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2020 DIGILAW 383 (RAJ)

Suman Jat v. State of Rajasthan

2020-02-18

SANJEEV PRAKASH SHARMA

body2020
JUDGMENT Sanjeev Prakash Sharma, J. - All these writ petitions are being commonly decided as the question involved as to whether the candidates who were appearing or had appeared for the examination for the Auxiliary Nurse Midwifery Training Course, on the last date of filling up the application form, could be denied consideration for appointment ? and Whether the qualifications as required under the advertisement are to be examined on the last date of application fixed under the advertisement or on the date when the documents are verified by the department for the purpose of appointment on the post of Female Health Worker (hereinafter referred as 'FHW')?, are identical to all of them. 2. For the purpose of disposal of the issue, the facts of SB Civil Writ Petition No.15115/2018 (Suman Jat & anr. Vs. The State of Raj. & ors.) are being noticed as a lead case. 3. The petitioners were undergoing two years Diploma course in Nursing in Paramedical Colleges recognized by the Rajasthan Paramedical Council. Their First Year Examination had already been conducted in June, 2017 and they were pursuing their studies of Second Year when the advertisement was issued by the Directorate of Rajasthan Medical and Health Department on 18/06/2018 inviting applications for filling up the posts of Female Health Worker. In all 4965 posts were advertised. 3.1 As per point no.5 of the advertisement, the qualifications laid down were that a candidate must have pased 10th standard and must have passed the Auxiliary Nurse Midwifery Training Course and be registered with the Rajasthan Nursing Council as B Grade Nurse. The last date of submission of on-line application form was mentioned as 23/07/2018 and it was provided that the eligibility requirement mentioned in point no.5 should be possessed before the last date of filing of the on-line application form. 3.2 The advertisement further provided in clause 12 that for the purpose of verification of documents, the candidates shall be invited by the department or by the organization nominated for the said purpose by the department to be present personally on the date fixed and at the place as directed. 3.2 The advertisement further provided in clause 12 that for the purpose of verification of documents, the candidates shall be invited by the department or by the organization nominated for the said purpose by the department to be present personally on the date fixed and at the place as directed. Those candidates, who are called for verification of the documents, would be required to be present on the appointed place alongwith hard copy of the application form alongwith original documents and additional self attested photo copies of all the documents which include the documents relating to their educational qualification and other required certificates including caste certificate and other relevant documents and certificates. It was further provided that if a candidate does not remain present on the date fixed by the department alongwith his documents, his candidature shall be rejected. The basis of calling the candidates would solely rest on the information mentioned by them in the on-line application form and the responsibility would lie on the candidate of getting his eligibility duly verified and the verification of documents would not mean selection but would relate to examining the eligibility of the candidate. 3.3 The mode of selection under the advertisement is on the basis of merit prepared which was to be calculated on the basis of the marks obtained in the professional examination plus bonus marks to be given on the basis of experience gained in terms of Rule 19 of the Rajasthan Medical and Health Subordinate Service Rules, 1965 (hereinafter referred as 'the Rules of 1965'). 3.4 As the petitioners had not completed their course, their online application forms were not accepted and they, therefore, preferred the present writ petitions challenging the condition of the advertisement on the ground for not incorporating the amendment made in Rule 11 of the Rules of 1965 wherein proviso was added to Rule 11 of the Rules of 1965 for declaring those candidates as eligible for participation in the selection process who had appeared or were appearing in the final year examination of the course which was the requisite qualification for the post as mentioned in the Schedule of the Rule for direct recruitment. A rider was laid down that the said educational qualification must be acquired by such person who is appearing or has appeared in the final year of the examination of the course on or before appearing in the main examination where the examination is of two stages i.e. written and interview or before appearing in the interview, there selection be made through written examination and interview or before the date of written examination or before the date of interview as the case may be where it is only by way of written examination and interview. 