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Judgment
Ranjan Sharma, Judge
Petitioner-Narinder Kumar and two others, namely, Namita Devi and Karan Shekhar, filed an Original Application No.4782 of 2018, before Learned State Administrative Tribunal and after the abolition of Tribunal, the matter stood transferred to this Court as CWPOA No.4930 of 2020, seeking the following reliefs:-
“7 (a) That the Respondent may very kindly be directed to quash the illegal and arbitrary condition (i) requiring the Applicants to pass 10+2 with Science (Physics, Chemistry & Biology), prescribed in the notification dated 7th July, 2018 (Annexure A-5 (Colly) for recruitment to the post of Operation Theatre Assistant (Post Code-642).
(b)That the Respondent may kindly be directed to consider the Applicants for recruitment to the post of Operation Theatre Assistant (Post Code-642).”
At the very outset, Learned Counsel appearing for the petitioners, states that since petitioner No.1-Narinder Kumar has joined Government service and, therefore, the claim is confined only qua petitioners No.2 and 3-Namita Devi and Karan Shekhar, respectively. [Statement is taken on record].
FACTUAL MATRIX:
Case as set up by Learned Counsel is that petitioner No.2-Namita Devi passed her 10+2 examination in Commerce Group in March 2003 with subject-combination of English, Economics, Accountancy, Business Study and Sanskrit and she also passed her Diploma in Operation Theatre Technology from Punjab Technical University. Petitioner No.3-Karan Shekhar had passed his 10+2 from Science Group in March 2011 with subject-combination of Mathematics, Physics, Chemistry and Physical Education. He passed Diploma in Operation Theatre Technology from Baba Farid University of Health Sciences in 2016. It is averred that Respondent-Commission-Himachal Pradesh Staff Selection Commission, Hamirpur, issued an Advertisement No.33-2/2017 on 16.09.2017 [Annexure A-4], inviting applications for filling-up 113 posts of Operation Theatre Assistant [Class-III] on contract basis under Post Code:642. It is averred that the petitioners applied for the posts and as per communication dated 07.07.2018 [Annexure A-5 (colly)], the Respondent-Commission called the petitioners for evaluation for 15 marks for the post of Operation Theatre Assistant. It is averred that the Respondent-Commission has rejected their candidature erroneously, on the ground, that the petitioners did not possess 10+2 with Science [Physics, Chemistry and Biology] with 50% marks from recognized Board of School Education/Institution as required for said post.
3(i). Petitioners have assailed Condition (i) of the Advertisement invited on 16.09.2017 [Annexure A-4], on the ground that the Respondent-Commission could not carve out ineligibility for advertised post of Operation Theatre Assistant, when, on the basis of 10+2 Qualification, without subject-combination of Physics, Chemistry and Biology, once the petitioners were allowed to undergo and pass the Operation Theatre Training Course from an Institution recognized by Government, then, the Condition No.(i) in Advertisement requiring 10+2 with Science with specific subject-combination, was illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
STAND OF RESPONDENTS-CORPORATION:
Pursuant to the issuance of notice on 13.08.2018, the Respondent-Commission has filed Reply-Affidavit dated 12.10.2018 of Secretary of the Respondent-Commission.
4(i). Reply-Affidavit indicates that the Respondent-Commission advertised the posts of Operation Theatre Assistant on contract basis on 16.09.2017. It is averred that essential qualifications for the post of Operation Theatre Assistant as prescribed in Recruitment and Promotion Rules, read as under:-
“(i)Should be 10+2 with Science (Physics, Chemistry and Biology) with 50% from a recognized Board of School Education/ Institution.
(ii)Must have passed OTA Training course from a recognized Institution by the State Government.
OR B.Sc. Degree in Medical Technology (Anesthesia & OT Techniques) from Himachal Pradesh University or equivalent Degree recognized by the State Government Persons holding Graduate Degree in Medical Technology (Anesthesia & OT Techniques) will be preferred.
(iii)Should be registered with H.P. Para Medical Council.”
In above backdrop, it is averred that the Respondent-Commission had issued an Advertisement on 16.09.2017 [Annexure A-4] strictly in conformity with the Recruitment and Promotion Rules as extracted hereinabove and petitioners were ineligible for the post as they did not possess 10+2 with Science with subject combination of Physics, Chemistry and Biology, with 50% marks, in terms of the Statutory Recruitment Rules and the Advertisement.
4(ii). Reply-Affidavit states that the petitioners have passed professional qualifications in Operation Theatre Technology/Assistant from outside the State and mere registration with Himachal Pradesh Medical Council will not make the petitioners eligible for the post, in question; and rejection of petitioners, being ineligible, for want of required Educational Qualifications, does not suffer from any infirmity; and the petitioners, being ineligible, cannot be considered for appointment for aforesaid posts; with the prayer to dismiss the writ petition.
REBUTTAL:
Petitioners have chosen not to file any rejoinder, so as to rebut the averments made in the Reply-Affidavit.
Heard, Mr. Ankit Chandel, Advocate appearing vice Ms. Manju Dhatwalia, Learned Counsel, for the petitioners and Mr. Angrez Kapoor, Learned Counsel, for the Respondent-Commission.
