Central Administrative Tribunal - Bangalore
Gorav Kumar Nagar vs M/O Health And Family Welfare on 13 February, 2023
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OA.No.170/427/2020/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00427/2020
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Gorav Kumar Nagar,
Aged about 28 years,
S/o Ramkishor Khateek,
Residing at VPO Paparda,
Tehsil Nangal Rajawatan,
District Dausa, Rajasthan. ..Applicant.
(By Advocate Shri Poornachandra B. Pattar)
Vs.
1.Union of India,
Through its Secretary,
Ministry of Medical and Health,
Near Udyog Bhawan Metro Station,
Maulana Azad Road, New Delhi-110011.
2. The Additional Director,
Directorate General of CGHS,
MOHFW, Govt. of India,
3rd Floor, E-Wing, Kendriya Sadana,
Koramangala, Bengaluru-560034.
3. The Secretary,
Board of Secondary Education,
Police Lines, Ajmer,
Rajasthan-305001.
4. The Secretary,
Rajasthan State Open School,
Eklavya Bhawan, Jawahar Lal Nehru Marg,
Near Galdhara, Block C, Sector 10,
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Malviya Nagar, Jaipur,
Rajasthan-302015. ....Respondents
(By Shri S. Sugumaran, Sr. Panel Counsel for Respondents No. 1 & 2
None present for Respondent No.3)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) To direct the Respondents to consider the qualification of Sr. Secondary of applicant as equivalent to Regular Sr. Secondary as per the amended order dated 14.03.2016 (Annex.11) issued by Secondary Education Board, Rajasthan, Ajmer.
b) To set aside the impugned order dated 16.01.2020 (Annexure A-1) vide which it has been held by the respondents that the applicant does not meet recruitment criteria of MoHFW, for the post of Pharmacist (Ayurveda) in CGHS, Bengaluru.
c) To direct the Respondents to give appointment to the applicant on the post of Pharmacist (Ayurveda) as the applicant secured first position in merit in pursuance of the selection process as notified by advertisement.
d) Pass any appropriate order to the respondents, which this Tribunal deems just and proper in the circumstances of the case.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
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a) The respondent issued an advertisement for recruitment to the post of Ayurvedic Pharmacist classified under General Central Service.
Croup' C', Non Ministerial, Non-Gazetted and advertised only 1 vacant post under SC Category. The essential qualifications for the post in question were as follows:
i) Educational Qualification: 12th class passed or equivalent with Science Stream (Physics or Chemistry or Biology) from a recognized Board or University.
ii) Technical Qualification: Degree in Ayurvedic Pharmacy OR Diploma in Ayurvedic Pharmacy course duration of which should not be less than two years from any Government Organization or recognised private institute or by any University and registered with respective State Government Ayurvedic Regulatory Board or Councils; and
iii) Two years' experience in the field of Ayurvedic Pharmacist from any recognized Ayurvedic Dispensary or Hospital or Pharmacy or Wellness Centre.
b) The applicant belongs to the Schedule Caste category. The authorities concerned issued SC Caste Certificate in favour of the applicant. The applicant is having all requisite qualification for the post in question.
c) He had completed his Secondary School Examination in the year 2006 from the Board of Secondary School Education, Rajasthan. Thereafter, the applicant had completed ITI, which is a two years course 4 OA.No.170/427/2020/CAT/Bangalore Bench (Provisional National Trade Certificate) in the Electronics Mechanic stream affiliated to National Council for Vocational Training (NCVT) in which he also studied subjects of physics and chemistry.
d) The applicant in the year 2019 completed his Senior Secondary Examination in only one subject, i.e. English from Rajasthan State Open School. This is considered as equivalent to a regular Sr. Secondary since he had completed his two years of ITI Diploma, and then he had completed Sr. Secondary from open school in English subject. His qualification is considered as regular Sr. Secondary.
