C.W.P.No.23144 of 2010 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH1 C.W.P.No.23144 of 2010 Jasvir Singh and others ..........Petitioners Versus State of Haryana and others ..........Respondents 2.
C.W.P.No.281 of 2011 Anil Kumar ..........Petitioner Versus State of Haryana and others ..........Respondents DATE OF DECISION: 1.5.2014 BEFORE:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.Satbir Gill, Advocate for the petitioners in C.W.P.No.23144 of 2010.
Mr.Devender Punia, Advocate for the petitioner in C.W.P.No.281 of 2011.
Mr.Rahul Sharma, Addl.
A.G., Haryana.
Mr.Raman B.
Garg, Advocate for respondent No.3.
**** DAYA CHAUDHARY, J.
This order will dispose of two Civil Writ Petitions bearing Nos.23144 of 2010 and 281 of 2011.
For the sake of convenience, the facts have been extracted from C.W.P.No.23144 of 2010.
The present petition has been filed for quashing of impugned Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (2) order dated 31.8.2009, whereby, the appointments of the petitioners were kept in abeyance and order dated 21.7.2010, whereby, the appointment letters of the petitioneRs.which were earlier kept in abeyance, were withdrawn.
A prayer has also been made for issuing directions to the respondents to allow the petitioners to work on the said post as they were duly selected by the Selection Committee and there was no misrepresentation or concealment on their part.
The facts of the case as averred in the petition are that an advertisement was issued on 13.1.2009, whereby, applications for the post of Radiographer along with other technical and non-technical posts were invited.
As per advertisement, the qualification for the said post was to be as per Haryana Government and PGIMs.Rohtak.
It was also mentioned in the advertisement that the persons who are working in the respondent- College shall be given preference.
The petitioners along with other eligible candidates applied for the said post but the respondent-College did not carry out selection in pursuance to the abovesaid advertisement and it was intimated to the petitioners that the advertisement process had been cancelled.
Thereafter again an advertisement was issued on 2.7.2009 inviting applications for the posts of RadiographeRs.In response to that advertisement, the petitioners again applied for the same.
The petitioners were called for interview and they appeared before Selection Committee comprising of experts in the field including respondent No.3 i.e.Administrative Officer of the College- Principal being representative of the Society running the College and two nominees/outside experts from PGMIS, Rohtak.
Total 16 candidates appeared for interview and out of them, 11 candidates including all the petitioners herein were selected and the result after declaration was displayed on the notice board of the College.
The petitioners were issued Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (3) appointment letters and they joined on their respective posts.
As per terms and conditions of the appointment letteRs.medical examination and character verification of the petitioners was conducted.
Thereafter on 31.8.2009 a letter was issued by respondent-College, wherein, it was mentioned that appointment of all the petitioners be kept in abeyance without mentioning any reason.
Aggrieved by the said order, the petitioners approached this Court by way of filing C.W.P.No.14567 of 2009, which was dismissed as withdrawn with liberty to file afresh vide order dated 10.11.2009.
Thereafter, the petitioners filed representations to the respondent- authorities but no action was taken thereupon.
When no action was taken on the representations submitted by the petitioneRs.again C.W.P.No.5209 of 2010 was filed, which was disposed of on 23.3.2010 with a direction to the respondents to decide the representations within a period of three months from the date of receipt of a certified copy of the order.
In response to those directions, the claim of the petitioners was rejected by passing order dated 21.7.2010.
Order dated 31.8.2009 and 21.7.2010 are the subject matter of challenge in the present petition.
Learned counsel for the petitioners contends that the petitioners were selected by duly constituted Committee including the experts finding them eligible and meritorious.
They were issued appointment letters and in pursuance to that they joined their duties as well.
Learned counsel further submits that there was no misrepresentation on the part of the petitioners but they were not allowed to continue on their duties.
Learned counsel also submits that some of the petitioners were already working on the same posts and it is not justified to say that they were not possessing the requisite qualification.
The appointment letters were issued to the petitioners on 20.8.2009 but subsequently it was stated Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (4) that the petitioners were not having prescribed qualification as per PGIMs.Rohtak.
