Rajasthan High Court - Jaipur
Irshad Rashid Pathan And Ors vs State (Medical And Health ) Ors on 7 May, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR SB Civil Writ Petition No.117/2012 (Irshan Rashid Pathan & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.583/2012 (Praneet Kumar & Anr. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.422/2012 (Om Prakash Saini & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.1205/2012 (Budhi Prakash Mishra & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.2225/2012 (Mahendra Singh Shekhawat & Ors. Vs. State of Raj. & Ors.) AND SB Civil Writ Petition No.429/2012 (Naved Miyan & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.488/2012 (Rajiv Kumar Dixit & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.1196/2012 (Chandra Prakash Sharma & Ors. Vs. State of Raj. & Ors.) AND SB Civil Writ Petition No.1725/2012 (Irshad Ali & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.532/2012 (Kajod Ram Saini & Ors. Vs. State of Rajasthan & Ors.) AND SB Civil Writ Petition No.15356/2011 Dinesh Sharma & Ors. Vs. Pharmaceutical Council of India, Jaipur & Ors. Date of Order : 07th May, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Sandeep Singh Shekhawat] Mr.Ram Pratap Saini ] Mr.Rajendra Vaish ] Mr.Suresh Charan ], for the petitioners Mr.G.S.Bapan, Advocate General assisted by Mr.V. Garg, for the State. Mr.M.A.Khan, for respondent University. Mr.M.S.Raghav, for the respondent PCI. Mr.Ashok Mishra with Ms.Sarita Mishra, for the respondent- RPC. By the court:
REPORTABLE:
This bunchof writ petitions pertains to selection to the post of Pharmacist. The respondent No.3 - Rajasthan University of Health Sciences (for short the RUHS) issued an advertisement calling for the application for the aforesaid post. Petitioners submitted their application forms, however, challenge to the selection has been made on following grounds:
(i)The candidates having qualification of Bachelor in Pharmacy (for short B.Pharma) and Master of Pharmacy (for short M.Pharma) have wrongly been held to be eligible for the post of Pharmacist.
(ii)The selection to post of Pharmacist should be conducted by the Rajasthan Public Service Commission (for short RPSC) and not by the RUHS.
(iii)Award of bonus marks for experience to the candidates working in state service or in the services of certain schemes is illegal.
(iv)The unfilled seats meant for ex-serviceman is to be filled by general category.
Learned counsel for the petitioners submit that rules of Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short Rules of 1965) provides for the qualification for the post of Pharmacist, which is Diploma in Pharmacy (for short D.Pharma) and registration with Rajasthan Pharmacy Council. The qualification of B. Pharma and M. Pharma is not included as one of the qualification for the post of Pharmacist yet the respondents are permitting candidates having the aforesaid qualification in violation of Rules of 1965. A reference of recruitment held by other agencies is given wherein qualification provided for the post of Pharmacist is D.Pharma and not B.Pharma or M. Pharma.
It is further submitted that B.Pharma and M. Pharma cannot be said to be higher qualification than D.Pharma. A candidate undertaking D.Pharma is to underwent training from time to time whereas such training is not provided in B. Pharma and M. Pharma courses. The respondents have considered B. Pharma and M. Pharma candidates to be eligible treating those qualification higher than D.Pharma in ignorance to the syllabus set out for three different courses. Accordingly, the respondents be restrained to consider any candidate for selection, who is not having minimum qualification of D.Pharma. To simplify the aforesaid, a candidate with B. Pharma and M. Pharma qualification should not be treated as eligible for the post of Pharmacist.
Averting on the second issue, a reference of Article 320 of Constitution of India is given to indicate that selection in State or Central Services has to be by the Public Service Commission (for short PSC) and not by the RUHS. The respondents have ignored the aforesaid provision while allowing selection to the post of Pharmacist by RUHS, thus issuance of advertisement for selection by the RUHS is without authority of law.
It is lastly urged that award of bonus marks for experience to the candidates working in State Service or under National Rural Health Mission Programme (for short NRHM) is illegal. The advertisement provided two bonus marks for each year's experience to such candidates with ceiling of 10 marks. The respondents later on made amendment to provide four bonus marks for each year with the ceiling of 20 marks. The award of bonus marks for experience to those, who are already in state service or working under NRHM and other schemes is wholly illegal.
Referring to the judgment of Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1, it is submitted that bonus marks cannot be awarded for recruitment but can be for regularization. In the aforesaid background, award of bonus marks goes contrary to the judgment in the case of Uma Devi (supra). Specific reference of para No.53 of the aforesaid judgment is given to substantiate the argument/s. The respondents be restrained to award bonus marks towards experience either to those working with the State Government or under the Schemes like the NRHM or other scheme included by way of amendment in the Rules and Corrigendum.
