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2021 DIGILAW 474 (JK)

Mehrajuddin Mir v. State of J. K.

2021-09-13

PANKAJ MITHAL, SANJAY DHAR

body2021
ORDER : 1. Three writ petitions came to be filed raising controversy with regard to selection to the post of Junior Anesthesia Assistant pursuant to the advertisement Notice No. 7 of 2015 dated 2.12.2015. All the three writ petitions were decided by a common judgment and order dated 3.6.2019, which has been impugned by means of the present two appeals preferred under clause 12 of Letters Patent. 2. We have heard Mr. Mohsin Qadiri, learned senior advocate assisted by Mr. Tehseen Sofi, advocate, and Mr. Z. A. Shah, senior advocate assisted by Ms. Shiva Sharma, advocate, Mr. A.M. Dar, senior advocate with Mr. Mohd. Shafi, and Mr. Sajad Ashraf, learned counsel for the parties. 3. The sole controversy is regarding the minimum qualification required for holding the post of Junior Anesthesia Assistant. According to the advertisement notice, the qualification prescribed is “10+2 with Science and Diploma in Anesthesia Technology from SMF or any other recognized institute.” 4. It is alleged that on the basis of subsequent notifications, candidates possessing qualification of “10+2 with Science and Diploma in Anesthesia and those with Diploma in Operation Theatre Technology” were also considered and selected thus excluding the petitioners/appellants. 5. The writ court by the impugned judgment held that as the minimum qualifications for the above post were not covered by the relevant rules i.e. SRO No. 20 of 1992 [The Jammu and Kashmir Health and Medical (Subordinate) Service Recruitment Rules, 1992] the qualification as prescribed by the government order No. 252-HME of 2012 dated 26.3.2012 would prevail upon the advertisement which provided for the minimum qualification on the said post as “10+2 with diploma in Anesthesia/Operation Theatre Technology and to accord preference to those possessing degree in Anesthesia/Operational Theatre Technology.” 6. The submission of learned counsel for the petitioners/appellants is that the selection is ultra-vires to the advertisement dated 2.12.2015 inasmuch as the qualifications different from that contained in the advertisement were considered in making the selection. Secondly, the selection could not have been done on the basis of any clarificatory order dated 29.6.2018 as the selection was already over before the said date. Lastly, the posts of Junior Anesthesia Assistant and that of the Anesthesia Assistant are two separate posts and, therefore, the qualifications prescribed for Anesthesia Assistant cannot be applied to selecting candidates for the post of Junior Anesthesia Assistant. 7. Mr. Lastly, the posts of Junior Anesthesia Assistant and that of the Anesthesia Assistant are two separate posts and, therefore, the qualifications prescribed for Anesthesia Assistant cannot be applied to selecting candidates for the post of Junior Anesthesia Assistant. 7. Mr. Shah, learned senior counsel, on the other hand submits that the petitioners/ appellants are all unsuccessful candidates; they have voluntarily participated in the selection process and as such are debarred from questioning the selection. They cannot be permitted to blow hot and cold in the same breath. 8. Mr. Sajad Ashraf, GA, apart from placing reliance upon government order dated 26.3.2012 has also placed strong emphasis upon the communication dated 18.12.2015. 9. First, let us examine if the post of Junior Anesthesia Assistant or Anesthesia Assistant are two different posts. 10. The various categories of posts within the J&K Health and Medical Subordinate Services are provided under SRO 20 of 1992 with the corresponding minimum qualifications required for each category of the posts. The said SRO, however, does not mention any post under the nomenclature of Junior Anesthesia Assistant or Anesthesia Assistant. It appears that the post of Junior Anesthesia Assistant/Anesthesia Assistant was created subsequently and, as such, was not part of the above SRO. Accordingly, there were no qualifications prescribed for holding the said post. In order to mitigate the aforesaid hardship, government order No. 252-HME of 2012 dated 26.3.2012 was issued prescribing the minimum qualifications for the post of Anesthesia Assistant. No separate qualifications were prescribed for the post of Junior Anesthesia Assistant probably for the reason that Junior Anesthesia Assistant happens to be a post of Anesthesia Assistant with the same qualification. 