ANALYSIS:
Taking into account the entirety of facts and circumstances and material on record, this Court is of the considered view, that rejection of candidature of the petitioners-Namita Devi and Karan Shekhar, for the post of Operation Theatre Assistant in terms of Advertisement dated 16.09.2017 [Annexure A-4] does not suffer from any infirmity or illegality, for the following reasons:-
7(i). Respondent-Commission has taken a specific stand in Para-3 of the Reply-Affidavit that vide Advertisement dated 16.09.2017 [Annexure A-4], applications were invited for the post of Operation Theatre Assistant which mandated that the candidates should be 10+2 with Science [subject combination of Physics, Chemistry and Biology] with 50% marks and must have Operation Theatre Training Course recognized by the State Government or from persons who possess B.Sc. Degree and other alternative qualifications; and secondly, once the Advertisement dated 16.09.2017 [Annexure A-4] is in conformity with Recruitment and Promotion Rules as reproduced hereinabove, then, the petitioners cannot have any grievance, unless, the Recruitment and Promotion Rules, as referred to above, were questioned and were adjudicated upon in legal proceedings; and thirdly, the petitioners in the instant case, have admittedly not assailed the Recruitment and Promotion Rules for post of Operation Theatre Assistant, which requires 10+2 with Science with Physics, Chemistry and Biology; and fourthly, nothing has been placed on record by the petitioners to assert and establish that the Condition No.(i) of Advertisement dated 16.09.2017 [Annexure A-4] or a similar requirement in the Statutory Rules were contrary to any Statutory Enactment, so as to show indulgence, in instant case; and fifthly, once the State Authorities in its wisdom had prescribed the specific qualifications of “10+2 Science [Physics, Chemistry and Biology] with 50% marks” and the petitioners do not possess 10+2 with Science with subject-combination of Physics, Chemistry and Biology but petitioner No.2-Namita Devi had passed 10+2 with Commerce Group with subjects combination of English, Economics, Accountancy, Business Study and Sanskrit and likewise, petitioner No.3-Karan Shekhar had passed his 10+2 from Science Group but without the subjects combination of Biology, then, in such an eventuality, both the petitioners being ineligible in terms of Recruitment and Promotion Rules and Advertisement do not have any enforceable right to seek consideration and resultant appointment for the post of Operation Theatre Assistant; and sixthly, conferring eligibility on the petitioners despite being ineligible in terms of Statutory Recruitment and Promotion Rules and the Advertisement shall lead to selection of ineligibles, which shall tantamount to fraud on the Constitutional ethos of Articles 14 and 16 also; and seventhly, the prescription of subject- combination of Physics, Chemistry and Biology, in considered view of this Court, has a rationale, for the reason, that the incumbents who are to be recruited as Operation Theatre Assistants, have basic minimal knowledge of human/biological conditions and therefore, the prescribed qualification requiring Biology to be one of the subjects, has a rationale and is valid and lastly, it is the prerogative of the State to prescribe the qualifications for the post. Nothing has been placed on record nor asserted and established that the qualification prescribed in the Statutory Recruitment Rules or the Advertisement and condition No.(i) of Annexure A-4 [at page 38 of paper book] suffers from any illegality or perversity or is contrary to any Enactment. Moreover, there is no ambiguity in the Recruitment and Promotion Rules or the subject-advertisement then, the petitioners do not have any enforceable claim in view of the mandate of the Hon’ble Supreme Court in Chandra Shekhar Singh and others Versus State of Jharkhand and others, (2025) 9 SCC 740. Moreover, the stipulations contained in the Advertisement cannot be ignored and Court cannot relax the conditions contained in the Advertisement, as mandated by Hon’ble Supreme Court in Sanjay K. Dixit and others Versus State of Uttar Pradesh and others, (2019) 17 SCC 373 [Para 12]. Once the State Authorities have spelt out the eligibility criteria and the stipulations contained in the Advertisement are in conformity with the Statutory Rules, therefore, this Court cannot re-write the Advertisement nor sit over the prescribed eligibility by resorting to an interpretation contrary to the plain language of the Advertisement in view of the principle outlined by Hon’ble Supreme Court in the case of Maharashtra Public Service Commission through its Secretary Versus Sandeep Shriram Warade and others, (2019) 6 SCC 362 [Para 9], in following terms:-
“9.The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive rewriting of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”
In aforesaid backdrop, contention of Learned Counsel for the petitioners lack merit and the same are turned down.
At this stage, Learned Counsel appearing for the petitioners states that the petitioners may be given liberty to assail the Recruitment Rules or to approach Respondent-Authority for relaxation. Without commenting upon the admissibility of liberty, this Court leaves it open for the petitioners to avail appropriate remedy, in case, the same is available in law.
CONCLUSION AND DIRECTION:
In view of above the discussion and for reasons recorded hereinabove, the instant petition is dismissed, in the following terms:-
(i)Instant petition i.e. CWPOA No.4930 of 2020, titled as Narinder Kumar and others v. Himachal Pradesh Staff Selection Commission is dismissed;
(ii)Condition (i) in the Advertisement dated 16.09.2017 [Annexure A-4] for post of Operation Theatre Assistant does not suffer from any infirmity or illegality;
(iii)Condition (i) in Advertisement being in conformity with Recruitment and Promotion Rules for the post of Operation Theatre Assistant, is upheld;
(iv)Rejection of candidature of the petitioners being in accordance with Rules and law, is upheld;
(v)Parties to bear their own costs.
In aforesaid terms, instant petition stands disposed of alongwith all pending miscellaneous application(s), if any.
Footnotes
- 1.Whether reporters of Local Papers may be allowed to see the judgment?