Punjab-Haryana High Court
Dr. Naresh Chauhan vs State Of Haryana And Others on 7 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.21548 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO. 21548 of 2013
DATE OF DECISION: FEBRUARY 07, 2014
Dr. Naresh Chauhan
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Sushil Jain, Advocate
for the petitioner.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has challenged the selection list/result dated 18.06.2013 for the post of District Ayurvedic Officer (Group-B) in Health & Ayush Department Haryana, on the ground that the criteria adopted by the Haryana Public Service Commission (hereinafter referred to as 'the Commission') is arbitrary, illegal and not in consonance with the statutory rules. Challenge is also posed on the ground that the petitioner who possesses Masters in Medicines (M.D.) and having the preferential qualification should have been appointed over and above selected candidates i.e. respondents 4 and 5 who only possess the minimum requisite qualifications. An additional ground has been taken that the Selection Committee has not been rightly constituted as the Expert Member did not Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -2- possess Post-graduation qualification.
Petitioner is working as a Ayurvedic Medical Officer in Government of Himachal Pradesh since the year 1999. He has an experience of 13 years and has also completed his Doctor of Medicine (M.D. Panchkarama) from National Institute of Ayurveda, Jaipur. An advertisement was issued by the Commission inviting applications for the posts of District Ayurvedic Officer (Group-B) in Health & Ayush Department Haryana. The last date for submission of the applications was 30.11.2011. Out of the total four posts advertised, two were for the general category and one each for Scheduled Castes and Backward Castes categories. The essential qualifications being fulfilled by the petitioner and also having Doctor in Medicine, the preferential qualification, petitioner applied for the said post through proper channel. 41 applications from the general category candidates were received by the Commission and the petitioner was called for interview vide letter dated 05.07.2012. The date of interview was 18.07.2012. The Interview Committee consisted of three persons, Members-cum-Acting Chairman, Member and an Expert of the field. According to the averment of the petitioner, the Expert present at the time of interview of the petitioner was having qualification of B.A.M.S. only. Assertion is that the interview was an eye-wash and no reasonable criteria was formulated or followed by the Selection Committee. He appeared and performed well in the interview. The result was declared in the month of June, 2013 where the name of petitioner did not figure and respondents 4 and 5 were selected against the posts meant for the general category. He came to know thereafter that they were not possessing the Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -3- preferential qualification of Master in Medicine but were only B.A.M.S. pass. Petitioner after obtaining the information under the Right to Information Act, 2005, has filed the present writ petition challenging the selection and appointment of respondents 4 and 5.
It is the contention of the counsel for the petitioner that as per the advertisement, the qualifications prescribed for the post apart from the essential qualifications mentioned, the preferential qualification as Doctor of Medicine in Ayurveda or Post-graduate in Ayurveda. Since the petitioner possessed Doctor of Medicine (M.D. Panchkarama) and thus possessing the preferential qualification was required to be selected and appointed over and above respondents 4 and 5 who were only B.A.M.S. pass. He contends that the preferential qualification would confer a right of selection upon the petitioner and for this assertion he places reliance upon the judgment of the Hon'ble Supreme Court in the case of The Government of Andhra Pradesh Vs. P. Dilip Kumar & another, 1993 (3) RSJ 27.
His further submission is that since the Selection Committee was not rightly constituted as the Expert was only graduate in Ayurveda (B.A.M.S.), the selection itself deserves to be set aside. Assertion has also been made that the criteria as laid down by the Commission for selection provides for only 40 marks for the personal achievements and 60 marks in interview which is highly excessive thus giving the leverage to the Selection Committee to manipulate by granting higher or lesser marks to the candidates resulting in arbitrary selection at the choice of the Committee constituted for holding the interview. On this basis, he contends that the selection and appointments of respondents 4 and 5 deserve to be set aside. Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -4-
I have heard the counsel for the petitioner and with his able assistance have gone through the record of the case.
The essential qualifications as prescribed for the post of District Ayurveda Officer (Group-B) under the advertisement are as follows:-
"Essential Qualifications:-
(i) A degree in Ayurvedic Unani System of Medicine from any University or Institution recognized by the Government.
(ii) Six years experience as Chikitsak (Physician/ Resident Physician (Ayurvedic/Unani) Or Eight year experience as Ayurvedic Medical Officer/ Unani Medical Officer in a Dispensary/ Hospital run by Government or any reputed or well organized private agency after attainment of minimum basic qualifications.
(iii) Knowledge of Hindi/Sanskrit upto Matric standard.
Preferential Doctor of Medicine in Ayurveda or Post Graduate in Ayurveda.
