Shailendra Kumar Sahu v. State of Chhattisgarh & Ors.

Judgment

1 . S t a t e o f C h h a t t i s g a r h , t h r o u g h S e c r e t a l y , H e a l t h a n d F a m i l y W e l f a r e D e p a r t m e n t , D . K . S . B h a w a n , R a i p u r , C h h a t t i s g a r h . M a n t r a l a y a , 2 . ‘ C o m m i s s i o n e r , H e a l t h S e r v i c e s , H e a l t h a n d F a m i l y W e l f a r e D e p a r t m e n t , D . K . S . B h a w a n , R a i p u r , r 3 . C h h a t t i s g a r h . D i v i s i o n a l J o i n t D i r e c t o r , R a i p u r D i v i s i o n , D i s t r i c t R a i p u r , C h h a t t i s g a r h .

S.B.: HON'BLESHRI MANINDRA MOHAN SHRIVASTAVA. J. WritPetition (S) No. 3848/2012 Petitioner Shailendra Kumar Sahu iinii^ Respondents Versus State of Chhattisgarh and Ors. Writ Petition (S) No. 730/2013 Petitioner Respondents Ram Sakha Goutam and Ors. Versus State of Chhattisgarh and Ors. Writ Petition (S) No. 731/2013 Petitioner Abhishek Verma and Ors. Versus Respondents State of Chhattisgarh and Ors. Writ Petition (Sl No. 732/2013 Petitioner Sumati Sahu and Ors. Respondents Versus State of Chhattisgarh and Ors. Writ Petition (S) No. 733/2013 Petitioner Respondents Virendra Kumar Sahu and Ors. Versus State of Chhattisgarh and Ors. Writ Petitions u/A 226 of the Constitution of India ORDER POST ON 2. AUGUST, 2013 Sd-/,..-.-: :-.^. ManindraMohanShrivastava Judge :^..-^"^ ??7 HIGH COURT OF CHHATTISGARH : BILASPUR S.B.: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA. J. Petitioner Respondents Petitioner Respondents Writ Petition (Sl No. 3848/2012 Shailendra Kumar Sahu Versus State of Chhattisgarh and Ors. WritPetition (S) No. 730/2013 Ram Sakha Goutam and Ors. Versus State of Chhattisgarh and Ors. Writ Petition (St No. 731/2013 Petitioner Abhishek Verma and Ors. Versus Respondents State of Chhattisgarh and Ors. Writ Petition (S) No. 732/2013 Petitioner Sumati Sahu and Ors. Respondents State of Chhattisgarh and Ors. Versus Writ Petition (Si No. 733/2013 Petitioner Virendra Kumar Sahu and Ors. Respondents State of Chhattisgarh and Ors. Versus Writ Petitions u/A 226 of the Constitution of India Appearance: Shri C.J.K. Rao, Shri Y.C. Sharma with Shri Pushkar Sinha, counsel for the respective petitioners. Shri Y.S. Thakur, Dy. Advocate General for the State-respondents. 'S Sr';- ~~~-:?-. ^fSSKfKS^i ^._;;'—-~% -2- ORDER (Passed on ^August, 2013) By this common order, the aforesaid five writ petitions are being decided (S) No.730, 731, 732and 733 of 2013 have been filed challenging the orders of termination by 20 candidates who wereappointed because W.P. after interim order Was passed by this Court pn 3,9.2012 in W.P. No.3848/12. (S) Writ Petition (S) No. 3848/2012

1. By this petition underArticie 226 ofthe Constitution of India, the petitioner has called in question the process of selection under the impugned aclvertisement dated 4.5.2012 (Annexure P-1) in the matter of recruitment on the post ofOphthalmic Assistant.

2. Brief factual matrix, necessary for adjudication of controversy involved in thispetition, are stated infra: Respondent No.3 issued advertisement dated 4.5.2012 (Annexure P-1) published inthenewspaperon 7.5.2012, inviting application for appqintment to the post of Qphthalmic Assistant. The petitioner also applied for the post. However, apprehending that in view of minimum eligibility qualification prescribed in the advertisement and further condition of live registration with C.G. Paramedical Council, his candidature many not be considered, filed this petition. While thepetitioner has prayed for setting aside the process of selection and quashing the advertisement, at the same breath, he has also prayed for issuance of writ in the nature of mandamus directing respondents to consider the petitioner's candidature for the post of Ophthalmic Assistant.

