Central Administrative Tribunal - Delhi
Coram vs Govt. Of Nct Of Delhi Through on 7 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3896 OF 2012 New Delhi, this the 7th day of September, 2015 CORAM: HONBLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Sanjay Kumar, s/o late Sh.Shyam Sunder Vats, R/o VPO Karala, Pana Satghara, Delhi 110081 Applicant (By Advocate: Shri M.K.Bhardwaj) Vs. Govt. of NCT of Delhi through 1. The Chief Secretary, Govt. of NCT of Delhi, Delhi Secretariat, I.P.Estate, Delhi 2. Delhi Subordinate Services Selection Board through its Secretary, 3rd Floor, UTCS Building, Institutional Area, Vishwas Nagar, Shahdara, Delhi 110032 3. The Commissioner, North Municipal Corporation of Delhi, Civic Centre, New Delhi 4. The Addl. Commissioner (Health), North Municipal Corporation of Delhi, Dr.SPM, Civic Centre, Minto Road, New Delhi .. Respondents (By Advocates: S/Shri Amit Anand & R.N.Singh) ... ORDER RAJ VIR SHARMA, MEMBER(J):
The brief facts of the applicants case are that Delhi Subordinate Services Selection Board (hereinafter referred to as DSSSB), vide Advertisement No.01/2003, Post Code 0023, invited applications from eligible persons desirous of participating in the selection process for recruitment against 84 vacancies (UR-45, SC-14, OBC-25) in the post of Ayurvedic Compounder in the Municipal Corporation of Delhi (Health Department). In response thereto, the applicant made application and appeared in the written examination held on 4.4.2004. As declaration of the result of the written examination was unduly delayed, some of the candidates filed OA No.3252 of 2009. The Tribunal, vide order dated 14.1.2010 (Annexure A/2), disposed of the said O.A. and directed DSSSB to declare the result of the written examination for the said post. DSSSB declared the result of the written examination, vide its order No.204, dated 9.2.2011(Annexure A/9), wherein it was stated that the merit list on As Is Where Is Basis was declared and posted on the website with clear stipulation that announcement of the merit was subject to determination of eligibility of candidates, and that DSSSB shall arrange to scrutinize eligibility of the candidates who, as per the merit, shall be in the zone of consideration for selection to the post against modified vacancies. In the list of candidates contained in the said order No.204, dated 9.2.2011 (Annexure A/9), the applicants name figured at sl.no.11. Thereafter, notice dated 1.8.2011 (Annexure A/3) was published by DSSSB requiring the candidates mentioned in the list of candidates contained therein to personally visit the office of DSSSB during the period 1.8.2011 to 30.8.2011 on any working day between 11.00 A.M. and 5.00 P.M., along with all their original testimonials/certificates, two passport size photographs, photo identity proof, caste certificate and PH certificate, if applicable, accompanied with their attested copies of certificates for recasting the application forms. In the list of candidates contained in the notice dated 1.8.2011, the applicants name figured at sl.no.8. In pursuance of the said notice dated 1.8.2011, the applicant submitted all the requisite documents (Annexure A/4). DSSSB, vide order No.293, dated 28.8.2012(Annexure A/1), published a result notice stating, inter alia, that no candidate was found eligible/suitable for selection to the post of Ayurvedic Compounder. In response to an application made under the RTI Act, the DSSSB, vide letter dated 14.9.2012 (Annexure A/6), informed the applicant that the qualification of Vaidya Visharad was not acquired by him from recognized institution, and that Hindi Sahitya Sammelan, Allahabd, was not recognized for awarding the aforesaid qualification. Being aggrieved thereby, the applicant made a representation, dated 17.9.2012 (Annexure A/7), to DSSSB, wherein he claimed to have possessed the requisite qualification of Vaidya Visharad and two years experience. The qualification of Vaidya Visharad is conferred only by the Hindi Sahitya Sammelan, Allahabad, and there is no other institution to award such qualification. When the respondents claimed that the said qualification of Vaidya Visharad conferred by the Hindi Sahitya Sammelan, Allahabad, was de-recognized, the respondents were required to amend the Recruitment Rules and remove the said qualification from the Recruitment Rules. He cannot be denied appointment to the post of Ayurvedic Compounder because of non-amendment of the Recruitment Rules. It is also stated by the applicant that considering the fact of non-amendment of the Recruitment Rules, and other facts and circumstances of the case, the Honble High Court of Delhi issued direction, vide judgment, dated 29.11.2006, passed in CWP Nos.8958-60/05 (Mohit Gupta & others v. MCD), to the respondents to grant promotion to similarly placed persons to the post of Ayurvedic Compounder by considering their qualification of Vaidya Visharad acquired from the Hindi Sahitya Sammelan, Allahabad, as valid qualification. In compliance with the Honble High Courts direction in Mohit Guptas case (supra), the Municipal Corporation of Delhi, vide office order dated 19.1.2007 (Annexure A/8), granted promotion to several persons to the post of Ayurvedic Compounder. The respondents having failed to consider his case in proper perspective and appoint him to the post of Ayurvedic Compounder on the basis of the result notice pursuant to the Advertisement No.01/2003, Post Code 0023, the applicant filed the present O.A., seeking the following reliefs:
i) To direct the respondents to declare the applicant as selected candidate for appointment to the post of Ayurvedic Comounder (Post Code No.23).
