The State Of Karnataka vs Sri Raveendra Basavarajappa Emmi

The writ petition filed under Articles 226 & 227 of The Constitution Of India praying to quash order dated 22.06.2016 application No. .283/2011 passed in by the Karnataka State Administrative Tribunal, Bangalore,Vide Annexure-C and consider the review application No. 64/2017 OF ANNEXURE-D of the Karnataka State Administrative Tribunal Bangalore,filed by the petitioners. This writ petition coming on the preliminary hearing, The HON'BLE JUSTICE MRS.B.V. NAGARATHNA passed the following order and dismissed the writ petition.

Writ Petition No.: 22520/2018 (S-KAT)

PETITIONERS
1. The State Of Karnataka By Its Member Secretary Cum Chief Administrative Officer     
Department of Health & Family Welfare (services)
Ananda Rao Circle,   
BANGALORE - 560 009.

2. The Director, Department of Health & Family Welfare (services)
Ananda Rao Circle,   
BANGALORE - 560 009.

RESPONDENTS
1. Sri Raveendra Basavarajappa Emmi,S/O Sri. Basavarajappa,working as junior health assistant , P.H.C. Kajjari,Ranebnnur Taluk,
Haveri District - 581110.
2. Sri. Sukmar S, Physiotherapist, District Hospital Madikeri
Madikeri District - 571 201

ADVOCATES APPEARED
For Respondant 1 : Sri Hanumantha Reddy Sahukar
For Respondant 2 ; Sri P.N.Hatti                           
                             Meti Rajeshwari

JUDGES
The HON'BLE Mrs. Justice B.V Nagarathna
The HON'BLE Mr. Justice Bellunke A.S.

ACTS/SECTIONS
Articles 226 Of The Constitution Of India
Articles 227 Of The Constitution Of India

ORDER

State has filed this writ petition challenging the legality and correctness of the order passed by the Karnataka Administrative Tribunal, Bengaluru (hereinafter referred to as the 'Tribunal' for the sake of convenience) in Application No.283/2011 (Annexure-C) and in Review Application No.64/2017 (Annexure-D) respectively.

2. We have heard learned Additional Government Advocate for the petitioners and learned counsel for respondent No.1 and perused the material on record.

3. Briefly stated the facts are that the 1 s t petitioner herein issued notification dated 27.02.2009 (Annexure-A1) inviting applications inter alia, for appointment of twenty-two physiotherapists on the establishment of the 2 n d petitioner-Department. In response to the same, 1 s t and 2 n d respondents herein applied to the post of Physiotherapists contending that they had the requisite qualification. The said recruitment was made pursuant to Karnataka Health and Family Welfare Services (Recruitment to certain posts) (Special) Rules, 2009 (hereinafter referred to as the 'Special Rules' for the sake of convenience). A Special Recruitment Committee (Committee) was constituted under the said Rules. The eligibility criteria in the form of age and educational qualification were prescribed, the mode of recruitment was notified and as per the schedule to Rules 4 and 6. Insofar as twenty-two vacancies in the post of Physiotherapists (General), the educational qualifications were as under:

1.  Pass in PUC with Science as optional subject or equivalent qualification.
2.  Must be a holder of  Diploma in Physiotherapy conducted by Karnataka Paramedical Board.

4. According  to the 1st respondent, applicant after passing SSLC, he took up multipurpose Job Oriented Course conducted by the State Government for Vocational Education which is equivalent to PUC Science course. According to the 1 s t respondent, the said course has been equated to PUC Science course by Bangalore University vide Annexure-A8. The 1st respondent has also completed three year Diploma course in Physiotherapy and six months of internship conducted by the Karnataka State Board of Education in Physiotherapy. Therefore, the 1st respondent contended that he was eligible to be considered for the post of Physiotherapists in Category-IIIA. When the Selection Committee published a provisional list of selected candidates on 14.05.2010, the name of the 1st respondent figured in the said list. Although he had secured good marks in the two courses referred to above, when the final selection list was published on 15.07.2010 vide Annexure-A10, his name did not find a place therein. On account of the non- inclusion of his name in the selection list, 1 s t respondent made a representation which was responded by way of an endorsement dated 09.09.2010, stating that he was not considered for the post of Physiotherapists as he did not possess the requisite qualification, namely PUC Science qualification. Being aggrieved by the endorsement dated 09.09.2010 at Annexure-A14, 1 s t respondent assailed the same and sought for inclusion of his name in the final selection list in place of the 2 n d respondent herein before the Tribunal. The Tribunal on considering his case in Application No.283/2011 allowed the same and granted the following reliefs:

"9.In the result, we proceed to pass the following order :

(i)    The application is allowed;
(ii)   The respondent nos.1 and 2 are directed to consider the candidature of the applicant for the post of Physiotherapist considering JOC as equivalent to PUC, select and appoint him, if he is otherwise eligible without disturbing the selection of the third respondent, if necessary by creating a supernumerary post. It is made clear that in the event of selection and appointment of the applicant, he is not entitled to claim seniority over the candidates who are already selected as per the final select list. He is also not entitled to claim any back-wages. In the event of his selection, the name of the applicant shall be included in the select list below the name of the third respondent ;
(iii) Time for compliance - three months from the date of receipt of a copy of this order.

