Sajda Begum vs State of J. and K. and Others

Sunil Hali, J.—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 dt. 6th of Feb. 09, issued under National Rural Health Mission 2005-2012, (here-in-after called the Scheme), the

Appellant came to be selected against the said post. Later on, vide order No. 173-DDCJ of 2009 dt. 17th of Nov. 09, the select list issued in this

regard by the District Health Society, Jammu, dt. 20th of Oct. 09, came to be withdrawn and a fresh advertisement dt. 22nd of March 10, was

issued, which action of the Respondents was the subject matter of challenge in writ petition SWP No. 1089/2010. A learned Single Judge of this

Court did not find favour with the pleas taken by the Appellant-writ Petitioner in the writ petition and vide order impugned dt. 14th of July 10, has

dismissed the same. It is against the above order, the present appeal has been preferred.

Mr. Kotwal, learned Counsel for the Appellant submitted that the Appellant having been selected against the post of ANM in a duly selection

process initiated by the Respondents under the Scheme, cannot be deprived of her legitimate right of appointment against the said post. The

Respondents have withdrawn the select list without assigning any reason which action of theirs is against the principles of natural justice. The further

contention raised by the learned Counsel for the Appellant is that the learned writ court while passing the order impugned has not taken into

consideration the eligibility criteria as laid down in the advertisement notice dt. 7th of Feb. 09, in pursuance to which the selection was made. In

terms of the eligibility 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 have a Diploma in Auxillary Nursing Midwifery from an Institute recognized by the J&K

Medical Faculty. It is stated that once the eligibility was prescribed in the notification and the selection process was initiated and concluded on the

basis of the same, the resultant action of the Respondents in issuing the select list should be deemed to be final and the said select list should be

acted upon. It is, thus, contended that the action of Respondents in withdrawing the select list is not in accordance with 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 public at

large more particularly in rural areas. In order to see that these facilities are available at the doorsteps of the rural population, the State

Governments have been advised to open Primary Health Centres and Sub Centres in rural and urban areas. The doctors and other para-medical

staff is engaged on contractual basis under the Scheme in these Primary Health Centres to provide service to the people round the clock for which

preference in the matter of 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 such Centres so that the public at large may not suffer.

The Respondents in ignorance of the said criteria as laid down in the Scheme issued the advertisement notice dated 06.02.2009. In terms of the

said notification, the candidate seeking consideration for engagement against a particular post as advertised, was required to be possessed of the

qualification and experience as mentioned in the said notification and should be a resident of the State of Jammu and Kashmir. The notification

dated 06.02.2009 was issued in violation of the scheme as a result of which the same was withdrawn. Consequently, the selection process initiated

on the basis of said notification, stood cancelled vide order dated 17.11.2009.

Thereafter, fresh advertisement dated 22.03.2010 came to be issued by the Respondents. It is this order and the advertisement dated

22.03.2010 which were subject matter of challenge before the learned Single Judge wherein the relief claimed by the Petitioner was in the nature of

mandamus commanding the Respondents to issue the appointment order in favour of the Petitioner. Learned Single Judge has declined to grant this

relief on the ground that the selection process was issued in violation of the norms fixed under the National Rural Health Mission (NRHM)

Scheme, as such, no direction can be issued to the 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 as under:

(a) All the engagements are on contractual basis and orders are required to be issued by the respective District Rural Health Societies; and

(b) Preference is to be given to the candidates below the age of 40 years and should be the residents of block where the health centre is located.

There is a clear indication in the Scheme that it is intended to serve the particulars object by providing medical facilities to the locals who are

living within the blocks. The objective of the scheme envisages that the selection is to be made from the candidates residing within the block 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 within the blocks where health

centre is located or the zone of consideration can be extended to other candidates who are not residing within the block.;

(b) 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

(c) 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 is necessary to analyze the objective of the scheme. What

clearly emerges from the purport of the scheme is that in order to provide health facilities at the grass root level, the presence of the doctors at the

door steps is the sole object of the scheme. How this objective is to be achieved can have many facets. It is also to be kept in mind that doctor's

availability at centre is essence of the scheme. First process to achieve this objective is to prefer those candidates, who are living within the blocks

where health centres are located. It serves two purposes:

(i) One that they are readily available at the centre; and

(ii) another that the people living at the grass root level should have easy assess to the doctors posted there.

Where doctors are not available within the blocks, in that eventuality, the zone of consideration can be extended within district. What is

emphasized by looking to the nature of the scheme and its objective is that preference has to be given to those candidates, who are living within the

blocks. It is only where doctors within the blocks are not available then the zone of consideration can be extended beyond the block. 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 use under the scheme.

The contention of the Respondents is that the word preference used would mean that if one or more candidates were found equally positioned

then only additional qualification would be taken as tilting factors in favour of the candidates vis-`-vis others candidates. What is being

contemplated is that where one or more candidates are found equally positioned then only the additional qualification would be taken as tilting

factors meaning thereby preference would be given to the persons, who live within the block.

However, the word preference is capable of different meaning by taking colour from the context, purpose and objective used in the scheme. In

the present case, it is to be seen that appointments of doctors were not to be made by general process of recruitment or by adhering to the rules

governing the medical services. These appointments were made by taking into consideration the object and purpose of the scheme aforesaid. It is

the scheme, which was guiding factor in the matter of making appointments. The appointments were not required to be made by the State

Recruitment Board or Public Service Commission but by the Committee 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 the purpose and object of its use under the scheme. In our view, the word #preference# under the

scheme, would mean local criteria meaning thereby the persons, who are available and living within the blocks, have to be given preference.

Otherwise, the very purpose of the scheme gets defeated.

In the light of the aforementioned discussions, the plea of the Appellant has to be examined. The contention of the Appellant is that once the

selection process has been concluded, the same cannot be cancelled. The Appellant stood selected and only order of appointment was 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 of consideration in terms of the impugned notification was extended to all the candidates living within the State

of J&K, which was contrary to the objective of the scheme, as such, the Respondents were well within their right to withdraw the said notification

and issued fresh notification dated 22.03.2010. It is a well settled proposition of law that mere selection does not give any right of appointment.

However, appointing authority is only required to give reasons before canceling such selection. In the present case, the reason for withdrawing the

earlier 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 14.07.2010 passed by the learned Single Judge. Accordingly, this

appeal is dismissed along with connected CMP(s), if any.