Allahabad High Court
Ajay Singh vs State Of U.P. & Others on 19 January, 2011
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 26 Case :- WRIT - A No. - 42046 of 2008 Petitioner :- Ajay Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Dr.H.N.Tripathi,A.S.Singh Respondent Counsel :- C.S.C.,G.K. Saxena,R.L. Verma Hon'ble Sudhir Agarwal,J.
1. By means of the present writ petition the petitioner has challenged the appointment of respondent No.5 on the post of X-ray Technician by order dated 21st November, 2007 passed by the Principal, Maharani Luxmi Bai Medical College, Jhansi (hereinafter referred to as "the College"). The other orders impugned in the writ petition are dated 23rd April, 2008 passed by the Principal of the College rejecting petitioner's representation observing that he did not possess the requisite qualification for appointment on the post of X-ray Technician and the letter dated 12.11.2007 issued by the Director General, Medical Education and Training, U.P. Lucknow permitting the Principal of the College to appoint a person having experience in Radiotherapy on the post of X-ray Technician.
2. It is contended that by advertisement, (Annexure 1 and 2 to the writ petition) dated 27th August, 2007, the post of X-ray Technician in the scale of 4500-7000 was advertised. The requisite qualification mentioned in the advertisement, for the said post, is:
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3. The petitioner claims to possess requisite qualification for the post of X-ray Technician as advertised, and says that respondent No.5 does not possess the said qualification.
4. The Principal of the College, however, in a conspicuous and illegal manner sought permission from Director General, Medical Education and Training, U.P. by his letter dated 7.11.2007 to fill in the said post of X-ray Technician from a person possessing experience in "Radiotherapy". Such permission was granted by Director General vide letter dated 12.11.2007. Subsequently, by order dated 21st November, 2007, respondent No.5 was appointed on the post of "X-ray Technician". When the petitioner moved representation, the same was not attended to, hence he filed writ petition No.12747 of 2008 which was disposed of by judgment dated 05.3.2008 directing respondent No.3 i.e. Principal of the College to decide petitioner's representation, which has been rejected by order dated 23rd April, 2008 observing that the post of "X-ray Technician" is basically utilized for discharging duties of "Radio Therapy", and, since the petitioner had no experience of "Radio Therapy" hence he could not be appointed.
5. It is thus evident that though the post of "X-ray Technician" was advertised on 27th August, 2007 but later on during the course of selection, the Principal on his letter dated 07.11.2007 was permitted to deviate from the terms of advertisement and fill in the post of X-ray Technician by a person having experience in Radiotherapy. This permission was granted by Director General. Besides the question as to whether respondent No.5 possess requisite qualification for appointment on the post of X-ray Technician and whether the conditions as mentioned in the advertisement can unilaterally be changed the eligibility condition in its entirety by the authorities concerned one more question up for consideration in this case and whether the Director General has any such power to alter the qualification prescribed for a particular post and all these questions will ultimately answer the ultimate issue whether the selection impugned in this writ petition has been validly made.
6. Learned counsel for the petitioner vehemently contended that under the Rules, the qualification prescribed for X-ray Technician is same as advertised and it was not open to the respondent on their own to change the requisite qualification. He drew attention of this Court to para 7 and 25 of the writ petition wherein he has said specifically that the respondent No.5 did not possess the requisite qualification which reads:
"7. The in the aforesaid certificate neither the name of the State is mentioned nor any date of issuing a certificate is mentioned and the aforesaid certificate has no concern with the eligibility criteria mentioned in the advertisement. The aforesaid certificate appears to be forged.
25. That the impugned orders dated 12.11.2007 (annexure no.15 to the writ petition), 21.11.2007 (annexure no.7 to the writ petition) and 23.04.2008 (annexure no.11 to the writ petition) are liable to be quashed on the following facts and circumstances:
a. That the respondent no.5 does not have essential qualification for the post of X-ray Technician as per advertisement no.2/2007 dated 27.8.2007 and advertisement no.4/2007 dated 28.10.07 and as per Rule 8 and 9 of the Service Rules, 1986, in which it is provided that for selection/appointment on the post of X-Ray Technician a diploma for X-Ray Technician from U.P. State Medical Faculty Lucknow is required. The respondent no.5 does not have a diploma in X-Ray Technician from U.P. State Medical Faculty Lucknow so he was not entitle to be considered for selection and appointment on the post of X-Ray Technician, the selection and appointment is void being contrary to mandatory provisions of Rule 8 and 9 of the Service Rules 1986.