5. Being aggrieved by the said order, State filed review application No.64/2017 before the Tribunal contending that since the equivalent qualification was not notified, the Tribunal could not have held that the certificate obtained by the petitioner in respect of Job Oriented Pre-University Diploma was a qualification equivalent to PUC in science stream. Therefore, the State sought for review of the order passed by the Tribunal. The said review application has also been dismissed by order dated 16.06.2017. Being aggrieved by the aforesaid orders, the State has preferred this writ petition.

6. Learned Addl. Government Advocate appearing for the State contended that a two-fold qualification is mentioned for the post of Physiotherapists: a candidate must possess PUC with Science as an optional subject or an equivalent qualification; he must also posses a Diploma qualification in Physiotherapy conducted by the Karnataka Paramedical Board. No doubt the 1st respondent herein possessed the latter qualification, but he does not possess a PUC with science as an optional subject. In the circumstances, the petitioners were right in excluding his name from the provisional selection list and consequently in the final selection list.

7. Learned Additional Government Advocate contended that although an equivalent qualification has been mentioned in PUC with science as an optional subject, in the absence of there being any equivalence declared by the concerned authority, the 1st respondent herein had to seek such equivalence and in the absence of doing so, the Tribunal could not have granted such an equivalence by declaring that the certificate obtained by the 1st respondent in Job Oriented Course was equivalent to PUC in Science stream. Learned Addl. Government Advocate contended that the Tribunal ought not to have granted any relief to the 1st respondent and ought to have dismissed the application since a meritorious candidate namely respondent No.2 herein has been appointed and the said appointment cannot be disturbed.

8. Learned Addl. Government Advocate further submitted that the Tribunal was not right in dismissing the review petition and hence this court may interfere in the matter.

9. Per contra, learned counsel for respondent No.1 supported the orders passed by the Tribunal and contended that the Tribunal granted relief to the 1st respondent based on the dictum of this Court in W.P.Nos.29048-29055/2002 and connected cases decided on 28.11.2002 which has been followed in W.P.Nos.29919-928/2009 (S-KAT) decided on 20.06.2011 which have been extracted in the order passed by Tribunal. The same have also been followed by the Tribunal in Application No.4101/2007 and connected cases disposed off on 25.05.2012. That this Court has held that PUC is equivalent to the qualification of Job Oriented Course (JOC). That the State has not assailed the judgment of this Court or the Tribunal in the aforesaid cases and hence the State is estopped from contending otherwise in this case. He further submitted that when the Rules prescribe a qualification as well as an equivalent qualification, it is incumbent to specify the equivalent qualification and, in the absence of such specification, eligible candidates would lose an opportunity of being appointed. That in the instant case, 1st respondent was erroneously ignored, although he was fully qualified to be appointed. Therefore, he was constrained to approach the Tribunal which has granted relief to him.

10. Learned counsel for the 1st respondent submitted that the Tribunal has granted relief to the 1st respondent without disturbing the selection of the 2 n d respondent by directing the State to create a supernumerary post as the 1st respondent has been erroneously ignored in respect of the post of physiotherapist and that the 1st respondent has lost his seniority which has been accepted by him. Therefore he submitted that this court may not intervene in the matter as there is no merit in the writ petition.

11. The aforesaid narration of facts and contentions would not call for reiteration except highlighting the fact that, for the post of Physiotherapist, the Special Rules prescribed a two-fold educational qualifications. It is the case of the 1st respondent that even though he does not studied a PUC with science as an optional subject, he nevertheless has a Job Oriented Pre-University Diploma Certificate which has been awarded to him after a period of two years study in Physiotherapy which is a vocational course. The same was prosecuted by him after SSLC. That he has also a three years' Diploma Course in Physiotherapy along with six months' Internship. That he has also a qualification of three years' Diploma course in Physiotherapy and six months' Internship vide certificate awarded by Karnataka State Board of Examination in Physiotherapy vide Annexure-A4. Thus, according to the 1st respondent, he has the equivalent qualification to PUC and also the second qualification as prescribed under the Rule extracted above.

