Patna High Court
Randhir Kumar Singh vs The State Of Bihar on 18 October, 2022
Author: S. Kumar
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9848 of 2021
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1. Varsha Kumari, wife of Ramesh Chandra Gupta, Resident of Village-
Musapur, P.S.- Mufassil, District- Samastipur.
2. Vijay Kumar, son of Bhagwan Raj, Resident of Village- Mahuani, P.O.-
Saidpur, P.S.- Awatar Nagar, District- Saran.
3. Shashikant Kumar, son of Vijay Prasad Resident of Village- Pachwara, P.O.,
P.S. and District- Nalanda.
4. Pintu Kumar, son of Rama Prasad, Resident of Village- Rasibigha, P.O.-
Keshopur, P.S.- Hilsa, District- Nalanda.
5. Rajeev Ranjan, son of Chandrika Prasad Singh, Resident of- Biscuit Factory
More, Near SS Foam Factory Nasriganj, P.S.- Danapur, District- Patna.
6. Rajeev Kumar Bharti, son of Nageshwar Paswan, Resident of Village-
Chandpur Fatah, P.O.- Shahbazpur Puraina Balbhadarpur, P.S.- Patepur,
District- Vaishali.
7. Harishchandra Kumar, son of Ramswarup Das Resident of Village-
Nasibchak, P.S.- Barbigha, District- Sheikhpura.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Health
Department, Government of Bihar, Patna.
2. The Joint Secretary, Department of Health, Government of Bihar, Patna.
3. The Additional Secretary, Health Department, Government of Bihar, Patna.
4. The Director in Chief, Health Service, Health Department, Government of
Bihar, Patna.
5. The Secretary, Bihar Technical Service Commission, 19, Harding Road,
Patna.
6. The Deputy Secretary, Bihar Technical Service Commission, 19, Harding
Road, Patna.
7. The Special Secretary, Bihar Technical Services Commission, 19, Harding
Road, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 21242 of 2021
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Pappu Kumar Chaudhary S/o Ranjit Choudhary, R/o Village-Near Mama
Bhanja, P.S.-Jadhua, District-Hajipur.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna.
Patna High Court CWJC No.9848 of 2021 dt.18-10-2022
2/16
2. The Union of India through Director (N.P.C.B) Ministry of Health and
Welfare Department, New Delhi.
3. The Director, Health Department, Govt. of Bihar, Patna.
4. The Principal Secretary, Health Department, Govt. of Bihar, Patna.
5. The Joint Secretary, Health Department, Govt. of Bihar, Patna.
6. The Chief Director, Para Medical Health Department, Govt. of Bihar, Patna.
7. The Under Secretary, Bihar Technical Service Commission Govt. of Bihar,
Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 1188 of 2022
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1. Randhir Kumar Singh, Son of Madan Dhari Prasad Singh Resident of
Village- Mahajpura, P.S.- Bikram, District- Patna.
2. Uttam Kumar, Son of Chandrika Prasad Resident of Village- Mahamdali
Chak, P.S.- Mufasil Akauna, District- Nawada.
3. Anjan Kumar Rajak, Son of Jai Prakash Rajak Resident of Village-
Maharshi Nagar Dobha, P.S.- Rupauli, District- Purnea.
4. Brijmohan Chaudhari, Son of Rameshwar Chaudhari Resident of Village-
Maharajganj, P.S.- Chapra Mufasil, District- Saran.
5. Anjali Kumari, Daughter of Satyendra Prasad Resident of Q No. 478/EF
Rampur Colony, P.S.- Jamalpur, District- Munger.
6. Manish Kumar, Son of Baleshwar Tanti Resident of Village- Kandih, P.S.-
Khaira, District- Jamui.
7. Mohammad Shahid, Son of Md. Israil Resident of Officers Colony
Budhuchak, P.S.- Katihar, District- Katihar.
8. Nausad Ansari, Son of Md. Zafar Ansari Resident of Village- Bhakhra, P.S.-
Masaudhi, District- Patna.
9. Niraj Kumar, Son of Parshuram Pandit Resident of Village- Gagi, P.S.-
Kanke, District- Ranchi (Jharkhand).
10. Ravindra Kumar, Son of Raghubansh Manjhi Resident of Marar, P.S.- Parsa,
District- Siwan.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Health
Department, Government of Bihar, Patna.
2. The Additional Chief Secretary, Health Department, Government of Bihar,
Patna.
