Altaf Hussain Mir (Dr.) vs State and Others

Mansoor Ahmad Mir, Judge

An Advertisement Notice came to be issued, whereby applications were invited for making contractual appointment under various categories

for District Bandipora under National Rural Health Mission Scheme, hereinafter for short as NRHM as per the criteria given in the advertisement

notice-Annexure P1.

Among others, petitioner and private respondent applied, and selection was made to the inclusion of respondent No. 5, while as petitioner was

shown to be figuring in the waiting list.

Aggrieved by the same, petitioner questioned it mainly on following three counts:-

(a) That he is not a resident of Tehsil Gujran Gurez Block but is resident of Kangan as per the documents annexed with the writ petition.

(b) That petitioner is entitled to preference in terms of Condition No. 10 of the Advertisement Notice which has not been given to him.

(c) The petitioner is meritorious as compared to the private respondent.

Respondents 1 to 4 are yet to file reply. Respondent No. 5 has filed detailed reply and has seriously resisted the grant of interim relief. He has

annexed with the reply photostat copies of Permanent Resident Certificate-R1 & R2, Schedule Caste Certificate-R3, Extracts of Intikhab-i-

Jamabandi of 1971, Misli Hakeeyat of 1995-96, Shajra Nasab, Panchayat Nama and other documents which do disclose that parents of private

respondent and he himself is a resident of Halqa Gurez. He has also explained why he is at present residing at Kangan.

Petitioner has not also indicated how he is meritorious as compared to respondent No. 5. In terms of NRHM Scheme preference is to be given

to those candidates who hail from the concerned block, in case no candidate is available then zone of consideration is to be extended within

District.

Admittedly the petitioner is a resident of Tehsil Bandipora and not of Block Gurez. This controversy is already set at rest by this court in batch

of writ petitions, SWP Nos. 2304/2009, 2357/2009, 2308/2009. It is apt to reproduce last para of the judgment herein:-

In view of the above, I allow this writ petition an quash the impugned select list for the post of Medical Officer under National Rural Health

Mission in Doda district, with a further direction to the respondents to initiate the process of selection afresh by giving preference to those who are

living within the blocks. In case of non-availability of the candidates within the blocks, the zone of consideration be extended within the district. Let

this process be completed within six weeks from the date copy of this order is made available to the respondents by the petitioners.

This Court while considering the matter has to take into account the comparative prejudice that would be caused to either of the parties in case

the interim direction is kept in tact or vacated or modified.

Petitioner is admittedly resident of Tehsil Bandipora and private respondent is resident of Gurez, thus prima-facie selection of private respondent

appears to be legal. Keeping in view the fact, of respondents having not filed the reply and the interim direction working adversely against the

private respondent it would be in the fitness of things, if the interim direction granted vide order dated 30th of November, 2011, is modified.

It gains more significance for the reason that the post under question is for a fixed timeframe and in case the interim direction is not modified, the

selected candidate will suffer irreparable loss and in the process neither of the two; viz. petitioner and respondent No. 5 would ultimately get

anything.

In the given circumstances, I deem it proper to modify the interim direction supra by providing that selection of private respondent shall remain

subject to outcome of writ petition. CMP No. 4214/2011 is disposed of.

Registry to list main writ petition on 6th of February, 2012. In the meantime, official respondents to file reply. In default, respondent No. 4 to

appear in person along with record on 6th of February, 2012.