Patna High Court
Sudhir Kumar Mandal & Ors vs The State Of Bihar & Ors on 11 May, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
Letters Patent Appeal No.19 OF 2007
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( Against the judgment and order dated 19.10.2006 passed by the
learned Single Judge in CWJC No. 12410 of 2000)
1. Sudhir Kumar Mandal, son of Sri Vedanand Mandal, resident
of village- Koshkipur, P. O.- Simra, P. S.- Tikapatti, District
Purnea.
2. Naresh Kumar Sinha, son of late Damador Prasad Mandal,
resident of village Bhagwanpur, P. O.- Dhol Bazar, P. S.-
Nagachhia, District- Bhagalpur.
3. Bijendra Kumar Singh, son of Haribansh Prasad Singh, resident
of village Chakla Nirmali, P. O. and P. S. - Supaul, District
Supaul (Saharsha).
4. Om Prakash Singh, son of Sri Sachidanand Singh, resident of
village- Bahuara, P. O. and P. S. Sona Gopalpur, District Patna.
5. Yogendra Kumar Mandal, son of late Kapildeo Mandal,
resident of village Tikapatti, P.O. and P. S. Tikapatti, District
Purnea.
6. Yogendra Roy, son of Sri Suchit Prasad Roy, resident of
village- Jhallari, P. S. Rupauli, District- Purnea.
7. Ram Chandra Prasad Mehta, son of Sri Harilal Mehta, resident
of village- Arhara, P. O. and P. S. Kamaldaha, District Saharsa.
.. Petitioners/Appellants
Versus
1. THE STATE OF BIHAR
2. The Bihar Public Service Commission through its Chairman, Bihar
Public Service Commission, Patna.
3. The Commissioner, Health Department, Bihar, Patna.
4. The Director-in-Chief, Heath Services, Bihar, Patna
5. The Deputy Director, Health Department, Bihar, Patna
... Respondents- Respondents
6. Anil Kumar Singh, son of Sri Sadanand Singh, resident of
Mohalla- Punaichak, P. S. - S. K. Puri, District- Patna.
... Performa Petitioner- Respondent
7. Mr. Anil Kumar, son of Sri Ram Das Sharma,
8. Mr. Mukush Kumar Verma, son of Sri Birendra Kumar Verma,
9. Mr. Sidharth Shankar Singh, son of late Ajay Kumar Singh
10. Binod Kumar Singh, son of Sri Dineshwar Prasad Singh
11. Fanindra Kumar Singh, son of Sabhapati Singh,
12. Krishna Prasad Singh, son of Sri Ramanandan Singh,
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13. Ajay Kumar, son of Sri Ramratan Singh,
