Irfan Ali Chhipa vs State Of Rajasthan
2021 Latest Caselaw 18135 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 286/2021

State Of Rajasthan, Through Secretary, Department Of Medical Health And Science, Govt. Secretariat, Jaipur.

----Appellant Versus

1. Anil Vishnoi S/o Dhana Ram, Aged About 25 Years, B/c Vishnoi, R/o D-47, Shankar Nagar, Pal Road, Jodhpur.

2. Rajasthan Karamchari Chayan Board, Krishi Prabandh Sansthan Parisar, Durgapura, Jaipur.

3. Rajasthan Paramedical Council-, Through Registrar, Rajasthan Paramedical Council, G-1, Kisan Bhawan, Lal Kothi, Jaipur.

----Respondents Connected With D.B. Spl. Appl. Writ No. 31/2021

1. Irfan Ali Chhipa, R/o Outside Nagori Gate, Near Kaga Bari, Jodhpur.

2. Nisha Soni W/o Vikram Soni, Aged About 32 Years, 438-A, Iii - C Road, Behind Asg Eye Hospital, Sardarpura, Jodhpur.

----Appellants Versus

1. State Of Rajasthan, Through The Principal Secretary, Medical And Health Department, Government Of Rajasthan, Secretariat, Jaipur.

2. The Additional Director (Administration), Medical And Health Services, Rajasthan, Tilak Marg, Swasthya Bhawan, Jaipur.

3. Rajasthan Subordinate And Ministerial Selection Board, Through The Chairman, State Institute Of Agriculture Management Premises, Durgapura Jaipur - 302018.

4. Rajasthan Para Medical Council, Through The Registrar, Rajasthan Para Medical Council, Plot No.6, Everest Colony, Near Apex Mall, Lal Kothi, Tonk Road, Jaipur-302016

----Respondents

(2 of 19) [SAW-286/2021]

For Appellant(s)- : Mr. M.S. Singhvi, Advocate General State through V.C. assisted by Mr. K.S. Lodha Mr. Karan Singh Rajpurohit, AAG assisted by Mr. Rajat Arora For Respondent(s) & : Mr. G.R. Punia Sr. Adv with Applicants Mr. Yashpal Khileree Mr. R.N. Mathur, Sr. Adv. through V.C.

Mr. Vigyan Shah Mr. Manoj Bhandari Mr. Aniket Tater Mr. Bhavit Sharma Mr. Himanshu Sharma Mr. Nishant Bora Mr. Mohit Choudhary Mr. Goving Suthar Mr. Akshit Gupta Mr. Harender Neel Mr. Yash Joshi Mr. Kailash Jangid Mr. HR Bishnoi Mr. AK Choudhary Mr. Vinit Sanadhya

HON'BLE THE CHIEF JUSTICE MR.AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Order

02/12/2021

These appeals arise out of two separate judgments but

concern the same issue which is central to this litigation. Appeal

no. 286/2021 is filed by the State of Rajasthan to challenge the

judgment of the learned Single Judge dated 26.11.2020 in Civil

Writ Petition No. 8695/2020 filed by Anil Vishnoi and others.

The petitioners had applied in response to a public

advertisement issued by the Rajasthan Staff Selection Board on

12.06.2020 notifying vacancies in the cadres of Lab Technicians

and Assistant Radiographer. The eligibility criteria for the posts

were Senior Secondary in Science with either Biology or

Mathematics or its equivalent with Radiography course passed

(3 of 19) [SAW-286/2021]

from an institute recognized by the State or Central Government

or Rajasthan Para-medical Council; Registration with Rajasthan

Para-medical Council; and working knowledge of Hindi and

knowledge of Rajasthani culture. The last date for filing the

application was 02.07.2020 which was later on extended to

30.07.2020. This advertisement carried a note which provided

that as per the judgment of the Rajasthan High Court in the case

of Manju Vs. State of Rajasthan and others (S.B. Civil Writ

Petition No. 13299/2017, decided on 08.12.2017), an

applicant who is not registered with the Rajasthan Para-medical

Council till the last date for filing application for recruitment, in

order to become eligible, must have applied for registration to

Rajasthan Para-medical Council before the last date of application

and must submit the registration certificate at the time of

document verification.

