1. This bunch of writ petitions have been filed for a direction upon the respondents to appoint them to the post of Lab Technician/NCD-NPCDCS-NCD Clinic CHC. Appointment is being claimed by the petitioners on the basis of an advertisement issued by the National Health Mission, Department of Health and Family Welfare, Uttar Pradesh on 22.7.2017, whereby contractual appointment was proposed to be made in the National Rural Health Mission (NRHM). Vide advertisement dated 22.7.2017, contained in Annexure-1 to the writ petition no.10716 of 2018 vacancies have been advertised for different posts including the post of Lab Technician. The advertisement also contains the qualification prescribed for the post of Lab Technician i.e. intermediate alongwith diploma in Medical Laboratory Technology, together with working experience in a large hospital for minimum period of two years. Basic knowledge of computer and data processing is also required. A note is appended at the bottom that registration of candidate under respective Medical/Paramedical/Nursing Council, as applicable, is mandatory. All the petitioners have duly applied pursuant to advertisement and have been selected. Petitioners were then informed to appear before the District Health Society of which the Chief Medical Officer happens to be the convener, for joining. Petitioners, however, have not been allowed to join pursuant to their selection on the ground that their qualification in Medical Laboratory Technology is from institutions of other States and they have not yet been registered with Uttar Pradesh State Medical Faculty (hereinafter referred to as 'UPSMF').
2. Petitioners contend that there was no stipulation in the advertisement that registration of candidate under respective Medical/Paramedical/Nursing Council would mean registration with UPSMF, and that their registration with medical faculty of other States would amount to sufficient compliance in terms of the advertisement. It is also stated that the provisions of Uttar Pradesh Laboratory Technician (Medical Health and Family Welfare Department) Service Rules 1994 (hereinafter referred to as 'Rules of 1994') would not be attracted, inasmuch as appointment offered in the present case is to the post of Lab Technician in the NRHM scheme, which is a centrally sponsored, while the Rules of 1994 would govern appointments to be made by the State Government. The petitioners further contend that a requirement not specified in the advertisement otherwise cannot be made a condition precedent for appointment. Judgments of the Apex Court in Tej Prakash Pathak vs. Rajasthan High Court, (2013) 4 SCC 540, Prakash Chand Meena and others vs. State of Rajasthan and others, (2015) 8 SCC 484 and judgment of Delhi High Court in Stuti Ranjan vs. Govt. (NCT of Delhi), (2016) SCC Online Del 14 are relied upon in support of petitioners' contention.
3. Respondents, on the other hand, contend that the advertisement clearly prescribes the requirement of registration of candidate under respective Medical/Paramedical/ Nursing Council with UPSMF. Since registration with UPSMF is otherwise compulsory, by operation of law, the denial by respondents to allow the petitioners to join on account of absence of their registration with UPSMF is valid.
4. The advertisement dated 22.7.2017 is on record. The qualification of diploma in laboratory services by any recognized institution approved by State/Government as also the registration from State Laboratory Technician Council is clearly warranted. A note is otherwise appended in the advertisement specifying that registration under respective Medical/Paramedical/Nursing Council, as applicable, is mandatory.
