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2007 DIGILAW 1649 (PAT)

Gauri Nath Jha v. State Of Bihar

2007-10-08

J.N.BHATT, MIHIR KUMAR JHA

body2007
Judgment Mihir Kr.Jha, J. 1. This appeal is directed against the order, dated 18.8.2006 in CWJC No. 1218 of 2004* whereby and whereunder the learned Single Judge has dismissed the writ application filed by the appellant seeking a relief of setting aside the appointment of respondent no. 6 on the post of the Deputy Director, Homeopathy. 2. The appellant-writ petitioner, holding the cost of Homeopathy Medical Officer in the State Homeopathy Dispensary, Bithuar, Madhubani had initially filed a writ application on 27.1.2004 challenging the validity and correctness of an advertisement, dated 7.1.2004 issued by the Bihar Public Service Commission (hereinafter referred to as "the Commission") on the requisition made by the Department of Medical Education, Family Welfare and Indigenous Medicine of the Government of Bihar for the solitary post of Deputy Director, Homeopathy. The appellant-writ petitioner had also prayed for a consequential relief for considering his case for the appointment on the post of the Deputy Director, Homeopathy. It appears that while the writ application was still pending before this Court, the Commission had fixed a date of interview for the post of Deputy Director, Homeopathy in the month of August, 2004 and the appellant-writ petitioner had filed an interlocutory application, being I.A. No. 4037 of 2004 on 16.8.2004 seeking an interim relief that the proposed interview for the post of Deputy Director, Homeopathy may be stayed. It, however, appears that the said interim relief was neither pressed nor considered by the Court and in the meantime, the Commission on the basis of the interview of all the eligible candidates, conducted by it had made its recommendation as a result whereof the respondent no. 6 to this appeal was appointed as Deputy Director, Homeopathy on 29.9.2004 under the orders of the Government of Bihar. Such appointment of respondent no. 6 was thereafter assailed by the appellant-writ petitioner through a supplementary petition being I.A. No. 243 of 2006 filed on 16.1.2006 in this very writ application. Thus, even when the petitioner had initially challenged the advertisement seeking to fill up the post of Deputy Director, Homeopathy by direct recruitment, ultimately the writ application got reduced to challenging the appointment of respondent no. 6 who as stated above came to be appointed on the said post during the pendency of the writ application. 3. Thus, even when the petitioner had initially challenged the advertisement seeking to fill up the post of Deputy Director, Homeopathy by direct recruitment, ultimately the writ application got reduced to challenging the appointment of respondent no. 6 who as stated above came to be appointed on the said post during the pendency of the writ application. 3. From the records of the writ application, it is clear that while the challenge of the petitioner either to the advertisement or to the consequential appointment of respondent no. 6 on the post of the Deputy Director, Homeopathy was based primarily on the ground that the decision of the Government to fill up the said post by way of direct recruitment was itself illegal and arbitrary. In this context, it was the case of the appellant-writ petitioner before the Writ Court and also before this Court that the Department of Health of the Government of Bihar had appointed doctors in four disciplines i.e. Allopathy, Unani, Ayurvedic and Homeopathic system of medicine and, therefore, when the post of Deputy Director in the other disciplines, namely, Unani, Allopathic and Ayurvedic were being filled up by way of promotion from the respective cadre of Medical Officers, there was no rational or justification in filling up the post of Deputy Director in Homeopathic by the impugned, advertisement through the mode of direct recruitment. The appellant-writ petitioner while assailing the advertisement and the process of selection and ultimately the appointment of respondent no. 6 on the post of Deputy Director had also raised his challenge to the whole process on the ground that the laying down of qualification of teaching experience of a minimum period of six years as well as the maximum age limit of 45 years for the candidates of general category as prescribed in the advertisement for the direct recruitment on the post of the Deputy Director, Homeopathy was wholly illegal and arbitrary. In this context, the grievance of the appellant-writ petitioner was/is that on account of both these qualifications either in respect of maximum age or of minimum teaching experience, he got eliminated even though he was the senior-most Homeopathic Medical Officer in the State of Bihar and that too in super-time pay scale of the post of the Medical Officer of Rs. 4,100-5,300 (pre-revised) and Rs. 4,100-5,300 (pre-revised) and Rs. 12,000-16,500 (revised) which was the equivalent pay scale of the post of the Deputy Director, Homeopathy, The real rub for the appellant-writ petitioner, therefore, was that even when he was already placed in an equivalent pay scale by virtue of his seniority and holding the post of Medical Officer, Homeopathy for the last 32 years, he stood conveniently elbowed out and eliminated on account of introduction of the two qualifications relating to age and teaching experience in the impugned advertisement issued by the Commission on the requisition of the State Government. 