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2018 DIGILAW 1462 (RAJ)

RAVINDRA YADAV v. STATE OF RAJASTHAN

2018-07-11

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT 1. By this bunch of writ petitions, a challenge is made to the Notification dated 23rd May, 2018 amending the Schedule-I appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short "the Rules of 1965"). This makes petitioners to be ineligible for the post of Lab Assistant. A challenge is thus made even to the advertisement dated 29th May, 2018 for recruitment to the post of Lab Assistant. 2. Learned counsel for petitioners submit that prior to the advertisement in question, respondents had issued an advertisement on 10th July, 2013 to fill different posts which includes the post of Lab Assistant. After advertisement of the year 2013, no advertisement was issued till the year 2018 despite existence of the vacancies. The determination of vacancies has to be made on yearly basis, that too, on 1st April of each year followed by selections and appointments. The respondents have failed to do so. If the exercise aforesaid would have taken prior to the amendment in the Rules of 1965, vacancies could have been filled as per the rule then existing with an opportunity to the petitioners to appear in the selection. In view of the above, the post existing or sanctioned prior to the Notification dated 23rd May, 2018 should be filled as per unamended provision. The respondents are, however, applying the amended rules for vacancies existing or fallen vacant prior to the amendment. This has affected rights of the petitioners as they were qualified earlier but by virtue of amendment in the rules, became ineligible. 3. To be specific, learned counsel for petitioners have referred the Schedule-I of the Notification dated 28th June, 2013 prior to the amendment. It was providing requirement of one year's experience for the post in question, whereas, it is now of three years' and, that too, as Lab Assistant or Laboratory Technician in the State Government hospitals on contract basis or through Service Provider Agency. 4. It is submitted that no nexus exists to enhance the period of experience from one year to three years. The petitioners are in possession of experience of one year and if their candidature is considered in the light of the rules then existing, they would be eligible for the post of Lab Assistant. Since their existing rights have been taken away, Notification dated 23rd May, 2018 deserves to be struck down. 5. The petitioners are in possession of experience of one year and if their candidature is considered in the light of the rules then existing, they would be eligible for the post of Lab Assistant. Since their existing rights have been taken away, Notification dated 23rd May, 2018 deserves to be struck down. 5. It is also stated that no object is sought to be achieved by the amendment because experience of one year is good enough for the post of Lab Assistant. In the light of the aforesaid also, the impugned Notification so as the advertisement deserve to be set aside and, accordingly, the petitioners may be permitted to appear in the selection. 6. Learned Advocate General Mr. NM Lodha, assisted by Mr.Shyam Arya, Additional Advocate General, has contested the writ petitions. It is submitted that challenge to the constitutional validity of the Rules can be made only if it has been brought without competence or is hit by the Constitution of India. The State Government is having power to amend the rules. It has not been challenged on the grounds given above, thus interference in the amendment in the rule may not be made. 7. Coming to the merit, it is stated that the State Government took a decision to amend the Rules to enhance the experience from one year to three years in the interest of medical service and to be of the post of Lab Assistant/Lab Technician. The experience of post concerned was missing, earlier. The candidates with one year's experience in the Medical Laboratory were eligible irrespective of the nature of experience. Whether it is on the post of Laboratory Assistant or any other experience. Realising the lacuna in the rules and to make it more appropriate for medical services, an amendment was made. The minimum experience required for the post of Laboratory Assistant is now of three years so that a suitable person may be appointed. 8. A challenge to the amendment in the Rules has been made mainly on the ground that vacancy already existing or sanctioned cannot be filled by applying the amended Rules, rather, it should be by applying the Rules then existing. The petitioners have not come out with any fact and figures as to when the post became vacant and sanctioned. 8. A challenge to the amendment in the Rules has been made mainly on the ground that vacancy already existing or sanctioned cannot be filled by applying the amended Rules, rather, it should be by applying the Rules then existing. The petitioners have not come out with any fact and figures as to when the post became vacant and sanctioned. If the plea taken by the petitioner is accepted then they were not eligible for want of one year's experience on the date of vacancy. The post is to be filled on the basis of qualifications and mode existing on the date of advertisement. If the advertisement is issued and subsequently amendment in the rules is made, the amendment cannot be applied to the process already started because rule of game cannot be changed in the midst of the selection. Herein, amendment was made prior to the advertisement and for the objects sought to be achieved. The prayer is, accordingly, made not to dismiss the writ petitions. What should be requisite qualification of the post remains in the domain of the State Government. It is determined on the advice of the experts. A reference of the judgment of the Apex Court in the case of State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors., (1994) 5 SLR 176 has been given. 9. We have considered rival submissions made by learned counsel for the parties and perused the record. 10. By this bunch of writ petitions, a challenge has been made to the Notification dated 23rd May, 2018. By the aforesaid Notification, amendment in the Schedule I appended to the Rules of 1965 has been made. To appreciate the argument of learned counsel for the parties, it would be gainful to refer the rules earlier amended by Notification dated 28th June, 2013. For ready reference, it is quoted hereunder: "1. Short title and commencement:- (i) These rules may by called the Rajasthan Medical & Health Subordinate Service (Second Amendment) Rules, 2013. (2) They shall come into force on the date of their publication in the Official Gazette. 