Reserved On 27.07.202 vs Himachal Pradesh Staff Selection ...
2021 Latest Caselaw 3490 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 3677 of 2021 Reserved on 27.07.2021 Decided on: 04.08.2021.

__________________________________________________________ Ankita ...Petitioner

.

Versus

Himachal Pradesh Staff Selection Commission and another ...Respondents

__________________________________________________________ Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon'ble Mr. Justice Satyen Vaidya, Judge

1Whether approved for reporting? Yes r with Advocate Mr.

______________________________________________________ For the petitioner : Mr. B.C. Negi Sr. Advocate Nitin Thakur,

For the respondents: Mr. Sanjeev Kumar, Advocate, for respondent No.1.

                                                Mr.    Dalip     K.   Sharma,



                                                Advocate, for respondent No.2.

    Satyen Vaidya, Judge

Petitioner has filed instant petition seeking following

substantive reliefs: -

"(i) Issue a writ of mandamus directing Respondent

Commission to consider the candidature of the petitioner to the post of Medical Laboratory Technician Grade-II; and/or

(ii) Issue a writ of mandamus directing respondent No.2 to issue a provisional registration certificate of November 2017; and /or

Whether reporters of Local Papers may be allowed to see the judgment?

(iii) Issue a writ of mandamus directing Respondent No.1 to issue fresh-revised result of Medical Laboratory Technician Grade-II."

CASE OF PETITIONER:

2. The facts as alleged in the petition are that respondent

.

No.1 issued Advertisement No.36-1/2020 on 02.03.2020, for selection

to different categories of posts. One of such being the post of Medical

Laboratory Technician Grade-II in the Health and Family Welfare

Department, Government of Himachal Pradesh. Total 154 numbers of

posts in this category were advertised out of which 31 posts were for

Scheduled Castes (Unreserved Category). Minimum qualification

prescribed for the said post are as under: -

"i) 10+2 in science from a recognized board of school education.

ii. B.Sc Medical Laboratory Technology/B.Sc Medical Technology Laboratory/ B.Sc Medical Techology

(Laboratory)/B.Sc Medial Laboratory Sciences/B.Sc in Medical Laboratory Technology (Lateral) from a recognized University or an institution affiliated to a recognized University.

iii) Should be registered with the Himachal Pradesh Para

Medical Council for the above qualification."

3. As per petitioner, she was having all the qualifications for

the post of Medical Laboratory Technician Grade-II. Petitioner passed

her matriculation with 91% marks from CBSE in 2011 and 10+2 in

medical stream with 79% marks in 2013. She also passed B.Sc in

Medical Technology Laboratory from Post Graduate Institute of

Medical Education and Research (PGIMER), Chandigarh with 1st

division in August, 2017. Petitioner further claimed to have registered

herself with H.P. Para Medical Council provisionally on 21.11.2017,

after having obtained provisional degree from Post Graduate Institute of

.

Medical Education and Research Chandigarh (PGIMER) Chandigarh on

18.09.2017.

4. Petitioner in response to above noted advertisement,

applied for the post of Medical Laboratory Technician Grade-II within

stipulated time period. Extended last date for submission of the

application was dated 05.06.2020. Petitioner appeared in the written

examination conducted on dated 29.11.2020 under Roll No.776000769.

She scored 54 marks in the written examination and was amongst

toppers. On 04.03.2021, petitioner received communication from

respondent No.1 informing her that she had found place in the list of

short-listed candidates for undertaking the evaluation process to be held

on 15.03.2021. Petitioner was required to bring original documents with

attested copies.

5. Before the date of evaluation, petitioner approached

respondent No.2 for registration certificate. Though, petitioner had been

provisionally registered by respondent No.2 on dated 21.11.2017 but she

could not submit her degree to respondent No.2 on account of delay in

its receipt. On 10.03.2021, respondent No.2 again issued provisional

registration certificate in favour of petitioner.

6. Petitioner appeared with all requisite certificates also with

provisional registration certificate on dated 10.03.2021 issued by

respondent No.2 on the date of evaluation and submitted all the

documents.

.

7. On dated 20.05.2021, respondent No.1 declared a list of 86

successful candidates, however, the name of petitioner was not included

therein. Respondent No.1 had afforded an opportunity to candidates to

submit requisite documents within seven days. Petitioner again

submitted the documents through e-mail on dated 27.05.2021.

