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2011 DIGILAW 695 (PNJ)

Parul Dham v. State Of Punjab

2011-03-03

AUGUSTINE GEORGE MASIH, RANJAN GOGOI

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Judgment Ranjan Gogoi, J. 1. With the consent of the parties, all the writ petitions were taken up for consideration together and are being disposed of by this common order. 2. A convenient manner of the disposal of the writ petitions would be to identify the issues involved in all the cases and thereafter deal with the writ petitions- in which all or some of the issues are involved. The final results of the petitions which have been placed before the Court by the respondents would facilitate the determination of the relief (s) that would be due to each of the petitioners. 3. The broad facts that will have to be noticed may be recapitulated by stating that on 02.05.2010, an advertisement was issued for filling up, inter-alia, 34 posts of Medical Officer (Dental). The educational and other qualifications for the post of Medical Officer (Dental), as specified in the advertisement, were a B.D.S. Degree with the added requirement that the candidates should be registered in part A of the register of the State Dental Council as prescribed by the Dentist Act, 1948. Clause 3(ii) stipulated that knowledge of Punjabi up to Matriculation Standard was essential and candidates who do not possess the said qualification will have to acquire the same within six months of their joining. A written test pursuant to the advertisement was held on 08.08.2010 and the result thereof was published on 07.09.2010. Subsequent thereto but before the interviews were held, a corrigendum dated 23.09.2010 was issued clarifying that a "candidate must have passed up to Matriculation Standard according to the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994". The aforesaid corrigendum was issued to really mean that a candidate to be eligible for appointment must have passed the Matriculation with Punjabi as one of the subjects, which is what the provisions of the 1994 Rules contemplate. Some of the candidates who did not have registration with the State Dental Council (Punjab Dental Council) were held to be disqualified. Further more, all candidates, who did not have Punjabi as one of the papers in the Matriculation examination, were also held to be disqualified. Accordingly, the writ petitions in question have been filed. 4. Some of the candidates who did not have registration with the State Dental Council (Punjab Dental Council) were held to be disqualified. Further more, all candidates, who did not have Punjabi as one of the papers in the Matriculation examination, were also held to be disqualified. Accordingly, the writ petitions in question have been filed. 4. The first issue that has arisen is whether the insistence of the State of Punjab that a candidate must have registration with the Punjab Dental Council is correct and valid or whether a candidate who is registered with any State Dental Council is eligible. The second issue that has been raised is whether the insistence on passing of Matriculation with Punjabi as one of the papers could have been introduced by the corrigendum dated 23.09.2010 at a stage when the result of the written test was published. The petitioners insist that it is the requirement spelt out in the advertisement that must be allowed to hold the field, namely, working knowledge of Punjabi up to the Matriculation Standard and not what has been brought in by the corrigendum dated 23.09.2010. The third issue that arises in the cases under consideration is whether the posts earmarked as backlog vacancies and current vacancies for S.C. (Majhbi/Balmiki) and S.C.(Others) could have undergone a change by way of reduction in the posts. In this regard, it is pointed out that in the advertisement issued, the total number of backlog and current posts for S.C. (Majhbi and Balmiki) was 4 and 3 (total 7) whereas for S.C. (others), it was 4 and 2 (total 6). By a corrigendum issued subsequently, the said number was reduced to 1 and 4 (total 5) and 0 and 4 (total 4) respectively. The said issue arises in the cases of some of the petitioners who contend that if the reserved posts which were originally advertised had not been reduced, they would have been selected for appointment. 5. The first issue i.e. with regard to registration is involved in CWP Nos.16462 and 17475 of 2010. At the hearing, learned Additional Advocate General, Punjab, Ms. Dayal, has made a statement that the State has now agreed to accept the registration with the Punjab Dental Council if made during the interregnum and to consider such candidates as eligible. 5. The first issue i.e. with regard to registration is involved in CWP Nos.16462 and 17475 of 2010. At the hearing, learned Additional Advocate General, Punjab, Ms. Dayal, has made a statement that the State has now agreed to accept the registration with the Punjab Dental Council if made during the interregnum and to consider such candidates as eligible. The petitioner in CWP No.16462 of 2010 who is otherwise eligible for appointment, has, in fact, registered herself with the Punjab Dental Council during the pendency of the present proceedings and, therefore, would be eligible to be appointed in terms of the stand taken by the State before the Court. The said issue i.e. of registration insofar as the petitioner in CWP No. 16462 of 2010, therefore, need not be dealt with any further. Insofar as the petitioner in CWP No.17675 of 2010 is concerned, we have noticed that the petitioner is not represented in Court. In fact, throughout the length of the hearing, the petitioner in the said writ petition had gone unrepresented. Therefore, we do not consider it necessary to adjudicate upon the said issue at the instance of the unrepresented petitioner in CWP No.17675 of 2010. 