Patna High Court
Dr. Sandeep Kumar vs The State Of Bihar on 21 February, 2025
Author: Ashutosh Kumar
Bench: Partha Sarthy, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15400 of 2023
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Dr. Sandeep Kumar, Son of Sri Sitaram Singh, Resident of House No. 22,
Rajendra Path, North Sri Krishna Puri, Police Station - Sri Krishna Puri,
District - Patna - 800013.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary-cum-Principal Secretary, General
Administration Department, Government of Bihar, Patna.
3. The Additional Chief Secretary-cum-Principal Secretary, Health
Department, Government of Bihar, Patna.
4. The Director-In-Chief, Health Department, Government of Bihar, Patna.
5. The Bihar Public Service Commission through its Secretary, 15 Jawahar Lal
Nehru Marg, Bailey Road, Patna - 800001.
6. The Chairman, Bihar Public Service Commission, 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna - 800001.
7. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna - 800001.
8. The National Medical Commission through the Chairman, Pocket - 14,
Sector - 8, Dwarka Phase 1, New Delhi 110077.
9. The Chariman, National Medical Commission, Pocket - 14, Sector - 8,
Dwarka Phase 1, New Delhi 110077.
10. Dr. Sunil Kumar, Director, Indira Gandhi Institute of Cardiology, Ashok Raj
Path, Patna - 800004.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Kumar Kaushik, Advocate
For the Respondent/s : Mr. P.K. Shahi, AG
Mr. D.K. Sinha, Sr. Advocate
Mr. Abhinay Raj, Advocate
Mr. Alexander Ashok, Advocate
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
2/24
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 21-02-2025
The petitioner has challenged the validity of Rules
5, 6 and Appendix-1 of Indira Gandhi Institute of
Cardiology Medical Service (Amendment) Rules, 2023
introduced by way of notification contained in Memo No.
487(17) dated 13.05.2023 whereby the Indira Gandhi
Institute of Cardiology Medical Service Rules of 2022
(hereinafter referred to as the "Rules of 2022"), relating
to eligibility and manner of appointment of the Director
of Indira Gandhi Institute of Cardiology (hereinafter
referred to as "the IGIC") has been changed, which
according to the petitioner is manifestly illegal and
violative of Articles 14 and 16 of the Constitution of
India as also repugnant to the Central Law on the
subject.
2. Apart from this major challenge, the other
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
3/24
reliefs prayed for are quashing and setting aside of Rule
17 of Rules of 2022 whereby it has been prescribed that
the officers appointed prior to coming into force of the
Rule would be entitled to be considered for promotion in
terms of earlier notifications prior to coming into force of
Indira Gandhi Institute of Cardiology Medical Service
Rules, 2014 (hereinafter referred to as the "Rules of
2014") as this also is violative of Articles 14 and 16 of
the Constitution of India because it creates a class within
a class without any rational basis.
3. The further prayer of the petitioner is to set
aside the appointment of respondent No. 10 as Director
of IGIC on regular basis in exercise of the powers under
the Amendment Rules, 2023.
4. The IGIC was carved out of Patna Medical
College and Hospital in the year 1980. Initially, the posts
were sanctioned as teaching posts but by order dated
15.04.1984
, those posts were converted into non-
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
teaching posts. The qualification for posts above the
basic post of Assistant Director was fixed at minimum of
post-graduation but superspeciality qualification was not
mandatory.
5. The contention of the petitioner is that IGIC,
Patna is the first specialized cardiac care centre under
the Department of Health, Government of Bihar. In the
year 2014, in exercise of powers conferred by proviso to
Article 309 of the Constitution of India, the Government
of Bihar framed the Rules of 2014 to regulate the
appointment and service conditions of doctors in IGIC.
Under the aforesaid Rules, IGIC medical service was
declared to be a specialist service with six cadres; one
being medical cardiology cadre.
6. The Rules also provided for chain of posts of
different cadres.
7. Appendix-1 to the Rule of 2014 provided that
for the post of Assistant Director (Medical Cardiology)
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
which would be by direct recruitment, the qualification
would be MD(Medicine) and DM(Cardiology). The first
ladder was Deputy Director (Medical Cardiology) post
which was to be filled up in the ratio of 33% by direct
recruitment and rest 67% by promotion. For that also,
the qualifications required were MD(Medicine) and
DM(Cardiology) with minimum of six years working
experience in a Cardiological Institute recognised by the
Medical Council of India (hereinafter referred to as "the
MCI") after doing DM.
8. The second ladder was of Joint Director
(Medical Cardiology) which also were to be filled up in
the ratio of 33% by direct recruitment and rest 67% by
promotion. Apart from the basic qualification for this post
of MD (Medicine) and DM (Cardiology), 12 years working
experience in a cardiological institute recognised by MCI,
after doing DM was provided.
