Rajasthan High Court - Jodhpur
Neha Vishnoi vs The Rajasthan Para Medical Council, ... on 16 March, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 4104/2021
1. Mahendra S/o Bhanwar Lal, Aged About 21 Years, Village Lorta Haridasot, Post Lorta Achlawata, Tehsil Balesar, District Jodhpur (Raj.).
2. Pushpa D/o Harman Ram, Aged About 21 Years, Village Shri Laxman Nagar, Chadi, Tehsil Bapini, District Jodhpur (Raj.).
3. Tanerao Singh S/o Jagmal Singh, Aged About 23 Years, Village Sagra, Post Chandan, District Jaisalmer (Raj.).
4. Surendra S/o Hari Krishan, Aged About 21 Years, Village Haniya, Post Khendakor, Tehsil Osian, District Jodhpur (Raj.).
5. Suresh S/o Babu Ram, Aged About 20 Years, Village Dayasagar Khara, Tehsil Phalodi, District Jodhpur (Raj.).
6. Sagarmal S/o Mangi Lal, Aged About 23 Years, Village Dayasagar Khara, Tehsil Phalodi, District Jodhpur (Raj.).
7. Kailash Katariya S/o Alsi Das, Aged About 23 Years, Village Meghwal Ki Dhani, V/p Khara, Tehsil Phalodi, District Jodhpur (Raj.).
----Petitioners Versus
1. State Of Rajasthan, Through The Additional Chief Secretary, Medical And Health Services, Govt. Of Rajasthan, Jaipur.
2. Rajasthan Sub-Ordinate And Ministerial Service Selection Board, Through The Secretary, Rajasthan State Agriculture Managing Institution Campus, Durgapura, Jaipur (Rajasthan).
3. Rajasthan Para Medical Council, Through The Registrar, C-7(A), Sultan House, SJS Highway, Bani Park, Jaipur- 302016.
4. Mahatma Gandhi University, 13th Mile, G.S. Road, District Khanapara, Byrnihat, Meghalaya-793101 Through Its Registrar.
With (2) S.B. Civil Writ Petition No. 3891/2021
1. Anupam Prakash S/o Sh. Kishana Ram, Aged About 26 Years, R/o Daro Ka Vas, Kalyan Singh Ki Shed, Bap, Jodhpur.
2. Raju Ram S/o Sh. Dana Ram, Aged About 25 Years, R/o Brahmano Ka Vas, Sanchore, District Jalore.
3. Chetan Kumar S/o Sh. Chena Ram Purohit, Aged About (Downloaded on 18/03/2021 at 08:49:13 PM) (2 of 14) [CW-4104/2021] 21 Years, R/o Village- Paldi Solankhiyan, Post Dhamana, Tehsil Sanchore, Jalore.
4. Kuldeep S/o Sh. Pancha Ram, Aged About 24 Years, R/o Village (Post) - Bhajannagar, Tehsil Lohawat, District Jodhpur.
5. Vikas S/o Sh Hari Ram Godara, Aged About 21 Years, R/o Bishnoiyo Ki Dhani, Shri Krishna Nagar, Jodhpur, Rajasthan.
6. Rupa Ram S/o Sh. Uda Ram, Aged About 27 Years, R/o Village Keerwa, Tehsil Rani, District Pali.
----Petitioners Versus
1. The Rajasthan Para Medical Council, Jaipur, Through Its Registrar.
2. Chairman, Rajasthan Subordinate And Ministerial Selection Board, Jaipur.
3. State Of Rajasthan, Through Its Secretary, Department Of Medical And Health, Government Of Rajasthan, Jaipur.
----Respondents (3) S.B. Civil Writ Petition No. 3914/2021
1. Neha Vishnoi D/o Shri Ramkunwar, Aged About 19 Years, R/o Jaroda Khurd, Tehsil Merta, District Nagaur.
2. Pooja Devi D/o Shri Khema Ram, Aged About 22 Years, R/o Godaro Ka Bas, Sindhlas, Nagaur.
3. Mahipal S/o Shri Sukh Ram, Aged About 27 Years, R/o Ward No. 22 Malar, Phalodi, District Jodhpur.
----Petitioners Versus
1. The Rajasthan Para Medical Council, Jaipur, Through Its Registrar.
2. Chairman, Rajasthan Subordinate And Ministerial Selection Board, Jaipur.
3. State Of Rajasthan, Through Its Secretary, Department Of Medical And Health, Government Of Rajasthan, Jaipur.
----Respondents (4) S.B. Civil Writ Petition No. 3054/2021
1. Ajay Verma S/o Shri Om Prakash Verma, Aged About 42 Years, B/c Scheduled Caste , R/o A-52, Near Railway Line Indira Colony , Nagaur (Raj.)
