Patna High Court
Md. Parvez Alam vs The State Of Bihar on 3 March, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6761 of 2020
======================================================
Sudisht Kumar Mahato Son of Late Sitaram Mahato, resident of Nabiganj,
Chhapra, P.s.- Bhagwan Bazar, District- Saran at Chhapra
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna
2. The Chief Secretary, Govt. of Bihar, Patna
3. Bihar Staff Selection Commission, Patna through its Secretary, P.o.-
Veterinary College, Patna-800014
4. The Chairman, Bihar Staff Selection Commission, P.o.- Veterinary College,
Patna-800014
5. The Secretary, Bihar Staff Selection Commission, P.o.- Veterinary College,
Patna-800014
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7175 of 2020
======================================================
1. Kumar Praveen Pratap S/o Awadhesh Prasad Kumar, R/o Village - Marpa
Mohan Dewkuliya, P.S. Phenhara, District- East Champaran.
2. Md Jawed Akhatar Ansari, S/o Gayasuddin Ansari, R/o Village- Barajor,
Tala Barajor, P.S. Jhajha, District- Jamui.
3. Gautam Kumar Dube, S/o Onkarnath Dubey, R/o Village- Dehridih, P.S. - K.
Hat, District- Purnia.
4. Raj Kumar Puri, S/o Arjun Puri, R/o Village - 13, Kanihar, Sugouli, Ward
No. 5, P.S. Shugauli, District- East Champaran.
5. Vimal Prakash, S/o Late Umesh Narayan Verma, R/o Mohalla - B - 24,
Mitra Mandal Colony, P.S.- Phulwarisarif, District- Patna.
6. Kartikey Kumar, S/o Sri Gopi Nath Dwivedy, R/o Village- Persuni Devajit,
P.S.- Mheshi, District- East Champaran.
7. Raj Kumar Singh, S/o Ganesh Prasad Singh, R/o Village- Mahisaudhi
Madhya, P.S. Jamui, District- Jamui.
8. Vishnu Pandey, S/o Chandra Mohan Pandey, R/o Mohalla - Lane - 2,
Janakpuri Colony, Near St. Karence School, P.S.- Rupashpur, District- Patna.
9. Satish Kumar Pandey, S/o Late Deo Pandey, R/o Mohalla- Malviya Nagar
(Mahadeva) PDM College, P.S.- Siwan, District- Siwan.
10. Md. Sajid Akhatar, S/o Abdul Mobin, R/o Village - Haldi, Post Haldi, P.S.
Surajgarha, District- Lakhisarai.
11. Ajit Prakash, S/o Kausak Kishore Dwedi, R/o Village- Bishnupur, Kalyan,
P.S.- Sahebganj, District- Muzaffarpur.
12. Rajiv Ranjan Kumar, S/o Subedar Ram, R/o Mohalla - Khrist Colony
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
Katchocho Mandar, P.S. Mandar, District- Ranchi (Jharkhand).
13. Sanjeet Kumar, S/o Satyanarayan Bhagat, R/o Mohalla - Khashnagar Ward
2, P.S.- Sonbersaraj, District- Saharsa.
14. Ram Bali Ray, S/o Dunilal Ray, R/o Mohalla- Vikaram Path Sadipur, P.S.-
KHANPUR, District- Samastipur.
15. Md. Amiruddin Ansari, S/o Md. Muslim Ansari, R/o Mohalla- Jamilla Bazar,
P.S. Madhubani, District- Madhubani.
16. Bijay Kumar, S/o Vashu Devi Thakur, R/o Mohalla- Barbana Ward 8, P.S.-
Raniganj, District- Arariya.
17. Kumar Gurave, S/o Ram Chandar Duby, R/o Mohalla- J P Colony, P.S. - K
hat, District- Purnia.
18. Suvendu Kundu, S/o Hira man Kundu, R/o Mohalla - Karkhan, P.,S.-
Taldangra, District- Bankura (West Bangal).
19. Sanjay Kumar, S/o Ram Prawesh Roy, R/o Village - Blehar, P.S.- Dariyapur,
District- Saran.
