HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 866/2020
Rajasthan Para Medical Council
----Appellant
Versus
Arshad & Others.
----Respondents
Connected With
1. D.B. Special Appeal Writ No. 840/2020
2. D.B. Special Appeal Writ No. 841/2020
3. D.B. Special Appeal Writ No. 842/2020
4. D.B. Special Appeal Writ No. 843/2020
5. D.B. Special Appeal Writ No. 847/2020
6. D.B. Special Appeal Writ No. 863/2020
7. D.B. Special Appeal Writ No. 889/2020
8. D.B. Special Appeal Writ No. 893/2020
9. D.B. Special Appeal Writ No. 956/2020
10. D.B. Special Appeal Writ No. 9/2021
11. D.B. Special Appeal Writ No. 10/2021
12. D.B. Special Appeal Writ No. 11/2021
13. D.B. Special Appeal Writ No. 12/2021
14. D.B. Special Appeal Writ No. 13/2021
15. D.B. Special Appeal Writ No. 14/2021
16. D.B. Special Appeal Writ No. 16/2021
17. D.B. Special Appeal Writ No. 17/2021
18. D.B. Special Appeal Writ No. 19/2021
19. D.B. Special Appeal Writ No. 22/2021
20. D.B. Special Appeal Writ No. 27/2021
21. D.B. Special Appeal Writ No. 28/2021
22. D.B. Special Appeal Writ No. 29/2021
23. D.B. Special Appeal Writ No. 30/2021
24. D.B. Special Appeal Writ No. 31/2021
25. D.B. Special Appeal Writ No. 35/2021
26. D.B. Special Appeal Writ No. 36/2021
27. D.B. Special Appeal Writ No. 37/2021
28. D.B. Special Appeal Writ No. 38/2021
29. D.B. Special Appeal Writ No. 40/2021 (Downloaded on 19/01/2023 at 12:10:23 AM) (2 of 14) [SAW-866/2020]
30. D.B. Special Appeal Writ No. 45/2021
31. D.B. Special Appeal Writ No. 46/2021
32. D.B. Special Appeal Writ No. 50/2021
33. D.B. Special Appeal Writ No. 51/2021
34. D.B. Special Appeal Writ No. 52/2021
35. D.B. Special Appeal Writ No. 58/2021
36. D.B. Special Appeal Writ No. 66/2021
37. D.B. Special Appeal Writ No. 73/2021
38. D.B. Special Appeal Writ No. 74/2021
39. D.B. Special Appeal Writ No. 75/2021
40. D.B. Special Appeal Writ No. 76/2021
41. D.B. Special Appeal Writ No. 77/2021
42. D.B. Special Appeal Writ No. 78/2021
43. D.B. Special Appeal Writ No. 79/2021
44. D.B. Special Appeal Writ No. 80/2021
45. D.B. Special Appeal Writ No. 81/2021
46. D.B. Special Appeal Writ No. 82/2021
47. D.B. Special Appeal Writ No. 83/2021
48. D.B. Special Appeal Writ No. 84/2021
49. D.B. Special Appeal Writ No. 85/2021
50. D.B. Special Appeal Writ No. 86/2021
51. D.B. Special Appeal Writ No. 87/2021
52. D.B. Special Appeal Writ No. 88/2021
53. D.B. Special Appeal Writ No. 89/2021
54. D.B. Special Appeal Writ No. 90/2021
55. D.B. Special Appeal Writ No. 91/2021
56. D.B. Special Appeal Writ No. 93/2021
57. D.B. Special Appeal Writ No. 94/2021
58. D.B. Special Appeal Writ No. 95/2021
59. D.B. Special Appeal Writ No. 96/2021
60. D.B. Special Appeal Writ No. 836/2021
61. D.B. Special Appeal Writ No. 437/2022 For Appellant(s) : Mr. Bharat Saini Advocate, Mr. Harshal Tholia Advocate on behalf of Dr. Vibhuti Bhushan Sharma, Additional Advocate General.
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(3 of 14) [SAW-866/2020] Ms. Apoorva Agarwal Advocate on behalf of Mr. Himanshu Jain Advocate.
For Respondent(s) : Mr. R.N. Mathur, Senior Advocate with Mr. Prateek Mathur Advocate & Mr. Navin Chandra Mishra Advocate.
Mr. M.F. Baig Advocate Mr. S.S. Hora Advocate.
Mr. Saransh Saini Advocate.
