Rajasthan High Court - Jodhpur
Shanti Lal Dayma And Anr vs State Of Rajasthan And Ors on 18 September, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 8751/2018
1. Shanti Lal Dayma S/o Shri Sharvan Kumar Dayma, R/o
Ward No. 08, Near Excellent School, Taranagar, District
Churu, Rajasthan.
2. Rakesh Kumar S/o Shri Sohan Lal, R/o 5 G.M., Raner,
District Bikaner, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan Through Secretary, Department Of
Medical And Health Services, Jaipur, Rajasthan.
2. Director, Department Of Medical And Health Services,
Jaipur, Rajasthan.
3. Joint Director, Department Of Medical And Health
Services, Bikaner Zone, Rajasthan.
4. Joint Director., Department Of Medical And Health
Services, Kota Zone, Rajasthan.
5. Additional Director Administrative, Department Of Medical
And Health Services, Jaipur, Rajasthan.
6. The Chief Medical And Health Officers, District Churu,
Rajasthan.
7. The Chief Medical And Health Officers., District Kota,
Rajasthan.
----Respondents
S.B. Civil Writ No. 8813/2018
1. Nikita Sharma W/o Shri Anil Kumar, By Caste Brahmin
R/o 4, Kesar Nagar, Sangariya Dharm Kanta , District
Jodhpur, At Present Working As Lab Technician In
Mahatma Gandhi Hospital, Jodhpur
2. Pawan S/o Ashok Kumar, R/o Theliyo Ka Bas , Osian ,
Jodhpur Raj.
----Petitioners
Versus
1. State Of Rajasthan Through The Secretary, Medical And
Health Department Group-Iii, Government Of Rajasthan,
Secretariat, Jaipur.
2. Additional Director Administration, Medical And Health
(2 of 13)
Services, Government Of Rajasthan, Jaipur.
3. Chief Medical And Health Officer, Jodhpur.
4. Superintendent , Mahatma Gandhi Hospital, Jodhpur
----Respondents
S.B. Civil Writ No. 8877/2018
Pawan S/o Ashok Kumar, Aged About 23 Years, Theliyo Ka Bass,
Osian, Jodhpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan Through The Secretary, Medical And
Health Department (Group-Iii), Government Of Rajasthan,
Secretariat, Jaipur.
2. Additional Director (Administration), Medical & Health
Services, Government of Rajasthan, Secretariat, Jaipur.
3. Chief Medical & Health Officer, Jodhpur.
4. Superintendent, Mahatma Gandhi Hospital, Jodhpur.
5. Superintendent, Ummed Hospital, Jodhpur.
----Respondent
S.B. Civil Writ No. 8976/2018
1. Chain Singh S/o Shri Deep Singh, Aged About 34 Years, r/o
Village Indroka, Tehsil & District Jodhpur.
2. Narendra Kumar Mali S/o Shri Khangar Ram Mali, aged about
32 years, r/o Village Sankra, Tehsil Sankra, District Jaisalmer,
Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan Through Secretary, Department Of Medical
And Health Services, Jaipur. Rajasthan.
2. Director, Department of Medical & Health Services, Jaipur,
Rajasthan.
3. Joint Director, Department of Medical & Health Services, Zone
Jodhpur, Rajasthan.
4. Additional Director (Administrative), Department of Medical &
Health Services, Jaipur, Rajasthan.
5. The Chief Medical & Health Officers, District Jaisalmer,
Rajasthan.
----Respondents
S.B. Civil Writ No. 9281/2018
1. Rahul Kumar S/o Sohan Lal, Aged About 32 Years, House
(3 of 13)
No. 31-B, Ward No. -8, Sector-12/3, Hanumangarh.
2. Rajesh Swami S/o Nar Singh, aged about 33 years, r/o Ward
No. 8, Jorawarpura, Tehsil Nohar, Soorpura.
3. Mahendra Singh S/o Mamchand, aged about 39 years, r/o
Ward No. 07, Mandir Ki Gali, Deeplana, 22DPN, Hanumangarh,
Rajasthan.
4. Suresh Kumar S/o Ram Murti, aged about 32 years, r/o 5 TK,
Ganganagar, Rajasthan.
