Civil Writ Petition No. 94 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No. 94 of 2011 Date of decision:- 01.09.2011 Tilak Raj and others ...Petitioners Versus State of Punjab and others ...Respondents 2. Civil Writ Petition No. 459 of 2011 Harinderjit Singh Malli ...Petitioner Versus State of Punjab and another ...Respondents 3. C.O.C.P. No. 178 of 2011 in C.W.P. No.94 of 2011 Tilak Raj and others ...Petitioners Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mrs. Alka Chatrath, Advocate (in CWP Nos.94 and 178 of 2011) Mr. Balram Singh, Advocate (in CWP No.459 of 2011) for the petitioner(s) . Ms. Kavita Arora, AAG Punjab. Civil Writ Petition No. 94 of 2011 -2- RITU BAHRI J. The writ petitions mentioned above are being taken up together as the same are based on same facts. For the same of convenience the facts are being taken up from CWP No.94 of 2011. These writ petitions under Article 226 of the Constitution for issuance of appropriate writ in the nature of certiorari for quashing the show cause notices Annexures P-8 and P-12 (in CWP No.94 of 2011), impugned order dated 22.12.2010 Annexure P-9 (in CWP No.459 of 2011) proposing to terminate the services of the petitioner(s) who are working as Radiographers in Health & Family Welfare Department, Punjab on the ground that they are not eligible for the post of Radiographer. The petitioners have applied for the post of Radiographer in pursuance to advertisement dated 6.6.2006 (Annexure P-1) whereby 115 posts of Radiographer on contract basis were advertised. The essential qualification for the post has been mentioned as Matric from any recognized Institution or Board with Physics and Chemistry as subjects and two years' Radiographer Course from any recognized Institution. The extract of the public notice is given below :- Sr. No. Name of Post Posts to be filled in Salary (in figures) Educational/P rofessional qualification 3 Radiographer 115 Rs.6800/- per month (consolidated) Matric from any recognized Institution or Board with Physics and Chemistry as subjects and two years' Radiographer Course from any recognized Institution. Respondent No.2 issued a public notice on 01.9.2006 inviting application for various posts including 115 posts of Radiographer, the Civil Writ Petition No. 94 of 2011 -3- qualification for the post of Radiographer was 10+2 with Science (Physics, Chemistry and Biography) and two years' Radiographer Course from any recognized institution. In the public notice, it was mentioned that the candidates who had already applied for these posts in response to the earlier advertisement dated 6th June 2006 need not apply again and their earlier applications will be considered. The petitioners have passed the diploma prior to the year 1992 and admission to the two years Radiographer post was Matric, which was subsequently made 10+2 after the year 1992. Vide public notice dated 17.12.2006 a cut of percentage was fixed by the respondents for various categories as under :- Sr. No. Category Percentage of Ophthalmic/Radio grapher Diploma/ Degree Date and time of verification of original certificate 1 Ophthalmic Officer (General Category Above 59.03 20.12.06 09.30 AM 2 Radiographer (General Category) Above 49.17 20.12.06 09.30 AM 3 Radiographer (Scheduled Tribe) Above 50.00 20.12.06 09.30 AM 4 Radiographer (Scheduled Caste-1 (Mazhbi Sikh & Balmiki) Above 60.00 20.12.06 09.30 AM 5 Radiographer (Scheduled Caste-2) (Other Scheduled Caste) Above 64.73 20.12.06 09.30 AM 6 Radiographer (Handicapped) Above 51.82 20.12.06 09.30 AM After declaring the result appointment letters were issued to the petitioner Nos.3,4 and 5 for the post of Radiographers on 22.12.2006 by respondent No.2. Petitioner No.1 was appointed on 27.9.2008 and petitioner No.2 was appointed on 4.6.2009 on the post of Radiographers. The time of selection a mistake was committed whereby all the reserved category candidates Civil Writ Petition No. 94 of 2011 -4- who had higher marks than the last candidate of General Category were appointed in the quota reserved for them. Some candidates approached this Court by filing Writ Petition No.4296 of 2007 titled 'Sarabjit Singh and another versus State of Punjab and others' and petitioner No.2 filed Writ Petition No.18558 of 2008. During the pendency of the writ petition it was admitted on the statement made by counsel for the State the petitioners in the reserved category who had secured more marks in the General Category were adjusted and the post vacated by them were offered to the petitioners in Writ Petitions No.4296 of 2007 and 18558 of 2008. Show cause notices were issued by respondent No.2 to petitioner Nos.1,4 and 5 vide order dated 21.10.2010 and to petitioner Nos.2 and 3 vide order dated 25.11.2010 stating that they are not eligible to be appointed as Radiographers on the ground that they do not have fulfil the eligible qualifications as per the advertisement with the following qualifications :- “1. 10+2 with Science (Physics, Chemistry and Biology) 2. 2 Years Radiographers Course from recognized Institute.” All the petitioners were matriculate and as per the advertisement dated 1.9.2006 they were not qualified for the post of Radiographers. Ms. Alka Chatrath, counsel for the petitioners vehemently argued that as per the initial advertisement dated 6.6.2006 (Annexure P-1) the petitioners were fully eligible and they have submitted their applications. Their applications were duly accepted and they were appointed on different dates i.e. petitioner Nos.3,4 and 5 were appointed on 22.12.2006, petitioner No.1 was appointed on 27.9.2008 and petitioner No.2 was appointed on 4.6.2009. After due selection they have been appointed. Vide public notice dated 1.9.2006 there was a condition that the candidates, who had already applied need not apply again. The petitioners who were eligible as per the first advertisement dated Civil Writ Petition No. 