Rajasthan High Court - Jodhpur
State Of Rajasthan vs Zaiba on 24 April, 2020
Author: Sangeet Lodha
Bench: Sangeet Lodha, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 252/2019
1. The State of Rajasthan, Through Its Principal Secretary
Department of Medical, Health and Family Welfare, Govt.
of Rajasthan, Secretariat, Jaipur.
2. The Director, Medical, Health And Family Welfare Services,
Directorate, Health Bhawan, Jaipur (Raj.).
3. The Rajasthan Subordinate And 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 And Collector.
----Appellants
Versus
1. Zaiba D/o Sh. Sayed Shahabuddin, Resident of 39, Vishnu
Colony, Near Madina Masjid, Chandna Bhakar, Kamla
Nehru Nagar, Jodhpur.
2. Kalpana Kumawat D/o Shri Bhima Ram Kumawat,
Resident of Neel Ki Dhani, Padampura, Sargot, Kuchaman
City, District Nagaur.
3. Pooja Choudhary D/o Gajendra Singh, Resident of Near
Electric Power House, Ajmer Road, Degana, District
Nagaur.
4. Jitendra Kumar Agarwal S/o Shri Om Prakash Agarwal,,
Resident of Ward No. 8, Garh Road, Uniyara, Tonk.
5. Manish Kumar Saini S/o Shri Ramesh Chandra Saini,
Resident of Village Sarundla Post Achalpura Tehsil Sikray
District Dausa.
6. Sheetal Kalausua D/o Shri Sanjay Kalasua, Resident of
Village Rastapal, Tehsil Samalwara, District Dungarpur.
(All The Petitioners at Present Students of Dr. S.N.
Medical College, Jodhpur Undergoing Internship Period of
B.Sc. (MLT) Course.
----Respondents
For Appellant(s) : Mr. Rajat Arora for Mr. Karan Singh
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Rajpurohit, AAG
For Respondent(s) : Mr. Deepak Nehra
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS Judgment Per Hon'ble Mr. Sangeet Lodha, J.
24th April, 2020 Reportable
1. This intra court appeal is directed against judgment dated 7.5.18 passed by the learned Single Judge of this Court, whereby the writ petitions preferred inter alia by the respondents no.1 to 6 herein seeking directions to consider their candidature while treating them eligible for appointment to the post of 'Lab Technician', have been allowed and the eligibility condition incorporated in the advertisement dated 10.10.16 issued for recruitment to the said post requiring registration with Rajasthan Para Medical Council ('RPMC') has been declared null and void. Further, the appellants have been directed to give appointment to inter alia the respondents as per their merits if they have attained complete qualification and eligibility criteria including registration with RPMC before the date of counseling/verification.
2. The facts relevant in nutshell are that Rajasthan Subordinate & Ministerial Service Selection Board, Jaipur issued an advertisement dated 10.10.16 under the provisions of Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short "Rules of 1965") and Rajasthan Scheduled Area Subordinate, Ministerial & Class IV Service (Recruitment and Other Conditions of Service) Rules, 2014 (for short "Rules of 2014"), inviting (Downloaded on 24/04/2020 at 08:29:36 PM) (3 of 20) [SAW-252/2019] applications for recruitment to inter alia 1394 posts of Lab Technician. The eligibility and academic qualification for recruitment on the post of Lab Technician as prescribed under clause 6 of the advertisement read as under:
"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."
3. As per clause 6 of the advertisement, the person appearing for recruitment to the posts advertised must have attained the eligibility qualification as prescribed as on the date of submission of application form. Further, as per clause 11 of the advertisement, the last date for submissions of the on-line application form was 24.11.16, which was further extended upto 15.12.16.
