Jammu & Kashmir High Court - Srinagar Bench
Tahira Mehmood vs State Of J&K & Ors on 14 September, 2021
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 09.09.2021
Pronounced on:14.09.2021
SWP No.1095/2018
TAHIRA MEHMOOD ...PETITIONER(S)
Through: Mr. S. R. Khawar, Advocate.
Vs.
STATE OF J&K & ORS. ....RESPONDENT(S)
Through: Mr. Shah Aamir, AAG.
Mr. Hakim Suhail Ishtiyaq, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1) 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
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shortlisted for viva voce. It is the allegation of petitioner that respondent
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No.5 was not shortlisted because of her merit inferior to the cut-off point.
On conclusion of process of interview, provisional select list of the
candidates was issued in which 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 9 th of May, 2018,
instead of petitioner, respondent No.5 was shown selected at serial No.9.
2) 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.
3) 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
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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.
4) The respondent No.5 has filed separate objections. Besides toeing
the line of official respondents, respondent No.5 has also explained as to
how she came to be shortlisted and interviewed by the official
respondents. It is submitted that when shortlist was issued and her name
did not figure therein, she made a representation to the Deputy
Commissioner, Kupwara, contending therein that despite being more
meritorious she had been arbitrarily excluded from the shortlist prepared
for interview. The matter was considered and respondent No.4 issued a
further shortlist and the respondent No.5 was also called for interview on
5th of May, 2017, which was held in Dak Bungalow, Kupwara. The
respondent No.5 has also placed on record separate notification issued in
this behalf by respondent No.4
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5) During the course of arguments, the petitioner also contended that
during the pendency of this petition, even the respondent No.5 is married
out of village and, therefore, she also now sails in the same boat.
6) Having heard learned counsel for the parties and perused record, I
am of the view that the petitioner, admittedly, being more meritorious
than the respondent No.5, cannot be denied appointment on the ground
that during the currency of selection process she got married to Mr. Javaid
Ahmad resident of Village Gulgam and, therefore, ceased to be the
resident of Village Chack Hayan, the Village where Sub Centre, for which
petitioner and respondent No.5 had applied, is located. From a perusal of
advertisement notification, it is abundantly clear that the post of
ANM/FMPHW existing in different Sub Centres including Sub Centre
Chack Hayan was a village cadre post and, therefore, as per NHM
guidelines was required to be made at village level.
7) Admittedly, on the date the advertisement notification was issued
and even on the cutoff date fixed for submission of application forms,
both petitioner and respondent No.5 were residents of Village Chack
Hayan and, therefore, eligible for consideration. In the absence of any
stipulation in the advertisement notification or in the NHM guidelines
governing such engagement providing that the candidate selected for
engagement must be the resident of the village concerned at the time of
engagement, the engagement to the selected candidate cannot be denied
on the ground that said candidate was though eligible in all respects when
he/she applied but was subsequently rendered ineligible because of his/her
marriage outside the village. It is trite law that unless contrary is provided,
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a candidate seeking selection must fulfill all eligibility requirements on
the date of advertisement notification or on the last date fixed for
submission of application forms. If the petitioner was eligible in all
respects and she was indeed eligible as this fact is not denied by the
respondents, she was rightly allowed to participate in the selection process
and now when she has made it to the selection list on the basis of her
merit, she cannot be denied engagement on the ground that she is now
married outside the village. If contention of the respondents is accepted,
then they would be entitled to cancel the engagement even in a case where
a candidate legitimately engaged gets married, subsequently, to a person
who may not be a resident of the village concerned. Such cancellation
would be void being in restraint of marriage. 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, I 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 24x7 for
performance of duties and that his/her marriage outside the village would
not come in his/her way in due discharge of duties.
8) The contention of learned 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
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residing in Village Chack Hayan irrespective of distance of their
residential houses from the Sub Centre are eligible and placed on par for
seeking consideration.
9) Viewed thus, I find substance in this petition and the same is,
accordingly allowed. The selection and engagement of respondent No.5
which was stayed by this Court on 23 rd of May, 2018, is quashed. 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.
10) Disposed of as above.
(Sanjeev Kumar)
Judge
Srinagar
14.09.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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