IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
S.B. CIVIL WRIT PETITION NO. 1571/2012
S.B. CIVIL WRIT PETITION UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA
IN THE MATTER OF
ADVERTISEMENT DATED 6.10.2009 ISSUED INVITING APPLICATIONS FOR THE POST OF LABORATORY TECHNICIAN AND IN THE MATTER OF WRONG INTERPRETATION OF THE JUDGMENT DATED 19.10.2001 AND IN THE MATTER OF SELECT LIST DATED 20.12.2011 AND IN THE MATTER OF RAJASTHAN MEDICAL & HEALTH SUB-ORDINATE SERVICE RULES 1965
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
JAJPUR BENCH, JAIPUR
S.B. Civil Writ Petition No.1571/2012
Rajesh Kumar Nagar & Ors. Vs. State of Raj. &Ors.
HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA
Mr.Ashwani Jaiman )
Mr.Chandragupt Chopra, for the petitioners.
Mr. Sanjay Kumar Sharma, G.C., for the State-respondents.
In the instant writ application, the petitioners, who acquired two years diploma Course in Laboratory Technician from Santokaba Durlabhji Memorial Hospital, Jaipur (hereinafter referred to as 'SDMH', Jaipur for short), successfully participated in the recruitment process conducted in pursuance .to advertisement dated 6th October, 2009, but their names have been excluded from the select list dated 20th December, 2011; holding them ineligible, and therefore, the instant writ proceedings have been instituted praying for the following relief(s).
2. Shorn off unnecessary details, the material facts necessary for appreciation of the controversy are that the petitioners acquired the qualifications of two years diploma course in Laboratory Technician from SDMH, Jaipur. It is pleaded case of the petitioners that the State-respondents have prepared the impugned Select List dated 20th December, 2011, by misreading the amended rule of Rajasthan Medical & Health Sub-ordinate Service Rules 1965 (hereinafter referred ·to as · the 'Rules of 1965', for short), with reference to Schedule-1. The qualifications, which were prescribed under the Rules of 1965 contemplated 9 months Diploma in Laboratory Technology · Course from the institutions recorgnized by the Government and the candidate must have knowledge of Hindi/Devnagri Lipi. The assessment of merit was to be based on 50°/c of academic record and 50°/o of average marks secured in Laboratory Technician Training Course.
3. A dispute raised by two sets of incumbents (i) who were possessing nine months Training Course from the institution recognized by the Government and (ii) who were in possession of two years diploma course from the institutions recognized by the Government became subject matter of batch of writ applications before a coordinate bench of this Court lead case being SBCWP
No. 14873/2010 (7501/2010) (Kailash C. Sharma Vs. State & Ors.) decided on 28 th
March, 2011 holding that no distinction could be drawn between the two categories i.e. one possessing nine months certificate or those who were in possession of two years Diploma in
Laboratory Technician Training Course from the institutions. recognized by the Government. Direction was issued to the respondents to re-draw the select-merit list afresh wherein the very same advertisement dated 6th October, 2009 was involved. While the judgment and order of the learned Single Judge was made subject matter of intra-court appeal in DBSAW No.802/2011, the Division Bench, referring to the amendment to the Rules of 1976 as contained in Schedule-1 appended to the rules, made it explicit that the incumbents with two years Diploma of .Laboratory Technician, obviously with longer duration than nine months, could not be excluded.
The Division Bench also recorded the statement of the Additional Advocate General, made to the effect that no candidate, who obtained the Diploma Certificate from institutions, which are not recognized by the State Government, would be accorded appointment.
4. The petitioners, who participated in the recruitment process in response to advertisement dated 6th October, 2009, have been excluded by the State-respondents while drawing the list of selected candidates possibly for not possessing the required qualification from an institute recognized by the Government, as would be reflected from the counter affidavit of the State-respondents.
