Anmol Kapoor & Another vs H.P. Staff Selection Commission
2021 Latest Caselaw 372 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                              CWP No. 1866 of 2020-G alongwith




                                                                   .
                              CWP No. 2589 of 2020-I and





                              CWP No. 1981 of 2020-I.

                              Date of Decision : January 7 , 2021





    1. CWP No. 1866 of 2020
    Anmol Kapoor & another                                     ...Petitioners.
                              Versus





    H.P. Staff Selection Commission,
    Hamirpur through its Secretary & others.                   ...Respondents.

    2. CWP No. 2589 of 2020

    Rahul                                                      ...Petitioner.

                              Versus
    State of H.P. & others.                                    ...Respondents.


    3. CWP No. 1981 of 2020
    Digvijay Singh                                             ...Petitioner.
                              Versus




    State of H.P. & another                                    ...Respondents.





    Coram:
    The Hon'ble Mr. Justice Ajay Mohan Geol, Judge.





    Whether approved for reporting?1           Yes.

    For the petitioners :Mr. Mohit Thakur, Advocate, for the
                         petitioners in CWP No. 1866 of 2020.
                              Mr. Narender Sharma, Advocate, for the
                              petitioner in CWP No. 2589 of 2020.
                              Mr. Ajay Sharma, Senior Advocate with
                              Mr. Amit Jamwal, Advocate, for the
                              petitioner in CWP No. 1981 of 2020.

    1
               Whether reporters of Local Papers may be allowed to see the judgment?




                                                ::: Downloaded on - 08/01/2021 20:15:55 :::HCHP
                                 2




    For the respondents   :Mr. Sanjeev Kumar Motta, Advocate, for
                          respondent No. 1 in CWP No. 1866 of
                          2020; respondent No. 3 in CWP No. 2589
                          of 2020; and respondent No. 2 in CWP




                                                          .
                          No. 1981 of 2020.





                          Mr. Ajay Vaidya, Senior Additional
                          Advocate General for respondent No.
                          3/State in CWP No. 1866 of 2020;





                          respondents No. 1 & 2/State in CWP No.
                          2589 of 2020; and respondent No.
                          1/State in CWP No. 1981 of 2020.
                          Mr. Dalip K. Sharma, Advocate, for





                          respondent No. 2 in CWP No. 1866 of
                          2020 and for respondent No. 4 in CWP
                          No. 2589 of 2020.

                          Mr. Yogesh Kumar Chandel, Advocate, for
                   r      respondents No. 4 to 13 in CWP No. 1866

                          of 2020; respondents No. 5 to 19 in CWP
                          No. 2589 of 2020; and for respondents
                          No. 3 and 4 in CWP No. 1981 of 2020.



    Ajay Mohan Goel, Judge. (Oral)

These three writ petitions are being disposed of by

a common judgment as similar facts and issues are

involved.

2. Respondent/HP Staff Selection Commission,

Hamirpur vide advertisement No. 33-2/2017 (Annexure P-3)

annexed with CWP No. 1866 of 2020, inter alia, invited

applications for the posts of Radiographer on contract

basis for the Health & Family Welfare Department, total 154

in number. It it is pertinent to mention that subsequently

the number of posts advertised were reduced but the

same, as the Court stands informed, have been restored by

.

a decision of the Hon'ble Division Bench of this Court in

CWP No. 3371 of 2019, titled Robin Singh Mehta & others

vs. State of H.P. & others, decided on 12.11.2020.

3. The online applications for the post in issue were to

be submitted from 16.09.2017 to 15.10.2017. It was

mentioned in the advertisement that the date for

determining the eligibility of all candidates in respect of

essential qualifications and experience, if any, shall be the

prescribed closing date for submission of online

recruitment application i.e. 15.10.2017. The Court stands

informed that this date was later on extended up to

31.10.2017. The eligibility criteria as laid down in the

advertisement for the purpose of filling up the posts of

Radiographers was as under:

"a)

i) 10+2 in Science from a recognized Board of School Education/University.

ii) Diploma in Radiology from an Institution recognized by the Central/H.P. Government.

OR B.Sc. Degree in Radiology from a recognized University.

b) Must be registered with H.P. Para Medical Council, Shimla."

.

4. Petitioners who duly applied for being considered

for appointment to the posts in question, are aggrieved by

the factum of their candidature having being rejected by

respondent No. 1/Commission on the ground that they did

not fulfill the eligibility criteria laid down in the

advertisement i.e. "Must be registered with H.P. Para

Medical Council, Shimla". Two of the petitioners were

initially selected also but subsequently their candidature

was rejected.

I have heard learned counsel for the parties and

5.

have also gone through the record of the case.

6. In terms of the direction issued by this Court on 6 th

January, 2021, Sh. Jitender Kanwar, Secretary, HP Staff

Service Commission, Hamirpur alongwith Sh. Ajay Kumar,

Law Officer is present with whom the Court has had a

meaningful discussion on the issue.

7. The recruitment to the posts of Radiographer was

governed by the Himachal Pradesh, Department of Health &

Family Welfare, Radiographer Class III (Non-Gazetted),

Recruitment and Promotion, Rules, 2011 (hereinafter

referred to as the "R&P Rules of 2011") which Rules stood

notified vide notification dated 3rd November, 2011. These

.

Rules are on record as Annexure R-1 appended with the

rejoinder filed by the petitioner to the response filed by

respondent No. 1/Commission. In terms of the said Rules

the minimum educational and other qualifications required

for direct recruitment to the post of Radiographer were as

under:

"7. Minimum educational and other qualifications

required for direct recruits. -

(a) Essential Qualification. - (i) 10+2 in Science or its equivalent from a recognized University/Board.