e) The applicant had also completed his Diploma in Ayush Nursing and Pharmacy in the year 2012 and registered under Section 17 of Rajasthan Ayurveda Nursing Council Act, 2012.
f) Being eligible for the post of Ayurvedic Pharmacist, the applicant applied under SC Category for the said post. The applicant appeared in the online computer-based examination held on 4.11.2019 at Bangalore. The respondent issued the final Merit List in which the applicant secured first position securing a total of 85.75 marks. The applicant became, therefore, eligible for selection and appointment to the post of Ayurvedic Pharmacist.
g) The respondents have, however, rejected his candidature on the grounds that he does not meet the recruitment criterion for the post since he does not have the educational qualification of a regular Sr. Secondary as per the Rules.5
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h) The Secretary, Board of Secondary, Rajasthan Ajmer had issued an amended order on 14.03.2016. As per column No. 2(i) of aforesaid order, candidates who have passed the Secondary Examination, thereafter completed two or more years diploma affiliated with the NCVT, and thereafter completed Sr. Secondary in the English Subject from Rajasthan State Open School, Jaipur, are to be considered as equivalent to Sr. Secondary. In view of these orders, the applicant has stated that he has the requisite qualification for appointment to the post of Ayurvedic Pharmacist.
i) The respondents issued impugned order dated 16.01.2020, mentioning therein that the candidature of applicant for the post of Pharmacist (Ayurveda) in CGHS Bengaluru, cannot be considered for the reason that the applicant does not meet the recruitment criteria of Govt. of India Gazette Notification No. GSR 86 dated 28.04.2014, based on which this recruitment has been made. The applicant states that he is having all the requisite qualifications.
j) As per the Notification dated 28.12.2017, issued by the Ministry of Health and Family Welfare, Department of Health and Family Welfare, the requisite qualifications for the post of Ayurvedic Pharmacist under the Central Government Health Scheme Organization, Ayurvedic Pharmacist (Group 'C' Post) Recruitment Rules, 2014 are that the candidate must possess educational qualification of 12th class passed or equivalent with science stream (Physics or Chemistry or Biology) from a recognized Board or university. The applicant has the qualification 6 OA.No.170/427/2020/CAT/Bangalore Bench which is notified as equivalent to Sr. Secondary. As per the amended order of Secondary Education, the qualification of applicant is equivalent to Sr. Secondary since he had completed two year diploma affiliated from NCVT after passing 10th class, and thereafter he has completed 12th from Rajasthan State Open School in English stream. This aforesaid qualification is considered to be equivalent to Sr. Secondary qualification.
k) The applicant submitted a representation on 21.01.2020 mentioning therein that the applicant is fully entitled for appointment to the post of Pharmacist Ayurveda as he had secured first position in merit, and also had the requisite qualifications as per the amended order issued by the Secondary Education, Rajasthan. No reply was received to this representation so far.
3. The respondents No. 1 and 2 have filed their written statement wherein they have averred as follows:
a) The applicant has completed ITI which is a two-year course (Provisional National Trade Certificate) in the Electronic Mechanic stream. He has studied Engineering Drawing, WS Calculation and Science and Social Studies. However, he has not studied Physics or Chemistry or Biology as the subjects in ITI from Rajasthan council for vocational Education and training.
b) The applicant claims that ITI 2 Years Diploma is equivalent to Higher secondary, whereas he has not done ITI Diploma in the streams, 7 OA.No.170/427/2020/CAT/Bangalore Bench Physics or Chemistry or Biology which is the criteria for educational qualification as per the Recruitment Rule of Ayurveda Pharmacist. Any recruitment in Govt. Service is based on duly notified Recruitment Rules (RR). In this case, the recruitment to the post of Ayurvedic Pharmacist in Govt. of India Ministry of H&FW (CGHS) Bangalore, is based on duly notified RR under Gazette Notification GSR 86 dt.28.04.2014 which are statuary rules in nature and issued under Proviso to Article 309 of Constitution of India.
