Rajasthan High Court - Jodhpur
Gand Mal Dhaker & Ors vs State (Medical & Health ) & Ors on 17 February, 2017
Bench: Govind Mathur, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 955 / 2011
1. Gand Mal Dhaker S/o Shri Shanker Lal Dhaker, aged about 30
years, R/o Rawat Ka Talab, Post Amarpura, Tehsil & Dist.
Chittorgarh
2. Dinesh Chandra Rebari S/o Shri Mitthu Lal Rebari, by caste
Rebari, aged 29 years, R/o Rebarion Ki Dhani, Post Asawara Mata,
Tehsil Bhadesar, Dist. Chittorgarh
3. Devendra Singh Bhati S/o Shri Kastur Chand Bhati, aged about
28 years, R/o Rebarion Ki Dhani, Post Asawara Mata, Tehsil
Bhadesar, Dist. Chittorgarh
4. Hira Lal Bhamat S/o Shri Rav Ji Bhamat, aged about 31 years,
R/o village Gadit, Post Rathdi, Via Chikali, Tehsil Simalwara, Dist.
Dungarpur
5. Ramesh Chandra Ameta S/o Shri Udai Lal Ameta, aged about
30 years, R/o Village & Post Bambori, Tehsil Chhoti Sadari, Dist.
Pratapgarh
6. Mukesh Kumar Gaur S/o Shri Gairi Lal Gaur, aged about 28
years, R/o village & post Bhanuja, Tehsil Badi Sadari, Dist.
Chittorgarh
7. Jagdish Chandra Vyas S/o Shri Shanti Lal Vyas, aged about 30
years, R/o village Bhat Ka Bhamaniya, Tehsil Kapasan, Dist.
Chittorgarh
8. Kamal Kant Manariya S/o Shri Amrit Lal Manariya, aged about
29 years, R/o Village & Post Bhanuja, Tehsil Badi Sadari, Dist.
Chittorgarh
9. Mitthu Lal Dhakar s/o Shri Mangi Lal Dhakad, aged about 30
years, R/o Rawaton Ka Talab, Post Amarpura, Tehsil & District
Chittorgarh
10. Shaista Parveen D/o Shri Mohd. Rashid, W/o Shri Aqil Khan,
aged 24 years, R/o Jawad Gate, Nimbahera, Dist. Chittorgarh
----Appellants
Versus
1. State of Rajasthan, through the Secretary, Department of
Medical & Health, Govt. of Rajasthan, Jaipur
2. The Additional Director (Admn.), Department of Medical and
Health Services, Govt. of Rajasthan, Jaipur
3. Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur
(Rajasthan), through its Registrar
----Respondents
(2 of 7)
[SAW-955/2011]
_____________________________________________________
For Appellant(s) : Mr. Bharat Devasi
For Respondent(s) : Mr. Anil Bissa
Mr. Shyam Paliwal
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment 17/02/2017 Learned Single Bench under the order impugned dated 13.07.2011 dismissed the petition for writ preferred by the appellant-petitioners in light of the judgment given in the case of Gourishanker & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.5306/2011). In the case aforesaid, learned Single Bench held that the appellants being not possessing requisite qualification as per the provisions of the Rajasthan Medical and Health Subordinate Service Rules, 1965 is not eligible to be considered for appointment as Lab Technician.
In appeal, the only argument advanced by learned counsel appearing on behalf of the appellant-petitioners is that the qualification possessed by the appellants is awarded by a deemed university as per the provisions of the University Grants Commission Act, 1956 (for short, hereinafter referred to as 'the Act of 1956'), therefore, no separate recognition for that was (3 of 7) [SAW-955/2011] required by the State of Rajasthan. To substantiate the contention, he has also placed reliance upon a judgment of Hon'ble Supreme Court in Dr. B.L. Asawa Vs. State of Rajasthan Vs. State of Rajasthan & Ors. reported in AIR 1982 SC 933 and Single Bench judgment of this court in Mrs. Madhu Santosh Vs. State of Rajasthan (S.B. Civil Writ Petition No.2502/1989) decided on 21.02.1991. It is stated by learned counsel that the judgment in the case of Madhu Santosh (supra) also acquired finality uptil the Apex Court.
