Honourable Sudhir Agarwal - (1.) BY means of the present writ petition the petitioner has challenged the appointment of respondent No. 5 on the post of X- ray Technician by order dated 21st November, 2007 passed by the Principal, Maharani Luxmi Bai Medical College, Jhansi (hereinafter referred to as "the College"). The other orders impugned in the writ petition are dated 23rd April, 2008 passed by the Principal of the College rejecting petitioner's representation observing that he did not possess the requisite qualification for appointment on the post of X-ray Technician and the letter dated 12.11.2007 issued by the Director General, Medical Education and Training, U.P. Lucknow permitting the Principal of the College to appoint a person having experience in Radiotherapy on the post of X-ray Technician.
(2.) IT is contended that by advertisement, (Annexure 1 and 2 to the writ petition) dated 27th August, 2007, the post of X-ray Technician in the scale of 4500-7000 was advertised. The requisite qualification mentioned in the advertisement, for the said post, is: JUDGEMENT_583_ADJ3_2011Image1.jpg The petitioner claims to possess requisite qualification for the post of X-ray Technician as advertised, and says that respondent No. 5 does not possess the said qualification. The Principal of the College, however, in a conspicuous and illegal manner sought permission from Director General, Medical Education and Training, U.P. by his letter dated 7.11.2007 to fill in the said post of X-ray Technician from a person possessing experience in "Radiotherapy". Such permission was granted by Director General vide letter dated 12.11.2007. Subsequently, by order dated 21st November, 2007, respondent No. 5 was appointed on the post of "X-ray Technician". When the petitioner moved representation, the same was not attended to, hence he filed writ petition No. 12747 of 2008 which was disposed of by judgment dated 5.3.2008 directing respondent No. 3 i.e. Principal of the College to decide petitioner's representation, which has been rejected by order dated 23rd April, 2008 observing that the post of "X-ray Technician" is basically utilized for discharging duties of "Radio Therapy", and, since the petitioner had no experience of "Radio Therapy" hence he could not be appointed.
(3.) IT is thus evident that though the post of "X-ray Technician" was advertised on 27th August, 2007 but later on during the course of selection, the Principal on his letter dated 7.11.2007 was permitted to deviate from the terms of advertisement and fill in the post of X-ray Technician by a person having experience in Radiotherapy. This permission was granted by Director General. Besides the question as to whether respondent No. 5 possess requisite qualification for appointment on the post of X-ray Technician and whether the conditions as mentioned in the advertisement can unilaterally be changed the eligibility condition in its entirety by the authorities concerned one more question up for consideration in this case and whether the Director General has any such power to alter the qualification prescribed for a particular post and all these questions will ultimately answer the ultimate issue whether the selection impugned in this writ petition has been validly made. Learned counsel for the petitioner vehemently contended that under the Rules, the qualification prescribed for X-ray Technician is same as advertised and it was not open to the respondent on their own to change the requisite qualification. He drew attention of this Court to paras 7 and 25 of the writ petition wherein he has said specifically that the respondent No. 5 did not possess the requisite qualification which reads: "7. The in the aforesaid certificate neither the name of the State is mentioned nor any date of issuing a certificate is mentioned and the aforesaid certificate has no concern with the eligibility criteria mentioned in the advertisement. The aforesaid certificate appears to be forged. 25. That the impugned orders dated 12.11.2007 (AnnexureNo. 15 to the writ petition), 21.11.2007 (Annexure No. 7 to the writ petition) and 23.4.2008 (Annexure No. 11 to the writ petition) are liable to be quashed on the following facts and circumstances: (a) That the respondent No. 5 does not have essential qualification for the post of X-ray Technician as per advertisement No. 2/2007 dated 27.8.2007 and advertisement No. 4/2007 dated 28.10.07 and as per Rules 8 and 9 of the Service Rules, 1986, in which it is provided that for selection/appointment on the post of X-Ray Technician a diploma for X-Ray Technician from U.P. State Medical Faculty Lucknow is required. The respondent No. 5 does not have a diploma in X-Ray Technician from U.P. State Medical Faculty Lucknow so he was not entitle to be considered for selection and appointment on the post of X-Ray Technician, the