Mohammad Yusuf Ali @ Md. Yusuf Ali vs The State Of Bihar
2021 Latest Caselaw 4991 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8690 of 2020
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1. Mohammad Yusuf Ali @ Md. Yusuf Ali Son of Md Seraj Uddin Resident of-

Mohalla- Millat Nagar (Baoli), P.S.- Phulwari Sharif, District- Patna, Bihar.

2. Rameshwar Pratap Singh Son of Sri Hira Lal Singh Resident of Ahirouli, P.S.- Industrial Area Buxar, District- Buxar.

3. Anil Kumar Singh Son of Sri Hridaya Narayan Singh Resident of Village-

Chhotka Rajpur P.S.- Simari, District- Buxar.

4. Md Shahid Hasan Son of Khalid Hasan Resident of- Bhikhanpur, Dhewai, P.S. Mehandia, District- Arwal, Bihar.

5. Sunil Kumar Son of Late Shahjanand Sharma Resident of Chihunta Beni Bigha, P.S.- Bikram, District- Patna.

6. Om Prakash Son of Shatrughan Prasad Singh Resident of Prabhunath nagar, Society Colony, P.S.- Moffasil, District- Saran.

7. Aslam Hassan Son of Late Noorul Haque Resident of Husepurnand, P.S.-

Basatpur, District- Siwan.

8. Prakash Kumar Jha Son of Late Kamalnath Jha Resident of Ward No- 34, Miyanchak, P.S.- Begusarai, District- Begusarai.

9. Rajesh Kumar Singh Son of Baidehi Sharan Singh Resident of Korjana, P.O.- Basahi, P.S.- Cheria Barityarpur, District- Begusarai.

10. Gajendra Kumar Son of Late Raja Singh Resident of Jihuli, P.S.- Patahi, District- East Champaran, Bihar.

11. Md. Ashraf Son of Late Shamsul Haque Resident of Mahima Gopinathpur P.S. Motipur, District- Muzaffarpur, Bihar.

12. Suman Kumar Mishra Son of Late Pratap Narayan Mishra Resident of Laluchak Angari, P.S.- Lodipur, District- Bhagalpur, Bihar.

13. Devdatta Sharma Son of Kishori Lal Sharma Resident of Hasanpur Road, P.S.- Hasanpur, District- Samastipur, Bihar.

14. Punit Kumar Jha Son of Shyama Dutt Jha, Resident of Q.No- L/4, Cross Road No- 10, Agrico Jamshedpur, District- Singhbhum, Jharkhand.

15. Md. Imteyaz Alam Son of Late S.K. Nayeem Resident of Mohalla-

Salempur, P.O.- Nauranga, P.S. Moffasil, District- Gaya, Bihar.

16. Narendra Kumar Son of Late Krishn Nandan Singh Resident of Maya Dham, West Tilha, Dharamshala Road, P.S.- Civil Line, District- Gaya, Bihar.

17. Ashok Kumar Singh Son of Dharam Deo Singh Resident of Village- Kathej, P.S.- Mohania, District- Kaimur (Bhabua) Bihar.

18. Vinay Kumar Pandey Son of Late Bishwamver Dayal Pandey Resident of Village- Basini, P.S.- Sabar, District- Kaimur (Bhabua) Bihar.

19. Diwan Haroon Rashid Khan Son of Gulam Kibria Khan Resident of Village-

Naughara, P.O.- Chainpur, P.S.- Chainpur, District- Kaimur (Bhabua), Bihar.

... ... Petitioners Versus Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

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

2. The Principal Secretary, General Administration Department, Bihar, Patna.

3. The Secretary, Bihar State Technical Service Commission, 19, Harding Road, Patna.

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

For the Petitioners : Mr. Mrigank Mauli, Senior Advocate Mr. Prince Kumar Mishra, Advocate For the Respondent State: Mr. Md. N.H.Khan, S.C.-1 Mr. Md. Irshad, AC to SC-1 For the Respondent Commission: Mr. Nikesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 25-10-2021

Heard Mr. Mrigank Mauli, learned Senior Counsel

appearing on behalf of the petitioners, Mr. Md. N.H.Khan, learned

Standing Counsel No. 1 and Mr. Nikesh Kumar, learned counsel

for the Bihar Technical Service Commission.

