Madhya Pradesh High Court
Pushpanjali Singh vs The State Of Madhya Pradesh on 9 April, 2012
W.P. No. 7241 Of 2009
9.4.2012
Shri M.P. Shukla, learned counsel for the petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
respondent State.
With consent the matter is heard finally.
The short question which crops up for consideration is as
to whether petitioner having appointed as Lab Technician on
contract basis for a period of one year w.e.f. 28.2.2010 and she
having fulfilled the conditions stipulated in the agreement of
producing the registration from Madhya Pradesh Paramedical
Council, Bhopal within the stipulated period, the respondents
would be justified in cancelling the order of appointment.
Facts briefly are that in pursuance to advertisement dated
16.1.2009 issued by Chief Medical and Health Officer District Satna inviting applications from eligible and qualified candidates for selection on different posts, i.e., Child Specialist, Staff Nurse and Lab Technician, the petitioner being qualified applied for the post of Lab Technician in pursuance whereof and on the basis of selection procedure adhered to by respondents, the petitioner was found suitable and was offered appointment on the post of Lab Technician on contract basis for a period of one year by order dated 26.2.2009.
That, an agreement was entered into between petitioner and the Chief Medical and Health Officer on 28.2.2009 to the effect that the petitioner is appointed for a period of one year as contract Lab Technician for remuneration of Rs.7000/ per month. Since the petitioner though qualified as Lab Technician having passed the requisite examination but was not having the Registration Certificate from Madhya Pradesh Paramedical Council Bhopal was required to furnish it within two months. Clause 16 of the agreement stipulates " (16) dk;Z esa mifLFkfr ds i'pkr~ 02 ekg ds vUnj jftLVªs'ku izLrqr djuk vfuok;Z gksxk A le; &lhek esa jftLVªs'ku izLrqr u djus dh n'kk esa vkidh lafonk lsok Loeso lekIr ekuh tkosxh A"
Petitioner in pursuance to agreement as entered into, on 28.2.2009 furnished certificate of enrollment on 16th March 2009, i.e., within one month from the date of agreement dated 28.2.2009. The petitioner while she was discharging her duties as contract Lab Technician, Satna in district Hospital, Satna was proceeded against on the basis of a complaint received that though she was not possessing requisite qualification of having a registration from Madhya Pradesh Paramedical Council, Bhopal yet she has been given appointment. Consequent there upon an order dated 14.7.2009 was passed; whereby, on the basis of prima facie finding the appointment of the petitioner was cancelled.
Challenging the order of cancellation, it is urged by learned counsel for the petitioner that qualification as is prescribed for appointment to the post of Lab Technician vide Madhya Pradesh Public Health and Family Welfare Department NonMinisterial (related to the Directorate of Health Services) ClassIII Service Recruitment Rules, 1989 framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, having been possessed by the petitioner and there being no stipulation in the Rule for registration with M.P. Paramedical Council, Bhopal, the respondents were not justified in rejecting the candidature of the petitioner for the post of Contract Lab Technician.
It is contended that may be the said eligibility was stipulated in advertisement dated 16.1.2009 which provided from "fMIyksek dk e/;izns'k jftLVªs'ku gksuk vfuok;Z gS A", the same being contrary to the Rules framed will not deprive the petitioner for being appointed as Contract Lab Technician, as the petitioner otherwise was duly qualified . It is urged that persons similarly placed as the petitioner who were also not having registration in their favour at the time when engaged on contract were allowed to continue subject to their obtaining the registration within the time provided in their agreement. To substantiate the submission, petitioner has brought on record the order dated 13.5.2009; whereby, Staff Nurses who were appointed on contract basis with the stipulation that they should obtain registration within a period of two months from the date of contract have been permitted to discharge as contract nurse but the petitioner has been discriminated in respect of her appointment as contract Lab Technician.
It is urged that similar situated persons having been permitted to continue in service on contract basis, unjust it is, on the part of respondents to have terminated the contract on the ground that the petitioner did not have to her credit registration from M.P. Paramedical Council, Bhopal, though the petitioner was otherwise qualified in accordance with Rule for being appointed as Lab Technician.
Respondents on their turn have embedded to the stand that the petitioner who was required to have registration under Madhya Pradesh Paramedical Council, Bhopal as was stipulated in the advertisement dated 16.1.2009 was rightly discontinued even though she acquired the certificate after her appointment. It is contended that the petitioner incurred an ineligibility for appointment to the post of Contract Lab Technician as she was not registered with M.P. Paramedical Council, Bhopal; as such no right accrued in her favour for being appointed as contract lab technician.
In respect of allegations made by the petitioner that other similarly situated persons appointed as contract staff nurse vide same advertisement have been allowed to continue, the return is silent on the said allegation. It is, therefore, to be taken that while the petitioner's services were determined other similarly situated persons as the petitioner were allowed to continue. Be that as it may.
It is borne out from record that after termination of service of the petitioner as contract lab technician, one Smt. Alka Mishra was given appointment being in the waiting list, who was also impleaded as respondent No. 8 in the petition; however, subsequently since she gave up her appointment, the petitioner was allowed to delete her name from the causetitle.
It is not in dispute that in case a regular appointment is made, the same is governed by Rules framed n exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and are known as Madhya Pradesh Public Health and Family Welfare Department NonMinisterial (related to the Directorate of Health Services) ClassIII Service Recruitment Rules, 1989.
