Madhya Pradesh High Court
Kumari Aditi Jain vs The State Of Madhya Pradesh on 13 November, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:55882
1 WP-6477-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 13th OF NOVEMBER, 2024
WRIT PETITION No. 6477 of 2024
KUMARI ADITI JAIN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Senior Advocate with Shri Karnik Singh - Advocate for the
Petitioner.
Miss Shraddha Tiwari - Advocate for Respondent No.8.
Shri Amit Pandey - Panel Lawyer for the Respondent/State.
WITH
WRIT PETITION No. 5706 of 2024
VINITA PANDEY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dinesh Singh Chouhan - Advocate for the Petitioner.
Shri Amit Pandey - Panel Lawyer for the Respondent/State.
ORDER
Reserved on - 04.09.2024 Pronouned on - 13.11.2024 Both these petitions involve identical issues and revolve on identical facts. For the sake of convenience, facts are taken from Writ Petition No.5706/2024. Three petitions i.e, Writ Petition No.13356/2021, Writ Petition No.6477/2024 and Writ Petition No.5706/2024 were heard analogously. Detailed reply has been filed in Writ Petition No.13356/2021.
2. By a separate order passed today, Writ Petition No.13356/2021 has Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 2 WP-6477-2024 been adjourned so as to grant opportunity to the petitioner to carry out amendment to challenge the vires of the schedule to Recruitment Rules as applicable to Autonomous ABV Medical College, Vidisha. The other two petitions i.e, Writ Petition No.6477/2024 and Writ Petition No.5706/2024 are being decided by this common Order.
3. Challenge is made to the requirement in Rule Book (Annexure P-1) and Advertisement for the post of Pharmacist Grade II initiated vide Annexure P- 1 for which the last date of submission of applications is 29.03.2023.
4. The petitioners have called into question, the requirement for the post of Pharmacist Grade II in various Departments under the State Govt. whereby the requisite educational qualification required is Higher secondary/Class XIIth pass with Biology as one of the subjects. Though, as per the petitioners, the recruitment Rules do not contain any such condition and therefore, the condition in the advertisement requiring the Pharmacist Grade II to be having passed Class XIIth Examination with Biology as one of the subjects is bad in law. It is contended that the petitioners have otherwise qualified Class XIIth with Science subject i.e, Physics, Chemistry and Mathematics and the respondents are pressing on passing Class XIIth Examination with subjects of Physics, Chemistry and Biology.
5. Learned counsel for the petitioners have relied on Madhya Pradesh Public Health and Family Welfare Rules 1989 (for short, hereinafter referred to as Rules of 1989) to submit that as per the aforesaid Rules, the requisite educational qualification for Pharmacist Grade II is Diploma in Pharmacy and Registration as Pharmacist with Madhya Pradesh Pharmacy Council. It is contended that the statutory Rules do not contain any particular subjects from which the candidate has to pass Class XIIth. It is contended that as per the Rules of Pharmacy Council of India, the petitioners got admission in Bachelor of Pharmacy or Diploma in Pharmacy Courses having passed Class XIIth from Science subject (with Physics, Chemistry and Mathematics) because as per Pharmacy council of India Rules, a student can take admission in B.Pharma or D Pharma course upon having passed Class XIIth from Mathematics also and the Pharmacy council of India does not stress on Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 3 WP-6477-2024 a candidate to have passed Class XIIth with Biology stream. Reliance is placed on document Annexure P-3, which is a letter issued from Pharmacy Council of India wherein it is intimated to the respondent No.2 that as per the norms of Pharmacy Council of India, a candidate can take admission in B.Pharma or D,Pharma Course with Physics, Chemistry and Mathematics or Biology as subjects in Class XIIth. Thus, it is contended that the requirement in the advertisement is contrary to the norms fixed by the Pharmacy Council of India which permit a Mathematics student to take admission in B.Pharma or D. Pharma Course so also the statutory Recruitment Rules.
6. The petitioners have further placed reliance on the subsequent statutory Rules framed by the Department of Medical Education known as M.P. Medical Education (Non Gazetted) Services Recruitment and Promotion Rules 2023 which contain that for the post of Pharmacist Grade II, the requisite qualification is Class XIIth pass with Science subject alongwith Degree or Diploma in Pharmacy and Registration in M.P. Pharmacy Council. Thus, it is contended that the Rules of 2023 do not contain any provision for having passed Class XIIth Examination with Biology. Though, such requirement is for other posts like Dark Room Assistant, Lab Attendant, etc. but not for Pharmacist Grade II.
7. Per contra, learned counsel for the State by placing heavy reliance on the reply and affidavit filed in Writ Petition No.13356/2021 has argued that the State is having authority to fix the criteria for the purpose of recruitment on the posts under the State. It is contended that fixation of criteria for appointment is in the domain of appointing authority and the Courts should not intervene in the matter of educational qualification required by the employer which is as per the requirements of the employer looking to its organizational needs which is beyond the scope of judicial review.