9. The third ladder was of Additional Director
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
(Medical Cardiology) which was a promotional post.
10. One post of Director was earmarked in the
2014 Rules which was required to be filled up by
selection. The basic qualification, in addition to MD
(Medicine) and DM (Cardiology) or MS and MCH (Cardio
Thoracic Surgery) was of working experience of 15 years
in a cardiological institute recognised by MCI, which was
made mandatory. However, the officers of IGIC
possessing the said requisite qualification could also have
applied for selection.
11. It would be relevant here only to state that
IGIC has been recognised by the Diplomate of National
Board (hereinafter referred to as "the DNB")
qualification awarded by National Board of Examination
(hereinafter referred to as "the NBE") in Cardiology
which is equivalent to DM (Cardiology). IGIC has been
recognised by MCI as a Cardiological Institute where
DNB candidates could be admitted.
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
12. The contention of the petitioner is that a
superspeciality course training of DNB is being imparted
at IGIC which is only one of its kind in the entire State of
Bihar insofar as Government Colleges and Hospitals are
concerned. This recognition was granted to the IGIC by
the NBE, New Delhi in the year 2007.
13. Under the 2014 Rules, Bihar Public Service
Commission (BPSC) had issued an advertisement
bearing No. 68/ 2020 on 12.10.2020, inviting
applications from eligible candidates for appointment to
the one post of Director, IGIC Medical Service.
14. The petitioner had applied and was the sole
person shortlisted for being considered for selection.
However, before the selection process could be brought
to its logical conclusion, the State of Bihar repealed 2014
Rules and framed Indira Gandhi Institute of Cardiology
Medical Service Rules, 2022 on 13.06.2022.
15. Basically, two changes were made in the
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
Rules of 2022, viz., that the recruiting agency was
changed from BPSC to Bihar Technical Service
Commission for appointment to the posts under the
cadre including the post of Director and secondly, instead
of 15 years work experience in Cardiology, Cardio
Thoracic Surgery, Cardio Thoracic and Muscular Surgery
Department recognised by MCI, the Rules included even
such candidates who would have experience in a medical
college recognised by MCI, having an independent
Department of Cardiology/ Cardio Thoracic Surgery/
Cardio Thoracic and Muscular Surgery Department .
16. However, what is to be noted is that the basic
qualification of superspeciality degree, viz. MD and DM
or MS and MCH were not changed.
17. Shortly thereafter, this Rule of 2022 also was
amended by way of notification contained in Memo No.
487(17) dated 13.05.2023, which according to the
petitioner has changed the manner and eligibility of
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
appointment to the post of Director entirely.
18. By the aforesaid Amendment, Rule 14(1) of
the Indira Gandhi Institute of Cardiology Medical Service
Rules, 2022 was substituted and it was notified that
appointment to the post of Director, IGIC will be made
by the State Government from amongst the Additional
Directors working in medical cardiology and surgical
cardiology cadre on the basis of inter se seniority. The
details were provided as to how the inter se seniority
would be determined. Changes were made in the
Appendix to the 2022 Rules too, removing the
superspeciality degree mandatorily required for the post
of Director.
19. The requirement of superspeciality degree for
the junior posts were though left intact.
20. With the Amendment in the qualification for
the post of Director, what was required was either
MD(Medicine) or DM(Cardiology) or MS or MCH Cardio
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
Thoracic Surgery with 15 years of work experience in an
institution recognised by National Medical Commission
having an independent Department of Cardiology/Cardio
Thoracic Surgery/ Cardio Thoracic and Vascular Surgery.
The appointments were to be made by the State
Government.
21. Thus, it is noticeable that with the
amendment, the selection post of Director became a
promotional post and the superspeciality qualification
was removed.
22. It has been contended that such reduction of
qualification for the post of Director is impermissible and
is in conflict with MCI guidelines. It was also argued that
the Government of Bihar does not have the legislative
competence to amend the Rules. Even otherwise, when
all the posts below the ladder require the superspecialty
degree, it would appear to be anomalous that the person
adorning the highest post in the cadre would not be
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
required to have superspeciality qualification.
23. The charge of the petitioner is that this
amendment was introduced only to facilitate respondent
No. 10 on permanent basis.
24. An argument was advanced that the
regulations on minimum qualification having been made
by MCI cannot be whittled down or reduced by a State
law.
25. An additional argument also was raised with
respect to Rule 17 of 2014 Rules, which prescribed that
those persons appointed/promoted and working at the
time of enforcement of the Rules, would not be subjected
to the said Rule of 2014 and they shall work on their
posts which shall be declared to be a dying cadre but
they shall also be entitled to promotion in terms of earlier
notification.
