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2008 DIGILAW 449 (RAJ)

Krishna Murari v. R. P. S. C.

2008-02-14

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - The petitioner, initially preferred a writ petition, being S.B. Civil Writ Petition No. 1304/1999 praying for quashing the order dated 10.2.1999 (Annexure-2) whereby his candidature was rejected by the Rajasthan Public Service Commission for the post of Lecturer on the ground that he did not possess the requisite experience. However, pending this writ petition Rajasthan Public Service Commission proceeded further in recruitment process and selected Mr. Bal Krishna Sharma, as a Lecturer (Kaya Chikitsak). 2. Consequently, the selected person was appointed as Lecturer. Being aggrieved against it, the petitioner has preferred another writ petition, being S.B. Civil Writ Petition No. 2710/1999 praying for setting aside order dated 29.04.1999 (Annexure-6) by which respondent No. 2 (Mr. Bal Krishna Agarwal) was appointed as Lecturer (Kaya Chikitsa), while rejecting the candidature of petitioner to the solitary post of Lecturer (Kaya Chikitsa). 3. The core contention of petitioner is that his candidature for said post has wrongly been rejected, as he possessed the requisite qualification and experience for appointment as Lecturer (Kaya Chikitsa). At the same time he has also questioned the appointment of respondent No. 2 on the ground that he was over age and was falling beyond the upper age limit of 40 years prescribed for the aforesaid post. On the other hand respondents submitted that the petitioner was not having requisite experience, his candidature was, therefore, rejected. So far as respondent No. 2 is concerned he was within age as per conditions, prescribed in the advertisement. 4. In the light of above submissions made by the learned counsels the petitioner and the respondents I am disposing off both the writ petitions by common judgment. 5. The recruitment to the posts Demonstrator and Lecturer are governed by the provisions of the Rajasthan Ayurvedic Unani, Homeopathy and Naturopath Service Rules 1973 (for short Rules, 1973). As per the Schedule appended to the said Rules Demonstrator is -the lowest post and same can be filled in 100% by direct recruitment, for which detailed procedure have been prescribed in part-IV of the Rules, 1973. Next higher post is the Lecturer, which can be filled in 50% by direct recruitment and rest 50% by promotion from the post of Demonstrator. Next higher post is the Lecturer, which can be filled in 50% by direct recruitment and rest 50% by promotion from the post of Demonstrator. It is manifest from perusal of appendix that no minimum qualification has been prescribed for the post of Lecturer, which are required to be filled in by direct recruitment, but it has been prescribed that basic qualification and experience etc. may be prescribed by the University of Rajasthan from time to time. Ordinance 65 of the Rajasthan University states about academic qualification and teaching experience. As per the same three year teaching experience in the subject concerned as Demonstrator is essential for a candidate to be appointed on the post of Lecturer. 6. As regards petitioner, he did his Post Graduate Degree in Ayurved Vachaspati (i.e. M.D. in Ayurved) in Kaya Chikitsa from the University of Rajasthan, Jaipur in the year 1988-89. He was appointed as Ayurved Chikitsak. By order dated 09.05.1990 he was appointed as demonstrator in Kaya Chikitsa in Madan Mohan Malviya Govt. Ayurved College. The petitioner thus joined his duties in pursuance of order dated 09.05.1990 from 17.05.1990. Since, his appointment as Demonstrator record is as under : S.No. Subject Standard Date Duration 1. Kaya Chikitsa Graduation 17.5.90 to 9.3.91 10 months 2. Shalya Shalakya (Surgery ENT) Graduation 30.3.91 to till date More than 8 yrs. 3. Kaya Chikitsa Diploma Nurse/Compounds 1.7.91 to 22.12.98 More than 8 yrs. 7. Thus, the petitioner has almost 9 years experience as Demonstrator. The perusal of the record that the petitioner has more than 3 years experience as demonstrator and it prima facie appears that he is eligible to be considered for appointment as Lecturer. 