This note has given rise to the present controversy.

According to the petitioners Anil Vishnoi and others, as per the

rule, as understood by the State Government, registration with

the Para-medical Council of Rajasthan, before the last date of

applying for appointment, was not necessary. As long as a

candidate had applied for registration before the last date for

applying for appointment and could produce the registration on

the date of document verification, his eligibility will not be

challenged. The State of Rajasthan holds a belief that the decision

in the case of Manju (supra) was rendered in a different

background and the date for achieving eligibility criteria or the

minimum qualifications in a case where there was neither a

written test nor oral interview, cannot be extended beyond the last

date for applying for the post in question.

(4 of 19) [SAW-286/2021]

On 01.09.2020, the Rajasthan Staff Selection Board issued a

circular calling the candidates for document verification. It was

provided that first of all, the registration certificate of the

candidate will be checked and if the registration is found in order,

only then rest of the documents will be examined. It was also

stated that in order to be eligible, the candidate must be

registered with the Rajasthan Para-medical Council on or before

30th July, 2020.

This the stand taken by the Staff Selection Board and the

fact that Rajasthan Para-medical Council was not issuing

registration certificate to the candidates immediately, prompted

the petitioners Anil Vishnoi and others to file the writ petition

before the High Court. The prayer was for setting aside the said

circular dated 01.09.2020 to the extent it insisted that the

candidates be registered with the Rajasthan Para-medical Council

before 30th July, 2020. They prayed for further direction that they

should be held eligible and be appointed if found meritorious.

The State Government appeared and filed reply in which the

stand taken was that the eligibility of a candidate has to be

examined on the basis of statutory Rules. Reliance was placed on

a Division Bench judgment in the case of State of Rajasthan

and others Vs. Zaiba and others (D.B. Special Appeal Writ

No. 252/2018 decided on 24.04.2020). It was contended that

the advertisement cannot run counter to the statutory Rules.

Special Appeal (Writ) No. 31/2021 arises out of the judgment

of the learned Single Judge dated 24.11.2020 in Civil Writ Petition

No. 10853/2020 filed by Irfan Ali Chippa and another. These are

the candidates who had applied in response to the same

advertisement and are opposing the relaxation granted in the

(5 of 19) [SAW-286/2021]

advertisement for producing registration with the Para-medical

Council at the time of document verification. In short, they

opposed the stand of the petitioners Anil Vishnoi and others and

supported the stand taken by the State Government.

The petition of Anil Vishnoi and others came to be allowed.

The learned Single Judge relied upon the earlier judgments of the

Court particularly in the case of Lalit Kishore vs. State of

Rajasthan and others (S.B. Civil Writ Petition No.

8908/2020 decided on 23.10.2020) and ordered fresh

document verification of the petitioners on 18.11.2020. Directions

were also issued to the Para-medical Council of Rajasthan to

process the applications of the petitioners promptly and to grant

the registration if conditions are satisfied. We may record that

there were originally five petitioners in Anil Vishnoi and others,

however, four of them withdrew from the petition and the petition

survived only for Anil Vishnoi. The learned Single Judge gave

following directions:-

"12. In view of above, these writ petitions are disposed of in terms of adjudication made in Para No.11 and 12 qua Issue No. G and Issue No. H of the aforesaid judgment in case of Lalit Kishore (supra).

13. Petitioner(s) will have to obtain 'NOC' from concerned Stateand submit the same before the Rajasthan Para Medical Council by 27.11.2020.

14.Each petitioner shall furnish a representation before the respondent-Council on or before 24th November, 2020 indicating clearly the date of filing/sending application for registration along with the date and particulars regarding payment of fee.

