Jharkhand High Court
Santosh Kumar & Ors vs Central Coalfields Ltd. & Ors on 20 June, 2013
Equivalent citations: 2014 (1) AJR 18
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
C.W.J.C. No. 2830 of 1998 (R)
In the matter of an application under Article 226 of the Constitution of India
1.Santosh Kumar
2.Subhash Kumar Singh
3.Ghanshyam Mahto
4.Anand Kumar Tiwary ... ... Petitioners
Versus
1. Central Coalfields Limited, Ranchi, through
its ChairmancumManaging Director
1. The Director (Personnel), Central Coalfields
Limited, Darbhanga House, Ranchi
3. The Chief General Manager (Personnel & Administration)
Central Coalfields Limited, Darbhanga House, Ranchi
4. The Personnel Manager (Recruitment), Central
Coalfields Limited, Darbhanga House, Ranchi
5. The Dy. Personnel Manager (Recruitment),
Central Coalfields Limited, Ranchi ... ... Respondents.
For the Petitioners : Mr. Rupesh Singh, Advocate
For the Respondents : Ms. Banani Verma, Advocate
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: The petitioners have approached this Court challenging
order dated 18.09.1998 passed by the respondents No. 3 whereby the claim of the petitioners for appointment on the post of Lab/Pathological Technician (Trainee) in the consolidated pay of Rs. 2,000/ has been rejected. A further prayer seeking issuance of a Writ of Mandamus on respondent nos. 2 and 3 directing them to appoint the petitioners on the said post, has also been made in the writ petition.
2. The brief facts as stated in the writ petition are that, sometime in the year 1994, names were sent from the employment 2 exchange for appointment on the post of Lab/Pathological Technician and the names of the petitioners were also duly forwarded. It is the case of the petitioners that the petitioners obtained diploma from Medical Laboratory Technology Institute, Kaloor, Kochin. The petitioners were issued admit card and a written examination was conducted on 28.12.1994 in which petitioners were declared successful and thereafter they were invited to appear in the interview and practical examination which were conducted sometime in the year 1995. However, the appointment letter was not issued and the petitioners were informed that since the diploma obtained by the petitioners is not a recognized diploma, they cannot be offered appointment. Thereafter, petitioners approached this Court by filing C.W.J.C. No. 4106 of 1996 (R), which was allowed with a direction to the respondents to decide the claim of the petitioners after affording reasonable opportunity to the petitioners. However, by the impugned order dated 18.09.1998 the claim of the petitioners was rejected on the ground that they were not possessing requisite qualification.
3. A counteraffidavit and supplementary counteraffidavit have been filed on behalf of the respondents asserting that although the Implementation Instruction No. 55 was amended on 14.11.1994, the requirement with respect to the requisite qualification, i.e. diploma from recognised institute, remained the same and since the petitioners are not possessing the requisite 3 educational qualification, they were not appointed. It has further been stated that in a similar case in which a direction was given by this Court for appointment of a person on the post of Radiographer, who had also obtained diploma from the same institute, the Hon'ble Supreme Court interfered with the order passed by this Court, on the ground that a person not holding the requisite degree/diploma cannot be given appointment.
4. Heard learned counsel for both the parties and perused the documents on record.
5. Mr. Rupesh Singh, the learned counsel for the petitioners has submitted that at the time when the names were called from the employment exchange, the requirement of the requisite qualification was made known to the employment exchange and after processing the application of the petitioners, the respondents permitted them to appear in the written examination in which they were declared successful. Thereafter, they were invited for the interview and practical examination, therefore, it is not open to the respondents to say that only at the time when they appeared for interview, their educational qualification was verified and it was found that they are not holding requisite qualification. The respondents cannot contend this for another reason, that is, several other persons who had obtained degree from the same Institute were working in the respondentscompany and therefore, they had the knowledge about the validity of degree/diploma awarded by the Medical Laboratory, Technology Institute, Kaloor, Kochi. It has been 4 asserted by the learned counsel for the petitioners that in terms of Implementation Instructions No. 56 dated 14.11.1994, the petitioners are possessing the requisite qualification and that would be clear from the later part of the amended portion of the Implementation Instruction No. 56 which reads as under;
"However, the Technicians with 3 years experience from recognised Institute can continue to be recruited and inducted in T & S Gr. C as per our requirement."