4. The process of selection summarized under clause 12 of the advertisement reads as under:-
"12. p;u izfØ;k %& ¼i½ bl foKfIr esa foKkfir inksa ij p;u izfØ;k jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e 1965 ds fu;e 19 esa la"kks/ku 06-02-2013 ,oa fnukad 30-08-2013 ds izko/kku "Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the commission, merit shall be prepared by the appointing authority on the basis of marks obtained in such qualifying academic examination or professional examination or both as specified in the schedule appended to these rules 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, National Rural Health Mission, Medicare Relief Society, Chief Minister Jeevan Raksha Kosh, AIDS Control Society, Revised National Tuberculosis Control (Downloaded on 24/04/2020 at 08:29:36 PM) (4 of 20) [SAW-252/2019] Programme (RNTCP), Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare." ds vuqlkj gksxhA ¼ii½ fpfdRlk ,oa LokLF; ¼xzqi&3½ foHkkx ds vkns"k Øekad vkbZ-Mh- 49@fpLok- @xzqi&3@2015 fnukad 28-01-2015 ds vuqlkj foKkfir inksa dh ofj;rk lwph rS;kj djus ds fy, vH;FkhZ }kjk jktLFkku fpfdRlk ,oa LokLF; v/khuLFk lsok fu;e 1965 dh vuqlp w h esa of.kZr U;wure "kS{kf.kd ;ksX;rk ijh{kk vFkok U;wure O;olkf;d ;ksX;rk ijh{kk vFkok nksuksa tSlh Hkh fLFkfr gks] esa vH;FkhZ }kjk izkIrkadksa ds izfr"kr ds vkSlr izfr"kr dk 85 izfr"kr osVt s fn;k tkosxkA bu izkIr izfr"kr vadksa esa vuqHko izkIr vH;fFkZ;ksa ds fy, fcUnq la[;k 12 ¼i½ ds vuqlkj cksul vadksa izfr"kr ¼vf/kdre 15½ lh/ks gh tksMd + j ofj;rk lwph cukbZ tkosxhA ¼iii½ QkekZflLV ds vfrfjDr vU; in tks jktLFkku yksd lsok vk;ksx dh ifjf/k esa ugha gSa] ds fy, jkT; ljdkj ds v/khu leku dk;Z ds fy, National Rural Health Mission, Medicare Relief Society, Chief Minister Jeevan Raksha Kosh, AIDS Control Society, Revised National Tuberculosis Control Programme (RNTCP), Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare esa dk;Z djus okys vH;fFkZ;ksa dks muds vuqHko ds vuqlkj izR;sd iw.kZ ,d o'kZ ds vuqHko ij 5 cksul vad ,oa vf/kdre 15 cksul vad fn;s tk;saxsA ¼iv½ ekuuh; mPp U;k;ky;] tks/kiqj }kjk ;kfpdk la[;k 3622@2013 esa ikfjr fu.kZ; fnukad 29-04-2013 dh ikyuk esa foHkkx esa NGO/ Placement Agency ds ek/;e ls lafonk ij dk;Zjr dfeZ;ksa dks leku dk;Z ,oa leku in ds vk/kkj ij fu/kkZfjr izi= esa foHkkx }kjk vf/kd`r vf/kdkjh }kjk tkjh vuqHko izek.k i= ds vk/kkj ij cksul vad ns; gksaxsA ¼v½ ,d o'kZ ls de vof/k ds fy, dksbZ cksul vad ns; ugha gksxkA 365 fnol iw.kZ gksus ij gh ,d o'kZ ekuk tkosxkA"
5. The respondents-writ petitioners were not permitted to fill the on-line application form for want of registration with RPMC and therefore, they preferred the writ petition before this Court, wherein on 19.12.16, the learned Single Judge passed an interim order in the following terms :
"In the meanwhile, the respondents are directed to accept the off-line application forms of the petitioners for recruitment to the post of Lab Technician initiated by the Advertisement dated 10.10.2016 (Annex.-6).
However, the acceptance of the off-line forms of the petitioners under the interim order will not confer any right and/or equity in favour of the petitioners, the same shall remain subject to the final outcome of the present writ petition."
6. The second stay petition preferred by the writ petitioners seeking directions to the appellants herein to grant provisional appointment as per their merit position was disposed of by the (Downloaded on 24/04/2020 at 08:29:36 PM) (5 of 20) [SAW-252/2019] learned Single Judge vide order dated 9.2.18 with the direction that any appointment made shall remain subject to final outcome of the writ petitions.
