J.N. SARMA, J.— Both these applications have been filed challenging the legality and validity of the Select list dated 29.12.2001 prepared by the Assam Public Service Commission (hereinafter referred to APSC) and communicated by its Secretary by which Dr. Bipul Ch. Goswami and Dr. Paresh Ch. Bhattarcharjee were selected to fill up the post of Director of Health Services, Assam in pursuance to the advertisement dated 10.10.2001. It may be stated that Dr. Bipul Ch. Goswami was placed at Sl. No. 1 in the Select list and Dr. Paresh Ch. Bhattacharjee was placed at Sl.No.2 in the Select list. The authority, however, after receiving the list came to a decision that Dr. Bipul Ch. Goswami is not qualified to hold the post as he did not have the requisite experience as per the advertisement and as such, the post is now being hold by Dr. Kalyan Das as in-charge Director pursuant to an interim order of this Court. 2. The brief facts are as follows :-On 10.10.2001 an advertisement was issued to fill up the post of Director of Health Services, Assam and the qualification mentioned were as follows:- "Qualification: Atleast M.B.B.S. Degree or an equivalent Degree of a recognized University. Experience (a) At least 4 (four) years practical and administrative experience in the post of either Chief Medical and Health Officer or Additional Chief Medical and Health Officer or combining both, the experience together or in an equivalent or in a higher post. (b) Experience in Medical Public Health and Family Welfare works. (c) Preference will be given to the candidates having experience in administering large Health Service programmes including Family Welfare programmes and Hospital administration. (d) A post graduate degree or diploma in Public Health will be treated as a preferential qualification. (e) Candidates must be from Health (A) Deptt. only". 3. There is a set of Rules framed under Article 309 of the Constitution of India and that Rules is known as Assam Health Services Rules, 1995 which came into effect from the date of its publication in the Official Gazette and it was published on 26th September, 1996. Rule 6 of that Rules provides for direct recruitment. only". 3. There is a set of Rules framed under Article 309 of the Constitution of India and that Rules is known as Assam Health Services Rules, 1995 which came into effect from the date of its publication in the Official Gazette and it was published on 26th September, 1996. Rule 6 of that Rules provides for direct recruitment. Rule 6(1) is as follows :- 6(1) Direct recruitment to the cadre of Director of Health Services and also in the cadre of M & HOI of the service shall be made by the Governor in accordance with the procedure. The other part of the Rules namely, 6(1) (a), (b), (c) (d) and (e) are with regard how to fill up the post by the Public Service Commission. Rule 7 provides for qualification for direct recruitment. Rule 8(i) vides for academic qualification. Rule 8(ii) provides as follows:- 8 (ii) Academic qualification of a candidate for direct recruitment for the post of the Director of Health Services shall be as prescribed by the Governor from time to time. The qualification and experience prescribed as on the date of commencement of those rules are given in Schedule -IV" A bare look at Schedule-IV will show that it prescribes qualification only for Medical & Health Officer and nothing has been prescribed with regard to Director. There is no notification also in the name of the Governor prescribing the academic qualification and experience. What the authority did in this case was that after the selection was made by the APSC on 4.2.2002 a note was put up by the Commissioner and Secretary Health to the Chief Secretary, Minister of Health and Chief Minister seeking their approval. That note produced by Mr. BP Bora learned Sr. Govt. Advocate was approved by the Chief Minister on 15.4.2002. That note is quoted below :- "Chief Secretary Minister, Health Chief Minister. The matter had been put up to seek approval of the Honorable CM for appointment of the Director of Health Services. In this connection, the Hon'ble CM has stated that he would like know the rule position. As per rule 5 of the Assam Health Services the recruitment to the post of DHS is to be done by direct recruitment through Commission (APSC). The procedure for direct recruitment has also been given in rule 6 of the Assam Health Service Rules. In this connection, the Hon'ble CM has stated that he would like know the rule position. As per rule 5 of the Assam Health Services the recruitment to the post of DHS is to be done by direct recruitment through Commission (APSC). The procedure for direct recruitment has also been given in rule 6 of the Assam Health Service Rules. The academic qualification and experience are normally prescribed by the Government from time to time. Accordingly, this time the qualification and experience was prescribed by the State Government which was similar to the prescription given in the previous 2 occasions. The prescribed qualification and experience is as given