b. That it is settle law as held by the division bench of this Hon'ble Court in case of Arya Kanya Pathsahala Versus Smt. Manorama Devi Agnihotri reported in 1971 ALJ page 983 as well as Hon'ble Supreme Court in case of Govt. of A.P. And others versus K. Brahmanandam and another reported in 2008(2) ESC page 33 (SC) "appointments made in violation to the mandatory provisions of statute would be illegal, thus void in the present case the respondent no.5 does not have essential qualification for the post of X-Ray Technician as required under Rule 8 and 9 of the Service Rule 1986 and as per advertisement made for the purposes of selection/appointment in the daily news paper by the respondent no.4 so the selection/appointment of the respondent no.5 is void.
c. That the selection of the petitioner was made under the Service Rule 1986 but as per information given by the Public Information Officer of the medical college, the petitioner has not been appointed under Service Rule 1986 so the appointment of the respondent no.5 is nullity.
d. That once the petitioner and respondent no.5 were considered for selection on the post of X-Ray Technician under Service Rules 1986 the respondent no.5 was placed at serial no.1 and the petitioner was placed at serial no.2, thereafter, the appointment letter has been issued to the respondent no.5 on 21.11.2007 on the post of X-Ray Technician but when the petitioner sought information from Public Information Officer of the Medical College then it was informed that he has been given appointment on the post of Radiotherapy technician.
e. That it is settle law and administrative order cannot supersede the statutory provisions and orders passed therein in the present case the respondent no.5 who does not have essential qualification as provided under Service Rule 8 still he was illegally selected for the post of X-Ray Technician and appointment letter was also issued to the respondent no.5 on 21.11.2007 for the post of X-Ray Technician but by administrative order dated 12.11.2007 respondent no.2 directed the respondent no.4 to appoint respondent no.5 in the public interest on the post of X-Ray Technician on the basis of experience of respondent no.5 in radiotherapy, which is not permissible in law.
f. That the petitioner raised several objections in his representation dated 21.1.2008 against the impugned order dated 21.11.2007 and this Hon'ble Court by order dated 05.03.2008 directed the respondent no.4 to decide the representation of the petitioner dated 21.01.2008 but the respondent no.4 did not considered the aforesaid representation and did not decide the aforesaid representation as yet and illegally rejected the reminder dated 03.04.2008 so the impugned order has been passed ignoring the direction of this Hon'ble Court and is a clear example of no application of mind in passing the impugned order dated 23.04.2008.
g. That the diploma certificate submitted by the respondent no.5 before the Selection Committee issued from Guru Govind Singh Medical College Faridkot, Punjab which appears to be concocted document, there is no certificate number and date of issuing mention in the certificate issued by the aforesaid medical college, moreover, as per certificate issued by State of U.P. Medical Faculty Lucknow dated 22.07.2008 the certificate of radiotherapy is not recognized by the aforesaid Medical Faculty of the State of U.P. so the experience certificate of radiotherapy which is the basis of the letter dated 12.11.2007 is also illegal and without jurisdiction. Respondent no.5 even does not have any valid certificate regarding radiotherapy so the permission granted by the respondent no. 2 to give appointment to the respondent no.5 is also malafide, illegally and without jurisdiction.
h. That the selection committee provided 20 marks to the respondent no.5 for his technical education and therefore he was placed at serial no. 1 in the select list dated 14.11.2007. It is submitted that his diploma certificate alleged to be issued from Guru Govind Singh Medical College Faridkot, Punjab is not recognized from the U.P. State Medical Faculty Lucknow and the aforesaid certificate submitted by the respondent no.5 is not valid for the purpose of selection of X-ray Technician so 20 marks given by the selection committee to the respondent no.5 was not valid and the petitioner was entitle to be placed at serial no.1. The selection and appointment of the respondent no.5 is void and the petitioner who is placed at serial no.2 is entitle to be considered for appointment on the post of X-ray Technician on the basis of selection dated 14.11.2007.
i. That before passing the impugned order dated 23.04.2008 no opportunity of hearing given to the petitioner."
7. It is also contended that neither the qualifications once advertised can be changed unilaterally by the appointing authority, Selection Body or appointing authority at the time of making appointment nor Director General or the Principal of the College possess any such power to make alteration or tinkering with the requisite qualification for a particular post and the entire exercise is wholly without jurisdiction.
8. Respondent No.5 has put in appearance through Sri R.L.Verma and has filed counter affidavit. In para 7, he has replied para 7 of the writ petition and stated as under:
"That the contents of paragraph No.7 of the writ petition as stated are wrong hence denied. In reply to contents thereof it is stated here that the Principal, Guru Gobind Singh Medical College, Faridkot (Punjab) vide his letter dated 23.07.2008 certified that Guru Gobind Singh Medical College, Faridkot- a Govt. of Punjab institution was authorized by the Punjab Govt. to conduct examination of Diploma in Radiography students of Mohan Dai Oswal Cancer treatment and Research Foundation Ludhiana on the completion of their two years training and as such the diploma of the deponent is genuine, legal and valid in the eye of law. It is further stated here that the eligibility criteria fixed in advertisement mentioned in advertisement was minimum requirement while the deponent has higher education that to minimum requirement. The diploma hold by the deponent is of two years while on the other hand diploma hold by petitioner is of one year. It is also relevant to mention here that the U.P. State Medical Faculty Lucknow does not conduct diploma of two years and as such there is no question arises for recognition of diploma of deponent by U.P. State Medical Faculty Lucknow and only on the reason it is not recognized by state faculty the diploma of the deponent can not be declared as invalid. The true/photostat copy of the Certificate dated 23.07.2008 issued by the Principal, Guru Gobind Singh Medical College, Faridkot (Punjab) is being filed herewith as marked ANNEXURE-CA-1 to this affidavit.
