Patna High Court
State Health Society vs Dr. Manoj Kumar on 12 April, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1 of 2021
In
CIVIL REVIEW No.433 of 2019
======================================================
State Health Society through its Executive Director Parivar Kalyan Bhawan,
Sheikhpura, Patna.
... ... Appellant/s
Versus
1. Dr. Manoj Kumar S/o Sri Manoranjan Paswan, Resident of Village/PO
Juniyar, PS-Hilsa, District Nalanda (Writ Petitioner of CWJC No. 13410 of
2019)
2. Khalid Iqbal, S/o Md. Islam Ansari, Resident of Village Khoripokar, PS-
Areraj, District East Champaran (Writ Petitioner of CWJC NO. 15491 of
2019)
3. State of Bihar through the Principal Secretary Department of Health Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Kishore Kumar Sinha, Advocate
For the Respondent/s : Mr. Gopal Govind Mishra, Advocate
For the Intervener : Mr. Prashant Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 12-04-2022
Re.: I.A. No. 1 of 2021
This is an application making a request for impleading
the intervener as party-respondent as any decision would affect the
intervener as well.
For the reasons stated in the application, the prayer is
allowed.
The intervener/applicant is permitted to be added as
party-respondent.
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
L.P.A. No. 1 of 2021
Heard Mr. Kishore Kumar Sinha, learned Advocate for
the appellant/State Health Society, Government of Bihar and Mr.
Prashant Sinha for the Interveners. Mr. Gopal Govind Mishra,
learned Advocate has presented the case for the respondents.
The challenge in the present appeal is primarily to the
order passed by the learned single Judge in Review Petition (Civil
Review No. 433 of 2019) which has been admitted and it has
further been clarified that since no interim order was being passed
by the learned single Judge, the appellant would be under an
obligation to comply with the order under review dated 26.09.2019
passed in CWJC No. 13410 of 2019.
The National Health Mission, Ministry of Health and
Family Welfare, Government of India had formulated a guideline
called "Ayushman Bharat; Comprehensive Primary Health Care
through Health and Wellness Centres - Operational Guidelines".
In terms of Section 4.1 of Section 4 of the aforesaid guidelines,
Community Health Officer (CHO) is to be appointed from
amongst persons who would undertake a bridge course and only
those persons would be eligible to undertake that course who
would either be B.Sc. in Community Health or a GNM or an
Ayurveda practitioner, trained and certified through IGNOU/other
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
State Public Health/Medical Universities who have acquired
competence in delivering public health and primary health care
services.
The guidelines, therefore, is absolutely clear that such
course has been tailor-made only for Ayurveda practitioners,
GNMs and persons having B.Sc. Degree in community health.
In terms of the aforesaid guidelines, the State Health
Society published an advertisement in the year 2017, inviting
eligible persons for six months bridge course programme for an
appropriate certificate in Community Health. This remained an
ongoing process and twice a year such courses were organized. It
further appears from the records that in the year 2019, a six
months certificate course was advertised vide Advertisement No.
04/2019 for Ayurveda practitioners, GNMs and B.Sc. Community
Health Service.
Those who would have completed the course were
required to be posted as CHO on a remuneration of Rs. 25000/-
per month and other incentives which could go up to Rs. 15000/-
per month.
Against the aforesaid advertisement, some of the
Homeopathy and Unani doctors approached this Court vide CWJC
Nos. 13410 and 15491 of 2019, seeking a direction to the State
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
Health Society to permit them to participate in the bridge course
programme.
The aforesaid two writ petitions were heard by the
learned single Judge and an order was passed on 26.09.2019
permitting the Homeopathy and Unani practitioners also to
participate in such certificate course of six months.
We notice that for passing the aforesaid order, the
learned single Judge took note of the submissions of the State
counsel, who had communicated to the Court the stand of the
Principal Secretary, Health Department, Government of Bihar that
even the Homeopathy and Unani practitioners would be eligible
for participating in the six months certificate course referred to
above.
In view of the aforesaid stand of the Government, such
permission was granted to the practitioners in the other streams of
Ayush.
With the aforesaid direction by the learned single Judge,
the Advertisement No. 04/2019 referred to above was cancelled
and a fresh advertisement was issued vide Advertisement No.
10/2019 on 19.12.2019. The practitioners of the other streams of
Ayush viz. Homeopathy and Unani medicine were also permitted
to apply with a rider that their final selection for undergoing the
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
course will depend upon the final orders of the Court in the review
petition which has been filed by the State Health Society against
the order passed in CWJC Nos. 13410 and 15491/2019.
