Rajasthan High Court - Jaipur
Dr Chandan Singh Mothasara Ors vs State (Medical And Health )Ors on 26 July, 2013
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.4554/2013 (Dr.Chandan Singh Mothsara & Ors. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.1766/2013 (Jatin Kumar Sahwal Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7801/2013 (Dr.Amrit Lal Mali & Anr. Vs. State of Rajasthan & Ors.) AND S.B. CIVIL WRIT PETITION NO.7689/2013 (Dr.Brijesh Gaiska & Ors. Vs. State of Rajasthan & Ors.) Date of Order : 26th July, 2013 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Tanveer Ahmed ] Mr.Ram Pratap Saini ], for the petitioners. Dr.V.B.Sharma, Additional Government Counsel. Mrs.Shruti Dixit, Dy. Government Counsel. Mr.R.A.Katta, for the respondent University. Mr.S.P.Sharma, Sr. Adv. with Gaurav Sharma ] Mr.Saransh Saini ] Mr.Vigyan Shah ], for the respondent/s. BY THE COURT:
The respondents issued an advertisement for the post of Medical Officer/Medical Officer (Dental). As per the advertisement, last date to possess required qualification was 31.03.2013. The petitioners and the private respondents applied for the post. A challenge is made to the date for possession of required qualification, which is in violation of Rajasthan Medical Subordinate Service Rules, 1965 (for short Rules of 1965). As per the amended rules, a candidate can apply for the post if he/she is pursuing required educational course but should qualify on or before the date of selection test/interview.
Learned counsel for the petitioners submit that 31.03.2013 was wrongly fixed as crucial date to obtain required qualification, thus a direction be issued to the respondents to make selection in accordance to the Rules of 1965, as amended.
Learned counsel appearing for the University submits that when the advertisement was issued, last date to obtain qualification was prescribed as 31.03.2013. This Court thereafter issued interim direction to keep relevant date to possess required qualification or on before the date of selection test. On receipt of copy of interim order of this Court, University took a decision to make only those candidates eligible, who were in possession of required qualification as on the date of selection test. The required qualification is provided under the Rules as well as advertisement, which is MBBS for the post of Medical Officer and BDS for the post of Medical Officer (Dental). The aforesaid qualification should be possessed by each of the candidates with the certificate of internship because qualification aforesaid is taken as complete only on completion of internship, thus whoever has not completed internship of the respective course on or before the date of selection test, are not going to be treated as eligible. The mistake earlier committed has already been cured by the respondents.
Learned counsel appearing for the private respondents submit/s that pursuant to advertisement by the respondents, they made application/s taking crucial date to obtain required qualification to be 31.03.2013. If the respondent University changed the stand, it cannot be to the detriment of the rights already accrued in favour of them. This is moreso when, they appeared in selection and find place in merit. The meritorious candidates should not be sacrificed on technical grounds. It is also submitted that crucial date to obtain required qualification should be date of screening test in view of the judgment of Division Bench in the case of Dr. Ashok Kumar Nagar & Anr. Vs. State of Rajasthan & Ors. in DB Civil Special Appeal (W) No.1031/2011 decided on 01.03.2012.
It is further submitted that if advertisement was issued contrary to the rules, then not only a serious view should be taken against the defaulting officer but entire selection pursuant to it, should be scrapped with the direction to hold selection afresh.
Learned counsel Mr.Saransh Saini appearing for private respondent/s submits that if petitions are allowed, a direction be given to respondents to at least refund the fee.
I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.
The respondents issued an advertisement for the post of Medical Officer so as for Medical Officer (Dental). The petitioners as well as private respondents applied for the post. The controversy in the instant case is not only as to what should be crucial date to possess required qualification but also that a candidate needs to complete internship prior to crucial date given in the advertisement or as determined by this Court. The Rule as amended in the year 1999 are quite relevant in this regard, thus amended rule is quoted hereunder:-
Amendment.-In the existing rule as mentioned in Column Number 3 against each of the Service Rules as mentioned in Column Number 2 of Schedule appended herewith, the following provisos 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.
The perusal of amended rules reveals that a person, who has appeared or is appearing in the final year examination of the course to possess requisite educational qualification, shall be eligible to apply for the post. The acquisition of educational qualification should be on or before the main examination where selection is made through two stage of written examination and interview. In other cases, before appearing in the interview where selection is made through written examination and interview and lastly where selection is conducted through written examination or interview alone then on the date written examination or interview, as the case may be.
In view of the above, the respondent University was expected to issue advertisement as per rules, however, to the surprise of this Court, crucial date to obtain required qualification was kept as 31.03.2013. It is dehors the rules. The amended rule does not provide aforesaid date to possess required educational qualification. in view of above, this Court passed a detailed interim order commending the respondents not to make selection dehors the rules. The outcome of the aforesaid was nothing but to consider those candidates to be eligible, who had secure required qualification as on the date of selection test and in the instant case, selection is based on written examination alone, thus on the date of written examination. Learned counsel for the official respondents stated that taking note of the interim order, a decision was taken to make compliance so that selection may be made inconsonance to the rules. Accordingly, no candidate has now been selected, who was not in possession of required qualification on the date of written examination. The care has also been taken that those, who had not completed internship by the crucial date, may not be treated as eligible. It is in view of the fact that while issuing advertisement, the official respondents allowed that period of internship be treated as a part of probation period.
