Patna High Court
Dr. Vikash Kumar vs The State Of Bihar Through The ... on 8 October, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7282 of 2020
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1. Dr. Vikash Kumar Son of Late Umakant Tiwari, Resident of Near Raghubir
Sadan, New Chandmari, P.S.-Motihari Town, District-East Champaran.
2. Dr. Ritesh Kumar Singh, Son of Chandra Madhav Singh, Resident of Civil
Line, Bari Bazar, P.S.-Buxar, District-Buxar.
3. Dr. Amit Kumar Pandey, Son of Shri Kedar Nath Pandey, Resident of
Village-Dhanibar, P.S.-Amba, District-Aurangabad.
4. Dr. Rahul Singh, Son of Pramod Prasad Singh, Resident of Bishwanath
Nagar, P.S.-Town Thana, District-Begusarai.
5. Dr. Alok Ranjan, Son of Bishwanath Singh, Resident of Near Kali Asthan at
Pokharia, P.S.-Begusarai, District-Begusarai.
6. Dr. Nafees Ahmad, Son of Atiqur Rahman, Resident of Mohalla-Baswaria,
Michael Colony, P.S.-Bettiah, District-West Champaran.
7. Dr. Zaryab Azam, Son of Farooque Azam, Resident of Mohalla-Belbanwa,
P.S. Motihari Town, District-East Champaran.
8. Dr. Sudhanshu Shekhar Mishra, Son of Dr. Indra Deo Mishra, Resident of
Ramdas Bagahi, P.S.-Kateya, District-Gopalganj.
9. Dr. Sneh Bursha, Wife of Dr. Rajeev Kumar, Resident of Club Road Near
Sai Mandir, P.S.-Town Thana, District-Aurangabad.
10. Dr. Kamleshwar Pandey, Son of Dr. Devidutta Pandey, Resident of Kopa,
P.S.-Kopa, District-Saran (Chapra).
11. Dr. Murari Sharan, Son of Late Swaminath Tiwari, Resident of New Bus
Stand Road, P.S.-Bettiah, District-West Champaran.
12. Dr. Awanish Dhwaj Singh, Son of Late Upendra Dhwaj Singh, Resident of
Mohalla-Reli Bazar, Ram Nagar, P.S.-Ram Nagar, District-West Champaran.
13. Dr. Md. Fakharuddin, Son of Late Abul Fatah, Resident of Wahida Mansion,
Balua Tal, P.S.-Town Thana, District-East Champaran.
14. Dr. Dinesh Kumar, Son of Shri Bishwanath Prasad, Resident of Indra Nagar,
Near Swaraj Tractor Agency, P.S.-Chhatauni, District-East Champaran
(Motihari).
15. Dr. Amit Kumar, Son of Dr. Tripurari Charan, Resident of Near Sant
Augustin School, West Lohanipur, P.S. Kadamkuan, District-Patna.
16. Dr. Sharique Raza, Son of Quaim Raza, Resident of Mohalla-Urdu Bazar,
P.S.-Laheriya Sarai, District-Darbhanga.
17. Dr. Prakash Ranjan, Son of Late Sahdeo Singh, Resident of Kapasiya, P.S.-
Mufassil Town, District-Begusarai.
18. Dr. Kunal Kant, Son of Dr. Rama Kant Tiwari, Resident of Pipra Station,
P.S.-Pipra (Motihari), District-East Champaran.
19. Dr. Priyaranjan Kumar, Son of Krishnandan Chaudhary, Resident of Purani
Bazar Chowk, Shukla Road, Sita Market, P.S. Town Thana, District-
Muzaffarpur.
20. Dr. Vivek Kumar, Son of Akhilendra Deo, Resident of Majhauliya Road,
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
P.S.-Kaji Mohammadpur, District-Muzaffarpur.
21. Dr. Zeyauddin Ahmad, Son of Late Wazir Hassan, Resident of Ward No. 24,
House No. 397, Shiv Nagar, Opposite Railway Station, P.S. and District-
Gopalganj.