7. Precisely, the case set out by the writ petitioners was that Rule 11 of the Rules of 1965 permits the person who has appeared or is appearing in final year examination of the course which is requisite educational qualification to apply for the recruitment to the post, but he/ she has to submit the proof of requisite educational qualification to the appropriate selection agency before appearing in the main examination/ interview as specified. According to the writ petitioners, the applicability of Rule 11 of the Rules of 1965 cannot be denied where the selection is made by the process other than written examination or interview or both and therefore, the condition incorporated in the advertisement requiring that the candidate must possess the requisite qualification as on the last date of submission of the application form being contrary to the Rule 11 of the Rules of 1965, is illegal and void.
8. Rule 11 of the Rules of 1965 which deals with Academic and Technical Qualifications and Experience for recruitment to the post enumerated in the Schedule was amended vide Rajasthan Various Service (Amendment) Rules, 1999 ("Rules of 1999") and a proviso was added. The amended Rule 11 germane to the controversy involved in the present intra-court appeal may be beneficially quoted:
"11. Academic/ Technical Qualifications and Experience:- A candidate for direct recruitment to the post enumerated in the Schedule shall in addition to such experience is required, possess;(Downloaded on 24/04/2020 at 08:29:36 PM)
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(i) the qualifications given in column 4 of the Schedule, and
(ii) Working knowledge of Hindi written in Devnagari Script and knowledge of Rajasthani culture.
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."
9. Rule 19 of the Rules of 1965 which deals with 'Scrutiny of applications' was amended by the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2013 notified vide notification dated 6.2.13 whereby the existing proviso to Rule 19 was substituted by new provisos. The first and second proviso added vide notification dated 6.2.13 were further amended vide Rajasthan Medical and Health Subordinate Service (Third Amendment) Rules, 2013, notified vide notification dated 30.8.13. Amended Rule 19 of the Rules of 1965 reads as under:-
"19. Scrutiny of applications.- The Commission or the Appointing Authority, as the case may be, shall scrutinise the applications received by them/it and require as many candidates qualified for appointment under these rules as seem to them/ it desirable to appear before them/it for interview;
Provided that in case of appointment to the post of Pharmacist, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying as specified in the schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work (Downloaded on 24/04/2020 at 08:29:36 PM) (7 of 20) [SAW-252/2019] under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, Institutes under Cooperative Department, Sahakari Upbhokta Bhandar, Revised National Tuberculosis Control Program (RNTCP) Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare.
Provided that in case of appointment to the posts other than Pharmacist, which are not in the purview of the Commission, merit shall be prepared by the Appointing Authority on the basis of marks obtained in qualifying academic examination or professional examination or both as specified in the schedule appended to these rules 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, National Rural Health Mission, Medi Care Relief Society, Chief Minister BPL, Jeevan Raksha Kosh, AIDS Control Society, Revised National Tuberculosis Control Program (RNTCP), Jhalawar Hospital and Medical College Society, Integrated Disease Surveillance Project or State Institute for Health and Family Welfare.
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."
10. The learned Single Judge opined that the intention of the legislature in amending the Rule 11 of the Rules of 1965 by way of Rules of 1999 is very clear that appearing candidates in all the recruitment examinations conducted would be entitled to participate in the recruitment process if they complete the eligibility and necessary qualifications before the date of interview. The learned Single Judge opined that the modus operandi of the respondent was to substitute counseling by interview and therefore, the Rules have to be complied with accordingly. Taking into consideration the factual position emerging from the record regarding the eligibility of the respondents-writ petitioners to participate in the selection process and appointment to the post, (Downloaded on 24/04/2020 at 08:29:36 PM) (8 of 20) [SAW-252/2019] the learned Single Judge recorded the conclusions and issued directions as under:-
"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 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."
