Jammu & Kashmir High Court - Srinagar Bench
Dr. Nazir Ahmad Dar And Others vs State And Ors on 27 May, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 691 of 2012 SWP No. 916 of 2012 SWP No. 1841 of 2010 SWP No. 864 of 2008 Dr. Nazir Ahmad Dar and others Sibtul Hussain and others Dr. Meema Bano Peerzada Naseer Ahmad Petitioners State and Ors Respondents !Mr. B. A. Bashir, Sr. Advocate Miss Farha Bashir , Advocate ^M/s Zaffar Ahmad Shah, Sr. Advocate Mr. A. Hanan, Advocate Mr. Z. A. Qureshi, Sr. Advocate Ms. Nazima, Advocate Mr. Shah Amir, Advocate Mr. M. I. Dar, Advocate Mr. Shah Amir, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 27/05/2013 : J U D G M E N T :
1. The controversy involved in four writ petitions on hand SWP no.864/2008, no.1841/2010, SWP no.691/2012 and SWP no. 916/2012, has its roots in advertisement notice issued by the Chairman, Executive Committee, Jammu & Kashmir State Health Society (Secretary to Government, Health and Medical Education Department) on 3.11.2007 inviting applications on behalf of District Health Societies for engagement, amongst others of doctors with degree in Indian System of Medicine for available positions in First Referral Units (FRUs) and Primarily Health Centres (PHCs) under the National Rural Health Mission (NRHM). The object was to strengthen the health delivery system, improve access to quality health services and make First Referral Units ( FRUs) and Primary Health Centers (PHCs) functional round-the-clock. The applications were to be addressed to concerned Deputy Commissioner (Chairman, District Health Society) of the undivided districts.
2. The advertisement notice was issued in supersession of all earlier advertisement notices on the subject. The notice also incorporated terms and conditions subject to which engagement of ISM doctors and other medical and para-medical staff was to be made. Para 4 of terms and conditions, is relevant to the present controversy and needs to be noticed. 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 hrs X 7 days service.
3. The above brief introduction to the issued involved in the present writ petitions is required to be followed by summarizing the relevant facts in each of the petitions.
4. Petitioners in (SWP 864/2008) are from different villages, towns and hamlets of District Baramulla. They claim to have responded to the advertisement notice dated 03-11-2007. They are aggrieved that they have not been included in the selection list issued vide order no. 115/ DDCB of 2008 dated 28th May 2008 published in 31th May 2008 edition of a local daily. They question the selection of private respondents (respondents 10-
43) amongst others on the grounds that the selection was unfair and made in violation of NRHM scheme. The selection process is said to have not been fair and transparent. The petitioners in particular point to selection of Shri Bilal Ahmad Wani (respondent no.21), Shri Nisar Ahmad Malik (respondent no.10) Shri Mohd. Raffi Thokar (respondent no.29), Shri Arshid Hussain Naikoo (respondent no.30) and Aijaz Ahmad Mir (respondent no.43). It is next pleaded that Bilal Ahmad Wani (respondent no.21) did not have the requisite experience of one year at the time of selection and Nisar Ahmad Malik (respondent no. 10) did not have Bachelors Degree in ISM, while as Mohd. Raffi Thokar (respondent no.29) was already serving as Medical Officer in Karnah and Arshid Hussain Naikoo (RBA) (respondent no.30) was working as a teacher at Singhpora Kalan Baramulla. The petitioners also complain that the candidates from the locality were ignored and the candidates from the other blocks / localities engaged in violation of spirit and mandate of NRHM scheme. Petitioners seek quashment of the selection list issued vide order no. 115/DDCB of 2008 dated 28-5-2008 and also a writ of mandamus commanding the official respondents to accord consideration to the petitioners claim.
5. The respondents oppose the writ petition on the grounds that the selection has been made strictly in accordance with NHRM scheme, in fair and transparent manner and that none of the rights of the petitioners has been infringed so as to give them a cause for invoking the writ jurisdiction of the court. The respondents have avoided to deal with the specific plea raised by the petitioners as regards the ineligibility of some of the candidates in the writ petition for the advertised positions. It is pleaded that no candidate not satisfying the terms and conditions laid down in the advertisement notice dated 03-11- 2007, was selected against the advertised posts. It is insisted that the selected candidates had higher merit and therefore better claim as against the petitioner.
6. Petitioner in SWP no. 1841/2010 is resident of Seriwarpora, block Kunzur, tehsil Pattan, district Baramulla . She claims to have applied for the post of medical officer in PHC Seriwarpora Block Kunzur Tehsil Pattan advertised vide notice issued on 3rd Nov. 2007. She participated in the selection process but did not find place in the selection list issued vide order no. 115/DDCB of 2008 dated 28th May 2008 published in a local daily on 31st May 2008. Petitioner questions the selection of respondent no. 10 against the advertised post on the grounds that respondent no. 10 is a resident of Tapper Bala Kreeri Tehsil Pattan District Baramulla and therefore in terms of National Health Rural Scheme ineligible for the advertised post. The petitioner claims that she fulfills the eligible criteria , is a resident of Seriwarpora Block Kunzur Tehsil Pattan and therefore had right to be appointed against the advertised position in preference to Dr. Yasmeen Jan, resident of a village 20 kilometers away from the Seriwarpora where the Health Center is situated.
