STATE TIMES NEWS
JAMMU: A Division Bench of state High Court Comprising Chief Justice N Paul Vasanthakumar and Justice Tashi Rabstan Saturday allowed the appeal filed by Showkat Ahmad Wani against the order of the Writ Court dated 08.06.2015 seeking appointment on the basis of merit secured by him for the post of Medical Officer, Indian System of Medicines (ISM) under RCH-II of NRHM scheme.
The Division bench allowed the appeal with a direction to the official respondents to accommodate the appellant in any vacant post, if any available and if it is not possible to accommodate the appellant in any vacant post, the Nisar Ahmad Mir shall be replaced by the appellant as the appellant is more meritorious than the Nisar Ahmad Mir.
The said exercise is directed to be commenced and completed by the official respondents within four weeks.
The case of the appellant was that respondent No.4 vide Notification No. DCA/09 of 2007 dated 19.10.2007 invited applications from the eligible candidates for appointment on contractual basis to the post of Medical officer, ISM under RCH-II of National Rural Health Mission in different blocks of District Kulgam. The total number of posts advertised was 30. On 03.11.2007 the said notification was superseded and a further notification was issued on 15.11.2007 based on which the appellant applied. The application of the appellant was entertained and the appellant was subjected to interview by the selection Committee of the respondents. Interviews were held of the eligible candidates in the month of March 2008 and on the basis of the performance in the interview and other relevant factors, a merit list/select list was prepared and the appellant was shown to have secured 59.60 marks/points whereas the respondent have less marks but the appointment to appellant is denied appointment solely on the basis of invoking the clause mentioned in the advertisement notice for giving preference to the residents of the Block where the health institution is located.
Division Bench after considering the arguments both the sides observed that it will be in violation of Article 16(2) of the Constitution, which prohibits appointment based on residential qualification or place of birth. Thus the learned senior counsel appearing for the appellant is justified in contending that the appellant, who is meritorious having secured 59.60 marks, has to be given the appointment when compared to the appointment given to the private respondent who has secured only 54.60 marks.
Division Bench further observed that respondent is continuing in service after giving him appointment. In such circumstances, for molding the relief, we are of the view that appeal can be allowed with a direction to the official respondents to accommodate the appellant in any vacant post, if any available and if it is not possible to accommodate the appellant in any vacant post, the private respondent shall be replaced by the appellant as the appellant is more meritorious than the private respondent.
The said exercise is directed to be commenced and completed by the official respondents within four weeks.