5. Learned counsel for the petitioners reiterating the pleaded facts and grounds of the writ application, has argued that once the Coordinate Bench of this Court, while examining
the issue qua two sets of incumbents i.e. one tl1ose who were in possession of qualification of nine months training and others who were in possession of two years Diploma Course of Laboratory Technician, could not be distinguished and a direction was issued to re-draw the selection-merit list. Therefore, the petitioners could not have been deprived of their consideration. Hence, their exclusion from the select list, prepared by the State-respondents dated 20th December, 2011 (Annexure-3), is bad in the eye of law. The learned counsel would further submit that what was made implicit was made explicit by the Division Bench of this Court while considering the judgment and order passed by the learned Single Judge on an intra-court appeal preferred by the candidates/incumbents, who were in possession of the qualifications of nine months Training Course so as to exclude the incumbents with two years Diploma in Laboratory Technician Course. The Division Bench, in no uncertain terms observed that the stand of the counsel for the appellant therein i.e. those with nine months Training Course Certificate, to exclude the
incumbents of longer duration which has been incorporated in the year 1995 for the purpose of recognizing the two particular courses, one of them which were run by SDMH imparting two years Training Certificate of Laboratory Technician Course and the other by Maharshi Dayanand Saraswati University, Ajmer; could not be sustained. The amendment incorporated with respect to the institutions aforesaid, cannot control the main provision in scheduled which existed earlier. The intention of the provisions cannot be culled out, so as to oust the training of longer duration, particularly, when it has been obtained from the institutions recognized by the Government, the Division Bench further added.
6. Per contra, Mr. S.K. Gupta, Govt. Counsel appearing on behalf of the State-respondents supporting the action of the respondents in exclusion of the petitioners while drawing the revised select list, relying upon the stand in the counter affidavit as well as the Additional affidavit filed subsequently, argued that two years Diploma Court in Laboratory Technician from SDMH, Jaipur is not a recognized Course, and therefore, the petitioners cannot have any complaint for they were non suited for the post of Laboratory Technician. The learned counsel would further submit that the contentions of the petitioners are based on misreading of the judgment dated 19th October, 2011, passed by the Division Bench of this Court. Referring to communication dated 17th January, 2001, it is further submitted that All India Technical Education Council neither conducted any course of Laboratory Technician nor granted recognition to such a Course. The learned counsel further pointed out that it was in the back drop of the communication dated 17th January, 2001, that the Deputy Secretary of the Government of Rajasthan, addressed a communication to the SDMH, Jaipur, informing him about the illegality of the course as would be reflected from letter dated 13th January, 2003. The learned counsel also indicated that the recognition accorded to SDMH was withdrawn vide communication dated 26th June, 2002 (Annexure-10) and this fact was also reiterated by a subsequent communication dated 26th August, 2002 (Annexure-11). Hence, the writ petition deserves to be rejected.
7. I have heard the learned counsel for the parties and with their assistance perused the materials available on record.
8. Indisputably, the Rules of 1965 were amended in the year 1995 vide publicc1tion in the Rajasthan Gazetted dated 28th July, 1995, the amended Rules reads thus:
Name of Post
Source of with percentage
Qualification & Post Qualification Experience for from & Experience for
Secondary or its with 9 months Training Certificate From Institution recognized by Government Or In the event of non-availability of candidates possessing certificate of 9 months training from Institution recognized by Government, the candidates possessing the following qualifications can be considered -Secondary of a recognized Board or its equivalent with two years training certificate of Laboratory Technology Course run by the Santokba Durlabhji Memorial Hospital, Jaipur or B.Sc. With Biology with Post graduate Diploma in Laboratory Technology from Maharshi Dayanand Saraswati University, Ajmer with hospital based training in JLN Medical College, Ajmer recognized by Government."
There shall be no distinction between LaboratoryTechnician and Malaria Technician. The cadre will be redesignated as Laboratory by Technician only.
