Suman Ola and Others vs State and Others

Gopal Krishan Vyas, J.�Heard learned counsel for the parties.

In all above writ petitions, common question is involved for quashing the condition of Para 15 of the advertisement dated 30.04.2012 whereby, it is provided that candidates shall submit a proof of acquiring educational qualification as on 15.09.2008 to consider their candidature for appointment on the post of Village Ayurvedic Chikitsak.

As per facts of the case, in the year 2009, vacancies of Village Ayurvedic Chikitsak were advertised but selection process was questioned before this Court at Jaipur Bench in S.B. Civil Writ Petition No. 5259/2009 (Anoop Indoriya Vs. State of Rajasthan) in which while deciding the aforesaid case, the entire process of selection was quashed with direction to conduct a fresh selection process vide judgment dated 29.04.2011.

In the aforesaid judgment, detailed reasons were given for quashing the selection process on the post of Village Ayurvedic Chikitsak and respondents were directed to hold fresh selection on the said post after determining criteria for selection.

The respondents after making compliance of directions issued in Anoop Indoria''s case issued an advertisement dated 30.04.2012 in that advertisement, Para 15 was incorporated with regard to qualification of the candidates. In all above writ petitions, petitioners are challenging the said Para 15 in which qualification for the post in question was prescribed to the extent of asking the candidate to produce the proof of education qualification which is acquired on or before 15.09.2008.

Learned counsel for the petitioners submit that in all above writ petitions, the petitioners are challenging the above notification on the ground imposition of such condition in Para No. 15 to acquire educational qualification on or before 15.09.08 is totally illegal because no such direction was issued by the coordinate Bench of this Court at Jaipur in Anoop Indoria''s case to restrict the selection only for those candidates who acquired qualification upto 15.09.08. Petitioners acquired degree in between 2009 and 2011 but due to fixing above cut off date 15.09.08 by the respondents in the fresh advertisement dated 30.04.2012 after following the directions issued in Anoop Indoria''s case, the respondent department refused to treat all those candidates who acquired qualification on or before 15.09.08 eligible for post.

Learned counsel for the petitioners vehemently argued that there is no nexus or rational for imposing such condition so as to curtail right of all the eligible candidates who were possessing qualification on or before submitting application form in pursuance of advertisement dated 30.04.2012 which is 25.05.2012, therefore, as per arguments of petitioner denial of consideration of candidates who acquired qualification after 15.09.08 is totally illegal and violative of fundamental right of equality of the candidates on eligibility upto last date of submitting application form on 25.05.2012.

Learned counsel for the petitioner submits that such provision is not provided in the Rules to deny right of consideration, therefore, the illegal condition imposed in para 15 of the advertisement to consider only those candidates who will submit proof of acquiring qualification on or before 15.09.2008 is not sustainable in law, therefore, the respondents may kindly be directed to consider the candidature of those candidates who qualified for the post of Village Ayurvedic Chikitsak on or before 25.05.2012.

Per contra, learned counsel appearing on behalf of respondents submits that advertisement in question has been issued in compliance of the judgment dated 29.04.2011 rendered by this Court at Jaipur Bench in S.B. Civil Writ Petition No. 5259/2009 (Anoop Indoriya Vs. State of Rajasthan) and as per direction in the aforesaid case, the Government determined the criteria for selection which is incorporated in para 21 of the advertisement dated 30.04.2012, therefore, it cannot be said that condition incorporated in the advertisement to acquire qualification upto 15.09.08 is not bad, more so the vacancies have been advertised as per directives of Jaipur Bench of this Court in which date of eligibility is incorporated because in earlier advertisement, only those candidates were eligible, therefore, this writ petition may be dismissed.

After hearing learned counsel for the parties, I have perused condition No. 15 incorporated in the advertisement dated 30.04.2012 which reads as under:--

I have also perused the judgment rendered by Jaipur Bench of this Court dated 29.04.2011 passed in S.B. Civil Writ Petition No. 5259/2009 (Anoop Indoriya Vs. State of Rajasthan) in which following directions were issued:--

"1. For the detailed reasons given in the judgment, selections and appointments made by the respondents on the post of Rural Ayurvedic Chikitsak are held to be illegal. Accordingly, respondents may hold fresh selection to the aforesaid posts after determining the criteria for selection. Selections may then be held on that criteria and each candidate may be awarded marks so as to determine comparative merit. The candidates, who had earlier appeared in the selection, may be issued call letters without requiring them to submit forms and be treated as eligible taking note of the earlier date of selection.

After undertaking the process of selection as indicated aforesaid and as otherwise provided under the Rules of 2008, respondents may notify the select list and give appointment on the post of Rural Ayurvedic Chikitsak.

Looking to the peculiar facts and circumstances of the case and to avoid sufferance of the public at large in rural areas in absence of Ayurvedic Chikitsak, it is directed that till process of selection as per the Rules of 2008, based on proper criteria for selection and determination of merit is undertaken, selected and appointed candidates apart from other candidates may not be disturbed. However, if any candidate, already appointed, is not selected in the fresh selection then he may vacate the regular post for newly selected meritorious candidate.

The endeavour of the respondents should be to have transparent, fair and proper selections with intention to select best and meritorious candidates."

Upon perusal of aforesaid directions issued by the coordinate Bench in Anoop Indoria''s case, it is nowhere provided that only those candidates who possess qualification upto 15.09.08 shall be considered for appointment. In fact, the respondents are suo motu interpreted the above order and took decision to grant opportunity to compete only to the candidates who acquired qualification upto 15.09.08. In the opinion of this Court, there is no rational or force of law behind such decision whereby, the right of consideration of eligible candidates are curtailed who acquired qualification upto the last date of submission of application form fixed in the advertisement i.e. 30.04.2012.

As per rules, it is the duty of welfare State to determine year wise vacancy and after advertisement of the vacancy to provide opportunity to all the eligible candidates in view of Article 14, 16 & 21 of the Constitution of India. It emerges from the facts of this case that without any direction by the Jaipur Bench in case of Anoop Indoria, the department took decision to grant eligibility to only those candidates who were possessing qualification for appointment on the post of Village Ayurvedic Chikitsak upto 15.09.08 but this action of respondent department is unconstitutional because for public employment, it is obligatory duty of the State to provide equal opportunity to all the eligible candidates who were possessing qualification on the last date of submitting application form mentioned in the advertisement.

On the basis of above discussion, I am of the view that criteria laid down for eligibility in the advertisement to only those candidates who were possessing qualification for appointment on the post of Village Ayurvedic Chikitsak upto 15.09.08 is unconstitutional because in the Rajasthan Rural Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 2008, it is nowhere provided that after determination of vacancies, the candidates who were eligible upto the date of determination of vacancies will be eligible for appointment. Therefore, the condition to possess relevant qualification for the post of Village Ayurvedic Chikitsak upto 15.09.08 is hereby quashed and set aside and it is held that the candidates who were possessing qualification for the post in question upto 25.5.2012 shall be treated eligible for appointment on the post in question and respondents are hereby permitted to proceed for selection in pursuance of advertisement dated 30.04.2012 after following aforesaid directions.

The writ petitions are allowed in above terms.