22. Md. Azhar @ Dr. Azhar Iqubal, Son of Dr. Moizuddin, Resident of Mashraf
Chowk, Ward No. 38, Saharsa Basti, P.S. Saharsa, District-Saharsa.
23. Dr. Rajesh Ranjan, Son of Prabhakat Thakur, Resident of Aurahi, P.S.-
Barahara Kothi, District-Purnea.
24. Dr. Ghazanfar Ali, Son of Zafar Ahmad Khan, Resident of Near Khan
Lodge, Mohalla-Faizullah Khan, P.S.-Laheriya Sarai, District-Darbhanga.
25. Dr. Arvind Kumar Singh, Son of Thakur Singh, Resident of Nai Basti
Mahadeva, P.S. and District-Siwan.
26. Dr. Shyam Kishore, son of Mohan Prasad Singh, Resident of Chakumar,
P.O.-Adalpur, Singhara, Buzurg, P.S.-Dishiauta, District-Vaishali.
27. Dr. Nishant Kumar Bhaiya, Son of Shri Pradeep Kumar Bhaiya, Resident of
Sai Nilayam Apartment, Flat-1B, Police Colony, Anisabad, P.S.-
Gardanibagh, District-Patna.
28. Dr. Bibhuti Anand, Son of Shree Chandra Prakash Jha, Resident of Mithila
Colony, Road No. 14-A, P.S. Rajiv Nagar, District-Patna.
29. Dr. Putul Kumari, Wife of Dr. Pawan Mishra, Resident of Sahjanand Nagar,
Matihani Road, Hemra, P.S. Town Thana, District-Begusarai.
30. Dr. Saurabh Kumar, Son of Ajay Kumar Sinha, Resident of B.D.O., Block
Road, Ara, P.S.-Nawada, District-Bhojpur.
... ... Petitioners
Versus
1. The State of Bihar through the Principal Secretary Department of Health,
Govt. of Bihar, Patna.
2. The Principal Secretary, Department of Health, Govt. of Bihar, Patna.
3. The Executive Director, Bihar State Health Society, Sheikhpura, Patna.
4. The Joint Secretary, Department of Health, Govt. of Bihar, Patna.
... ... Respondents
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with
Civil Writ Jurisdiction Case No. 10738 of 2020
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Dr. Shahina Shaukat, Wife of Md. Mehtab Alam, Resident of Shahdultapur,
Near DAV Public School, Sir Saiyad Colony, Malighat, Post-H.P.O.,
Muzaffarpur, P.S.-Ahyapur, District-Muzaffarpur, Bihar-842001.
... ... Petitioner
Versus
1. The State of Bihar through the Principal Secretary, Department of Health,
Govt. of Bihar, Patna.
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
2. The Principal Secretary, Department of Health, Govt. of Bihar, Patna.
3. The Executive Director, BIhar State Health Society, Sheikhpura, Patna.
4. The Joint Secretary, Department of Health, Govt. of Bihar, Patna.
5. The Civil Surgeon Cum Chief Medical Officer, Muzaffarpur.
... ... Respondents
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 7282 of 2020)
For the Petitioner/s : Mr.P.K. Shahi, Sr. Advocate
: Mr.Vikas Kumar
For the Respondent/s : Mr.Ajay Behari Sinha (GA 8)
: Mr.Kishore Kumar Sinha
: Mr.Shashi Shekhar
(In Civil Writ Jurisdiction Case No. 10738 of 2020)
For the Petitioner/s : Mrs.Nivedita Nirvikar, (Sr. Advocate)
: Mr.Zainul Abedin
: Mr.Shailesh Kumar
For the Respondent/s : Mr.Nagendra Prasad Yadav (SC 23)
: Mr.Kishore Kumar Sinha
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date : 08-10-2021
Since both the writ applications involve common issue,
they have been heard together and in the facts and circumstances
of the case are being disposed of by the present common judgment
and order.
2. Heard Mr. P.K. Shahi, learned Senior counsel
appearing on behalf of the petitioners and Mr. Ajay Behari Sinha,
learned GA-8 appearing on behalf of the State in C.W.J.C. No.