15. It will be required of each of the petitioner to ensure that his/her application, which has been filed prior to 30.07.2020, is complete in all respects by 27.11.2020. The respondent-Council will not be obliged to intimate the petitioner about the discrepancies in a candidate's application.

                                             (6 of 19)                [SAW-286/2021]



     16.    The    respondent-Council   will  process   the

applications of the petitioner and grant them registration by 10.12.2020 in accordance with law.

17. While considering the applicants' application, the respondent-Council will take into account as to whether the concerned candidate had remitted the requisite fee or had got the Demand Draft prepared on or before 30.07.2020. In case the same was done by 30.07.2020, the concerned candidate shall be deemed to have applied before 30.07.2020.

18. The State authorities shall conduct a fresh document verification from 14.12.2020 onwards.

19. The State shall issue a notice in this regard and all the candidates who possess the requisite registration on the date of document verification shall be considered for the purpose of appointment subject of course if they are otherwise eligible.

20. The petitioners, who have got their registration with Rajasthan Para Medical Council, will appear in the counselling/document verification and their candidature shall also be considered as per Para-17 herein above.

21. The stay applications also stand disposed of."

In the case of Ifran Ali Chhipa and another vs. State of

Rajasthan and others, the learned Single Judge naturally

dismissed the petition. They have therefore filed the appeal.

Learned Advocate General for the State of Rajasthan

submitted that the rule position is clear and the eligibility criteria

would have to be satisfied on the last date of receiving the

applications as mentioned in the advertisement. Contrary

indications given in the advertisement will not change this position

since it referred to the judgement in case of Manju (supra) in

which case the facts were different. He submitted that the

advertisement must confirm to the statutory Rules and any part of

the advertisement which is contrary to the Rules would not

(7 of 19) [SAW-286/2021]

prevail. He pointed out that subsequently on 01.09.2020,

Rajasthan Staff Selection Board had clarified this position. He

relied on certain judgments of this Court, reference to which will

be made at the appropriate stage.

Whereas, learned advocates appearing for the contesting

candidates raised following contentions:-

(i). As per the existing rules, the requirement of registration can

be fulfilled on the date of document verification.

(ii). In any case, the State Government had issued

advertisement in which it was so specified. The State

Government therefore cannot withdraw from such position.

(iii). The task of granting registration is a ministerial one. Once a

candidate applies to the Medical Council, if for the reasons

that can be attributed to the Medical Council, there is any

delay in issuing registration, the candidates cannot be made

to suffer.

Learned counsel for the Medical Council submitted that the

registration to an applicant has to be granted after due

verification, failing which there is every possibility of errors or

even deliberate misrepresentations going unnoticed. He relied on

a recent affidavit filed by the Para-medical Council in which it is

stated that upon receipt of application along with prescribed fees

from a candidate, the Council sends the documents for verification

to the concerned college within the State and in case of

qualification obtained form outside the State, then to the

concerned State Government or the concerned Para-medical

Council of the State. After receiving required information and

examination of the documents, the Council proceeds to register

(8 of 19) [SAW-286/2021]

the students under the Rajasthan Para-medical Council Act, 2008.

It is pointed out that in case the registration is claimed on the

basis of qualification obtained from outside the State, the Council

also requires the students to obtain NOC from the concerned Para-

medical Council and in case there is no Para-medical Council,

certificate from the State Government to the effect that the

institute from which the candidate claims to have obtained the

qualification, is recognized by the State Government. Only upon

completion of these formalities, a certificate of registration can be

issued. It was pointed out that when the State Government issued

advertisement for recruitment on 12.06.2020, there was a huge

rush of applications for registration. Many of the applicants had

claimed to have obtained qualification from outside the State of

Rajasthan. It is pointed out that in some cases, the High Court

gave direction for granting provisional registration. It is stated

that in number of cases, the claims of the candidates have been

found to be bogus. In particular, applications were received on the

basis of claim that the qualifications were obtained in the State of

Jammu and Kashmir, whereas upon verification from the State

Government, it was found that these claims were bogus. It is

pointed out that in some of the cases from the State of Madhya

Pradesh, also the claims were not found genuine. Many

applications were made in time but were defective.