5. Balvinder Kumar S/o Nopa Ram, aged about 30 years, r/o
VPO 67 R.B., Raisinghnagar, 67 RB Ganganagar, Rajasthan.
6. Mohammad Arshad S/o Abdul Gaffer, aged about 31 years, r/o
Musalmaano Ka Bass, Bagri, District Pali.
----Petitioners
Versus
1. State Of Rajasthan, Through The Secretary To The
Government, Department Of Medical, Health And Family Welfare,
Secretariat, Jaipur.
2. The Director, Medical & Health Services, Tilak Marg, Swasthya
Bhawan, Jaipur.
3. The Additional Director, Medical & Health Services, Tilak
Marg, Swasthya Bhawan, Jaipur.
----Respondents
S.B. Civil Writ No. 9491/2018
Praveen Kumar S/o Sh. Lakhmaram, Aged About 33 Years,
Village Heerpura, Tehsil Raniwara, District Jalore.
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Medical And Health Services, Govt Of Rajasthan, Secretariat,
Jaipur.
2. Director, Medical & Health Services, Directorate, Swasthya
Bhawan, Tilak Marg, Jaipur.
3. Additional Director (Administration), Medical & Health
Services, Health Bhawan, Tilak Marg, Jaipur.
4. The BCMHO Office of Block Chief Health Officer, Raniwara,
Jalore.
5. The Chief Medical Health Officer, Jalore.
6. Navjivan Sewa Sansthan, By Pass Road, Opposite B.S.E. GSS,
Raniwara, District Jalore.
7. Shri Parmatama Chand Bhandari Charitable Trust, C-83,
Kamla Nehru Nagar, Jodhpur.
(4 of 13)
----Respondent
S.B. Civil Writ No. 9573/2018
Smt. Nirmala D/o Shri Prahlad Ram, Aged About 28 Years,
Village Prahaladsar, Tehsil Bhinyana, District Jaisalmer,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Medical And Health Services, Jaipur, Rajasthan.
2. Director, Department of Medical & Health Services, Jaipur,
Rajasthan.
3. Joint Director, Department of Medical & Health Services,
Jodhpur Zone, Rajasthan.
4. Additional Director (Administrative), Department of Medical &
Health Services, Jaipur, Rajasthan.
5. The Chief Medical & Health Officer, District Barmer, Rajasthan.
----Respondents
S.B. Civil Writ No. 13712/2018
1. Ram Prasad Mali S/o Shri Prabhu Ram, Aged About 43
Years, Vpo-Satlawas, Tehsil Merta City , District Nagaur,
Raj. Mobile 9413734657
2. Manish Choudhary S/o Shri Kalu Ram Sangwa, Aged
About 28 Years, Near Sbi Bank , Merta Road, Tehsil
Merta City, District Nagaur (Raj.) Mobile 6375852367
----Petitioners
Versus
1. The State Of Rajasthan, Through Its Additional Chief
Secretary, Medical And Health Services , Secretariat,
Jaipur.
2. Additional Director (Admn.), Medical And Health
Services, Health Bhawan , Jaipur.
3. The Chief Medical And Health Officer, Nagaur.( Raj.)
----Respondents
For Petitioner(s) : Mr. Sajjan Singh Rathore
Ms. Shalli Gajja
(5 of 13)
Mr. Mrigraj Singh
Mr. H.S. Sandhu
Mr. B.S. Tanwar
Mr. K.P.S. Bhati
Mr. Y.P. Khileree
For Respondent(s) : Mr. Rishabh Tayal for
Mr. K.L. Thakur - AAG
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 18/09/2018 These writ petitions have been filed by the petitioners seeking a direction pertaining to the cut off date for the professional qualification required for the post of Laboratory Assistant and the stipulation in the advertisement that for the purpose of bonus marks the period of experience would be counted till the date of advertisement.
The respondents issued advertisement dated 29.05.2018 (Annexure-3) in C.W. No. 8751/2018 for appointment to the post of Laboratory Assistant.