c) The applicant was informed about his non-selection to the post of Ayurvedic Pharmacist in CGHS Bangalore vide letter dated 16.01.2020 giving the reasons for non-selection of his candidature.
d) The applicant has passed 12th std. in Rajasthan open school in English subject which does not include Physics or chemistry or Biology as mentioned in GSR 1592 (E). The applicant has also completed Diploma in ITI in electronics and Mechanic streams whereas, the subjects do not include Physics or Chemistry or Biology.
e) Any recruitment in Govt. Service is based on duly notified RR. In the present case, recruitment to the post of Ayurvedic Pharmacist in Govt. of India Min. of Health & family welfare, CGHS, Bangalore, is based on recruitment duly notified in GSR 1592 (E) dated 28.12.2017 which are statutory rules in nature and issued under Proviso to Article 309 of Constitution of India. The appointing authority, Additional Director CGHS Bangalore, has no powers to alter or modify the existing rules, hence, there is no violation or illegal in this case. 8
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f) The applicant stood 1st in the merit list, but has failed in producing the essential qualification certificate to acquire the post of Pharmacist Ayurveda.
4. Respondent No.4 (Rajasthan State Open School) has filed its reply and has averred as follows:
a) The applicant has completed ITI course of two years from National Council for Vocational Training Institute and after successful completion of ITI course of two years, the applicant got himself registered with registration no. 28001183032 for the exams which were conducted in March to May 2019. The applicant appeared in the exam for English subject, where he secured 51 marks.
b) An Order dated 04.05.2015 was issued by the Rajasthan Government where it was clearly mentioned that a candidate who has cleared Secondary Examination (10th Class) from a recognized board and thereafter completed 2 years or more course from National Council for Vocational Training (NCVT) will just have to clear examination in English subject and thereafter he will be considered as graduated from class 12th as per his qualification course done from NCVT.
c) Resolution No. F-22(4)Edu-1/2004 dated 04.06.2005 was passed by the Department of School & Sanskrit Education, Government of Rajasthan, wherein an authority was vested in the Rajasthan State Open School Society for holding certain examinations through distance and open learning system at the school stage and for certification thereof. 9
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d) Rajasthan State Open School Society was set up as an autonomous and registered body on 21st March, 2005 to cater to the educational needs of school dropouts, working adults, housewives, socially disadvantaged sections, etc. through distance education at the school stage. In pursuance of Section 4(x) of the Memorandum of Association of the Rajasthan State Open School Society, the society conducts the examination at the school stage of education up to class XIIth, whether academic, technical or vocational, which are either developed by the Rajasthan State Open School itself or in collaboration with other agencies subject to approval from the society. The Rajasthan State Open School has authority to provide certification and its certificate is as valid as a Higher Secondary Certificate obtained from any other recognized board.
e) Vide amended Office Order dated 14.09.2005 issued by the Secretary, Secondary Education Board, Rajasthan, it was clarified that Secondary Examination and Senior Secondary Examination conducted by the Rajasthan State Open School, Jaipur will be equivalent to Secondary Examination and Higher Secondary Examination respectively conducted by the Rajasthan Board.
f) A letter dated 01.02.2008 was issued by the Joint Secretary, Council of Boards of School Education in India (COBSE) wherein Rajasthan State Open School, Jaipur was officially made member of COBSE and the letter clearly mentioned that the certificates issued by the Rajasthan 10 OA.No.170/427/2020/CAT/Bangalore Bench State Open School, Jaipur will be treated as recognized by its member boards.
g) An Office Memorandum dated 25.09.2012 was issued by the Under Secretary to the Government of India, Ministry of Human Resource Development, Govt. of India, wherein it is clearly mentioned that the Rajasthan State Open School(SOS) is a member of COBSE which is an association of National and State Education Boards. Further, it was clearly mentioned in the Office Memorandum that certificates issued by the Rajasthan State Open School will be recognized for pursuing higher studies/employment in Central/State Government organization.
