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Himachal Pradesh High Court · body

2013 DIGILAW 34 (HP)

Tek Chand v. State of H. P.

2013-01-07

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT Dharam Chand Chaudhary, Judge. Since the point in issue in these writ petitions is common, therefore, vide order dated 9.7.2012 passed in CWP No.2245/2012 were clubbed together. Hence, the same can conveniently be disposed of by a common judgment in order to avoid repetition of respective contentions and conflicting findings. 2. Qualification of petitioners in all these writ petitions is diploma in Medical Radiology Technology. While the petitioners in CWP No.2245/2012 have undergone this diploma from Shivalik Paramedical Training Centre, Una, during the year 2004/05, the petitioners in CWP Nos. 7373/2011, 7945/2011 and 8388/2011 from Bhuvneshwari PMTC, Bahot, District Mandi in the year 2008/09 and 2007. The petitioners are duly registered as Radiographers with H.P. Para Medical Council. The educational qualification certificates of petitioners in CWP No.2245/2012 are Annexure P-3 (Colly), whereas that of Karam Singh, petitioner in CWP No.7373/2011 Annexure P-5; Devender Kumar & Santosh Kumar petitioners in CWP No. 7945/2011 Annexures P-7 and P-8 and that of petitioner Raksha Sharma in CWP No.8388/2011 Annexure P-5. The certificates of registration of petitioners in CWP No.2245/2012 are Annexure P-4 (Colly) whereas that of petitioner Karam Singh in CWP No.7373/2011 Annexure P-6, petitioners Davinder Kumar and Santosh Kumar in CWP No.7945/2011 Annexures P-9 and that of Raksha Sharma petitioner in CWP No.8388/2011 Annexure P-6. 3. The petitioners claim to be qualified for recruitment to the post of Radiographer in the Department of Health and Family Welfare, Govt. of H.P. The Recruitment and Promotion Rules annexed to the reply filed on behalf of 1st and 2nd respondents in these writ petitions provide for the following qualification for the post of Radiographer: Minimum a) ESSENTIAL QUALIFICATION(S) educational and i) 10 PLUS 2 IN Science or its other equivalent from a recognized qualifications University/Board. required for direct recruit(s): ii) Diploma in Radiology or its equivalent from a recognized University or an Institution duly recognized by the Central/State Government. 4. The 2nd respondent made requisition to the rd respondent for filling up 289 posts of Radiographer on contract basis through Rogi Kalyan Samiti. Consequently, the 3rd respondent issued advertisement dated 3.6.2011, Annexure P-1 on the record of CWP No.2245/2012. Essential qualification for the post advertised is the same as in the Recruitment and Promotion Rules, cited supra. Pursuant to advertisement Annexure P-1, petitioners seem to have applied for the post in question. Consequently, the 3rd respondent issued advertisement dated 3.6.2011, Annexure P-1 on the record of CWP No.2245/2012. Essential qualification for the post advertised is the same as in the Recruitment and Promotion Rules, cited supra. Pursuant to advertisement Annexure P-1, petitioners seem to have applied for the post in question. Their candidature was, however, rejected for want of fulfillment of essential qualification as is apparent from the intimation Annexure P-5, given to petitioner No.1 in this writ petition. Aggrieved thereby the petitioners have approached this Court by filing these writ petitions. 5. Admittedly, the petitioners are not 10+2 with Science as one of the subjects. No doubt they have undergone diploma in Medical Radiology Technology from the Institutes recognized by the H.P. State Council for Vocational Training, however, since 10+2 with science is the qualification for the post in question, therefore, for want of such qualification, the candidature of the petitioner has been rejected. They, however, claim that since one time relaxation in educational qualification was granted by the respondent-State, therefore, they are entitled to be considered for the post in question. They have based their claim on the letter dated 22.12.2007 Annexure P-2 of Director, Technical Education, Vocational & Industrial Training, Himachal Pradesh, Sundernagar. A perusal thereof reveals that one time relaxation in essential qualification in Recruitment and Promotions Rules, meant for filling up the post of Sr. Laboratory Technician, has been granted by the competent authority in favour of those, who are matriculate diploma holders in laboratory technology from a recognized Institution as on 13.9.2007. Respondent-State has also decided to give relaxation to all persons, who have done diploma in respective field with Matric as on 13.9.2007, subject to the condition that they are enrolled with the H.P. Para Medical Council by 31st December, 2007. Also that, all trainees, who have undergone DML/DMRT (Diploma in Medical Radiology Technology/Diploma in Medical Laboratory Technology), would be eligible to appear in interview for future vacancies. Similar even is the stand of respondent No.4 in reply to the writ petition, which reads as follows: “That the contents of this para do not pertain to the replying respondent hence need no submission. However, it is respectfully submitted that the posts were advertised by the Director, Health i.e. respondent No.2 (Publication of advertisement enclosed as Annexure P-1 with the petition). However, it is respectfully submitted that the posts were advertised by the Director, Health i.e. respondent No.2 (Publication of advertisement enclosed as Annexure P-1 with the petition). It is further submitted that the respondent Department had taken up the matter with respondent No.2 whereby it was informed that the course related to DMLT/DMRT was approved after consideration with Health Department vide its letter dated 13/9/.2004 (copy of letter enclosed as Annexure R-1). The respondent No.2 2waqs accordingly asked to consider this fact appropriately. Respondent No.2 vide its letter dated 4/12/2010 informed that the relaxation shall be available to those persons who have done diploma in respective filed upto 13/9./2007 and duly registered with Para Medical Council upto 31/12/2007 for availing this relaxation (copy of the letter dated 4/12/2007 is enclosed as Annexure R-2). 