It is also the contention of learned counsel that the petitioners were eligible as per qualification prescribed by State of Haryana and even subsequently also an advertisement has been issued on the basis of same qualifications.
Subsequent amendment if any cannot be a ground to state that the petitioners were not fulfilling the requisite qualification as per PGIMs.Rohtak.
Learned counsel for the petitioner has also relied upon the judgment of this Court in Sarabjeet Kaur Dhaliwal versus Punjab Agricultural University, Ludhiana 2003 (3) RSJ549 in support of his contentions.
Separate replies on behalf of the respondents have been filed and the same are on record.
Respondent No.2 i.e.Director General Health Services, Haryana has stated in his reply that respondent No.3 is a private college and is not working under Haryana Health Department and as such respondent No.2 has no concern with the ordeRs.It has also been mentioned that the petitioners are having qualifications for the said post as per Haryana Health Department Paramedical and Miscellaneous posts (State Group 'C') Services Rules, 1998.
As per written statement filed by respondent No.3 i.e.Director, Maharaja Agrasen Medical College, Agroha, the petitioners have not passed 10+2 examination with Science subjects and their diploma is one year diploma without any field training.
It has also been mentioned that the requisite qualification for the post of Radiographer as applicable on the PGIMs.Rohtak is provided in the Haryana Medical Education Department, Technical Staff (Group C) Service (Amendment) Rules, 1999, whereby, the Haryana Medical Education Department, Technical Staff (Group 'C') Service (Amendment) Rules, 1999 were amended w.e.f.15.2.2008.
Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (5) Learned counsel for respondent No.3 submits that the appointment letters of the petitioners were kept in abeyance due to dispute in qualification and it cannot be said that the petitioners joined their duties after issuance of appointment letteRs.Even the joining reports of the petitioners were never accepted by the respondents.
Learned counsel also submits that the petitioners do not fulfill the required qualification as per letter dated 28.7.2009.
Petitioner No.1 has passed senior secondary examination (10+2) without science subjects besides having one year Diploma in Radiology and Imaging Technology from Punjab Technical University, Jalandhar.
Similarly, other petitioners have also not qualified 10+2 examination with science subjects and they are having only one year diploma without any field training, which is not recognized by the competent authority i.e.State of Haryana or Pandit Bhagwat Dayal Sharma Postgraduate Institute of Medical Sciences, Rohtak.
The requisite qualification for the post of Radiographer as applicable on the PGIMs.Rohtak is provided in the Haryana Medical Education Department, Technical Staff (Group 'C') Service (Amendment) Rules, 1999, whereby, the Haryana Medical Education Department Technical Staff (Group 'C') service (Amendment) Rules, 1999 were amended w.e.f.15.2.2008.
As per amended Rules, the requisite qualification is 10+2 examination with science subjects and two years diploma in Radiography and Therapy Technology CouRs.examination passed from Pandit Bhagwat Dayal Sharma Postgradute Insitite of Medical Science, Rohtak or equivalent Examination passed from the Institute recognized by competent authority with in field training.
Learned counsel for respondent No.3 has also relied upon the judgment of Hon'ble the Apex Court in State of M.P.versus Shyama Pardhi etc.1996(2) SCT170 in support of his contentions.
Heard the arguments advanced by learned counsel for the Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (6) parties and have also perused the impugned orders as well as other documents on file.
As per advertisement, the qualification and experience for the post of Radiographer has been mentioned as per Haryana Government and PGIMs.Rohtak.
It was also mentioned that preference will be given to those who were working in the same line.
Said advertisement was published on 13.1.2009 but subsequently it was cancelled and again an advertisement was published on 2.7.2009, wherein, also it was mentioned that age limit and qualifications will be as per Haryana Government and PGIMs.Rohtak.
In response to that advertisement, the petitioners applied and ultimately they were selected and were issued appointment letters on 20.8.2009 subject to their character and antecedent verification.
It was also mentioned under the term and condition of the appointment letter that in case any adveRs.facts comes to the notice of the authorities, the services can be terminated.
The probation period was mentioned of two years from the date of appointment.
It was also mentioned that in case information/declaration furnished by the candidates in connection with appointment, at any time found to be false or incorrect, they were liable to disciplinary action, which may lead to termination/dismissal of their services.
