Jammu & Kashmir High Court
Dr. Mohd. Imran Khan vs State Of J&K And Ors on 28 December, 2021
THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 1518/2017
IA No. 01/2017 &
IA No. 01/2018
Pronounced on : 28.12.2021
Dr. Mohd. Imran Khan
.....Petitioner/Appellant(s)
Through:- Mr. K. K. Pathan, Advocate
V/s
State of J&K and ors.
......Respondent(s)
Through:- Mr. H. A. Siddiqui, Sr. AAG
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The Mission Director, National Health Mission issued
Advertisement Notice No. SHS/NHM/J&K/J/6590-93 dated 01.08.2016 for
hiring of services of Medical Officers (AYUSH) under National Health
Mission. The applications were invited for the vacant posts in the various
health institutions in the State and under Rashtriya Bal Swasthya Karyakram
(RBSK) scheme and amongst others, one post was advertised for district
Poonch in PHC Sawjian. The petitioner possesses the requisite qualification of
Bachelor in AYUSH and being eligible also applied for the said post in PHC
Sawjian in District Poonch.
02. Petitioner seeks quashing of corrigendum No. SHS/NHM/J&K/3488-
94 dated 29.05.2017 published in the newspaper so far as it pertains to
withdrawal of the earlier corrigendum No. SHS/NHM/J&K/9200-05 dated
03.09.2016 and also directions to the respondents to complete the selection
process for the post of Medical Officer in PHC Bandi Chachain on contractual
basis.
03. It appears that respondent No. 3 issued corrigendum on 03.09.2016
regarding advertisement notice for hiring of Medical Officers in Poonch
instead of PHC Sawjian, it would be read as location as PHC, Bandi Chachain
in pursuance to the notice dated 01.08.2016. Respondent No. 3 again vide
another corrigendum/Addendum regarding the same advertisement Notice
withdrawing the earlier corrigendum dated 03.09.2016 vide notice dated
29.05.2017.
04. The petitioner is aggrieved of this withdrawal of the corrigendum
dated 03.09.2016 as the same is not sustainable in law. According to the
petitioner, there is no vacant post of Medical Officer at PHC Sawjian. The only
vacant post lying is at PHC Bandi Chachain and therefore, respondents are
under legal obligation to complete selection proves for the post of Medical
Officer at PHC Bandi Chachain. The purpose of the National Rural Health
Mission is to ensure health facility to remote and far flung areas, therefore,
same should have been filled by completing selection proves for PHC Bandi
Chachain but this has been deliberately denied y the respondents for malafide
reasons. It is also stated that accordingly to the petitioner, Dr. Mohd. Sharif
Qazmi was terminated from service at PHC PHC Bandi Chachain due to
overage, therefore, the only post that is lying vacant is at PHC Bandi Chachain.
05. The respondents in their objections have vehemently denied the
averments of the petitioner. It is submitted that their office had advertised the
post initially for PHC Sawjian but there was a communication from the office
of Chief Medical Officer, Poonch dated 26.06.2016 which informed that the
post of Medical Officer (AYUSH) at PHC Sawjian already filled and therefore,
there was no vacancy available there. However, one post of Medical Officer
(AYUSH) was vacant at PHC Bandi Chachain, therefore, it was requested to
read vacant post of Medical Officer (AYUSH) at PHC Bandi Chachain instead
of PHC Sawjian. Subsequently, the Chief Medical Officer, Poonch send
another communication on 03.09.2016 stating that one vacant post of Medical
Officer (AYUSH) was advertised for PHC Bandi Chachain and vide
communication dated 20.05.2017, it was informed that PHC Bandi Chachain
is located in rural areas with more than 30000 population where there was non-
availability of Medical Officer. Therefore, Dr. Bubishan Kumar, Medical
Officer (AYUSH) under NHM was providing his services from 2012 till date.
After rationalization of Human Resource at PHC Bandi Chachain, it was
requested that vacancy of Medical Officer (AYUSH) was available at PHC
Sawjian which was initially advised to be considered for advertisement,
accordingly, the corrigendum dated 03.09.2016 was withdrawn. The entire
selection process was stayed by this Court vide order dated 20.06.2017 as a
result of which people of the area are suffering on account of non-availability
of health care services.
06. The respondents have issued advertisement for hiring of Medical
Officers under NHM under the scheme of Rashtriya Bal Swasthya Karyakram
(RBSK), accordingly, posts under this scheme are purely contractual and shall
be hired initially for a period of eleven months or 31 st of March, 2017,
whichever is earlier and may be extended on performance basis or continuation
of the scheme. The stay of the post of Medical Officer at PHC Sawjian
remains till date. The petitioner has been unable to prove that there is any
ulterior or malafide reasons for the corrigendum being issued, the respondents
have explained that with the rationalization of the Human Resources and filling
of the post at PHC Bandi Chachain and in terms of office communication of
Chief Medical Officer, corrigendum dated 03.09.2016 stands withdrawn and
post remain that of the initially advertised.
07. This scheme being for the benefit of the public and public interest is
being affected due to the non-selection and appointment of the Medical
Officer. This apart, the petitioner having also applied as per his own averments
for the selection process at PHC Sawjian cannot be said to be prejudice by the
withdrawal of the corrigendum dated 03.09.2016.
08. In view of the aforesaid, there is no merit in this petition and the same is,
accordingly, dismissed alongwith connected IAs.
(Sindhu Sharma)
Judge
JAMMU
28 .12.2021
SUNIL-II
Whether the order is speaking : Yes
Whether the order is reportable : Yes/No
RAM MURTI
2021.12.31 13:16
I attest to the accuracy and
integrity of this document