Mr. Nalin G. Narain Advocate with Mr. Arpit Jain Advocate.
Mr. Fahad Hasan Advocate with Ms. Alka Rathi Advocate on behalf of Mr. Syed Shahid Hasan Advocate.
Mr. Achintya Kaushik Advocate.
Mr. Laxmi Kant Malpura Advocate.
Mr. Banvari Lal Saini Advocate.
Mr. Manish Parihar Advocate on behalf of Mr. Tanveer Ahamad Advocate.
Mr. Ram Pratap Saini Advocate.
Mr. Sandeep Singh Shekhawat Advocate with Mr. Akshay Dutt Sharma Advocate.
Mr. Himanshu Ranjan Singh Bhati Advocate.
Mr. Prem Chand Dewanda Advocate.
Mr. Raghu Nandan Sharma Advocate.
Mr. Shivraj Yogi Advocate.
Mr. Arvind Kumar Arora Advocate.
Mr. Krishan Chander Sharma Advocate.
Mr. Ashwinee Kumar Jaiman Advocate.
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA Order 12/01/2023 These batch of appeals have been preferred by the Rajasthan Para Medical Council and the State of Rajasthan against common order passed by the learned Single Judge on 23.10.2020 in batch of writ petitions, insofar as the legality and validity of the decision of the learned Single Judge on issue No. E is concerned. The issue No. E, on which decision has been rendered by the learned Single Judge is as below:-
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(4 of 14) [SAW-866/2020] "Issue No. E:- Rajasthan Para Medical Council is refusing the candidates, who have obtained diploma from Universities of Rajasthan, namely, NIMS University, Singhania University, JRN Vidhyapeeth (Deemed) University, Jaipur National University, Mahatma Gandhi University of Medical Sciences & Technology, Mahatma Jyoti Rao Phoole University, SMS Medical College, and Madhav University".
However, learned counsel for both the parties submit that "SMS Medical College" has been inadvertently included in the order though there is no grievance pertaining to the said institution.
As far as the aforesaid issue is concerned, the cause of action arose on account of refusal on the part of the Para Medical Council in granting Registration to the students, who had obtained diploma in Para Medical course from various private Universities, referred to hereinabove, on the ground that these Universities, though were required under the Rajasthan Para Medical Council Act, 2008 (for short 'the Act of 2008') read with the Rajasthan Para Medical Council Regulations, 2014 (for short 'the Regulations of 2014') to obtain recognition from the Para Medical Council, have not obtained such mandatory recognition. The respondents-writ- petitioners were desirous of applying for appointment to the post of Assistant Radiographer and Lab Technician for which recruitment process started vide advertisement dated 12.06.2020. One of the eligibility criteria under the advertisement was Registration with Para Medical Council. As the respondents- students were not getting Registration on account of refusal on the part of the Para Medical Council and, thus, unable to apply pursuant to the advertisement dated 12.06.2020, they (Downloaded on 19/01/2023 at 12:10:23 AM) (5 of 14) [SAW-866/2020] approached this Court by filing their respective petitions. The writ- petitioners in the aforesaid batch of appeals, are those who have pursued their regular course of studies in various private Universities.
The learned Single Judge, relying upon various orders of this Court, held that the private Universities having been established by the State enactment and enjoying statutory autonomy, were not required to seek further recognition from Para Medical Council. In other words, the learned Single Judge held that the private Universities established by State enactments are outside the purview of the Act of 2008 and the Regulations made thereunder and they are not obliged under the law to seek any recognition, therefore, refusing Registration of such diploma holders with Para Medial Council on the ground that the Universities from which those students obtained diploma were not recognized in terms of the statutory scheme of the Act of 2008 and Regulations framed thereunder, was illegal. Learned Single Judge accordingly directed to grant Registration within a period of 15 days.
On appeal, being preferred by the Rajasthan Para Medical Council, this Court passed interim order in some of the appeals, though not in all the appeals, staying the effect and operation of findings of the learned Single Judge on issue No. E referred to hereinabove.
