Kapil Narware vs The State Of Madhya Pradesh
2022 Latest Caselaw 692 MP

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        HIGH COURT OF MADHYA PRADESH
          PRINCIPAL SEAT AT JABALPUR

               Writ Petition No.9863/2021

                     Vishal Dubey & ors.
                              Vs.
              The State of Madhya Pradesh & ors.

              Writ Petition No.29042/2021

                         Kapil Narware
                               Vs.
              The State of Madhya Pradesh & ors.



Dated: 14.01.2021

    Mr.Nikhil Tiwari, learned counsel for the petitioners.

     Mr.Ritwik Parashar, learned Panel Lawyer for the
State.

    Mr.Rahul    Diwakar,      learned     counsel    for    the
respondent No.3.

Mr.Piyush Tiwari, learned counsel for the respondent No.4.

The present petition has been filed by the petitioners

herein, who are challenging the oral order by which their

selections on the post of ECG Technician were cancelled

by the respondent No.5-Dean, Netaji Subhash Chandra

Bose Medical College after having been selected. The

impugned order is dated 01.06.2021 by which their

candidature was rejected. Upon scrutiny of their

documents they were found not to be in possession of the

certificate for ECG Technician, which was mandatory for

consideration and therefore, on the recommendation of

the scrutiny committee, their candidature was cancelled.

2. The advertisement for appointment for the post of

ECG Technician is annexure-P/5 at page 64. The

qualification that was mentioned therein is certificate of

having undergone one year training for the post of ECG

Technician from a recognized institute.

3. Learned counsel for the petitioners submits that the

petitioners herein all hold to their credit a two year

diploma course in Cath Lab Technician and are also

having working experience. They were even placed in the

merit list and the examination was conducted by the

Professional Examination Board. All these petitioners had

initially had passed the said examination and thereafter,

were appointed on the post of ECG Technicians, before

their appointments were cancelled by the respondent

No.5.

4. This petition has subsequently been amended and

paragraph No.5.13 to 5.15 have been added to the

petition. In paragraph No.5.13, the petitioner has stated

that the Paramedical Council at Bhopal has issued the

clarification letter dated 27.05.2021, which is Annexure-

P/12 to the petition, whereby the said council has opined

that those who have undergone the two year Diploma

course of Cath Lab Technician are taught and trained in

the subjects essential for ECG Technician also. Further in

5.15, the petitioners have stated that the Dean, Medical

College, Jabalpur, even after having received the said

letter from the Paramedical Council, issued the impugned

order.

5. The case of the petitioners, in short, is that they,

though having undergone the training for the Diploma

course of Cath Lab Assistant, have also been trained to

perform the functions of an ECG Technician. In order to

buttress his arguments, learned counsel for the

petitioners has drawn the attention of this Court to page

No.55 of the petition where, in the list of practicals, it is

included (1) ECG Recording pediatrics/Adult Patient, (2)

Operations, Calibrations and servicing of ECG, (3)

Recording of Holter/Stress ECG, (4) ECG Monitoring of

Patients in ICCU, (5) Ambulatory B.P. Monitoring, (6)

Operations of 2-D Echo/M.Mode Doppler and CFM

system and its maintenance, (7) Operation of TEE and its

maintenance, (8) Operation of blood oxymeter, ventilator

and ABG Machine, (9) Operation of Tagarno and its

maintenance, (10) ICCU Monitoring, (11) Control of film

processing and developing and (12) Other practical in

assisting in temporary Pace-Maker and Permanent Pace-

Maker etc.

6. From the above list of practicals that the petitioners

have undergone in their training as Cath Lab Assistants,

serial nos.1 to 4 relate to operation of the ECG Machine.

Learned counsel for the petitioners has drawn my

attention to page No.62 of the petition where also for the

course of Diploma in Cath Lab Assistant in the list of

practicals at serial No.1 to 4, practical training appears

to be given for the operation of ECG machines.

7. In short, the arguments of the learned counsel for

the petitioners is that the qualification of the

petitioners, who are Diploma holders as Cath-Lab

Technician is higher to that of an ECG certificate

course, as those who had done the Diploma course of

Cath-Lab Technicians have undergone a two year

course while those who acquire a degree as ECG

Technician, only undergo a one year course. Secondly,

it is also argued by the learned counsel for the

petitioners that those who undergo a diploma training

as Cath-Lab Technician, are also trained in the usage

and application of ECG machines.