5. The Court is apprised of the fact that then Government of United Provinces had established United Provinces Board of Medical Examination in 1917. By a subsequent notification dated 10.11.1926 the then Lieutenant Governor on the basis of a resolution had constituted United Provinces State Medical Faculty, which continues to subsist as the body competent to regulate imparting of education in paramedical field. The Central Government had also conferred jurisdiction upon it under the Indian Medical Degrees Act, 1926 to grant degrees/diploma etc. or to recognize institutions or register those who are practicing western medical sciences. With passage of time different bodies came to be constituted to regulate grant of medical education in State of Uttar Pradesh i.e. U.P. State Medical Council; U.P. Dental Council; U.P. Nurses & Midwives Council etc. So far as the diploma in Lab Technician or allied subjects are concerned, requirement of registration with UPSMF has continued to subsist throughout. The State of Uttar Pradesh has also framed service Rules of 1994 in which a specific requirement has been incorporated for Lab Technician to be registered with UPSMF. Rule 8 of the rules of 1994 reads as under:-
"8- iz;ksx'kkyk rduhf'k;u ds in ij lh/kh HkrhZ ds fy;s vko';d gS fd vH;FkhZ us ek/;fed f'k{kk ifj"kn] m0iz0 dh foKku ds lkFk b.VjehfM,V ijh{kk ;k ljdkj }kjk muds led{k ekU;rk izkIr dksbZ ijh{kk mRrh.kZ dh gks vkSj m0iz0 LVsV esfMdy QsdYVh] y[kuÅ }kjk fn;k x;k iz;ksx'kkyk rduhf'k;u fMIyksek ;k fdlh ekU;rk izkIr laLFkk ls mlds led{k dksbZ fMIyksek j[krk gksA"
6. A Government Order dated 20.12.2003 has also been issued prescribing the parameters for grant of recognition/equivalence to the institutions imparting education in the filed of Lab Technician. The Government Order dt. 20.12.2003 also imposes an additional condition of registration with UPSMF, by virtue of clause 11, which reads as under:-
"mijksDr 'krksZ ds vuqlkj led{k vU; laLFkkvks dk fu/kkZj.k m0 iz0 LVsV esfMdy QSDyVh }kjk fd;k tk;sxk rFkk led{k laLFkkvks ls ySc VsDuhf'k;u dk fMIYkksek izkIr vH;fFkZ;ks dks m0 iz0 LVsV esfMdy QSDyVh es iathdj.k djkuk vko';d gksxk rFkk iathÑr vH;FkhZ gh ySc VsDuhf'k;u ds in ij p;u gsrq vgZ gksxsaA" "
7. The State Government has issued yet another Govt. Order dated 14.10.2005 for grant of recognition to institutions imparting education in different fields including Lab Technician etc. Para 4 of the said Govt. Order is also relevant and is reproduced hereinafter:-
"4. ftu iSjkesfMdy ikB~;dze esa fu;[email protected];eu gsrq dsUnz vFkok izns'k Lrj ij dkmflys xfBr gS mu ikB~;dzeksa ij fu;[email protected];eu dk dk;Z lacaf/kr dkmaflyksa }kjk fd;k tk;sxk ijUrq ftu iSjkesfMdy ikB~dzeksa ds ckjs esa [email protected];Lrj ij dkmafly xfBr ugh gS muds laca/k esa fu;[email protected];eu dk dk;Z m0iz0LVsV esfMdy QsdYVh }kjk fd;k tk;sxkA"
8. Sri Adarsh Bhushan, learned counsel appearing for the UPSMF has produced before the Court a government gazette of United Provinces published for July to December, 1926, which contains the notification dated 10.11.1926. Clause 1 of the gazette reads as under:-
"1. There will be established State Medical Faculty in the United Provinces of Agra and Oudh to be formed "the United Provinces State Medical Faculty", for the purpose of enabling persons who desire to practice Medicine, Surgery and Midwifery according to the methods of western medical science, after proper testing and examination, to receive a diploma or licence testifying to their adequate training and proficiency in these sciences."
9. Section 3 of the Medical Degrees Act, 1916 clearly restricts the right of conferring diplomas to practice Western Medical Sciences only on the basis of permission granted by the authority specified for the purposes. Section 3 of the Act of 1916 reads as under:-
"3. Right to confer degrees, etc. - The right of conferring, granting or issuing in the [State] degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practise western medical science, shall be exercisable only by the authorities specified in the schedule, any by such other authority as the [State Government] may, by notification in the [Official Gazette], and subject to such conditions and restrictions as [it] thinks fit to impose, authorize in this behalf."
10. By virtue of Article 372 of the Constitution of India, the Act of 1916 as well as rules framed thereunder and notifications issued by the then Government would clearly be saved and shall continue to be applicable unless the requirement is done away with by having recourse to law.
11. From the statutory scheme noticed above, this Court finds that registration with UPSMF for the purposes of practicing Western Medical Sciences including the work of Lab Technician would be subject to grant of necessary recognition and registration with the competent body i.e. UPSMF. The advertisement also prescribes the need of registration with the competent body in accordance with law. The petitioners, therefore, cannot be permitted to say that requirement of registration with UPSMF would mean that the terms of advertisement are violated if registration is made mandatory. The respective council for the State of Uttar Pradesh would only be the UPSMF.