The advertisement, inter alia, provides for the following education and professional qualification:-
"5. ;ksX;rk HkrhZ gsrq foKkfir inksa ds fy;s 'kS{kf.kd ,oa O;olkf;d ;ksX;rk dk fooj.k fuEukuqlkj gS & inuke 'kS{kf.kd ,oa O;olkf;d ;ksX;rk Lab 1. Senior Secondary with Science or its Assistant equivalent
2. Any diploma in Medical Laboratory Technology from an institute recognized by the State Government.
However, for the first time
recruitment, after the
commencement of the Rajasthan
Medical & Health Subordinate
Service (Amendment) Rules, 2018,
any persons possessing,-
(6 of 13)
1. Secondary or its equivalent ;
and
2. Any Diploma in Medical Laboratory
Technology from an institute
recognized by the State
Government;
having minimum three years
experience of working as Laboratory
Assistant/Laboratory Technician in
State Government Hospitals on
contract basis or through Service
Provider Agency, shall also be
eligible.
mDr ds vfrfjDr vH;FkhZ ds fy;s jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e 1965 esa ;Fkkfofgr leLr vU; ;ksX;rk;sa iw.kZ djuk vfuok;Z gSA og vkosfnr in ds fy;s bu fu;eksa ds rgr~ fu;qfDr gsrq v;ksX; ugha gksuk pkfg;sA"
(emphasis supplied) The advertisement further provides for award of bonus marks based on experience, the relevant part whereof, reads as under:-
^^vuqHko ds vk/kkj ij cksul vad%& jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e 1965 ;Fkk la'kksf/kr fu;eksa ds fu;e 19 esa mYysf[kr izko/kkuksa ds rgr~ vH;fFkZ;ksa dks cksul vad ns; gSA
(i) vH;fFkZ;ksa dh ik=rk dh tkap ,oa nLrkostks ds lR;kiu ds le;
vkosnd dks eq[;ea=h chih,y thou j{kkdks"k] ,uvkj,p,e] esfMds;j fjyhQ lkslk;Vh] ,M~l dUVªksy lkslk;Vh] la'kksf/kr jk"Vªh; {k; fu;a=.k dk;ZØe] >kykokM+ vLirky ,oa fpfdRlk egkfo+|ky; lkslk;Vh] lesfdr jksx fuxjkuh ifj;kstuk] jkT; LokLF; ifjokj dY;k.k laLFkku (SIHFW) ,oa jkT; ljdkj ds v/khu leku dk;Z djus dk foHkkx ds vf/kd`r izkf/kdkjh }kjk fu/kkZfjr izk:i esa tkjh vuqHko izek.k i= izLrqr djuk gksxkA ;g vuqHko izek.k i= foKkfir in ds fy;s vkWuykbZu vkosnu djus dh vafre frfFk ls iwoZ dk tkjh fd;k gqvk gksuk vko';d gSA vuqHko vof/k dh x.kuk foKfIr tkjh gksus dh frfFk rd dh tkosxhA vuqHko izek.k i= dk izk:i ^v* layXu gSA foHkkx }kjk fu/kkZfjr izk:i ds vfrfjDr vU; fdlh izk:i esa tkjh fd;k x;k vuqHko izek.k i= ekU; ugha gksxkA** (emphasis supplied) The educational and professional qualifications have been stipulated based on the Notification dated 23.05.2018, whereby, the Rajasthan Medical & Health Subordinate Service Rules, 1965 ('the Rules') were amended and part of the schedule appended to the Rules dealing with the Laboratory Assistant was substituted.
(7 of 13) The petitioners who are possessing educational qualification as Secondary, claiming themselves eligible for the post of Laboratory Assistant, however, are apparently not fulfilling the requirement of three years' experience as required by the advertisement on the last date of submission of the application form i.e. 30.06.2018, all the petitioners are falling short of the said period of three years' experience as on the last date of the application.
It is, inter alia, submitted by learned counsel for the petitioners that as the requirement of minimum and maximum age is reckoned with reference to 01.01.2019, there is no reason for the respondents to restrict the requirement of three years' experience of working as Laboratory Assistant till last date of application. It is submitted that the petitioners are presently working and, therefore, are gaining experience/have gained experience after the last date of filing the application and, therefore, if the experience is counted with reference to 01.01.2019, they would all be eligible and, therefore, the respondents be directed to count the experience with reference to 01.01.2019. Further submissions have been made that even for the award of bonus marks based on experience, the stipulation made regarding counting of the experience till the date of advertisement is also bad, for the same reasons with respect to the three years' requirement of experience for eligibility and the said experience for bonus marks also should be counted till 01.01.2019.