4. The Official respondents, namely, the Secretary, Department of Medical Education, Family Welfare and Indigenous Medicines as well as the Director, Indigenous Medicines had filed a counter affidavit and also a supplementary counter affidavit wherein more or less it was sought to be conveyed that whereas there was a cadre already created for the Medical Officers of Ayurvedic & Unani System of Medicine and they were designated as Class-II Gazetted Officers from which they had a channel for promotion on the next higher post of the Deputy Director of Unani/Ayurvedic, a Class-I Gazetted post, there was no such similar cadre of Medical Officers, Homeopathy nor they were even designated as Class-II Gazetted Officers. It was thus the case of the State Government before the Writ Court that the single post of Deputy Director, Homeopathy was actually an ex-cadre post in the rank of Gazetted Officer Class-I which was to be filled up by way of direct recruitment on the recommendation of the Commission and that was precisely done while fixing the eligibility criteria and make appointment of Respondent No. 6, the selected recommended candidate by the Commission. 5. The Commission in its separate counter affidavit had also supported the stand of the State Government and had placed before the Writ Court the copy of requisition made by the Government of Bihar setting out the qualifications, experience and requirements for the post of the Deputy Director, Homeopathy, It was the further case of the Commission that it had issued advertisement as per the requisition of the State Government and on receipt of the application, it had undertaken the selection process by holding viva-voce test and had ultimately submitted its recommendation for appointment of respondent no. 6. 6. The respondent no. 6. 6. The respondent no. 6, the person appointed on the post of the Deputy Director, Homeopathy after undergoing the selection through the Commission, has in his separate counter affidavit had while adopting the stand of the State Government and that of the Commission in their respective counter affidavits had also explained that the prescribed qualification for the post of Medical Officer in the Unani or Allopathic System of Medicines, which were in the rank of Gazetted Officers Class-II was degree (graduation) and accordingly all of them alike their counter-part Medical Officers in the Allopathy also having the requirement of degree in Allopathic medicine were given the equivalent pay, status and facilities, but same was never extended to the post of Medical Officers in the Homeopathy inasmuch as for them the minimum qualification was only a diploma and not a degree/graduation in the discipline of Homeopathy. Thus, any diploma holder could be appointed on the post of the Medical Officer, Homeopathy and for this reason the said post was never declared as a post of Gazetted Officer Class-II by the State Government which had always placed them only as non-gazetted employees for whom there was no promotional avenue on any Gazetted post in absence of there being a properly constituted cadre for the Medical Officers of Homeopathy. It was thus contended by respondent no. 6 that there being only one ex-cadre post of Deputy Director in the Gazetted Officer Class-I with no feeder post of Gazetted Officer Class-II nor there being any cadre of Medical Officer, Homeopathy, no incumbent including the petitioner working against the non-Gazetted post of Medical Officer, Homeopathy could claim promotion and that too straightaway on the post of the Deputy Director, Homeopathy in the grade of Gazetted Officer Class-I. 7. The decision to fill up the post of Deputy Director, Homeopathy by way of direct recruitment in the submission of the learned Counsel for the Respondent No. 6 did not suffer from any factual or legal infirmity. As with regard to laying down the qualification either of age or the teaching experience, it was contended on behalf of the respondent no. As with regard to laying down the qualification either of age or the teaching experience, it was contended on behalf of the respondent no. 6 that the job requirement of the post of the Deputy Director, Homeopathy as shown in the requisition sent by the State Government to the Commission, was itself sufficient to show that the Government had decided to appoint a person on the said post who could not only independently regulate the ongoing academic and teaching programme but could also look after the entire administrative set up in the field of Homeopathy under the control of the Director, Indigenous Medicines, being the overall incharge of all the three systems of medicines i.e. Ayurvedic, Unani and Homeopathy. As with regard to the qualification of age, it was also indicated that keeping in view that the post, qualification experience of ten years as a whole including six years of teaching was prescribed for the post of the Deputy Director, Homeopathy, the fixation of 45 years of age as a maximum age for the candidate of general category and 50 years for the reserved category was in keeping with the requirement of the Pension Rules which also laid down the minimum qualifying service of ten years. Thus, when the post was made pensionable, the Government had to fix the maximum age to an extent that the incumbent could have been eligible to draw pension. 