(ii) One year Diploma in Radiology from an Institution

recognized by State Government.

OR

B.Sc. Degree in Radiology from Himachal Pradesh University or equivalent.

Preference will be given to person holding graduate degree in Radiology.

(b) Desirable Qualifications.- Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh."

8. These R & P Rules of 2011 were repealed vide

notification dated 15th November, 2016 issued by the

Health & Family Welfare Department, whereby fresh Rules

i.e. the Himachal Pradesh, Department of Health and Family

Welfare, Radiographer, Class-III (Non-Gazetted) Recruitment

.

and Promotion Rules, 2016 (hereinafter referred to as the

"R & P Rules of 2016") were brought into force. Copy of

these Rules is appended with the said rejoinder as Annexure

R-2. The minimum educational and other qualifications

required for direct recruitment for the post of Radiographer

were as under:

"7. Minimum educational and other qualifications

required for direct recruit(s). -

(a) Essential Qualifications. - (i) 10+2 in Science from a recognized Board of School Education/University.

(ii) Diploma in Radiology from an Institution recognized

by the Central/H.P. Government.

OR

B.Sc. Degree in Radiology from a recognized University.

(b) Must be registered with H.P. Para Medical Council, Shimla.

(c) Desirable Qualification(s).- Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh."

9. Sub-Rule (2) of Rule 1 of the R&P Rules of 2016

provided that the said Rules shall come into force from

the date of publication in the Rajpatra, Himachal Pradesh. It

is not in dispute that the R&P Rules of 2016 were published

on 29th November, 2017. Thus in terms of the provisions of

.

sub-Rule (2) of Rule 1 of the R&P Rules of 2016 these Rules

came into force w.e.f. 29 th November, 2017 and occupied

the field earlier occupied by the R&P Rules of 2011.

10. It appears that when the advertisement was

issued by respondent No. 1/Commission (Annexure P-3)

inviting applications for the post of Radiographer, the

eligibility conditions as stood incorporated were one which

were envisaged in the R&P Rules of 2016, which had not yet

come into force when the advertisement was issued and

which incidentally had not come into force even on the last

date envisaged in the advertisement (which was

subsequently extended) for determining the eligibility of

the candidates. Yet on account of the superfluous condition

contained in the said advertisement that the candidate

must be registered with the H.P. Para Medical Council,

Shimla, the candidature of the present petitioners for the

post of Radiographer has been cancelled.

11. Having heard learned counsel for the parties at

length including learned Senior Additional Advocate General

for the State, this Court is of the view that the rejection of

the candidature of the petitioners on the ground that they

.

were not registered with the H.P. Para Medical Council,

Shimla is not sustainable in law. It is settled law that

ordinarily recruitment to a post has to be made in terms of

the Recruitment and Promotion Rules which govern the

field at the time when the advertisement inviting

applications for appointment to the said post is issued. In

the present case, the Recruitment & Promotion Rules

governing the field were the one promulgated in the year

2011 in which there was no condition that the candidate

must be registered with the H.P. Para Medical Council,

Shimla. This condition was added in the R & P Rules of 2016

which incidentally came into force only on 29 th November,

2017. Thus the act of respondent No. 1-Commission

holding the petitioners ineligible for the posts of

Radiographer, despite the fact that they were duly eligible

in terms of the R & P Rules of 2011 which occupied the field

at the relevant time is arbitrary and not sustainable in law.

12. Accordingly, these petitions are allowed by holding

the petitioners eligible for being considered for appointment

to the post of Radiographer in terms of the R & P Rules of

2011 which were in force and occupying the field when the

.

advertisement to fill 154 posts of Radiographers was issued

and decision to the contrary of respondent No. 1, of

holding such petitioners to be ineligible is thus bad in law

and the same is quashed and set aside.

13. Mandamus is accordingly issued to the respondent/

HP Staff Selection Commission to treat the petitioners to

be eligible for being considered for appointment to the post

of Radiographer by further holding the condition mentioned

in advertisement (Annexure P-3) of the candidate being

registered with the H.P. Para Medical Council to be bad in

law. The process which has been undertaken by

respondent No. 1 for appointment to the posts in issue be

taken to its logical conclusion by treating the petitioners to

be eligible candidates. It is made clear that this Court has

only given mandamus to the extent that the petitioners

are eligible to participate in the selection process in terms

of the R&P Rules of 2011 and thereafter, of course, their

selection shall depend upon the criteria to be followed by

respondent No. 1/Commission for making appointment to

the post in issue.

.

14. At this stage, it is relevant to take note of the

contention raised on behalf of respondent No. 1/Commission

that inadvertence in issuance of advertisement is not

attributable to respondent No. 1 because they acted in

terms of the Recruitment & Promotion Rules provided to

them alongwith the requisition by the employer

department. All that this Court can observe is that the

employer as well as respondent No. 1/Commission, in

future, be cautious in this regard and it be ensured that the

advertisement is issued strictly in consonance with the

Recruitment & Promotion Rules governing the field at the

time when the advertisement is issued. Learned Senior

Additional Advocate General has assured the Court that

necessary instructions in this regard shall be issued to all

the departments.

Petitions stand disposed of accordingly, so also the

pending applications, if any. No order as to cost.

(Ajay Mohan Goel), Judge.

January 7 , 2021 (PK)