CIVIL WRIT PETITION NO.4190 OF 1982 :{ 1 }: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 4190 of 1982. Date of Decision: 27th February, 2008. Dr. Ranbir Singh & Ors. ...Petitioners through Dr. Balram Gupta, Sr. Advocate with Mr. Pankaj Sharma, Advocate. Versus State of Punjab & Ors. ...Respondents through Mr. Palwinder Singh, Sr. DAG, Punjab. Mr. D.S.Nalwa, Advocate, for respondents NO. 3 to 27. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT,J. In this Civil Writ Petition, the petitioners seek a writ in the nature of certiorari not only for quashing of the advertisement (Annexure P-1) but also the selection of respondents No.3 to 27 to the posts of Homeopathic Physicians made pursuant thereto. A writ in the nature of mandamus is also sought to direct respondent No. 2 to make the selections strictly in accordance with the qualifications laid down in the Homeopathy Central Council Act, 1973 (for short “the Act”). The petitioners further seek a direction to the official respondents to allow them to continue as Homeopathic Physicians CIVIL WRIT PETITION NO.4190 OF 1982 :{ 2 }: on ad-hoc basis and not to terminate their services. [2]. The facts may be noticed briefly. [3]. The Punjab Public Service Commission (in short “the Commission”) issued advertisement No. 30 (Annexure P-1) whereby applications were invited by 19th February, 1979 for two posts of Homeopathic Physicians. The following qualifications were prescribed for the advertised posts:- “i) Four years Diploma in Homeopathic system of Medicine duly recognized by Punjab Government; (ii) must be registered with Punjab State Homeopathic Council; (iii) Punjabi of Matric or equivalent standard. Those who do not possess such qualification shall have to pass Punjabi test to be held by the Commission before interview”. [4]. It appears that no further steps were taken pursuant to the advertisement (Annexure P-1) for a long period. Rather, a Corrigendum was issued on 9th January, 1982 (Annexure P-2) whereby in partial modification of the original advertisement No. 30 (Annexure P-1), total advertised posts were increased from two to twenty nine. The last date for receipt of the applications was also extended upto 25th January, 1982. [5]. The petitioners as well as private respondents No. 3 to 27 applied in response to the afore-stated advertisement and all of them, except petitioner No. 4, appeared before the Commission and CIVIL WRIT PETITION NO.4190 OF 1982 :{ 3 }: were interviewed. The candidature of petitioner No. 4 was, however, rejected as she had not acquired the requisite age on the cut-off date. [6]. On 14th September, 1982, the selection result was published in the daily news-papers. While names of respondents No. 3 to 27 were recommended by the Commission for appointment, petitioners No. 1 to 3 could not make it. [7]. Aggrieved at the selection of the private respondents and their non-inclusion in the final selection list, the petitioners have approached this Court. [8]. I have heard learned counsel for the parties and have perused the material on record including the original interview sheets summoned from the Commission. [9]. Two fold contentions have been raised by learned counsel for the petitioners. Firstly, it is argued that no person can be permitted to hold the office as Homeopathic Physician in the Government or any institution maintained by a Local or other authority unless the “medical qualification” possessed by him is included in the Second or Third Schedule to the Act. It is pointed out that some of the selected candidates have admittedly acquired their Homeopathic Diploma from the Councils of Homeopathic System of Medicine, Chandigarh and Rajasthan which were not included in the Second Schedule to the Act till 25th January, 1982 which was the last date for submission of applications. The second contention is that CIVIL WRIT PETITION NO.4190 OF 1982 :{ 4 }: the Commission did not lay down any objective criteria for selection and recommendations have been made arbitrarily over-looking the higher/additional qualifications and experience possessed by the candidates. [10]. On the other hand, learned State Counsel as well as learned counsel representing the private respondents have contended that neither any candidate lacking the prescribed qualification for the advertised posts has been appointed nor the criteria followed by the Commission can be termed to be arbitrary. [11]. In order to appreciate the rival contentions, relevant part of Section 15(1) and (2) of the Act which describes 'rights' of the persons possessing qualifications included in 2nd and 3rd Schedule of the Act, may be extracted and the same reads as follows:- “15(1) Subject to the other provisions contained in this Act, any medical qualification included in the Second or Third Schedule shall be sufficient qualification for enrollment on any State Register of Homeopathy. (2) No person, other than a practitioner of Homeopathy who possesses a recognized medical qualification and is enrolled on a State Register or the Central Register of Homeopathy,- (a) shall hold office as Homeopathic physician or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practise Homeopathy in any State; [c] shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required CIVIL WRIT PETITION NO.4190 OF 1982 :{ 5 }: by any law to be signed or authenticated by a duly qualified medical practitioner; (d) shall be entitled to give any evidence at any inquest or any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to Homeopathy. Xx xx” [12]. Section 21(1) of the Act has also some bearing on the controversy involved in this case and the same reads as follows:- “21. The Central Register of Homeopathy.