2. For ready reference, it is quoted hereunder: "1. Short title and commencement:- (i) These rules may by called the Rajasthan Medical & Health Subordinate Service (Second Amendment) Rules, 2013. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Amendment of Schedule I:- In Schedule-I appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965, herein after referred to as the said rules, under the heading Group A-VI [Para Medical Cadre (Medical)], after the existing serial number 7 and entries thereto the following new serial number 8 and entries thereto shall be added, namely:- 8. Lab Assistant 100% 1.Secondary or its equivalent And 2. Any diploma/certificate course in Medical Lab Technician from a institute recognized by State Government: Or one years experience in medical lab run by the State Government." 11. The perusal of Rule then existing was requiring qualifications of Secondary or its equivalent with diploma/certificate course in Medical Lab Technician from an institution recognised by the State Government or one year's experience in Medical Lab run by the State Government. The State Government thought it proper to amend the rules further and, accordingly, issued Notification on 23rd May, 2018, which is under challenge. The amended provision is also quoted hereunder for ready reference: "1. Short title and commencement:- (1) These rules may be called the Rajasthan Medical & Health Subordinate (Second Amendment) Rules, 2018. 2. They shall come into force on the date of their publication in the Office Gazzette. 2. Amendment of Schedule-I:- In Schedule-I appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965, under the heading Group A-VI [Para Medical Cadre (Medical)], the existing serial number 8 and entries thereto shall be substituted by the following namely:- 8 Lab Assistant 100 % 1. Senior Secondary with Science or its equivalent and 2. Any diploma in Medical Laboratory Technology from an institute recognized by the State Government However, for the first time recruitment after the commencement of the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2018, any persons. possessing - 1. Secondary or its equivalent; 2. Any Diploma in Medical Laboratory Technology from an institute recognized by the State Government; or having minimum three years experience of working as Laboratory Assistant/Laboratory Technician in State Government Hospitals on contract basis or through Service Provider Agency, shall also be eligible." 12. possessing - 1. Secondary or its equivalent; 2. Any Diploma in Medical Laboratory Technology from an institute recognized by the State Government; or having minimum three years experience of working as Laboratory Assistant/Laboratory Technician in State Government Hospitals on contract basis or through Service Provider Agency, shall also be eligible." 12. As per the amended Schedule appended to the rules, one is required to possess qualification of Senior Secondary with other qualifications. In alternate to the qualification, a candidate possessing three years experience of Lab Assistant/Lab Technician in the State Government hospitals on contract basis or through Service Provider Agency has also been made eligible. It is not only that the period of experience has been enhanced by the amended rule but experience is now required to be of the post which is going to be managed by the candidates. Under the unamended Rules, experience was to be in the Medical Lab of Government hospitals irrespective of the post or type of experience therein. The government has rightly taken a decision to make rule more appropriate and accordingly to enhance the period of experience and to be of the post of Lab Assistant or Lab Technician. It is in the interest of medical services meant for the patients. 13. We do not find any illegality if period of experience has been enhanced, that too, attached to the post on which appointment is to be given. 14. The only question now comes as to whether the post existing prior to the amendment in the Rules should be filled by the rules then existing. Learned counsel for petitioners have raised the aforesaid issue but failed to refer any judgment showing that mere existence of the post create a right in their favour. We find that the Apex Court has decided the issue another way. It has been held that mere existence of the post does not create a right of appointment or promotion. The Apex Court in the case of Delhi Judicial Services Assn. & Ors. Vs. Delhi High Court & Ors., (2001) AIR SC 2102 held that amended rule would be applicable even to the vacancies occurring prior to the amendment. The earlier judgments on the issue were also examined. The same view was expressed by the Apex Court in the case of Vice-Chancellor, University of Allahabad & Ors. Vs. Anand Prakash & Ors., (1997) 10 SCC 264 . 15. The earlier judgments on the issue were also examined. The same view was expressed by the Apex Court in the case of Vice-Chancellor, University of Allahabad & Ors. Vs. Anand Prakash & Ors., (1997) 10 SCC 264 . 15. The issue of determination of year-wise vacancy has also been taken up. The petitioners have not come out with the details about year-wise vacancies. If it is taken for consideration, the petitioners may be lacking in the experience of required period in reference to the year to which vacancy relates. In any case, a rule not existing due to amendment cannot be given life by this court. The petitioners cannot claim right of consideration of their candidature based on a dead provision. Once the rule is amended, it cannot be given effect even for the past vacancies. 16. It has to be filled by the rule now existing. Mere existence of vacancies does not create a right in favour of the petitioners. Accordingly, even the second ground raised by the petitioners cannot be accepted. In the light of the judgment supra, no right exists in favour of the petitioners to claim consideration of their candidature based on the rule not existing now. The Apex Court in the case of Raghuveer Singh Yadav has held that what should be the qualification for post remain under the domain of the State Government. In the present cases, the addition of period of experience, that too, of the post concerned is otherwise proper. The candidate with adequate experience would be beneficial to the patient, therefore, we do not find any reason to cause interference in the Notification impugned herein. Since interference in the Notification dated 23rd May, 2018 has not been made, there remains no reason to interfere in the advertisement providing qualification in reference to the amended provision. 17. Finding no merit in the bunch of writ petitions, they are, dismissed. 18. A copy of this order be placed in each connected file.