The Rajasthan Para Medical ... vs Manish Kardam S/O Shri Gopal ...
2023 Latest Caselaw 391 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR
             D.B. Special Appeal Writ No. 866/2020

Rajasthan Para Medical Council
                                                                  ----Appellant
                                  Versus
Arshad & Others.
                                                               ----Respondents

Connected With

1. D.B. Special Appeal Writ No. 840/2020

2. D.B. Special Appeal Writ No. 841/2020

3. D.B. Special Appeal Writ No. 842/2020

4. D.B. Special Appeal Writ No. 843/2020

5. D.B. Special Appeal Writ No. 847/2020

6. D.B. Special Appeal Writ No. 863/2020

7. D.B. Special Appeal Writ No. 889/2020

8. D.B. Special Appeal Writ No. 893/2020

9. D.B. Special Appeal Writ No. 956/2020

10. D.B. Special Appeal Writ No. 9/2021

11. D.B. Special Appeal Writ No. 10/2021

12. D.B. Special Appeal Writ No. 11/2021

13. D.B. Special Appeal Writ No. 12/2021

14. D.B. Special Appeal Writ No. 13/2021

15. D.B. Special Appeal Writ No. 14/2021

16. D.B. Special Appeal Writ No. 16/2021

17. D.B. Special Appeal Writ No. 17/2021

18. D.B. Special Appeal Writ No. 19/2021

19. D.B. Special Appeal Writ No. 22/2021

20. D.B. Special Appeal Writ No. 27/2021

21. D.B. Special Appeal Writ No. 28/2021

22. D.B. Special Appeal Writ No. 29/2021

23. D.B. Special Appeal Writ No. 30/2021

24. D.B. Special Appeal Writ No. 31/2021

25. D.B. Special Appeal Writ No. 35/2021

26. D.B. Special Appeal Writ No. 36/2021

27. D.B. Special Appeal Writ No. 37/2021

28. D.B. Special Appeal Writ No. 38/2021

29. D.B. Special Appeal Writ No. 40/2021

(2 of 14) [SAW-866/2020]

30. D.B. Special Appeal Writ No. 45/2021

31. D.B. Special Appeal Writ No. 46/2021

32. D.B. Special Appeal Writ No. 50/2021

33. D.B. Special Appeal Writ No. 51/2021

34. D.B. Special Appeal Writ No. 52/2021

35. D.B. Special Appeal Writ No. 58/2021

36. D.B. Special Appeal Writ No. 66/2021

37. D.B. Special Appeal Writ No. 73/2021

38. D.B. Special Appeal Writ No. 74/2021

39. D.B. Special Appeal Writ No. 75/2021

40. D.B. Special Appeal Writ No. 76/2021

41. D.B. Special Appeal Writ No. 77/2021

42. D.B. Special Appeal Writ No. 78/2021

43. D.B. Special Appeal Writ No. 79/2021

44. D.B. Special Appeal Writ No. 80/2021

45. D.B. Special Appeal Writ No. 81/2021

46. D.B. Special Appeal Writ No. 82/2021

47. D.B. Special Appeal Writ No. 83/2021

48. D.B. Special Appeal Writ No. 84/2021

49. D.B. Special Appeal Writ No. 85/2021

50. D.B. Special Appeal Writ No. 86/2021

51. D.B. Special Appeal Writ No. 87/2021

52. D.B. Special Appeal Writ No. 88/2021

53. D.B. Special Appeal Writ No. 89/2021

54. D.B. Special Appeal Writ No. 90/2021

55. D.B. Special Appeal Writ No. 91/2021

56. D.B. Special Appeal Writ No. 93/2021

57. D.B. Special Appeal Writ No. 94/2021

58. D.B. Special Appeal Writ No. 95/2021

59. D.B. Special Appeal Writ No. 96/2021

60. D.B. Special Appeal Writ No. 836/2021

61. D.B. Special Appeal Writ No. 437/2022

For Appellant(s) : Mr. Bharat Saini Advocate, Mr. Harshal Tholia Advocate on behalf of Dr. Vibhuti Bhushan Sharma, Additional Advocate General.

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Ms. Apoorva Agarwal Advocate on behalf of Mr. Himanshu Jain Advocate.

For Respondent(s) : Mr. R.N. Mathur, Senior Advocate with Mr. Prateek Mathur Advocate & Mr. Navin Chandra Mishra Advocate.