7. The petitioner, on the strength of the averments made, seeks quashment of selection/appointment list to the extent it relates to respondent no. 10 and direction to respondents to appoint her against the post as medical officer in Health Center Seriwarpora Block Kunzur Tehsil Pattan
8. The respondents oppose the writ petition on the grounds that neither the National Health Rural Mission Scheme nor the advertisement notice dated 3-11.2007 or the earlier notice required that the candidate proposed to be appointed as ISM doctor under the scheme must belong to locality where the First Referral Unit (FRU) and Primary Health Centre (PHC) is located. It is pleaded that both the respondent no. 10 and the petitioner belong to the same tehsil (Pattan) and the respondent no. 10 therefore had the right to be appointed against the advertised position. It is pleaded that respondent no. 10 has been married at Hanjiwera Bala, Pattan, and is residing at a distance of 2 Kms from Seriwarpora, block Kunzur, tehsil Pattan. The petition is also opposed on the grounds that as the petitioner has already joined as petitioner in SWP no. 864/2008 to question the entire selection list of ISM doctors made by the District Health Society Baramulla, she does not have a right to maintain the writ petition.
9. Petitioners in SWP no. 691/2012 have degree in Indian System of Medicine to their credit and belong to district Ganderbal. They responded to the advertisement notice dated 3.11.2007 issued by the J&K Health Society but did not find place in the selection list. The petitioners questioned the selection of respondents 6 to 18 in SWP no. 1147/2011 inter alia on the ground that the selection was made in violation of NRHM scheme and the selected candidates did not belong to district Ganderbal and therefore in terms of the scheme were not entitled to be engaged as Medical officers (ISM) in different health facilities of the district. The writ petition was dismissed as withdrawn at request giving liberty to the petitioners to prosecute the matter before the competent authority. The matter was entrusted by the state government for inquiry and report to Deputy Director (DNO) Family Welfare MCH and Immunization. He vide communication no. DFW/K/2223 dated 23.9.2010 submitted his report. The report was questioned by respondents 6 to 18 in SWP no. 861/2011 on the grounds set out therein. The writ petition was dismissed as premature vide order dated 12.12.2011 inasmuch as the state government had yet to consider the report and take action thereon as warranted under rules. The state government was given liberty to take appropriate decision on the report questioned in the writ petition. The report was considered and Commissioner Secretary, Health, vide no. HD/Plan/NRHM dated 28.03.2012 directed Deputy Commissioner, Ganderbal, to initiate process for fresh appointment in terms of NRHM scheme. The Commissioner Secretary, Health and Family Welfare Department, was of the opinion that as the contract under NRHM was coterminous with the financial year, the right course was to initiate fresh selection process wherein petitioners would be free to participate and to be considered for the available positions. The petitioners aggrieved that the Deputy Commissioner, Ganderbal, was avoiding to act on communication no. HD/Plan/NRHM dated 28.3.2012 have come up with the writ petition on hand seeking a direction to respondent no. 2 to comply with the aforesaid communication and take steps for fresh engagement of contractual Medial Officers/ISMs in district Ganderbal in accordance with the scheme. The petitioners further seek a direction to respondent no. 2 requiring him to give preferential treatment to the petitioners as laid down under NRHM scheme.
10. The writ petition is opposed by the respondent no. 2 on the grounds that the selection/appointment of private respondents was made pursuant to the advertisement notice issued by District Health Society, Srinagar prior to creation of Ganderbal as a separate district and therefore neither respondent no 2 as Deputy Commissioner, Ganderbal, nor District Health Society Ganderbal set up after the district was created, had any role to play in the selection process. Respondent no. 2 claims to have made its stand as regards fresh selection process proposed vide communication dated 28-3-2012 in its reply bearing no. DCG/Gbl/PS/2028-A dated 9-4-2012 clear, pointing out that in terms of NRHM scheme the contracts of contractual doctors (private respondents) were to be considered for renewal in light of their performance certificates and fresh process for selection and appointment of contractual medical officers (ISM) is to be initiated only after the contract is not so renewed. Respondent no. 2 against the said background has sought dismissal of the writ petition.
11. Respondents 6-18 resist the writ petition on the grounds that the communication no. HD/Plan/NRHM dated 28-3-2012 is non-est in law as it has been addressed without affording the respondents an opportunity to project their stand and therefore in violation of writ court order dated 12-12-2011 in SWP no. 861/2011. It is insisted that Commissioner Secretary to Health and Medical Education was in terms of the aforementioned writ court order and even otherwise also under the obligation to afford respondents 6-18 an adequate and reasonable opportunity to explain their stand and convince the authority that though under the NRHM scheme contractual appointments of medical officers (ISM) was to be made for a period of one year, yet the scheme did not visualize fresh selection at the end of the financial year and instead left room for the renewal of the contract in light of performances reports received from concerned Block Medical Officers. It is pleaded that as all the Block Medical Officers under whom respondent 6-18 were performing their duties had certified their performances to be satisfactory, the respondents (6-18) had a right to be considered for renewal of their contracts. It is insisted that the claim set out in the reply is reinforced by the stand taken by the Deputy Commissioner Ganderbal reflected in his communication no. DCG/Gbl/PS/2018-A dated 9-4-2012 addressed to Commissioner Secretary in response to his communication dated 28-3-2012.
