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2021 DIGILAW 403 (HP)

Anil Kumar v. State Of H P & Ors.

2021-07-14

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - Since, both the afore writ petitions encapsulate similar subject matters, and, also since common question of facts, and, law are involved in all the afore writ petitions, thereupon, they are amenable for a common verdict being made thereon. 2. In pursuance to advertisement notice, borne in Annexure P-1, the writ petitioners applied for the advertised post of Male Multipurpose Health Workers. The appointments to the afore advertised post, was published to be made on a contractual basis. The petitioners applied for the afore post. In contemporaneity to the issuance of the afore advertisement notice, the R & P Rules appended as Annexure R-1, were both in vogue, and, obviously held their clout. Furthermore, the minimum educational, and, other qualifications required to be possessed by the aspirants concerned, stand detailed therein, in the manner extracted hereinafter:- 7. Minimum Educational and other qualification required for direct recruits a) Essential Qualification 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(M) from a recognized institution of the State Government. b)DESIRABLE QUALIFICATIONS:- Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh. Both the writ petitioners as disclosed by a thorough, and, incisive perusal of the record, did, at the relevant time/stage, appertaining to the issuance of the advertisement notice, accomplish both the afore conditions. Importantly, as, respectively disclosed by Annexure P-11 ( in CWPOA No.5306 of 2019), and by Annexure P-13 (in CWPOA No. 6024 of 2019), they also accomplished the second imperative condition, of theirs possessing the required certificate from a recognized institution of the State Government, hence, reflecting that they have completed one and half years course of MPW(M). 3. Be that as it may, the respondents through theirs making a reply to the writ petition(s), contested the eligibility of the writ petitioner to apply against the advertised post concerned, inasmuch, as, theirs not satisfying the second imperative condition, and, as becomes grooved in the factum of theirs not possessing, the certificates reflecting that they had completed one and half years training as MPW(M), from an institution recognized by the State Government. The respondents, as, reflected by Annexure R-6, and, by Annexure R7, are rather, in the process of making amendments appertaining to the educational qualification, as, are deemed imperative or essential, to be possessed by the aspirants concerned, to the post of MPW(M). The proposed Rules in substitution of the earlier Rules, are cast, in a phraseology, hence enjoining, upon the aspirants concerned to complete one and half years course, as MPW(M), and, also cast a further necessity of theirs being registered with Para Medical Council of Himachal Pradesh. The proposed amendments, obviously, do not acquire the force of statutory Rules nor the proposed amendments, for want of theirs receiving the assent of the Governor, can be construable to validly substitute or amend the earlier Rule, as pointedly applicable in contemporaneity to the advertised posts falling vacant, wherein, a stipulation, exists that the aspirants concerned, are required to possess a training certificate, reflecting that they had undergone training for one and half year as MPW(M), from a recognized institution "of the State Government". Succinctly, the apposite unsubstituted provision, is, hence also for want of its being amended in accordance with law, is, for the reasons aforestated, the relevant norm for adjudging the suitability or otherwise of the petitioner or for adjudging whether they had fulfilled or satiated, the imperative condition (supra). Necessarily, and, for reiteration, the afore unsubstituted Rule, did alone held sway, and, clout, as, it was in force or in vogue, emphassisingly, at the time of issuance of advertisement notice. 4. Therefore, when the respondent do not contest, that the certificate(s), as, submitted by the petitioners, in theirs hence satiating the relevant qualification, and, as stand issued by the Director-cum-Principal, MM College of Nursing, Maharishi Markandeshwar University, Mullana, Ambala, emanate from an Educational institution, not recognized by the Government of Harayana. Moreover, when there is no specific and candid enunciation,, in the Rule (supra), that the certificate(s), require(s) recitals that the aspirant(s) has completed the ordained tenure, from an Institution recognized by the Government of Himachal Pradesh. Therefore, when, as aforestated, the training certificates, are not demonstrated, to be issued by an Institution, not recognized by the Government of Haryana. Moreover, when there is no specific and candid enunciation,, in the Rule (supra), that the certificate(s), require(s) recitals that the aspirant(s) has completed the ordained tenure, from an Institution recognized by the Government of Himachal Pradesh. Therefore, when, as aforestated, the training certificates, are not demonstrated, to be issued by an Institution, not recognized by the Government of Haryana. Consequently, this Court holds that the words "of the State Government" occurring in the last portion of the norms/Rules, mandating, the possession of certificate(s) of training, for a duration of one and half years, from a recognized institution concerned, are to be read as appertaining, to any State Government, as the Rule drawing Authority if deemed fit, for rather qualifying the afore words, to, appertain only to the State Government of H.P., would make an alike open and candid echoing in the unamended Rule. However it omitted to make the apposite echoings therein. Since no clear and precise phraseology limiting or clarifying the words "of the State Government", inasmuch as only to the Government of Himachal Pradesh, is not included therein. Therefore, this Court concludes, that the coinage "recognized institution of the State Government", occurring in Clause (ii) of Rule 7 of the Apposite Rules, also includes any institution recognized by any State Government, within the Union of India, including the Government of Haryana, unless material is bring forth suggestive, that the training institution concerned, not being recognized by the Government of Haryana, material whereof, is not existing on record. Furthermore, the amendment as tried to be made to the Rules (supra) has not been completed or is yet under contemplation. Consequently, the necessity of the aspirants, as mandated in the proposed Rules or in the Rules under contemplation, for theirs being registered with Para Medical Council of Himachal Pradesh, necessity whereof, does not exist, in the in-vogue and applicable Rules, at the stage of issuance of advertisement notice, is an uncalled for necessity, and, any call for any adherence thereto would prejudice, and, infract the mandate carried in Clause (s) of Rule 7 of the afore applicable Rules. 5. For the foregoing reasons, there is merit in the extant petitions, and, both the afore petitions are allowed. Consequently, the annexure(s) impugned before this Court are quashed and set aside, and, the respondents are directed to, in accordance with law, consider the candidature of the petitioners for the advertised post(s). 5. For the foregoing reasons, there is merit in the extant petitions, and, both the afore petitions are allowed. Consequently, the annexure(s) impugned before this Court are quashed and set aside, and, the respondents are directed to, in accordance with law, consider the candidature of the petitioners for the advertised post(s). All pending applications also dismissed.