Sabbir Khan vs The State Of Assam And 6 Ors
2021 Latest Caselaw 887 Gua

                                                                 Page No.# 1/12

GAHC010054752018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/1660/2018

         SABBIR KHAN
         S/O. SRI LIAKAT ALI KHAN, R/O. JYOTINAGAR, NEAR BORBARI MASJID,
         P.O. JALAN NAGAR, P.S. DIBRUGARH, DIST. DIBRUGARH, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY COMM. AND SECY., GOVT. OF ASSAM, HEALTH AND FAMILY
         WELFARE (B) DEPTT., DISPUR, GUWAHATI

         2:THE DIRECTOR

          MEDICAL EDUCATION
          ASSAM
          SIX MILE
          KHANAPARA
          GUWAHATI

         3:ASSAM MEDICAL COLLEGE

          BARBARI
          DIBRUGARH
          ASSAM
          REP. BY ITS PRINCIPAL CUM CHIEF SUPERINTENDENT.

         4:THE SUPERINTENDENT

          ASSAM MEDICAL COLLEGE
          BARBARI
          DIBRUGARH
          ASSAM
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            5:MEDICAL RECORD OFFICER

             MEDICAL RECORD DEPTT.
             ASSAM MEDICAL COLLEGE AND HOSPITAL
             BARBARI
             DIBRUGARH
             ASSAM

            6:CENTRAL BUREAU OF HEALTH INTELLIGENCE

             DIRECTORATE GENERAL OF HEALTH SERVICES
             MINISTRY OF HEALTH AND FAMILY WELFARE
             GOVT. OF INDIA
             401 AND 404 A WING
             NIRMAN BHAWAN
             MAULANA AZAD ROAD
             NEW DELHI
             REP. BY ITS DIRECTOR

            7:SHRI BHARGAB DEKA
             S/O. DHARANI DHAR DEKA
             R/O. AND VILL.- SALMARA
             P.O- BEZERA
             P.S. BAIHATA CHARIALI
             DIST.- KAMRUP
             PIN- 781121

Advocate for the Petitioner   : MR. B D GOSWAMI

Advocate for the Respondent : SC, HEALTH

BEFORE HONOURABLE MR JUSTICE SONGKHUPCHUNG SERTO

Date : 09-03-2021

JUDGMENT & ORDER (Oral) Heard Mr. B.D. Goswami, learned counsel appearing for the petitioner, Mr. D. Upamanyu, learned Standing Counsel, Health Department for respondent Nos. 1 to 5 and Mr. N.J. Khataniar, learned counsel appearing for respondent No. 7.

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2. On 12.09.2017 an advertisement was issued by the Principal, Assam Medical College at Dibrugarh inviting online applications from eligible and interested candidates for filling up different post that are lying vacant in the Assam Medical College and Hospital, Dibrugarh including one post of Medical Record Technician (un-reserved category). The minimum educational qualification for eligibility for the post of Medical Record Technician given in the advertisement was HSSLC pass with Biology and Computer knowledge but for a candidate to be given preference, he or she must have gone through training in medical record technician training in a Government hospital/ medical college. The petitioner herein was not allowed to apply on the ground that he was not eligible as he did not have the minimum

educational qualification required for eligibility to the post. On 14 th September, 2017, the petitioner approached the Principal of Assam Medical College at Dibrugarh requesting him to permit him to apply for the post. The Principal through a marginal note on the application itself forwarded the application of the petitioner to the Director of Medical Education, Assam by stating that since the petitioner has been working in Medical College cum Hospital and since he has undergone training in MRT, his case may be

considered sympathetically. On 20th September, 2017, the petitioner also submitted a similar application to the Director of Medical Education (Research & Planning), Assam through proper channel i.e. through the Principal of Assam Medical College, Dibrugarh and the same was once again forwarded. To make it short, the petitioner, thereafter, was given Admit Card to appear in the examination with his Roll Number as 181221-10040. The written examination was held as per the advertisement on 04.03.2018.

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In the result declared for the written test, only two persons including the respondent No. 7 were declared selected to face the next stage of the recruitment test. But the name of the petitioner did not find place in the select list. Being aggrieved and apprehensive that his candidature has been rejected since he did not have the required minimum educational qualification and for the same reason his written test paper have not been examined and hence, was not selected to face the skill test the petitioner has come before this Court challenging the advertisement and the select list of the written test and, at the same time praying for a direction directing the respondents to prepare a fresh select list or conduct a fresh selection process by modifying the minimum educational qualification.

