Vinod Kumar vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 2168 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                       CWP No. 2659 of 2019




                                                                            .

                                                       Decided on: 17.03.2021.

      Vinod Kumar                                                       ....Petitioner.





                        Versus

      State of Himachal Pradesh and others                              ...Respondents.
      Coram





      The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
      Whether approved for reporting?1 Yes.
      For the petitioner    :     M/s Ramesh Goyal, Arihant Goyal
                                  and Vikas Chauhan, Advocates.


      For the respondents              :       Mr. Ajay Vaidya, Sr. Additional
                                               Advocate General for respondents
                                               No. 1 and 4.

                                       :       Mr. Angrez Kapoor, Advocate for



                                               respondent No. 2.

                                       :       Mr. Dalip K. Sharma, Advocate for




                                               respondent No. 3.

      Ajay Mohan Goel, Judge (Oral)

By way of this petition, the petitioner has prayed

for the following substantive relief:­

"(i) to issue a writ in the nature of Certiorari quashing the letter/order dated 25.4.2019 (Annexure P­12) vide which the candidature of the petitioner has been rejected despite the acquisition of qualification as per advertisement Annexure P­1; and further to issue a writ in the nature of

Whether reporters of the local papers may be allowed to see the judgment?

Mandamus directing the respondents to consider the petitioner for the post of Mal Multipurpose Health Worker especially when the petitioner possesses all

.

the requisite qualification and conditions as per the advertisement and further the posts of Male

Multipurpose Health Workers are lying vacant and further to issue any other appropriate order or direction as this Hon'ble Court may deem fit in the peculiar facts and circumstances of the case to grant

appropriate relief to the petitioner."

2. The case of the petitioner is that vide

advertisement No. 33­2/2017 (Annexure P­1), issued by

respondent No. 2, in the month of September, 2017, various

posts were advertised to be filled up in different departments

of the Government of Himachal Pradesh, including Male

Multipurpose Health Workers on contract basis in the Health

and Family Welfare Department of the State, i.e. total 148 in

number. The eligibility criteria for applying to the post in

issue as was contained against post Code No. 650 was as

under:­

650 i) Should be a 10+2 or its equivalent from a recognized Male Multipurpose Health Board of School Education/Institution. Worker ii) Should possess one and half year Training Certificate as MPW(Male) from a recognized Institution of the State Government.

3. The petitioner being eligible to apply for the post of

Male Multipurpose Health Worker did so, however, his

.

candidature has been rejected by the respondent­Commission

vide notification dated 25.04.2019 (Annexure P­12), on the

ground that the petitioner has failed to produce registration

certificate as Male Multipurpose Health Worker with H.P.

Para Medical Council within stipulated period.

4. Learned Counsel for the petitioner has submitted

that the ground on which the candidature of the petitioner

has been rejected by the respondent­Commission is

erroneous, as there was no such condition contemplated in

the advertisement that only those candidates would be

eligible to participate in the process of selection for the post in

issue who were possessing registration certificate as Male

Multipurpose Health Worker with H.P. Para Medical Council.

As per him, rejection of the candidature of the petitioner on

the said ground is arbitrary, discriminatory, and thus, not

sustainable in the eyes of law being violative of Article 14 of

the Constitution of India. He further submitted that the

candidature of the petitioner cannot be rejected on a

condition which is alien to the advertisement and in the

absence of there being any such embargo in the

advertisement inviting the applications, such condition could

not be subsequently imposed rendering the candidature of

.

the candidates like the petitioner as bad. Learned Counsel

has further submitted that it is not as if the basic

qualification possessed by the petitioner rendered him

ineligible to participate in the process of selection for the post

in issue as he was possessing qualification prescribed in the

Recruitment and Promotion Rules and the factum of the

qualification being possessed by the petitioner being valid

qualification is further evident from the fact that

subsequently on his application, petitioner has been duly

registered with H.P. Para Medical Council, as is evident from

certificate of registration (Annexure P­15). Accordingly, he has

prayed that the petition be allowed by setting aside

communication dated 25.04.2019 (Annexure P­12) by

directing the respondents to consider the candidature of the

petitioner for the posts in issue without insisting upon the

condition of registration certificate as Male Multipurpose

Health Worker with H.P. Para Medical Council.