7282 of 2020. Mrs. Nivedita Nirvikar, learned Senior counsel has
represented the petitioner and Mr. Nagendra Prasad Yadav, learned
SC-23 appearing for the State in C.W.J.C. No. 10738 of 2020. Mr.
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
Kishore Kumar Sinha has appeared for the Bihar State Health
Society.
3. There are 30 petitioners in C.W.J.C. No. 7282 of 2020
and one in C.W.J.C. No. 10738 of 2020. They are aggrieved by an
order issued vide Memo No. 256 dated 25.02.2020 by the Health
Department, Government of Bihar whereby a decision has been
taken by the State Government to terminate all contractual
appointments of Dentists consequent upon regular appointments
having been made by the State Government of Bihar. The
petitioners claim that they hold requisite qualification and are
registered under the provisions of the Dentist Act, 1948. Pursuant
to different advertisements for appointment on contractual basis
they were engaged after following a process of selection. Initially
they were appointed on daily wage basis and were allowed to work
for two days in a week. Subsequently, a decision was taken in 2011
to pay Rs. 30,000/- per month to the Dentists. They also assert that
the Dentists appointed on contractual basis were claiming
regularization of their services and in order to press their demands,
such Dentists had resorted to strike which resulted into an
agreement between the representatives of the Dentists on the one
hand and the Principal Secretary, Health Department on the other.
The minutes of the meeting held on 10.03.2015 has been brought
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
on record by way of Annexure 5 to the writ petition. It is further
case of the petitioners that it was resolved in the said meeting that
legal opinion from the learned Advocate General on the proposal
of the body of the Dentists for regularization of their services shall
be obtained and the department shall, on the basis of said legal
opinion would send accordingly a proposal to the State
Government. It was also resolved that no penal action shall be
taken against such Dentists who had resorted to strike.
4. Noticeably, the Bihar Dentist Service Rules, 2014
framed under the proviso to Article 309 of the Constitution of
India was already notified on 14.10.2014. The opinion of the
learned Advocate General dated 30.03.2015 has been brought on
record by way of Annexure 7 to the writ application. As no
privilege has been claimed on behalf of the respondents in relation
to legal opinion of the Advocate General being brought on record,
the Court is refraining from making any comments thereon. The
said opinion is apparently referable to the 'Doctors' and there is
clue that the said opinion was referable to Dentists also.
5. The Bihar Public Service Commission (in short
Commission) subsequently came out with an advertisement dated
25.03.2015 inviting applications for appointment of 558 Dentists
in basic grade. From the selection process prescribed in the
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
advertisement, which has been brought on record by way of
Annexure 6 to the writ application, it appears that out of total 100
marks for the selection process weightage of 25 was given against
work experience for Dentists working in Government Hospitals.
6. The petitioners are relying on a communication dated
31.03.2015 addressed by the Principal Secretary, Health
Department, Government of Bihar to the representatives of the
Doctors including Dentists working on contract basis wherein it
was indicated that if after completion of the process of selection by
the Commission, some of the Doctors/Dentists did not get
selected, steps would be taken for their appointment after framing
a policy in accordance with law for regularization of such
Doctors/Dentists who possess the requisite qualification and were
working on contractual, basis for long period of time.
7. This appears to be an admitted fact that the selection
process for appointment of Dentists pursuant to the said
advertisement dated 25.03.2015 came to be completed. Further, all
Dentists working on contractual basis in the State of Bihar came to
be selected for their regular appointment except 73 including these
petitioners. Despite regular appointments having been made, since
the remaining Doctors appointed on contractual basis were being
permitted to continue, the impugned order dated 25.02.2020 came
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
to be issued by the Department of Health, Government of Bihar.
