Noorjahan.T.D vs National Health Mission
2022 Latest Caselaw 9828 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                        WP(C) NO. 25472 OF 2022
PETITIONER/S:

     1     NOORJAHAN.T.D.,
           AGED 29 YEARS
           D/O ABDUL KADER, W/O. MUHAMMED ASHARAF,
           PILATHODAMKANDI HOUSE, PARAPPARA, KIZHAKOTH P.O,
           KOZHIKODE DISTRICT ,
           PIN : 673572.

     2     AISWARYA K.,
           AGED 30 YEARS, W/O, BABEESH, EDAVALATH KANDIMEETHAL
           PARANNUR.P.O., NARIKKUNI (VIA) KOZHIKODE, PIN- 673585.

     3     STEFFI PAULOSE, AGED 33 YEARS, D/O,PAULOSE C. J
           CHIRAPPURATHE HOUSE, MAIKAVE P.O, THAMARASSERY
           (VIA),KOZHIKODE PIN: 673573.

     4     ATHULYA PRAKASH O.K,
           AGED 31 YEARS, D/O, PRAKASHAN KOTTARAKUNNUMAL HOUSE,
           NOCHAD P.O NADUVANNUR(VIA), KOZHIKODE PIN:673614.

     5     ANJU.V. ,
           AGED 28 YEARS W/O, NIKHIL JITH, VAALIYIL HOUSE,
           PAYYOLI P.O, PAYYOLI,KOZHIKODE PIN: 673522.

     6     MUHSINA K P ,
           AGED 29 YEARS W/O, JISHAD T,
           PANICHIYIL HOUSE, PALATH P.O KAKKODI(VIA),
           KOZHIKODE, 673611.

     7     RINJU RAJAN,
           AGED 27 YEARS, W/O, JINEESH. P.
           CHEMPODAN POYIL, KOOTHALI, KOZHIKODE, PIN- 673525.

     8     JAINI. J.,
           AGED 34 YEARS, W/ O, JITHEESH K. V.,
           RAJASREE HOUSE, IRINGAL P.O, MELADI
           KOYILANDI, KOZHIKODE 673521.

     9     SWATHI K,
           AGED 28 YEARS, W/O. SUMESH M, CHEMPATTAKANDIYIL HOUSE,
           PUTHUPPANAM P.O, VATAKARA, KOZHIKODE, PIN - 673105.
 WP(C) NO. 25472 OF 2022        2

              BY ADVS.
              SHAMEENA SALAHUDHEEN
              O.M.SHALINA
              T.V.VINU
              S.SIMY
              JISEMOL THOMAS

RESPONDENT/S:

      1       NATIONAL HEALTH MISSION,
              REPRESENTED BY ITS DIRECTOR MINISTRY OF HEALTH
              AND FAMILY WELFARE,
              NEW DELHI-110011.

      2       NATIONAL HEALTH MISSION
              REP BY THE STATE MISSION DIRECTOR (NHM)
              GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035.

      3       THE STATE MISSION DIRECTOR(NHM),
              GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695035.

      4       THE DISTRICT PROGRAMME MANAGER,
              NATIONAL HEALTH MISSION, CIVIL STATION, KOZHIKODE-673020.




              SRI.M AJAY, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 25472 OF 2022                    3



                                      JUDGMENT

This writ petition is filed seeking the following reliefs:

i) to issue a writ of mandamus, or such other appropriate writ, order or direction, directing the respondents to issue appointment orders to the petitioners.

ii) declare that the petitioners are entitled to be appointed as Midlevel Service providers in Kozhikode District in the existing vacancies.

2. The petitioners contend that the 3rd respondent invited

applications from eligible candidates for appointment to the post of

Midlevel Service Provider (Staff nurse) under the National Health Mission

as is evident from Ext.P1 notification. The petitioners are residents of

Kozhikode who responded to the said notification. They appeared for the

written test and interview and their names have been included in Ex.P2

ranked list. The petitioners assert that the ranked list is valid for a

period of two years. Their grievance is that even prior to the expiration

of the ranked list, the 3rd respondent issued Ext.P3 notification calling

for fresh applications. They contend that Ext.P4 order directed the

candidates included in the ranked list to appear for certificate verification

and in tune with the same, the petitioners appeared before the said

authority. The respondents in the meanwhile proceeded with the

process commenced as per Ext.P3 and issued Ext.P5 ranked list. It is

stated that persons similarly placed as the petitioners had approached

this Court challenging the notification issued during the pendency of the

ranked list and this Court has issued Ext.P6 interim order. It is in the

afore circumstances that this writ petition is filed seeking intervention.

