Rajneesh Ranjan vs The State Of Bihar
2021 Latest Caselaw 4786 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.8800 of 2020
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1. Rajneesh Ranjan Son of Kamal Nayan Gopal, Resident of Khawa Chandra Tola, Khawa Rajput, P.O.- Kiranpur, P.S.- Mednichauki, District- Lakhisarai.

2. Aminur Rashid Khan Son of Dr. Haroon Rashid Khan Resident of Khalilpura Road, Ward No. 03, Near FCI Boring, P.S.- Phulwarisharif, District- Patna.

3. Suman Daughter of Brajnandan Prasad Resident of Bari Dargah, P.O. and P.S.- Lakhisarai, District- Lakhisarai.

... ... Petitioners Versus

1. The State of Bihar through the Additional Chief Secretary, General Administration Department, Govt. of Bihar, Patna.

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

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

4. The Examination Controller, Bihar Technical Service Commission, Harding Road, Patna.

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

For the Petitioners : Mr. Mrigank Mauli, Senior Advocate Mr. Rakesh Kumar Sharma, Advocate For the Respondent State: Mr. P.N.Sahi, AAG-6 Mr. Birju Prasad, GP-13 For the Intervenor : Mr. Prashant Sinha, Advocate For the Respondent Commission: Mr. Nikesh Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 01-10-2021

Heard Mr. Mrigank Mauli, learned Senior Counsel

appearing on behalf of the petitioners and Mr. P.N.Sahi, learned

A.A.G.-6 assisted by Mr. Birju Prasad, learned G.P.-15 and Ms.

Shweta Anand, learned AC to G.P.-15, for the respondent State of

Bihar. Bihar Technical Service Commission has been represented

by Mr. Nikesh Kumar, learned Advocate and Mr. Prashant Sinha, Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

learned counsel has appeared for intervenors in opposition to the

writ application.

2. The petitioners claim to be holding degree of

Bachelor of Homeopathic Medicine and Surgery (BHMS) from

recognized institutions.

3. The Bihar Technical Service Commission (for short

Commission), on the basis of a requisition sent by the Health

Department, Government of Bihar, has issued a notice containing

Advertisements No. 4 of 2020 to 9 of 2020 inviting applications

for filling-up the posts of Ayurvedic Medical Officer, Unani

Medical Officer, Homeopathy Medical Officer, Ayush Physician

(Ayurvedic), Ayush Physician (Unani), Ayush Physician

(Homeopathy) in the pay-scale of Rs.9300-34800 with grade pay

of 5400/L-9. A total of 3270 posts have been advertised. Clause (4)

of the advertisement discloses the process of selection from which

it is evident that the merit list is to be prepared on the basis of the

marks scored by the aspirants in their qualifying examination,

namely, BAMS, BUMS, BHMS, Post Graduation (MD/MS or

higher qualification) and, the points of work experience acquired

by them while working on their engagement on contractual basis

in recognized Government institutions/hospitals. Following is the Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

brake-up of weightage as mentioned in the advertisement against

the said three attributes :-

(i) Weightage on the basis of score in 60 Marks BAMS/BUMS/BHMS

(ii) Weightage on the basis of Post Graduation 15 Marks degree, higher qualification (MD/MS Ayurvedic, Unani and Homeopathy or higher degree)

(iii) Weightage for work experience after 25 Marks appointment on contractual basis in Government institutions/hospitals (5 marks for each year of completion of work experience, maximum 25 marks) Total 100 Marks

4. The petitioners have a grievance that the selection

procedure laid down in the advertisement is contrary to the

statutory prescription under the Bihar District Ayush Medical/State

Ayush Medical Service (Appointment on Regular/Contract Basis

and Service Conditions) Rule, 2010 (For short 2010 Rules). Rule 7

of the 2010 Rules reads as under : -

"7. Appointment in the State Health Ayush Cadre shall be made by the state Government on the posts of Ayush Medical Officer/Ayush Specialist grade 11.

They shall be selected every year having regard to available vacancies through a competitive examination according to prescribed procedure. The selection shall be made through commission and it shall be Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

necessary to follow the reservation rules prescribed by the State Government."

