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2017 DIGILAW 352 (RAJ)

Sulochana v. State of Rajasthan

2017-02-01

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. Under challenge is the order dated 9-7-2015 passed by the respondents rejecting the petitioner's representation, made pursuant to order dated 8-4-2015 in SBCWP No. 4298/2015, for appointment in view of the selection on the post of Assistant Radiographer in the Directorate, Medical & Health Services, following the advertisement dated 26-2-2013, only on the ground that a subsequent advertisement for the aforesaid post had been issued on 1-7-2013 consequent to which selections made under the previous advertisement where appointments had not been made, stood lapsed. FACTS: 2. The Directorate Medical & Health Services Rajasthan issued an advertisement on 26-2-2013 inviting applications for appointment to 218 posts of Assistant Radiographers and Lab Technicians under the Rajasthan Medical & Subordinate Service Rules, 1965 (hereinafter 'the Rules of 1965'). Having passed Senior Secondary examination with Biology and B.Sc. Radiation Technology, the requisite eligibility for the post of Assistant Radiographer, the petitioner applied under the OBC women category. The petitioner's merit was evaluated under the selection process on the basis of her percentage in the qualifying examinations and she was included in the select-list issued on 10-5-2013 for the post of Assistant Radiographer at Serial No. 46. She was then required to submit her original documents for verification on 13-5-2013. It appears that under the excitement of having been selected, the petitioner submitted the mark-sheet dated 23-5-2002 of her Senior Secondary examination (with Biology) as also of B.Sc. Radiation Technology (dated 26-6-2009) on 13-5-2013. The mark-sheet of B.Sc. Radiation Technology however reflected her as having failed in the subject of Basic Principles of Radio Therapy. The petitioner had passed the said back paper but unfortunately did not carry with her and submit the mark-sheet dated 10-6-2011 evidencing her having passed it. The petitioner having stated that she had no back paper in B.S. Radiation Technology was required to submit proof of having passed it. She then, on 14-5-2013 submitted the said mark-sheet dated 10-6-2011 in proof of having passed the back paper in Basic Principles of Radio Therapy. And therewith also submitted for good measure a provisional certificate dated 14-5-2013 issued by the Rajasthan University of Health Sciences showing her as having passed the 3 years B.Sc. Radiation Technology. The documents submitted on 14-5-2013 were accepted by the respondents without any objection, and rightly so as there was no prohibition statutory or executive from so doing. 3. And therewith also submitted for good measure a provisional certificate dated 14-5-2013 issued by the Rajasthan University of Health Sciences showing her as having passed the 3 years B.Sc. Radiation Technology. The documents submitted on 14-5-2013 were accepted by the respondents without any objection, and rightly so as there was no prohibition statutory or executive from so doing. 3. Albeit other candidates selected for the post of Assistant Radiographer under 10-5-2013, whose documents of eligibility were verified on 13-5-2013 were appointed sometime in June, 2013 (as admitted in court), the petitioner inexplicably was not so appointed despite her merit in select-list dated 10-5-2013 and having established that she had the requisite eligibility. Representations to respondents as also to the political executive were of no avail. On the petitioner's application under the provisions of Right to Information Act, 2005 (hereinafter 'the Act of 2005') seeking reasons for her non-appointment, she was informed vide letter dated 27-8-2014 that she could not be appointed even subsequent to submission of the supplementary mark-sheet dated 10-6-2011 on 14-5-2013 evidencing her having passed the back paper in Basic Principles of Radio Therapy, for the reason that the Principal Seat of this court at Jodhpur in SBCWP No. 9352/2013, Mahendra Kumar v. State of Rajasthan vide order dated 2-9-2013 had made a reference to the Larger Bench, relating to the recruitment process to the post of Assistant Radiographers following the advertisement dated 26-2-2013 and had directed that no selection to the post of Assistant Radiographer pursuant to the said advertisement be made till the decision of the Larger Bench. The petitioner was informed that the State of Rajasthan has filed a Special Leave Petition before the Hon'ble Apex Court against the order dated 2-9-2013 in SBCWP No. 9352/2013 and the issue of her appointment would be considered following its disposal. 4. It appears that the said Special Leave Petition against the order dated 2-9-2013 in the case of Mahendra Kumar (supra) was apparently withdrawn in first week of January, 2015. Yet the petitioner was not appointed to the post of Assistant Radiographer despite her having been selected in May, 2013 pursuant to advertisement dated 26-2-2013. 5. Now helpless and aggrieved of the stark contravention of her legal right, the petitioner filed writ petition No. 4298/2015 before this Court. Yet the petitioner was not appointed to the post of Assistant Radiographer despite her having been selected in May, 2013 pursuant to advertisement dated 26-2-2013. 