Mr. M.F. Baig Advocate Mr. S.S. Hora Advocate.

Mr. Saransh Saini Advocate.

Mr. Nalin G. Narain Advocate with Mr. Arpit Jain Advocate.

Mr. Fahad Hasan Advocate with Ms. Alka Rathi Advocate on behalf of Mr. Syed Shahid Hasan Advocate.

Mr. Achintya Kaushik Advocate.

Mr. Laxmi Kant Malpura Advocate.

Mr. Banvari Lal Saini Advocate.

Mr. Manish Parihar Advocate on behalf of Mr. Tanveer Ahamad Advocate.

Mr. Ram Pratap Saini Advocate.

Mr. Sandeep Singh Shekhawat Advocate with Mr. Akshay Dutt Sharma Advocate.

Mr. Himanshu Ranjan Singh Bhati Advocate.

Mr. Prem Chand Dewanda Advocate.

Mr. Raghu Nandan Sharma Advocate.

Mr. Shivraj Yogi Advocate.

Mr. Arvind Kumar Arora Advocate.

Mr. Krishan Chander Sharma Advocate.

Mr. Ashwinee Kumar Jaiman Advocate.

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA Order 12/01/2023

These batch of appeals have been preferred by the Rajasthan

Para Medical Council and the State of Rajasthan against common

order passed by the learned Single Judge on 23.10.2020 in batch

of writ petitions, insofar as the legality and validity of the decision

of the learned Single Judge on issue No. E is concerned. The issue

No. E, on which decision has been rendered by the learned Single

Judge is as below:-

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"Issue No. E:- Rajasthan Para Medical Council is refusing the

candidates, who have obtained diploma from Universities of

Rajasthan, namely, NIMS University, Singhania University, JRN

Vidhyapeeth (Deemed) University, Jaipur National University,

Mahatma Gandhi University of Medical Sciences & Technology,

Mahatma Jyoti Rao Phoole University, SMS Medical College, and

Madhav University".

However, learned counsel for both the parties submit that

"SMS Medical College" has been inadvertently included in the

order though there is no grievance pertaining to the said

institution.

As far as the aforesaid issue is concerned, the cause of

action arose on account of refusal on the part of the Para Medical

Council in granting Registration to the students, who had obtained

diploma in Para Medical course from various private Universities,

referred to hereinabove, on the ground that these Universities,

though were required under the Rajasthan Para Medical Council

Act, 2008 (for short 'the Act of 2008') read with the Rajasthan

Para Medical Council Regulations, 2014 (for short 'the Regulations

of 2014') to obtain recognition from the Para Medical Council, have

not obtained such mandatory recognition. The respondents-writ-

petitioners were desirous of applying for appointment to the post

of Assistant Radiographer and Lab Technician for which

recruitment process started vide advertisement dated 12.06.2020.

One of the eligibility criteria under the advertisement was

Registration with Para Medical Council. As the respondents-

students were not getting Registration on account of refusal on

the part of the Para Medical Council and, thus, unable to apply

pursuant to the advertisement dated 12.06.2020, they

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approached this Court by filing their respective petitions. The writ-

petitioners in the aforesaid batch of appeals, are those who have

pursued their regular course of studies in various private

Universities.

The learned Single Judge, relying upon various orders of this

Court, held that the private Universities having been established

by the State enactment and enjoying statutory autonomy, were

not required to seek further recognition from Para Medical Council.

In other words, the learned Single Judge held that the private

Universities established by State enactments are outside the

purview of the Act of 2008 and the Regulations made thereunder

and they are not obliged under the law to seek any recognition,

therefore, refusing Registration of such diploma holders with Para

Medial Council on the ground that the Universities from which

those students obtained diploma were not recognized in terms of

the statutory scheme of the Act of 2008 and Regulations framed

thereunder, was illegal. Learned Single Judge accordingly directed

to grant Registration within a period of 15 days.

On appeal, being preferred by the Rajasthan Para Medical

Council, this Court passed interim order in some of the appeals,

though not in all the appeals, staying the effect and operation of

findings of the learned Single Judge on issue No. E referred to

hereinabove.

Now application for vacating stay has been filed in D.B. Civil

Special Appeal (Writ) No.66/2021 along with an application

for appropriate directions. Applications for appropriate directions

in D.B. Special Appeal (Writ) No.866/2020, D.B. Civil

Special Appeal (Writ) No.437/2022 & D.B. Civil Special

Appeal (Writ) No.88/2021 have also been filed. Apart from the

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prayer for vacating interim order passed earlier by this Court,

staying effect and operation of the order of the learned Single

Judge insofar as issue No. E is concerned, prayer has also been

made for issuance of appropriate directions as a fresh process of

recruitment has started for appointment to the post of Assistant

Radiographer and Lab Technician, prescribing eligibility criteria,

which again includes requirement of registration with the Para

Medical Council.

Learned Senior Counsel leading the arguments as also other

counsel for respective respondents-writ-petitioners, in whose

favour, learned Single Judge passed order and also issued

direction of their registration, have extensively argued before us

submitting that the order passed by the learned Single Judge is

based on consistent view taken by this Court in the cases of

Rajasthan Nursing Council Versus Singhania University,

D.B. Special Appeal (Writ) No.671/2018, decided on

25.05.2018, Rajasthan Para Medical Council Versus Hitesh

Kumar Sharma & Others, D.B. Special Appeal (Writ)

No.629/2018, decided on 25.05.2018, NIMS University

Versus Rajasthan Para Medical Council, S.B. Civil Writ

Petition No.364/2017, decided on 03.05.2019, Kuldeep

Shukla Versus State of Rajasthan & Others, S.B. Civil Writ

Petition No.10826/2008, decided on 30.05.2011. It is

argued that all these decisions proceed on the principle

propounded by the Hon'ble Supreme Court in the case of Dr. B.L.

Asawa Versus State of Rajasthan & Others, reported in

(1982) 2 Supreme Court Cases 55. It was fervently urged by

learned Senior Counsel appearing for respondents in one of the

writ appeals that the private Universities, by a State enactment,

(7 of 14) [SAW-866/2020]

have been conferred statutory autonomy and their autonomy

cannot be subjected to control or subordination of another

statutory body constituted under another State enactment namely

the Act of 2008. Taking us through various provisions, definition

clauses of the Act of 2008 as also the provisions contained in

Regulations of 2014, it was stressed upon that the scheme of

recognition under the Act of 2008 is intended to keep check on

institutions which have been opened and imparting teaching in

Para Medical courses and awarding degrees, diploma and

certificates in public interest. The provisions of the Act of 2008,

rationally construed, exclude from its purview, private Universities

established by a State enactment. Such Universities are in

themselves autonomous bodies entitled to set required standards

of teaching faculty, syllabus and curriculum in respect of

enlisted/scheduled courses, which include Para Medical courses

also. They stand at par with Para Medical Council and, therefore,

they are not required to seek any recognition from any other

institution much less, Para Medical Council. Relying upon the

Hon'ble Supreme Court judgment in the case of Dr. B.L. Asawa

Versus State of Rajasthan & Others (supra), it has been

argued that in that case also, the Hon'ble Supreme Court

emphasized that where a University is duly established by statute,

it is fully competent to conduct its own examination and award

degrees and it is not required to seek further recognition from

other Institutions or Universities. Further, relying upon another

decision of the Hon'ble Supreme Court in the case of Bhartidasan

University Versus All India Council for Technical Education

and Others, (2001) 8 Supreme Court Cases 676 or AIR

2001 SC 2861, it has been argued that in the aforesaid decision,

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Hon'ble Supreme Court has authoritatively held that a State

University constituted and established under the State enactment,

is not required to seek prior approval of All India Council for

Technical Education to start a department for imparting a course

or programme in technical education.

It has been argued that the aforesaid consistent view was

followed by the learned Single Judge to pass order in favour of the

respondents-students. He would submit that respondents-students

have already lost opportunity to participate in the earlier process

of selection for appointment to the post of Assistant Radiographer

and Lab Technician because of illegal refusal of Registration by the

Para Medical Council and if they are not allowed to participate in

subsequent recruitment process, which has already been initiated

where the last date of filing application is 30 th January, 2023, the

respondents-students who possess degree or diploma granted by

the private Universities through a regular course, would suffer

irreparable injury. Therefore, it is prayed that the interim order

passed staying the operation of directions of the learned Single

Judge on issue No. E be vacated and/ or appropriate direction be

issued to the recruiting agency to allow provisionally the

respondents-students to appear in the examination and the

matter itself may be heard finally on an early date. He would

submit that even a direction may be issued to the Para Medical

Council as an interim measure to provide provisional Registration,

which may be subjected to final decision of the cases.

