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Madhya Pradesh High Court · body

2024 DIGILAW 558 (MP)

Susheela Dadhore v. State of M. P.

2024-08-12

SANJAY DWIVEDI

body2024
ORDER 1. Pleadings are complete. Since the parties agreed to argue the matter finally, therefore, looking to the issue involved, it is finally heard. 2. By way of this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the communication dated 24.4.2023 (Annexure-P/1) made to the Government Advocate assigning reason as to why the candidature of the petitioner has been rejected. 3. As per facts of the case, the petitioner had participated in the selection process of departmental candidate for the post of Senior Nursing Officer in pursuance of the advertisement dated 25.8.2022 (Annexure-P/3), but when she was not considered, she filed a petition i.e. W.P. No.8420 of 2023 which was decided vide order dated 19.4.2023 directing the authority to consider the claim of the petitioner and pass an appropriate order thereof. In response to the same, a communication was made to the Government Advocate assigning reason as to why the candidature of the petitioner was not considered. Being dissatisfied with the reason assigned in the said communication, the petitioner filed this petition pointing out that there is no such requirement prescribed in the advertisement issued by the respondents that the experience of five years to the post of Staff Paricharika or equivalent post in 13 Government Medical Colleges and that condition is shown in the order/communication rejecting the representation of the petitioner, which is impugned in this petition. Therefore, according to the petitioner, the respondents have changed the game of rule after its commencement and as such, it is illegal and petitioner's candidature had to be accepted because she has sufficient experience on the post of Staff Paricharika not of 13 Government Medical Colleges, but otherwise and she has also a live registration of Mahakaushal Nursing Council. Therefore, her experience has to be accepted by the respondents and decision rejecting her candidature deserves to be set aside and promotion to the post of Senior Nursing Officer be granted to the petitioner. 4. The respondents have filed their reply stating therein that in the advertisement itself, in the column of minimum academic qualification, it was one of the required qualifications with five years experience to the M.Sc. (Nursing), Staff Paricharika or on equivalent post five years service experience and registration in Mahakaushal Nursing Council. 4. The respondents have filed their reply stating therein that in the advertisement itself, in the column of minimum academic qualification, it was one of the required qualifications with five years experience to the M.Sc. (Nursing), Staff Paricharika or on equivalent post five years service experience and registration in Mahakaushal Nursing Council. As per the respondents, the condition was very much there in the advertisement showing required experience of five years on the post which is also shown in the advertisement itself. 5. Shri Agrawal, counsel for the petitioner submits that it does not specify the experience of a Government Medical College or especially the 13 Medical Colleges for which posts were advertised, is required qualification. He submits that the advertisement talks about the experience and, therefore, if the petitioner having experience not of Government Medical College but of some other College then that should have been taken note of and her candidature could not have been rejected by the authority only on this count. 6. On the other hand, Shri Kekre, learned Government Advocate appearing for the respondents/State submits that it is not a direct recruitment but it is a case of promotion of departmental candidates. In the advertisement, the clause of experience is specified, meaning thereby the experience on the post on which candidate has performed duties must be of a Government Medical College and if duty has been performed on the said post in some other Private Institution or otherwise, that should not have been taken note of. According to him, had it been a case of direct recruitment then the petitioner's candidature would have been considered but for a departmental candidate and promotion to the post of Senior Nursing Officer, experience of said College for which posts were advertised is necessary. According to Shri Kekre, there is no ambiguity in the advertisement and the petitioner's candidature according to him had rightly been rejected. 7. Considering the submissions made by counsel for the parties and perusal of record, it is undisputably that the clause contained in the advertisement itself issued on 25.8.2022. According to Shri Kekre, there is no ambiguity in the advertisement and the petitioner's candidature according to him had rightly been rejected. 7. Considering the submissions made by counsel for the parties and perusal of record, it is undisputably that the clause contained in the advertisement itself issued on 25.8.2022. Although, the said clause does not specify that the experience of a particular College is required but since it is a case of promotion of departmental candidate and if experience of a particular post is shown then it is obvious that the experience on the post of said College is demanded and as such, there is nothing wrong in the decision taken by the respondents, rejecting the candidature of the petitioner as she does not have requisite experience of five years on the post of Staff Paricharika in the College for which posts were advertised, those were 13 Medical Colleges and the advertisement itself specify as to who could apply for the said post ^^eè;çns'k d¢ 13 fpfdRlk egkfo|ky;¨a