8. On dated 18.06.2021, respondent No.1 issued final list of

91 successful candidates. 71 posts, including 24 posts of scheduled

castes (unreserved) category, remained vacant due to non-availability of

candidates. Petitioner did not find her name in the list of successful

candidates and from the aforesaid communication she found that her

candidature was rejected on the ground that she did not possess

provisional registration certificate prior to dated 10.03.2021.

CASE OF RESPONDENTS:

9. Respondent No.1 in its reply has submitted that the

candidature of petitioner was rightly rejected as condition of the

advertisement were not fulfilled by her. As per advertisement, eligibility

of the candidates was to be seen on the closing date fixed for receipt of

online application i.e., 05.06.2020. It was categorically prescribed that

the candidates must ensure their eligibility in respect of category,

experience, age, essential qualification etc. as mentioned against each

post in the advertisement to avoid rejection at the later stage.

Respondent No.1 further mentioned that since the petitioner did not

possess registration certificate of date prior to 05.06.2020, therefore, her

.

candidature was liable to be rejected.

10. Though respondent No.2 did not file reply, but during the

course of hearing learned counsel representing said respondent placed

certain documents on record which included one office note sheet, copy

of affidavit dated 21.11.2017 of petitioner and copy of application dated

10.3.2021 scribed by father of the petitioner.

11. We have heard learned counsel for the parties and have

also gone through the records of the case carefully.

ANALYSIS

12. Before adverting to the discussion on the contentious issue

involved in the case, we deem it proper to notice relevant terms of the

advertisement dated 02.03.2020 as under: -

"5. IMPORTANT INSTRUCTIONS FOR FILLING UP

ONLINE APPLICATIONS:

1. to 3. Xxx xxx xxx

4. The candidates must ensure their eligibility in respect of category, experience, age and essential qualification(s), etc., as mentioned against each post in the advertisement to avoid rejection at later stage.

5. & 6. Xxx xxx xxx

7. The candidate should possess requisite essential qualification(s) prescribed for the post(s) for which

he/she wants to apply as on closing date fixed for submission of Online Recruitment Applications (ORA)."

11. SUBMISSION OF CERTIFICATES/DOCUMENTS.

The download/printed copy of the online application form alongwith necessary original certificates and self attested

.

photocopies will have to be produced at the time of

evaluation. No offline application form will be accepted by the office.

13. ELIGBILITY CONDITIONS: -

i. The date of determining the eligibility of all candidates in terms of Essential Qualifications, experience etc., shall be reckoned as on the closing date

for submitting the Online Recruitment Applications (ORA).

ii. xxx xxx xxx

(iii) Onus of proving that a candidate has acquired

requisite degree/essential qualifications by the stipulated

date is on the candidate and in the absence of proof the date as mentioned on the face of certificate/degree or the date of issue of certificate/degree shall be taken as date of acquiring essential qualification."

13. Respondent No.1 in its reply has categorically admitted

that at the time of 15 marks evaluation/counseling, petitioner had

submitted fee receipt of dated 21.11.2017 (Annexure P-1) along with

provisional registration certificate with H.P. Para Medical Council dated

10.03.2021. This being so, question that arises for determination is

whether the submission of aforesaid document on the date of evaluation

was sufficient compliance with the terms of advertisement?

14. Perusal of the receipt dated 21.11.2017 Annexure P-1,

reveals that this document was issued by respondent No.2 on 21.11.2017

as a receipt of Rs.1,000/- issued in the name of petitioner in lieu of

registration fees. An endorsement was appended on the top of the

documents to this effect as under: -

"Provisional subject to the condition to deposit degree".

15. Respondent No.2, who is author of the document

.

Annexure P-1, has not come forward to controvert its contents. It

appears that instead of issuing registration certificate on any specified

format, respondent No.2 made an endorsement to this effect in

Annexure P-1 as noted above. The authenticity of Annexure P-1 cannot

be doubted also for the reason that the petitioner has placed on record a

copy of provisional degree issued in her favour by PGIMER Chandigarh

certifying therein that on 06.09.2019 petitioner had passed B.Sc. in

Medical Laboratory Technology Laboratory Examination. The

provisional degree was issued on 18.09.2017 with endorsement that the

degree would be awarded to the petitioner at the next convocation to be

held by the institute. Petitioner finally received her degree after

09.02.2019, which is on record as Annexure P-2.

