A.S. SUPEHIA, J.

1. RULE. Learned advocate Mr.Jani and learned AGP Mr.Raval waive service of notice of Rule on behalf of the respective respondents.

2. The present petition has been filed seeking the following prayers : -

“12(a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date;

12(b) to quash and set aside the impugned decision dtd. 13-9-2021 as per Annexure-G wrongfully declaring the petitioner as ineligible on the ground that he is not possessing the prescribed experience as per the Recruitment Rules and Advertisement;

12(c) to direct the respondents to treat the petitioner as eligible for the post of Gynaecologist, Class-I pursuant to the Advertisement No. 121/2019-20 and to give him appointment as such, with all the consequential benefits as if he was given appointment along with the first candidate of the same recruitment process;”

3. The petitioner has passed M.B.B.S. and D.G.O. (Diploma in Gynecologist and Obstetrics). The respondents issued an Advertisement No.121//2019-20 for filling-up the post of Gynecologist (Class-I), Gujarat Health and Medical Service, for 274 vacancies. The petitioner applied in response to the said advertisement by online application dated 27.12.2019 along with the certificate of experience dated 06.09.2019. By a notice dated 06.05.2021, the petitioner was selected for the document verification and was asked to upload the online necessary documents/ certificates during the period from 13.05.2021 to 24.05.2021. The petitioner uploaded all the relevant documents, more particularly the certificate of experience dated 13.05.2021. However, vide a notice dated 13.09.2021, the petitioner has been declared ineligible for Oral Interview on the ground that he does not possess the prescribed experience as per the Recruitment Rules and the provisions of the advertisement. The petitioner has immediately made a representation dated 15.09.2021 to the Gujarat Public Service Commission (GPSC).

4. Learned advocate Mr.Pujara, has submitted that as per the Recruitment Rules issued by the Health and Family Welfare Department vide a notification dated 04.10.2008, the petitioner is eligible to be appointed on the post of Gynecologist. It is submitted that the petitioner has been denied the appointment to the post for the reason that the experience certificate, which the petitioner has produced, was issued by the hospital belonging to his father. It is submitted that subsequently in other recruitment process initiated for appointment on contractual basis for the very same post, the petitioner has been appointed without any objection raised on the experience certificate. It is thus submitted that the petitioner cannot be denied the regular appointment once he is found fit for contractual appointment for the very same post.

5. In response, learned Advocate Mr.Jani, while interpreting Clause-B of Paragraph No.2 of the Advertisement, which is analogous to Rule 4(c)(i) of the Notification dated 22.09.2008, by which, the Rules of Specialist Class-I, Recruitment Rules, 2008 have been promulgated, has submitted that as per the said requirement, the candidate, who is applying to such post should either own a hospital or manage a hospital or controlled a hospital, which can be Non-Government Organisation Hospital or Trust Hospital. It is thus submitted that since the petitioner does not fulfill the requisite criteria of owning or running an hospital for two years, he is precisely denied the appointment.

CONCLUSION:

6. The established facts from the pleadings and the contents of the writ petition are that the petitioner, after clearing the recruitment process for the appointment to the post of Gynecologist (Class-I) has been denied the appointment for the reason that he does not fulfill the criterion of having two years experience, as provided under the provision of the advertisement and the recruitment rules.

7. The provisions of the advertisement, prescribing the educational qualification and experience are as under:

“(2) Educational qualification and Experience (Advt.No: / 2019-20 To /2019-20):

A. Possess a degree of Bachelor of Medicine and Bachelor of Surgery or as the case may be Bachelor of Dental Surgery of any of the University established or incorporated by or under the Central or State Act in India ; or any other educational institution recognized as such or declared to be a deemed as university under section 3 of the University Grants Commission Act,1956 (3 of 1956) or possess any other qualifications specified in First or Second Schedule to the Indian Medical Council Act,1956 or as the case may be possess an equivalent qualification recognised by the Dental Council of India and

B. (i) possess a post-graduate diploma in respective subject as shown in the Annexure against the each post, of the Universities established or incorporated by or under the Central or State Act in India; or possess an equivalent qualifications recognized by the Medical Council of India :and have experience of two ears in respective subject in Government Hospital or owned manage or controlled by the, Non-Government Organisation or Trust Hospital or”

8. Similarly, the relevant Rules of the Notification dated 04.10.2008 reads as under : -

“4. To be eligible for appointment by direct selection to the post mentioned in rule (3)(b), a candidate shall -

(c)(i) possess a post – graduate diploma in respective subject as, shown in the Annexure against the each post, of the Universities established or incorporated by or under the Central or State Act in India; or possess an equivalent qualification recognized by the Medical council of India and have experience of two years in Government Hospital or owned manage or controlled by the Non government Organisation Hospital or Trust ;”

9. Before this Court, it is contended by learned advocate Mr.Jani that as per the aforementioned provision, the petitioner must be owning or managing the hospital. In the considered opinion of this Court, the aforesaid submissions is absolutely illogical and preposterous. A bare reading of the provisions will clarify that ‘a candidate, who is applying to the post, pursuant to the advertisement as per the aforesaid rules, must have “an experience of two years in a Government Hospital or an hospital owned mange or controlled by the Non-Government Organisation Hospital or Trust Hospital”. Neither the provision stipulated in the advertisement nor the Recruitment Rules remotely suggest that the candidate has to be the owner or manager of the the hospital.

10. The petitioner in compliance of the aforesaid provision has produced the certificates of experience dated 06.09.2019 and 13.05.2021 of the hospital issued by Shraddha Surgical Hospital, which is owned by his father. The certificates are not doubted by the respondent authority in any manner. The aforesaid provisions, which mandates of supplying the certificate of experience do not in any manner indicate that the certificate issued by an hospital owned by the relatives or the family members of the candidates will not be considered. It is not pointed out to this Court that the advertisement or the Recruitment Rules prohibits consideration of experience certificates issued by the hospitals, which are owned or manged by the family members or relatives of candidates, who undertake the recruitment process. In absence of such provision, the candidates cannot be denied appointment for production of the certificates. It is not the case of the respondents that the hospital run by father of the petitioner will not fall under the categories, as prescribed in the advertisement or the Recruitment Rules.

11. It is also pertinent to note that subsequently in the recruitment held for the purpose of appointing Gynecologist (Class-I) on contractual basis, vide Resolution dated 03.04.2020, and advertisement (Page.62), the petitioner has been selected on the very same post on contractual basis on the basis of the experience certificate issued by the same hospital. Thus, the respondents cannot approbate and reprobate. Having accepted the certificate for appointment on the very same post of Gynecology (Class-I) on contractual basis, the respondents cannot deny regular appointment of the same post by taking objection on the experience certificate.

12. On the substratum of the aforementioned reasons, the writ petition is ALLOWED. The impugned decision of the respondent authorities are hereby quashed and set aside. The respondents are directed to appoint the petitioner on the post of Gynecologist (Class-I) within a period of eight weeks from the date of receipt of writ of this order. The petitioner would be entitled to the seniority, however the actual monetary benefits shall be granted to the petitioner from today till the date of appointment. RULE is made absolute.