8. Learned counsel for the petitioners has also relied

upon the judgment of the Supreme Court in the case of

Parvaiz Ahmad Parry Vs. State of Jammu &

Kashmir and Others, (2015) 17 SCC 709. In the said

judgment, the petitioner had applied for the post of

Range Officer Grade I (Forest). The qualification

prescribed for the said post was that the candidate

should possess a B.Sc. Degree with Forestry or its

equivalent from any University recognized by the

Indian Council of Agricultural Research. The petitioner

in that case had completed B.Sc. with Forestry as one

of the major subjects from Garhwal University,

Uttarakhand in the year 2001. Thereafter, the said

petitioner also completed M.Sc. (Forestry) from the

same University in the year 2003 and thereafter

passed the National Eligibility Test (NET) in Forestry

from the Indian Council of Agricultural Research

(ICAR) in the year 2005-06. The petitioner was however

denied the appointment, as he was found to be

ineligible for he did not possess the qualification of

B.Sc. (Forestry) or equivalent from any University

recognized from the ICAR. His challenge to the

impugned order was dismissed both by the Single

Bench as also by the Division Bench of the High Court

of Jammu & Kashmir, against which, the petitioner

filed an appeal before the Supreme Court. The

Supreme Court set aside the impugned orders and held

that the petitioner was eligible for the said post, as he

had done B.Sc. Degree with Forestry as one of the

major subjects and has further obtained a Master's

degree in Forestry, which was a higher qualification

than B.Sc. (Forestry).

9. Learned counsel for the petitioners herein has

sought to apply the ratio laid down in the case of

Parvaiz Ahmad Parry's case (supra) to the facts,

circumstances to the present case before this Court.

According to the learned counsel for the petitioners,

the petitioners herein were possessing a diploma of

Cath-Lab Technician, which was a two years course in

which the operation of the ECG and training for the

operation of ECG machine was given as a practical

course. Therefore, the contention of the learned

counsel for the petitioners is that the two years

Diploma course of Cath-Lab Technician is superior to

that of the certificate course for an ECG Technician,

which is only of one year course and therefore, the

cancellation of the appointment of the petitioners by

the respondent No.5 was unlawful only on the ground

that they did not possess the one year certificate

course of ECG Technician. Upon examining the

judgment of the Supreme Court in Parvaiz Ahmad

Parry's case (supra), the factual aspect that stands out

clearly is that the petitioner therein possessed the

Master's degree in Forestry whereas, the qualification

that was required for the Ranger Officer, Grade I, was

B.Sc. in Forestry or equivalent. Therefore, the

petitioner in that case could not have been put to a

disadvantage only because he had a determinantively

superior degree in the same subject, being an M.Sc. in

Forestry and therefore, the case of Parvaiz Ahmad

Parry's is different than that of the present petitioners.

10. The case of the petitioners herein would have

been similar if they possessed advanced certificate

course or Diploma course of ECG Technician which

was more intensive than that of an ECG Technician

certificate course, then certainly the case of Parvaiz

Ahmad Parry would have been applicable to the case of

the petitioners herein. However, undisputedly, the

training of the petitioners was as Cath-Lab

Technicians and in the practical of the said diploma

course, they were also trained in the usage of the ECG

equipment. However, on page 60 of the petition is the

syllabus of the ECG Technical Training Courses is for

one year. The theoretical aspects of the training in the

one year certificate course for ECG Technician is far

more elaborate and different from that of those trained

as Cath-Lab Technician. The Theoretical subjects are

listed from S.No.1 to 12 in the said syllabus (page 60

of the petition). Some of them are common to both the

ECG Technician and those who have undergone the

training as Cath-Lab Technician.

11. The document relating to the M.P. Paramedical

Council, which is a letter dated 27.05.2021, which

opines that those who have undergone the training of

Cath-Lab Technician are capable of working on the

post of ECG Technician, cannot be taken into

consideration by this Court at this juncture, as the

Syllabus prepared by the Paramedical Council for that

of the ECG Technician and for Cath-Lab Technician,

are not identical. Besides, as pointed out by the

learned counsel for the respondent No.5, the Gazette

notification dated 22.08.2015 lays down mandatory

requirement for an ECG Technician wherein, in S.No.2

in Column No.4, it is required that the candidate

should possess one year certificate course as an ECG

Technician. Under the circumstances, it was not

possible for the Professional Examination Board to

drop or curtail the mandatory requirement.

12. As stated earlier by this Court, there are

similarities in the training and syllabus of a Cath-Lab

Tehnician and ECG Technician, but the syllabus are

not identical and there are variations. The diploma

course of Cath-Lab Technician is not superior and

cannot be considered as a higher qualification than

that of the certificate for the ECG Technician. It is

certainly not comparable to a B.Sc. in Forestry, being

inferior to that of a M.Sc. Degree in Forestry. Merely

because there are certain commonalities in the

syllabus, this Court cannot hold that a person who

has done a certificate course as a Cath-Lab Technician

is eligible to be appointed as an ECG Technician, even

if he does not possess the one year course of ECG, as

required at S.No.11 of the notification dated

22.08.2015 (Annex.R/2 at page 6 of the return filed by

the respondents).

13. Under the circumstances, in view of what has

been discussed hereinabove, the petition stands

dismissed. The interim orders, if any, stands vacated.

(Atul Sreedharan) Judge pnm/a

Digitally signed by POONAM MANEKAR Date: 2022.01.19 17:28:00 +05'30' Adobe Reader version: 11.0.8