As noted, the advertisement for recruitment provided, by

way of extension, 30.07.2020 as the last date for filing

applications. It is undisputed that the selection is to be made

purely on the basis of the marks obtained in the qualifying

examination without any written test or oral interview. In such a

case, the question is, which would be the last date for acquiring

(9 of 19) [SAW-286/2021]

eligibility criteria for the post in question. It is by now well settled

that the last date for acquiring eligibility would be as per the

Rules, failing which as per the date specified in the advertisement,

failing which the last date for applying as per the advertisement.

Reference in this respect can be made to the decision of Supreme

Court in the case of Ashok Kumar Sharma vs. Chandra

Shekhar, (1997) 4 SCC 18. This was followed in the case of

State of Haryana and others vs. Anurag Srivastava and

another, (1998) 8 SCC 399. This has been consistent view of

the Supreme Court over the years.

Rule 11 of the Rajasthan Medical and Health Sub-ordinate

Service Rules, 1965 (hereinafter to be referred to as 'the Rules of

1965') which pertains to academic and technical qualifications and

experience; provides the eligibility criteria. A proviso was added to

this Rule 11 by the amendment of 1999 which reads as under:-

"Provided that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or schedule for direct recruitment shall be eligible to apply for the post but he/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency:-

(i) before appearing in the main examination, where selection is made through two stages of written examination and interview;

(ii) before appearing in interview where selection is made through written examination and interview'

(iii) before appearing in the written examination or interview where selection is made through only written examination or only interview, as the case may be."

Rule 19 of the Rules of 1965 came to be amended in the

year 2013. We are not concerned with the whole Rule 19 except to

note that as per proviso in case of appointment to the post other

(10 of 19) [SAW-286/2021]

than pharmacist which are not in the purview of the commission,

merit shall be prepared by the appointing authority on the basis of

marks obtained in qualifying academic examination or provisional

examination as specified in the Schedule.

The proviso Rule 11 of the Rules of 1965 as noted, provides

that the person who has appeared or is appearing in the final

examination of a qualifying examination shall be eligible but would

have to submit proof that he has acquired the requisite

qualification :

(i). Before appearing in the main examination where selection is

made through two stages of written examination and interview;

(ii). Before appearing in the interview where selection is made

through written examination and interview;

(iii). Before appearing in the written examination or interview

where selection is made through only written examination or only

interview, as the case may be.

This proviso essentially makes a candidate eligible to apply

as long as he/she has appeared in the final examination of the

qualifying course but that the proof of having acquired the

qualification should be produced latest before the dates specified

in Clause (i), (ii) and (iii) to the said proviso. In plain terms, this

proviso to Rule have applicability only in three different situations

envisaged in these three clauses. In other words, if the selection

process does not involve any of the three situations referred to in

these clauses, the proviso would have no applicability. To put it

differently, the extension for acquiring the minimum qualifications

beyond the last date for applying could be claimed only if the

selection process involves either the written test or oral interview.

If the selection process consist only of drawing the merit list on

(11 of 19) [SAW-286/2021]

the basis of the marks obtained by the candidate in the qualifying

examination, this proviso would have no application. In the

present case, admittedly, the selection had to be made based not

on the written test or oral interview but on the basis of marks

obtained in the qualifying examination. Therefore, proviso to Rule

11 of Rule 1965 does not apply. The only conclusion therefore

possible is that the person must satisfy the eligibility criteria on or

before the last date for applying as per the advertisement.

Despite this conclusion, we are not inclined to upset the

apple cart of the candidates in the present recruitment process.