9 A glance at the amendment in the qualification for direct recruitment to the post of Laboratory Technician would reflect that the petitioners are in possession" of the required qualification since the qualification of two years Training Certificate of Laboratory Technology Course run by SDMH, Jaipur has been incorporated in the Schedule-1 appended to the amended Rules of 1965. This fact was also noted by the Division Bench of this Court in DBSAW No.802/2011, while repelling the submissions of the counsel appearing· on behalf of the appellants, in the appeal, on behalf of the incumbents, who were in possession of the certificate of duration of nine months and wanted an exclusion of the candidates/incumbents with qualification of longer duration of course.
10. The Division Bench while dealing with the controversy observed thus:
“10. It is apparent from the aforesaid provisions contained in Schedule I with respect to post of Laboratory Technician that a candidate must possess qualification of Secondary or its equivalent holding of which is not in dispute and the other requirement is that incumbent should also have obtained nine months training certificate from institutions recognised by the Government. Thus, an incumbent, who has obtained training for more than nine months duration, has not been excluded, in case he is having qualification of Secondary or its equivalent and has completed the training of longer duration than 9 months from the institution recognised by the Government is eligible. Any other interpretation of the aforesaid provisions which would oust the candidates possessing training certificate of longer duration than 9months, would create anomalous situation and render the provision arbitrary and irrational. Submission of counsel appearing on behalf of the appellants to exclude the incumbents of longer duration than 9 months is based upon the amendment, which has been incorporated in the year 1995, for the purpose of recognising the two particular courses, one of them is run by Santokba Durlabhji Memorial Hospital, Jaipur, which imparts two years training certificate of Laboratory Technology and second course run by Maharshi Dayanand Saraswati University, Ajmer providing requisite qualification of B.Sc. with Biology with Post Graduate Diploma in Laboratory Technology from the said University. The aforesaid amendment, which has been incorporated is with respect to two institutions only not with respect to others, the amendment cannot control the main provision in Schedule which existed earlier. We are of the considered opinion that the incumbents, who are having qualification of more than nine months duration training certificate from institutions recognised by the Government, are not ousted from the eligibility criteria. In case they are ousted, anomalous result would occur better trained incumbents having training certificate of longer duration would be ousted and the incumbents having the training certificate of only nine months duration could only claim appointment. That is not purpose of the rules and an effort has to be made to interpret it in a pragmatic manner and not in illegal and arbitrary manner. The intention of the provisions cannot be 8culled out to oust the training of longer duration, particularly, when it has been obtained from the institutions recognised by the Government. The provision has to be construed as minimum nine months graining is required. 11. Apart from what has been discussed above, as the State Govt. has stopped recognising nine months training certificate course with effect from 2002, nine months training certificate is not being provided by any recognized institution and only course of Laboratory Technology, which is being run by institutions recognised by the State Govt. with effect from 2002, is of duration of two years and such incumbents are not to be ousted from the zone of consideration. The intention was not to appoint only those incumbents, who were having nine months training certificate obtained before 2002 and oust those who have obtained prevailing better qualification in last 9 years. An interpretation to contrary would make provision to be harsh, oppressive and violative of protection conferred under Arts. 14 and 16 of the Constitution of India. Interpretation has to be purposive. The incumbents, who are having training certificate or diploma of longer duration of more than nine months, are also eligible for consideration. They are better trained incumbents.”
11. From the materials available on record and communication dated 4th December, 2002, it is evident that the State of Rajasthan recognized the qualifications of Laboratory Technology Course run by SDMH, Jaipur, for the purpose of appointment to the post of Laboratory Technician and also allowed SDMH, Jaipur, to run the Course with an intake of 15 students subject to terms and conditions stipulated therein. The permission (No Objection Certificate) also stipulated a condition that SDMH, Jaipur, will not adopt any criteria of admission without permission of the State Government. The fees structure re as approved by the State Government was to be strictly adhered to. The Rules and reservation policy was also not to be violated as adopted by the State of Rajasthan.