6. Annexed to the reply is the letter dated 13.9.2007 of the 4th respondent addressed to 2nd respondent, making thereby recommendation that the candidates, who have passed DMLT/DMRT courses with Matric/Higher Secondary Part-I as the qualification, be not made to suffer on account of prescribing 10+2 (Science) as essential qualification for the post of DMLT/DMRT, as the qualification for imparting training to the candidates was prescribed as Matric/Higher Secondary Part-I or equivalent with Science (Physics & Chemistry) with the approval of the Government. 7. In response to letter Annexure R-1, the reply of 2nd respondent is Annexure R-2. A perusal thereof reveals that while inviting the attention of respondent No.4 to the Recruitment and Promotions Rules for the post of Laboratory Technician in the Department of Health and Family Welfare, H.P., it was further conveyed that the government has decided to grant relaxation in essential qualification in R&P Rules for the post of Sr. Lab. Technician as on 13.9.2007, who are Matriculate with Diploma in Laboratory Technology from a recognized Institution. Further, that such relaxation will be given to all persons who have done diploma in respective field with Matric as qualification as on 13.9.2007. 8. It is seen from Annexure R-2 supra that the provision qua relaxation was made thereby in the R&P rules meant for filling up the post of Laboratory Technician alone. Further, that such relaxation will be given to all persons who have done diploma in respective field with Matric as qualification as on 13.9.2007. 8. It is seen from Annexure R-2 supra that the provision qua relaxation was made thereby in the R&P rules meant for filling up the post of Laboratory Technician alone. No doubt this document speaks about such relaxation available to all persons who have done diploma in the respective field with Matric as on 13.9.2007, however, there is nothing specific that such decision for granting relaxation in essential qualification in the Recruitment and Promotion Rules has been taken to the category of Radiographer also. It is significant to note that Appointing Authority is not the 4th respondent, but it is the 2nd respondent. In reply to the petition filed on behalf of respondents No. 1 and 2 on the affidavit of 2nd respondent, there is denial to any such relaxation granted in the R&P Rules applicable to the category of Radiographer also, with the specific stand that such posts, after coming into being the R&P Rules Annexure R-1 and further amended vide Notification dated 31.1.2007 Annexure R-2/II to the reply filed on behalf of the said respondent, are being filled up strictly in accordance with the rules. The stand of respondents No.1 and 2 in reply to the writ petition reads as follows: “1. That it is very humbly submitted that the averments advanced by the petitioners by way of instant petition are not at all sustainable in the eye of law as well as the facts on record, and the same as such are denied in toto. It is added that the recruitment & Promotion rules in respect of the category of the Radiographers stood notified long back in the year 2001 vide Notification dated 23-3-2001, attested photocopy whereof is placed on record as Annexure R-2/1 for kind perusal of the Hon’ble Court, in exercise of the powers conferred by proviso to Article 309 of the Constitution of India and as such have the constitutional force of laws, thereby amending the essential requisite educational qualification from matriculation to 10+2 in Science or its equivalent from a recognized University/ Board. It is added that after inception of Contractual Policy in the State since all the appointments were/are to be made on contractual basis, accordingly the R&P Rules notified on 23-3-2001 were further repealed vide Notification dated 31-1-2007 to the extent of inserting the provisions with regard to essential criteria for contractual appointments, and thereby retaining the essential educational qualification same as existing in Notification dated 23-3-2001, the attested photocopy whereof is placed on record as Annexure R-2/II for kind perusal of the Hon’ble Court. It is further submitted that after the years 2001, all the posts of Radiographers in the replying respondent department have been/are being filled up on the basis of essential requisite educational qualification as 10+2 in Science strictly in accordance with the R&P Rules, which are legal and valid and as such deserves to be upheld as good in the mater. 2. That it is submitted that in order to fill up some vacant posts of Radiographers, a requisition was accordingly sent by the replying Respondent Department to the concerned recruiting agency i.e. the Respondent No. 3 strictly in accordance with the existing R&P rules, where after the advertisement dated 3-6-2011 (Annexure P-1) has been published accordingly by the said agency in a proper manner. It is added that the educational qualification prescribed since long in the Year 2001 is being challenged by the Petitioner at this belated stage to their choice, convenience and suitability, which is not at all sanctioned under any law. It is further submitted that the Respondents State and the Department are well within their right to fill up the vacancies in accordance with the R&P Rules, and any action on their part could have been termed as violation of Natural Justice and service jurisprudence, had they ever acted in contravention of the said R&P Rules. Hence, the petition filed for an inadmissible claim deserves to be dismissed straightway in the interest of Justice. 