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Himachal Pradesh High Court · body

2021 DIGILAW 154 (HP)

Vinod Kumar v. State Of Himachal Pradesh & Ors.

2021-03-17

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed for the following substantive relief:- "(i) to issue a writ in the nature of Certiorari quashing the letter/order dated 25.4.2019 (Annexure P-12) vide which the candidature of the petitioner has been rejected despite the acquisition of qualification as per advertisement Annexure P-1; and further to issue a writ in the nature of Mandamus directing the respondents to consider the petitioner for the post of Mal Multipurpose Health Worker especially when the petitioner possesses all the requisite qualification and conditions as per the advertisement and further the posts of Male Multipurpose Health Workers are lying vacant and further to issue any other appropriate order or direction as this Hon'ble Court may deem fit in the peculiar facts and circumstances of the case to grant appropriate relief to the petitioner." 2. The case of the petitioner is that vide advertisement No. 33-2/2017 (Annexure P-1), issued by respondent No. 2, in the month of September, 2017, various posts were advertised to be filled up in different departments of the Government of Himachal Pradesh, including Male Multipurpose Health Workers on contract basis in the Health and Family Welfare Department of the State, i.e. total 148 in number. The eligibility criteria for applying to the post in issue as was contained against post Code No. 650 was as under:- 650 Male Multipurpose Health Worker i) Should be a 10+2 or its equivalent from a recognized  Board of School Education/Institution. ii) Should possess one and half year Training Certificate as MPW(Male) from a recognized Institution of the State  Government. 3. The petitioner being eligible to apply for the post of Male Multipurpose Health Worker did so, however, his candidature has been rejected by the respondent-Commission vide notification dated 25.04.2019 (Annexure P-12), on the ground that the petitioner has failed to produce registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council within stipulated period. 4. Learned Counsel for the petitioner has submitted that the ground on which the candidature of the petitioner has been rejected by the respondent-Commission is erroneous, as there was no such condition contemplated in the advertisement that only those candidates would be eligible to participate in the process of selection for the post in issue who were possessing registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council. As per him, rejection of the candidature of the petitioner on the said ground is arbitrary, discriminatory, and thus, not sustainable in the eyes of law being violative of Article 14 of the Constitution of India. He further submitted that the candidature of the petitioner cannot be rejected on a condition which is alien to the advertisement and in the absence of there being any such embargo in the advertisement inviting the applications, such condition could not be subsequently imposed rendering the candidature of the candidates like the petitioner as bad. Learned Counsel has further submitted that it is not as if the basic qualification possessed by the petitioner rendered him ineligible to participate in the process of selection for the post in issue as he was possessing qualification prescribed in the Recruitment and Promotion Rules and the factum of the qualification being possessed by the petitioner being valid qualification is further evident from the fact that subsequently on his application, petitioner has been duly registered with H.P. Para Medical Council, as is evident from certificate of registration (Annexure P-15). Accordingly, he has prayed that the petition be allowed by setting aside communication dated 25.04.2019 (Annexure P-12) by directing the respondents to consider the candidature of the petitioner for the posts in issue without insisting upon the condition of registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council. 5. The petition has been opposed by Mr. Ajay Vaidya, learned Senior Additional Advocate General for the respondent-State and Mr. Angrez Kapoor, learned counsel for the respondent-Commission. Learned Counsel for respondent-Commission, has submitted that the candidature of the petitioner was rejected on the ground of his not furnishing the registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council, on the basis of instructions dated 14th February, 2019, issued by the State Government as appended with the reply filed to the petition by respondent No. 2 as Annexure R/2-A. On these bases, learned Counsel submitted that there is no arbitrariness with regard to the decision of the Commission qua rejection of the candidature of the petitioner because the same has been done strictly in consonance with the instructions so issued by the government in this regard. Learned Counsel further submitted that despite opportunity having been granted to the petitioner to furnish the certificate in issue as he failed to do so within the stipulated time period, therefore, the respondents had no alternative but to reject the candidature of the petitioner. On these grounds, they have opposed the claim put forth by the petitioner. 