3. The Secretary, Health Department, Government of Bihar, Patna.
4. Bihar Technical Service Commission, 19, Harding Road, Patna through its
Chairman.
Patna High Court CWJC No.9848 of 2021 dt.18-10-2022
3/16
5. The Chairman, Bihar Technical Service Commission, 19, Harding Road,
Patna.
6. The Deputy Secretary, Bihar Technical Service Commission, Patna.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 9848 of 2021)
For the Petitioner/s : Mrs. Nivedita Nirvikar, Sr. Advocate
Mr. Ranjeet Kumar, Advocate
Mr. Kundan Kumar, Advocate
Mr. Pramod Kumar Prasad, Advocate
Mr. Raj Kumar Rajesh, Advocate
For the Respondent/s : Mr. Pawan Kumar, AC to AG
Mr. Nilesh Kumar, Advocate
(In Civil Writ Jurisdiction Case No. 21242 of 2021)
For the Petitioner/s : Mr. Rajkumar Rajesh, Advocate
For the Respondent/s : Mr. Binod Kr. Roy, SC-18
Mr. Radhika Raman, CGC
Mr. Awadhesh Kumar Pandey, Sr. Panel Counsel
(In Civil Writ Jurisdiction Case No. 1188 of 2022)
For the Petitioner/s : Mrs. Nivedita Nirvikar, Sr. Advocate
Mr. Suryakant Kumar, Advocate
Mr. Pramod Kumar Prasad, Advocate
Mr. Raj Kumar Rajesh, Advocate
For the Respondent/s : Mr. Binod Kr. Roy, SC-18
Mr. Nilesh Kumar, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR) Date : 18-10-2022 Petitioners have prayed for the following reliefs:-
(i) For setting aside Clause-5 (ii) of the Bihar Opthalmic Assistants joint cadre (Recruitment and Service Conditions) Rules, 2011.
(ii) For setting aside Clause-5(ii) of the Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2019 (as amended).
(iii) For setting aside the letter no. 500(11)(dated 8.07.2020 issued by the Director in chief, Health Services, Government of Bihar, Patna, rejecting the representation of the National Opthalmic Association Bihar, Patna.
Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 4/16 Petitioners got admission in course of ophthalmic assistant on the basis of entrance test conducted by the Bihar Combined Competitive Examination Council and at that time i.e. prior to 2011 the eligibility criteria for admission in Diploma in Opthalmic Assistant was 10+2 intermediate Science with Physics, Chemistry, English and either Mathematics or Biology. Petitioners are 10+2 intermediate with Physics, Chemistry, English and Mathematics and were admitted in the course of Opthalmic Assistant and passed the course of Diploma in Opthalmic Assistant from Government institute in between 2006-2011.
Department of Health, Government of Bihar, vide letter no. 646 dated 21.09.2011 issued instructions that from next session i.e. 2012 onwards candidates who have passed intermediate with Physics, Chemistry, English and Biology only will be eligible for taking admission in Diploma Course in Opthalmic Assistant.
In exercise of power conferred under Article 309 of the Constitution of India, State Government framed Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011 (as amended on 06.03.2019) which prescribes the eligibility criteria for recruitment in State Government on the Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 5/16 post of Opthalmic Assistants to be Diploma in Opthalmic Assistant with Physics, Chemistry, English with Biology at +2 level (Intermediate Science).
Advertisement No. 1 of 2021 has been issued by the Bihar Technical Service Commission for appointment on the post of Opthalmic Assistants in which eligibility is Diploma in Opthalmic Assistant and intermediate(Science) passed with Physics, Chemistry, English and Biology.
It is submitted that this advertisement for appointment of Opthalmic Assistants in State services has been issued first time after framing of Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011 and petitioners have been made ineligible to be appointed on the post of Opthalmic Assistant although they are Diploma in Opthalmic Assistant but they are intermediate(Science) with mathematics which was permissible for admission in the Diploma Course of Opthalmic Assistant prior to 2011.
Prospectus of 2006 and 2010 issued by Bihar Combined Competitive entrance Examination Council, the eligibility criteria for taking admission in the course of Diploma in Opthalmic Assistance was +2 intermediate (Science) with Physics, Chemistry, English and Mathematics or Biology. In the Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 6/16 year-2006 also Advertisement for appointment on the post of Opthalmic Assistant was issued in which also the eligibility was corrected as Diploma in Opthalmic Assistant and intermediate with Physics, Chemistry, English and Biology or Mathematics and only after 21.01.2011, educational qualification for admission in Diploma Course of Opthalmic Assistant was confined to intermediate (Science) with Biology.