h) An Office Memorandum dated 24.04.2017 was issued by the Ministry of Human Resource Development, Government of India, wherein it was made crystal clear that National Institute of Open Schooling (NIOS) which is an autonomous body of MHRD has acknowledged that the Rajasthan State Open Board School, Jaipur is a recognized Board of Secondary and Senior Secondary Education and certificates issued by Rajasthan State Open School, Jaipur will be valid for higher/further studies and for appointment in the Central and State Government Departments.
i) The Rajasthan State Open School, Jaipur is a recognized board for Secondary and Senior/Higher Secondary Education, just like any other recognized board. The present applicant has cleared exam in English subject from Rajasthan State Open School, Jaipur which was conducted in March to May 2019. The applicant has cleared the said 11 OA.No.170/427/2020/CAT/Bangalore Bench examination post acquiring ITI course/training from NCVT and thereafter he would be treated equivalent to a person who has cleared Higher Secondary/Senior Secondary examination and, therefore, applicant will be eligible for further studies as well as for appointment in the Central and State Government Departments.
5. Heard learned counsels for the parties and perused the pleadings made by them.
6. The candidature of the applicant for the post of Ayurvedic Pharmacist was rejected by the respondents vide letter dated 16.1.2020. The reason given in this letter were as follows:
"A per the findings of the Recruitment Committee, it is regretted to inform you that your candidature for the post of Pharmacist (Ayurveda) in CGHS Bengaluru cannot be considered for the following reason"
You do not meet the Recruitment criteria of MoHFW, Government of India Gazette Notification No. GSR.86 dated 28.04.2014 based on which this recruitment has been made."
7. It is not apparent from this letter, as to which part of recruitment criteria is not being met by the applicant for his candidature to be rejected. However, from the reply furnished by Respondents No.1 & 2, it appears that the reason for rejection of his candidature was that the respondents considered the educational qualification of the candidate with regard to his Senior 12 OA.No.170/427/2020/CAT/Bangalore Bench Secondary education not being as prescribed in the Recruitment Rules for the post.
8. A careful perusal of the Recruitment Rules specified for the post of Ayurvedic Pharmacist in CGHS as notified by Government of India vide notification dated 28.12.2017 read with the notification dated 28.4.2014, G.S.R. 86, indicates the following qualifications:
i) Education qualifications: 12th class passed or equivalent with Science Stream (Physics or Chemistry or Biology) from a recognized Board or University.
ii) Technical Qualifications : Degree in Ayurvedic Pharmacy OR Diploma in Ayurvedic Pharmacy course, duration of which should not be less than two years from any Government Organization or recognised private institute or by any University and registered with respective State Government Ayurvedic Regulatory Board or Councils; and
iii) Two years' experience in the field of Ayurvedic Pharmacist from any recognized Ayurvedic Dispensary or Hospital or Pharmacy or Wellness Centre.
9. The respondents have stated that the qualifications submitted by the applicant are not as per the educational qualification prescribed for this post.
10. The applicant on the other hand has claimed that he had passed 10th standard examination from the Board of Secondary Education, Rajasthan in the year 2006. Subsequently, he had completed 2 years' training programme from 13 OA.No.170/427/2020/CAT/Bangalore Bench Rajasthan Council for Vocational Education and Training in Electronics Mechanic stream from August 2006 to July 2008. He has also passed Senior Secondary examination in May 2019 conducted by Rajasthan State Open School in English only.
11. The contention of the applicant is that as per office order issued by Secretary Education Board, Rajasthan dated 14.3.2016, the expression 'Equivalent to Class 12' has been defined. A candidate, subsequent to passing in class Tenth, taking admission in a recognised vocational training for 2 years or more years and after passing the 1st year of the said course, if the student passes the examination of English subject from the prescribed course for Class 12 from Jaipur, as prescribed by the Board of Secondary Education Rajasthan/ Rajasthan State Open School, then such student shall be treated as equivalent to 12th pass for further education.
