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2026 DAILYLAW 2176 (JK)

Ashish Paul Khajuria v. State of J&K

2026-02-20

Sanjay Dhar

body2026
JUDGMENT : SANJAY DHA R, J. 1) The petitioner through the medium of the present petition has challenged order dated 01.06.2018 passed by respondent No. 2 whereby appeal/representation of the petitioner against the appointment of private respondent No. 5 to the post of OT Tech on contractual basis has been rejected. Challenge has also been thrown to selection and appointment of private respondent No. 5 against the post of OT Tech in CHC Billawar under National Health Mission pursuant to Advertisement Notice dated 22.07.2017 with a direction upon the official respondents to consider, select and appoint the petitioner in his place. 2) Briefly stated the facts giving rise to filing of this writ petition, are that vide advertisement notice No. 4 of 2017- 18 dated 22.07.2017 respondent No. 3 invited applications inter alia for the post of OT Tech on contractual basis for the year 2017-2018. Both the petitioner as well as private respondent No. 5 being eligible responded to the said advertisement notice. After undertaking the selection process, respondent No. 3 issued provisional select list vide notification dated 17.02.2018. As per the said provisional select list, name of private respondent No. 5 figured as selected candidate whereas, name of the petitioner figured in the wait list. 3) The petitioner challenged the selection list vide writ petition bearing No. SWP no. 309/2018 contending therein that as per the advertisement notice only the candidates hailing from Block Billawar could have applied for the post of OT Tech but private respondent No. 5, who belongs to Block Nagrota Gujroo being ineligible, could not have been selected. This Court vide order dated 27.02.2018 at the threshold itself disposed of the writ petition directing respondent No. 2–Chairman Health Society, Kathua to consider the memorandum/revision/ appeal that may be filed by the petitioner and pass an appropriate order after hearing the affected parties. 4) Pursuant to the aforesaid directions of this Court, the petitioner submitted a revision/appeal/memorandum before respondent No. 2. Vide impugned order dated 01.06.2018, respondent No. 2 has rejected the appeal/revision/memorandum of the petitioner. 5) The petitioner has challenged the impugned order passed by respondent No. 2 and also the appointment of private respondent No. 5 as OT Tech in CHC Billawar on the ground that the said respondent does not belong to Block Billawar, as such, he was not eligible to participate in the selection process. 5) The petitioner has challenged the impugned order passed by respondent No. 2 and also the appointment of private respondent No. 5 as OT Tech in CHC Billawar on the ground that the said respondent does not belong to Block Billawar, as such, he was not eligible to participate in the selection process. It has been contended that respondent No. 2 while passing the impugned order has not appreciated this contention of the petitioner even though he had placed on record documents to show that the village wherein private respondent No. 5 resides falls in block Nagrota Gujroo and not in Block Billawar. It has been further contended that in the Advertisement Notice dated 22.07.2017, it is clearly indicated that only the applicants from the concerned block are eligible to apply, as such private respondent No. 5 could not have been selected. 6) The official respondents have contested the writ petition by filing their reply. So far as factual aspects of the case are concerned, they have not disputed the same. The stand taken by the official respondents is that private respondent No. 5 is more meritorious than the petitioner and that selection was made from amongst the candidates belonging to ‘ Medical Block ’ and not ‘ Revenue Block ’ . It has been contended that both petitioner as well as respondent No. 5 are residents of medical block Billawar, therefore, it cannot be stated that private respondent No. 5 was ineligible to participate in the selection process. 7) I have heard learned counsel for the parties and perused record of the case. 8) As already stated, the factual aspects of the case are not in dispute. It is also not in dispute that during selection process, private respondent No. 5 had secured higher merit than that of the petitioner. The only issue that is required to be determined is as to whether selection was to be made on the basis of ‘Revenue Block’ or ‘Medical Block’ 9) If we have a look at the Advertisement Notice dated 22.07.2017, it is mentioned therein that selection of OT Tech would be for CHC Billawar and applications from only the concerned block shall be entertained. In the advertisement notice, it is not specified whether the word ‘Block’ mentioned therein refers to ‘Medical Block’ or ‘ Revenue Block, though in the same advertisement notice, in respect of posts of FMPHW, it is indicated that application forms from only the concerned medical block shall be entertained. The word ‘ Medical Block ’ is missing in the case of the posts of OT Tech for CHC Billawar. 