Rajasthan High Court - Jodhpur
Ramesh Chandra vs State Of Rajasthan on 9 November, 2020
Bench: Sangeet Lodha, Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 446/2020
Ramesh Chandra S/o Shri Prabhu Lal, Aged About 32 Years, R/o
Bichla Baas, Bhadwasiya, Jodhpur.
----Appellant
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Medical And Health, Government Of Rajasthan, Jaipur.
2. The Special Secretary To Government, Medical and Health
and Family Welfare Department and Mission Director,
National Health Mission, Rajasthan, Swasthya Bhawan,
Tilak Marg, C-Scheme, Jaipur.
3. Rajesh S/o Shri Virma Ram, Aged About 33 Years, R/o
425 Shiv Nagar, Mandiya Road, Pali.
----Respondents
For Appellant(s) : Mr. M.A. Siddiqui
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Order 09/11/2020
1. By way of this intra-court appeal, the appellant has questioned legality of the order dated 8.10.2020 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant questioning the eligibility qualification prescribed for recruitment to the post of Community Health Officer ('CHO') on contractual basis under the National Health Mission ('NHM'), has been dismissed.
2. The Department of Health and Family Welfare, Government of Rajasthan issued an advertisement inviting applications for recruitment to the post of CHO on contractual basis under the (Downloaded on 11/11/2020 at 09:03:41 PM) (2 of 5) [SAW-446/2020] NHM. Essential qualification prescribed for recruitment to the post was as under :
1. B.Sc. in Community Health "OR" Nurse (GNM) or B.Sc) "OR" Ayurveda Practitioner (BAMS) from a recognized university.
2. Registered in respective Rajasthan Nursing Council/Board of Indian Medicine in Rajasthan.
3. The appellant assailed the eligibility qualification prescribed on the ground of non inclusion of Bachelor of Physiotherapy within the essential qualification prescribed in the advertisement is arbitrary and discriminatory. That apart, it was contended that the requirement of registration with the Nursing Council/Board of Indian Medicine is absolutely unnecessary and contrary to the eligibility qualification prescribed for the post under the Ayushman Bharat Scheme.
4. Learned Single Judge has dismissed the writ petition in light of earlier decision of Jaipur Bench of this Court in the matter of 'Raghvendra Agarwal & Ors. Vs. State of Rajasthan & Ors.' (S.B. Civil Writ Petition No.10342/2020) decided on 1.10.2020.
5. In Raghvendra Agarwal's case (supra), the writ petition involving identical issue was dismissed by the learned Single holding that the matter with regard to the eligibility qualification for recruitment to any post is required to be dealt with by the employer and the same cannot be subject to judicial review of the Court. The Court observed that while exercising jurisdiction under Article 226, the Court cannot add some new qualification for the post of CHO on asking of the petitioner. In this regard, learned Single Judge relied upon decisions of the Supreme Court in Mukul (Downloaded on 11/11/2020 at 09:03:41 PM) (3 of 5) [SAW-446/2020] Kumar Tyagi Vs. State of UP & Ors. : (2020) 4 SCC 86 and Zahoor Ahmad Rather & Ors. Vs. Sheikh Imtiyaz Ahmad & Ors. : (2019) 2 SCC 404.
6. Learned counsel appearing for the appellant submits that while prescribing the qualification for the post of CHO, the qualification of B.Sc. in Community Health or Nurse (GNM or B.Sc.) or Ayurveda Practitioner (BAMS) has been included whereas equivalent qualification such as Bachelor of Physiotherapy and Homeopathy etc. have been excluded, which is ex facie arbitrary.
Learned counsel submitted that under the Scheme of Government of India "Ayushman Bharat", the requirement of registration with Nursing Council/Board of Indian Medicine has not been prescribed as an essential qualification for the recruitment to the post of CHO and therefore, additional eligibility qualification prescribed by the State Government on its own is absolutely illegal.
7. We have considered the submissions of the learned counsel.
8. It is pertinent to note that engagement of Community Health Officer (CHO) holding the qualification of B.Sc. in Community Health or a Nurse (GNM or B.Sc.) or an Ayurveda Practitioner, trained and certified through IGNOU/other State Public Health/Medical Universities is envisaged to improve utilization of health services at primary care level, to reduce fragmentation of care and work load at secondary and tertiary care facilities. The rationale for introducing this new cadre of health provider is to :
• Augment the capacity of the Health Centre to offer expanded range of services closer to community, thus improving access and coverage with a commensurate reduction in OOPE. • Improve clinical management, care coordination and ensure continuity of care through regular follow up, dispensing of (Downloaded on 11/11/2020 at 09:03:41 PM) (4 of 5) [SAW-446/2020] medicines, early identification of complications, and undertaking basic diagnostic tests.
• Improve public health activities related to preventive and promotive health and the measurement of health outcomes for the population served by the HWC.
9. It is well settled that the eligibility qualification for recruitment to any post is in exclusive domain of the employer and the Court cannot add qualification by determining the equivalence thereof.
10. As observed by the learned Single Judge while relying upon the decision of the Supreme Court in Mukul Tyagi's case (supra), the eligibility qualification is an exclusive domain of appointing authority and the self certification by the candidate of equivalence is not envisaged. The Court cannot be the forum for declaring any particular qualification as equivalent to the qualification prescribed.
11. In Zahoor Ahmad Rather's case (supra), the Supreme Court observed that the prescription of qualification for a post is a matter of recruitment policy. The State as employer is entitled to prescribe the qualification as a condition of eligibility. It is no part of the role or function of the judicial review to expand upon the ambit of the prescribed qualification. Similarly, the equivalence of qualification is not a matter which can be determined in exercise of power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State as recruiting authority, to determine. (emphasis supplied)
12. In this view of the matter, the question of treating the qualification of Bachelor of Physiotherapy or Homeopathy as (Downloaded on 11/11/2020 at 09:03:41 PM) (5 of 5) [SAW-446/2020] qualification equivalent to the eligibility qualification prescribed for recruitment to the post of CHO does not arise. As a matter of fact, keeping in view object sought to be achieved by creating the cadre of CHO under NHM, the exclusion of the qualification of Bachelor of Physiotherapy from essential qualification cannot be faulted with.
13. Since, the appellant is not holding basic qualification for recruitment to the post of CHO, the question with regard to requirement of registration with concerned Council/Board is not required to be gone into by this Court.
14. For the aforementioned reasons, we are in agreement with the view taken by the learned Single Judge.
15. No case for interference in the intra court appeal jurisdiction is made out.
16. The special appeal is therefore, dismissed. (DEVENDRA KACHHAWAHA),J (SANGEET LODHA),J 84-Vij/-
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