Rai vs State Of Rajasthan
2021 Latest Caselaw 19063 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9429/2021

Rai D/o Shri Kumbha Ram, Aged About 25 Years, R/o Godaro Ka Bas, Kishne Ka Talla, Batadu District Barmer.

----Petitioner Versus

1. State Of Rajasthan, Through Chief Secretary, Medical And Health Department, Jaipur.

2. Chief Medical And Health Officer, Barmer.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. R.J. Punia.
For Respondent(s)          :     Ms. Vandana Bhansali.
                                 Mr. Sangram Singh.


        HON'BLE MR. JUSTICE ARUN BHANSALI
                       Order
15/12/2021

This writ petition has been filed by the petitioner aggrieved

against cancellation of her application for the post of ANM on

urgent temporary basis pursuant to the advertisement dated

19.06.2021.

The advertisement dated 19.06.2021 (Annex.1) was issued

by the respondents seeking applications for 250 posts of ANM on

urgent temporary basis. The professional qualifications required as

indicated in the advertisement were that the candidate must have

passed ANM course, must be compulsorily registered with the

Rajasthan Nursing Council and was required to attach the bona

fide resident certificate, caste certificate, marriage certificate and

other documents.

The petitioner applied on 25.06.2021 and alongwith the

application, attached fee receipt from the Rajasthan Nursing

Council dated 14.06.2021, which pertains to her ANM registration

fees.

(2 of 7) [CW-9429/2021]

When the provisional merit list dated 20.07.2021 (Annex.3)

was issued, the application of the petitioner was rejected, inter-

alia, indicating that though the petitioner found place in the

provisional merit list, as she was not registered with the Rajasthan

Nursing Council, her application has been rejected.

Subsequently, the petitioner got registration from the

Rajasthan Nursing Council on 13.08.2021. It is claimed that the

document verification pursuant to the provisional merit list were

held on 30.11.2021 and 01.12.2021.

Learned counsel for the petitioner submitted that rejection of

petitioner's candidature by the respondents on account of lack of

registration with the Rajasthan Nursing Council is not justified,

inasmuch as, before the last date of application, the petitioner had

applied with the Rajasthan Nursing Council for registration.

Submissions were made that this Court in Manju v. State of

Rajasthan & Ors.: S.B. Civil Writ Petition No.13299/2017, decided

on 08.12.2017, had directed consideration of candidature of the

petitioners therein for the post of ANM under the National Health

Mission, who had applied for registration before the last date of

making application and who had certificates before the date of

document verification and as such, the action of the respondents

in rejecting the application of the petitioner is not justified.

Reliance has also been placed on judgment in Ashok Kumar

Purohit v. State of Rajasthan: 2006 WLC (Raj) UC 154 and State

of Rajasthan v. Anil Vishnoi & Ors.: D.B. Special Appeal

No.286/2021, decided on 02.12.2021.

Learned counsel appearing for the State submitted that the

stipulation in the advertisement was very specific, wherein, the

requirement of registration with Rajasthan Nursing Council was

(3 of 7) [CW-9429/2021]

emphasized by indicating 'compulsory' ¼vfuok;Z½ in the

advertisement.

Further submissions have been made in terms of Rajasthan

Medical and Health Subordinate Rule, 1965 ('Rules of 1965') also,

the eligibility has to been seen on the last date of application and,

therefore, as admittedly the petitioner was not in possession of

the requisite certificate on the date of application/last date of

application, the petitioner is ineligible and, therefore, her

application has been rightly rejected.

Reliance has been placed on judgment in State of Rajasthan

& Ors. v. Zaiba & Ors.: D.B. Special Appeal Writ No.252/2019,

decided on 24.04.2020.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The advertisement dated 19.06.2021 (Annex.1) indicates the

following eligibility requirements :-

"1- ,-,u-,e- izf"k{[email protected] LokLF; dk;Zdrk izf"k{k.k dkslZ mrhZ.k 2- jktLFkku uflZax dkWfly esa iath;u ¼vfuok;Z½ 3- ewy fuokl izek.k i=] tkfr izek.k i=] fookg izek.k i= ,oa vU; mi Js.kh lacaf/kr nLrkost"

Admittedly, the petitioner on the date of application was not

in possession of requisite registration certificate with Rajasthan

Nursing Council as she had applied on 14.06.2021 for registration

with the Rajasthan Nursing Council as is evident from the fee

receipt produced by the petitioner.

The last date of filing of the application on which date the

petitioner applied was 25.06.2021. Till that date also, the

petitioner was not in possession of the requisite eligibility i.e.

(4 of 7) [CW-9429/2021]

registration with the Rajasthan Nursing Council and consequently,

by order dated 20.07.2021 (Annex.3), wherein, the provisional

merit list was issued, the application of the petitioner was

rejected.

The entire plea raised by the petitioner, is based on the

judgment in the case of Manju (supra). In the case of Manju

(supra) a Single Judge inter-alia directed as under:-

"Thus, in light of the aforesaid observations the present petitions are disposed of with a direction to the respondents to consider the petitioners eligible for the post of ANM under the National Health Mission on contract basis arising out of advertisement dated 28.02.2016 on the following terms :-

(a) The petitioners who have applied for registration on or before 28.2.2016 shall be treated as eligible as far as condition of registration is concerned and shall be permitted to participate in the selection process and shall be given appointment strictly in accordance with their merits.

(b) However, the condition no. (a) shall apply if the candidates have the certificate on or before 02.2.2017, which is the date of verification.

