HC holds that selection is not envisage to be made distance of the Centre from the residence but is envisaged to be made at village level
JKUT (Jammu), September-14-2021-( JNF):- The Jammu & Kashmir and Ladakh High Court holds that selection is not envisaged to be made on the basis of distance of the Centre from the residence of the candidate but is envisaged to be made at village level and all candidates residing in Village irrespective of distance of their residential houses from the Sub Centre are eligible and placed on par for seeking consideration.
This significant judgment has been passed by Justice Sanjeev Kumar in a petition filed by Tahira Mehmood challenged the selection of private respondent as ANM in NHM.
In the petition, petitioner submitted that Respondent No.4 vide advertisement Notice No.NHM/Kup/HR/ 1500-1503 dated 18.09.2015, invited applications from eligible candidates for contractual hiring of services under National Health Mission J&K, for various posts including 48 posts of ANMs. Apart from indicating the requisite qualification and selection criteria for the post, the cadre of post was also specified as “village level”. The advertisement notification further provided that a candidate applying for the post must be a resident of Jammu and Kashmir and exclusively hailing from District Kupwara. The petitioner and respondent No.5 being eligible also participated in the selection process for the aforesaid post. The petitioner was shortlisted for interview and her name figured in the shortlist under Roll No.2277. The name of respondent No.5, however, did not figure in the list of candidates shortlisted for viva voce. It is the allegation of petitioner that respondent No.5 was not shortlisted because of her merit inferior to the cut-off point. At the conclusion of the interview, a provisional select list of the candidates was issued in which the name of the petitioner figured amongst the selected candidates but the respondent No.5 was not figuring in the said list. However, when the final select list was issued on 9th of May, 2018, instead of petitioner, respondent No.5 was shown selected at serial No.9. On enquiry, it is claimed, the petitioner found that though she had obtained higher merit than the respondent No.5 yet she was dropped and in her place, respondent No.5 was selected. The petitioner further claims that she has been dropped from the selection probably on the ground that she got married to one Javaid Ahmad hailing from same Medical Block, Trehgam, on 30th October, 2016 and, therefore, forfeited her right to be engaged in her parental village. The petitioner has also set up a case of her husband, namely, Javaid Ahmad staying in her parental Village Chack Hayan as Khana Damad. The grievance of the petitioner, in short, is that on the date of submission of application as also on the cut-off date mentioned in the notification, she was unmarried and her subsequent marriage cannot take away her right of engagement in the village she belonged at the time of application. In response to the writ petition, the official respondents have filed their reply. The averments of the petitioner that she was found eligible, shortlisted for viva voce and placed in the provisional select list are not refuted. It is submitted that the provisional selection of the petitioner was cancelled on the basis of objections filed by respondent No.5 alleging therein that the petitioner had got married to a person in Village Batergam and, accordingly, the respondent No.5, next in the order of merit, was selected on the basis of being resident of the village where the Sub Centre was sanctioned and located. It is further submitted by the official respondents that after receiving objections to the provisional selection of the petitioner from respondent No.5, a Committee was constituted under the order of respondent No.2 to examine and enquire into the objections. The Committee, after examining the objections, found that the petitioner had married in village Gulgam and was no more resident of Village Hayan, the place where the Sub Centre was located, and it is on the basis of the recommendations of the Committee, the provisional selection of the petitioner was cancelled.
Justice Sanjeev Kumar after hearing both the sides observed that the engagements of the nature we are dealing with are contractual in nature and any contract in restraint of marriage is void and cannot be acted upon or enforced. Having held thus, Court would like to emphasize that such candidate who gets engagement on the ground of being a resident of the village concerned, if subsequently gets married to a person outside the village, must give an undertaking to his/her employer that he/she would be available 24×7 for performance of duties and that his/her marriage outside the village would not come in his/her way in due discharge of duties.
Justice Sanjeev Kumar further observed that the contention of counsel for the respondent No.5 that her house is nearer to the Sub Centre as compared to the house of the petitioner is also devoid of merit. The selection is not envisaged to be made on the basis of distance of the Centre from the residence of the candidate but is envisaged to be made at village level. All candidates residing in Village Chack Hayan irrespective of the distance of their residential houses from the Sub Centre are eligible and placed on par for seeking consideration.
With these observations, Court allowed the petition and ordered thet engagement of respondents No5 is quashed and also hold the petitioner is held entitled to engagement as ANM/FMPHW in Sub Centre, Chack Hayan, with effect from the date respondent No.5 was so engaged with all consequential benefits minus the monetary benefits. The engagement of petitioner shall, however, be subject to the submission of undertaking as aforesaid with a further stipulation that in case of breach of undertaking, the petitioner may lose her contractual engagement. Let the respondent No.4 pass appropriate orders in this regard within a period of four weeks from the date a copy of this order is furnished to him. JNF