14. Arun Kumar, son of Sri Ramcharit Prasad Singh
15. Rajkumar, son of Sri Bhola Prasad
16. Janaradhan Prasad Singh, son of Sri Kamata Prasad Singh
17. Vidhya Devi, daughter of Kedar Singh,
18. Shivshankar Prasad Chaurasiya, son of late Kamp Mandal
19. Satendra Kumar Pandey, son of Sri Tribhuban Nath Pandey,
20. Vinod Kumar, son of Sri Vishwanath Prasad,
21. Uma Shankar Prasad, son of Sri Bhagawat Sao,
22. Umesh Prasad Choudhary, son of late Anirudh Prasad Choudhary
23. Manohar Kumar, son of Sri Naresh Prasad Mandal,
24. Ravindra Kumar, son of Sri Sohray Prasad,
25. Rajendra Prasad Bhagat, son of late Raghunandan Prasad Bhagat
26. Ajad Ray, son of Sri Pachhari Roy,
27. Saroj Kumar, son of Late Raghunandan Prasad
28. Surendra Kumar Singh, son of Sri Devnandan Singh,
29. Sushil Kumar Mishra, son of Sri Bhola Singh
30. Chandra Bhushan Choudhary, son of Sri Arjun Choudhary
31. Maya Devi, daughter of Sri Ram Akwal Singh,
32. Mo. Aslam, son of Dr. Samsul Joha,
33. Shivshankar Raut, son of Sri Ramdas Raut,
34. Raman Kishor Sharan, son of Sri Surendra Kishor Sharan
35. Taras Pandit, son of late Mishri Pandit.
36. Dhamendra Kumar, son of Sri Ramprawesh Singh,
37. Shailendra Prasad, son of Sri Brahamdev Mahto,
38. Chandan Kusum, son of Sri Kamala Prasad Pandit,
39. Subhash Prasad, son of late Bundi Prasad,
40. Suryakant Sinha, son of Sri Radhekrishan Sinha
41. Javed Aalam, son of late Md. Subhan,
42. Md. Soabbdin, son of Md. Basarat Hussain
43. Manoj Kumar, son of Sri Shyam Bihari Prasad,
44. Md. Majahar Aalam, son of md. Ati Hussain
45. Ram Janam Thakur, son of Sri Meghnath Thakur,
46. Krishananand Singh, son of Sri Vishwanath Prasad Singh,
47. Navin Kumar, son of Sri Duryodhyan Prasad Mandal,
48. Ashok Kumar Sah, son of Sri Jagdish Prasad Sah,
49. Shamim Ahamad, son of Md. Kabir Mansuri,
50. Indubhushan Ojha, son of Sri Ravi Bhushan Ojha,
51. Upendra Kumar Singh, son of Sri Devnandan Singh
52. Narendra Kumar Dixhit, son of Sri Janardan Prasad Pandey,
53. Arvind Kumar Sinha, son of Sri Rajendra Prasad Sinha,
54. Indu Bhushan Singh, son of late Mahavir Prasad Singh,
55. Chitranjan Prasad Singh, son of Sri Ram Binod Singh,
56. Nirmal Kumar Bishwas, son of Sri Yaduvir Prasad Bishwas,
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57. Surendra Prasad Singh, son of late Ram Gahan Singh,
58. Arun Kumar Sinha, son of Sri Ramjeet Prasad,
59. Ashok Kumar, son of Sri Vishwanath Prasad Singh,
60. Lalan Sharma, son of Sri Rajeshwar Singh,
61. Dilip Kumar Choudhary, son of Sri Rajendra narayan Choudhary,
62. Awadhesh Singh, son of Sri Akhleshwar Singh
63. Arun Kumar, son of Sri Sithram Sharma,
64. Raghubansh Prasad Singh, son of Sri Kedar Singh,
65. Vijay Kumar, son of Sri Vasudev Prasad Mandal,
66. Ashok Kumar Singh, son of Sri Ayodhya Nath Singh,
67. Suresh Roy, son of Sri Faujdar Roy,
68. Suraj Shankar, son of Sri Dinanath Singh,
69. Md. Jabir Hussain, son of Jainul Avidat,
70. Santosh Kumar Verma, son of Sri Dwarika Prasad,
71. Sunil Kumar, son of Sri Dhaneshwar Sharma,
72. Chandrabhushan Kumar, son of Sri Rambriksh Thakur,
73. Krishan Kumar Singh, son of Sri Bindeshwar Singh,
74. Abe Aalam, son of md. Rudal,
75. Hira Sahni, son of Sri RamChandra Sahni
76. Vijay Kumar Akela, son of Sri Radhakrishan Kumar,
77. Sanjay Kumar Mandal, son of Sri Kanti Prasad Mandal,
78. Suryanarayn Mandal, son of Sri Hiyalal Mandal,
79. Ashok Kumar Singh, son of Sri Yamuna Prasad Singh,
80. Shankar Prakash Gupta, son of late Gyani Prasad Gupta,
81. Naresh Choudhary, son of Sri Rameshwar Choudhary,
82. Shekhar Prasad, son of Sri Kameshwar Prasad,
83. Anil Kumar, son of Sri Devnandan Prasad,
84. Dilip Kumar, son of late Devan Sao,
85. Ajit Pandit, son of late Yogi Pandit,
86. Dinesh Kumar Patel, son of Sri Durbhiksh Choudhary,
87. Irawati Kumari, daughter of Sri Dhanushdhari Prasad,
88. Nand Kishor Prasad, son of Sri Sohrai Ram,
89. Chandrashekhar Kumar, son of Sri Vaidhnath Prasad,
90. Rameshwar Prasad, son of Sri Basant Manjhi.
91. Birendra Paswan, son of Sri Jhagur Paswan,
92. Ahamad Afzal Imam, son of Md. Ithak,
93. Md. Muslim, son of Tanmmal Hussain,
94. Arun Kumar, son of Sri Muneshwar Pandit,
95. Birendra Prasad, son of Sri Baleshwar Prasad,
96. Ajay Kumar Paswan, son of Sri Ramawatar Paswan,
97. Laxmi Saday, son of Sri Bank Saday,
98. Dilip Kumar Paswan, son of Sri Baidhanath Paswan
99. Krishana Prasad, son of Sri Ramawatar Roy,
100. Bharat Ram, son of late Saheb Ram,
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101. Rajeshwar Paswan, son of Sri Bindeshwar Paswan,
102. Arun Kumar, son of sri Shivji Mandal
103. Sunil Paswan, son of sri Ramswaroop Paswan
104. Kamal Kumar Choudhary, son of late Mithu Choudhary
All respondents 7 to 104, selected /appointed T. B. Assistants
(Yakshma Sahayak) C/o The Incharge Director-in-Chief,
Health Services, Bihar, Patna-cum- The Director, Health
Servces, Bihar, Patna.
... Respondents.
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For the appellant : Mr. S. K. Verma, Adv.
For the State : Mr. Prabhakar Takeriwal,
G. A.I
For the B.P.S.C. : Mr. Sanjay Pandey, Adv.
For respondent No. 6 : Mr. Navin Kumar, Adv.
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PRESENT: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MIHIR KUMAR JHA
JUDGMENT
(11/05/2010)
As per Mihir Kumar Jha, J.
I.A. No. 2684 of 2010
This interlocutory application has been filed on behalf of
one Krishna Kant Singh @ Chhote seeking leave of this Court for
allowing his intervention in this appeal on the ground that his case
stands almost on the same footing as that of the appellants herein.
