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2021 DIGILAW 212 (PAT)

Sudisht Kumar Mahato v. State of Bihar

2021-03-03

ANIL KUMAR UPADHYAY

body2021
JUDGMENT : 1. An intervention application, bearing LA. No. 2 of 2020, has been filed by the intervenors in C.W.J.C. No. 7175 of 2020, in support of the writ petition does not merit consideration, as the Patna High Court Rules does not permit intervention in support of the writ petition. 2. In view of the above, LA. No. 2 of 2021 in C.W.J.C. No. 7175 of 2020 is rejected. However, if so advised, the applicants may file separate petition. 3. Since all the writ applications involve the similar issue, with the consent of the parties all the writ applications have been heard together and are being disposed of by this common judgment. 4. Heard Mr. Manan Kumar Mishra, learned senior counsel for the petitioners. Mr. Arup Kumar Chongdar, Mr. P. K. Shahi, learned senior counsel for the intervenors, who were declared successful in the selection process, Mr. Manish Kumar, learned counsel for the State. Mr. Suraj Deo Yadav, learned GA, and Mr. Alok, learned counsel for the Bihar Staff Selection Commission. 5. The petitioners in all these writ applications are working on contractual basis in the Health Department as Lab Technicians. They have challenged the action of the respondent i.e. Bihar Staff Selection Commission in ousting them from the zone of consideration for appointment as Lab. Technicians after allowing them to participate in counselling. 6. At the time when they entered the service as Lab. Technicians, 2005 Rule vide notification dated 31.12.2005 was in operation. The definition of para-medical as per 2005 notification is quoted herein below: "2. Definition:- In this rule unless, the context otherwise requires:- (a) Para Medical/Para Dental means: Physiotherapy, Occupational Therapy, Orthotics and Prosthetic, Operation Theatre Assistant, Ophthalmic Assistant, Medical Laboratory Technician, Sanitary Inspector, X-ray Technician, Dental Mechanic, Dental Hygienist, Dresser, Hearing Language and Speech Therapy, E.C.G. Technician and those course of studies which are not covered by any rule, regulations/ act of the state/Central Government. 7. Learned counsel for the petitioners submits that in terms of 2005 Rules, the petitioners were eligible and as such they were inducted the service of State of Bihar on contractual basis and later on they rendered their valuable services as Lab. Technicians in the State run hospitals. Some of them have rendered their services for nearly 10-15 years. 8. 7. Learned counsel for the petitioners submits that in terms of 2005 Rules, the petitioners were eligible and as such they were inducted the service of State of Bihar on contractual basis and later on they rendered their valuable services as Lab. Technicians in the State run hospitals. Some of them have rendered their services for nearly 10-15 years. 8. Brief facts for deciding the present batch of writ applications are set out below: An advertisement was published for regular appointment of Lab. Technician on 21.06.2015. The petitioners, who were working on contractual basis, have submitted their applications in response to the advertisement. The candidature of the petitioners were not rejected by the Commission at the thresh hold rather they were allowed to participate even in the counselling. Counselling was done on 29.05.2020. In between 2005 to 2020, important developments have taken place. After notification of 2005 in the year 2014, the Government in purported exercise of power under Rule 309 framed recruitment Rules for recruitment of Lab Technician vide notification dated 26.02.2017. Before commencement of the counselling in 2020, 2014 Rule was substituted vide notification dated 17.09.2019 and new qualification was introduced before commencement of the counseling. The relevant part of Rule 3, 6, 7 and 13, which has been substituted, Rules are quoted herein below: 3. Substitution of rule-3 of the Bihar Lab Technician Cadre Rules, 2014.- Rule-3 of the said Rules shall be substituted by the following:- "3. Constitution of cadre.- The Lab Technician shall be state level cadre. In this cadre, number of posts in every category and total number of posts in the cadre shall be as many as may be sanctioned by the Government, from time to time." "6. Qualification:- (1) For direct recruitment to the basic category posts, minimum educational qualification shall be pass in intermediate/ +2 (Physics, Chemistry, Biology with English) pass. In addition to this, it shall be necessary to have passed Lab Technician Diploma Course/ Bachelor in Medical Laboratory Technology from Union of India and other States government recognized Institution and it shall be necessary to have a Certificate related thereto. (2) For the direct recruitment in Lab Technician Cadre, minimum age-limit shall be 18 years and maximum age-limit shall be such as may be determined reservation category wise, from time to time, by the Government. (2) For the direct recruitment in Lab Technician Cadre, minimum age-limit shall be 18 years and maximum age-limit shall be such as may be determined reservation category wise, from time to time, by the Government. 1st August of the concerned year shall be deemed to be cut off date for determination of age." "7. Procedure of recruitment.