondents inwithdrawing the select list is not in accordancewith the law. |

It be seen that the Government of India has|Started the Scheme, the objective of which is to.provide better health care facilities to the publicat large more particularly in rural areas. In orderto see that these facilities are available at the.doorsteps of the rural population, the StateGovernments Nave been advised to open PrimaryHealth Centres and Sub Centres in rural andurban areas. The doctors and other para-medicalStaff is engaged on contractual basis under the.Scneme in these Primary Health Centres to.provide service to the people round the clock forwhichpreferenceIn.thematterOT appointment/engagement is given to those who.are the residents of the block where the health|centre is located. This Is to ensure continuous.presence of the staff engaged in sucn Centres sothat the public at large may not suffer. ©

The respondents in ignorance of the said|criteria as laid down In the Scheme issued the.aavertisement notice dated 06.02.2009. In termsof the said notification, the candidate seekingconsideration for engagement against a particularpost as advertised, was required to be possessedof the qualification and experience as mentionedin the said notification and should be a resident.of the State of Jammu and Kashmir. The

notification dated 06.07.7009 was tssued insviolation of the scheme asa result of which the)Same was witndrawn. Consequently, tne selection.process initiated on the basis of said notification,|stood cancelled vide order dated 1/7.11.2009.Thereafter,freshadvertisement.dated22.03.7010Came tobeISSUCC|DY|the.respondents.[tISthisorderand.theaavertisement dated 22.03.2010 which were§Subject matter of challenge before the learned.Single Judge wherein the relief claimed by thepetitioner was in the nature of mandamus.commanding therespondents|to smssuethe.appointment order in favour of the petitioner.Learned Single Judge nas declined to grant thisrelief on the ground that the selection process.was issued in violation of the norms fixed under|theNationalRuralHealth.Mission(NRHM)|Scheme, as such, no direction can be issued tothe respondents to appoint the petitioner.

We have heard learned counsel for the.parties and perused the record.

In order to appreciate the controversy|involved in this case, it IS necessary to give.salient features of the Scheme, which are asUnder :- (a)All.theengagements|areOn|contractual basis and orders arerequired to be issued by _ threspective District Rural HealthSocieties; and ©

-7/Preference is to be given to theCandidates below the age of 40years and should be the residentsof block where the health centre Islocated.

There is a clear Indication in the Scheme.that it is intended to serve the particulars objectDY providing medical facilities to the locals who.are living within the biocks. The objective of the.scheme envisages that the selection is to bemade from the candidates residing within the.Dlock where health centre Is located.

The controversy involved in this case is as|

under:-|

(a) Whether the objective of the scheme.envisages that the selection is to be|made from the candidates residing withinthe blocks where health centre is located.or the zone of consideration can be.extended to other candidates who are.not residing within the DIock.; -7/Whether it violates Article 14 of the.Constitution of India by providing that)the selection shall be made on the basis.of place of residence where blocks are|located ; and |

-'/Whether the word ‘preference’ is to be|given different meaning while taking|colour from the context, purpose and_object of its use under the scheme.

For any classification to sustain the test of.Article 14 of the Constitution of India, it isnecessary to analyze the objective of thescheme. What clearly emerges from the purportof the scheme is that in order to provide healthfacilities at the grass root level, the presence ofthe doctors at the door steps is the sole object ofthe scheme. How this objective is to be achievedcan have many facets. It is also to be kept inmind that doctors’ availability at centre is.essence of the scheme. First process to acnievethis objective is to prefer those candidates, who.are living within the blocks where health centres.are located. It serves two purposes:- -"/One that they are readily available at the|centre; and -""/another that the people living at the grass root level snould Nave easy assess to thedoctors posted there.

Where doctors are not available within the|DIOCKS,In.that.eventuality,theZONeOT consideration can be extended within. district.What is emphasized by looking to the nature ofthe scheme and its objective is that preferencenas to be given to those candidates, who are.living within the blocks. It is only where doctorswithin the blocks are not available then the zone.of consideration can be extended beyond theDlock. It is in this context, the word ‘preference’.used In the scheme as also in the advertisement|notice has to be given its meaning while analyzing the object, context, purpose of its useUnder tne scheme.

The contention of the respondents is that|the word ‘preference’ used would mean that ifone or more candidates were found equallypositioned then only additional qualification.would be taken as tilting factors in favour of the.candidates vis-a-vis others candidates. What is.being contemplated is that where one or moreCandidates are found equally positioned then only.the additional qualification would be taken astilting factors meaning thereby preference would.be given to the persons, wno live within the.Dilock.

However, the word ‘preference’ is capable ofdifferent meaning by taking colour from the.context, purpose and objective used in thescheme. In the present case, it is to be seen tnatappointments of doctors were not to De made by.general process of recruitment or by adhering tothe rules governing the medical services. Tnese.appointmentsweremade.DYtakingintoconsideration the object and purpose of thescheme aforesaid. It is the scheme, which wasguidingfactorIn|thematterOT makingappointments.The|appointmentswerenotrequired to De made by the State Recruitment.Board or Public Service Commission but by theCommittee constituted under the Scheme.

As already stated above, underlying purpose|of the scheme was based upon the local criteria.So the word ‘preference’ would assume different connotation in the present context looking to thepurpose and object of its use under the scheme.In our view, the word ‘preference’ under thescheme, would mean local criteria meaningthereby the persons, who are available and livingwithin the pDlocks, Nave to be given preference.Otherwise, the very purpose of the scheme gets.defeated. —

In|theHiGhNtOT|theaforementioneddiscussions, the plea of the appellant has to be.examined. Tne contention of the appellant is thatOnce the selection process has been concluded,the same cannot be cancelled. Tne appellant.stood selected and only order of appointmentwas required to be issued in his favour. —

We decline to agree with the contention|raised by the learned counsel for the appellant on-the ground that the advertisement notice was.issued in violation of the scheme. The zone otconsiderationIn.termsOT|theimpugnednotification was extended to all the candidates|living within the State of J&K, which was contraryto the objective of the scheme, as such, therespondents were well within their right to.withdraw the said notification and issued fresn.notification dated 22.03.2010. It is a well settled.proposition of law that mere selection does notgive.anyrigntOf|appointment.However,|appointing authority is only required to givereasons before canceling such selection. In thepresent case, the reason for withdrawing theearlier notification as also consequent selection.

process was that the selection was made in.violation of the scheme.

In view of the above, we find no reason to interfere with the judgment dated 14.07.2010passed by the learned Single Judge. Accordingly,this appeal is+(&5(&&#+along with connectedCMP(s), if any.

JaMmMu.30.11.2010‘Madan’.

(Sunil Hall)(Virender Singh)Judge.Judge