12. Petitioners in SWP No.916/2012 participated in selection process initiated vide advertisement notice dated 03-11- 2007 and were appointed as Medical Officers(ISM) vide order no. NRHM /2008-09/2570-2605 dated 07.08.2008 in different FRUs and PHCs in district Srinagar/Ganderbal. Their engagement was questioned in SWP no.1147/2008 by the private respondents in the present petition. The writ petition was allowed on 19-5-2010 and official respondents directed to initiate fresh process of engagement in terms of NRHM scheme within a period of three months. The writ court order dated 19.05.2010 was questioned in LPA No. 79/2010 and set aside by the LPA Court vide order dated 8-2-2010. The matter was remanded to the court for fresh consideration. The petition as already stated came up before the writ court on 31.3.2011 and was at request dismissed as withdrawn giving liberty to the petitioners (private respondents herein) to pursue their claim before the competent authority.
13. The selection and the engagement of the petitioners was once again questioned in SWP no. 838 of 2011 and this petition was also dismissed as withdrawn vide order dated 2.5.2011 with a direction to the official respondents to consider the representation proposed to be made by the petitioners in the writ petition. The petitioners question the communication no. HD /Plan/NRHM dated 28-3-2012 addressed by Commissioner Secretary to Health and Medical Education to Deputy Commissioner, Ganderbal in his response to the representation made by the present respondent (petitioners in SWP 1147/2008, SWP 838/2011) on the grounds that the petitioners have not been heard before the decision was taken on the report of the Deputy Director. It is pleaded that Deputy Commissioner in reply to the communication dated 28-3-12 has taken stand that any fresh selection would not be permissible in view of the petitioners right to renewal of contracts in their favour and would not stand judicial scrutiny. It is insisted that in terms of NRHM scheme and communication exchanged between the different health societies, the petitioners contract is to be considered for renewal. It is insisted that though engagement of medical officer is coterminous with the financial year, yet the scheme does not visualize fresh selection as the candidates engaged are to be considered for renewal at the end of the financial year. The petitioners plead that communication dated 28-3-2012 infringes their right to be considered for continuation in terms of NRHM scheme.
14. Respondents 5-9 in their reply to the writ petition have taken stand that the communication dated 28.3.12 impugned in the petition was addressed to respondent no. 2 only after Respondent no. 1 was satisfied that the petitioners were appointed illegally and in violation of NRHM scheme. It is pleaded that the satisfactory performance of duties can not impart legality to the petitioners appointment made in violation of NRHM scheme and that too by the incompetent authority. It is reiterated that after the creation of district Ganderbal and coming into existence of a separate district health society, the selection was to be made by the said health society or it was at least to play an active part in the selection process. It is pleaded that in terms of NRHM scheme as interpreted by the court, while making appointment of Medical Officer (ISM) preference was to be given to the local residents and that in the present case duly qualified ISM doctors of district Ganderbal were ignored and candidates from different districts appointed, and their selection/appointment therefore was illegal and liable to be set aside. The respondents 5 to 9 in the said background seek dismissal of the writ petition so that Deputy Commissioner, in compliance of impugned communication makes fresh selection against Medical Officer(ISM) positions available in the District.
15. I have gone through the pleadings as well as the records available on the file and produced by the learned counsel for the official respondents. I have heard learned counsel for the parties.
16. Whether the local candidates have preferential right to be engaged on contractual basis against the positions to be filled up under the NRHM scheme, is the question that arises in all the four writ petitions on hand. To find answer to the question, we have to take an overview of NRHM scheme, its components and objectives.
17. The National Rural Health Mission (NRHM) scheme was launched in the country in April 2004. It was implemented in the state after a delay of few months in December 2005. The goal of the Mission is to improve access to quality healthcare to the people, especially those living in rural areas, to achieve the ultimate objectives of health for all. The objective of the Mission is to reduce morbidity and mortality rate, infant mortality rate and total fatality rate. One of the strategies to pursue the objectives is to strengthen the health institutions like Primary Health Centers, etc. and ensure that all the health institutions have necessary manpower. The Mission calls for massive exercise undertaken by the state in capacity building to healthcare manpower at all levels.
18. One of the measures to be undertaken by the state government in terms of the scheme to enable it to realize its ultimate goal is to make the PHC functional round the clock or on 24/7 basis. The said objective is to be realized by appointing at least one AYUSH (Ayurveda,Yoga Unani Siddha Homeopathy) doctor on contractual basis in every PHC. The nature of the services proposed to be provided at PHC makes it necessary to draw the staff including Medical Officer (ISM) proposed to be engaged from the block, if not from the locality where the PHC is set up. The local candidate satisfying the eligibility criteria is therefore to be given preference over the candidates belonging to other blocks. The logic behind such propositions is not difficult to understand. The qualified local Medical Officer (ISM) would be with least inconvenience available round the clock, so as to make the PHC functional on 24X7 basis. As against a local candidate, the candidate belonging to a different block of the same district or a different district would be in a disadvantageous position as he would have to undertake journey to report to his duty or even where he sets up a temporary residence at the place where the PHC is located, he shall have to undertake to-and-fro journey, after regular intervals to his permanent place of residence at the cost of availability of healthcare to the inhabitants of the village/town and the surrounding areas where the PHC is located. The NRHM scheme though not identical in all its facets/dimensions, has similarities with SSA scheme. Under the SSA scheme to attain the goal of universalization of elementary education, the position of teacher available in a new primary school or an upgraded primary school is to be filled up from the hamlet where the new primary school or the upgraded primary school is located or the revenue village in case the population of the hamlet/habitation comprises less than 300 souls as well as the distance between the hamlets is less than a kilometer. The object is to ensure availability of teacher in the school without any lapse and make the teacher accessible to the students enrolled in such schools even after school hours with least inconvenience to the students as well as the teacher. The teacher is drawn from the locality so that the teacher has not to undertake daily journey to attend the school and there are least chances of the teacher not reporting to duty or reporting after scheduled school hours began.