4. The contentions of the petitioners was that as the selection is solely based on preparing of merit on the basis of the qualifying examination and addition of bonus marks, the candidates, who are appearing or appeared in the final year examination of the course, could not have been deprived from participation and it was therefore, prayed that the advertisement, which does not take into consideration the proviso appended to Rule 11 of the Rules of 1965, be set aside and a revised notification incorporating the condition be issued. It was also prayed to delete the note given under item no.5 of the advertisement which mentioned the qualifications to be seen as on the last date of filling of the form of recruitment. 5. By an interim order, this Court allowed the petitioners to provisionally participate in the selection process for the post of FHW by accepting their application form off-line. Their application forms were, therefore, accepted and thereafter, they were also allowed to submit their documents for verification to the appointing authority provisionally. 6. Learned counsel for the petitioners submitted that that in Zaiba & Ors. Vs. The State of Raj. & Ors. (SBCWP No.14884/2016) and other connected writ matters, the coordinate Bench of this Court at Jodhpur vide judgment dated 07/05/2018, examined the said issue with regard to the proviso and held that those, who had appeared or were appearing in the qualifying examination, would be entitled for appointment if they have attained the complete qualification and eligibility criteria including registration in Rajasthan Paramedical Council before the date of counselling/verification anad as the present issue is also similar, the petitioners' case should also be considered and they should be declared eligible and the criteria of eligibility ought to be seen as on the date of counselling/verification and on the last date of application. 6.1 Learned counsel for the petitioners also relied on the judgment rendered in Bhanwari & Ors. Vs. State of Raj. & Ors. (SBCWP No.9852/2018) and other connected petitions, decided on 16/08/2018 at Principal Seat, Jodhpur, wherein in identical facts of the case relating to the same post of ANM under the same advertisement, the coordinate Bench, relying on the judgment passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra), has followed its own judgment holding as under:- "Accordingly, these writ petitions are allowed. The respondents are directed to consider petitioners as entitled for appointment if they are conforming to the parameters i.e have completed ANM Course from recognized institute including registration with Rajasthan Nursing Council before the last date of counseling/interview. The petitioners shall be permitted in counseling/interview and thereafter appointments shall be accorded as per their merit in their respective categories within a period of 60 days from today as per regular selection process. The judgment shall apply qua the petitioner only and that too if they have already filled their respective forms before the last date prescribed by the respondents." 6.2 Learned counsel for the petitioners also relied on the decision rendered by coordinate Bench of this Court at Jodhpur in Smt. Manju Chhaba Vs. The State of Raj. & anr. (SBCWP No.34/2015), decided on 10/09/2015 wherein the coordinate Bench, after examining the amendment introduced in the year 1999, held that the qualification would be ascertained on the last date of the competitive examination as under:- "Thus, this Court has no hesitation in holding that the petitioner acquired the requisite qualification by the last date of the competitive examination. The restrictive interpretation which is taken in the State's reply that the date of examination should be taken as the date of commencement and not the date of conclusion is per se unacceptable. It is the Court's firm opinion that the date of examination has reckoned in reference to the date of completion of exam and not the date on which, the exam commenced. Thus, a person acquiring the requisite educational qualification while the competitive exam being conducted by the RPSC was under way would indeed be entitled to claim appointment in the event of succeeding in the competitive examination. Thus, a person acquiring the requisite educational qualification while the competitive exam being conducted by the RPSC was under way would indeed be entitled to claim appointment in the event of succeeding in the competitive examination. It is the undisputed case of the respondents that candidates lower in merit as compared to the petitioner in OBC (Women) category have been appointed as Teachers Grade II in this very same selection process. Thus, the petitioner, subject to verification of her testimonials and character verification, is indeed entitled as of right to seek appointment on the post of Sr. Teacher Grade II in the Teachers Grade II Recruitment 2013 conducted by the respondents." 6.3 The order passed in Smt. Manju Chhaba Vs. The State of Raj. & anr. (supra) is stated to have been upheld in D.B. Civil Special Appeal (W) No.127/2016, decided on 04/04/2016. 