Lpaw No.112/2013 vs State Of Jammu And Kashmir on 13 December, 2024

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Jammu & Kashmir High Court - Srinagar Bench

Lpaw No.112/2013 vs State Of Jammu And Kashmir on 13 December, 2024

1. These intra Court appeals by the appellants are directed against an order and judgment dated 27th May, 2013 passed by the learned Single Judge of this Court ["Writ Court"] in four writ petitions led by SWP No.691/2012 titled Nazir Ahmed Dar and others v. State of J&K and others, whereby the Writ Court has accepted the plea of the private respondents herein ["writ petitioners‟] that a LPA No.112/2013 A/W connected matters 14 candidate from the block where the primary health centre is located has an edge over the candidate belonging to a different block in the District and has held the appointment of the candidates belonging to other blocks i.e. non-locals contrary to the NRHM Scheme and para 4 of the Advertisement Notification.

2. In all these appeals filed by the selected/ appointed candidates as Medical Officers Indian System of Medicines (ISM), who are directed by the Writ Court to be ousted to make place for the local candidate(s) of the block(s) concerned, the only question that needs determination turns upon the interpretation of para 4 of the terms and conditions of the advertisement notice issued by the Chairman Executive Committee, J&K State Health Society on 31.11.2007. The relevant para i.e. para 4 of the advertisement notification reads thus:-

"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 doctors/paramedics for 24 hrs x 7 days"

3. The Writ Court has interpreted the word "preference" to mean an edge in favour of the candidates, who are residents of the block where the concerned health institution is located, over the candidates, who do not belong to the said block. The interpretation to the word "preference" given by the Writ Court is on the basis of the context in which it has been used and also having regard to the LPA No.112/2013 A/W connected matters 15 object of NRHM Scheme, which is to provide health care to the people in the rural areas round the clock. This interpretation given by the Writ Court is disputed by the appellants herein on the ground that the word "preference" would come into play only when the candidates are selected at a district level on the basis of their merit and the two candidates i.e. a candidate belonging to the block where health institution is located and a candidate, who does not belong to said block, are tied in merit. The writ petitioners, it is submitted, were not in the select list prepared by the District Health Societies at District level on the basis of merit.

4. Before we advert to the grounds of challenge urged by Mr. Z.A.Shah, learned senior counsel to assail the impugned judgment, we deem it appropriate to briefly state few facts, which are germane to the disposal of the controversy raised in these appeals.

5. The writ petitioners in SWP No.864/2008 belong to different villages/towns and hamlets of district Baramulla. They had responded to the advertisement notification dated 03.11.2007, but were not included in the select list issued vide order No.115/DDCB of 2008 dated 28.05.2008 published in the local daily on 31.05.2008.

6. The writ petitioner in SWP No.1841/2010 is a resident of Seriwarpora, Block Kunzar, Tehsil Pattan. She claims to have applied for the post of Medical Officer ISM in PHC Seriwarpora, LPA No.112/2013 A/W connected matters 16 Block Kunzur, in response to the advertisement notice dated 03.11.2007. She also did not find place in the select list issued vide order No.115/DDCB of 2008 dated 28.05.2008. The writ petitioners in SWP No.691/2012 belong to District Ganderbal and had responded to the advertisement notice dated 03.11.2007 issued by the J&K State Health Society. They, too, did not find place in the selection list.

7. The petitioners in SWP No.916/2012 responded to the advertisement notice dated 03.11.2007 and were appointed as Medical Officer (ISM) vide order dated 07.08.2008 in different FRUs and PHCs in district Srinagar/Ganderbal. Their engagement came to be questioned in SWP No.1147/2008, which was allowed vide judgment dated 19.05.2010 and the official respondents were directed to initiate fresh process for engagement in terms of NRHM scheme within a period of three months. The order/judgment of the Writ Court was assailed before the Division Bench in LPA No.79/2010 and the Division Bench set aside the judgment/order of the Writ Court vide order dated 08.02.2010 and remanded the matter back for fresh consideration. Subsequently, the writ petition was withdrawn by the petitioners therein with liberty to pursue their claim before the competent authority. The selection and engagement of the petitioners was once again challenged in SWP No.838/2011 and this petition was also dismissed as withdrawn with a direction to the official respondents LPA No.112/2013 A/W connected matters 17 to consider the representation proposed to be made by the petitioners therein. The writ petitioners questioned the communication dated 28.03.2012 addressed by the Commissioner/Secretary to Health and Medical Education to Deputy Commissioner, Ganderbal in his response to the representation made by the private respondents on the ground that the writ petitioners had not been heard before taking decision on the report of the Deputy Commissioner.

