Uttarakhand High Court
Deepak Joshi And Others .... ... vs State Of Uttarakhand And Others on 23 September, 2024
Bench: Manoj Kumar Tiwari, Pankaj Purohit
2024:UHC:6927-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.592 of 2024 (S/B)
Deepak Joshi and others .... Petitioners
Versus
State of Uttarakhand and others ....Respondents
Present:-
Mr. T.A. Khan, learned Senior Counsel assisted by Mr.
Mohd. Shafy, learned counsel for petitioners.
Mr. G.S. Negi, learned Addl. C.S.C. for State of
Uttarakhand/respondent nos.1 & 2.
Mr. Ramji Shrivastava, learned counsel for respondent no.3.
Mr. Sandeep Tiwari, learned counsel for selected candidates.
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Hon'ble Manoj Kumar Tiwari, J. (Oral) Petitioners possess Diploma in Lab Technician Course, which makes them eligible for appointment as Lab Technician in Government Medical Colleges of Uttarakhand. Uttarakhand Medical Service Selection Board advertised 104 vacancies on the post of Lab Technician in different Government Medical Colleges, within the State vide notification dated 13.08.2021. Petitioners applied for the post of Lab Technician, pursuant to the said advertisement, however, they were declared unsuccessful in the selection. Now, they have approached this Court, challenging validity of Rule 8 of the applicable Recruitment Rules on the ground that Diploma Holders and Degree Holders were made to appear in the Common Written Examination for selection to the post of Lab Technician. They have also sought 1 2024:UHC:6927-DB various other reliefs. The prayers made in the writ petition are extracted below for ready reference:
"I. To issue a writ, order or direction in the nature of "Certiorari" quashing Clause-8 of the Rules known as "Uttarakhand Medical Education Department Technician (Lab/OT/CSSD, Dental etc.) Cadre Service Rules-2020", so far these rules do not provide separate provision of seats for Diploma Holders for the recruitment on the post of Lab Technician.
II. To issue a writ, order or direction in the nature of "Certiorari" quashing the advertisement bearing no.UKMSSB/Examination (Tech.)/02/2020-21/465, dated 13.08.2021 (Annexure No.2 to the writ petition) with regard to the post of Lab Technician.
III. To issue a writ, order or direction in the nature of "Mandamus" commanding the respondents to cancel the examination conducted by the respondents in pursuance to the advertisement bearing no.UKMSSB/Examination (Tech.)/02/2020-21/465 dated 13.08.2021 with regard to the post of Lab Technician.
IV. To issue a writ, order or direction in the nature of "Mandamus" commanding the respondents to make a provision in the Rules known as "Uttarakhand Medical Education Department Technician (Lab/OT/CSSD, Dental etc.) Cadre Service Rules-2020" disclosing therein that there will be a separate number of posts of Lab Technicians, which should be filled up by the candidates having the qualification of "diploma" in "Lab Technician", registered with the Uttarakhand State Medical Faculty."
2. Petitioners have challenged validity of Rule 8 of the relevant Recruitment Rules on the ground that it violates the equality clause contained in Article 14 of Constitution of India, inasmuch as, candidates, who possessed Diploma in Lab Technician Course and Degree in Medical Lab Technology Course, cannot be asked to face the same selection process and, doing so, would amount to treating unequals as equal, which is impermissible.
3. From perusal of the Recruitment Rules, it is revealed that Diploma Holders as well as Degree Holders 2 2024:UHC:6927-DB in Lab Technology Course are eligible for appointment as Lab Technician.
4. Learned Senior Counsel for the petitioners contended that Degree Holders are more qualified than Diploma Holders, therefore, Diploma Holders cannot compete with Degree Holders, if written examination is held in common. He further submits that, in the Recruitment Rules, separate quota should be provided for Diploma Holders or a certain number of vacancies should be kept apart for Diploma Holders to ensure that they are adequately represented in service.
5. Per contra, learned counsel for the respondents contended that the fact that Diploma Holders would participate in a Common Written Examination with Degree Holders was known to petitioners before applying for appointment; petitioners participated in the selection without any demur and when they are unsuccessful, they have turned around for questioning validity of Rule 8. Thus, it is contended by learned counsel for the respondents that challenge to Rule 8, is without any substance; petitioners are estopped from challenging the Rules, once they are declared unsuccessful in the selection.
6. This Court finds substance in the contention raised on behalf of respondents. Which qualification is suitable for appointment to a particular post has to be decided by the employer. Likewise the quota, if any, to be provided to different qualification holders can only be fixed by the employer. State, as employer, has framed Recruitment Rules, in exercise of power under proviso to 3 2024:UHC:6927-DB Article 309 of Constitution of India. As employer, State is free to decide whether to hold Common Selection for Diploma Holders and Degree Holders. Not providing separate quota for different qualification holders, is also within domain of the State/Rule making authority, and cannot be faulted.
7. Learned State Counsel as well as learned counsel for the Selecting Body submit that only general questions were asked in the written examination to test basic knowledge of the subject, and Degree Holders did not get any advantage in the written examination and Diploma Holders have also qualified in the examination in sizeable number.
8. Law is well settled that a statutory provision can be declared invalid/ultra vires on limited grounds, e.g., infraction of a provision contained in Part III of the Constitution or lack of legislative competence. The ground taken by petitioners for challenging validity of Rule 8 is not sufficient for declaring Rule 8 invalid. As employer, State Government is free to decide syllabus or the questions to be asked in the written examination. There is no allegation that the questions that were asked gave edge to Degree Holders or that the questions were framed in such a manner, so as to give advantage to Degree Holders at the cost of Diploma Holders.
