Dr. Shankar Pandit vs The State Of Bihar
2021 Latest Caselaw 4828 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8115 of 2020
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1. Dr. Shankar Pandit Son of Late Triloki Pandit Resident of Village- Etwarpur, P.O.- Kurthaul, P.S.- Parsa Bazar, District- Patna.

2. Dr. Pawan Kumar Son of Shyam Prasad Gupta Resident of Village- Behat, Jhanjharpur, P.S.- Jhanjharpur, District- Madhubani.

3. Dr. Manoj Kumar Son of Ram Ekwal Prasad Resident of Rahul Nagar, Ward No. 2, Brahmpura MIT, P.S.- Brahmpura, District- Muzaffarpur.

4. Dr. Rajendra Singh Son of Late Kailas Singh Resident of Machhariyawan, P.S.- Fatuha, District- Patna.

5. Dr. Umesh Prasad Singh Son of Late Waskit Singh Resident of Village-

Katarmal, P.O.- Katarmala, P.S.- Goraul, District- Vaishali.

... ... Petitioners Versus

1. The State of Bihar.

2. The Principal Secretary Health Department, Govt. of Bihar, Patna.

3. The Principal Secretary General Administration Department, Govt. of Bihar, Patna.

4. The Chairman Bihar Technical Service Commission, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioners : Mr. Bindhyachal Singh, Senior Advocate Mr. Baua Jha, Advocate Mr. Amit Kumar, Advocate For the Respondent State: Mr. A.C. to G.A. -10 For the Respondent Commission: Mr. Nikesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 01-10-2021

Heard Mr. Bindhyachal Singh, learned Senior Counsel

appearing on behalf of the petitioners, Mr. A.C. to G.A.-10 for the

State of Bihar and Mr. Nikesh Kumar, learned counsel

representing the Bihar State Technical Service Commission.

2. The petitioners have sought for following reliefs : - Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

"(i) For holding and declaring that the petitioners, who were appointed on contract basis in July/August, 2010 were included in the District Ayush Medical cadre in terms of Rule-4 (a) and Rule-10 of the Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract Basis and Service Conditions) Rule, 2010.

(ii) For holding and declaring that when Rule-4 (e) which provided for contractual appointment in the District Ayush Medical cadre has been deleted by 2017 amendment to the 2010 Rules and made provisions for regular appointment in the cadre, the services of the petitioners stood absorbed in the District Ayush Medical cadre in terms of Rule-10 of the 2010 Rules.

(iii) For necessary direction upon the respondent authorities to make fresh appointments in terms of 2017 amendment to the Rules after leaving apart the posts on which the petitioners are working, which are 1384 in number inasmuch as the Bihar Technical Service Commission has issued a press communique on 11-09-2020 that they are going to make appointment on 3270 posts of Ayush doctors.

(iv) For necessary direction upon the respondent authorities to grant all the consequential benefits of a regular employee in the District Ayush Medical cadre w.e.f. the date of Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

notification of 2017 amendment to the 2010 Rules.

(v) For necessary direction upon the respondent authorities to make advertisement after reducing the number of 1384 posts on which the petitioners and other similarly situated persons are working.

(vi) For any other direction, which your Lordships may deem fit and proper in the facts and circumstances of the case."

3. The petitioners hold BHMS qualification. According

to them, they were appointed on contractual basis as Ayush

Doctors on the basis of an advertisement issued in 2008 after

following the reservation policy applicable in the State of Bihar.

They were appointed in different districts. They contend that after

their joining, Bihar District Ayush/State Ayush Medical Service

(Appointment on Regular/Contract Basis and Service Conditions)

Rules, 2010 (For short 2010 Rules), came into force, Rule 4 of

which provided that Ayush Doctors working in Additional Primary

Health Centers, Primary Health Centers and State Dispensaries

(Ayurved, Unani & Homeopathic) shall be in District Ayush

Medical Cadre. Appointment to the district cadre, under the said

Rules, was to be made on contractual basis and they were to work

for a minimum period of two years. However, in case of Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

satisfactory service, their services were to be extended. No

permanent appointment was to be made in the cadre. Rule 10 of

the Rules further provided that all Ayush Doctors, who were

appointed and working prior to coming into force of the Rules,

would be deemed to be included in the cadre. Rule 16 of the Rules

provided that all concerned departmental notifications/ resolutions

would be deemed to have been repealed to the aforesaid extent

with effect from the date of coming into force of the Rules. It is

accordingly their case that by operation of Rule 4(a) read with

Rule 10 of the 2010 Rules, the petitioners, who were appointed on

contractual basis and were working in Additional Primary Health

Centers and Primary Health Centers should be deemed to be

included in the District Ayush Medical Cadre. It is further case of

the petitioners that subsequently the State Government notified the

Bihar District Ayush/State Ayush Medical Service (Appointment

on Regular/Contract Basis and Service Conditions) (Amendment)

Rules, 2017 [For short '(Amendment) Rules, 2017']. Rule 2 of the

(Amendment) Rules, 2017 substituted Rule 4(e) of the 2010 Rules

by making provision for the regular appointment in District

Medical Ayush Cadre on the basis of the recommendation of the

Bihar Public Service Commission (For short, 'the Commission').