8. In all these writ petitions the question that arose for determination before the Writ Court was two-fold (i) what is the true meaning and import of the word "preference" used in para 4 of the advertisement notification, (ii) whether the candidates belonging to the district concerned alone were entitled to apply and seek consideration to be engaged as Medical Officers ISM in different blocks of the said district?

9. The Writ Court, as we have already indicated above, interpreted the word "preference" in the context of NRHM scheme and its aim and objectives and came to the conclusion that in the face of availability of suitable candidate in the block, candidate from the adjoining or different block of the same district cannot be engaged notwithstanding that such candidate has a higher merit than the local candidate. The Writ Court has, thus, clearly ruled that a candidate belonging to the district other than where the health LPA No.112/2013 A/W connected matters 18 institutions to be supplied with ISM doctors are situated were ineligible to participate in the selection process.

10. Impugned judgment is assailed by the appellants, inter alia, on the following grounds:-

i) That at the time of issuance of advertisement notification, Srinagar and Ganderbal Districts were treated as undivided districts and, therefore, the candidates belonging to Srinagar District were also held entitled to participate in the selection process for the posts notified in different blocks of Ganderbal District.

ii) That the basis of appointment, if restricted to the residents of the block, as is held by the Writ Court, is not sustainable in law. The constitution forbids appointments only on the basis of residence. The entire district administered by the District Health Society concerned is required to be taken as one unit for making selection and appointment of medical officers ISM. The word "preference" cannot be construed to mean reservation as has been held by the Writ Court.

(iii) That preference can be worked out only amongst the suitable candidates and suitable candidates are only those who have made to select list on the basis of merit determined at District level.

LPA No.112/2013 A/W connected matters 19

11. Having heard learned counsel for the parties and perused the material on record, we are of the opinion that with a view to understanding the real controversy in issue in these appeals, it is necessary to carefully peruse the advertisement notification issued by the Chairman, Executive Committee, J&K State Health Society.

12. From a careful reading of the advertisement notification, it clearly transpires that the applications were invited on behalf of District Health Societies of the then State of Jammu and Kashmir, inter alia, for Medical Officers(ISM) to strengthen health care delivery, improve access to quality health services and to make them functional 24 hrs x 7 days. The applications were required to be addressed to the concerned Deputy Commissioners, who are the ex-officio Chairmen of their respective District Health Societies. As per para 4, which we have reproduced above, the candidates belonging to the block where the health institution required to be supplied with Medical Officer(ISM) is located were entitled to preference in the matter of selection and engagement of their services. This clause clearly provides that the preference has been given to the local candidates to ensure continuous presence of the doctor/paramedic for 24 hrs x 7 days.

13. As per para 5 of terms and conditions of the advertisement notification, the selected candidate was under an obligation to sign LPA No.112/2013 A/W connected matters 20 a contract with the District Rural Health Society as per the guidelines of NRHM.

14. There has been much debate about the terms and conditions of the advertisement notification and also on the aspect that advertisement notice does not restrict only the residents of a particular district to submit their candidature for the positions in the said District. Needless to say that the advertisement notification would contain only the essential information to the candidates and prescribe material terms and conditions of selection and engagement.

15. Nonetheless the selection and appointment of candidates to various positions in the District Health Societies is governed by the NRHM, which is a complete code in itself with regard to the operationalization of the scheme and implementation of the mission in letter and spirit. That being the admitted position, various provisions contained in NRHM scheme pertaining to selection and appointment of staff are required to be read into the advertisement notification. Reference to the salient features of the Scheme would help us to understand the true meaning of „preference‟, a term used in para 5 of the advertisement notification.

