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2023 DIGILAW 377 (TS)

P. Harika v. State of Telangana

2023-06-05

SUREPALLI NANDA

body2023
ORDER : Heard the Learned Counsel for the Petitioner and the Learned Assistant Government Pleader for Services-II. 2. The present Writ Petition is being filed seeking to declare that the petitioner is entitled to be considered and appointed as Food Safety Officer in the Office in the Director, Institute of Preventive Medicine Public (Health) Laboratories and Food (Health) Administration and Greater Hyderabad Municipal Corporation in the State of Telangana, consequent to the declaration of the results dated 01/06/2020, in pursuance of the Notification No. 10/2019 dated 31/12/2019 issued by the 2nd Respondent and consequently the action of the respondents in not considering the claim of petitioner for appointment to the post of Food Safety Officer on the ground that the Petitioner is holding a degree in Medicine in Homeopathy and not including the name of the petitioner in the provisional selection list dated 18.07.2020 for the post of Food Safety Officer. 3. The case of the Petitioner, in brief, is as follows: A) The Petitioner herein belongs to BC-D category (Mudiraj Caste) and has passed Bachelor of Homeopathic Medicine and surgery in the year April 2008 from Dr. NTR University of Health Sciences, Vijayawada, A.P. Subsequently, in January 2014 petitioner also had passed Post-Graduation degree of Doctor of Medicine in Homeopathy from the J.S.P.S. Government Homeopathic Medical College, Hyderabad, T.S. and had been working as Scientific Officer on contract basis. B) Subsequently, the 2nd Respondent had issued a Notification No. 10/2019 dated 31.12.2019, for General Recruitment of Food Safety Officer in the Director, Institute of Preventive Medicine Public (Health) Laboratories and Food (Health) Administration and Greater Hyderabad Municipal Corporation and in the said notification, it is stated that whoever possess the requisite qualification for the post code 01 and 02 may apply online by satisfying themselves about the terms and conditions of this recruitment. C) Petitioner, being eligible, had applied online for the notified post at PATA 1 Clause (3) of the post code 01 and 02, since the petitioner had complied with the requisite education qualification and other conditions as detailed in the notification No. 10/2019 dated 31/12/2019 for the post of Food Safety Officer stated at Post Code 01 and 02. The petitioner appeared for the exam for the post of Food Safety Officer. D) The results of the examination conducted were declared on 01/06/2020 and the petitioner had secured 100th Rank. The petitioner appeared for the exam for the post of Food Safety Officer. D) The results of the examination conducted were declared on 01/06/2020 and the petitioner had secured 100th Rank. The minimum qualifying marks for selection of BCs is 35% and the petitioner has cleared the exam and was intimated to upload the certificates for online verification. On 10/06/2020, the petitioner has submitted all the required certificates for online verification by the respondents. E) On 18/07/2020 the 2nd Respondent had released the selection notification and the petitioner’s Hall Ticket was not published in the list, inspite of Petitioner securing 100th Rank in the said examination. However, candidate holding Rank No. 131 was provisionally selected and published in the list. F) Later on, it was informed that the petitioner was not selected since the petitioner holds degree in Homeopathy Medicine and the same cannot be considered for the post of Food Safety Officer. It is further submitted that, the petitioner after having gone through all the selection process as required and having permitted to participate in the process of selection, the petitioner cannot be denied with the opportunity of being considered and appointed as Food Safety Officer after having secured 177/300 marks and Rank No. 100 in the examination conducted on 23/02/2020 and being eligible for the said post in BC-D category in Zone-VI - Charminar. G) The manner in which the list dated 18-7-2020 is released with a candidate holding lesser rank than the petitioner is obviously arbitrary, illegal and is also contrary to the Principles of law laid down by the Hon’ble Supreme Court particularly reported one of the Judgment in 2006 (2) SCC 747 . Hence, the Writ Petition. PERUSED THE RECORD : 4. Order dated 20.08.2020 passed in I.A. No.1 of 2020 in W.P. No. 13173 of 2020 reads as under: “Since prima facie the Court is satisfied that petitioner was erroneously ignored, balance of convenience is in her favour. While directing learned standing counsel to obtain instructions as to how the petitioner was ignored for consideration by treating her qualification as not valid qualification, the respondents are directed to keep one vacancy in BC (D) category unfilled, if so far appointment orders are not issued and the appointed candidates have not joined in the vacancies. While directing learned standing counsel to obtain instructions as to how the petitioner was ignored for consideration by treating her qualification as not valid qualification, the respondents are directed to keep one vacancy in BC (D) category unfilled, if so far appointment orders are not issued and the appointed candidates have not joined in the vacancies. It is made clear that the vacancy earmarked to be filled up by the lower meritorious candidate only should be kept aside. Learned standing counsel is directed to furnish the details of one lower meritorious candidate in BC (D) category who is likely to be affected, if petitioner succeed!; in the writ petition to learned counsel for the petitioner and on receiving the same, the petitioner shall take steps to implead that candidate: belonging to BC ( D) category. At request of learned standing counsel and learned Government Pleader, post on O1.09.2020 along with W.P.No.12961 of 2020.” 