Rajasthan High Court - Jaipur
Dr Arif Husain Khan vs State Of Raj & Anr on 19 April, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan Jaipur Bench ** S.No. CWP/Stay Pet.Nos. / Name of Petitioners/ Versus 1.142/2011 (128/2011) Dr. Mohan Lal & Ors Versus State & Ors. 2.319/2011 (289/2011) Dr. Anil Kr. Sharma Versus State & Ors. 3.356/2011 (337/2011) Narednra Kumar & Ors Versus State & Ors 4.378/2011 (364/2011) Dr. Jogeshwar Lal Saini & Ors Versus State & Ors 5.379/2011 (366/2011) Dr. Neeraj Kr. Nagar & Ors Versus State & Ors 6.382/2011 (371/2011) Dr. Narendra S.Choudhary Versus State & Ors 7.383/2011 (373/2011) Dr. Mahesh C.Bairwa & Anr Versus State & Ors 8.494/2011 (466/2011) Dr. Ram Niwas Bijrania & Ors Versus State & Ors 9.496/2011 (468/2011) Dr. Amar Nath Tanwar Versus State & Ors 10.517/2011 (489/2011) Dr. Sushant Vanawat & Ors Versus State & Ors 11.603/2011 (553/2011) Dr. Dharampal & Ors Versus State & Ors 12.607/2011 (558/2011) Dr. Ashok Kr. Nagar & Anr Versus State & Ors 13.608/2011 (559/2011) Dr. Ranjeet Singh Versus State & Ors 14.609/2011 (560/2011) Dr. Dheeraj Khanna & Ors Versus State & Ors 15.648/2011 (594/2011) Dr. Rajesh singh Jadon Versus State & Ors 16.665/2011 (612/2011) Dr. Rajendra Lamor Versus State & Ors 17.743/2011 (682/2011) Dr. Kunal Sahu & Anr Versus State & Ors 18.773/2011 (704/2011) Dr. Deepak Kr. Saini Versus State & Ors 19.789/2011 (716/2011) Dr. Kamlendra S.Chouhan Versus State & Ors 20.800/2011 (726/2011) Dr. Toshik Gupta & Anr Versus State & Ors 21.801/2011 (727/2011) Dr. Arif Hussain Khan Versus State & Ors 22.806/2011 (732/2011) Dr. Hemraj Mittal & Ors Versus State & Ors 23.808/2011 (734/2011) Dr. Sandeep Shivran & Ors Versus State & Ors 24.889/2011 (812/2011) Dr. Ram Naresh Sharma Versus State & Ors 25.895/2011 (817/2011) Dr. Satish Kr. Beniwal Versus State & Ors 26.1043/2011 (958/2011) Dr. Dharam S. Meena Versus State & Ors 27.1107/2011 (1010/2011) Dr. Fareed K. Panwar & Ors Versus State & Ors 28.1112/2011 (1014/2011) Dr. Prabhuvta Goyal Versus State & Ors 29.1433/2011 (1316/2011) Dr. Puna Ram & Anr Versus State & Ors 30.1700/2011 (1562/2011) Dr. Devendra Saini Versus State & Ors 31.1755/2011 (1622/2011) Jasraj Chhipa & Anr Versus State & Ors 32.1873/2011 (1722/2011) Dr. Manoj Kumar Versus State & Ors 33.2081/2011 (1914/2011) Dr. Rajendra Kumar Versus State & Ors 34.2088/2011 (1927/2011) Dr. Pawan Kumar & Ors Versus State & Ors 35.2132/2011 (1966/2011) Dr. Rajendra Kr. Triloki Versus State & Ors Date of Order ::: 19/04/2011 /Reportable/ Hon'ble Mr. Justice Ajay Rastogi Mr. RN Mathur, Sr. Advocate, with Mr. Tanvir Ahmed, Mr. Mukesh Bijrania, Mr. Sunil Saini, Mr. Sanjay Khedar, for petitioners.
Mr. SN Kumawat, Addl. Adv. Gen, for respondents-State & PSC Since common controversy is involved in a bunch of writ petitions, hence are being disposed of at joint request, at admission stage, by present order.
Instant petitions have been filed basically with the grievance that R.19 of Rajasthan Medical & Health Service Rules, 1963 ("Rules, 1963")has not been complied with while the process of selection pursuant to advertisement dt.18/09/2009 being held by Rajasthan Public Service Commission (PSC).
Factual matrix relevant for consideration is that advertisement was issued by the PSC on 18/09/2009 initially notifying 540 vacancies of Medical Officers, which was later on enhanced to 1214 in various categories; pursuant to which since large number of applications were received, the Commission took decision for short-listing number of applicants by way of screening test being held on 05/12/2010 - result whereof was declared on 24/12/2010. However, Full Commission took decision to invite candidates for interview in the ratio of 1:2, meaning thereby twice the number of vacancies advertised, are to be called for selection.