Accordingly, admission in the Diploma course of Opthalmic Assistant was confined to students passing intermediate (Science) with Physics, Chemistry, English and Biology. Students passing intermediate (Science) with Physics, Chemistry, English and Mathematics were not eligible for admission in the Diploma Course of Opthalmic Assistant after 2011.
It is submitted on behalf of petitioners that they took admission in Diploma course of Opthalmic Assistant in Govt., institution and completed their diploma course prior to coming of Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011, as such, eligibility made therein of having passed the intermediate Science examination with Biology is not applicable in their case as at the time of their admission in Diploma Course of Opthalmic Assistant eligibility Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 7/16 was intermediate science with Mathematics or Biology and having taken admission in diploma course of Opthalmic Assistant and after successful completion of the Diploma course and grant of diploma certificate, in Opthalmic Assistant they cannot be made ineligible for appointment on the post of Opthalmic Assistant when appointment to the said post is being made first time after their passing out from the Government institute.
It is further submitted on behalf of petitioners that during pendency of this writ petition prospectus (Annexure-9) has been issued by the Bihar Combined Competitive Entrance Examination Council, Govt. of Bihar with respect to entrance competitive examination-2021 for taking admission in the course of Opthalmic Assistant in which again eligibility to appear in the competitive entrance examination with respect to Opthalmic Assistant (Clause-7 घ) has been made intermediate- Science with Mathematics or Biology.
It is further submitted that in the prospectus of 2011, it has been clearly indicated in Clause-16.13 that if there is any change in Admission/eligibility in the course of Opthalmic Assistant by the Health Department theeligibility conditions for admission shall stand automatically amended to Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 8/16 the said extent. The relevant Clause-16.13 is reproduced hereinbelow:-
"16.13foKku ,oa izkoSf/kdh foHkkx fcgkj ljdkj }kjk ikWfyVsdfud vfHk;a=.k (PE) ,oa ikVZ&VkbZe ¼pkj o'khZ;½ ikWfyVsdfud vfHk;a=.k (PPE) ikB~;Øeksa ls lEcfU/kr rFkk LokLFk; foHkkx] fcgkj ljdkj } kjk ikjk esfMdy ¼ek/;fed Lrjh;½ (PMM) ,oa ikjk esfMdy ¼baVjehfM,V Lrjh;½ (PM) ikB~;Øeksa ls lEcfU/kr ;fn dksbZ ifjoÙkZu@la"kks/ku@izko/kku@fn"kk funsZ"k fof/kor lalwfpr fd;k tkrk gS rks og fMIyksek lfVZfQdsV izos"k izfr;ksfxrk ijh{kk&2021 dh fooj.k iqfLrdk esa lekosf"kr le>k tk;sxk vkSj mldh lwpuk foKkiu }kjk dkWmUlsfyax@lk{kkRdkj ds iwoZ@le; ns nh tk;sxhA"
Learned counsel for the respondents nos. 1 to 4 have submitted that that Rule 5 (ii) of the Bihar Ophthalmic Assistant Joint Cadre Rule (recruitment and service conditions) Rule, 2011 provides that "the minimum educational qualification shall be I.Sc./10+2 (Biology) passed and having a certificate of Diploma course prescribed for ophthalmic Assistant".
Bihar Ophthalmic Assistant Joint Cadre Rule (recruitment and service conditions) Rule, 2011 has been amended vide Notification dated 06.03.2019, as Bihar Ophthalmic Assistant Joint Cadre Rule (recruitment and service Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 9/16 conditions) (Amendment) Rule, 2019 wherein minimum education qualification prescribed for direct recruitment to the post of basic category post shall be Intermediate/ 10+2 pass (Physics, Chemistry, Biology with English). In addition to pass in diploma course of ophthalmic assistant from a Government recognized institute and a certificate to that effect necessary.
Since the date of coming into force of Bihar Ophthalmic Assistant Joint Cadre Rule (recruitment and service conditions) Rule, 2011 the educational qualification mandated for direct recruitment to the post of basic category post shall be I.Sc. / 10+2 (Biology) passed and having a pass certificate of Diploma course prescribed for ophthalmic Assistant".
In consonance with the Ophthalmic Cadre Rules, in the academic prospectus published by the BCECE, Board, Patna for Diploma Certificate Examination, the educational qualification for taking admission in Ophthalmic Assistant Course has been incorporated as Intermediate Science or Equivalent with Physics, Chemistry, Biology and English.