5. Para 3, 4, 6, 8 & 10 of the Counter Affidavit filed by the 3rd Respondent, read as under: “Para 3. It is respectfully submitted that, the Respondent No.3 has notified the (10) vacancies to the post of Food Safety Officer/Food Inspector along with other posts in Institution of Preventive of Medicine, Public Health Lab and Food (Health) Administration, Hyderabad to the Respondent No.2 i.e., The Telangana State Public Service Commission, Hyderabad, Telangana state vide Rc.No.3037/TS/IPM/E6(E1)/2016, dated 22.09.2016 and vide Rc.No.5032/E6/2016-2018, DATED 30.06.2018 to fill up the above vacancies along with the Break up of the Rule of Reservation for the above vacancies. Para 4. It is respectfully submitted that, the Respondent No.3 clearly informed to the Respondent No.2 regarding the requisite Education Qualifications to fill up the Food Safety Officer post as per FSS Rules 2011 and G.O.Ms.No.20 HM&FW (C2) Dept., dated 20.03.2018 that, the candidate must possess A degree in Food Technology (or) Dairy Technology (or) Bio Technology (or) Oil Technology (or) Agricultural Science (or) Veterinary Science (or) Bio-Chemistry (or) Microbiology (or)Masters Degree in Chemistry (or) Degree in Medicine from a recognized university (or) any other equivalent/Recognized qualification notified by the Central Government. Para 6. Accordingly, the petitioner has applied to the post of Food Safety Officer as he is having the qualification of Bachelor of Homeopathic Medicine and Surgery Degree and the petitioner appeared in the examination held on 23.02.2020 which was conducted by the Respondent No.2. Para 8. Para 6. Accordingly, the petitioner has applied to the post of Food Safety Officer as he is having the qualification of Bachelor of Homeopathic Medicine and Surgery Degree and the petitioner appeared in the examination held on 23.02.2020 which was conducted by the Respondent No.2. Para 8. Further, it is respectfully submitted that, the Respondent No.2 i.e., Commission, TSPSC has processed whole of the Recruitment procedure of selection to the post of Food Safety Officer in both the institutions i.e. IPM and GHMC, Hyderabad and submitted the Provisionally selected (9) candidatures list to the Respondent No.3 vide Rc.No.629/Rectt/Pool- 11/3/2017, Dated:27-07-2020 with a request to verify the antecedents as per the procedure prescribed in the Govt. Circular Memo No.552/Sc. B/A1/2007-3, Dated: 01-07-2008 duly following the procedure laid down in Rule 11(a) of Telangana state and subordinate Services Rule and other Rules, if any, issued by the Govt. from time to time before issuing the appointment orders. The whole exercise in this regard may be completed within a maximum period of (3) months. Appointment orders are to be issued to the eligible candidates only after fully satisfying with regard to all the relevant particulars of the candidates by the unit officer duly following the rules issued by the Government from time to time. But, on verification of the list the petitioner’s name was not mentioned in the above Provisionally selected (9) candidatures list. Para 10. Further, it is respectfully submitted that, the decision of the Respondent No. 2 i.e. Commission, TSPSC, Hyderabad in all aspects pertaining to the application and its acceptance or rejection as the case may be pertaining to conduct of examination and at all consequent stages culmination in the selection or otherwise of any candidate shall be final in all respects and binding on all concerned, under the powers vested with it under Article 315 and 320 of the Constitution of India.” 6. Para 11, 12 and 13 of the Counter Affidavit filed by the Respondent No.6 read as under: “Para 11. I submit that when the qualification of the petitioner is observed it can be construed that she assumed possessing of Degree in Homeopathic Medicine and Surgery is equal to Degree in Medicine prescribed in the Notification for the post of FSO. But actually the qualification of Degree in Homeopathic Medicine and Surgery is not equivalent to the Degree in Medicine prescribed in the notification. But actually the qualification of Degree in Homeopathic Medicine and Surgery is not equivalent to the Degree in Medicine prescribed in the notification. As such the petitioner’s candidature was rejected. Para 12. I submit that to examine the qualification issues, the TSPSC has constituted a Subject experts Committee with the following Members. 1. Prof. Kavita Waghray, Osmania University. 