ii) To quash and set aside the impugned order dated 28.08.2012 and direct the respondents to appoint the applicant to the post of Ayurvedic Compounder with all consequential benefits including arrears of pay.
iii) To allow the O.A. with cost.
iv) Any other orders may also be passed as this Honble Tribunal may deem fit and proper in the existing facts and circumstances of the case.
2. Respondent nos. 1 & 2, in their counter reply, have stated that the DSSSB had advertised 84 vacancies (UR-45, SC-14, OBC-25) in the post of Ayurvedic Compounder in the Municipal Corporation of Delhi (Health Department) under Post Code-0023, Advertisement No.01/2003. The cut-off date for submission of applications was 30.6.2003. The written examination was conducted on 4.4.2004. The result of the written examination was withheld due to Court case filed by Ayurvedic, Unani, Homoeopathic Nigam Karmachari Union of MCD. Later, as per letter No.AO(H)/VS/2010/150 dated 20.1.2010, issued by the Administrative Officer (Health), the number of vacancies in the post of Ayurvedic Compounder was modified and/or reduced to 58 (UR-27, SC-08, ST-0s5, OBC-16, PH-02). In compliance with the Tribunals order, dated 8.2.2011, passed in Contempt Petition No.833/201, the DSSSB published the merit list, vide order No.204, dated 9.2.2011 in respect of the examination held on 4.4.2004 for the post of Ayhurvedic Compounder, under Advertisement No.01/2003, Post Code 0023, and uploaded the same on the website of the DSSSB, with clear stipulation that the posting of the merit list was subject to determination of eligibility of candidates, and the DSSSB shall arrange to scrutinize eligibility of the candidates who, as per the merit, shall be in the zone of consideration for selection to the post against the modified vacancies. The essential qualifications for the post of Ayurvedic Compounder under Post Code 0023 were as under:
Essential Qualifications:
1. Matriculation or equivalent
2. Training in Upavaidya (Kalpad) course, duration of which should not be less than two years from a Government organization or recognized private institutions like All India Ayurvedic Congress or its equivalent, OR Training in one of the following courses:
(i) Vaidya Visharad
(ii) Ayurved Vishak (Awarded by All India Ayurvedic Congress)
(iii) Ayurved Rattan (Awarded by Hindi Sahitya Sammelan).
3. At least two years experience as Ayurvedic Compounder in a recognized Ayurvedic Dispensary, Hospital or Pharmacy. As per letter No.4521/AO (H)/DK/2005, dated 19.5.2005, issued by the Additional Deputy Commissioner (Health), MCD, the qualifications of Vaidya Visharad and Ayurved Rattan (awarded by Hindi Sahitya Sammelan) are no more recognized and were derecognized since 1967. The applicant was considered as Not eligible as he had done Vaidya Visharad in May 1998 from the Hindi Sahitya Sammelan, Allahabad, which stood derecognized since 1967. He did not possess the essential experience of at least two years as Ayurvedic Compounder in a recognized Ayurvedic Dispensary, Hospital or Pharmacy. The applicant had submitted experience certificates of working as Ayurvedic Compounder in (i) Dhanwantri Ayurvedic Research Society for Health (Regd.), Office C-107, Yadav Nagar, Delhi 110042, and (ii) Shanti Hospital & Diagnostic Centre, Delhi 110081. As both these institutions were not recognized, as required under the Recruitment Rules for the post, the applicant did not also fulfill the condition of essential experience of two years as Ayurvedic Compounder from a recognized Ayurvedic Dispensary, Hospital or Pharmacy. Hence, he was considered Not eligible and was not selected for the post. The said respondents have submitted that in the result notice, it was clearly mentioned that mere fact that the candidate was called for submission of documents, did not confer any right upon him for selection, and that the DSSSB reserved the right to reject/cancel his candidature, if he was not found eligible as per the Recruitment Rules, and terms and conditions mentioned in the Advertisement No.01/2003. In view of the above, the said respondents pray for dismissal of the O.A.
