Jitendra Singh Tomar (Doctor) vs State Of U.P.Thru Principal ...
2013 Latest Caselaw 7068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. - 33
 

 
Case :- WRIT - A No. - 2291 of 2013
 

 
Petitioner :- Jitendra Singh Tomar (Doctor)
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Counsel for Petitioner :- Alok Kumar Yadav,Shashi Nandan
 
Counsel for Respondent :- C.S.C.,G.K.Singh,M.N.Singh,R.C.Tiwari,V.P.Mathur
 

 
Hon'ble Rajes Kumar,J.

Hon'ble Mahesh Chandra Tripathi,J.

(Delivered by Hon. Rajes Kumar, J.)

Heard Sri Shashi Nandan, Senior Advocate, and Sri Alok Kumar Yadav, learned counsel for the petitioner, Sri G.K. Singh, Senior Advocate, assisted by Sri Ramesh Tiwari, learned counsel appearing on behalf of respondent no. 5, Sri M.N. Singh, learned counsel appearing on behalf of the Commission and Sri Y.K. Yadav, learned Standing Counsel appearing on behalf of the State.

By means of the present writ petition, the petitioner has prayed for quashing the result dated 27.12.2012 (Annexure-9 to the writ petition) and further seeking mandamus to the respondents to declare the petitioner selected for the post of Professor in Forensic Medicine against the vacancy advertised by Advertisement No. 3/2010-2011.

The respondent no. 4 published an Advertisement No. 3/2010-2011 for the post of Professor in Forensic Medicine. The petitioner applied for the said post.

The contention of the petitioner is that he had been called for interview by letter dated 5.7.2012. The interview was held on 22.11.2012 wherein he participated. However, the petitioner had not been selected and respondent no. 5 was selected under the General Category.

It is the contention of the petitioner that he was eligible to be considered for the said post. It is contended that he had passed High School in the year 1990, Intermediate in the year 1993 and had completed his D.H.M.S. in the year 1999. The petitioner had experience of teaching as lecturer at R.N.S.S. Homoeopathy Medical College, Gormi, Bhind (Madhya Pradesh) from 1.1.2002 to 1.7.2006. He was promoted to the post of Reader on 2.7.2006 and has worked as a Reader till 27.11.2011. He was promoted to the post of Professor in the said College where he is working in the said capacity till date. The petitioner disputed the appointment of respondent no. 5. However, in the body of the petition, there is no prayer for quashing the selection of the respondent no. 5.

In the counter affidavit, filed by the Commission, it is stated that the petitioner had applied for the post of Professor, Pathology and Biomacrology and Professor, Physiology and Biochemistry. He appeared in the interview held on 13.3.2013 for the post of Professor, Pathology and Biomacrology and Professor, Physiology and Biochemistry wherein he could not succeed. He could not succeed for the post of Professor in Forensic Medicine as he did not possess the requisite qualification.

In the counter affidavit, filed by the respondent no. 5, it is stated that he obtained a Degree of D.H.M.S. in the year 1992, Degree in Bachelor of Homoeopathic Medicine & Surgery in the year 2003; Degree of M.D. in the year 2007; he was initially appointed as a Demonstrator on ad hoc basis on 22.1.1994 in Swami Parnavanand Homoeopathic Medical College & Hospital Chatarpur, State of M.P. and worked till 15.5.1994 and again appointed as a Demonstrator w.e.f. 1.7.1995 and worked till 15.5.1996; thereafter appointed as the Demonstrator vide order dated 2.7.1996 and worked till 15.5.1997; vide order dated 18.4.2000, he was appointed as a Demonstrator on permanent basis in the said College; appointed as a Lecturer vide order dated 20.10.2000; appointed as a Reader on 22.1.2004; appointed as a Professor vide order dated 31.7.2010 w.e.f. August, 2010 and worked as a Professor w.e.f. 1.8.2010 to 14.7.2011; in this way, he had worked as Demonstrator, Reader and Professor from 24.1.1994 till 14.7.2011. The appointment of the petitioner was in the subjects of Physiology, Forensic Medicine and practice of medicine in the aforesaid Medical College. Thereafter, he was appointed as Reader in Lal Bahadur Shashtri Rajkiya Homoeopathic Medical College, Phaphamau Allahabad on 15.7.2011 on being selected by the U.P. Public Service Commission. Since 15.7.2011, he is functioning as a Reader and is performing his duties. No Objection Certificate has been issued by the State Government. On these backgrounds, it is stated that he has in his credit the requisite academic qualification as well as the teaching experience, which is required to make him eligible for the post of Professor.