6. Learned counsel for the petitioners has further submitted that an amendment was carried out in the Implementation Instruction No. 55 creating an exception for the appointment of the persons who were not holding the requisite qualification from a recognized Institute and this has been made clear by the aforesaid provision which has been incorporated in the Implementation Instruction No. 56 which shows that the recruitment on the post of T & S Gr. C would continue for the persons, who were holding recognised degree from the recognised Institute. By filing supplementaryaffidavit this has been brought on record that there was no requirement of recognition of the Institutes. The letter issued by the Medical Council of India indicates that it has not recognized any paramedical institute for awarding diploma in Pathology/Lab. Technicians, Radiographer, ECG Technicians, etc. It has also been stated that the Ministry of Health and Family Welfare has also certified that there is no such requirement under the law under which a diploma in the said 5 course is required to be recognized. Based on such documents, learned counsel for the petitioner has submitted that even though the word 'recognised' appears in the Implementation Instruction Nos. 55 and 56, it cannot be given effect to and insisted upon by the respondents and the petitioners cannot be denied appointment.
7. Percontra, Ms. Banani Verma, the learned counsel for the respondents submitted that the petitioners have misconstrued the provision contained in Implementation Instruction No. 56. The requirement of having a diploma from the recognized Institute is the necessary condition for appointment on the post of T & S GradeD. She has further submitted that one such matter had gone up to the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to interfere with the direction given by this Court in C.W.J.C. No. 2128 of 1998 (R). The Learned counsel appearing for the respondents has also relied on the decision of the Hon'ble Supreme Court reported in (1998) 3 SCC 146, (2007) 5 SCC 77 and (2007) 5 SCC 519, to substantiate the contention raised on behalf of the respondents that the person who is not holding requisite qualification cannot be given appointment.
8. The Implementation Instruction No. 56 is extracted below :
IMPLEMENTATION INSTRUCTION NO. 56
No. CIL/JBCCIIV/I.I No. 56/388896 Dated 14th Nov., 94 Sub : Cadre Scheme for Para Medical Staff Technician (Pathological/Radiographer) 6 Ref : I.I. No. 55 of NCWAIII dt. 17.12.85 In the Para Medical Subcommittee meeting held on 4.5.94 at CIL (HQ), Calcutta, it was decided to amend the Cadre Scheme for Para Medical staffTechnicians (Pathological/Radiographer) AnnexureVII with the following modifications:
"In the footnote of Cadre Scheme for Para Medical Staff Technicians (Pathological/Radiographer) Annexure VII, as circulated vide Implementation Instruction No. 55 dated 171285 it will be mentioned as under:"
"As the Technicians (Pathological/Radiographer) with 3 years experience from Recognised Institutes are generally not available, qualified Technicians may be recruited in T & S Gr. D as Technician (Trainee). On successful completion of training period of 3 years in our own medical set up, they will be placed in T & S Gr. C. However, the Technicians with 3 years experience from recognised Institute can continue to be recruited and inducted in T & S Gr. C as per our requirement."
The above report of the Para Medical subcommittee was further discussed in detail in the Standardisation Committee meeting held on 6.7.94 at CIL (HQ), Calcutta and the report of the committee was approved with the following modification :
"On successful completion of training/experience of 3 (three) years in our own medical set up, they will be placed in Tech. & Sup. Gr. C."
Accordingly, the revised Cadre Scheme for Para Medical staffTechnicians (Pathological/Radiographer) Annexure VII is enclosed.
Managements have been requested to take necessary action to implement the above decision."
9. A perusal of the documents on record and the provision as noticed above, would indicate that the petitioners are qualified 7 as per the Implementation Instruction No. 56 dated 14.11.1994 of the respondents and the claim of the petitioners has been illegally denied on superficial grounds. The order of remand dated 16.09.1997 passed by this Court in C.W.J.C. No. 4106 of 1996 (R) whereby the writ petition filed by the petitioners, was partly allowed clearly directed the respondents, to appoint the petitioners, if the petitioners are able to satisfy the respondents in so far as the educational qualification possessed by them are concerned. The specific direction of this Court has not been complied with by the respondents and the impugned order dated 18.09.1998 has been passed in a mechanical manner. A bare reading of order dated 18.09.1998 discloses that the Authority concerned has not applied his mind and the claim of the petitioners has been rejected summarily. The respondents, in their supplementary counteraffidavit dated 19.05.2009, have accepted that there were 9 existing vacancies in T & S Grade C Lab. Technicians, however, the counteraffidavit and the supplementary counteraffidavit are silent whether any post of Lab. Technicians Grade D (Trainee) was available or not. The respondents have admitted that there were persons working as Lab. Technicians in higher grade who had obtained Diploma from Medical Laboratory Technology Institute, Cochin. It further appears that Implementation Instruction No. 56 which was introduced after amending Implementation Instruction No. 55, contemplates appointment of Lab. Technicians Grade D (Trainee) to serve as Feeder Cadre to Lab. Technician 'C' and 'D' and 8 this is the reason it has been clearly stated in the second para of Implementation Instruction No. 56 that Technicians with three years' experience from recognised institute would be continued to be recruited and inducted in T & S Grade 'C', whereas, in the first para there is no requirement of having a Degree from recognised institute.
