Shafeeq Ahmad Itoo vs State Of J&K & Others

Sanjeev Kumar, J

1) Vide notification No.DCA/09 of 2007 dated 19.10.2007, the Chairman, District Rural Health Societies (Deputy Commissioner), Anantnag invited applications for hiring of contractual staff in various PHCs, CHCs and Sub Centers. The notification also included 08 posts of Operation Theatre Technicians [“OT Technicians”]. The notification, as is apparent from various terms and conditions laid down therein, did not prescribe any guidelines for making selection but it was understood that the contractual appointment shall be made as per NRHM norms issued by the Government of India.

2) The aforesaid notification was superseded by another notification issued by the Chairman, J&K State Health Society on 03.11.2007. Amongst other terms and conditions laid down in the notification dated 03.11.2007, it was prescribed that while making selection, the preference will be given to the candidates below the age of 40 years and are residents of the block where the health institution is located so as to ensure continuous presence of the doctor/paramedic for 24 hours x 7 days service.

3) The petitioner having requisite qualification for the post of OT Technician submitted his application form for consideration. The petitioner is resident of Village Mandhool Tehsil Devsar of District Kulgam which falls in Medical Block, Qazigund. The selection process was conducted by the official respondents and, accordingly, a selection list was issued for the posts required to be filled up under NRHM, Anantnag and Kulgam. So far as Qazigund is concerned, two posts of OT Technician were filled up by engagement of Zahoor Ahmad Dar and Parvaiz Ahmad Bhat who were having merit of 54.48 and 55.33. The petitioner has no grievance against their selection and engagement for the reason that petitioner has obtained lesser points in the selection process i.e. 53.50 points. The grievance of the petitioner is in respect of selection and engagement of private respondents, in particular respondents No.10 and 11 who have been selected and engaged as OT Technicians in CHC, Shangus falling in Medical Block Achabal.

4) Learned counsel for the petitioner submits that respondents No.10 and 11 belong to villages Lalan and T. B. Shah, which villages do not fall in Block Achabal and, therefore, could not have been considered to the exclusion of other candidates in the district. He submits that the merit of respondents No.10 and 11 is 50.67 and 49.62 and, therefore, the petitioner with higher merit should have been preferred. It is with this grievance the petitioner has filed the instant petition seeking, inter alia, a Writ of Certiorari for quashing the selection and engagement of private respondents against the posts of OT Technician made by respondent No.4 for various PHCs/CHCs and Sub Centers in terms of advertisement notification dated 03.11.2007. The petitioner also prays for a direction to the official respondents to select and engage him as OT Technician against one of the posts of OT Technician occupied by the private respondents.

5) On being put on notice, the respondents have filed their objections. It is submitted by the respondents that the process for contractual hiring of various Paramedics including OT Technician was initiated vide advertisement notice dated 19th October, 2007, which was, however, superseded by a fresh notification issued on 03.11.2007. The eligible candidates who had responded to the advertisement notification were interviewed by the Selection Committee and block-wise final select list of 17 candidates was issued, which includes the private respondents as well.

6) On behalf of the respondents it is argued by Mr. Sajad Ashraf, GA, that the selection of Paramedics and other staff under NRHM is regulated by NRHM norms issued by the Government of India and as per norms, the unit of selection is local criteria. He submits that in the absence of clear definition of “local criteria” mentioned in NRHM norms, the Mission Director, NRHM J&K, vide his communication No.SHS/NRHM/J&K/4126-37 dated 11.09.2013, issued a clarification regarding meaning of “local criteria”. He submits that the basic unit of selection is village/villages which are catered by a particular health institution where the vacancy is required to be supplied. However, in the absence of an eligible candidate in the said area, the zone of selection is extended to block and if no eligible candidate is available in the block where the health institution/health institutions are situated, the candidates from the adjoining blocks within district are to be preferred. In the absence of any eligible candidate within block or adjoining block, the candidates from the Tehsil are to be considered. It is only if the eligible candidates in the Tehsil are not available for selection, then the entire district shall be taken as a unit and all candidates belonging to district are entitled to be considered. Mr. Sajad Ashraf submits that the selection was carried strictly as per NRHM norms. The petitioner is neither resident of Block Achabal nor does he belong to an adjoining block. He is not even resident of Achabal or for that matter District Anantnag. He is a candidate belonging to District Kulgam. He submits that the petitioner had no preferential right to be engaged against two posts of OT Technician which were available in Block Achabal.

7) Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that the selection process in the instant case has been carried by the official respondents strictly as per NRHM norms. The petitioner, admittedly, belongs to Medical Block, Qazigund where two posts of OT Technician were available to be filled up. The respondents rightly picked up two candidates for supplying the aforesaid posts on the basis of merit. It is not disputed by the petitioner that the merit of two selected candidates in Block Qazigund is higher than the petitioner. The petitioner could not have been considered for Achabal Block as well, for the reason that he does not belong to Achabal Block or Achabal Tehsil. He is not even a candidate belonging to District Anantnag. The respondents, thus, rightly considered two candidates, namely, Tariq Ahmad Bhat and Shabir Ahmad Parray both residents of Village Kamad falling in Achabal Block against two posts of OT Technician in CHC, Kokernagh and CHC, Seer. Since two more posts in CHC, Shangus, were also available to be filled up and there was no candidate available from Achabal Block, as such, the candidates from adjoining block were considered though they had lesser merit than the petitioner. The claim of the petitioner against these posts on the ground that in the absence of availability of candidate in Achabal Block, the most meritorious candidate in the District should have been considered, is without any substance. Indisputably, the petitioner does not belong to District Anantnag. It is the plea of the petitioner that at the time when the notifications were issued in the year 2007, Village Mandhool of Tehsil Devsar was in District Anantnag. It was only after bifurcation of District Anantnag and creation of new District of Kulgam, the village of the petitioner fell in District Kulgam. It may be true that village of the petitioner i.e. Village Mandhool, was part of erstwhile District Anantnag but the fact remains that when the selection process was concluded and the select list was prepared, it had ceased to be the part of District Anantnag and was part of District Kulgam. That being the clear position, the petitioner could not have been considered for engagement as OT Technician against the post available in CHC, Shangus. Otherwise also, having regard to the object of NRHM i.e. to provide doctors and Paramedics in the rural areas who are available 24x7 in the service of the people, it is quite rational to provide that if a candidate in a particular block is not available, the eligible candidates from adjoining blocks are required to be preferred. The petitioner, who is resident of a far flung block of District Kulgam, could not have been engaged for CHC, Shangus, falling in Medical Block, Achabal. The engagement of the petitioner, if made, would not have achieved the object of NRHM.

8) Viewed from any angle, the petitioner has no case to challenge the impugned selection or claim his engagement against any of the posts in Achabal Block or anywhere else other than Block Qazigund.

9) For the foregoing reasons, I do not find any merit in this petition and the same is, accordingly, dismissed.