Madhya Pradesh High Court
Ravi Narware vs The State Of Madhya Pradesh on 14 March, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 14 th OF MARCH, 2023
WRIT PETITION No. 3778 of 2019
BETWEEN:-
1. MOHD.AJMAT KHAN S/O LATE SHRI SHARAFAT
KHAN, AGED ABOUT 44 YEARS, OCCUPATION: AS
DAILYSIS ATTENDANT R/O HOUSE NO.9, NEEM
ROAD, JINSI, JAHANGIRABAD, JINSI, BHOPAL
(MADHYA PRADESH)
2. LALIT SINGH UIKEY S/O LATE SHRI CHAMPALAL
UIKEY, AGED ABOUT 38 YEARS, OCCUPATION:
WORKING AS DIALYSIS ATTENDANT HOUSE NO.
358 2 STOP ROAD IN FRONT OF ARCHANA
COMPLEX TULSI NAGAR 81 LINE HUZUR C.T.T
NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI
BHARATDEEP SINGH BEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY PUBIC HEALTH AND
FAMILY WELFARE, DEPTT. GOVT. OF MADHYA
PRADESH, MANTRALAYA, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR DIRECTORATE OF MEDICAL
EDUCATION MANTRALAYA, VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
3. DEAN CUM CHIEF EXECUTIVE OFFICER GANDHI
MEDICAL COLLEGE SULTANIA ROAD NEAR
HAMIDIA HOSPITAL ROYAL MARKET (MADHYA
PRADESH)
Signature Not Verified
SAN 4. PROFESSOR AND HEAD OF THE DEPTT. DEPTT. OF
M EDICINES SULTANIA ROAD NEAR HAMIDIA
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.17 19:18:25 IST
HOSPITAL ROYAL MARKET GANDHI MEDICAL
COLLEGE BHOPAL (MADHYA PRADESH)
2
.....RESPONDENTS
(SHRI ARUN KUMAR PANDEY - ADVOCATE FOR THE INTERVENER)
WRIT PETITION No. 4953 of 2019
BETWEEN:-
RAVI NARWARE S/O SHRI GANGARAM NARWARE,
AGED ABOUT 40 YEARS, OCCUPATION: SERVICE 11/A
BHAWAN DHAM PHASE-1 NARELA SHANKARI
AYODHYA NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SWAPNIL KHARE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY PUBLIC HEALTH AND
FAMILY WELFARE DEPARTMENT MANTRALAYA
VALLABH BHAWAN ARERA HILLS BHOPAL
(MADHYA PRADESH)
2. DEAN/ MUKHYA KARYKARI ADHIKARI GANDHI
MEDICAL COLLEGE SULTANIYA ROAD,
HAMIDIYA HOSPITAL KE PASS ROYAL MARKET
BHOPAL (MADHYA PRADESH)
3. ADHISHTHATA AVAM MUKHYA KARYPALAN
ADHIKARI MEDICINE VIBHAG SULTANIYA ROAD,
HAMIDIYA HOSPITAL KE PASS ROYAL MARKET
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
WRIT PETITION No. 8188 of 2021
BETWEEN:-
ARUN KUMAR PATEL S/O SHRI GENDALAL PATEL,
AGED ABOUT 37 YEARS, OCCUPATION: WORKING AS
DIALYSIS ATTENDANT GANDHI MEDICAL COLLEGE
BHOPAL (MADHYA PRADESH)
Signature Not Verified
SAN
.....PETITIONER
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.17 19:18:25 IST (BY SHRI A.K. PANDEY - ADVOCATE)
3
AND
1. THE STATE OF MADHYA PRADESH THRO.
PRINCIPAL SECRETARY PUBLIC HEALTH AND
FAMILY WELFARE DEPARTMENT GOVT. OF M.P.
MANTRALAYA VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. DIRECTOR MEDICAL EDUCATION DEPARTMENT
MANTRALAYA VALLABH BHAWAN (MADHYA
PRADESH)
3. DEAN CUM CHIEF EXECUTIVE OFFICER GANDHI
MEDICAL COLLEGE BHOPAL SULTANIA ROAD
NEAR HAMIDIA HOSPITAL ROYAL MARKET
(MADHYA PRADESH)
4. PROFESSOR AND HEAD OF THE DEPARTMENT
DEPARTMENT OF MEDICINES GANDHI MEDICAL
C O L L E G E BHOPAL SULTANIA ROAD NEAR
HAMIDIA HOSPITAL ROYAL MARKET (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI JITENDRA SHRIVASTAVA - PANEL LAWYER FOR RESPONDENT
NOS. 1 AND 2)
These petitions coming on for admission this day, the court passed the
following:
ORDER
Report submitted by Shri Sandeep Sharma, Registrar (J-II) counter
signed by Principal Registrar (J) is inconclusive. Statements of DA-5 W.P.