5. The petition has been opposed by Mr. Ajay Vaidya,

learned Senior Additional Advocate General for the

respondent­State and Mr. Angrez Kapoor, learned counsel for

the respondent­Commission. Learned Counsel for

respondent­Commission, has submitted that the candidature

.

of the petitioner was rejected on the ground of his not

furnishing the registration certificate as Male Multipurpose

Health Worker with H.P. Para Medical Council, on the basis of

instructions dated 14th February, 2019, issued by the State

Government as appended with the reply filed to the petition

by respondent No. 2 as Annexure R/2­A. On these bases,

learned Counsel submitted that there is no arbitrariness with

regard to the decision of the Commission qua rejection of the

candidature of the petitioner because the same has been done

strictly in consonance with the instructions so issued by the

government in this regard. Learned Counsel further

submitted that despite opportunity having been granted to

the petitioner to furnish the certificate in issue as he failed to

do so within the stipulated time period, therefore, the

respondents had no alternative but to reject the candidature

of the petitioner. On these grounds, they have opposed the

claim put forth by the petitioner.

6. Learned Counsel for respondent No. 3 has adopted

the submissions made on behalf of respondents No. 1, 2 and

4.

7. I have heard learned Counsel for the parties and

also gone through the pleadings as well as documents

.

appended with the petition.

8. It is not in dispute that rejection of the

candidature of the petitioner is on the basis of contents of

Annexure P­12. This annexure is a communication addressed

by the respondent­Commission to the petitioner, which reads

as under:­ r "To

VINOD KUMAR S/o Sh. SOM NATH SHYAMTOO PANCHKULA HARYANA134118 Dated Hamirpur 25April, 2019

App.ID1187553 Subject : Rejection of candidature for the post of Male Multipurpose Health Worker post code

Memo,

I am directed to inform you that your candidature for the above mentioned post has

been cancelled by the commission due to the following reason:­

1. You failed to produce registration certificate as Male Multipurpose Health Worker with H.P. Para Medical Council with in stipulated period.

2. You do not possess the essential qualification i.e. one & half years. Diploma in MMPW.

Under Secretary

H.P. Staff Selection Commision, Hamirpur, H.P."

.

9. Though at the first glance, the impression which

can be gathered from this communication is that the

candidature of the petitioner has been rejected on two

reasons assigned in therein, but that is not so, because it

appears that Annexure P­12 was a cyclostyled

communication issued by the respondent­Commission and

the candidates were informed of the condition(s) which led to

the rejection of their candidature by ticking the appropriate

one. In this particular case, it is reason No. 1 which has been

ticked and reason No. 2 has not been ticked. Meaning thereby

that the candidature of the petitioner has been rejected on

the ground that he failed to produce registration certificate as

Male Multipurpose Health Worker with H.P. Para Medical

Council.

10. A perusal of the advertisement vide which the

posts in issue were advertised by the Commission Annexure

P­1 demonstrates that there was no such eligibility condition

mentioned in the advertisement that only those candidates

were eligible to participate in the process of appointment to

the post of Male Multipurpose Health Worker who were

registered as such with the H.P. Para Medical Council.

Incidentally, the Recruitment and Promotion Rules of the post

.

in issue are also appended as Annexure R­1A with the reply

filed by respondents No. 1 and 4, which stood issued vide

Notification dated 10th of August, 2011. A perusal thereof

demonstrates that there is no such condition contemplated in

the Recruitment and Promotion Rules also that being

registered with H.P. Para Medical Council was one of the

eligibility condition to participate in the selection process for

the appointment to the post in issue. In these circumstances,

in the considered view of this Court, rejection of the

candidature of the petitioner by the respondent­Commission

on the ground that the petitioner not being registered with

H.P. Para Medical Council, is completely erroneous and not

sustainable in law.

11. It is settled law that eligibility of a person is to be

seen on the basis of rules of eligibility as are contained in the

Recruitment and Promotion Rules as well as the

advertisement. As has been observed hereinabove also,

neither the Recruitment and Promotion Rules nor the

advertisement provided that a person applying for the post of

Male Multipurpose Health Worker should be registered with

H.P. Para Medical Council. In the absence of any such

condition being there either in the Recruitment and

.

Promotion Rules or in the advertisement, the commission

could not have had rejected the candidature of the petitioner

on this ground on the basis of the instructions so issued by

the State Government as relied upon by the respondent­

Commission.

12. One more point upon which the Court wants to

lay stress upon is that in the present case, the selection

process to fill up the posts in issue stood initiated in the

month of September, 2017, whereas the instructions so

issued by the Government are dated 14.02.2019. In this view

of the matter also, the subsequent notification could not have

been applied retrospectively so as to adjudge the suitability of

a candidate, as the same had to be assessed on the basis of

the terms and conditions as were contained in the

advertisement.

13. In view of the observations made hereinabove, this

petition is allowed. Communication dated 25.04.2019

(Annexure P­12) is ordered to be quashed and set aside and

the respondent­Commission is directed to consider the

candidature of the petitioner on the strength of educational

qualifications submitted by him with his application within a

period of eight weeks from today.

.

The petition stands disposed of in above terms, so

also pending miscellaneous application(s), if any.

                                          (Ajay Mohan Goel)
    March 17, 2021                                   Judge





       (narender)