10. In paragraph Nos. 5 and 6 of the supplementary counteraffidavit dated 19.05.2009 filed on behalf of the respondents, it has been stated that,
5. "That with regard to the former it is stated that as per the existing cadre scheme for Technician (Lab) the entry level grade for Lab. Technicians T & S Grade C, and the vacancy position in Grade C as per the manpower Budget 200809 is 9 (nine). However it is relevant to mention here that fresh recruitment is done by the Recruitment Department of CCL as per instruction/sanction communicated by the competent authority.
6. That with regard to the letter it is stated Sri Santosh Kumar had filed a writ petition earlier before the Hon'ble Patna High Court of Ranchi Bench being CWJC No. 4106/96 (R), and as per the direction of the Hon'ble Court Sri Santosh Kumar was given an opportunity of hearing in order to consider his case and accordingly same was done on 25.08.1998 (Annexure 7 series of writ petition).
It is further stated that no similarly situated person i.e. having Diploma from Medical Laboratory Technology Institute, Cochin are working against the post of GradeD Lab Technician at present. However some such persons are presently working as Lab Technician in higher Grade like GradeB.
11. The petitioners have specifically contended by giving a chart containing the name of the persons who are possessing the 9 educational qualification i.e. diploma/degree from the Medical Laboratory Technology Institute, Kochin. Letters written from the Medical Council of India and the Ministry of Health & Family Welfare have also been brought on record. Relevant portion of the communication from the Ministry of Health & Family Welfare, Government of India, is extracted below :
To Shri Santosh Kumar, Vidya Pathological Lab, Bank More, Phusro, Bokaro Jharkhand829144 Subject: Application of Shri Santosh Kumar seeking information under RTI Act, 2005 regarding recognition of paramedical institutionsreg. Sir, I am directed to refer to your letterdated 24.09.2008 on the subject cited above and give following replies to your queries: S. No. Question Reply A Whether there is any Government Ministry of Health & Family Welfare Institution/body, which grants has not constituted any Regulatory recognition to Paramedical Body to grant recognition to the Institutes granting Diplomas in institutions awarding Certificate/ Pathology/Lab. Technicians, Diploma/Degree in Pathology/Lab. Radiographer, ECG Technician etc. Technicians, Radiographer, ECG If yes, then kindly furnish the Technician etc. details.
B Earlier the Medical Colleges used to This part of your application pertains grant such diplomas which were to the Medical Council of India and to probably recognized by Medical be replied by the Medical Council of Council of India but later the India.
Medical Colleges stopped conducting such diplomas courses.
Kindly give the exact/probable year where after the Medical Colleges stopped conducting such courses/diplomas.
C Is there any recognized Ministry of Health & Family Welfare institute/medical college which has not recognized any institution for grants 'Diploma' in Radiographer, awarding certificate/diploma/degree in Pathology/Lab Technician, ECG radiology, pathology, laboratory Technician etc. technology, ECG technology etc. Yours faithfully, (R. L. Chongthu) Deputy Secretary to the Government of India 10
12. The communication dated 24.10.2008 from the Ministry of Health & Family Welfare, Government of India specifically states that the Ministry of Health & Family Welfare has not constituted any regulatory body to grant recognition to the institutions awarding Certificate/Diploma/Degree in Pathology/Lab. Technicians, Radiographer, ECG Technician etc. and it has further been stated that the Ministry of Health & Family Welfare has not recognised any institution for awarding Certificate/Diploma/Degree in Pathology/Lab. Technicians, Radiographer, ECG Technician etc. The Medical Council of India has also certified that it has not recognised any paramedical institution for awarding Certificate/Diploma/Degree in Pathology/Lab. Technicians, Radiographer, ECG Technician etc.
