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2006 DIGILAW 712 (PAT)

Pawan Kumar, Gauri Nath Jha v. State Of Bihar

2006-08-18

NARAYAN ROY

body2006
Judgment 1. Heard counsel for the parties. 2. Both these writ applications since involve common questions of law and similar facts have been heard together and are being disposed of by this order. 3. Both the writ petitioners, in sum and substance, have challenged the appointment of respondent no. 7 and respondent no. 6 namely Dr. Shyam Sundar Singh in both the writ applications respectively (hereinafter referred to as the Private respondent) on the post of Deputy Director, Homeopathic by quashing the impugned advertisement no. 3 of 2004 and results published pursuant to the same. 4. From the pleadings of the parties in both the writ applications, it appears that the petitioner Dr. Pawan Kumar of C.W.J.C. No. 11055 of 2004 who was a Homeopathic doctor, applied for the post of Deputy Director, Homeopathic pursuant to the advertisement no. 3 of 2004. The private respondent also applied for the same. The petitioner and private respondent along with twenty eight persons were called for interview by the Bihar Public Service Commission (hereinafter referred to as the Commission). The result finally was published on 29.8.2004 where the private respondent was declared as a successful candidate. 5. Petitioner of CWJC No. 1218 of 2005 though has challenged the advertisement and also publication of result of the private respondent, but had not applied for the post of Deputy Director, Homeopathic pursuant to the advertisement in question on the ground of age bar but contentions were raised that the post of Deputy Director could have been filled up from amongst Homeopathic doctors as no ex cadre post could have been declared frustrating the claims of the petitioners and similarly situated persons. 6. Mr. Ganesh Prasad Singh, learned counsel for the petitioner Dr. Pawan Kumar of C.W.J.C. No. 11055 of 2004 submitted that the petitioner was having the requisite qualification and he was eligible for the post of Deputy Director but even then the Commission considered a person namely the private respondent who did not have the better qualification in preference to the petitioner. Learned counsel, therefore, submitted that selection of the private respondent is violative of Article 14 of the Constitution. Mr. Learned counsel, therefore, submitted that selection of the private respondent is violative of Article 14 of the Constitution. Mr. Singh further submitted that since the private respondent had not completed the internship of six months which is mandatory for completing four years diploma course and was not having requisite qualification of five and half years degree course, he was not liable for selection and appointment in pursuance of the aforesaid advertisement. It is further contended that even though the petitioner had better qualification as compared to the private respondent, his case was not considered properly by discriminating him and preference was given to the private respondent and thus the selection process vitiated inasmuch as that the authorities proceeded with the selection in an irrational manner without giving due weightage to the academic qualification. 7. On the contrary, learned counsel for the State and the Commission contended that the Commission, having considered the merit, qualification and experience of the candidates, preferred private respondent above all as he was well qualified and was having requisite eligibility. 8. Mr. Indu Shekhar Prasad Sinha, learned counsel for the private respondent on the contrary submitted that under the old course of four years diploma course, intership was not required and since the private respondent had done D.H.M.S. under old course, completion of internship was not required. Learned counsel further submitted that the private respondent was fully eligible for the aforesaid post and he joined the post of Deputy Director, Homeopathic in Deshi Chikitsa, Directorate of Health Department on 4.10.2004 whereas the writ petitioner was not having better qualification and experience and therefore, he had no case of preferential right and this court in exercise of its power under Article 226 of the Constitution need not enter into these questions where the discretion has been exercised by the Commission after assessing the relative merit of the parties. 9. Having heard counsel for the parties and considered the relative pleadings it appears that the post of Deputy Director Homeopathic was advertised as an ex cadre post making the post as such pensionary and keeping in view the provisions of Bihar Pension Rules age limit was prescribed. Petitioner of C.W.J.C. No. 1218 of 2004 Dr. Gauri Nath Jha, since was not having the requisite age for the post aforementioned, he did not apply. Petitioner of C.W.J.C. No. 1218 of 2004 Dr. Gauri Nath Jha, since was not having the requisite age for the post aforementioned, he did not apply. However, he has tried to assail the appointment of the private respondent on the ground that the post of Deputy Director, Homeopathic could not have been an ex cadre post and the persons could have been promoted from amongst the doctors working in the cadre. In this regard, it would be necessary to mention that the cadre of Homeopathic doctors appears to be non-gazetted according to the pleadings of the parties whereas the ex cadre post created is gazetted and since it was to be made pensionary, advertisement was issued inviting applications from eligible persons. The petitioner Dr. Gauri Nath Jha in no case appeared to be eligible for the post nor he had applied for the same and therefore his case must be held to be out of the zone of consideration at the threshold of the case of Dr. Pawan Kumar, petitioner of C.W.J.C. No. 11055 of 2004. 10. So far C.W.J.C. No. 11055 of 2004 is concerned, it appears that the petitioner and others including the private respondent was interviewed and the Commission finally found the private respondent eligible for the post on the basis of qualification and experience etc. The writ petitioner has not alleged any mala fide against the Commission nor there is any material to show that the expert body like the Commission had recommended the name of private respondent without keeping in view any rule/regulation or had violated any fundamental right and, therefore, the selection made by the Commission should not be subjected to judicial scrutiny in normal course. the correctness of the decision of the Commission need not be gone into by the writ courts under Article 226 of the Constitution. In this connection, reference may be made to the case of G.Veerappa Pillai Vs. Raman & Raman Ltd. reported in A.I.R. 1952 S.C. 192. 