Allahabad High Court
Shailesh Kumar vs State Of U.P.& 3 Ors. on 25 November, 2013
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT - A No. - 64102 of 2013
Petitioner :- Shailesh Kumar
Respondent :- State Of U.P.& 3 Ors.
Counsel for Petitioner :- Manoj Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. The grievance of petitioner is that recruitment to the post of Lab Technician is governed by U.P. Laboratory Technician (Medical, Health and Family Welfare Department) Service Rules, 1994 (hereinafter referred to as the "Rules, 1994").
2. The essential qualification prescribed in Rule 8 of Rules, 1994. It reads as under:
^^8- iz;ksx'kkyk rduhf'k;u ds in ij lh/kh HkrhZ ds fy;s vko';d gS fd vH;FkhZ us ek/;fed f'k{kk ifj"kn mRrj izns'k dh foKku ds lkFk b.VjehfM;V ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr dksbZ ijh{kk mRrh.kZ dh gks vkSj mRrj izns'k LVsV esfMdy QsdYVh] y[kuÅ }kjk fn;k x;k iz;ksx'kkyk rduhf'k;u fMIyksek ;k fdlh ekU;rk izkIr laLFkk ls mlds led{k dksbZ fMIyksek j[krk gksA**
"8. For direct recruitment to the post of Laboratory Technician, applicant must have passed Intermediate Examination conducted by the Uttar Pradesh Board of High School and Intermediate Education with Science or any examination recognized by the government as equivalent thereto and must possess Laboratory Technician diploma awarded by the Uttar Pradesh State Medical Faculty, Lucknow or any equivalent diploma from any recognized institution." (English translation by the Court)
3. There is no requirement that a person who has obtained requisite qualification must also be registered with U.P. State Medical Faculty, Lucknow in the aforesaid Rule but the same has been incorporated by State Government vide Government Order dated 20.12.2003 and it is pursuant thereto the advertisement dated 15.10.2013, has now been issued by respondents making it a necessary condition that the applicant must be registered with U.P. State Medical Faculty in order to be eligible. It has rendered petitioner ineligible since he has obtained Diploma of Lab Technician from Medical Sciences (Department of Pathology) Banaras Hindu University in 2008 but since he is not registered with U.P. State Medical Faculty, therefore, is being excluded from the zone of consideration and field of eligibility and is denying right of equal consideration for employment enshrined under Article 16(1) of the Constitution.
4. It is argued that this additional requirement put by aforesaid Government Order dated 20.12.2003 is illegal and ultra vires of Rules, 1994.
5. In my view the submission lacks substance. The requisite qualification under Rule 8 of Rules, 1994 clearly provides that Laboratory Technician Diploma must have been obtained from U.P. State Medical Faculty, Lucknow or an equivalent Diploma from a recognized institution.
6. Earlier it appears that some dispute arose as to the recognition of such institutions and the equivalence of Diploma course awarded as to who has to recognize the same. Since rule itself was silent on this aspect, the State Government looked into this aspect and issued Government Order dated 20.12.2003 clarifying that in State of U.P,. Diploma of Laboratory Technician is awarded only by U.P. State Medical Faculty and neither any institution has been recognized for such purpose nor Diploma of any other institution has been recognized as equivalent to Diploma of Laboratory Technician awarded by U.P. State Medical Faculty, hence it was provided in aforesaid Government order that only such candidates who have obtained Laboratory Technician Diploma from U.P. State Medical Faculty shall be eligible. Since the Rule contemplated that an equivalent course from a recognized institution can also make an application eligible to extend benefit to that part of matter, State Government provided that if the incumbent is registered with U.P. State Medical Faculty, it will mean that Diploma obtained by such candidate has been declared equivalent to Diploma of U.P. State Medical Faculty and it is in this context requirement of registration has been provided in advertisement.
7. It is well settled, if something is not specified in Rules, it can be provided by executive orders though an executive order cannot deviate what has been said in the Rules and shall not prevail by providing something contrary to Rules but where Rules are silent and there is some doubt, the rule framing authorities in executive power can always issue Government/Executive orders having binding effect so as to cover the gap. The executive power is co-extensive with legislative power, as recognized by Apex Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. In B.N. Nagarajan Vs. State of Mysore, AIR 1966 SC 1942 the Court said, where no statutory rules are made regulating recruitment or conditions of service, the State Government always can exercise its executive power and issue administrative instructions providing for recruitment and laying down conditions of service. It was also held so in Sant Ram Sharma Vs. State of Rajasthan, AIR 1967 SC 1910 and that has also been followed in Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and others, AIR 1975 SC 984.
8. I, therefore, find no justification to interfere with the impugned advertisement or Government order dated 20.12.2003.
9. The writ petition lacks merit. Dismissed.
Order Date :- 25.11.2013
AK