5. Now helpless and aggrieved of the stark contravention of her legal right, the petitioner filed writ petition No. 4298/2015 before this Court. That came to be disposed of as withdrawn on 8-4-2015 on the petitioner's counsel, seeking permission for the petitioner to make a representation before the respondents ventilating her grievance of non appointment to the post of Assistant Radiographer despite her selection. The petitioner then made a representation seeking appointment to the post of Assistant Radiographer. However, vide the impugned order dated 9-7-2015 it has been rejected on the ground that in the meantime a second advertisement for recruitment to the post of Assistant Radiographer was published by the respondent department on 1-7-2013, consequent to which the selection process with reference to advertisement dated 26-2-2013 stood lapsed. Resultantly appointment thereunder even to those on the select-list dated 10-5-2013 could not be made. Hence this petition. 6. Mr. Anoop Dhand, counsel for the petitioner submitted that the fact of petitioner's inclusion in the select-list of 10-5-2013 at Serial No. 46 on the post of Assistant Radiographer pursuant to advertisement dated 26-2-2013 for recruitment to 218 posts is not in dispute. It is also not in dispute that the petitioner had submitted her original documents for verification on 13-5-2013 and 14-5-2013. It has been submitted that in response to the petitioner's application under the Right to Information Act, 2005, the respondents vide letter dated 27-8-2014 informed the petitioner that her appointment was approved on 4-9-2013, yet could not be made due to the restraining order dated 2-9-2013 in SBCWP No. 9352/2013 (Mahendra Kumar v. State of Rajasthan) passed by the court at the principal seat of this court at Jodhpur. Even after withdrawal of the appeal there against, the petitioner continued to be arbitrarily denied appointment to the post of Assistant Radiographer. Mr. Anoop Dhand submitted that the issue of the subsequent advertisement dated 1-7-2013 for the post of Assistant Radiographer in the department of Medical & Health Services could be of no relevance to the denial of appointment to the petitioner as Assistant Radiographer. He submitted that the petitioner's case is not one of Operation of the Reserve List for appointment following fresh advertisement for appointment to the post in issue. He submitted that the petitioner's case is not one of Operation of the Reserve List for appointment following fresh advertisement for appointment to the post in issue. It was submitted that the petitioner was on the select-list which has been operated and less meritorious already appointed. He further submitted that the illegality of persons less meritorious than the petitioner having been appointed on the post of Assistant Radiographer cannot be buried/absolved for reason of a subsequent advertisement for the post of Assistant Radiographer. The restraint order dated 2-9-2013 in SBCWP No. 9352/2013 (Mahendra Kumar v. State of Rajasthan) did not relate to the petitioner's appointment despite her inclusion in the select-list dated 10-5-2013, more particularly when those less meritorious than her on the said select-list were appointed. If the respondents had any manner of doubt they should have sought clarification from the court or required the petitioner to do so. Neither of the two options was taken. In the circumstances, the respondents have arbitrarily failed to appoint the petitioner as Assistant Radiographer despite her selection on 10-5-2013 and submission of her original documents on 13-5-2013/14-5-2013 evidencing her eligibility. The respondents cannot take advantage of their own wrong/lethargy/insensitivity. 7. Mr. Kushal Singh appearing on behalf of Mr. Sanjay Sharma, GC has submitted that in view of the circular dated 19-7-2001 regarding "Direct recruitment through the Rajasthan Public Service Commission-Operation of the Reserve List" the petitioner could not and cannot be appointed on the post of Assistant Radiographer pursuant to advertisement dated 26-2-2013 despite her selection and merit even while those less meritorious have been appointed. This in view of the issue of a subsequent advertisement dated 1-7-2013 for recruitment to the same post. He has drawn attention of the court to the penultimate para of the circular dated 19-7-2001 issued by the Principal Secretary, DOP Government of Rajasthan, which reads: "once a fresh process of recruitment starts, then the whole selection process previously held and the waiting list lapses, and if any vacancy could not be filled for any reason, then it should be deemed to have lapsed", as such vacancy is to be filled up only through the fresh process of recruitment to be conducted through the Rajasthan Public Service Commission. Mr. Mr. Kushal Singh submitted that in the circumstances even though selected to the post of Assistant Radiographer pursuant to the select-list dated 10-5-2013 following the advertisement dated 26-2-2013, the petitioner not having been earlier appointed, cannot be now so appointed because of the prohibition under the circular dated 19-7-2001-A subsequent advertisement for recruitment to the post of Assistant Radiographer has been issued on 1-7-2013. 8. Heard. Considered. 