Parvesh Gautam vs Ministry Of Health And Family Welfare & Ors.

Hon’ble Mrs. Harvinder Kaur Oberoi, M(J)

The present OA has been filed by the applicant seeking the following reliefs:-

The brief facts of the case are that the applicant is a registered Occupational Therapist (OT) with the Registrar of Delhi Council for Physiotherapy and Occupational Therapy, bearing Registration No.OT.229, valid up to 01.08.2019, and has been regularly practicing OT for the past six years.

Respondents nos.1 and 2 issued a vacancy notice/advertisement No. 01/14 for recruitment to multiple posts, including Occupational Therapist (OT) / Recreational Therapist (RT) posts, under various categories. The desired qualifications for the post of OT were F.Sc/Pre-Medical/Hr.Secondary with science and Diploma in Occupational Therapy from a recognized institution with 2 years experience in a hospital (desirable), on a pay scale of Rs.9300-34800 with Grade Pay Rs.4200/-. The candidates were to apply online only and no documents were to be sent along with online applications for the said post. It was made clear in the advertisement that only the successful candidates in the examination for the said post will be required to submit a copy of the challan, legible self-attested/Gazetted officer/Notary Public attested copies of documents along with hardcopy of printout of online application form at the time of verification of documents.

Respondent no.2, was to conduct a One Tier Examination (T) for multiple posts, which included the Post Code: 2/14 (OT/RT) as per the advertisement. The said exam was to be conducted in Sections A & B, provided if the number of candidates applying for the Post Code: 2/14 (OT/RT) exceeds more than 100 but less than 500, respondent no.2 shall conduct a screening test to shortlist the candidates and the final selection shall be made based on Academic Record, Experience and Interview of the shortlisted candidates. It was also specified that respondent no.2 may shortlist the candidates for written examination based on marks in the qualifying exam in case there are a large number of candidates.

For the Post Code: 2/14 (OT/RT), respondent no.2 took only the screening test to shortlist the candidates,per their policy in the advertisement. Respondent no.2 at the time of declaration of results to the said Post Code: 2/14 drew a reserved panel/waiting list in addition to candidates selected as per the notified vacancies, and the ones arising due to non-acceptance of offer of appointment or due to resignation of selected candidates, within one year of joining the post, shall be filled up from the reserve/waiting list.

The applicant had applied in SC Category, for the Post Code: 2/14 (OT/RT). Respondent no.2 through Notification No.F.55(1036)/DSSSB/ EXAM/2014/1059-1065 dated 09.05.2014 informed the candidates appearing for the said examination that a common screening test (multiple choice questions) of 1 hour duration will be held by them as per new screening test scheme/interview policy to shortlist the candidates.

The applicant appeared in the written screening examination on 25.05.2014. The written screening test results were declared online on 03.06.2014, vide letter no.F.8(1) /Int.Cell /DSSSB /2014/358 dated 03.06.2014. Applicant scored 63.25, which is the highest mark in his category, and was shortlisted amongst others for an interview to be held on 05.08.2014. Finally, respondent no.2 declared result no.319 for the Post Code: 2/14 (OT/RT) on 18.5.2015.

It is the case of the applicant that, the result of the aforesaid examination was declared after nearly one year of the interview held by respondent no.2. The applicant was at Sl.No.1 in the list of candidates in the reserved panel/wait-listed candidate in the SC category.

The selection was, subjected to the eligibility conditions as per the Act No.7 of 1997. The eligibility conditions include a valid registration certificate from the Delhi Council for Physiotherapy and Occupational Council, along with the authenticity of experience certificates as also the credibility of institutions issuing the experience certificates. Mere inclusion in result notice does not confer any right upon the candidate over the post and respondents reserve their right to rectify errors and omissions, if any, found later in the aforesaid selection procedure.

According to the applicant, the selection criteria adopted by respondent no.2 for filling the Post Code: 2/14 (OT/RT) was arbitrary and in violation of the Delhi Council for Physiotherapy and Occupational Therapy Act of 1997 framed by respondent no.1; and that the selection of respondent no.4 to the post of OT/ RT is patently arbitrary in the present case and the same is liable to be quashed. Accordingly, he submitted a representation to Respondent No.2 on 19.02.2016, which, was not decided. Hence, the present O.A. seeking the reliefs as reproduced in the preceding paragraph.