Interviews were held from 12/01/2011 and continued for a month upto 14/02/2011. At this stage, it is relevant to record that a bunch of writ petitions were filed (CWP-343/2011 (Nishant & Ors Vs. State) & three other CWP-384/2011, 396/2011, & 400/2011), in which grievance was raised that as per Explanation below Note (2) of advertisement dt.18/09/2009, a candidate was to submit his degree of MBBS on the date of interview, meaning thereby, for being eligible, candidate must have completed rotating internship of 12 months till the date of interview, which was challenged on the premise that examining their eligibility which includes rotating internship on the date of interview is totally fortuitous circumstance; more so when they had passed out their examination - as a result whereof, they were registered with the medical council; as such conditions under Explanation below Note (2) (supra), is arbitrary and in violation of Art.14 of the Constitution. The contention (supra) was examined by Co-ordinate Bench vide judgment dt.13/01/2011 while dismissing CWP-343/2011 (Nishant & Ors Vs. State) & cognate cases (supra), wherein taking note of Ord.268(d) of the University Ordinances, which provides -
"The MBBS degree shall be conferred after passing final MBBS examination and after a candidate has undergone compulsory rotating internship for a period of 12 months."
the Court rejected the contention advanced by writ petitioners while holding that MBBS Degree shall not be considered as a valid degree for any purpose whatsoever, in the light of what has been envisaged in Ord.268(d) of University Ordinances, either for practice or for securing employment, unless a candidate has successfully completed compulsory rotating internship for 12 months; and finally it was observed that since writ petitioners have not completed their rotating internship on the date of interviews, were not eligible to appear for interview and participate in process of selection initiated pursuant to advertisement dt.18/09/2009.
Basic grievance raised in bunch of instant petitions is that R.19 of Rules, 1963 authorizes the Public Service Commission ("PSC") to scrutinize applications received pursuant to advertisement and require as many candidates qualified for appointment as seem to them desirable to be called for interview; but out of list of candidates having been declared to be qualified in screening test in the ratio of 1:2, there are large number of applicants who were not qualified & eligible in terms of advertisement impugned, as they were not holding 12 months rotating internship on the date of interview held; yet they were permitted to participate in process of selection; and on account of in-eligible candidates being included and called for interview in the ratio of 1:2, candidates like petitioners despite being eligible in terms of advertisement impugned have been deprived of their participation in process of selection resulting in depriving them of their right of fair consideration; and action of respondents is in violation of R.19 of Rules, 1963.
It has been alleged in writ petitions that near about 600 candidates were allowed to appear for interview who were not holding their rotating internship of 12 months on the date of interview and they were in-eligible to participate and those 600 candidates being allowed by PSC to participate in process of selection for interview have eliminated the present petitioners from consideration despite being in-eligible and qualified in screening test, as well; inasmuch as none is made known about their placement in the screening test, result whereof was declared on 24/12/2010. In support, Counsel placed reliance on the decision of Apex Court in State of Punjab Vs. Manjit Singh (2003(1) SCC 559).
Reply to the writ petition has been filed on behalf of RPSC, wherein it has been inter-alia averred that advertisement was issued for appointment initially against 540 posts of Medical Officer, which was enhanced as per requisition of State Government to the extent of 1214 posts in various categories; and the Full Commission took decision to invite candidates for interview pursuant to advertisement impugned; in the ratio of 1:2 against vacancies advertised, candidates were called for interview of various categories held from 12/01/2011 to 14/02/2011; and when candidate appeared, his eligibility could be looked into on the date of interview, and not prior thereto; as such, those who could not have been found eligible in terms of advertisement, certainly the decision has been taken by the Commission not to permit them to participate in the process of selection.
Bunch of instant petitions being filed by such petitioners with the grievance that even if they have not completed their rotating internship of 12 months on the date of interviews, they could be held to be eligible, but has already been rejected by the Court in CWP-343/2011 vide judgment dt.13/01/2011 (supra).
Counsel appearing for respondents submits that the PSC is within its competence to hold screening test when a large number of applications are received with reference to advertisement for short-listing the candidates and permitting them to participate in the process of selection in view of R.19 of Rules, 1963; and pursuant to condition stipulated in the advertisement impugned, decision was taken for short-listing candidates by mode of holding screening test and has been upheld by Apex Court, which too has not been questioned even by instant petitioners. In support, Counsel placed reliance upon decisions of this Court in Dr. Bheru Singh Vs. State (2008 (2) WLC 656) and of Apex Court in Andhra Pradesh Public Service Commission Vs. Baloji Badhavath (2009 (5) SCC p.1).
