Dr. Dhananjaya Y. Chandrachud, J.
This appeal arises from a judgment of a Division Bench of
the High Court of Judicature for Rajasthan at Jodhpur dated 2
April 2008.
In a Special Appeal, the Division Bench set aside the
judgment of a learned Single Judge dated 5 August 1998.
An advertisement was issued by the Principal and
Controller of Dr. S.N. Medical College and Associated Group of
Hospitals at Jodhpur on 26 August 1991 inviting applications,
inter alia, for one post of Projectionist.
The advertisement stipulated that the candidate must
possess a higher secondary or equivalent qualification and a
license for operating a cinema projector. The last date for
filing application forms was 25 September 1991. The appellant
and the third respondent were the only candidates. The
appellant was appointed on the post of Projectionist.
Both the appellant and the third respondent were
interviewed on 10 October 1991. The appellant was placed at Sr.
No. 1 of the select list. As a result, he was appointed.
A writ petition under Article 226 of the Constitution was
filed by the third respondent before the High Court for
challenging the appointment of the appellant. The main ground
of challenge was that the appellant did not fulfil the
qualifications because he did not possess a license for a
cinema operator.
The learned Single Judge dismissed the writ petition on
the ground that the license for a cinema operator is not
preceded by any course of certification and is only a
recognition of skill. According to the learned Single Judge,
once the employer has made a due assessment of the skill of a
candidate, the appointment is not vitiated. The writ petition
was dismissed.
While reversing the judgment of the learned Single Judge,
the Division Bench held that under the terms of the
advertisement, applications were required to be received by 25
September 1991. The application in the opinion of the Division
Bench should have been accompanied by necessary certificates
establishing academic and technical qualifications. The
Division Bench held that the appellant did not, together with
his application, furnish any document showing that he held a
license for operating cinema projectors. On this ground, the
Division Bench came to the conclusion that the appellant was
not qualified on the last date for the submission of
applications. The appointment of the appellant was quashed and
a direction was issued to consider the candidature of the third
respondent on the basis of his eligibility on the relevant date
and to give him an appointment if he is otherwise found
suitable.
Notice was issued in these proceedings on 7 July 2008 and
status quo was directed to be maintained. Leave was granted on
8 February 2010 and, pending disposal of the appeal, the
interim order was directed to continue. In consequence, the
appellant has continued to work in the post of Projectionist
since his appointment on 22 October 1991.
The basic issue which falls for consideration is whether
the appellant did or did not fulfil the requirement of holding
a license for a cinema operator. The post for which the
application was made was that of a projectionist.
The third respondent, who appears in person, has
submitted before this Court that under Rule 68(2) of the
Rajasthan Cinemas (Regulation) Rules, 1959, it is necessary to
possess such a license.
In view of this submission, it is necessary to advert to
the provisions of Rule 68. Rule 68 provides as follows:-
“68. Certification of operators- (1) During an
exhibition the enclosure shall be in charge of a
qualified operator of not less than 18 years of
age, who holds a certificate granted by the
Electric Inspector to the effect that he is
competent to handle and operate a cinematograph.
(2) An operator shall not be granted a
certificate unless he –
(a) possesses a working khowlege of
cinematograph machine and a
paricular technical knowledge of the
type of machine which he is at the
time employed in operating ;
(b) is already conversant with the
rules relating to cinematograph
exhibitions and precautions against
fire ;
(c) is acquainted with the most
speedy and effective methods of
dealing with fire ;
(d) possesses a fine knowledge of
the elements of electric power
direct and alternating current,
voltage and the like ; and
(e) is proficient in the handling
winding, repairing and efficient
cleaning of films ;
(2-A) An operater may obtain a certificate from
the Electric Inspector having jurisdiction by
presenting himself within a period of 3 months
from the date of his appointment, before the said
Inspector at his Headquarters or at any other
place the Inspector can examine the operator. If
for valid reasons the Inspector is not in a
position to examine the applicant, he may extend
the time limit not exceeding 2 months in writing
to the applicant under intimation to the
licensing authority.
(3) The Electric Inspector may, after issuing a
notice to the operator and after considering his
reply if any, withraw a certificate granted by
him, for the reasons to be recorded in writing.
(4) In regard to the grant and withdrawal of
certificate, the Electric Inspector shall act
under the general supervision of the licensing
authority.
(5) The fee for grant of a certificate shall be
ten rupees and a duplicate copy thereof may be
granted on payment of a fee of two rupees.”
Sub-rule (2-A) of Rule 68 provides that an operator may
obtain a certificate from the Electrical Inspector, by
presenting himself within a period of three months from the
date of his appointment. Sub-rule (2-A) of Rule 68 does not
require possession of a license on date of appointment.
Acquisition within three months of the appointment is
permissible under sub-rule (2-A). The appellant acquired the
license after the date of his appointment. This amounts to a
valid compliance with the express provisions of sub-rule (2-A)
of Rule 68.
The appellant, as we have already noted, has continued in
service since the date of his appointment in October 1991 and
is in service for the last 28 years.
For the above reasons, we are of the view that the
Division Bench of the High Court was in error in setting aside
the appointment of the appellant and interfering with the
judgment of the learned Single Judge.
For the reasons which we have indicated in the present
judgment, we allow the appeal and set aside the judgment of the
High Court dated 2 April 2008. In consequence, the writ
petition filed by the third respondent shall stand dismissed.
However, there shall be no order as to costs.
(HEMANT GUPTA) NEW DELHI January 24, 2019
Civil Appeal No(s). 1690 of 2010
GANGARAM Appellant(s)
VERSUS
THE STATE OF RAJASTHAN AND ORS. Respondent(s)
Date : 24-01-2019 This appeal was called on for hearing today.
CORAM :
For Appellant(s)
Mr. Shekhar Prit Jha, AOR
Ms. Susmita Mahala, Adv.
Ms. Himani Mishra, Adv.
For Respondent(s)
G.P. Capt. Karan Singh Bhati, Adv.
Ms. Vaidruti Mishra, Adv.
Mr. Adarsh Tiwari, Adv.
Mr. Milind Kumar, AOR
Ms. Ruchi Kohli, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable
judgment.
Pending application(s), if any, shall stand disposed of.
(Signed reportable judgment is placed on the file)