9. Para 25 of the writ petition has been replied in para 21 of the counter affidavit which read as under:
"That the contents of paragraph No. 25 of the writ petition as stated are wrong hence denied. In reply to contents thereof it is stated here that the order passed by the competent authority giving appointment to the petitioner is just, legal and valid. The grounds taken by petitioner have no merit and as such writ petitioner filed by the petitioner is devoid of merit and is liable to the dismissed with cost by this Hon'ble court, so that justice may be done."
10. It is not disputed before this Court that recruitment and conditions of service for the post of X-ray Technician in the State of U.P. are governed by statutory rules namely Uttar Pradesh X-ray technicians Service Rules, 1986 (hereinafter referred to as "1986 Rules"). It is also not disputed that the said rules are applicable to the post in question. A copy of 1986 Rules has been placed on record as Annexure R.A.1 to the rejoinder affidavit. The correctness of said document has not been disputed by any of the said parties therefore this Court can safely proceed thereon. Rule 8 of 1986 Rules provides for academic qualification s for the post of X-ray Technician as under:
"Academic qualification.-A candidate for recruitment to the post in the service must possess a diploma in X-Ray from the U.P. State Medical Faculty or a qualification recognised by the said faculty as equivalent thereto."
11. It is nobody's case that the aforesaid qualification has been amended by Rule framing authority so far prescribing experience in Radiotherapy as also one of the qualification or sole qualification for appointment to the post of X-ray Technician. On a specific query made from learned counsel appearing on behalf of respondent No.5 he could not dispute that requisite qualification as advertised for the post of X-ray Technician or that what was provided in Rule 8 of 1986 Rules is not possessed by respondent No.5. The reply given by respondent No.5 in its counter affidavit also support this position. Hence this Court can safely held that respondent No.5 ex facie did not possess the requisite qualification prescribed for the post of X-ray Technician under the statutory rules.
12. Before going into the question as to whether the respondents were justified in making appointment of respondent No.5 by permitting relaxation in the qualification even if this Court assume that such relaxation was permissible under 1986 Rules, the fact remains that before acting thereon, no modification, amendment or re-advertisement of the post in question took place with modified qualification. This resulted ex facie denial of opportunity to such other persons who could have satisfy the relaxed qualification but failed to apply since the advertisement which was actually made did not contain such qualification. This also makes appointment of respondent No.5 pursuant to the relaxed qualification illegal being violative of Articles 15 and 16 of Constitution of India having resulted in denial of equal opportunity of employment to others. Even cases where there is some changes in the qualification etc. under the Rules etc. after an advertisement is made, it has consistently been the view of the Court that in such a case afresh advertisement or modified advertisement, as a rule, must be published so as to give opportunity to the people at large who satisfy the altered, modified or changed qualification to apply. This is consistent with the constitutional requirement of giving equal opportunity of employment to all.
13. In State of M.P. and others Vs. Shyama Pardi and others, 1996 (7) SCC 118 the Apex Court held that an appointment made in the absence of requisite qualification prescribed under Rules is void ab initio and neither it confer any right upon the person concerned to hold the post or continue if he/she has been appointed though did not possess requisite qualification nor any direction for payment of salary can be issued in such cases.
14. A similar controversy arose in the case of Mohd. Sartaj and another Vs. State of U.P. and others JT 2006 (1) SC 331 and the Apex Court held that an appointment lacking requisite qualification would be a nullity. A question also raised before the Apex Court that if subsequently the candidate has attained the requisite qualification whether that would validate the appointment but it was replied by the Apex Court that the validity of an appointment has to be considered at the time of appointment and if the appointment was made by ignoring the requisite qualification or if it is found that the candidate did not possess requisite qualification at that time of appointment, the appointment would be void ab initio.
15. Now, I come to other more intricate issue regarding alteration/ relaxation permitted by Director General which would decide the validity of his order dated 12.11.2007 one of the impugned order.
