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2021 DIGILAW 2340 (RAJ)

Rai v. State of Rajasthan

2021-12-15

ARUN BHANSALI

body2021
ORDER 1. This writ petition has been filed by the petitioner aggrieved against cancellation of her application for the post of ANM on urgent temporary basis pursuant to the advertisement dated 19.06.2021. 2. The advertisement dated 19.06.2021 (Annex.1) was issued by the respondents seeking applications for 250 posts of ANM on urgent temporary basis. The professional qualifications required as indicated in the advertisement were that the candidate must have passed ANM course, must be compulsorily registered with the Rajasthan Nursing Council and was required to attach the bona fide resident certificate, caste certificate, marriage certificate and other documents. 3. The petitioner applied on 25.06.2021 and alongwith the application, attached fee receipt from the Rajasthan Nursing Council dated 14.06.2021, which pertains to her ANM registration fees. 4. When the provisional merit list dated 20.07.2021 (Annex.3) was issued, the application of the petitioner was rejected, inter-alia, indicating that though the petitioner found place in the provisional merit list, as she was not registered with the Rajasthan Nursing Council, her application has been rejected. 5. Subsequently, the petitioner got registration from the Rajasthan Nursing Council on 13.08.2021. It is claimed that the document verification pursuant to the provisional merit list were held on 30.11.2021 and 01.12.2021. 6. Learned counsel for the petitioner submitted that rejection of petitioner's candidature by the respondents on account of lack of registration with the Rajasthan Nursing Council is not justified, inasmuch as, before the last date of application, the petitioner had applied with the Rajasthan Nursing Council for registration. 7. Submissions were made that this Court in Manju v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No. 13299/2017, decided on 08.12.2017, had directed consideration of candidature of the petitioners therein for the post of ANM under the National Health Mission, who had applied for registration before the last date of making application and who had certificates before the date of document verification and as such, the action of the respondents in rejecting the application of the petitioner is not justified. 8. Reliance has also been placed on judgment in Ashok Kumar Purohit v. State of Rajasthan: 2006 WLC (Raj) UC 154 and State of Rajasthan v. Anil Vishnoi & Ors.: D.B. Special Appeal No.286/2021, decided on 02.12.2021. 9. 8. Reliance has also been placed on judgment in Ashok Kumar Purohit v. State of Rajasthan: 2006 WLC (Raj) UC 154 and State of Rajasthan v. Anil Vishnoi & Ors.: D.B. Special Appeal No.286/2021, decided on 02.12.2021. 9. Learned counsel appearing for the State submitted that the stipulation in the advertisement was very specific, wherein, the requirement of registration with Rajasthan Nursing Council was emphasized by indicating 'compulsory' (3iPic|i4) in the advertisement. 10. Further submissions have been made in terms of Rajasthan Medical and Health Subordinate Rule, 1965 ('Rules of 1965') also, the eligibility has to been seen on the last date of application and, therefore, as admittedly the petitioner was not in possession of the requisite certificate on the date of application/last date of application, the petitioner is ineligible and, therefore, her application has been rightly rejected. 11. Reliance has been placed on judgment in State of Rajasthan & Ors. v. Zaiba & Ors.: D.B. Special Appeal Writ No.252/2019, decided on 24.04.2020. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. The advertisement dated 19.06.2021 (Annex.1) indicates the following eligibility requirements :- 14. Admittedly, the petitioner on the date of application was not in possession of requisite registration certificate with Rajasthan Nursing Council as she had applied on 14.06.2021 for registration with the Rajasthan Nursing Council as is evident from the fee receipt produced by the petitioner. 15. The last date of filing of the application on which date the petitioner applied was 25.06.2021. Till that date also, the petitioner was not in possession of the requisite eligibility i.e. registration with the Rajasthan Nursing Council and consequently, by order dated 20.07.2021 (Annex.3), wherein, the provisional merit list was issued, the application of the petitioner was rejected. 16. The entire plea raised by the petitioner, is based on the judgment in the case of Manju (supra). 16. The entire plea raised by the petitioner, is based on the judgment in the case of Manju (supra). In the case of Manju (supra) a Single Judge inter-alia directed as under:- "Thus, in light of the aforesaid observations the present petitions are disposed of with a direction to the respondents to consider the petitioners eligible for the post of ANM under the National Health Mission on contract basis arising out of advertisement dated 28.02.2016 on the following terms :- (a) The petitioners who have applied for registration on or before 28.2.2016 shall be treated as eligible as far as condition of registration is concerned and shall be permitted to participate in the selection process and shall be given appointment strictly in accordance with their merits. (b) However, the condition no. (a) shall apply if the candidates have the certificate on or before 02.2.2017, which is the date of verification. Thus, in both the conditions, the petitioners need to have registration receipt (which means in Rajasthan Nursing Council) before 28.2.2016 and simultaneously have certificate on or before 02.2.2017" 17. The judgment in the case of Manju followed the Division Bench judgment in Ashok Kumar Purohit (supra), the Division Bench in the case of Ashok Kumar Purohit (supra) inter-alia observed and directed as under:- "5. As a proposition of law we agree with counsel for the respondents that in the absence of any rule as to the cut-off date the date mentioned in the advertisement notice or in the absence of any such cut-off date in the advertisement notice, the last date of submission of application should be treated as the cut-off date with reference to which eligibility of the candidate is to be determined. However, in the instant case we are not able to appreciate as to why the appellant should suffer for the lapses on the part of the authorities of the Nursing Council. As stated above, the appellant had submitted application well within time on 24th February, 2003. As a matter of fact other 130 candidates whose names were referred to the Karnataka Nursing Council for similar verification were registered but case of the appellant was deferred. Nothing has been brought on record as to why appellant was not registered alongwith them. As stated above, the appellant had submitted application well within time on 24th February, 2003. As a matter of fact other 130 candidates whose names were referred to the Karnataka Nursing Council for similar verification were registered but case of the appellant was deferred. Nothing has been brought on record as to why appellant was not registered alongwith them. In the peculiar facts of the case we are of the view that notwithstanding that the appellant was registered later than the cut-off date he should not be held to be ineligible for consideration for appointment on the post of Nurse Gr.II. 6. In course of hearing it transpired that selection on the post has been stayed by this Court. If that is so, it would follow that the vacancies are available against which case of the appellant can be considered." 