As per case of the petitioneRs.they submitted their joining reports to the respondent-College and their attendances were also marked in the register, whereas, as per stand of the respondent-College, the appointments of the petitioners were kept in abeyance and their joining reports were not accepted.
Aggrieved by the said order, the petitioners approached this Court by way of filing C.W.P.No.14567 of 2009, which was dismissed as withdrawn with liberty to file afresh vide order dated 10.11.2009.
Thereafter, the petitioners filed representations to the respondent-authorities but no action was taken thereupon.
When no Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (7) action was taken on the representations submitted by the petitioneRs.again C.W.P.No.5209 of 2010 was filed, which was disposed of on 23.3.2010 with a direction to respondents to decide the representations within a period of three months from the date of receipt of a certified copy of the order.
In response to the said directions, the claim of the petitioners was rejected vide order dated 21.7.2010 on the ground that the petitioners do not fulfill the requisite qualification for the post of Radiographer.
It was also mentioned in aforesaid order that the petitioners have no right to claim appointment to the post of radiographers and the post of Radiographer is a technical post and even there is no provision for relaxing of minimum qualification.
Admittedly, the requisite qualification for the post of Radiographer has been provided under Haryana Medical Education Department Technical Staff (Group 'C') Service Amendment Rules, 1999, whereby, the Haryana Medical Education Department Technical Staff (Group 'C') Service (Amendment) Rules 1999 were amended w.e.f.15.2.2008.
The requisite qualification for the post of Radiographer is as under:- (i) 10+2 Examination with Science subject and (ii)Two years diploma in Radiography and Therapy Technology CouRs.examination passed from Pandit Bhagwat Dayal Sharma Postgraduate Institute of Medical Sciences, Rohtak or equivalent Examination passed from the Institute recognized by Competent Authority with in field training.”
.
It is also not disputed that petitioner No.1 has not passed Senior Secondary Examination (10+2) with science subjects and is having one year diploma in Radiology and Imaging Technology from Punjab Technical University, Jalandhar.
Similarly other candidates have not Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (8) qualified 10+2 examination with science subjects and they are also having one year diploma without any field training.
From the Amended Rules as mentioned above, it is clear that the petitioners does not fulfill the requisite qualification and neither they are eligible nor qualified and the advertisement dated 8.7.2008 cannot over right the Amended Rules of 1999.
The argument of learned counsel for the petitioners that there was no misrepresentation on the part of the petitioners and impugned order cannot be passed without giving any opportunity of hearing and without following principles of natural justice, cannot be accepted.
The petitioner have not acquired any right on the post merely by selection.
In the present case, the petitioners are not possessing the requisite qualification as provided under the Amended Rules, 1999 and after issuing appointment letteRs.their appointments were kept in abeyance.
The judgment relied upon by learned counsel for the petitioners in Sarabjeet Kaur Dhaliwal's case (supra) is not applicable keeping in view the facts and circumstances of the case at hand as neither they is any violation of any statutory rule nor any right accrued to the petitioneRs.In that case the services of the petitioner were terminated by issuing a show cause notice on the ground that she was not having qualification of BA with second class but she was having experience of the same post.
It was held in that case that since the petitioner had gained experience on the post is sufficient and her claim was accordingly accepted.
It is settled proposition of law that in case a person is appointed without having requisite qualifications as provided under the Rules, the same cannot be prolonged.
Subsequently even the competent authority has no power to allow the person to continue in service in case he is not possessing the requisite qualification as has been held by Hon'ble Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (9) the Apex Court in the case of State of Orissa and another versus Mamata Mohanty 2011 (3) SCC436 In another judgment of Apex Court in case of Dr.
Prit Singh versus S.K.Mangal and others 1993 Supp (1) SCC714 the issue with regard to requisite qualification was discussed and it was held as under:- “ It need not be pointed out that the sole object of prescribing qualification that the candidate must have a consistently good academic record with fiRs.or high second class Master’s Degree for appointment to the post of a Principal, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration .The appellant had not secured even second class marks in his Master of Arts Examination whereas the requirement was fiRs.or high second class (55%).The irresistible conclusion is that on the relevant date the appellant did not possess the requisite qualifications.On the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed.”