11. Accordingly, the post of Anesthesia Assistant includes within its ambit the post of Junior Anesthesia Assistant also. It can be described as Junior or Senior Anesthesia Assistant depending upon the experience in service. The post is only that of Anesthesia Assistant but for the sake of convenience it may have been given the nomenclature of Junior Anesthesia Assistant and those having experience of work on the said post may with the passage of time be recognized as Senior Anesthesia Assistant. In effect there is no separation between Junior or Senior Anesthesia Assistant and both of them fall in the category of Anesthesia Assistant. In effect there is no separation between Junior or Senior Anesthesia Assistant and both of them fall in the category of Anesthesia Assistant. Accordingly, the minimum qualification prescribed for the post of Anesthesia Assistant would apply for the recruitment of Junior Anesthesia Assistant as well. 12. In order to resolve the above controversy as to minimum qualification required for the post of Junior Anesthesia Assistant, it would be appropriate to first examine the advertisement Notice No. 7 of 2015 dated 2.12.2015 issued by the J&K Service Selection Board. The said advertisement clearly provides for the following qualifications for the post of Junior Anesthesia Assistant in the department of Health and Medical Education: “10+2 with Science and Diploma in Anesthesia Technology from SMF or any recognized institute.” 13. It appears that the Directorate of Health and Services vide communication dated 18.12.2015 informed the Secretary to the Government, Health and Medical Education Department, that due to oversight, the prescribed qualification for the post of Anesthesia Assistant has incorrectly been mentioned in the requisition and that since the said post is not covered under SRO 20 of 1992, the qualification prescribed in terms of the government Order No. 252-HME of 2012 dated 26.3.2012 would apply, which read as under: “10+2 with diploma in Anesthesia/Operation Theatre Technology, however, degree holders in Anesthesia/Operational Theatre Technology will be preferred.” It is thereafter that the J&K Service Selection Board allowed the candidates with Diploma in Operation Theatre Technology also to participate in the selection process for the post of Junior Anesthesia Assistant by taking into account the qualification as per the government Order No. 252-HME of 2012 dated 26.3.2012. Accordingly, a select list was prepared and issued on 30.12.2017 bearing No. SSB/Sel/Secy/2017/13864-67. 14. After the provisional select list was prepared some of the candidates filed representations whereupon the government forwarded the same to the J&K Service Selection Board on 19.2.2018, in response to which it was notified vide communication dated 29.6.2018 that candidates having Diploma in Operation Theatre Technology may also be considered and selected. 15. It is pertinent to mention here that the qualifications prescribed for the post would be governed by the statutory rules or the regulations and the government orders, and not by the conditions of the advertisement alone. 15. It is pertinent to mention here that the qualifications prescribed for the post would be governed by the statutory rules or the regulations and the government orders, and not by the conditions of the advertisement alone. In case the conditions or the qualifications prescribed in the advertisement are contrary to the rules and regulations, it is the rule that will prevail and override the advertisement. The advertisement cannot be inconsistent with the rule. 16. In Ashish Kumar vs. State of U.P. and Others, (2018) 3 SCC 55 , in context with the service law where the eligibility criteria/conditions for the purpose of recruitment process were under consideration, the court held that where the conditions in the advertisement are at variance with the statutory rules, the statutory rules would take precedence. In this connection, the court relied upon the proposition of law as laid down by the Apex Court in Malik Mazhar Sultan vs. U.P. Public Service Commission, (2006) 9 SCC 507 . In view of the above, as in our case the SRO No. 20 of 1992 by annexure/schedule does not prescribe any qualification for the post of Anesthesia Assistant/Junior Anesthesia Assistant, the minimum qualifications thereof have to be governed by the government order on the subject i.e. Order No. 252-HME of 2012 dated 26.3.2012. The said government order specifically lays down the minimum qualification for the post of Anesthesia Assistant in Government Medical College Jammu/Sri Nagar. The aforesaid government order was issued probably for the reason that the aforesaid post was not covered in the SRO 20 of 1992 and there were no qualifications prescribed in the said post. 17. It is an