2. In this regard it was sought to be explained by Sri Vijay
Kumar Verma, learned Counsel for the intervener on the basis of two
5
documents enclosed with the intervener application that the aforesaid
Krishna Kant Singh was also initially appointed on the post of
Tuberculosis Assistant by Mr. A. A. Mallick on 16.2.1987 and was
removed from service on 13.4.1993 on the ground that his appointment
was illegal being violative of the rules and procedure of appointment on
the post of Tuberculosis Assistant and in complete breach of Article 14
and 16 of the Constitution of India. The intervener claims subsequently
that he too in view of judgment of the Apex Court in the case of
Ashwani Kumar and Ors vs. State of Bihar and Ors., reported in
(1997) 2 SCC 1 was called for interview by the Bihar Public Service
Commissioner (hereinafter referred to as 'the Commission') by letter
No. 506 dated 9.3.2000 but was ultimately not selected. It has thus been
convassed that he should be impleaded as a party to this appeal and be
given same relief as that to unsuccessful appellants-writ petitioners of
L. P. A. No. 19 of 2007 and therefore he may also be allowed to be
impleaded as an appellant and/or made party for giving the same relief.
3. Having considered the averments made in this application
as also upon hearing of learned counsel for the proposed intervener,
Krishna Kant Singh @ Chhote, this Court is of the opinion that he
cannot be now added as a party to assail the order of the learned single
Judge inasmuch as he had not joined the appellants-writ petitioners,
who being conscious to their cause, had immediately filed a writ
6
petition after completion of selection process by the Commission and
consequential appointments made by the State Government in terms of
the recommendations of the Commission.
4. Let it be noted that there is also no whisper in the petition
explaining the delay of almost 10 years in approaching this Court by
the proposed intervener, whose writ petition if at all filed after a gap of
10 years for the relief being sought through this intervention
application, could have been rejected on the ground of unexplained
delay of 10 years.
5. That apart, the intervention application has been filed on
18.3.2010 in an appeal which has already been admitted for final
hearing and in which the respondents State Government and the
Commission have filed a detailed counter affidavit dealing with the
individual cases of the appellant-writ petitioners of L. P. A. No. 19 of
2007. Thus, now when this appeal is sought to be finally disposed of it
would be wholly unpragmatic and impracticale to allow such belated
intervention of the proposed intervener much less permitting him to be
joined as an appellant to L. P. A. No. 19 of 2007.
6. Thus for the reasons indicated above, we are not inclined
to allow intervention of Krishna Kant Singh @ Chhote. I. A. No. 2684
of 2010 is accordingly dismissed.
7
L. P. A. No. 19 of 2007
7. Heard Mr. S. K. Verma, learned counsel for the
appellants-writ petitioners, Mr. Prabhakar Tekeriwal, learned counsel
for the State, Mr. Sanjay Pandey, learned counsel for the Commission
as also Mr. Navin Kumar, learned counsel for respondent no. 6.
8. In this intra-court appeal, an order of the learned single
Judge dated 19.10.2006 passed in C.W.J.C. No. 12410 of 2000 has
been assailed by the appellants-writ petitioners primarily on the ground
that they were wrongly denied the appointment on the post of
Tuberculosis Assistant in the selection process undertaken by the
Commission and the consequential appointments made by the State
Government of Bihar.
9. The learned single Judge having given a detailed
consideration to the case of the appellants-writ petitioners has rejected
their such prayer by holding that there was neither any infirmity in the
selection process and/or recommendations of the Commission nor in
the consequential appointments made by the Government.
10. Mr. S. K. Verma, learned counsel for the appellants- writ
petitioners however has made elaborate submissions while assailing the
order of learned single Judge. His main line of attack is that the
directions of the Apex Court in the case of Ashwani Kumar (supra)
with regard to process of selection and appointment was not followed
8
in letter and spirit, as a result whereof genuine and better meritorious
candidates like the appellants-writ petitioners could not be
recommended by the Commission and appointed by the Government on
the post of Tuberculosis Assistant. He has also assailed the
appointments of respondent nos. 6 to 104 by taking a plea that they
were not as meritorious as the appellants-writ petitioners and further
that some of them did not possess the basic qualification for the post of
Tuberculosis Assistant. A faint submission in this regard was also made
by the counsel for the appellants-writ petitioners with regard to the
norms of selection adopted by the Commission by taking a plea that the
post of Tuberculosis Assistant was a technical post and therefore the
Commission ought to have conducted their selection by holding an
examination for assessing their technical skill in stead of holding a
written test of general nature followed by interview.
11. Mr. Prabhakar Tekeriwal, learned counsel appearing on
behalf of the State and Mr. Sanjay Pandey, learned counsel appearing
on behalf of the Commission while supporting the order of the learned
single Judge and also placing reliance on the counter-affidavit filed in
this appeal, have submitted that such selection procedure was fair and
uniform for all the candidates. In this context it has been explained that
such selection was confined only to those employees including
Tuberculosis Assistants whose appointments made in the regime of Mr.
9
A. A. Mallick, the then Deputy Director of Tuberculosis were found to
be illegal leading to their consequential order of termination which was
affirmed by this Court as also by the Apex Court in the case of
Ashwani Kumar (supra). They have also submitted that it was in terms
of the direction given by the Apex Court in the case of Ashwani Kumar
(supra) that the State Government and the Commission had completed
the fresh exercise for selection and appointment amongst similarly
situated terminated employees by publishing advertisement in the
newspaper, holding written test and interview and making appointment
on the basis of recommendation of the Commission against the
available sanctioned posts by strictly following the Government policy
of roaster and reservation.