12. So far as the judgments in Tej Prakash Pathak (supra), Prakash Chand Meena and others (supra) and Stuti Ranjan (supra) referred by Mrs. Vatsala on behalf of the petitioners is concerned, it is clearly not applicable in the facts of the present case. The judgments would be applicable in a case where terms of advertisement is sought to be amended by the recruiting body, after issuance of advertisement, which would amount to change in the conditions of recruitment itself. Such exigency do not arise in the facts of the present case. The requirement of recognition and registration with UPSMF is by operation of law and was in existence on the date of issuance of advertisement itself. Even the advertisement clearly refers to the need of a candidate getting himself registered in accordance with the applicable provisions. Therefore, the requirement of registration cannot be objected to by the petitioners on the grounds set out in these petitions.
13. It may be relevant to refer to a judgment of Lucknow Bench of this Court in Writ Petition (S/S) No.2350 of 2017 (Mahendra Veer Vikram Singh and others vs. State of U.P. and others), dated 14.2.2017, in which the requirement of registration with UPSMF was made compulsory in view of the notification dated 20.12.2003 and the advertisement issued without specifying such requirement was not approved. The observation contained in the judgment dated 14.2.2017 is reproduced hereinafter:-
"The requisition sent by the department of Medical and Health Services to the Commission for making direct recruitment against the post in question does not disclose that the Commission was ever apprised either of the judgement and order dated 23.05.2003 or the Government Order dated 20.12.2003. The requisition only mentions that the recruitment be made in accordance with Service Rules as amended upto date.
In absence of the necessary information having been made available to the Commission by the State Government or the department concerned, no fault can be found with the Commission in not having included the eligibility condition for appointment against the post in question in terms of the Government Order dated 20.12.2003.
It has been stated by learned counsel for the petitioners that the Government Order dated 20.12.2003 became subject matter of challenge before this Court in Writ-A No. 64102 of 2013; Shailesh Kumar vs. State of U.P. and others. This Court while deciding the said petition by means of judgement and order dated 25.11.2013 did not find any justification to interfere with the Government Order dated 20.12.2003. The Government Order dated 20.12.2003, thus, having been affirmed by this Court by means of the aforesaid order, has to be given effect to by the selecting body while making selection/appointment to the post in question. However, in absence of the requisite informations/materials which the State Government and the concerned department were required to furnish to the Commission, the apparent discrepancy in the advertisement appears to have crept in.
Learned Standing Counsel representing the State-respondents has produced a letter dated 13.02.2017 written by the Director General, Medical and Health to the Secretary, U.P. Subordinate Services Selection Commission wherein a mention of Government Order dated 20.12.2003 has been made and the Commission has been requested to conduct the selection in terms of the said Government Order dated 20.12.2003. The said letter dated 13.02.2017 is also taken on record.
It appears that after filing of these petitions serious churning took place both in the State Government and the department concerned as well as in the Commission.
It is in this background that the Director General, Medical and Health Services has written a letter dated 13.02.2017 to the Secretary, U.P. Subordinate Services Selection Commission to hold the selection keeping in view the provisions contained in the Government Order dated 20.12.2003.
Learned counsel representing the U.P. Subordinate Services Selection Commission has produced a letter dated 13.02.2017 whereby it has been stated by the Secretary of the Commission that since the Government Order dated 20.12.2003 was not interfered with by this Court in its judgement and order dated 25.11.2013 passed in Writ-A No.64102 of 2013; Shailesh Kumar vs. State of U.P. and others, it has been decided by the Commission that only those candidates for the post of Lab Technician shall be considered for selection who are registered with U.P. State Medical Faculty.
In view of the aforesaid actions taken at the end of Commission as well as at the end of State Government and the department concerned, it appears that the situation has now been salvaged and remedied as well.
In view of the aforesaid facts, nothing needs to be adjudicated any further in these petitions.
Accordingly, the petitions are disposed of with the direction to the Commission to proceed with the selection against the posts in question in accordance with law and also taking into account the provisions contained in Government Order dated 20.12.2003.
It may further be observed that it is common knowledge that the State of U.P. is facing scarcity of Paramedical staff which are urgently needed and hence, the Court expects and hopes that the entire selection process initiated on issuance of the impugned advertisement shall be completed expeditiously and for the said purpose, the merit list prepared earlier on the basis of written examination without taking into consideration the provisions contained in the Government Order dated 20.12.2003 shall be redrawn and accordingly the interview shall be held. The entire process for selection shall be completed expeditiously, say, within a period of three months from today.
