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2001 DIGILAW 187 (PAT)

Priyambada Singh v. State Of Bihar

2001-02-28

NAGENDRA RAI, S.K.KATRIAR

body2001
Judgment Nagendra Rai, J. 1. The petitioner has filed the present writ application for a direction to the respondent-State of Bihar and the Director, Indira Gandhi institute of Medical Sciences (hereinafter referred to as the institute) to accept her joining on the post of Administrative Officer in pursuance of appointment letter issued by the Director of the Institute on 22.8.1997, and for holding that the appointment on the post in the Institute can be made only on the basis of selection through open advertisement as per Rule 7 of the Indira Gandhi Sansthan Niyamawali, 1984, published vide notification no. 16.4.1984 (for short the Rules). 2. The facts of this case lie in a narrow compass. On 2.7.1997, an advertisement was issued in the English daily newspaper, namely, Hindustan Times, for appointment to various posts including the post of Administrative Officer in the said Institute by direct recruitment. A copy of the advertisement has been annexed as Annexure 1. The petitioner and other candidates applied for the post of Administrative Officer, for which the prescribed qualification was M.B.A./P.G. Dip. in personnel Management and experience of three years on the administrative side in reputed company or the Government, or Public Sector. The petitioner having a Post Graduate Diploma in Personnel Management obtained in 1990, a certificate issued to her by the Labour Commissioner, Bihar, as per Rule 4(c) of the Bihar Factory Welfare Officer Rules, 1952 having experience from 01.01.1992 to 31.12.1996 as Administrative Officer in Netra Jayti Sava Mandaram Veerangatan, Rajgir, applied for the said post. She was called for the written test and interview, which was fixed on 22.8.1997 and she appeared in the written test and interview and, thereafter, she was appointed on the said post by order dated 22.8.1997. A copy of the appointment letter has been annexed as Annexure 3. In pursuance of the said appointment letter, she submitted her joining but the same was not accepted. 3. In the meantime, one Krishna Nand Chaurasia filed a writ application being C.W.J.C. No. 7147 of 1997, wherein he challenged the said advertisement on the ground that under the recruitment rules relating to recruitment of officers in the Institute, the post of Administrative Officer has to be filled up only by promotion and in case of non-availability of eligible person for promotion, the said post is to be filled up by deputation. Thus, the advertisement for filling up the post of Administrative Officer by direct recruitment was in breach of the aforesaid rules. The petitioner having come to know filed an intervention application and she was also heard and, thereafter, the learned Single Judge by order dated 2.9.1997 allowed the writ application of Krishna Nand Chaurasia and quashed the advertisement itself on the basis of which the petitioner was appointed. A copy of the said judgment has been annexed as Annexure 5. 4. The petitioner challenged the aforesaid judgment by filing L.P.A.No. 1258 of 1997, which was finally disposed of by a Division Bench of this court on 18.5.1998 vide Annexure 6 to the writ application. Before the Division Bench, it was argued that the State Government has framed Rules in 1984 dealing with the matter of appointment, according to which ail the posts in the Institute have to be filled up by direct recruitment and the said Rules have not been amended and as such the learned Single Judge was not justified in quashing the advertisement on the basis of the executive instruction, which cannot amend or modify the Rules dealing with the mode of appointment. The Division Bench disposed of the appeal with observation that the petitioner might approach the writ court apprising it with the aforesaid fact. The petitioner, thereafter, filed Civil Review No. 152 of 1998 before the learned Single Judge, which was withdrawn on 27.11.1998 with a liberty to agitate the question left over by the Division Bench in an appropriate proceeding before a writ court. Thereafter, the petitioner filed the present writ application, which was placed before a learned Single Judge, who by order dated 15.3.2000, referred the same to the Division Bench and that is how the matter has been placed before us. 5. The stand of the petitioner is that the Institute was created by the Indira Gandhi Institute of Medical Sciences Ordinance, 1983. The said Ordinance was later on replaced by the Indira Gandhi Institute of Medical Sciences Act, 1984 (Bihar Act 10/1984) (hereinafter referred to as the Act). Section 26 of the Act empowers the State Government after consultation with the Institute to make rules by notification in the Official Gazette to carry out the purpose of the Act, particularly with regard to the matters mentioned in sub-section (2) thereof. Section 26 of the Act empowers the State Government after consultation with the Institute to make rules by notification in the Official Gazette to carry out the purpose of the Act, particularly with regard to the matters mentioned in sub-section (2) thereof. Clause (c) of sub-section (2) empowers the State Government to make rule with regard to conditions of service of the procedure to be followed by and the manner of filling up vacancies among members of the Institute and Clause (f) empowers the State Government to make rule with regard to the number of officers and employees that may be appointed by the Institute and the manner of such appointment. 