10) The contention of the petitioner is that because word ‘Medical Block’ is missing in case of the post of OT Tech, therefore, it has to be inferred that the word ‘Block’ has reference to ‘Revenue Block’ and not ‘Medical Block’ On the other hand, learned counsel for the respondents has contended that whole selection has been made by taking the ‘Medical Block’ as the basis, therefore, even in the absence of specific mention of ‘Medical Block’ in respect of post of OT Tech, it has to be presumed that the selection was to be made on the basis of ‘Medical Block’ 11) The post of OT Tech, which is subject matter of the present writ petition, was to be filled up in terms of the guidelines of National Health Mission. As per the clarification regarding “local criteria” for hiring of contractual staff under the said scheme as contained in communication dated 11.09.2013, a copy whereof has been placed on record by the learned counsel for the respondents, it has been provided that for all categories of medical staff, the candidates residing within the villages catered by respective health institutions are to be preferred subject to their availability and merit. In the said communication it has been clarified that if a particular health institution is catering one village, then the candidates of that very village are to be preferred but in case a particular health institution is catering two or three villages then the candidates of all those villages are to be preferred. From this it can be inferred that basis for giving preference to local candidates has reference to the area, which is being catered by the health institution for which selection is to be made. 12) In the present case, the post of OT Tech was advertised for CHC Billawar. The said health institution caters to the residents of medical block Billawar. Thus, all the eligible candidates of medical block, Billawar had to be considered for the said post. 12) In the present case, the post of OT Tech was advertised for CHC Billawar. The said health institution caters to the residents of medical block Billawar. Thus, all the eligible candidates of medical block, Billawar had to be considered for the said post. The emphasis of the scheme is upon hiring of manpower from the area which is being catered by the health institution for which the post is advertised. Therefore, the residence of the candidates in an area falling under a particular revenue block or tehsil or district is not determinative of selection criteria. Only the residents of the area that is being catered by the concerned health institution would be eligible for selection relating to the posts for said health institution. 13) In view of the above position, the respondents in considering the petitioner and private respondent No. 5, both of whom reside in Medical Block, Billawar for selection to the post of OT Tech for CHC Billawar have rightly taken the ‘Medical Block’ as the basis of selection. Once private respondent No. 5 was found to be more meritorious than the petitioner, he could not have been denied appointment even though he may be a resident of the revenue block Billawar. 14) Apart from the above, even if it is assumed that there is an ambiguity in the advertisement notice as to whether the basis for selection is a ‘Revenue Block’ or a ‘ Medical Block’ , the action of the official respondents in interpreting the local criteria as ‘Medical Block’ instead of ‘Revenue Block’ cannot be interfered with by this Court in the facts and circumstances of the case. This is so because the respondents have selected more meritorious candidate, as such, it cannot not be stated that they had any oblique motive in selecting private respondent No. 5 so as to given undue benefit to a less deserving candidate. 15) There is yet another reason for upholding the appointment of respondent No. 5. He has been appointed to the post of OT Tech in the year 2018 and his appointment has not been stayed by this Court. The same has been made subject to outcome of this petition. Therefore, respondent No. 5 has been working as OT Tech for the last more than seven years. He has been appointed to the post of OT Tech in the year 2018 and his appointment has not been stayed by this Court. The same has been made subject to outcome of this petition. Therefore, respondent No. 5 has been working as OT Tech for the last more than seven years. It would be highly inequitable to disturb his appointment at this stage after a lapse of more than seven years. 16) For what has been discussed hereinbefore, I do not find any ground to interfere with the impugned order passed by respondent No. 2 nor do I find any reason to quash the selection and appointment of private respondent No. 5. 17) The writ petition lacks merit and is, accordingly dismissed.