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Rajasthan High Court · body

2015 DIGILAW 775 (RAJ)

Mukesh Kumar Gupta v. State of Rajasthan

2015-04-07

BELA M.TRIVEDI

body2015
ORDER : 1. With the consent of the learned counsels for the parties, the petition has been heard finally at the admission stage. 2. The petitioner in the instant petition has challenged the action of respondent No.2-RPSC in selecting the respondent No.4 on the post of Associate Professor-Shalakya Tantra though he did not possess the requisite qualification for the post, and in placing the petitioner at serial No.1 in the reserved list. He has also sought direction against the respondents to give appointment to the petitioner on the said post. 3. The short facts giving rise to the present petition are that the respondent No.2 RPSC had issued the advertisement on 26.2.14 for the various posts of Professor and Associate Professor, in the Madan Mohan Malviya Government Ayurvedic College, Udaipur. As per condition No.2(kha) of the said advertisement, the educational qualification required for the post of Associate Professor was as under :- “Associate Professor:- (A) A degree in Ayurved from a University established by law in India or a statutory Board/Faculty/Examining body or Indian medicine or its equivalent as recognised under Indian Medicine Central Council Act, 1970; and (B) A Postgraduate Qualification in the subject/specialty concerned included in the Schedule to Indian Medicine Central Council Act, 1970; and (C) Teaching experience of 5 years, in concerned subject (Reader will be treated as Associate Professor); Desirable ; Research including Research degrees and has made some mark in the areas of scholarship as evidenced by quality or publication, contribution to educational renovation, design of new courses and curricula. “ 4. The petitioner being Postgraduate in the subject Shalakya Tantra and having teaching experience of more than 5 years had applied for the post of Associate Professor-Shalakya Tantra. As per the case of the petitioner, the respondent No.4 being Postgraduate in the subject Shalya Tantra and not Shalakya Tantra, was not qualified for the post in question as per the said condition of the advertisement. However, he was selected by the respondent No. 2 for the said post and the petitioner was placed in the reserved list as per the result dated 28.11.94 Annex.13 declared by the respondent No.2. According to the petitioner, the respondent No.4 was initially appointed on the post of Medical Officer in the Ayurvedic Department on 17.3.97, and thereafter was sent on deputation at Madan Mohan Malviya College, Udaipur on the post of Lecturer on 21.8.2007. According to the petitioner, the respondent No.4 was initially appointed on the post of Medical Officer in the Ayurvedic Department on 17.3.97, and thereafter was sent on deputation at Madan Mohan Malviya College, Udaipur on the post of Lecturer on 21.8.2007. Such appointments of the respondent No.4 and others as Lecturers are under challenge and made subject to the result of DBCWP No. 2576/11 which is pending before the Division Bench of this court. According to the petitioner, the Lecturers working on deputation or temporary basis cannot be considered for the post of Associate Professor as per the guidelines of the Central Council of Indian Medicine. The petitioner therefore has alleged that the respondent No.4 was neither Postgraduate in the concerned subject Shalakya Tantra nor had the requisite teaching experience of 5 years in the said subject and therefore was not qualified to be considered for the said post. 5. The petition has been resisted by the respondent No.2 by filing the reply. The other respondents have chosen not to file reply. It is contended by the respondent No.2-RPSC in its reply interalia that the respondent No.2 had received 6 applications for the post of Associate Professor-Shalakya Tantra. However, out of 6 candidates,candidates were absent. Hence, for the post of Associate Professor-Shalakya Tantra, the two candidates i.e. the petitioner and the respondent No.4 were considered. According to the respondent No.2, the petitioner was M.D.-Shalakya Tantra whereas the respondent No.4 was having Postgraduation in Shalya subject, and that the respondent No.4 was selected by the Interview Board on the basis of his performance at the time of interview, and as he was found more suitable. The petitioner was kept in the waiting list. 6. It is sought to be submitted by the learned counsel Mr. Amit Jindal for the petitiner that though the petitioner was fully qualified and eligible for the post in question, and though the respondent No.4 did not possess the requisite qualifications as per the advertisement, the respondent No.4 being not Postgraduate in the concerned subject/speciality i.e. Shalakya Tantra and he having not the requisite teaching experience for 5 years in the concerned subject, the respondent No.2 arbitrarily selected the respondent No.4 and placed the petitioner in the waiting list. According to the learned counsel, the respondents had decided to fill up all posts of Associate Professors from the Lecturers working in the respondent No.3 college, who were illegally appointed on the posts of Lecturers and whose appointments as Lecturer are subject to the result of the petition No. 2576/11. Relying upon the decision of the Apex Court in the case of State of Gujarat & Ors. Vs. Arvindkumar T. Tiwari and Anr. (2012) 9 SCC 545 , he submitted that the person who does not possess the requisite qualification cannot even apply for the recruitment since his appointment would be contrary to the statutory rules and therefore void in law. He further submitted that the notification of the respondent dated 25.1.11 making amendment in the Rules of 1973 and permitting the medical officers to work as Lecturers in respondent No.3 college was challenged before the Division Bench in the DBCWP No. 2576/2011 and the Division Bench had stayed the operation of the said notification vide order dated 7.9.11. The said order continued till 28.8.2014. According to him, working of the respondent No.4 as Lecturer during the period when the said stay order was operating, cannot be counted as valid teaching experience, apart from the fact that he was working as the Lecturer in Shalya Tantra and not in Shalakya Tantra. 