| SooperKanoon Citation | sooperkanoon.com/753805 |
| Subject | Constitution |
| Court | Rajasthan High Court |
| Decided On | Jul-05-1994 |
| Case Number | S.B.C.W.P. No. 478/93 |
| Judge | N.K. Jain, J. |
| Reported in | AIR1994Raj282; 1994(3)WLC703; 1994(2)WLN66 |
| Acts | Constitution of India - Articles 14 and 226 |
| Appellant | John Dolly Elizabeth |
| Respondent | State of Rajasthan and anr. |
| Appellant Advocate | Rajesh Joshi, Adv. |
| Respondent Advocate | G.L. Khatri, Adv. |
| Disposition | Petition dismissed |
| Cases Referred | Ashok Kumar Aseri v. University of Jodhpur |
N.K. Jain, J.
1. By this writ petition, the petitioner seeks to quash Annex. 3 dtd. 30-4-93 and prays that a direction be issued to the non-petitioners to give, admission to the petitioner in General Nursing Course (Female).
2. The petitioner's case is that she applied for General Nursing Course, 1993 before the respondent No. 2 and after recommendation of Selection Committee she was selected provisionally as per list of female candidates dt. 19-4-93 at S.No. 6 but she was not allowed to join training vide Annex. 3 dt. 30-4-93 on the ground that she has not filed bona fide certificate of Rajasthan. Hence the writ petition.
3. This writ petition has been filed on 20-5-93. While admitting the case on 23-5-93, this Court ordered the respondent No. 2 to give provisional admission to the petitioner in the General Nursing Course (Female) on thebasis of her selection vide order dt. 19-4-93. The case has come up on an application dt. 17-1-94 filed under Article 226(3) of the Constitution of India for vacating the skid interim order granted ex parte on 25-5-93. Reply to show cause notice and stay petition have been filed.
4. As agreed by the parties, the matter isheard finally.
5. The non-petitioners in their reply have stated that the petitioner was in the waiting list at No. 10 and provisionally she was admitted by the Committee on 17-4-93 subject to production of certificate of bona fide resident of Rajasthan, which is evident from the endorsement on the back of his application Annex. R/1. It is stated that she has not produced bona fide resident certificate as per the condition No. 6 of the Rules and Conditions of General Nursing Course, mentioned in Annex. R-2 dt. 16-8-91, which was already prescribed in advertisement Annex. R/3, which is not illegal as it has been imposed in the interest of residents of Rajasthan and the respondents have validly passed the impugned order Annex. 3. That apart she did not fulfil the requisite qualifications according to Condition No. 5(2) therefore, she is not entitled for admission. ,
6. Rejoinder has also been filed stating that any condition mentioned in the advertisement has no relevant rather any condition mentioned in the advertisement or any guideline to this effect cannot supersede the rules framed by the legislature. It has been stated that the petitioner is aware of the culture of Rajasthan and fulfils the requisite qualifications as per Condition No. 5(2).
7. The main contention of the counsel for the petitioner is that the non-petitioners have erred in rejecting the application of the petitioner on the ground of non-filing of bona fide certificate which is against the rules and in support of his contention of Mr. Joshi has relied on Bina M. Cherian v. State of Rajasthan, 1993 WLR Raj 115; Mahipal Singh v. Slate (S.B.C.W. Petn. No. 2952/92) decided on 18-1-94 and Pradeep Jain v. Union of India, AIR 1984 SC 1420.
8. On the other hand Mr. Khatri has submitted that as per the condition mentioned in the advertisement which is not contrary to General Nursing Rules, 1990 (Anx. 4), it was necessary to produce certificate of bona fide resident which has not been submitted by the petitioner, therefore, the respondents have rightly refused admission to her. He has also submitted that no relief can be granted to the petitioner as she has not challenged the advertisement itself. He has further submitted that the cases cited by the counsel for the petitioner are not applicable rather a Division Bench of this Court in Sohan Ram Mali v. State of Raj. (1992 WLR (S) 617 (Raj)) wherein for S. T. C. training filing of bona fide resident certificate along with the application was necessary and as per condition No. 5 no certificate will be accepted after the expiry of the last date and the Division Bench has held that the petitioner has rightly explained the reason for late submission of the bona fide certificate with the form, which he has not able to get within the time but the condition of filing bona fide certificate was not set aside.
