Mohd. Altaf Bhat and Another vs State and Others

Sunil Hali, J.—In response to advertisement notice No. PS/Secy/HME/01/2007 dated 4lh of October, 2007, issued by Respondent No. 2,

inviting applications from eligible candidates for engagement on contractual basis against different posts mentioned therein. The Petitioners applied

for the post of IHM Doctor under the scheme of National Rural Health Mission (NRHM) (hereinafter called the Scheme), under the reserved

category of RBA. The number of posts of IHM doctors which were required to be filled up were 26 as mentioned in the said notification.

Selection process, was initiated by the Respondent authorities and accordingly a select list of IHM doctors under the Scheme came to be issued

vide notification dated 28th of April, 2008. Having remained unsuccessful, the Petitioners have challenged their non-selection in the present writ

petition.

The grievance projected by the Petitioners is that in terms of condition No. 10, as contained in the notification, it was categorically mentioned

that the appointments against the aforementioned posts were to be made in terms of the relevant recruitment rules and orders in vogue in the State

Civil Services, and as such, while making the selection, the official Respondents were bound to make the selection after giving due representation

to the reserved categories in terms of Reservation Rules, 2004, which provide for 20% reservation for RBA category. It is stated that out of 26

posts, six posts were required to be filled up from amongst the said category. It is contended that under similar circumstances, the Respondent-

State while making the selection under the Scheme in different districts i.e. Srinagar, Budgam and Baramulla, observed the Reservation Rules and

selected the candidates after giving due representation to the candidates belonging to the reserved categories of RBA, SC, ST etc. in accordance

with the said Rules, but in case of selection impugned, no such criteria has been adopted and no post has been given to the reserved category

candidates. It is, thus, stated that the selection impugned has been made in violation of the Rules.

The further contention raised by the Petitioners is that during the pendency ? of the writ petition, the official Respondents cancelled the earlier

select list and have issued a fresh select list dated 1st of May, 2008, thereby changing the merit position of the candidates whose names figured in

the earlier select list dated 28th of April, 2008. In the fresh select-list issued by the official Respondents, the names of some of, the candidates who

figured in the first select list have been deleted and new names have been added which clearly reflects malafide on the part of the official

Respondents. It is stated that in terms of the revised select list, the candidate figuring at serial No. 1 of the earlier list, namely, Taziena Akhter

(Respondent No. 3) has been brought down to serial No. 13, and three new names have been added in the said list. The official Respondents

having noticed the said discrepancies and there being total non-application of mind on the part of selecting authority, the entire selection of private

Respondents is said to be illegal. It is contended that no selection committee was constituted for the purpose of making selection in accordance

with the rules. The further plea raised is that two candidates figuring at serial No. 3 and 14 of the select list have not joined and, as such, the

petitioned who belong to RBA category may be directed to be appointed against the said vacant posts as no candidate from the said category has

been selected.

Official Respondents in their reply have contended that the posts under the Scheme are not substantive posts and only a temporary arrangement

of hiring talented people in different fields relating to health delivery system is being made to provide health care facilities to the public at large. It is

stated that the Reservation Rules do not apply to such engagements. It is not mandatory on the part of authorities concerned in a particular district

that the methodology adopted by one district in making the selection under the Scheme is adopted by other districts also. The basic objective of

the Scheme is not to provide job to the people but to provide health care facilities to the public at large in the rural areas for which the persons

having the basic qualification and experience in the relevant field are engaged on temporary basis.

So far as the contention of the Petitioners that no Selection Committee was constituted is concerned, the same is denied by asserting that the

Selection Committee for the purpose of viva-voce was constituted which consisted of the District Development Commissioner, Pulwama as its

Chairman, the Chief Medical Office, Pulwama, Chief Medical officer, Shopian, Deputy Director Employment, Pulwama and Additional District

Medical Officer (ISM), as its members. The Selection Committee had a limited role of allotment of points upto 20% only and rest of the 80% of

the merit was unchangeable. 70% weightage was given to the aggregate merit of MUMS/NHMS and BAMS degrees under the Scheme and 10%

weightage was for the purpose of residence in the area concerned where the Health Centre, was located. It is under these circumstances,

contended that no mala fides could be attributed to the Selection Committee and the selection of private Respondents has rightly been made strictly

in accordance, with the criteria laid down for the selection and the merit position obtained by the said Respondents.

So far as issuance of fresh select list is concerned, it is stated that as some discrepancies were noticed in allotment of marks relating to academic

merit, this led to issuance of the said fresh list and it is not that some extra weightage has been given to some candidate. On the basis of academic

merit which was re-assessed read with the marks obtained by the respective candidates in the viva-voce, the seniority position as reflected in the

earlier list was changed and the candidates whose merit was found to be less after re-examination were brought down in the seniority list in the

fresh select list. This as per the official Respondents cannot be termed to be an illegal act on their part but an exercise in fairness so that a candidate

whose merit is high gets the right position in the order of seniority. It is, thus, submitted that no fault can be found with the action of official

Respondents in making the selection of private Respondents.

