Nitika Sharma vs Union of India

Tashi Rabstan, J.—The petitioners are seeking to quash the selection of respondents 6 to 41 as Medical Officers as per the Scheme known

as Rashtriya Bal Swasthya Karyakram (RBSK) under National Rural Health Mission (NRHM) District Jammu, with a direction to the respondents

to consider their cases against the said post. The facts as averred in the writ petition are that respondent No. 4 herein in his capacity as Chairman,

District Health Society, Jammu invited applications for various posts including the post of Medical Officer AYUSH. The criteria fixed for the said

post was bachelor degree in the concerned subject i.e. BAMS/BUMS/BHMS or equivalent from any Institute recognized by Central Council of

India Medical/CCH (as the case may be) and registered with J&K Board of Ayurvedic/Unani or J&K Board of Homeopathy (as the case may

be) and the age prescribed for the said post was upto 45 years. AYUSH as mentioned in the Scheme stands for Ayurveda, Yoga, Unani, Siddha

and Homeopathy. It is contended that the petitioners along with other candidates applied for the post-in-question and performed well, the official

respondents, however, vide the impugned select list published in Daily Excelsior in its issue dated 13.11.2013 selected the private respondents

thereby ignoring the claim of petitioners. It is contended that the selected candidates are from one stream only, i.e., Ayurvedic Medicine and none

of the candidates has been selected from other four streams, which have been totally excluded and ignored by the official respondents for the

purposes of selection. It is contended that the merit of the candidates for the post-in-question was first assessed on the basis of Block level,

thereafter on the basis of Tehsil level and then on the basis of District level, whereas it should have been assessed only on the basis of District level

because these were District level vacancies.

The precise argument raised by learned senior counsel for petitioners is that the vacancies-in-question had arisen at District Level basis, whereas

the private respondents have been shown as provisional selectees on the basis of merit assessed at Block Level therefore, the petitioners' right has

been prejudiced because of effect of converting their merit into demerit and vice versa. He further argued that the official respondents have failed to

disclose how the merit of candidates has been evaluated; therefore, the selection has been made in an arbitrary manner and without following any

criteria. He further argued that in the selection process the Member expert available was from Ayurvedic stream only and no other Member expert

from other disciplines was available to evaluate the merit of candidates belonging to such disciplines.

Objections have been filed on behalf of respondents. In the objections filed it is contended that 36 posts of Medical Officer AYUSH contractual

under RBSK (NRHM) were approved for nine Medical Blocks, i.e., Akhnoor, Chowki-Chora, Planwala, R.S. Pura, Bishnah, Kot Bhalwal,

Dansal, Suhanjana and Marh vide communication dated 14.10.2013 addressed by Mission Director NRHM, J&K, wherein it was specifically

provided that preference for selection would be given to the candidates from the Medical Block. It is further contended that the petitioners

participated in the selection process after having accepted the terms and conditions of the eligibility criteria as stipulated in the advertisement notice

therefore, after having failed to make the grade they have no right to challenge the selection process. The contention of the respondents is that the

eligibility criteria as mentioned in the advertisement notice and the guidelines of the relevant policy would demonstrate that the focus area for

making selection was only at Medical Block level for achieving the object introduced in the Scheme. The respondents, thus, have vehemently

denied the assertion of petitioners that the merit for selection was to be assessed at District Level and not at Block Level. Further, it is contended

that the select list was published strictly as per the guidelines of the Scheme and the criteria notified in the advertisement notice.

Heard the learned counsel and considered the pleadings of the parties.

A perusal of the advertisement notice reveals that at Sr. No. 2 it has been mentioned that local candidates will be given preference as per the

guidelines of NRHM.

During the course of arguments, Mrs. Goswami, learned Dy. A.G. produced a copy of the Scheme, namely, Rashtriya Bal Swasthya

Karyakram (RBSK) under National Rural Health Mission (NRHM), relevant portion of paragraph 5.3 is reproduced hereunder:

5.3 Screening of children enrolled in Government and Government aided schools: For children in the age groups 6 to 18 years, who will be

screened in Government and Government aided schools, the Block will be the hub of activity for the programme. At least three dedicated Mobile

Health Teams in each Block will be engaged to conduct screening of children. Villages within the jurisdiction of the Block would be distributed

amongst the mobile health teams. The number of teams may vary depending on the number of Anganwadi Centers, difficult to reach areas and

children enrolled in the schools. The screening of children in the Anganwadi Centers would be conducted at least twice a year and at least once a

year for school children to begin with.

A plain reading of the above-referred paragraph of the Scheme clearly reveals that at least three dedicated Mobile Health Teams in each Block

will be engaged to conduct screening of children, and villages within the jurisdiction of the Block would be distributed amongst the mobile health

teams.

Thus, it is clear from the Scheme that the selection for the post-in-question was to be made at Medical Block Level and in case of non-

availability of eligible candidates, the selection was to be made at Tehsil Level and, thereafter, at District Level in case of non-availability of eligible

candidates at Tehsil Level. The selection of private respondents is, therefore, in consonance with Scheme.

The similar issue involved in this case has also been set at rest by a Coordinate Bench of this Court in case, titled as, Javed Iqbal Bhat (Dr.) and

Others Vs. State and Others, whereof is reproduced hereunder:

Applying this principle to the present case, as already discussed hereinabove, the object of the scheme provides creation of health centre in the

blocks where doctor is available for 24 hours. The condition of the scheme, as already discussed hereinabove, clearly make a mention that it has to

be based on local criteria. There is no dispute that for making appointment, all the eligible persons are required to be considered. The word

'preference' as provided under the scheme, has to be interpreted in the context of the scheme sought to be implemented. I may also be indicated

that the scheme does not exclude consideration of the persons, who were not living within the blocks but only provides preference for those, who

are living with the blocks. As such, it cannot be said that there is total exclusion of the persons beyond the said blocks. What it contemplates is that

if doctors within the block are available, they are required to be given preference. Their eligibility and capacity to handle the job is tested by the

selection committee. I am fortified by the view taken by the apex court in case reported in Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar

and Others, , wherein it is held as"" under:

It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In

order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on

an intelligible differentia which distinguished persons or things that are grouped together from others left out of the group and (ii) that differentia

must have a rational relation to the object sought to e achieved by the statute in question. The classification may be founded on different bases,

namely, geographical or according to objects or occupations or the like. What is important is that there must be a nexus between the basis of

classification and the object of the Act under consideration. It is also well established by the decisions of Supreme Court that article 14 condemns

discrimination not only by a substantive law but also be a law of procedure.

It has also been set at rest by the Apex Court in various judgments that a candidate once participated in the selection process pursuant to the

advertisement notice and after having failed to make the grade cannot question the selection process. Therefore, no question arises for violation of

Articles 14 and 16 of the Constitution of India. In view of the above discussion, I do not find any merit in the writ petition and the same is,

accordingly, dismissed along with connected CMA(s). Interim direction, if any, shall stand vacated.