It is alternatively submitted that few petitioners gained experience of the post while working with the Cooperative Societies and in other schemes. They were initially not given bonus marks but in view of the amendment in the Rules, they are entitled to get bonus marks for experience.
It is further stated that certain posts have been reserved for ex-serviceman but advertisement does not indicate that on unavailability of required number of ex-serviceman how vacant posts would be given treatment. Thus, the respondents be directed that if any post of ex-serviceman remains unfilled then it may be filled from open category.
Learned Advocate General Mr.G.S.Bapna and learned counsel Mr.M.A.Khan, on the other hand submit that qualification of B.Pharma and M. Pharma is higher qualification than D.Pharma. A corrigendum was accordingly issued to hold candidates, having qualification of B.Pharma and M. Pharma, as eligible. It was pursuant to decision taken by the Government and conveyed to the RUHS. It is settled law that while making recruitment, qualification higher than what is prescribed under the Rules can be provided but it cannot be a qualification lower than what has been given under the Rules.
Referring to the syllabus for the course of B. Pharma and M. Pharma, it is submitted that B. Pharma is having three years' course and if syllabus is looked into, studies therein are greater than what is provided for the D.Pharma. In fact, D. Pharma is only of two years' course. The course of M. Pharma is undertaken by the candidates after obtaining qualification of B. Pharma, which is Masters Degree in Pharmacy, thus still higher qualification than D. Pharma and B. Pharma. The petitioners erroneously made comparison of two courses with D.Pharma based on practical training only. In fact, decision of the Government to hold qualification of B. Pharma and M. Pharma higher than D. Pharma has not been challenged and material produced along with the writ petition is sufficient to prima facie indicate that qualification of B. Pharma and M. Pharma is higher than the qualification of D. Pharma.
A reference of judgment of Hon'ble Apex Court in the case of S.Satyapal Reddy & Ors. Vs. Government of A.P. & Ors. reported in (1994) 4 SCC 391 has been given to show that while issuing advertisement, higher qualification then prescribed under the Rules can be kept. The challenge to provide higher qualification for the selection could not sustain before the Hon'ble Apex Court. It was held that recruitment agency can provide higher qualification for eligibility than provided under the Rules but it cannot be lower than what has been provided therein. The present writ petitions are covered by the judgment aforesaid. The first issue raised by the petitioners deserves to be rejected.
Coming to the second issue, it is submitted that Article 320 of Constitution of India does not provide for recruitment for all the post by the RPSC. The petitioners have not given proper interpretation of Article 320 of Constitution of India. A reference of Rajasthan Public Service Commission (Limitation of Functions) Regulations, 1951 (for short the Regulations of 1951) has been given to indicate that selections in subordinate service are not necessarily by the Commission. It is, accordingly submitted that Article 320 of Constitution of India has no application in the present matters and otherwise, it is to be looked into in reference to the Regulations of 1951. A reference of amendment in the Rules of 1965 has also been given to indicate that Rule 19 as was then existing has been amended. Now, it provides for appointment on the post of Pharmacist through written examination to be conducted by the Appointing Authority. It also provides for bonus marks. The Rule aforesaid was amended vide Notification dated 24th November, 2011. The said amendment in the Rules has not been challenged by the respondents.
So far as RUHS is concerned, it is only an agency to hold selections on behalf of the Appointing Authority and a direction and authorization to this effect was given by the State Government vide order dated 25th November, 2011. This is at the instance of the Appointing Authority. In the aforesaid background, there is no illegality if selections are conducted by the RUHS. It is further urged that petitioners having submitted their application forms for selection are now challenging the jurisdiction of RUHS.
Coming to the next issue regarding award of bonus marks, it is submitted that amendment for award of bonus marks was made vide Notification dated 24th November, 2011 followed by further Notification dated 21st February, 2012. The Appointing Authority has been given discretion to provide bonus marks to those, who are already in government service or working in different schemes named therein. The challenge to the amended rules has not been made by the respondents, thus prayer in the writ petition is nothing but goes dehors the rules. Initially, two marks were allowed in favour of those who are already in service but a decision was taken by the Government to allow four bonus marks with ceiling of 20 marks to those already in government service or working under different schemes named in the Notification dated 21st February, 2012. The award of bonus marks is towards experience and if a candidate in NRHM has earned experience of two or three years only, as the scheme was started sometime in the year 2008, then he would be entitled for the bonus marks to that extent only. Similar exercise would be undertaken in regard to other candidates.