Section Vinay Kumar Sahu are not appropriate. There is a need for better
coordination between the listing section, inasmuch as, if any document is taken
in the form of I.A. then it is necessary that it be printed in the cause list. Shri
Vinay Kumar Sahu has admitted that he had received the documents on
11.02.2023, according to him, he had tagged the same in the W.P. on
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14.02.2023 but when this case was taken up on 20.02.2023, these documents
SAN
Digitally signed by VAIBHAV YEOLEKAR
were not on record.
Date: 2023.03.17 19:18:25 IST
Thus, this explanation given by Shri Vinay Kumar Sahu is cryptic and
inappropriate, he is trying to shift the burden on the Court that it failed to locate
the documents though they were tagged by him along with the file, this is a
serious matter. Listing Section be pulled up for not mentioning the IA in the
cause list, if it was available on record than why they had not mentioned the
I.A., explanation given by Shri Vinay Kumar Sahu is rejected. Appropriate
action be taken against him for not sending the documents in time.
Heard.
W.P. No. 3778/2019 is filed by two of the persons working as 'Dialysis
Attendant' on Collector rate challenging advertisement dated 13/02/2019
advertising the post of 'Dialysis Attendant' as issued by the Dean and Chief
Executive Officer, Gandhi Medical College and autonomous committee, Bhopal
mainly on the ground that since petitioners' name was sponsored through
Employment Exchange, therefore, upto the extent of two posts on which
petitioners are working, no advertisement could have been issued and
petitioners should have been regularized on the said post of 'Dialysis Attendant'.
Similar relief is sought by the petitioner in W.P. No. 4953/2019. In W.P.
No. 8188/2021, petitioner's contention is that he had applied in terms of the
advertisement dated 13/02/2019. Petitioner's name finds place in the list of
qualified candidates under the O.B.C category at serial no. 1, but some of the
candidates who are not eligible for appointment as they do not possess the
requisite qualification filed W.P. No. 3778/2019 where on the basis of stay,
petitioners are not getting their regular appointment on the post of 'Dialysis
Attendant' despite being selected for the said post.
Signature Not Verified
SAN Smt. Shobha Menon, learned Senior Advocate leading arguments for the
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Date: 2023.03.17 19:18:25 IST
petitioners in W.P. No. 3778/2019 which are adopted in W.P. No. 4953/2019
submits that petitioners were appointed as 'Dialysis Attendant' on sanctioned 19
posts vide order dated 30/07/2012, when the State Government had taken a
decision to establish five Dialysis machines at Gandhi Medical College, Bhopal.
Out of these 19 posts, six posts were of 'Dialysis Attendant' in the pay
scale of Rs. 4,400-7,400/- with grade pay of Rs. 1,300/- as notified by the
Medical Education Department on 30/07/2012 Annexure P-2. It is submitted
that vide Annexure P-3A, petitioners were sponsored by the Employment
Exchange, District Employment Office, Bhopal to participate in the interview in
the office of employer i.e. Dean and Chief Executive Officer, Gandhi Medical
College, Bhopal.
It is submitted that after being sponsored through Employment
Exchange, petitioners were given appointment order as 'Dialysis Attender' vide
order dated 29/09/2012. Petitioners were also given letter of appreciation from
time to time but all of a sudden, the State Government while issuing the
impugned advertisement dated 13/02/2019 changed the conditions of eligibility
and prescribed qualification of XIIth pass with Biology, Physics and Chemistry
subjects which is admittedly not possessed by the petitioners in the first two
writ petitions.
It is submitted that when petitioners were appointed after following the
due procedure, then there was no reason for not regularizing them.