5. With reference to Rule 7 of the Rules, the petitioners

contend that it is legally impermissible for the State Government

or the Commission to do away with the requirement of competitive

examination as prescribed in Rule 7 of the said Rules. It is their

contention that since the Rules have statutory force, the

respondents cannot whittle the same down by any process and,

therefore, the advertisement is unsustainable and deserves to be set

aside. It is the case of the Commission that since the Commission

has been constituted by the State Government of Bihar by the

Bihar Act 13 of 2013 and thereafter the State Government has

formulated specific rules, namely, Bihar Technical Service

Commission Selection Procedure Rules, 2018, therefore, the

Commission is bound to follow the rules and instructions issued by

the State Government as well as the Acts and the Rules and

instructions framed by the requisitioning Department for whom the

Commission would be conducting recruitment process.

6. It is the case of the Commission that the Department

of Health, Government of Bihar, has issued, by Memo No. 25

dated 06.01.2020, an amending rule, viz., Bihar District Ayush

Medical/State Ayush Medical Service (Appointment on Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

Regular/Contract Basis and Service Conditions) (Amendment)

Rules, 2019 [For short 2019 (Amendment) Rules], whereby it has

amended certain provisions of earlier 2010 Rules as well as Bihar

District Ayush Medical/State Ayush Medical Service (Appointment

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

Rules, 2017 [For short 2017 (Amendment) Rules], the counter

affidavit filed on behalf of the Commission further states. The

affidavit further refers to Rule 2(ii) of the 2017 (Amendment)

Rules, which lays down the requisite qualification for the posts.

The said counter affidavit, however, does not mention the rationale

behind not prescribing written examination as one of the modes for

undertaking the selection process in question.

7. The gist of the stand of the State of Bihar has been

fairly mentioned in a supplementary counter affidavit, filed on

behalf of the Principal Secretary, Health Department, Government

of Bihar, in the light of an order of this Court dated 17.03.2021

passed in this case. As the statements made in paragraph 10 of the

said supplementary counter affidavit are of immense significance

to address the question involved in the present case, the same is

being reproduced hereinbelow;

"10. That the relevant background facts and circumstances governing the instant issues are being submitted as hereunder:-

Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

(A) In the year 2010, Hon'ble Governor of Bihar in exercise of his powers conferred under proviso to Article 309 of the Constitution of India enacted the Bihar District Ayush Medical/State Ayush Medical Service Condition (Regular/Appointment on Contract Basis and Service Condition) Rules, 2010 (Referred to as Rules, 2010), which was published in the extraordinary gazette on 22.12.2010 and made effective from the date of publication.

(B) As per Rule 3 of the Rules 2010, the Bihar District Ayush Medical/State Ayush Medical Service shall be divided in two cadres namely District Ayush Medical Cadre and State Ayush Medical Cadre and as per the provisions contained in Rule 4(e) of the Rules, 2010-"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 anywhere in the concerned district".

(C) Thereafter, the Hon'ble Governor of Bihar in exercise of his powers conferred under proviso to Article 309 of the Constitution of India enacted the Bihar District Ayush Medical/State Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

Ayush Medical Service Condition (Regular/Appointment on Contract basis and Service Condition) (Amendment) Rules, 2017 (Referred to as Rules, 2017).

(D) Rule 2 of the amended Rules, 2017 replaced and substituted the Rule 4(e) of the Rules, 2010. In accordance with the substituted Rules 2(i) of Rules, 2017 appointment in the basic category of Ayush Service on the post of Medical Officer shall be made through direct recruitment on the post of Medical Officer shall be made through direct recruitment on the basis of recommendation of the Commission and in case of delay in the regular appointment, as per requirement in the public interest, Government may appoint on contract basis for limited period. As per substituted Rule 2(iii) dealing with procedures for recruitment, Rule 2(iii) 2 provides that the Commission after receipt of requisition shall prepare the merit list on the following basis.

(i) Marks obtained for BAMS/BUMS/BHMS - 50 marks

(ii) PG degree/Higher Degree such as M.D./M.S. Ayurved, Unani and Homeopathic 5 marks and for higher degree 5 marks total 10 marks)-10 marks

(iii) For work experience obtained from Government recognized hospitals/ dispensaries appointed on Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

contractual basis (for each completed year 5 marks, maximum 25 marks)-25 marks

(iv) For Interview-15 marks Total-100 marks (E) Amendment in Rule 4(e) of the 2010 Rules by the substituted Rule 2 was challenged before this Hon'ble Court CWJC No.19278/2017 and Hon'ble Division Bench of this Court presided by the then Chief Justice after in-depth consideration of the matter, dismissed the writ application by an order dated 16.07.2018.