Learned counsel appearing for various Universities including

Mahatma Gandhi University of Medical Sciences & Technology &

NIMS University, while making similar submissions, have made

additional submissions to support the order passed by the learned

(9 of 14) [SAW-866/2020]

Single Judge. It has been submitted that the Para Medical Council

has been taking contrary stand. It has also been submitted that

the order passed in the case of NIMS University earlier has been

made a basis to allow Registration in those cases where the

degree or diploma has been granted prior to establishment of Para

Medical Council.

On the other hand, learned counsel appearing for Para

Medical Council would argue that the Scheme of the Act of 2008

and Regulations of 2014 unequivocally requires recognition to be

obtained by any person, who is desirous of imparting education in

Para Medical courses and awarding degree, diploma and certificate

etc. The provisions of the Act of 2008 and the Regulations of 2014

made thereunder do not exclude, either expressly or by

implication, any institution including private Universities, even

though, they may have been established by the State enactment.

He would argue that if the Para Medical courses are conducted,

examinations are held and degrees, diplomas and certificates are

awarded by the private Universities, they are also required to

comply with the statutory requirement of seeking recognition from

the Para Medical Council as it is a regulatory body. Referring to the

provisions contained in Section 4 & Section 38 of The Mahatma

Gandhi University of Medical Sciences and Technology, Jaipur Act,

2011 as also similar provision contained in other Universities

involved in the present batch of appeals, it is argued that even

though private Universities were established by State enactment,

it has been clearly provided therein that the University shall be

bound to comply with all the rules and regulations and norms etc.

of the regulating bodies and provide all such facilities and

assistance to such bodies as are required by them to discharge

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their duties and carry out their functions. Therefore, the private

Universities could not claim immunity from the requirement of the

statutory recognition under the provisions of the Act of 2008 and

the Regulations framed thereunder. He would further submit that

as far as NIMS University is concerned, number of cases are

pending before this Court and various orders passed in its favour,

have been assailed by filing appeals, which are also pending.

Learned State counsel arguing in appeals filed by the State,

adopting the arguments of learned counsel for Para Medical

Council, would add that the recruitment process initiated earlier,

which was subject matter of the writ petitions, out of which, these

appeals have arisen, provided for a cutoff date and, therefore, the

respondents-writ-petitioners are not entitled to claim participation,

selection and appointment against those posts which were subject

matter of advertisement dated 12.06.2020 in the matter of

appointment to the post of Assistant Radiographer and Lab

Technician. He would submit that even if the directions of the

learned Single Judge to provide registration is allowed, the

registration would only be subsequent to the cutoff date provided

under the advertisement and such prescription of cutoff date being

sacrosanct, the writ petitioners are not entitled to claim selection

and appointment.

He would also submit that the writ petitioners have sought

relief and mandamus has been issued in their favour contrary to

statutory provisions requiring recognition by the Para Medical

Council. Without challenge to the constitutional validity of the

provisions contained in the Act of 2008 and Regulations framed

thereunder, the writ petitions itself were not maintainable and

were liable to be dismissed. Therefore, the order passed by the

(11 of 14) [SAW-866/2020]

learned Single Judge is illegal and interim orders may be

continued and all applications for appropriate directions may be

rejected. He would further submit that prayer for appropriate

directions made by newly added respondents in D.B. Civil

Special Appeal (Writ) No.866/2020 is liable to be rejected on

the ground of suppression of material facts. He would further

submit that after the writ petitioners are allowed to participate in

the process of selection, there provisional participation will

adversely affect the entire process of selection and delay in

finalisation of selection process affecting recruitment on number of

posts of Assistant Radiographer and Lab Technician.

One of the main submissions of learned counsel for the

appellant-Para Medical Council and State is that the learned Single

Judge has granted relief based on orders passed by this Court in

the cases of Rajasthan Nursing Council Versus Singhania

University (supra) & Rajasthan Para Medical Council Versus

Hitesh Kumar Sharma & Others (Supra), which have been

challenged by filing SLP in the Supreme Court and the operation of

those orders have been stayed by the Hon'ble Supreme Court.

In rejoinder, learned counsel appearing for respective writ

petitioners have disputed all contentions on factual and legal

aspects.