19. While the objective of the SSA scheme is universalization of elementary education, the objective of the NRHM is health for all. Resultantly the objective of NRHM scheme calls for preference to a candidate for position of Medical Officer (ISM) from the same block where the PHC is located as against a candidate from other block or district.
20. The advertisement notice dated 3.11.2007 issued by J&K State Health Society to which both the selected as well as the local candidates i.e. petitioners and private respondents have responded and is not questioned by either of the parties, against the given background rightly provided for preference to the candidates who reside in the block where the healthcare institution is located. It would be appropriate to revisit Para 0.4 of the advertisement notice. It reads. 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/para-medic for 24hr/7days service.
21. Heaving referred to the relevant para of the advertisement notice dated 3.11.2007, let us now try to find out the PHCs where the positions of Medical Officers (ISM) were available to be filled up after the selection process initiated vide said advertisement notice was concluded and thereafter try to know whether the selected candidates belonged to the blocks where such PHCs are located. It is further to be seen that in case the selected candidates did not belong to the respective blocks, whether candidates from the blocks were available and unjustifiably ignored though in terms of the advertisement notice they were to be given preference while making the selection.
22. Perusal of record reveals that Medical Officer (ISM) positions were available in following 15 PHCs located in the blocks of district Ganderbal shown against each.
S.No. Name of PHC Name of block 1 PHC Sonamarg Kangan 2 PHC Gund Kangan 3 PHC Kullan Kangan 4 PHC Ganiwan Kangan 5 PHC Babanagri Kangan 6 PHC Wussan Kangan 7 PHC Manigam Kangan 8 PHC Tullamul Ganderbal 9 PHC Shuhama Ganderbal 10 PHC Chundina Ganderbal 11 PHC Kachan Ganderbal 12 PHC Lar Lar 13 PHC Wakura Wakura 14 PHC Batwina Wakura 15 PHC Safapora Lar
23. The name, place of residence, block and district of selected candidates as admitted by them and also revealed by the record may be tabulate as under.
S. No .
Name of candidate Place of residence Block PHC in which appointed Block in which PHC is located 1 Sibtul Hussain Lal Bazar, Srinagar Zadibal PHC Lar Lar 2 Masarat Fatima Nuner, Ganderbal Ganderb al PHC Baba Nagri Kangan 3 Sheikh Riyaz Qadiri Saloora, Ganderbal Ganderb al PHC Gund Kangan 4 Shafiqul Hassan Solina Payeen, Srinagar Batamal o PHC Ganiwan Kangan 5 Farhat Bashir Zakoora, Srinagar Zadibal PHC Manigam Kangan 6 Tajali Jeelani Lal Bazar, Srinagar Zadibal PHC Safapora Lar 7 Mohammad Rafiq Soura, Srinagar Zadibal PHC Kullan Kangan 8 Abdul Majid Rathpora, Eidgah, Sgr.
SR Gunj PHC Batwina Wakura 9 Abid Jan Bemina, Srinagar Batamal o PHC Shohama Ganderbal 10 Mudasir Bashir Meerak Abad, Shalimar, Sgr Zadibal PHC Kachan Ganderbal 11 Nadeem Majid Gulmarg, Baramulla Tangmar g PHC Sonamarg Kangan 12 Aijaz Ahmad Batamaloo, Srinagar Batmalo o PHC Wussan Kangan 13 Nighat Shafi Shah Saderbal, Srinagar Zadibal PHC Chundina Ganderbal 14 Nargis Nazir Doderhama, Ganderbal Ganderb al PHC Tulmula Ganderbal 15 Sabqat Hussain Wakura Wakura PHC Wakura Wakura
24. The record available on the file would show that 13 of the selected candidates admittedly were not residents of the block(s) where the PHCs in which they were appointed as Medical Officer (ISM) were located. One of the selected candidates namely Nadeem Majid is resident of district Baramulla, he does not even belong to undivided district Srinagar i.e. district Srinagar and district Ganderbal.
25. The non-selected candidates i.e. petitioners in SWP no. 691/2012 and private respondents in SWP no. 916/2012 hail from district Ganderbal and are residents of villages and blocks shown in the following table.