esa fu;fer dk;Zjr ;¨X; ik=] ,oa bPNqd vkosnd¨a ls vkosnu i= -----------^^ 8. It very clearly defines that only regular working Nursing Staff who are otherwise eligible can make an application online for the post of Senior Nursing Officer which itself makes it clear that the advertisement was confining only for the candidates who are already working in the Department and experience on the post of Staff Paricharika since sought for, that relates to the working on the said College only. 9. From perusal of the order passed by this Court on earlier occasion, it is clear that the challenged was made by the petitioner on the ground that in the advertisement dated 25.8.2022, experience of five years as Nursing Sister/Staff Paricharika was sought for with live registration of Mahakaushal Nursing Council. In the present petition also, the petitioner has challenged the decision on the ground that it was not a requirement to have experience of five years on a regular post in a Government Medical College and this condition has been inserted after initiating the selection process which is impermissible. 10. In the present petition also, the petitioner has challenged the decision on the ground that it was not a requirement to have experience of five years on a regular post in a Government Medical College and this condition has been inserted after initiating the selection process which is impermissible. 10. However, the submission made by the counsel for the petitioner neither satisfy the requirement nor convince the Court for the reason that the advertisement itself very specifically provides that it is only for the departmental candidates who are working in 13 Government Medical Colleges of the State and as such, if experience of a particular post is sought for, makes it clear that experience only from the said Government Medical Colleges can be considered, but not from other colleges. 11. The Supreme Court in a case reported in (1998) 6 SCC 186 parties being Union of India and Another v. G.R.K. Sharma, has observed as under:- "2...................Having considered the rival contentions as well as the relevant recruitment rules governing the question of promotion, we are of the considered opinion that a redeployed employee who has been posted in the Printing Press must render eight years of service as a Lower Division Clerk in the Printing Press so as to be eligible for being considered for promotion to Upper Division Clerk. The expression “regular service of eight years in the grade” would connote rendering eight years of service in the organisation to which he has been appointed. In a somewhat similar situation, this Court has considered similar expression in the case of Union of India v. K. Savitri [ (1998) 4 SCC 358 : (1998) 2 Scale 221 ] where it has been held that the past service of redeployed surplus employee cannot be counted for his seniority in the new organisation and equally, the past experience also would not count as the so-called past service rendered will not be service in the grade. The aforesaid decision interpreting the similar expression “service in the grade” would equally apply in the present case where the statutory rule also uses the expression “regular service of eight years in the grade”. 12. Further, in a case reported in (1998) 4 SCC 358 parties being Union of India and others v. K. Savitri and others, has observed as under:- "10. 12. Further, in a case reported in (1998) 4 SCC 358 parties being Union of India and others v. K. Savitri and others, has observed as under:- "10. Coming now to the question whether the said past services can be counted as experience for promotion, it appears that under the Recruitment Rules for various posts in All India Radio called the All India Radio (Class III Posts) Recruitment rules, 1964 (hereinafter referred to as “the Recruitment rules”) as amended from time to time the post of Head Clerk is filled up by promotion to the extent of 50% from amongst the Clerk Grade II/Clerk Grade I/Stenographer with a minimum of five years of service in the grades on the basis of a qualifying departmental examination and the criteria for promotion is senioritycum-fitness. In that view of the matter, since the past services of redeployed surplus employee cannot be counted for his seniority in the new organisation, equally the past experience also would not count as the so-called past services rendered will not be service in the grade. Similarly, for promotion to Clerk Grade I which is made on the basis of seniority-cum-fitness from amongst the Clerks Grade II five years of service in the grade is required for being considered for promotion. Obviously, therefore, an employee should have five years of experience in Clerk Grade II of All India Radio after being redeployed under the tules in order to be eligible for being considered for promotion. The Tribunal, therefore, was wholly in error in directing that the past services of the employees should be counted for granting them the benefit of seniority and experience for promotion in All India Radio. In the aforesaid premises, the impugned orders of the Central Administrative Tribunal, Cuttack Bench, in Original Applications Nos. 160, 161 and 163 of 1993 are set aside and those OAs are dismissed and these appeals are allowed but in the circumstances there will be no order as to costs." (Emphasis supplied) 13. Considering the aforesaid, I do not find any illegality and infirmity in the decision taken by the respondent/authority. As such, the submission made by counsel for the petitioner that the experience of other Colleges, if any, is with the candidate, the same should have been taken note of, is without any substance and, therefore, the petition being misconceived, is hereby dismissed.