2. Sunita Mundel D/o Shri Narayan Mundel, Aged About 25 Years, B/c OBC, R/o Neembada Ki Gali, Marwar Mundwa, Distt. Nagaur (Raj.)
----Petitioners (Downloaded on 18/03/2021 at 08:49:13 PM) (3 of 14) [CW-4104/2021] Versus
1. The Rajasthan Para Medical Council, Jaipur, Through Its Registrar.
2. The State Of Rajasthan, Through Its Secretary, Department Of Rajasthan Subordinate And Ministerial Selection Board, Jaipur
3. Chairman, Rajasthan Subordinate And Ministerial Selection Board, Jaipur
4. State Of Rajasthan, Through Its Secretary , Department Of Medical And Health, Government Of Rajasthan, Jaipur
----Respondents For Petitioner(s) : Mr. Yash Pal Khileree Mr. Manoj Bhandari Mr. Hapu Ram For Respondent(s) : Mr. Bhavit Sharma Ms. Shalini Audichya for Mr. Vinit Sanadhya Mr. Jamvant Gurjar JUSTICE DINESH MEHTA Order 16/03/2021
1. The petitioners herein have approached this Court with the grievance that the respondent - Rajasthan Para Medical Council has wrongly turned down their request of registration.
2. Mr. Bhavit Sharma, learned counsel for the Para Medical Council, at the outset, raises an objection about the maintainability of writ petitions by arguing that petitioners have got an alternative and efficacious remedy in the form of appeal under Section 25 & 26 of the Rajasthan Para Medical Council Act, 2008 (hereinafter referred to as "the Act of 2008") and, thus, this Court should not interfere in the matter.
3. In response to the preliminary objection so raised, Mr. Yash Pal Khileree, learned counsel for the petitioners submits that the (Downloaded on 18/03/2021 at 08:49:13 PM) (4 of 14) [CW-4104/2021] remedy by way of appeal would be an empty formality, as the appeal against the impugned order of Registrar lies to the Para Medical Council, which has raised various queries and in spite of the satisfactory reply filed by the University stating that the course in question carried out by it is valid, the Para Medical Council has not considered their submissions objectively. It is also argued by Mr. Khileree that as the larger question regarding jurisdiction of the Para Medical Council and extent of information which it can ask from respondent - Mahatma Gandhi University, Meghalaya (hereinafter referred to as "MGU or respondent- University") is to be decided, petitioners cannot be asked to avail remedy of appeal.
4. Having heard learned counsel for the parties and after considering the issue involved, this Court is of the firm opinion that the remedy of appeal under Section 25 and 26 of the Act would not be efficacious remedy, particularly because the appellate authority can neither grant interim order nor can it decide the very issue of recognition of the qualification and/or equivalance of the qualification obtained by the petitioners. That apart, it can neither issue any direction to the respondent - University nor can it direct the Rajasthan Subordinate Ministerial Staff Selection Board to consider petitioners' candidature, which in the present cases have been asked for.
5. This being the position, preliminary objection is hereby overruled.
6. Adverting to the facts of the present case suffice it to note that the petitioners have done two years' Diploma course in ECG Technology from respondent - University. (Downloaded on 18/03/2021 at 08:49:13 PM)
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7. Respondent - University is a creation of Mahatma Gandhi University Act, 2010, which after being passed by the Meghalaya Legislative Assembly has received the assent of the Governor on 30.12.2010. The said Act has been published in the official Gazette of Meghalaya on 04.01.2011.
8. It is submitted by learned counsel for the petitioners that in furtherance of the Act aforesaid, the State of Meghalaya in the Education Department had accorded sanction for establishment of Mahatma Gandhi University in Meghalaya.
9. Another document dated 11.04.2011 has also been placed on record that has been issued by the University Grants Commission, which clarifies that in light of the judgment of Hon'ble the Supreme Court in the case of Professor Yashpal Vs. State of Chhatisgarh, reported in (2005) 5 SCC 420, the State University can grant degrees, as specified by the University Grants Commission under Section 22 of the University Grants Commission Act, 1956.
10. Learned counsel invites Court's attention towards a communication dated 15.09.2020 written by the respondent - Rajasthan Para Medical Council and points out that many questions have been asked by the respondent - Council, which are beyond its powers and scope of the regulation 42 of the Rajasthan Para Medical Council Regulations, 2014 (hereinafter referred to as "Regulations") and the provisions of Section 32 of the Act of 2008.