S.No. Name of non-
selected candidate Place of residence Block District 1 Dr. Nazir Ahmad Dar Bakaroora, Alisteng Ganderbal Ganderba l 2 Dr. Mohd. Sutan Laharwal Kondabal Lar Ganderba l 3 Dr. Sheraz Ahmad Parra Zazna, Wakura Ganderba l 4 Dr. Syed Abdul Hassan Dab Wakura Wakura Ganderba l 5 Dr. Syed Sheeraz Hussain Dab Wakura Wakura Ganderba l
26. Having tabulated, the necessary information as regards place of residence, block and district of the parties in SWP no. 691/2012 and 916/2012, let us now shift focus to SWP no. 864/2008 and 1841/2010.
27. The non-selected candidates i.e. petitioners in SWP no. 864/2008, hail from district Baramulla and are residents of villages and blocks shown against each in the following table. S. No .
Name of candidate Place of residence Block 1 Peerzada Naseer Ahmad Khai, Sonawari Hajin 2 Imtiyaz Ahmad Dar Dangerpora, Sopore Sopore 3 Reyaz Ahmad Zulfi Ongam, Bandipora Bandipo ra 4 Altaf Hussain Mir Gundpora, Bandipora Bandipo ra 5 Showkat Ahmad Dhobi Wagnoma, Tangmarg Tangmar g 6 Ghulam Rasool Lone Waizar, Wagoora, Baramulla Kreeri 7 Ajaz Ahmad Dar Kachama Magam, Baramulla Tangmar g 8 Dr. Aadil Rasid Bhat Mallik Sahib Pattan Baramulla Pattan 9 Dr. Rafiq Hussain Dhobi Khore, Baramulla Pattan 10 Dr. Gazalla Tarharma, Tangmarg Baramulla Tangmar g 11 Dr. Nazir Ahmad Akhoon Hoom, Tangmarg, Baramulla Tangmar g 12 Dr. Khursheed Ahmad Lone Thindima Wagoora, Baramulla Kreeri 13 Dr. Zahoor Ahmad Sofi Ongam, Bandipora, Bandipo ra 14 Dr. Kousar Gani Pattan Baramulla Pattan 15 Hilal Ahmad Tantray Palhalan, Pattan Baramulla Pattan 16 Reyaz Ahmad Ganai Pattan Baramulla Pattan 17 Meema Bano Seriwarpora Kunzar
28. Details of the candidates selected in Baramulla, who are private respondents in SWP no. 864/2008, are shown in the following table:
S. N o Name of the Selected Candidates Place of Residence Block P.H.C In which appointed Block in which PHC is located 1 Nisar Ahmad Malik Sumbal Sonawari, Bandipora Hajin PHC Hajin Hajin 2 Muzaffar Din Ahmad Bhat Bazipora Ajas, Bandipora Hajin PHC Naidkhai Hajin 3 Benazir Ali Wagub Sopore, Baramulla Sopore PHC Wanigam Pattan 4 Gh. Mohi ud din Kaloo Naninara, Sumbal Sonawari Bandipora Hajin NTPHC Nowgam Hajin 5 Nusrat Jan Bhat New Colony, Sopore Sopore PHC Khore Kunzar 6 Samina Ghulam Nabi Nageen Bagh, New Colony Sopore, Barmulla Sopore PHC Shiva Sopore 7 Tajamul Malik Reshipora, Baramulla Kreeri PHC Shaikwada Kreeri 8 Azmat Jahan Kawa Haradshiva, Sopore, Sopore PHC Tarzoo Sopore 9 Azhar Majeed Bhat Jetty Khawaja Bagh, Baramulla Sheeri PHC Sheeri Sheeri 1 0 Manzoor Ahmad Khandey Hanjiwera, Pattan, Baramulla Pattan PHC Hari Watno Tangmar g 1 1 Yasmeena Jan Tappar Bala, Kreeri, Baramulla Kreeri PHC Srivarpora Kunzar 1 2 Bilal Ahmad Wani Momusa Batapora, Pattan, Baramulla Pattan PHC Gulmarg Tangmar g 1 3 Hilal Ahmad Malla Sonim, Pattan Baramulla Pattan PHC Mulgam Kunzer 1 4 Bilal Ahmad Wani Rangawar, Baramulla Sheeri Kalantara Kreeri 1 5 Rubeena Aazimi Kababi Naginbagh, Sopore, Baramulla Sopore PHC Tujar Sharief Sopore 1 6 Shazia Bashir Azad Gunj, Baramulla Sheeri PHC Rohama Rohama 1 7 Rabia Malik Bazipora Ajas, Bandipora Hajin PHC Chuntimull ah Bandipor a 1 8 Arshid Ahmad Bonapora, Rohama, Baramulla Roha ma PHC Panzallah Rohama 1 9 Tahmeena Hamid Mumkak, Sopore, Baramulla Sopore PHC Kunzar Kunzer 2 0 Mohd Raffi Thoker Wagoora, Baramulla Kreeri PHC Kalantara Kreeri 2 1 Arshad Hussain Singhpora Kalan, Baramulla Sheeri PHC Khaitanga n Sheeri 2 2 Masood Ahmad Shah Mayan, Uri, Baramulla Uri PHC Bijhama Boniyar 2 3 Abida Shafi Kangroosa, Rafiabad, Baramulla Dangi-
wacha PHC Dangiwach a Dangiwa cha 2 4 Shabir Ahmad Quereshi Baharabad, Hajin Sonawari Bandipora Hajin PHC Hardabura Kunzer 2 5 Mohd Ramzan Paray Kitchama, Baramulla Sheeri PHC Fatehgarh Sheeri 2 6 Bashir Ahmad Lone Limber, Uri, Baramulla Uri PHC Mohra Uri 2 7 Gh. Hassan Lone Limber, Uri, Baramulla Uri PHC Boniyar Boniyar 2 8 Nazima Azhar Jetty Khawja Bagh, Baramulla Sheeri PHC Singpora Sheeri 2 9 Kulsuma Akhter Seer Jagir, Sopore Sopore PHC Dooru Sopore 3 0 Shabir Ahmad Tantray Agar, Dangerpora, Magam, Pattan, Pattan PHC G.K. Qasim Pattan 3 1 Wasim Hassan Dar Rawath Pora, Delina, Baramulla Sheeri PHC Delina Sheeri 3 2 Khan Arafa Bashir Ahmad Ashpir Mohalla, Sopore Baramulla Sopore PHC Ladoora Sopore 3 3 Kachroo Suraya Badambagh, Sopore, Baramulla Sopore PHC Bomai Sopore 3 4 Ajaz Ahmad Mir Konan, Bandipora Bandip ora PHC Istingo Bandipor a
29. A cursory look at the above table would reveal that 13 of the 34 selected candidates dont belong to the block(s) where the PHCs in which they were appointed as Medical Officer (ISM) are located. Though they belong to district Baramulla, yet the non- selected candidate residing in respective blocks in terms of the Advertisement Notice dated 03.11.2007 were to be given preference over the selected candidates.