3. Opposing the O.A., respondent nos. 3 and 4 have also filed a counter reply wherein they have made more or less same averments as in the counter reply filed by respondent nos. 1 and 2. Besides, they have placed reliance on the decisions of the Honble Supreme Court in Rajasthan Pradesh V.S.Sardarshahar and another, etc. v. Union of India and others,etc., Civil Appeal No.5324 of 2007 and other connected Civil Appeals, decided on 1.6.2010, and in Sankarsan Das v. Union of India, (1991) 3 SCC 47.
4. Refuting the stand taken by the respondents in the counter replies, the applicant has filed rejoinder replies. In support of his case, along with his rejoinder replies, the applicant has filed copies of (i) experience certificates, which are referred to by the respondents, (ii) order dated 5.5.2014 passed by the coordinate Bench of the Tribunal in O.A.No.739 of 2012 (Smt. Neetu Verma v. Govt. of NCT and others), and (iii) letter dated 20.6.2014 received from PIO under the RTI Act informing him that several officials, who acquired the qualification of Vaidya Visharad from the Hindi Sahitya Samelan, Allahabad/Prayag, have been appointed, by way of promotion, to the post of Ayurvedic Compounder by respondent-North Delhi Municipal Corporation.
5. We have perused the records and have heard Shri M.K.Bhardwaj, learned counsel appearing for the applicant, and S/Shri Amit Anand and R.N.Singh, learned counsel appearing for the respondents.
6. In Rajasthan Pradesh V.S.Sardarshahars case (supra), the Honble Supreme Court observed and held thus:
31. A Division Bench of the Bombay High Court while considering the Writ Petition No. 7648 of 2000 (Ayurvedic Enlisted Doctor's Association, Bombay Vs. The State of Maharashtra & Anr.) on the cut-off date, i.e. upto 1967 vide judgment and order dated 22.12.2006, recorded the following finding:
"It is pointed out on behalf of the State that under the prevailing relevant rules upto 1967, the degrees of Vaidya Visharad and Ayurved Ratna were recognised by Uttar Pradesh Government and its Council. After that it lost the recognition. Therefore, these degrees conferred by Hindi Sahitya Sammelan, Prayag till 1967 only were recognised as medical qualifications under the Central Act but after that the recognition to these degrees was refused."
(Emphasis added)
32. Thus, from the above, it is evident that under the then prevailing rules, certificates issued by the Hindi Sahitya Sammelan Prayag remained recognised only upto 1967. The Authorities under the Statute, on the report submitted by the State of U.P. had taken a decision not to recognise the said courses any further. The Society for the reasons best known to it never made an attempt to get recognition after fulfilling the legal requirements and getting the Entry No.105 in Second Schedule of the Act, 1970, modified.
33. In such a fact-situation, even by stretch of imagination, the said cut-off date cannot be termed as arbitrary. In fact it is not the cut-off date fixed by the Statutory Authorities, rather it indicates that such "courses" or certificates had not been recognised after 1967.