13. Learned counsel appearing for the petitioners relied on the judgment of the Hon'ble Supreme Court in "Bhavnagar University versus Palitana Sugar Mill (P) Ltd. & Ors.", reported in (2003) 2 SCC 111 to fortify the contention that the case of the petitioners is entirely different from the case which was before the Hon'ble Supreme Court in Civil Appeal No. 3606 of 2001 titled "Central Coalfields Limited & Anr. Vs. Govind Kumar Sharma & Ors." . He has further submitted that in the said case full facts were not disclosed before the Supreme Court and infact the Central Coalfields Limited suppressed many vital facts and therefore, the reliance placed by the respondents on order passed by the Hon'ble 11 Supreme Court in Civil Appeal No. 3606 of 2001 titled "Central Coalfields Limited & Anr. Versus Govind Kumar Sharma & Ors." is not tenable and justified.
14. Adverting to the contention raised by the learned counsel for the respondents, I find that in "Union of Indian & Anr. Vs. Ravi Shankar & Anr.", reported in (1998) 3 SCC 146, the persons were not possessing requisite qualification and therefore, in such a situation the Hon'ble Supreme Court held that those persons cannot be granted appointment. In "ViceChancellor, M.D. University, Rohtak Vs. Jahan Singh" reported in (2007) 5 SCC 77, it has been observed by the Hon'ble Supreme Court that even if some benefits have been granted to one person illegally, such benefit cannot be claimed by others. The Hon'ble Supreme Court has observed as under :
28. "Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution of India carries with it a positive concept.
Article 14 of the Constitution cannot be invoked, for perpetuating illegality."
15. I find that in "ViceChancellor, M.D. University, Rohtak Vs. Jahan Singh" (Supra) the claim of the original petitioner was based upon some benefits granted to one person only. However, in the present case from the counteraffidavit filed on behalf of the respondents, it is clear that the respondents have admitted that several persons in the company who are holding degree/diploma from the same institute are still continuing in the company. 12
16. In "Bihar Public Service Commission & Ors. Vs. Kamini & Ors.", reported in (2007) 5 SCC 519, the Hon'ble Supreme Court has dealt with the issue, in which the claim was based upon some benefit given to others in the remote past. However, in the present case that is not so. Several persons have been given appointment in the company and those are still continuing in service who were holding degree/diploma from the same institute from which the petitioners have also obtained their diploma.
17. The reliance placed by the counsel for the respondents on the order passed by the Hon'ble Supreme Court in Civil Appeal No. 3606 of 2001, "Central Coalfields Limited & Anr. Vs. Govind Kumar Sharma & Ors." is also not tenable for the reason that the materials which has been produced before this Court in the present writ proceeding were admittedly not produced in the earlier proceedings. It is not appearing from the order passed by the Hon'ble Supreme Court, that it was brought to the notice of the Hon'ble Court that there is no requirement under the law for recognizing the diploma from an institute.
18. In view of the aforesaid, I hold that the petitioners are eligible for appointment on the post of Lab/Pathological Technician (Trainee) GradeD.
19. Learned counsel for the respondents has pointed out that as on today there is no post in T & S, GradeD available on which petitioners can be appointed. In opposition, the counsel for 13 the petitioners has submitted that since the post of T & S, GradeD is not a regular feeder cadre and therefore, there may not be any permanent vacancy in such post. The initial offer for the petitioners itself would indicate that it was an offer for appointment on the consolidated stipend of Rs 2,000/ and therefore, the claim of the petitioners should be considered as on the date when such offer was made to the petitioners. He has relied on the statement made before the Respondent No. 3 is noted in the impugned order, which is as under :
6. "You also stated that you would be prepared to work as Lab./Pathological (Trainee) on stipend of Rs. 2000/ per month for the training period and thereafter in the appropriate grade to be decided by the management of the respondent company. With this, you finished the statement and stated that you have nothing to say further."
20. The writ petition is disposed of with a direction that the claim of the petitioners should be decided in the light of the findings recorded hereinabove expeditiously, preferably within six weeks from the date of production of a copy of this order.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 20/06/2013 ManishTanuj/N.A.F.R.