Rajasthan High Court - Jodhpur
Zaiba & Ors vs State & Ors on 7 May, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14884 / 2016
1. Zaiba D/o Sh. Sayed Shahabuddin, Aged About 21 Years, R/o K-
39, Vishnu Colony, Near Madina Masjid, Chandna Bhakar, Kamla
Nehru Nagar, Jodhpur (raj.)
2. Kalpana Kumawat D/o Sh. Bhinwa Ram Kumawat, Aged About
22 Years, R/o Neel Ki Dhani, Padampura, Sargot, Kuchaman City,
District Nagaur (raj.)
3. Pooja Choudhary D/o Sh. Gajendra Singh, Aged About 20
Years, R/o Near Electric Power House, Ajmer Road, Degana,
District Nagaur (raj.)
4. Jitendra Kumar Agarwal S/o Sh. Om Prakash Agarwal, Aged
About 21 Years, R/o Ward No. 8, Garh Road, Uniyara, Tonk (raj.)
5. Manish Kumar Saini S/o Sh. Ramesh Chandra Saini, Aged About
21 Years, R/o Village Sarundla, Post Achalpura, Tehsil Sikray,
District Dausa (raj.)
6. Sheetal Kalasua D/o Sh. Sanjay Kalasua, Aged About 21 Years,
R/o Village Rastapal, Tehsil Samalwara, District Dungarpur (raj.)
(all the Petitioners At Present Students of Dr. S.N. Medical College,
Jodhpur Undergoing Internship Period of B.Sc (MLT) Course)
----Petitioners
Versus
1. The State of Rajasthan Throgh Its Principal Secretary,
Department of Medical, Health & Family Welfare, Govt. of
Rajasthan, Secretariat, Jaipur
2. The Director, Medical, Health & Family Welfare Services,
Directorate, Health Bhawan, Jaipur (raj.)
3. The Rajasthan Subordinate & Ministerial Services Selection
Board, State Institute of Agriculture Management Premises,
Durgapura, Jaipur, Through Its Secretary.
4. Dr. S.N. Medical College and Attached Group of Hospitals,
Jodhpur Through Its Principal & Collecter
----Respondents
Connected With
S.B. Civil Writ Petition No. 200 / 2017
Ankit Sharma Son of Shri Chandra Prakash, Aged About 23 Years,
Resident of Shivaji Chauk, Panchayat Samiti Roard, Anta, District
Baran, At Present Residing At Gali No.9, Bhagat Ki Khothi, Jodhpur
(Raj); (at Present Student of Dr. S.N. Medical College, Jodhpur
(2 of 11)
[CW-14884/2016]
Undergoing Internship Period of B.Sc. (MLT) Course)
----Petitioner
Versus
1. The State of Rajasthan Through Its Principal Secretary,
Department of Medical, Health & Family Welfare, Government of
Rajasthan, Secretariat, Jaipur (Raj.)
2. The Additional Director (Admn.), Medical, Health & Family
Welfare Services, Directorate, Health Bhawan, Jaipur (Raj.)
3. The Rajasthan Subordinate & Ministerial Services Selection
Board, State Institute of Agriculture Management Premises,
Durgapura, Jaipur (Raj.) Through Its Secretary
4. Dr. S.N. Medical College and Attached Group of Hospitals,
Jodhpur Through Its Principal & Controller
5. Rajasthan Para Medical Council Through Its Registrar, G-1,
Kishan Bhawan, Lal Kothi, Jaipur
----Respondents
S.B. Civil Writ Petition No. 2092 / 2017
Sarjeet S/o Late Shri Sohan Lal, Aged About 22 Years, Resident of
Indra Nagar Colony, Hiradas Circle, Bharatpur (Raj.); (at Present
Student of Dr. S.N. Medical College, Jodhpur Undergoing
Internship Period of B.Sc. (MLT) Course)
----Petitioner
Versus
1. The State of Rajasthan Through Its Principal Secretary,
Department of Medical, Health & Family Welfare, Government of
Rajasthan, Secretariat, Jaipur (Raj.)
2. The Additional Director (Admn.), Medical, Health & Family
Welfare Service, Directorate, Health Bhawan, Jaipur (Raj.)
3. The Rajasthan Subordinate & Ministerial Services Selection
Board, State Institute of Agriculture Management Premises,
Durgapura, Jaipur (Raj.) Through Its Secretary
4. Dr. S.N. Medical College and Attached Group of Hospitals,
Jodhpur Through Its Principal & Controller.
5. Rajasthan Para Medical Council Through Its Registrar, G-1,
Kishan Bhawan, Lal Kothi, Jaipur
----Respondents
(3 of 11)
[CW-14884/2016]
S.B. Civil Writ Petition No. 1995 / 2018
Jaishree Kamboj Daughter of Shri Balbir Chand, Aged About 24
Years, Resident of Ward No. 1, Guru Ramdas Colony, Shri
Vijaynagar, District Sri Ganganagar (Raj.).