9. Mr. Sandeep Tiwari, learned counsel appearing for the selected candidates submits that, in the selection in question, no special advantage was available to Degree Holders and there was a level playing field available to 4 2024:UHC:6927-DB Degree Holders and Diploma Holders, due to nature of the questions asked in the written examination.
10. It is not in dispute that in the advertisement dated 13.08.2021, it was clearly indicated that both, Degree and Diploma Holders, are eligible for appointment as Lab Technician. Petitioners had sufficient notice that they would have to compete with Degree Holders. If petitioners had any issue with holding of Common Selection for Degree and Diploma Holders, then they could have questioned the advertisement and/or Recruitment Rules before participating in the selection. After being declared unsuccessful, it is not open to petitioners to turn around and question Rule 8 of the Recruitment Rules, by contending that it is violative of Article 14 of the Constitution. Hon'ble Supreme Court in the case of "State of Uttar Pradesh Vs. Karunesh Kumar & others, reported in 2022 SCC On Line SC 1706, has considered and discussed entire law on this aspect.
11. Learned counsel for the petitioners then submitted that, out of 100 multiple choice objective type questions asked in the examination, 85 were taken from a website known as 'www.labtestguide.com', which indicates that possibility of questions being leaked to candidates was quite high and, thus, purity of selection was compromised.
12. The submission that 85 questions were taken from a single source, in itself, does not support the contention that purity of the selection was compromised. Except the bald submission that 85 questions were taken from a single website, there is no other material on 5 2024:UHC:6927-DB record to indicate that the questions were leaked or purity of selection was compromised. Purity of selection may be compromised, even when all questions are framed by the paper setter or each question is taken from a different text/source.
13. Learned counsel appearing for respondents submit that, nowadays, every information is available on internet, therefore, every question asked in any examination would find place in one or the other website. They submit that it is not the contention of the petitioners that the questions were taken from same Book/Guide locally published in Uttarakhand, which may give rise to suspicion of foul play in the matter.
14. Mr. Sandeep Tiwari, learned counsel appearing for the selected candidates refers to the text downloaded from the website, namely, Lab Test Guide (Annexure No.8 to the writ petition). From perusal of the said document, it is revealed that it was last updated on 01.08.2024. Learned counsel for the respondents submit that the written examination was held on 02.07.2023 and question paper was set at least six months prior to holding of written examination, therefore, the allegation made by petitioners that 85 questions were borrowed from the said website, is incorrect, as many questions, which were not there in the website about two years ago, when question paper was being set, were added subsequently when website was updated from time to time. It is further contended by learned counsel for the respondents that, in the website, there were more than 5000 questions, after it was updated on 01.08.2024 and 6 2024:UHC:6927-DB there is nothing wrong, if some questions asked in the examination are found in the website also.
15. It is further contended by learned counsel for the respondents that there is no prohibition, either in the relevant Rules or any Government Order, that the multiple choice questions, to be asked in an examination cannot be sourced or taken from a website. It is further contended that, in every selection, questions are taken from some text/study material and it is not the allegation that the questions asked in the examination were made known to the candidates, they being taken from some guide or key, published locally. They contend that internet is biggest source of information on any subject today and there is nothing objectionable, if some of the questions asked in the written examination are also available on a particular website.
16. Learned counsel for the Selecting Body submits that questions for testing basic knowledge of the concerned subject were asked in the written examination, therefore, selection process does not get vitiated, if some questions find place in a book or website directly dealing with the subject. He further submits that the questions asked in the written examination are differently worded, therefore some similarity with the questions mentioned in the website will not vitiate the selection.
17. Learned counsel for the petitioners then contended that there were only 8 Chapters in the website consisting of 400 questions and, out of those 400 questions, 85 were asked in the written examination. However, there is no material on record to substantiate 7 2024:UHC:6927-DB the said contention. In the text of the website enclosed as Annexure No.8 to the writ petition, it is mentioned that there are more than 5000 multiple choice questions in the website, therefore, submission made on behalf of petitioners, cannot be accepted.
18. After hearing the rival contentions of the parties, this Court is of the considered opinion that the challenge thrown by petitioners, is without any substance.
19. This Court cannot direct the State Government to provide separate quota to Diploma Holders in the selection for appointment to the post of Lab Technician. It is for the employer to decide as to whether Degree Holders alone are to be appointed as Lab Technician or Diploma Holders are also to be permitted to participate in the selection. Since, State Government has declared Diploma Holders as eligible for appointment, therefore, it is for the State Government to take decision regarding quota, if at all, to be provided to Diploma Holders. Rule 8 of the Recruitment Rules cannot be declared unconstitutional, merely because separate quota is not provided to Diploma Holders or because Diploma Holders are made to appear in a Common Selection with Degree Holders for appointment as Lab Technician.
20. Reportedly, the candidate, who scored highest marks in the selection, is a Diploma Holder. This substantiates the submission made on behalf of the Selecting Body that simple questions, testing only basic knowledge of the subject, were asked in the written examination and both, Degree as well as Diploma 8 2024:UHC:6927-DB Holders, were given level playing field, during selection.
21. Even otherwise also, the grievance, if any, ought to have been raised by petitioners before applying pursuant to the advertisement dated 13.08.2021. In any view of the matter, challenge thrown by petitioners to the Rules, after participating in the selection, is not maintainable. Thus, there is no scope for interference.
22. The writ petition is devoid of merits, which is liable to be dismissed and is hereby dismissed. There shall be no order as to costs.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari,J.) 23.09.2024 Arti Digitally signed by ARTI SINGH ARTI SINGH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbe e418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4 A7B2E734BE2521F982, cn=ARTI SINGH Date: 2024.09.27 11:51:00 +05'30' 9