IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2139/2008. Reserved on: 22.02.2010. Decided on: 23.2.2010 _____________________________________________ Dr. D.R. Sehgal. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Jyotsna Rewal Dua, Advocate. For the Respondent No. 1: Mr. R.K. Sharma, Sr. Addl. Advocate General and Mr. Rajinder Dogra, Additional Advocate General. For respondent No. 2 : Mr. D.K. Khanna, Advocate. For respondent No. 3 : Mr. K.D. Shreedhar, Advocate. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner has obtained Master Degree in Surgery in the year, 1989. Respondent No. 2 issued an advertisement vide Annexure A-1, dated 11.3.1993, whereby applications were invited by 12.4.1993 for filling up the posts of Specialist in Surgery Class-I. The post was reserved for Scheduled Caste candidates of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Himachal Pradesh only. Following essential qualifications were required to be possessed by the candidates. (i) for the post is the same as indicated E.Q.(i) for the post at Sr. No. 1 above. (ii) M.S. (Surgery/General Surgery), F.R.C.S., Specialty Board of Surgery (USA) or equivalent. (iii) three years work in a responsible position connected with the specialty, after doing post graduation. It will be also apt at this to take note of Note appended to Sr. No. 6, which reads thus: “Note:The qualification regarding experience is relaxable at the direction of HPPSC in the case of candidates belonging to the SC, if at any stage of selection, the HPPSC is of the opinion that sufficient number of candidates from this Community possessing the requisite experience are not likely to be available to fill up the vacancy reserved for them.” Petitioner and respondent No. 3 applied for the post of Specialist in Surgery. They were called for interview on 21.5.1993. Respondent No. 2 recommended the name of respondent No. 3 for the post of Specialist in Surgery. The case of the petitioner, in nutshell, is that respondent No. 3 was not possessing essential qualification of three years work in a responsible position connected with the specialty after doing post graduation. The case of respondents No. 2 and 3 precisely, is that the essential qualification was relaxed qua respondent No. 3 on the basis of Note 2 to Himachal Pradesh Health Services Rules, 1974. 3 Ms. Jyotsna Rewal Dua has vehemently argued that the action of respondent No. 2 to call respondent No. 3 for interview for the post of Specialist in Surgery was illegal, arbitrary and unjustifiable, thus violative of Articles 14 and 16 of the Constitution of India. She then contended that respondent No. 3 has obtained M.S. degree on 29.10.1991 and was not possessing essential qualification of three years work in a responsible position connected with the specialty after doing post graduation. Mr. R.K. Sharma, learned Senior Additional Advocate General, Mr. D.K. Khanna and Mr. K. D. Shreedhar, Advocates have vehemently argued that the relaxation clause has rightly been invoked by the Himachal Pradesh Public Service Commission, on the basis of which the candidature of respondent No. 3 was considered. I have heard the learned counsel for the parties and gone through the pleadings carefully. Petitioner obtained his Master degree, i.e. M. S. in the year, 1989. He was fully eligible and qualified to be considered for the post of Specialist in Surgery Class-I on the basis of Annexure A-1. He was interviewed alongwith respondent No. 3 on 21.5.1993. The essential qualifications required have already been taken note of in the opening portion of the judgment. It is abundantly clear from Sr. No. 6 of the advertisement that the candidate to be considered for the post of Specialist in Surgery was required to be in possession of three years work in a responsible position connected with the specialty after doing post graduation. Respondent No. 3 obtained 4 post graduation on 29.10.1991. He had only one year and six months experience at the time of interview, i.e. 21.5.1993. Mr. D.K. Khanna and Mr. Shreedhar have drawn the attention of the Court to Note appended to Sr. No. 6. The Court is of the considered view that relaxation clause could only be invoked in case candidates with essential qualifications were not available. In the present case, petitioner was fully eligible and qualified to be considered for the post of Specialist in Surgery Class-I and in these circumstances, it was not at all open to respondent No. 1 to invoke Note-2 to Himachal Pradesh Health Services Rules, 1974 for giving relaxation to respondent No. 3. It is well settled position in service jurisprudence that essential qualification cannot be relaxed. In the present case, the action of respondent No. 2 to give relaxation to respondent No. 3 with regard to experience is arbitrary and illegal. The Recruitment and Promotion Rules are required to be scrupulously followed. The Court disapproves the manner in which the exemption clause has been invoked by respondent No. 2 in the facts and circumstances of the case. Ms. Jyotsna Rewal Dua has also brought to the notice of the Court that respondent No. 3 has already left the job and is doing private practice. Mr. D.K. Khanna has faintly argued that the relaxation was given to respondent No. 3 to enlarge the zone of consideration since sufficient number of candidates were not available. This plea merits rejection. In the present case, petitioner was available and his candidature alone was to be considered as 5 per the Himachal Pradesh Health Services Rules, 1974 for the post of Specialist in Surgery Class-I. Mr. D.K. Khanna has also argued that since the petitioner has participated in the selection process, he is precluded from assailing the appointment of respondent No. 3 to the post of Specialist in Surgery Class-I. It is true that generally when a candidate participates in a selection process, he is precluded to assail the same. However, in the present case, respondent No. 3 was not at all qualified since he lacked the essential qualification/experience. In these circumstances, the petitioner is not precluded from assailing the appointment of respondent No. 3 and the principle of estopple and acquiescence shall not apply {see: (1997) 9 S.C.C. 527}. In these circumstances, the action of respondent No. 2 to grant relaxation to respondent No. 3 is declared illegal, arbitrary and unconstitutional. It is reiterated that the essential qualification/possession of minimum qualification/length of service etc. cannot be relaxed. It will also be pertinent at this stage to take note of the interim orders passed by the Tribunal on 25.5.1993 whereby the appointment of respondent No.3 was made subject to the final outcome of the petition. Consequently, in view of the observation made hereinabove, the petition is allowed. The appointment of respondent No. 3 made pursuant to interview held on 21.5.1993 to the post of Specialist in Surgery Class-I is declared illegal. Respondent No. 2 is directed to recommend the case of the petitioner to respondent No. 1 for 6 appointment to the post of Specialist in Surgery Class-I on the basis of interview held on 21.5.1993 with all the consequential benefits. Needful be done within a period of four weeks from today. However, it is made clear that while implementing the judgment, it shall be open to respondent No.1 to take into consideration the services petitioner has rendered as HPHS-II (GDO-II) since November, 1989 for the purpose of calculating the monetary benefits. There will, however, be no order as to costs. (Rajiv Sharma), Judge 23.2.2010 *awasthi*