JUDGMENT 1. - Two writ petitions of petitioner Pawan Kumar Dadhich are based on same facts and the contempt petition arises out of the alleged violation of the order passed by this court in Stay Application No. 2654/90 filed along with writ Petition No. 3145/90. 2. In order to appreciate the controversy, it would be useful to refer to some facts. 3. Petitioner Pawan Kumar has claimed that he has a brilliant academic record. He appeared in the Pre-Ayurveda Test held by the University of Rajasthan in the year 1983-84 and secured 7th rank in the order of merit. He then took admission in Bachelor of Ayurved, Medicine and Surgery (for short, B.A.M.S.) course and during 1984-85 he secured 6th rank in the Ist Year Examination. In the Third Year B.A.M.S. course he secured distinction marks in Agad Tantra and Vyavahar Ayurved. He appeared in the Final Year Examination at Udaipur on 22.8.89. During that examination, Shri Om Prakash Sharma (respondent No. 5) was Internal Examiner. He was serving as Lecturer in Surgery. He was seriously prejudiced against the petitioner and much before the commencement of the examination, he had told the petitioner that he would not let the petitioner pass the examination. Petitioner could not believe this statement. He was confident that on the basis of his academic record, he cannot be failed in the examination. After examination was over, Shri Om Prakash Sharma called the petitioner in the Hospital premises at Udaipur and told him that he has failed him in the practical examination of surgery. According to the petitioner, Shri Om Prakash Sharma also threatened the petitioner that so long he is examiner, he will not allow the petitioner to qualify the examination. Petitioner made a representation about this incident to the Controller of Examination, University of Rajasthan, Jaipur on 7.10.1989 (Annexure-1). This he did before declaration of the result. A copy of this representation was also sent to the Dean, Faculty of Ayurved and to the Registrar, University of Rajasthan with the request that an inquiry be made into the matter. He made another representation to the Vice-Chancellor of the University of Rajasthan on 24.10.1989. A further representation dated 3.11.1989 was made by him to the various authorities including the Vice-Chancellor and the Registrar of the University of Rajasthan. He made another representation to the Vice-Chancellor of the University of Rajasthan on 24.10.1989. A further representation dated 3.11.1989 was made by him to the various authorities including the Vice-Chancellor and the Registrar of the University of Rajasthan. In response to his representation made by him to the Principal, Madan Mohan Malviya Government Ayurved College, Udaipur on 27.11.1989, the matter was brought to the notice of the Registrar, University of Rajasthan by the Principal. The result of Final Year Examination was declared on 18.1.1990. He was shown to have failed in the practical examination of Surgery. He was awarded 20 marks out of 100 marks in the Surgery (paper-I) and 45 marks out of 100 marks in E.N.T. Petitioner brought this fact to the notice of respondent No. 3 on 19.1.1990 i.e. immediately after declaration of the result. He also made a representation to the Vice-Chancellor on 29.1.1990. The President of the Students Union of the University of Rajasthan also addressed a letter to the Vice Chancellor in this regard on 27.1.1990. Ultimately, he received a communication dated 1.3.1990 from the Registrar of the University, whereby the Registrar intimated the petitioner that the matter is under consideration. Ultimately, the petitioner was allowed to sit in the examination vide letter dated 3.3.90, which was held at a separate centre. Petitioner appeared in the examination on 21.3.90 and 22.3.90. Now he has secured 50 marks out of 100 in Surgery and 80 marks out of 100 in E.N.T. Petitioner claims that he should be deemed to have qualified the examination of B.A.M.S. Final Year held in the year 1989 and he should be treated at par with those internee doctors, who had passed the Final Year examination in September, 1989, but for the deliberate and malicious act of respondent No. 5, petitioner would not have suffered. Petitioner has asserted that in the mark-sheet issued by the University of Rajasthan after he has appeared in March, 1990 Examination, he has been shown to have cleared September, 1989 Examination. He was also admitted as an Internee for training on the basis of his having Final Year Ayurvedacharya Examination in September, 1989 vide Annexure-16. He was allowed to take training with the batch of students who had passed September 1989 Examination. In support of this assertion, the petitioner has enclosed order dated 23.1.1990 (Annexure-17) of the Principal, Madan Mohan Malviya Ayurved College, Udaipur. He was allowed to take training with the batch of students who had passed September 1989 Examination. In support of this assertion, the petitioner has enclosed order dated 23.1.1990 (Annexure-17) of the Principal, Madan Mohan Malviya Ayurved College, Udaipur. During the course of arguments, learned counsel for the petitioner also produced a provisional certificate issued by the University of Rajasthan showing that he has passed Ayurvedacharya Examination of September, 1989. 