- (1) The Central Council shall cause to be maintained in the prescribed manner, a register of practitioners of Homoeopathy to be known as the Central Register of Homeopathy which shall contain:- (a) in Part I, the names of all persons who are for the time being enrolled on any State Register of Homeopathy and possess any of the recognized medical qualification; (b) in Part II, the names of all persons, other than those included in Part I, who are for the time being enrolled on any State Register of Homeopathy. (2) xx xx” [13]. As may be seen from Section 21(1)(b) of the Act, the persons who are not possessing “recognized medical qualifications” have also been accepted on the State Register and their names have been included in Part-II of the Central Register. If one reads Section 15(1) in this back-drop, it would be borne out that if a person possesses any of the qualifications included in 2nd or 3rd Schedule of the Act, then no other qualification is to be insisted upon for inclusion CIVIL WRIT PETITION NO.4190 OF 1982 :{ 6 }: of his name in the State-Register. Similarly, if a person possesses a recognized medical qualification and his name is entered in the State Register, he can be appointed as Homeopathic Physician in Government Service. [14]. In Para No. 5 of its written statement, the State of Punjab has taken the following stand:- “Para 5. Admitted. But subsequently vide Government Memo No.1(410)4HBIV-80/7713 dated 12.3.1980, the qualifications for the purpose of appointment to the posts of Homeopathic Physicians were revised as under:- (i) Degree or Diploma in Homeopathy from the institutions mentioned in the second and third schedule of the Homeopathy Central Council Act, 1973. (ii) Matric or its equivalent; (iii) Knowledge of Punjabi of Matric or its equivalent standard. In addition, DHMS (Dimploma awarded by the Council of Homeopathic System of Medicine, Punjab, Chandigarh is also recognized for the purpose of appointment to Government Service. The above qualifications were also conveyed to the Punjab Public Service Commission vide endst. No.AY-E2-Pb.-80/9890 dated 14.4.1980”. [15]. It is, thus, apparent that the Diploma awarded by the Council of Homeopathy System, Punjab has been 'recognized' by the State of Punjab as a 'valid qualification' for appointment to the Government service. It is for this precise reason that in the advertisement (Annexure P-1) it was stipulated that the candidates CIVIL WRIT PETITION NO.4190 OF 1982 :{ 7 }: must possess four years Diploma in Homeopathy System of Medicine “duly recognized by the Punjab Government”. [16]. The petitioners were fully aware that the Diploma awarded by the Council of Homeopathy System, Punjab at Chandigarh is recognized by the State of Punjab and all those candidates who possessed medical qualification recognized by the Punjab Government, were fully eligible to apply in terms of the advertisement (Annexure P-1). If the petitioners had any grievance against the description of the qualifications in the advertisement (Annexure P-1), they ought to have impugned the same immediately when it was published instead of applying in response thereto and taking a chance for their own selection. It is too late for the petitioners to challenge the prescription of qualifications in the advertisement after the selection process is over. [17]. There is yet another aspect of the matter. The Central Government has issued a notification dated 5th June, 1982 (Annexure R-1), though, after the cut-off date (25th January, 1982) whereby four year Diplomas awarded by the Rajasthan Board of Homeopathic Medicine, Jaipur as well as of the Council of Homeopathic System of Medicine, Punjab, have been recognized “from 1979 and 1978 onwards” respectively. It can not be then said that the candidates who possessed Four Years Diploma Course awarded by the Rajasthan or Punjab Councils of Homeopathic System of Medicine did not possess the requisite qualification. It was not a case of lack of CIVIL WRIT PETITION NO.4190 OF 1982 :{ 8 }: any inherent qualification. Rather, the procedural hazards of sub- section (2) of Section 13 of the Act kept the Diplomas awarded by both the Councils covered under the dust which were neatly dusted to glow by their 'recognition' from the due dates. The notification dated 5th June, 1982 has, thus, rectified the irregularity, if any, attached to the qualifications of some of the private respondents. [18]. For the reasons afore-stated, I do not find any merit in the first contention. [19]. Adverting to the second issue, namely, laying down of an arbitrary criteria for selection by the Commission, it is not in dispute that it was a case of selection by 'interview' only and no 'written examination' was prescribed. As held by their Lordships of the Supreme Court in the cases of (i)Dr. Keshav Ram Pal v U.P.Higher Education Services Commission, AIR 1986 SC, 597 and (ii) Anzar Ahmad v State of Bihar & Ors. (1994) 1 SCC, 150 when selection is based upon 'interviews' only, it is not mandatory for the selecting authority to sub-divide the total marks under different heads. Similarly, the marks for viva-voce need not be restricted within the maximum limit prescribed for it by the Apex Court in the case of Ashok Kumar Yadav v State of Haryana, (1985) 4 SCC, 417. [20]. The records from the Commission were summoned and original interview-sheets have been perused. It appears from the interview-sheets that the candidates have been awarded marks for CIVIL WRIT PETITION NO.4190 OF 1982 :{ 9 }: academic qualifications and their performance in the viva-vice only. It is true that some of the candidates had experience to their credit and this fact was apparently in the knowledge of the Interviewing Committee(s) also, yet no marks have been awarded to them for the experience. However, in this regard, a uniform criteria/pattern has been followed by the Commission without any pick and choose method. [21]. In order to minimize the 'subjectivity' and to rule out the element of arbitrariness in a selection process, it is ideal and desirable that the marks are also awarded for higher qualifications, experience or for any other meritorious achievement of a candidate. However, if in a given selection process, no marks are awarded for a particular event though uniformly, per-se it would not term the entire selection process so arbitrary to be struck down by the High Court in exercise of its writ jurisdiction. The original interview-sheets completely rule-out the element of 'arbitrariness' or adoption of any 'mechanical manner' in the present selection process. [22]. For the reasons afore-stated, I do not find any merit in this writ petition which is accordingly dismissed, however, with no orders as to costs. February 27 , 2008. ( SURYA KANT ) dinesh JUDGE