6. Insofar as the issue with regard to the passing of Matriculation examination with Punjabi as one of the subjects is concerned, we have noticed that the same prises in CWP Nos.16462, 17366, 17708, 17160 and 17621 of 2010. It has been argued that under the Punjab Civil Medical Group A (Dental) Service Rules, 2009 (hereinafter referred to as the "2009 Rules"), qualifications and experience for joining the service have been specified by Rule 5(2) read with Appendix-B. It has been pointed out that Appendix-B does not prescribe the requirement of passing of the Matriculation examination with Punjabi as one of the subjects. Pointing to Rule 8 of the 2009 Rules, it has been contended that the 1994 Rules apply only in a situation where any matter is not specifically provided in the 2009 Rules. As the matter Educational Qualifications has been provided for in the 2009 Rules, the requirement of passing the Matriculation examination with Punjabi as one of the subjects prescribed by the 1994 Rules will have no application. As the matter Educational Qualifications has been provided for in the 2009 Rules, the requirement of passing the Matriculation examination with Punjabi as one of the subjects prescribed by the 1994 Rules will have no application. That apart, it has been pointed out that the corrigendum introducing the said requirement in departure to what has been prescribed in the advertisement cannot have any binding legal effect in as much as the candidates had participated in the selection process on the basis of the terms of the advertisement which must be held to be binding. 7. Rule 5(2) read with Appendix-B prescribes the educational qualifications and experience for being eligible to be appointed in the Dental service. Rule 17 of the 1994 Rules prescribing Matriculation with Punjabi as one of the subjects is a general requirement that would apply to any and every post in Group A, B and C Services in the State of Punjab. Rule 17, by prescribing Matriculation with Punjabi as one of the subjects, does not really lay down an educational qualification. According to us, it lays down a general condition applicable to all services in the State of Punjab. Therefore, it is our considered view that Rule 5 of the 2009 Rules, prescribing the educational qualifications and experience, cannot stand in the way of the operation of Rule 17 of the 1994 Rules prescribing Matriculation with Punjabi as an additional requirement. The 1994 Rules being statutory in character, the terms of the advertisement, which runs contrary to the provisions of the statutory Rules, cannot be allowed to prevail over and above what has been prescribed by the statute. We, therefore, take the view that Rule 17 of the 1994 Rules must be allowed to have a free-play to determine the eligibility of the candidates and only those who have passed the Matriculation with Punjabi as one of the subjects would be eligible. We have also noticed that Rule 17 of the 1994 Rules carves out several exceptions to the main part of the Rule under which different categories of candidates are permitted to acquire the "qualification" (Matriculation with Punjabi) after joining service. In fact, the petitioner in CWP No.17160 of 2010 would be eligible in terms of the 4th proviso to Rule 17 as he belongs to the ex-serviceman category. 8. In fact, the petitioner in CWP No.17160 of 2010 would be eligible in terms of the 4th proviso to Rule 17 as he belongs to the ex-serviceman category. 8. Materials have been laid before us to show that the petitioners in CWP Nos.16462 and 17708 of 2010 have also passed the additional paper in Punjabi in the Matriculation examination of 2010 held by the Punjab School Education Board. The requisite certificates in this regard are dated 17.11.2010 and the examination was held in October, 2010. If that be so, subject to verification of the certificates and if the same are found to be valid there is no reason why the petitioners in these two cases should not be considered to be now eligible for the posts in question. However, the case of the writ petitioner in CWP No.17366 of 2010 will have to fail on the aforesaid score as also the case of the petitioner in CWP No.17621 of 2010 who otherwise also being at No.16 in the waiting list is not likely to get appointment in any event. 9. Coming to the third limb of the case, namely, the reduction of the number of posts for S.C. (Majhbi and Balmiki) and S.C. (others), we find that the said issue raised in CWP No.17366 of 2010 has become academic as the petitioner in that case is ineligible in terms of our conclusions recorded with regard to the necessity of passing the Matriculation examination with Punjabi as one of the papers. Insofar as the petitioner in CWP No. 17367 of 2010 is concerned, the issue has also become academic as the person, who belongs to S.C. (others), had secured the 4th position in order of merit and, he, therefore, would be otherwise eligible for appointment even against the posts mentioned in the corrigendum. Same is the position with regard to the petitioner in CWP No. 17708 of 2010 as she belongs to S.C. (others) category and had secured the Ist position in order of merit. Insofar as the petitioner in CWP No.17160 of 2010 is concerned, the question has also become academic as the said petitioner had secured the 1st position in the category of ex-serviceman and would be eligible for appointment. It is the remaining two writ petitions i.e. CWP Nos.18606 and 17621 of 2010 which would require further consideration. 10. Insofar as the petitioner in CWP No.17160 of 2010 is concerned, the question has also become academic as the said petitioner had secured the 1st position in the category of ex-serviceman and would be eligible for appointment. It is the remaining two writ petitions i.e. CWP Nos.18606 and 17621 of 2010 which would require further consideration. 10. The reduction of the number of posts of different reserved category candidates, which has been noticed above, is sought to be justified by the State by contending that the number of posts initially advertised was wrongly calculated and subsequently, on proper calculations being made, the backlog vacancies were found to be less (Majhbi and Balmiki) and non-existent in case of S.C. (others). The current vacancies for both the aforesaid categories were found to be more than what was initially advertised. The necessary corrections were, accordingly, made in the corrigendum published sub- sequently. If that be so and there being no contrary material on record we will have to proceed on the basis that the exercise undertaken by the State is correct and the number of posts had been altered for good and sufficient reasons. No directions or interference in this regard, therefore, will be justified. The cases of the petitioners in CWP Nos.18606 and 17621, therefore, has to fail. 11. Consequently, in the light of the above, all the writ petitions shall stand disposed of in terms of the findings and observations recorded above.