3. That it is further submitted that the plea advanced by the Petitioners on the basis of the letters of correspondence exchanged between the various authorities including those made vide letter dated 22-12-2007, Annexure P-2, is not at all sustainable in that such correspondence do not make them ipso facto legally entitled for any such inadmissible claim till any amendment in the existing R&P Rules, is carried out under the constitutional provisions after the approval of the Government. It is added that while carrying any amendment in the R&P Rules, so many relevant factors have to be seen as it is not carried out simply on the recommendations to the choice, convenience and suitability of any individuals including the Petitions. Moreover, in the instant case of seeking amendments with regard to the category of Radiographer, it is also included/includes the contravention of the essential requisite educational qualification as the eligibility for admission in the SCVT Course like undergone by the present Petitioners was matriculation whereas R&P Rules provide the requisite educational qualification necessarily to be as 10+2 with Science. Hence in view of above also, the claim advanced is not legally sustainable. 4. That it is submitted that the Petitioners have obtained their Diploma under SCVT at their own and at no stretch of time while seeking such admission, Petitioners were ever given any assurance by the Respondent Department for their appointment in a direct manner over and above the existing R&P rules. It is further submitted that in case the R&P rules are amended to the choice, convenience and suitability of any individual like the Petitioners, it would not only frustrate the legal sanctity of the Rules having the constitutional force, but at the same time would also invite the multiplicity of litigations as the persons in other categories would also start demanding amendments in the existing provisions of the respective R&P rules, without there being any end to it besides also hindering the lawful forces of filling up of the vacancies of radiographers in detriment to patients care and public at large. Hence, the claim advanced by way of the instant petition is denied in toto. 5. That it is submitted that other similarly situated persons like that of the present Petitioners have also filed the CWP Nos. 7373/2011, 8388/2011 and CWP No. 7945/2011 for the same and similar cause of action, which are also pending adjudication and decision before this Hon’ble Court. It is, therefore, very humbly prayed that the matter being connected one, all the petitions i.e. the present CWP No. 2245/2012 and CWP Nos. 7373/2011, 8388/2011 and CWP No. 7945/2011, may kindly be clubbed, heard together and a common Judgment of dismissal may kindly be passed in the interest of Justice.” 9. It is, therefore, very humbly prayed that the matter being connected one, all the petitions i.e. the present CWP No. 2245/2012 and CWP Nos. 7373/2011, 8388/2011 and CWP No. 7945/2011, may kindly be clubbed, heard together and a common Judgment of dismissal may kindly be passed in the interest of Justice.” 9. Having gone through the record and taking into consideration the submissions made on both sides, admittedly the relaxation in educational qualification in favour of those diploma holders Lab. Technicians, who have acquired such qualification as on 13.9.2007, has been granted subject to the condition that their registration with the H.P. Para Medical Council must be on or before 31.12.2007. Communication Annexure R-2 to the reply filed on behalf of respondent No.4 no doubt refers to the further decision of the Government to give such relaxation to other persons also, who have undergone diploma in the respective field with Matric as qualification as on 13.9.2007. Nothing, however, can be made out from this document that such relaxation has been granted in educational qualification to the category of petitioners also i.e. Radiographer. The matter may be under consideration of the respondent-State, but as per the status as reflected in reply to the writ petition filed on behalf of respondents No.1 and 2, recruitment to the post of Radiographer is still being made from amongst the persons eligible as per R&P Rules. Communication Annexure P-2 issued by respondent No.4 to one of the Institutions, i.e. Shivalik Para Medical Training Centre, Shanti Estate, Chowkiminar, Una, from where the petitioners in CWP No.2245/2012 have undergone the diploma course in Medical Radiology Technology, no doubt reveals that for future vacancies the candidates having undergone diploma in Laboratory Technology and Medical Radiology Technology from the said Institute, will be eligible to appear in the interview, however, it is without any basis as the competent authority, i.e. respondents No.1 and 2, has not taken any decision so far for graining relaxation to the category of Radiographer also. Otherwise also, respondent No.4 being not the Appointing Authority is not competent to hold out assurance to any one. 10. The candidates having matriculation qualification may be qualified for seeking admission to the course, however, unless and until a provision qua relaxation in the existing R&P Rule is made, any such assurance does not ipso facto make anyone entitled for being considered to the post in question. 