selection and appointment is void being contrary to mandatory provisions of Rules 8 and 9 of the Service Rules 1986. (b) That it is settle law as held by the Division Bench of this Honourable Court in case of Arya Kanya Pathshala v. Smt. Manorama Devi Agnihotri, 1971 ALJ page 983 as well as Honourable Supreme Court in case of Government of A.R and others v. K. Brahmanandam and another, 2008(2) ESC 33 (SC) "appointments made in violation to the mandatory provisions of statute would be illegal, thus void in the present case the respondent No. 5 does not have essential qualification for the post of X-Ray Technician as required under Rules 8 and 9 of the Service Rule 1986 and as per advertisement made for the purposes of selection/appointment in the daily news paper by the respondent No. 4 so the selection/appointment of the respondent No. 5 is void? (c) That the selection of the petitioner was made under the Service Rule 1986 but as per information given by the Public Information Officer of the medical college, the petitioner has not been appointed under Service Rule 1986 so the appointment of the respondent No. 5 is nullity. (d) That once the petitioner and respondent No. 5 were considered for selection on the post of X-Ray Technician under Service Rules 1986 the respondent No. 5 was placed at serial No. 1 and the petitioner was placed at serial No. 2, thereafter, the appointment letter has been issued to the respondent No. 5 on 21.11.2007 on the post of X-Ray Technician but when the petitioner sought information from Public Information Officer of the Medical College then it was informed that he has been given appointment on the post of Radiotherapy technician. (e) That it is settle law and administrative order cannot supersede the statutory provisions and orders passed therein in the present case the respondent No. 5 who does not have essential qualification as provided under Service Rule 8 still he was illegally selected for the post of X-Ray Technician and appointment letter was also issued to the respondent No. 5 on 21.11.2007 for the post of X-Ray Technician but by administrative order dated 12.11.2007 respondent No. 2 directed the respondent No. 4 to appoint respondent No. 5 in the public interest on the post of X-Ray Technician on the basis of experience of respondent No. 5 in radiotherapy, which is not permissible in law. (f) That the petitioner raised several objections in his representation dated 21.1.2008 against the impugned order dated 21.11.2007 and this Honourable Court by order dated 5.3.2008 directed the respondent No. 4 to decide the representation of the petitioner dated 21.1.2008 but the respondent No. 4 did not considered the aforesaid representation and did not decide the aforesaid representation as yet and illegally rejected the reminder dated 3.4.2008 so the impugned order has been passed ignoring the direction of this Honourable Court and is a clear example of no application of mind in passing the impugned order dated 23.4.2008. (g) That the diploma certificate submitted by the respondent No. 5 before the Selection Committee issued from Guru Govind Singh Medical College Faridkot, Punjab which appears to be concocted document, there is no certificate number and date of issuing mention in the certificate issued by the aforesaid medical college, moreover, as per certificate issued by State of U.P. Medical Faculty Lucknow dated 22.7.2008 the certificate of radiotherapy is not recognized by the aforesaid Medical Faculty of the State of U.P. so the experience certificate of radiotherapy which is the basis of the letter dated 12.11.2007 is also illegal and without jurisdiction. Respondent No. 5 even does not have any valid certificate regarding radiotherapy so the permission granted by the respondent No. 2 to give appointment to the respondent No. 5 is also mala fide, illegally and without jurisdiction. (h) That the selection committee provided 20 marks to the respondent No. 5 for his technical education and therefore he was placed at serial No. 1 in the select list dated 14.11.2007. It is submitted that his diploma certificate alleged to be issued from Guru Govind Singh Medical College Faridkot, Punjab is not recognized from the U,P. State Medical Faculty Lucknow and the aforesaid certificate submitted by the respondent No. 5 is not valid for the purpose of selection of X-ray technician so 20 marks given by the selection committee to the respondent No. 5 was not valid and the petitioner was entitle to be placed at serial No. 1. The selection and appointment of the respondent No. 5 is void and the petitioner who is placed at serial No. 2 is entitle to be considered for appointment on the post of X-ray Technician on the basis of selection dated 14.11.2007. (i) That before passing the impugned order dated 23.4.2008 no opportunity of hearing given to the petitioner." ;