7. Per-Contra, learned counsel Mr. Harshal Tholia, Adv. appearing on behalf of AAG for the respondents submitted that the Rules of 1965 were amended vide notification dated 06/02/2013 and for the post of FHW, the qualifications were laid down which required a candidate to have 10th standard with Auxiliary Nurse Midwifery/Health Worker Female Course passed and registered with the Rajasthan Nursing Council as B Grade Nurse. There is no examination conducted for selection nor there is an interview. Thus, the selection is based only on the marks obtained in the qualifying course. There is no examination conducted for selection nor there is an interview. Thus, the selection is based only on the marks obtained in the qualifying course. As per amendment in Rule 19 of the Rules of 1965, the proviso provided that 'in case of appointment to the post other than Pharmacists, which are not in the purview of Commission, merit shall be prepared by the Appointing Authority on the basis of the marks obtained in such qualifying academic examination or professional examination or both as specified in the Schedule appended to these Rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government, National Rural Health Mission and Medicare Relief Society and provided further that the decision of the Commission or Appointing Authority as the case may be as to the eligibility or otherwise of a candidate shall be final.' Learned counsel further submitted that as there was no interview or written examination, the proviso added to Rule 11 of the Rules of 1965 would have no application for the purpose of selection for the post in question. Learned counsel further submitted that the process conducted by the selecting body of verification of documents by counselling cannot be said to be similar to interview and therefore, the cut-off date as provided under the proviso to Rule 11 of the Rules of 1965 i.e. the last date of interview cannot be treated as equal to that of last date of counselling. 7.1 Learned counsel for the respondents relied on a judgment passed by coordinate Bench of this Court in Neha Choudhary Vs. State of Raj. & Ors. (SBCWP No.181/2015), decided on 24/03/2015 where a contention was raised that after clearance of written examination, since verification of documents was required to be conducted, hence the same should be treated as an interview and therefore, the last date should be treated as the date when the documents are verified in terms of the amendment. The contention was not accepted by the Court as there was only a written examination and no interview. 7.2 Learned counsel for the respondents also relied on a judgment rendered in Ashok Kumar Sonkar Vs. Union of India & Ors., 2007 4 SCC 54 wherein the Supreme Court held as under:- "20. Possession of requisite educational qualification is mandatory. The contention was not accepted by the Court as there was only a written examination and no interview. 7.2 Learned counsel for the respondents also relied on a judgment rendered in Ashok Kumar Sonkar Vs. Union of India & Ors., 2007 4 SCC 54 wherein the Supreme Court held as under:- "20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with the applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this court would be the last date for filling the application." 7.3 Learned counsel for the respondents also relied on a judgment of the Supreme Court in Rakesh Kumar Sharma Vs. State (NCT of Delhi) & Ors., 2013 11 SCC 58 wherein it was held as under:- "21. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification i.e. eligibility, character verification etc. Clause 11 of the letter of offer of appointment dated 23-2-2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court. " 7.4 Learned counsel for the respondents has also submitted that the judgment passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra) has been challenged before the Division Bench in D.B. Special Appeal (Writ) No.252/2019 & connected appeal and the Division Benchy vide order dated 11/02/2020 admitted the appeal and the effect and operation of the order dated 07/05/2018 passed in Zaiba & Ors. Vs. The State of Raj. & Ors. Vs. The State of Raj. & Ors. (supra) has been challenged before the Division Bench in D.B. Special Appeal (Writ) No.252/2019 & connected appeal and the Division Benchy vide order dated 11/02/2020 admitted the appeal and the effect and operation of the order dated 07/05/2018 passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra) has been stayed. 8. In the aforesaid backdrop, learned counsel for the respondents submitted that the candidates, who appeared or were appearing in the final year examination of the course, cannot be considered for the purpose of selection for the post in question under the advertisement dated 18/06/2018. Learned counsel also submitted that the cut-off date is required to be maintained and for the purpose of verification of the documents, the cut-off date fixed was the last date of submitting of the application form i.e. 23/07/2018. It was also stated that the candidates twice number of posts were called after scrutiny for the purpose of verification of the documents. 9. After hearing learned counsel for the parties at length, this Court finds that while the judgment passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra) related to Lab Technicians, the present cases relate to the posts of FHW. In another judgment passed by coordinate Bench in Bhanwari & Ors. Vs. State of Raj. & Ors. (supra), relying upon the judgment in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra), directions were issued for consideration of candidatures of the candidates for the post of FHW, as noted above. The said judgment of Bhanwari & Ors. Vs. State of Raj. & Ors. (supra) has not been challenged in Division Bench till date. However, Zaiba (supra) has been stayed by the Division Bench in appeal. 