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Kailash C.Sharma and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan Jaipur High Court
Decided On
Case Number14873/2010 (7501/10); 702/2011 (646/2011); 809/2011 (735/2011 ); 1799/2011 (1655/2011); 16622/2010 (8795/2010); 2971/2011 (2682/2011); 2973/2011 (2683/2011) 8.703/2011 (647/2011); 788/2011 (715/2011); 886/2011 (809/2011); 1113/2011 (1015/2011); 1529/2011 (1398/2011); 1538/2011 (1422/2011); 1544/2011 (1434/2011); 1911/2011 (1752/2011); 2444/2011 (2241/2011).
Judge
ActsAll India Council for Technical Education Act;
AppellantKailash C.Sharma and ors.
RespondentState and ors.
Appellant AdvocateMr. Ashok Gaur; Mr. AK Jaiman; Dr. PC Jain; Mr. Tanver Ahmed; Mr. OP Mishra, Mr. Bhuwnesh Sharma; Mr. Rajendra Sharma; Mr. Samit Bishnoi; Mr. Gopal Gupta; Mr. SLSongara, Amrit; Pd. Sharma, Mr; Bhuwnesh Sharma; Mr. Sudhinedra Kumawat; Ms Pooja Choudhar
Respondent AdvocateMr. SN Kumawat; Dr. VB Sharma, Advs.
Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the..........true spirit, great prejudice would cause to such applicants holding certificate of 9-months' lab. tech training. taking note of bare perusal of amendment notification dt.25/07/1995, this court while issuing notices to respondents, passed ex parte stay order on 03/11/2010:-"in the meanwhile, respondents are directed to first consider candidatures of such candidates having possessed certificate of nine months laboratory technician training certificate from an institution recognized by government and only on account of non-availability of such persons (supra) other candidates be considered pursuant to advertisement dt.06/10/2009 for the post of lab. technician till further orders." it appears from the record that pursuant to ex parte stay order (supra), state government selected candidates.....
Judgment:
1. Since bunch of petitions involve common question, at joint request, they are being finally decided at admission stage. Controversy arises for consideration in regard to interpretation of amendment notification dt.25/07/1995 whereby explanation has been added for the post of Laboratory Technician ("Lab. Tech.") in Column No.4 against entries at Sl.No.4 under the head "GROUP-A-VI {Para Medical Cadre (Medical)} of Schedule-I appended to the Rajasthan Medical & Health Subordinate Service Rules, 1965 ("Rules, 1965"). It is manifest from the record that since Year 2002 onwards, 9-months' Lab. Tech. training was substituted by 2-years training and academic qualification was changed from "Secondary" to Senior Secondary (Science); and thereafter, all applicants holding minimum academic qualification of Senior Secondary (Science), are holders of 2-Yrs' Lab. Tech. training from the institutions recognized by the Government and despite correspondence being made way back on 10/01/2003, the State government has not taken care to make necessary amendments in Scheme of Rules, 1965, so far. While examining the controversy, necessary facts being relevant for the purpose are that 312 posts of Laboratory Technician were initially advertised vide notification dt.06/10/2009 but it appears from the reply filed by the respondents that selections were held against 346 posts. Pursuant to advertisement dt.06/10/2009, applications were submitted by all the petitioners holding certificates of 9-months/2-years' Lab. Tech. training from an institution recognized by Government and as per Cl.2 of General Instructions appended to the Advertisement dt. 06/10/2009, assessment of merit is based on academic record - 50% of academic record and 50% average marks secured in Lab. Tech. Training Course, which reads ad infra But, before finalization of the process of selection, and since the merit was to be adjudged only on the basis of average marks of academic qualification & marks obtained in training certificate course, interview was merely a formality for examining original academic certificates.