Now application for vacating stay has been filed in D.B. Civil Special Appeal (Writ) No.66/2021 along with an application for appropriate directions. Applications for appropriate directions in D.B. Special Appeal (Writ) No.866/2020, D.B. Civil Special Appeal (Writ) No.437/2022 & D.B. Civil Special Appeal (Writ) No.88/2021 have also been filed. Apart from the (Downloaded on 19/01/2023 at 12:10:23 AM) (6 of 14) [SAW-866/2020] prayer for vacating interim order passed earlier by this Court, staying effect and operation of the order of the learned Single Judge insofar as issue No. E is concerned, prayer has also been made for issuance of appropriate directions as a fresh process of recruitment has started for appointment to the post of Assistant Radiographer and Lab Technician, prescribing eligibility criteria, which again includes requirement of registration with the Para Medical Council.
Learned Senior Counsel leading the arguments as also other counsel for respective respondents-writ-petitioners, in whose favour, learned Single Judge passed order and also issued direction of their registration, have extensively argued before us submitting that the order passed by the learned Single Judge is based on consistent view taken by this Court in the cases of Rajasthan Nursing Council Versus Singhania University, D.B. Special Appeal (Writ) No.671/2018, decided on 25.05.2018, Rajasthan Para Medical Council Versus Hitesh Kumar Sharma & Others, D.B. Special Appeal (Writ) No.629/2018, decided on 25.05.2018, NIMS University Versus Rajasthan Para Medical Council, S.B. Civil Writ Petition No.364/2017, decided on 03.05.2019, Kuldeep Shukla Versus State of Rajasthan & Others, S.B. Civil Writ Petition No.10826/2008, decided on 30.05.2011. It is argued that all these decisions proceed on the principle propounded by the Hon'ble Supreme Court in the case of Dr. B.L. Asawa Versus State of Rajasthan & Others, reported in (1982) 2 Supreme Court Cases 55. It was fervently urged by learned Senior Counsel appearing for respondents in one of the writ appeals that the private Universities, by a State enactment, (Downloaded on 19/01/2023 at 12:10:23 AM) (7 of 14) [SAW-866/2020] have been conferred statutory autonomy and their autonomy cannot be subjected to control or subordination of another statutory body constituted under another State enactment namely the Act of 2008. Taking us through various provisions, definition clauses of the Act of 2008 as also the provisions contained in Regulations of 2014, it was stressed upon that the scheme of recognition under the Act of 2008 is intended to keep check on institutions which have been opened and imparting teaching in Para Medical courses and awarding degrees, diploma and certificates in public interest. The provisions of the Act of 2008, rationally construed, exclude from its purview, private Universities established by a State enactment. Such Universities are in themselves autonomous bodies entitled to set required standards of teaching faculty, syllabus and curriculum in respect of enlisted/scheduled courses, which include Para Medical courses also. They stand at par with Para Medical Council and, therefore, they are not required to seek any recognition from any other institution much less, Para Medical Council. Relying upon the Hon'ble Supreme Court judgment in the case of Dr. B.L. Asawa Versus State of Rajasthan & Others (supra), it has been argued that in that case also, the Hon'ble Supreme Court emphasized that where a University is duly established by statute, it is fully competent to conduct its own examination and award degrees and it is not required to seek further recognition from other Institutions or Universities. Further, relying upon another decision of the Hon'ble Supreme Court in the case of Bhartidasan University Versus All India Council for Technical Education and Others, (2001) 8 Supreme Court Cases 676 or AIR 2001 SC 2861, it has been argued that in the aforesaid decision, (Downloaded on 19/01/2023 at 12:10:23 AM) (8 of 14) [SAW-866/2020] Hon'ble Supreme Court has authoritatively held that a State University constituted and established under the State enactment, is not required to seek prior approval of All India Council for Technical Education to start a department for imparting a course or programme in technical education.
It has been argued that the aforesaid consistent view was followed by the learned Single Judge to pass order in favour of the respondents-students. He would submit that respondents-students have already lost opportunity to participate in the earlier process of selection for appointment to the post of Assistant Radiographer and Lab Technician because of illegal refusal of Registration by the Para Medical Council and if they are not allowed to participate in subsequent recruitment process, which has already been initiated where the last date of filing application is 30 th January, 2023, the respondents-students who possess degree or diploma granted by the private Universities through a regular course, would suffer irreparable injury. Therefore, it is prayed that the interim order passed staying the operation of directions of the learned Single Judge on issue No. E be vacated and/ or appropriate direction be issued to the recruiting agency to allow provisionally the respondents-students to appear in the examination and the matter itself may be heard finally on an early date. He would submit that even a direction may be issued to the Para Medical Council as an interim measure to provide provisional Registration, which may be subjected to final decision of the cases.