It would be useful to refer the requisite qualification published in the advertisement, which reads as follows :

^^vgZrk;s%& vfuok;Z% ¼,d½ gksE;ksiSFkh esa ekU;rk izkIr fMIyksek ;k fMxzhA ;k Hkkjrh; vk;qfoZKku ifj"kn }kjk ekU;rk izkIr fMxzh vf/kekur%] gksE;ksiSFkh dsUnzh; ifj"kn vf/kfu;e] 1973 dh r`rh; vuqlwph esa varfoZ"V dksbZ vgZrkA ¼nks½ gksE;ksiSfFkd ;k ,syksiSfFkd esfMdy dkWyst esa mikpk;Z ;k lg vkpk;Z ds :i esa rhu o"kZ dk v/;kiu vuqHko ;k lacaf/kr fo"k; esa nl o"kZ dk v/;kiu vuqHkoA vf/kekuh vgZrk;sa%& ¼d½ Hkkjrh; vk;qfoZKku ifj"kn }kjk ekU;rk izkIr vgZrk,sa j[kus okys O;fDr;ksa ds fy;s gksE;ksiSFkh dsUnzh; ifj"kn vf/kfu;e] 1973 dh f}rh; vkSj r`rh; vuqlwfp;ksa esa varfoZ"V dksbZ vgZrkA ¼[k½ gksE;ksiSFkh dsUnzh; ifj"kn ;k Hkkjrh; vk;qfoZKku vkSj gksE;ksiSFkh vuqla/kku dsUnzh; ifj"kn~ ;k gksE;ksiSFkh dsUnzh; vuqla/kku ifj"kn ;k dsUnzh; ljdkj ;k fdlh jkT; ljdkj }kjk ekU;rk izkIr fdlh laLFkk ;k ;wfuV esa fdlh mRrjnk;h in ij iz'kklfud vuqHko ;k 'kks/k vuqHkoA^^

The service condition for Professor in U.P. Rajya Homoeopathic Chikitsa Mahavidyalaya is provided in Uttar Pradesh Rajya Homoeopathic Chikitsa Mahavidyalaya (Adhyapako Ki Sewa) Rules, 1990. The qualification of the Professor in Hindi notification reads as follows:

3- lEcfU/kr fpfdRlk fo"k;ksa esa vkpk;Z

¼d½ gksE;ksiSFkh esa ekU;rk izkIr fMIyksek ;k fMxzhA

;k

Hkkjrh; vk;qfoZKku ifj"kn~ }kjk ekU;rk izkIr fMxzh vf/kekur%] gksE;ksiSFkh dsUnzh; ifj"kn~ vf/kfu;e] 1973 dh r`rh; vuqlwph esa vUrfoZ"V dksbZ vgZrkA

¼[k½ gksE;ksiSfFkd ;k ,yksiSfFkd esfMdy dkyst esa mikpk;Z ;k lg vkpk;Z ds :i esa rhu o"kZ dk v/;kiu vuqHko ;k lEcfU/kr fo"k; esa nl o"kZ dk v/;kiu vuqHkoA

The English translation version of the notification enacting rule Uttar Pradesh State Homoeopathic Medical Colleges Teachers' Service Rules, 1990 reads as follows:

"Professors in Allied Medical Subjects. (A) (i) A recognized diploma or a degree in Homoeopathy.

Or

(ii)A degree recognized by the Medical Council of India preferably with qualifications included in the III Schedule of the Homoeopathy Central Council Act, 1973.

(B) Three years' teaching experience as Reader or Associate Professor or Ten years' teaching experience in the subject concerned in Homoeopathic or Allopathic Medical College."

