CWP No. 13703 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13703 of 2006 Date of Decision: January 13, 2009 Gopi Ram Bairwa ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.J.S.Hooda, Advocate for the petitioner. Mr.Harish Rathee, Senior DAG, Haryana for respondents No. 1 and 2. Mr. R.M.Singh, Advocate for respondents No. 3 and 4. **** 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? Ajay Tewari, J. This writ petition has been filed challenging the selection of respondents No. 3 and 4 over and above the petitioner for the post of Laboratory Technician on the ground that the essential qualifications as advertised were as follows:- “Application invited for two posts of L.T. on contractual basis. Salary 6500/- p.m. consolidated. Qualification 10+2 with science with DMLT (Two Years Course) or certified course of MLT (Two Years).” CWP No. 13703 of 2006 2 As per the petitioner the said respondents did their 10 + 2 with Arts subjects (even though later on they passed a Two Years Course for MLT). The argument of learned counsel for the respondents is twofold. In the first place they have asserted that the respondent No.2 which is District T.B.Control Society is not State. Secondly it is their stand that the respondents No. 3 and 4 having passed the Two Year MLT Course are eligible for the posts of Laboratory Technician. With regard to the first objection, it has been pleaded that the respondent No.2 is an instrumentality of the State. The Deputy Commissioner, Faridabad is the Chairman while the Civil Surgeon is the Vice Chairman. It is further asserted that the State has absolute financial control over it. In Virendra Kumar Srivastava v. U.P.Rajya Karamchari Kalyan Nigam reported as (2005) 1 SCC 149, the Hon'ble Supreme Court held as follows:- “The multiple test which is to be applied to ascertain the character of a body as falling within Article 12 or outside as laid down by the majority view in Pradeep Kumar Biswas case is to ascertain nature of financial, functional and administrative control of the State over it and whether it is dominated by the State Government and the control can be said to be so deep and pervasive as described in the minority view in Pradeep Kumar Biswas case so as to satisfy the court “of brooding presence of the Government' on the activities of the Corporation.” In my opinion in these circumstances it cannot be held that the respondent No.2 is not State. As regards the second argument it is argued that the word 'or' CWP No. 13703 of 2006 3 occurring between the words '10 +2 with science with DMLT (Two Years Course)' and the words ' certified course of MLT ( Two Years)' means that though persons who have the later qualification of Two Years MLT Course need not have 10 +2 with science. In my opinion it is a fallacious argument and the word 'or' has been used to signify alternativity with the Two Years DMLT Course and the basic qualification of having 10+2 with science is not affected by this phrase. In these circumstances there can be no escape from the conclusion that the respondents No. 3 and 4 were not qualified and thus their appointments are set aside. The next consequential argument of learned counsel for the petitioner that with the setting aside of the appointment of respondents No. 3 and 4 the petitioner should be offered appointment is, however, unacceptable. It is no body's case that the petitioner was placed in the waiting list. Thus, it would be appropriate if the respondents are directed to hold fresh selection for the Post of Laboratory Technician as per advertisement Annexure P-1 and the petitioner would also be considered for the same. It is further clarified that in case the petitioner has become over age during the time which has elapsed between the advertisement and today his candidature will not be rejected on this score. The writ petition stands disposed of accordingly. (AJAY TEWARI) JUDGE January 13, 2009 sunita