A perusal of the above would show that there are two parts with regard to the qualifications, one deals with the essential qualifications on possession of which a candidate would be eligible for consideration of appointment to the post and the other part is the preferential qualification. Possession of a preferential qualification would not ipso facto confer the right of selection over and above the candidates who possessed the essential qualifications. It means that if two candidates secure equal marks in the selection process, candidate with preferential qualification would be Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -5- selected over and above the candidate possessing the essential qualifications. This conclusion of mine is fortified by the criteria which has been adopted by the Commission for selection of the candidates for assessing the relative merit of candidates (Annexure P-8) which reads as follows:-
"Commission lay down the following criteria for assessing the relative merit of the candidates through viva-voce for selection to the post of District Ayurvedic Officer (Group-B) in Health and Ayush Department, Haryana:-
Total Marks of the viva-voce: 100 Marks
1) Personal achievements:- 40 Marks
i) Academic qualification:-
(a) Graduation degree in Ayurvedic Unani System of Medicine Below 60% marks (below 60% marks 15 marks 60% & above 20 marks
(b) Post graduate diploma in the relevant subject of a 03 Marks recognized University or Institute;
(c) Post graduate degree in the relevant medical field of a 05 Marks recognized University or Institute;
(d) Ph.D in the relevant subject from a recognized University 10 Marks Provided that a candidate having both the qualification mentioned at (b) and (c ) & (d) will not be awarded more than 10 marks
ii) Professions Experience:-
One mark per completed year of standing experience in 05 Marks medical and hospital profession after acquiring the requisite qualification subject to maximum of 05 marks. No mark will be given for house job.
iii) Published Works 05 Marks Publication work of high standard in journals of National or International Repute. One mark will be given for each publication in National level Journals and two marks for each publication in International journal subject to maximum of 05 marks.
2 Interview 60 Marks The interview will be conducted through oral discussion and questioning. The questions and discussion will be directed to ascertain the personal qualities, knowledge, awareness, intelligence, presentation, expression, poise, bearing, articulation & speaking ability etc. 60 marks are assigned for the interview with following break up:-
i) Knowledge, awareness & general interest etc. 20 Marks
ii) Intelligence, initiative, decision making, expression, 20 Marks presentation etc.
iii) Poise, bearing, behaviour, adaptability,articulation & 20 Marks other qualities Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -6- In the above criteria, due weightage has been given to the candidates who possess post-graduation qualification. Weightage of the 'Published Works' has also been given apart from the professional experience. Higher qualification, therefore, has been taken into consideration while assessing the relative merit of the candidates.
The challenge of the petitioner to the 60 marks assigned for interview being excessive cannot be accepted in the light of the fact that the post of District Ayurvedic Officer (Group-B) is a post where apart from performing the duties and responsibilities of treating patients, the person is required to perform administrative functions as well. The criteria and the break-up of marks for the interview (as reproduced above) fully justify the fixation of 60 marks for the interview. A reasonable classification has been drawn to assess the candidate in different fields which is required for the post of a District Ayurvedic Officer. All these are the necessary ingredients for evaluating the competence and suitability of a candidate for the post in question and thus, cannot be said to be unreasonable, arbitrary or unjustified. In various judgments passed by the Hon'ble Supreme Court of India, it has by now been settled that interview marks can be higher than the academic/preferential marks assigned for a candidate depending upon the post for which the selection and appointment is to be conducted.
The contention of the counsel for the petitioner that the constitution of the Selection Committee is defective as it did not have an Expert who was post-graduate in Ayurveda and, therefore, vitiates the selection, cannot be accepted in the light of the fact that the post-graduation qualification was not an essential qualification for the post but merely a Harish Kumar 2014.02.19 11:52 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.21548 of 2013 -7- preferential qualification which would operate at the stage of final selection of the candidate as has been held above. The challenge, thus, to the constitution of the Committee for conducting the interview cannot sustain.
The judgment relied upon by the counsel for the petitioner i.e. In P. Dilip's case (supra), the post in question was the Deputy Executive Engineer where in the rules after laying down the essential qualifications note was appended according to which post-graduate qualification was to be treated as an additional qualification and preference given to such candidates in the matter of recruitment. The Hon'ble Supreme Court had laid emphasis on the word 'additional qualification' to come to a conclusion that if such a candidate is available who has additional qualification, he would exclude the candidates with mere graduate qualification. The process of selection where preference rule was applied for first choosing the post- graduates and thereafter the graduate was under those circumstances upheld. Present is not such a case as the preferential qualification is not treated as an additional qualification as the essential qualification remains the same and due weightage has been given to the higher qualification possessed by the candidate as per the criteria laid down for selection while assigning marks.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
February 07, 2014 ( AUGUSTINE GEORGE MASIH )
Harish JUDGE
Harish Kumar
2014.02.19 11:52
I attest to the accuracy and
integrity of this document