9. Heard learned counsel for the parties and perused the material on record as well as the case law cited at Bar.
10. It is no doubt true that administrative instructions cannot over-ride the statutory rules, however, they can supplement if not inconsistent or if the rules are silent.
11. In the instant case, the State Government issued advertisement dt. 16-8-91 vide Anx. R/3 for three years training course and the age limit for female was 17 to 34 and incumbent must have passed either 10 + 2 examination i.e. Senior Higher Secondary Examination with Physics, Chemistry and Biology of first year course of three years' degree course in the old scheme from any University, established by law with further condition that the candidate must be a bona-fide resident of Rajasthan and the candidate must be knowing Hindi and culture of Rajasthan. The three years training was to commence from October, 1991 and in the said advertisement seats for various districts were advertised including the district of Pali for which 24 seats of Female were advertised. The petitioner applied for Pali District and she was provisionally admitted subject to filing of bona fide resident certificate as per condition No. 6(2) of Anx. R/2 which is evident fromthe-endorsement on the back of the application but she has not filed the same. As stated above to set aside any condition which is not mentioned in the Rules, it is necessary to show that the same is inconsistent with the Rules or supersede the Rules but Mr. Joshi has not been able to show how the condition of filing bona fide resident certificate imposed in the advertisement Anx. R/3 is inconsistent with the Rules, therefore, there is no force in the contention of Mr. Joshi. That apart the petitioner has not challenged the advertisement by which applications were invited with the said condition of filing bona fide resident certificate and has only challenged Anx. 3 dt. 30-4-93 refusing admission for not filing certificate, which calls for no interference in the absence of there being any cogent reason.
12. It has been next contended that condition of filing bona fide resident certificate is arbitrary and unreasonable in view of Pradeep Jain's case (supra).
13. In Pradeep Jain v. Union of India (supra), the question for consideration before their Lordships of the Supreme Court was whether, consistently with the constitutional values admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admission be made for them so as to give them precedence over those who do not possess 'domicile' or residential qualification within the State, irrespective of merit. Their Lordships have observed that residence requirement for admission is not violative of Article 16(2) and while considering the question whether such reservations or preferences are constitutionally valid when tested on the touchstone of Article 14 it has been observed that the efforts must always be made to select the best and most meritorious students for admission to technical institutions and medical colleges for providing equal opportunity to all citizens in the country. It has been observed that exclusion of more meritorious students on the ground that they are not residents within the State, would be likely to promote substandard candidates. It has also been observed that Article 14 does not forbid classification, but it should be reasonable and the classification has to be justified on the basis of the nexus between the classification and the object to be achieved even assumingthat territorial classification may be a reasonable classification. After considering various decisions it has been held by their Lordships of the Supreme Court that in our opinion, such reservation should in no event exceed the outer limit of 70 percent of the total number of open seats after taking into account other kinds of reservations validly made. It has been further observed that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit.
14. The said decision of their Lordships of the Supreme Court is of no help to the petitioner as that was a case of admission to the Medical College which has been considered to be fundamental right and nothing has been said that training is also a fundamental right. The same view has been expressed by learned single Judge of this court while considering aforesaid Pradeep Jain's case (supra) in Bina M. Cherian v. State of Raj. (supra) observing that Article 14 may not be applicable in letter and spirit, which has been relied upon by Mr. Joshi counsel for the petitioner wherein exclusive reservation for the bona fide residents in the training course conducted by the State of Rajasthan for training Multi Purpose Health Workers (M. H.W.) was challenged. The learned single Judge of this Court has held that the State Government can lay down eligibility qualifications for admission in addition to the eligibility criteria laid down by the Medical Council. It has also been held that when adequate number of candidates are not available according to the criteria, fixed by the State Government and in spite of giving admissions to the candidates under the interim orders of this court still number of posts are lying vacant. Under the circumstances and keeping in view the reply filed by the State, the learned single Judge has held that criteria of Nursing Rules should be adopted and total exclusion of other candidates should be avoided and issued a direction to the Government to amend the Rules so as to give preference to the bona fide residents of Rajasthan. But in the present case the petitioner has not come out with a case that even after exhausting bona fide residents of Rajasthan still seats are vacant and she may be given admission if otherwise eligible, therefore, the petitioner cannot derive any benefitout of the said decision in the absence of any specific averment that seats are lying vacant and further in this case the only challenge of the petitioner is to filing of bona fide resident certificate as arbitrary and against the Rules.