11. Learned counsel argues that in response to queries made on 15.09.2020, the respondent - University, has given satisfactory reply but the respondent Council has adopted a stubborn attitude and instead of granting recognition to the course carried out and (Downloaded on 18/03/2021 at 08:49:13 PM) (6 of 14) [CW-4104/2021] duly conducted by the respondent - University has rejected petitioners' application for registration, observing that on the basis of the documents supplied by the University it is not proved that it has been allowed/authorised to conduct para-medical Course by Central Government or Meghalaya Government.
12. Attention of the Court is drawn towards a letter written by the State of Meghalaya, pursuant to information sought by some students under RTI Act, intimating that there is no Para Medical Council functioning in the State of Meghalaya.
13. Petitioners' grievance is, therefore, manifold. It is contended that the University, which has been established by law is free to impart education in any field or carry out any course including para-medical course and it does not per se require recognition by the Central or State Government.
14. It is argued by learned counsel for the petitioners that since no Para Medical Council exists in the State of Meghalaya, neither the petitioners, nor the respondent - University is in a position to place any approval or permission granted by the competent body. Hence, if no indulgence is granted, petitioners would never be able to get themselves registered and get Govt. employment or other job.
15. That apart, learned counsel vehemently argues that the University has been established under the Mahatma Gandhi University Act, 2010, and all the courses including the para medical course is mentioned in its preamble and the Diploma obtained by the petitioners is nothing, but a part of the para medical course. According to petitioners, since, the Act has been enacted by the State of Meghalaya and the said Government has (Downloaded on 18/03/2021 at 08:49:13 PM) (7 of 14) [CW-4104/2021] accorded sanction for establishment of University, it is a natural corrollary that all the courses, which are written in the preamble have deemed approval of the State.
16. It is also asserted that Para Medical course and the diploma, which the petitioners have obtained, are being conducted right since inception of the University - from the year 2010 itself.
17. Mr. Jamwant Gurjar, learned counsel appearing for the respondent - University concurs with the submission so made by the petitioners, so far as the course conducted by the University and other submissions are concerned. He, however, prays for time to file reply and place relevant material, while assuring that respondent - University is willing to assist the Court and the respondent - Council, and ready to supply all information.
18. Mr. Bhavit Sharma, learned counsel appearing for the Para Medical Council points out that the respondent - Council has given detailed letter to the University and asked various questions mentioned in its letter dated 15.09.2020. But in response thereof, the University has not given satisfactory reply, for which the registration application of the petitioners has been turned down.
19. Mr. Bhavit Sharma, emphasises that the respondent - Council had required the respondent - University to apprise as to whether the colleges or institutions have been given approval by the competent authority, namely State Government or Central Government to carry out paramedical course. But the respondent
- University has failed to place any material, hence, the Para Medical Council had no option but to reject registration application of the petitioners.
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(8 of 14) [CW-4104/2021] 20. The question which were asked by the Council are reproduced herein:
"1- vkidh fo"ofo|ky; dk fuekZ.k fdl o'kZ@fdl dkuwu ds rgr gqvk gS\ ¼ds nLrkostksa dh Nk;kizfr½ 2- vkidh fo"ofo|ky; dks iSjkesfMdy ikB~;Øe lapkyu fd;s tkus gsrq fdl jkT; ljdkj ;k dsUnz ljdkj }kjk vf/kd`r fd;k x;k gS\ ¼ds nLrkostksa dh Nk;kizfr@jkti=@fu;eksa dh izfr½ 3- vkidh fo"ofo|ky; }kjk iSjk esfMdy ikB~;Øe izf"k{k.k izkIr djus gsrq fu/kkZfjr U;wure ;ksX;rk D;k gS\ 4- vkidh fo"ofo|ky; }kjk iSjk esfMdy ikB~;Øe lapkfyr fd;s tkus gsrq fdl&fdl egkfo|ky; @ laLFkku dks ekU;rk rFkk fdl&fdl iSjkesfMdy ikB~;Øe izf"k{k.k iznku djus gsrq vuqefr iznku dh xbZ gS\ izR;sd l=ksa dh dkWystokj o dkslZokj lR;kfir izfr miyC/k djkosaA 5- vkidh fo"ofo|ky; }kjk lapkfyr iSjkesfMdy ikB~;Øeksa dks lapkfyr fd;s tkus dh vuqefr nwjLFk f"k{kk (Distance Education) ds ek/;e ;k fu;fer :i ls ikB~;Øe izf"k{k.k iznku fd;s tkus gsrq vuqefr iznku dh xbZ gS\ ¼ds nLrkostksa dh Nk;kizfr½ 6- ;fn jkT;@dsUnz ljdkj ds }kjk vkidh fo"ofo|ky; dks iSjkesfMdy ikB~;Øe lapkfyr fd;s tkus gsrq vuqefr iznku dh xbZ gS rks dc ls dc rd rFkk izR;sd l=ksa dh ekU;rk lacaf/kr nLrkostksa dh lR;kfir izfr miyC/k djkosaA 7- vkidh fo"ofo|ky; ds }kjk lapkfyr iSjkesfMdy ikB~;Øeksa dh izf"k{k.k vof/k fdrus o'kZ dh gS\ izR;sd dkslZokj izf"k{k.k vof/k dh lwph miyC/k djkosaA 8- vkidh fo"ofo|ky; }kjk iSjkesfMdy ikB~;Øe izf"k{k.k izkIr mRrh.kZ ;ksX;rk/kkjh vH;fFkZ;ksa dk iath;u fdl fu;e@dkuwu ds rgr fd;k tk jgk gS] ds nLrkostksa dh Nk;kizfr miyC/k djkosaA 9- vkidh fo"ofo|ky; }kjk dkSu&dkSuls egkfo|ky;
