IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.3890 of 2009 and CWP No.3539 of 2009. Decided on: 13th May, 2010. 1. CWP No.3890 of 2009. Dr. Jyoti Verma. …Petitioner. Versus State of H.P. & ors. …Respondents. 2. CWP No.3539 of 2009. Dr. Jyoti Verma. …Petitioner. Versus State of H.P. & ors. …Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes. For the petitioners : Mr. Bimal Gupta, Advocate for the petitioners in both the writ petitions. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General, for respondents No.1 and 2 in both the writ petitions. Mr. Ashwani K. Sharma, Advocate, for respondent No.3 in both the writ petitions. Mr. B.C. Negi, Advocate, for respondent No.4 in CWP No.3890 of 2009. Mr. Ajay Mohan Goel, Advocate, for respondent No.4 in CWP No.3539 of 2009. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) The issue raised in these writ petitions pertains to the selection and appointment on contract basis to the posts of Child Psychologist and Clinical Psychologist. Writ Petition No.3890 of 2009 pertains to the appointment to the post of Child Psychologist 2 and the other one to the post of Clinical Psychologist. The Rogi Kalyan Samiti of Indira Gandhi Medical College and Hospital, Shimla invited applications for appointment to the respective posts. Employment Notice is Annexure P-3 in CWP No. 3890 of 2009. It is stated that “the candidates must have knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Himachal Pradesh”. Sr.No. 2 post is Child Psychologist. It is submitted that the candidate should have essential qualification of (1) PG Degree in Psychology, (2) Ph.D. in Psychology from a recognized foreign University as such recognized by the University Grant Commission and (3) Three years teaching/research/Work experience in the field after obtaining Ph.D. Degree. 2. It is contended by the petitioner that private respondent in the former writ petition did not have the three years teaching/research/work experience in the field after obtaining Ph.D. Degree. There is a serious dispute as to the date of the award of Ph.D. Degree. The Certificate would show that Ph.D. Degree has been awarded only on 9.10.2006. But it is seen from the records that the Vice Chancellor had approved the award of Ph.D. Degree to the private respondent on 13.9.2006. It is seen from the Regulations that the date of approval by the Vice Chancellor is the relevant date for the purpose of the award of Ph.D. and the mistake in the date shown in the Certificate already issued is 9.10.2006, is getting corrected. We do not think that we should go into the dispute in that regard in view of the order we propose to pass in this case. Both the petitioner and the private respondent do possess the academic qualification. The dispute is 3 with regard to the experience. As far as the petitioner is concerned, it is seen that experience what she gained as Counsellor is in the blood bank. As far as private respondent is concerned, her experience is as Clinical Psychologist in the Disabled Rehabilitation Centre in the IGMC since 1st December, 2004. The question is whether that experience of either the petitioner or the respondent is in the field after obtaining Ph.D. Degree. On going through the records of selection, we do not find that the Selection Committee has made a fine distinction as to whether any candidate possessed the requisite qualification, in the matter of experience. We do not also find as to whether the Selection Committee had applied its mind as to whether any candidate possessed the experience in the field, namely, the field of Child Psychology. 3. Learned counsel for the Rogi Kalyan Samiti submits that none of the candidates possessed the requisite experience and hence they had decided to relax the qualification in the matter of experience and thus the Selection Committee had to make a comparative assessment with regard to the experience possessed by the candidate. We find from the records that the petitioner had been granted the full marks for experience but not the private respondent. 4. The moot question is whether the Selection Committee was empowered to relax the essential qualification, unless otherwise duly authorized either by the Recruitment Rules or by the Employment Notice. The law on that point is well settled by a catena of decisions of the Supreme Court. It is held that the Selection Committee does not have the power to relax the 4 qualification. The Committee is only to weigh the merit of the candidates presented before it, who possessed the qualification as per the prescribed Rules/Notification. (See decisions in Secretary, A.P. Public Service Commission vs. B. Swapna and others, (2005) 4 SCC 154, Umrao Singh vs. Punjabi University, Patiala and others, (2005) 13 SCC 365 and Madan Mohan Sharma and another vs. State of Rajasthan and others, (2008) 3 SCC 724). Being a well settled position, we do not have to deal with that question of law in detail. Thus, we find that the approach made by the Selection Committee in relaxing the qualification is clearly illegal. As held by the Supreme Court in the above decisions, in case no candidate was available as per the prescribed qualification, the Selection Committee could not have relaxed the qualification. The Appointing Authority could have only taken steps for issuing a fresh notification for the purpose of the appointment. 5. As far as the other writ petition pertaining to the selection to the post of Clinical Psychologist is concerned, we find that the private respondent has been awarded Ph.D. Degree only in 2008 and thus she does not possess the essential qualification of “three years teaching or research experience in the discipline subject concerned after obtaining Ph.D. Degree”. Here also, the employer, namely, the Rogi Kalyan Samiti has taken a contention that neither the petitioner nor the private respondent possessed the experience in the discipline either in teaching or research; however in view of the urgency and expediency, the Rogi Kalyan Samiti had to relax the qualification and make the appointment. 5 6. In view of what we have already held above, since the Selection Committee was not competent to relax the qualification, the whole selection is illegal. It is declared so. 7. We do not propose to leave the matter with the above declaration since we are informed that the service of the Psychologists is essential in the Medical College. Learned counsel for the Rogi Kalyan Samiti submits that until a proper selection is made, the incumbents already selected and who have been working for the last six months may be permitted to continue on ad hoc basis till the tenure of the contract. We find that the submission is reasonable to some extent. Therefore, we direct the Rogi Kalyan Samiti to immediately take steps for fresh selection for appointment to the two posts of Child Psychologist and Clinical Psychologist. Steps, as above, shall be taken immediately and completed in any case within two months from today. 8. The private respondents who are already continuing shall be permitted to continue on ad hoc basis till the process is completed as above. Both the writ petitions are disposed of, so also the pending applications, if any. (Justice Kurian Joseph), Chief Justice 13th May, 2010 ( Justice Deepak Gupta ), (tr) Judge.