IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.444 of 2005. Date of decision: 25.11.2008. Maya Verma & Another ….Petitioners Versus State of H.P. & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioners: Mr.B.C. Negi, Advocate. For the Respondents: Mr.Vivek Thakur, Additional Advocate General with Mr.Anil Jaswal, Deputy Advocate General. Dev Darshan Sud,J. Both the petitioners herein have undergone successful training course of Para-medical Ophthalmic Assistant, interviews for which were held on 26.7.1999 and 27.7.1999 by the Health and Family Welfare Department. Annexures P-4 and P-5 are the copies of the Memorandums issued to the petitioners herein in which one of the conditions required for the training is:- “8. The selection is subject to production of the following certificate:- 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 (i) Pre-Medical/Non-Medical or its equivalent with 40% marks. (ii) Schedule Caste. (iii) Schedule Tribe. (iv) Backward Classes (v) Ward of Ex-Servicemen. (vi) Physically Handicapped. (vii) Bonafide Himachally certificate from the Magistrate Ist Class.” It is undisputed before me that the petitioners were awarded the Diploma(s) of Para- Medical Ophthalmic Assistant Examination (Annexure- P6) conducted by Dr.Rajendra Prasad Medical College Tanda (Hospital, Dharamshala), H.P. India after successfully completing all theoretical and practical training in March, 2003. On 9.7.2003 vide Annexures P-7 and P-8, the State issued show cause notice(s) to both the petitioners herein on two counts, namely, (i) the certificate of 10+2 and Inter Mediate from the Board of High School and Inter Mediate Education Allahabad, Uttar Pradesh, submitted by them, is not valid as the Board is not affiliated with the H.P. Board of School Education, Dharamshala and (ii) as per Recruitment and Promotion Rules, dated 30.12.1988, the educational qualification for the training of Para- 3 Medical Ophthalmic Assistant was Pre-medical or its equivalent. The show cause notice reads: “Whereas as per enquiry conducted by the Inspector General of Police Vigilance, H.P. from the HP Board of School Education Dharamshala, the certificate issued by the Board of High School and Intermediate Education Uttar Pradesh is not affiliated within the HP Board of School Education Dharamshala. Whereas at the time of your interview for Ophthalmic Assistant, the R&P Rules dated 30.12.88 were operative and as per R&P Rules dated 30.12.88 of Ophthalmic Assistant Class-III Non-Gazetted and the Educational Qualification was Pre- Medical or its equivalent. However, you have passed intermediate examination from the Board of High School and Intermediate Education Uttar Pradesh under non-medical subjects (Physics, Chemistry and Math), hence you do not fulfill the required educational qualification and your selection for the training of Ophthalmic Assistant is wrong ab- initio.” 4 The petitioners replied to the show cause notice, but vide Annexure P-11 the Diploma issued to the petitioners was cancelled only on the ground that the petitioners did not possess the minimum requisite qualification of Pre-Medical at the time of admission to the Diploma. The petitioners have now challenged this order as being arbitrary and unconstitutional. Learned counsel appearing for the petitioners has drawn my attention to paragraph-9 of the writ petition wherein, the reply filed by the State of Himachal Pradesh in Civil Writ Petition No.174 of 2001, titled: Rakesh Mohan and another vs. State of Himachal Pradesh and Civil Writ Petition No.266 of 2001, titled: Dinesh Chand Jasrotia vs. State of Himachal Pradesh, is reproduced. The qualification for training of the petitioners was challenged by the petitioners in those petitions on the ground that they did not possess the requisite qualification. The reply of the State reads:- “That the medical and non-medical students are taught three common subjects i.e. English, Physics and Chemistry. The nature of job of the Ophthalmic Assistant is to observe the readings in the instruments and lenses which is part of common 5 syllabus of Physics and Chemistry in both medical and non medical. Because of this reason, in the present case pre-medical or its equivalent includes non-medical also and as such all candidates of non- medical group who appeared were interviewed. In the instant case, the Respondents No.4 and 5 were the candidates of non-medical group. It is further submitted that considering the nature of the job to the post of Ophthalmic Assistant and in order to oviate any ambiguity now the Government has amended the R&P Rules thereby prescribing educational qualification as “10+2 with Science.” Hence no contravention of Rules in this matter has been made, rather the selections were made on merit basis after due process of interview and after giving due consideration to the existing Rules at the relevant time. Copy of amended Recruitment and Promotion Rules is annexed as Annexure R-II/2 for kind perusal of this Hon’ble Court”. This reply filed on affidavit by the State, sets at rest the entire controversy. However, it is also undisputed before me that there were no Rules for the purpose of selection for training and it was 6 only the Recruitment and Promotion Rules to this post which required a pre-medical qualification which Rules again have been amended on 8.2.2001 (Annexure P-1). One of the conditions therein is the essential qualifications provided by clause-7 of the amended Rules are that the candidate:- “(i) should have passed 10 plus 2 (with Science) Examination or its equivalent from a recognized University/Board; (ii) must possess two years duration certificate of training in Ophthalmic Assistantship or its equivalent from an Institution duly recognized by the Centre/H.P. Government.” Again pre-medical is not an essential qualification prescribed. A Committee was constituted by the Government to look into the legality of the training of both the petitioners herein. The Committee consisted of Dr.R.P. Kaushal, Deputy Director of Health Services, Himachal Pradesh, Dr.V.K. Chopra, Deputy Director of Health Services, Himachal Pradesh and Sh.Puran Chand Verma, Administrative Officer, Health and Family Welfare Directorate to look into 7 this case and also the reply filed in CWP No.266 of 2001 and CWP No.174 of 2001. The Committee submitted its report (Annexure P-15) holding that no Rules have been prescribed for the purposes of seeking admission for training. Regarding the qualification of both the candidates for the purpose of being trained as Ophthalmic Assistant, the report is only indicative of the fact that no rules existed. In the undisputed factual matrix that no Rules were prescribed for training of Para-medical Ophthalmic Assistant and even the Recruitment and Promotion Rules have been amended to include the science group; the fact that vide Annexures P-4 and P-5, the only requirement was that a candidate should have a qualification of pre-medical/non-medical or its equivalent with 40% marks, it is conclusively established that pre-medical was not an essential qualification. In view of the facts and circumstances of the present case and more especially the State itself having stated on affidavit in CWPs No.174 of 2001 and 266 of 2001 that both the petitioners were qualified to undergo training, this writ petition is allowed. The action of the Government of withdrawing the Diplomas issued to the petitioners is quashed and set 8 aside and the Diplomas awarded to the petitioners are restored. There shall be no order as to costs. November 25, 2008 (Dev Darshan Sud) (aks) Judge.