Conversely, the respondents have filed separate counter-replies and rebutted the facts mentioned by the applicant in the O.A. In the reply filed by respondent No.3, it was noted that the impugned result notice No. 3/9 dated 18.05.2015 issued by the DSSSB, Govt. of NCT of Delhi clearly shows that in the SC category, Respondent No. 4 had the highest marks, based on academic assessment + experience + interview. Respondent No.4 is a Master in Occupational Therapy (3 years course) from the University of Mumbai, KEM Hospital. Besides Respondent No.4 had 7 and half years of experience in Occupational Therapy as compared to 6 years of the applicant. Furthermore, Respondent No.4 had scored 90 marks out of 100 and Applicant has scored 73 marks out of 100. Accordingly, the contentions of the applicant are denied. Experience of Respondent No.4 is valid as per law and her registration under the Delhi Council for Physiotherapy and Occupational Therapy Act No. 7 of 1997 also cannot be denied under the Act. Respondent No.4 was duly enrolled since 2004, with the Delhi Council for Physiotherapy and Occupational Therapy; hence the delay in renewal of the said enrolment is merely a procedural defect, which can be cured by the process of renewal of the registration along with payment of fine for the intermittent period. The delay in renewal of the registration does not make the enrolment of Respondent No.4 as an OT with the Delhi Council for Physiotherapy and Occupational Therapy otiose.

Further, according to respondent No.3, the status of registration/ enrolment with the DCPTOT, of the three candidates stated to be selected and one candidate, i.e., the applicant herein, in the waiting panel, is as follows:-

Singh

We have heard learned counsel for the parties at some length and have also perused the material brought on record.

The applicant's plea is that respondent No. 4 has been illegally and arbitrarily selected for the post. According to the applicant, respondent no.4 did not fulfill the criteria are per RR’s.The RR’s for the post of Occupational Therapist post are as follows.

Being a registered practitioner is an essential requirement per Section 41 of the DCPOT ACT 1997.

The applicant was registered with ^DCPOTRT from 26.08.2009 to 25.08.2014 and then again from 01.09.2010 to 31.08.2019. The advertisement was issued on 27.01.2014 with closing date 27.02.2014.

Respondent no.4 initially got registered on 21.01.2004 which expired on 20.01.2009. She got her registration renewed on 09.09.2016 to 08.09.2021. As such R-4 was not registered on the crucial date. Later on the applicant got her self-registered by paying a late fee. The late fee submitted by the applicant has been accepted by the council.

During the period R-4 was not registered with the council, she was registered with the All India Occupational Therapist Association as a life member since 2006.

Out of the total posts 3 were reserved for SC candidates and applicant was at Sl. No.in the waiting panel. As such since the R-4’s registration was not valid on the crucial date, Applicant was next in line after R-4, for appointment. If the documents had been carefully studied by respondents at the relevant time perhaps it would have been the applicant to get the appointment.

On 23.02.2024 two officials from the Council -R-3, were present before the Tribunal, with records from the Council/Register. This tribunal has recorded submissions of the Counsel for R-3 and the two officials.The same is reproduced as under:-

Officers from the council have clearly stated that non-renewal of a license results in cancellation of the same.

Given the above, offer of appointment should rightly have gone to the applicant instead of respondent no.4. However even R-4 is not at fault since no relevant information has been concealed by her for taking the appointment. Hence this is a fit case where respondents, who are at fault for not being circumspect and meticulous earlier while processing the case of appointment; and are now morally and legally bound to make amends and ensure that there is no further miscarriage of justice. In our considered opinion ends of justice would be met if respondents are directed to issue an offer of appointment to the applicant, of course after due verification and on completing other formalities. The said appointment will be against any other sanctioned vacant post, in case a vacant post is not available then a supernumerary post be created temporarily to adjust the applicant till a vacancy arises.

We are not issuing any directions to the detriment of R-4, since we have already held that R-4 is not at fault.

OA is disposed of accordingly. No order as to costs.