below :- Qualification ;- At least MBBS degre or equivalent degree of a recognized university. Experience :- (a) At least 4 years administrative experience as Chief Medical & Health Officer or Addl. Chief Medical & Health Officer or combining both experience or experience in an equivalent or in a higher post. (b) Experience in Medial & Public Health and Family Welfare works. (c) Preference will be given to the candidates having experience in administrating Health Service programmes including family welfare programmes and Hospital administration. (d) A post graduate degree or Diploma in Public Health will be treated as a preferential qualification. (e) The candidates must be from Health (A) only. The Government has followed procedure as prescribed in the rules and the APSC has given the recommendations. As already indicated in the note at page 119-121, the first person recommended by APSC does not fulfill the minimum criteria required for consideration. The officer does not have adequate experience at the appropriate level and hence his candidature cannot be accepted. The Government as per rule position has to make the appointment by direct recruitment through APSC. Since the APSC has given only two names in order of merit and the Government is unable to accept the candidature of the number one nominee for very valid reasons there should be no bar in accepting the 2nd nomination. It is further suggested that the whole matter regarding issue of experience certificate by Dr. P.K. Deka, PD IPP IX to Dr. B.C. Goswami fraudulently should be inquired into by the Vigilance through Anti-corruption Branch. CS may kindly obtain CM's approval for taking up a vigilance case. It is further suggested that the whole matter regarding issue of experience certificate by Dr. P.K. Deka, PD IPP IX to Dr. B.C. Goswami fraudulently should be inquired into by the Vigilance through Anti-corruption Branch. CS may kindly obtain CM's approval for taking up a vigilance case. Sd/- Commissioner & Secretary, Health Hon'ble Chief Minister, This is regarding appointment of Director, Health Services, Assam as per APSC's Select list. Hon'ble C.M. vide his order at page 121/ N wanted to know the 'Rules position'. Commissioner & Secretary, Health was furnished the Rules position at office note from prepage. C.M. may kindly peruse the same and pass necessary order to appoint Dr. Paresh Bhattacharjee, the 2nd nominee for the post of Director Health Services. Regarding 'X' above, explanation may be called from Dr. P.K.Deka , P.D,, Assam Area Project first for taking appropriate action. Submitted for approval. Sd/- Minister, Health. Approved Sd/C.M." The note which has been quoted above will have bearing on the argument advanced by the learned Advocate for the petitioners. From this note it will be crystal clear that at the time of issuing advertisement as quoted above there was no qualification prescribed by the Government as required under the Rules with regard to academic qualification and experience. It appears that the authority while issuing advertisement adopted its own approach as yardstick and laid down the qualification and experience as was done in the post. It ' further appears that the APSC also adopted a mechanical approach instead of looking to the qualification as required to be prescribed it issued advertisement with the qualification as suggested by Government. The commission adopted an approach which cannot be accepted. The experience prescribed in the advertisement was of Chief Medical and Health Officer or Additional Chief Medical .and Health Officer or bearing both experience together or an equivalent or higher post Mr. Bipul Chandra Goswami is MBBS and subsequently he also passed MD in Gynaecology. Dr. Goswami joined in the service as Assistant Surgeon on 18.10.73. He became Senior Medical & Health Officer on 9.1.73. He became Superintendent of Civil Hospital (rank of S.D.M. & H.O) on 1.8.94. He was not promoted to the rank of Chief Medical and Health Officer or Additional Chief Medical and Health Officer. Thereafter he went on deputation to Assam Area Project under World Bank and there he was posted as Junior Consultant (HMD). He became Superintendent of Civil Hospital (rank of S.D.M. & H.O) on 1.8.94. He was not promoted to the rank of Chief Medical and Health Officer or Additional Chief Medical and Health Officer. Thereafter he went on deputation to Assam Area Project under World Bank and there he was posted as Junior Consultant (HMD). That was a deputation vacancy and not a cadre post as prescribed in the Rules. The post of Junior Consultant is not a cadre post under Rule 3(iii) of the Rules of 1995. The cadre posts are provided in the Rules. The learned Advocate for Mr. Goswami produces before me a set of Regulation framed by the Society for implementation of Assam Area Project and in that regulation framed by the society it is provided that the post of Junior Consultant (HMD) shall be equivalent to Joint Director of Health Services of the State of Assam. The qualification which is required to fill up the post of