20. Manoj Kumar, S/o Awadhesh Narayan Srivastav, R/o Mohalla- Chhatra
Dhari Bazar, N R Hospital Chowk, Chapra, P.S. Bhagwan Bazar, District-
Saran.
21. Narendra Kumar, S/o Awadhesh Baitha, R/o Mohalla- Horladih, P.S. Jhariya,
District- Dhanbad (Jharkhand).
22. Ashutosh Kumar Singh, S/o Suresh Prasad Singh, R/o Mohalla- 3/B -
Subham House, Dr. M.P Sharma Clinic, Adarsh Nagar, Bhuindhra, P.S.-
Mufphasil, District- Samastipur.
23. Anil Kumar, S/o Baidyanath Singh, R/o Village- Koireetola, Sultanpur,
Danapur, P.S. Danapur, District- Patna.
24. Ravi Kant Kunal, S/o Vijay Kumar Azad, R/o Mohalla - Azad Bhaban-1,
Near Post Office, Dhelwan, P.S.- Ramkrishnanagar, District- Patna.
25. Ajay Pratap Singh, S/o Suresh Singh, R/o Village- Bhatauni, Kabilashpur,
P.S.- Ramgarh, District- Kaimur.
26. Sushil Kumar, S/o Prabhu Nandan Yadav, R/o Village- Jitwarpur Nizamat,
Ward No. 7, P.S.- Muphasil, District- Samastipur.
27. Ajay Kumar Sharma, S/o Ram Sagar Sharma , R/o Village- Chakhaidar,
P.S.- Tajpur, District- Samastipur.
28. Chanchal Kumar, S/o Umakant Singh, R/o Village- Aure, P.S. Lakhisarai,
District- Lakhisarai.
29. Md Ekhlaque Ahmad, S/o Md Razzaque Ahmad, R/o Village- Habibpur,
Chambelichak, Road, P.S.- Bhagalpur, District- Bhagalpur.
30. Sujit Kumar Singh, S/o Rambahbadur Singh, R/o Village- 28, Silhan,
Baijnathpur, Ekchari, P.S. Bhagalpur, District- Bhagalpur.
31. Rakesh Anshu, S/o Krishna Chandra Choudhary, R/o Village - 403, Harihar
Apartment, Khajpura, P.S.- Rajivnagar, District- Patna.
32. Md. Tanwir Zakee Ansari, S/o Md. Nesar Ahmad Ansari, R/o Village-
Rajopatti, Ansari Road, Ward No. 9, P.S.- Sitamadhi, District- Sitamarhi.
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
33. Rajeev Kumar Baitha, S/o Krishna Prasad Baitha, R/o Village- Chhapiya,
Ward No. 24, P.S.- Gopalganj, District- Gopalganj.
34. Shiv Pratap, S/o Shikandar Prasad Singh, R/o Village Malkalpur Deodhi,
P.S.- Vidyapati Nagar, District- Samastipur.
35. Wishnu Dev Kumar, S/o Ram Nandan Thakur, R/o Village- Narhan, Ward
No. 5, P.S. - Bibhutipur, District- Samastipur.
36. Ravi Shankar Mishra, S/o Shatrudhan Mishra, R/o Village- Jamunia Ward
No. 14, Post Narkatiyagang, P.S.- Sikarpur, District- West Champaran.
37. Sangeet Kumari, D/o Rajeshwar Dubey, R/o Village- Bakasara, P.S. Kargher,
District- Rohtas.
38. Kamakhya Narayan Shukla, S/o Rajendra Prasad Sukla, R/o Village-
Bakasara, P.s. Kargher, District- Rohtas.
39. Amit Kumar Jaishwal, S/o Parasnath Jaishwal, R/o Village- Ward No. 9,
Mangalpura, P.S.- Laukria, District- West Champaran.
40. Jay Prakash Sah, S/o Jagnath Sah, R/o Village - Narar Gothtal, Ward No. 3,
P.S. Kaluahi, District- Madhubani.
41. Radha Raman Yadav, S/o Braj Bhushan Prasad Yadav, R/o Vilage HN-2,
Tyagi Bhawan, Saguna, Bailey Road, P.S.- Danapur, District- Patna.