9. The insensitivity of the officers of the welfare State to the rights and aspirations of its citizens is starkly on display in the facts of the instant case. Admittedly, the petitioner was successful in the recruitment to the post of Assistant Radiographer pursuant to advertisement dated 26-2-2013 and found place at Serial No. 46 in the select list dated 10-5-2013. It is no doubt true that when she submitted her original mark-sheets on 13-5-2013 for verification and authentication of her eligibility for the post, she did not at the relevant time furnish, by sheer accident the mark-sheet evidencing her passing the supplementary paper of Basic Principles of Radio Therapy-a part of B.Sc. Radiotherapy Technology. This she admittedly produced on 14-5-2013, the following day, along with the provisional certificate issued by the Rajasthan University of Health Sciences evidencing that she had passed the Three year course in B.Sc. Radiotherapy Technology. Dr. Pratap Singh, the Officer Incharge present in the court, has on the basis of the record of the case, admitted to the said facts. 10. While the petitioner suffered ignominy of not being appointed to the post of Assistant Radiographer where several including those less meritorious than her in the select-list of 10-5-2013 were appointed in the month of June, 2013, the respondents inexplicably continued to sit over on the petitioner's case. What then followed were complexities. None in the government was willing to unravel and a downward spiral for the petitioner followed. The Committee of the Medical and Health Department met only on 4-9-2013 to consider afresh the petitioner's case and found her fit for appointment on the basis of original documents submitted by her on 13-5-2013 and 14-5-2013. But prior to that, vide order dated 2-9-2013 in SBCWP No. 9352/2013 (Mahendra Kumar v. State of Rajasthan) this court while making reference to the Larger Bench on the question of bonus marks directed not to make any further appointment to the post of Assistant Radiographers pursuant to advertisement dated 26-2-2013. But prior to that, vide order dated 2-9-2013 in SBCWP No. 9352/2013 (Mahendra Kumar v. State of Rajasthan) this court while making reference to the Larger Bench on the question of bonus marks directed not to make any further appointment to the post of Assistant Radiographers pursuant to advertisement dated 26-2-2013. The respondent department took no steps to seek clarification from the court qua the petitioner's case quite unrelated even though it was to the dispute under consideration therein. Nor was the petitioner informed or told to seek a clarification. Against the order dated 2-9-2013 Special Leave Petition was however filed by the Department before the Apex Court which was then withdrawn in January, 2015. And then the subsequent advertisement of 1-7-2013 for recruitment to the post of Assistant Radiographer was set up to deny the petitioner appointment to the post of Assistant Radiographer despite her selection and previous appointment of those less meritorious than her on the select-list. That is the department's justice. No wonder the court's docket continue to bulge and look ugly. 11. I am of the considered view that in the facts of the petitioner's case the circular dated 19-7-2001 issued under the hand of the Principal Secretary to Government, Department of Personnel on the subject of operation of the reserve list is not at all relevant. The circular aforesaid relates only to and prohibits operation of reserve list for appointment following the subsequent advertisement for appointment to the posts unfilled. The circular does not and cannot eclipse the right of a duly selected meritorious candidate to appointment when less meritorious candidates have already been appointed. If allowed that would be a shocking breach of Article 14 of the Constitution of India. The petitioner admittedly was not in the waiting list. She was in the main select-list and not appointed for reason of an innocent error in submission of documents for verification in the first instance on 13-5-2013 which was immediately rectified the following day on 14-5-2013. Thereafter the shocking lethargy and insensitivity of the respondents-not unusual took over. The circular dated 19-7-2001 cannot put everything under the rug and beyond the reach of justice. Thereafter the shocking lethargy and insensitivity of the respondents-not unusual took over. The circular dated 19-7-2001 cannot put everything under the rug and beyond the reach of justice. If literally construed the circular dated 19-7-2001 would be in the cross hair of Article 14 of the Constitution of India and liable to be declared wholly arbitrary and unreasonable in so far as it attracts to the case such as one at hand. It cannot attract to the petitioner's case as she is a duly selected meritorious candidate and other less meritorious have already been appointed to the post of Assistant Radiographer on the basis of the select-list following the advertisement dated 26-2-2013. She has in the facts of the case an indefeasible right to be appointed as an Assistant Radiographer. 12. In the circumstances, the impugned order dated 9-7-2015 is quashed and set aside. It is directed that the petitioner be appointed on the post of Assistant Radiographer with the department of Medical & Health Services Rajasthan as per her merit in select-list dated 10-5-2013 within a period of four weeks from the date of receipt of certified copy of this order. The petitioner's appointment will be effective from the date when candidates junior to her in select-list dated 10-5-2013 were appointed. She will be entitled to all benefits of seniority and pay fixation, but not to actual payment of salary till the date of her joining. 13. The petition stands accordingly allowed with cost of Rs. 50,000/- to be paid to the petitioner within ninety days.