The scheme, as it appears from the records, is that only
after being selected for undergoing training, the training is to be
imparted to such candidates for six months, making them eligible
to be appointed as CHO. Since a rider was put with respect to the
selection process itself, the result of the selected candidates was
not taken out, perhaps awaiting the order of the learned single
Judge in civil review which is pending consideration.
In the meantime, some of the Ayurveda practitioners
approached this Court for a direction to publish the result of such
selection process and proceed further with training in such course.
That writ application (CWJC No. 7540 of 2020) was disposed of
by order dated 23.09.2020 directing the State Health Society to
publish the result on or before 29.09.2020.
After a contempt petition was preferred by the
petitioners of CWJC No. 7540 of 2020 referred to above, the result
of 73 Ayurveda practitioners was published, keeping the rest 227
seats reserved for the practitioners of other streams of Ayush,
thereby leaving the other Ayurveda practitioners/applicants
absolutely high and dry, even when the course is meant for only
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
Ayurveda doctors out of all the streams of Ayush along with
GNMs and persons having degree in B.Sc. in Community Health.
Under such circumstances an effort was made by the
State Health Society to have the order of the learned single Judge
reviewed. However, the learned single Judge, as noted above, has
admitted the review petition.
It has been urged on behalf of the appellant and the
interveners/respondents that because of this, no result of such
candidates have been published and even the practitioners of other
streams who had applied for being selected for undergoing such
training, remained in the wait-list.
The grievance of the interveners/respondents is that if
the practitioners of other streams of Ayush would not have been
permitted by the order of the Court to participate in the selection
process for undergoing training, other Ayurveda practitioners
would have been included in the selection process for undergoing
training.
In sum and substance, the grievance of the State Health
Society as also of the interveners/respondents is that if a
programme has been tailor-made by the Central Government to be
executed by the State Health Society and the qualification has been
pre-fixed, it should not have been altered by the order of the Court.
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
Mr. Sinha, learned Counsel for the appellant has drawn
the attention of this Court to a communication made by
Government of India, Ministry of Health and Family Welfare to
the society against a request for clarifying the stand with respect to
inclusion of Homeopathy and Unani practitioners in the certificate
programme in Community Health in which it has been clarified
that such scheme of giving training to Ayurveda practitioners,
GNMs and B.Sc. Community Service was based on the
recommendation of an expert group which had found that only
those persons have an in-depth knowledge of the Human anatomy
through rigorous clinical experience in training and therefore they
only would have a holistic understanding of public health which
would be extremely essential in delivering comprehensive primary
health care.
The objections before the Central Government of the
practitioners of other Ayush streams were taken note of but it was
found that only under circumstances that there are no available
BAMS/Ayurveda practitioners to undergo such training, it could
be extended to the practitioners of other Ayush streams as well.
The stand of the Central Government, therefore, was
clarified in no ambiguous terms that in view of sub-section 4.1 of
Section 4 of the "Ayushman Bharat; Comprehensive Primary
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
Health Care through Health and Wellness Centres - Operational
Guidelines", a Community Health Officer would be required to be
only B.Sc. in Community Health or a GNM or an Ayurveda
practitioner, trained and certified through IGNOU and other State
Health and Medical Universities with respect to their competence
in delivering public health and primary health care services.
An advisory was also issued to the Bihar State Health
Service Society to proceed further for having the order of the
learned single Judge permitting the practitioners of the other
streams of Ayush, to be reviewed at the earliest.
Under such circumstances, we are of the view that the
review petition ought to be dealt with and disposed off
expeditiously to decide the entire purpose of undertaking such
training programmes in order to lend competence to persons who
could be appointed as Community Health Officers would get
derailed.
While saying so, we have taken note of the judgment of
the Supreme Court in Banarsidas & Ors. Vs. State of UP & Ors:
AIR 1956(SC) 520, where the scope of judicial review with regard
to requisite qualification under an advertisement has been
explained. It is always open to the authority to lay down such pre-
requisite conditions regarding qualification which ought not to be
Patna High Court L.P.A No.1 of 2021 dt.12-04-2022
interfered with in the judicial side as also the decisions of the
Supreme Court in Mukul Kumar Tyagi Vs. State of UP & Ors:
(2020) 4 SCC 86 and Zahoor Ahmad Rather & Ors. Vs. Sheikh
Imtiyaz Ahmad & Ors.: (2019) 2 SCC 404.
Let a copy of this order be placed before Hon'ble the
Chief Justice for placing the matter before the appropriate Bench
for the needful.
The appeal stands allowed and disposed off accordingly.
(Ashutosh Kumar, J)
(Anjani Kumar Sharan, J)
krishna/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.04.2022
Transmission Date NA