94 of 2011 -5- 6.6.2006 did not make second applications and these petitioners have been selected treated as eligible. Admission to the course of Radiography was matric prior to 1992. All the petitioners have completed their two years Radiography course before the date. Hence, they are eligible for all intents and purposes. Ms. Chatrath has argued that the post of Radiographer is governed by Punjab Health and Family Welfare Technical (C) Services Rules 2007. As per Appendix 'B' at Serial No.32 qualification for the post of Radiographer is as under :- Sr. No. Designation of the post Percentage for appointment by Method of appointment, qualification and Experience for appointment by Director appointment Promotion 1 2 3 4 5 6 32 Radiographer Hundred percent -- (i) Should have passed the Senior Secondary Part-II Examination in Science or its equivalent from a reocgnized university or institution; and (ii) Should possess a diploma in Radiography from a recognized university or institution These rules have come into existence on 11.6.2007 cannot be made retrospectively applicable to a selection, which was conducted in pursuance to advertisement dated 6.6.2006 (Annexure P-1) and dated 1.9.2006 (Annexure P-2). In the affidavit filed by Dr. Jagdish Pal Singh, Director, Health and Family Welfare Punjab in which stand was taken that vide Punjab Government Civil Writ Petition No. 94 of 2011 -6- Notification dated 7.4.1993 (Annexure R-1) minimum basic qualification for admission to the course of D.M.L.T. And Radiographer was fixed as 10+2 with Science (Physics, Chemistry and Biology) and thereafter on 6.6.2006 115 posts of Radiographers were advertised in which qualification was published as matric and two years Radiography Course. Keeping in vi3ew this qualification a fresh public notice was issued on 01.9.2006 (Annexure P-2). The qualification in the public notice with the note that the candidates who had applied earlier need not apply again, was meant only for 10+2 candidates with Radiography course. Thus, respondent No.2 has terminated the contract of all seven matriculate candidates vide order dated 22.12.2010 and 06.1.2011. I have heard learned counsel for the parties and have gone through the case file carefully. A short question for consideration is whether the petitioners who have completed the course of Radiography prior to year 1992 will become ineligible to be appointed as Radiographers in pursuance to the advertisement dated 1.9.2006 (Annexure P-2) whereby the prescribed qualification for Radiography is 10+2 with Science with two years Radiography course from a recognized university or institution. It is not disputed by the State that the petitioners have undergone two years Radiographers course from a recognized institute. Petitioners are being considered ineligible on the ground that after notification dated 07.4.1993 wherein minimum basic qualification for the admission to the course of D.M.L.T. and Radiographer was fixed as 10+2 with Science (Physics, Chemistry and Biology) or its equivalent recognized by Punjab Government. The notification at best can be perspective in nature to mean that all admissions made for the post of Radiography. All the private institute associated with the Radiography course were to admit a student with basic qualification of 10+2. This does not render the degrees awarded by this institute prior to 1993 for Radiography Course as redundant or this notification de- Civil Writ Petition No. 94 of 2011 -7- recognized these degrees prior to 07.4.1993. Once the degrees prior to 1993 were not de-recognized all the students who had studied this course were carrying valid degrees as per the public notices dated 6.6.2006 (Annexure P-1) and dated 01.9.2006 (Annexure P-2). At best the degree of Radiography which is after the notification of 1993 which is completed by a student of matric with science is liable to be rejected. It is not a case of the respondents that degrees possessed by the petitioners have been de-recognized. The petitioners have been worked on the said post on contract basis since 2006 and over period of time they have enough experience. After amending of the rules in the year 2007 the petitioners have filed a notice to Advertisement No.3 of 1997 (Annexure P- 20) in which the prescribed qualification for the post of Radiographer was matric with Physics, Chemistry from a recognized University/Board and two years diploma in Radiography from a recognized University/Institution. This diploma was after the notification (Annexure R-1) whereby the admission to the post of Radiographer was made mandatory by the students of 10+2. In pursuance to the instructions dated 8.3.2011 (Annexure P-21) the Director Health and Family Welfare, Punjab vide order dated 30.6.2011 regularized the services of 50 Radiographers working on contract basis against regular sanctioned posts in the scale of Rs.5910-20200 plus Rs.3000 Grade Pay. On one hand the Department is regularizing the services of contractual Radiographers who have completed three years of services and on the other hand they are taking the plea that as per Punjab Health and Family Welfare Technical (C) Services Rules 2007 the qualification for appointment on the post of Radiographer has been prescribed as 10+2 with Science (Physics, Chemistry and Biography) and two years' Radiographer Course from any recognized institution. The petitioners are eligible for all intents and purposes and these rules cannot be made applicable to the advertisement issued on 6.6.2006 and 6.9.2006. All the petitioners were Civil Writ Petition No. 94 of 2011 -8- eligible to be appointed to the post of Radiographers as after facing the selection process they have joined as per their merits. The writ petition is allowed and the order dated 22.12.2010 (Annexure P-16 in Civil Writ Petition No.94 of 2011) is hereby quashed. 01.09.2011 ( RITU BAHRI ) Vijay Asija JUDGE