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2013 DIGILAW 185 (PAT)

Avinash Kumar v. State of Bihar

2013-02-07

SAMARENDRA PRATAP SINGH

body2013
ORDER 1. Heard counsel for the petitioner and the State as well as learned counsel appearing on behalf of the Bihar Public Service Commission. 2. The petitioners have sought quashing of Clause-4 of the advertisement No. 5 of 2011 inviting applications for recruitment of Medical Officers in Bihar Public Service Commission for the Bihar Health Service General Duty Sub-cadre providing for selection both on the basis of written examination and interview. The petitioners also pray for a direction to the respondent authorities particularly the Bihar Public Service Commission to make selection of Medical Officers in Bihar Health Service General Duty Sub-Cadre only on the basis of interview as advertised in the case of Bihar Health Service Specialist Sub-Cadre being advertisement No. 2 of 2009, more so as number of valid applications received is much less than advertised vacancy. 3. Before I take up the grounds of challenge, it would be necessary to notice the facts of the case in short. All the petitioners are working as Medical Officers with the Government of Bihar on contract basis. Petitioner nos. 1 and 2 were appointed in 2008, while petitioner No. 3 was appointed in 2007 on a consolidated honorarium. 4. The Bihar Public Service Commission invited applications for appointment to the post of Medical Officers under General Duty Sub-Cadre in the basic grade of Rs. 9300-34800 with Grade Pay of Rs. 5400. The advertisement inviting applications were limited to Doctors who had at least put in two years of Rural service with Bihar Government on contract or agreement basis. The minimum educational qualification prescribed was a MBBS degree and appropriate registration under Bihar & Orissa Medical Act, 1916. Besides this, one year internship without any break from any hospital or Institute duly recognized by the Indian Medial Council and the Government was a must. About 1510 posts were notified in total, out of which 745 was reserved for General Category, 238 for Scheduled Castes, 15 for Scheduled Tribes, 196 for OBC Category, 268 for E.B.C. and 48 for Women belonging to B.C. Category. 3% of the aforesaid posts were reserved for handicapped in their respective categories. The selection was to be made on the basis of written examination and interview. 5. The petitioners are primarily aggrieved with clause 4 of the Advertisement prescribing written examination. 6. They state that as total number of valid applications received was approx. 3% of the aforesaid posts were reserved for handicapped in their respective categories. The selection was to be made on the basis of written examination and interview. 5. The petitioners are primarily aggrieved with clause 4 of the Advertisement prescribing written examination. 6. They state that as total number of valid applications received was approx. 750 much less than notified vacancy, no written examination should be taken. The petitioners further submit that written examination may become necessary, only if the number of applications received is at least 2.5 times the notified vacancies. In support of his submission, the petitioners have relied upon the decision in the case of Ashok Kumar Yadav vs. State of Haryana, 1987 SC 454. The petitioners next submit that in respect of selection for posts where applicants necessarily would be matured persons, selection ought to be made on the basis of interview alone. The petitioners have cited the decision in the case of Lila Dhar vs. State of Rajasthan, 1981 SC 1777 in reference. 7. The petitioners next submit that as per Rule 7 of the Bihar District Medical Cadre/Bihar Health Service Cadre (Appointment on Regular/Contract basis and Service Conditions) Rules, 2008 (hereinafter referred to as Rules 2008), process of appointments in Bihar Health Service Cadre for the post of Medical Officers should have began only after laying down of necessary guidelines by the department. 8. Mr. Pushkar Narain Shahi, learned counsel appearing for the Bihar Public Service Commission submits that Rule 7 of 2008 Rules itself stipulates selection through a competitive examination. He further submits that neither the decision rendered in the case of Lila Dhar or Ashok Kumar Yadav (supra) state that written examination is necessarily to be taken only when the number of applications received is more then 2.5 times the vacancies notified. 9. I am in agreement with the submission of Mr. Shahi that the decision rendered in the case of Ashok Kumar Yadav (supra) does not mandate that written examination is to be held, only when the number of applications received is at least 2.5 times the vacancies notified. The decision in the said case is to the effect that where selection is to be made both on the basis of written examination and interview, then the candidates called for interview should be at least 2.5 times the number of notified vacancies if applications received are in large numbers. The decision in the said case is to the effect that where selection is to be made both on the basis of written examination and interview, then the candidates called for interview should be at least 2.5 times the number of notified vacancies if applications received are in large numbers. The decision in the said case does not state that no written examination is to be conducted where number of applications received is less than 2.5 times the vacancies notified and that selection should be made on the basis of interview and educational qualification. 10. The ratio laid down in the case of Lila Dhar (supra) would too not be applicable in the facts of the present case as it does not curtail the discretion of the employer to undertake such selection process which would ensure selection of candidates most suited for the job. 11. The petitioners submit that the Bihar Health Service General Duty Sub-cadre and Bihar Health Service Specialists Sub-cadre constitute Bihar Health Service Cadre and selection to the said Cadre is governed by common Rules and common selection process. Thus, there can be no different selection procedure for the Bihar Health Service General Duty Sub-cadre, particularly when in the case of Bihar Health Service Specialists Sub-Cadre, a clause was inserted in the advertisement contained in Annexure-3 that the recommendation will be made on the basis of interview only, if the number of applicants are less than 2.5 times of the total number of vacancies. 