30. However, the argument advanced by Mr. B. A. Bashir, learned counsel for the petitioner in SWP no. 691/2012 that the Chairman District Health Society ought to have dissociated himself from selection process in respect of Primary Health Centres located within newly created district Ganderbal, more so when the District Health Society Ganderbal was set up, does not sound convincing. It is pertinent to note that once the selection process was set into motion, it would not have been permissible to bifurcate the process and allow the merit of the candidates to be assessed by more than one selection committees. Such a course would have offended mandate of Article 14 Constitution of India inasmuch as the principle of equality before the law would include assessment of the merit by applying a uniform methodology and such assessment by single selection committee. It is pertinent to point out that the assessment by an interview board has inherent in it an element of subjectivity and therefore it is necessary that merit of all the candidates is evolved by the same committee. This apart, the Advertisement Notice made it clear that selection for advertised positions was to be made on undivided district basis and any of the aspirants for the advertised positions, cannot after participating in the selection process turn around to question terms and conditions of the notice. This, however, does not change the outcome of the matter for the reasons discussed above.
31. There is also no merit in challenge to selection of 5/ Shri Bilal Ahmad Wani, Shri Nisar Ahmad Mlik, Shri Arshid Hussani Naiko ,Shri Aijaz Ahmad Mir and Mohamad Raffi Thokur on the grounds that they lack experience or in case of Nisar Ahmad that he did not have Bachelors Degree in ISM to his credit or that one of them is already serving as Medical Officer/Teacher at Singhpora Kalan Baramulla. The record belies stand taken in this behalf. While in case of Nisar Ahmad Malik, the selectee has requisite degree, in case of other four candidates the ground urged is of no avail to the petitioners. The appointment as medical officer ISM cannot be denied to a candidate otherwise eligible or meritorious on the grounds that he is working as a medical officer (ISM) or in any other capacity elsewhere. This, again in view of the above discussion does not affect final outcome of the matter.
32. As is clear from the record produced, many candidates have been appointed as Medical Officer (ISM) in the PHCs located in blocks other than those they are residents of, notwithstanding availability of the candidates from the blocks where the PHCs are located. Petitioners 1 to 13 in SWP no. 916/2012 are not the residents of the blocks where the PHCs in which they have been appointed are located. On the other hand the non- selected candidates who are petitioners in SWP no. 691/2012 and private respondents in SWP no. 916/2012, have been ignored though they are residents of the blocks where the PHCs are located. It is important to note that the Advertisement Notice in question did not restrict eligibility of the candidate(s) belonging to block where PHC is situated. In other words all the candidates with ISM degree to their credit irrespective of their place of residence are eligible for the advertised posts. However, in terms of the Advertisement Notice, a candidate from the block where the PHC is located as an edge over a candidate belonging to a different block. The extra weightage given to a candidate from the same block assumes significance and the status of an essential condition in view of the object of NRHM scheme i.e. to provide 24 X 7 healthcare to the local population. Against the said backdrop the official respondents ought to have appointed a candidate from the same block where the PHC is located and in case of more than one aspirant from the same block, given priority to the meritorious candidate. Similarly, 13 of the 34 candidates selected in Baramulla are not the residents of the blocks where the PHCs are located, while as the non- selected candidates who are petitioners in SWP no. 864/2008 and who are residents of the blocks where the PHCs are located have been ignored. Petitioner in SWP no. 1841/2010 hails from block Kunzer. But, a candidate from block Kreeri has been appointed in PHC Seriwarpora, block Kunzar ignoring the petitioner in SWP no. 1841/2010 who is resident of Kunzar. Besides, four other candidates who are not the residents of block Kunzar have been appointed for PHCs located in Kunzar.
