- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Parvati & ors vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.4480/2005 Samajh Kaur & Anr. vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.4579/2005 DATE OF ORDER :: April 16,2008 P R E S E N T HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.R.S.Saluja, for the petitioners. Mrs.R.R.Kanwar, Addl. Government Counsel. These two writ petitions have been filed for quashing the entire process of selection dated 25/26th July, 2005 undertaken in pursuance of Advertisement dated 9/6/2005 for appointment to the post of Auxiliary Nurse Midwife. Further it is prayed that respondents may be directed to conduct fresh process of selection in accordance with the Medical and Health Subordinate Service Rules 1965 (hereinafter referred to as `the Rules of 1965') in fair manner, thereby providing opportunity for being considered to all eligible candidates and in case such eligible candidates are found fit then to select them. The point involved in these two writ petitions are identical, - 2 - therefore, they are being disposed of by this common order and for convenience facts of S.B.Civil Writ Petition No.4579/2005 (Samajh Kaur & Anr. vs. State & Ors.) are taken into consideration. According to the facts of the case, an advertisement dated 9/6/2005 was issued for providing appointment on the post of Auxiliary Nurse Midwife and in all 570 vacancies were advertised for Districts Barmer and Jaisalmer, out of which 127 posts were declared for Jaisalmer District. In pursuance of said advertisement, application forms were filed by the petitioners and they were called for counseling vide call letter dated 15/7/2005. Similarly, for the purpose of counseling, merit list was also publicised in the newspaper, whereby, cut of marks were shown and candidates were called for counseling on 25/7/2005 in the office of Chief Medical and health Officer, Jaisalmer. The petitioners being in merit were also issued counseling letters and as per the information they reached the office of Chief Medical and Health Officer, Jaisalmer, however, despite being in merit, they were not permitted to enter the premises where the selection process of going on. Therefore, petitioners - 3 - moved an application to the District Collector apprising him of the situation that respondents are not permitting them to even enter the premises. Thereupon, the District Collector directed the petitioners to approach the Chief Medical and Health Officer. Petitioners made their all efforts for the whole day on 25/7/2005 to participate in the selection process but they were not allowed by the authorities and ultimately a joint representation was filed by the petitioners and same was received by the Chief Medical and Health Officer at 7.30 pm. Copy of the joint representation has been filed as Annex.4. According to the petitioners, even at the time of receiving the representation, the process of selection was going on because counseling for 127 seats was to be made. According to petitioners, even after receiving the representation, the Chief Medical & Health Officer, Jaisalmer did not allow the petitioners to participate in the selection process, despite the fact that they were in merit and called for counseling. The respondents denied the opportunity to the petitioners to appear in the counseling for recruitment on the post of Auxiliary Nurse Midwife and thereby they were deprived of their right of consideration to be appointed on the post of Auxiliary Nurse Midwife. According to the information of the petitioners, so many persons having lesser percentage of marks were provided appointment whereas illegally and malafidely claim of petitioners - 4 - to appear in the counseling, though they were called by issuing call letters, has been denied that too on the fake ground that they appeared before the CMHO, Jaisalmer at 7.30 pm and before that selection process was over and now their cases cannot be considered for appointment. The contention of learned counsel for the petitioners is that purpose of counseling is only to check the documents for verification and merit is to be prepared on the basis of marks obtained by the candidates in academic qualification prescribed for the post, so also as per the criteria laid down by the respondents. According to the petitioners, entire process of selection was manipulated and it was manipulated to the extent that persons like petitioners, who stand higher in merit and sure to be selected were not even permitted to participate in counseling and interview though they were called to appear for counseling. It is contended by the petitioner that the manipulation has not started all of sudden but it began from 20/7/2005 onwards inasmuch as in the first instance on 20/7/2005 Dr.Jai Singh Rathore, who was working as Chief Medical and Health Officer, Jaisalmer was kept under awaiting posting orders. The order passed by the State Government on 20/7/2005 has been placed - 5 - on record as Annex.5. It is also stated in the writ petition that Dr. Jai Singh Rathore was immediately relieved and charge of the post of CM & HO was handed over to Dr.M.C.K.Jain. With regard to provisions of law, it is stated in para 7 of the writ petition that according to Rules 16 to 22 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 contained in Part IV provide procedure for direct recruitment and according to Rule 19 of the Rules, 1965, only documents were to be checked for confirming the merit so prepared and according to respondents themselves petitioners were in merit, therefore, they were called for counseling. Learned counsel for the petitioner vehemently argued that it is not humanly possible to complete process of selection of 127 posts in one day because for the purpose of selecting 127 candidates as many as 381 candidates were called and admittedly petitioners were present on the date of selection process so scheduled but they were not allowed to appear for counseling illegally and while ignoring their claim 13 other candidates belonging to OBC category were provided appointment and claim of petitioner was denied only on the ground that they appeared for selection after completion of selection process at 7.30 pm. on 25/7/2005. It is submitted by learned counsel for the petitioners that this stand of respondents cannot be accepted because according to respondents - 6 - themselves the whole process of selection was completed at 10.30 pm in the night, therefore, obviously process of selection was going on when petitioners were allowed to appear before the Chief Medical and Health Officer at 7.30 pm when the petitioners made joint representation. This fact itself is sufficient to disprove the reply of respondents to deny appointment to the petitioners on the post of Auxiliary Nurse Midwife. According to