Reliance is placed on the judgment of the Supreme Court in Bhagwati
Prasad vs. Delhi State Mineral Development Corporation (1990) 1 SCC
361 wherein it is held that daily rated workers serving for long with artificial
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breaks in service, then at the time of regularization/confirmation, question of
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qualification is relevant only at the stage of appointment and not at the stage of
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Date: 2023.03.17 19:18:25 IST
confirmation when workers gain long practical experience.
Reliance is also placed on the judgment of the Supreme Court in Buddhi
Nath Chaudhary and others Vs. Abahi Kumar and others (2001) 3 SCC
328 wherein it is held that appointments made long back pursuant to selection
need not be disturbed.
Learned Panel lawyer Shri Jitendra Shrivastava in his turn submits that
State has filed its return and has categorically mentioned that appointment of the
petitioners was on collector rate. Petitioners' were sponsored by the
Employment Exchange prior to sanction of the set up. It is submitted that
posts were sanctioned vide order dated 30/07/2012 whereas petitioners were
sponsored for interview vide communication dated 26/03/2012 and interviews
were held on 3/04/2012. Thus, petitioners' appointment was neither against a
sanctioned post nor in accordance to the rules.
Petitioners accepted the terms and conditions of appointment on
collector rate. Even the memo of sponsorship by the Employment Exchange
makes it clear that appointment is to be made on collector rate. It is therefore,
clear that Model Cadre Recruitment Rules were framed named as M.P.
Autonomous Medical Colleges Non-Educational Model Service Rules, 2018
and according to these rules, qualification prescribed in Schedule-III for
'Dialysis Attendant' is XII th pass under 10+2 scheme for education with
Biology, Physics and Chemistry subjects. It is submitted that these
qualifications are mandatory.
Shri Jitendra Shrivastava, learned Panel Lawyer on instructions submits
that these Rules of 2018 were adopted by the Executive Committee of the
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SAN Autonomous Society of Gandhi Medical College, Bhopal on 30/04/2019 and
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Date: 2023.03.17 19:18:25 IST
they are applicable in full force.
At this stage, Smt. Shobha Menon submits that these rules have not been
notified and at best, they are administrative instructions as they were never
published in the official gazette.
After hearing learned counsel for the parties and going through the
record, it is evident that Hon'ble Supreme Court in K. Shekar Vs. V.
Indiramma and others (2002) 3 SCC 586 and Rajkumar and others Vs.
Shakti Raj and others AIR 1997 SC 2110 has held that posts should not
only be notified and names from the Employment Exchange be called for but
wide publicity in the media, notifying posts should be given.
This aspect is dealt with in Union of India and others Vs. N. Hargopal
and others AIR 1987 SC 1227 wherein the court held that the Employment
Exchanges (Compulsory Notification of Vacancies) Act 1959 did not oblige
any employer to employ only those persons who had been sponsored by the
Employment Exchanges, although it imposes an obligation on the employer to
notify the vacancies to the Employment Exchanges. The court further held that
while the individual was entitled to issue instructions that not only the vacancies
should be notified but they should also be filled by the candidates sponsored
by such exchanges through its own department, subject to constitutional
provision or of any statute, such instructions would not bind the other bodies
which were created by statute or which functioned under the authority of the
statute.
It is now well settled as held in Banarasidas and others Vs. State of
U.P. and others AIR 1956 SC 520 reiterated in Commissioner,
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Corporation of Madras Vs. Madras Corporation Teachers Mandram
Digitally signed by VAIBHAV YEOLEKAR
and others AIR 1997 SC 2131 that it is open to the appointing authority to
Date: 2023.03.17 19:18:25 IST
lay down the requisite qualification for recruitment to Government service.
In case of Mangej Singh and others Vs. Union of India and others
(1998) 9 SCC 471, it is held that normally it is for the State to decide the
qualifications required and the court cannot substitute the requirements on their
assessment and what the requirement should be.
The law laid down in V.M. Chandra Vs. Union of India and others
AIR 1999 SC 1624 is that where a casual employee had put in long period of
service and possessed adequate qualification, the claim for absorption as a
regular employee should not be ignored but in the present case, petitioners do
not possess requisite qualification. It is evident that post was sanctioned
subsequent to the requisition sent for appointment of the petitioners.