@fo"ofo|ky; ls iSjkesfMdy ikB~;Øe izf"k{k.k izkIr vH;fFkZ;ksa dk iath;u fd;k tk jgk gS] dh lwph miyC/k djkosaA"
21. Mr. Bhavit Sharma invites Court's attention towards the Regulation No.42 of the Regulations of 2014 and contends that the petitioners' case is governed by Clause (iii) of Regulation No.42 (Downloaded on 18/03/2021 at 08:49:13 PM) (9 of 14) [CW-4104/2021] and since they have obtained the degrees from an institution situated outside the State of Rajasthan, they can get registration only if such University is recognized for the purpose of running that course by the State Government or Central Government.
22. Taking help of Section 31 & 32 of the Act of 2008, he submits that the Para Medical Council can call for information and can grant recognition only if it is satisfied that any qualification in para medical subject granted by any authority outside territory of Rajasthan assures and guarantees requisite skills and knowledge.
23. Mr. Bhavit Sharma zealously relies upon the judgment dated 30.05.2011 rendered by Jaipur Bench of this Court in Kuldeep Shukla Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.10826/2008) and the judgment dated 30.03.2012 passed by Jaipur Bench of this Court in Lohade Ram Meena Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.226/2009) and points out that Para Medical Council, which is a regulatory and statutory authority, has power to conduct enquiry for the purpose of granting recognition and it can reject the application for registration.
24. Having heard learned counsel for the parties at some length and after wading through the material available on record, this Court has no doubt that the respondent - University has been established by the State of Meghalaya and by virtue of the notification dated 08.02.2011, issued by the State of Meghalaya, the University is permitted to carry out the courses mentioned in preamble and Section 6 of the Act of 2010.
25. So far, it is not in dispute that the course in question is being conducted by the respondent - University since its inception. (Downloaded on 18/03/2021 at 08:49:13 PM)
(10 of 14) [CW-4104/2021] Hence, it should be deemed that the para medical course or the ECG Diploma conducted by the University is backed by due sanction of the State of Meghalaya (notification dated 08.02.2011).
26. It is noteworthy that for the Institution located or situated outside Rajasthan, provisions of Section 32 of the Act of 2008 are applicable, which deal with the recognition of the Course. Scope of enquiry under Section 32 is limited. The Council can satisfy itself about the subject, syllabus, training etc., so as to ascertain that the qualification in para medical subject granted by the Institution affords a guarantee of requisite skill and knowledge.
27. One has to bear in mind the subtle distinction between "Recognition of an Institution" and "Recognition of a qualification".
The scope of enquiry in each case is altogether different. Section 31 is a part of Chapter IV of the Act of 2008, whereas Section 32 is part of Chapter V of the Act. Chapter IV governs the recognition of the Institutions, while Chapter V deals with recognition of qualification.
28. For the purpose of recognition of an Institution, Chapter IV gives a wider power to the Para Medical Council. It may be justified in eliciting the information, as it is the body granting recognition to the Institution.
29. On the other hand powers under Section 32 are limited. The Council is required to ensure as to whether the Course conducted by the University or institution from which a candidate has obtained diploma or degree conforms to the requisite yardsticks set for expertise or knowledge. Hence, the Para Medical Council, can raise queries from the concerned institution that are relevant (Downloaded on 18/03/2021 at 08:49:13 PM) (11 of 14) [CW-4104/2021] for the purpose of course. It cannot act as a controlling authority of an Institution, which is outside its territorial jurisdiction.