So far as judgment in the case of Uma Devi (supra) is concerned, it makes observations for bonus marks towards experience to those, who are already in service. The amendment in the Rules is not based on said judgment but by the decision taken by the Government itself and otherwise, it is akin to the ratio propounded by the Hon'ble Supreme Court in the case of Uma Devi (supra). In the aforesaid background, challenge to award of bonus marks for experience is not sustainable unless a challenge to the rule is made.
So far as quota meant for ex-serviceman is concerned, unfilled seats would be filled from general category other than those reserved for SC/ST and other category, i.e., in regard to the social reservation. Accordingly, if any unfilled seats remain in the category of ex-serviceman, it would be filled from open category.
I have considered the submissions made by learned counsel for the parties and scanned the matter carefully.
It is a case where respondent-RUHS issued advertisement for selection to the post of Pharmacist. Certain corrigendums were issued from time to time. The first issue raised for my consideration is as to whether a candidate holding qualification of B. Pharma or M. Pharma can be considered to be eligible for appointment.
A specific challenge is made to the corrigendum and letter issued by the respondent-RUHS on 28th November, 2011. The argument aforesaid is in reference to Rules of 1965 and also to say that qualification of B. Pharma and M. Pharma is not a higher qualification. It would gainful to quote Schedule which provides required qualification as amended vide Notification dated 24th November, 2011, thus it is quoted for ready reference:
Department of Personnel (A-GR.II) NOTIFICATION Jaipur, November 24, 2011 R.S.R. 94.- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Government of Rajasthan hereby makes the following rules further to amend the Rajasthan Medical & Health Subordinate Service Rules, 1965, namely:-
1.Short title and commencement.-(1) These rules may be called the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2011.
(2) They shall come into force on the date of their publication in the Official Gazette.
2.Amendment of rule 19.- The existing proviso to rule 19 of the Rajasthan Medical and Health Subordinate Service Rules, 1965, herein after referred to as the said rules, shall be substituted by the following, namely:-
Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority and the merit shall be prepared on the basis of marks obtained in such written examination and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government or National Rural Health Mission.
Provided further that the decision of the Commission or Appointing Authority, as the case may be, as to the eligibility or otherwise of a candidate, shall be final.
3.Amendment of Schedule I.- In Schedule-I appended to the said rules, under the heading Group 'A' (Medical Side) (Separate Male and Female Cadres), the existing part (b) against serial number 4 and entries thereto shall be substituted by the following, namely:-
1 2 3(i) (ii) 4 5 6 7 (b) Pharmacist 100.00% 1.Diploma in Pharmacy; and 2. Registered as Pharmacist in Rajasthan Pharmacy Council - -
Persons, whoa re working as Pharmacist cum-Compounder, shall be re-designated as Pharmacist from the date of commencement of these amendment rules.
[No.F.2(I) DOP/A-II/82] By order and in the name of the Governor, (Nalini Kathotia) Deputy Secretary to the Government.
Perusal of Notification quoted above reveals that one should be in possession of D. Pharma and registered as Pharmacist under Rajasthan Pharmacy Council.
The question comes as to whether a candidate other than holding the qualification of D. Pharma can be held to be eligible?
The respondents have came with the case that qualification of B. Pharma and M. Pharma is higher than the qualification of D. Pharma, thus a candidate with higher qualification can always be permitted or be held qualified. Learned counsel for the petitioners, on the other hand submit that qualification of B. Pharma and M. Pharma are not similar to D. Pharma or higher.
For the aforesaid purpose, I have gone through the decision taken by the Government wherein qualification of B. Pharma and M. Pharma is held to be higher qualification than D. Pharma. A challenge to the aforesaid has been made only on the ground that practical training is not provided for B. Pharma course. In my opinion, aforesaid cannot be a determining factor. This is moreso when, B. Pharma Course is of three years course and M. Pharma is subsequent to it. As against the aforesaid, D. Pharma is only of two years' course. If the syllabus of B. Pharma and M. Pharma is taken note into consideration then it provides better syllabi and wast studies in the field of pharmacy. The aforesaid observation is made only for prima facie satisfaction as to whether B. Pharma and M. Pharma can be considered to be higher qualification than D. Pharma. It is taking note of limited jurisdiction of this Court under Article 226 of Constitution of India.
The question now comes as to whether a candidate with higher qualification can be permitted for the selection.
The issue aforesaid has already been decided by the Hon'ble Apex Court in the case of S. Satyapal Reddy & Ors. (supra). Therein, it was held that a candidate in possession of higher qualification can always be held eligible, rather recruitment agency can provide higher eligibility for selection then provided under the Rules. In the present matters, those holding the qualification of D. Pharma are eligible for selection. The only decision taken by the Government is to treat candidates having B. Pharma and M. Pharma qualification to be eligible for the post in reference.