Rule 8 of the Rules lays down conditions of eligibility of direct recruits. Clause (ii) of Rule 8 provides for educational qualification. It stipulates "(ii) Educational qualification. He must possess the Educational Qualifications prescribed for the service as shown in Schedule III:
Provided that
(a) In exceptional cases the Committee may on the recommendation of the Government treat as qualified any candidate who though not possessing any of the qualifications prescribed in this clause; has passed examination conducted by other Institutions by a standard which in the opinion of the Committee, justifies the consideration of the candidate for selection; and
(b) Candidates who are otherwise qualified but have taken degrees from Foreign Universities not specifically recognised by the Government may also be considered for selection at the discretion of the Committee."
The educational qualification is differently prescribed for appointment to the post of Lab Technician in Schedule III of Rules 1989, in respect of Leprosy Control Programme, National Malaria and Filaria Control Programme, Blood Bank and Laboratory Services. Under Leprosy Control Programme the educational qualification prescribed under Schedule III is that a person (1) should have passed Higher Secondary Examination/12th Class Examination in 10+2 Educational system with Physics, Chemistry and Biology; (2) should have passed prescribed 10 months/1 year training course in Pathology Laboratory Technician or possess Diploma in Medical Pathology; and (3) After appointment, It is essential to pass the prescribed 9 months training course in Leprosy (as a Departmental Employee).
In respect of National Malaria and Filaria Control Programme, an incumbent must possess following educational qualifications:
(1) Should have passed Higher Secondary Examination/12th Class Examination in 10 + 2 Educational system (with Biology, Chemistry and Physics).
(2) Should have passed 10 months/1 year training course in Laboratory Technician of Diploma in Medical Pathology.
(3) After Appointment Departmental training in Malaria or Filaria Technician course.
In respect of Blood Bank and Laboratory Services the educational qualification is (1) Should have passed Higher Secondary Examination or 12th Class Examination in 10 + 2 Educational System (with Biology, Chemistry and Physics); and (2) Should have passed 10 months/1 year training of Pathology Technician or Diploma in Medical Pathology.
In the case at hand, the appointment as borne out from advertisement dated 16.1.2009 is in District Hospital, a newly constituted Sick Newborn Care Unit (SNCU); wherefor, the eligibility criteria as is laid down in respect of Blood Bank and Laboratory Service in Schedule III for Lb Technician was applicable whereunder as noted above the incumbent is required to have passed Higher Secondary Examination or 12th Class Examination in 10 + 2 educational system with biology, chemistry and physics) and should have passed 10 months/1 year training of Pathology Technician or Diploma in Medical Pathology.
The documents on record reveal that petitioner was possessing the eligibility criteria. The selection committee while exercising the discretion vested in it under the Rules [Rule 8 (ii)] found her suitable and recommended for appointment whereupon in response to her inclination a contract agreement was entered into on 28.2.2010 for a period of one year appointing the petitioner as Contract Lab Technician for the said period. The petitioner since was not possessing the registration certificate from Madhya Pradesh Paramedical Council, Bhopal was given two months time from the date of agreement to obtain the same which as the records reveal was obtained by the petitioner within a period of one month and was furnished to the competent authority. Question is whether in these given facts, respondents were subsequently justified in holding that the petitioner was not possessing requisite qualification. It is not the case of the respondents that diploma in medical laboratory technician which the petitioner had to her credit was not recognized in the State of Madhya Pradesh. It is only that the petitioner was not registered with Madhya Pradesh Paramedical Council, Bhopal which led the respondents to hold that she was not having essential qualification for appointment to the post of Contract Lab Technician.
In the case at hand the petitioner since was possessing the requisite qualification as is prescribed under the Rules, the selection committee exercising the discretion vested in it as per Rule 8 (ii) of the Rules of 1989 for her appointment as contract lab technician with a stipulation that she will have to obtain registration from Madhya Pradesh Paramedical Council within two months from the date of contract. The committee, in the considered opinion of this Court, was well within its power to have considered the candidature of the petitioner for appointment with a stipulation that in case if she does not obtain the registration certificate within two months from the date of agreement her services would be terminated. The respondent State was thus not justified in negativing the appointment of the petitioner which was in consonance with the Rules.
True it may be that the advertisement dated 16.1.2009 did contain a stipulation that the incumbent should be possessing a registration certificate from Madhya Pradesh Paramedical Council, however, since the committee being empowered under the Rules to exercise the discretion and the same having been exercised in accordance therewith the State was not justified in their action to single out the petitioner while allowing other similarly situated appointees to continue.
In view whereof the impugned order dated 14.7.2001 is hereby set aside.
The question now is as to what relief the petitioner is entitled to in the given facts of this case. As the contract period for which she was appointed is over, the petitioner as is apparent from the record discharged her duties till 14.7.2009 when her services were dispensed with by impugned order the contract which was entered was on 28.2.2009. The petitioner, therefore, ought to have been continued till the expiry of one year. Therefore, in the considered opinion of this Court the cause of justice would be sub served if the respondents are directed to pay the petitioner remuneration of the remaining period of contract.
Let the same be done within a period of 60 days from the date of communication of this order failing which the petitioner would be entitled for interest thereon at the rate of 6 % per annum from the date of this order till final payment.
Petition is allowed to the extent above. There shall be no costs.
(SANJAY YADAV) JUDGE VT/