34. After remand, in Umakant Tiwari (supra) the Allahabad High Court has recorded the following findings of fact:-
"Shri Jeevan Prakash Sharma, learned counsel for Hindi Sahitya Sammelan has fairly stated that Hindi Sahitya Sammelan does not grant affiliation to any institution for imparting education in medical courses. Hindi Sahitya Sammelan in fact only conducts written examination for the purposes of awarding the said degrees. Any person, who is successful in the written examination so held by the Hindi Sahitya Sammelan is awarded the degree, irrespective of the fact as to whether he was enrolled as a regular student in any institution or not. No application was ever made by the Hindi Sahitya Sammelan, Allahabad/Prayag to get its medical qualifications i.e. Vaidya Visharad and Ayurved Ratna recognized and included in the Second Schedule. They have not represented in exercise of powers under Section 14(2) of Act, 1970 before the Central Government for inclusion of the said qualifications in the Second Schedule at any point of time in respect of degrees/certificates granted subsequent to 1967. This has led a very peculiar situation. By not getting their medical qualifications approved/recognised under Second Schedule of Act, 1970, the Hindi Sahitya Sammelan has successfully evaded any inspection/any direction of the Central Council of India qua medical qualification granted by it for years together and therefore on one hand not only it did not represent the Government for inclusion of medical qualification even after publication of schedule as early as in the year 1971 till date i.e. nearly 38 years, it has also successfully evaded inspection by the Government/Central Council, for issuance of directions for maintenance of standard of education, curriculum etc. At the same time it alleges that its qualification be treated to be valid by the Central Council of Indian Medicine for the purpose of permitting practice of medicine. Despite being aware of the total prohibition qua grant of medical qualification as per the Act of Parliament namely, Act No.48 of 1970 and despite there being a provision to get its medical qualifications recognized and included in the Second Schedule, no effort has been made by the Hindi Sahitya Sammelan for the purpose....Hindi Sahitya Sammelan has fairly stated that it does not affiliate or recognise any institution and it exercises absolutely no control on the teaching in the subject of medicine qua degrees of Vaidya Visharad and Ayurved Ratana, nor it is necessary for a candidate to appear in the examination conducted by the Hindi Sahitya Sammelan to have been admitted as a regular student in any institution imparting education in the field of medicine. The Hindi Sahitya Sammelan holds written examination only for awarding the degree. In the opinion of the Court such grant of degree without any practical teaching, cannot be approved of and it is for this reason that the Central Government has come out with Central Act laying down the norms in detail for education being imparted in the field of medicine."
35. In Pramod Kumar Vs. U.P. Secondary Education Services Commission & Ors. (2008) 7 SCC 153, this Court held that recognised degree can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or anyState Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting.
36. In Delhi Pradesh Registered Medical Practitioners Vs. Delhi Admn. Director of Health Services & Ors., AIR 1998 SC 67, this Court held that unless a person possess the qualifications prescribed in Schedule II, III and IV of the Act, 1970, does not have a right to practice and the Central Legislation will proceed over State Act if there is any repugnancy between the two.
37. In Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors., AIR 1999 SC 468, this Court examined the issue of delegation of power dealing with the provisions of the Drugs and Cosmetics Act, 1940 wherein various observations have been made regarding registered medical practitioners and certain rules therein had been declared ultra vires by the High Court. However, the issue involved herein had not been raised in that case, though an observation has been made that persons enrolled on the State register under accepted law who enjoyed the privileges including the privilege to practice in any system of medicine may under certain circumstances also practice other system of medicine. In the said case, the issue was confined to the rights of those persons who were otherwise entitled to prescribe all medicines under the Drugs and Cosmetics Act, 1940 and the issue involved herein i.e. as to whether a person having no qualification as prescribed under the provisions of Act 1970 can be held to be qualified and entitled to practice Indian medicines, was not involved in Dr. Mukhtiar Chand (supra).
38. This Court in SLP (C) No. 22124 of 2002, Vaid Brij Bhushan Sharma Vs. Board of Ayur & Unani Systems, Med. & Anr., decided on 2.12.2002 also re-iterated the view that issue involved in Dr. Mukhtiar Chand (supra) was quite different and persons possessing such certificates were not entitled to practice. The Court held as under:-
"We are of the considered view that the judgment of the three Judge Bench reported in Dr. Mukhtiar Chand and Others case (supra) is totally different on principles as also the basis of claim therein, from the one relevant and necessary so far as the case on hand is concerned. The right of the petitioner therein to continue to practice as registered medical practitioner was not claimed on the basis of a degree of Vaid Visharad and Ayurved Rattan awarded by Hindi Sahitya Sammelan, Prayag as in this case, before us. The efficacy of this very degree to entitle the holders thereof to continue to practice as medical practitioner by virtue of the saving clause and protection under Section 17(3) of the Indian Medicine Central Council Act, 1970, had come up for decision in the earlier case and with particular reference to the provisions of Section 14 of the Indian Medical Central Council Act, 1970, read with the provisions contained in the schedule thereto it has been held that only such of those degrees issued between 1931 and 1967 were alone recognized for the purposes and not the one obtained by the petitioner in the year 1974, long after the coming into force of Section 14 on 15.8.1971 in the whole of the country. In the light of the above principles which directly applied to the case of the petitioner we find no merit in this petition and the same is dismissed."
39. In Udai Singh Dagar & Ors. Vs. Union of India & Ors. (2007) 10 SCC 306 while dealing with a similar issue, this Court has held as under:-
"We, therefore, are of the opinion that even in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The tests laid down, in our opinion, stand satisfied. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-`- vis Clause (5) thereof. (vide State of Madras v. V.G. Row AIR 1952 SC 196)."
