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2000 DIGILAW 205 (PAT)

Rabindra Kumar Singh v. Anil Kumar Sinha

2000-02-04

S.N.JHA

body2000
Judgment 1. The dispute in these ten writ petitions relates to fixing the upper age limit of 35 years (in the case of general category candidates) on the cut-off date i.e. 1.10.98, for making applications for the post of Medical Officer in the Bihar Health Service. 2. Recruitment to the Bihar Health Services (Basic Grade) is governed by the Bihar Health Services (Basic Grade) Recruitment Rules, 1984 framed under proviso to Article 309 of the Constitution of India. Rule 6(a) of the said Rules lays down (for the purpose of admission to the competitive examination and recruitment to the post) that a candidate must not have crossed 35 years of age or in the case of candidate belonging to the scheduled caste and scheduled tribes 40 years of age on the 1st day of October in which the competitive examination is to be held. From the impugned advertisement published in newspapers on or about 10.11.98 the upper age limit has been fixed at 35 years in the case of general category candidates, 37 years in the case of Backward class/Most Backward class category candidates, 38 years in the case of Backward class (Females) and 40 years in the case of Scheduled Caste/Scheduled Tribes candidates. It would,/thus, appear that the age limits fixed are in accordance with the rules and in that sense no objection can possibly be taken. The grievance of the petitioners, however, arises from the fact that during the last 9 years after 1989, no recruitment for the basic grade post of Medical Officer in the Bihar Health Service was made with the result that many candidates became over-age. This, if I may say, is the inevitable fall out of not making recruitment periodically. A candidate, who was not eligible on the cut-off date for the last recruitment on the ground of lesser age may become over age when the next recruitment takes place and he may thus be deprived of the opportunity to seek appointment. Though no such minimum age limit has been fixed in the case of recruitment to the basic grade post in the Bihar Health Services under Rule 6, the Rules lay down certain qualifications, such as, passing of the MBBS examination, internship etc. without which the candidate is not eligible to appear. Though no such minimum age limit has been fixed in the case of recruitment to the basic grade post in the Bihar Health Services under Rule 6, the Rules lay down certain qualifications, such as, passing of the MBBS examination, internship etc. without which the candidate is not eligible to appear. A candidate qualified for recruitment at a comparative higher age may still find himsef in the same position of being deprived of the opportunity to apply for appointment and, thus, being considered for the post. The Supreme Court has deprecated the practice of not holding examination periodically resulting in denial of opportunity to the candidates, who may otherwise be suitable for appointment, in several cases. Reference may be made to one of them, State of Bihar & ors. V/s. The Secretariat Assistant Successful Examinees Union of 1986 & ors., AIR 1994 Supreme Court, 736 = (1994) 1 SCC 126 : 1994(1) PLJR (SC) 41. The case related to the appointment of Secretariat Assistants and had arisen from the State of Bihar itself. It is noteworthy that in the aforesaid case there was no statutory Recruitment Rule laying down holding of examination every year or so, as in the case of the Bihar Health Services (Basic Grade) Recruitment Rules. It would be useful to quote rule 4 of the said Rules as under: - "The Government shall indicate the Commission every year the number of vacancies to be filled in by direct recruitment........" 3. It may be mentioned that similar provisions occur in the Recruitment Rules relating to other services, such as, the Bihar Civil Services (Executive Branch), in case of which examinations for recruitment are held periodically more or less. 4. It may be observed here that as a general principle there is no compulsion on the part of the Government to make appointment even though vacancies are available but at the same time if vacancies are allowed to accumulate and bulk appointments are made at a time, there may be possibility of candidates possessing inferior merit coming in. Where examinations are held periodically the chances are that the best of the available lot would be appointed. 5. In these cases I do not wish to make more detailed examination of the matter and thereafter issue general direction, for experience shows that such directions coming from even the Apex Court have fallen flat. Where examinations are held periodically the chances are that the best of the available lot would be appointed. 5. In these cases I do not wish to make more detailed examination of the matter and thereafter issue general direction, for experience shows that such directions coming from even the Apex Court have fallen flat. If I may say so, the State Government is an incorrigible employer. I am of the opinion that the purpose of these writ petitions would be served by directing that the interim orders passed in these cases allowing the petitioners to appear in the examination, subject to result of the case, be made absolute. 6. In a more or less smilar situation a learned Single Judge of this Court in Bishun Dutta Jha & ors. V/s. B.P.S.C. & ors., 1992(2) PLJR 215, observed as under:- "The other grievance of the petitioners is that in terms of rules every year vacancy has to be notified and the steps have to be taken by the Commission for appointment. However, due to laches on the part of the respondents examination is not being conducted for a long period as a result of which many candidates (Advocates) who were eligible to apply during that period, have now become overage. This grievance of the petitioner appears to be genuine as the rules provided that the vacancy has to be notified each and every year and the Commission has to take steps for holding the competitive examination and if the same is not done then the candidates who became eligible during that period cannot be allowed to suffer." 7. Though the aforesaid observations were made in an interim order, in my opinion, they contain good logic and I see no difficulty in adopting the same and make it part of this judgment. 8. Shri Ashok Kumar Choudhary, learned counsel for the Bihar Public Service Commission, submitted that in C.W.J.C. No.5510/99 the concerned petitioners were allowed to appear in the examination by the aforementioned interim order after examination in one or two papers had already been held. 8. Shri Ashok Kumar Choudhary, learned counsel for the Bihar Public Service Commission, submitted that in C.W.J.C. No.5510/99 the concerned petitioners were allowed to appear in the examination by the aforementioned interim order after examination in one or two papers had already been held. He submitted that that if this Court proposed to give finality to the petitioners appearing in the examination pursuant to the interim order, in the case of the petitioners of the said case it may be clarified that their results may be worked out on the basis of papers in which they have appeared in the examination, for there would be practical difficulty in holding special examination for those candidates in the papers in which they could not appear. The submission appears to be well founded. Counsel for the petitioners, however, stated that in some cases in which the writ petitions were dismissed on the ground of laches (because they had approached the Court at a very late stage), the persons concerned have filed letters patent appeals, which are pending in this Court. It was suggested that in the event those appeals are allowed and direction is issued to the Commission to hold special examination in respect of such persons, the petitioners of C.W.J.C.No.5510/99 may be allowed similar benefits. That is to say, they may also be allowed to appear in the papers in which they could not appear, as stated above. The suggestion of the counsel for the petitioners also appears to be reasonable and well founded. 9. In the result, the interim orders passed in these writ petitions permitting the petitioners concerned to appear in the recruitment examination are made absolute. The respondent-commission is directed to treat the petitioners as having duly appeared in the examination and, thus, work out their result along with others. In the case of petitioners of C.W.J.C. No. 5510/99 the results will be worked out on the basis of papers in which they have appeared but in the event of success of the appellants in the aforementioned letters patent appeal, they too shall be allowed similar benefits, that is to say, the petitioners will be allowed to appear in the concerned papers and accordingly their results may be revised so far as necessary. 10. These writ petitions stand disposed of.