.
In another judgment of Hon'ble the Apex Court in the case of Pramod Kumar versus UP Secondary Education Services Commission and others 2008 (2) SCT699 the issue as to whether a person lacking eligibility can be appointed and if so, whether such irregularity/illegality can be cured/condoned was discussed and it has been held as under:- “If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned.
Such an act cannot be ratified.
An appointment which is contrary to the statute/statutory rules would be void in law.
An Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (10) illegality cannot be regularised, particularly, when the statute in no unmistakable term says so.
Only an irregularity can be.(See Secy., State of Karnataka v.
Umadevi (3).(2006) 4 SCC1, National Fertilizers Ltd.v.Somvir Singh, (2006) 5 SCC493 and Post Master General, Kolkata v.
Tutu Das (Dutta).(2007) 5 SCC317”.It has also been held in State of Orissa's case (supra) that any appointment made in contravention of the statutory requirement i.e.eligibility, cannot be approved and once an appointment is bad from its inception, the same cannot be preserved or protected even on the ground that a person has been employed for the long period.
The submissions made by learned counsel for the petitioners that cancellation of appointment is contrary to provisions of natural justice, does not carry any weight, as it has been observed by Hon'ble the Apex Court in State of MP's case (supra) that question of violation of principles of natural justices does not arise in case the minimum requisite qualification for the appointment was not fulfilled and the same has resulted into cancellation of appointment.
Hon'ble the Apex Court in the case of M.C.Mehta versus UOI1999(1) SCT561has held that in case of setting aside of order of cancellation of appointment in absence of requisite qualification, the principles of natural justice are not required to be observed when no prejudice has been caused to the person.
In the present case, the post is technical in nature and the petitioners have not only passed 10+2 examination without science subjects but they are having one year diploma, whereas, two years diploma is required.
The petitioners are also having no field training to their credit.
The judgment relied upon by the learned counsel for respondent No.3 in Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (11) State of M.P.'s case (supra) is applicable to the present case as the appointment of the petitioner was cancelled without affording any opportunity of hearing.
It was held in that case that in case of termination on the ground of ineligibility, the principles of natural justice were not required to be complied with and termination order was held to be proper.
Once the Court comes to the conclusion that a mistake has been committed, then it becomes the solemn duty of the Court to rectify the mistake rather than perpetuate the same as has been held by Hon'ble the Apex Court in the case of Hotel Balaji and others versus State of A.P.And others AIR1993SC1048 wherein, it has been observed as under:- “To perpetuate an error is no heroism.
To rectify it is the compulsion of judicial conscience.
In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce V.
Dealameter (A.M.Y.At page 18: a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.”
.
No doubt the competent authority is empowered to fix a higher standard for selection and the same can be more than the required standard as has been provided under the Rules but the same cannot be lower than the one's, which is provided under the statute.
The relaxation of educational qualifications may be permissible in case the same is provided under the Rules, However, the said power can be exercised for reasons to be recorded and that should not be exercised arbitrarily, only to favour an individual.
Hon'ble the Apex Court in the case of State of M.P.versus Dharam Bir 1998 (3) SCT301while dealing with the similar issue on humanitarian ground has observed as under:- Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh C.W.P.No.23144 of 2010 (12) “The courts as also the tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential education qualifications, should be allowed to continue on the post merely on the basis of his experience.
Such an order would amount to altering or amending the statutory provisions made by the Government under Article 309 of the Constitution.”
.
In view of the facts and law position explained above, the petitioners have no right over the post and, therefore, no hearing was required before cancellation of their services.
Moreover, in the present case cancellation order has been passed within a very short span of time giving no probability for any legitimate expectation to the petitioners regarding continuation of their services.
Moreover, no prejudice has been caused to the petitioners by not serving notice of giving hearing before the order of cancellation, as the appointments of petitioners de hors the Rules and cannot be continued for the reasons as mentioned above.
Accordingly, I do not find any substance in the petitions and the same being devoid of any merit are hereby dismissed.
1.5.
2014 (DAYA CHAUDHARY) pooja JUDGE Pooja Sharma 2014.05.07 11:25 I attest to the accuracy and integrity of this document Chandigarh