----Petitioner
Versus
1. The State of Rajasthan Through Its Principal Secretary,
Department of Medical, Health & Family Welfare, Government of
Rajasthan, Secretariat, Jaipur (Raj.)
2. The Director, Medical, Health & Family Welfare Services,
Directorate, Health Bhawan, Jaipur (Raj.).
3. The Rajasthan Subordinate & Ministerial Services Selection
Board, State Institute of Agriculture Management Premises,
Durgapura, Jaipur (Raj.) Through Its Secretary.
4. Dr. S.N. Medical College and Attached Group of Hospitals,
Jodhpur Through Its Principal & Controller.
----Respondents
___________________________________________________
For Petitioner(s) : Mr. Deepak Nehra
Mr. Dilip Barupal & Ms. Vinita Kuri
For Respondent(s) : Ms. Sweta Bora on behalf of
Mr. Anil Bissa, AGC
Ms. Suman Porwal, Dy. Government Counsel
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 07.05.2018
1. The petitioners participated in recruitment process for the post of Lab Technician in pursuance of notification dated 10.10.2016 under the provisions of Rajasthan Medical & health Subordinate Service Rules, 1965 ('the Rules of 1965'). The petitioners applied and participated in the recruitment. Clause (6) (4 of 11) [CW-14884/2016] of the notification provides that a candidate should possess educational and professional eligibility at the time of submitting his/her online application form. The relevant portion of Clause (6) reads as follows :
Lab Technician (Post Code 02) Senior Secondary in Science with either Biology or Mathematics or its equivalent with diploma in Medical Lab Technician from an institute recognized by the Rajasthan State Government/ Central Government/ Rajasthan Para Medical Council AND Registered in Rajasthan Para Medical Council. AND Working knowledge of Hindi written in Devnagri Script and knowledge of Rajasthan Culture.
The petitioners filled offline application form and submitted their mark-sheet of B.Sc. (Medical Lab Technology) Part-III and admittedly the qualification was attained by the petitioners on or before the last date of submitting the application form i.e. 24.11.2016. The petitioners have challenged their disqualification on count of not having completed registration with Rajasthan Para-Medical Council, which is a condition in the advertisement and is also under challenge. The result was announced by the respondents on 18.10.2017 vide Annex.P/11 and 290 Lab Technicians were declared successful against the total 1394 posts. The petitioners' name was also there in the provisional select list declared by the respondents. The respondents at a subsequent stage reviewed the select list dated 18.10.2017 and out of 290 selected Lab Technicians, disqualified (5 of 11) [CW-14884/2016] 20 candidates from the select list on count of the fact that they did not have the registration of Rajasthan Para-Medical Nursing Council till the last date of filling of the form i.e. 24.11.2016.
Counsel for the petitioner categorically made a submission that the Rules of 1965 were amended by the Rajasthan Various Service (Amendment) Rules, 1999 while inserting a Proviso in the Rule of Services mentioned against them. The Rules of 1965 were at Sr. No.68 in the said Rules. The amended position of the Rules reads as under :-
"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."
(6 of 11) [CW-14884/2016] Counsel for the petitioner Mr. Deepak Nehra submitted that it is clear from reading the Rules that the qualification could have been obtained by the candidates until the date of written examination or interview, thus, the appearing candidates were also allowed to participate in the selection process. Counsel for the petitioner further submitted that the Legislative intention of the aforesaid Rules was very clear and required the appearing candidates to be allowed in selection process if they were able to provide the requisite qualification upto the date of interview. Counsel for the petitioner stated that in the present recruitment, though, the Rules of 1965 were applicable but akin to the interview, counseling was to be conducted by the respondents as a modus operandi for selecting the Lab Technicians. Counsel for the petitioner further stated that, though, they had final year mark-sheet in the hand before the last date of filling-up of the form but even if for the sake of argument it is believed that their internship was not complete and that disentitles them to claim completion of qualification so required, then also they should have been treated as appearing candidates, who admittedly acquired the degree including internship of six months and registration in Rajasthan Para-Medical Council on or before the counseling, which was the only place where scrutiny of documents and final consideration was being made. It is made clear that no written examination or actual interview took place, therefore, counsel for the petitioner for the sake of proving Legislative intention, is drawing attention of Court to the fact that the counseling in this (7 of 11) [CW-14884/2016] recruitment process is akin to the interview. Counsel for the petitioner further stated that any condition in the advertisement contrary to the Rules of 1965 duly amended by the Rajasthan Various Service (Amendment) Rules, 1999 required the respondents to consider the petitioners as appearing candidates on or before counseling and if they were falling in merit, then appropriate appointments ought to have been given. Counsel for the petitioner relied upon the judgment of this Court in Manju Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.13299/2017, decided on 08.12.2017), The relevant portion of the judgment reads as under:
"11. The purport of Division Bench judgment and Single Bench judgment cited by learned counsel for the petitioner is that the registration ought to be attempted by the petitioners before the cut-off date and the time taken by the Registering Authority should be exempted. The condition of registration at the threshold at the of submitting the form itself has already also been dealt with, however, in the present circumstances the Rules which are applicable create a legal obligation upon the respondents to take proof of the qualification alongwith registration before the order on or before the date of written examination, which is 28.02.2016. Receipt for registration is a sufficient proof as held by Hon'ble Division Bench of this Court to ensure that within cut-off date necessary action on behalf of the candidates has been taken, thus, this Court holds that the petitioners who are aspirants for the post of ANM under the National Health Mission as per advertisement dated 28.01.2016 shall be entitled to be given appointment on their own merits if they have acquired the qualification on or before 28.2.2016, (8 of 11) [CW-14884/2016] which is the date of examination and is in consonance with the Rules of 1999.