8. An additional affidavit dated 30.04.2024 is also filed by the Principal Secretary, Department of Health and Medical Education. As per the said affidavit, it has been mentioned that in the Recruitment Rules of 2023, which are notified on 26.06.2023, the requirement of Pharmacist Grade II to have passed Class XIIth Examination with Biology subject has been done away Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 4 WP-6477-2024 with and the Govt. is considering amendment for carving out same qualification for Pharmacist Grade II in Autonomous Govt. Medical Colleges also which is applicable to regular Govt. Medical Colleges by Rules of 2023.
9. Heard.
10. The Recruitment in question has been initiated for a number of posts which includes various Govt. Medical Colleges, Autonomous Medical Colleges of the Govt., Department of Public Health under the Govt. so also Directorate, Employees State Insurance, etc. For many of these posts which are advertised by Annexure P-1, the requirement is to have passed Class XIIth Examination from Science subjects. For various posts, the requirement has been made to have passed Class XIIt h Examination from the subjects which are required to get admission in B. Pharma or D. Pharma Course and for various other posts of Pharmacist Grade II, the requirement is to have passed Class XIIt h Examination with Biology as one of the subjects. For example, for Employees State Insurance, the requirement is to have passed Class XIIt h Examination from such subjects which are required for getting admission in B Pharma or D.Pharma Course. For Directorate, Health Services, the requirement is to have passed Class XIIth Examination with Biology, Physics and Chemistry while for certain other posts, the requirement is to have passed Class XIIth Examination with Science subject (which includes Biology or Mathematics).
11. The petitioners have relied on Rules of 1989 to contend that as per the Rules of 1989 as per entry 18 of Schedule 2, the requirement for Pharmacist Grade II is as under:-
1. Diploma in Pharmacy as approved by Govt. of M.P.
2. Registration as Pharmacist with Madhya Pradesh Pharmacy Council.
The aforesaid entry does not postulate passing Class XII t h Examination with any specific subject. The aforesaid entry means that the candidate needs to have passed Class XIIt h Examination with such subjects which are required for getting admission to B.Pharma or D.Pharma Course because Degree or Diploma in Pharmacy is the only requisite qualification.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PMNEUTRAL CITATION NO. 2024:MPHC-JBP:55882 5 WP-6477-2024
12. The State has also framed the Rules of 2023 which is for regular Medical Colleges (not Autonomous Medical Colleges) of the State Govt. As per entry 17 of Schedule 3 B of the said Rules, the requirement for Pharmacist Grade II is as under:-
1. Class XIIth with Science subject
2. Degree or Diploma in Pharmacy
3. Live Registration in M.P. Pharmacy Council as pharmacist.
Various other entries in the schedule lay down with Class XII t h pass in Biology, Chemistry and Physics like the posts of O.T. Technician, Dental Technician, Optometrist, Dark Room Attendant, etc. The aforesaid schedule leaves no doubt that for the post of Pharmacist Grade II, the requirement is to have passed Class XIIth with Science subject which is not necessarily with Biology. The aforesaid position has been acknowledged by the respondents in the additional affidavit filed in W.P.No.13356/2021.
13. The recruitment Rules in various Autonomous Govt. Medical Colleges do postulate having passed Class XIIth Examination with Biology as one of the subjects and this position has been noted in separate Order passed today in W.P.No.13356/2021. The cases where the statutory Rules do have the requisite criteria of having passed Class XIIth Examination with Biology as one of the subject like in Autonomous Govt. Medical Colleges, such a requirement being stressed by the Advertisement Annexure P-1 cannot be held to be illegal. However, there are some cases which are governed by the Rules of 1989 or the Rules of 2023 for which also requirement has been carved out in the Advertisement Annexure P-1 for having passed Class XII th Examination with Biology as one of the subjects. In those cases, the question has arisen as to whether the statutory Rules will prevail over the terms of Advertisement or whether the State Govt. can prescribe such educational qualification which is not there in the statutory Rules.
14. This Court is conscious of the fact that it is not in the domain of the Courts to lay down terms of qualification for a particular post which is solely in the domain of the employer who has to take decision in the matter of educational qualification by looking to its organizational requirements. See Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 6 WP-6477-2024 Maharashtra Pubic Service Commission Through its Secretary Vs. Sandeep Shriram Warade & Others reported in (2019) 6 SCC 362.
15. However, there are certain cases as noted above where the requirement to have passed Class XIIth Examination is being stressed upon even for those posts for which the statutory Rules do not have any requirement of having passed Class XIIt h Examination with Biology as one of the subjects. This Court will consider whether such a requirement could be inserted in the Advertisement which is not there in the Recruitment Rules.