Learned counsel for the petitioner submitted that the words "in the subject concerned Homoeopathic or Allopathic Medical College" qualifies, three years teaching experience as a Reader as well as Associate Professor also and is not confined to ten years' teaching experience. The respondent no. 5 does not possess teaching experience in the subject concerned in Homoeopathic or Allopathic Medical College, therefore, he is not eligible for the post of Professor while the petitioner has ten years teaching experience in the subject concerned in Homoeopathic and, therefore, he is eligible for the post of Professor. In para-10 of the writ petition, it is stated that respondent no. 5 was appointed as Reader in subject of Physiology and Biochemistry by appointment letter dated 14.7.2011. He had also published one Research in 'General Souvenir 19th National Homoeopathic Conference 2011' at Khajuraho where he claimed himself as HOD Practice of Medicine at SPH Medical College and Hospital, Chattarpur (Madhya Pradesh) which is again different subject than Forensic Medicine.

Learned counsel for the respondent no. 4 submitted that the words "in the subject concerned in Homoeopathic or Allopathic Medical College" does not qualify three years' teaching experience as a Reader or Associate Professor and it only qualifies ten years teaching experience. The reason being that Reader or Associate Professors are already experienced, considered to be the senior teachers. He referred the original Hindi version of the Rule wherein it is categorically stated, namely, lacaf/kr fpfdRlk fo"k; esa nl o"kZ dk v/;kiu vuqHkoA The lacaf/kr fpfdRlk fo"k; is only attached with ten years' teaching experience and not in the case of Reader or Associate Professor. The only qualification provided is Reader in Homoeopathic or Allopathic Medical College or Associate Professor having experience of three years. The respondent no. 5 fulfils both the above two conditions of clause B. So far as condition mentioned in clause A is concerned, there is no dispute. He further submitted that the conditions mentioned in the advertisement is inconsonance with the qualification provided in the Hindi version of the notification. The English version is only the translation of the Hindi version and, therefore, Hindi version prevails over the English version.

Learned counsel for the petitioner also referred the Homoeopathy (Minimum Standards of Education) Regulations, 1983 issued by the Central Council of Homoeopathy vide notification dated 11.5.1983. Clause (X) of Regulation 2 defines "Teaching Experience" means teaching experience in the subject concerned in a Homoeopathic College or in a Hospital recognized by the Central Council. Regulation 11 provides Qualifications etc. of teaching staff, which says minimum qualifications and age for appointment of teaching staff to the various posts shall be in accordance with Annexure 'E'. Annexure 'E' provides qualification of teaching staff of Homoeopathic College. Clause (3) of Annexure-3 provides Essential Qualifications of Professor in Allied Medical Subjects which reads as follows:

"A (i) A recognized diploma after 4 years' study or a degree in Homoeopathy.

OR

(ii)A degree recognized by the Medical Council of India preferably with qualifications included in the III Schedule of the Homoeopathy Central Council Act, 1973.

B Three years teaching experience as Reader or Asstt. Professor or ten years teaching experience in the subject concerned in Homoeopathic or Allopathic Medical College."

He submitted that the same language has been used in Clause (B) as has been used in Clause B of the Rules, 1983.

Sri G.K. Singh, learned counsel for the respondent no. 5, submitted that the qualification provided under the Homoeopathy (Minimum Standards of Education) Regulations, 1983, which has been issued by the Central Council of Homoeopathy is wholly irrelevant inasmuch as Regulation 2 provides that in this Regulation unless the context otherwise requires, and if something otherwise is provided, the definition of these Regulations do not apply. For the purposes of the recruitment of the present post, the qualifications mentioned in the advertisement and in the Hindi version of the notification, which provide qualifications for the Professor of the Allied Subjects, are only relevant. The respondent no. 5 fulfils the requisite qualification provided in the Rule and in the advertisement and being eligible found suitable for the post, has rightly been selected. He submitted that the petitioner had applied for the post of Professor on more than five subjects under the same advertisement and in all subjects he stood failed. Therefore, it is not open to the petitioner to dispute the qualification mentioned in the advertisement for the post of Professor in Forensic Medicine, once he applied, participated and declared unsuccessful. He further submitted that once the petitioner applied in pursuance of the advertisement, participated in the interview and has been declared unsuccessful, he has no right to dispute the prescribed educational qualification in the advertisement which has to be adhered to.

We have considered rival submissions.

We find substance in the argument of learned counsel for the respondents.