8. It may be noted here that the writ application of the appellant-writ petitioner came to be heard and disposed of with another writ application being CWJC No. 11055 of 2004* filed by one Dr. Pawan Kumar, who also had assailed the appointment of respondent no. 6 to this appeal but on different grounds. In fact, Dr. Pawan Kumar did not challenge the terms and conditions of the advertisement because he alike the respondent no. 6 even though working in the Government of Bihar on the post of Medical Officer, Homeopathy unlike the appellant-writ petitioner was qualified in terms of the advertisement and in fact the said Dr. Pawan Kumar alongwith 28 others including respondent no. 6 had appeared in the interview in which respondent no. 6 was declared as the most suitable candidate and on the recommendation of the Commission, he was subsequently appointed on the post of the Deputy Director, Homeopathy. Dr. Pawan Kumar alongwith 28 others including respondent no. 6 had appeared in the interview in which respondent no. 6 was declared as the most suitable candidate and on the recommendation of the Commission, he was subsequently appointed on the post of the Deputy Director, Homeopathy. Dr. Pawan Kumar had filed his- writ petition because he was not recommended, and consequently was not appointed on the post of the Deputy Director, Homeopathy, wherein he had challenged the appointment of respondent no. 6 to this appeal on the ground that respondent no. 6 was not qualified as he had not completed compulsory housemansbip and further that he (Dr. Pawan Kumar) was a better candidate, who ought to have been recommended by the Commission for being appointed on the post in preference to respondent no. 6. 9. Both the writ applications involving challenge to the same appointment of respondent no. 6 to this appeal were heard together and came to be dismissed by a common judgment, dated 18.8.2006. 10. Mr. Banwari Sharma, learned Counsel appearing on behalf of the appellant has stated that it was wholly unreasonable on the part of the State Government not to declare the post of Medical Officer, Homeopathy, a Gazetted post even though assurance in this regard had been given from time to time by the Authorities. His case, therefore, was that had the Government notified the post of Medical Officer, Homeopathy as a Gazetted post, making it a Class-II Gazetted post, there could have been no difficulty for such Medical Officer, Homeopathy to become eligible for being considered for the post of the Deputy Director, Homeopathy, a Class-I Gazetted post which in that event could have been filled up by promotion. Mr. Sharma, however, fairly accepted before us that till the date of issuance of the advertisement on 7.1.2004 neither the post of Medical Officer, Homeopathy was declared to be Gazetted Class-II nor there was a Rule or notification constituting the cadre of Medical Officer, Homeopathy with the post of the Deputy Director, Homeopathy as its promotional post. 11. Mr. Sharma, however, was more emphatic that the State Government could not have made a discrimination in the matter of filling up the post of the Deputy Director in all the three disciplines. 11. Mr. Sharma, however, was more emphatic that the State Government could not have made a discrimination in the matter of filling up the post of the Deputy Director in all the three disciplines. In this regard, his submission that if the Government was filling up the post of the Deputy Director of Unani and Ayurvedic by way of promotion from the Medical Officers, the same procedure and manner of filling up the post ought to have been followed by promoting the Medical Officer of Homeopathy to the post of the Deputy Director, Homeopathy and it was improper and unjustified that the solitary post of the Deputy Director, Homeopathy should have been filled up by way of direct recruitment. 