12. In the present case, the applicant has completed his Secondary School examination in 2006, completed ITI course, which was affiliated to Nation Council for Vocational Training, and was of 2 years duration, in the "Electronic Mechanic" Stream and subsequently completed his Senior Secondary examination in May 2019 in English from Rajasthan State Open School. The applicant has also contended that he had studied Physics and Chemistry while pursuing ITI Course in Nation Council for Vocational Training.
13. The learned counsel for Respondents No. 1& 2 has argued that recognition of the Senior Secondary educational qualifications is not equivalent to the requirement of passing the regular 12th standard examination from a regular 14 OA.No.170/427/2020/CAT/Bangalore Bench Board. This recognition is only for the purpose of further education and cannot be treated as equivalent for the purpose of employment.
14. However, Respondent No.4, (Secretary, Rajasthan State Open School), in their reply have specifically stated that Rajasthan State Open School, Jaipur is a recognized board for Secondary and Senior/Higher Secondary Education, just like any other recognized Board. The applicant has cleared the exam in English subject conducted in March to May 2019. The applicant has also cleared the said examination post acquiring ITI course/training from NCVT and thereafter he would be treated equivalent to a person who has cleared Higher Secondary/Senior Secondary examination. The applicant will be eligible for further studies as well as for appointment in the Central and State Government Departments.
15. The respondent no: 4 has also enclosed OM No.F.2-35/2011-School.3 dated 24.4.2017 issued by Ministry of Human Resources Development, Government of India, where it has been clarified that Rajasthan State Open School, Jaipur is a recognized board for Secondary and Senior/Higher Secondary Education, and their courses/ certificates will be valid for higher education and for appointment in Central and State Government departments.
16. The Recruitment Rules for the post prescribe minimum education qualification as 12th class pass or equivalent with Science Stream. The qualifications furnished by the applicant seem to be covered under the category of equivalent qualification as prescribed in the Recruitment rules. The ITI course in the stream of Electronic Mechanical, is similar to the 15 OA.No.170/427/2020/CAT/Bangalore Bench Science stream which is otherwise studied by candidates appearing in regular 12th standard board examination.
17. The contention of the respondents that this equivalent educational qualification of Senior Secondary is valid for further education purpose only and not for the purpose of employment cannot be countenanced. The Ministry of HRD vide Notification dated 24.4.2017, has notified that the qualification acquired from the Open School system are valid, both for education as well as for employment under the Central/ State Governments.
18. Moreover, the RRs for the post prescribe the eligibility conditions required for the post in three separate categories comprising of "Educational Qualification", "Technical Qualification" and "Experience". The required technical qualification of Diploma in Ayush Nursing and Pharmacy for the post of Ayurvedic Pharmacist, has already been acquired by the applicant. He has also qualified in a written test conducted by the respondents and stood first in merit. Hence, it cannot be said that the applicant has not met the prescribed technical qualifications for the post.
19. It is not clear from the impugned letter dated 16.1.2020 issued by the respondents, in which the candidature of the applicant has been rejected, as to whether all these aspects raised now before this Tribunal in this OA, had been considered by the respondents while rejecting the candidature of the applicant.
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20. To a query as to whether the post has been filled up or is still available for appointment, the learned counsel for the respondents clarified that the post has not been filled up.
21. Keeping the above points in view, it would therefore be appropriate for the respondents to reconsider the candidature of the applicant considering his educational qualification as equivalent to the senior secondary educational qualification as prescribed for the post.
22. The OA is accordingly partly allowed with the direction that the order dated 16.1.2020 (Annexure A-1) issued by the Additional Director, CGHS, Bengaluru, i.e. Respondent No.2 is set aside and the matter is remitted back to Respondent No.2 to reconsider the matter in accordance with law and take appropriate decision by passing a reasoned and speaking order in an expedite manner in any event not later than twelve weeks from the date of receipt of the certified copy of this order.
23. The OA is accordingly disposed of. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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