Jharkhand High Court
(Dr. Zafar Eqbal & Ors. vs . The State Of Jharkhand & Ors.) on 23 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 796 of 2022
(Dr. Zafar Eqbal & Ors. Vs. the State of Jharkhand & Ors.)
with
W.P.(S). No. 793 of 2022
(Dr. Devendra Nath Tiwari & Ors. Vs. the State of Jharkhand & Ors.)
with
W.P.(S). No. 1085 of 2022
(Shakuntala Sundi & Anr. Vs. the State of Jharkhand & Ors.)
with
W.P.(S). No. 1006 of 2022
(Dr. Murli Manohar Prasad & Ors. Vs. the State of Jharkhand & Ors.)
with
W.P.(S). No. 915 of 2022
(Dr. Anupam Ghoshal Vs. the State of Jharkhand & Ors.)
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner : Mr. Abhay Kumar Mishra, Advocate
Mr. Saurabh Shekhar, Advocate
Mr. Ajay Kumar Pathak, Advocate
Mr. P.K. Choudhary, Advocate
Mr. Ashish Verma, Advocate
For the State : Mr. Mukesh Kumar Sinha, Sr. SC
Mr. Gaurav Abhishek, AC to AG
For the JPSC : Mr. Sanjoy Piprawall, Advocate
Mr. Rakesh Ranjan, Advocate
Mr. Prince Kumar, Advocate
Mr. Abhay Prakash, Advocate
Mr. Amritanshu Singh, Advocate
Mr. Pravin Kumar Pandey, Advocate
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04/ 23.03.2022 Since the common issues are involved in all these writ petitions,
they are tagged and heard together.
Petitioners have approached this Court with a prayer for issuance
of writ in the nature of mandamus commanding the respondents to allow the
petitioners to participate in the selection process for appointment of AYUSH
Doctors pursuant to the Advertisement Nos. 09/2022, 10/2022 and 11/2022, by
giving age relaxation to all contractual AYUSH Doctors, particularly,
petitioners who had been working with the respondent-State since 2012 and
were selected following due selection process on contractual basis.
Admittedly, it is not the vested right of the applicants to get
relaxation in age against the policy decision of the State. The issue involved in
these writ petitions are not of the shifting the cut-off date rather the issue is:
"Whether the petitioners who are working with respondent-
State on contractual basis for a long period of time, be given
an opportunity to appear in examination for appointment on
regular basis , advertisement for which has come for the first
time after coming into existence of the state of Jharkhand in
the year 2000 "
Earlier, some of the AYUSH Doctors moved this Court in W.P.(S).
No. 1734 of 2009 and other analogous cases with a prayer to allow them to
discharge their duties on the respective posts and further if regular selections
are made on the posts in question, the respondents may consider cases of the
petitioners by condoning overage as per relevant provisions of service laws.
After hearing the parties, the Writ Petition was disposed of with the
following directions:
"10.After hearing the learned counsel for the respective
parties and having bestowed my anxious consideration to the
rivalized submissions and on perusal of the documents on
records, it would be in the interest of justice to direct the
State Government to go for regular selection of Ayush
Doctors in accordance with law after framing the necessary
law and rules for recruitment, if not already framed, and
while framing the rules, the respondents-authorities may
inesert clause for condonation of age as per the relevant
provisions of the Service Code since no regularisation,
contractual or regular recruitment has been made for the
last 9 years and some of the eligible candidates have become
overaged therefore, in order to mitigate the legitimate
expectations of eligible candidates those have over-aged in
the meantime the respondents being ideal employer ought to
go for regular selections for Ayush doctors by framing the
suitable recruitment rule if not already made as
expecitiously as possible preferably within a period of six
months from the date of receipt/ communication of the
order."
Similar issue fell for consideration before the Hon'ble Patna High
Court and considering every aspects of the matter, fully conscious of the
facts that Courts seldom interfere in the policy decision of the State regarding
age relaxation, as the law is well settled that determination of eligibility
criteria and other conditions for appointment against any Government post
squarely falls within the domain of the State as an employer and no one can
claim as a matter of right, for making change in the eligibility criteria fixed
by the State employer. The writ petition was disposed of with the following
observations and directions:
"8. It is true that it is purely within the domain of the
State, as an employer, to lay down eligibility conditions in
terms of age, qualification, experience etc. for appointment
to a public post in consonance with the nature of duties to be
discharged by a person to be appointed against such post. It
is the own decision of the State Government in its circular
issued vide letter no. 212 dated 23.01.2007, which permits
grant of age relaxation in the upper age limit, where the
recruitment process for a particular post could not be
undertaken according to the schedule and in the meanwhile
the aspirants for the post become over aged. Further, the
respondents have not disputed the specific stand taken by the
petitioners that 16 years age relaxation has been allowed for
Allopathic, Dentist and Specialist (Allopathic) Doctors in the
matter of their regular appointed, taking recourse to the said
letter No. 212 dated 23.01.2006 of the General
Administration Department. All those posts are under Health
Department, Government of Bihar. In case of
Physiotherapist/ Occupational Therapist, this Court, by
order dated 16.10.2020 in case of Krishna Murari and
Another vs. State of Bihar and Others (supra), has directed
the respondents to consider the cases by granting one time
relaxation having regard to the fact that they were appointed
on contractual basis from respective dates when they were
below 37 years of age and were still continuing.