42. Subir Kumar, S/o Rangnath Rukhaiyar, R/o Village- Bari Patan Devi Road,
P.S.- Alamganj, District- Patna.
43. Manoj Kumar Pathik, S/o Yogendra Modi, R/o Village - Ward No. 11, Near
Sthan, Purani Bazar, P.S. Purani Bazar, District- Madhepura.
44. Sameer Kumar Bharti, S/o Rajendra Bharti, R/o Village- Sirdala, P.S.
Sirdala, District- Nawada.
45. Reeta Kumari, D/o Deenanath Prasad, R/o Village - U.S. Health Care, 28
Shashi Place, Ram Krishna Avenue, Nala Road, P.S. Patrakarnagar, District -
Patna.
46. Rajesh Chandra Gupta, S/o Hem Chandra Gupta, R/o Village - 10, Near Man
Bhawan, Nasariganj, P.S. Danapur, District- Patna.
47. Rajesh Kumar, S/o Chaturi Mehta, R/o Village- Ward No. 2, Nardeh,
Nayatola, P.S. Puraini, District- Madhepura.
48. Rupesh Kumar Paswan, S/o Sitaram Paswan, R/o Village - Suraiti Tola,
Naugachia, Post Dumra, P.S. Bhawanipur, District- Purnea.
49. Surendra Kumar, S/o Kamta Prasad Choudhary, R/o Village- Naubatpur, P.S.
Paliganj, District- Patna.
50. Anand Nath Thakur, S/o Tarkeshwar Thakur, R/o Village - Tarar High
School, Post Tarar, P.S.- Ghogha, District- Bhagalpur.
51. Pawan Kumar Mishra, S/o Rajendra Mishra, R/o Village- Shanti Nagar, P.S.
- K Hat, District- Purnia.
52. Love Kumar, S/o Bhola Nath Thakur, R/o Village - Kansar Near Shiv
Mandir, P.S. - Razapakar, District- Vaishali.
53. Md Saheed Akhtar, S/o Allmuddin, R/o Village- Mita Singh Tola, P.S.
Athmalgola, District- Patna.
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
54. Santosh Kumar, S/o Rajdeo Thakur, R/o Village- Goai, P.S. Naubatpur,
District- Patna.
55. Ramesh Kumar Chaudhary, S/o Kailash Chaudhary, R/o Village Sahiyara,
P.S. Sahiyara, District- Sitamarhi.
56. Md Babar Hussain, S/o Md. Quamruzzama, R/o Village- Malopara, Tola -
Dumaria, P.S.- Routa, District- Purnia.
57. Sudhanshu Prakash, S/o Sharmanand Mehta, R/o Village- Maheshpura
Middle Govt. School, P.S. Mehdiganj, District- Patna.
58. Arun Kumar, S/o Rajendra Prasad, R/o Village- Pechna Road, Kiul Basti,
P.S. Lakhisarai, District- Lakhisarai.
59. Brajesh Kumar Singh, S/o Anant Lal Singh, R/o Village- Milki Gangta, P.S.
Gantamore, District- Munger.
60. Sujeet Kumar, S/o Awadhesh Kumar Singh, R/o Village- Ramchandra
Dohoji, P.S. Hazipur, District- Vaishali.
61. Abdul Matin, S/o Md. Amin, R/o Village- Gopalpur, P.S.- Paroo, District-
Muzaffarpur.
62. Md. Habibur Rahman, S/o Nasiruddin, R/o Village- Chakrkhi, Bhatwara,
P.S. Kadha, District- Katihar.
63. Sumit Kumar Ram, S/o Kaleshvar Ram, R/o Village- Dabil, P.S. Khaira,
District- Jamui.
64. Shivnandan Kumar, S/o Ram Narayan Ray, R/o Village- Mubarakpur, P.S.
Kanti, District- Muzaffarpur.
65. Mukesh Kumar Jha, S/o Late Yadubir Jha, R/o Village Prabhat Colony,
Doner Chowk, P.S. K Hat, District- Purnia.
66. Anil Kumar, S/o Chandeshwar Thakur, R/o Village- Bhagwanpur, P.S.
Bhagwanpur, District- Muzaffarpur.