- (1) The appointing authority, after calculating vacancies on the basis of position as on 1st April of the year and getting roster cleared, shall send reservation category wise requisition to the Department latest by 30th April and the consolidated requisition shall be sent to the Commission by the Department latest by 15th May. (2) For the selection, full marks will be 100 (one hundred) as follows:- (a) For the marks obtained in Intermediated/+2 30 marks (b) For marks obtained in Diploma Lab. Technician Course of 25 marks (c) For higher degree in course of Lab Technician (B.Sc./M.Sc) (B.Sc-10 marks and M.Sc. 10 marks) 20 marks (d) For work experience in Government Hospitals- (5 marks per year Maximum 25 marks) 25 marks Total 100 marks "13. Chain of Promotion.-(1) Subject to availability of vacancies, confirmed Lab Technician may be considered for promotion, affording to seniority-cum-merit, to the higher posts mentioned in the Appendix-1. (2) For consideration of promotion, compliance of instructions regarding KALAWADHI issued by the General Administration Department, from time to time, shall be necessary. Compliance of instructions issued by the General Administration Department regarding Character Roll or PAR, maintenance of recommendation in the sealed cover, etc in the context of promotion, shall be necessary at the time of consideration of promotion.". 7. Substitution of Appendix-1 of the Bihar Lab Technician Cadre Rules, 2014.- The Appendix-1 of the said Rules shall be substituted by the following:- "APPENDIX-1 [See Rule 2 (vi), 4, 13, 16, 17] Chain of posts in Bihar Lab Technician Cadre Sl. No. Category Name of Posts Remarks 1. Basic category Lab Technician 2. First ladder Lab Technician Supervisor Note:- The sanctioned strength and pay-schale/ pay level of all aforesaid grades will be such as may be determined by the Government, from time to time." 9. No. Category Name of Posts Remarks 1. Basic category Lab Technician 2. First ladder Lab Technician Supervisor Note:- The sanctioned strength and pay-schale/ pay level of all aforesaid grades will be such as may be determined by the Government, from time to time." 9. Prior to coming into force 2019 Rules, it appears that in connection with C.W.J.C. No. 10392 of 2016 and other writ applications, correspondence was made in between the Secretary of the Bihar Staff Selection Commission and the Officer on Special Duty, Health Department way back on 03.11.2016 for the purpose of appointment of Lab. Technician, the Health Department replied that recognized higher degree may be considered. The aforesaid communication was made with the approval of the Principal Secretary, Health Department. The letter dated 03.11.2016 is quoted below for ready reference : fcgkj ljdkj LokLF; foHkkx izs"kd] 'kadj izlkn] fo'ks"k dk;Z inkf/kdkjh] LokLF; foHkkx] fcgkj] iVukA izsf"kr] lfpo] fcgkj deZpkjh p;u vk;ksx] iVukA iVuk] fn0& 3&11&16 fo"k; %& CWJC No.10392/2016 dqekj izohu izrki ,oa vU; cuke fcgkj jkT; ,oa vU; ds lkFk layXu CWJC No.10677/2016, 11195/2016, 10285/2016, 10778/2016, 14008/2015, 11456/2016 esa fnukad 30-06-2016 dks ikfjr U;k;kns'k ds laca/k esaA izlax %& vkidk dk;kZy; i=kad &2623@vk0] fnukad 15-09-2016 egk'k;] mi;qZDr fo"k;d izlaxk/khu i= ds vkyksd esa lwfpr djuk gS fd iz;ksx'kkyk izkoSf/kdh ds in ij fu;qfDr gsrq oS/k mPprj fMxzh dks ekU;rk nh tk ldrh gSA mijksDr izLrko ij iz/kku lfpo] LokLF; dk vuqeksnu izkIr gSA lwpukFkZ ,oa vxzsrj dkjZokbZ gsrq izsf"krA fo'oklHkktu ¼'kadj izlkn½ fo'ks"k dk;Z inkf/kdkjh] LokLF; foHkkx] fcgkj] iVukA 10. In the final selection, when the respondents decided to oust the petitioners from the zone of consideration, the present batch of writ applications were filed by the petitioners. The writ applications were heard on different dates. 11. Learned counsel for the petitioners submits that these petitioners are not the outsider, but applicants for the post of Lab. Technician, as they were already holding the said post in the Government run hospitals on contractual basis. The petitioners were inducted in the service when 2005 notification was in place and in 2014 they were already in job and continued in job even after coming into force 2014 recruitment rules. Learned counsel for the petitioners further submits that when the petitioners submitted their applications, after due scrutiny with open eye the Commission did not find any fault in their candidatures. Learned counsel for the petitioners further submits that when the petitioners submitted their applications, after due scrutiny with open eye the Commission did not find any fault in their candidatures. To the contrary, they were made to understand that they are eligible as they were working as Lab. Technicians and different correspondence in between the Commission and the Government indicates that they were contemplating considering the case of the persons, who have higher qualification, which is recognized one. Counselling was done after coming into force 2019 Rules, which was notified vide notification dated 17.09.2019. It is reiterated here that counselling was done after substitution of the various sections i.e. Sections 3, 6, 7 and 13 of 2014 Rules. 