The question for my consideration is as to whether recruitment can be conducted by providing condition dehors the rules and if, that is done, as to what should be the direction of this Court. It is not disputed by any of the counsel appearing for the respective parties that Rules of 1965 were amended in the year 1999 and as per amended rules, the crucial date to judge educational qualification is the date of main examination, written examination or interview as the case may be and clarified under the amended rules itself. In the instant case, only written examination was held, thus crucial date would be the date of written examination to possess required educational qualification. it is in view of the fact that issue aforesaid has already been settled by the Hon'ble Apex Court, inasmuch as, crucial date to possess educational qualification should be as provided under the rules and if rules are silent, then what is provided in the advertisement. In case, both are silent, then last date for submission of application form. The judgment of Hon'ble Apex Court in the case of Shankar K. Mandal & Ors. Vs. State of Bihar & Ors. reported in (2003) 9 SCC 519, supports the aforesaid and relevant part of aforesaid judgment is quoted hereunder for ready reference:
The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors.v. Chander Shekhar and Anr. (1997 (4) SCC 18, Bhupinderpal Singh v. State of Punjab (2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. (2002 (1) SCC 124) are as follows:
(1) 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;
(2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
In view of the aforesaid, the respondents were under an obligation to adhere to the rules, inasmuch as, even for those, who are pursuing final year examination, last date to obtain qualification is date of written examination. In view of the above, a candidate was required to possess qualification as per the rules as amended in the year 1999. An advertisement dehors the rules cannot be allowed to stand to the extent, it goes contrary to the rules. It is settled law that if a part is separable and can be removed to maintain remaining part of an order or instrument then this Court can allow to stand the order/instrument for that purpose.
The argument of learned counsel for the private respondents is, however, if one of the clause of the advertisement is dehors the rules then entire selection should be scrapped.
In my opinion, aforesaid argument cannot be accepted, inasmuch as, advertisement can be maintained except a small part regarding crucial date to obtain educational qualification, thus for that reason, process of selection cannot be scrapped, though respondents can be commended with the direction to refund the amount of fee to those, who have been rendered ineligible for want of educational qualification on the date of written examination. The default of the respondent/s is curable, thus for that reason also, selection cannot be scrapped.
Now comes to the issue as to whether it is necessary to complete one year's internship on or prior to the crucial date to posses education qualification. It is in view of the fact that one is required to possess qualification of MBBS/BDS for the post in question and qualification if MBBS/BDS is treated as complete with the internship. The aforesaid view was taken by this Court in the case of Nishant & Ors. VS. State of Rajasthan reported in 2011(4) RLW 3320. Para Nos.11,12 and 14 of the said judgment are quoted hereunder for ready reference:
11. The issue that needs to be dealt with first is whether eligibility qualification shown as M.B.B.S. in Entry 11 Column 5 in Schedule-I appended to the Rules of 1963 envisage the internship to be an integral part of the M.B.B.S. Examination or mere passing of the final year M.B.B.S. would suffice for the purpose of such eligibility. Before considering the cited judgments, relevant provisions governing the field have to be noticed and discussed. Clause (d) of Ordinance 268 of the University Ordinances inter-alia provides that "the M.B.B.S. Degree shall be conferred after passing the Final M.B.B.S. Examination and after a candidate has undergone compulsory rotating Internship for a period of 12 months". Reading of this ordinance, leaves no manner of doubt that M.B.B.S. Degree shall not be considered as a valid degree for any purpose whatsoever, either for practice of for securing employment, unless a candidate has successfully undergone compulsory rotating internship for a period of 12 months. Only exception that has given in clause (d) of Ordinance 268 of the University Ordinances is that in case of hardship in genuine matters and in the very exceptional circumstances and that too on recommendation of the college, relaxation not exceeding of thirty days may be granted but we are not concerned with that.
12. Argument that was raised before the co-ordinate bench of this court in Ramesh Ku. Barayach supra was that for the post of Dental Surgeon under Column 5, the only qualification that was sought was B.D.S. and there was no condition of Internship mentioned, therefore, order of the respondents rejecting application form of the petitioner is liable to be set-aside. This Court held that a candidate as per the notification could only be eligible if he was having the requisite qualification On the last date of submission of application form. Although, as per Column 5, requisite qualification shown was B.D.S. however, a perusal of the Internship Regulation Examination Scheme of B.D.S. prescribed by the Dental Council of India and approved by the Central Government shows that for acquiring a B.D.S. degree, a candidate is required to undergo compulsory Rotating Internship of one year; only thereafter, he can be considered eligible for award of B.D.S. degree. In the present case, although no similar regulations of the Medical Council of India have been cited by either of the parties but this Court must proceed on the footing that similar regulations must be available even for M.B.B.S. degree and it is in conformity therewith that such provisions have been incorporated in the University Ordinances.