12. I am afraid, I cannot accept this submission of Mr. Sharma because the creation of cadre and making a promotional post in that cadre is totally an administrative decision of the employer. Such discretionary power of the employer, in the present case the State of Bihar, cannot be controlled by this Court in exercise of its power under Article 226 of the Constitution. This Court can neither lay down the qualification for a post nor can it lay down the manner of recruitment for that post. Moreover, when it has been accepted at the bar that the post of the Deputy Director, Homeopathy was an ex-cadre post, it was well within the competence of the State Government to fill up the said post by way of direct recruitment because a promotion to a post can be given only if the same is in the cadre. The effort of Mr. Sharma to take out a bit from here and a bit from there from different Government notifications to show that there was a concept of a cadre of Homeopathy doctors as well and that the Government had intended to make the cadre of Homeopathy Medical Officers at par with the cadre of Medical Officers of Unani and Ayurvedic has not impressed me because it is well settled by now as to how a cadre is to be created and constituted. Reference in this connection may be made to the case of M.G. Sharan vs. State of Bihar & Others, reported in AIR 1970 Patna 25 wherein it has been held that in order to have a duly constituted cadre, there must be a direct executive order duly notified by the Government and it cannot be inferred from the different orders/decisions. Relying on the said judgment of the Division Bench, I would hold that there is no cadre of Medical Officers in Homeopathy alike the cadre of Medical Officer, Unani and Ayurvedic. In absence of a duly constituted cadre of Medical Officer, Homeopathy in Class-II Gazetted post, non-gazetted Medical Officers of Homeopathy cannot straightaway claim their promotion on the post of the Deputy Director, Homeopathy which is a Class-I Gazetted post. Consequently, the plea of discrimination as raised by Mr. Sharma and the comparison with the case of Medical Officers, Unani and Ayurvedic who are admittedly Class-II Gazetted Officers having their right to be considered for promotion on the post of the Deputy Director, Unani and/or Ayurvedic is definitely not sustainable. The reliance placed by Mr. Sharma on the judgment of the Apex Court in the case of Dr. Chakradhari Paswan vs. State of Bihar and Others, reported in AIR 1998 SC 959 for drawing inference that there was an existing cadre of Medical Officer, Homeopathy and that the post of the Deputy Director, Homeopathy was also a cadre post is totally misplaced. The issue involved in the case of Dr. Chakradhari Paswan (supra) was not as to whether there has been a duly constituted cadre of Medical Officer, Homeopathy from which the post of the Deputy Director, Homeopathy could be filled up by way of promotion. In fact the Apex Court had held otherwise while repelling the argument that the Directorate of Indigenous Medicines comprising of four posts, namely, that of the Director and three Deputy Directors, which were Class I posts, were in the same cadre. It was clarified that they are the members of the same service but do not belong to the same cadre. In that view of the matter, the reliance placed by Mr. Sharma on the factual narration portion of the judgment of the Apex Court in the case of Dr. It was clarified that they are the members of the same service but do not belong to the same cadre. In that view of the matter, the reliance placed by Mr. Sharma on the factual narration portion of the judgment of the Apex Court in the case of Dr. Chakradhari Paswan (supra) is not correct because what ultimately is the ratio of the said judgment is that there can be no reservation against the single post of the Deputy Director, Homeopathy. I, therefore, do not see any merit in this part of the submission of Mr. Sharma and the judgment of the Apex Court in the case of Dr. Chakradhari Paswan in no way answers the question which had been raised in the writ application and now in this appeal. 13. From the discussions made above, there is an irresistible conclusion that the post of the Deputy Director, Homeopathy is an ex-cadre post. No rule under proviso to Article 309 of the Constitution constituting the cadre and/or even an executive order laying down the manner of filling up the post of Deputy Director, Homeopathy has been brought on record by the appellant-writ petitioner before the learned Single Judge and, therefore, finding of the learned Single Judge that the post of the Deputy Director, Homeopathy was an ex-cadre post is an unassailable finding of fact and cannot be disturbed. The moment the post of Deputy Director, is held to be an ex-cadre post, there would be no difficulty in accepting the settled law in service jurisprudence that the manner of filling up of that post has to be only through the direct recruitment because filling up of a post by way of promotion can only be possible if there is a cadre. As a matter of fact, this issue with regard to the filling up of an ex-cadre post was in fact gone into by the Apex Court in the case of Dr. Jai Narayan Mishra vs. The State of Bihar & Others, reported in AIR 1971 SC 1318 [: 1971 PLJR (SC)190] where it was held that an appointment to an ex-cadre selection post made by the State Government cannot be interfered with normally by the High Court. In the matter of filling up a selection post, the question of seniority is not relevant in making the selection. In the matter of filling up a selection post, the question of seniority is not relevant in making the selection. It is for the State Government to select such officer as it considers as most suitable candidate and it may seek the assistance of the Bihar Public Service Commission, if it feels necessary. 