10. In the above perspective, the record relating to initiation of selection for the post, was called and from perusal of the notesheets and the process of requisition of vacancies, it is found that the recruiting authority did not take into consideration the proviso added to Rule 11 of the Rules of 1965 at all. The effect of proviso to Rule 11 of the Rules of 1965 was not considered nor the same was taken into consideration in the advertisement dated 18/06/2018. The effect of proviso to Rule 11 of the Rules of 1965 was not considered nor the same was taken into consideration in the advertisement dated 18/06/2018. Resultantly, the litigation, at Principal Seat, as noted above as well as before this Court has arisen wherein petitions have been filed by several persons who were appearing or had appeared in the final year diploma course. 11. By an interim order, the Court had allowed the petitioners to participate by submitting off-line application form and they have also got themselves registered with the Rajasthan Nursing Council before verification of documents could be conducted. 12. Rule 11 of the Rules of 1965 was amended by adding proviso vide notification dated 19/09/1999 which reads as under:- "Provided that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or schedule for direct recruitment, shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency:- (i) before appearing in the main examination, where selection is made through two stages of written examination and interview. (ii) before appearing in interview where selection is made through written examination and interview. (iii) before appearing in the written examination or interview where selection is made through only written examination or only interview, as the case may be." 13. For the purpose, it would be appropriate to clause 12 of the advertisement which reads as under:- . 14. Thus, if the counselling conducted for the purpose of verification is treated as akin to interview, the persons, who appeared or were appearing on the last date of submission of application form, would be eligible for participation and the qualifications would be seen as on the last date of counselling keeping in view the few judgments passed by the coordinate Bench in the case of Manju Chhaba Vs. The State of Raj. & anr. (supra). 15. Thus, the question involved in the present petitions, as noted in Para 1, would hinge on whether the process of counselling for verification of documents can be equated to interview. 16. As per Webster's Encyclopedic Unabridged Dictionary on the English Language, the word 'Interview' means:- "In-ter-view (in'tar vyoo'), n. 1. The State of Raj. & anr. (supra). 15. Thus, the question involved in the present petitions, as noted in Para 1, would hinge on whether the process of counselling for verification of documents can be equated to interview. 16. As per Webster's Encyclopedic Unabridged Dictionary on the English Language, the word 'Interview' means:- "In-ter-view (in'tar vyoo'), n. 1. a formal meeting in which one or more persons question, consult, or evaluate another person: a job interview. 2. a meeting or conversation in which a writer or reporter asks questions of one or more persons from whom material is sought for a newspaper story, television broadcast, etc. 3. the report of such a conversation or meeting - v.t. 4. to have an interview with in order to question, consult, or evaluate: to interview a job applicant; to interview the president. - v.i. 5. to have an interview; be interviewed (sometimes fol. by with): She interviewed with eight companies before accepting a job. 6. to give or conduct an interview: to interview to fill job openings." 17. Thus, it essentially requires a personal interaction which is also known as via-voce. 18. In Black's Law Dictionary (Sixth Edition), the word 'Viva Voce' is defined as under:- "Viva voce /vayva vowsiy/. Lat. With the living voice; by word of mouth. As applied to the examination of witnesses, this phrase is equivalent to "orally". It is used in contradictions to evidence on affidavits or depositions. As descriptive of a species of voting, it signifies voting by speech or outcry, as distinguished from voting by a written or printed ballot." 19. Thus from above, this Court finds that interview is a process of personal interaction with a candidate whereby questions may be asked to a candidate about his personality, knowledge of the subject and also his overall knowledge required for the particular job. For the said purpose of assessment, marks are given or a grading is given to the candidate and thereafter, a merit is prepared on the basis of assessment. 