JUDGMENT v. v.

4. LPA 105/2009 NAGBHUSHAN REDDY.....Appellant Through: Mr. Shankar Divate, Adv.

VERSUS

ALI YAVAR JUNG N ATIONAL INSTITUTE FOR THE HEARING HANDICAPPTED MUMBAI & ANR.....Respondents Through: Mr. Sumit Gahlawat, Adv. for R-1 Ms. Geetanjali Mohan, Adv. for R-2/Indraj Ms. Anuja Saxena, Adv. for R-3/RCI

5. LPA 135/2009 ALI YAVAR JUNG NATIONAL INSTITUTE.....Appellant Through: Mr. Sumit Gahlawat, Adv.

VERSUS

JUSTICE MANMOHAN O R D E R % 09.07.2009 These Letters Patent Appeals are directed against the order of the learned single Judge passed in WP(C) No. 196/2007 dated 18.12.2008. LPA No. 105/2009 is filed by respondent No.3 in the writ petition, whereas LPA No. 135/2009 is filed by respondent No.2 in the writ petition. Indraj, respondent No.1 in LPA 135/09 and respondent No.2 in LPA 105/2009, is the original writ petitioner who had challenged the appointment of respondent No.3 in the writ petition (Appellant in LPA 105/2009) to the post of Ear Mould Technician which has been made by respondent No.2 in the writ petition (Ali Yavar Jung National Institute) ignoring the qualifications specified in the 2009:DHC:2609-DB

2. Respondent No.2 in the writ petition is a national institute for hearinghandicapped persons under the Ministry of Social Justice and Empowerment, Government of India, New Delhi. The said respondent had issued an advertisement notifying applications from eligible candidates for the post of Ear Mould Technician in the pay scale of 4000-100-6000. The essential qualification for the post in question contained in the advertisement was senior secondary or any equivalent Examination Certificate and Diploma in Communication Disorders/DHLS from NIHH or its RCs or any recognized institution. The advertisement also required that the candidate should have been registered on the roll of Rehabilitation Council of India (hereinafter referred to as RCI). It appears that interviews were held on 27.10.2006 and 14 candidates had appeared in the interview. The Selection Committee, upon a comparative evaluation based on practical and interview, selected respondent No.3 (Nagabhushan S. Reddy) to the post of Ear Mould Technician and placed the petitioner (Indraj) at Sl. No.2 in the select list.

3. The writ petitioner filed WP(C) No. 196/2007 challenging the appointment of respondent No.3 as Ear Mould Technician on the ground that the same has been made in violation of provisions of Section 13(2) and 13(3) of Rehabilitation Council of India Act, 1992 (hereinafter referred to as the Act). Section 13(2) and 13(3) of the Act are reproduced as under: “13(2) No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register,- (a) shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practice as rehabilitation professional anywhere in India;

(c) shall be entitled to sign or authenticate any certificate rehabilitation professional;

(d) shall be entitled to give any evidence in any Court as an expert under section 45 of the Indian Evidence Act, 1872 of any matter relating to the handicapped: Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from the commencement, and if he has made an application for enrolment of the Register within said period of six months, till such application is disposed of. (3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

4. On a plain reading of Section 13(2), it is clear that before a person is appointed, a twin condition is required to be satisfied, i.e. (i) the candidate must possess a recognized rehabilitation qualification, and (ii) the selected candidate must be enrolled on the register of RCI on the date of his selection. Contravention of any one of these conditions is made punishable under Section 13(3) of the Act and there is no provision for relaxation of the mandatory conditions prescribed under Section 13(2).

5. The learned single Judge upon hearing all parties recorded a finding that the diploma course done by Respondent No.3 was not included in the Schedule appended to the Act and thus, the respondent No.3 did not possess the necessary qualification for appointment to the post of Ear Mould Technician and secondly, respondent No.3 was not enrolled on the register of RCI on the date of his selection or even on the date of his appointment. Consequently, the appointment was quashed and the respondent No.2 institute was directed to consider the appointment of the petitioner (Indraj) to the post of Ear Mould Technician as per his merit in the select list/wait list and appoint him to the said post subject to his completing usual formalities period of three weeks.

6. Being aggrieved, these two appeals have been filed by respondent No.2 Institute and respondent No.3 (Nagabhushan S. Reddy). A notice of appeal was also issued to the RCI which filed a short affidavit in the Court. It is seen from the affidavit of the RCI that the respondent No.3 (Nagabhushan

Ear Mould Technician, but admittedly, he was not registered with the RCI at the time of his selection or even at the time of his appointment. It seems that he got himself registered much later after the writ petition was filed. Under the circumstances, the learned single Judge was right in holding that the appointment of Respondent No.3 was in violation of the mandatory provisions of Section 13(2) of the RCI Act inasmuch as the condition relating to the registration with the RCI was admittedly not satisfied by Respondent No.3 at the relevant time. We, therefore, do not see any ground to interfere with the order of the learned single Judge. Both the appeals are dismissed.