14. Thus, in light of the binding precedent of the Apex Court with regard to the manner of filling up an ex-cadre post, I have no doubt in my mind that the Government had rightly resorted to the manner of direct recruitment on the ex- cadre post of the Deputy Director, Homeopathy. 15. The next submission on behalf of the appellant that the qualification laid down for the post either in respect of age or the teaching experience was arbitrary only because it eliminated the appellant from being considered for the post of the Deputy Director, Homeopathy is also fit to be rejected as by now it is well settled that it is open to the appointing authority to lay down requisite qualification for recruitment to a Government service as this pertains to the domain of policy. Reference in this connection can be made on judgments of the Apex Court, (i) in the case of Banarsidas & Others vs. State of Uttar Pradesh & Others, reported in AIR 1956 SC 520 , and (ii) in the case of Commissioner, Corporation of Madras vs. Madras Corporation Teachers Mandarum and Others reported in AIR 1997 SC 2131 . As a matter of fact, it is also no longer res integra that it is for the State to decide the qualification required and the Courts cannot substitute the requirement on their assessment of what the requirement should be as has been held by the Apex Court in the case of (i) Mangej Singh vs. Union of India, reported in (1998)9 SCC 471 , (ii) V.K. Sood vs. Secretary, Civil Aviation and Others reported in AIR 1993 SC 2285 . In fact this aspect of the matter has also been concluded by the Apex Court in the case of The Post-Graduate Institute and Others vs. Dr. J.B. Dilawari and Others, reported in AIR 1988 SC 1348 where it has been held that what should be the qualification for the post is a matter for the administration to decide. In fact this aspect of the matter has also been concluded by the Apex Court in the case of The Post-Graduate Institute and Others vs. Dr. J.B. Dilawari and Others, reported in AIR 1988 SC 1348 where it has been held that what should be the qualification for the post is a matter for the administration to decide. In that case the issue of laying down of qualification for the super speciality post in Gastroenterology was decided by the Apex Court in the following words: "Though the Court, it is stated, is the expert of experts, it is proper to take note of its limitations. Realisation of this situation has led to a series of denouncements where this Court has reiterated the position that matters involving expertise should be left to be handled by the expert bodies." 16. Therefore, when the qualification has been fixed by the State Government for the post of the Deputy Director, Homeopathy requiring six years of minimum teaching experience, it cannot be said that the same is in any way arbitrary or irrational specially when the job of the Deputy Director, Homeopathy also involves supervision and control of the teaching and administrative side of entire functioning of the Homeopathic system of medicine in the State. I am, thus, satisfied that prescribing the qualification of six years of minimum teaching experience or the maximum age of 45 years for the general category of candidates in no way can be held to be arbitrary or irrational and in any event the same cannot be interfered with by me in exercise of its power under Article 226 of the Constitution specially by way of judicial review. In the light of my aforementioned conclusion that there was no flaw in the laying down of qualification and experience for the post of the Deputy Director, Homeopathy, the challenge of the appellant-writ petitioner to the advertisement issued by the Commission for the said post must fail specially when the respondent no. 6 on the basis of the said advertisement has already been selected and appointed on the post by the State Government way back on 29.9.2004. It has to be kept in mind that the learned Single Judge has also held in the impugned judgment that the appointment of respondent no. 6 on the basis of the said advertisement has already been selected and appointed on the post by the State Government way back on 29.9.2004. It has to be kept in mind that the learned Single Judge has also held in the impugned judgment that the appointment of respondent no. 6 on the post of the Deputy Director, Homeopathy did not suffer from any illegality and that part of the judgment has already become final in absence of any appeal by Dr. Pawan Kumar, petitioner of CWJC No. 11055 of 2004. The present appellant who was not qualified for the post of the Deputy Director, Homeopathy and did not submit his application for the said post cannot even otherwise assail the appointment of respondent no. 6 specially when his main challenge to the qualification and manner of filling of the said ex-cadre post by way of direct recruitment has been found by me to be devoid of any merit. 17. In light of the discussions made above, I find no reason to interfere with the judgment and order of the learned Single Judge. Consequently, this appeal being devoid of any merit is dismissed. However, there would be no order as to costs.