Manoj Kumar Dhaka & Ors. vs Govt. Of Nct Of Delhi & Ors.
2013 Latest Caselaw 152 Del

$~5 & 6
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: January 10, 2013
+                         W.P.(C) 6668/2012

        THE SECRETARY (HEALTH)
        HEALTH AND FAMILY WELFARE
        DEPARTMENT & ANR.                          ..... Petitioners
                     Represented by: Ms.Zubeda Begum, Advocate
                     with Ms. Sana Ansari, Advocate.
                          versus
        LOK NAYAK HOSPITAL PARA MEDICAL
        & TECHNICAL UNION & ORS.                 ..... Respondents
                     Represented by: Mr.Arjun Pant, Advocate for
                     R.3.
AND
                          W.P.(C) 7495/2012

        MANOJ KUMAR DHAKA & ORS.                 ..... Petitioners
                    Represented by: Mr.Sudarshan Rajan, Advocate
                    with Mr. Sarwan Ritam, Advocate.
                          versus

        GOVT. OF NCT OF DELHI & ORS.            ..... Respondents
                      Represented by: Ms.Zubeda Begum, Advocate
                      with Ms. Sana Ansari, Advocate for R.1 & 2.
        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (ORAL)

1. Pertaining to W.P.(C) No.6668/2012 we find that none appears for the respondent No.1 in spite of service being effected and the matter being passed over once. As regards respondent No.2, we find that he was a co- applicant in O.A.No.2816/2011. With reference to the pleadings in the

Original Application we find that for what reason he was impleaded as an applicant No.2 has not been brought out, but it appears to be case where he joined as a co-applicant being either a member or an office bearer of the Union.

2. From the facts we would be noting hereinafter it would be revealed that respondent No.1, the Employees Union of Para Medical and Technical Employees serving in Lok Nayak Hospital initiated an action bringing to the notice of the Central Administrative Tribunal that the proposed recruitment process set into motion by respondent No.3 (DSSSB) to fill up vacancies to the post of Junior Radiographers and Senior Radiographers in Lok Nayak Jai Prakash Hospital was in violation of the law. No personal relief was claimed by applicant No.2, and thus notwithstanding applicant No.2, impleaded as respondent No.2 in the writ petition not being served, the matter can proceed for disposal.

3. As regards W.P.(C) No.7495/2012 is concerned, the same has been filed by the writ petitioners who had filed application seeking review of the order dated July 30, 2012 bringing to the notice of the Tribunal that they were the selected candidates and that the order under review was wrong.

4. O.A.No.2816/2011 was filed by Lok Nayak Hospital Para Medical and Technical Employees Union and its member Raj Kumar Goel. Three respondents, the Chief Secretary, Delhi Secretariat, the Secretary, Principal Health, Delhi Secretariat and the Chairman, Delhi Subordinate Service Selection Board were impleaded as respondents. We would like to comment here that the Memo of Parties drawn up in the Original Application is completely wrong. Appointments were being made by the Health Department of the Government of N.C.T. Delhi for a Hospital established by the Government and thus the respondent had to be the Government of N.C.T. Delhi to be sued through its Chief Secretary. We are surprised that

respondent No.1 was the Chief Secretary, Delhi Secretariat a post which does not exist. We clarify that there is no post of Chief Secretary in Delhi Secretariat. The second respondent impleaded is the Secretary, Principal Health, Delhi Secretariat. No such post exists. The post is that of the Principal Secretary (Health), Government of N.C.T. Delhi.

5. We hope and expect that in future the Tribunal would be careful in not entertaining claims where respondents are mis-described.

6. Be that as it may, the claim in the Original Application was to quash the notification issued by the Staff Selection Commission inviting applications from eligible candidates to apply for the vacant posts of Junior Radiographers and Senior Radiographers, and quash the select list prepared.

7. In conformity with the existing Recruitment Rules the Essential Qualifications for both the posts, which were indicated in the advertisement, read as under:

Name of Post : Sr.Radiographer Essential Qualifications : 1. Matriculation/Hr.Secondary/ Sr.Secondary (10+2) with science.

2. Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc.(Radiography) or Radiological Technology (02 years).

Name of Post : Jr. Radiographer Essential Qualifications : 1. Matriculation/Hr.Secondary/ Sr.Secondary (10+2) with science

2. Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc.(Radiography) or Radiological Technology (02 years course).

8. It was pleaded by the applicants before the Tribunal that the

notification inviting applications made eligible persons holding a matriculation or a Higher Secondary degree to apply for the two posts along with those who hold the Senior Secondary degree, which eligibility was stated to be in violation of the Safety Code promulgated by the Atomic Energy Regulatory Board in terms of the Atomic Energy Act, 1962. As per them, the Safety Code mandated, that to be appointed as an X-Ray Technician or a Radiographer no person holding a degree less than Senior Secondary with Science subjects could be eligible. The reason is obvious. Medical equipment relating to nuclear substances would require a higher degree of educational qualification.