67. Binod Kumar Das, S/o Ramchandra Das, R/o Village- Sarmastpur, P.S.
Mahnar, District- Vaishali.
68. Shamim Ahamad, S/o Abdul Samad, R/o Village- Masoomganj, Bhagwan
Bazar, P.S. Bhagban Bazar, District- Saran.
69. Bikash Kumar Mehta, S/o Raghuveer Prasad Mehta, R/o Village- Kumhari,
P.S. Kadwa, District- Katihar.
70. Sunil Kumar, S/o Late Govind Prasad Singh, R/o Village Chaksapia, P.S.
Rajpur, District- Banka.
71. Shailendra Kumar, S/o Kamta Prasad Choudhary, R/o Village - Paliganj, P.S.
- Paliganj, , District- Patna.
72. Vikrant, S/o Ghanshyam Prasad, R/o Village - Katihar, P.S. - Katihar,
District- Katihar.
73. Shiv Kumar Yadav, S/o Sharwan Kumar Yadav, R/o Village- Post, P.S.
Sonepur, District- Darbhanga.
74. Ashok Kumar Singh, S/o Bashista Narayan Singh, R/o Village - HN - 18,
P.S. Jamui, District- Jamui.
75. Sharad Kumar, S/o Amrendra Kumar, R/o Village- Karnawada, P.S. Khaira,
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
District- Jamui.
76. Sanjay Kumar Ram, S/o Baijnath Ram, R/o Village- Jaitpura, P.S. - Noan,
District- Kaimur.
77. Gajendra Kumar, S/o Ramakant Prasad Singh, R/o Village- Yarpur
Rajputana, Gardanibagh, P.S. Gardanibagh, District- Patna.
78. Saimul Arnesh Hembram, S/o Phristianwel Hembram, R/o Village- Bamdah,
P.S. Jamui, District- Jamui.
79. Mohshin Raza, S/o Md Jakir Hussain, R/o Village- Saidpur Ganesh,
Panapur, P.S.- Biddupur, District- Vaishali.
80. Rakesh Kumar, S/o Ashok Chaudhary, R/o Village- Sikandra, P.S. Sikandra,
District- Jamui.
81. Rakesh Kumar, S/o Arjun Paswan, R/o Village- Mahadeo Simariya, P.S.
Sikandra, District- Jamui.
82. Rajesh Kumar Vishkarma, S/o Ram Prasad Mishtri, R/o Village- Kallubara,
P.S. Munger, District- Munger.
83. Rohan Mukesh Kumar, S/o Raja Lal Mahto, R/o Village- Sukhasan Chakla
Ward n 3, Utterwari, P.S.- Madhepura, District- Madhepura.
84. Pramod Kumar Ravi, S/o Mukhan Paswan, R/o Village - Gogo, Post-
Rajbariyakala, P.S. Naviagar, District- Aurnagabad.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Health Department,
Govt. of Bihar, Patna.
2. Principal Secretary, Health and Family Welfare Department, Govt. of Bihar,
Patna.
3. The Director-in-Chief, Health Services, Govt. of Bihar, Patna.
4. Bihar Staff Selection Commission, through its Secretary, Patna.
5. The Chairman, Bihar Staff Selection Commission. Bihar.
6. The Secretary, Bihar Staff Selection Commission, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7406 of 2020
======================================================
Braj Kishore Sharma Son of Bhagwan Jee Sharma, Resident of Village-
Kohrauta, Post Office-Lahejee, Police Station-Pachrukhi, District-Siwan.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna.
2. The Chief Secretary, Govt. of Bihar, Patna.
3. Bihar Staff Selection Commission Patha through its Secretary, P.O.
Veterinary College, Patna-800014.
4. The Chairman, Bihar Staff Selection Commission, P.O. Veterinary College,
Patna-800014.
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
5. The Secretary, Bihar Staff Selection Commission, P.O. Veterinary College,
Patna-800014.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 7414 of 2020
======================================================
Sanjay Kumar Singh Son of Late Laxmi Singh Resident of Village- Viroul,
P.S.- Khajauli, District- Madhubani.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Bihar, Patna.