16. In Employees State Insurance Corporation Vs. Union of India and Others reported in (2022) 11 SCC 392, the Supreme Court held as under:-
"28. CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations, 2015 to the promotions of the Teaching Cadre in the appellant Corporation. The ESIC Recruitment Regulations, 2015 have precedence over the Office Memorandum dated 29-10-2008 which implemented the DACP scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the counsel of the appellant before CAT does not stand in the way of the appellant supporting the correct position of law before this Court.
29. The contesting respondents did not challenge the ESIC Recruitment Regulations, 2008 or the ESIC Recruitment Regulations, 2015 before CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the Preamble to the ESIC Recruitment Regulations, 2015. The contesting respondents have only supported the applicability of the DACP scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP scheme would have no effect since they were in contravention of the applicable Recruitment Regulations. Therefore, for the above reasons, we are Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 7 WP-6477-2024 of the view that the appeal should be allowed.
30. The appeal is accordingly allowed and the impugned judgment and order of the Division Bench of the Karnataka High Court dated 5-9-2019 [ESI Corpn. v. Union of India, 2019 SCC OnLine Kar 3519] is set aside. As a consequence, the revised seniority list of the Teaching Cadre at the appellant Corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations, 2015 and not the DACP scheme."
17. In the case of Ashish Kumar Vs. State of Uttar Pradesh and Others reported in (2018) 3 SCC 55, the Supreme Court has held as under:-
"27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence. In this context, reference is made in the judgment of this Court in Malik Mazhar Sultan v. U.P. Public Service Commission [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] . Para 21 of the judgment lays down the above proposition which is to the following effect: (SCC p. 512) "21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 8 WP-6477-2024 right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.""
18. In the case of Malik Mazhar Sultan and Another Vs. U.P. Public Service Commission and Others reported in (2006) 9 SCC 507, the same has been held by the Supreme Court wherein it has been laid down as under:-
"21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
19. From a bare perusal of the above, it is evident that any part of the advertisement which is contrary to the statutory Rules has to give way so as to make the statutory Rules applicable. Looking to the qualifications prescribed in the statutory Rules, the qualification of a candidate has to be reckoned and the employer cannot put into place any arbitrary requirement which is not there in the recruitment Rules.
20. It is also well settled in law that the requisite qualification has to be seen on the basis of position which exists on the last date of submitting application, this will be in the matter of acquisition of qualification by the candidate and the prescription of qualification by the employer. In Bhupinderpal Singh & Others Vs. State of Punjab and Others (2000) 5 SCC 262 , the Supreme Court has held as under:-
13. Placing reliance on the decisions of this Court in Ashok Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 9 WP-6477-2024 Kumar Sharma v. Chander Shekhar [(1997) 4 SCC 18 : 1997 SCC (L&S) 913 : JT (1997) 4 SC 99] , A.P. Public Service Commission v. B. SaratChandra [(1990) 2 SCC 669 : 1990 SCC (L&S) 377 : (1990) 13 ATC 708 : (1990) 4 SLR 235] , District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 :
1990 SCC (L&S) 520 : (1990) 14 ATC 766 : (1990) 4 SLR 237] , Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234 : JT (1993) 1 SC 220] , M.V. Nair (Dr) v. Union of India [(1993) 2 SCC 429 :
1993 SCC (L&S) 512 : (1993) 24 ATC 236] and U.P. Public Service Commission U.P., Allahabad v. Alpana [(1994) 2 SCC 723 : 1994 SCC (L&S) 742 : (1994) 27 ATC 101 : JT (1994) 1 SC 94] the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with.
However, there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
21. In view of the aforesaid legal position, the State Govt. cannot be allowed to lay down any qualification for appointment to the post of Pharmacist Grade II which is contrary to the statutory Rules of 1989. The terms of advertisement will have to give way to the provisions of statutory Rules of 1989.
22. Resultantly, the petition deserves to be and is hereby allowed with the following directions:-
i) The respondents will not stress upon the requirement of passing of Class XIIth Examination with Biology as one of the subject wherever the statutory Rules applicable in the concerned Department do not postulate such a requirement. The said Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:55882 10 WP-6477-2024 condition in the advertisement would be binding on the candidates only in respect of those posts for which the concerned recruitment Rules of the concerned Department contain a provision for the candidate to have acquired Class XIIth qualification with Biology as one of the subjects.
ii) In other words, the qualification as prescribed in the concerned recruitment Rules of the concerned subject will have primacy over the requirement as sought by the State in the Advertisement Annexure P-1.
iii) If the petitioners are aggrieved by the provision of any Recruitment Rule which postulates essential condition of having passed with Biology as one of the subjects, then the petitioners would be at liberty to challenge the vires of the said Rule but no relief in those matters can be granted in the present petition.
23. With the aforesaid directions, the petitions are allowed and disposed of.
(VIVEK JAIN) JUDGE veni Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 14-11-2024 12:04:27 PM