15. In Mahipal Singh v. State (supra), the question before the learned single Judge was that whether the candidates can apply for training course of laboratory technician to the other district where they don't belong. 1 n that case petitioner No. 1 applied at Jaipur and the other petitioners applied at Bikaner and the learned single Judge has observed that though this kind of jumbling of the causes of action is not permissible and that is misconceived but since that was a matter of student the learned single Judge has declined to dismiss the petition holding that it should not be taken to be precedent for future. The learned single Judge while dealing with this aspect has observed as under : --
'Now next question is regarding the basis for admission to this training course on the basis of district-wise. No reply has been filed justifying this classification. It is for the State to have pointed out in the reply that what is the rational basis for keeping the admission district-wise but no factual averment has been pointed out to justify this classification.
In this view of the matter 1 am of the opinion that since there is no basis for classifying the district-wise admission to. the training course and as such the petitioners are eligible to apply before any district where they choose.'
16. The decision of Mahipal Singh's case (supra) is also not applicable since in this case respondents have filed reply to justify the classification and the basis of classification has a nexus to achieve the object of imparting training to bona fide residents of Rajasthan and further the question involved in this case was not in issue in that decision.
17. That apart, if suggestion of Mr. Joshi that condition of filing certificate of bona fide resident of Rajasthan as per advertisement is arbitrary, is accepted then the possibility that many more meritorious candidates than the petitioner would have submitted their application but could not submit the same due to this condition and they have been deprived, cannot be ruled out. Reference may he made to a decision of the Supreme Court rendered in District Collector & Chairman Vizianagaram Social Welfare Residential SchoolSociety, Vizianagaram v. M. Tripura Sundari Devi (1990) 3 SCC 655 wherein minimum qualification prescribed in the advertisement was a second class post-graduate degree but person having third class was admitted by the Selection Committee and order of appointment made subject to production of original certificates and subsequently on scrutiny of original certificates the respondent found to be short of qualification and as such not allowed to join the service. Their Lordships of the Supreme Court held the action proper and while setting aside the order of the Tribunal has observed as under :--
'When an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualification's are relaxable. No court should be a party to the perpetuation of the fraudulent practice.'
18. At the same time it cannot be lost sight that after obtaining training the incumbents are required to serve at interior villages and backward areas of the District and such bona fide residents will be more useful for the State for achieving the object of providing medical facilities to the uneducated people in particular women, who can understand the problem of local people better than the non-residents of State.
19. As discussed above the condition/ criteria of submitting bona fide resident certificate as mentioned in Anx. R/3 dt. 16-1-91 and also in advertisement (Anx. 3) is neither inconsistent with the Rules nor arbitrary, therefore, the refusal for not submitting the requisite certificate, vide Anx. 3 calls no interference under Article 226 of the Constitution.
20. However, Mr. Joshi prayed that the petitioner may be allowed to complete the training, the same cannot be acceded to as the petitioner was provisionally admitted subject to filing of bona fide resident certificate but she has failed to produce the sameand since the writ petition fails no right accrues in favour of the petitioner on he basis of training got on the strength oi the ad-interim order dt. 25-5-93 by which admission was granted in General Nursing Course (Female) on the basis of her provisional selection vide order dt. 19-4-93. Therefore, the ad-interim order dt. 25-5-93 stands discharged. In this connection referenc may be made to a Division Bench decision of this Court rendered in Ashok Kumar Aseri v. University of Jodhpur, 1993 (3) WLC 320 (Raj). Under the facts and circumstances of the case and in view of what 1 have discussed above, the petitioner is not entitled for any relief.
21. No other point has been pressed before me.
In the result, the writ petition has no force, so it is hereby dismissed with no order as to costs.