The petitioners are assailing the said order mainly on the ground
that the action of the State is against its own promise to regularize
services of all contractual Dentists. Heavy reliance has been placed
on an assurance given by the Health Minister, Government of
Bihar on the floor of the Bihar Legislative Assembly wherein it
was disclosed that cases of those 73 Dentists whose names could
not be recommended by the Commission because of their lower
merit position in the selection process, could be considered for
their regularization only after appointment of the Dentists already
recommended by the Commission. It is the petitioners' case that in
breach of the promise made on behalf of the State Government by
the Principal Secretary, Health Department, Government of Bihar
that a policy would be formulated for regularization of Dentists
working on contractual basis, no policy has been framed, so far.
Further, despite assurance given at the floor of the House by the
Health Minister, there is no consideration on regularization of 73
Dentists working on contractual basis. On the contrary, the
impugned order has been issued by the Health Department,
Government of Bihar, which requires termination of contractual
engagements of the Dentists at different places.
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
8. The petitioners are also relying on the resolution of
the State Government issued vide Memo No. 12534 dated
17.09.2018 by the General Administration Department,
Government of Bihar which contains decision of the State
Government to accept recommendation of a committee constituted
to examine the question of permitting the contractual employees to
continue either till they attain the age of superannuation or till
completion of the scheme for which they are engaged, whichever
is earlier. The Committee had noticed that many employees
working on contractual basis might not get successful in
examinations/interviews/other tests for regular appointments. In
such case, if posts are vacant even after regular appointments,
instead of making fresh appointments on contractual basis, those
contractual employees who do not qualify in the regular selection
process can be allowed to be adjusted. Relevant portion of the said
recommendation which, it is said, has been accepted by the State
Government reads as under:-
"यहाँ यह भी उलले खनीय है की ननयनमत ननयु नकतयो के नलए ली गयी
परीका/साकातकार/अनय जांच मे कई सं नवदाकमी र सफल नहीं होते है , ऐसी नससनत मे अगर
ननयनमत ननयु नकतयो के उपरांत भी पद खाली है तो उन पर नए नसरे से सं नवदा के आधार पर
ननयु नकत न कर ननयनमत ननयु नकतयो की प्रनक् रया मे असफल सं नवदा कनमरयो को रखा जा
सकता है I"
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
9. It is noted that when this matter was taken up on
23.07.2021, this Court had desired the State Government of Bihar
to inform as to within what period of time the process of selection
for filling up of the remaining vacant posts of Dentists shall be
completed in view of the policy decision of the State Government,
as disclosed in the supplementary counter affidavit.
10. In the second supplementary counter affidavit filed
on behalf of the respondent State of Bihar it has been stated that
vacant posts of the Dentists shall be filled up within a period of
four months:-
Sl. Stage of Appointment Expected time
(i) Compilation of vacancy and roster 15 days
determination
(ii) (i) Approval of the General 15 days
Administration Department
(ii) Forwarding the requisition
(iii) Expected time to be consumed in 3 months
Commission
Total 4 Months
11. The Department has furnished to this Court the
tentative period which each step will take to fill up the existing
vacancies of Dentists in the State on regular basis.
12. Mr. Ajay Behari Sinha, learned GA-8 appearing on
behalf of the State of Bihar, on the basis of instructions which he
has received, has submitted that there are altogether 571
sanctioned posts of Dentists sanctioned in the State of Bihar
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
against which 525 Dentists are working on regular basis.
Accordingly, there are 46 posts vacant for which the department
has received roster clearance from the General Administration
Department, Government of Bihar. He has also submitted that the
tentative period within which the selection process was to be
completed, as indicated in the second supplementary counter
affidavit, may vary because of certain developments as some
necessary amendments are required in the Bihar Dentists Service
Rules, 2014.