2. At this stage, one of applicants (Kailash C.Sharma) having possessed 9-months Lab. Tech. training certificate from an institution recognized by Government filed CWP-14873/2010 with an apprehension that State Government might not implement and give effect to amendment notification dt.25/07/95, which clearly postulates that others having become eligible for the post of Lab. Tech. could be considered only in the event of non-availability of candidates holding certificate of 9-months' training from an institution recognized by Government; and if amendment (supra) is not being carried out in its true spirit, great prejudice would cause to such applicants holding certificate of 9-months' Lab. Tech training. Taking note of bare perusal of amendment notification dt.25/07/1995, this Court while issuing notices to respondents, passed ex parte stay order on 03/11/2010:-

"In the meanwhile, respondents are directed to first consider candidatures of such candidates having possessed certificate of nine months laboratory technician Training certificate from an institution recognized by Government and only on account of non-availability of such persons (supra) other candidates be considered pursuant to advertisement dt.06/10/2009 for the post of Lab. Technician till further orders." It appears from the record that pursuant to ex parte stay order (supra), State Government selected candidates giving preference to the holders of certificate of 9-months' Lab. Tech. Training from an institution recognized by the Government and select list was declared on 12/01/2011 - pursuant to which, candidates holding certificates of 9-months' Lab. Tech. Training were appointed on priority basis vide order dt.07/02/2011; however, it was made clear in the order, itself that these appointments made on the post of Lab. Tech. pursuant to advertisement dt. 06/10/2009 would be subject to final outcome of CWP-14873/2010 & cognate petitions pendente before the Court. At this stage, when those holding 2-years' Diploma in Lab. Tech. from an institution recognized by Government were left out & were not placed at par while their merit being adjudged and deprived from consideration for appointment; as alleged, cross writ petitions were filed before this Court with the grievance that those holding 2-years' Diploma in Lab. Tech. from an institution recognized by the Government are at par and no discrimination could be made amongst persons similarly situated while process of selection being initiated by respondents; and being higher in merit, they could not be deprived from fair consideration only on the premise that ex parte stay order was passed by the Court. It has been informed that Kailash C. Sharma who initially preferred CWP-14873/2010 wherein ex parte stay order was passed on 03/11/2010, in fact could not be selected despite having possessed certificate of 9-months' Lab. Tech. training - in view whereof, his writ petition has become infructuous. However, Mr. Tanvir Ahmed, Counsel for petitioner (Kailash C.Sharma) submits that the petition is in representative capacity espousing rights of all such similarly situated persons holding certificates of 9-months' Lab. Tech. training from institution recognized by Government; and the State Government is under obligation to give preference to such applicants in terms of amendment notification dt.25/07/1995; as such no error has been committed by respondents in giving preference to holders of 9-months' Lab. Tech. Training while appointments were made vide order dt.07/02/2011 in compliance of ex parte stay order (supra). Shri Ashok Gaur, Senior Advocate and Dr.PC Jain, and other Counsel appearing in cross writ petitions jointly submit that selections/appointments impugned herein have been made by State Government pursuant to select list prepared on 12/01/2011 vide order dt.07/02/2011 in compliance of ex parte stay order passed by the Court on 03/11/2010; however, the appointments are made subject to final decision of writ petitions; and as a result whereof, no rights have been conferred upon persons being appointed in compliance of ex parte stay order; and it is a settled principle of law that no one should suffer by an act of Court. In support, Counsel placed reliance upon decision of Apex Court in South Eastern Coal Fields Ltd v. State of M.P. (2003(8) SCC 648). Counsel for petitioners further submit that after the amendment notification dt. 25/07/1995, holding certificate of 9-months' Lab. Tech. training being substituted by the Government in the Year-2002 & the institutions are thereafter imparting 2-years' Lab. Tech. training recognized by the Government; apart from academic qualification of Secondary being substituted to Senior Secondary for admission; as such the only plausible interpretation of amendment notification dt. 25/07/1995 would be that all those holders of Lab. Tech. training either of 9-months/2-years from institutions recognized by the State Government all are at par and no artificial distinction among them could be made and this fact was not brought by the petitioner to the notice of the Court while ex parte stay order (supra) being passed in CWP-14873/2010; in asmuch as State Govt. also failed in its duty in not bringing correct facts to the notice of the Court about changes having taken place after amendment made vide notification dt. 25/07/1995 and before process of selection being initiated by the Government pursuant to advertisement dt.06/10/2009; as such the respondents have misinterpreted the amendment notification dt.25/07/1995 and all such appointments having been made are subject to final decision of writ petition may be carried out afresh in terms of the criteria referred to in the amendment notification without making any distinction among those who are holders of 9-months/2-years Lab. Tech. training from institution recognized by the Government and in absence whereof, action of respondents would be in clear violation of Art.14 & 16 of the Constitution. In support, Counsel placed reliance upon decision of Apex Court in State of Uttar Pradesh v. Deepak Fertilizers & Petrochemical Corporation Ltd (2007 (10) SCC 342). Counsel for petitioners further urged that the statutory authority under All India Council for Technical Education Act, 1987 only recognizes such institutions which are imparting 2-Years' Diploma Lab. Tech. with 10+2 as minimum qualification at entry level; & in conformity thereof, qualification has been introduced by the Board of Technical Education regarding admission to Laboratory technology; this factual position has not been controverted by respondent State as well. Taking assistance whereof, Counsel jointly submit that 2-years' Lab. Tech. training course is the only qualification duly approved by Board of Technical Education and no preference could be given to holders of 9-months' Lab. Tech. training being otherwise not eligible after 2-years' training course being approved by Technical Education Board for appointment to the post of Lab. Tech., and in such circumstances, denial of their fair consideration is violative of Art.14 of the Constitution of India. Reply has been filed by respondents-State. It has been inter-alia averred that selections were made against 346 posts. pursuant to advertisement dt.06/10/2009, and the Department of Medical & Health (Gr.1) Government of Rajasthan sent a letter way back on 01/01/2003 that duration of Lab. Tech.