admitted position that SRO No. 20 of 1992 which provides for the minimum qualification does not include the post of Junior Anesthesia Assistant/Anesthesia Assistant and, as such, any qualification prescribed therein for other posts would not apply to the post of Junior Anesthesia Assistant. In respect of the Anesthesia Assistant, the minimum qualifications have been prescribed by the government order dated 26.3.2012, which is as under: “10+2 with diploma in Anesthesia/Operation Theatre Technology, however degree holders in Anesthesia/Operational Theatre Technology will be preferred.” It means that for the said post, 10+2 with Diploma in Anesthesia or Operation Theatre Technology are the minimum qualifications and in the advertisement the qualification of Diploma in Operation Theatre Technology was inadvertently left out or omitted. In these circumstances, it cannot be said that any candidate has been selected in contravention of the minimum prescribed qualification and that the selection is contrary or ultra-vires the advertisement. The selection is according to the statutory qualifications prescribed, one of which was left out in the advertisement but was clarified vide communication dated 18.12.2015 much before the selection was undertaken and concluded. 18. The submission that the selection could not have been done on the basis of clarificatory order dated 29.6.2018 is completely misconceived inasmuch as the selection was completed on 30.12.2017. It was done in the light of the government order dated 26.3.2012 and the communication dated 18.12.2015, which were in vogue at the relevant time. The clarificatory order dated 29.6.2018 came into existence only on the representation of some of the candidates and it had no bearing on the selection. 19. The petitioners/appellants have relied upon State of Bihar and Others vs. Mithilesh Kumar, (2010) 13 SCC 467 . In the said case it has been held that the change in selection policy or the norms of recruitment could be applied prospectively only and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process had commenced. The aforesaid authority has no application to the facts of the present case inasmuch as there is no change of policy or the norms of recruitment. The respondents have only applied the minimum qualifications prescribed for the post of Anesthesia Assistant as per the government order dated 26.3.2012, which was in vogue both at the time of issuance of advertisement as well as at the time of finalizing the selection process. 20. Similar would be the position with the decision of the Supreme Court in Hemani Malhotra vs. High Court of Delhi, (2008) 7 SCC 11 wherein it has been held that rules of the game or of the selection process cannot be changed after the process is over. In the said case, initially only minimum marks were prescribed for the written test and not for viva voce but subsequently after the written test was over, minimum marks even for viva voce were prescribed. In the said case, initially only minimum marks were prescribed for the written test and not for viva voce but subsequently after the written test was over, minimum marks even for viva voce were prescribed. It is in the above context that the court held that changing of rules of the game after the commencement of the game or the selection process is not permissible. In the case at our hand, the minimum qualifications for the post of Anesthesia Assistant stand duly prescribed vide government order dated 26.3.2012 and they were not changed in between. It was only for the reason that the minimum qualifications as mentioned in the advertisement were at variance with those prescribed by the government order that the respondents gave precedence to the government in completing the process of selection which does not amount to changing the rules of the game. 21. In K. Manjusree vs. State of Andhra Pradesh and Another, (2008) 3 SCC 512 , it has been laid down that the eligibility criteria has to be prescribed in advance. The said authority is of no assistance to the petitioners/appellants as the minimum qualifications or the criteria for selection was prescribed much before to the commencement of the selection process and it is not a case of any change of the criteria except for the fact that the respondents in making the selection applied the correct criteria as per the government order rather than sticking to the incorrect minimum qualifications mentioned in the advertisement. 22. In view of the aforesaid facts and circumstances, we are of the opinion that the judgment and order passed by the learned Single Judge deserves no interference and the appeals are bereft of merit and are dismissed.