Himachal Pradesh High Court
Yogesh And Others vs State Of Himachal Pradesh And Another on 9 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2769 of 2023
Decided on: August 9, 2023
________________________________________________________
.
Yogesh and others ........... Petitioners
Versus
State of Himachal Pradesh and another ....Respondents
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
of
For the petitioner : Mr. Yogesh Kumar Chandel,
Advocate.
For the Respondents :
Mr. Rajan Kahol, Mr. Vishal Panwar
rt and Mr. B.C. Verma, Additional
Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General.
Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C. Verma, Additional
Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General,
for respondent No.2.
________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Art.226 of the Constitution of India,, petitioner has prayed for following main reliefs:
"i.) That the writ in the nature of certiorari may kindly be issued to quash and set aside the Oral rejection of the petitioner's candidature for MLT Grade-II batch wise recruitment initiate as per Annexure P-4.
ii.) That the respondent department may kindly be directed to consider the petitioners for selection and appointment in their applied General category, on the strength of annexure P-2 (Collectively) and P-16 (Collectively) to MLT Grade-II year 2020 batch wise 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 09/08/2023 20:41:33 :::CIS 2
selection/appointment, process for which initiated as per annexure P-4."
.
2. Precisely, the facts of the case, as emerge from the record, are that in terms of Recruitment and Promotion Rules for the post of Medical Laboratory Technician Grade II, counseling process was initiated in the year 2020 for filling up 161 posts on batch-wise basis against 30% quota as per following category-wise break up given of below:
Sr. No. Name of category Number of
rt posts
1. General 64
2. General (EWS) 19
3. SC 31
4. SC Antodayan/BPL 5
5. ST 6
6. ST Antodayan/BPL 2
7. OBC 25
8. OBC Antodayan/BPL 5
9. General-WFF 2
10. SC-WFF 1
11. OBC-WFF 1
Total 161
3. Petitioners herein though were eligible to be considered for appointment against the post in question but since at that time petitioners' degrees of B.Sc. in the relevant filed were not registered by Para Medical Council, their names were not considered for appointment against the post on batch wise basis.
4. Now since the certificates of all the petitioners have been duly registered by the Para Medical Council, they have approached this court, praying therein for issuance of a direction to respondent No.2 to ::: Downloaded on - 09/08/2023 20:41:33 :::CIS 3 consider their names for appointment against the post in question, especially when 17 posts are lying vacant.
.
5. Pursuant to notices issued in the instant petition, respondents Nos. 1 and 2 have filed reply, wherein facts as noticed hereinabove are not in dispute, rather stand admitted. In para-6 of the reply, it has been categorically stated that after declaration of the result of the counseling process of 161 posts of Medical Laboratory Technician Grade II to be of filled up on batch-wise basis, appointments were offered to 109 eligible candidates initially vide office order dated 10.8.2022 (Annexure P-8) rt and 23 posts under different categories were kept reserved for the respective petitioners who had appeared in the counseling process pursuant to the interim directions passed by this Court in respective cases and as of today, 29 posts under different categories have remained un-filled on account of non-availability of suitable candidates in the respective categories, as detailed below:
Sr. No. Name of category Number of
posts
1. General (EWS) 9
2. SC 3
3. SC Antodayan/BPL 5
4. ST 1
5. ST Antodayan/BPL 2
6. OBC 1
7. OBC Antodayan/BPL 4
8. General-WFF 2
9. SC-WFF 1
10. OBC-WFF 1
Total 29
6. Since 9 posts falling to the category General EWS remained unfilled at initial stage, matter was referred to Government for necessary direction from Advisory Department to fill up these posts ::: Downloaded on - 09/08/2023 20:41:33 :::CIS 4 from General (UR) category, which permission was still awaited. As per reply filed by the respondents, as of today, 17 posts of Medical .
Laboratory Technician Grade II are vacant i.e.05 posts under General and 12 posts under General (EWS) category.
7. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Yogesh Kumar Chandel, learned counsel for the petitioners is that once instructions already of stand issued that if posts falling in the category of General EWS are not filled from EWS category then same are to be de-notified/de-
rt reserved and filled up from General category candidates in the same recruitment process. In this regard, he invited attention of this Court to instructions dated 11.6.2019 issued by Department of Personnel Annexure P-18 annexed with the rejoinder, relevant portion whereof is reproduced herein below:
"5.3 Where in any recruitment year any vacancy earmarked for EWS cannot be filled up due to non-availability of a suitable candidate belonging to EWS, such vacancies for that particular recruitment year shall not be carried forward to the next recruitment year as backlog.
In other words, when an Economically Weaker Section (EWS) candidate is not available for selection, the post will be treated automatically as de-reserved and will be filled up from a non-EWS candidate of unreserved category. While advertising the vacancies reserved for Economically Weaker Section (EWS), the recruiting authorities/agencies should specifically incorporate such conditions in the advertisement notice/vacancy circular. "
8. As per aforesaid provision, where in any recruitment year any vacancy earmarked for EWS cannot be filled up due to non-availability ::: Downloaded on - 09/08/2023 20:41:33 :::CIS 5 of a suitable candidate belonging to EWS, such vacancies for that particular recruitment year shall not be carried forward to the next .
recruitment year as backlog. If it is so, there is merit in the contention of learned counsel for the petitioners that the posts which remained unfilled on account of non-availability of a suitable candidate of general-EWS category, same are required to be filled up from the candidates, who are still available to be given appointment on batch-
of wise basis. Admittedly, in the case at hand, cases of the petitioners were not considered on account of non-registration of their certificates rt by Para Medical Council. Since now certificates of the petitioners stand duly registered by Para Medical Council coupled with the fact that similarly situate persons have been already given appointment in the same recruitment process, cases of the petitioners are also required to be considered and decided by the respondents.
9. Bare perusal of judgment dated 25.7.2022 passed in CWP No. 5181 of 2020 titled Chander Mehta v. State of Himachal Pradesh reveals that in similar facts and circumstances, this court directed the respondents to consider the case of petitioners in that case for the post of Medical Laboratory Technician Grade II. It has been informed that pursuant to direction contained in order passed by Division Bench of this court, person namely Chander Mehta stands appointed as Medical Laboratory Technician Grade II, who admittedly at initial stage was not permitted to participate on account of fact that his certificate was not registered by Para Medical Council.
::: Downloaded on - 09/08/2023 20:41:33 :::CIS 610. Similarly, this court finds that Division Bench of this Court in CWP No. 4145 of 2022 titled Rajesh Kumar v. State of Himachal .
Pradesh and others, decided on 1.9.2022, directed respondents to consider the candidature of petitioner in that case for the post in question, if otherwise, he was found eligible.
11. In all the cases, petitioners were not permitted to participate due to non-registration of their certificate by the Para Medical Council.
of Since now certificates stand registered by the Para Medical Council and 17 posts are lying vacant, there appears to be no impediment for rt respondents to consider the petitioners for appointment against the unfilled posts on batch wise basis, if otherwise found eligible.
12. Though Mr. Rajan Kahol, learned Additional Advocate General, while referring to reply filed by the respondents, vehemently argued that the representation of similarly situate persons belonging to batch of the year 2009 is pending consideration, but that fact, if any, may not be of much relevance especially when it is not in dispute that at present 17 posts are lying vacant, coupled with the fact that representations of aforesaid persons can also be considered with the cases of the petitioners.
13. At the cost of repetition, it may be observed that posts, which were originally meant for EWS but could not be filled on account of non-availability of suitable candidates of EWS category, are required to be filled up from amongst the candidates belonging to general category. If it is so, case of the petitioners are also required to be ::: Downloaded on - 09/08/2023 20:41:33 :::CIS 7 considered for appointment against the post in question, on batch-wise basis.
.
14. Consequently, in view of above, present petition is disposed with a direction to the respondents to consider the cases of the petitioners for appointment against post of Medical Laboratory Technician Grade II, against unfilled posts, on batch wise basis, expeditiously, preferably within a period of four weeks.
of The petition is disposed of in the afore terms, alongwith all pending applications.
rt (Sandeep Sharma)
Judge
August 9, 2023
(vikrant)
::: Downloaded on - 09/08/2023 20:41:33 :::CIS