40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor's Assn. Mumbai Vs. State of Maharashtra & Anr. decided on 27.2.2009, this Court considered the issue involved herein at length and came to the conclusion as under:-
"So far as the claim that once the name is included in the register of a particular State is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act. The right to practice is restricted in the sense that only if the name finds place in the Central Register then the question of practicing in any part of the country arises. The conditions under Section 23 of the Central Act are cumulative. Since the appellants undisputedly do not possess recognized medical qualifications as defined in Section 2(1)(h) their names cannot be included in the Central Register. As a consequence, they cannot practice in any part of India in terms of Section 29 because of non-inclusion of their names in the Central Register. Section 17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating to Central Register. Section 17(1) relates to the register for the State. In any event, it is for the State to see that there is need for having qualification in terms of Second and fourth Schedule. The claim of the appellants is that they have a right to practice in any part of the country. In terms of Article 19(6) of the Constitution, reasonable restriction can always be put on the exercise of right under Article 19(g)."
41. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II , III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.
42. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian" guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates. Question of entertaining the issue of validity of Entry No.105 to the Second Schedule to the Act 1970 i.e. "to 1967" does not arise as it is not a cut-off date fixed by the Statutory Authority rather a date, after which the qualification in question was not recognised. Hindi Sahitya Sammelan itself admitted that the Society was not imparting any education. It had no affiliated colleges. It merely conducts the test. The Society never submitted any application after 1967 before the Statutory Authority to accord recognition and modify the Entry No.105 to Part I of Schedule II to the Act 1970. Submissions to the effect that 1953 Act conferred privileges upon the Vaidyas in exceptional circumstances to practice and any restriction to practice unless the names are entered in the Central Register is arbitrary and violative of statutory provisions of the State Act, are preposterous for the reason that such privileges, if are repugnant to the provisions of Act 1970, cannot be availed by operation of the provisions contained in Article 254 of the Constitution. Thus, such a restriction cannot be held violative of equality clause enshrined in Article 14 of the Constitution.
43. At the cost of repetition, it may be pertinent to mention here that in view of the above, we have reached to the following inescapable conclusions :-
(I) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.
(II) It is a Society registered under the Societies Registration Act.
(III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.
(IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any University/Board.
(V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No. 105 in II Schedule to the Act, 1970.
(VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in Ayurveda in any recognized college.
(VII) After commencement of Act, 1970, a person not possessing the qualification prescribed in Schedule II, III & IV to the Act, 1970 is not entitled to practice.
(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.
(IX) The right to practice under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution.
(X) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act. 6.1 The certificate and statement of marks (Annexure A/4), which are stated by the applicant to have been granted by the Hindi Sahitya Sammelan, Allahabad, to him, show the applicant to have acquired the purported qualification of Vaidya Visharad from the said institution in the year 1998. In view of the above decision of the Honble Supreme Court, we do not find any substance in the contention of applicant with regard to the validity of his purported qualification of Vaidya Visharad claimed to have been acquired by him from the Hindi Sahitya Sammelan, Allahabad. Thus, the DSSSB has rightly found the applicant as not eligible for selection to the post of Ayurvedic Compounder.
7. It transpires from office order, dated 19.1.2007 (Annexure A/8) issued by the Municipal Corporation of Delhi (Health Department) that in compliance with the order of the learned Civil Judge, dated 10.7.2003, passed in Suit No.772/95 (Ayurvedic Unani Homoeopathic Nigam Karmachari Union, Delhi v.Union of India and others), and the order of the Honble High Court of Delhi, dated 29.11.2006, passed in CWP No. 8958-60/05 (Mohit Gupta and others v. MCD), and on scrutiny of the applications received in response to the circular No. 3393/AO (H)/2004, dated 20.5.2004 and upon recommendations of the DPC/Screening Committee, 64(sixty-four) employees were promoted to the post of Ayurvedic Compounder subject to outcome of court case(s), if any. It is not clear from the said office order, dated 19.1.2007, as to whether the aforesaid 64 employees had acquired qualification of Vaidya Visharad from the Hindi Sahitya Sammelan, Allahabad, either before or after 1967. The applicant has also not produced before this Tribunal the order of the learned Civil Judge and the judgment of the Honble High Court of Delhi, referred to in the said office order, dated 19.1.2007. Even if it is assumed that the aforesaid employees acquired the qualification of Vaidya Visharad from the Hindi Sahitya Sammelan, Allahabad, after 1967, and were promoted to the post of Ayurvedic Compounder by the Municipal Corporation of Delhi for reasons known to it, or on the basis of the order of the learned Civil Judge and the judgment of the Honble High Court of Delhi, we are not inclined to accept the contention of the applicant that the DSSSB ought not to have found him ineligible for selection and appointment to the post of Ayurvedic Compounder in the Municipal Corporation of Delhi, inasmuch as he is not entitled under law to claim to be eligible for selection and appointment to the post of Ayurvedic Compounder on the basis of an invalid certificate of Vaidya Visharad.