26. It was urged that if such appointees were to
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
be treated as dying cadre, there would have been no
difficulty but affording to them the prospect of promotion
would be in conflict with Articles 14 and 16 of the
Constitution of India. Rule 17 of 2014 Rule, referred
above, was retained in the 2022 Rules also, which in pari
materia is found in Rule 17 of 2022 Rules. It amounted
to giving promotions to those who were appointed before
the Rules of 2014 without the degree of DM. They could
not have only continued in service but would be granted
promotion to higher posts also even in the absence of
possession of minimum qualification required for that
post under the 2014 Rules.
27. The BPSC withdrew the Advertisement No.
68 of 2020, referred to above, and appointed respondent
No. 10 to the post by order dated 21.08.2024 for a
period of three years or untill regular appointment of the
Director was made.
28. Thus, the challenge of the petitioner is
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
manifold, viz., (i) the State Government does not have
the competence to reduce the qualification of the post of
Director since IGIC is a stand alone Teaching Institute
apart from being a hospital; (ii) IGIC is a Superspeciality
Cardiology Institute in which even the basic post of
Assistant Director requires the qualification of DM; (iii)
the Rule was amended only to accommodate respondent
No. 10, who continues on the post even after his
superannuation; (iv) the selection process already begun
could not have been cancelled because of an amendment
made during the pendency of the same, as the State
does not have the absolute freedom to abandon a
selection process without any reason, after
commencement of the same.
29. Responding to the aforenoted challenge, the
learned Advocate General made a slender argument that
IGIC is not a Teaching Institute but a stand alone
hospital with superspeciality services in cardiology. That
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
being the situation, the Rules prescribed by Medical
Council of India (Minimum Qualification for Teachers in
Medical Institutions) Regulation, 1998 with
superspeciality degree would not be applicable; thus,
negating the arguments of the amendment carried out in
the 2022 Rules to be ultra vires the Constitution on the
ground of it being repugnant with the Central Law in that
regard.
30. The National Medical Commission (Post-
graduate Medical Education Board) has come out with
teachers eligibility qualification in Medical Institutions
Regulations, 2022, which provides for general norms for
appointment of faculty in medical institutions.
31. These regulations further provide that the
DNB degree in broad speciality and superspeciality
qualifications when granted in a medical institution with
attached hospital or in a hospital with the strength of 500
or more beds by the National Board of Examinations, it
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
shall be equivalent in all respects to the corresponding
Speciality (MD/MS) and Superspeciality (DM/MCH)
Postgraduate qualification.
32. It was submitted by the State as also by
respondent No. 10 that vide resolution of the
Government of Bihar in its Health Department dated 15 th
of April, 1984, it was clarified that IGIC was separated
from Patna Medical College and Hospital and was
established as an independent Institute/ hospital. All the
posts were initially made the teaching post but because
of great difficulty in filling up of such teaching posts, it
was decided to convert those posts to non-teaching
posts. This decision was taken also for the reason that
when it was manned by persons on non-teaching posts, it
had done much better in providing medical services in
the Department of Cardiology.
33. On a careful consideration of all these facts,
the State Government took a decision that all the
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
teaching posts of the institute would be converted into
non-teaching posts. It was also pointed out that
notwithstanding the accreditation of IGIC by the National
Board of Examinations for award of DNB degree, IGIC
does not become a Medical institute; rather it is a stand
alone hospital dealing with patients in Cardiology
Department. Merely because an institution is listed and
accredited by National Board of Examination for DNB
degree, the officers of the institute do not become
teachers and the Institute does not become a Medical
Institution. In fact, DNB accreditation is given to private
hospitals also where no teaching is imparted.
34. Since the National Medical Commission and
its Chairman were also impleaded as respondents No. 8
and 9 to the writ petition, a counter affidavit was filed on
their behalf as well, the affidavit having been sworn by
an Under Secretary with the National Medical
Commission. The affidavit clearly states that National
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
Medical Commission only provides the minimum
standard of qualification under teachers eligibility
qualification in Medical Institutions Regulation, 2022 and
does not provide for Recruitment Rules for appointment
of faculties in hospitals. Rather, the Regulation 3.6 of the
Teachers Eligibility Qualification in Medical Institutions
Regulation, 2022 provides that the position of
Dean/Director/Principal of Medical College/Institutions
should be held by a person possessing recognized
Postgraduate Medical Degree from a recognized
institution with a minimum of 10 years teaching
experience as Professor/Associate Professor in Medical
College/Institution, out of which at-least five years
should be the experience of Professor in the Department.
The appointment to these posts would be made on
Seniority-cum-Merit basis and the
Dean/Director/Principal shall not hold the post of the
Head of the Department.
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
35. It was, therefore, averred that the
recruitment rules comes under the purview of the State
Government, where qualification and experience could be
provided in the Recruitment Rules by the Government.