Junior Consultant is as follows ;- "Any Officer from Assam Health Service not below the rank of Joint Director/Associate Professor/Asstt. Professor with at least 8 years experience in HMD Back ground in organizing training/seminar at least for 4 years or any officer holding an equivalent post under the State Government or a retired Government servant who has retired from services from a similar post." So, even he was not qualified to be a Junior Consultant. Be that as it may, he was sent on deputation. Now the question is that as he holds the post of Junior Consultant whether that can be deemed to be equivalent to Joint Director of Health Services. An equivalence made/created by another body certainly shall not bind the Government to make it equivalent to a post provided in its own cadre. In the cadre the post of Joint Director is above the post of Chief Medical and Health Officer and Additional Medical and Health Officer. But that equivalence has been created by a society and it shall not give a person a right to claim that he is holding cadre posts. Before the APSC a certificate was produced by the Govt. Advocate issued by the Project Director, Assam Area Project which reads as follows :- " TO WHOM IT MAY CONCERN This is to certify that Dr. Before the APSC a certificate was produced by the Govt. Advocate issued by the Project Director, Assam Area Project which reads as follows :- " TO WHOM IT MAY CONCERN This is to certify that Dr. Bipul Chandra Goswami of Assam Health Service (A) is working as Assam Area Project, Indian Population Project-IX since 5th February, 1997. The Assam Area Project IPP-IX, lunching from 1994 is the World Bank funded project under department of Health and Fam­ily Welfare, Govt. of Assam and providing multi purpose health care and Family Welfare Services in the State of Assam including MCH Services. Dr. Goswami holding the post of Junior Consultant (HMD) which is equivalent to Jr. Director of Health Services, Assam. During tenure of his 4 years 9 months services, he look after training IEC activi­ties and logistic management field works. He is sin­cere, hard working and work satisfactory upto en­tire satisfaction of higher authorities. He bears good moral character. I wish him success in life. Sd/- Dr. P.K. Deka Project Director, Assam Area Project IPP-IX" It was on the basis of holding of this post and the certificate issued this officer BC Goswami claims to have the experience and accordingly he applied and his application was considered. It may be stated herein that during the pendency of this writ application, this certificate has been withdrawn by the Project Director, Assam Area Project stating that it was issued by mistake. So, the question is that whether Dr. Goswami was qualified to apply and considered for the post in terms of the advertisement. As will be sent from the facts stated above, he did not satisfy the requirements of experience etc. as laid down in the advertisement and he was not eligible to be considered for the post. 4. I have heard Mr. HN Sarma and Mr. AM Mazumder, learned Advocates for the writ petitioner. Sri CK Sarma Baruah, learned Advocate for the Respondent No.3, Dr Bipul Ch. Goswami, Mr. TC Chutia, learned Advocate for APSC, Mr. BP Bora, learned Sr. Govt. advocate for official respondents and Mr. BK Sharma, learned Advocate for the Respondent No.4 Dr. PC Bhattacharyya. 5. The learned counsel for the petitioners places reliance or two decisions to argue that Dr. Goswami did not have the experience and his case was illegally considered by the APSC. It is submitted by Mr. HN Sarma, learned Advocate for Dr. Govt. advocate for official respondents and Mr. BK Sharma, learned Advocate for the Respondent No.4 Dr. PC Bhattacharyya. 5. The learned counsel for the petitioners places reliance or two decisions to argue that Dr. Goswami did not have the experience and his case was illegally considered by the APSC. It is submitted by Mr. HN Sarma, learned Advocate for Dr. Muhi Ram Hazarika that if it would be known to him that the person having lesser experience than that mentioned in the advertisement would have been considered he also would have been in a position to apply for the post. On the other hand, Mr. BK Sarmah points out that Dr. Ananda Narzary appeared in the interview, but he failed to qualify and now he cannot turn back and question the selection. It is the further contention of Mr. BK Sharma that his client is the only candidate who fulfills all the qualifications laid down in the advertisement and as such, he should be allowed to enjoy the benefit of selection as decided by the Government. It is further submitted by Mr. BK Sharma that when Rules are silent with regard to qualification and experience, Government in its own wisdom by executive instructions or otherwise can prescribe necessary qualification and experience. But the records produced by the Govt. advocate do not show that any such decision was taken by the Government before the requisition was sent to the APSC by the Govt. laying down qualification etc. No doubt in the rule earlier to 1995 qualifications were laid down, but in the present rule, it is to be prescribed in the schedule and as indicated above, in the schedule the qualifications have not been laid down. There was also no decision with regard to qualifications etc. before issuing the advertisement. 