10. The candidates having matriculation qualification may be qualified for seeking admission to the course, however, unless and until a provision qua relaxation in the existing R&P Rule is made, any such assurance does not ipso facto make anyone entitled for being considered to the post in question. It is well settled at this stage that Appointing Authority alone is competent to prescribe rules for a post and the Court/Tribunal should not prescribe qualification nor entrench upon the power of the concerned authority so long as the qualification prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, Statute and Rules. While forming such an opinion, I am taking support from a judgment of the Hon’ble Apex Court in Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh Vs. Usha Kheterpal Waie and others, (2011) 9 SCC 645 . 11. In the case in hand, the essential qualification prescribed for the post in question is 10+2 in Science or its equivalent from a recognized University/Board with Diploma in Radiology. There is nothing in these writ petition as to how the qualification prescribed under the Rules is in conflict with the functions and duties attached to the post. No doubt relaxation in qualification has been granted by the respondent-State to the Lab. Technicians as is apparent from the perusal of Annexure R-2 to the reply filed on behalf of respondent No.4 and it also refers to some decision taken by the Government to give relaxation to all persons having done diploma in respective field with Matric as qualification, but nothing has come on record that such decision in the case of Radiographers has also been taken and stands implemented. 12. On the other hand, the stand of respondents No.1 and 2, as noticed supra, is that recruitment to the post of Radiographer is still being made as per the R&P Rules, which provide 10+2 with Science as one of the qualifications for the post in question. The fact, however, remains that it was for the Appointing Authority and for that matter the respondent-State to have clarified the import and true meaning of the decision taken for grant of relaxation to other persons also having undergone diploma in the “respective field” with Matric as qualification as on 13.9.2007. The fact, however, remains that it was for the Appointing Authority and for that matter the respondent-State to have clarified the import and true meaning of the decision taken for grant of relaxation to other persons also having undergone diploma in the “respective field” with Matric as qualification as on 13.9.2007. In case such reference is in the context of Radiographers also, who have undergone Diploma in Medical Radiology Technology with Matric as one of the qualifications, as on 13.9.2007, like the petitioners, it is legitimately expected from the respondents to give due effect to the decision so taken. This Court thus refrains from interpreting the words referred hereinabove in the communication Annexure P-2 and without making any observation on merits in that regard, leave it open to be explained/interpreted by respondents No.1 and 2. 13. In view of the position explained hereinabove, relief sought in this writ petition cannot be granted. Moreover, a direction to the petitioners to make a representation to respondent No.2, highlighting their grievances therein and a direction to the said respondent to consider the same in the light of the averments made in these writ petitions and also the observations hereinabove, would serve the ends of justice. No other and further relief can also be granted for the reason that during the pendency of these writ petitions, the respondents have completed the selection process and even filled up the advertised posts. The written instructions placed on record pursuant to order passed on 9.8.2012 no doubt reveal that 26 vacancies are still available, however, no proposal to seek approval from the Government to fill up the same is made so far. Respondent-State may fill up these posts in near future. However, the petitioners will only be entitled to be considered for these posts, if similar relaxation in educational qualification, as granted to the Laboratory Technicians, is granted to them also. It is respondents No.1 and 2, who alone are competent to take any decision in this behalf. 14. Petitioner Karam Singh in CWP No.7373/2011 having been registered with H.P. Para Medical Council on 1.3.2008 vide Annexure P-6 and one of the petitioners, namely Santosh Kumar in CWP No.7945/2011 on 31.1.2009 vide Annexure P-10, may not be eligible even if essential qualification is relaxed, as their registration with H.P. Para Medical Council is after 31.12.2007. 14. Petitioner Karam Singh in CWP No.7373/2011 having been registered with H.P. Para Medical Council on 1.3.2008 vide Annexure P-6 and one of the petitioners, namely Santosh Kumar in CWP No.7945/2011 on 31.1.2009 vide Annexure P-10, may not be eligible even if essential qualification is relaxed, as their registration with H.P. Para Medical Council is after 31.12.2007. However, without making any observation qua their respective claims on merits, their cases are also left to be examined by the respondent-State. 15. For all the reasons hereinabove, all writ petitions are disposed of with a direction to the petitioners to make a detailed representation and submit the same alongwith a copy of this judgment to the 2nd respondent. The said respondent shall consider and decide the same by a reasoned order after hearing the petitioners, within two months from the date of receipt thereof. If any process has been initiated or likely to be initiated to fill up the vacancies in the category of Radiographer as on today, there shall be a direction to the said respondent to defer the same till the representation submitted by the petitioners is decided. 16. With the above observations, the petition stands accordingly disposed of. Pending application(s), if any, shall also stand disposed of.