33. In the circumstances and for the reasons discussed the writ petitions are disposed of as under:
SWP nos. 691/2012 and 916/2012 i. In block Kangan vacancies of Medical Officers (ISM) were available in seven PHCs namely Sonamarg, Gund, Kullan, Ganiwan, Babanagri, Wussan and Manigam. None of the candidates from block Kangan has been engaged as Medical Officer (ISM) against any of the positions in block Kangan. However, none of the petitioners in SWP no. 691/2012 is from block Kangan. In the circumstances they cannot question the engagement of private respondents engaged against the aforesaid positions. Therefore, private respondents in SWP no. 691/2012 engaged as Medical Officers (ISM) in seven PHCs of block Kangan being otherwise eligible for the advertised positions have a right to continue subject to the provisions of the NRHM scheme.
ii. In block Ganderbal, positions of Medical Officer (ISM) were available in 4 PHCs namely Tullamul, Shuhama, Chundina and Kachan. Against the aforesaid positions, 3 of the 4 candidates engaged namely Abid Jan, Mudasir Bashir and Nighat Shafi Shah are not residents of block Ganderbal. One of the petitioners in SWP no. 691/2012 namely Dr. Nazir Ahmad Dar is from block Ganderbal (Bakaroora, Alisteng). He therefore has an edge over the candidates engaged in block Ganderbal, who, as already stated, are not residents of the block. Since Dr. Nazir Ahmad Dar is the lone contender, one of the three candidates from a block other than block Ganderbal, but engaged in block Ganderbal, having least merit, has to step aside to leave place for Dr. Nazir Ahmad Dar (petitioner no. 1 in SWP no. 691/2012). As per the merit list Dr Nighat Shafi Shah (respondent no. 17 in SWP no. 691/2012) has the least merit i.e. 66.16 among the three. Therefore, selection and engagement of Dr Nighat Shafi Shah is set aside and petitioner no. 1 in SWP no. 691/2012 namely Dr. Nazir Ahmad Dar directed to be considered for appointment against the vacancy that becomes so available in one of the 4 PHCs in block Ganderbal. iii. In block Lar, against 2 Medical Officer (ISM) positions in PHCs Lar and Safapora, 2 candidates namely Sibtul Hussain and Tajali Jeelani who dont belong to block Lar have been engaged. Dr. Mohammad Sultan Laherwal (petitioner no. 2 in SWP no. 691/2012) is from block Lar and therefore has a preferential right to be engaged against one of the two positions available in the block. In the circumstances one of the two candidates engaged namely Tajali Jeelani and Sibtul Hussain with least merit has to step aside to enable the official respondents to engage Dr. Mohammad Sultan Laharwal (petitioner no. 2 in SWP no. 691/2012) against the advertised position. As per the merit list Syed Sibtul Hussain (respondent no. 13 in SWP no. 691/2012) has least merit i.e. 67.19 among the two. Therefore the selection and engagement of respondent no. 13, Syed Sibtul Hussain, is set aside and official respondents directed to consider appointment of petitioner no. 2 namely Dr. Mohammad Sultan Laharwal in SWP no. 691/2012 against the vacancy that becomes so available. iv. In block Wakura, 2 Medical Officer (ISM) positions were available and have been filled up by 2 candidates, one of whom namely Abdul Majid belongs to block Srinagar. We have 3 candidates namely Dr. Sheraz Ahmad Parra, Dr. Syed Abdul Hassan and Dr. Syed Sheeraz Hussain (petitioners 3, 4 and 5 in SWP no. 691/2012) available from block Wakura and one of them is to be considered for engagement against the position to become available because of quashment of selection of Abdul Majid (respondent no. 10 in SWP no. 691/2012). The most meritorious of the 3 candidates obviously has to be engaged against the aforesaid position. In the above background selection of Abdul Majid as Medical Officer (ISM) in PHC Batwina, block Wakura, is set aside and official respondents directed to consider appointment of Dr.Sheraz Ahmad Parra (petitioner no. 3 in SWP no. 691/2012) against the position of Medical Officer (ISM) in PHC Batwina, block Wakura.
SWP no. 916/2012 and SWP no. 691/2012 are accordingly disposed of.SWP nos. 1841/2010
Selection and engagement of respondent no. 10 namely Dr. Yasmeena Jan as Medical Officer (ISM) in PHC Seriwarpora block Kunzar is set aside and official respondents directed to consider appointment of petitioner Dr. Meema Bano against the vacancy that becomes so available.SWP nos. 864/2008
i. In block Pattan against 2 Medical Officer (ISM) positions available in PHCs Wanigam and G.K.Qasim, one of the candidates engaged namely Benazir Ali (respondent no. 12 in the petition) does not belong to block Pattan. Five of the petitioners namely Dr. Aadil Rashid Bhat (petitioner no. 8), Dr. Rafiq Hussain Dhobi (petitioner no. 9), Dr. Kousar Gani (petitioner no. 15), Dr. Hilal Ahmad Tantray (petitioner no. 16) and Dr. Reyaz Ahmad Ganai (petitioner no. 17) belong to block Pattan and have an edge over respondent no. 12. In this backdrop selection and engagement of respondent no. 12 is set aside. The official respondents are directed to consider appointment of Dr Aadil Rashid Bhat (petitioner no. 8), who has the highest merit among the five with 51.41 points to his credit, against Medical Officer (ISM) position that becomes so available.