Thus, in both the conditions, the petitioners need to have registration receipt (which means in Rajasthan Nursing Council) before 28.2.2016 and simultaneously have certificate on or before 02.2.2017"

The judgment in the case of Manju followed the Division

Bench judgment in Ashok Kumar Purohit (supra), the Division

Bench in the case of Ashok Kumar Purohit (supra) inter-alia

observed and directed 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-off date with reference to which eligibility of the candidate is to be determined. However, in the instant case we are not able to appreciate as to why the appellant should suffer for the lapses on the part of the authorities of the Nursing Council. As stated above, the appellant had submitted application well within time on 24th February, 2003. As a matter of fact other 130 candidates whose names were referred to the Karnataka Nursing Council for similar verification were registered but case of the appellant was

(5 of 7) [CW-9429/2021]

deferred. Nothing has been brought on record as to why appellant was not registered alongwith them. In the peculiar facts of the case we are of the view that notwithstanding that the appellant was registered later than the cut-off date he should not be held to be ineligible for consideration for appointment on the post of Nurse Gr.II.

6. In course of hearing it transpired that selection on the post has been stayed by this Court. If that is so, it would follow that the vacancies are available against which case of the appellant can be considered."

A perusal of the above would indicate that the Court though

came to the conclusion that the eligibility is required on the last

date of application, however, in view of the fact that out of 131

candidates, while 130 candidates were registered with the Nursing

Council but the petitioner therein was not registered and no

reason was forthcoming, the Court observed that 'in the peculiar

facts of the case', the petitioner should not be held ineligible for

consideration.

Once the Court in the peculiar circumstances of the case,

had granted the relief, which facts apparently are not present in

the present case, it cannot be said as a Rule, irrespective of the

indication made in the advertisement making the registration with

the Rajasthan Nursing Council as compulsory, the candidates, who

have applied for registration before the last date would

automatically become eligible.

In the case of Zaiba (supra), the Division Bench, faced with

the similar issue, after referring to various provisions of Rules of

1965, which are applicable to the present recruitment as well,

came to the following conclusion:-

"24. Indubitably, the writ petitioners were not holding the requisite qualification as on the date of submission of the application forms online inasmuch as, at the relevant time, they were pursuing their internship and had not acquired the registration with RPMC after completion of the professional course. Merely because, they were permitted to fill up the application form, notwithstanding that they were not holding the requisite qualification as on the date of the submission of

(6 of 7) [CW-9429/2021]

application form online, pursuant to an interim order passed by this Court, no right is created in their favour. The requirement of the eligibility qualification as on the date of the submission of the application form as specified in the advertisement, cannot be relaxed inasmuch as there is no provision in the Rules of 1965 permit such relaxation. Moreover, many more persons who were not having the qualification as on the date fixed for submission of the application form but were in position to obtain the requisite qualification subsequent thereto, might not have even applied for appointment to the post. That apart, if the writ petitioners who are not otherwise eligible to apply for the post, are permitted to participate in the selection process and stand in merit, other persons who were having the requisite qualification as on the date of submission of the application form, may be deprived of the appointment. In the considered opinion of this Court, the cut-off date fixed for the eligibility qualification while initiating the recruitment process needs to the adhered to strictly so as to maintain transparency and fairness in the recruitment process undertaken for public employment.

25. At this stage, it is noticed that the learned Single Judge has declared Condition No.6 (ii) of the advertisement as contrary to the Rules of 1965 as amended by Rules of 1999, but then, a perusal of the advertisement reveals that there exists no Condition No. 6 (ii) in the advertisement issued, rather, Clause 6 of the advertisement deals with eligibility and academic qualification, wherein, at serial no.2 the academic/ professional qualification and other eligibility required for the recruitment to the post of Lab Technician is mentioned. However, it is apparent that the learned Single Judge intended to declare that part of Clause 6 as illegal and void, which prescribes that the person applying for recruitment to the post must possess the eligibility qualification as on the date of submission of the application form, which is not found to be correct and justified by us for the reasons mentioned hereinabove.

26. In view of the discussion above, the special appeal deserves to be allowed.

27. Accordingly, the special appeal is allowed. The order under appeal dated 7.5.18 passed by the learned Single Judge is set aside. The writ petition preferred by the respondents-writ petitioners is dismissed. No order as to costs."

The Division Bench on considering the provisions and coming

to the conclusion that no relaxation can be provided and in view of

the fact that there may be more persons not having the

qualification on the last date fixed for submissions of form and

were in a position to obtain the requisite qualification subsequent

there to, might not have applied for the post, cannot based on

interpretation sought to be put, be deprived of the same and

(7 of 7) [CW-9429/2021]

consequently, the judgment of the Single Judge granting relief

based on earlier law was set aside.

So far as the judgment in the case of Anil Vishnoi (supra) is

concerned, the same pertain to an advertisement, wherein, a

specific stipulation was made in the advertisement that judgment

in the case of Manju (supra) was the basis for the purpose of

eligibility.

Once the indications made in the case of Manju (supra) were

incorporated in the advertisement by reference, the eligibility itself

stood modified and those who had applied for registration,

automatically become eligible.

In that view of the matter, the judgment in the case of Anil

Vishnoi (supra) has no application to the facts of the present case,

inasmuch as, noticed hereinbefore, the present advertisement

makes registration with Rajasthan Nursing Council as compulsory

on the date of application.

In that view of the matter, the rejection of petitioners'

candidature is in sync with the stipulation made in the

advertisement and the law laid down by Division Bench of this

Court in the case of Zaiba (supra) pertaining to the eligibility

under Rules of 1965 and as such, the same does not call for any

interference.

Consequently, there is not substance in the writ petition, the

same is, therefore, dismissed.

(ARUN BHANSALI),J

14-pradeep/-

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