3. Learned counsel for the petitioner contended that the respondents initially published advertisement prescribing minimum eligibility qualification as B.Sc. 1styear with subjects pf Biqlogy, Chemistry and Physics. But later on, byexecutive instructionsdated 7.7,2012(AnnexureR-1)and 10.7.2012 (Annexure R-2), the qualifications have been amended, He submits that Y:-, -3- though it is not permissible for the respondents to change the eligibility qualification by executive instructions, nevertheless, the petitioner alone should be treated as eligible in view of order dated 25th August, 2012 in W.P. (S) No.3245/12 (Annexure P-5). Learned passed by this Court counsel for the petitioner submits that since the petitioner has filed the petition and no other candidates, who are not possessed of B. Sc. 15t year, the benefit of order aforesaid should be extended to the petitioner alone to the exclusion of the candidates who are not possessed of B.Sc. 1st year qualification on the strength of two executive instructions (Annexure R-1 the relevant mles which govern & R-2). to the post of Ophthalmic Assistant namely Madhya Pradesh/Chhattisgarh Public Health & Family Welfare Department Non- is next contended that recruitment It (related to Directorate of Health Services) Class-111 Service Minjsterial Recruitment Rules, 1989 (for short "the Rules of 1989"), do not prescribe live registration with C.G. Paramedical Council as one of the eligibility qualification, yet the respondents have provided such condition under the advertisement, which is contrary to the rules. Next submission of learned counsel for the petitioner is that though the respondents had invited application for filling-up only 175 posts of they have proceeded to fill-up more than 175 Ophthalmic Assistants, posts, which is not permissible under the law. Next contention of the leamed counsel for the petitioner is that though the governing provision contained in Rule 11 (2) of the Rules of 1989 mandatorily require holding of an interview to assess suitability of candidates in the matter of selection to the various posts, specified under tfie Rules, taken interview but proceeded to prepare provisional list followed by merit list. In support of his submission, learned counsel respondents have not relied upon the judgments of for the petitioner Supreme Court in the cases of Pramod Kumar Vs. U.P. Secondary Eduction Seryices Commission and Ors.1, Rakhi Ray and Ors. Vs. "(2008)75cci53 "s -4- High Court of Delhi and Ors.2, Ramesh Kumar Vs. High Court of Delhi and another3 and State of Orissa and another Vs. Mamta Mohanty".

4. On the other hand, learned counsel for the State argued that the petition is liable to be dismissed as having rendered infructuous because the petitioner's candidature has actually been considered, but he could not secure place in the merit list, because the petitiqner obtained only 42.51 percent of marks, whereas in the OBC category, to which the petitioner belongs, the last selected candidate namely Udhav Patel, secured 58.60 percent of marks which is much higher the petitioner. Therefore, challenge to the advertisement on the aspect of qualification and condition of live registration has been rendered academic. It is further than that of argued that in the advertisement, it was categorically informed to all candidates under Clause 16 of its Terms and Conditions that advertisement would be subject to any change in the recruitment rules/instructions issued by the Govt. in this regard. He further submits that after issuance of advertisement, a memo was issued by the Director, Health Services on 7.7.2012 (Annexure R-1) that qualification of 12th pass with Physics, Chemistry and Biology along with training of two years in the Ophthalmic Assistant would be treated to be equivalent to the qualification of having passed B.Sc. 1st year Selection Committee in its meeting convened on 10.7.2012 decided that in similar subjects. Thereafter, the qualification published under advertisement dated 4.5.2012 be amended, treating those who have passed 12th examination with Physics, Chemistry and Biology also qualified. An information in this regard was also affixed on the notice board on 10.7.2012. It is next contended that the petitioner is not entitled to assail the action of respondents in filling more than 175 posts because the petitioner was considered, but as he had obtained less marks, he could not find place in the merit list. Therefore, even ifthe respondents have made appointment on posts more than 175 2(2010)2SCC637 '(2010)3 SCC 104 4;4(2011) 3-SCC 436 -5- in number, it would not adversely affect candidature of the petitioner. Even otherwise, it is argued, that such a course of action is permissible in view in the case of Amlan Jyoti the Supreme Court the judgment of Borooah Vs. State of Assam and Ors.5

