Judgment:
Shiv Kumar Sharma, J.
1. The grievance of the petitioner in the instant writ petition is that although he was appointed on the post of Ayurved Junior Compounder/Nurse vide order dated 19.3.2002. the respondent No. 2 issued an order dated 3.4.2002 (Annex.4) cancelling his appointment. The petitioner seeks to quash the order dated 3.4.2002 and prays that he be reinstated on the post of Ayurved Junior Compounder/Nurse with all consequential benefits.
2. In the reply submitted by respondents it has been averred that the petitioner was wrongly appointed on the post of Ayurved Junior Compounder/Nurse and when the mistake came into knowledge the order of appointment was reviewed. The respondents have further averred in the reply that the name of the petitioner was shown at Sr. No. 86 in the merit list of Ayurved Junior Compounder/Nurse and the petitioner secured 61.17% marks, whereas one other candidate Niranjan Sharma was placed at Sr. No. 85 also secured the same marks. But as the petitioner was younger in age in comparison to Niranjan Sharma, it was decided that elder person be given appointment. Thus Niranjan Sharma was given appointment on the post of Ayurved Junior Compounder/Nurse.
3. I have heard Mr. Ajay Rastogi, learned counsel for the petitioner, Dr. R.K. Sharma and Mr. Ishwar Jain learned counsel for respondents, and carefully scanned the material on record.
4. Mr. Ajay Rastogi, learned counsel for petitioner has invited my attention to the Rules 20 and 22 of the Rajasthan Ayurvedic Unani, Homeopathy and Naturopathy Subordinate Service Rules, 1966 (for short '1966, Rules '). Proviso appended to Rule 22 of the 1966, Rules provides that the inclusion of a candidate's name in the list confers no right to appointment unless the Appointing Authority is satisfied after such enquiry as may be considered necessary that such candidate is suitable in all other respects for appointment to the post concerned. In view of the said provision it is contended that the respondents ought to have prepared the merit list on the basis of suitability of candidate and the suitability ought to have been adjudged on the basis of the past educational record of the candidate. As there is no provision in the 1966, Rules to determine the seniority on the basis of age the policy decision taken by respondents for giving preference to the person who is elder in the age cannot be sustained.
5. Per contra, Dr. R.K. Sharma, learned counsel for the respondents placed reliance on the judgment in case of Sudama Singh v. Nath Saran Singh and Ors., 1988(1) SCC 577, wherein the seniority was determined on the basis of age of rival candidates.
6. A look at the judgment of the case of Sudama Singh, (supra) demonstrates that the seniority of the rival candidates was determined in view of the Regulation 3(1)(b) in Chapter II of the Regulations made under the (Uttar Pradesh) Intermediate Education Act, 1921 as introduced by Utter Pradesh Education Laws Amendment Act, 1977. The relevant part of which reads thus:
3(1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions:
(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age.
7. As there is no such provision in 1966 Rules, the case of Sudama Singh, (supra) is distinguishable and the ratio indicated in that case is not applicable in the facts of the instant case. In view of the proviso appended to Rule 22 of the 1966, Rules, I am of the opinion that the suitability of the candidate ought to have been adjudged on the basis of overall past educational record of the candidate and the age of the candidates should not be made the basis, in absence of specific provision in 1966, Rules.
8. There is yet another reason to disturb the impugned order dated 3.4.2002 (Annex 4). The respondents have not placed anything on record to show that the said order was passed after providing the opportunity of hearing to the petitioner, and therefore, it is arbitrary, against the principles of natural justice and violative of Article 14 of the Constitution of India.
9. In view what I have discussed herein above, I allow the writ petition and set aside the order dated 3.4.2002 (Annex.4). I direct the respondents to adjudge the suitability of petitioner and other candidates, who have secured equal marks, on the basis of their overall past educational record. Till this exercise is completed, the petitioner shall be allowed to work on the post of Ayurved Junior Compounder/Nurse pursuant to the order dated 19.3.2002. Costs made easy.