9. Opposing the Original Application, it was brought to the notice of the Tribunal by the Government of NCT Delhi that notwithstanding the educational qualifications prescribed as per Serial No.1 of the advertisement pertaining to both posts, making eligible Matriculates and Higher Secondary degree holders, in view of the Essential Qualification Number 2 the said two class of degree holders would be ineligible inasmuch as the Essential Qualification Number 2, which was also mandatory provided that the candidate should possess a Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc.(Radiography) or Radiological Technology (02 years course). It was pointed out that to be admitted as a student in either of the four courses i.e. a certificate or a diploma course in Radiography or B.Sc. in Radiography or Radiological Technology it was mandatory for the student to have studied Science for two years at the Senior Secondary level. In other words, it was pleaded that the effect of the Eligibility Condition No.2 prescribed would make the advertisement in conformity with the Safety Code promulgated by Atomic Energy Regulatory Board.

10. Notwithstanding the Tribunal noting aforesaid submissions in

paragraph 6 of its decision dated July 30, 2012, we find that in the impugned decision, while reasoning, the Tribunal has totally ignored the same.

11. The reasoning of the Tribunal is the reasoning of a mechanist and not the reasoning of one who understands what logic is in the context of reasoning.

12. In a mechanical way the Tribunal has held that since persons holding a Matriculation or a Higher Secondary degree have been made eligible, as per Serial Number 1 of the prescribed qualifications, the recruitment process has to be struck down. Striking down the select list a direction has been issued to re-promulgate a proper notice inviting applications and thereafter effect selection.

13. Regretfully, the Tribunal did not even consider the essential qualification as per Serial Number 2. The Tribunal overlooked that there were two mandatory Educational Qualifications which were required. The second was a Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc.(Radiography) or Radiological Technology (02 years course). The Tribunal overlooked that no candidate could have possessed the said second essential qualification unless the candidate had studied Science for two years at the Senior Secondary level, meaning thereby Matriculates and Higher Secondary degree holders could not have obtained said qualifications and hence would any case be eligible.

14. Unfortunately, when the writ petitioners of WP(C) No.7495/2012 filed R.A.No.268/2012 bringing to the notice of the Tribunal that firstly no decision could be taken in the absence of the selected candidates being impleaded as respondents and secondly that there was a patent error in the view taken by the Tribunal, and in respect whereof, the pleas which had already been urged by the Government of NCT of Delhi and have been noted by us hereinabove, were once again brought to the notice of the

Tribunal, a mechanical exercise was re-conducted by the Tribunal. The Tribunal dismissed R.A.No.268/2012 as per its decision dated October 03, 2012, holding that if there was a jurisdictional infirmity in the selection process the persons who had been selected need not be impleaded as respondents by those who challenged the selection process.

15. In the two writ petitions, challenge is to the original order dated July 30, 2012 allowing O.A.2816/2011 as also the order passed in R.A. No.268/2012 on October 03, 2012.

16. The facts noted by us hereinabove do not warrant any lengthy reasoning to be reflected by us inasmuch as the reasons reflect themselves on their own strength.

17. Suffice would it be to state that for the two posts in question, two Essential Qualifications were listed. They were not in the alternative. They were cumulative. The first Essential Qualification was: Matriculation/Hr.Secondary/Sr.Secondary (10+2) with Science. The second Essential Qualification was : Certificate (2 years course) in Radiography or Diploma (02 years course) in Radiography or B.Sc.(Radiography) or Radiological Technology (02 years).

18. Now the undisputed position is that to be admitted for the B.Sc. course in the Radiography or Radiological Technology or a 2 years diploma or certificate course in Radiography the student who takes admission has to have a Senior Secondary degree with Science. In other words, a person holding a Matriculation or Higher Secondary degree can never possess a diploma or a certificate (02 years) in Radiography much less a B.Sc degree in Radiography or Radiological Technology.

19. Thus the two degrees i.e. Matriculation and Higher Secondary prescribed as Essential Qualifications as per Serial Number 1 are otiose. They are redundant.

20. The two writ petitions are accordingly allowed. Order dated July 30, 2012 allowing O.A. No.2816/2011 as also the order dated October 03, 2012 dismissed R.A.No.268/2012 are set aside.

21. O.A.No.2816/2011 is dismissed. R.A.268/2012 is allowed and as consequence the advertisement issued by the respondent No.3 and the selection process completed pursuant thereto is upheld.

22. At this stage we take on record the statement made by the learned counsel for the Government of N.C.T. of Delhi and DSSSB that not even a single candidate not possessing a Senior Secondary degree with Science has been selected.

23. Letters offering appointment may be issued now to the selected candidates.

24. No costs.

CM No.17572/2012 in WP(C) 6668/2012 The instant application seeking stay of the impugned decision till the disposal of the writ petition is dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 10, 2013//skb//