Submissions were also made that in an advertisement dated 02.04.2018, pertaining to the Rajasthan State and Sub-ordinate Service Rules, 1999 ('the Rules of 1999'), wherein also, there is (8 of 13) requirement of five years' experience, there is a stipulation in the advertisement (Annexure-8) for counting the required five years' experience as on 01.01.2019 and, therefore, there is no reason for the respondents to provide for a different yardstick in the present case.
Learned counsel appearing in the case of Ram Prasad Mali :
S.B. Civil Writ No. 13712/2018 made additional submissions with reference to the provisions of the Rajasthan Various Service (Amendment) Rules, 1999 ('the Rules of 1999'), wherein a proviso has been added to Rule 11 of the Rules and submitted that in view of the proviso as inserted by the Rules of 1999, the experience has to be counted till the date of document verification, which in the present case is 01.09.2018 and in the case of Ram Prasad Mali he would complete the requisite three years' experience on the said date. In this regard, reliance was placed on judgment in Zaiba & Ors. v. The State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 14884/2016, decided on 07.05.2018 and Sharda Karwa & Anr. v. The State of Rajasthan & Ors. : S.B. Civil Writ Petition No. 11066/2018, decided on 16.08.2018.
Learned counsel appearing for the State opposed the submissions made by learned counsel for the petitioners and submitted that there is no substance in the submissions as made. It was contended that the eligibility condition is explicit, wherein, the candidate must have minimum three years' experience of working as Laboratory Assistant/Laboratory Technician and once the said professional requirement has been indicated as eligibility, the cut off date for the same, in any case, would be the date of application/the last date of application and, therefore, the plea raised, in this regard, has no substance.
(9 of 13) Submissions were made that the eligibility condition as provided cannot be left as indeterminate and the same cannot be determined with reference to a future date i.e. 01.01.2019 as submitted by learned counsel for the petitioners.
With reference to the submissions made by learned counsel for the petitioners relying on the Rules of 1999, it was submitted that the said Rules have no application to the present cases, inasmuch as, the said provision relates to educational qualification and has nothing to do with the professional qualification and requirement of three years' experience pertains to professional experience. Submissions were also made that merely because for the purpose of age, cut off date has been fixed as 01.01.2019, it is not necessary that for the purpose of eligibility/experience, the same should also have reference to the said cut off date and, therefore, the writ petitions filed by the petitioners have no substance.
Reliance was placed on State of Gujarat v. Arvindkumar T. Tiwari : (2012) 9 SCC 545 and Ravindra Yadav v. State of Rajasthan & Ors. : D.B. Civil Writ No. 13955/2018, decided on 11.07.2018 at Jaipur Bench.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the qualification, as quoted hereinbefore, would reveal that the same provides for both educational and professional qualification. The Rules provide for educational qualification as Senior Secondary with Science or its equivalent and professional qualification required is Diploma in Medical Laboratory Technology. However, for the first time recruitment after the commencement of the Amendment of 2018, the (10 of 13) educational qualification provided is Secondary or its equivalent and the professional qualification provided is Diploma in Medical Laboratory Technology or "minimum three years' experience of working as Laboratory Assistant/Laboratory Technician in State Government Hospitals on contract basis or through Service Provider Agency". For the purpose of age, the cut off date for minimum and maximum age i.e. 18 years and 40 years respectively, has been indicated as 01.01.2019.
The advertisement as such does not indicate as to till what point of time the minimum three years' experience would be reckoned. However, the law on the subject is well settled as the question whether the candidate must have the prescribed qualification on a particular date specified in the Rules or the advertisement, Hon'ble Supreme Court in Bhupinderpal Singh v. State of Punjab : (2000) 5 SCC 262 has approved the following preposition of law laid down by Punjab & Haryana High Court:-
"...........that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority."