8. In Chandigarh Administration & anr vs. Jagjit Singh & anr, AIR 1995 SC 705, the Honble Supreme Court held thus:
8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners case is similar to the other persons case. But then why examine another persons case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. It is not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another persons case, which other person is not before the court nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises).
9. In State of Haryana and others v. Ram Kumar Mann, (1997) 3 SCC 321, it has been held by the Honble Supreme Court that the doctrine of discrimination is founded on existence of an enforceable right. Right must be founded upon enforceable right to entitle a person to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to a person to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.
10. In Union of India and others vs. M.K. Sarkar, (2010) 2 SCC 59, the Honble Supreme Court held thus:
25. There is another angle to the issue. From aforesaid decisions of the Honble Supreme Court it is clear that if someone has been wrongly extended a benefit,that cannot be cited as a precedent for claiming similar benefit by others. The Honble Supreme Court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of courts for perpetuating the same irregularity or illegality in their favour also on the reasoning that they have been denied the benefits which have been illegally extended to others. (See Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] , Gursharan Singh v. NDMC [(1996) 2 SCC 459] , Faridabad CT Scan Centre v. D.G. Health Services [(1997) 7 SCC 752] , State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321 : 1997 SCC (L&S) 801], State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 : 2000 SCC (L&S) 845] and Union of India v. International Trading Co. [(2003) 5 SCC 437].
26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may not be entitled to the relief has been given relief illegally, is not a ground to grant relief to a person who is not entitled to the relief. (Emphasis supplied)
11. In Fuljit Kaur, etc. vs. State of Punjab, etc., (2010) 11 SCC 455, the Honble Supreme Court observed that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too far, otherwise it would make function of the administration impossible. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.
12. As regards the decision of the Tribunal in Smt. Neetu Verma v. Govt.of NCT of Delhi and others, OA No. 739 of 2012, relied on by Mr.M.K.Bhardwaj, learned counsel appearing for the applicant, we find that in the said case the coordinate Bench, after referring to the order dated 7.11.2011 passed by it in OA No.281 of 2001 and on considering the undisputed fact that there is no recognized institution which conducts Certificate Course for Telephone Operator, directed the respondents to consider the claim of the applicant in that case for appointment as Telephone Operator pursuant to the selection against the available vacancies. In the instant case, save and except making a bald statement that there is no institution in the country other than Hindi Sahitya Sammelan, Allahabad/Prayag, which conducts Vaidya Visharad course, the applicant has not produced before this Tribunal any material to substantiate his plea. Therefore, the decision of the Tribunal in Smt. Neetu Vermas case (supra) is of no help to the case of the applicant.
13. Though the applicant has refuted the statement of the respondents that Dhanwantri Ayurvedic Research Society for Health, Office C-107,Yadav Nagar, Delhi 110042, and Shanti Hospital & Diagnostic Centre, Main Road, Karla, Delhi 110081, are not recognized as Ayurvedic Dispensaries, or Hospitals, or Pharmacies, and therefore, the applicant is not found to have acquired two years experience in a recognized Ayurvedic Dispensary, Hospital or Pharmacy, yet he has not produced before this Tribunal any material to show that the said Dhanwantri Ayurvedic Research Society for Health, and Shanti Hospital & Diagnostic Centre are recognized as Ayurvedic Dispensaries, or Hospitals, or Pharmacies. Therefore, we are not inclined to accept the said unsubstantiated plea of the applicant.
14. In the light of our above discussions, we hold that there is no infirmity in the impugned order dated 28.8.2012 (Annexure A/1) issued by DSSSB finding the applicant as ineligible/unsuitable for selection to the post of Ayurvedic Compounder, and that the applicant is not entitled to any of the reliefs claimed by him in the O.A. Thus, the O.A. being devoid of merit is liable to be dismissed.
15. Resultantly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN