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High Court order for SDM Hospital


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR

S.B. CIVIL WRIT PETITION NO. 1571/2012

  1. Rajesh Kumar Nagar S/o. Shri Jawahar Lal aged about 28 years, resident of Dhakar Colony, Todaraisingh, Distt. Tonk, Rajasthan.
  2. Mohd. Ashfaq S/o. Mohd. lshaq, aged about 32 years, resident of 8, Chaudhary Colony, Gangapole Gate, Jaipur.
  3. Satish Chand Gupta S/o. Shri Omprakash Gupta, aged about 32 years, resident of Village & Post Gangdwari, Tehsil Sikrai, Distt. Dausa.
  4. Ramesh Chand Raigar S/o. Shri Sonaram Raigar, aged about 29 years, resident of Village & Post Govindpura  Basari Via Khejroli, Tehsil ShahpuraDistt. Jaipur.
  5. Tara Chand Sethi S/o. Shri Mool.Chand Sethi,  aged about 28 years, resident of High School Road, Raj Bazar, Ward No.1 0, Bandikui, Distt. Dausa.
  6.  Dilip Kumar Sharma S/o. Shri Gangasahai Sharma, aged about 29 years, resident of Dhakar Colony, Todaraisingh Distt. Tonk (Raj.)
  7.  Diwakar Sharma . S/o. Shri MurarilLal Sharma, aged about 27 years, resident of 32/406, Near K.V. 6, Sector-3, Pratap Nagar, Sanganer, Jaipur
  8. Suresh Kumar Santolia S/o. Shri Tejaram Santolia aged about 30 years, resident of village Sakray, Post Khiroti Tehsil Neemka Thana, Sikar.
  9. Amit Bhardwaj S/o. Shri Suresh Chand Sharma, aged about 27 years, resident of Satyanand Colony, Mahwa Road, Mandawar, District Dausa.
  10. Girdhari Lal Sharma S/o. Shri Jagdish Prasad Sharma aged about 29 years, resident of Plot No.1/252, Vidhyadhar Nagar, Sector-1, Jaipur.
  11. Shyam Lal Saini S/o. Shri Banwarilal Saini, aged about 32 years, resident of Ward No.3, Saini Colony, Near Gram Panchayat Bhawan, Kanwat, Sikar (Raj.)
  12. Shiv Kurnar Saini S/o. Shri Raghunandan Saini, aged about 30 years, resident of Behind Old Cinema Hall, MahaliaBadiyan, Dausa (Raj.)
  13. Praveen Gautam S/o. Shri Sadri Prasad Sharma, aged about 29 years, resident of 93, Rajat Vihar Colony, Gate No.1, Bundi (Raj.)
  14. Banwari Lal Joshi S/o  Shri Chunnilal Joshi, aged about 31 years, resident of Main Market, Sardarshahar, District Churu (Raj.)
  15. Sharwan Lal Yadav S/o. Shri Narayan Lal Yadav, aged about 30 years, resident of Village post Pachar, Via Kalwar, Distt. Jaipur.
  16. A mrit Raj Saini Son of Shri Mangal Chand Saini aged about 25 years, resident of C/o. Ringus Road, Anjani Hanuman Mandir Ke Pass, Bhopali Kothi, Village Harota, Tech. Chomu, Jaipur.
  17. Mahesh Kumar S/o. Shri lshwar Ram, aged about 28 years, resident of VPO - Sankhu, Tehsil Laxmangarh, District, Sikar.
  18.  Bharat Bhushan Saini S/o. Shri Prem Prakash Saini, aged about 34 years, resident of Opposite Gyan Vihar School, Near Badri Vihar, Shekhpura Mohalia, Ward No.35, Sikar

Versus

  1. State of Rajasthan through its Principal Secretary, Department of Medical & Health, Secretariat, Jaipur.
  2. The Director, Medical & Health, Department of Family Welfare, Swasthya  Bhawan, Jaipur.
  3. Additional Director (Administration) Medical & Health Services, Swasthaya Bhawan, Tilak Marg, Jaipur.
  4. Yogendra Singh Son of Shri Bhagwan Singh Tanwar C/o  Director, Medical &Health Department &Family Welfare, Swasthaya Bhawan, Jaipur.
  5. Rakesh Saini Son of Shri Prabhati Lal C/o Director, Medical & Health Department & Family Welfare, Swasthaya Bhawan, Jaipur.
  6. Mangi LaI Son of Shri Sukkhan LaI C/o Director, Medical & Health Department & Family Welfare, Swasthaya Bhawan, Jaipur.
  7. Ravi Kumar Meena Son of Shri Chaju Lal Meena C/o Director, Medical & Health Department & Family Welfare, Swasthaya Bhawan, Jaipur.

..Respondents

S.B. CIVIL WRIT PETITION UNDER ARTICLE 226

OF THE CONSTITUTION OF INDIA

AND

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

ORDER

S.B. Civil Writ Petition No.1571/2012

Rajesh Kumar Nagar & Ors. Vs. State of Raj. &Ors.

17th December,2014

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).

  1. " By an appropriate writ, order or directions the impugned Select List Dated 20. 12.2011 may be quashed Reviewed and appointment letters issued' pursuant to Select List dated 20.12.2011 may be quashed and set aside and respondents may be directed to redraw the Select List while including the name of the petitioners in Select List.
  2. By an appropriate writ, order or directions the respondents may be directed to treat the qualifications acquired by the petitioners to be valid and recognized for appointment on the post of Laboratory Technician and for all other purposes.
  3. That any other appropriate order or directions which the Hon'ble court may deem fit and proper in the facts and circumstances of the present case may be passed."

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:

S.No

Name of Post

Source of  with percentage
Direct recruitment/ Promotion

 Qualification & Post Qualification Experience for from & Experience for
Promotion  is to be made

Remarks

4

Laboratory Technician

100%

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 : [1973]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

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