KRISHNA RANA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner seeks to challenge the residence criteria in the advertisement dated 6th August, 2008 for appointment of Auxiliary Nurse-cum- Midwife as ultra-vires the Constitution of India.

(2.) THE case of the petitioner is that one of the criteria for appointment of Auxiliary Nurse cum Midwife (ANM) is that the applicant has to be local resident of the Health Sub-Center. THE said criteria is hit by Articles 14, 15 and 16 of the Constitution of India. Article 16(3) of the Constitution of India postulates enactment of legislation and no restriction can be imposed by a mere notification. THE notification dated 5th September, 2006 has been issued by the State and incorporates the criteria of local resident. This cannot be found in the National Rural Health Mission Scheme, (Scheme) which has been introduced by the Central Government. As the State notification is de-hors an enactment, the same is violative of the Constitution of India and liable to be set aside. Reliance is placed on AIR 2002 SC 2897, AIR 1970 SC 422, 2002 (6) SCC 562. Section 16(1) of the Constitution of India has granted equality for "employment" and "appointment" to any office under the State. THE term "employment" is applicable in the case of ANM and its meaning has been enlarged in AIR 1961 SC 564. Reliance is also placed on 2008 10 SCC 687. THE unreported judgment in WP 4689(W) of 2009 will not apply on the principle of Sub-silentio as held in 1991 4 SCC 139 and 2000 5 SCC 488. In view of 2007 10 SCC 82, no precedential value can be given to the unreported judgement wherein the issue has not been decided. For all the said reasons, therefore, and in view of the decision cited, the local resident criteria in the State notification dated 5th September, 2006 be held ultra-vires the Constitution of India.

(3.) THE State as the implementing agency enters into a Memorandum of Understanding (MOU) with the Ministry of Health and Family Welfare Department of the Central Government. By Clause 11.3 of the MOU the State Government is to agree to abide by all the existing guidelines, instructions and circulars issued for implementation. Clause 11.3 is set-out hereunder :