11. In the case of Secy. (Health) Deptt. of Health and F.W and Anr. Vs. Dr. Anita Puri and Ors. reported in (1996)6 Supreme Court Cases 282 the Apex Court held that preferential qualification does not entitle a candidate for selection nor he may claim as a matter of right. Raman & Raman Ltd. reported in A.I.R. 1952 S.C. 192. 11. In the case of Secy. (Health) Deptt. of Health and F.W and Anr. Vs. Dr. Anita Puri and Ors. reported in (1996)6 Supreme Court Cases 282 the Apex Court held that preferential qualification does not entitle a candidate for selection nor he may claim as a matter of right. In the process of selection discretion of the Commission in absence of violation of statutory rules or a guideline issued by the Government can not be said to be arbitrary. Such discretion exercised by the Commission in involving its mode of evaluation of merit and selection, therefore, does not warrant judicial interference. 12. In the case of Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu and Ors, reported in (2003)5 Supreme Court Cases 341, the Supreme Court held as follows: "9. We have carefully considered the submissions made on either side. The Tribunal as well as the High Court appear to have undertaken a consideration in a superficial and general manner without specifically adverting to the scheme underlying the relevant provisions in the various services, the posts falling under which constituted the cluster of posts falling under Group IIA Services. The rules other that the A.P. Labour Officers Subordinate Services Rules, which came into force on 1985 and the A.P. Commercial Taxes Subordinate Services Rules as they existed prior to the new set of A.P. Commercial Taxes Subordinate Services Rules, 1990 envisaged while providing the required educational qualifications for the posts concerned, preference being given to a candidate who in addition to the ordinary degree in a subject has obtained a degree in law of a recognized university. The Public Service Commission has issued the notification in question Adv. No. 8/90 on 23.7.1990 only and so far as the post of ACTO is concerned, it is the A.P.C.T. Subordinate Services Rules which came into force on 3.2.1990 that alone matter and are relevant since while promulgating these rules under Article 309 of the Constitution it is found mentioned in the preamble itself that they are in supersession of the special rules issued GOMs No. 170-GA dated 30.1.1962. Consequently, there is no scope for relying upon those rules which only provided for giving preference ignoring the relevant rules governing the service at the crucial point. Consequently, there is no scope for relying upon those rules which only provided for giving preference ignoring the relevant rules governing the service at the crucial point. If oblivious to the new rules the Commission in the Advertisement stated anything apparently keeping in mind the old rules, the same can neither bind the appellant Commission nor can provide a legal basis for a right in favour of anyone to the deteriment of the rights of others. Even de hors this aspect, as to what should be the purport of the "preference" envisaged in the superseded rules, the issue will be considered separately alongwith the claims relating to posts in other services. So far as the A.P. Labour Officers Subordinate Services Rules, 1985 are concerned, the provision in the Schedule itself stipulates that "other things being equal, preference shall be given to those who possess... ." The further fact that the respondents for reasons best known to them, have not disclosed either in the main application or at the time of scrutiny of the records prior to the interview, itself would disentitle them from staking a claim subsequently on the basis of the qualification to which they kept for themselves without due disclosure, to the Commission. XX XX XX XX "11. Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal those with the additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merit, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merit and demerits of all candidates to be considered. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merit, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merit and demerits of all candidates to be considered. It is to be viewed the way the High Court and the Tribunal have chosen to, it would amount to first exhausting in the their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those with ordinary degree and who do not possess the additional qualification. Assuming for consideration without even accepting the same to be right or correct view to be taken, at least among the class or category of those possessing the additional qualification, inter se merit performance should be the decisive factor for actual selection for appointment and relief would not have been granted to the respondents for the mere asking only on the basis of the interpretation of the provision to someone who came to court, ignoring the fact that those before the court at any rate in spite of the view taken do not come up to the level of selection considered in the context of numerous others with higher ranks of merit performance, in addition to they being also in possession of the additional qualification, as those before the court. That apart the old rule relating to the post of ACTO, which has become obsolete having being superseded, or even the advertisement if it has stated or the basis of the obsolete rule, that preference will be given first to candidates who possess a degree in Commerce and degree in Law, secondly, to those who possess a degree in Commerce and thirdly, to those who possess a degree in Law, cannot either support the claim of Respondents 1 to 3 nor in any manner lend credence to the interpretation placed by the High Court and the Tribunal. The word "first" has to be construed in the context of even giving preference only in the order and manner indicated therein, inter se among more than one holding such different class of degrees in addition and not to be interpreted visa-vis others who do not possess such additional qualification, to completely exclude them en bloc". 13. The word "first" has to be construed in the context of even giving preference only in the order and manner indicated therein, inter se among more than one holding such different class of degrees in addition and not to be interpreted visa-vis others who do not possess such additional qualification, to completely exclude them en bloc". 13. From the facts as enumerated above and in view of the legal proposition noticed above and in view of the legal proposition noticed above and keeping in view the fact that the petitioner Dr. Pawan Kumar joined the post in 2004.1 am of the view that the selection/appointment of the private respondent on the post of Deputy Director, Homeopathic, in the given facts and circumstances of the case, does not require any judicial scrutiny at this stage. 14. In the result, both these writ applications are dismissed. 15. No costs.