ii. In block Hajin, against 3 Medical Officer (ISM) positions, all the candidates engaged hail from the block and therefore challenge thrown to their selection by petitioner no. 1 is to fail as the petitioner cannot claim any preference over the selected and engaged candidates. iii. In block Sopore all the candidates selected against six available ISM positions in different PHCs are residing in block Sopore. Challenge thrown to their selection by petitioner no. 2 is therefore bound to fail for the reason that petitioner no. 2 cannot claim any preference over the selected and engaged candidates.
iv. In block Tangmarg both the candidates (respondents 19 and 21) selected against 2 available Medical Officer (ISM) positions do not belong to block Tangmarg. Petitioners 5, 7, 10 and 11 namely Showkat Ahmad Dhobi, Ajaz Ahmad Dar, Dr. Gazallah and Dr. Nazir Ahmad Akhoon have a preferential right to be considered against the aforesaid positions. In this view of the matter, the selection/engagement of respondents 19 and 21 in Tangmarg block is set aside. As per the merit list two most meritorious candidates amongst the petitioners 5, 7, 10, and 11, are Dr. Gazallah (petitioner no. 10), who has secured 49.29 points, and Dr. Showkat Ahmad Dhobi (petitioner no. 5), who has bagged 45.59 points. The respondents are directed to consider appointment of petitioners 10 and 5 namely Dr. Gazallah and Dr. Showkat Ahmad Dhobi against the 2 positions that become so available. v. In block Kunzar all the five candidates (respondents 14, 20, 22, 28 and 33) selected and appointed against 5 Medical Officer (ISM) positions do not belong to block Kunzar. However, the petitioner in SWP no. 1841/2010 (petitioner no. 14 in SWP no.
864/2008 but later deleted at request) is only candidate from block Kunzar to throw challenge to selection and engagement of aforementioned respondents. vi. In block Kreeri, one of the three candidates (respondent no. 23 in the petition) does not belong to block Kreeri. Petitioner no. 6 and petitioner no. 12 who hail from block Kreeri throw challenge to his selection and engagement. Selection and engagement of respondent no. 23 is set aside. As per the merit list the most meritorious of petitioner nos. 6 and 12 is Dr. Khursheed Ahmad Lone who has secured 51.80 points. The respondents are directed to consider appointment of Dr. Khursheed Ahmad Lone (petitioner no. 12) against the post that so becomes available. vii. In block Bandipora one of the two candidates (respondent no. 26 in the petition) selected and engaged against 2 Medical Officer (ISM) positions, does not belong to block Bandipora. Petitioners 3, 4 and 13 throw challenge to his selection in the block. Selection and engagement of respondent no. 26 is set aside. As per merit list most meritorious of petitioners 3, 4 and 13 is Dr Reyaz Ahmad Zulfi (petitioner no. 3) who has secured 52.98 points. The official respondents are directed consider Dr. Riyaz Ahmad Zulfi for appointment as Medical Officer (ISM) against the position that becomes so available. viii. In block Sheeri all the 5 candidates selected and engaged against 5 Medical Officer (ISM) positions belong to the block and therefore their selection is beyond dispute. This apart, none of the petitioners belongs to block Sheeri and therefore there is no challenge to the selection of aforesaid private respondents. ix. In Rohama block, one of the two candidates appointed (respondent no. 25 in the petition) against Medical Officer (ISM) position does not belong to block Rohama. However, none of the petitioners hails from block Rohama and there is no challenge to his selection and engagement. x. In block Boniyar the candidate selected and engaged against the only position available in the block does not belong to block Boniyar. However, there is no challenge to his selection and engagement.
34. To sum up, the selection and engagement as Medical Officer (ISM) of Dr. Nighat Shafi Shah (PHC Chundina), Dr. Syed Sibtul Hussain (PHC Lar), Abdul Majeed (PHC Batwani), Dr. Yasmeen Jan (PHC Sriwarpora), Benazir Ali (PHC Wanigam), Manzoor Ahmad Khanday (PHC Hari Watno), Bilal Ahmad Wani (PHC Gulmarg), Bilal Ahmad Wani (PHC Kalantara) and Rabia Malik (PHC Chuntimullah) is set aside and the respondents directed to consider the appointment of Dr. Nazir Ahmad Dar (petitioner no.1 in SWP no. 691/2012), Dr. Mohammad Sultan Laharwal (petitioner no.2 in SWP no. 691/2012), Dr. Sheraz Ahmad Parra (petitioner no. 3 in SWP no. 691/2012), Dr. Meemo Bano (petitioner in SWP no. 1841/2010), Aadil Rashid Bhat (petitioner no. 8 in 864/2008), Dr. Gazalla (petitioner no. 10 in SWP no. 864/2008), Dr. Showkat Ahmad Dhobi (petitioner no. 5 in SWP no. 864/2008), Dr. Khursheed Ahmad Lone (petitioner no. 12 in SWP no. 864/2008) and Dr. Riyaz Ahmad Zulfi (petitioner no.3 in SWP no. 864/2008) against the post of Medical Officer (ISM) in PHCs of their respective blocks as mentioned hereinabove.
35. Disposed of with all connected CMPs.
(Hasnain Massodi) Judge Srinagar 27.05.2013 N. Ahmad