2. The Bihar Technical Service Commission has invited

applications for recruitment against the posts of Ayurvedic

Medical Officers/Unani Medical Officers vide advertisement Nos.

4/2020 to 9/2020. The upper age limit for Open Category

candidates has been prescribed as 37 years; 42 years for Scheduled

Caste and Scheduled Tribe category candidates and 40 years for

Backward/Extremely Backward Class candidates. Clause 3(v) of

the advertisement extends a maximum of 12 years of age

relaxation in upper age limit, category-wise, for such persons only Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

who are working on contractual basis. The said relaxation has been

granted with reference to letter No.212 dated 23.01.2006 of the

General Administration Department, Government of Bihar. This is

not in dispute that the letter of the General Administration

Department dated 23.01.2006 contemplates grant of age relaxation

for all such eligible candidates, who become over aged for a post

because of absence of any recruitment process for selection in the

meanwhile.

3. Some of the candidates, who were not working as

contractual employees, had approached this Court by filing a writ

petition giving rise to C.W.J.C. No. 8888 of 2020 raising a

grievance that age relaxation should not be confined only to

contractual employees. Taking note of the stipulation in the

General Administration Department's letter No. 212 dated

23.01.2006, this Court had disposed of the writ application with

following directions and observations : -

"13. In view of the admitted fact that the petitioners became ineligible to apply against the post because of non-publication of advertisement for years together, in my opinion, it would be arbitrary and discriminatory for the respondents to deny them benefit of age relaxation in the light of the General Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

Administration Department's letter dated 23.01.2006.

14. In the facts and circumstances, this application is allowed with the following directions : -

(i) The petitioners shall be granted age relaxation for maximum of 12 years.

(ii) While determining as to how much relaxation in age can be allowed to them, the respondents shall take into account the date of acquisition by them of their requisite educational qualification.

(iii) They shall be treated to be eligible for appointment in the year when they acquired requisite educational qualification. The difference of number of years from the date of acquiring the minimum educational qualification and the year of publication of the present advertisement shall be the maximum age relaxation in upper age limit, which the petitioners shall be allowed.

iv) The respondents are directed accordingly to accept the application forms of these petitioners, if they are found to be eligible after granting them age relaxation in terms of the present order."

4. The petitioners, in the present writ application, are

seeking direction to the respondents to grant at least 16 years of Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

age relaxation for those working on contractual basis as Ayush

Doctors (Rashtriya Bal Suraksha Karyakram). It is their case that

such relaxation has been granted in case of appointment of

Specialist Medical Officers and General Medical Officers in

advertisement Nos. 3/2019 to 16/2019 dated 28.08.2019 issued by

the Commission. Further, for Dentist Doctors, vide advertisement

No.4/2015 issued by the Bihar Public Service Commission, and

Allopathic Doctors as General Medical Officers vide

advertisement No.15/2014 issued by Bihar Public Service

Commission and Veterinary Doctors vide advertisement

No.4/2015 issued by the Bihar Public Service Commission, 16

years' age relaxation in the upper age limit has been granted.

5. A counter affidavit has been filed on behalf of

General Administration Department, Government of Bihar, stating

therein that matter of grant of age relaxation comes within the

purview of the Department concerned and the Department

concerned is competent to take a suitable decision regarding age

relaxation. Reference has been made to the aforesaid circular

issued vide letter No.212 dated 23.01.2006 by the General

Administration Department, whereby it has been communicated to

all concerned that the Department can give one time opportunity to

the over aged candidates in particular examination, if the Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

advertisement for the said examination was not published in the

period between last examination and the present examination.

6. Rejoinder has been filed by the petitioners to the

counter affidavit filed on behalf of the General Administration

Department bringing on record a chart to demonstrate that the

petitioners were eligible in terms of age when the last

advertisements for regular appointment were issued in the year

1991, 1997 and 1998. The fact that the last advertisement for

Ayush Doctors (Ayurvedic) was issued in 1997 and Ayush Doctor

(Homeopathy) in the year 1998 and Ayush Doctor (Unani) in 1991

has not been disputed. The respondents have not disputed the

petitioners' contention that they have been working on contractual

basis for more than 12 years and in the absence of any

advertisement for regular appointment from the last advertisement,

they have become over aged. The petitioners have brought on

record an order of this Court dated 16.10.2020 passed in C.W.J.C.

