[2025:RJ-JP:38863] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No.663/2011 Neelam Agrawal D/o Shri Nawal Kishore Agrawal, aged about 36 years, R/o P.No.208, Khatodiya Bhawan, Balaji Ka Rasta, Ramganj Bazar, Jaipur (Raj.). ----Petitioner Versus 1. State of Rajasthan through Secretary, Medical and Health Department, Govt. Secretariat, Jaipur. 2. The Director, Department of Medical and Health, Rajasthan, 'Swasthya Bhawan', Tilak Marg, Jaipur. 3. Additional Director (Administration) Department of Medical and Health, Rajasthan, 'Swathya Bhawan', Tilak Marg, Jaipur. 4. Sunita Nayar D/o G.K. Nayar through Directorate of Medical and Health Services, Rajasthan, Jaipur. 5. Noor E Zaiba D/o Amant Ullah Khan through Directorate of Medical and Health Services, Rajasthan, Jaipur. ----Respondents For Petitioner(s) : Mr. Ashwini Kumar Jaiman For Respondent(s) : Mr. Yash Joshi with Mr. Deepak Mittal on behalf of Mr. Vigyan Shah, AAG HON'BLE MR. JUSTICE ANAND SHARMA Order 20/09/2025 1. Both the learned counsels appearing for the parties are in complete agreement with the fact that the issues involved in the instant writ petition are squarely covered by the judgment of Rajesh Kumar Nagar & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.1571/2012) decided on [2025:RJ-JP:38863] (2 of 5) [CW-663/2011] 17.12.2014, wherein following observations and directions have been given as under: ".....11. From the materials available on record and communication dated 4th December, 2002, it is evident that the State of Rajasthan recognized the qualifications of Laboratory Technology Course run by SDMH, Jaipur, for the purpose of appointment to the post of Laboratory Technician and also allowed SDMH, Jaipur, to run the Course with an intake of 15 students subject to terms and conditions stipulated therein. The permission (No Objection Certificate) also stipulated a condition that SDMH, Jaipur, will not adopt any criteria of admission without permission of the State Government. The fees structure as approved by the State Government was to be strictly adhered to. The Rules and reservation policy was also not to be violated as adopted by the State of Rajasthan. 12. On being queried by the Court, the learned counsel appearing on behalf of the respondents was not in a position to show, with the help of sustainable documentary evidence, that the permission (No Objection Certificate) accorded vide communication dated 4th December, 2002 (Annexure-12), to run the course of Laboratory Technology, was ever withdrawn. 13. The submissions made by the learned Government Counsel referring to the communication dated 17th January, 2001 (Annexure R/1) and communication dated 13th January,2003 (Annexure R/2), to substantiate the withdrawal of recognition of the Course of Laboratory Technology, cannot be sustained, in the face of amendment made under the rules of 1965 vide amendment in the year 1995 in exercise of powers under provisio to Article 309 of the Constitution of India as is evident from the publication in the Rajasthan Gazetted dated 28th July, 1995. The qualifications prescribed conferring eligibility for appointment to the post of Laboratory Technician under the statutory rules of 1965, as amended in 1995, cannot be changed or tinkering with by an administrative order/instruction or under the advertisement while inviting applications for filling up of the [2025:RJ-JP:38863] (3 of 5) [CW-663/2011] vacancies. The powers exercised by the Governor under provisio to Article 309 of the Constitution of India, is a legislative exercise of power, and therefore, any modification or alteration or amendment to the Rules framed in exercise of powers under proviso to Article 309 of the Constitution of India by an administrative fiat, is simply not permissible. 14. In the case of Dhananjay Malik & ors. VS. State of Uttaranchal & Ors; 2008(4) SCC 171, the Hon'ble Supreme Court observed thus: “13. A Constitution Bench of this Court in the case of Sant Ram Sharma v. State of Rajasthan MANU/SC/0330/1967:(1968)IILLJ830SC, has pointed out at p. 1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.13. The aforesaid ruling has been reiterated in paragraph9 of the judgment by a three Judge Bench of this Court in the case of Union of India v. K.P. Joseph MANU/SC/0610/1972: [1973]2SCR752, as under: Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Anr. MANU/SC/0330/1967:(1968)IILLJ830SC, that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed underArticle309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.” 15. The view has been again reiterated by the Hon'ble Supreme Court in a recent pronouncement in the case of Selvi J. Jayalalithaa and Ors. Vs. State of Karnataka and Ors.; 2014 (2) SCC 401; reiterating the earlier view to the effect that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. Thus, amendment in the Rules of 1965 cannot be made unless the procedure prescribed under the law is adopted. Therefore, the communications referred to and relied upon by the learned counsel appearing on behalf of the State-respondents while supporting the stand of the respondents in excluding the petitioners for their ineligibility for not possessing the [2025:RJ-JP:38863] (4 of 5) [CW-663/2011] required educational qualifications under the Rules, in the back drop of administrative instructions, cannot be sustained. 16. A Coordinate Bench of this Court in SB CWP No.1570/2012 (Shreyans Jain & Ors. Vs. State of Raj. & Ors.), considered and adjudicated upon the eligibility of candidates, who acquired the qualification of one year postgraduate course in Laboratory Technician from Maharshi Dayanand Saraswati University, Ajmer, in alternative; who were not considered on the pretext that in case the candidates with 9 months or two years Diploma course are not available, only in that eventuality, their candidature could be considered. 17. The Coordinate Bench taking note of the observations made by the Division bench in the case of Nawal Kishore Sharma (supra), allowed the claim of the petitioners with a direction to the State-respondents to consider their cases for holding the qualification of Diploma in Laboratory Technician of one year duration, that too from Maharshi Dayanand Saraswati University, Ajmer, as a valid qualification. The Coordinate Bench, specifically held in the case of Shreyans Jain & Ors. (supra), that the qualification from Maharshi Dayanad Saraswati University, Ajmer, is a valid qualification from a recognized institution. 18. For the reasons and discussions hereinabove, the writ petition succeeds and is hereby allowed. 19. The respondents are directed to include the petitioners in the select list of successful candidates in accordance with their merit. The petitioners will be entitled to seniority and other consequential benefits notionally. The respondents are directed to comply with the directions within a period of three months from the date of receipt of a certificate copy of this order." 2. In view of the consensus between the learned counsel for the parties, this Court deems it just and proper to dispose of the writ petition with the observation that the instant matter shall be covered by the judgment of Rajesh Kumar Nagar (supra) and the relief which has been given in the aforesaid case shall also be applicable for the petitioner and, therefore, in view of above [2025:RJ-JP:38863] (5 of 5) [CW-663/2011] judgment, the petitioner shall also be entitled to seniority and other consequential benefits notionally. The respondents are directed to make necessary compliance within a period of three months from the date of receipt of a certified copy of this order. 3. Accordingly, the writ petition filed by the petitioner stands disposed of. (ANAND SHARMA),J DAKSH/4