12. Since there is a mandatory requirement of the qualification being registered, therefore, the act of petitioners/candidates ought to show that they have done the needful on their part of requirement, therefore, those candidates shall also be treated eligible who have applied for registration before 28.02.2016 and have acquired the certificate before the date of verification which is 02.02.2017.
13. Thus, in light of the aforesaid observations the present petitions are disposed of with a direction to the respondents to consider the petitioners eligible for the post of ANM under the National Health Mission on contract basis arising out of advertisement dated 28.02.2016 on the following terms:-
(a) The petitioners who have applied for registration on or before 28.02.2016 shall be treated as eligible as far as condition of registration is concerned and shall be permitted to participate in the selection process and shall be given appointment strictly in accordance with their merits.
(b) However, the condition No.(a) shall apply if the candidates have the certificate on or before 02.02.2017, which is the date of verification. Thus, in both the conditions, the petitioners need to have registration receipt (which means in Rajasthan Nursing Council) before 28.02.2016 and simultaneously have certificate on or before 02.2.2017."
3. Counsel for the respondent refuted the submissions on the ground that specific condition in the advertisement mentioned necessary registration in Rajasthan Para-Medical Council and (9 of 11) [CW-14884/2016] admittedly since the petitioners did not have the registration on account of lack of non-completion of internship before the last date given in the advertisement, thus, were rightly disqualified. Counsel for the respondent further stated that Rules of 1965 read with Rules of 1999 would not be applicable in the present case as the petitioners were neither having written qualification nor having the interview and, thus, the appearing candidates could have not been permitted to run through the selection process if they do not comply with the mandatory condition No.(6) of the advertisement. Counsel for the respondent also averred that the petitioners could not overcome the mandatory requirement of having the basic eligibility criteria uptil the last date and because of non-fulfilment of the criteria they were rightly disqualified by the respondents.
4. After hearing learned counsel for the parties and perusing record, this Court is of the opinion that legislative supremacy is to be given credence by this Court in any recruitment process for the purpose of adjudicating the conditions of recruitment. Admittedly, the advertisement required registration in Rajasthan Para-Medical Council but the condition No.(6) runs contrary to the Rules of 1999 read with the Rules of 1965. We find that it is enshrined in the Rules and legislative intention is very clear that an appearing candidates in all the recruitment examination conducted under the Rules of 1965 would be entitled to participate in the recruitment process if they complete the eligibility and necessary qualification before the date of interview. Since the modus operandi of the respondents was to substitute (10 of 11) [CW-14884/2016] counseling by interview, therefore, in this case the Rules have to be complied with accordingly. It is admitted position of the respondents that the petitioners were registered with the Rajasthan Para-Medical Council and were holding all necessary qualification and necessary eligibility on the date of counseling and, therefore, in accordance with the Rules of 1999 they ought to have been declared eligible and qualified. We have taken note of the fact that the respondents themselves have put the petitioners in the select list issued by them on 18.10.2017 and subsequently disqualified them on account of not having acquired degree on the last date of filling the form i.e. 24.11.2016. The petitioners admittedly had completed their three years of qualification of B.Sc. (MLT) Part-III and mark-sheet were issued before the last date i.e. 24.11.2016 but since they had to undergo mandatory internship of six months, therefore, their registration with the Rajasthan Para-Medical Council happened only before counseling/ verification took place. The select list dated 18.10.2017 clearly reflects that the petitioners are falling in merit and were entitled to be given appointment on the post of Lab Technician. We find that the Condition No.(6) (ii) required registration in Rajasthan Para-Medical Council is running contrary to the Rules of 1999 read with Rules of 1965, therefore, in the given circumstances this Court declares the condition to be null and void and directs the respondents to consider the petitioners as entitled for appointment if they are conforming to the other parameters except Condition No.6. Thus, if the petitioners have attained the (11 of 11) [CW-14884/2016] complete qualification and eligibility criteria including registration in Rajasthan Para-Medical Council before the date of counseling/ verification, they shall be given appointment as per their merit and as per select list dated 18.10.2017 within a period of 60 days from today. For notional benefits the petitioners shall be free to make a representation before the respondents. The judgment shall apply qua the petitioners only.
(DR. PUSHPENDRA SINGH BHATI)J. Sanjay