(F) While dismissing the aforesaid writ application, Hon'ble Division Bench has clearly held that "Basically, it is for the recruiting agency to stipulate the procedure for selecting the candidates. It is only when the procedure is found to be patently illegal, that the Court would interfere. For selecting candidates, written test can certainly be treated as a good method, but there is nothing in law which mandates that written test is the only method to select the candidates."

(G ) Thereafter, the Hon'ble Governor of Bihar in exercise of his powers conferred under proviso to Article 309 of the Constitution of India enacted the Bihar District Ayush Medical/State Ayush Medical Service Condition (Regular/Appointment on Contract basis and Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

Service Condition (Amendment) Rules, 2019 (Referred to as Rules, 2019).

(H) Rule 4 of Rules, 2019 has been substituted in place of Rule 2 (iii) 2 of the Rules, 2017 providing thereby that Bihar Technical Service Commission shall prepare the merit list in the following manner.

(i) Marks obtained for BAMS/BUMS/BHMS- 60 marks

(ii) PG degree/Higher Degree such as M.D./M.S. Ayurved, Unani and Homeopathic or higher-15 marks

(iii) For work experience obtained from Government recognized hospitals/dispensaries appointed on contractual basis (for each completed year 5 mark, maximum 25 marks) Total 100 marks."

8. It is the case of the State of Bihar that Rule 7 of the

2010 Rules has lost its relevance/effectiveness after "enactment"

(sic amendment) of Rule 2(iii)(2) of the 2017 (Amendment) Rules,

which prescribes a new procedure for preparation of merit list on

the basis of marks obtained in different categories, though Rule 7

of the Rules, 2010 has not been specifically repealed by the

amending Rules 2017. It has further been stated that the process of

repeal of Rule 7 of the Rules, 2010 and removal of other Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

inconsistencies in the Rules have been initiated and is under active

consideration, so that no difficulty remains in interpretation of the

statutory rules.

9. Such Homeopathy Doctors, who have work

experience, have intervened by filing I.A. No. 3 of 2021 and have

opposed the prayer made in the writ application on various

grounds and have justified the process of selection adopted by the

Commission as disclosed in the advertisement in question.

10. Considering the averments made in the intervention

application, the same is allowed.

11. The intervenor applicants in I.A. No. 3 of 2021 stand

impleaded as respondents in the writ application.

12. The averments made in the application have been

treated to be statements in a counter affidavit on their behalf.

13. A supplementary affidavit has been filed on behalf of

the intervenors, whereby they have brought on record a Division

Bench decision of this Court rendered on 31.05.2021 in C.W.J.C.

No. 3471 of 2021(Kumar Bhaskar and Others vs. The State of

Bihar and Others). The intervenor respondents have heavily relied

on the said decision of the Division Bench particularly paragraph 3

thereof. In the said paragraph, the Division Bench of this Court has

recorded that Clause 7 of 2010 Rules stood amended by Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

notification dated 20.11.2017 and substituted, laying down

particular selection process, based on which the advertisement has

been issued.

14. Mr. Mrigank Mauli, learned Senior Counsel

appearing on behalf of the petitioners has submitted that it is not

disputable that Rule 7 of the Rules has yet not been substituted,

amended or modified in any manner whatsoever. He submits that

the stand taken on behalf of the State of Bihar that with the

framing of 2019 (Amendment) Rules, Rule 4 of which amends

Rule 2 of 2017 (Amendment) Rules prescribing a new procedure

for preparation of merit list on the basis of marks obtained in

different categories, Rule 7 has become redundant is sans any logic

and against basic principle of statutory interpretation that every

provision of a document having force of law should be read as

they are written in the statute book. He has submitted that there

appears to be an apparent clerical or typographical error in the

Division Bench decision of this Court in case of Kumar Bhaskar

(supra) inasmuch as it is not even the case of the State of Bihar

that the said Rule 7 of the 2010 Rules has been substituted by any

other provision or amended or modified by subsequent

amendment.

Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

15. Mr. Pushkar Narain Sahi, learned A.A.G.-6 could not

give to this Court any convincing reply on the point as to whether

Rule 7 of the Rules, which requires competitive examination as

one of the criterion for determination of merit, stood substituted as

noted by the Division Bench of this Court in case of Kumar

Bhaskar (supra). He has submitted that even if this Court is

convinced that the said observations made by a Division Bench of

this Court in paragraph 3 is out of oversight, this Court, in view of

the stand taken by the State of Bihar in its counter affidavit that

they are going to amend the Rules, issuance of any writ in the

present case on the basis of Rule 7 of the Rules shall be an

exercise in futility. He submits that issuance of such direction will

have the only consequence of the Commission coming out with a

fresh advertisement on the basis of Rules, which are in the process

of being amended.

16. Mr. Prashant Sinha, learned counsel appearing on

behalf of the intervenor respondents, on the other hand, has

submitted that this Court has no other option but to follow the

decision of larger strength of two-Judges, in case of Kumar

Bhaskar (supra). He submits that in view of the Division Bench

decision in case of Kumar Bhaskar (supra) it is not open for this

Bench to re-open the issue and entertain this application. He has Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

placed reliance on the observations made by the Supreme Court in

A.R. Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602.

17. It is settled legal principle that if a statute requires

something to be done in a particular manner, the same has to be

done in that manner alone or not at all. The stand taken on behalf

of the State of Bihar that Rule 7 of the Rules lost its significance

because of subsequent amendments, in my opinion, is completely

untenable. The said stand amounts to ignoring statutory mandate

under the Rules framed under the proviso to Article 309 of the

Constitution of India. I am of the considered view that the stand of

the Principal Secretary on oath before this Court in the present

proceeding, on the plea of proposed future amendment in the

statutory rules, to justify its action defies basic logic. Statutory

rules framed in exercise of power under Article 309 of the

Constitution of India are legislative in character and bind State,

Citizens and the Courts alike. It is, in the Court's opinion highly

improper for the Principal Secretary to take this stand in a judicial

proceeding, while addressing the statutory rules framed under

Article 309 of the Constitution of India, which has the force of

law. Statutory provisions cannot be addressed so casually.

18. On examination of the scheme of 2010 Rules, it

appears that it has three chapters. First chapter is preliminary in Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

nature. Chapter 2 deals with District Ayush Medical Cadre and

Chapter 3, State Ayush Medical Cadre. There is a schedule

appended to the 2010 Rules under Rule 9 thereof. Rule 3 of the

Rules stipulates two cadres, viz. (i) District Ayush Medical Cadre

and (ii) State Ayush Medical Cadre. There is only one Rule under

Chapter 2 of the Rule, which deals with District Ayush Medical

Cadre namely Rule 4. The note to Schedule-1 prescribes that the

Doctors of District Ayush Medical Cadre shall get fixed pay as

determined by the Government from time to time. For the State

Ayush Medical Cadre posts, pay-scale has been prescribed in

Schedule-1. By introducing amendment, Rule 4(e) of the 2010

Rules was substituted by the 2017 (Amendment) Rules. 2017

(Amendment) Rules specifically mentions substitution of 'clause

(e) of Rule 4 of Chapter-2 of the said Rules 2010'. The selection

procedure has, thus, apparently been prescribed by 2017

(Amendment) Rules by substitution of Rule 4(e) in respect of

District Ayush Medical Cadre. It is surprising for this Court to

notice the stand of the State of Bihar that the said amendment has

been intentionally brought in Rule 4 under Chapter-2 of the 2010

Rules to nullify and make ineffective Rule 7 of the Rules under

Chapter-3.

Patna High Court CWJC No.8800 of 2020 dt.01-10-2021

19. Be that as it may, no view different from the

observations made by the Division Bench of this Court in case of

Kumar Bhaskar (supra) can be taken by this Court. It seems that it

was not clearly brought to the notice of the Division Bench that

Rule 7 of the 2010 Rules has not been amended in any manner

whatsoever. Let the matter be placed before Hon'ble the Chief

Justice for considering whether it is a fit case for being placed

before a larger Bench.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR                NAFR
CAV DATE                01.07.2021
Uploading Date          01.10.2021.
Transmission Date       N/A