3. A detailed counter affidavit has been filed by respondents 2 to

4, controverting the contentions.

4. I find that persons similarly placed as the petitioners and

residents of other districts had approached this Court seeking identical

reliefs. The interim order granted by this Court in the said writ petition

has been placed on record as Ext.P6 in the writ petition. This Court,

after exhaustively considering the entire aspects, have dismissed the writ

petition by judgment dated 24.8.2022 in W.P.(C) No. 9934/2022 and

connected cases. The learned Single Judge has concluded as follows in

paragraph No. 10 of the judgment:

10.Having considered the contentions advanced and in view of the fact that the selection conducted pursuant to Exhibit P1 was only for appointment on a contract basis for 1603 posts and since it is not disputed that more than that number of advices have already been made from the lists, I am of the opinion that the petitioners, who stand included in the list would have no right to contend that they should be appointed from the list. The notification specified the number of vacancies available for contractual appointments and further specified that the NHM reserves the right to fill up or not to fill up the posts advertised. It

is trite law that participation in a selection process and the resultant inclusion in a ranked list will not confer any right on the candidates to insist that they are entitled for appointment. The decision of the Apex Court in Balu S.S and another v. State of Kerala and others [2009 KHC 85] and of a Division Bench of this Court in Vinod Kumar M.K. v. State of Kerala and others [2022 (2) KHC 664] are two decisions on the point. A selection conducted and a ranked list prepared for filling up specified number of vacancies normally ceases to be operative when the notified vacancies are filled up from the list. The position would be different only in cases where the statutory Rules or the Rules of Procedure applicable provide for a period of validity of the lists prepared and state that vacancies arising during the validity of the list shall be filled up from the said list. In the instant case, the notification was issued for making contractual appointments to the specified vacancies. The notification did not contain a provision with regard to validity to the list. The right, if any, of the petitioners arise only from the stipulation in certain of the ranked lists that they would remain in force for two years. However, in view of the fact that the appointing authority contends that there was no such stipulation or intention in the conduct of the selection and since only some of the lists contain the said stipulation, I am inclined to accept the contention that the said stipulation was the result of an error or mistake committed by the District Programme Managers. If that be so, the reasons stated by the respondents for conducting a fresh selection cannot be found fault with. Those of the petitioners, who are eligible and qualified would be entitled to submit their applications in pursuance to the later notifications as well. Since it is the specific case of the 2nd respondent that there was never any intention to keep the list alive to fill up more than the number of vacancies which had been notified, I am of the opinion that the prayers as sought for cannot be granted. The writ petitions fail and the same are accordingly dismissed.

5. The observations of the learned Single Judge would apply on

all fours insofar as the issues raised by the petitioners in this writ

petition are concerned. Furthermore, the contentions advanced by the

petitioners cannot be accepted in view of the law laid down by a

Constitution Bench of the Apex Court in Sankaran Dash v. Union of

India [(1991) 3 SCC 47], wherein in paragraph No.7 of the judgment, it

was held as follows:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

In that view of the matter, the petitioners have not made out any

case for interference.

This writ petition will stand dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE sru

APPENDIX OF WP(C) 25472/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT VIDE NO. NHM/ADMN 1/4011/2019/SPMSU DATED 24.12.2020.

Exhibit P2 A TRUE COPY OF THE RANK LIST DATED 19.2.2021 PUBLISHED BY THE 4TH RESPONDENT.

Exhibit P3 A TRUE COPY OF THE NOTIFICATION NO. 19-20 NHM/ADMN 1/4011/2019/SPMSU DATED 10.3.2022.

Exhibit P4 A TRUE COPY OF ORDER NO. DPMSU- 21-22 KKD/1861/CLERK CUM DEO/2019/DPMSU DATED 10.6.2022.

Exhibit P5 A TRUE COPY OF THE RANK LIST PUBLISHED BY THE 3RD RESPONDENT DATED 21.6.2022.

Exhibit P6 A TRUE COPY OF THE INTERIM ORDER DATED 23.3.2022 IN W.PO 9934 /2022.

RESPONDENTS EXHIBITS : NIL