This is for the reasons to follow. We have noted, that the State

Government in the advertisement itself had referred to the

judgment of this Court in the case of Manju (supra) and clarified

that a candidate would be considered eligible as long as he or she

had applied for registration with the Rajasthan Para-medical

Council before the last date for making application for

appointment and can produce the registration certificate on the

date of document verification. Learned Advocate General is correct

in contending that the advertisement cannot run counter to the

statutory Rules and in a given case any such contradiction must

be decided in favour of the Rule and not the contents of the

advertisement. However, in the present case, the State

Government itself has understood the Rule which otherwise was

not free from doubt. Secondly, the Government having put the

candidates at an ease about the time they had at hand to obtain

registration from the Para-medical Council, cannot suddenly take a

u-turn and resile from its original position. In a given case, it

would be open for a candidate to argue that if he was timely

informed that the registration must be produced before applying

(12 of 19) [SAW-286/2021]

for the post, he would have pursued his application with the Para-

medical Council with greater vigor. Having made the candidates to

believe that making application before the Para-medical Council

was sufficient for eligibility as long as registration was granted at

the time of document verification, the State Government led the

candidates they had sufficient time to produce the document and

from which position we will not let the Government to withdraw.

The clarification was issued on 1.9.2020 which was after the last

date for applying i.e. 30.7.2020 had passed. This clarification thus

had retrospective effect. To contend that the Manju's case was

different and since there was mention of that case in the

advertisement, the candidates had to correctly understand the

position that the extension was not available to them is putting a

very high requirement on the job aspirants.

Since arguments have been advanced on the very

requirement of registration as an eligibility and several decisions

of this Court are cited before us, we would like to touch on this

aspect as well.

The Rajasthan Para-medical Council Act, 2008 was framed to

provide for constitution of a Para-medical Council for regulation of

Para-medical profession and recognition of institutions imparting

education or training in para-medical subjects in the State and for

the matters connected therewith. Section 3 of the Act of 2008

envisages establishment of Rajasthan Para-medical Council. The

Council is constituted as per Section 4 of the Act. Section 13

pertains to powers and functions of the Council. As per Sub-

section (1) of Section 13, subject to the provisions of this Act and

the rules made thereunder, the Council shall exercise such powers

and perform such functions as may be necessary for carrying out

(13 of 19) [SAW-286/2021]

the purposes of this Act. Under Sub-section (2) of Section 13

without prejudice to the generality of the powers under Sub-

section (1), the Council would have additional functions to

maintain register of a Para-medical professionals, to suspend or

remove the name from the register or to take such disciplinary

action against a registered professional.

Chapter 3 of the Act of 2008 pertains to registration of Para-

medical professionals. Section 16 falling in the said chapter

provides for maintenance of a register of Para-medical

professionals. Section 17 provides that a person having recognized

para-medical qualifications shall be entitled to be registered as a

para-medical professional and application for registration would

have to be filed under Section 18. As per Section 19, if the

registrar is satisfied after holding such inquiry as he considers

necessary that the applicant for registration is entitled to be

registered under Section 17, he shall enter the name in the

appropriate register. Sub-section (2) of Section 19 provides that if

the Registrar is not satisfied, he shall make an order rejecting the

application and shall refund the fees.

It can thus be seen that maintenance of registration of the

Para-medical professionals and granting registration to an

applicant are important functions performed by the Council. This

would also be necessary to regulate the profession in the State. It

is also open for the Council to suspend or remove name of a

person from the registration. Without such registration, it would

not be permissible for a person to practice medicine in his chosen

field. These tasks and the requirement of registration cannot be

put into bracket of ministerial task or a mere formality or

consequence on an application being made for such purpose. Such

(14 of 19) [SAW-286/2021]

application has to be examined by the Registrar and only upon an

enquiry, as found necessary, if it is found that the registration is

due, the same may be granted or else registration will be refused

in terms of Sub-section (2) of Section 19.

As note, form the latest affidavit of the Council, requiring the

Council to grant registration without proper enquiry is also froth

with grave risks. It is pointed out that in several cases the claims

of having obtained a valid degree particularly from outside the

State, were bogus. The Council cannot be expected to perform its

functions in a hurried manner or without full verification. It can be

appreciated that when enquiries about the verification of a course

pursued by an applicant for registration, be it from a recognized

institute or to be made with Para-medical Council or State

Government from other States, the Para-medical of Rajasthan

would not have full control over the time that may be consumed.