16. To explain the manner in which the engagement of different staff in the NRHM is required to be carried out, it is necessary to take stock of the relevant provisions of NRHM. The NRHM was LPA No.112/2013 A/W connected matters 21 launched by the then Hon‟ble Prime Minister of India on 12 th April, 2005 throughout the country with special focus on eighteen states including the State of Jammu and Kashmir. The primary object of launching of NRHM was to provide accessible, affordable and quality health care to the rural population, especially the vulnerable section. The key features to achieve goals of the mission included making different health delivery system fully functional and accountable to the community, human resource management, community involvement, decentralization, rigorous monitoring and evaluation against standards etc etc. The mission also sought to improve service delivery by putting in place enabling system at all levels. The issue of availability of critical manpower in the rural areas was proposed to be addressed through initiatives like of a trained voluntary community Health Worker (ASHA) in every village of the 18 high focus states, additional ANM at each sub-centre, three staff nurses at the Primary Health Centres (PHC) to make them operational round the clock and additional specialists and paramedical staff at the Community Health Centres (CHC). The condition of „local residency‟ was proposed in the scheme to ensure that staffs stay at their place of postings. In the beginning of the scheme, there were several concerns noticed and action plan prepared to overcome them. For example, non-availability of doctors in the health institutions in the rural areas was one of the areas of concern for operationalization of LPA No.112/2013 A/W connected matters 22 the mission and the same was provided to be tackled by local preference.

17. Looking to the mission as a whole, it is beyond any pale of discussion that the primary aim of NRHM is to provide quality health care to the people living in remote and rural areas by providing them doctors, paramedics and other ancillary staff 24 hrs x 7 days. It is in keeping with this primary aim of the scheme, it was at more than one place in the NRHM scheme provided that the locals of the area where the health institution is located are required to be preferred.

18. The Operational Guidelines of NRHM, 2010-11 amply clarify as to what local residency criteria would mean. While dealing with ISM Doctors and Dawasaz, the guidelines provide that ISM providers and support staff should be recruited with „local residency‟ criteria and the recruitment should be against a specific health facility. These persons shall not be shifted or transferred from the place of recruitment and should be resident at the place of duty.

19. We could have delved little deep into the NRHM scheme to capture the essence of providing local residency criteria for selection and appointment of ISM doctors and paramedics and other supporting staff in the health institutions in the rural area, however, having regard to the fact that the legal position has been succinctly explained and deliberated upon by a Division Bench of LPA No.112/2013 A/W connected matters 23 this Court in Sajda Begum v. State of J&K and others, 2011 (1) SLJ 365, we have decided not to venture more. In the context of similar controversy, the Division Bench framed following questions for consideration:-

"(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."

20. The Division Bench after due deliberations held that the word "preference" used in the advertisement notification/NRHM scheme is capable of different meaning by taking colour from the purpose, context and object sought to be achieved by the scheme. Paragrph No.11 to 14 of the judgment are relevant for our purposes and, therefore, set out below:-

"11. 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.

12. 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-a`-vis others candidates. What is being contemplated is that where one or more candidates are found LPA No.112/2013 A/W connected matters 24 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.

13. 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.

14. 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."

21. In view of the interpretation placed on the word "preference" as used in the advertisement notification by the Division Bench in the authoritative pronouncement in Sajda Begum (supra), we hardly feel any necessity to go further into the issue. We are aware that as interpreted by the Supreme Court the "preference" would mean that when the claims of all candidates who are eligible are taken for consideration and when anyone or more of them are found equally positioned in terms of merit then only additional qualification/preferred qualification may be taken as a tilting factor. In some of the judgments by the Hon‟ble Supreme Court the word "preference" in the context of additional qualification has been interpreted to mean providing of some additional weightage to the higher qualification. Hon‟ble the Supreme court in the case of Secretary Andhra Pradesh Public Service Commission v. LPA No.112/2013 A/W connected matters 25 Y.V.V.R Srnivasulu, (2003) 5 SCC interpreted the word "preference" in the following manner:-

"The word "preference" in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involve, a qualifying test, a written examination and oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all round merit, if had to be adjudged in that manner only what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The rules do not provide for separate classification of those candidates or apply different norms of selection for them."