Private Respondent No. 29, who was permitted to be arrayed as such vide Court order dated 18th of October, 2008 has filed objections and

stated that she also had applied under RBA category and her name figures at serial No. 2 in the waiting list and at serial No. 1 in the RBA category

as per the inter se merit of the candidates belonging to the said category. She submits that as two posts are lying vacant, she being higher in merit

than the Petitioners may be directed to be engaged against one such post.

Heard learned Counsel for the parties.

Following contentions have been raised by the learned Counsel for the Petitioners:

(a) That while making selection, Reservation Rules have not been followed. Out of 26 posts advertised, 6 posts were required to be filled from

RBA category.

(b) That after issuance of select list, Respondents have changed the merit position of various candidates from the said list which points towards the

fact that some irregularities were Committed while making selection.

In respect of first contention raised by the learned Counsel for the Petitioners, it be seen that the selection/appointment to the aforementioned

posts has been made on contractual basis in terms of Jammu & Kashmir Contractual Appointment Rules, 2003, which provides that the appointing

authority may appoint persons to the posts notified under Rule 3 on contractual basis initially for a period of one year or till the regular selection is

made in accordance with the rules of recruitment. Such appointment does not given any preferential claim for regular appointment under normal

process of selection. The appointment is required to be made strictly in accordance with merit.

Rule 7(2) provides that the appointing authority shall issue appointment orders strictly in accordance with the select list furnished by the

Selection Committee within a period of 7 days positively keeping in view the reservation provided under the Jammu and Kashmir Reservation

Rules, 1994.

The import of the rules envisages application of reservation policy in such appointment also. Clause (10) of the notification also provides that a

contractual appointee shall be in the matter of age, qualification, discipline, conduct and other allied matters governed by the recruitment rules and

orders in vogue in the State civil services, as per the guidelines of District Health Committee.

Application of the rules prevalent in the State would apply to such appointments subject to the guidelines provided by the District Health

Committee. The notification does not in any way exclude the application of reservation rules in such appointments.

Having said so, it be seen that the Petitioners belong to RBA category and were required to be considered for such appointment. The

Petitioners had enclosed these certificates with their applications forms. The status of the Petitioners belonging to RBA category has not been

denied by the Respondents. The Petitioner claim to be the residents of block Pampore and, as such, are required to be considered for appointment

under RBA category as also belonging to a particular block Pampore.

Looking to the nature of the Scheme, preference is required to be given to the candidates below the age of 40 years and were residents of the

concerned block so as to ensure continuous presence of the doctors for 24 hours. The essence and object of the scheme is to provide health care

facility at the door step and preference is required to be given to the doctors who are the local residents of the block. This condition will override

all other rules applicable in the State of Jammu and Kashmir governing such selections. A member belonging to a category will not get preference

in such respect in case he doesn't belong to the block. Preference will be given only to those candidates who are residents of the block.

It is stated that two candidates who belong to block Tral were appointed in block Pampore. It is also contended that Dr. Syed Khalid and Dr.

Amtul Jalil resigned and said two posts in block Pampore are vacant. This is also indicated in communication dated 13th of February, 2009

addressed by Block Medical Officer, Pampore to Chief Medical Officer, Pulwama which clearly indicates that two posts are vacant in block

Pampore.

The second contention raised by the learned Counsel for the Petitioners that the merit list was changed after the select list was issued. In this

aspect it be seen that the Respondents, on noticing certain discrepancies while drawing merit of various candidates, directed authorities concerned

to scrutinize the same. On redrawing of academic merit of the candidates, change in the select list was made and was published indicating the

correction so made. In these circumstances no malafides can be attributed to the concerned Respondents in this behalf. It was a case of correcting

an error and notifying the same. No inference can be drawn that the selection processes vitiated as a result of this.

From the aforementioned discussion, it clearly emerges that the Petitioners were required to be considered under reserved category and

preference was required to be given to them being residents of block Pampore. The Respondents have nowhere denied the fact that the Petitioners

belong to Pampore block. They were required to consider the Petitioners as belonging to the said block and being members of reserved category.

At this stage I am not inclined to quash the selection of private Respondents, however, in view of the fact that two posts are vacant in Pampore

block, a direction is required to be given to the Respondents to consider the Petitioners against the said posts. Let this exercise be conducted and

completed within a period of two months and in case Petitioners fulfill the criteria appointments orders be issued in their favour.

Let this exercise be completed within a period of two weeks from the date of this order.