11. Learned counsel appearing for the State contended that the eligibility qualification for recruitment to the post of Lab Technician includes academic qualification, professional qualification and the registration with RPMC and therefore, unless the candidate possesses all the requisite qualification as on the last date fixed for submission of the application form, his candidature cannot be considered for the recruitment to the said post. Admittedly, at the (Downloaded on 24/04/2020 at 08:29:36 PM) (9 of 20) [SAW-252/2019] relevant time, the writ petitioners were pursuing their internship and therefore, they were not even possessing the professional qualification i.e. B.Sc. MLT. Before acquiring the professional qualification, the question of registration with the RPMC also does not arise and thus, the writ petitioners were rightly not permitted to submit the application form online. Rule 11 as amended by Rules of 1999, only provides for academic qualification and not for the professional qualification and that apart, since in the process of selection neither the written examination nor interview was involved, the provisions of Rule 11 cannot be invoked so as to determine the eligibility of the candidate as on the last date of counseling/verification instead of the last date for submission of the application form. Drawing the attention of the Court to Rule 19 of the Rules of 1965, learned counsel submitted that the merit list for recruitment to the post of Lab Technician was to be prepared by the appointing authority on the basis of the marks obtained in qualifying academic examination/professional examination or both as specified in the Schedule appended to the Rules of 1965 and such bonus marks as specified by the State Government having regard to the length of experience and thus, the question of determining the eligibility of the candidate with the reference to any deferred date, does not arise. Learned counsel submitted that a learned Single Judge of this Court in Suman Jat vs. State of Rajasthan & Ors.(S.B.C.Writ Petition No.15115/18, decided on 18.2.2020), while taking into consideration the order under appeal, relying upon the various decisions of the Supreme Court cited at the Bar categorically held that where neither written examination nor interview is involved in process of selection, Rule (Downloaded on 24/04/2020 at 08:29:36 PM) (10 of 20) [SAW-252/2019] 11 of the Rules of 1965 shall not be applicable. The Court held that only those candidates who had already registered with the Rajasthan Nursing Council as on the date of submission of the application form alone shall be eligible to be considered for recruitment to the post. Learned counsel submitted that the cut- off date by reference to which the eligibility requirement must be satisfied by the candidate seeking public employment is the date appointed by the relevant service rules and if there is no cut-off date appointed by the rules then such date as may be appointed for the purpose by the advertisement calling for the applications and if there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which application has to be received by the competent authority. In this regard, learned counsel relied upon a decision of the Supreme Court in Bhupinderpal Singh vs. State of Punjab, (2000) 5 SCC,
262. Relying upon the decisions of the Supreme Court in Alka Ojha vs. Rajasthan Public Service Commission & Ors., AIR 2011 SC 3547 and Bedanga Talukdar vs. Saifudaullah Khan & Ors., AIR 2012 SC 1803, learned counsel submitted that unless power of relaxation is duly reserved in the relevant rules and/or in the advertisement, the terms and conditions contained in the advertisement cannot be relaxed by this Court and thus, the learned Single Judge has seriously erred in extending the cut-off date for eligibility qualification prescribed under the advertisement to the date of counseling/verification.
12. On the other hand, learned counsel appearing for the respondents submitted that the contention sought to be raised on behalf of the appellants that Rule 11 is applicable only in case of (Downloaded on 24/04/2020 at 08:29:36 PM) (11 of 20) [SAW-252/2019] academic qualification and not professional qualification is devoid of any merit. It is submitted that no such contention was ever raised on behalf of the appellants before the learned Single Judge. Learned counsel would submit that the requisite educational qualification in terms of Rule 11 of the Rules of 1965 obviously includes professional qualification as well. Drawing the attention of the Court to Rule 11, learned counsel contended that the intention of the rule making authority in adding proviso to Rule 11 was to extend the date of acquiring eligibility qualification to the date subsequent to last date fixed for submission of the application form so that maximum number of candidates may participate in the selection process and the best available candidate may be selected. Learned counsel urged that merely because a different selection process other than by way of written examination or interview or both, has been adopted, the benefit of Rule 11 providing for extended date for eligibility qualification, cannot be denied to the candidates aspirant for appointment to the post. Learned counsel submitted that the provisions of Rule 11 has to be harmoniously construed else it will create a discriminatory situation. Learned counsel submitted that Rule 11 nowhere provides the last date for submission of application form as the cut-off date for acquiring the requisite eligibility qualification and therefore, clause 6 of the advertisement requiring the eligibility qualification as on the date of submission of the online application form dehors the Rules of 1965, has rightly been declared illegal and void by the learned Single Judge. Learned counsel submitted that the different selection process was introduced by amending the Rule 19 of Rules of 1965 in the year 2013 whereas, the (Downloaded on 24/04/2020 at 08:29:36 PM) (12 of 20) [SAW-252/2019] amendment was introduced in Rule 11 in the year 1999 which remains unchanged and therefore, the learned Single Judge while adopting purposive interpretation has rightly held that the condition No.6(ii) runs contrary to the Rules of 1965 as amended by Rules of 1999. Learned counsel submitted that on the facts and circumstances of the case taking into consideration the provisions of Rule 11 and 19 of the Rules of 1965, the date of verification of credentials and documents has to be treated as the cut-off date for acquiring the eligibility qualification including the registration with RPMC. Learned counsel submitted that while amending the Rule 19, the proviso added to Rule 11 of the Rules of 1965 has not been amended and therefore, so as to determine the eligibility as on the cut-off date fixed by Rule 11 shall remain operative and cannot be ignored. In support of the contentions, learned counsel relied upon Bench decisions of this Court in The Rajasthan Public Service Commission, Ajmer vs. Shobhna Mutha & Anr. (D.B.Spl. Appl. Writ No.674/16 & connected matters, decided on 5.1.17) and Trilok Ram vs. The State of Rajasthan & Ors. (D.B.Spl. Appl. Writ No.667/15 & connected matters, decided on 18.8.17).