6. Learned Counsel for respondent No. 3 has adopted the submissions made on behalf of respondents No. 1, 2 and 7. I have heard learned Counsel for the parties and also gone through the pleadings as well as documents appended with the petition. 8. It is not in dispute that rejection of the candidature of the petitioner is on the basis of contents of Annexure P-12. This annexure is a communication addressed by the respondent-Commission to the petitioner, which reads as under:- To VINOD KUMAR S/o Sh. SOM NATH SHYAMTOO PANCHKULA HARYANA134118 Dated Hamirpur  25April, 2019 App.ID1187553 Subject: Rejection of candidature for the post of Male Multipurpose Health Worker post code 650. Memo, I am directed to inform you that your candidature for the above mentioned post has been cancelled by the commission due to the following reason:- 1. You failed to produce registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council with in stipulated period. 2. You do not possess the essential qualification i.e. one & half years. Diploma in MMPW. Under Secretary H.P. Staff Selection Commision, Hamirpur, H.P." Under Secretary H.P. Staff Selection Commision, Hamirpur, H.P. 9. Though at the first glance, the impression which can be gathered from this communication is that the candidature of the petitioner has been rejected on two reasons assigned in therein, but that is not so, because it appears that Annexure P-12 was a cyclostyled communication issued by the respondent-Commission and the candidates were informed of the condition(s) which led to the rejection of their candidature by ticking the appropriate one. In this particular case, it is reason No. 1 which has been ticked and reason No. 2 has not been ticked. Meaning thereby that the candidature of the petitioner has been rejected on the ground that he failed to produce registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council. 10. In this particular case, it is reason No. 1 which has been ticked and reason No. 2 has not been ticked. Meaning thereby that the candidature of the petitioner has been rejected on the ground that he failed to produce registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council. 10. A perusal of the advertisement vide which the posts in issue were advertised by the Commission Annexure P-1 demonstrates that there was no such eligibility condition mentioned in the advertisement that only those candidates were eligible to participate in the process of appointment to the post of Male Multipurpose Health Worker who were registered as such with the H.P. Para Medical Council. Incidentally, the Recruitment and Promotion Rules of the post in issue are also appended as Annexure R-1A with the reply filed by respondents No. 1 and 4, which stood issued vide Notification dated 10th of August, 2011. A perusal thereof demonstrates that there is no such condition contemplated in the Recruitment and Promotion Rules also that being registered with H.P. Para Medical Council was one of the eligibility condition to participate in the selection process for the appointment to the post in issue. In these circumstances, in the considered view of this Court, rejection of the candidature of the petitioner by the respondent-Commission on the ground that the petitioner not being registered with H.P. Para Medical Council, is completely erroneous and not sustainable in law. 11. It is settled law that eligibility of a person is to be seen on the basis of rules of eligibility as are contained in the Recruitment and Promotion Rules as well as the advertisement. As has been observed hereinabove also, neither the Recruitment and Promotion Rules nor the advertisement provided that a person applying for the post of Male Multipurpose Health Worker should be registered with H.P. Para Medical Council. In the absence of any such condition being there either in the Recruitment and Promotion Rules or in the advertisement, the commission could not have had rejected the candidature of the petitioner on this ground on the basis of the instructions so issued by the State Government as relied upon by the respondentCommission. 12. In the absence of any such condition being there either in the Recruitment and Promotion Rules or in the advertisement, the commission could not have had rejected the candidature of the petitioner on this ground on the basis of the instructions so issued by the State Government as relied upon by the respondentCommission. 12. One more point upon which the Court wants to lay stress upon is that in the present case, the selection process to fill up the posts in issue stood initiated in the month of September, 2017, whereas the instructions so issued by the Government are dated 14.02.2019. In this view of the matter also, the subsequent notification could not have been applied retrospectively so as to adjudge the suitability of a candidate, as the same had to be assessed on the basis of the terms and conditions as were contained in the advertisement. 13. In view of the observations made hereinabove, this petition is allowed. Communication dated 25.04.2019 (Annexure P-12) is ordered to be quashed and set aside and the respondent-Commission is directed to consider the candidature of the petitioner on the strength of educational qualifications submitted by him with his application within a period of eight weeks from today. 14. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.