2. Prof. V. Vijaya Lakshmi, PJTSAU, Hyderabad. 3. Mrs. M. Jaya Surya Kumari, KotiWomens College O.U. Para 13. The subject Experts committee thoroughly scrutinized the qualifications of the petitioner along with others and submitted report on 02.09.2020. As per the Subject Expert Committee report the qualification of the petitioner i.e., Degree in Homeopathic Medicine and Surgery is not equivalent to prescribed qualification in Notification i.e., Degree in Medicine since the Degrees such as BDS, MDS, BAMS, BHMS, BUMS and BYNS were not figured in the schedules of Indian Medical Council Act, 1956. As such the petitioner’s candidature was rejected. I submit that along with the petitioner some more candidates with BDS, BAMS, BHMS qualifications were also rejected on the same grounds.” 7. Para 7, 10 and 12 of the Counter Affidavit filed by 2nd respondent, read as under: “Para 7. I submit that the following are the qualifications prescribed for the post of Food Safety Officer vide Notification No.10/2019. Post Code Name of the Post Educational Qualification as specified by the Department as per G.O.Ms.No.20, HM&FW (C2) Dept., dated 20.03.2018. 01 Food Safety Officer in IPM. i) A degree in Food Technology or Dairy Technology or Biotechnology or Oil Technology or Agricultural Science or Veterniary Sciences or Bio Chemistry or Microbiology or Master’s Degree in Chemistry or Degree in Medicine from a recognized university. OR ii) Any other equivalent/recognised qualification notified by the Central Government. 02 Food Safety Officer in GHMC. Para 10. The Subject Experts committee thoroughly scrutinized the qualifications of the petitioner along with others and submitted report on 02.09.2020. As per the Subject Expert Committee report the qualification of the petitioner i.e., Degree in Homeopathic Medicine and Surgery is not equivalent to prescribed qualification in the Notification i.e., Degree in Medicine since the Degrees such as BDS, MDS, BAMS, BHMS, BUMS and BYNS which were not figured in the Schedules of Indian Medical Council Act, 1956. As such the petitioner’s candidature was rejected. As such the petitioner’s candidature was rejected. I submit that along with the petitioner some more candidates with BDS, BAMS, BHMS qualifications were also rejected on the same grounds. Para 12. I submit the TSPSC has informed to the candidates at the time of submitting application under column No.2 as “Your qualification is admitted to subject to condition Expert Committee report”. Further it is also informed in the Hall Tickets as “the candidate must note that, those who applied under equivalence of qualification are admitted subject to verification of a qualification and other eligibility criteria & satisfaction of the Commission therefore admission to the written test is strictly provisional.” DISCUSSION AND CONCLUSION 8. The National Medical Commission (NMC) has been constituted by an Act of Parliament known as National Medical Commission Act, 2019 which came into force on 25.09.2020 by Gazette Notification dated 24.09.2020 and the Board of Governors in suppression of Medical Council of India Constituted under section 3A of the Indian Medical Council Act, 1956 stood dissolved thereafter. 9. National Medical Commission Registered Medical Practitioner (Professional Conduct) Regulations, 2022 defines “Modern Medicine” as follows : e) "Modern medicine" or "Allopathy" is a healthcare discipline that involves a scientific understanding of disease processes and uses rational and evidence-based treatment methods. This system of medicine views disease as a biological abnormality in the function or structure of organs or organ systems, with effects on organs and the body as a whole. Animal experiments may be used to understand disease processes and the efficacy of therapeutic measures. Medical research using blinded studies and statistical analyses informs all aspects of diagnosis, testing, treatment, and disease prevention. Modern medicine has international uniformity in theory and practice. It has found universal acceptance in India and is currently practiced and taught in Government and Private hospitals and medical colleges governed/regulated and accredited by the National Medical Commission, Government of India. The present issue pertains to notification issued by the 1st Respondent dated 13.12.2009, vide No.10/2009. 10. Modern medicine has international uniformity in theory and practice. It has found universal acceptance in India and is currently practiced and taught in Government and Private hospitals and medical colleges governed/regulated and accredited by the National Medical Commission, Government of India. The present issue pertains to notification issued by the 1st Respondent dated 13.12.2009, vide No.10/2009. 