Kumar Bhaskar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 3471 of 2021 =================================================== -Versus- ............... Respondents ====================================================== Appearance :
For the Petitioner/s :
Mr. Lal Babu Singh, Advocate Mr. Sanjay, Advocate For the Respondent/s :
Mr. Pushkar Narain Shahi, AAG-6 Mr. Sanjeet Kumar Singh, A.C. to AAG-6 ======================================================
2/9 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) ===================================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/ Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.) Date : 31-05-2021 Petitioners have prayed for the following relief(s):
2. The Challenge to the petition is opposed by Shri
3/9 P.N. Shahi, learned Additional Advocate General No. 6 inviting attention of this Court to the judgment rendered by a coordinate Bench of this Court in the case of Dr. Dharmbir Kumar & Ors. Vs. The State of Bihar through the Chief Secretary, Bihar, Patna & Ors., reported in 2015 (2) PLJR 916.
3. It is not in dispute that the petitioners are degree holders in Ayurvedic Medicine and Surgery, duly registered under Central Council of Indian Medicine, New Delhi. They passed their degrees during different period of time. It is also not in dispute that by virtue of Article 309, the State Government has enacted Rules termed as Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and service conditions) Rules, 2010 [hereinafter referred to as 2010 Rules]. Clause 7 of the 2010 Rules notified on 21st December, 2010 reads as under:-
4. With the passage of time, the 2010 Rules stood amended vide notification dated 20th of November, 2017
4/9 substituting the aforesaid clause which reads as under:
5. The said 2017 Rules stand amended vide notification dated 6th of January, 2020 substituting the aforesaid clause which
5/9 reads as under:
6. It is this amendment which is challenged by the petitioners primarily on the ground that it ousts the petitioners from the zone of consideration as also it compromises with the original text of inviting best of the talent, may be by way of competitive examination.
7. On both counts, we find the submission made by learned counsel for the petitioners to be misplaced on facts
6/9 and law. The amended Rule does not, in any manner, oust the petitioners from consideration. It only prescribes the criteria for selection on merit, which squarely falls within the domain of legislature.
8. The legislature in their wisdom have only thought it prudent to invite applications and choose the best of the talent not only on the basis of academic qualification but also experience. The pattern for selection is best suited, in the wisdom of the legislature, to cater the need necessitating appointment of persons with experience. This Court cannot sit over the wisdom of the legislature, unless of course, such legislation can be held to be violative of Constitution of India.
9. It is seen that earlier the prescribed process of selection was through competitive examination to be held every year. As per the amended provision, perhaps to avert any delay, the criteria stood changed by adopting a uniform yardstick in awarding marks based on educational qualification and experience. We do not find such procedure to be violative of Articles 14, 16 and 21 of the Constitution of India.
10. In fact, the issue is no longer res integra and
7/9 stands settled by a coordinate Bench of this Court in Dr. Dharmbir Kumar (supra) wherein the Court observed as under:- "6. 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.
7. Awarding of marks for experience is not uncommon. The candidates who have been engaged on contractual basis served the Government Hospitals at a time when their other colleagues have been pursuing their green pastures. The State can certainly recognize the service of such candidates, subject, of course, to certain limits."
11. At this juncture, we may also take note of the decision rendered by Hon'ble the Apex Court in Dr. (Major) Meeta Sahai Versus State of Bihar & Ors., (2019) 20 SCC 17, wherein the Court observed as under: "33. It is hence irrational to urge that the work experience in any such hospital is different from that in a Government of Bihar hospital. Hence, it would be constitutionally unjust to allow differentiation between the experience gained by doctors at these hospitals established by Panchayats or Municipalities or by the Central Government and its instrumentalities in the territory of Bihar vis-à-vis those run by the Bihar Government. Any attempt to discriminate between hospitals run by the State Government and the Central
8/9 Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of our constitutional governance set-up.
34. Having said so, we are not oblivious to the fact that equality does not imply that there can be no classification. Instead, sometimes it may be necessary to treat unequals unequally, for equal treatment of persons with unequal circumstances creates an unjust situation. [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, para 415 : 1992 SCC (L&S) Supp 1] Such classification, however, must not be arbitrary but rationally founded on some quality or characteristics which are identifiable within the class of people so created and absent in those excluded from such classification.
35. We are of the view that the purpose behind formulation of the Rules was to recognise the unique challenges of hospitals in Bihar and incentivise doctors to work in non-private hospitals. There is some substance in the submission of the learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a nonprivate hospital instils sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of government hospitals and must be given due weightage while selecting suitable candidates.
Interpreting "government hospitals" to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti-merit. Such an objective would not be defeated by the understanding of the Rules as has been construed by us.
Conclusion
36. For the reasons stated above, the appeal is allowed. Rules 5 and 6(iii) of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 are construed to include the experience gained by a doctor in any hospital run by the Bihar Government or its instrumentalities, as well as any other non-private hospital (including those run by the Central Government, Municipalities and Panchayati Raj
9/9 Institutions; or other public authorities) within the territory of Bihar. The respondents are accordingly directed to rework and prepare a fresh merit list by granting due weightage to the appellant and other similarly placed candidates, within two months. We however clarify that grant of weightage on the basis of work experience shall have no bearing on the suitability of a candidate."
12. Hence, for all the aforesaid reasons, the present petition devoid of any merit and stands dismissed.
13. Interlocutory Application(s), if any, shall stand disposed of.
Sujit/PKP- (Sanjay Karol, CJ) (S. Kumar, J) AFR/NAFR CAV DATE Uploading Date 06.06.2021 Transmission Date