Thus, the earlier provision of contractual appointment and the Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

provision that no permanent/temporary appointments would be

made in the District Ayush Medical cadre as the same existed in

2010 Rules, was done away with. These amended Rules provided

a different type of selection process containing weightage of marks

against various qualifications and work experience and 15 marks

for interview. In the '(Amendment) Rules, 2017', Rule 4(a) and

Rule 10, as it existed before, remained untouched. It is the

petitioners' case accordingly that admittedly they were working in

the Additional Primary Health Centers. Therefore, since Ayush

Doctors working in Additional/Primary Health Centers, by a

deeming fiction, stood included in the District cadre and since the

provision of contractual appointments and the clause that no

permanent/temporary appointments would be made in the cadre,

stands deleted, by making provision for regular appointments,

services of these petitioners stood regularized by operation of

2010 Rules as amended by (Amendment) Rules, 2017.

4. Mr. Bindhyachal Singh, learned Senior Counsel for

the petitioners, has argued that the petitioners stood regularized in

the District Ayush Medical Cadre by operation of Rule 4(a) and

Rule 10 of 2010 Rules. He submits that clause (e) of Rule 4 of the

2010 Rules in its original avatar prescribed that the District Ayush

Medical Cadre Doctors can be selected on contractual basis only Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

and shall work for at least two years. Because the said provision

was subsequently amended in 2017, deleting the provision of

contractual appointment for District Ayush Medical Cadre

Doctors, by operation of Rule 10 of the Rules, the petitioners stood

included in the Cadre in 2017. By yet another amendment in the

year 2021 in the 2010 Rules, Rule 10 has been amended

stipulating that contractual appointee Medical Officers are not

included in the Medical Cadre.

5. Mr. Bindhyachal Singh has contended that this

amendment fortifies the case of the petitioners on two counts;

firstly, it recognizes the fact that prior to amendment in the year

2021, the contractual appointees were entitled to be included in the

cadre in view of the unamended provisions of Rule 10 of 2010

Rules and, secondly, the amendment has been made with

prospective effect and, therefore, it recognizes right of the

petitioners to be included in the cadre from the date of coming into

force of the '(Amendment) Rules, 2017'.

6. In the counter affidavit filed on behalf of the State of

Bihar, it has been stated, inter alia, that the petitioners were

appointed in July/August, 2010 on contractual basis and the terms

of their engagement specifically mentioned in their respective

appointment letters that they would not claim for their regular Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

appointment. It is their case that 2010 Rules have no application in

respect of contractually appointed Ayush Medical Doctors (like

petitioners). It is stated in the counter affidavit that though it is not

in dispute that the petitioners were appointed on contractual basis

under the terms and conditions of 2008 advertisement, Rule 10 of

2010 Rules will have no application in case of these petitioners.

7. In reply to the said counter affidavit, it has been stated

on behalf of the petitioners that Rule 4(a) of the 2010 Rules, as it

existed then, provided that all the Doctors working in Additional

Primary Health Centers, Primary Health Centers and Government

Dispensaries would be in the cadre of District Ayush Medical

Cadre. It has been stated that in terms of Rule 10 of 2010 Rules,

the Doctors already working prior to coming into force of the

Rules automatically stood included in the service.

8. The Commission in its counter affidavit has simply

stated that it is the policy of the State Government, which has to

prevail in such matters and the Commission has no role to play in

respect of the dispute raised by the petitioners in this case.

9. The basic facts that the petitioners were working on

contractual basis in Additional Primary Health Centers and

Primary Health Centers are not in dispute. The only issue, which

requires determination in the present case, is the effect of framing Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

of the 2010 Rules, which came into force with effect from

22.12.2010 and subsequent amendments introduced in 2017 and

2019.

10. Originally, sub-Rule (e) of Rule 4 of 2010 Rules read

as under : -

"(e) In the District Ayush Medical Cadre, doctors shall be selected on contract basis and shall work for at least two years. On their satisfactory services, extension of service may be made. All posts of this Cadre shall be filled on contract basis and no permanent/temporary appointment shall be on these posts. The services shall be extended after satisfactory performance. Doctors of this Cadre can be transferred any where in the concerned district."

11. Sub-rule (a) of Rule 4 of 2010 Rules reads as under :

"(a) All doctors working in Additional Primary Health Center, Primary Health Center and State Dispensary (Ayurved, Unani & Homeopathic) shall be in District Ayush Medical Cadre. All Doctors working in Referral Hospital, Sub-

Divisional Hospital, Sadar Hospital, Hospitals of Medical Colleges of Ayush sector. State Ayurved & Unani Pharmacy Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

and research unit, Doctors of State Ayush Medical Service Specialist Sub-cadre of clause

(b)of Rule-5 of chapter -3, Incharge Medical Officer, Dy Superintendents and first Medical officer of PH.C and Referral Hospital shall be in State Ayush Medical Cadre."

12. Rule 10 of the Rules read as under : -

"10. All Ayush Doctors appointed on the basis of seniority and working prior to the coming into force of these Rules, shall be automatically deemed to be included in this service."

13. If the case of the petitioners is to be accepted, by

application of Rule 4(a) of the Rules, they can be treated to be in

District Ayush Medical Cadre on contractual basis. Sub-Rule (e) of

Rule 4 was substituted by amendment Rule 2017. The aforesaid

amendment in 2017, by no stretch of imagination, can be said to be

having a consequence that persons working on contractual basis

under sub-rule (a) of Rule 4 shall automatically become permanent

employees under the Rules. The substituted sub-Rule (e) of Rule 4

by amendment Rule 2017 was apparently for the purpose of giving

preference to those who were working on contractual basis, after

adopting a process of selection as provided therein.

Patna High Court CWJC No.8115 of 2020 dt.01-10-2021

14. If the petitioners are desirous of joining District

Ayush Medical Cadre Rules on regular basis, they will have to

undergo the selection procedure as prescribed in sub-Rule (e) of

Rule 4 of the Rules.

15. For the aforesaid reasons, I do not find the

petitioners' case to be tenable.

16. This application is accordingly dismissed.

17. However, there shall be no order as to costs.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                NAFR
CAV DATE                01.07.2021
Uploading Date          05.10.2021.
Transmission Date       N/A