This Court has considered rival contentions advanced at the bar and with their assistance, examined material on record. Before examining the question raised, it will be relevant to first take note of the resume of relevant Rules. Post of Medical Officer is included in Schedule-I (B-Junior Post) appended to the Rajasthan Medical & Health Service Rules, 1963 (Rules, 1963), is to be filled 100% by direct recruitment on the basis of interview in terms of Part-IV, which prescribes the procedure for direct recruitment under the Scheme of Rules. At a later stage, an omnibus amendment was made by Rajasthan Various Service (Amendment) Rules, 1999 (Amendment Rules, 1999) vide notification dt.17/09/1999 whereby it has been provided that candidate having appeared or appearing in final year examination of the course, which is a requisite educational qualification for the post as mentioned in the Rules or Schedule for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired requisite educational qualification to the appropriate selection agency. In the Schedule appended to Amendment Rules, 1999, Rajasthan Medical & Health Service Rules, 1963 has been referred to at S.No.22. Relevant amendment under Rules, 1999 reads ad infra:
2. Amendment. - In the existing rule as mentioned in Column Number 3 against each of the Service Rules as mentioned in Column Number 2 of the Schedule appended herewith, the following proviso shall be added, namely :
Provided that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or Schedule for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency: -
(i) before appearing in the main examination, where selection is made through two stages of written examination and interview;
(ii) before appearing in interview where selection is made through written examination and interview.
(iii) Before appearing in the written examination or interview where selection is made through only written examination or only interview, as the case may be.
R.19 of Rules, 1963 reads ad infra:
19. Scrutiny of applications. - The Commission shall scrutinize the applications received by them and require as many candidates qualified for appointment under these Rules as seem to them desirable to appear before them for interview:
Provided that the decision of the Commission as to the eligibility or otherwise of a candidate shall be final.
In terms of advertisement impugned, selection was to be made on the basis of interview alone; however, screening test was held only for short-listing the candidates, which is not a part of the process of selection.
R.19 clearly provides that merely because candidate is eligible holding academic qualification, does not hold indefeasible right for calling to appear in the interview, and in case of a large number of applications being received, the Commission is at its discretion to adopt any method for short-listing the candidates and holding screening test is one of the approved mode for shortlisting to restrict number of applicants for being called in the process of interview, who are qualified for appointment under the scheme of Service Rules as seem to them desirable to appear for interview in terms of the scheme of Rules, 1963.
In the instant case, since there were large number of candidates having applied for pursuant to advertisement impugned, the Commission under the powers vested in it, took decision to hold screening test on 05/12/2010; and the Full Commission took decision on 22/12/2010 in calling the candidates in the ratio of 1:2 for interview; and accordingly, candidates who finally having fallen within the ratio fixed after short-listing, were called for interview held from 12/01/2011 and continued for over a month upto 14/02/2011 while taking note of the amendment Rules, 1999 (supra) where eligibility of applicant was to be looked into on the date of interview and not prior thereto.
It was not the case of petitioners that short-listing was not permissible and the only grievance raised by petitioner is that the decision taken by the PSC was in violation of R.19 of Rules, 1963 in regard to screening test. Taking note of judgment of Division Bench in Dr.Bheru Singh Vs. State (2008(2) WLC 657) and after examining R.19 of Rules, 1963, it has been upheld that screening test could be held for short-listing candidates while being called for interview.
Quota para 10
10. The Commission as a matter of policy has taken a decision that if number of applications exceed three times the posts so advertised, then number of candidates shall be called for interview on the basis of screening test. A close look at Rule 19 would show that upon receipt of the applications, the Commission scrutinizes the applications so received and require the qualified candidates for appointment as may be found desirable to appear for interview. To achieve this, when number of applications exceed three times the posts so advertised, the holding of screening test to shortlist candidates cannot be said to suffer from any legal flaw. Merely because the petitioners were appointed on urgent temporary basis under Rule 26 of the Rules of 1963, they do not get entitled for being exempted from screening test. In no way they are class separate or different from other applicants insofar as screening test is concerned.
In the instant case, once the Commission has held screening test in exercise of powers U/r 19 of Rules, 1963, for short listing of candidates for being called for interview in the ratio of 1:2 and eligibility in terms of amendment made under Rules, 1999 vide notification dt.17/09/1999 could be examined by the Committee on the date when the applicant appeared for interview and not prior thereto; and if one does not hold minimum qualification including rotating internship of 12 months on the date of interview, certainly as held by Co-ordinate Bench in CWP-343/2011 (Nishant & Ors Vs. State) & cognate cases (supra) vide judgment dt.13/01/2011, they could not be permitted, if not eligible on the date of interview.