36. Before adverting to the arguments on behalf
of the parties, it would be relevant to state that in State
of Tamil Nadu vs. P. Krishnamurti : (2006) 4 SCC
517, the Supreme Court listed the following principles
while adjudging the validity of subordinate legislation,
including regulations. There is a presumption in favour of
constitutionality or validity of a subordinate legislation
and the burden is upon him who attacks it to show that it
is invalid. It is also well-recognized that a subordinate
legislation can be challenged under any one of the
following grounds, viz.,
(a)Lack of legislative competence to make the
subordinate legislation.
(b)Violation of fundamental rights guaranteed under
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
the Constitution.
(c) Violation of any provision of the Constitution of
India.
(d) Failure to conform to the statute under which it is
made or exceeding the limits of the authority
conferred by enabling Act.
(e) Repugnancy to laws of the land, i.e., any
enactment and if manifest arbitrariness/
unreasonableness (to an extent where the Court
might well say that the Legislature never intended
to give authority to make such Rules).
37. In summary, the judicial review of
Government policies encapsulates determining whether
they infringe upon the fundamental rights of citizens,
contravene constitutional provisions, violate statutory
regulations or display manifest arbitrariness,
capriciousness, or mala fides.
38. The focus of judicial scrutiny is limited to
the legality of the policy, excluding any evaluation of its
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
wisdom or soundness.
39. The Court cannot compel the Government
to formulate a policy, evaluate alternatives or assess the
effectiveness of existing policies, which constraint stems
from the principle of separation of powers, where the
Courts lack the democratic mandate and institutional
expertise to delve into such matters (Also refer to In Re
Section 6A of the Citizenship Act, 1955: 2024
SCC Online SC 2880).
40. In Shudhir and Anr. vs. State of Kerela
and Ors. : (2015) 6 SCC 685 cited by the petitioner,
the primary ground on which the challenge to the validity
of the legislation was mounted by the writ petitioner was
that the State Legislature could not enact law that would
make selection for admission to the Postgraduate
courses dependent solely on seniority of the in-service
candidates without prescribing the minimum conditions
of eligibility for the candidates concerned.
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
41. Whereas, in the present case, Rules have
been made under the exercise of powers conferred by
proviso to Article 309 of the Constitution of India which
relates to Medical Education and Medical Profession
falling in list-III of Schedule-7 to the Constitution of
India and the Central Law, viz., Medical Council
Regulations are applicable only for teaching posts in a
Medical College and Hospital.
42. Thus, the challenge that the State
Government does not have the competence to reduce the
qualification of the post of Director is not sustainable.
The State Government has the power to come out with
such notification prescribing the qualification required for
the post of Director in a stand alone hospital like IGIC.
43. Since IGIC is not a Medical Institution
falling under the definition of Medical Institutions under
the MCI Act, it cannot be said that the regulations by the
MCI were tinkered with which would have been
impermissible, had IGIC been a Medical Institute and
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
Hospital.
44. Even at the risk of repetition, it is being
stated here that the position is clear that IGIC is a stand
alone hospital of speciality.
45. Only for the reason of accreditation by the
NBE of IGIC for permitting training of DNB course, IGIC
does not become a Medical Institution. The saving
provision in Rule 17 of both 2014 and 2022 Rules is
meant for saving the persons who had entered the
institute prior to the formulation of Rules of 2014 which
is treated as a dying cadre. It appears that somehow or
the other, there would be no person available in that
cadre now.
46. The further objection of the petitioner that
with the amended Rules of 2023, there would be an
anomalous situation, is not sustainable for the reason
that a Director is expected to run the institute more on
his administrative capabilities than the medical
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
superspeciality; whereas the other doctors would be
treating the patients with their superspecialised
qualifications.
47. The selection process though had begun but
the State Government in its wisdom, for the purposes of
effective management and running of the hospital,
thought it fit to make change in the Rules which is
permissible. Had the selection process been completed
and the writ petitioner would have been selected and
appointed, the situation would have been different and
then the change of Rules would have been read as an
attempt to purposely exclude the writ petitioner from
being the Director of the Institute.
48. The challenge of the petitioner on all the
grounds, thus, fails.
49. However, after having said this, we do
conclude that the Government must resort to appointing
regular Director in accordance with the Rules of 2022,
Patna High Court CWJC No.15400 of 2023 dt. 21-02-2025
amended in 2023, and not keep the post filled by a
contractual appointee.
50. The learned Advocate General has
submitted that the post shall be filed up by way of
promotion and regular appointment shortly.
51. Thus, the writ petition stands disposed off in
terms of what has been held above.
(Ashutosh Kumar, ACJ)
Partha Sarthy, J : I agree.
(Partha Sarthy, J)
Rajesh/Manoj
AFR/NAFR NAFR
CAV DATE 04.02.2025
Uploading Date 21.02.2025
Transmission Date