16. Even respondent-State has referred to such 2003 Rules in para 27 of the counter affidavit but during the course of argument learned Standing Counsel could not lay its hand and place any such rule before this Court. Respondent no.5 has pleaded in para 10 of the counter affidavit that 1986 Rules has been superseded in 2003 and the appointment of petitioner was made in accordance with 2003 Rules but no such rules superseding 1986 rules were placed before this Court at the time of argument. The only rule which this Court lay its hand refers to certain amendments made in Class III i.e. Ministerial Service Rules but the same would have no application in the case in hand since the service in question is squarely covered by the specific rules framed for this very service and therefore unless these specific rules are superseded, general rules for recruitment applicable to unspecific services would have no application at all. It appears that the respondents have misled themselves in referring to Class III General Recruitment Rules from the fact that post in question being in the scale of 4500-7000 is a class III post or Group 'C' post in view of the fact that this categorization is based on pay scale of the particular post. The respondents have miserably failed and this is really unfortunate to find so that the mere fact that the post in question is a Group 'C' post would not detract it from being covered by 1986 Rules which are the specific rules applicable to this very service and post and the general rules applicable to Group 'C' post which are not covered by any specific rules, would have no application.
17. Be that as it may, no other rule which either supersede 1986 Rules or provide a different qualification for the post of "X-ray Technician" than what is provided in 1986 Rules has been placed before this Court.
18. Learned Standing Counsel or Sri R.L.Verma, Advocate appearing on behalf of respondent No.5 also could not place any provision to show that the rules pertaining to recruitment under 1986 Rules could have been relaxed by the Director General. Rule 25 of 1986 Rules confers power of relaxation relating to rules regulating conditions of service and reads as under:
"25. Relaxation in the conditions of service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, not withstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."
19. The distinction between rules pertaining to recruitment and condition of service came up for consideration before the Apex Court in the case of Keshav Chandra Joshi and others Vs. Union of India and others, 1992 (Supple.) I SCC 272 where the rule permitted relaxation of conditions of service and it was held that the rule did not permit relaxation of recruitment rules. It was reiterated in Syed Khalid Rizvi and others Vs. Union of India and others, 1993 (Supple) (3) SCC 575 wherein it was held:-
"Conditions of recruitment and conditions of service are distinct and the latter is precedent by an appointment according to Rules. Former cannot be relaxed."
20. In Keshav Chandra Joshi (supra) the Apex Court also says that rules permitting relaxation of provisions regulating conditions of service cannot be invoked to suggest relaxation of rules regulating recruitment. The rules relating to age, qualification, other eligibility process of selection etc. that is all the steps anterior to appointment constitute rules regulating recruitment. Under 1986 Rules, firstly the rules relating to recruitment cannot be relaxed and secondly even Rule 25 of 1986 Rules which permits relaxation of rules regulating conditions of service authorises the State Government or Director General to do so hence such relaxation by Director General is impermissible.
21. The above discussion makes it clear that the entire process of selection and appointment of respondent no.5 has been observed by the official respondents mere in breach than to comply thereof. The terms of advertisement cannot be ignored or altered without fresh advertisement since it would have its own adverse consequences in the matter of selection. The persons who could have applied in view of the changed qualification would stand deluded of this opportunity. Similarly, the appointing authority or the selecting body have no right or authority to change or make alteration in the qualification to suit their whims but they are strictly bound to act according to the relevant rules. If some kind of preferential qualification etc are provided in the rules only in that case such qualifications may be taken into account but not otherwise. It appears that the respondents Principal of the College as well as the Director General have acted in this case in a manner which cannot be said to be bona fide one and leans in the territory of extraneous consideration favouritism and malice in law. Both have shown extra benevolence for the benefit of respondent No.5 ignoring the statutory rules.
22. Learned Standing Counsel also could not show any power under which the Director General, Medical Education and Health could have permitted the Principal of the College to make an appointment of a person who did not possess requisite qualification prescribed in the rules but some other. Rule 25 of 1986 Rules confers power of relaxation in the conditions of service upon the State Government but here the matter pertains to minimum qualification which is pertaining to rule of recruitment and not under Rule of Condition of Service hence respondents could not have been resorted to relaxation.
23. In the circumstances, I have no hesitation in observing that the appointment of respondent No.5 has been made illegally as he did not possess requisite qualification, as advertised by the respondents. The qualification which the respondent No.5 satisfy may be additional qualification. If some other qualification is possessed that would not dispense with the requirement of "minimum qualification" without which none could have been appointed on a civil post.
24. In view thereof the appointment of respondent No.5, lacking minimum qualification, cannot sustain. The writ petition is accordingly allowed. The impugned orders dated 12.11.2007 (Annexure No.15 to the writ petition), 21.11.2007 (Annexure No.7 to the writ petition) and 23.04.2008 (Annexure No.11 to the writ petition) are hereby quashed. Respondents are directed to take steps to fill in the vacancy in question afresh in accordance with law.
Order Date :- 19.1.2011 KA