22. Be that as it may, what we can cull out from various judgments of the Supreme Court is that ordinarily and generally the preference is understood to be when two candidates have same merit, the candidate entitled to preferential treatment shall have an edge and would be selected. However, the word "preference" is capable of more than one meaning and what meaning should be given to the term "preference" would be determined by the context, purpose and object underlying the scheme of things providing preferential treatment to a particular class of candidates. We have, therefore, gone through the salient features of NRHM to find out the real meaning and import of the word "preference" used in the advertisement notification.

23. We could not agree more with the Division Bench of this Court, which decided Sajda Begum (supra). We reiterate the same view and hold that the word "preference" used in NRHM and carried in the advertisement notification would mean and include a local criteria and LPA No.112/2013 A/W connected matters 26 the local criteria would mean that in the presence of availability of eligible and suitable candidate in the block, where the health institution to be supplied with the position is located, candidate from the adjoining block or district cannot be selected notwithstanding that his merit is higher than the local candidate.

24. The argument of Mr. Z.A.Shah, learned senior counsel, that preference could be worked out only amongst the suitable candidates and a candidate to be suitable is only who figures in the District level select list is an argument apparently attractive but holds no merit. Suitable candidate would mean a candidate, who is fit to be appointed. There is clear distinction between a „suitable candidate‟ and „meritorious candidate‟. A candidate who is eligible and belongs to the block would be a candidate more suitable to be appointed in the said block as compared to a more meritorious candidate belonging to other block.

"Local criteria" is prescribed only to ensure that the doctors and paramedics remain available in the rural areas 24 hrs x 7 days. The Scheme/Mission clearly recognizes failure of the State to ensure the regularly appointed doctors in the far-flung/ rural areas putting the people of such areas to a lot of inconvenience.

25. Having regard to the nature of local criteria as understood in the scheme, there is no place for candidates, who do not belong to the district concerned to apply and seek consideration for the positions available in the District Health Society of a particular district. The local criteria has LPA No.112/2013 A/W connected matters 27 been later explained by the official respondents to mean District/Tehsil/Block/village based on availability. This is so made clear by Ministry of Health and Family Welfare, Govt. of India vide No.10(22) 2009 NRHM dated 14th May, 2010. We are aware that this communication was issued by the Govt. of India in the year 2010, whereas selection in question pertains to the year 2007. However, it will make no difference, for the Govt. Order (supra) is only clarificatory and explains the „local criteria‟, which was already referred to in NRHM Scheme promulgated in the year 2005. It would mean that it is only when a candidate in the village where the health institution is located is not available, candidate from the block can be considered. In the absence of any candidate in the block, zone of selection can be extended to Tehsil or District, as the case may be.

26. In a nutshell we are in agreement with the Writ court that in the matter of selections, which were questioned before the Writ court, the official respondents had acted contrary to and in violation of NRHM Scheme and paragraph No.4 of the advertisement notification.

27. For the foregoing discussion, we find no merit in these appeals, which do deserve dismissal. However, since these selections and appointments were made in the year 2007 i.e. more than seventeen years back, it would not be appropriate for us to disturb these selections. We are aware that these engagements are contractual, initially for a period of one year and extendable from time to time subject to the satisfactory LPA No.112/2013 A/W connected matters 28 work and conduct of the candidates. It would, therefore, be in the fitness of the things as also to better serve the ends of justice that the engagements already made are not disturbed and the writ petitioners, who are not in permanent employment of the Government and still interested, are considered for such engagements in the next year. In case there are no vacancies available to adjust the writ petitioners ( the private respondents herein), as directed above, the term of engagement of equal number of candidates, who are outsider/non-locals and last in the merit/select list be not extended. The respondents shall adhere to the „local criteria‟, as envisaged in the scheme in letter and spirit so that in future no unnecessary litigation is generated.

28. With the aforesaid observations, the appeals are disposed of.

                                                    (Rajesh Sekhri)               (Sanjeev Kumar)
                                                         Judge                           Judge
                    JAMMU
                     13.12.2024
                    Vinod,PS
                                                   Whether the order is speaking : Yes
                                                   Whether the order is reportable: Yes




Vinod Kumar
2024.12.13 16.47
I attest to the accuracy and
integrity of this document
Jammu

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