As discussed above, posts were sanctioned on 30/07/2012, petitioners
were sponsored by the Employment Exchange on 26/03/2012 for interview to
be taken on 3/04/2012. Therefore, there being no sponsorship against the
sanctioned posts, petitioners have no vested right to seek regularization in terms
of the law laid down by the Supreme Court in case of Secretary, State of
Karnataka Vs. Uma Devi (2006) 4 SCC 1. Infact, in the case of Uma Devi
(supra), the Supreme Court has categorically held that legitimate expectation is
not a ground for regularization.
Thus, when these facts are taken into consideration, then it is evident that
the law laid down by the Supreme Court in Bhagwati Prasad (supra), the ratio
is that experience would always aid the person to effectively discharge the
duties and is a sure guide to assess the suitability. Since posts were sanctioned
after initiation of process for appointment of the petitioners on collector rate
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SAN and at that time appointment was not against any sanctioned post, prescription
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.17 19:18:25 IST of qualifications for sanctioned posts cannot be said to be arbitrary.
It is also true that where rules are silent, the relationship might be
governed by administrative instructions. If an office memorandum or executive
instruction is made public or made known to everybody concerned, then it can
be efficacious and applicable as held in the case of S.I. Rooplal and another
Vs. Lt. Governor through Chief Secretary, Delhi and others, AIR 2000
SC 594.
In the present case, even if Rules of 2018 are accepted to be
administrative instructions but since they are in public domain, they will be
applicable. As per the stipulations, these administrative instructions were
adopted by the executive committee of the autonomous society of Gandhi
Medical College, Bhopal, therefore, they will have force of rules. Thus, where
rules are made and in consonance with the requirements of job and the job is
too sensitive like handling of dialysis procedure or assistant in the dialysis
procedure, then requirement of qualifications looking to the specialized nature
of the work cannot be supplemented with experience and, thus, ratio of law laid
down in the case of Bhagwati Prasad (supra) will not have any application to
the facts and circumstances of the case.
In the present case, we are not dealing with regularization or
confirmation. This court is seized of the situation where an advertisement has
been issued prescribing certain qualifications for appointment and admittedly,
petitioners do not possess that qualification, then this being a case of
recruitment and not of confirmation/regularization, when employer is entitled to
prescribe necessary qualification for appointment as held by the Supreme Court
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SAN
in the case of Banarasidas (supra), then prescription of qualification cannot be
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criticized merely on the ground that it is less favourable or not suitable to some
Date: 2023.03.17 19:18:25 IST
of the petitioners.
Once, it is a rule that State is entitled to decide the qualifications required
and the court cannot substitute the requirements on their assessment of what the
requirement should be as held in Mangej Singh (supra), the ratio of law laid
down in Bhagwati Prasad (supra) will have no application to the facts of the
present case.
Similarly, the law laid down in Buddhi Nath Chaudhary (supra)
provides that improper appointments made long back pursuant to a selection
need not be disturbed. Their issue was that if at the time of the recruitment,
candidates were not having adequate experience, then on the ground that they
acquire requisite experience, though, it was lacking at the time of recruitment, by
working on the post, equitable relief was granted but this judgment is
distinguishable on its own facts, inasmuch as, this court is not dealing with the
experience aspect but with the aspect of prescription of educational
qualification.
It is also true that petitioners were offered appointment as daily rated
employees on collector rates and the authorities are entitled to issue an
advertisement in terms of the rules. It is not the case of the petitioners that they
have been debarred from participation in the selection but for lack of prescribed
qualification.
Infact, petitioner in W.P. No. 8188/2021 is similarly situated. He possess
the necessary qualification, participated in the selection process and got
selected. Thus, non-possession of qualification cannot be overcome through
experience alone especially when the model rules have been framed and they
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SAN have been adopted by the Autonomous Medical College i.e. the respondent.
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.17 19:18:25 IST Thus, petitioners challenge to the selection process consequent to
appointment is devoid of merits deserves to be dismissed and is dismissed.
Accordingly, W.P. Nos. 3778/2019 and 4953/2019 are dismissed as
petitioners are admittedly not having requisite qualification as prescribed in the
advertisement.
Consequently, W.P. No. 8188/2021 is allowed. Stay is vacated. If
petitioner in W.P. No. 8188/2021 has been found suitable for appointment in
terms of the advertisement dated 13th February 2019 and there is no hindrance
in issuing the appointment in his favour, then the same be issued in favour of the
petitioner therein as claim of other unqualified persons has been negativiated by
this court.
In above terms, the petitions are disposed of.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.17 19:18:25 IST