4. The Government of Rajasthan issued a short term advertisement dated 27th September, 1990 and invited applications from the eligible candidates for filling 216 posts of Ayurved Doctors on purely temporary basis. This advertisement has been published in the Rajasthan Patrika dated 4.7.90 and the last date fixed for receipt of the applications was mentioned as 15.7.90. Petitioner submitted his application form on 9.7.90. He made a separate request to the Government that he may be treated at par with all Internees doctors who had qualified the examination held in the year 1989. He, however, apprehended that his application will be rejected because his internship will complete by 30th September, 1990. The period of internship is 180 days and but for the mischief of respondent No. 5, he would have completed his internship of 180 days prior to the last dated fixed for receipt of the applications. Apprehending exclusion of his candidature, the petitioner filed Writ Petition No. 3145/90 and prayed that respondents may be directed not to reject his application dated 9.7.90 for the post of Ayurved Doctor on the ground that he had not completed internship, which commenced on 23.1.1990. A further prayer has been made that the petitioner be declared to have qualified B.A.M.S. examination in September, 1989 and be ordered to be treated at par with other Internees. The main grounds given in this writ petition are, that the petitioner has seen made to suffer on account of malice of respondent No. 5. The University of Rajasthan accepted the plea of the petitioner and allowed him to appear in the examination subsequently and then treated him to be a candidate who has passed September, 1989 Examination. 5. In the second Writ Petition No. 466/91, the petitioner has come out with the case that on the basis of advertisement dated 27.6.1990, 191 Ayurved Doctors have been appointed by order dated 19.1.1991. 5. In the second Writ Petition No. 466/91, the petitioner has come out with the case that on the basis of advertisement dated 27.6.1990, 191 Ayurved Doctors have been appointed by order dated 19.1.1991. Shri Uma Shanker Tiwari, who has secured 55% marks has been appointed, whereas the petitioner who has secured 58.02% marks has been denied appointment. Thus, he has been subjected to discrimiinatory treatment. Respondents have deprived the petitioner a right of consideration without any reason or rhyme. In this writ petition, he has made a prayer that respondents be directed to appoint him as Ayurved Doctor by treating him to be having requisite qualification. 6. In reply to the first writ petition, respondent Nos. 1, 3 and 4 have stated that the petitioner has not faired well in the examination held in September, 1989 and he cannot blame the examiner for his bad performance. He was allowed to re-appear in the practical examination on humanitarian ground by the respondent-University of Rajasthan. Petitioner cannot treat himself to be at par with those who had passed the examination of September 1989. Mere issue of mark-sheet indicating that he has passed the Final Year Examination of 1989 is of no consequence because the petitioner had infact passed the final year examination in the month of March, 1990. Petitioner could not have started internship before passing the Final Year Examination and, therefore, his internship can be said to have started only after March, 1990. Petitioner has not submitted his certificate of registration with the Board of Indian Medicine as also certificate with regard to registration with the Employment Exchange and the certificate of completion of internship with his application form submitted by him in pursuance of the advertisement dated 27.6.1990 and therefore, he cannot be considered to be eligible for the purpose of selection on the post of Ayurved Doctor. Thus, in short the case of respondent Nos. 1, 3 and 4 is that by the last date fixed for submission of application for appointment as Ayurved Doctor, the petitioner was not having the requisite qualification. 7. In its reply, the respondent No. 2, University of Rajasthan has asserted that Shri Om Prakash Sharma was not prejudiced against the petitioner. No complaint was received by the respondent-University of Rajasthan before commencement of the examination. Petitioner made complaint only after he failed in the examination. 