We have heard learned counsel for the parties on their

extensive arguments on the issue of stay and also appropriate

directions.

On prima-facie considerations, we find that the entire claim

of the writ petitioners is essentially based on the judgments of this

Court in the cases of Rajasthan Nursing Council Versus

Singhania University (Supra), Rajasthan Para Medical

(12 of 14) [SAW-866/2020]

Council Versus Hitesh Kumar Sharma & Others (Supra),

NIMS University Versus Rajasthan Para Medical Council

(Supra), and Kuldeep Shukla Versus State of Rajasthan &

Others (Supra). Most of these orders seek to rely upon the

observations made by the Hon'ble Supreme Court in the case of

Dr. B.L. Asawa Versus State of Rajasthan & Others (Supra) .

The observations made by the Hon'ble Supreme Court in the

aforesaid case were based on a different factual scenario, where

insistence on obtaining recognition from a University in the State

of Rajasthan was found unwarranted as the degree was obtained

from a University of another State, which was duly established by

statute and was included in the schedule of the Indian Medical

Council Act as the degree was fully recognised by the Indian

Medical Council. Therefore, there is considerable force and strong

prima-facie case made out by the appellants that the reliance on

the said decision was misconceived in law and on facts both.

Reliance placed on the decision of the Hon'ble Supreme

Court in the case of Bhartidasan University Versus All India

Council for Technical Education and Others (Supra), prima-

facie appears to be misplaced in law because on facts, in that

case, State University was held outside the purview of definition of

Technical Education as provided in Section 2 (h) of All India

Council for Technical Education Act, 1987.

In the present cases, on apparent reading of the provisions

contained in the Act of 2008 and Regulations framed thereunder

would show that the definition of Recognised Institution as

contained in Section 2 (g) of the Act of 2008 does not exclude

private Universities established by State enactment or Universities

established under UGC or deemed Universities. Therefore, the

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provisions requiring recognition of institutions as contained in

Section 28 of the Act of 2008 will apply to private Universities as

well because there is nothing in Section 28 of the Act of 2008 to

exclude private Universities established under enactment. On the

other hand, provisions contained in the enactment establishing

private Universities involved in the present appeals provide that

notwithstanding anything contained in the State enactment

establishing private Universities, the Universities shall be bound to

comply with all the Rules, Regulations and Norms etc. of the

regulating bodies.

We noticed that the order passed by this Court in the cases

of Rajasthan Nursing Council Versus Singhania University

(Supra) as also Rajasthan Para Medical Council Versus

Hitesh Kumar Sharma & Others (Supra) have been stayed by

the Hon'ble Supreme Court and the matters are still pending. We

also find considerable force in the submission made that without

challenging legality and validity of the provisions contained in the

Act of 2008 requiring recognition, relief sought in the writ petitions

could not be granted by the learned Single judge.

In view of the above considerations, the appellants have

made out a strong prima-facie case and the interim orders passed

are not liable to be interfered with except that in view of order

passed in the case of NIMS University Versus Rajasthan Para

Medical Council (Supra), the council would be under an

obligation to grant registration to those who have obtained

diploma, degree prior to 2014 through a regular course, provided

they fulfill the requirements of Regulations 42, Sub-Clause (i) of

the Regulations of 2014 because it has been held in that case that

NIMS University had prior approval of UGC, which is a Government

(14 of 14) [SAW-866/2020]

body. Therefore, to that extent, clarification is being given in this

order that interim order shall not be made a basis to refuse

registration to those students who have obtained diploma or

degree through regular course from NIMS University or other

private University prior to 2014.

Such category of diploma/degree holders shall be granted

Registration forthwith so that they may apply for appointment to

the post of Assistant Radiographer/Lab Technician in the

forthcoming recruitment process, for which last date for

submission of application form is stated to be 30.01.2023.

Though, number of other arguments were also raised by

learned counsel for both the parties, having considered the main

ground on which writ petition have been allowed by the learned

Single Judge, except for clarification, we are not inclined to

vacate the interim order. The application for vacating stay is

accordingly disposed off. Application for issuance of appropriate

directions seeking provisional participation in the process of

selection in forthcoming recruitment process or seeking direction

for provisional Registration are rejected.

These appeals be listed after four weeks for further orders.

(CHANDRA KUMAR SONGARA),J (MANINDRA MOHAN SHRIVASTAVA),J

Sanjay Kumawat-55-116,

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