Learned counsel appearing for various Universities including Mahatma Gandhi University of Medical Sciences & Technology & NIMS University, while making similar submissions, have made additional submissions to support the order passed by the learned (Downloaded on 19/01/2023 at 12:10:23 AM) (9 of 14) [SAW-866/2020] Single Judge. It has been submitted that the Para Medical Council has been taking contrary stand. It has also been submitted that the order passed in the case of NIMS University earlier has been made a basis to allow Registration in those cases where the degree or diploma has been granted prior to establishment of Para Medical Council.
On the other hand, learned counsel appearing for Para Medical Council would argue that the Scheme of the Act of 2008 and Regulations of 2014 unequivocally requires recognition to be obtained by any person, who is desirous of imparting education in Para Medical courses and awarding degree, diploma and certificate etc. The provisions of the Act of 2008 and the Regulations of 2014 made thereunder do not exclude, either expressly or by implication, any institution including private Universities, even though, they may have been established by the State enactment. He would argue that if the Para Medical courses are conducted, examinations are held and degrees, diplomas and certificates are awarded by the private Universities, they are also required to comply with the statutory requirement of seeking recognition from the Para Medical Council as it is a regulatory body. Referring to the provisions contained in Section 4 & Section 38 of The Mahatma Gandhi University of Medical Sciences and Technology, Jaipur Act, 2011 as also similar provision contained in other Universities involved in the present batch of appeals, it is argued that even though private Universities were established by State enactment, it has been clearly provided therein that the University shall be bound to comply with all the rules and regulations and norms etc. of the regulating bodies and provide all such facilities and assistance to such bodies as are required by them to discharge (Downloaded on 19/01/2023 at 12:10:23 AM) (10 of 14) [SAW-866/2020] their duties and carry out their functions. Therefore, the private Universities could not claim immunity from the requirement of the statutory recognition under the provisions of the Act of 2008 and the Regulations framed thereunder. He would further submit that as far as NIMS University is concerned, number of cases are pending before this Court and various orders passed in its favour, have been assailed by filing appeals, which are also pending.
Learned State counsel arguing in appeals filed by the State, adopting the arguments of learned counsel for Para Medical Council, would add that the recruitment process initiated earlier, which was subject matter of the writ petitions, out of which, these appeals have arisen, provided for a cutoff date and, therefore, the respondents-writ-petitioners are not entitled to claim participation, selection and appointment against those posts which were subject matter of advertisement dated 12.06.2020 in the matter of appointment to the post of Assistant Radiographer and Lab Technician. He would submit that even if the directions of the learned Single Judge to provide registration is allowed, the registration would only be subsequent to the cutoff date provided under the advertisement and such prescription of cutoff date being sacrosanct, the writ petitioners are not entitled to claim selection and appointment.
He would also submit that the writ petitioners have sought relief and mandamus has been issued in their favour contrary to statutory provisions requiring recognition by the Para Medical Council. Without challenge to the constitutional validity of the provisions contained in the Act of 2008 and Regulations framed thereunder, the writ petitions itself were not maintainable and were liable to be dismissed. Therefore, the order passed by the (Downloaded on 19/01/2023 at 12:10:23 AM) (11 of 14) [SAW-866/2020] learned Single Judge is illegal and interim orders may be continued and all applications for appropriate directions may be rejected. He would further submit that prayer for appropriate directions made by newly added respondents in D.B. Civil Special Appeal (Writ) No.866/2020 is liable to be rejected on the ground of suppression of material facts. He would further submit that after the writ petitioners are allowed to participate in the process of selection, there provisional participation will adversely affect the entire process of selection and delay in finalisation of selection process affecting recruitment on number of posts of Assistant Radiographer and Lab Technician.
One of the main submissions of learned counsel for the appellant-Para Medical Council and State is that the learned Single Judge has granted relief based on orders passed by this Court in the cases of Rajasthan Nursing Council Versus Singhania University (supra) & Rajasthan Para Medical Council Versus Hitesh Kumar Sharma & Others (Supra), which have been challenged by filing SLP in the Supreme Court and the operation of those orders have been stayed by the Hon'ble Supreme Court.
In rejoinder, learned counsel appearing for respective writ petitioners have disputed all contentions on factual and legal aspects.
We have heard learned counsel for the parties on their extensive arguments on the issue of stay and also appropriate directions.