3. Training stood increased from 9-months to 2-years besides academic qualification having changed from Secondary to Senior Secondary - in the light whereof, the matter was referred to make necessary amendment which has not been made so far; inasmuch as proceedings for amendment in the Rules are still in progress and the State Government is likely to amend scheme of Rules, 1965 in terms of letter dt.01/01/2003 (Ann.4-CWP-809/2011). However, it has further been urged that since process for making amendment has not been carried out so far pursuant to letter dt.01/01/2003 (supra), the State Government has no option except to make selection for the post of Lab. Tech., in terms of Rules, 1965; as such when candidates and holders of 9-months Lab. Tech. training certificate approached this Court and pursuant to ex parte stay order dt.03/11/2010 passed in their petitions, permitting them to be considered on priority basis pursuant to advertisement dt.06/10/2009 for the post of Lab. Tech., selections were finalised while giving preference to them (holders of 9-months certificate of Lab. Tech. Training) and the appointments were made pursuant to select list dt.12/01/2011 vide order dt.07/02/2011 with the clear stipulation that it will be subject to final decision of writ petitions. Apart from ex parte stay order (supra), the State Government also insisted that since no amendment has been made and it was under obligation to implement notification dt.25/07/1995 which clearly postulates to give preference to holders of 9-months Lab. Tech training certificate and only in the event of their non-availability, holders of 2-years Diploma in Lab. Tech. training could be considered. Taking assistance whereof, Govt. Counsel submits that respondents have not committed any error in making appointments vide order dt.07/02/2011 pursuant to ex parte stay order. Government Counsel further submits that rights have now been conferred upon candidates appointed vide order dt.07/02/2011 and if at all this Court comes to the conclusion while accepting the contentions advanced on behalf of writ petitioners, those having been once appointed, their rights could not have been divested without opportunity of hearing being afforded to them; and uprooting candidates having been appointed pursuant to ex parte stay order, it may cause prejudice; & their right of hearing has been jeopardized. This Court has considered rival contentions of both the parties and with their assistance, examined material on record. Before examining the controversy herein, it would be appropriate to firstly have resume of relevant Rules for deciding the controversy. Post of Lab. Tech., is included in GROUP-A-VI {PARA MEDICAL CADRE (MEDICAL)} of Schedule-1 appended to the Rules, 1965 is to be filled 100% by direct recruitment as prescribed under Part-IV & Group A-VI (Para Medical Cadre (Medical) of Schedule-I of Rules, 1965 which reads ad infra:

S.No. Name Of Post Source of recruitment with percentage Direct recruitment/ Pro Motion Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualification & experience for promotion Remarks

4. Laboratory Technician 100.00% Secondary or its equivalent with 9 months Training Certificate from Institution recognised by Government. There shall be no distinction between Laboratory Technician and Malaria Technician. The cadre will be redesignated as Laboratory Technician only. Further amendment has been made Vide notification dt.25/07/1995 ad infra : S.No. Name Of Post Source of recruitment with percentage Direct recruitment/ Promotion Qualification & Experience for Direct recruitment Post from which promotion is to be made Qualification & experience for promotion Remarks

5. Laboratory Technician 100.00% Secondary or its equivalent with 9 months Training Certificate from Institution recognised by Government. In the event of non-availability of candidates possessing certificate of 9-months training from institution recognised by Government, the candidates possessing the following qualifications can be considered - Secondary of a recognized Board or its equivalent with two years training certificate of Laboratory Technology Course run by the Santokba Durlabhji Memorial Hospital, Jaipur or B.Sc. With Biology with Post graduate Diploma in Laboratory Technology from Maharshi Dayanand Saraswati University, Ajmer with hospital based training in JLN Medical College, Ajmer recognized by Government There shall be no distinction between Laboratory Technician and Malaria Technician. The cadre will be redesignated as Laboratory Technician only.

6. It has come on record that after the amendment was made vide notification dt.25/07/1995 in the year 2002, the Board of Technical Education has changed duration of Lab. Tech. course and entry level for admission from "Secondary" to "10+2"; and earlier, it was certificate course of 9-months Lab. Tech. training and later on has become diploma course of 2-years Lab. Tech. training. According to norms laid down by All India Council for Technical Education, and after the change of pattern came into force, Department of Health (Gr.3) sent a letter to State Government on 01/01/2003 regarding changes having come into force from year 2002 and this fact has been admitted by respondents-State also in its reply that matter was sent for appropriate amendment pursuant to letter dt. 01/01/2003 but, as alleged, it is still in progress and the State Government is likely to make amendment in terms of letter dt.01/01/2003, which clearly depicts as to how much the Executive is accountable to the society that despite recommendations being made to carry out necessary amendments required after changes in the Scheme have taken place in year 2002, yet after 10-years having rolled by, State Government still has come out with an averment that the change in the Rules are still in progress and it is likely to amend the Rules shortly. This is one of the reasons for which Courts are being over-burdened by litigation which could be resolved at the first instance by State Government, itself. Taking note of the scheme of Rules, 1965 and amendment having been made vide notification dt.25/07/1995, it clearly emerges that at the time Rules, 1965 came into force, it was 9-months' certificate Lab. tech. training alone being imparted by recognized institutions and entry level for admission to Lab. Tech course was "Secondary" but in year-1995 or some time prior thereto, State Govt. granted recognition to other private institutions which were imparting 2-years Lab. Tech. training viz. SDM Hospital or Maharshi Dayanand Saraswati University; and the State Govt. intended to give preference to holders of 9-months' training which the applicant possessed from institutions recognized by the State Government. But, once 9-months Lab. Tech. training is no more available after year 2002 and substituted by 2-years Diploma for which entry level is 10+2 (Sr. Secondary) (supra), only plausible interpretation of existing Scheme of Rules having come forward for consideration apparently in the opinion of this Court would be that those holding Lab. Tech. training from an institution recognized by the State Govt., whether it is of 9-months or 2-years later on substituted by State Government in the year 2002 are at par and no different yardsticks could be adopted among those holding certificates/diploma of Lab. Tech. Training from institution recognized by the Govt. and its harmonious interpretation would be even after notification dt.15/07/1995 that the candidates possessing Lab. Tech. training irrespective of 9-months or 2-years from an institutions recognized by Government has to be given preference and the proviso added pursuant to notification dt.25/07/1995 granting recognition to private institution could be invoked to meet out the contingency if the candidates who are holders of training from institution recognized by the Government are not available, holders of training from private institution in terms of amendment notification dt.15/07/1995 could be considered and what has been urged & observed by this Court while passing ex parte stay order having been taken note of by the State Government certainly makes an artificial distinction among persons similarly situated holding training from institutions recognized by the Government yet a disparity among the two similarly situated holders of Lab. Tech. training has been created and the equals are made un-equals while being considered for selection pursuant to advertisement, which would certainly be in violation of Art.14 of Constitution of India. This Court certainly finds substance that if selections are based either on merit assessed through competitive examination or on academic records; however, preference to additional qualifications would mean when other things being qualitatively and quantitatively equal then those with additional qualification would be preferred; This what has been taken note of by Apex Court in State of UP v. Om Prakash (supra) while observing ad infra:

16. This Court has consistently held than when selection is made on the basis of merit assessed through competitive examination and interview, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preference. It does not mean en bloc preference irrespective of inter se merit and suitability. But, it is not the case set up by the writ petitioner in CWP-14873/2010.

7. As regards submission made by Government Counsel that once selection & appointment have been made, certain rights have been conferred upon incumbents on being appointed (supra), which could not have been divested without opportunity of hearing being afforded, denial whereof would be in violation of principles of natural justice, it is of no substance for the reason that after ex parte stay order being passed in CWP-14873/2010, appointments are made with the clear stipulation that appointments of applicants shall be subject to final decision of writ petition and in this view of the matter, all those having joined on appointment made pursuant to ex parte stay order, who might have been adversely affected, are made aware of their appointments being subject to final decision of the writ petition; and if at all they would have felt aggrieved, liberty was always with them to have approached this Court. However, once this Court has arrived at the final conclusion that two separate classes could not be formed among those who are holders of 9-months or 2-years' Lab. Tech. Training from institution recognized by the Government. That being so, select list prepared by respondents deserves to be revised and appointments are to be made strictly in orders of merit having been prepared based on academic qualification & training in terms of the criteria laid down regarding determination of merit pursuant to advertisement dt. 06/10/2010. It is also settled principles of law that no one should suffer by act of Court and injury if any caused by act of Court shall have to be undone and the gain which the party having earned unless it was interdicted by order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so; as has been observed by Apex Court in South Eastern Coal Fields Ltd v. State of MP (supra) ad infra: That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the Court;the 'act of the Court' embraces within its sweep all such acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly appraised of the facts and the law. The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution depending on the facts & circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been, had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the Court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to so. In the light of what has been observed by Apex Court (supra), benefits could not have been extended to such incumbents who are not deserving pursuant to ex parte stay order of the Court and what is being observed is that it does not weigh with ex parte stay order and after the matter being finally adjudicated, it is bounden duty of the Court to restore the position which is in conformity with mandate of law. Consequently, all the writ petitions alongwith stay petition {except CWP-14873/2010 (Kailash C.Sharma v. State)} succeed and are hereby allowed. Respondents are directed to re-draw the select/merit list of applicants afresh pursuant to advertisement dt.06/10/2009 without making distinction among those who are possessing qualification of 9-months or 2-years' Lab. Tech. Training from institution recognized by the Government and those having now fallen in order of merit pursuant to directions (supra), may be given appointment as per their merit alongwith consequential benefits including seniority based on their merit among those who will now get an appointment, except arrears of pay for intervening period of having not worked. However, the respondents will be at liberty to terminate services of incumbents whose names do not find place after the merit list is redrawn against vacancies advertised pursuant to advertisement dt.06/10/2009 in reference to directions (supra) of this Court. All exercise for compliance of order (supra) be made within two months. CWP-14873/2010 stands dismissed. No costs.


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