8. Against this, the counsels for respondents have disputed the contention of petitioner by placing before the Court the relevant provisions providing for the qualification for appointment to the post of Lecturer (Kaya Chikitsa). The perusal of these provisions clearly shows that requisite experience for the post of Lecturer in the subject of Kaya Chikitsa is three years as Demonstrator/Teacher Clinic Registrar in the subject concerned i.e. Kaya Chikitsa at the graduation level not at the diploma level. Experience gained by the petitioner as Demonstrator in teaching Diploma Nurse/Compounder courses cannot be treated at par with the experience graduation level. Experience gained by the petitioner as Demonstrator in teaching Diploma Nurse/Compounder courses cannot be treated at par with the experience graduation level. Similar controversy came before the Government and vide an order dated 6.12.1986 it was clarified that experience of Demonstrator/Lecturer in Nurse/ Compounder Training Centre cannot be treated equivalent to experience at Graduation or Post-Graduation level. Qualification and experience are two different factors. A candidate may have qualification, but not necessary that he will also have experience. Unless both conditions are fulfilled one cannot claim for appointment as Lecturer. 9. Considering the candidature in the light of these facts it is clear that the Chikitsa. Though his overall experience as Demonstrator is more than 8 years but in absence of experience as Demonstrator for minimum period of 3 years in the discipline of Kaya Chikitsa he cannot claim for consideration of his candidature. 10. The second contention raised by the petitioner is with regard to appointment of respondent No.2 to the post of Lecturer (Kaya Chikitsa). The selection of respondent No.2 is disputed by petitioner only on the ground of him being crossed the upper age limit which is stated as 40 years in the advertisement as well as the rules. It is stated that respondent No.2 as per advertisement No. 4/97-98 dated 24.10.97 (Annex.2) the candidate serving in Govt. Department on substantive basis must not have crossed 40 years of age on 1.1.1998. So far as respondent No. 2 is concerned he had already crossed 40 years of age on 16.07.1996. Thus, on 1.1.1998 his age was 41 years 5 months and 16 days. Apparently, it appears that the respondent No.2 was already overage. On the contrary the counsels for respondents have stated that the respondent No. 2 was given additional charge of lecturer in Kaya Chikitsa in Madan Mohan Malviya Ayurvedic College, Udaipur by order dated 22.09.1997. Thus, on 1.1.1998 his age was 41 years 5 months and 16 days. Apparently, it appears that the respondent No.2 was already overage. On the contrary the counsels for respondents have stated that the respondent No. 2 was given additional charge of lecturer in Kaya Chikitsa in Madan Mohan Malviya Ayurvedic College, Udaipur by order dated 22.09.1997. The respondents counsels stated in such an event rule 9(v) of the Rajasthan Ayurvedic, Unani, Homeopath and Naturopathy Service Rules, 1973 comes into play, which reads as under : "a person appointed temporarily + `in the service' shall be deemed to be within the age limit had he been within the age limit then he was initially appointed even though he has crossed the age limit when he appears finally before the commission and shall be allowed up to two chances had he been eligible as such at the time of initial appointment." 11. Thus, when the respondent No.2 was given additional charge i.e. on 22.09.1997 he was well within the age and thus eligible at that time. 12. The counsel for petitioner argues that the benefit of the above cannot be claimed by respondent No.2 due to the overriding effect of sub-Rule (vii) of Rule 9 which of the Rules which read as : "Notwithstanding anything contained contrary in the Rules in the case of persons serving in connection with the affairs of the state in the substantive capacity, the upper age limit shall be 40 years for Director Recruitment to the post filled in through Commission by interview. This relaxation shall not apply to urgent temporary appointments." 13. There seems to be some sense in the objection raised by learned counsel for petitioner but having a liberal view point and reading both the provisions harmoniously, I am of the view that benefit of Rule 9(v) need not be detached from the private respondent. Moreover, this petition has been filed way back in 1999 and considerable time has already elapsed till now, there seems no justification in unsettling the selection/appointment duly made by itself belted stage and, therefore, having heard the learned counsel of both the side and in the light of the above observations both the petitions are hereby dismissed with no order as to costs.Both Writ Petition Dismissed. *******