10. The specific contention of the 2nd respondent is that the degree in Homeopathic Medicine and Surgery is not equivalent to the prescribed qualification in the notification i.e. degree in medicine since the degrees such as BDS, MDS, BAMS, BHMS, BUMS and BYNS do not figure in the schedules of Indian Medical Council Act, 1956, as such the petitioner’s candidature was rejected along with others and a report to that effect dt. 02.09.2020 was submitted. It is further the case of the 2nd Respondent that the petitioner’s application along with other applicants were considered and processed by the 2nd respondent and the whole Recruitment procedure of selection to the post of Food Safety Officer in both the institutions i.e. IPM and GHMC, Hyderabad had been followed strictly and the 2nd respondent submitted the Provisionally selected (9) candidatures list to the Respondent No.3 vide Rc.No.629/Rectt/Pool-11/3/2017, Dated:27-07-2020 with a request to verify the antecedents as per the procedure prescribed in the Govt. Circular Memo No.552/Sc. B/A1/2007- 3, Dated: 01-07-2008 duly following the procedure laid down in Rule 11(a) of Telangana state and subordinate Services Rule and other Rules. 11. This Court also takes note of the fact that the qualification for the post of Food Safety Officer has been prescribed under Rule 2.1.3 (1)(i) of Food Safety and Standards Rules, 2011 and further Rule 2.1.3(1)(ii) provides “or any other equivalent/ recognized qualification notified by the Central Government”. However no such qualification is notified by the Central Government notifying equivalency of Bachelor of Homeopathic Medicine and Surgery to that of a Degree in Medicine. 12. The Apex Court in few judgments observed as under : (i) In Zahoor Ahmad Rather & Ors. However no such qualification is notified by the Central Government notifying equivalency of Bachelor of Homeopathic Medicine and Surgery to that of a Degree in Medicine. 12. The Apex Court in few judgments observed as under : (i) In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & others reported in 2019 (2) SCC 404 held as under : “It was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine”. (ii) In Mohammad Shujat Ali &Ors. v. Union of India & Ors reported in 1975 (3) SCC 76 , held as under: “it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. (iii) In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., reported in 2009 (1) SCC 610 , held as under : “it was held that this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such”. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such”. (iv) In J. Ranga Swamy v. Government of Andhra Pradesh and Others, reported in 1990 (1) SCC 288 , it was held as under : “That this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts”. (v) In State of Rajasthan &Ors. v. Lata Arun, reported in 2002 (6) SCC 252 , it was held as under : “this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus: “13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” 13. Taking into consideration the specific averments made in the counter affidavit filed by the 2nd and 3rd respondents (referred to and extracted above), this Court opines that the petitioner is not entitled to the relief as prayed for in the present writ petition in view of the fact that the Petitioner possesses degree in Homeopathic Surgery and the same is not equivalent to the prescribed qualification in the notification No.10/2019, dt. 31.12.2019 i.e., degree in Medicine. The principles of law laid down in the judgment reported in 2006 (2) SCC 747 in State of Karnataka and others v C.Lalitha relied upon the learned counsel for the petitioner do not apply to the facts of the present case in view of the fact that Writ of Mandamus lies only when there is an existing right. In the present case, the petitioner does not possess the required qualification as per the notification No.10/2019, dated 31.12.2019. 14. In the present case, the petitioner does not possess the required qualification as per the notification No.10/2019, dated 31.12.2019. 14. This Court also takes note of the fact that the 2nd respondent has informed to the candidates at the time of submitting application under Column No.20 as “Your qualification is admitted to subject to condition, Expert Committee report”. Further it is also informed in the Hall Ticket as “the candidate must note that, those who applied under equivalence of qualification are admitted subject to verification of a qualification and other eligibility criteria & satisfaction of the Commission, therefore, admission to the written test is strictly provisional. 15. Taking into consideration all the above referred facts and circumstances of the case and the law laid down by the Apex Court in the various judgements referred to and discussed above (i) In Zahoor Ahmad Rather &Ors. v. Sheikh Imtiyaz Ahmad &Ors. reported in 2019 (2) SCC 404 , (ii) In Mohammad Shujat Ali &Ors. v. Union of India & Ors reported in 1975 (3) SCC 76 , (iii) In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., reported in 2009 (1) SCC 610 , (iv) In J. Ranga Swamy v. Government of Andhra Pradesh and Others, reported in 1990 (1) SCC 288 , (v) In State of Rajasthan &Ors. v. Lata Arun, reported in 2002 (6) SCC 252 , and the judgment of Full Bench of High Court at Hyderabad in W.P.No.40157/2017 and batch in MalleshKorukoru Vs. State of Telangana, this Court opines that the present writ petition is devoid of merits and accordingly is dismissed. However, there shall be no order as to costs. 16. The interim order passed on 20.08.2020 stands vacated. Miscellaneous petitions, if any, pending shall stand closed.