The aforesaid decision of Hon'ble Supreme Court was quoted with approval in Alka Ojha v. Rajasthan Public Service Commission : (2011) 9 SCC 438.
From the above, even if no cut off date has been appointed in the Rules/the date has not been indicated in the advertisement, then the eligibility criteria has to be applied with reference to the last date appointed, by which, the applications have to be received (11 of 13) by the competent authority, which in the present cases, is 30.06.2018.
So far as the submissions made by learned counsel for the petitioners with reference to the cut off date for the purpose of age is concerned, the said aspect also is no more res integra as in Rajasthan Public Service Commission & Anr. v. Abhijeet Singh Yadav : 2011 WLC (UC) 295 a Full Bench of this Court, while approving the Division Bench judgment in the case of Rajasthan Public Service Commissioner & Anr. v. Shri Manish Thakur : D.B. Civil Special Appeal No. 525/2003, decided on 20.05.2004 at Jaipur Bench, observed as under:-
"......Thus, in our view, Division Bench of this Court in case of Rajasthan Public Service Commission and another v. Shri Manish Thakur has rightly settled the issue. It is, however, made clear that there can be different cut off dates for eligibility criteria, which exist even if interpretation given by learned counsel for parties are accepted. Under the Rules of 1963, eligibility in regard to age is the first day of January following the last date fixed for application. As against cut off date of age, a different cut off date has been given for other eligibility, thus it is not necessary that one and same cut off date has to be provided for all eligibility."
(emphasis supplied) In view of the above, the submissions made with reference to different cut off dates, have no substance.
Coming to the specific submission made by learned counsel appearing for Ram Prasad Mali, with reference to the Rules of 1999, the relevant provision reads as under:-
"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;
(12 of 13)
(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."
A bare look at the said provision would reveal that the same specifically provides that where 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, shall be eligible to apply for the post but he/she shall have to submit proof of having the requisite educational qualification to the appropriate selection agency by the point of time as has been indicated.
As already noticed hereinbefore, the eligibility requirement as per Rules is in two parts (i) education qualification (ii) professional qualification and the requirement of three years' experience is not educational qualification, the same is only a part of professional qualification. The very fact that the provision applies to a candidate 'appearing in the final year examination of the course' is a clear pointer in this regard. Therefore, the proviso appended by Rules of 1999 has apparently no application to the case in hand as the same specifically applies to educational qualification only.
So far as the judgment in the case of Zaiba (supra) is concerned, the same apparently has no application to the facts of the present cases, inasmuch as, in the case of Zaiba (supra), the issue pertained to the educational qualification of B.Sc. (M.T) Part- III and for lack of internship, the registration with Rajasthan Para Medical Council did not happen and the same happened before the counselling/verification took place.
In the case of Sharda Karwa (supra) the co-ordinate Bench has simply applied the judgment in the case of Zaiba (supra) to (13 of 13) the facts of said case without any further discussion. As such, merely based on the result of the case the judgment cannot be applied as it is well settled that only the ratio decidendi is precedent, not the result. As such the said judgment as well does not advance the cause of the petitioner.
As laid down by Hon'ble Supreme Court in the case of Bhupinderpal Singh (supra) and Alka Ojha (supra), the eligibility based on experience has to be on the last date of submission of the form which in the present case is 30.062008 and as admittedly the petitioners did not fulfill the said requirement, they are ineligible for the post of Laboratory Assistant.
So far as the challenge laid to the requirement of having experience for the award of bonus marks and provision in the advertisement for counting of the said period till the date of issuance of the advertisement is concerned, the principles regarding indicating of the cut off, as noticed hereinbefore, would apply on all force to the said aspect as well and, therefore, the same also cannot be faulted.
Further, providing of the said cut off cannot be said to be arbitrary, inasmuch as, the candidates have to produce the certificate and indicate their experience in the online form and the said date cannot be a floating date and, therefore, the submissions made, questioning the validity of the said requirement, also have no substance.
In view of the above discussion, there is no substance in the writ petitions filed by the petitioners and the same are, therefore, dismissed.
(ARUN BHANSALI),J A.K. Chouhan/-
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