Judgment · High Court · 2009

The writ petitioners are diploma holders in Homeopathic Medicine and Surgery. Their educational qualification is commonly known as ’DHMS’. The p etitioners have filed this writ petition under Article 226 of the Constitution o f India, praying for a writ in the nature of certiorari so as to quash the adver tisement dated 28.5.2008 issued by the Mission Director, NRHM, Assam for recruit ment of 50 (fifty) Medical Officers on contractual basis for serving in rural ar eas in the State of Assam. At the same time, the petitioners are also praying fo r a writ in the nature of mandamus to allow the diploma holders to participate i n the selection process for the aforesaid posts.

#2. I have heard Sri B Chakraborty, learned counsel for the writ pet itioners. The NRHM, Assam and the State of Assam, who are the respondent Nos. 2, 3 and 4 were represented by Sri B Gogoi, learned Standing Counsel, Health Depar tment. During the pendency of the writ petition a group of degree holders in Hom eopathic Medicine and Surgery were also impleaded as private respondent Nos. 5 t o 9 on their request and these private respondents are represented by Sri P P Ba ruah, learned counsel. I have also perused the pleadings, counter pleadings and other documents submitted by the parties.

#3. Shri Chakraborty, learned counsel for the petitioners, submitted that as per the directions of Homeopathy Central Council the diploma course was abolished since 1999 and prior to that DHMS was the only educational qualificat ion available in the State of Assam. It may be mentioned here that all the writ petitioners obtained the DHMS prior to the abolition of the diploma course and s ince then they are practicing in the Homeopathy Medicine. The learned counsel fo r the petitioners also submitted that all the 50 (fifty) posts of Medical Office rs have been virtually reserved for the degree holders by way of excluding the d iploma holders to compete for the said posts and it amounts to discrimination. A ccording to the learned counsel, in the recent past, the Assam Public Service Co mmission (APSC) had also advertised vacant posts for Medical Officers in Homeopa thic Medical College of Assam and for the said posts the APSC also allowed the d iploma holders (DHMS) to participate in the recruitment process. The learned cou nsel also submitted that the National Rural Health Mission (NRHM) who is going t o recruit 15 (fifteen) Medical Officers in Assam also recruited 50 (fifty) Medic al Officers (Homeopath) in the State of Tripura in the year 2007 and then also t he diploma holders (DHMS) were allowed to compete for the said posts. In this wa y, the decision of the State respondents only allowing the degree holders (BHMS) to apply for 50 (fifty) posts of Medical Officers (Homeopath) by the same autho rity i.e. NRHM is discriminatory and arbitrary.

#4. Per contra, the learned counsel for the State/NRHM and private r espondents submitted that it is the prerogative of the requiring department to f ix the minimum educational qualification for any particular post and the Court h as no role to examine the policy decision of the State respondents. The learned counsel for the respondents also submitted that the posts have been reserved for degree holders to maintain the standard of medical services and the decision is in tune and spirit of the Homeopathy (Minimum Standards of Education) Regulatio ns, 1983, as amended in the year 2002.

#5. It is true that ordinarily the High Court do not interfere in th e selection process provided it does not smack of any arbitrariness. However, in the case before me, the State respondents have failed to justify as to why expe rienced DHMS candidates have been totally excluded for the posts of Medical Offi cers, which is stated to be the lowest rank of Officers in Homeopath Hospitals. Apparently, the NRHM is going to recruit 50 (fifty) Medical Officers on contract ual basis to serve in the rural areas and despite knowing that the degree course (BMHS) was introduced in the State of Assam only from 1999 the diploma holders have been barred from participating in the recruitment process.

#6. It is true that both DHMS and BHMS cannot be treated at par, but , at the same time, the DHMS candidates can also be considered at par with BHMS for limited purpose by way of providing a stipulation that diploma holders shoul d have certain years of experience in the medical profession. Apparently, the State and the NRHM are the only authorities to p 7. rovide public employment to the diploma holders in Homoeopathy. In a welfare Sta te, the State authorities cannot totally ignore the eligibility of diploma holde rs despite giving them technical education in a particular field. As noted earli er, the State of Assam recruited few Medical Officers for Homeopathic Medical Co lleges of Assam giving opportunity to diploma holders to participate in the sele ction process. Besides this, the NRHM also allowed the diploma holders to compet e for the posts of Medical Officers in the neighbouring State of Tripura. Howeve r, neither in the affidavit nor during the course of oral argument, the State re spondents could furnish any logic behind excluding the diploma holders to appear for the posts of Medical Officers (Homeopath). Needless to mention here that on given occasions, even experienced diploma holders may be found to be more compe tent and intelligent than the degree holders. On being enquired the learned coun sel for the State respondents submitted that against the 50 (fifty) posts of Med ical Officers they have received only 343 applications, which include 149 applic ations from DHMS and the remaining 194 applications are from BHMS. Considering t he small number of applications it appears to me that there should be no difficu lty for the State respondents to consider and allow the diploma holders to parti cipate in the interview. It would always be open to the recruiting authority to fix separate weightage for the degree holders and diploma holders and also on th e basis of their experience in the field.

#8. As per the interim order of this Court, the NRHM has accepted ap plications from DHMS candidates and as such, it would be proper for the NRHM to reconsider the claim of the DHMS candidates to allow them to compete for the pos ts of Medical Officers. If necessary, a Committee to examine this aspect may als o be constituted by the respondent No. 2 and the decision should be based on log ic and reason.

#9. If the respondent No. 2 opts for allowing the DHMS candidates to appear for the posts of Medical Officers appropriate advertisement may be issue d and circulated widely.

#10. sed of With the aforesaid observations, this writ petition stands dispo