30. So far as Section 32 of the Act of 2008 and Regulation No.42 of the Regulations are concerned, they do not permit the Para Medical Council to conduct a fishing and rowing enquriy about the formation of the University or Institution which is outside the State of Rajasthan.
31. Section 31, which empowers the council to call for information, is applicable only in relation to a recognised Institution. An Institution is required to be recognised, with Rajasthan Para Medical Council, if it imparts education or course within the territory of Rajasthan.
32. This being the position, in prima-facie opinion of this Court, the Para Medical Council was not justified in asking questions other than the queries relating to the nature of course, its syllabus and other like questions, given that object of Section 32 of the Act of 2008 is to ensure that the courses, which the petitioners and other candidates have undergone, ensure the requisite skill, which according to the respondent - Council, is required of a candidate who wants to practice in the State of Rajasthan or wants to serve in any other institute in the State of Rajasthan.
33. It is apparent that Para Medical Council has refused petitioners' request of registration because neither the petitioners have, nor has the University produced any documentary evidence evincing recognition by the State or Central Government to carry on the para medical course. Such approach, on the basis of material and arguments made, so far, is unsustainable for the reasons noted above.
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34. In Kuldeep Shukla Vs. State of Rajasthan (supra), cited by Mr. Bhavit Sharma, it has been held thus:-
"16)Recognition of a qualification by the State Government cannot be a matter of inference. It can be accepted only, if the government has by a positive order done so or otherwise it is so proved according to relevant statute. As far as State of Rajasthan is concerned, Act of 2008 is the relevant statute on the subject, which in its Section 32 has provided mechanism for doing so. If the State Government has to have recognition of such diplomas / certificates, it has to constitute the Paramedical Council in terms of Section 32 of the Rajasthan Para-Medical Council Act, 2008, which may decide whether or not any qualification in paramedical subjects granted by an authority outside the territories of the State of Rajasthan affords a sufficient guarantee of the requisite skill and knowledge. Paramedical Council may declare such qualification to be a recognized qualification for the purpose of the Act of 2008. It is of utmost urgency and importance that the State Government immediately constitutes Paramedical Council in the State of Rajasthan in terms of Section 4 of the Act of 2008 because health is one such sector which vitally affects the public at large."
35. It is to be noted that it was a case, where this Court has directed to constitute Para Medical Council, while observing that recognition of qualification cannot be a matter of inference.
36. Similar were the facts in the case of Lohade Ram Meena (supra), cited by him. It may be noticed that at the time of passing the said judgment, Para Medical Council was not at all constituted whereas facts of the present case are different.
37. This Court is not much convinced with the argument of the petitioners that there is no requirement of recognition of a Course conducted by the University. UGC letter referred by the petitioners cannot be made a basis for recognition. Conducting or permitting to run a Course cannot be equated with recognition of a Course. Particular State or Council can enquire into the standard of a (Downloaded on 18/03/2021 at 08:49:13 PM) (13 of 14) [CW-4104/2021] course and decide to grant or not to grant recognition to it for its state either for the purpose of employment or for trade/ vocation/practice.
38. This Court does not propose to draw an inference that the qualification obtained by the petitioners is recognised. Now the Para Medical Council has been constituted, thus it would be in the fitness of things to direct it to decide upon recognition of the ECG Diploma given by the respondent - University.
39. This being the position, the respondent - Council is directed to decide the issue of recognition of the course run by the respondent - University in terms of Section 32 of the Act of 2008 and Regulation No.42(iii) of the Regulations within a period of one month from today.
40. For the purpose of recognition or equivalence the respondent University shall submit details about curriculum, course material and all other relevant material, within a period of seven days from today. Respondent - Council will be free to elicit further information in a bid to ensure that the course in question affords sufficient guarantee of requisite skill and knowledge. Respondent - Council may charge applicable fee (if any) for the purpose of recognition.
41. Needful be done by 30.04.2021.
42. Meanwhile, the Para Medical Council shall issue provisional registration certificate(s) to the petitioners, if they are otherwise eligible. The certificate of provisional registration be issued to the eligible petitioners latest by 31.03.2021. (Downloaded on 18/03/2021 at 08:49:13 PM)
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43. The respondent - University will cooperate in the inquiry to be conducted by respondent - Council and shall submit a formal application with the relevant documents within a week.
44. Respondent - Selection Board shall not reject petitioners' candidature till the next date.
45. List these cases on 15.05.2021.
46. Reply be filed by the respondents - Council and University in the meantime.
(DINESH MEHTA),J 167-169, 166-Ramesh/-
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