Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1280 (MP)

Saroj Karothiya v. State of M. P.

2009-11-16

S.C.SHARMA

body2009
ORDER 1. The petitioner before this Court has filed this present writ petition being aggrieved by her non-selection on the post of Laboratory Technician. The contention of the petitioner is that she is a member of the Scheduled Caste and has secured 56% in the 10+2 examination with Physics, Chemistry and Biology. The petitioner has further stated that she has completed her graduation with Biology and has also obtained diploma in the Medical Laboratory Technology from the Government Women Polytechnic College. Gwalior with 79% marks. The petitioner has further stated that an advertisement was issued by the respondent inviting the applications for the post of Laboratory Technician as contained in Annexure P/5 and the petitioner, as she was fulfilling the requisite criteria prescribed for the post, has submitted an application in the prescribed format. The petitioner has further stated that as per the terms and conditions of the advertisement, the qualification required for the post of Laboratory Technician was Higher Secondary School examination/10+2 examination with Chemistry, Physics and Biology as subjects and one year training or diploma in Medical Pathology. The contention of the petitioner is that the respondent No.5, though was having 10+2 certificate to his credit, was not fulfilling the requisite qualification of diploma in pathology and in spite of the fact that he was not fulfilling the requisite qualification for the post of Laboratory Technician, the respondents have appointed him by passing an order dated 30th June, 2006. The petitioner has further stated that a merit list was prepared and she was placed at s1. No. 6 in the merit list and the person at s1. No.4 was also not offered appointment for want of requisite qualification and, therefore, the respondent No.5, Deepak Kumar was offered the appointment though he was not having the requisite qualification. The contention of the petitioner is that she being the meritorious candidate and possessing all the requisite qualifications is entited for the appointment with all the consequential benefits. 2. A reply has been filed on behalf of the respondent No.1 to 4 and the contention of the respondents is that the respondent No.5 was found to be more meritorious than the petitioner as he has secured 57.55% marks in the 10+2 examination. 2. A reply has been filed on behalf of the respondent No.1 to 4 and the contention of the respondents is that the respondent No.5 was found to be more meritorious than the petitioner as he has secured 57.55% marks in the 10+2 examination. It has also been stated that the respondent No. 5 has passed 10+2 examination with Medical Laboratory Technology as one of the subjects which includes laboratory medicine, clinical bio-chemistry and micro-biology which is of 02 years course and, therefore, the same was (i) considered as a diploma in the medical pathology because the post in question I , was of the Laboratory Technician and, therefore, the selection committee has held that the respondent No. 5 was more meritorious and holds the requisite qualification as per the terms and conditions of the advertisement. The respondent have prayed for dismissal of the writ petition. 3. No reply has been filed on behalf of the respondent No.5, Notices were issued by this Court on 24th November, 2006 to the respondent No.5 and, thereafter again this Court has directed the petitioner to pay fresh process fee for issuance of notice to the respondent No.5. Notices were issued afresh and the service report reflects that the notice has been served on the respondent No.5, however, none appears on behalf of the respondent No.5. 4. Heard learned counsel for the parties and perused the record. 5. In the present case, an advertisement was issued on 20th April, 2005 (Annexure P/5) under the drive to recruit the Scheduled Caste/Scheduled Tribe candidates and 04 vacancies were advertised for the Scheduled Caste and 02 vacancies were advertised for the Scheduled Tribe candidates. The petitioner as well as the respondent No.5 did submit the applications in response to the aforesaid advertisement. As per the qualification prescribed under the advertisement, a candidate was required to have a Higher Secondary School examination/10+ 2 certificate to his/her credit with Physics, Chemistry and Biology and was also required to have a diploma in Pathology/Laboratory Technician of 10 months duration/one year training in the concerned field. 6. As per the qualification prescribed under the advertisement, a candidate was required to have a Higher Secondary School examination/10+ 2 certificate to his/her credit with Physics, Chemistry and Biology and was also required to have a diploma in Pathology/Laboratory Technician of 10 months duration/one year training in the concerned field. 6. The State of Madhya Pradesh in exercise of the powers conferred under Article 309 of the Constitution of India has framed the rules relating to the appointment on the post of Laboratory Technician and the rules governing the field are known as the Madhya Pradesh Public Health and Family Welfare Department Non-Ministerial (Related to The Directorate of Health Services) Class-III Service Recruitment Rules, 1989. Schedule I appended to the aforesaid rules deals with the post of Laboratory Technician. As per Schedule I, there are 39 posts under the Leprosy Control Programme, under the National Malaria and Filaria Control Programme, there are 524 posts (Malaria) and 3 posts (Filaria) and about 600 posts under the Blood Bank and Laboratory Services. Schedule III appended to the rules provides for the essential qualification in respect of the Laboratory Technician and the same reads as under: (A) Leprosy Control Programme (1) Should have passed Higher Secondary Examination/12th Class