In brief, facts of the case are that the respondent-State under a notification dated 25.05.2011 invited applications from eligible candidates to be considered for appointment to the post of Lab Technician a post encadered under the Rajasthan Medical and Health Subordinate Service Rules, 1965. Under the rules aforesaid, the eligibility to be considered for appointment to the post of Lab Technician is that the aspirant must be possessing Secondary School Examination or its equivalent with 9 months training certificate from institution recognized by Government. The appellant-petitioners having nine months training certificate from Pandit Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur, a deemed university under the Act of 1956, the respondent-State rejected their candidature as no recognition was given to the certificate obtained from the University named above. Aggrieved by the same, the appellant-petitioners approached this court under Article 226 of the Constitution of India, however, the writ petition preferred by them came to be dismissed under the (4 of 7) [SAW-955/2011] judgment impugned.
As already stated, the case of the appellant-petitioner is that the qualification possessed by him being obtained from a deemed university is not required to have independent recognition. It is stated that in the similar circumstances, the Apex Court in the case of Dr. B.L. Asawa (supra) and this court in the case of Madhu Santosh (supra) held that if a degree or diploma is awarded by a university established by law or under law, then there is no need to have recognition by each and every university.
Per contra, as per the respondents, the cases cited by learned counsel for the appellants are having no application in the instant matter as the issue involved in this petition pertains to recruitment as per the rules framed under proviso to Article 309 of the Constitution of India. In the case of Dr. B.L. Asawa and Madhu Santosh, as per learned counsel, the court was dealing with the matters relating to admission in degree courses. Reliance is placed by learned counsel appearing on behalf of the respondents upon a judgment given by Supreme Court in Rajendra Prasad Mathur Vs. Karnataka University & Anr. Reported in AIR 1986 SC 1448 holding therein that determination of equivalence of examination conducted by other universities is within the domain of the university, which has to admit students and as such, no qualification by just its name can be treated equivalent ipse dixit. Learned counsel has also placed reliance upon a Division Bench judgment of this court at Jaipur in Nawal Kishore (5 of 7) [SAW-955/2011] Sharma Vs. State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.802/2011) decided on 19.10.2011. Dealing with the same issue in the case of Nawal Kishore Sharma, the Division Bench held that the incumbents who are not holding the qualification recognized by the State Government cannot be appointed as Lab Technicians under the Rules of 1965.
Heard learned counsel appearing on behalf of the rival parties.
It is not in dispute that Pandit Janardan Rai Nagar Rajasthan Vidyapeeth University, Udaipur is a deemed university as per Section 3 of the Act of 1956. The 9 months training in the para medical subjects conducted by it is not recognized by the Government. Suffice to mention that the term "Government", as per rule 2(f) of the Rules of 1965 means Government of Rajasthan. True it is, in the case of Dr. B.L. Asawa (supra), the Apex Court held that the degrees granted by a university created by law or under the law is not required to get recognized by other universities created in the same manner. In the case of Madhu Santosh (supra), the same view was taken by this court by relying upon a judgment of Hon'ble Apex Court in the case of Dr. B.L. Asawa, however, we are of considered opinion that the ratio of the cases referred above is having no application in the instant matter. In the case of Dr. B.L. Asawa and Madhu Santosh, the courts were dealing with the issue relating to admissions in different courses on basis of the qualification obtained from a university established by law. The Apex Court while dealing with the issue relating to (6 of 7) [SAW-955/2011] admission to different courses arrived at the conclusion that the degrees granted by the university are not required to be recognized independently by each and every university. As per law laid down in the cases aforesaid, universities in the entire country are created under the Act of 1956 and therefore, a degree awarded by statutory Indian university, which has been specifically recognized by their specialized body, is not required to be recognized by other universities for the purpose of admission in higher courses. In the case of Dr. B.L. Asawa, the degree under scrutiny was issued by the Rajasthan University and was recognized by the Medical Council of India. In the case of Mrs. Madhu Santosh (supra), the degree of Bachelor in Education was granted by a statutory university in accordance with National Council for Teacher Education Act, 1989.
In the case in hand, the position is entirely different. The qualification in question is neither a degree nor a diploma, but a certificate of 9 months, which is not having any recognition either from the State of Rajasthan or by the Rajasthan Nursing Council or any other statutory body dealing with the training of para medical staff, as such, the law laid down in the cases referred above cannot be applied in the instant matter. The appellant- petitioners are admittedly not having 9 months training from any institution recognized by the Government of Rajasthan and as such, they are lacking statutory eligibility. A person not fulfilling the requisite statutory eligibility cannot be considered for appointment on a post created under a statute.
(7 of 7) [SAW-955/2011] In view of it, we do not find any error with the judgment impugned, that may warrant interference in our appellate jurisdiction. The appeal, thus, is dismissed.
(G.R. MOOLCHANDANI)J. (GOVIND MATHUR)J. Pramod