Govt Can't Supersede Statutory Rules By Administrative Orders, May Fill Gaps With Consistent Instructions: Jammu & Kashmir High Court

The judgment came from Justice MA Chawdhry who said:

"This court is of the opinion that the Government instruction/guidelines of the case in hand are at variance the provisions incorporated in the recruitment rules which have to be followed. In Annexure-A as schedule in terms of clause 5 of the aforesaid rules, the requisite qualification of the Lab Assistant has been provided by direct recruitment with qualification of Matric and diploma in Medical Assistant Training Course from SMF or any other recognized Institute. The petitioner admittedly was having qualification of Matric and had a diploma from the Institute of Public Health and Hygiene Delhi."

Background

In the present matter, the District Rural Health Society, Shopian headed by respondent no. 2 issued an Advertisement Notice in the month of September, 2013, for engagement of medical/para-medical staff on contractual basis under National Rural Health Mission (NRHM) Scheme. The petitioner in response to the notification amongst other candidates applied for the post of Lab Assistant

He came to be engaged on contractual basis at a monthly consolidated remuneration of Rs. 10,800/- with no other allowances or monetary benefits, whatsoever and was posted as Lab Assistant at CHC Keller. The petitioner alleges that after some time he was not allowed to mark his attendance on the ground that somebody had filed complaint against him before respondent no. 3. The petitioner aggrieved of this action on the part of respondent no. 4 (Block Medical Officer Keller Shopian), filed this petition.

The respondent argued that for the post of Lab Assistant, the requisite qualification prescribed was 10+2 (Science) with diploma in Medical Laboratory Technology from an institute recognized from J&K SMF; that the petitioner came to be appointed, however, pursuant to the complaints made against his appointment the said order was kept in abeyance till further orders.

It was further argued that the post of Lab Assistant under NRHM Scheme was advertised by CMO, Shopian vide the above mentioned qualification and that the petitioner was 10+2 ( Arts) with diploma from the institute of Public Health and Hygiene New Delhi; and that despite his ineligibility his selection was considered and subsequently he was appointed against the said post though he was not having required qualification of 10+2 ( Science) but was having 10+2 ( Arts).

It was contended that the criterion was adopted as per Govt. Orders issued in 2007. It was also pleaded that the petitioner without having academic qualification of 10+2 (Science) had applied for the post though he had secured diploma from the institute of Public Health and Hygiene, New Delhi during 2010-12 when the said institute had also not been recognized with the J&K State Medical Faculty. Having this view of the matter his diploma was also not valid and recognized.

Private respondent No. 5 in his objections alleged that the petitioner suppressed and concealed material facts from the court thereby tried to mislead the court. He further pleaded that the answering respondent being a Science graduate with diploma from a recognized institute had applied for the post of Lab Assistant and that he had also been interviewed. However, the official respondents selected the petitioner though he was not qualified to be appointed against the post advertised and prayed that the petition be dismissed.

Petitioner argued that as per the rules and norms prescribed under NRHM Scheme, eligibility for appointment against the post of Lab Assistant is Matric with diploma in Lab. Assistant training course and the eligibility shown by the respondents in Advertisement Notification as 10+2 (Science) with diploma is neither provided under recruitment rules nor under the norms prescribed by the employer/Govt. under NRHM scheme for appointment against the post of Lab Assistant. He submitted that the selection authority is not entitled to prescribe additional qualification/eligibility not envisaged by the Rules if the Rules prescribe such qualification as eligibility criterion.

It was prayed that the respondents be commanded not to disturb the position of the petitioner and that he be allowed against the post for which he was selected and appointed.

Findings

The Court noted that the qualification for appointment as Lab Assistant as per Schedule of the Health and Medical (Subordinate) Service Recruitment Rules 1992 has been provided as Matric with diploma. Since the Rules of 1992 prescribed a qualification that can be changed by way of amendment in the Rules itself and not by issuance of Government Order as having been claimed in the case.

Court then observed that the criteria as provided under the Statutory Rules referred hereinabove cannot be changed by the Government by issuing any order and the academic qualification, as provided under the Rules, can only be prescribed for engagement of a Lab Assistant even on contractual/remuneration basis.

Court noted that the Supreme Court in the case titled Sant Ram Sharma Vs. State of Rajasthan held that the Government cannot amend or supersede Statutory Rules by administrative instructions, but if the Rules are silent on any particular point Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed.

"The Health and Medical (Subordinate) Service Recruitment Rules 1992 are statutory and framed under the provisions of the Constitution of India. This court is of the opinion that the Government instruction/guidelines of the case in hand are at variance the provisions incorporated in the recruitment rules which have to be followed."

Court said that when the post was advertised the institute of Public Health and Hygiene New Delhi was recognized with the State Para Medical Council. Otherwise also, the policy of the Government to recognize some institutes for some period can be said to be detrimental to the interests of those students and the candidates who during that period had to undergo courses for some diploma.

"Petitioner in view of the fact that he had the requisite qualification of Matriculation and a diploma in Medical Laboratory Technology from a recognized institute was eligible to apply and be considered for appointment to the post of Medical Assistant, to which he had been appointed. The official respondents, de-hors the Rules of 1992 applicable to the case on hand, could not have altered the requisite qualification of Matriculate to 10+2 (Science) by administrative instructions and by doing so they have done violation to the Health and Medical (Subordinate) Service Recruitment Rules 1992, governing the subject in view of the law laid down by the Hon'ble Apex Court discussed hereinabove. Since the petitioner being more meritorious has already been selected against the post of Lab Assistant and appointed, as such, he has right to continue on that post," Court said.

In view of the above discussion, and the observations made both the petitions were allowed.