13. We have considered the rival submissions and perused the material on record.
14. Indisputably, Rule 11 of the Rules of 1965 provides for Academic/Technical Qualification and Experience, which a candidate must possess for direct recruitment to the post enumerated in the Schedule appended to the Rules of 1965. The qualification required under the rules originally framed were provided in column 4 of the Schedule. It appears that the Schedule originally incorporated in the Rules of 1965 was (Downloaded on 24/04/2020 at 08:29:36 PM) (13 of 20) [SAW-252/2019] amended from time to time and later, existing Schedule was substituted by Schedule I, II and III prescribing eligibility qualification for different categories of the posts in different groups. Schedule III stands deleted by Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2013 published vide notification dated 6.2.13.
15. As per Rule 11, originally framed, a candidate for direct recruitment to the post enumerated in the Schedule in addition to such experience required must possess the qualification given in column 4 of the Schedule. It is noticed that the eligibility qualification for recruitment to the post of Lab Technician originally prescribed under the Schedule of the Rules of 1965, was amended from time to time and the qualification presently required for recruitment to the said post mentioned in the advertisement, as prescribed in column 4 of Entry No.6 in Group A VI of the Schedule I appended to the Rules of 1965, was substituted by way of Rajasthan Medical and Health Subordinate Service (Amendment) Rules, 2013, published vide notification dated 6.2.13.
16. In Rule 11 originally framed, no cut-off date was fixed by reference to which the eligibility criteria must be satisfied by the candidate seeking employment on the various posts under the Rules of 1965. It is only by way of Rules of 1999, a common proviso was added in the relevant rule of the Various Service Rules permitting the person who has appeared or is appearing in the final examination of the course which is the requisite educational qualification for the post as mentioned in the Rules or Schedule for direct recruitment subject to the condition that he will submit the (Downloaded on 24/04/2020 at 08:29:36 PM) (14 of 20) [SAW-252/2019] proof of acquiring educational qualification to appropriate selection agency before appearing in the main examination where the selection is made through two stages of written examination and interview, before appearing in interview where selection is made through written examination and interview and before appearing in written examination or interview where selection is made through only written examination or only interview, as the case may be.
17. It is pertinent to note that prior to amendment of Rule 19 of the Rules of 1965 vide notifications dated 6.2.13 & 30.8.13, the process of selection as prescribed was by way of interview of the candidates qualified for appointment to the posts under the Rules of 1965. Rule 19 was amended vide notifications dated 6.2.13 and 30.8.13 whereunder for posts other than Pharmacist, the process of selection by way of interview was done away with and instead the provisions for preparation of merit on the basis of the marks obtained in qualifying examination as specified in the Schedule and such bonus marks as may be specified by the Government having regard to the length of experience on similar work under the Government and the specified institutions/schemes was introduced. But the fact remains that the written examination was never prescribed as the mode of selection for the post of Lab Technician. Thus, apparently, common proviso introduced in the Various Service Rules by way of Rules of 1999, could be invoked only to the extent applicable to the recruitment process envisaged under the relevant Rules.
