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2021 DIGILAW 231 (PAT)

Shashi Ketu Ojha v. State Of Bihar

2021-03-09

CHAKRADHARI SHARAN SINGH

body2021
JUDGMENT : 1. Bihar Technical Service Commission, Patna, has come out with Advertisement No. 04/2020 to 09/2020 for recruitment against the posts of Ayurvedic Medical Officer/Unani Medical Officer for the State of Bihar. Clause 3 of the advertisement lays down eligibility criteria for said posts in terms of age. Sub-clause (v) of Clause 3, however, provides that a minimum of 12 years of age relaxation shall be allowed, in the upper age limit category-wise, for such persons only who are working on contractual basis. 2. The petitioners in the present application claim that they have the requisite educational qualification for the posts advertised. They have challenged the stipulation in sub-clause (v) of Clause 3 of the advertisement, which confines age relaxation of 12 years only for the persons working on contractual basis by referring to letter No. 212 dated 23.01.2006 of the General Administration Department, Government of Bihar. According to the petitioners, the said letter dated 23.01.2006 of the General Administration Department contemplates grant of age relaxation for all eligible candidates, who become over aged for a post because of absence of process for selection. It is the petitioner's specific case that no advertisement was ever issued by the State respondents for regular appointment on the post of Ayurvedic/Unani Medical Officers in the State of Bihar and, for the first time, the advertisements came to be issued on 28.09.2020, through vacant posts to be filled up on regular basis were there. 3. A counter affidavit has been filed on behalf of the State respondents, from which it transpires that last regular appointment of Ayurvedic Medical Officers, Homeopathic Medical Officers and Unani Medical Officers was made in the years 2000, 1999 and 1993 respectively by the Department through Bihar Public Service Commission. It is stated in the counter affidavit that after lapse of nearly to decades, it was not found feasible for the department to calculate the number of posts on which age relaxation could be allowed with reference to the General Administration Department's letter No. 212 dated 23.01.2006. Accordingly, the State Government decided not to grant age relaxation in minimum age limit or applications other than the persons working on contractual basis. It has further been stated that the Health Department, Government of Bihar, has already forwarded its advice/decision to the General Administration Department in the matter of age relaxation explaining fully reasons for non-grant of age relaxation. Accordingly, the State Government decided not to grant age relaxation in minimum age limit or applications other than the persons working on contractual basis. It has further been stated that the Health Department, Government of Bihar, has already forwarded its advice/decision to the General Administration Department in the matter of age relaxation explaining fully reasons for non-grant of age relaxation. Accordingly, under a policy decision, it has been decided to grant 12 years of age relaxation only to the contractual Ayurvedic Medical Officers. It is mentioned in the counter affidavit that various posts of Ayurvedic Medical Officers have been created in different years as under : - "In the year 2009-10 202 posts In the year 2010 28 posts In the year 2011 22 posts In the year 2014 01 posts In the year 2015 05 posts In the year 2018 266 posts In the year 2019 2340 posts" It is the case of the department that in exercise of powers conferred by the Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and service conditions) (Amendment) Rules, 2017, the Health Department, Government of Bihar, has already decided to give reasonable age relaxation of 12 years uniformly to the candidates working on contractual basis. 4. I have heard at length Mr. Ashwani Kumar Tiwary, learned counsel appearing on behalf of the petitioners, Mr. Manish Kumar, learned G.P.-4 representing the State respondents and Mr. Nikesh Kumar, learned counsel for the respondent Bihar Technical Service Commission. 5. Mr. Ashwani Kumar Tiwary, learned counsel appearing on behalf of the petitioners has argued with reference to the advertisement that sub-clause (v) of Clause 3 refers to the letter of the General Administration Department, Government of Bihar, dated 23.01.2006 as the basis for granting age relaxation. He has submitted that in view of the admitted fact that selection process could not be undertaken for filling up the posts in question, it was imperative for the respondents to have allowed age relaxation for those who became over aged with the lapse of time and thus did not have any opportunity to participate in the process of selection. 6. Mr. Manish Kumar, learned G.P.-4 appearing on behalf of the State respondents has, on the other hand, argued that the Rules, as amended in 2017, permits the Department for granting age relaxation for the Doctors working on contractual basis. 6. Mr. Manish Kumar, learned G.P.-4 appearing on behalf of the State respondents has, on the other hand, argued that the Rules, as amended in 2017, permits the Department for granting age relaxation for the Doctors working on contractual basis. He has accordingly submitted that grant of age relaxation, as mentioned in the advertisement, has sanction of law. 7. Mr. Nikesh Kumar, learned counsel for the respondent Bihar Technical Service Commission, has submitted that the Commission has to act on the basis of policy decision of the State Government in the matter of age relaxation and, in accordance with the requisition made by the Health Department, Government of Bihar, the posts have been advertised, eligibility conditions have been prescribed in the advertisement. 8. The recruitment in question is governed by the Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and service conditions) Rules, 2010. Rule 4(c) of the Rules reads as under : - "4.