Akhilesh Kumar vs The State Of Bihar
2021 Latest Caselaw 1342 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.7785 of 2020
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Akhilesh Kumar S/o Late Ram Nandan Singh R/o Mathiapur, P.O.- Jamsaut, Via- Danapur Cantt, Dist.- Patna.

... ... Petitioner/s Versus

1. The State of Bihar Through the Principal Secretary, Deptt. of Health, Govt.

of Bihar, Patna.

2. The Director-in- Chief Health Services, Govt. of Bihar, Patna.

3. The Staff Selection Commission Through its Secretary, Post- Veterinary College, Patna-14.

4. The Chairman Bihar Staff Selection Commission, Post- Veterinary College, Patna-14.

5. The Secretary Bihar Staff Selection Commission, Post- Veterinary College, Patna-14.

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

     For the Petitioner/s   :      Mr.Narayan Singh (Sr. Advocate) with
                            :      Mr.Surya Nararyan Poddar
     For the Respondent/s   :      Mr.S.D. Yadav (AAG 9) with
                            :      Ms.Shama Sinha
     For the B.S.S.C.       :      Mr.Dr.Ratan Kumar

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 09-03-2021

The facts in the present case are not at all in dispute.

2. The Bihar Staff Selection Commission (hereinafter

referred to as 'the Commission') came out with an Advertisement

No. 05010115 dated 21.06.2015 inviting applications for the post

of Lab Technicians (Annexure 1). It prescribed that the aspirants

must possess the minimum educational qualification and technical Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

qualification as prescribed thereunder. The advertisement further

prescribed the procedure for the preparation of merit list.

Respective merits of the candidates, in terms of the advertisement,

was to be determined on the basis of 85 marks for 'educational

qualification, higher education, technical qualification and work

experience'. The rest of the 15 marks were allotted for the

interview. Merit of a candidate was to be thus determined on the

basis of 100 full marks. The distribution of marks against

educational qualification, higher qualification, technical

qualification and work experience has been clearly mentioned in

the advertisement. It prescribes inter alia that a candidate shall be

awarded 10 marks on the basis of their score in higher

qualification (B.Sc./M.Sc.).

3. The petitioner possessed requisite minimum

educational qualification, which makes him eligible to apply. He

holds B.Sc. Hons. degree in Chemistry with first class. He applied

for the post pursuant to the advertisement as Backward Class

Category candidate. The cut-off marks for calling for the interview

in the said category have been fixed at 31.025. The petitioner has

been awarded by the Commission 28.44 marks. Accordingly, he

was not called for the interview. Upon enquiry, the petitioner learnt

that his score against higher qualification of B.Sc. Hons. Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

(Chemistry) has not been considered by the Commission while

determining his merit position. In the said background, the present

writ application has been filed, seeking a direction to the

respondents Commission to award 10 marks against his higher

qualification of B.Sc. Hons. (Chemistry) in terms of the

advertisement.

4. A counter affidavit has been filed on behalf of the

Bihar Staff Selection Commission, stating therein that the

petitioner's qualification of B.Sc. Hons. in Chemistry cannot be

treated to be higher qualification, as the same is not in the same

stream or in the same subject in relation to which the posts have

been advertised. It has been stated that the requisitioning Health

Department, Government of Bihar vide letter no. 1454 (4) dated

07.12.2017 had mentioned that those candidates of Lab

Technician, who have higher degree (B.Sc./M.Sc.) in the

concerned related subjects, in place of Diploma will be treated

eligible for appointment but if the candidates, who have higher

degree (B.Sc./M.Sc.) in other subjects (not related subjects), they

will not be treated as eligible. In the said letter dated 07.12.2017, it

has been clearly mentioned that 25 marks is to be given to the

candidates who have B.Sc. degree instead of Diploma course in

the concerned subject treating B.Sc. degree as meeting the Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

qualifying requirement and in case of such candidates only 10

marks is to be awarded for their M.Sc. degree. Accordingly, it is

the case of the Commission that no weightage can be given to this

petitioner for his qualification of B.Sc. Hons. degree in Chemistry.

5. Mr. Narayan Singh, learned Senior counsel appearing

on behalf of the petitioner has submitted that the terms of

advertisement only shall govern the selection procedure and there

being no stipulation in the advertisement that one should have

higher degree/qualification in stream related to subject of Diploma

in Lab Technician, the respondents cannot now change the rule of

the game by giving an interpretation to the terms of advertisement.

He has placed reliance on a decision rendered by a coordinate

Bench of this Court dated 25.09.2018 passed in C.W.J.C. No. 4504

of 2018 (Priya Ranjan Kumar and Another v. The State of Bihar

and Others) which arose out of a selection process advertised by

the Commission with the same advertisement, which is in question

in the present case.