No. 7220 of 2020, which was filed by such persons who are

working on contractual basis and were aspirants for the posts of

Physiotherapist/Occupational Therapist. A coordinate Bench of

this Court has disposed of the said writ application by an order

dated 16.10.2020 with following direction : -

"Accordingly, the writ application is allowed. The respondents are directed to consider Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

the case of the petitioners for regular appointment granting one time age relaxation having regard to the fact that they were appointed on contractual basis as Physiotherapist/ Occupational Therapist from the date when they were below the age of 37 years and they are still continuing on the post.

Necessary corrective measures must be adopted by the respondents at the earliest so that the petitioners may not be adversely affected in the selection process."

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

Commission, wherein it has merely been stated that the

Commission is acting on the direction of the Health Department,

which has allowed 12 years of age relaxation only. Another

counter affidavit has been filed, sworn by the Under Secretary,

Health Department, Government of Bihar, stating in paragraph 8

that considering all aspects of the matter, a reasonable age

relaxation of 12 years has been granted uniformly for the

candidates working on contractual basis. It has further been stated

that it has been mentioned in proviso to Rule 2(ii)(3) of the Bihar

District Medical/State Ayush Medical Service Conditions

(Regular/Appointment on Contract Basis and Service Conditions)

(Amendment) Rules, 2017, that the administrative department is

competent to take decision in the matter of age relaxation for Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

persons appointed on contractual basis. It has further been stated

that in the matter of age relaxation, vide Health Department's

memo No.1044 dated 04.12.2012, necessary clarification was

sought from the General Administration Department, Government

of Bihar. It has, however, been submitted in the counter affidavit

that determination of eligibility criteria and other conditions for

appointment against any Government post squarely falls within the

domain of the State employer and no one can claim, as a matter of

right, for making change in the eligibility criteria fixed by the State

employer.

8. It is true that it is purely within the domain of the

State, as an employer, to lay down eligibility conditions in terms of

age, qualification, experience etc. for appointment to a public post

in consonance with the nature of duties to be discharged by a

person to be appointed against such post. It is the own decision of

the State Government in its circular issued vide letter No.212

dated 23.01.2007, which permits grant of age relaxation in the

upper age limit, where the recruitment process for a particular post

could not be undertaken according to the schedule and in the

meanwhile the aspirants for the post become over aged. Further,

the respondents have not disputed the specific stand taken by the

petitioners that 16 years age relaxation has been allowed for Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

Allopathic, Dentist and Specialist (Allopathic) Doctors in the

matter of their regular appointed, taking recourse to the said letter

No.212 dated 23.01.2006 of the General Administration

Department. All those posts are under Health Department,

Government of Bihar. In case of Physiotherapist/Occupational

Therapist, this Court, by order dated 16.10.2020 in case of

Krishna Murari and Another vs. State of Bihar and Others

(supra), has directed the respondents to consider the cases by

granting one time relaxation having regard to the fact that they

were appointed on contractual basis from respective dates when

they were below 37 years of age and were still continuing.

9. Considering the admitted facts and circumstances of

the case, this writ application is disposed of with a direction to the

Principal Secretary, Health and Family Welfare Department,

Government of Bihar, to take a final decision in respect of

grievance of these petitioners for grant of 16 years age relaxation

in upper age limit for the posts in question in the light of the fact

that similar age relaxation has been allowed in case of Allopathic

Doctors and Dentist Doctors as asserted in the writ petition. Final

decision must be taken in this regard within a period of one month

from the date of receipt/production of a copy of this order.

Patna High Court CWJC No.8690 of 2020 dt.25-10-2021

10. In case, the Principal Secretary is of the opinion that

16 years age relaxation cannot be granted to the petitioners, as has

been done in case of Allopathic/Dentist Doctors, he will have to

pass an order recording reasons how the case of Ayush Doctors is

distinguishable from that of Allopathic/Dentist Doctors.

11. This writ application is disposed of with the

aforesaid observations and direction.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date           26.10.2021
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