But, once they having qualified in screening test, and fallen within the ratio of 1:2 as per the decision of Full Commission taken on 22/12/2010, the PSC was under obligation to call upon such of the candidates for interview and if either of candidates was not eligible having not completed rotating internship of 12 months on the date of interview, and as such being not eligible, his form could have been rejected by Commission but the scrutiny could have been made only when the applicant appears for interview and not prior thereto.
Thus, submission made by Counsel for petitioners that R.19 has been misinterpreted and since in-eligible candidates who were not holding rotating internship of 12 months on the date of interview were also permitted to participate in the process of selection, resulting into depriving a right of fair consideration of the petitioners who were otherwise eligible, in the opinion of this Court is of no substance for the reason that eligibility of the candidate who was called for interview obviously after being short-listed was required to be examined when he appeared for interview and not prior thereto as such once the full Commission in its meeting held on 22/12/2010 took decision to call candidates in the ratio of 1:2, candidates more than twice the number of vacancies could not have been called for interview.
At this stage, it will be relevant to record that statement has been placed by the PSC which discloses that against 1214 vacancies of medical Officer of various categories advertised pursuant to impugned advertiement, 2881 candidates in the ratio of 1:2 were declared successful for being called for interview. Out of which 788 candidates did not appear for interview and have remained absent in course of interview; while candidatures of 59 were rejected and in all 2034 candidates appeared for interview & participated in the process of selection.
Be that as it may, all those 2881 having qualified in screening test and fallen within ratio of 1:2, could have been considered to be qualified by the Commission in terms of amendment Rules, 1999 and their eligibility could be examined when the applicant appeared for interview, and not prior thereto and there appears to be a complete fallacy in the submission made by the Counsel for obvious reason that when there is no mechanism provided to examine eligibility of candidates prior to calling for interview, no decision could have been taken by the PSC prior thereto and these all are exigencies of what has been urged by Counsel for petitioners, which has to be taken note of by recruiting agency and this Court would like to observe that whatever the mode/method of selection being adopted by the recruiting agency that cannot in any manner be absolute but what is required to be looked into that arbitrariness which is the evil of the day to the extent possible be minimized and in the instant case, as per factual matrix having come on record, 788 candidates remained absent and candidature of 59 were rejected and the applications rejected by the PSC were lesser in numbers and in such selection process held in large scale, method has to be adopted that can minimize the arbitrariness to the extent possible but it cannot be ruled out as such, and being an exigency, it has to be accepted.
As regards judgment of Apex Court, on which Counsel for petitioner has placed reliance in State of Punjab Vs. Manjit Singh (2003(11) SCC 559), it was a case where the Commission while taking decision to hold screening test fixed minimum qualifying/cut off marks for general category & reserved category but there was no provision under Rules for the Commission to take such decision for fixing minimum cut off marks; and when a number of candidates in terms of the ratio fixed did not qualify with minimum cut off marks, they were not called for interview and at this stage it was observed by Apex Court that to the extent, candidates are required to be called for interview in the ratio decided by the Commission, persons with whatever percentage above or below fixed would be eligible to be called for further test and no cut off marks could have been fixed in the absence of any rule to this effect, and accordingly it was held that merely applicants did not qualify with minimum cut off marks fixed by the Commission for screening test, they cannot be held to be ineligible in participation of process of selection since over-all suitability could be adjudged by interview.
The cited judgment (supra) is of no assistance to the petitioners for the reason that in instant case, the Commission took decision to call the candidates in the ratio of 1:2 and the petitioners were not declared eligible for participation and no minimum qualifying cut off marks were fixed and the petitioners were not permitted to participate in the process not for the reason that they have not been able to achieve minimum cut off marks in the screening test but since they did not fall within the ratio of 1:2 as per decision of the Full Commission dt.22/12/2010, and in fact, the process adopted by the Commission in the instant case is in conformity with the law laid down by Apex Court (supra).
Further submission made by Counsel for petitioner that they were deprived of their right of fair consideration is of no substance for the reason that only such candidates could have been called for interview who have fallen within ratio of 1:2 against advertised vacancies. As observed (supra), eligibility in terms of amendment Rules, 1999 could be looked into in the case where selections are based solely on the interview of candidates while they appeared and no such decision could be taken by the PSC prior thereto. In the opinion of this Court, the petitioners have not been deprived of their right of fair consideration in process of selection held pursuant to advertisement impugned.
Consequently, writ petitions fail and are hereby dismissed. No costs.
(Ajay Rastogi), J.
K.Khatri/p16/ 142CW2011RsrdApr19R19ScrngTst.doc