2. The Bihar Staff Selection Commission through its Secretary, P.O. Vetenary
College, Patna.
3. The Secretary, Bihar Staff Selection Commission, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 9874 of 2020
======================================================
1. Md. Parvez Alam, Son of Md. Quyamuddin, Resident of Rampur Mohanpur
Ward No.4, P.S.- Araria, District- Araria-854311.
2. Md. Firoz Bakht Rahi, Son of Md. Zainuddin, Resident of Azad Nagar Ward
No. 19, P.S.-,Araria, District-,Araria-854311
3. Milind Monu (M) Son of Moti Lal Sharma, Resident of Ward No. 25,
Forbesganj, P.S.-Forbesganj, District-Araria-354318.
4. Md. Sarwar Alam (M) Son of Md. Shamsuddin Resident of Village-
Dahibhat, P.S.-Teragachh, District-Kishanganj-855101.
5. Md. Anwar Hayat (M) Son of Late Md. Taiyab Hayat Resident of Azad
Nagar Ward No. 20, P.S.-Araria, District-Araria-854311.
6. Ashok Kumar Singh Son of Sri Rajendra Kumar Singh Resident of Village-
Katari, P.S.-Chabilapur, District-Nalanda-803116.
7. Md. Shams Tabrez (M) Son of Masiburrahman, Resident of Village-Ward
No. 7, Chilhariya, P.S.-Mahalgao, District-Araria-854325
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Government of Bihar, Patna.
2. The Director-in-Chief (Administration), Health Service, Government of
Bihar, Patna.
3. The Bihar State Staff Selection Commission, through Its Secretary,
Veterinary College Campus, Patna-14.
4. State Tuberculosis Control Programme Officer, Agam Kuan, Patna.
5. District Tuberculosis Officer, Revised National Tuberculosis Control
Programme Officer, Araria.
... ... Respondent/s
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 6761 of 2020)
For the Petitioner/s : Mr.Lakshman Lal Pandey, Advocate
For the Respondent/s : Mr.Lalit Kishore (Ag)
For the Intervenors : Mr. P. K. Shahi, Sr. Advocate
Mr. Mukesh Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 7175 of 2020)
For the Petitioner/s : Mr. Manan Kumar Mishra, Sr. Advocate
Mr. Vishwajeet Kumar Mishra, Advocate
For the Respondent/s : Mr. S. D. Yadav, AAG-9
(In Civil Writ Jurisdiction Case No. 7406 of 2020)
For the Petitioner/s : Mr.Lakshman Lal Pandey
For the Respondent/s : Mr.Lalit Kishore ( Ag )
(In Civil Writ Jurisdiction Case No. 7414 of 2020)
For the Petitioner/s : Mr. Abhya Kumar, Advocate
Mr. Ramchandra Singh, Advocate
For the Respondent/s : Mr. Manoj Kumar, AC to GP-4
(In Civil Writ Jurisdiction Case No. 9874 of 2020)
For the Petitioner/s : Mr.Arup Kumar Chongdar, Advocate
For the Respondent/s : Mr. Ajay Behari Sinha, GA-8
Mr. Neeraj Raj, AC to GA-8
For the BSS Commission: Mr. Alok, Advocate
Mr. Manish Kumar,
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date : 03-03-2021
Ref.: I. A. No. 2 of 2020
An intervention application, bearing I.A. 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, I.A. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
as on 1st April of the year and getting roster cleared, shall
send reservation categorywise 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, fullmarks will be 100 (one hundred) as
follows:-
(a) For the marks obtained in 30 marks
Intermediate/+2
(b) For marks obtained in Diploma Lab. 25 marks
Technician Course of
(c) For higher degree in course of Lab 20 marks
Technician (B.Sc./M.Sc)
(B.Sc.-10 marks and
M.Sc. 10 marks)
(d) For work experience in Government 25 marks
Hospitals-
(5 marks per year Maximum 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.".
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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:
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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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.
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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.
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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 arguendo 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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. 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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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
Patna High Court CWJC No.6761 of 2020 dt.03-03-2021
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.
uday/- (Anil Kumar Upadhyay, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09 .03.2021
Transmission Date NA