12. Mr. Manan Kumar Mishra, learned senior counsel for the petitioners in C.W.J.C. No. 7175 of 2020 and Mr. Arup Kumar Chongdar, learned counsel for the petitioners in C.W.J.C. No. 9874 of 2020, have submitted that the respondents have acted in most arbitrary manner and they have illegally ousted the petitioners from the zone of consideration without appreciating the fact that at the time of counselling they were eligible in terms of 2019 Rules, which has substituted substantially 2014 Rules. They submit that even argue do Rule 2014 certain conditions which put a clog on the prospect that the petitioners, who were working as Lab. Technicians on contractual basis the 2014 Rules was substituted by 2019 Rules. In view of the fact that petitioners have worked for 10 years and above cannot be ousted from the zone of consideration on the ground of 2014 Rules, which was substantially substituted in 2019 i.e. before counselling and thereafter Commission allowed the petitioners to participate in the counselling. 13. It is true that doctrine of eclipse is a constitutional scheme, but by analogy they say that whatever was the impediment in the selection of the petitioners was done way by the respondents themselves by adopting 2019 Rules, which has substantially changed the eligibility criteria and thus the basic principles of eclipse applies in this case. 14. In addition thereto the persons, who were already working in the Government run hospitals as Lab Technicians for the last 10-15 years respectively, were invited to participate in the counseling then they reasonably expected consideration of their cases in view of 2019 Rules. 14. In addition thereto the persons, who were already working in the Government run hospitals as Lab Technicians for the last 10-15 years respectively, were invited to participate in the counseling then they reasonably expected consideration of their cases in view of 2019 Rules. They submit that the action of the respondents violates the principle of reasonable expectation, which is one of the settled principles applicable in Public Law. 15. Learned counsel appearing on behalf of the Commission submits that the Commission has acted in terms of 2014 Rules, as that Rule was applicable at the time when the application was invited. He has no answer to the situation that counselling was done much after coming into force 2019 Rules, which has substantially amended the eligibility criteria of 2014 in 2019. He has no answer to the situation that these petitioners were called for counselling, as their candidatures were not rejected at the thresh-hold. They were never told that they were ineligible when they submitted applications in response to Advertisement in 2015. 16. Counsel for the State submits that the respondents have not acted arbitrary, rather they have acted strictly in accordance with 2014 Rules, which was in place at the time of inviting application. However, counsel for the State has no answer for three submissions advanced by the petitioners: (i) That the petitioners are not the outsider, (ii) They were applicants for the post as the Lab Technician working in the Government run hospital on contractual basis for the last 10-15 years and (iii) at least they deserve one time opportunity for consideration of their case in selection, as they were inducted job when they were eligible in terms of 2005 notification and at the time of counselling they were eligible in terms of 2019 Rules, which has substantially substituted 2014 Rules. 17. At this stage, learned counsel for the petitioners additionally submit that on the date of selection the eligibility condition of 2014 Rules has evaporated in the year 2019 and therefore, the respondents were not justified in proceeding ahead on the basis of non-existence of eligibility condition of 2014 Rules once Rule was substituted in 2019 there was absolutely no justification for the respondents in harping on the point that they have acted on 2014 Rules and eligibility which ceases to exist after coming into force 2019 Rules. 18. Mr. 18. Mr. P. K. Shahi, learned senior counsel for the interveners submits that once the selection process has commenced with the advertisement, the selection was required to be done in terms of the norms prevalent on the date of inviting application. He referred to the judgment of the Apex Court in the case of Y.V. Rangaiah and Ors. vs. J. Sreenivasa Rao and Ors., reported in AIR 1983 SC 852 , A.A. Calton vs. The Director of Education & Others, reported in (1983) 3 SCC 280 and P. Mahendran vs. State of Karnataka and Ors., reported in AIR 1990 SC 405 , and one unreported judgment of the Apex Court in the case of Chief Manager, Punjab National Bank & Anr. Vs. Anit Kumar Das (Civil Appeal No. 3602 of 2020) to contend that the Rule of selection is not changed in the mid way of selection process. 19. Mr. Shahi submits that eligibility was to be decided at the touch stone of qualification prevalent on the date of advertisement and any change in the subsequent process will not render the petitioners eligible for appointment if petitioners were not eligible. He submits that if the Rules are amended in that situation the selection committee is required to undertake fresh selection in terms of amended Rule, but once they proceeded with the old selection process they have to strictly adhere to the Rule, which was prevalent when the advertisement was published and application was invited. 20. He submits that if the Rules are amended in that situation the selection committee is required to undertake fresh selection in terms of amended Rule, but once they proceeded with the old selection process they have to strictly adhere to the Rule, which was prevalent when the advertisement was published and application was invited. 