12. Mr. Tekariwal in this context has also submitted that the
whole process of selection and appointment was being constantly
monitored by this Court in view of the directions of the Apex Court and
in course of such monitoring an order was ultimately passed on
25.1.2006 in MJC No. 2828 of 1998 holding that the directions of the
Apex Court in the case of Ashwani Kumar (supra) had been fully
complied. Thus, counsel for the respondents have contended that the
grievance of the appellants-writ petitioners as with regard to non-
compliance of the direction of the Apex Court in the case of Ashwani
Kumar (supra) cannot be reagitated in view of dropping of the
10
contempt proceeding by a Division Bench of this Court in the aforesaid
order dated 25.1.2006 in MJC No. 2828 of 1998.
13. Counsel for the respondents by placing details of marks
secured by the appellants-writ petitioners have also sought to
demonstrate that as they had secured lesser marks in comparison to the
recommended and appointed candidates and were placed below in the
merit list, prepared on the basis of marks secured in the written test and
interview, they could not be permitted to assail the process of selection
after taking a chance in such selection process.
14. Before we enter into the merits aforementioned
submissions, it would relevant to note that the appellants-writ
petitioners had filed the connected writ petition on 30.11.2000 for the
following reliefs:-
" i. to quash the final result published by B.
P. S. C. as well as entire selection process
envisaged for the post of T. B. Assistant (Yakshma
Sahayak) of category No. 10 of Advertisement No.
01/97 which has been published in daily
Newspaper "AAJ' on 13.5.2000 by which various
illegalities and irregularities adopted by the
commission in selection process without following
the direction of Apex Court passed in Civil Appeal
No. 1078-59 of 1995 on 16.12.96 and also on the
ground by which so many discrepancies and
anomalies detected by the members of the
Commission in the entire selection process.
ii. To direct the respondent nos. 3 and 4 to
adopt reasonable procedure as per the
rule/guidelines prescribed for the selection process
by the Apex Court in accordance with law reported
11
in 1997(I) PLJR 59 (S.C.) instead of B. P. S. C. on
the ground that the commission adopted irrational,
unreasonable process for the selection of ex-
employee of T. B. (Health).
iii. To direct the respondents to appoint the
petitioners and others for the post of T. B.
(Assistant ) against the sanctioned post and by
adopting reasonable process of selection as per
item no. (5) of the said Advertisement and select
the petitioners and like others on the basis of only
125 candidates after recommendation made by
three members of selection committee in terms of
Govt. Order dated 25.3.1983 and on the report and
recommendation of the said committee on 14.2.87.
iv. To direct the respondent- State authority
to select all the candidates on merit after making
the preliminary scrutiny of the credentials of the
candidates they might have been appointed by Dr.
Mallick, the then Deputy Director (Health
Services) Bihar, Patna and in the light that they
have performed continuously more than three
years of service on that very post meritoriously and
honestly."
.
15. The learned single Judge on the basis of the pleadings on
record had dismissed the writ petition by holding that there was no
infirmity in the selection process undergone. The learned single Judge
also refused to interfere that the appointments already made in terms of
selection because the successful candidates were not made party to the
writ applications. However, learned single Judge as with regard to the
grievance of the appellants-writ petitioners that the selected and
appointed candidates on the post of Tuberculosis assistant did not fulfil
the requisite qualification, of being trained from Government Institute,
12
had left the matter open by giving liberty to the petitioners to point out
such infirmity to the Government in which case the same was to be
looked into by the respondents. In this regard it has to be noted that
when this appeal was filed against the aforesaid impugned order of
learned single Judge dated 19.10.2006, this Court in view of the prayer
made by the appellants-writ petitioners for adding the successful
candidates who had already been appointed on the post of Tuberculosis
Assistant way back in the year 2000 had granted permission to add
them as parties to the appeal by an order dated 26.7.2007 and that is
how respondent no. 7 to 104 were impleaded as parties to this appeal
and notices were issued to them. The appeal was subsequently admitted
by an order dated 20.3.2009 and has been now placed before us for its
final hearing.
16. In the considered opinion of this Court, the first attack of
the learned counsel for the appellants-writ petitioners as with regard to
selection and appointment on the post of Tuberculosis Assistant of
respondent nos. 6 to 104 to be bad on the ground of violation of
directions of the Apex Court must be rejected not only because a
Division Bench of this Court in the order dated 25.1.2006 in MJC No.
2828 of 1998 had found such directions of the Apex Court given in the
case of Ashwani Kumar (supra) to the complied in letter and spirit but
also because whatever has been submitted by Mr. Verma as with regard
13
to the alleged violation by the respondents in conducting selection and
making appointment on the post of Tuberculosis even otherwise has no
merit.