18. It cannot be disputed that in terms of Rule 19 of the Rules of 1965, where the recruitment to the post is to be made only on the basis of interview, by virtue of proviso to Rule 11, the person who (Downloaded on 24/04/2020 at 08:29:36 PM) (15 of 20) [SAW-252/2019] had appeared or is appearing in the final year examination of the course which is requisite educational qualification for the post mentioned in the Schedule would be entitled to apply for the post and submit the proof of having acquired requisite educational qualification before appearing in the interview. But where the selection is not made on the basis of the interview, the position of the rules regarding the reference date for eligibility qualification remains unchanged. In the instant case where the merit list for appointment to the post is made on the basis of academic qualification or professional qualification or both and the bonus marks on the basis of the experience certificate, it is not understandable as to why the date of eligibility qualification as prescribed in the advertisement should be extended by invoking the analogy underlying the Rule 11 of the Rules to the date of counseling/verification of the documents. In the considered opinion of this Court, the proviso to Rule 11 to the extent of submission of the proof of eligibility qualification before appearing in written examination is redundant inasmuch as, the Rules of 1965 do not provide the written examination as the mode of selection at all. For the parity of reasons, where there is no provision for selection on the basis of the written examination or interview or both and there is a different process of selection is provided, the proviso to Rule 11 shall not be attracted.
19. In Bhupinderpal Singh's case (supra), the Supreme Court while relying upon its various earlier decisions, approved the law laid down by Punjab & Haryana High Court in the following terms:
"(i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking public employment is the date appointed by the relevant (Downloaded on 24/04/2020 at 08:29:36 PM) (16 of 20) [SAW-252/2019] 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 the application;
(ii) 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."
20. The view taken by the Supreme Court in Bhupinderpal Singh's case (supra) has been reiterated in M.A. Murthy vs. State of Karnataka, (2003) 7 SCC 517, Ashok Kumar Sonkar vs. Union of India, (2007) 4 SCC 54 and Alka Ojha's case (supra).
21. We are firmly of the opinion that in the instant case, since, the process of selection adopted under Rule 19 of the Rules of 1965 is different and not covered by the process of selection contemplated under proviso to Rule 11 of the Rules of 1965, in absence of any other provision in the Rules prescribing a cut-off date by reference to which the eligibility requirement must be satisfied by the candidate, the appointed date for the purpose of eligibility criteria shall be the date as prescribed in the advertisement calling for applications and thus, the candidates who had already acquired the requisite academic qualification/professional qualification and registration with the RPMC alone were entitled to apply for the recruitment to the post. In this view of the matter, we are of the opinion that the learned Single Judge has erred in extending the reference date for acquiring the eligibility qualification to the date of counseling/verification of documents by reading something in proviso to Rule 11 of the Rules of 1965, which is not there.
22. In Shobhna Mutha's case (supra) relied upon by the counsel appearing for the respondents, where the recruitment to the post (Downloaded on 24/04/2020 at 08:29:36 PM) (17 of 20) [SAW-252/2019] of Teacher Gr.III was to be made on the basis of the written examinations, the candidates appearing in B.Ed. Examination or Post Graduate Examination in the concerned subject were also permitted to apply subject to the condition that they should have acquired the said qualification before the examination for selection under the advertisement. The written examination was consisting of two papers ; first paper was to be held on 12.7.14 and second paper was scheduled on 14.7.14. Later, for unavoidable reasons, the second paper was postponed to 27.9.14. The writ petitioner therein acquired the qualification of B.Ed. on 22.9.14 were deprived of the selection on the premise that eligibility at the best will have to be tested on original scheduled date of 14.7.14. A Bench of this Court while interpreting the Rule 11 of Rajasthan Educational Service Rules, 1970 observed that the selection can be made only after the written examination is over and therefore, the extended date of the second paper has to be considered as the date relevant for all purposes including eligibility under the advertisement. Apparently, the view taken by the Bench of this Court as aforesaid, on the facts and the circumstances of the case where proviso to Rule 11 was applicable to the selection in question, does not help the respondents in any manner.
