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2019 DIGILAW 2264 (RAJ)

Chandra Parakash Sharma v. State of Rajasthan

2019-08-22

PUSHPENDRA SINGH BHATI

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ORDER : PUSHPENDRA SINGH BHATI, J. 1. The petitioner have preferred this petition claiming the following prayer:- It is, therefore, respectfully prayed that in the facts and circumstances stated above, this Hon'ble Court may be pleased to accept and allow this writ petition of your humble petitioners and the impugned order of termination dated 19.3.2001 may be quashed and set aside and the petitioners may be ordered to be taken back and continued in service with all consequential benefits thereof. Any other relief which this Hon'ble court may deem just and proper in the facts and circumstances of the case may also kindly be granted in favour of your humble petitioners. 2. Learned counsel for the petitioner Shri Sandeep Bhagwati has shown that the controversy has been decided by this court at Jodhpur in DB Civil Special Appeal (Writs) No. 649/1999 in the matter of Rajendra Singh Rao Vs. State of Rajasthan & Ors. vide order dated 13.04.2001 order reads as follows:- Having carefully considered, we are of the opinion that present case does not postulate a case of exercising extraordinary jurisdiction for doing complete justice between the parties, but requires this Court to consider whether in exercise of its authority, State has acted with utmost fairness and without any arbitrariness and unreasonableness in its action. This consideration whether the action of the instrumentality of the state or the state satisfies the Article 14 of the Constitution is always within the domain of this Court and that duty cannot be abdicated by this Court when proper facts are placed before it. Considering in this light, Bhagwati Prasad's case (Supra) lays down in no mistakable term that even if at the time of initial appointment a person lacks minimum educational qualification, but he has discharged the duties on the post for continuously a long period on which the employer has allowed him to work without demur, it makes up for lack of educational qualification and his case has to be considered in that light. It was a case where daily rated employees were working for continuously long period and the prayer for regularisation was contested on the ground that some of them claiming regularisation were not possessed of requisite qualification to hold the post. It was a case where daily rated employees were working for continuously long period and the prayer for regularisation was contested on the ground that some of them claiming regularisation were not possessed of requisite qualification to hold the post. The Court Observed: "The initial minimum qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once, the appointments were made daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification." The Court further said: "Three years' experience, ignoring artificial break in service for short period/periods created by the respondent in the circumstances, would be sufficient for confirmation." In that case the court not only granted the confirmation, but they were allowed to promotional avenues as if they hold the eligibility criteria. This position arose from the fact that when action of the State was found to be arbitrary and unjust, the power of the court has been invoked to mitigate the harshness arising from unreasonable action. The case of Gurdeep Singh (Supra) was a case in which a candidate was not eligible at the time of appointment and he has obtained appointment by illegal means. Subsequent to seeking appointment through dubious means. Qualification held by the petitioner were recognized retrospectively. It is in these circumstances that the Court refused to extend any benefit of retrospective recognition to the petitioner who had obtained entry in the service through dubious means. There is no parallel between the facts of both the cases to distinguish ratio in Bhagwati Prasad's case. As is apparent that what is required qualification for Lab Technician under the Rules is that he must be possessed secondary qualification and must held certificate of 9 months training from a recognized Institution within the State. Petitioner holds secondary qualification as a qualification of education is needed. He held the diploma from an institution imparting training to Medical Laboratory Technicians by an Institution from Ghaziabad in U.P. which was known as Para medical Professional Society of India duly registered by Central Government under Societies Registration Act, 1860. Petitioner holds secondary qualification as a qualification of education is needed. He held the diploma from an institution imparting training to Medical Laboratory Technicians by an Institution from Ghaziabad in U.P. which was known as Para medical Professional Society of India duly registered by Central Government under Societies Registration Act, 1860. The post of Lab-orator Technician is also a pot Para medical Services, as is evident from its classification under head VI of the Schedule titled as para-medical Service. He did not lack the training in para Medical Course, but what was lacking is certificate of training from the institution recognized by Govt. Of Rajasthan evidencing that he has training in the subject for requisite period of nine months. The requirement of requisite training at the time of entry being obviously a part of separate training program carried by at different centres than actual place of working needed an assurance about required proficiency and quality in the discharge of duties of a laboratory technician which is in the nature of practical working, before offering an appointment to any candidate. However, when a person actually discharges the duties at the post of Lab. Technician for 7 years, particularly when he has a certificate of undergoing training of such work at the time of entry in the service, though not from an institution recognized by the Government, the evidentiary value of such certificate cannot be taken thus, high to hold that even after working for more than 7 years as Lab. Technician under the very same Government, by when such pre-appointment training is required to be recognized, still lacks necessary training for the post, so as to treat him ineligible to continue to hold the post. To hold otherwise will be manifestly arbitrary and unjust. It would be harsh to consider that a person who has actually worked on the post of Lab. Technician for seven years is still not to be treated as the person having requisite training as part of qualification necessary for holding the post. There was no justification for terminating the services of the petitioner after seven years of continuous service when he has been fully equipped with requisite training and could not be considered as a person ineligible to hold the post. There was no justification for terminating the services of the petitioner after seven years of continuous service when he has been fully equipped with requisite training and could not be considered as a person ineligible to hold the post. It has been further pointed out that the respondents have allowed the persons appointed with similar qualification to continue in the post when this petition was filed and this allegation was made. The respondents have come out with the allegation that services of such persons have now been terminated. However, we are informed that the orders of termination of such persons is under challenge before this Court and operation of such termination has already been stayed. As a result, this appeal is allowed. The judgment under appeal is set aside. The writ petition is allowed and termination order of the petitioner is quashed. The petitioner shall be reinstated with all consequential benefits. 3. The counsel for the petitioners further submits that an interim order is operating in favour of the petitioner since 28.03.2001. 4. Counsel for the petitioners submits that the petitioners termination order was passed on 19.03.2001 on account of the fact that they are not having requisite qualification of diploma from the recognized institution. The diploma in question was obtained by the petitioners from Para Medical Professional Society of India, Ghaziabad (U.P.). Counsel for the petitioner further submits that the certificates issued to the persons by the institution who had already discharged 7 years of service by means of aforesaid precedent law, have been continued by respondents. The petitioners case is squarely covered by the judgment reproduced above. 5. Counsel for the respondents is not in a position to refute the applicability of Division Bench's judgment. 6. In the light of the aforesaid submissions, present writ petition is allowed. The termination order dated 19.03.2001 is quashed and set aside. Benefits of continuity of petitioners shall be given effect to as already by virtue of interim order dated 28.03.2001 the petitioners are in continuous service and have thus discharged service from 05.06.1989 till today. The petitioners shall be entitled for all consequential benefits given in the aforementioned Division Bench's Judgment. 7. Necessary compliance is to be made within a period of three months.