Kamlesh Kumar Sharma vs State of Rajasthan and Others

Bela M. Trivedi, J.—With the consent of the learned counsels for the parties, the petition has been heard finally at the admission stage.

The petitioner by way of present petition has challenged the action of the respondent No. 2-RPSC, in selecting the respondent No. 4 for the post of Associate Professor-Samhita (Maulik Sidhant), though he did not possess the requisite qualification and in placing the petitioner at S. No. 1 in the reserved list. He has also sought direction against the respondents to give appointment to the petitioner on the said post.

The short facts giving rise to the present petition are that the petitioner had applied for the post of Associate Professor-Samhita (Maulik Sidhant) pursuant to the advertisement dated 26/2/2014 issued by the respondent No. 2-RPSC. The education qualification as required in the said advertisement for the said post was as under:--

"2Associate Professor:-(A) A degree in Ayurved from a University established by law in India or a statutory Board/Faculty/Examination body or Indian Medicine or its equivalent as recognized under Indian Medicine Central Council Act, 1970; and (B) A Postgraduate Qualification in the subject/speciality concerned included in the Schedule to Indian Medicine Central Council Act, 1970; and (C) Teaching experience of 5 years'' in the concerned subject(Reader will be treated as Associate Professor); Desirable-Research including Research degrees and has made some mark in the areas of scholarship as evidenced by quality or publication contribution to educational renovation, design of new courses and curricula". 4. The petitioner being post graduate and having requisite teaching experience was called for the interview held on 24/11/2014, along with the other candidates. The petitioner and the respondent No. 4 both had appeared for the interview on the said date. The respondent No. 2 RPSC thereafter published the result on 25/11/2014, whereby the respondent No. 4 was selected for the said post, and the petitioner was shown at S. No. 1 in the waiting list. According to the petitioner, the respondent No. 4 did not possess the requisite qualification as per the condition mentioned in the advertisement, inasmuch as he did not have the teaching experience for five years in the subject Samhita (Maulik Sidhant). It is also alleged by the petitioner that the respondent No. 4 was working as Lecturer in the respondent No. 3 College since 2007, however was sent on deputation to work in the office of Minister Shri Raj Kumar Sharma in the year 2010, and thereafter he was working as the Registrar, Rajasthan Ayurved Nursing Council as per the order dated 4/10/2013, and therefore he did not have the requisite teaching experience as Lecturer for the said subject.

The petition has been resisted by the respondents by filing separate replies. The respondent No. 2-RPSC has tried to justify the selection of the respondent No. 4 by stating inter alia that the respondent No. 4 possessed the experience certificate issued by the respondent No. 3-College to the effect that he was working as Lecturer since 17/9/2007, and that the Interview Board after adjudging the performance, ability, eligibility and teaching experience possessed by the respondent No. 4 had recommended his name for appointment putting the petitioner in the waiting list. The respondent No. 4 has also filed the reply denying the allegations made in the petition, and further contending inter alia that he is having post graduate degree in Maulik Sidhant and he was appointed on the post of Ayurved Chikitshak Adhikari on 27/4/2000, and thereafter he was directed to work as the Lecturer in the department of Maulik Sidhant at the respondent No. 3 College vide order dated 21/8/2007. According to him, he was continuously working on the said post since then, however he was sent to work in the office of Minister vide the order dated 13/1/2010, and thereafter was appointed as the Registrar, Rajasthan Ayurved Nursing Council vide the order dated 4/10/2013. It is also contended that while working in the office of Minister, he was performing the work of teaching, and therefore was fully qualified for the appointment on the post of Associate Professor Maulik Sidhant. The respondent No. 1 and 3 also have filed the reply in support of the replies filed by the other respondents. The petitioner has filed the rejoinder to the said replies.

It is sought to be submitted by the learned counsel Mr. Amit Jindal for the petitioner that apart from the fact that the respondent No. 4 was working in the office of Minister since 2010, and therefore he could not be said to be working as a Lecturer in the respondent No. 3 College, his experience at respondent No. 3-college also could not be counted as teaching experience as his appointment as Lecturer on temporary basis was illegal and was subject to the result of the D.B. Civil Writ Petition No. 2576 of 2011, which is pending before this Court. Placing reliance upon the decision of Apex Court in the case of State of Gujarat and Others Vs. Arvindkumar T. Tiwari and Another, , he submitted that the person, who did not possess the requisite qualification on the date of making of application could not be considered and selected for the post. However, the learned counsel Mr. Nitin Jain for the respondent RPSC submitted that considering the teaching experience and performance of the respondent No. 4 at the time of interview, the Interview Board had selected him for the said post. The learned counsel Mr. O.P. Mishra for the respondent No. 4 also submitted that while working in the office of the Minister, the respondent No. 4 was doing the work of holding examination etc. in the Ayurved College which should be treated as his teaching experience. Relying upon the experience certificate Ex. R/4/10, he submitted that the respondent No. 4 was working as Lecturer (Maulik Siddhant) continuously since 2007, and therefore could be said to be eligible and possessing the requisite qualification for the post in question. Placing reliance on the decision of the Apex Court in case of The University of Mysore and Another Vs. C.D. Govinda Rao and Another, , he submitted that High Court should be slow in interfering with the selection and appointment made by the RPSC considering the qualification, and experience of the respondent No. 4. He also relied upon the various decisions of this Court to submit that the allegations of malafides should be clearly established by the petitioner which he has failed to do so, and the respondent No. 4 being otherwise qualified, his selection should not be disturbed more particularly when he has already been appointed and is working on the post.

Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the petitioner as well as the respondent No. 4 had applied for the post of Associate Professor, Samhita (Maulik Siddhant) pursuant to the advertisement dated 26/2/2014. As per the condition No. 2(Kha) of the said advertisement, the candidate should have possessed a degree in Ayurved from University established by law in the India etc. and should be a post graduate in the subject/specialty concerned i.e. Samhita (Maulik Siddhant)and the teaching experience of five years in the concerned subject. It is not disputed that the petitioner possessed the requisite education qualification as well as the teaching experience of five years in the concerned subject. It is also not disputed that the respondent No. 2-RPSC had declared the result selecting the respondent No. 4 for the said post and placing the petitioner at S. No. 1 in the waiting list. Since the petitioner had challenged the very selection of the respondent No. 4 for the said post by way of present petition, the Court while issuing the notice to the respondent vide the order dated 8/12/2014 had directed that any appointment other than the petitioner on the said post shall be subject to the result of the present petition. It appears that the respondent No. 1 has thereafter appointed the respondent No. 4 pursuant to the selection made by the respondent No. 2 on the said post.

As regards the experience of the respondent No. 4 as Lecturer, it is relevant to mention that the Department of Personnel had issued one notification on 25/1/2011, by which Rule (6) and Rule (31) of the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 were amended, according to which the Medical Officers working on the post of Lecturer in Madan Mohan Malviya Government Ayurved College, Udaipur for last seven years were permitted to be absorbed on the said post. The said notification having been challenged by the petitioner named Dr. Anup Kumar Indoriya, the Court had stayed the operation of the Rule in question vide the order dated 7/9/2011. The said order was further confirmed by the Division Bench vide the order dated 9/7/2012. In the said petition, the respondent No. 4 and others being aggrieved by the said interim order had made an application for impleading them as the party respondents, and the same was allowed. It appears that thereafter the Division Bench on the another application moved by the State Government, had modified the said order and permitted the State Government to implement the notification dated 25/1/2011, however the same was made subject to the final outcome of the writ petition. The said writ petition is still pending before the Division Bench. The respondent No. 4 along with the other Lecturers similarly situated and working in the respondent No. 3-College therefore have not been absorbed as Lecturers and even their appointment as the Lecturer is also under challenge in the said writ petition.

At this juncture, it is further required to be noted that as alleged by the petitioner and admitted by the respondent No. 4 in his reply, the respondent No. 4 was directed to work in the office of Minister Mr. Raj Kumar Sharma as per the order dated 13/1/2010, when he was working as Lecturer in the respondent No. 3-College. It is also not in dispute that thereafter he was working as Registrar, Rajasthan Ayurved Nursing Council since 4/10/2013. Meaning thereby, the respondent No. 4 is not working as Lecturer in the respondent No. 3-College at Udaipur since January, 2010. Though it has been sought to be contended by the learned counsel for the respondent No. 4 that when the respondent No. 4 was sent on deputation to work in the office of Minister, he was also performing the duty like taking examination at various places, and therefore his said work should be considered as teaching work, the Court cannot accept such submission. The Court fails to understand as to for what purpose the respondent No. 4 was sent to work in the office of Minister for such a long period of more than three years, and that too without naming any post. As such no government servant can work in any office without being posted on a particular post. If he was working as officer on special duty in the office of Minister, he could not be said to be doing the teaching work by any stretch of imagination. Even if he had helped at some places for taking examination while working in the office of Minister, that also could not be counted as his teaching experience. It is pertinent to note that he is working as Registrar since October, 2013 at Rajasthan Ayurved Nursing Council still he has the audacity to produce the certificate dated 23/6/2014 - Annexure-R/4/10 issued by the Principal of the respondent No. 3-College to the effect that he is working as Lecturer (Maulik Siddhant) since 17/9/2007. Such a certificate which is ex facie false appears to have been considered by the respondent No. 2-RPSC to select him for the post. There is no explanation coming forth in the reply filed by the respondent No. 2-RPSC as to why the petitioner who is fully qualified academically and experience-wise has been placed at S. No. 1 in the waiting list and why the respondent No. 4, who did not have the requisite teaching experience and who had produced false documents on record to show his teaching experience, was found to be more suitable for the post in question. Such a selection made by the respondent No. 2-RPSC smacks of arbitrariness, and therefore deserves to be set aside. As rightly submitted by the learned counsel for the petitioner, relying upon the decision of Apex Court in case of State of Gujarat and Ors. v. Arvind Kumar Tiwari and Anr. (supra), the person who does not possess the requisite qualification cannot even apply for the recruitment for the concerned post, otherwise his appointment would be contrary to the statutory Rules, and therefore void in law.

In that view of the matter, selection and the appointment of the respondent No. 4 as the Associate Professor, Samhita (Maulik Siddhant) being arbitrary and illegal deserves to be set aside and the petitioner who is fully eligible and at S. No. 1 in the waiting list deserves to be appointed on the said post.

For the reasons stated above, the selection/appointment of the respondent No. 4 is hereby quashed and set aside. The respondents are directed to consider the petitioner for the appointment on the post of Associate Professor, Samhita (Maulik Siddhant) forth with.

The petition stands allowed accordingly. By this order, the stay application and other pending application, if any also stand disposed of.