17. The Apex Court in the case of Ashwani Kumar (supra)
while holding the appointment made by Mr. A. A. Mallick to be rank
illegal had recorded that there were only 2250 post in the Tuberculosis
Eradication Scheme whereas Mr. A. A. Mallick had gone to make
appointment of more than 6000 employees on class III and Class IV
posts. The detailed findings recorded by the Apex Court as with regard
to such illegal appointments as recorded in the judgment of the Apex
Court in the case of Ashwani Kumar (supra) need not be gone into for
the purposes of this appeal but then in order to appreciate the grievance
of the appellants-writ petitioners it would be necessary to quote
paragraph 18 and 19 of the judgment which reads as follows:-
"..... 18. Now is the time for us to take
stock of the situation in the light of our answers to
the aforesaid three points. As a logical corollary to
these answers the appeals are liable to be dismissed
as the decision of the High Court is found to be well
sustained. The submission made by the learned
Counsel for the appellants to sustain services of
these appellants on humanitarian grounds cannot be
countenanced. When 6000 appointees are found to
have been illegally loaded on the State Exchequer by
Dr. Mallick and when there were only 2250
sanctioned posts, in the absence of clear data as to
who were the seniormost and which were the
sanctioned posts available at the relevant time
against which they could be fitted, it would be
impossible to undertake even a jettisoning operation
14
to offload the removable load of excess employees
amounting to 3750 by resorting to any judicial
surgery. Once the source of their recruitment is
found to be tainted all of them have to go by the
board. Nor can we say that benefit can be made
available only to 1363 appellants before us as the
other employees similarly circumscribed and who
might not have approached the High Court or this
Court earlier and who may be waiting in the wings
would also be entitled to claim similar relief against
the State which has to give equal treatment to all of
them otherwise it would be held guilty of
discriminatory treatment which could not be
countenanced under Articles 14 and 16 (1) of the
Constitution of India. Everything, therefore, must
start on a clean slate. Reliance placed by the learned
Counsel for the appellants on the doctrine of
tempering justice with mercy also cannot be pressed
in service on the peculiar facts of these cases as
mercy also has to be based on justice. The decision
of this Court in the case of H.C. Puttaswamy also
can be of no assistance to the appellants on the facts
of the present cases as in that case the Chief Justice
of the High Court had full financial powers to create
any number of vacancies on the establishment of the
High Court as required and to fill them up. There
was no ceiling on his such powers. Therefore, the
initial entry of the appointees could not be said to be
unauthorized or vitiated or tainted. The fault that
was found was the manner in which after recruitment
they were passed on the establishments of
subordinate courts. That exercise remained vitiated.
But as the original entries in High Court service
were not unauthorized these candidates/employees
were permitted to be regularized. Such is not the
present case. The initial entry of the employees is
itself unauthorized being not against sanctioned
vacancies nor was Dr. Mallick entrusted with the
power of creating vacancies or posts for the schemes
under the Tuberculosis Eradication Programme.
Consequently the termination of the services of all
these appellants cannot be found fault with. Nor any
relief as claimed by them of reinstatement with
continued service can be made available to them.
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19. However, there is one human aspect which
calls for our attention on the facts of the present
cases. These 6000 employees got employed by Dr.
Mallick over at least a decade. Many of them served
for a number of years and got confirmed. They would
naturally have their families to support. For no fault
of theirs they found themselves stranded in life
midstream. Many might have got overaged. As Dr.
Dhavan pointed out, many of them also got trained
under the second phase of the Programme, as he
would like to style it, pursuant to the Government
Order dated 31.01.1987 referred to by us earlier.
Under these circumstances justice would require that
some effort to salvage their situation if possible may
be made when the State undertakes a fresh exercise
to fill up the sanctioned posts under the Tuberculosis
Eradication Programme which has come to stay. We
are informed that tuberculosis is still not eradicated
in the State of Bihar and the Programme is to last for
a couple of years more and may be it may assume a
semi-permanent status. It was also not disputed that
there are 2250 sanctioned posts or it may be that
some more sanctioned posts may see the light of the
day in near future. Shri Singh, learned Counsel for
the respondent-State informed us that the State
proposes to start on a clean slate and after following
due procedure of recruitment would certainly recruit
Class III and Class IV employees on the sanctioned
vacancies and posts which will have to be filled up
for making the Tuberculosis Eradication Scheme
effective and fully operative. When that is the need of
the day, it would be appropriate to direct the State to
undertake that exercise at the earliest and while
doing so after following the due procedure of
recruitment and the rules governing the same, give
an opportunity to these 6000 unfortunate creatures of
Dr. Mallick to compete for the said posts in the
future recruitment that may be undertaken by the
State and in the process because of the experience
which they have gathered in their past service under
the Tuberculosis Programme and the training which
they might have received pursuant to the Government
Order dated 31.01.1987, due weightage also be
16
given to them while considering their eligibility for
being recruited in service as and when such future
exercise is undertaken. Consequently we deem it fit
to issue the following directions to the respondent-
State of Bihar in this connection:
1. Respondent-State of Bihar may start
at the earliest a fresh exercise for
recruiting Class III and Class IV
employees in the Tuberculosis
Eradication Programme undertaken
by the State as a part of 20-Point
Programme on the available 2250
vacancies or even more vacancies, as
the case may be, preferably within
three months from the receipt of a
copy of this order.
2. Towards the said exercise the State
will publish a notice in all the
newspapers having circulation in the
State inviting applications for direct
recruitment to Class III and Class IV
posts for filing up these vacancies in
the said Programme.