7. In its reply, the respondent No. 2, University of Rajasthan has asserted that Shri Om Prakash Sharma was not prejudiced against the petitioner. No complaint was received by the respondent-University of Rajasthan before commencement of the examination. Petitioner made complaint only after he failed in the examination. He was declared fail on the basis of his performance. It has been admitted that the petitioner was allowed to appear at another centre in two practical examinations. It has also been admitted that the petitioner was declared successful in B.A.M.S. Examination-1989. Passing of the order dated 31.3.90 by the Principal of the College has also been admitted. Respondents have stated that the petitioner's allegation of mala fide does not have any justification and, therefore, writ petition should be dismissed. 8. A separate reply has also been filed by respondent No. 5. He has stated that he was internal examiner in the practical examination held in August, 1989. External examiners were other persons. The examinations were conducted as per the Rules of the University of Rajasthan. The internal examiner only helps the external examiner who are primarily responsible for the results of the practical examination. He has denied the allegation that he had told the petitioner that he would fail him. He has stated that he never called the petitioner and informed that he had failed and that he could never pass the examination in future. He has further stated that whenever anything wrong is found with the examiner, the University has practice of blacklisting such examiner, but in this case no such order has been made. The marks were awarded to the petitioner by the external examiner and, therefore, there was no justification in the allegation that respondent No. 5 had failed him. 9. A rejoinder has been filed by the petitioner to the reply of respondent Nos. 1, 3 and 4 and he has reiterated that he should be treated as qualified. He had completed internship on 19.10.1990 and the appointments were made on 19.1.1991, and, therefore, the petitioner's candidature should have been considered for the purpose of appointment. 10. In reply to Writ Petition No. 466/91, the respondents have come out with the case that the petitioner was not even eligible to be considered for appointment as Ayurved Chikitsak. He has, therefore, no right to comlpain against the appointments of so-called less meritorious persons. 10. In reply to Writ Petition No. 466/91, the respondents have come out with the case that the petitioner was not even eligible to be considered for appointment as Ayurved Chikitsak. He has, therefore, no right to comlpain against the appointments of so-called less meritorious persons. A rejoinder to this reply has also been filed by the petitioner and a replica to the rejoinder has been filed by the respondents. According to the respondents, for appointment as Ayurved Doctor, a person must have passed 5 years degree course in B.A.M.S., he must have completed 6 months internship and he must be registered with the Board of Indian Medicine. The petitioner passed Final Year Examination of B.A.M.S. in March, 1990. He completed his internship on 5.10.1990. He was registered as Chikitsak with the Board of Indian Medicines on 10.10.1990. He was not registered with the Employment Exchange upto 1.8.90. The last date fixed for receipt of the applications in pursuance of advertisement dated 27.6.1990 was extended 1.8.90. As on that day the petitioner did not have the certificate of internship, certificate of registration with the Board of Indian Medicine and his registration with the Employment Exchange. However, in pursuance of the directions given by this Court on 30.7.90, his case was considered ignoring the fact that he had not completed the internship of 6 months. But since he was otherwise not having the qualifications and he was not fulfilling the eligibility conditions, he was not entitled to be selected. 11. From the facts, which have come on record, it can be said that the petitioner possesses good academic record with reference to Pre Ayurved examination of B.A.M.S. examination. Nevertheless, the fact remains that he was declared fail in B.A.M.S. Final examination held in September, 1989 because he had failed to secure pass marks in the practical examinations. He made representations to the various authorities and the University did allow him to appear in the examination at a different centre in March, 1990. Thereafter, he was declared to have passed the examination. In the mark-sheet subsequently issued, the petitioner has been shown to have passed B.A.M.S. Final examination in September, 1989. But the fact remains that he physically passed this examination in March, 1990. The petitioner could start his internship only after clearing final examination in March, 1990. Thereafter, he was declared to have passed the examination. In the mark-sheet subsequently issued, the petitioner has been shown to have passed B.A.M.S. Final examination in September, 1989. But the fact remains that he physically passed this examination