12. In my view, the submission of petitioners is devoid of merit and cannot claim parity with respect to selection process adopted in case of Bihar Health Service Specialists Sub-Cadre which constitutes a distinct class in itself. 13. Further more, the advertisement contained in Annexure-4 is in respect of appointment in Bihar Health Service General Duty Sub-Cadre under clause 5(a) of Chapter-3 of 2008 Rules. On the other hand, the advertisement inviting application for appointment in Bihar Health Service Specialist Sub-Cadre contained in Annexure-3 is under clause 5(b) of Chapter-3 of 2008 Rules. It would be apt to quote clause 5, 6, 7 and 8 of Chapter-3 of 2008 Rules which is as follows:- “5. The following two sub-cadres will be in the Bihar Health Service Cadre:- (a) Bihar Health Service General Duty sub-cadre. (b) Bihar Health Service Specialist sub-cadre. Doctors of this cadre can be transferred anywhere in the State. 6. It would be apt to quote clause 5, 6, 7 and 8 of Chapter-3 of 2008 Rules which is as follows:- “5. The following two sub-cadres will be in the Bihar Health Service Cadre:- (a) Bihar Health Service General Duty sub-cadre. (b) Bihar Health Service Specialist sub-cadre. Doctors of this cadre can be transferred anywhere in the State. 6. All posts except the posts identified for the District cadre, shall be deemed to be part of the Bihar Health Service Cadre. 7. Appointments to the Bihar Health Service Cadre will be made by the Government against the posts of Medical Officer/Specialist Grade-II. Keeping in view the available vacancies every year, doctors shall be selected through a competitive examination following the prescribed procedure for which guidelines will be issued separately by the Department. The selection will be made through Bihar Public Service Commission and it shall be obligatory to implement the reservation rules prescribed by the Government. 8. It will be obligatory to have a working experience of at least two years in government hospitals in rural areas for appointment in the General Duty sub-cadre. For appointment in Specialist sub-care, it will be essential to have a postgraduate degree in the concerned subject.” 14. It would be borne out from provision of Rule 5, quoted above, that the Bihar Health Service General Duty sub-cadre and Bihar Health Service General Duty sub-cadre would constitute two separate class and category and as such equal parity sought in respect of mode of selection would not be inconsonance with Articles 14 and 16 of the Constitution. The appointment in the first category namely Bihar Health Service General Duty sub-cadre is limited to Medical Officers who have at least served for two years on contract/agreement basis with the State Government. In other words, a person who is otherwise eligible to file an application for appointment in Bihar Health Service Specialist sub-cadre possessing a higher qualification of postgraduate degree would not be eligible to be considered for Bihar Health Service General Duty sub-cadre, if he has not put in two years of Rural service on contract/agreement basis with the State Government. Further more, for appointment in the Bihar Health Service General Duty sub-cadre, the minimum eligibility conditions prescribed is MBBS with one year internship, whereas P.G. degree is a must to qualify for Specialist Sub-Cadre. 15. Further more, for appointment in the Bihar Health Service General Duty sub-cadre, the minimum eligibility conditions prescribed is MBBS with one year internship, whereas P.G. degree is a must to qualify for Specialist Sub-Cadre. 15. We do not see how any prejudice would be caused to the petitioners if selection in general cadre is undertaken on the basis of written examination as well as interview. It is not the petitioners alone who would have to face written examination but all such similarly appointed medicos on contract basis. The petitioners on the other hand should consider themselves lucky if not advantageously placed, as the selection process is not thrown open as in the case for appointment of Specialist Doctor, but instead limited to M.B.B.S. degree holder duly registered, appointed on contract basis as Medical Officers with the Bihar Government. 16. The petitioners next contend that as no separate guidelines has been issued for selection as prescribed in Rule 7 and as such the entire selection process contained in Annexure-4 would be bad in law. The submission of the petitioner is only to be noted to be rejected. 17. Clause 7 states that the appointment to the Bihar Health Service General Duty sub-cadre will be made through a competitive examination. The advertisement states that the selection would be made by the Bihar Public Service Commission on the basis of written examination and interview. The details of the marks earmarked for different papers as well as for the interview are enumerated in clause 4 of the advertisement itself. It is thus evident that the appointment is being sought to be made through a competitive selection process. Further more the other submission of the petitioners that no guidelines has been provided for undertaking the competitive examination would not go to the root of the selection process so as to make the advertisement invalid. The answer to the argument made by the petitioners is to be found in Rule 13 of 2008 Rules namely Repeal and Savings Clause, which is quoted herein-below:- “13. Repeal and Savings-Departmental notification No. 1131(2) dated 29.09.1984 and other related notifications resolutions shall be deemed to be modified to this extent from the date of coming into force of these rules. These rules shall not affect any action being taken under the earlier provisions.” 18. Repeal and Savings-Departmental notification No. 1131(2) dated 29.09.1984 and other related notifications resolutions shall be deemed to be modified to this extent from the date of coming into force of these rules. These rules shall not affect any action being taken under the earlier provisions.” 18. It would appear from Rule 13 that departmental notification No. 1131(2) dated 29.09.1984 laying down the guidelines would stand only modified to the extent covered under 2008 Rules. The guidelines provided in 1984 notification which is not covered under the 2008 Rules would be a guiding factor for conducting the examination. The procedure adopted by the respondents is reasonable and fair and does not offend Article 14 or 16 of the Constitution of India. 19. Thus, in the backdrop of the discussions made in foregoing paragraphs, I do not find any merit in this application and is accordingly dismissed.