20. From perusal of the advertisement, it is thus apparent that a candidate, who does not appear on the appointed date fixed for verification of his form, would be ousted from selection. the counselling process, thus, lays down a condition to the concerned candidate to be personally present with all documents on the date he is called for. 20. From perusal of the advertisement, it is thus apparent that a candidate, who does not appear on the appointed date fixed for verification of his form, would be ousted from selection. the counselling process, thus, lays down a condition to the concerned candidate to be personally present with all documents on the date he is called for. However, while appearing for counselling, no marks are given to the candidates nor there is any assessment. 21. Thus, while it is true that a candidate is ousted if he does not appear on a particular date for counselling, in the opinion of this Court, such a condition is only directory and cannot be treated as mandatory, meaning thereby that a candidate may for good reasons be allowed to again submit his documents for verification on another date as may be provided by the selecting body. 22. In view thereof, the selection process for appointment on a post like FHW, where there is neither any written examination nor there is any interview process, would specifically oust the proviso added to Rule 11 of the Rules of 1965. In the considered opinion of this Court, therefore, the action of the respondents in not allowing candidates, who were appearing or had already appeared in the final year of the qualifying examination for the course, cannot be said to be illegal or unjustified. 23. Looking at the issue from another angle, if the examination of merit is to be considered, the same is based on the marks which a candidate mentions in this on-line application form. For such selections where there is no interview or written examination, a presumption is that the candidates, who already fulfilled the qualification on the last date of application form, they are a separate class from those, who are appearing or have appeared in the final year examination of the course. In view thereof, the candidates of second category cannot claim parity with those who have already appeared and cleared their qualifying examination of the course and have also been registered with the Rajasthan Nursing Council before the last date of submission of the application form. 24. It also needs to be noted that the advertisement specifically mentioned the eligibility of only those candidates who have already been registered with the Rajasthan Nursing Council before the last date of the submission of the application form. 24. It also needs to be noted that the advertisement specifically mentioned the eligibility of only those candidates who have already been registered with the Rajasthan Nursing Council before the last date of the submission of the application form. Thus, the intention of the employer was clear and unambiguous. Due to this condition, there would be many persons who may not have applied knowing themselves to be not qualified. Merely because this Court, by an interim order, has allowed some candidates to participate in the selection process, would cause discrimination between the similarly situated persons and gives advantage to those alone who have approached this Court. The same would, therefore, be violative of the doctrine of equality. 25. The contention of learned counsel for the petitioners that as the order passed in Bhanwari & Ors. Vs. State of Raj. & Ors. (supra) has not been challenged before the Division Bench, the same would apply to the candidates, is also found to be misconceived. It is noticed that the order passed in Bhanwari & Ors. Vs. State of Raj. & Ors. (supra) relies on the earlier order passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra), once the effect and operation of the judgment passed in Zaiba & Ors. Vs. The State of Raj. & Ors. (supra), has been stayed, all the consequential judgments which rely upon the order passed in Zaiba & Ors. Vs. The State of Raj. & Ors.(supra), by principles of constructive interpretation, shall remain stayed. 26. Any judgment, which has been stayed by a Division Bench or by a higher Court, cannot be looked into or relied upon for arriving at conclusions as it remains stillborn. 27. In Bedanga Talukdar Vs. Saifudaullah Khan & Ors., 2011 12 SCC 85 , the Supreme Court has held as under:- "32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation in duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation in duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In the circumstances, the High Court could not have issued the impugned direction to consider the claim of respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list." 28. In view of above discussions, the questions are answered as under:- (a) the candidates who are appearing or have appeared for examination for Auxiliary Nurse Midwifery Training Course on the last date of filling up of the application form would not be eligible for consideration for appointment on the post of Female Health Worker; (b) the qualification as required under the advertisement are to be examined on the last date of submission of application forms as fixed under the advertisement in the cases where the selection is to be done only on the basis of marks obtained in the qualifying examination, as mentioned in the application form. 27. All the writ petitions are accordingly dismissed. All pending applications also stand dismissed. No costs.