6. Mr. HN Sarma, learned Advocate for the writ petitioner relies on two decisions (i) (1990) 3 SCC 655 (District Collector & Chairman, Vizianagaram Social Welfare Residential School Society Vs. M. Tripura Sundari Devi) where in paragraph-6 the law has been laid down as follows:- "It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. M. Tripura Sundari Devi) where in paragraph-6 the law has been laid down as follows:- "It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications are circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact." That is what has happened in the instant case. Dr. Goswami was selected disregard­ing the qualifications laid down in the ad­vertisement and the Supreme Court further issued a caveat stating that no court should be a party to the perpetuation of the fraudu­lent practice. The next case relied on by Mr. Sarma is (1998) 3 SCC 381 (Open Chandra Gogol Vs. State of Assam and others). That was a case from Assam and there the situation was more interesting. The person concerned drafted the Rules to suit himself. There was a selection and that was challenged and a Division Bench of this court quashed the selection and his ap­pointment. In that particular case the Su­preme Court observed that even if the Rules which provides the qualifications at a later point of time and validate the ap­pointment of person, yet, that rule cannot be applied to a selection which was held at an earlier point of time and the Supreme Court pointed out as follows :- "Be that as it may, the subsequent Rules cannot affect the qualifications prescribed for the post of OSD under the advertisement of 18.6.1985. The appellant was appointed pursuant to this advertisement. He had to meet the qualifications prescribed. The appellant has drawn our attention to Rule 38 of the Assam Legislative Assembly Secretariat Rules, 1986, under which all orders made or actions taken before these rules came into force shall be deemed to have been made or taken as if these were made or taken under these rules. He had to meet the qualifications prescribed. The appellant has drawn our attention to Rule 38 of the Assam Legislative Assembly Secretariat Rules, 1986, under which all orders made or actions taken before these rules came into force shall be deemed to have been made or taken as if these were made or taken under these rules. Rule 38 can apply only to orders lawfully made or action lawfully taken before these Rules came into force. It cannot validate an action which was not lawful at inception. The question which now shall arise is that whether the entire selection should be scrapped and the matter should be sent back to the Government to lay down the ^qualifications and experience as required under the Rules or we should uphold the selection of Dr. Bhattacharjee. I have ap­plied my mind to the factual matrix as well as to the law. I find it will be just and proper to scrap the entire selection and to send back the matter to the Government to lay down the qualifications and experience as required under the Rules as indicated above and thereafter to hold the selection. In the meantime, the Government may al­low the continuance of the person holding the post by virtue of the interim order of this court. If the Government thinks oth­erwise, the Government may deem fit and proper to give charge to another person who is senior and better qualified to the person now holding the post. A person jun­ior to the person holding the post shall not be brought in during the interval as in charge of the post. It is needless to say that Dr. Ananda Narzary who earlier failed to qualify in the interview shall also be eli­gible to apply in terms of the fresh adver­tisement when issued. The contention that the case of Dr. Narzary was not consid­ered is not correct inasmuch as the records produced by the learned Sr. Govt. advo­cate show that the petitioner appeared in the interview conducted by the APSC, but he did not qualify in the interview nor he had the experience as pointed by the Com­mission. It may be stated herein that after Dr. Goswami now on expiry of deputation has been reverted back to his parent de­partment. Dr. Govt. advo­cate show that the petitioner appeared in the interview conducted by the APSC, but he did not qualify in the interview nor he had the experience as pointed by the Com­mission. It may be stated herein that after Dr. Goswami now on expiry of deputation has been reverted back to his parent de­partment. Dr. Goswami now has been ap­pointed as SDMO and PHC in the office of the Joint Director of Dhubri which is a post below the rank of Chief Medical and Health Officer or Additional Medical and Health Officer. It is needless to say that whole process of selection shall be com­pleted by the Government within a period of three months.