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2024 DIGILAW 2 (HP)

Maina Devi v. State of Himachal Pradesh

2024-01-01

AJAY MOHAN GOEL

body2024
JUDGMENT : Ajay Mohan Goel, J. CMP-T No. 1038 of 2023 For the reasons assigned, this application is allowed. CWPOA No. 1804 of 2019 2. With the consent of the parties, the case was taken up for consideration today itself. 3. By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:- “i) That the selection and appointment of the Respondent no. 4 as Trained Dai-Mid Wife on 21/22.09.2011 vide Annexure P-6, may kindly be quashed and set aside forthwith. ii) That the action of the Respondents in making selection for the post of Trained Dai as per the eligibility criteria as in the letter dated 2.7.2011 (Annexure P-10); being contrary to the eligibility and selection criteria as prescribed in the Rules of 1998 (Annexure P-4) may kindly be quashed and set aside. iii) That the selections made by the Respondents in violation of the Rules may kindly be quashed and set- aside. iv) That in the alternative the respondents may be directed to consider and give the resultant appointment to the petitioner as a Trained Dai-Mid Wife, against one of the existing vacant posts with benefit of seniority and pay fixation w.e.f. the date the Respondent No. 4 and others were appointed in September 2011 with all consequential benefits forthwith.” 4. The case of the petitioner is that in July, 2011, the respondent-Department decided to fill 53 posts of Mid Wife/ Dais, on contract basis, through Rogi Kalyan Samitis, under the Chief Medical Officers. The petitioner being eligible, applied for the post for District Mandi. On the basis of performance in the interview, she was legitimately expecting that she would be selected, but in terms of Annexure P-6, the private respondent stood selected. 5. Learned Counsel for the petitioner submitted that the appointment of the private respondent, as a Dai, is not sustainable in law as the respondent-Department has erred in not appreciating that she was not fulfilling the eligibility criteria laid down in the Recruitment and Promotion Rules for appointment of Dais. He submitted that the private respondent was not possessing the requisite certificate that she had undergone six months training course of a trained Dai from a recognized Government Hospital/Medical Institution. He submitted that the private respondent was not possessing the requisite certificate that she had undergone six months training course of a trained Dai from a recognized Government Hospital/Medical Institution. To substantiate this contention, he referred to Annexure P-8 and submitted that certificate dated 01.04.2002, issued by the Block Medical Officer is only to the effect that the private respondent had worked as a Volunteer Learning Dai Training at CHC Janjheli, District Mandi, w.e.f. 01.10.2001 to 31.03.2002, which did not prove that the petitioner was fulfilling the eligibility criteria laid down in the Rules. On this count, the petition has prayed that the petition be allowed as prayed for. 6. The petition is resisted by the respondents. Learned Counsel for respondent No. 4 submitted that the private respondent was fulfilling the eligibility criteria provided in the Recruitment and Promotion Rules. He referred to the certificate issued by the Himachal Pradesh Nursing Council, Shimla, dated 07.09.2022, appended with the reply of respondent No. 4 as R4/1 and submitted that same demonstrates that the private respondent had undergone a course of trained Dais for a period of six months from CHC Janjheli and she was also duly registered with the Himachal Pradesh Nursing Council. By referring to Annexure P-6, he further submitted that otherwise also, the petitioner had no locus to file and maintain this petition as whereas the overall merit of the private respondent in the selection process undertaken for appointment of Dai was at 3rd position, that of the petitioner was 24th. On these bases, he submitted that the petition deserved to be dismissed. 7. Learned Law Officer, while referring to the reply filed by the respondent-State submitted that respondent No. 4 was not ineligible as alleged and in fact, she was fulfilling the eligibility criteria laid down in the Recruitment and Promotion Rules. 8. I have heard learned Counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith. 9. The process to recruit the Dais was undertaken in the year 2011 by the respondent-Department. The Recruitment and Promotion Rules in vogue at the relevant time were the one notified vide Notification dated 31.10.1998 Annexure P-4. In terms of these Rules, the minimum educational and other qualifications required for direct recruitment inter alia were as under:- a) Essential: (i) Should be middle pass or its equivalent from a recognized Institution/Board by the Govt. The Recruitment and Promotion Rules in vogue at the relevant time were the one notified vide Notification dated 31.10.1998 Annexure P-4. In terms of these Rules, the minimum educational and other qualifications required for direct recruitment inter alia were as under:- a) Essential: (i) Should be middle pass or its equivalent from a recognized Institution/Board by the Govt. ii) Should also have undergone six months training course of Dais from a recognized Govt. Hospital and Medical Institution. b) DESIRABLE QUALIFICATIONS Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh. 10. Thus, a candidate besides being middle pass, was required to have undergone six months training course of Dais from recognized Government Hospital/Medical Institution. Whereas according to the petitioner, as the private respondent had worked as a Volunteer Learning Dai’s training at CHC Janjheli, she was not fulfilling the criteria laid down in the Recruitment and Promotion Rules, according to respondent No. 4, she was possessing the requisite criteria in terms of Annexure R-4/1. A perusal of the certificate issued in favour of the private respondent Annexure R-4/1 demonstrates that it stands certified by the Himachal Pradesh Nursing Council, Shimla, that respondent No. 4 had undergone a training course of Trained Dais for a period of six months at CHC, Janjheli, District Mandi, H.P. It is no one’s case that CHC Janjheli, which happens to be a Community Health Centre, is not a Government Health Institution. Though certificate Annexure R-4/1 is dated 7th September, 2022, yet, as the process of recruitment was undertaken in the year 2011 and the petitioner had already undergone a course of trained Dais in the year 2001-02, she was eligible to be appointed as a Dai. Incidentally, the employer has not supported the case of the petitioner and it is categorically the stand of the employer that the selected candidate was fulfilling the eligibility criteria. 11. Incidentally, the employer has not supported the case of the petitioner and it is categorically the stand of the employer that the selected candidate was fulfilling the eligibility criteria. 11. A three Judge Bench of the Hon’ble Supreme Court of India in Dolly Chanda Versus Chairman, Jee and Others, (2005) 9 Supreme Court Cases 779, has been pleased to hold that the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There could be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or mark-sheets, however, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced and these are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation and submission of proof in this regard could be provided at a later stage also. Hon’ble Supreme Court referred to its earlier judgment in this regard in Charles K. Skaria & Ors. v. Dr. C. Mathew & Ors., 1980(2) SCC 752 . 12. Be that as it may, coming to the facts of this case, as herein it stands established, more so, from Annexure R- 4/1 that the private respondent indeed had undergone the course of training of Trained Dai’s for a period of six months at Community Health Centre, Janjheli, District Mandi, H.P. from 01.10.2001 to 31.03.2002, i.e. much before she participated in the interview for the post of Dai, there is no merit in the contention of the petitioner that the private respondent was not fulfilling the eligibility criteria. Otherwise also, as the petitioner was not the next incumbent to have had gained appointment, had she succeeded in the petition because her merit is far-far down as compared to the private respondent and other incumbents in between have not approached the Court, therefore, also, no interference is called for with the appointment of the private respondent. Accordingly, as this Court does not finds any merit in the present petition, the same is dismissed. Accordingly, as this Court does not finds any merit in the present petition, the same is dismissed. The petition stands disposed of in above terms. Pending miscellaneous application(s), if any, also stand disposed of accordingly.