5. Learned counsel for the State further argued that the respondents clearly stated in the advertisement that the selection would be based on merit with reference to concemd subjects/training. The petitioner having applied and participated in the process of selection with open eyes without raising any objection to the process of selection, took chance and when he found that on the basis of low marks, he is not likely to be selected, which he came to list, then only instant petition has know upon publication of the provisional been filed. It is further argued that in the writ petition, the petitioner has not raised any ground relating to requirement of holding interview nor with in excess of posts advertised by regard to appointment on the post respondents. Therefore, at the time of argument, no such ground can be raised to assail process of selection, particularly when the petitioner has participated in the process of selection and failed to secure place on the basis of merit. Learned counsel for the State further argued that petitioner came out with the grievance in the writ petition that those who have passed 12th examination with Physics, Chemistry and Biology are entitled to be treated as eligible and at par with those who have possessed B.Sc. 1a year pass certificate in fhe light of order passed by this Court in the case of Dharmendra Deshmukh Vs. State of Chhattisgarh & Ors.6 During the course of arguments, the petitioner has came out with a new case that he alone should be treated as eligible and not other candidates possessed of 12th examination pass. This contention, rejected at the threshold . It is next contended by learned counsel for the therefore, may be State that the provisional list was issued on 24.8.2012, whereas writ petition was filed on 30th August, 2012 along with the provisional the petitioner has not impleded those candidates who have been placed in list. But 5(2009) 3 SCC 227 'WP (S) No.3245/12, decided on 25th August, 2012 ^s -6- the provisional list. Looking to the new ground raised during arguments, all those candidates, who, on the strength of being possessed of 12th examination pass certificate have been included in the provisional list, are necessary parties.

6. The writ petition has been filed by the petitioner on 30th August, 2012. The advertisement was issued on 4.5.2012. The return of the respondents shows that counseling was scheduled on 16th, 17th, 18th and 19th August,

2012. It has also been stated in the return, which has not been denied, that a list of eligible candidates arranged in order of merit, was also prepared. Respondents have also stated in the return that list of eligible/ineligible candidates was also published on 27.7.2012 and a news to this effect was published in the Newspaper. This fact has also not been disputed by the petitioner. List of eligible candidates placed on record as Annexure R-4 by the respondents shows that the petitioner was placed at Sr. No.342 of the list of eligible candidates arranged in order of merit. The petitioner has not been declared ineligible on any ground much less on the ground that he is either not possessed of 12th pass, B.Sc. 1st year or that he does not have live registration with C.G. Paramedical Council. The merit list of OBC candidate has also been placed on record filed as Annexure R-5,which shows that the last candidate in the merit list secured 58.60 marks.

7. The writ petition of the petitioner raises only two issues. First issue relates to claim of treating 12th pass qualification at par with B.Sc. 1st year and the registration with C.G. second is the objection to the condition of Paramedical Council. However, on facts, is found that the petitioner's candidature was considered by respondents and he was not declared ineligible on any of the aforesaid grounds as alleged by the petitioner, but, the petitioner failed to secure a place in order of merit.

8. Leamed counsel for the petitioner, however, advanced submission during the course of argument that the petitioner alone should be treated as eligible to the exclusion of other candidates who are possessed of -7- qualification of 12th pass because the petitioner alone has filed the petition judicial order i.e. order passed by this claiming benefit on the basis of It has been in the case of Dharmendra Deshmukh (supra). Court contended that the respondents authority could not amend the qualification or draw equivalence by an administrative instructions (Annexure R-1) nor it was permissible under the law for the Selection Committee to amend the qualification and allow those who were possessed of 12th pass certificate only. The aforesaid argument of learned counsel for the petitioner deserves to be rejected at the threshold. The petitioner approached this Court seeking a direction that the petitioner should be considered as eligible having been possessed of 12th pass certificate. In the case of Dharmendra Deshmukh (supra), qualification of 12th pass with Physics, Chemistry and Biology is to be treated at par with B.Sc. 1st year if the respondents earlier decided to draw an equivalence and consider this Court clearly held that in similar subjects. Therefore, candidature of all candidates possessed of 12th pass certificate, which incidentally included the petitioner also, the petitioner cannot be heard saying that he alone should be treated eligible to the exclusion of other candidates. Respondents having drawn an equivalence, decided to consider candidature of all candidates who were possessed of 12th pass certificate with Physics, Chemistry and Biology. This course of action was adopted by respondents to ensure equal treatment to similarly situated candidates. The petitioner having approached the Court that he should be considered eligible, having been confronted with the situation that he was actually considered, cannot be allowed to take somersault at the stage of arguments to say that he alone should be considered. The argument is completely misconceived and therefore liable to be rejected.