3. The case of the petitioner as submitted by his learned counsel is that while serving as ward boy which is a Grade-IV post in the Assam Medical College Hospital, Dibrugarh he submitted an application to the Central Bureau of Health Intelligence, Directorate General of Health Services, Government of India, New Delhi requesting for inclusion of his name for the in-service training course on Medical Record Technician for the year 2014. His application was accepted and he was allowed to join the training course in Safdargunj Hospital Medical Record Department and Training Centre. After 6 months he completed the course and the Joint Director of Central Bureau of Health Intelligence through a letter dated 09.12.2013 requested the Principal cum Chief Superintendent of Assam Medical College Hospital to utilise the service of the petitioner appropriately for efficient functioning of the medical record department of the Assam Medical College and Hospital. Therefore, the petitioner is eligible and competent to occupy the post of Page No.# 5/12

Medical Record Technician in the medical college and hospital of Assam. As such, there is no reason why his candidature should not have been considered and the result of his written test should not have been declared. It is also submitted that for the post of medical record technician, Biology is not essential subject, therefore, inclusion of the same as one of the essential subject is not called for. Lastly, it has also been submitted that since the petitioner's service has been utilised in the maintenance of medical records after he passed the training, he is well acquainted with the nature of the work and he would be able to serve the hospital better than anyone else. Therefore, there is no reason why his candidature should have been rejected.

4. Mr. D. Upamanyu, learned counsel appearing for the respondent No. 1 to 5 submitted that minimum qualification for a post is fixed by the State and not by medical college, therefore the Principal of Assam Medical College cum Hospital has no authority to accept the candidature of the petitioner who does not possessed the minimum required qualification. As such, just because the petitioner's application was recommended by the Principal, that would not make the candidature of the petitioner valid. The learned counsel further submitted that the minimum qualification for eligibility to the post of medical record technician was clearly stated in the advertisement dated 12.09.2017 and the petitioner very well new the same. Therefore, he cannot now question the contents of the advertisement specially, when the recruitment process is halfway through. Lastly, the learned counsel submitted that in the Admit Card issued to the petitioner it was mentioned at note N.B. 1 that candidates who does not have the minimum educational Page No.# 6/12

qualification and whose age is not within the prescribed limit as mentioned in the advertisement need not appear in the examination and, the candidature of such candidate who appeared in the examination shall be rejected at any point of time after detection of his ineligibility. It was in accordance with this that the petitioner's candidature was rejected even though he had appeared in the written examination.

5. Mr. N.J. Khataniar, learned counsel appearing for the respondent No. 7, at the very outset, submitted that of all the candidates who appeared in the written examination for the post of Medical Record Technician, only the respondent No. 7 and another were selected to face the next stage of the recruitment process. Thereafter, the learned counsel also submitted that the advertisement itself made it very clear that the candidate applying for the post should have minimum educational qualification of HSSLC examination pass with Biology and Computer knowledge, therefore, the petitioner who admittedly did not have that qualification is not eligible for the post. As such, just because he was allowed to appear the examination would not make him an eligible candidate. The Learned counsel has also submitted that the Admit Card issued to the petitioner made it very clear that his candidature can be cancelled any time once it is found that he does not have the minimum educational qualification. This is exactly what has happened, therefore, no illegality has been committed by the respondents. The learned counsel lastly submitted that, fixing of eligibility criteria's is within the domain of the employer (the State of Assam in this case), and when the employer has determined the same courts would not interfere unless the employer acted arbitrarily and fancifully without taking into consideration the requirements Page No.# 7/12

of the post. In this case the State Government had fixed the required minimum educational qualification after giving due consideration to the requirement of the job and the same being valid is being followed in all the medical colleges and hospitals under the government of Assam. Therefore, the advertisement under challenge requires no interference.

In support of his submission the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Zahoor Ahmed Rather and others -Vs- Sheikh Imtiyaz Ahmad and others with Javid Ahmad Dar and others -Vs- Naseer Ahmad Mir and others, reported in (1019) 2 SCC 404. The relevant paragraphs referred to by the learned counsel are paragraphs 26 and 27 of the judgment. The contents of the two paragraphs are reproduced herein below:-

"Para. 26 :

We are in respectful agreement with the interpretation which has

been placed on the judgment in Jyoti K.K. 5 In the subsequent decision in Anita 7.

The decision in Jyoti K.K.5 turned on the provisions of Rule 10(a)(ii). Absent such a rule. It would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications/. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the

recruiting authority, to determine. The decision in Jyoti K.K. 5 turned on a specific statutory rule under which the holding of a higher qualification could presuppose Page No.# 8/12

the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of

the matter, the Division Bench 1 of the High Court was justified in reversing the

judgment 2 of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the

decision 1 of the Division Bench.

Para. 27.

While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matter of policy. Judicial review must tread

warily. That is why the decision in Jyoti K.K. 5 must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in

Jyoti K.K.5 turned."

