Srinagar: The High Court of J&K and Ladakh on Wednesday ruled that an ineligible candidate cannot, by holding a post on contractual basis for some time, claim waiver of eligibility qualification and dispensation of regular selection process to be conducted in consonance with the Constitution.
The ruling culminated in the dismissal of an appeal by a division bench comprising Justices Sanjeev Kumar and Sanjay Parihar in the case titled Hamida Jan vs Sher-e-Kashmir University of Agricultural Sciences & Technology (SKUAST), Kashmir.
The appellant, a female candidate, was found devoid of required qualifications for appointment as nurse in the University although she had worked on the post on contractual basis for one decade.
Vide an advertisement notification of 2015, the SKUAST, Kashmir, initiated the process for recruitment of a female nurse on regular temporary basis through direct recruitment.
The eligibility prescribed for the post was 10+2 (Science Group) with diploma in nursing and three years’ experience in nursing from a government hospital/recognized nursing home.
The appellant was not possessing any diploma in nursing, but submitted her application form on the strength of a certificate of 2019, purportedly issued in her favour by the Principal, Government Medical College, Srinagar. It certified that the FMPHW (Diploma) was equivalent to Diploma in Nursing.
Prior to the initiation of the selection process, the appellant had been engaged as a female nurse in the University on monthly remuneration of Rs 7600.
A writ petition, was again filed by the appellant wherein the court directed the University to maintain status quo with regard to the appellant and consider her case for releasing her legitimately earned withheld salary.
It also directed the University to allow the petitioner to participate in the selection process along with other eligible candidates and consider the scope of giving weightage to her services in terms of the law and the rules on the subject.
On the strength of the order, the appellant was allowed to participate in the selection process.
The appellant moved another writ petition wherein the court in 2019 directed the respondent University to maintain status quo with regard to the appellant’s position provided she fulfilled the eligibility criteria in terms of the advertisement notification.
In compliance with the interim direction, the question with regard to the eligibility of the appellant was considered by the University.
The appellant was found not possessing a diploma in nursing and held ineligible to participate in the selection process initiated in terms of the advertisement of 2015.
The writ court, having considered the entire litigation launched by the appellant to stick to her engagement as female nurse, came to the conclusion that the appellant did not possess the requisite qualification prescribed for the post, and accordingly, dismissed the writ petition.
The appellant filed an appeal to assail the judgment of the High Court.
It claimed “the writ court has not taken into consideration that respondent-University having allowed the appellant to participate in the selection process, and cannot be permitted to take the objection to her eligibility to hold the post”.
The judgment was also called in question on the ground “the selection process which was conducted by the respondent-University was fraught with illegality and malafides and was directed only to ensure the selection of respondent no. 5 on the post advertised.”
The division bench today held that the judgment passed by the writ court does not call for any interference in the appeal.
“Admittedly, the appellant does not possess any Diploma in Nursing. She had staked her candidature on the basis of a certificate dated 16.01.2019 purportedly issued by the Principal, Government Medical College, Srinagar conveying therein that FMPHW Diploma was equivalent to Diploma in Nursing.”
The court noted “the matter was taken up by the University with the Principal, Government Medical College, Srinagar, for verification of the certificate. It was reported by the Principal vide its communication dated 28.03.2019, that his office had not issued any such certificate.”
It said “the plea that FMPHW certificate should be considered equivalent to Diploma in Nursing cannot be accepted for the simple reason that the qualification prescribed for the post of Female Nurse is Diploma in Nursing only, and not any other qualification equivalent thereto.”
In absence of any such stipulation in the qualification, the reliance placed by the appellant on the so-called equivalent qualification, is totally uncalled for and not permissible under law, the division bench said.
The bench also dismissed the prayer of the appellant that since there are so many posts of female nurses available with the University, as such, she could be directed to be appointed against one such post keeping in view her long working experience in the field.
Accepting such prayer and issuing direction to the respondent-University to appoint the appellant as female nurse against any available vacancy despite the fact that she does not possess the requisite qualification would tantamount to appointing ineligible candidate, the court said.
Otherwise also such course would be in violation of Article 14 of the Constitution of India, it added.
It ordered “the post or posts of Female Nurse, if any available with the respondents for direct recruitment, are required to be put to advertisement so as to enable all eligible candidates to apply, participate and compete in the selection process.”