9. The contention with regard to violation of holding interview as required under Rule 11 of the Rules of 1989 is also liable. to be rejected, for the reason that the petitioner has not raised this issue in the writ petition. Even 'l -8- in the rejoinder, the petitioner did not raise any such issue. The petitioner raised the aforesaid issue for the first time by filing an additional rejoinder on 26.4.2013. It would thus be apparent that when the petitioner applied for the post, there was no grievance raised by him that method of selection as stated in Clause -14 of the Terms of Conditions of advertisement, is in violation of Rule 11 (2) ofthe Rues of 1989. The petitioner took a chance and it was only when the petitioner having come across provisional list of eligible candidates arranged in order of merit, found that he had no chance of selection because of low marks obtained by him that he raised this issue by way of additional rejoinder. Therefore, having participated in the process of selection, without raising any such objection, the petitioner cannot be allowed toassail the process of selection on such ground after having remained unsuccessful on the basis of merit. Legal position in this regard is very well settled in catena of decisions. [Please see Om Prakash Shukla Vs. Akhilesh kumar Shukla and Ors., 1986 (supp) SCC 285, Chandra Prakash Tiwari and Ors. Vs. Shakuntala Shukla & Ors. (2002) 6 SCC 127, Union of India and Ors. Vs. S. Vinodh Kumar and Ors. (2007) 8 SCC 100, Dhananjay Malik and Ors. Vs. State of Uttaranchal and Ors. (2008) 4 SCC 171, and Amlan Jyoti Borooah Vs. State ofAssam and Ors (2009) 3 SCC 227.

10. In the aforesaid decisions, on facts, it was found that the candidate had subjected himself to a process of selection, which letter on was sought to be challenged only when the candidates found that they may not be successful. Even in cases where there was allegation of violation of statutory rules governing process of selection, interfere with the process of selection at the instance of such candidates, applying principle of estopple and acquiescence. the Courts declined to

11. In so far as appointment in excess number of posts advertised is concerned, this issue was not available to be raised by the petitioner in the later on, after return was filed, petitioner stated that as writ petition, but, against 175 posts, 180 candidates have been appointed. It has to be noted s< '^s 1 "^ ssy' -9- that in the present case, after the interim order was passed, number of appointments have been made, which was seriously viewed by this Court and report was also called in which it has been revealed that even after interim order, number of appointments have been made. A separate contempt proceeding has also been initiated against respondents official. The State, having found in the enquiry that various appointment orders were issued after the interim order passed by this Court, has proceeded to take action to cancel those appointments which has led to filing of connected petitions i.e. W.P.(S)Nos. 730, 731, 732 and 733 of 2013. It has been found on the basis of report submitted by respondents- State that after the interim order was passed by this Court on 3.9.2012, appointment orders have been issued. Though in view of above analysis of various grounds urged by the petitioner, this Court is not inclined to grant any relief to the petitioner, yet taking into consideration that appointment orders were issued during the period of interim order was operative, it will be open for the State to take action against the erring officers. As contempt petition is pendingon the allegation of violation of interim order passed by this Court, this Court would refrain from making further observations in this regard.

12. In the result, writ petition is found to be devoid of substance. The same deserves to be dismissed and is accordingly dismissed. Writ Petition (S) No. 730. 731. 732 & 733 of 2013

1. These petitions have been filed by those candidates who were appointed as Ophthalmic Assistant subsequent to and in violation of interim order passed by this Court on 3.9.2012 in W.P. (S) No.3848/12.

2. The issuance of orders of appointment subsequent to the interim order, was noted by this Court vide its order dated 1.1.2013 and notice was issued to the concerned Joint Director as to whey contempt proceedings may not be initiated against him for disregarding the order passed by this this Court observed in its order dated 22nd January, Court ••^. . Thereafter, s< '^..s^t-^: ^ ^..JS/ -10- 2013 {W.P. (S)No.3848/12} that the final select list was published and appointment order issued despite there being stay by this Court. The State was therefore directed to hold an enquiry and make recommendation for the purposes of action to be taken against the erring officer, if found guilty. A fact finding report dated 7.4.2013 ofthe Director Health Services was submitted before this Court by the respondents along with an application dated 8.4.2013. That report shows that orders of appointment including those by which petitioners in these cases were appointed, were issued subsequent to the interim order passed on 3.9.2012. In case ofwrit (S) No.730/13, appointment order was issued on petitioners in W.P. (S) No.731/13, appointment order was issued on in W.P. 9.11.2012; (S) No.732/13, appointment order was issued on 31.10.2012 and in W.P. (S) No.733/13, appointment order was issued on 4th January, 2013. It is, therefore, apparently clear that the appointment

31.10.2012; in W.P. OKlers which were issued in respect of the writ petitioners in above four cases, were issued subsequent to the interim order dated 3.9.2012. The order of cancellation was, therefore, rightly issued in all these cases by the respondents. Therefore, there is no illegality in the action of respondents in cancelling appointments of petitioners in aforesaid four writ petitions.

3. Therefore, above four writ petitions have to be dismissed and are (S) No.3848/12 has also it would now be open for the accordingly dismissed. However, since W.P. been finally dismissed by this Court, respondents to proceed to make appointments on the basis of select list. Sd-/ ,:,,,-•: Manindra Mohan Shrivastava Judge Praveen s<