in March, 1990. The petitioner could start his internship only after clearing final examination in March, 1990. As per his own statement, the internship is of 6 months duration and he completed the internship on 5.10.1990. It is also borne out from the record that for the purpose of appointment as Ayurved Doctor, a person is required to have passed 5 years B.A.M.S. Examination followed by internship of 6 months and is required to be registered with the Board of Indian Medicines. It is also borne out from the record that the last date fixed for receipt of the applications in pursuance of the advertisement dated 27.6.90 was 15.7.90. This was subsequently extended to 1.8.1990. The petitioner submitted his application on 9.7.90 even though on that day he had not completed 6 months internship and had not been registered with the Board of Indian Medicines. This position continued even as on 1.8.90. According to the respondents, he was not even registered with the Employment Exchange. Thus as on the last date fixed for receipt of the applications, the petitioner lacked the minimum required qualification which could make him eligible for the purpose of consideration for appointment as Ayurved Chikitsak. The Government of Rajasthan was not at all involved or concerned with the appearance of the petitioner in the examination held in September, 1989, his failure thereat and subsequent direction of the University permitting him to appear in the examination in March, 1990 etc. Therefore, the Government of Rajasthan could hardly be held responsible for any in Justice or injury which the petitioner may have sufferred on account of the action of respondent No. 5 or respondent No. 2. So far as the Government of Rajasthan is concerned, it had clearly specified the last date, before which eligible candidates could offer themselves for consideration for appointment as Ayurved Chikitsak. Since the petitioner did not have the requisite qualification, which could entitle him to be appointed as Ayurved Chikitsak it cannot be said that the respondent Nos. 1, 3 and 4 have committed any illegality or have acted arbitrarily or have discriminated the petitioner vis-a-vis other eligible persons. Since the petitioner did not have the requisite qualification, which could entitle him to be appointed as Ayurved Chikitsak it cannot be said that the respondent Nos. 1, 3 and 4 have committed any illegality or have acted arbitrarily or have discriminated the petitioner vis-a-vis other eligible persons. Petitioner is not a person who is similarly situated qua other persons who had been appointed as Ayurved Chikitsak in pursuance of the advertisement dated 27.6.90. When posts are advertised for being filled from open market, the competent authority can consider the candidature of only those persons who fulfil the conditions of eligibility on or before the last date fixed for submission of applications. The qualifications/conditions of eligibility specified are not only required to be fulfilled by the last date fixed for receipt of applications, but are also binding on the employer. While ineligible candidates have no right to be considered, it is not open to the employer to give a go-bye to the conditions of eligibility. It is not open to the employer to consider the candidature of the persons who lack the eligibility conditions on the last date fixed for receipt of applications. The equality clause contained in Articles 14 and 16 imposes an obligation on the employer to adhere to the conditions of eligibility specified in the advertisement. Any relaxation in the conditions of eligibility can only be made if statutory provisions permit such relaxation and a specific stipulation to that effect is made in the advertisement itself. Reference in this connection can appropriately be made to the decisions of the Supreme Court in Dr. Umakant v. State of Bihar, 1973 (1) SCC 485 , and Swarnlata v. State of Punjab, 1979 (1) SLR 610 . 12. The petitioner, therefore, cannot claim any relief against respondent Nos. 1, 3 and 4 on the ground that persons having lessor merit than him have been appointed by order dated 19.1.1991. As already noted hereinabove, the petitioner was not similarly situated qua other candidates who fulfilled the conditions of eligibility. Equality can be claimed by the persons who are similarly situated and not by those who are differently circumstanced. Thus, the candidates who fulfilled the conditions of eligibility had a right of consideration and, therefore, if Uma Shanker Tiwari who was having less percentage than the petitioner has been appointed, neither any illegality nor any irregularity has been committed by the Government. Thus, the candidates who fulfilled the conditions of eligibility had a right of consideration and, therefore, if Uma Shanker Tiwari who was having less percentage than the petitioner has been appointed, neither any illegality nor any irregularity has been committed by the Government. In fact, if the petitioner's candidature had been considered by the Government notwithstanding his ineligibility upto the last date fixed for receipt of applications, the Government could have been charged with the allegation of unequals with equals and violating Articles 14 and 16 of the Constitution of India. 