18. A perusal of the above would indicate that the Court though came to the conclusion that the eligibility is required on the last date of application, however, in view of the fact that out of 131 candidates, while 130 candidates were registered with the Nursing Council but the petitioner therein was not registered and no reason was forthcoming, the Court observed that 'in the peculiar facts of the case', the petitioner should not be held ineligible for consideration. 19. Once the Court in the peculiar circumstances of the case, had granted the relief, which facts apparently are not present in the present case, it cannot be said as a Rule, irrespective of the indication made in the advertisement making the registration with the Rajasthan Nursing Council as compulsory, the candidates, who have applied for registration before the last date would automatically become eligible. 20. In the case of Zaiba (supra), the Division Bench, faced with the similar issue, after referring to various provisions of Rules of 1965, which are applicable to the present recruitment as well, came to the following conclusion:- "24. Indubitably, the writ petitioners were not holding the requisite qualification as on the date of submission of the application forms online inasmuch as, at the relevant time, they were pursuing their internship and had not acquired the registration with RPMC after completion of the professional course. Indubitably, the writ petitioners were not holding the requisite qualification as on the date of submission of the application forms online inasmuch as, at the relevant time, they were pursuing their internship and had not acquired the registration with RPMC after completion of the professional course. Merely because, they were permitted to fill up the application form, notwithstanding that they were not holding the requisite qualification as on the date of the submission of application form online, pursuant to an interim order passed by this Court, no right is created in their favour. The requirement of the eligibility qualification as on the date of the submission of the application form as specified in the advertisement, cannot be relaxed inasmuch as there is no provision in the Rules of 1965 permit such relaxation. Moreover, many more persons who were not having the qualification as on the date fixed for submission of the application form but were in position to obtain the requisite qualification subsequent thereto, might not have even applied for appointment to the post. That apart, if the writ petitioners who are not otherwise eligible to apply for the post, are permitted to participate in the selection process and stand in merit, other persons who were having the requisite qualification as on the date of submission of the application form, may be deprived of the appointment. In the considered opinion of this Court, the cut-off date fixed for the eligibility qualification while initiating the recruitment process needs to the adhered to strictly so as to maintain transparency and fairness in the recruitment process undertaken for public employment. 25. At this stage, it is noticed that the learned Single Judge has declared Condition No.6 (ii) of the advertisement as contrary to the Rules of 1965 as amended by Rules of 1999, but then, a perusal of the advertisement reveals that there exists no Condition No. 6 (ii) in the advertisement issued, rather, Clause 6 of the advertisement deals with eligibility and academic qualification, wherein, at serial no.2 the academic/ professional qualification and other eligibility required for the recruitment to the post of Lab Technician is mentioned. However, it is apparent that the learned Single Judge intended to declare that part of Clause 6 as illegal and void, which prescribes that the person applying for recruitment to the post must possess the eligibility qualification as on the date of submission of the application form, which is not found to be correct and justified by us for the reasons mentioned hereinabove. 26. In view of the discussion above, the special appeal deserves to be allowed. 27. Accordingly, the special appeal is allowed. The order under appeal dated 7.5.18 passed by the learned Single Judge is set aside. The writ petition preferred by the respondents-writ petitioners is dismissed. No order as to costs." 21. The Division Bench on considering the provisions and conning to the conclusion that no relaxation can be provided and in view of the fact that there may be more persons not having the qualification on the last date fixed for submissions of form and were in a position to obtain the requisite qualification subsequent there to, might not have applied for the post, cannot based on interpretation sought to be put, be deprived of the same and consequently, the judgment of the Single Judge granting relief based on earlier law was set aside. 22. So far as the judgment in the case of Anil Vishnoi (supra) is concerned, the same pertain to an advertisement, wherein, a specific stipulation was made in the advertisement that judgment in the case of Manju (supra) was the basis for the purpose of eligibility. 23. Once the indications made in the case of Manju (supra) were incorporated in the advertisement by reference, the eligibility itself stood modified and those who had applied for registration, automatically become eligible. 24. In that view of the matter, the judgment in the case of Anil Vishnoi (supra) has no application to the facts of the present case, inasmuch as, noticed hereinbefore, the present advertisement makes registration with Rajasthan Nursing Council as compulsory on the date of application. 25. In that view of the matter, the rejection of petitioners' candidature is in sync with the stipulation made in the advertisement and the law laid down by Division Bench of this Court in the case of Zaiba (supra) pertaining to the eligibility under Rules of 1965 and as such, the same does not call for any interference. 26. 25. In that view of the matter, the rejection of petitioners' candidature is in sync with the stipulation made in the advertisement and the law laid down by Division Bench of this Court in the case of Zaiba (supra) pertaining to the eligibility under Rules of 1965 and as such, the same does not call for any interference. 26. Consequently, there is not substance in the writ petition, the same is, therefore, dismissed.