S. Panda, J.
1. Petitioner in this Writ Petition challenges the action of the Opposite Parties for not appointing him as an Ayurvedic Doctor though he has possessed the requisite qualification for the said post and the letter dated 1.5.2007 issued by C.D.M.O., Kendrapara, Opposite Party No. 4, wherein he stipulated Clause (g) which was not mentioned in the advertisement published for the post of Ayurvedic & Homoeopathic Doctors in National Rural Health Mission, Orissa.
2. The brief facts of the case are as follows:
Opposite Party No. 2 published an advertisement in the local daily 'The Samaj' on 21.12.2006 for appointment of Ayurvedic and Homoeopathic doctors on contractual basis in different health institutions in the rural areas of the State. As per the said advertisement, the last date for submission of application was 15.1.2007. One of the eligibility criteria was that the candidate must have a Bachelor in Ayurvedic Medicine & Surgery (BAMS)/Bachelor in Homoeopathic Medicine and Surgery (BHMS) from a recognized University and must have registered his/her name in the respective Ayurvedic Homoeopathic Council/Board of Orissa. The Petitioner being possessed all the criteria ffxed in the advertisement, he applied for the sajd post within the stipulated period and his application was complete in all aspects and the authorities scrutinized the application of the Petitioner and the name of the Petitioner has been found place at serial No. 43 in the Career Assessment of the Ayurvedic Doctors of Kendrapara District which is annexed as Annexure-5 to the Writ Petition. Thereafter Petitioner was called for verification of documents as he has been provisionally short-listed by the Selection Committee. Out of 62 candidates only 10 candidates short listed for 5 number of vacancies available in the district of Kendrapara and the Petitioner stood second in the merit list dated 3.5.2007, the document of which is annexed as Annexure-8 to the Writ Petition. The Petitioner was surprised after receiving the call letter dated 1.5.2007, vide Annexure-6, wherein it was stated that for the purpose of verification of original documents, candidates must produce the following documents;
(a) Valid Resident Certificate (issued by Tahasildar/Sub-Collector),
(b) Caste Certificate,
(c) H.S.C. Certificate and Mark Sheet,
(d) +2 Certificate & Mark Sheet..
(e) BAMS/BHMS Certificate & Mark Sheet,
(f)PG Certificate & Mark Sheet (If applicable),
(g) Valid Registration Certificate of Orissa State Homoeopathic Board/Ayurvedic Council (issued/renewed on or before 31.12.2006 for Ayurvedic doctor)
(h) Experience Certificate. (If applicable)
(i) One Passport Size photograph.
Further it was stipulated that if the candidate fails to produce the above original documents before the selection committee members, his name will be cancelled from the short listed list of applied post.
3. The grievance of the Petitioner is that he has passed the BAMS Examination in the year 2002 from Gopabandhu Ayurvedic Mahavidyalaya, Puri and he has registered himself as a registered/listed Ayurvedic Practitioner under Sub-Section (1) of Section 41 of the Orissa Ayurvedic Medicine Act, 1960 and he is authorized to practice the Ayurvedic system of medicine in the State of Orissa. The said licence was valid upto 31st December, 2004. Thereafter Petitioner filed proper application with renewal fees and the licence of the Petitioner was renewed for the year 2006-2007 as per Rules and renewal certificate was issued in his favour on 10.1.2007 vide Annexure-7.
4. For better appreciation, Rule 21 Sub-rule (1) to (3) of Orissa Ayurvedic Medicine Rules, 1960 is quoted below:
21 (1) The registration or enlistment of a person shall ordinarily hold good till the 31st day of December of the year in which such registration or enlistment is made;
(2) Any person desiring to renew his licence shall submit to the Registrar an application in Form 'H' accompanied by a fee of Rs. 5 on or before the 15th day of December of the year to which the licence relates.
(3) If a registered or listed Ayurvedic practitioner fails to pay the renewal fees within the date mentioned in Sub-rule (2), the Registrar shall send a demand notice by registered post with acknowledgement due to his/her address as recorded in the register or in the list for,payment of the same and on failure to comply with the notice within the time specified the name of the practitioner shall be removed from the register of the list.
Provided that if the Ayurvedic practitioner desires for the restoration of his name in the Register/List he should submit an application in Form 'H' to the Registrar accompanied by the usual renewal fees together with a penalty of Rs. 5.
(4) xxx xxx xxx(5) xxx xxx xxx
5. As provided in the aforesaid Rules, Petitioner applied for renewal of his licence on 10.1.2007 with penalty of Rs. 5. along with renewal fees. Accordingly, his licence was renewed on the same day. Petitioner's application was complete in all respect by 15.1.2007 i.e. the cut off date. The C.D.M.O, Kendrapara issued a letter on 1.5.2007 to produce the original documents for verification on 8.5.2007. The selection committee members on 3.5.2007 prepared a short list of candidates wherein the Petitioner was at serial No. 2. Petitioner apprehends that as per Clause (g) of the letter, his appointment to the post of Ayurvedic doctor may not be given even though he has possessed the valid licence by 15.1.2007 i.e. the cut off date. The criterion fixed in Clause (g) of the letter was neither in consonance with the Rules nor in consonance with the advertisement dated 21.12.2006. Thus, the Petitioner prays to quash the said criterion which was fixed by the selection committee after the date of advertisement and direct the Opposite Parties to appoint him in the post of Ayurvedic Doctor.
6. Considering the Rule 21 as stated above, we are of the view that the Rule is prescribed for renewal of licence on payment of fine and the Petitioner has obtained renewal order before the cut off date i.e. 15.1.2007 as stipulated in the advertisement. Since the Petitioner has-possessed all the eligibility criteria stipulated in the said advertisement, there is no reason to fix a new Clause (g) by the C.D.M.O., Kendrapara in his letter dated 1.5.2007.
7. Pursuant to the notice of the writ application, Opposite Party No. 2 appeared and filed its counter affidavit but no reason has been assigned in his counter affidavit that as to why Clause (g) was fixed even though Rule 21(3) provides for a renewal of licence with a penalty of Rs. 5/-. Law is well settled that Possession of requisite educational qualification is mandatory and the same should not be uncertain and if uncertainty is allowed to prevail the employer would be flooded with the application of ineligible candidates. A cut off date for the purpose of determining the eligibility of the candidate concerned must, therefore, be fixed in the advertisement. The appointing authorities are required to apply their mind while exercising their jurisdiction for any relaxation made by them thereafter the said exercise must be within the framework of the Rules, if any, provided for. Petitioner has possessed the requisite qualification and his licence was renewed as per the Rules, there is no nexus between the criteria fixed in the advertisement and Clause (g) in letter dated 1.5.2007 regarding valid Registration certificate of Orissa State Homoeopathic Board/Ayurvedic Council (issued/renewed on or before 31.12.2006 for Ayurvedic Doctors). Since Opposite Parties have also not assigned any reason for the aforesaid cut off date, we delete the said Clause (g) of letter dated 1.5.2007 issued by the C.D.M.O, Kendrapara, vide Annexure-6. Since the Petitioner is otherwise eligible and he is at serial No. 2 in the selection list prepared by the selection committee, his case shall be considered by the concerned authorities, if there is no other impediment for his appointment in the post of Ayurvedic Doctor.
The Writ Petition is accordingly allowed.
There shall be no order as to costs.
B.P. Das, J.
8. I agree