petitioners, respondents have illegally denied right of consideration knowingly well that petitioners are meritorious and they are entitled for appointment but with a view to provide appointment to blue eyed candidates, the claim of petitioners was ignored and thereby patent illegality has been committed by the respondents. Learned counsel for the petitioners specifically pointed out in para nos. 2 and 3 of the reply to rejoinder filed by the respondents, wherein, it is admitted by the respondents that all the candidates present at the time of counseling and they were interviewed by the authorities, whereas, petitioners presented/reported before the authorities after the counseling was over at 7.30 pm. It is further stated in this para that other necessary works after the process of counseling was done by the authorities and entire proceedings for selection competed on 25/7/2005 at 10.30 pm and thereafter result was declared by calling the name of candidates one by one and list of selected - 7 - candidates was pasted on the notice board of the office. Meaning thereby, respondents are admitting that petitioners presented/reported before the authorities but after counseling was over. In rejoinder, it is stated by the petitioners have stated in para no.4 that 13 candidates including petitioners were sent with the S.D.M. At 1.00 pm to the site of counseling but none of the candidates was called for counseling. Later on, at 4.45 pm when the candidates were sent with ADM then they were permitted to entering the site of counseling. In reply to rejoinder, there is no denial of this fact. Meaning thereby, it is clear that petitioners were present on the date of counseling but their claim was ignored by saying that they appeared after the completion of process of selection, therefore, their cases cannot be considered. I have considered the rival submissions of the parties, so also perused the entire case file. In this case, admittedly, petitioners were issued call letters for appearing in counseling as they were found to be in merit for appointment on the post of Auxiliary Nurse Midwife. In all 127 posts were advertised for Jaisalmer District and 381 candidates were called for counseling/interview. All the candidates were - 8 - issued call letters, so also information was publicized in the newspaper. Obviously, petitioners were in merit, therefore, call letters were issued to them. It is not disputed before this Court that petitioners were present on 25/7/2005 but only ground taken by the respondents is that they presented/reported before the authorities at 7.30 pm on 25/7/2005 and by that time counseling was over, therefore, their candidature was not considered. Whereas, petitioners' case is that they were not allowed to even enter the premises where selection process was going on, therefore, in compelling circumstances they met District Collector and SDM and thereafter, they were allowed to enter in the premises and filed representation for allowing them to appear in counseling/interview but they were not interviewed nor counseling was made and appointments were provided to less meritorious persons. In para 4 of the rejoinder, it is specifically stated that 13 outsiders including the petitioners were higher in merit but they were not permitted to appear in counseling. Thereafter, they met the District Collector, who was busy in the meeting with Home Minister (State) and Shri Satya Narain Gupta, a high official in Public Grievance Department ultimately sent all the 13 candidates with SDM at 1.00 pm at the site of counseling but none of the candidate was called for counseling. Later on, at - 9 - 4.45 pm when the candidates like petitioners were sent with ADM then these candidates were permitted to enter the site and made to sit. The respondents in para no.2 and 3 of the reply to rejoinder stated as under: “That in reply to the averments made in paras no.2 and 3 of the rejoinder, it is respectfully submitted that all the candidates present at the time of counseling were interviewed by the authorities; whereas, the petitioners presented/reported before the authorities after the counseling was over. It is also submitted that other works necessary after the process of counseling were being done by the authorities and the entire proceedings concluded on 25/7/2005 at 10.30 pm. & thereafter, the result was declared by calling the candidates by name one-by-one and list of the selected candidates was pasted on the notice board of the office.” Upon perusal of the aforesaid reply to the rejoinder there is no denial to the averments made by the petitioners. Meaning thereby, the contention of the petitioners that they were present during the selection process is proved because rejoinder filed by the petitioners is supported by the affidavit which is not controverted by the respondents. - 10 - In these circumstances, in my opinion, the legitimate right of meritorious candidates like petitioners was ignored only to favour some candidates. In this case, the petitioners are challenging the whole process of selection but the same was over in the year 2005 but it is also obvious from the facts that petitioners were illegally debarred by the respondents knowingly well that petitioners are meritorious and they were called for interview but they were not given any opportunity to participate in the counseling/interview, though they were present on the date of counseling/interview, so also as per provisions of the Rules it is clear that counseling/interview is only for the purpose of checking the documents, therefore, respondents are still under obligation to consider the candidature of petitioners on the basis of their merit because the action of not allowing petitioners to participate in the counseling and interview is in violation of Article 14, 16 and 21 of the Constitution of India. In view of the above discussion, this writ petition is allowed. Petitioners are directed to appear before the respondents and submit their all documents before the respondents within one month from the date of receipt of copy of - 11 - this order. Upon filing the documents by the petitioners, the respondents shall verify the same as required for the purpose of confirming their merit and respondents are further directed to consider the cases of petitioners for providing appointment on the post of Auxiliary Nurse Midwife and if persons having lesser percentage of marks than the petitioners have been provided appointment then petitioners may also be provided appointment if they are otherwise eligible in accordance with law with all consequential benefits from the date when persons with lesser percentage of marks were provided appointment. However, petitioners are held entitled for back wages with effect from date of judgment. No order as to costs. (GOPAL KRISHAN VYAS), J. Pankaj Baweja