3. Similarly names may also be called
for from the Employment Exchange
concerned for such recruitment.
4. If no statutory body composed of
high-ranked officials for recruitment
to Class III and Class IV employees is
in vogue, the State is directed to
constitute a committee consisting of
three members, viz., (a) a member of
the Public Service Commission; (b) a
senior IAS officer, i.e., the Additional
or Joint Secretary of the Health
Department; and (c) a senior officer,
i.e., the Director or Additional
Director of Health Services, to select
the candidates. The Additional or
Joint Secretary of Health Department
shall be the Chairman of the
Committee.
17
5. The respondent-State will constitute
such a committee preferably within
three months of the receipt of this
order.
6. It would be open to all the appellants
or those appointed by Dr. Mallick
who might not have challenged their
termination orders before any
competent court uptil now, to apply
for selection to the Class III and
Class IV posts concerned. The
committee would in their cases as the
first step, verify and satisfy itself of
the credentials of such candidates
whether they were appointed by Dr.
Mallick and had worked at least for
three years continuously. The
committee would also satisfy itself
that such candidate or candidates
had honestly and meritoriously
discharged their duties as Class III
and Class IV appointees, at least for
the said period.
7. The committee may fix total number of
marks to be obtained by the
candidates for being treated to have
passed the selection test. Any
relaxation in the minimum eligibility
marks to be obtained by the
Scheduled Castes, Scheduled Tribes
and Other Backward Classes
candidates as found necessary may
also be decided by the committee. The
committee if satisfied about the
credentials and other particulars of
the appellants or those appointed by
Dr. Mallick as mentioned in para (6)
above, may allot additional marks to
them for each of the three years and
more for which they might have
worked, at the rate of 2 marks for
each completed year of continuous
working, up to the maximum of 6
marks, for each candidate.
18
Candidates appointed by Dr. Mallic
who are found to have undertaken
training pursuant to the Government
direction dated 31.01.1987 may be
awarded 2 additional marks for the
training so received. Those 2 marks
will be in addition to the 6 marks
which are to be awarded on
completion of meritorious and honest
service by the employees concerned
as mentioned above.
8. If the candidates concerned who were
earlier appointed by Dr. Mallick are
found by the committee to be
otherwise eligible for being
appointed to Class III and Class IV
posts as per the relevant rules and
regulations and if on the basis of the
marks allotted to them as aforesaid
they become eligible to be appointed
besides other competing candidates,
then if they are found to have become
age-barred the condition of age for
recruitment of such candidates
should be relaxed appropriately so as
to entitle such candidates to be
considered for selection.
9. The State Government shall arrange
sittings of the Selection Committee
preferably within two months form
the last date prescribed for
submitting the applications and for
completion of the preliminary
scrutiny of such applications. The
Committee shall select all candidates
on merits following the prescribed
procedure in the appropriate
circulars and rules and shall also
follow the rules of reservation as in
vogue and prepare the merit list and
should submit it to the Government.
While doing so the eligible
candidates who were earlier
appointed by Dr. Mallick and who
19
received the marks for their past
meritorious service and training as
aforesaid will be considered for
selection qua the other candidates in
the light of the weightage of the
marks as aforesaid and in that light
the committee will select all the
candidates on merits and will prepare
the select list of candidates found fit
to be appointed to the posts
concerned.
10. The committee will complete the
process of selection preferably within
three months from the date of its
sittings for selection.
11. An appropriate authority or the
Government, as the case may be, will
appoint preferably within three
months from the date of the receipt of
the merit list from the committee, the
selected candidates as per roster and
the merit list, on available vacancies,
after due identification of the
credentials of the candidates
concerned as per its legally
permissible procedure.
12. In the event of selection and
appointment of erstwhile daily-rated
employee or employees, who were
inducted by Dr. Mallick, the entire
proved period during which they had
worked as daily-wager and/or
confirmed employees will be
computed for the purpose of
pensionary and other retrial benefits
but they will not be entitled to claim
any inter se higher seniority in the
selection made by the committee or
for any promotion on the basis of
their previous service. ...."
18. From the aforementioned directions of the Apex Court
in paragraph 19 in particular in the case of Ashwani Kumar (supra), it
20
would thus be clear that the Apex Court had given a one time
opportunity to the terminated employees appointed earlier by Mr. A. A.
Mallick to undergo a regular procedure of selection and in this regard
respondents were directed to undergo such selection test after making
advertisement in the newspaper, constituting selection committee and
holding selection test as also giving certain weightage for the period of
their experience earned earlier. Thus, it is clear that the Apex Court did
not lay down that for appointment on the post of Tuberculosis Assistant
there had to be a special selection test for evaluation of their technical
merits.
19. Learned counsel for the appellants-writ petitioners in fact
had also not been able to pin-point any specific violation of the
aforesaid directions of the Apex Court and his editorial comment on the
selection test as directed by the Apex Court would always mean a
specialized selection for the post of Tuberculosis Assistant has to be
understood in the context of service rules regarding recruitment on the
post of Tuberculosis Assistant.