6. The State Government in exercise of the power conferred under section 26 of the Act framed the Indira Gandhi Institute of Medical Sciences Niyamawali, 1984, and rule 7 thereof contains provisions with regard to creation of post and appointment on the said post. Clause (c) of the said Rules provides that all posts in the Institute shall be non-practising and the appointment shall be made on the basis of merit through open advertisement. The said Rules have not been amended or modified by any rule framed under section 26 of the Act and the Government notification dated 10.10.1991 providing that the appointment, promotion and other service conditions of the officers and employees of the Institute will be governed by the rules applicable in case of the employees of the All India Institute of Medical Sciences, New Delhi (for short AllMS) cannot supersede the said Rules. The appointment has to be made through open advertisement on the post of Administrative Officer. Thus, the Institute issued an advertisement in terms of the rules and the petitioner was validly selected and appointed and the learned Single Judge in the aforesaid writ was not justified in quashing the advertisement on the ground that the rules of the AllMS are applicable in the case of appointment in the Institute in question in view of the decision of the State Government dated 10.10.1991. 7. The stand of the Institute is that the State Government has issued executive instruction dated 10.10.1991, providing that the rules applicable in the case of appointment, promotion etc. of the officers and employees of the AllMS would be applicable in the case of appointment, promotion etc. of the officers and employees of the Institute. 7. The stand of the Institute is that the State Government has issued executive instruction dated 10.10.1991, providing that the rules applicable in the case of appointment, promotion etc. of the officers and employees of the AllMS would be applicable in the case of appointment, promotion etc. of the officers and employees of the Institute. According to the provisions of the AIIMS, which have been made applicable in the Institute in terms of the aforesaid executive instruction, the post of Administrative Officer has to be filled up by promotion and in case of non-availability by deputation. No eligible candidate in the Institute was available for promotion to the post of Administrative Officer and as such in public interest, the advertisement in . question was issued. 8. The stand of the State is that the Rules are still in force and the Government letter dated 10.10.1991 is neither the decision of the Government nor its notification, rather it is a letter of the Government. 9. Learned counsel for the petitioner submitted that the Rules have been framed under section 7 of the Rules by the competent authority providing mode of appointment in the Institute on the basis of merit by direct recruitment and as such the same cannot be modified/amended or superseded or made redundant by the administrative instruction issued on 10.10.1991. The said administrative instruction has to be ignored and the appointment of the petitioner having been made after following the direct recruitment process has to be given effect to. 10. Learned counsel appearing for the State and the Institute submitted that though it is true that the State Government issued an administrative instruction adopting the rules of the AllMS with regard to appointment, promotion etc. of its officers and employees but the administrative instruction issued by the State of Bihar adopting the rules of the AIIMS is neither contrary to the Rules of 1984, nor has it amended or superseded the statutory rules. On the other hand, it has supplemented the rules on the point, on which it was silent. Elaborating their submissions, they stated that rule 7(c) of the said Rules provides a mode of appointment only with regard to the technical post and not regarding the non-technical post like the Administrative Officer as the rule itself provides that all posts, for which process of direct recruitment was provided, shall be non-practising ones. Elaborating their submissions, they stated that rule 7(c) of the said Rules provides a mode of appointment only with regard to the technical post and not regarding the non-technical post like the Administrative Officer as the rule itself provides that all posts, for which process of direct recruitment was provided, shall be non-practising ones. Rule was silent with regard to the mode of appointment of the employees other than the employees holding technical posts and, thus, the administrative instruction issued by the State Government adopting the rules of the AIMS is not inconsistent. On the other hand, it fills up the gap and supplements the rules. 11. Thus, the question which falls for consideration is as to whether the appointment to the post of Administrative Officer is to be made in accordance with the 1984 Rules, or in accordance with the Rules applicable in the case of employees of AIIMS as adopted by the administrative instruction dated 10.10.1991. 12. The law on this point is well-settled. The Apex Court in the case of Sant Ram Sharma and others, reported in A.I.R. 1967 Supreme Court 1910, in paragraph 7, held that in absence of any statutory rules framed by the Government, it can issue administrative instructions with regard to the principle that is to be followed in the matter of promotion etc. However, the Government cannot amend or supersede the statutory Rules by the administrative instructions but if the Rules are silent on any particular point, the Government can fill up the gaps and supplement rules and issue instructions not inconsistent with the rules already framed. 