6. Dr. Ratan Kumar, learned counsel appearing on behalf

of the Commission has on the other hand submitted that in view of

clear stipulation in the letter dated 07.12.2017, as noted above, the

Commission has rightly refused to consider the qualification of the Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

petitioner of B.Sc. Hons. (Chemistry) as higher qualification for

the purpose of determining his merit position.

7. I have carefully gone through the pleadings on record

and have given anxious consideration to rival submissions made

on behalf of the petitioner.

8. The recruitment, in question is admittedly governed

by the Bihar Lab Technician Cadre Rules, 2014 (hereinafter

referred to as 'the Rules') made under Article 309 of the

Constitution of India. Rule 7 of which read as under:-

"Rule-7. Procedure of recruitment.--

(a) For marks obtained in Intermediate/10+2 25 marks

(b) For marks obtained in higher degree(B.Sc./M.Sc.) 10 marks

(c) For marks obtained in Lab Technician Diploma Course examination 25 marks

(d) For work experience in Government hospitals of Bihar State (5 marks per year, maximum 25 marks) 25 marks

(e) For Interview 15 marks Total= 100 marks

(1) The appointing authority, after calculating vacancy on the basis of position as on 1st April of the year and getting roster cleared, shall send reservation category wise requisition to the Commission latest by 30th April.

(2) In light of requisition, the Commission shall invite applications by advertising vacancies and prepare merit list on following basis:-- Explanation.--

The marks to be given to a candidate for Inter/10+2 and Lab Technician Diploma course Examination shall be determined by multiplying the percentage of total marks obtained in the examination of the said course by multiple of 0.25. For example, if a candidate has obtained 50% marks, he will be given 50% x 0.25 = 121/2 marks.

(3) Procedure for interview shall be determined by the Commission.

(4) After preparation of merit list, on the basis of Sub-rule (2) preliminary scrutiny of certificates and medical tests will be caused to be conducted by the Commission with the co-operation of Appointing Authority and thereafter final recommendation will be sent to the Appointing Authority. At the level of Appointing Authority also, verification of antecedents of recommended candidates will be caused to be done after scrutiny of certificates.

(5) Compliance of instructions issued by the Government, from time to time, with respect to procedure of appointment, after recommendation of the Commission, shall be necessary.

Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

9. The language in the advertisement laying down the

procedures of recruitment is in consonance with the language of

Rule 7 of the Rules. Rules 6 lays down the qualification, which

reads as under:-

Rule - 6. Qualification.-

(i) For appointment by direct recruitment to the basic grade posts, minimum educational qualification shall be B.Sc./10+2 (Biology) pass. In addition to this, it shall be necessary to have passed the Diploma course of Lab Technician from a Government recognised institution.

(ii) For direct recruitment in the Lab Technician Cadre, minimum age limit shall be 21 years and maximum age limit shall be the same 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 the cut off date for determination of age.

10. On careful reading of the statutory provisions noted

above, it can be easily seen that I.Sc/10+2 (Biology) pass is the

minimum educational qualification prescribed for the post. In

addition to the said qualification, a candidate must have passed

Diploma course of Lab Technician from a government recognized

institution. The said qualification of Diploma course of Lab

Technician is a technical qualification, which a candidate must

possess to become eligible to participate in the process of selection

for the post in question. Accordingly, technical qualification has

been prescribed in the advertisement, as has been noticed above.

The selection procedure prescribed under the statutory Rules

clearly prescribes the marks to be awarded against different Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

qualifications. It is impermissible for the respondents to tinker

with the clear language of the Rules by issuing letters/guidelines.

It is trite that any administrative government

decision/circular/guideline cannot supersede statutory provisions,

which have force of law.

11. Mr. Singh, learned Senior counsel has rightly placed

reliance on a coordinate Bench decision of this Court in case of

Priya Ranjan Kumar (supra) wherein it has been held that the

Rules do not mention that the benefit against higher qualification

shall be given for the purpose of determination of merit only to

those, who have B.Sc. and M.Sc. qualification in the same stream.

12. In view of the discussion, as noted above, the writ

application deserves to be allowed.

13. Accordingly, the respondent Commission is directed

to consider the petitioner's score in B.Sc. Hons. (Chemistry)

qualification for the purpose of award of appropriate marks against

higher education qualification, as mentioned in the advertisement

for determining his merit for the purpose of calling him for

interview. The Commission is directed to ensure rectification in

the petitioner's score for the purpose of selection in question

within three weeks from the date of receipt/production of a copy of

this order.

Patna High Court CWJC No.7785 of 2020 dt.09-03-2021

14. Interlocutory application, if any, stands disposed of.

15. There shall be no orders as to costs.

(Chakradhari Sharan Singh, J) AKASH/-

AFR/NAFR                        NAFR
CAV DATE                        N/A
Uploading Date                10/03/2021
Transmission Date               N/A