examination in 10+2 Education system %% (In Science Discipline). (2) Should have passed prescribed 10 months/l year training course in Pathology Laboratory Technician or possess Diploma in Medical Pathology. (3) After appointment -- It is essential to pass the prescribed 9 months training course in Leprosy (as a Departmental Employee). (B) National Malaria and Filaria Control Programme (1) Should have passed Higher Secondary Examination/12th Class examination in 10+2 Education system %% (In Science Discipline). (2) Should have passed 10 months/l year training course in Laboratory Technician or Diploma in Medical Pathology. (3) After appointment - Departmental Training in Malaria and Filaria Technician course. (C) Blood Bank and Laboratory Services (1) Should have passed Higher Secondary Examination/12th Class examination in 10+2 Education system %% (In Science Discipline). (2) Should have passed 10 months/l year training course of Pathology Technician or Diploma in Medical Pathology. Thus, it is evidence that under the Recruitment Rules of 1989, the requirement of 10 months/one year training course in Pathology Laboratory technician is an essential qualification. The petitioner is holding the aforesaid essential qualification from a recognized institution. 7. (2) Should have passed 10 months/l year training course of Pathology Technician or Diploma in Medical Pathology. Thus, it is evidence that under the Recruitment Rules of 1989, the requirement of 10 months/one year training course in Pathology Laboratory technician is an essential qualification. The petitioner is holding the aforesaid essential qualification from a recognized institution. 7. The stand of there respondents is that the respondent No.5 is having 10+2 examination to his credit in the subject of medical laboratory technology. It has been further stated that the subject of medical laboratory techno logy includes the laboratory medicine, clinical bio-chemistry and micro-biology which is also a 02 years duration course. It is pertinent to note that the so called two years course is not a specialised course but the respondent No.5 has studied class XI and class XII under the 10+2 system. The respondent No.5 was having one subject of laboratory medicine in class XI and class XII, like any other subject such as Physics, Chemistry, Mathematics and Biology and it was not a two years course in the laboratory medicine alone. The essential qualification prescribed under the statue provides that a candidate should have passed Higher Secondary School examination/10+2 system of education in the Science discipline· and, therefore, the respondent No.5 was having a certificate (10+2) in the Science discipline and, therefore, it does not mean that it is 10 months/one year diploma course in the Medical Pathology. The petitioner in the present case has obtained a Diploma in Medical Laboratory Technology from the Government Women Polytechnic College, Gwalior which is an institution being run by the State Government and has acquired 79% marks in the aforesaid diploma course. Keeping in view the aforesaid, the petitioner was certainly having qualification as per the schedule appended to the Recruitment Rules of 1989 and also as per the terms and conditions of the advertisement. No document has been filed by the respondents/State Government in respect of the qualification as stated in paragraph 5 of the return nor the minutes of the selection committee at any point of time has referred to any document, any notification, any rule or any statutory provision of law by which 10+2 examination with medical laboratory technology has been graded as equivalent to one year diploma in the subject of Medical Laboratory Technology. The minutes of the selection committee reflects that the respondent No.5 was more meritorious as he has secured 57.55% marks in the 10+2 system of examination whereas the petitioner has obtained 56% marks in the Higher Secondary examination. Resultantly, this Court is of the considered opinion that the respondent No.5 was not holding the requisite and essential qualification under the Recruitment Rules of 1989 and, therefore, the appointment is bad in law. It is pertinent to note that 04 posts have been reserved for the Scheduled Caste category and a merit list was prepared in respect of 08 candidates. The petitioner was placed at s1. No.6 in the merit list. The person who was placed at s1. No.4 was not offered appointment as he does not fulfill the requisite qualification and, therefore, the respondent No.5 who was placed at s1. No.5 in the merit list was offered appointment though he also does not fulfill the requisite qualification as per the Recruitment Rules of 1989 and the advertisement issued by the respondents for filling up the post of Laboratory Technician. Keeping in view the aforesaid, the petitioner who holds the requisite qualification automatically gets a right to the post of Laboratory Technician. 8. Resultantly, writ petition is allowed and disposed of. The appointment of respondent No.5 as contained in Annexure PII dated 30th June, 2006 is hereby quashed with the following directions: (a) the appointment order of respondent No.5 as contained in Annexure PII dated 30th June, 2006 is hereby quashed; (b) the respondents are directed to issue fresh appointment order in respect of the petitioner as she is the next available candidate in the merit list prepared by the respondents and is having all the requisite qualifications to her credit, within a period of four weeks from the date of receipt of a certified copy of this order; (c) the petitioner shall be entitled for the appointment from the same date others have been appointed by the respondents which includes the seniority and the notional fixation of salary, annual increments and all the other consequential benefits except the back wages. 9. With the aforesaid, writ petition stands allowed and disposed of.