20. In this regard, it is not in dispute that there is no rule
regarding recruitment on the post of Tuberculosis Assistant prescribing
a particular mode of examination. The qualification for the post of
Tuberculosis Assistant being also only matriculation with completion
of training in a Tuberculosis Centre, this Court would not find fault in
21
the written test conducted by the Commission which was followed by
interview. This aspect of the matter in fact has been clarified by the
Commission in its counter-affidavit which being relevant for the
purpose of this appeal is quoted hereinbelow:-
"8. That it is to be mentioned that the
appellants were applicant for the post of T. B.
Assistant. The appellants being successful in the
screening Test, were called for interview along with
other successful candidates. The interview was taken
by a selection Committee consisting of T. B. Experts
of the Health Deptt., Bihar and out of 415 candidates
interviewed against 125 posts, 123 suitable
candidates were selected for recommendation and
recommendation for appointment was sent
accordingly vide Commission's letter no. 103 dated
30.6.2000.
9. That in accordance with the direction of the Hon'ble Supreme Court appellants were given relaxation of age and additional marks for their experience and training according to formula prescribed by the Hon'ble Supreme Court. The details of marks obtained by the appellants and cut off marks in their respective reservation categories are given below:-
T. B. Assistant (Category 10 under Advt.
No. 01/97)
Sl. No. Roll no. Name Reservation Total Cut off marks as
Category marks per respective
reservation
category
01 50962 Sudhir Kr. Mandal 04 69.55 88.70
02. 50381 Naresh Kr. Sinha 04 87.11 88.70
03. 51316 Bijendra Kr. Singh 01 75.88 106.33
04. 53742 Om Prakash Singh 01 73.17 106.33
05 50786 Yogendra Kr. 04 81.88 88.70
Mandal
06. 52812 Yogendra Rai 01 90.22 106.33
07. 05431 Anil Kr. Singh 01 104.40 106.33
08. 52604 Ramchandra Pd. 05 76.40. 98.10
Mehta
22
21. The counsel for the appellants-writ petitioners however has submitted that such selection norms was itself vitiated and in fact respondents did not make the screening of the selected and appointed candidates at least with regard to their training qualification inasmuch as it is claimed that most of them had not acquired their training from any government institute. In this context, he has cited the case of respondent nos. 9, 33, 47, 48, 77, 78, 102 and 103 about whom it has been alleged that they had produced fake training certificate without reference of the letter of Deputy Director and to substantiate this aspect they have also enclosed their certificates vide Annexure-23 series to the reply to the counter affidavit.
22. Counsel for the State as with regard to the aforementioned grievance of the appellants-writ petitioners has placed reliance on the proceedings of Enquiry Committee which had gone into the issue of verification of certificate of educational qualification and training of the candidates and on the basis of the such proceeding as contained in Annexure- B and C it has been sought to be canvassed that the Government had found that amongst 104 candidates 91 of them had received their training under para medical course in the Tuberculosis Institute at Patna and as such upon verification of their certificate they were screened and ultimately appointed. With regard to the rest 13 of them the Enquiry Committee had also recorded that they had 23 undergone training under the orders of the then Deputy Director of Tuberculosis at different districts Tuberculosis Centres and as such they were also treated to be valid, specially when all of them were also bagged by sufficient working experience. Counsel for the State however had pointed that even amongst 104 candidates who had appeared for their verification of certificate four of them had not produced required caste certificate and one of them had not produced his certificate for verification of date of birth and creamy layer certificate and as such they were not appointed despite the recommendation of the Commission.
23. This Court, therefore, is fully satisfied that in terms of the advertisement and the qualification prescribed therein for the post of Tuberculosis Assistant the Commission and the Government had carried out the selection in an objective manner even in respect of verification of experience certificate and such claim of the appellants as with regard to any discrepancy in the verification of training certificates is itself ruled out because when the Government had received report as with regard to forged certificate in respect of Kamal Kumar Chaudhary (respondent no. 104) his appointment was cancelled by an order dated 27.1.2006 vide Annexure C/1 to the counter affidavit of the respondent State.24
24. It has also to be noted herein that after the impugned order was passed by learned single Judge with certain observation made therein, by a specific Letter No. 915 dated 19.12.2006 of the State Government issued by the Director of Health Services vide Annexure- D to the same counter affidavit had sought information from the appellant writ petitioners as with regard to any illegality in the selection and appointment of the respondents no. 6 to 104 but they did not choose to file any response thereto. In that view of the matter while this Court would not like to put any final word as with regard to the allegation of the appellants-writ petitioners in respect of the forged training certificate of respondent nos. 9, 33, 47, 48, 77, 78, 102 and 103, it would prima facie hold that there was no illegality even in the selection of private respondents barring respondent no. 104 whose appointment has already been cancelled by the State Government. It would, therefore, still be open to the appellants-writ petitioners to point out as with regard to the forgery/illegality in the certificate of those eight persons named by them in their reply to the counter affidavit and if it is found by the respondents that their training certificate was forged/inadmissible as per the terms of advertisement, suitable orders would be passed by the official respondents after giving notice and an opportunity of hearing to the aforementioned respondent nos. 9, 33, 47, 48, 77, 78, 102 and 103.25
25. The other part of the submission of learned counsel for the appellants that there was no proper selection because of not holding a technical test of all the candidates would amount to questioning the norms of selection by unsuccessful candidates. It is well settled by now that a candidate having appeared in the selection test and taking chance for getting selection after being declared unsuccessful cannot question the norms of selection. Reference in this connection can be made to the judgment of Apex Court in the case of Madan Lal & Ors. vs. State of Jammu and Kashmir & Ors.,, reported in (1995) 3 SCC 486 wherein the Apex Court had held as follows:-
"..... 9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee 26 was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla, 1986 Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner..."
