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2018 DIGILAW 1091 (GAU)

Ibrahim Ali v. State of Assam

2018-07-24

L.S.JAMIR

body2018
ORDER : L.S. Jamir, J. All this writ petitions, having similar cause of action and the relief sought being similar, are disposed of by this common order. 2. Heard Mr. S. P. Sarma, learned counsel for the petitioner. Also heard Mr. S. S. Roy, learned Government Advocate for the State respondent as well as Mr. H. Rahman, learned Senior counsel, appearing for the Assam Minority Development Board, Mr. N. Deka, learned counsel for the Assam Downtown University and Mr. B. Gogoi, learned Standing Counsel, National Health Mission, Assam. None appears for the Dental Council of India despite service of notice. 3. The petitioners were provisionally selected to undergo a training of Dental Technician for a period of one year by letter dated 03.09.2010, issued by the Assam Minorities Development Board. The petitioners successfully completed the said course from the Assam Downtown University. In the meantime, the office of the Mission Director, National Health Mission, Assam, issued an advertisement dated 18.02.2015, for filling up various posts to work in the mission mode on contractual basis. Amongst the various posts advertised, 27 Nos. of posts of Dental Technician were also included and requisite qualification/eligibility criteria for the post of Dental Technician was prescribed to have passed 1 (one) or 2 (two) years course on Dental Technician from a recognized institution. As all the petitioners had obtained the course on Dental Technician from the Assam Downtown University and, therefore, being eligible, they had applied for the post of Dental Technician in terms of the advertisement dated 18.02.2015. Thereafter, the petitioners were called for interview. However, after conducting the interview, the Mission Director, National Health Mission, Assam, issued a circular dated 13.01.2016 with respect to the post of Dental Technician, indicating that no suitable candidates were found. Being dissatisfied and also being aggrieved by the circular dated 13.01.2016, the petitioner in WP(C) 2702/2016 made an RTI application, requesting for the reasons that they were not found suitable. Being dissatisfied and also being aggrieved by the circular dated 13.01.2016, the petitioner in WP(C) 2702/2016 made an RTI application, requesting for the reasons that they were not found suitable. In reply, the petitioner was informed that the committee, constituted for the purpose to hold the interview for the post of Dental Technician, had examined the applications and the committee, on examination of the academic qualification of the candidates, had found that the academic certificates furnished by the applicants from the institutions were not recognized by the apex body of the Dental Technician Course, i.e. "Dental Council of India" and, therefore, all the candidates, who appeared, were not found suitable for engagement by the committee. Being aggrieved with the decision of the committee, as reflected in the RTI reply, the present writ petition has been filed challenging the decision of the committee as well as for a direction to the National Health Mission, Assam, to reconsider the case of the petitioners and to make appointments. 4. Mr. S. P. Sarma, learned counsel for the petitioner, submits that the decision of the committee that the academic qualification of the candidates were not recognized by the Dental Council of India is fallacious and misconceived inasmuch as a reading of the Dentist Act, 1948 (the Act of 1948, in short) would include only the posts of Dental Hygienist and Dental Mechanic and does not include the post of Dental Technician. In that view of the matter, the recognition of the Dental Council of India with regard to the post of Dental Technician and the course taken by the petitioners does not arise. Therefore, as the rejection of the case of the petitioner was made on wrong premises, the decision of the committee should be set aside and a direction be issued to the National Health Mission, Assam for reconsideration of the matter and to appoint the petitioners on the basis of merit. 5. He also submits that after filing the present writ petition, the National Health Mission, Assam, had issued another advertisement dated 31.03.2017, advertising several posts to be filled up on contractual basis in the National Heath Mission, Assam. 5. He also submits that after filing the present writ petition, the National Health Mission, Assam, had issued another advertisement dated 31.03.2017, advertising several posts to be filled up on contractual basis in the National Heath Mission, Assam. Amongst the posts advertised, 27 numbers of posts of Dental Technician are also included, wherein the eligibility criteria has been changed to the effect that a candidate should possess diploma course in Dental Technician/Dental Hygiene/Dental Mechanics from a Government Recognized Institution and registered with Assam State Dental Council. As the said advertisement was issued during the pendency of the writ petition, this Court, by an order dated 27.04.2017 passed in I.A. 1286/2017, had directed that the respondent shall not fill up 8 (eight) post of Dental Technician, RBSK, pursuant to the advertisement dated 31.03.2017. In that view of the matter, as there are 8 (eight) posts, which is yet to be filled up by the National Health Mission, the petitioners can be accommodated to the said vacant posts. 6. Learned counsel for the petitioner further submits that the course undergone by the petitioner was on the basis of a letter dated 03.09.2010, issued by the Assam Minorities Development Board, which is also a functionary of the Government of Assam and, therefore, the respondent cannot take the plea that the course taken by them are not recognized inasmuch as the petitioners were sponsored by the said Assam Minorities Development Board and had completed their course from a recognized Government University, namely, Assam Downtown University. Therefore, in any view of the matter, the respondents are bound to reconsider the case of the petitioners for appointment to the post of Dental Technician. 