(c) Age limit- the maximum age limit as prescribed by the Government (General Administration Department) from time to time shall be applicable." The statutory rules clearly prescribed that the maximum age limit shall be as prescribed by the General Administration Department, Government of Bihar, from time to time. 9. This is an admitted fact that the maximum age limit as prescribed in the advertisement is in accordance with the decision of the General Administration Department, Government of Bihar. The dispute relates only to the question of relaxation in upper age limit. The Personnel and Administrative Reforms Department, Government of Bihar (now General Administration Department), after taking note of the fact that because requisitions are not sent to the Selection Commission for recruitment against various posts, process of selection stands delayed and is not undertaken every year for filling up of the posts. The said letter is addressed to all Heads of Departments mentioning clearly that the vacancies should be calculated every year and requisitions should be sent to the recruiting agency accordingly, every year. The said letter is addressed to all Heads of Departments mentioning clearly that the vacancies should be calculated every year and requisitions should be sent to the recruiting agency accordingly, every year. It also prescribes that in case it was not possible to yearly advertise the vacancies, then in such circumstance, such candidates, who were eligible in terms of age in the last examination, but became ineligible because of having become over aged in the absence of any process of selection because of posts having not been advertised, such candidates should be allowed to participate in the next process of selection by giving them age relaxation. The decision of the State Government in the letter dated 23.01.2006 has been explained by giving an illustration to the effect that if the last advertisement was in the year 1994 and there was no subsequent advertisement in the years 1995 and thereafter, then such candidates, who were eligible in 1995, but crossed the maximum age limit in subsequent advertisement, and if the subsequent advertisement is published in 2000, in such circumstance, they should not be declared ineligible on the ground of having crossed upper age limit, but only for the year 2000. 10. It is clear from the said letter dated 23.01.2006 that it was issued to mitigate the difficulties being faced by eligible candidates becoming over aged because of year-wise recruitment process not being undertaken by the State. When the Rules were framed in 2010, the guidelines, as contained in letter dated 23.01.2006 (supra) was in force. It is the General Administration Department, Government of Bihar, which is to prescribe age limit for recruitment in accordance with the Rules, which came into force in 2010. Unfortunately, the posts were not advertised for filling up on permanent basis year-wise, despite the guidelines issued by the General Administration Department in its letter dated 23.01.2006, which fact is not in dispute. 11. Unfortunately, the posts were not advertised for filling up on permanent basis year-wise, despite the guidelines issued by the General Administration Department in its letter dated 23.01.2006, which fact is not in dispute. 11. In response to a query made by the General Administration Department, Government of Bihar, the Health Department, Government of Bihar, in its letter dated 04.12.2020 has mentioned as under : - ^^bl Ádkj vk;qosZfnd fpfdRlk inkf/kdkjh dh fu;qfDr esa lkekU; Á'kklu foHkkx ds i=kad 212 fnukad 23-01-2006 ds vkyksd esa ;g x.kuk djuk vklku Árhr ugha gks jgk gS fd fdrus inksa ij mez lhek esa dc ls NwV fn;k tk;A vr% lkekU; Á'kklu foHkkx ds i=kad 212 fnukad 23-1-2006 ds vkyksd esa vf/kdre mez lhek esa NwV ns; ugha gksxkA ek= lafonk dfeZ;ksa dks lHkh dksfV esa vf/kdre mez lhek esa 12 o"kksZa dk NwV ns; gksxk] pkgs og dk;Zjr dHkh ls gksA** 12. It is apparent from the said communication dated 04.12.2020 that according to the Health Department, Government of Bihar, it was found not easy for the Health Department to calculate as to against how many posts, upper age limit could be relaxed as the posts were sanctioned from time to time from the year 2009-10 to 2019. It is accordingly the stand of the Health Department that provisions for age relaxation has been made only for those, who were working on contractual basis. The said logic of the Health Department is not acceptable to this Court. If the Health Department was finding it difficult to determine the number of posts against which age-relaxation could have been granted, what logic did the department apply for granting age relaxation to all contractual employees is a question which has remained clueless. 13. In view of the admitted fact that the petitioners became ineligible to apply against the post because of non-publication of advertisement for years together, in my opinion, it would be arbitrary and discriminatory for the respondents to deny them benefit of age relaxation in the light of the General Administration Department's letter dated 23.01.2006. 14. In the facts and circumstances, this application is allowed with the following directions : - (i) The petitioners shall be granted age relaxation for maximum of 12 years. 14. In the facts and circumstances, this application is allowed with the following directions : - (i) The petitioners shall be granted age relaxation for maximum of 12 years. (ii) While determining as to how much relaxation in age can be allowed to them, the respondents shall take into account the date of acquisition by them of their requisite educational qualification. (iii) They shall be treated to be eligible for appointment in the year when they acquired requisite educational qualification. The difference of number of years from the date of acquiring the minimum educational qualification and the year of publication of the present advertisement shall be the maximum age relaxation in upper age limit, which the petitioners shall be allowed. (iv) The respondents are directed accordingly to accept the application forms of these petitioners, if they are found to be eligible after granting them age relaxation in terms of the present order. 15. This application is allowed with aforesaid observations and direction. 16. There shall be no order as to costs.