Dr. Pratyush Parag vs The State Of Bihar
2021 Latest Caselaw 3819 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No. 8248 of 2020
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Dr. Pratyush Parag Son of Dr. Harishankar Mishra Resident of Usha Hari, VIP Road, Laheriasarai, Darbhanga, Balbhadaurpur, Darbhanga, Bihar- 846001.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Health,

Government of Bihar, Patna.

2. The Additional Secretary, Department of Health, Government of Bihar,

Patna.

3. The Joint Secretary, Department of Health, Government of Bihar, Patna.

4. The Deputy Secretary, Department of Health, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance:-

For the Petitioner:- Mr. Rohit Mishra, Advocate For the State :- Mr. Kamlesh Kishore, AC to SC-12 ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

C.A.V. JUDGMENT

Date: 05.08.2021

The instant case has been taken up for consideration

through the mode of Video conferencing in view of the

prevailing situation on account of COVID 19 Pandemic,

requiring social distancing.

2. The present writ petition has been filed seeking the

following reliefs:-

Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

"(i)For directing the concerned respondent to issue appointment letter in favour of the petitioner, to be appointed on the post of Senior Resident/Tutor, as the persons above the petitioner, in the panel list have not joined.

(ii) For directing the concerned respondent to remove all those Senior Resident/Tutor who have completed 3 years tenure as Senior Resident. Because as per the "Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008" and subsequent upon "Senior Resident/Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion (Amendment), Rules, 2013", (hereinafter referred to as 'the rules'), the tenure of the said post is only for three years.

(iii)For directing the concerned respondent to remove/not to take into consideration the persons who have already completed or have done/produced experience of senior resident/tutor once earlier.

(iv) For directing the concerned respondent to take all the vacancies in consideration accruing till 31.12.2020, for the purposes of filling the post of the Senior Resident/Tutor from the panel list prepared through/by the advertisement no. 8 of 2019 of Health Department , Government of Bihar. Because as per the rule (Annexure-"C" to the rule) the vacancy accruing till 31.12.2020 have to be filled up by the Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

2019 panel.

(v) For directing the concerned respondent to allocate 20% post for candidates who have acquired post graduate degree from any recognized institution, outside the State, as has been stipulated in advertisement itself.

(vi)For directing the concerned respondent to prepare a fresh panel list taking into consideration all aforesaid aspect into consideration."

3. The brief facts of the case are that an advertisement bearing

Advertisement No. 8 of 1990 was published by the Health

Department, Government of Bihar for appointment on the post

of Senior Resident / Tutor dated 03.10.2019. As far as the

petitioner is concerned, he is stated to have completed his MBBS

course in the year 2015 from Choudhary Charan Singh

University, Meerut and had then obtained the post graduate

degree i.e. Master of Surgery from Tirthankar Mahabir

University in the year 2019 as also had obtained the degree of

M.S. in Orthopaedics from the said University. The petitioner

had applied in pursuance to the aforesaid advertisement on

16.10.2019, for being appointed in the department of

Orthopaedics.

4. The learned counsel for the petitioner has submitted that a Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

merit list of eligible candidates was published, as against three

vacancies under the unreserved category in the Orthopaedics

Department, out of which one vacancy was earmarked for a

female candidate. It is submitted that as far as the petitioner is

concerned, he has been shown to be at serial no. 6 in the merit

list and apart from him three people in the unreserved category

were placed above him i.e. at serial nos. 2, 3 & 5. The learned

counsel for the petitioner has also submitted that the candidates

at serial nos. 2 & 3 who were above the petitioner in the panel

under the unreserved category were appointed vide letter dated

06.02.2020, however, both of them did not join, even after

extension of time being granted to them. The learned counsel for

the petitioner has referred to the Senior Resident, Tutor and Bihar

Medical Education Service Cadre Recruitment, Appointment and

Promotion Rules, 2008 (hereinafter referred to as the 'Rules,

2008'), more particularly to Rule 6 (b) to submit that any person,

who has been appointed on any tenure post can hold the post

only for one term. The learned counsel for the petitioner has

lastly submitted that since the candidates at serial nos. 2 & 3 of

the provisional merit list had failed to join, the appointment letter

was required to be issued in favour of the petitioner but despite

him having filed representation dated 15.01.2020 and 08.06.2020 Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

(Annexure-7 to the writ petition), the respondents have failed to

take any decision.

5. Per contra, the learned counsel for the State Shri Kamlesh

Kishore, AC to SC-12 has submitted, by referring to the counter

affidavit filed in the present case that the validity of the 2019

panel, in which the name of the petitioner has been depicted, has

already expired on 31.12.2020, hence no relief can be granted to

the petitioner and his claim has become redundant. It has been

further submitted that on account of non joining of doctors on

various posts of senior Resident/Tutor, in different subjects,

despite extending the period for acceptance of their joining, the

Health Department, Government of Bihar, had then gone ahead

and has already made appointments from amongst the panel/wait

list candidates in five subjects including in the Department of

Orthopaedics vide notification dated 24.08.2020, hence the two

posts under the unreserved category in the Department of

Orthopaedics have now stood filled. It is also submitted that the

Health Department, Government of Bihar vide letter dated

25.08.2020 has already sent requisition to the Examination

Controller, Bihar Combined Entrance Competitive Board, Patna

for initiating fresh selection process and sending fresh

recommendations for making appointment on the post of senior Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

Resident/Tutor.

6. I have heard the learned counsel for the parties and gone

through the materials on record from which I find that the factum

of two candidates having been appointed from the panel/ waiting

list, so as to fill the two posts in the Orthopaedics Department

under the unreserved category, has not been denied by the

petitioner either by filing a rejoinder affidavit or while making

submissions across the Bar at the time of hearing of the present

case, hence it is apparent that there is no vacancy left as against

the aforesaid Advertisement No. 8 of 1990 as far as the

Department of Orthopaedics is concerned, qua the unreserved

category, for which the petitioner had applied, and moreover the

panel has also expired on 31.12.2020 as also the Health

Department has already sent requisition for initiating fresh

selection process and sending fresh recommendation for

appointment on the post of senior Resident/Tutor, thus I find that

the petitioner has got no legally sustainable claim for being

appointment on the post of senior Resident/Tutor under the

unreserved category in the Department of Orthopaedics.

Consequently, the present writ petition stands dismissed, being

devoid of any merit.

7. It is needless to state that dismissal of the present writ Patna High Court CWJC No.8248 of 2020 dt.05-08-2021

petition shall in no manner be an impediment for the petitioner to

participate in the fresh selection process.

(Mohit Kumar Shah, J)

S.Sb/-

AFR/NAFR                NAFR
CAV DATE                22.07.2021
Uploading Date          05.08.2021
Transmission Date