Jammu & Kashmir High Court - Srinagar Bench
Misra Bano vs State Of J&K; & Ors. on 29 May, 2015
Bench: Mohammad Yaqoob Mir, Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA No. 140/2014
CMP No. 216/2014
Date of Decision: 29.05.2015
Misra Bano
Vs.
State of J&K & ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr. Justice Bansi Lal Bhat, Judge
Appearing Counsel:
For the Appellant(s) : Mr. Mohammad Ashraf Wani.
For the Respondent(s) : Mr. S. Gowhar-AAG-for R1 to R4.
Mr. Arshid Indrabi-R5 per yaqoob -J:
1. Impugned is the judgment dated 12th June, 2014 rendered in two petition i.e is SWP No. 203/2014 and SWP No.225/2014.
2. Vide Advertise Notice No. CMOB/NRHM/13/1054-59 dated: 09.01.2013, application have been invited as against 20 posts of Allopathic Pharmacists for different Blocks under Nation Health Rural Mission (Rashtriya Balswasthaya Karhakaram), which include two posts in Block Khag District Budgam on the basis of screening test, candidates were shortlisted which was published in the newspaper wherein respondent Ishfaq Alam Wani(hereinafter referred to as the writ petitioner) figured at serial No.2 amongst shortlisted candidates. A notice was issued by Chief Medical Officer, Budgam published in Daily Newspaper Greater Kashmir in its issue dated 6th February, 2014 where- under shortlisted candidates were asked to submit NOC from the concerned Block Medical Officer and duly counter signed Chief Medical Officer, Budgam.
3. Writ petitioner feeling aggrieved of the said notice filed SWP No.225/2014 seeking its quashment on the ground that same is not required in terms of scheme governing engagement against the posts in question. Prior thereto, he had filed SWP No.203/2014 praying therein that the respondents therein may be directed to allow him to participate in the interview along with other eligible candidates.
Direction was granted, in compliance whereof he had been admitted to interview, however, result was withheld for want of residential proof, that is how he has filed second writ petition i.e SWP No.225/2014 challenging requirement of production of residential proof.
4. Learned writ Court while considering both the writ petition has observed that the writ petitioner was neither restrained at the time of applying for the post nor during the process of shortlisting and after having figured in the shortlist he has earned a very valuable right of consideration for being engaged on the post as only two candidates have been shortlisted for the two posts. It would be unfair if a technicality is allowed to come in the way as that would make the substantial justice a casualty, more importantly for the reason that the issuance of impugned notice is not a pre-requisite in terms of the mandate of scheme governing the recruitment of posts in question, as such, has allowed the writ petition with the direction to the respondents therein to proceed ahead in the matter and allow the petitioner to assume the post within a period of two weeks from the date copy of the judgment is served upon them. In compliance whereof, Writ petitioner is stated to have been engaged.
5. During the course of hearing, what emerged is that the conclusions drawn by the learned Single Judge in Para 11 of the judgment are not in consonance with the factual position. Writ petitioner has been admitted to interview in pursuance to direction of the Court dated: 07.02.2014 passed in SWP No.203/2014 CMP No.276/2014. The observation of the learned Single Judge that there was no requirement of issuing a notice asking the candidates to produce NOC with respect to residential status runs contrary to the basic scheme.
6. The reply filed by the respondents in service No.225/2015, as available on the records, would suggest that the writ petitioner had been admitted to interview pursuant to direction of the Court with a further assertion that all the candidates who were required to furnish requisite proof rather NOC have furnished the same except writ petitioner when as against him representation was received from Ms. Misra Bano (appellant herein) to the effect that he is not resident of Block Khag.
7. In the afore-stated circumstances, now it is to seen, (1) As to whether writ petitioner, in fact is the resident of Block Khag or not, and (2) As to whether appellant has any right of consideration.
Perusal of the records would suggest that the writ petitioner, in fact, is the resident of Khag which fact is supported by Permanent Resident Certificate as has been issued in his name, photocopy of which is available on records. What has happened is that the father of writ petitioner in connection with imparting education to his two wards studying in Deaf and Dumb Schools had temporarily shifted to Srinagar. The position of his two children studying in Deaf and Dumb School is supported by the certificate issued by Principal of the said school, photocopy of which is available on record. In addition thereto, revenue extracts as placed on record reveal that he has landed property in Block Khag. Thirdly, Naib Tehsildar, Khag has prepared a report wherein it is clearly stated that father of writ petitioner for looking after his two deaf and dumb children studying in Deaf and Dumb School, had temporarily shifted from Khag to Rambagh Srinagar, based on which his name has been deleted from the list of APL ration card holders but now after completing education of his deaf and dumb children, he has shifted his residence block to Khag, therefore, is required to be enlisted in the list of APL ration ticket holders. Contention of the appellant that the writ petitioner has been registered in the voter list at Rambagh, in view of above position, pales into insignificance Writ petitioner, admittedly, is resident of Khag.
8. Another important position as has emerged from the records is that the appellant had not at all applied for the post which position is not denied, instead is further supported by the order issued while conveying approval for hiring 25 Allopathic Pharmacists, two for each Block in District Budgam. In the said order it is clearly indicated that Misra Bano (appellant herein) had neither applied for the post nor had appeared in the screening test. It is being so, appellant has not locus standi to challenge position of writ petitioner, therefore, selection and engagement of the writ petitioner is un- interferable.
9. For the stated reasons, the finding recorded by learned Writ Court in para 11 of the judgment impugned being factually incorrect is corrected as above, based thereon the direction contained in para 12 of the judgment impugned is modified, i.e:
"For the afore-stated reasons and
conclusions, the respondents shall
finalize the process of selection and appointment of the writ petitioner(Ishfaq Alam Wani) within a period of two weeks from the date copy of the judgment is served upon them.
10. Appeal accordingly disposed of.
11. No order as to costs.
(Bansi Lal Bhat) (Mohammad Yaqoob Mir) Judge Judge Srinagar 29.05.2015