HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No. 668/2018 Pronounced on 09.05.2025 1.Bilal Ahmad Khan S/O Mohd Skinder Khan R/O,Bogam District Kulgam Kashmir. 2.Reyaz Ahmad Mir S/O Ab.Rashid Mir R/O,Tarigam District Kulgam, Kashmir ….Petitioner/Appellant(s) Through:- Mr. P. S. Ahmad, Advocate V/s 1.State of J & K through Commissioner cum Secretary to Govt, Health & Medical Education Department, Civil Secretariat Srinagar Kmr. 2 Director NRHM (National Rural Health Mission) Srinagar. 3 Dy. Commissioner Kulgam (Chairman District Health Society, National Rural Health Mission Scheme. 4. Chief Medical Officer, Kulgam Kmr. 5. Mohd Yasin Bhat S/O Ab.Ahmad Bhat R/O Sursona Kulgam Kashmir 6. Sameer Ahmad Bhat S/O Bashir Ahmad Bhat R/O Nursingpora Kulgam. ;…..Respondent(s) Through:- Mr. Sajad Ashraf, GA CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 1. The present writ petition is filed by the petitioners seeking quashing of the appointment of the private respondents as Lab Technicians under NRHM vide selection list bearing No. NRHM/KGM/10-79-200 dated 2 SWP No. 668 of 2018 08.01.2011 as well as Order No. NHM/KGM/671-78 dated 27.01.2018 whereby their claim for their absorption in the department as Lab Technician has been rejected. 2 The Office of the Convenor District Health Society, Kulgam under the National Rural Health Mission (NRHM) through Notification No. DIPJK-7206 dated 28.09.2010, advertised several contractual positions including seven posts of Laboratory Assistants/Technicians in Block D.H. Pora, Yaripora, Kulgam, Qaimoh, and Quazigund. The petitioners, being qualified with Matriculation and a Diploma in Medical Laboratory Technology (DMLT) from the Institute of Public Health & Hygiene (IPH&H), New Delhi, applied for these posts. Upon verification, the respondents found the petitioners eligible and called them for interviews via Notification No. NRHM/KGM/1058 dated 27.11.2010. This notification stated that the selection process would follow the local criteria guidelines under NRHM. The petitioners claim that they performed well in the interviews and expected a fair selection based on merit and eligibility. 3, The petitioners are aggrieved of the selection of private respondents to the position of Lab Assistant, on the ground that the selection process should have prioritized local candidates in accordance with the guidelines set by the National Rural Health Mission Scheme (NRHM). The petitioners had previously challenged the appointments made to non-local individuals in their writ petition, being SWP No. 280/2011, which came to be disposed of by the Court vide order dated 30.11.2017, with a direction 3 SWP No. 668 of 2018 to the respondents to accord consideration to the petitioners under NRHM Scheme for the post of Lab Assistant by passing a speaking order in this regard. 4. In pursuance of the aforesaid order dated 30.11.2017 passed by this Court, the case of the petitioners was considered by the respondents and a Considered order bearing No. NHM/KGM/671-78 dated 27.01.2018 has been passed by the Convenor, District Health Society Kulgam, wherein the claim of the petitioners for their absorption in the department as Lab Technician has been rejected. 5. Feeling aggrieved of the consideration order dated 27.01.2018, petitioners have filed the instant petition. 6. Learned counsel for the petitioners submits that the petitioners deserve their selection being the local candidates as per the advertisement and criteria fixed by the respondents. It is stated that the respondents have violated the rules and in flagrant violation of the constitutional provisions, selection the private respondents for the post of lab. Technicians under NRHM Scheme. 7. Per contra, the respondents have vehemently opposed the reliefs sought in the present petition and have filed their objections/counter affidavit accordingly. According to the respondents, the selection process was conducted fairly and transparently, with candidates evaluated based on three key factors: academic merit, locality, and interview performance. The recruitment process for candidates from the Medical Block, Kulgam involved a composite evaluation, where academic merit was given 80 points and interview performance was allotted 20 points, in line with the 4 SWP No. 668 of 2018 criteria approved by the competent authority. The petitioners were assessed on this combined scale, and the results placed them in the waiting list, petitioner No. 1 ranked 16th with 60.82 points, while petitioner No. 2 ranked 9th with 66.96 points. The respondents also emphasize that the cutoff score for the last selected candidate was 71.493 points, which means that both petitioners did not make it onto the final selection list due to their lower scores. The stand taken by the respondents is that there was no violation of any rules or constitutional provisions, as the selection process adhered to the established and transparent system, which fairly evaluated all candidates based on the predetermined criteria. Therefore, the respondents assert that the petitioners are not entitled to selection, given that they did not meet the merit requirements. 8. Heard learned counsel for the parties and perused the material on record. 9. The grievance of the petitioners that selection has been made in contravention of the guidelines of the National Rural Health Mission Scheme. ((NRHM). According to the petitioners, they were local candidates, and the respondents were legally obliged to appoint them based on the advertisement and the criteria set by the respondents. 10. The contention of the petitioners is that selection of candidates should be as per local criteria guidelines as per NRHM, the respondents had to select them as per their residence at the place of posting which is mandatory. 5 SWP No. 668 of 2018 11. The State Health Society, J&K in their meeting held on 22nd May 2010 has held that “that for selection of ANM/FMPHW ‘village’ shall be considered as local area whereas for all other posts excluding ANM/FMPHW, ‘Block’ shall be considered as local area. In case the suitable, candidate is not available in the Village/Block , the selection can be made from the adjoining Village/Block within the District for recorded reasons by the Selection Committee” and whereas the private respondents were thus, selected on the basis of merit after availing the local criteria of block Kulgam. 12. This contention of the petitioners is misplaced and has no foundation, more particularly, when they have gladly and voluntarily participated in the selection process and appeared in the written test without any grouse and after having appeared in the written test, the petitioners estopped under law to question the same, at this belated stage when the petitioners could not make the grade. Thus, the petitioners are stopped under law to question the procedure of selection after having subjected themselves to the said procedure and allowed their merit, eligibility and suitability to be assessed. 13. The Supreme Court in case titled 'Dhananjay Malik and others v. State of Uttaranchal and others’, reported in (2008) 4 SCC l71, in Para 7 has observed as under:- “7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with 6 SWP No. 668 of 2018 regard to requisite educational qualifications were contrary to the Rules.” 14. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Supreme Court which held that:- "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because that did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shuklal it has been clearly laiddown by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 18. In the case of Ramesh Chandra Shah und others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of Hon'ble Supreme Court, following the earlier decisions, held as under:- "In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with fullknowledge that the recruitment was being made under the General Rules, the respondents had waived their right to 7 SWP No. 668 of 2018 question the advertisement orthe methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 15. From a bare perusal of the record and the submission advanced in the instant case, it has come to fore that the petitioners participated in the selection process without any demur. The petitioners after adhering to the terms and conditions of the process of selection have submitted themselves to the process and have never protested against the selection process prior to appearing in the written test. The petitioners consequent to their having qualified the written test, participates in the interview and after their participation, their merit, eligibility and suitability was assessed and after having failed in the test, the petitioners are challenging the criteria for the selection in question. Thus, they are now stopped under law to question the selection process after having participated in the selection process. 16. Viewed thus, for what has been observed, considered and analysed hereinabove, coupled with the settled legal position, I do not find any merit in the instant petition, the same is, accordingly, dismissed. (Sindhu Sharma) Judge JAMMU 09.05.2025 BIR Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No BIR BAHADUR SINGH 2025.05.21 12:40 I attest to the accuracy and integrity of this document