20. The Court in order to scale the balance in between two rival contentions and competing interest i.e. those who were declared successful candidates and also considering the rival interest of these petitioners, who are working on contractual basis in the Government run hospitals for the last 10-15 years, who were eligible in terms of 2005 notification as well 2019 notification, the Court is of the view that once the Commission has itself departed from 2014 Rules by inviting the petitioners to participate in the counselling, the submission that the selection process was required to be completed in terms of 2014 Rules is unsustainable by necessary implication the Commission has departed from 2014 eligibility criteria and as such Commission was required to undertake selection process in terms of 2019 Rules, which has introduced the new eligibility criteria and not to strict to the old 2014 Rules, which was not acted upon by the commission while inviting the petitioners to participate in the counselling. 21. After giving anxious consideration of the rival contention of the parties, the Court is of the considered view that these petitioners, who are already working on contractual basis as Lab Technicians and they have acquired sufficient experience were eligible in terms of 2005 notification and even in terms of 2019 notification, which was in place at the time of counselling and petitioners were invited for counselling by the Commission deserve consideration of their case. It is to be noted here that at the relevant time correspondence was made in between the Health Department and the Secretary of the Bihar Staff Selection Commission on the issue of appointing persons with higher qualification with valid degree and the same was communicated to the Commission with the approval of the Principal Secretary of the Health Department that the persons with valid higher degree may be considered for appointment, yet the Commission has finally decided to oust petitioners from the zone of consideration, ignoring their higher qualification and the recognition of their degree. 22. Mr. 22. Mr. Arup Kumar Chongdar, learned counsel appearing on behalf of the petitioners in C.W.J.C. No. 9874 of 2020, with reference to the Aligarh Muslim University Act, submits that the degrees, diplomas and other academic distinction of Aligarh Muslim University is recognized through out the country as valid degree and, as such, excluding the Diploma or the qualification acquired by the persons, who have obtained such degree or Diploma from Aligarh Muslim University as not recognized is illegal, arbitrary and unconstitutional. 23. Counsel for the Commission and the State refer to the definition of the State Government in 2014 Recruitment Rules to contend that the recognized means recognized by the State of Bihar and since the Government of Bihar has not recognized the degree and Diploma of Aligarh Muslim University in terms of 2014 notification, therefore, the Diploma degree of petitioners in C.W.J.C. No. 9874 of 2020 cannot be accepted as valid degree. Such submission is only a submission in desperation and has no legs to stand. 24. On query, the respondent Commission and the State have failed to produce any notification issued by the State Government in terms of 2014 Rules to hold the recognized institution for Lab Technician, which has been the sheet anchor of the respondents. 25. In the aforesaid backdrop of the fact, the Court is of the considered view that once the Commission enquired from the Health Department on the eligibility of the candidate having higher recognized degree, there was no justification to oust the petitioners from the zone of consideration, particularly, after inviting them to participate in the counselling. 26. The Court in the facts of the case is of the view that these petitioners, who are working for the last 10-15 years and acquired Special Knowledge about the job they have performed as Lab Technician, they have become the asset of the State Government hospitals and they deserve at least consideration for the once in the matter of regular selection. 27. In the aforesaid circumstances, the Court is constrained to hold that these petitioners are eligible and they cannot be excluded from the zone of consideration. 27. In the aforesaid circumstances, the Court is constrained to hold that these petitioners are eligible and they cannot be excluded from the zone of consideration. Accordingly, the Commission is directed to revise the entire merit list and consider the case of the petitioners for selection, as they are working as Lab Technician on contractual basis in the Government run hospitals and they are eligible in terms of 2005 Rules as well as 2019 notification, which has in fact substituted substantially 2014 Rules and in the selection process at the stage of counselling was not acted upon by the respondent Commission, which is evident from the fact that these petitioners have participated in counselling notwithstanding 2014 Rules. 28. Accordingly, the Court quashed the merit list and the Commission is hereby directed to prepare fresh select list after considering the case of the petitioners within a maximum period of sixty days from the date of receipt/production of a copy of this order. 29. With the aforesaid, all the writ applications stand allowed in the manner indicated herein above.