This order shall be communicated to the authorities of the Commission by learned Standing Counsel as well as counsel for the Commission.
Before parting with the case, I deem it appropriate to observe that despite faced with the problem and difficulty of scarcity of Paramedical Staff in the State of U.P., the government departments which had sent the requisition to the Commission for making recruitment to the post in question, have not been cautions. Even prior to issuing the advertisement, which is under challenge in this petition, another advertisement dated 16.06.2016 for making recruitment to the posts which are subject matter of the present advertisement, was challenged on certain grounds. The Court while allowing the said petition by means of the order dated 19.08.2016 quashed the said advertisement and directed the Commission to issue notification for recruitment afresh. The said judgement and order 19.08.2016 was necessitated on account of the fact that earlier also the department had not apprised the Commission of the applicability of the correct Service Rules.
Such a lackadaisical approach on the part of concerned departments of the State Government not only reflects laxity but also irresponsible conduct on their part for the simple reason that despite faced with paucity of Paramedical employees throughout the State of U.P., they have not been careful enough to have provided the relevant and correct information and documents to the Selection Commission in relation to holding the selection/recruitment to the post in question. The Court expects the departments of the State Government to be cautions enough while sending the requisitions to the Commission for making selection/recruitment which may not result in failure of the process of selection once initiated.
There will be no order as to costs."
14. The aforesaid judgment was then challenged before the Division Bench in Special Appeal Defective Nos.145 of 2017. Para 3 of the division bench judgment notices the dispute raised before the Court in following words:-
"3. The gensis of the dispute as appears from a perusal of the impugned judgment and the facts brought on record appears to be arising out of the equivalence of the qualification and eligibility criteria as prescribed for selection and appointment against the post of a Lab Technician in the departments of Medical and Health Services and the Medical Education and Training, State of U.P."
The Division Bench noticed the contention advanced on behalf of the respondents in appeal in para 10, which is reproduced hereinafter:-
"10. The contentions on their behalf is that the Government Order dated 20.12.2003 still continues to exist and its applicability has already been upheld by the judgment dated 25.11.2013. In such circumstances, the appellants who are mere qualified candidates of the written examinations cannot claim a right of appointment on the strength of a procedure, which has failed to comply with a compulsory condition of eligibility. It is urged that any lapse in mentioning the terms and conditions of eligibility in the advertisement will not confer a corresponding right on the appellants to claim a right to be selected and appointed. It is, therefore, submitted that the learned Single Judge has not committed any error in proceeding to issue a direction for revisiting the select list."
The aforesaid contention of respondents was accepted in following terms contained in para 12:-
"12. We have considered the aforesaid submissions and after having heard learned counsel for the parties, we find that a selection, which is being held bereft of the compulsory rules of eligibility cannot be said to be a valid selection and consequently, if the selection is sought to be rectified by introducing the said compulsory eligibility criteria, we do not find any error in the direction issued by the learned Single Judge in applying the said eligibility conditions, if it has been deliberately omitted to be mentioned in the advertisement. A mere omission would not alter the terms and conditions of eligibility inasmuch as that by itself would violate Article 16 of the Constitution of India."
However, as specific requirement of registration was not mentioned in the advertisement, the appellants were permitted to obtain registration from UPSMF within a reasonable period.
15. In view of what has been observed by Division Bench, the requirement of obtaining registration from UPSMF cannot be successfully resisted by the petitioners. Challenge laid to the impugned action, on such ground, therefore, fails. No direction can be issued to appoint the petitioners without obtaining registration from UPSMF.
16. However, considering the fact that some doubts may have existed with regard to obtaining of prior registration from UPSMF, it would be appropriate to provide that petitioners may get themselves registered with UPSMF by making appropriate application in the manner prescribed forthwith. If such an application is made for registration, alongwith certified copy of this order, before the UPSMF, the same shall be processed in accordance with law, within a period of six weeks. After obtaining such registration in case petitioners apply for joining, they would be allowed to join provided the posts continue to remain vacant as on date. For a period of three months or till the petitioners join alongwith certificate of registration from UPSMF, respondents shall not proceed to make any fresh appointment against posts on which petitioners are selected.
17. Writ petition is, accordingly, disposed off.
Order Date :- 31.10.2018.
Ashok Kr.
(Ashwani Kumar Mishra, J.)