16. At this stage we deem it necessary to gainfully notice the

contents of office note-sheet placed on record by respondent No.2,

which reads as under: -

" It is submitted that the Government of Himachal Pradesh recruits the various post of Paramedicals in the State of Himachal Pradesh through HPSSC, Hamirpur, H.P. The large numbers of candidates are pressing hard for the registration under the HP Para Medical Council, due to the condition that candidates must be enrolled with the Council for applying the posts. It is further stated that due to dire need of the registration with the council, it is

the condition that candidates shall be enrolled after submission of original degree of the course. It is pertinent to mention here that original degrees of the course are provided by the University/Institution after a long period. As per the past practice, Council was provisionally registered the candidates on the provisional degree & fees receipt issued accordingly.

.

It is proposed that if approved, we may provisionally enrolled the candidates on the analogy of HP State Medical Council & issue Provisional Registration Certificate, so

that most of the student apply for the various examination till the degree is not submitted to the council. The condition is also laid down in the provisional certificate that it is valid only for one year from the date of issue or the original degree not submitted by the candidate within one

year which is earlier. After submission of degree, the provision certificate will be cancelled automatically and candidate shall be issued permanent registration certificate. The following proposal is submitted for approval please:-

1. Provisional certificate Fess of Rs.500/- (Rupees Five hundred only).

2. Printing Provisional Certificate (500 No.) after getting quotations and lowest rate shall be approved in due course of time.

3. After expiry of provisional certificate i.e. One year, permanent registration certificate shall issue by the Council as per the prescribed fees structure.

Submitted for approval please.

Sd/-

                                                   Accountant
                                                   30/7/2018





                      Sd/-                  HPPMC
                  Registrar
                  HPPMC                    Sd/-
                                     DME-cum-President
                                          HPPMC."

17. In addition, perusal of documents affidavit dated

21.11.2017 sworn in by petitioner and application dated 10.3.2021

written by father of petitioner (both documents placed on record by

learned counsel for respondent No.2) clearly reveal that there was some

discrepancy in the name of father of petitioner in her certificates. The

fact that above noted documents, affidavit dated 21.11.2017 and

.

application dated 10.3.2021 have been produced by respondent No.2

from its custody, leave no matter of doubt to infer that non issuance of

formatted provisional certificate in favour of petitioner was for the

reason of discrepancy in the name of father of petitioner. At the bottom

of application dated 10.3.2021, there is an endorsement "Provide

provisional certificate" by the office of respondent No.2 and the record

further reveals that provisional certificate of registration on a format was

issued to petitioner on 10.3.2021 itself.

CONCLUSION

18. From the above discussion, we have no hesitation to

conclude that respondent No.2 though had registered petitioner

provisionally on 21.11.2017 and had issued Annexure P-1, but the

provisional registration certificate on necessary format was not issued

till 10.3.2021 for the reasons detailed above. In this entire process, the

petitioner cannot be faulted. Thus, the issue with respect to registration

of petitioner with respondent No.2 before the last date of submission of

online applications, remained more of form than substance. It is not the

case of respondents that provisional certificate issued by respondent

No.2 did not meet the requirements of condition of advertisement.

19. While dealing with substantive rights of parties courts

cannot remain oblivious towards its duties to impart substantial justice.

What is material is that the person had qualified basic eligibility criteria

and despite having taken requisite steps was prevented from obtaining

.

the recognition in the form of requisite certificate etc. for one or the

other bonafide reason. Merely because the form of particular transaction

was not proper cannot be used to deny the person rights otherwise

emanating from such deal.

20. In light of above discussion, it is held that petitioner had

made substantial compliance with the requirements of advertisement.

She was qualified as B.Sc. Medical Technology (Laboratory) and was

also provisionally registered with respondent No.2 i.e. Himachal

Pradesh Para Medical Council w.e.f. 21.11.2017. In view of this matter,

the stand of respondent No.1 that petitioner did not hold requisite

qualification before 06.05.2020 i.e., the last date for submission of

online application is not justified.

21. The rejection of the candidature of petitioner by

respondent No.1, thus, is clearly illegal, arbitrary, irrational and

violative of Articles 14 and 16 of Constitution of India. Respondent

No.1 is directed to consider and recommend the name of petitioner for

the post of Medical Technician Laboratory, Grade-II advertised vide

advertisement No. 36-1/2020 dated 02.03.2020 within a period of two

weeks from the date of this judgment. The petition is accordingly

disposed of with no orders as to costs, so also the pending

miscellaneous application(s), if any.

(Tarlok Singh Chauhan)

.

Judge

(Satyen Vaidya) Judge

4th August, 2021.

        (tarun)




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