14. Coming now to the argument that fixation of dates of examination from 12/1/2011 to 14/2/2011 must be held to be arbitrary and unreasonable as it non-suits a large number of candidates, who would be completing their internship few weeks thereafter, 1 find that such an argument cannot be accepted on mere ipse dixit of the petitioners. In any selection process, R.P.S.C. has to fix one or the other date for holding written examination and for the purpose of interview. It is a matter of common knowledge that R.P.S.C. is over burdened with number of selections for the government in its different departments. R.P.S.C. has to thus act according to its own convenience. It has to be given freedom to fix its own calender for fixing of dates for written examinations or interviews, considering that lacs of applications are received by it for every selection, that requires lot of exercises to be undertaken on its part. When R.P.S.C. fixes a date for written examination or interview irrespective of particular person or class of persons, it is done for all eligible candidates as has been given in the present case. In view of enormity of number of candidates, R.P.S.C. has to undertake a protracted exercise of holding written examination and interview. Even in this case, interviews have already started in a schedule, which are spread over weeks. Sometimes it is more than even a month. Even in this case, interview would take place from 12/1/2011 and continue upto 14/2/2011. Number of candidates compete for several selections. If the argument of the petitioners is further tested, that if the dates so fixed by the R.P.S.C. for interviews are not taken as correct and dates are postponed to any other time in future, then also, there would always be a situation where some candidates would be non-suited for competing against the posts in question because in their case too, same situation might arise that their internship might not be complete upto the last date on which interviews are fixed. It must be noted that in any selection process for any post, a line has to be drawn somewhere. There would always be a situation where a section of the candidates would be eligible and another section of that candidates would be on the verge of acquiring eligibility. Mere enormity of problem of unemployment of large number of young youth, and that some candidates may not have yet acquired eligibility, possibly may not be a reason to stall the entire process of selection. Doing so would be causing a grave prejudice to those unemployed youth, who have been waiting for employment for years and years, which is scarcely available these days. Learned Additional Advocate General at this stage has given a fair concession that if any candidate would be completing internship upto the last date of interview and if he appears before the R.P.S.C. with such request, there would be no reason why his request would not be accepted. So far as however validity of fixing the dates for interviews is concerned, no fault can be found therewith. Action of R.P.S.C. is just and reasonable. This argument must therefore also fail.
In view of the judgment referred to above, if a candidate has not completed internship on or before crucial date, he cannot be considered to be eligible for appointment on the post in question.
So far as the advertisement permitted one year's internship to be part of probation, the minute reading of the advertisement would reveal that appointment on the post in question would be on probation of one year. Therein, it is provided that one year's internship would be treated to be part of one year's probation. It is required to be clarified that as per amended rule, Government is now providing initial appointment on two years' probation and, that too, on fixed amount and not in regular pay scale. Pursuant to amended rules, appointments are made on probation for a period of two years. If the opening lines of the advertisement are looked into, appointment on probation is provided only for one year by treating period of internship to be in satisfaction of anotheryear of probation to make it two year's probation period. In view of above, private respondents have wrongly taken it to be a case where even candidate undertaking internship is held eligible for the post as one year's probation would be reckoned towards internship without going minutely in the terms of the advertisement. It is otherwise to be read inconsonance to the rules, if some doubt exists.
So far as the judgment in the case of Dr.Ashok Kumar Nagar & Ors. is concerned, therein selection was conducted in two phases. Thus, Division Bench passed Appropriate order but facts fo this case are not similar. Therein, crucial date was taken on the date of interview as selection therein was based on interview, though prior to it, screening test was conducted. The Division Bench, rather reaffirm the view taken by the Single Bench and herein, thus judgment of Division Bench does not provide assistance to the private respondents.
In view of discussion made above, the writ petitions are allowed with the directions to the respondents not to treat any candidate to be eligible, if she/he was not in possession of required qualification with the internship on or before the date of written examination. The advertisement to provide crucial date to be 31.03.2013 is set aside being dehors the rules.
The direction to scarp the selection cannot be given, moreso when, perusal of prayer of the writ petition/s does not claim aforesaid, thus such direction cannot be given at the instance of private respondents, who are not the petitioners herein. It is further clarified that the period of internship is part of qualification, thus who have not completed internship on or before written examination, should not be treated as eligible.
Before parting with the judgment, it is necessary to observe that respondent University was casual while issuing the advertisement in regard to last date to obtain required educational qualification, thus they are directed to remain careful in future and if is found that they are acting in ignorance to the statutory provisions, then to recommend the government with suitably direction to amend the rules so that selections may be given in the hands of the RPSC, which arrangement was earlier existing. Looking to the lapses aforesaid, the respondent University is directed to conduct enquiry against the defaulting officer with the consequential order and copy thereof may be produced before this Court within a period of six months from the date of receipt of copy of this order.
In view of aforesaid, they are further directed to refund the fee to those candidates, who were it being ineligible for selection but applied due to the condition of the advertisement dehors the rules providing crucial date to be 31.03.2013. The refund of fee may be made if appropriate application for it is made within a period of two months from today.
This disposes of the stay application/s also.
(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.