13. The same view has been reiterated in the case of State of Orissa V/s. Mamtarani Sahu, reported in (1998) 8 Supreme Court Cases 753, wherein in paragraph 11, it was held as follows: "...It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up gaps and supplement rules and issue instructions not inconsistent with the rules already framed. In the present case, there is a provision in the Rules with regard to State Selection Board, but they are silent about District Selection Boards and the procedure for inviting applications and selecting candidates administrative instructions have been issued on these aspects." 14. In the present case, there is a provision in the Rules with regard to State Selection Board, but they are silent about District Selection Boards and the procedure for inviting applications and selecting candidates administrative instructions have been issued on these aspects." 14. Section 26 of the Act empowers the State Government to frame Rules to carry out the purpose of the Act and sub-section (2) contains a provision with regard to the particular matters regarding which the rule is to be framed by the State Government. Clauses (c) and (f) of section 26 run as follows: (c) the conditions of service of the procedure to be followed by and the manner of filling up vacancies among members of the Institute; (f) the number of officers and employees that may be appointed by the Institute and the manner of such appointment". 15. In exercise of the power under section 26 of the Act, the State Government has framed the Rules and in the Rules, there is a provision with regard to the manner of appointment of employees. Rule 7(c) of the Rules is relevant for the purpose of this case, which provides that all the posts in the Institute shall be non- practising and the appointment to the said post shall be made on merit through open advertisement. If this clause will be held applicable to all the employees of the Institute, then the petitioner has a case, but if it is held that the said rule does not cover the mode of appointment with regard to all the classes of employees of the Institute, then issuance of an administrative instruction supplementing the rule is permissible. After reading section 7(c), it is clear that it is applicable only in case of technical post. The mentioning of the fact that all posts shall be non-practising means that is a reference to the person holding a technical post like Doctor, Technician etc. There is no question of a post being non-practising in case of purely administrative post like the Superintendent, Administrative Officer, Assistant Administrative Officer and others. Thus, rule 7(c) provides a mode of appointment only with regard to technical post, which shall be non-practising. The Rules were silent with regard to appointment other than the technical post. The notification of the State Government dated 10.10.1991 provides, inter-alia, that the rules of the AIIMS regarding appointment, promotion, salary etc. Thus, rule 7(c) provides a mode of appointment only with regard to technical post, which shall be non-practising. The Rules were silent with regard to appointment other than the technical post. The notification of the State Government dated 10.10.1991 provides, inter-alia, that the rules of the AIIMS regarding appointment, promotion, salary etc. shall be applicable in the case of non-technical officers and employees of the Institute and has filled up the gap in the said Rules. 16. So far as the technical posts are concerned, so long as the Rules of 1984 remain, the executive instruction cannot apply as that will amount to supplanting the rules or amending or modifying the Rules with regard to the mode of appointment on technical posts. But as that question does not arise, no final opinion is expressed with regard to the same. 17. So far as the employees holding non-technical posts are concerned, as the Rules being silent, the administrative instruction dated 10.10.1991 supplements the rules or fills up the gap on the said point. It is in no way (sicin ?) consistent with the rules framed. Thus, it is held that the administrative instruction dated 10.10.1991 is not inconsistent or amends or modifies or supplants the rules. On the other hand, it supplements the rule and in case of non-technical posts, the rules with regard to promotion, appointment etc. of the AIIMS as adopted by the State Government by the administrative instruction dated 10.10.1991 are applicable in the case of non-technical officers and employees of the Institute. 18. Though I have not expressed any final opinion as to the mode of appointment on technical posts in the Institute; such as Doctor etc. but it is observed that the State Government should take a clear-cut decision in this matter and decide as to whether the 1984 Rules or the Rules applicable in the case of the AIIMS are applicable in the Institute in their cases. The absence of a clear-cut policy will create a lot of problems and will increase the litigations which will be neither in the interest of the Institution nor in the interest of the public of (sicor ?) the State. 19. . In the result, I find no merit in this writ application and it is dismissed with the aforesaid observation. S.K.Katriar, J. 20 I agree.