13. In my opinion both the Writ Petition Nos. 3145/90 and 466/91 do not have any merit so far as the claim of the petitioner for consideration for appointment as Ayurved Chikitsak and for issuance of direction to the respondents to appoint him as such is concerned. It is immaterial that he has been treated by the University of Rajasthan as having passed the B.A.M.S. Final examination of 1989. However, it appears that the University did find some justification in the grievance of the petitioner against the result of his examination held in August/September, 1989. If the petitioner feels that any injury has been suffered by him on account of action of respondent No. 5 or respondent No. 2, he is free to file a suit for damages. It is also made clear that the appointments made in pursuance of the advertisement dated 27.6.90 are purely ad hoc and the Government is bound to make regular appointments in accordance with the provisions of the Rules. As and when such regular appointments are made, the petitioner will have a right of consideration for appointment according to his merit. 14. Now so far as contempt petition is concerned, the petitioner's plea is that by order dated 30.7.90 Hon'ble M.B. Sharma, J. had directed that the petitioner's form should not be rejected only on the ground that he had not completed internship for a period of 6 months. Petitioner's case is that notwithstanding this stay order, his application has not been considered on merits for appointment as Ayurved Chikitsak by the respondents and they have deliberately flouted the order issued by the court. 15. In response to the notice issued by the court, the respondents have come out with the case that the petitioner was not having the requisite qualifications for consideration for appointment. He had not completed internship of 6 months. 15. In response to the notice issued by the court, the respondents have come out with the case that the petitioner was not having the requisite qualifications for consideration for appointment. He had not completed internship of 6 months. He was not registered with the Board of Indian Medicines. His candidature was considered in the light of the Court's order, but he was not found eligible because he had not been registered with the Board of Indian Medicines. Therefore, he was not entitled to be appointed. A rejoinder has been filed by the petitioner, in which it has been stated that the non-petitioners have deliberately flouted the Court's order. An additional affidavit has been filed by the respondents in which they have clarified the position. 16. I have considered the pleadings of the parties. In my opinion, the respondents cannot be said to have deliberately flouted the Court's order dated 30.7.90. The petitioner, on his own showing, was not having registration with the Indian Board of Medicines by 1.8.90 and, therefore, even though the Court had directed that his candidature should be considered without taking into consideration the requirement of 6 months' internship, the petitioner could not have been appointed because he was not having registration with the Board of Indian Medicines. Although it would shave been more appropriate for the respondents to have applied clarification from the Court and to have brought all facts in a correct perspective to the notice of the court it cannot be said that there is a deliberate and designed breach of the Court's order. Thus there is no merit in the contempt petition and it deserves to be dismissed. 17. The result of the above discussion is that both the writ petition Nos. 3145/90 and 466/91 wherein the petitioner has claimed that he should be treated as eligible for appointment as Ayurved Chikitsak in pursuance of the advertisement dated 27.6.90 are dismissed. Petitioner will however have a right of consideration for regular appointment as Ayurved Chikitsak as and when vacancies for regular appointment are notified by the Government and he shall have a right to be considered on his own merit vis-a-vis other eligible persons. Petitioner will be free to file a suit for damages against respondent Nos. 2 and 5, if he feels that any injury has been suffered by him on account of fault of respondent Nos. 2 and 5. Petitioner will be free to file a suit for damages against respondent Nos. 2 and 5, if he feels that any injury has been suffered by him on account of fault of respondent Nos. 2 and 5. Contempt petition No. 107/91 is dismissed and the notices of contempt are discharged. 18. There ill be noorder as to costs.Petition dismissed. *******