6. Lastly, the learned counsel submitted that, the petitioner, after fully knowing the minimum educational qualification prescribed for the post of medical record technician given in the advertisement itself appeared in the examination without challenging the same, therefore, he cannot now challenge the same when the result of the written test has been declared. In support of his submission the learned counsel referred to the judgment of Page No.# 9/12

the Supreme Court in the case of Chief Manager, Punjab National Bank and Another -Vs- Anit Kumar Das, reported in 2020 SCC Online SC

897. The relevant paragraphs are paragraphs 16,17,18 and 21. The contents of the 4 paragraphs of the judgment are reproduced herein below:-

"Para. 16.

It is required to be noted that the eligibility criteria/ educational qualification mentioned in the advertisement inviting the applications was as per Circular letter No. 25 of 2008 dated 06.11.2008, the relevant portion of which is reproduced hereinabove. As stated in the counter to the writ petition, a conscious decision was taken by the bank providing eligibility criteria/ educational qualification that a graduate candidate shall not be eligible for the post of Peon/ subordinate staff. The said decision was taken consciously looking to the nature of the post. At this stage, it is required to be noted that the original writ petitioner never challenged the eligibility criteria/ educational qualification mentioned in the advertisement. He participated in the recruitment process on the basis of the advertisement without challenging the eligibility criteria/ educational qualification mentioned in the advertisement. Therefore, once having participated in the recruitment process as per the advertisement,. Thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/ educational qualification mentioned in the advertisement.

Para. 17.

Even otherwise, prescri9bing the eligibility criteria/ deducational qualification that a graduate shall not be eligible to apply was a conscious decision taken by the Bank and the same was as per the circular letter No. 25 of 2008 dated 06.11.2008. In the case of J. Rangaswamy (Supra), it is observed and held by this Court that it is not for the court to consider the relevance of qualifications prescribed for various posts.

Para. 18 :

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In the case of Yogesh Kumar (Supra), it is observed and held by this Court that recruitment to public service should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post.

Para. 21 :

Thus, as held by this Court in the aforesaid decision, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the empoliyer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/ educational qualification that a graduate candidate shall not be eligible

and the candidate must have passed 12 th standard is justified and as observed hereinabove, it a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/ educations qualification mentioned in the advertisement."

7. I have considered the submissions of the learned counsels keeping in view the facts and circumstances of the case and the relevant laws.

It appears from the advertisement dated 12.09.2017 that the prescribed minimum educational qualification is HSSLC pass with Biology and computer knowledge but having been trained in medical record technician in Page No.# 11/12

government hospital or medical college is only a qualification for preferential treatment. Therefore, the petitioner, who did not have Biology as one of his subject in his HSSLC course, was clearly not eligible for the post of medical record technician even though he had undergone training in MRT. It may be true that the petitioner had undergone a training but that does not necessarily qualify him for the post of medical record technician since that is not the essential qualification prescribed for the post. If he was of the view that inclusion of the subject Biology is not necessary or unreasonable he should have challenged before the examination was conducted. Now that, he had appeared in the examination while knowing fully well that he is not qualified to do so, it is too late for him to challenge the advertisement on that ground. It is a settled principle of law that it is the employer (the State of Assam in this case) who has the full authority to prescribe the educational and other qualifications for a job to which he intends to employ people because, it is he who requires the service and therefore the best person to know the requirements of the same. The letter of the Principal cum Chief Superintendent of Assam Medical College Hospital on which the petitioner is trying to find some support cannot be the basis to compel the government of Assam to make the petitioner eligible for the post and also to be appointed. Further, the fact that the Principal of Assam Medical College Dibrugarh forwarded his petition requesting for allowing him to participate in the written test would not give him any right to the candidature as the Principal himself is not the authority who prescribed the minimum educational qualification for the post and also not the employer. It is the Government of Assam who is the employer and not the Principal. Besides the Admit Card issued to the petitioner made it amply clear that the Page No.# 12/12

candidature of any person who applied for the post of medical record technician can be cancelled at any time if it is found that the person does not have the minimum educational qualification. In this case, admittedly the petitioner did not have the prescribed minimum educational qualification, therefore, the respondents were very much within their power or authority to cancel the petitioners candidature. In the facts and circumstances which are admitted or pleaded, I find nothing which would give the petitioner a legal right to appear in that examination conducted for the post of medical record technician and I also find nothing which would show that the legal right of the petitioner have been violated while cancelling his candidature. As such, the grievance of the petitioner as expressed in the writ petition does not attract the writ jurisdiction of this Court.

8. In view of the above discussions and conclusions drawn, I find no merit in the writ petition. Therefore, it is dismissed.

JUDGE

Comparing Assistant