Jammu & Kashmir High Court
Anil Kumar vs State Of J&K And Others on 28 December, 2021
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT JAMMU
SWP No. 438/2008
IA No. 928/2011
IA No. 2523/2010
Pronounced on : 28 .12.2021
Anil Kumar .... Petitioner (s)
Through:- Mr. M. P. Sharma, Advocate
V/s
State of J&K and others .....Respondent(s)
Through:- Mr. H. A. Siddiqui, Sr. AAG
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
01. National Rural Health Mission J&K State Health Society RIHFW, Nagrota Jammu issued an Advertisement Notice No. DIP/J-4145 dated 03.11.2007 for contractual engagement of Doctors including ISM/H/PARAMEDICS/DAWASAZ for PHCs/FRUs under National Rural Health Mission (NRHM).
02. The petitioner being eligible and having the requisite qualifications and experience also applied for the post of X-ray Technician as advertised vide notice dated 03.11.2007. After the completion of the selection process, the select list was issued on 17.03.2008. The respondent Nos. 4 to 7 were selected for the post of X- Ray Technicians and the petitioner was placed at serial No. 1 of the waiting list.
03. As per the requisite qualification for the post of X-Ray Technicians, diploma in X-Ray Technician Course from Institution 2 SWP No. 438/2008 recognized by the J&K Medical Faculty and requisite experience was one year after having received diploma in public or private sector.
04. The petitioner is aggrieved of the selection of respondent Nos. 4 to 7 as X-ray Technicians and seeks setting aside of their selection. It is submitted that respondent Nos. 4 to 7 lack the basic eligibility for being considered or selected for the said post. As per the Advertisement Notice, the requisite qualification for the selection to the post of X-Ray Technicians was diploma in X-ray Technician Course from Institution recognized by the J&K Medical Faculty and one year experience after receiving diploma in public or private sector. Respondent Nos. 4 to 7, lacked the requisite experience as per the Advertisement Notice for selection to the post, therefore, their selection is bad and the same is required to be set aside. According to him, respondent Nos. 4 to 7 are also ineligible for selection as X-ray Technicians in terms of condition No. 4 of the Advertisement Notice which clearly states that preference would be given to those candidates who are resident of Block where the Health Institution is located so as to ensure continuous presence of the doctors/paramedics. Respondent Nos. 4 to 7 are not the residents of the Block where the Health Institution is located, as such, could not have been selected for the posts which is in utter disregard to the conditions of the Advertisement Notice.
05. The criteria framed for selection, according to the petitioner, is also bad as no weightage in marks has been awarded for the requisite experience given as per the advertisement rather respondent Nos. 4 to 7 3 SWP No. 438/2008 allocated 20 marks for basic qualification and 60 marks for the diploma which is arbitrary and is required to be set aside.
06. It is also stated that the Ministry of Public Health and Welfare has defined the local criteria with regard to implementation of the NRHM which means that the local residents within District, Tehsil, Block and Village based on availability. Since respondent Nos. 4 to 7 were not the residents of the area, therefore, their selection is required to be set aside. Reliance is also placed on the judgment of this Court in Sunita Rajput Vs. State and ors.; 2013 (2) JKJ 507; AIR 2012 Supreme Court 1803 and 2015 (2) JKJ 803 [HC].
07. The respondents have vehemently denied the assertions made by the petitioner. It is stated that the selection was made in accordance with the Advertisement Notice and the petitioner having participated in the selection process and figuring in the waiting list cannot turn around and challenge the same.
08. The selection criteria fixed for the post of X-Ray Technicians is as under :-
Basic Qualification = 20 Points.
Points for X-Ray Assistant Diploma = 60 Points
Interview = 20 Points
Total = 100 Points
09. The Selection Committee conducted the interview of the candidates on 7th & 8th of January, 2008 and the selection list dated 17.03.2008 was published in the Daily Excelsior and State Times on 19th & 21st of March, 2008. In their objections, the respondents have submitted that the petitioner has secured merit 54.60% marks whereas private respondent No. 4 has secured 61.91% marks, respondent No. 5 has 4 SWP No. 438/2008 secured 60.85% marks, respondent No. 6 has secured 59.84% marks and respondent No. 7 has secured 57.22% marks and, thus, figured in the merit list. The petitioner as per his merit was placed in the waiting list. The requisite qualification for X-Ray Technicians was diploma in X-ray Technician Course from Institution recognized by the J&K Medical, therefore, the respondents kept 20 points for basic qualification i.e., 10+2; 60 points for X-ray Assistant Diploma and 20 points for interview. The experience of one year diploma in public or private sector, however, this experience, according to the respondents, is only the preferential qualification and not the essential qualification for the post of X-Ray Technicians, therefore, lack of experience after their diploma in 2007 would not render them ineligible for the said post.
10. So far as the eligibility of the respondent Nos. 4 to 7 being questioned on the ground that they do not belong to the resident of Block where the Health Institution is located. The Condition No. 4 of the Advertisement Notice which is relevant is also reproduced below:-
"4. Preference will be given to the candidates below the age of 40 years and are residents of block where the health institution is located so as to ensure continuous presence of the doctor/paramedic for 24 hr × 7 days service."
11. It is settled position that when selection is based on merit assessed through competitive exam and interview, preference would mean all things being qualitative and quantitative equal. It does not mean preference irrespective of inter se merit and suitability. In Secy (Health) Deptt. of Health Vs. Dr. Anita Puri & ors., (1996) 6 SCC 282, the Hon'ble Supreme Court has held that preferential qualification do 5 SWP No. 438/2008 not confer any right of selection. As per this condition, preference would be given to only those who are the residents of block where the Health Institution is located. Preference would mean, all other things being equivalent, the candidate would be entitled to preference. The petitioner having failed to secure the requisite merit cannot claim the preference as he is not the similarly situated person as respondent Nos. 4 to 7. This apart, the petitioner after having participated in the selection process cannot turn around and challenge the same.
12. The judgment relied upon by the petitioner in Sunita Rajput's case (supra) is also not applicable to the present case as the same is regarding RET Scheme.
13. The engagement to the post of X-ray technician as per the Condition No. 3 of the Advertisement dated 03.11.2007 was only for a period of one year. Though the same was renewable for a period of one year.
14. In view of the aforesaid, there is no merit in this petition and the same is, accordingly, dismissed alongwith connected application(s).
(Sindhu Sharma) Judge JAMMU 28.12.2021 Angita Whether the order is speaking : Yes Whether the order is reportable : Yes RAM MURTI 2021.12.31 13:16 I attest to the accuracy and integrity of this document