23. Similarly, in Trilok Ram's case (supra) relied upon by the counsel for the respondents, the facts of the case were that in an advertisement issued for recruitment to the posts of Primary and Upper Primary Teachers, it was provided that the candidate must obtain the academic qualification prescribed to make them eligible for appointment to the posts in question till the last date of submission of the application forms. The contention of the writ petitioners therein was that by virtue of proviso to sub-rule (3) of (Downloaded on 24/04/2020 at 08:29:36 PM) (18 of 20) [SAW-252/2019] Rule 266 of Rajasthan Panchayati Raj Rules, 1996 ("the Rules") academic qualification had to be attained before the declaration of the result of the examination conducted by the department and thus, the clause 7(7) of the advertisement providing that the candidate must possess the eligibility qualification as on the last date of submission of the application form, is contrary to the rules. The stand of the State was that sub-rule (3) of the Rule 266 of the Rules stands substituted with effect from 11.5.2011 which does not contain any proviso thereto. The learned Single Judge held that the proviso was no longer part of the statute inasmuch as substituted sub-rule (3) was sans a proviso. However, the Division Bench arrived at the finding that the proviso which was inserted in statute book on 1.7.2004 dealt with an entirely different area which was as a matter of fact a substantive provision, and therefore, on account of substitution of sub-rule (3), the proviso thereto in existence shall not stand deleted. Suffice it to say that in the said case, the petitioners were held entitled for the relief keeping in view the proviso to sub-rule (3) of the Rule 266 and thus, the clause 7 (7) of the advertisement requiring the eligibility qualification as on the last date of submission of the application form, was found contrary to the proviso to sub-rule (3) of Rule 266 of the Rules. Thus, the said decision also does not help the writ petitioners. To the contrary, the said decision of this Court suggests that but for such proviso to sub-rule (3) of Rule 266 of the Rules, the clause in the advertisement providing for the eligibility qualification as on the last date of submission of the application form, would have prevailed.
24. Indubitably, the writ petitioners were not holding the requisite qualification as on the date of submission of the (Downloaded on 24/04/2020 at 08:29:36 PM) (19 of 20) [SAW-252/2019] application forms online inasmuch as, at the relevant time, they were pursuing their internship and had not acquired the registration with RPMC after completion of the professional course. Merely because, they were permitted to fill up the application form, notwithstanding that they were not holding the requisite qualification as on the date of the submission of application form online, pursuant to an interim order passed by this Court, no right is created in their favour. The requirement of the eligibility qualification as on the date of the submission of the application form as specified in the advertisement, cannot be relaxed inasmuch as there is no provision in the Rules of 1965 permit such relaxation. Moreover, many more persons who were not having the qualification as on the date fixed for submission of the application form but were in position to obtain the requisite qualification subsequent thereto, might not have even applied for appointment to the post. That apart, if the writ petitioners who are not otherwise eligible to apply for the post, are permitted to participate in the selection process and stand in merit, other persons who were having the requisite qualification as on the date of submission of the application form, may be deprived of the appointment. In the considered opinion of this Court, the cut-off date fixed for the eligibility qualification while initiating the recruitment process needs to the adhered to strictly so as to maintain transparency and fairness in the recruitment process undertaken for public employment.
25. At this stage, it is noticed that the learned Single Judge has declared Condition No.6 (ii) of the advertisement as contrary to the Rules of 1965 as amended by Rules of 1999, but then, a perusal of the advertisement reveals that there exists no Condition (Downloaded on 24/04/2020 at 08:29:36 PM) (20 of 20) [SAW-252/2019] No. 6 (ii) in the advertisement issued, rather, Clause 6 of the advertisement deals with eligibility and academic qualification, wherein, at serial no.2 the academic/ professional qualification and other eligibility required for the recruitment to the post of Lab Technician is mentioned. However, it is apparent that the learned Single Judge intended to declare that part of Clause 6 as illegal and void, which prescribes that the person applying for recruitment to the post must possess the eligibility qualification as on the date of submission of the application form, which is not found to be correct and justified by us for the reasons mentioned hereinabove.
26. In view of the discussion above, the special appeal deserves to be allowed.
27. Accordingly, the special appeal is allowed. The order under appeal dated 7.5.18 passed by the learned Single Judge is set aside. The writ petition preferred by the respondents-writ petitioners is dismissed. No order as to costs.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
Aditya/
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