In my opinion, there is no illegality in the action of respondents if a candidate with B. Pharma and M. Pharma is held to be eligible being higher qualification than D. Pharma.
A reference of recruitment by other State and Central Government has been given where qualification of D. Pharma alone has been prescribed for the post of Pharmacist. I find that comparison of recruitment by different State or Central Government cannot be made because selections have to be made as per Rules applicable to the post. It should not be dehors the rules. In the present matters, respondents took a decision to hold candidates with B. Pharma and M. Pharma to be eligible for the reasons already narrated above, thus recruitment by other governments cannot govern present selection. The first question is accordingly, answered against the petitioners and in favour of the respondents.
So far as second issue is concerned, it is in reference to Article 320 of Constitution of India.
It is submitted that selection in question should be held by the RPSC only. A reference of Rules of 1951 has been given by the respondents to indicate that selection to the subordinate services need not to be by the Commission and my attention is also drawn towards amendment in the Rules vide Notification dated 24th November, 2011. In view of amendment, I find that now the jurisdiction to hold selection for the post of Pharmacist does not exist with the Commission. Amendment in the Rules of 1965 vide Notification dated 24th November, 2011 have already been quoted earlier. The selection has to be by the Appointing Authority.
The perusal of amendment in the rules shows that selection has to be conducted by the Appointing Authority and not by the Commission. The Rule aforesaid has not been challenged showing to be in violation of Article 320 of Constitution of India. In absence of challenge, the authority lies with Appointing Authority to hold selection. In the present matter, my attention is drawn towards an order issued by the Government authorizing RUHS to hold selection on behalf of Appointing Authority. In the aforesaid background, I do not find that selection in question has to be conducted by the RPSC, rather in absence of challenge to the amended rules, aforesaid issue cannot be decided in favour of petitioners. This is moreso when, authority of RUHS has been challenged only on the strength of Article 320 of Constitution of India and not on the ground that it is not an Appointing Authority under the amended Rules. The aforesaid plea is missing in the writ petition. Accordingly, I do not find any illegality if the selection are conducted by the RUHS, moreso when, petitioners have failed to show any prejudice if the selections are conducted by the University, rather they have already submitted their application forms for selection to RUHS. Accordingly, second issue raised by the petitioner cannot be accepted.
Other issue pertains to award of bonus marks towards experience.
Initially, respondents took a decision to provide two bonus marks with the ceiling of 10 marks to those, who are in government service and working under NRHM. It was pursuant to amendment in the Rules vide Notification dated 24th November, 2011. The respondents, however, made further amendment in the Rules vide Notification dated 21st February, 2012. This is to provide bonus marks towards experience to those working in the state service and in various other schemes like NRHM, BPL Jeevan Raksha Kosh, Cooperative societies, etc. Amended rule is quoted hereunder for ready reference:
GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (A.GR.II) No.F.2(1) DOP/A-II/82 dt. 21.02.2012 NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan Medical & Health Subordinate Service Rules, 1965, namely:
1.Short title and commencement.(1) These rules may be called the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2012.
(2) They shall be deemed to have come into force with effect from 24.11.2011.
2. Amendment of rule 19.-The existing first proviso to rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 shall be substituted by the following, namely:
Provided that in case of appointment to the post of Pharmacist, the written examination shall be conducted by the Appointing Authority and the merit shall be prepared on the basis of marks obtained in such written examination and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, institutes under Cooperative Department or Sahakari Upbhokta Bhandar.
By order and in the name of the Governor (Nalini Kathotia) Dy. Secretary to the Governor Perusal of Rule so amended indicates authority of respondents to provide bonus marks towards experience. The said rule has not been challenged by the petitioners to make out their case of arbitrariness in the hands of the respondents to provide bonus marks. This Court cannot issue direction contrary to statutory provisions unless it is stuck down. What should be bonus marks is left on the respondents and it is not indicated that bonus marks awarded is higher in inside. In the aforesaid background, even the last argument raised by the learned counsel for petitioners cannot be accepted.
So far as treatment to the ex-serviceman is concerned, it has already been agreed that unfilled seats would be filled from open category, thus issue aforesaid needs no direction. The position is same for those, who gained experienced while working in the Cooperative societies or in other scheme, thus entitled for bonus marks vide Notification dated 21st February, 2012, thus further direction is not required, rather they would be entitled for the bonus marks pursuant to the amended Notification and Corrigendums in the advertisement.
In view of discussion made above, I do not find any merit in these writ petitions, hence, the same are dismissed so as the stay applications.
(M.N. BHANDARI), J.
Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.