26. In fact learned single Judge has also gone into this aspect and has rightly held ;-
"....The process of selection though initiated by the Health Department was subsequently under the control of the Commission and there is no material on record to show that such selection process is violative of any provisions of law and rules. The plea that some better particulars were required to be given in the advertisement, does not lie in the mouth of the petitioner when they chose not to challenge the same and took their chance even till the viva voce examination after they had passed the written examination. The plea that some technical test should have been conducted, as has been done in the case of stenographers & typists, by treating the post of T. B. Assistant as technical in nature, does not have any merit...."
27. The reliance placed by learned counsel for the appellants- writ petitioners on a decision of Apex Court in the case of Raj Kumar ors. vs. Shakti Raj & Ors., reported in (1997) 9 SCC 527 is wholly misplaced inasmuch as in that case there were statutory rules with regard to appointment on the post of canal patwari in the Irrigation Department of State of Hariyana as noticed by the Apex Court in 27 paragraphs 5 and 6 of the judgment. Thus, what ever has been recorded in paragraph 16 of the said judgment, heavily relied by learned counsel for the appellants-writ petitioners, has to be appreciated in the backdrop of the findings already arrived at in the case of Raj Kumar (Supra) that the statutory rules for appointment were not followed in course of selection and appointment. In the present case, there is no dispute that there is no statutory rule or a circular prescribing specific mode of selection for the post of Tuberculosis Assistant and this being a class III posts has to be filled by following norms of general selection and appointment prevalent in the State Government. Thus the distinction made by the Apex Court in the case of Raj Kumar (supra) as with regard to ratio of Madan Lal (supra) has to be understood only in that context.
28. Moreover, it has to be always remembered that in the case of appellants-writ petitioners while seeking selection and appointment on the post of Tuberculosis Assistant in terms of advertisement it was not a case of recruitment from the open market rather such selection test was confined exclusively for the Tuberculosis Assistant who had already been appointed and had worked on the said post for a number of years and that is how the Apex Court had also directed for giving weightage for the experience by awarding additional marks for such category of selection and appointment, better known in 28 service jurisprudence as internal recruitment. When the Supreme Court itself had evolved a methodology without prescribing for specialized test and there was also no statutory rules prescribing such norms of selection, the consequential selection and appointment in terms of order of the Supreme Court cannot be faulted only because a selection test for judging matriculates with knowledge in tuberculosis was not undergone. It has to be always remembered that the procedure of inhouse selection for the purpose of appointment by way of regularizing of the services, as was sought to be done in the case of the appellants-writ petitioners and others, being illegal appointees of Dr. A. A. Mallick, a uniform norm of selection was undertaken wherein after holding the written test, 415 candidates were called for interview as against 125 posts and the recommendation was made by the Commission on the basis of merit list prepared as per the total marks secured in the written test and interview. The Apex Court has resorted to such norms at a number of occasions including even in case there was statutory rules prescribing written test followed by interview. Thus, in the case of doctors appointed under Central Health Services when a large number of appointments were made on ad hoc basis without following the norms of recommendations by the Union Public Service Commission, a similar method of selection only through interview was evolved as can be found from the judgment of Apex Court in the case 29 of Dr. P.P.C. Rawani & Ors. vs. Union of India and Ors. (C. A. No. 3519 of 1984, disposed of on 9.4.1987) regarding which the Apex Court subsequently had again issued directions for giving them the benefit of their past services on 29.10.1991 in case of Dr. P.P.C. Rawani and ors. Vs. Union of India & ors., reported in (1992) 1 SCC
331. Thus, to conclude this aspect it must be said that whatever norms was fixed by the Apex Court for such selection and appointment on all the posts of health services including the posts of Tuberculosis Assistant was strictly followed by the Commission and the State Government at least while making appointment on the post of Tuberculosis Assistant. This, being a special provision made only for the earlier appointees whose services were terminated the norms of selection through a written test and interview which was conducted in a uniform manner for all the candidates, the unsuccessful appellants-writ petitioners cannot be allowed to make a grievance as with regard to constitution of selection committee or norms of selection.
29. Thus, having given our anxious consideration to the submissions of learned counsel for the appellants-writ petitioners, we are of the considered view that there is no flaw either in selection and appointment of respondent no. 6 to 103 (services of respondent no. 104 have already been terminated) or in the denial of appointment to the 30 appellants-writ petitioners who had admittedly ranked below respondent no. 6 to 103.
30. Thus, for the reasons indicated above, we find no merit in this appeal and the same is accordingly dismissed. There would be, however, no order as to costs.
I agree
(Dipak Misra, CJ.) (Mihir Kumar Jha, J.)
Patna High Court, Patna
Dated, the 11th May,2010
NAFR/(kanchan)