On prima-facie considerations, we find that the entire claim of the writ petitioners is essentially based on the judgments of this Court in the cases of Rajasthan Nursing Council Versus Singhania University (Supra), Rajasthan Para Medical (Downloaded on 19/01/2023 at 12:10:23 AM) (12 of 14) [SAW-866/2020] Council Versus Hitesh Kumar Sharma & Others (Supra), NIMS University Versus Rajasthan Para Medical Council (Supra), and Kuldeep Shukla Versus State of Rajasthan & Others (Supra). Most of these orders seek to rely upon the observations made by the Hon'ble Supreme Court in the case of Dr. B.L. Asawa Versus State of Rajasthan & Others (Supra) . The observations made by the Hon'ble Supreme Court in the aforesaid case were based on a different factual scenario, where insistence on obtaining recognition from a University in the State of Rajasthan was found unwarranted as the degree was obtained from a University of another State, which was duly established by statute and was included in the schedule of the Indian Medical Council Act as the degree was fully recognised by the Indian Medical Council. Therefore, there is considerable force and strong prima-facie case made out by the appellants that the reliance on the said decision was misconceived in law and on facts both.
Reliance placed on the decision of the Hon'ble Supreme Court in the case of Bhartidasan University Versus All India Council for Technical Education and Others (Supra), prima- facie appears to be misplaced in law because on facts, in that case, State University was held outside the purview of definition of Technical Education as provided in Section 2 (h) of All India Council for Technical Education Act, 1987.
In the present cases, on apparent reading of the provisions contained in the Act of 2008 and Regulations framed thereunder would show that the definition of Recognised Institution as contained in Section 2 (g) of the Act of 2008 does not exclude private Universities established by State enactment or Universities established under UGC or deemed Universities. Therefore, the (Downloaded on 19/01/2023 at 12:10:23 AM) (13 of 14) [SAW-866/2020] provisions requiring recognition of institutions as contained in Section 28 of the Act of 2008 will apply to private Universities as well because there is nothing in Section 28 of the Act of 2008 to exclude private Universities established under enactment. On the other hand, provisions contained in the enactment establishing private Universities involved in the present appeals provide that notwithstanding anything contained in the State enactment establishing private Universities, the Universities shall be bound to comply with all the Rules, Regulations and Norms etc. of the regulating bodies.
We noticed that the order passed by this Court in the cases of Rajasthan Nursing Council Versus Singhania University (Supra) as also Rajasthan Para Medical Council Versus Hitesh Kumar Sharma & Others (Supra) have been stayed by the Hon'ble Supreme Court and the matters are still pending. We also find considerable force in the submission made that without challenging legality and validity of the provisions contained in the Act of 2008 requiring recognition, relief sought in the writ petitions could not be granted by the learned Single judge.
In view of the above considerations, the appellants have made out a strong prima-facie case and the interim orders passed are not liable to be interfered with except that in view of order passed in the case of NIMS University Versus Rajasthan Para Medical Council (Supra), the council would be under an obligation to grant registration to those who have obtained diploma, degree prior to 2014 through a regular course, provided they fulfill the requirements of Regulations 42, Sub-Clause (i) of the Regulations of 2014 because it has been held in that case that NIMS University had prior approval of UGC, which is a Government (Downloaded on 19/01/2023 at 12:10:23 AM) (14 of 14) [SAW-866/2020] body. Therefore, to that extent, clarification is being given in this order that interim order shall not be made a basis to refuse registration to those students who have obtained diploma or degree through regular course from NIMS University or other private University prior to 2014.
Such category of diploma/degree holders shall be granted Registration forthwith so that they may apply for appointment to the post of Assistant Radiographer/Lab Technician in the forthcoming recruitment process, for which last date for submission of application form is stated to be 30.01.2023.
Though, number of other arguments were also raised by learned counsel for both the parties, having considered the main ground on which writ petition have been allowed by the learned Single Judge, except for clarification, we are not inclined to vacate the interim order. The application for vacating stay is accordingly disposed off. Application for issuance of appropriate directions seeking provisional participation in the process of selection in forthcoming recruitment process or seeking direction for provisional Registration are rejected.
These appeals be listed after four weeks for further orders. (CHANDRA KUMAR SONGARA),J (MANINDRA MOHAN SHRIVASTAVA),J Sanjay Kumawat-55-116, (Downloaded on 19/01/2023 at 12:10:23 AM) Powered by TCPDF (www.tcpdf.org)