7. However, the learned counsel Mr. Nitin Jain for the respondent No.2-RPSC submitted that as per the relevant Rules, in absence of the candidate of Postgraduate qualification in the concerned subject, the candidate of the allied subject could be considered, and the subject Shalya Tantra being the allied subject to the subject Shalakya Tantra, the respondent No.4 was considered and was found more suitable for the post. The Addl. Advocate General Mr. Abhinav Sharma appearing for the State and Mr. Shobhit Tiwari for the respondent No.4 have also supported the submissions made by the counsel Mr. Nitin Jain and further submitted that Shalya Tantra being a general subject and Shalkya Tantra being only a part of it, it could not be said that the respondnet No.4 was not eligible for being considered. 8. In the instant case, it is not disputed that as per the notification dated 19.6.13 Annex.9, the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 were amended and as per the amended Rules the post of Associate Professor could be filled up 100% by promotion. 8. In the instant case, it is not disputed that as per the notification dated 19.6.13 Annex.9, the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 were amended and as per the amended Rules the post of Associate Professor could be filled up 100% by promotion. However, as per the said Rules if suitable candidates for the promotion are not available, the post could be filled in by direct recruitment through RPSC. Accordingly, the respondents having not found any suitable candidate for promotion, the said post was advertised as per the advertisement dated 26.2.14 Annex.10. As per the condition No. 2(kha), the educational qualification for the said post was a degree in Ayurveda from the University established by law in India etc., and a Postgraduate qualification in the subject/speciality concerned included in the Schedule to Indian Medicine Central Council Act, 1970, and teaching experience of 5 years in the concerned subject. 9. Now the moot question that falls for consideration before this court is whether the respondent No.4 was possessing the requisite qualification as per the said condition? It is not disputed that the respondent No.4 is Postgraduate in the subject Shalya Tantra and not in the subject Shalkya Tantra. It is very pertinent to note that the post of Associate Professor in the subject Shalya Tantra was also advertised in the same advertisement in question. Hence, it could not be said that the requisite qualification and the eligibility criteria for both the posts were same. The condition No. 2(kha) of the advertisement specifically required Postgraduation in the concerned subject/speciality and the teaching experience of five years in the concerned subject i.e. in Shalkya Tantra only. The said criteria therefore could not be stretched to include postgraduation in Shalya Tantra or teaching experience in Shalya Tantra, as sought to be submitted by the learned counsels for the respondents. There is nothing on record to show that subject Shalya Tantra is the speciality to the subject Shalkya Tantra. On the contrary as per the said Rules of 1973 as amended in 2013 (Annex.9), Shalya is considered as an allied subject to the subject Shalkya Tantra, if the candidate of Postgraduate qualification in the concerned subject for the post of Lecturer is not available. On the contrary as per the said Rules of 1973 as amended in 2013 (Annex.9), Shalya is considered as an allied subject to the subject Shalkya Tantra, if the candidate of Postgraduate qualification in the concerned subject for the post of Lecturer is not available. Apart from the fact that the said note is appended and meant for the post of Lecturer and not for the post of Associate Professor, even if it is made applicable to the post of Associate Professor, then also at the most the subject Shalya could be treated as the allied subject to Shalkya Tantra, and not the speciality. Further, no such note is appended for the post of Associate Professor and therefore as per the Rules, 1973 and as per the condition mentioned in the advertisement, the candidates having Postgraduation in Shalkya Tantra and teaching experience for five years in the concerned subject Shalakya Tantra only would be eligible to apply for the post of Associate Professor-Shalkya Tantra. 10. Apart from the fact that the respondent No.4 was not Postgraduate in Shalkya Tantra, he also did not have requisite teaching experience in the said subject, and therefore also he was not eligible to apply for the post in question. Though it was sought to be submitted by the learned counsel for the respondent No.4 that the respondent No.4 had worked as Lecturer, he has failed to produce any material to substantiate the same. On the contrary from the Annex.2 it appears that he had worked as Lecturer in Shalya only.Though, his working as Lecturer is made subject to the result of the DBCWP No. 2576/11, such experience also could not be said to be the requisite experience for the subject in question. In that view of the matter, the court has no hesitation in holding that the respondent No.4 being not eligible to apply 11. Though it was sought to be submitted by the leanred counsels for the RPSC and the State Government that the respondent No.4 was found to be more suitable for the said post than the petitioner by the Interview Board at the time of interview, there is nothing on the record to show, muchless in the reply as to how the petitioner was not suitable for the post and how the respondent No.4 who was not even eligible to apply for the post was more suitable. As rightly submitted by the learned counsel for the petitioner relying upon the decision of the Apex Court in case of State of Gujarat Vs. Arvind Kumar Tiwari (supra), the person who does not possess requisite qualification cannot even apply for the recruitment for the concerned post, otherwise his appointment would be contrary to the statutory Rules and therefore void in law. In that view of the matter, the court is of the opinion that the selection of the respondent No.4 for the post of Associate Professor Shalakya Tantra is absolutely arbitrary and illegal and cannot be countenanced. It is not disputed that there were only two candidates who had appeared for the interview i.e. the petitioner and the respondent No.4. The respondent No.4 being not eligible to be considered for the said post, and the petitioner being the only candidate eligible and at No.1 in the waiting list, deserves to be appointed for the said post. 12. For the reasons stated above, the selection of the respondent No.4 made by the respondent-RPSC is quashed and set aside. The respondent Nos. 1 and 2 are directed to consider the petitioner for the appointment on the post of Associate Professor-Shalkya Tantra forthwith. The petition stands allowed accordingly. By this order, the stay application also stands disposed of.