7. Mr. S.S. Roy, learned Government Advocate, submits that as the advertisements dated 18.02.2015 and 31.03.2017 were issued by the office of the Mission Director of National Health Mission, Assam, it is within their discretion to prescribe any eligibility criteria in terms of the guidelines and, therefore, the State respondent has nothing to say. 8. Mr. 7. Mr. S.S. Roy, learned Government Advocate, submits that as the advertisements dated 18.02.2015 and 31.03.2017 were issued by the office of the Mission Director of National Health Mission, Assam, it is within their discretion to prescribe any eligibility criteria in terms of the guidelines and, therefore, the State respondent has nothing to say. 8. Mr. H. Rahman, learned Senior counsel, appearing for the Assam Minorities Development Board, submits that since its inception the Board has been constituted towards welfare activities of the minorities of Assam to execute plans for the benefit of the minorities either directly or through others in coordination with the existing agencies engaged in the field, whether private, public or co-operative and to take up such other activities as may be entrusted by the State Government and, therefore, the Board had selected the petitioners to undergo a training for Dental Technician for a period of one year sponsored under the office of the Assam Minorities Development Board for the scheme year 2009-2010. 9. Mr. N. Deka, learned counsel, appearing on behalf of Assam Downtown University, submits that the university has been established under Section 6 of the Assam Private Universities Act, 2007, and that the Government of Assam had also enacted the Assam Downtown University Act, 2010, which was published in the gazette on 29.04.2010 extending it to the whole Assam. Further under a statute called the First Statutes of the Assam Downtown University Statues, 2011, the University has been allowed to grant any other certificate and diploma as decided by the University besides the other diploma and certificate specified in Chapter-X of the Statute. Therefore, after the petitioners were sponsored by the Assam Minorities Development Board, the University had imparted a one year course on Dental Technician to the petitioners inasmuch as the University had the authority to do so. He also submits that the qualification for Dental Technician does not require the recognition of the Dental Council of India under the Act of 1948 nor does the post of Dental Technician comes within the purview of the Act of 1948. In that view of the matter, he also submits that the committee could not have rejected the qualification of the petitioners for not having the recognition of the Dental Council of India. 10. Mr. In that view of the matter, he also submits that the committee could not have rejected the qualification of the petitioners for not having the recognition of the Dental Council of India. 10. Mr. B. Gogoi, learned Standing Counsel, NHM, submits that though the qualification in the post of Dental Technician may not come within the purview of Act of 1948, it is the discretion of the National Health Mission, Assam, to prescribe any eligibility criteria and, thereafter, make appointment. He, however, submits that as the qualification of the post of Dental Technician does not come within the purview of the Act of 1948, the respondents have decided to discontinue with the advertisements dated 18.02.2015 and 31.03.2017 insofar as the post of Dental Technician is concerned. He also submits that the user department, i.e. National Health Mission, Assam, has the discretion to decide which post to be advertised and not to be advertised. As the respondents have already taken a decision to discontinue with the post of Dental Technician, he submits that no further cause of action arises in the present writ petition and, therefore, no direction can be issued to the respondents to reconsider the case of the petitioners or to appoint them on the basis of merit. 11. I have heard the learned counsel for the parties. 12. This Court has considered the Act of 1948, more particularly Section 2 and Section 10. On a consideration of the Act of 1948, this Court is of the considered opinion that the Act of 1948 provides only for the post of Dental Hygienist and Dental Mechanic and, therefore, the posts of Dental Technician does not come within the purview of the Act of 1948. Accordingly, the qualification required for the Dental Technician does not require the recognition of the Dental Council of India. 13. On a consideration of the RTI reply given to the petitioner in WP(C) 2702/2016, it is seen that the reason for disqualifying the petitioners was that the academic qualification of the petitioners were not recognized by the Dental Council of India. 13. On a consideration of the RTI reply given to the petitioner in WP(C) 2702/2016, it is seen that the reason for disqualifying the petitioners was that the academic qualification of the petitioners were not recognized by the Dental Council of India. Having come to the conclusion that the qualification for the post of Dental Technician does not require the recognition of the Dental Council of India, this Court has no hesitation to come to the conclusion that the decision of the committee is erroneous and, therefore, the disqualification of the petitioners by the committee as their academic qualification does not have the recognition of the Dental Council of India is set aside and quashed. 14. The submission of Mr. B. Gogoi, learned Standing Counsel, NHM, with regard to discontinuation with the post of Dental Technician has also been taken into consideration by this Court. As the respondents have taken a decision to discontinue with the post of Dental Technician, this Court is of the considered opinion that it would be fruitless to direct the respondents to reconsider the case of the petitioners. Further, the question of declaration of the results after reconsideration also does not arise. In that view of the matter, no further direction can be issued to the National Health Mission, Assam. 15. It is, however, made clear that if for any event, the respondent decides to continue with the post of Dental Technician, the petitioners should be allowed to participate in the selection process by recognizing their academic qualification/certificates. 16. With the above observations and directions, all these writ petitions are disposed of.