12. On being queried by the Court, the learned counsel appearing on behalf of the respondents was not in a position to show, with the help of sustainable documentary evidence, that the permission (No Objection Certificate) accorded vide communication dated 4th December, 2002 (Annexure-12), to run the course of Laboratory Technology, was ever withdrawn.
13. The submissions made by the learned Government Counsel referring to the communication dated 17th January, 2001 (Annexure R/1) and communication dated 13th January, 2003 (Annexure R/2), to substantiate the withdrawal of recognition of the Course of Laboratory Technology, cannot be sustained, in the face of amendment made under the rules of 1965 vide amendment in the year 1995 in exercise of powers under provisio to Article 309 or the Constitution of India as is evident from the publication in the Rajasthan Gazetted dated 28th July, 1995. The qualifications prescribed conferring eligibility for appointment to the post of Laboratory Technician under the statutory rules of 1965, as amended in 1995, cannot be changed or tinkering with by an administrative order/instruction or under the advertisement while inviting applications for filling up of the vacancies. The powers exercised by the Governor under provisio to Article 309 of the Constitution of India, is a legislative exercise of power, and therefore, any modification or alteration or amendment to the Rules framed in exercise of powers under proviso to Article 309 of the Constitution of India by an administrative fiat, is simply not permissible.
14. In the case of Dhananjay Malik & ors. VS. State of Uttaranchal & Ors; 2008(4) SCC 171 , the Hon'ble Supreme Court observed thus:
“13. A Constitution Bench of this Court in the case of Sant Ram Sharma v. State of Rajasthan MANU/SC/0330/1967:(1968)IILLJ830SC , has pointed out at p. 1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions no t inconsistent with the rules already framed.
13. The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge Bench of this Court in the case of Union of India v. K.P. Joseph MANU/SC/0610/1972 : 2SCR752 , as under:
Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Anr. MANU/SC/0330/1967: (1968)IILLJ830SC , that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.”
15. The view has been again reiterated by the Hon'ble Supreme Court in a recent pronouncement in the case of Selvi J.Jayalalithaa and Ors. Vs. State of Karnataka and Ors.; 201.4 (2) SCC 401.; reiterating the earlier view to the effect that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. Thus, amendment in the Rules of 1965 cannot be made unless the procedure prescribed under the law is adopted. Therefore, the communications referred to and relied upon by the learned counsel appearing on behalf of the State-respondents while supporting the stand of the respondents in excluding the petitioners for their ineligibility for not possessing the required educational qualifications under the Rules, in the back drop of administrative instructions, cannot be sustained
16. A Coordinate Bench of this Court in SBCWP No.1570/2012 (Shreyans Jain & Ors. Vs. State of Raj. & Ors.), considered and adjudicated upon the eligibility of candidates, who acquired the qualification of one year post graduate course in Laboratory Technician from Maharshi Dayanand Saraswati University, Ajmer, in alternative; who were not considered on the pretext that in case the candidates with 9 months or two years Diploma course are not available, only in that eventuality, their candidature could be considered.
17. The Coordinate Bench taking note of the observations made by the Division bench in the case of Nawal Kishore Sharma (supra), allowed the claim of the petitioners with a direction to the State-respondents to consider their cases for holding the qualification of Diploma in Laboratory Technician of one year duration, that too from Maharshi Dayanand Saraswati University, Ajmer, as a valid qualification. The Coordinate Bench, specifically held in the case of Shreyans Jain & Ors. (supra), that the qualification from Maharshi Dayanad Saraswati University, Ajmer, is a valid qualification from a recognized institution.
18. For the reasons and discussions hereinabove, the writ petition succeeds and is hereby allowed.
19. The respondents are directed to include the petitioners in the select list of successful candidates in accordance with their merit. The petitioners will be entitled to seniority and other consequential benefits notionally. The respondents are directed to comply with the directions within a period of three months from the date of receipt of a certificate copy of this order.
20. No costs.
(VEERENDR SINGH SIRADHANA),J