Unless there is an apparent lack of urgency or total lethargy

shown by the Para-medical Council, giving directions for accepting

applications and deciding them in a hurried manner would not be

approprite.

The view that we have taken is supported by certain

decisions of this Court. In the case of Ashok Kumar Purohit Vs.

State of Rajasthan(D.B. Special Writ No. 1092/2005,

decided on 07.12.2005), the Division Bench of this Court has

observed as under:-

"5. As a proposition of law we agree with counsel for the respondents that in the absence of any rule as to the cut-off date the date mentioned in the advertisement notice or in the absence of any such cut- off date in the advertisement notice, the last date of submission of application should be treated as the cut-

(15 of 19) [SAW-286/2021]

off date with reference to which eligibility of the candidate is to be determined."

In the case of Suman Jat and another vs. State of

Rajasthan and others (S.B. Civil Writ Petition No.

15115/2018, decided on 18.02.2020), the Division Bench of

this Court had held that where neither written examinations or

interviews are involved in the process of selection, Rule 11 of the

Rule of 1965 shall not be applicable. It was held that those

candidates who have already registered with the Rajasthan

Nursing Council on the date of submission of the application alone

shall be eligible to be considered for the recruitment to the post.

In the case of Zaiba (supra), the Division Bench of this Court

in the context of Rule 11 of Rules of 1965 had held as under:-

"14. Indisputably, Rule 11 of the Rules of 1965 provides for Academic/Technical Qualification and Experience, which a candidate must possess for direct recruitment to the post enumerated in the Schedule appended to the Rules of 1965. The qualification required under the rules originally framed were provided in column 4 of the Schedule. It appears that the Schedule originally incorporated in the Rules of 1965 was amended from time to time and later, existing Schedule was substituted by Schedule I, II and III prescribing eligibility qualification for different categories of the posts in different groups. Schedule III stands deleted by Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2013 published vide notification dated 6.2.13.

15. As per Rule 11, originally framed, a candidate for direct recruitment to the post enumerated in the Schedule in addition to such experience required must possess the qualification given in column 4 of the Schedule. It is noticed that the eligibility qualification for recruitment to the post of Lab Technician originally prescribed under the Schedule of the Rules of 1965, was amended from time to time and the qualification presently required for recruitment to the said post mentioned in the advertisement, as prescribed in column

appended to the Rules of 1965, was substituted by way of Rajasthan Medical and Health Subordinate

(16 of 19) [SAW-286/2021]

Service(Amendment) Rules, 2013, published vide notification dated 6.2.13.

16. In Rule 11 originally framed, no cut-off date was fixed by reference to which the eligibility criteria must be satisfied by the candidate seeking employment on the various posts under the Rules of 1965. It is only by way of Rules of 1999, a common proviso was added in the relevant rule of the Various Service Rules permitting the person who has appeared or is appearing in the final examination of the course which is the requisite educational qualification for the post as mentioned in the Rules or Schedule for direct recruitment subject to the condition that he will submit the proof of acquiring educational qualification to appropriate selection agency before appearing in the main examination where the selection is made through two stages of written examination and interview, before appearing in interview where selection is made through written examination and interview and before appearing in written examination or interview where selection is made through only written examination or only interview, as the case may be.

17.It is pertinent to note that prior to amendment of Rule 19 of the Rules of 1965 vide notifications dated 6.2.13 & 30.8.13, the process of selection as prescribed was by way of interview of the candidates qualified for appointment to the posts under the Rules of 1965. Rule 19 was amended vide notifications dated 6.2.13 and 30.8.13 whereunder for posts other than Pharmacist, the process of selection by way of interview was done away with and instead the provisions for preparation of merit on the basis of the marks obtained in qualifying examination as specified in the Schedule and such bonus marks as may be specified by the Government having regard to the length of experience on similar work under the Government and the specified institutions/schemes was introduced. But the fact remains that the written examination was never prescribed as the mode of selection for the post of Lab Technician. Thus, apparently, common proviso introduced in the Various Service Rules by way of Rules of 1999, could be invoked only to the extent applicable to the recruitment process envisaged under the relevant Rules.

18. It cannot be disputed that in terms of Rule 19 of the Rules of 1965, where the recruitment to the post is to be made only on the basis of interview, by virtue of proviso to Rule 11, the person who had appeared or is appearing in the final year examination of the course which is requisite educational qualification for the post mentioned in the Schedule would be entitled to apply for the post and submit the proof of having acquired requisite educational qualification before appearing in the

(17 of 19) [SAW-286/2021]

interview. But where the selection is not made on the basis of the interview, the position of the rules regarding the reference date for eligibility qualification remains unchanged. In the instant case where the merit list for appointment to the post is made on the basis of academic qualification or professional qualification or both and the bonus marks on the basis of the experience certificate, it is not understandable as to why the date of eligibility qualification as prescribed in the advertisement should be extended by invoking the analogy underlying the Rule 11 of the Rules to the date of counseling/verification of the documents. In the considered opinion of this Court, the proviso to Rule 11 to the extent of submission of the proof of eligibility qualification before appearing in written examination is redundant inasmuch as, the Rules of1965 do not provide the written examination as the mode of selection at all. For the parity of reasons, where there is no provision for selection on the basis of the written examination or interview or both and there is a different process of selection is provided, the proviso to Rule 11 shall not be attracted."

Despite these observations, as discussed earlier, we would

not allow the State Government to travel beyond the initial

advertisement. However, when certain consequential directions

issued by the learned Single Judge we would like to comment. The

document verification stage was reopened and extended beyond

originally envisaged. More significantly, directions were issued to

the Para-medical Council of the State to accept the applications

even those which may not have been made by 30 th July, 2020. We

are conscious and can take judicial notice of the fact that the

learned Single Judge without so many words, was actuated by

rampant spread of corona virus in order to issue such general

directions. We would however have preferred if after the petition

was appropriately amended to enable the learned Single Judge to

give suitable directions and some factual examination was carried

out. Significantly, there were no prayers in the petition to this

effect. We may recall, the petition of Anil Bisnoi survived only for

one petitioner. These directions were thus for the benefit for the

(18 of 19) [SAW-286/2021]

candidates who were not before the court. However, we are

informed that on this basis, several petitions have been filed and

allowed and the State Government has not carried them in appeal.

This would be an additional ground for not taking away from the

original petitioner what the learned Single Judge has granted in

his judgment. However, we have made our position in law clear

which would hold the field for future considerations. In the present

recruitment process the pattern cannot be reversed.

Before closing we record the contention of the learned

Advocate General that the candidates who were provisionally

registered by the Council under the interim orders of the Court, in

any case, cannot be held to be eligible. Shri Vigyan Shah, for

some of the candidates submitted that even the provisional

registration has different factual background. In some cases,

registration once granted is cancelled which was protected

provisionally by the Court's order. In some cases, no registration

was granted and directions were issued for provisional

registration. None of these issues arise out of the impugned

judgment of the learned Single Judge in these appeals. These

issues will have to be gone into in appropriate proceedings at an

appropriate stage and possibly on the basis of individual facts. We

would therefore not make any observations and comments but

leave it to the parties to raise their contentions in proceedings

where such issues arise.

With these conclusions, the appeal filed by Irfan Ali Chhipa

must fail. The petition was in the nature of counter petition to that

of Anil Vishnoi (supra). Without recording separate reasons, this

appeal also must fail.

(19 of 19) [SAW-286/2021]

In the result both these appeals are dismissed subject to

above observations and clarifications.

                                   (SUDESH BANSAL),J                                       (AKIL KURESHI),CJ


                                   89&90-jayesh/-









Powered by TCPDF (www.tcpdf.org)