13. Mr. P.K. Shahi, learned Senior counsel appearing on
behalf of the petitioners has placed reliance on the Supreme
Court's decision in case of Surya Narayan Yadav v. Bihar State
Electricity Board and Others reported in (1985) 3 SCC 38 to
contend that the State of Bihar is bound by its representation made
to the Dentists and at this juncture they cannot turn around to
decline the fruits of the agreement arrived at between the
representatives of the Dentists and the State of Bihar. Reliance has
also been placed on a recent Supreme Court's decision rendered on
01.12.2020 in Civil Appeal Nos. 3860/3862 of 2020 in case of
State of Jharkhand and Ors. v. Brahmputra Metallics Ltd.,
Ranchi and Ors. (2020 SCC Online SC 968) to contend that the
respondents State of Bihar is bound by operation of the doctrine of
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
promissory estoppel, which is equitable in character, and it cannot
resile from the promise earlier made by them to the Dentists
working on contractual basis to regularize their service. Mr. Shahi
has also relied on single Bench decision of Delhi High Court dated
22.07.2021 in W.P. (C) No. 8956 of 2020 (Najma v. Government
of NCT of Delhi) to bring home his point that the State cannot act
against its own promise.
14. Mrs. Nivedita Nirvikar, learned Senior counsel
appearing on behalf of the petitioner in C.W.J.C. No. 10738 of
2020 while broadly adopting the argument advanced by Mr. Shahi
has submitted that the petitioner of the said case was working on
contractual basis under Civil Surgeonship of Muzaffarpur. She has
referred to a communication dated 15.02.2021 addressed by the
Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur to the
Health Department, Government of Bihar whereby he had
informed that as since one post of Dentist was still vacant because
of absence of regular appointment against that post, the
petitioner's service was being taken on contractual basis at
Primary Health Centre, Mushahri. She has submitted that
admittedly the post against which the petitioner was working on
contractual basis, has not been filled up so far on regular basis and,
therefore, no public purpose would be served by terminating the
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
petitioner's service on contractual basis, on the contrary, it would
be against public interest.
15. Mr. Ajay Behari Sinha, learned GA 8 has argued that
contractual employees do not have any right to hold a post after
regular appointments are made. He has submitted that since
regular appointments have been made on the basis of
recommendation made by the Commission in accordance with the
statutory rules, the persons who were working on contractual basis
and who could not succeed, despite due weightage and preference
having been given in the process of selection, cannot claim by way
of right to continue on the respective posts.
16. There cannot be any dispute as regards legal position
that an employee working on contractual basis does not have any
right to hold the post after the termination of contract either with
the lapse of period of contract or with filling up of the posts
against which he was working, on regular basis by following a
process of selection in accordance with statutory Rules. In such
situation, the Dentists, who were working on contractual basis
against the posts which have been filled up on regular basis,
cannot claim by way of right, their continuance on contractual
basis.
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
17. In my considered opinion, the Supreme Court's
decision in case of Surya Narayan Yadav (supra) has no
application in the facts and circumstances of the present case. In
case of Surya Narayan Yadav (supra), noticing repeated
representations by the Electricity Board to its employees that its
ex-cadre trainee employees would be permanently absorbed in
cadre without taking any examination and would be confirmed
after two years of probation and, the fact that relying upon such
representation some of the trainees did not seek employment
elsewhere, the Supreme Court held that the Board was bound to
honour its representations and assurances and regularize the
appointments of the trainees. On the contrary, in the present case,
an assurance was given only to the effect that the process of
appointment would be completed after obtaining legal opinion
from the learned Advocate General.
18. Learned Advocate General dealing with the cases of
the Doctors had opined that most of the Dentists would qualify
and, in case, some failed to find their position in the merit list, the
Government may take suitable steps in accordance with law to
regularize their services. Subsequent communication through letter
dated 31.05.2015 addressed to the representatives of the
contractual Doctors/Dentists also discloses the Government's
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
intention to frame a policy for regularizing services of the Doctors
working on contractual basis. There was no assurance given to the
petitioners and similarly circumstanced persons that their services
shall be regularized. Further, the resolution of the General
Administration Department, Government of Bihar dated
17.09.2018 is not an assurance for absorption of the
Doctors/Dentists working on contractual basis. It simply permits
the persons working on contractual basis, who do not succeed in
the process of selection, to be allowed to continue, instead of
making fresh engagement on contractual basis.