12. The Tribunal while considering the case of the 1st respondent has referred to the relevant portion of the dictum in W.P.Nos.29048-55/2002 and connected cased disposed off on 28.11.2002 by this Court in the following terms. The said dictum has been followed subsequently in W.P.Nos.29919-928/2009 (S-KAT) disposed off on 20.06.2011 in the following terms.

"15(ii) Respondents are directed to treat the PUC (Dip-in-VOC) granted by the State Council for Vocational Educational/Directorate of Vocational Education, as 'PUC' for purpose of Entry 66 for meeting the educational qualification prescribed under Entry-66 of the schedule to the Recruitment Rules and consequently consider the cases of petitioners for selection with reference to their ranking based on marks in the combined competitive examination, PUC (Dip-in-VOC) and TCH. It is made clear that if selected, such selection will not entitle the petitioners to claim higher ranking/seniority over the candidates who have already been selected as per the final selection list. The petitioners, on selection, if otherwise found eligible and entitled, shall be placed at the bottom of the select lists. Compliance within four months."

"8. It is made clear in view of the judgment of the Division Bench of this Court in the earliest case, the JOC is equivalent to the PUC, therefore the Government cannot take a different view when once the judgment of the court is accepted by the Government and the same is followed since 2002."

13. This Court has held that JOC is equivalent to PUC and therefore the State cannot take a different view, once it has been accepted by it and the same has been holding the field since 2002. Of course, learned Addl. Government Advocate sought to distinguish those judgments by contending that the same were rendered in respect of recruitment of teachers and not under the Special Rules under consideration. However, it is necessary to discern the ratio of the said judgments wherein, it has been stated that the JOC is equivalent to PUC. In the instant case although an equivalent qualification to PUC (Science Stream) has been prescribed under the Special Rules, there has been no specific course which has been mentioned as an equivalent course. When such being the position, candidates such as respondent No.1 herein could not be deprived of an opportunity to be considered and appointed to the said post. On account of the lapse on the part of the State Government or the Recruitment Committee, as the case may be, under the Rules in not prescribing any equivalent qualification the candidates otherwise eligible cannot be deprived of an opportunity vis-à-vis the post in respect of which they seek recruitment.

14. On perusal of the Special Rules, we find that in respect of other posts while specifying the minimum educational qualification prescription of equivalent qualification has been made in the Rules itself. But with regard to the post of Physiotherapist (General), there is no such equivalent qualification which has been prescribed. In our view, in the absence of any prescription of the equivalent qualification under the Rules or subsequently before the last date for filing applications, the case of the 1 s t respondent could not have been ignored. In the circumstances, we find that the Tribunal was justified in following the dicta of this Court referred to above. In the instant case, the petitioner has prosecuted two years' Job Oriented Course in Physiotherapy and further he has a Diploma in Physiotherapy conducted by Karnataka Paramedical Board which is three and half years' course. We find that the petitioner is well qualified to be considered and appointed as a Physiotherapist (General) under the Special Rules. However, he has been excluded from selection owing to the lapse on the part of the State Government or the Recruitment Committee, as the case may be, under the Rules by not specifying equivalent qualification. The 1 s t respondent cannot be deprived of an opportunity to seek appointment under the Special Rules owing of a lapse on the part of the authorities concerned. In the circumstances, we find that the order passed by the Tribunal is just and proper and that it does not affect selection of the 2 n d respondent herein in any way. Further the Tribunal has rightly dismissed the review petition in the absence of there being any ground made out for reviewing the order dated 22.06.2016 passed in Application No.283/2011. In the result, we find that no merit in the writ petition. The writ petition is hence dismissed.

15. It is also to be noted that PUC Science stream does not involve any study of Physiotherapy and therefore, the multipurpose basic health worker (male) in Physiotherapy stream is an appropriate qualification for the post of physiotherapist (general).

16. Since the Tribunal had granted three months' time for compliance of its directions which has lapsed we direct the petitioners to comply with the direction of the Tribunal within a period of one month from the date of receipt of certified copy of this order.

17. Before parting with this case, it is necessary to observe that if the State Government under any recruitment Rule, whether special or otherwise, prescribes an equivalent qualification as an alternative to a general qualification then, it is incumbent upon the Rule making authority or the department, as the case may be, prior to inviting applications for a particular post to prescribe the equivalent qualification. In the absence of the same, many qualified candidates would lose an opportunity of being appointed under the Rules. On account of the lapse on the part of the rule making authority or the department calling for recruitment, eligible candidates cannot be deprived of such a valuable opportunity.