Hindi version of the Rule is the original which is being published in the Gazette and is being issued in exercise of power under Article 16 read with 309 of the Constitution of India. The English version of the Rule is the translation of Hindi version, therefore, if there is any conflict, the Hindi version of the Rule, which is original and has been enacted by issuing notification by the State Government will prevail and preferred. In the Hindi version, lacaf/kr fpfdRlk fo"k; qualifies ten years' teaching experience only. It does not qualify the other two requirements, namely, Reader in Homoeopathic or Allopathic Medical College and Associate Professor for three years. The respondent no. 5 qualifies both the requirements, namely, Reader in Homoeopathic or Allopathic Medical College and teaching experience of three years as an Associate Professor. The qualification, which is provided in the Hindi version of the Rule, is also mentioned in the advertisement. The qualification provided in the advertisement is in consonance with the qualification provided in the Rule. Therefore, the qualification provided in the advertisement, which is in consonance with the Rule has to be adhered to strictly.

In the case of Commissioner of Trade Tax, Uttar Pradesh Vs. Associated Distributors Limited, reported in (2008) 7 SCC 409, the Apex Court held as follows:

"It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that bubblegum comes within the category of a sweet."

In the case of Park Leather Industry (P) Ltd. Vs. State of U.P. and others, reported in (2001) 3 SCC 135, the Apex Court held as follows:

"Even otherwise, our above view is supported by the Hindi version of the definition. As has been set out in the case of Krishi Utpadan Mandi Samiti it is well known that in U.P. all legislations are in Hindi. Of course an English version is simultaneously published. Undoubtedly, if there is conflict between the two then the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used is "Chamra". There can be no dispute that the term "Chamra" would include "leather" in all its forms."

We are of the view that Homoeopathy (Minimum Standards of Education) Regulations, 1983, issued by the Central Council of Homoeopathy is not relevant. Regulation 2, which provides definition, clearly states that in these regulations, unless the context otherwise requires, if anything is provided otherwise that may be preferred. Therefore, we are of the view that in view of the specific rule providing service conditions and the qualification of the teacher provided under the mRrj izns'k jkT; gksE;ksiSfFkd fpfdRlk egkfo|ky; ¼v/;kidksa dh lsok½ fu;ekoyh 1990, the Homoeopathy (Minimum Standards of Education) Regulations, 1983 does not apply so far as the State of U.P. is concerned.

In the case of Jagdish Prasad Sharma and others Vs. State of Bihar and others, reported in (2013) 8 SCC 633, the question for consideration was whether the age of superannuation of the teachers of the University or the affiliated College should be 62 or 65 years. It appears that Regulation framed by the U.G.C. under U.G.C. Act, 1956 purported to enhance pay of teachers and other connected staff in Central Universities/Educational institutions, and also to increase their age of superannuation from 62 to 65 years. Teachers of the University are governed by the State Universities Act and affiliated College also claimed their age of superannuation at 65 years. The Apex Court has not accepted the claim of the teachers of the University and the affiliated College governed by the State Universities Act.

Dealing with the aforesaid situation, the Apex Court held as follows:

"....That the Commission is empowered to frame regulations under Section 26 of the UGC Act, 1956, for the promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research, cannot be denied. The question that assumes importance is whether in the process of framing such regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions.

The authority of the Commission to frame regulations with regard to the service conditions of teachers in the Centrally-funded educational institutions is equally well-established. As has been very rightly done in the instant case, the acceptance of the Scheme in its composite form has been left to the discretion of the State Government. The concern of the State Governments and their authorities that UGC has no authority to impose any conditions with regard to its educational institutions is clearly unfounded. There is no doubt that the Regulations framed by the UGC relate to Schedule VII List I Entry 66 to the Constitution, but it does not empower the Commission to alter any of the terms and conditions of the enactments by the States under Article 309 of the Constitution. Under List III Entry 25, the State is entitled to enact its own laws with regard to the service conditions of the teachers and other staff of the universities and colleges within the State and the same will have effect unless they are repugnant to any Central legislation."

In the case of Dhananjay Malik and others Vs. State of Uttaranchal and others, reported in (2008) 4 SCC 171, the Apex Court observed as follows:

"It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.

In Madan Lal v. State of J & K this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents, concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.

In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.

In a recent judgment in Marripati Nagaraja v. Govt. of A.P., SCR at p. 516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.

We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge."

In the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and others, reported in (2011) 1 SCC 150, the Apex Court has held as follows:

"When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."

In view of the above, the writ petition is devoid of merit and is accordingly dismissed.

Dated : 22nd November, 2013

OP