19. The doctrine of promissory estoppel and the
Supreme Court's decision in case of Brahmputra Metallics Ltd.,
Ranchi (supra) have no application in the facts and circumstances
of the present case. For invoking the doctrine of promissory
estoppel, there has to be a promise based on which the party
concerned must have acted to its prejudice. In case of Monnet
Ispat And Energy Ltd v. Union Of India And Ors reported in
(2012) 11 SCC 1, which has been relied upon in case of
Brahmputra Metallics Ltd., Ranchi (supra), the Supreme Court
lucidly enunciated that the doctrine of promissory estoppel cannot
be invoked where the decision of the public authority is founded
against a provision of law.
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
20. In the present case, as a matter of fact, in order to
accommodate the Dentists working on contractual basis, more than
adequate weightage was given by prescribing 25 marks out of 100
for their work experience in the process of selection. 558 posts
were advertised. Despite huge number of posts advertised and
weightage given, the petitioners could not find their position in the
merit list. It is not the case of the petitioners that they changed
their position acting upon any promise given to them by the State
respondents. In any view of the matter, a promise made by the
State, contrary to law, cannot be enforced by way of right. The
State cannot deviate from its own Rules having statutory force
laying down a procedure for appointment on regular basis.
21. Be that as it may, it appears that there are posts of
Dentists vacant in the State of Bihar even after appointment of
Dentists on regular basis. The State Government has yet not
formulated any policy in terms of its own decision as
communicated through letter dated 31.03.2015 (Annexure 8)
addressed by the Principal Secretary, Health Department,
Government of Bihar addressed to the representatives of the
association. Further, the resolution dated 17.09.2018 of the
General Administration Department, Government of Bihar
contemplates continuance of contractual employees, who may not
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
be appointed on regular basis after due process of selection, on
contractual basis till regular appointments are made.
22. Mr. P.K. Shahi, learned Senior counsel has submitted
that more posts of Dentists than what has been disclosed by
learned GA 8 on the basis of instructions received from the Health
Department, Government of Bihar are vacant, as it seems that the
Health Department has not taken into account sanction of
subsequent posts of Dentists while giving the instructions. He has
also informed this Court that some of the Dentists have been
allowed to continue to work on contractual basis.
23. In any case, it is an admitted factual position, even
on the basis of information given to this Court by learned GA-8,
there are 46 posts of Dentists vacant in the State of Bihar out of
571 posts. This Court exercising power of judicial review may not
direct the respondent State of Bihar to engage persons including
the petitioners on contractual basis. However, the Court is of the
view that if the posts of Dentists are vacant and the Dentists
including these petitioners have been working for long, on
contractual basis, the State Government should, in public interest,
consider engagement of the petitioners on contractual basis against
the posts which are vacant with the clear stipulation that their
contractual engagement shall terminate with appointment on
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
regular basis. Nevertheless, it will be open for the State of Bihar to
frame a policy in terms of the communication dated 31.03.2015
(Annexure 8) but in accordance with law and statutory
prescription.
24. Mr. Ajay Behari Sinha, learned GA 8 has submitted
that in case the petitioners are allowed to continue on contractual
basis by the State Government of Bihar in the light of observations
made by this Court in the present order, they must furnish an
undertaking that they shall not claim any further extension, after
appointments are made on regular basis in accordance with the
statutory provisions.
25. In the Court's opinion, no such undertaking is
required. A contractual engagement ends with the expiry of the
term of contract. Further, such contractual engagements
automatically come to an end once regular appointments are made
on substantive basis after following due procedure as prescribed
under the Rules.
26. With the aforesaid observations, the Court directs the
Additional Chief Secretary, Health Department, Government of
Bihar to take a final decision on the question of engagement of the
petitioners and other similarly situated persons on contractual basis
by allowing them to continue against posts of Dentists, which are
Patna High Court CWJC No.7282 of 2020 dt.08-10-2021
vacant, after completion of the process of selection. Such decision
must be taken within one month from the date of
receipt/production of a copy of this order.
27.These applications stand disposed of accordingly.
(Chakradhari Sharan Singh, J)
AKASH/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 09.10.2021
Transmission Date N/A