9. Considering the admitted facts and circumstances of
the case, this writ application is disposed of with a direction
to the Principal Secretary, Health and Family Welfare
Department, Government of Bihar, to take a final decision in
respect of grievance of these petitoners for grant of 16 years
age relaxation in upper age limit for the posts in qustion in
the light of the fact that similar age relaxation has been
allowed in case of Allopathic Doctors and Dentist Doctors
as asserted in the writ petition. Final decision must be taken
in this regard within a period of one month from the date of
receipt/ production of a copy of this order."
In the State of Jharkhand AYUSH Doctors are working on
contractual basis since very long. After bifurcation of the State, no steps have
been taken for regular appointmet of AYUSH Doctors. In view of order
passed by this Court in W.P.(S) No. 1734 of 2009, a Notification was issued
on 06.01.2021, though not made public in in view of derth of AYUSH
Doctors in the State of Jharkhand and as also no regular appointments have
been made till date, a decision was taken to consider for relaxation of seven
years' as a one time measure for those who are working for more than five
years. It is an admitted fact that in the State of Jharkhand no regular
appointments have been made for the post of AYUSH Doctors since very
inception i.e. the year 2000 when State of Jharkhand came into existence.
AYUSH Doctors are working on contract basis for the last 12 years or more.
Considering age relaxation for 7 years cannot be said to be rational approach
of the State. It also cannot be termed to be a policy decision as the same has
not been notified by way of Gazette Notification. The age prescribed in the
advertisement debars the AYUSH Doctors from making application as
obviously they have become overaged working since more than 12 years.
The law is well settled that there cannot be class amongst the class. The
AYUSH Doctors cannot be distinguished by considering cases of those who
have worked for five years and disallowing the claim of those who have
worked for more than 10 years. The approach of the State is wholly arbitrary
and irrational. Equal opportunity has to be given to all the contractual
AYUSH Doctors who have been working in the State of Jharkhand as on date
and may be considered by giving age relaxation as a one-time measure.
The Hon'ble Apex Court in the case of CSIR v. Ramesh Chandra
Agrawal reported in (2009) 3 SCC 35 has observed as under:
"33. Indisputably, a policy decision is not beyond the pale of
judicial review. But, the court must invalidate a policy on
some legal principles. It can do so, inter alia, on the premise
that it is wholly irrational and not otherwise. The contention
of the respondents that only two chances are granted for
consideration of the candidature of the employees for the
purpose of regularisation is, in our opinion, misconceived.
The Scheme being a one-time measure, even one
opportunity could have been granted."
Further, in para-45 of the said Judgment, the Hon'ble Court has
observed as under:
"45. However, in this case, Para 9 of the Scheme although
does not contain any limitation in the matter of exercise of
power, it was for the authority concerned to lay down a
principle as to in which case the power of relaxation should
be exercised and in which case it would not be. If sufficient
number of candidates were available who had worked for
more than 15 years, keeping in view the requirements of the
appellant itself the Director could take a further policy
decision that no relaxation shall be granted to an applicant
who did not fulfil that criterion. Ordinarily, the Court, it is
trite, would not interfere with such discretionary power in
exercise of its jurisdiction of judicial review."
Admittedly, the AYUSH Doctors working on contractual basis in
the State of Jharkhand have become overage without getting any opportunity
to appear in the selection process for appointment on regular basis.
Since, earlier also the issue fell for consideration before this Court
as well as the Hon'ble Patna High Court and directions were given to relax
upper-age as one time measure, irrespective of the discipline to which the
petitioners belonged to as admittedly, all are AYUSH Doctors, may be from
different discipline i.e. Ayurvedic, Unani, Homeopathy, etc., as they have
been working since long, the right has accrued to them to appear in the
selection process for appointment on regular basis since after bifurcation of
the State and creation of new State of Jharkhand, for the first time
advertisement has been floated for appointment of regular AYUSH Doctors.
In view of the aforesaid facts and in peculiar circumstances of the
case, the respondents are directed to extend last date of filling-up of the
application form pursuant to the Advertisement Nos. 09/2022, 10/2022 and
11/2022 for a further period of 15 days from today for all contractual
AYUSH Doctors working in the State of Jharkhand and they may be allowed
to fill-up forms for the respective posts as a onetime measure giving
relaxation to their age subject to fulfillment of other eligibility criteria laid
down by the State. The respondents - JPSC is directed to issue Press
Communique in the local New paper having wide circulation in the State of
Jharkhand as well as by putting the same on its Official Website informing
the arrangements made by this Court.
Let it be made clear that this direction has been issued in a peculiar
facts and circumstances of the case being conscious of the fact that sitting
under Article 226 of the Constitution of India the Court seldom interferes in
the policy decision of the State and judicial review can be done only if the
decision on the face of it is arbitrary.
The respondent - Principal Secretary, Department of Health,
Education and Family Welfare, Government of Jharkhand as well as the
Director, Jharkhand State AYUSH Medical Council are directed to take a
policy decision regarding age relaxation of AYUSH Doctors keeping in view
peculiar facts and circumstances of the case as a onetime measure since for
the first time after bifurcation of the State, an advertisement has been floated
for regular appointment. Let a decision to that effect be taken by the
respondents by assigning reasons within a period of six weeks from the date
of receipt/ production of a copy of this order.
The respondents are directed to file counter-affidavit within a
period of six weeks.
List these cases after six weeks.
Any appointment pursuant to Advertisement Nos. 09/2022,
10/2022 and 11/2022 will be subject to outcome of theses writ petitions.
As a result thereof, pending Interlocutory Applications stand
diposed of.
Let a copy of this order be handed over to counsel appearing for
the JPSC as also to the office of learned Advocate General.
(Dr. S.N. Pathak, J.)
Kunal/RC