In the academic prospectus published by the BCECE, Board, Patna for Diploma Certificate Examination, 2021, the educational qualification Intermediate Science either with Mathematics or Biology was incorporated for Ophthalmic Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 10/16 Assistant only for the purpose of taking admission in Ophthalmic Assistant course in wider perspective, but in the matter of appointment of Ophthalmic Assistant, the State Government has taken policy decision and framed the relevant Rules i.e. Bihar Ophthalmic Assistant Cadre (Recruitment and Service Condition) Rules, 2011 and Amended Rules, 2019 in exercise of powers conferred by proviso to Article 309 of the Constitution of India.
In the academic prospectus published by the BCECE, Board, Patna for Diploma Certificate Examination, 2022, the Educational Qualification for taking admission in Ophthalmic Assistant Course has been corrected and incorporated as per the Ophthalmic Cadre Rules i.e. Intermediate Science or Equivalent with Physics, Chemistry, Biology and English.
I.Sc./ 10+2 with Biology has been made minimum essential qualification in the year 2011 itself immediately after coming into effect of Rules, 2011, and now, by the amended Rules, 2019, the qualification has merely been made more specific and clear by providing that the educational qualification shall be I. Sc./10+2 pass (with Physics, Chemistry, Biology & English) as, in the original rule only I.Sc./ 10+2 Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 11/16 (Biology) pass was mentioned.
Petitioners have passed the course of Diploma in Ophthalmic Assistant from the Government Institutes before the coming into force of Bihar Ophthalmic Assistant Cadre (Recruitment and Service Condition) Rules, 2011 with prescribed educational qualification for taking admission in the course of diploma in Ophthalmic Assistant as +2 intermediate, science or other equivalent examination with physics chemistry and English besides mathematic or biology. They formed a different class from those who have passed the course of Diploma in Ophthalmic Assistant from the Government Institutes after the coming into force of Bihar Ophthalmic Assistant Cadre (Recruitment and Service Condition) Rules, 2011 with prescribed educational qualification as Intermediate Science or Equivalent with Physics, Chemistry, Biology and English.
In the matter of recruitment to any cadre, it is a matter of policy and depends upon variable circumstances to lay down criterion of eligibility and sources from which the recruitment shall be made through different methods. Such a lying down of a policy cannot be per se said to be arbitrary, unreasonable and violative of Article 14 and 16 of the Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 12/16 Constitution.
Heard learned Senior counsel for the petitioners as well as learned Senior counsel for the respondents.
It is an admitted fact that before coming into force Bihar Opthalmic Assistants joint cadre (Recruitment and Service Conditions) Rules, 2011 admission in Diploma Course for Opthalmic Assistant through competitive examination students passing intermediate (Science) with Mathematics or Biology were eligible to appear in the competitive examination and on being successful in competitive examination were admitted in Diploma Course of Ophthalmic Assistant, however, after coming into force of Bihar Opthalmic Assistants joint cadre (Recruitment and Service Conditions) Rules, 2011 admission in Government institute was confined to students passing intermediate (Science) examination with biology as such no student passing intermediate (Science) with Mathematics could take admission in Diploma Course of Ophthalmic Assistant after 2011 after framing of Bihar Opthalmic Assistants joint cadre (Recruitment and Service Conditions) Rules, 2011 (except for the year-2021).
It is equally true that prior to 2011 students passing intermediate (Science) with Biology or Mathematics Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 13/16 were eligible for admission in Diploma Course in Opthalmic Assistant. It is also apparent from records that in the year 2006, process for appointment on the post of Opthalmic Assistant was undertaken by the State Government in which also eligibility was subsequently amended as Diploma Course in Opthalmic Assistant and intermediate (Science) with Mathematics or Biology, for which a letter dated 12.02.2007, was issued by the Joint Secretary, Department of Health and Family Welfare, Government of Bihar (Annexure-4), which is reproduced hereinbelow:-
fcgkj ljdkj LokLFk; ,oa iŒdŒ foHkkx izs'kd] teh:n~nhu valkjh ljdkj ds la;qDr lfpoA lsok esa] lfpo] fcgkj deZpkjh p;u vk;ksx] fcgkj] iVukA iVuk] fnukad 12-02-2007 fo'k;%& us= lgk;d ds inksa ij fu;qfDr gsrq izdkf"kr foKkiu esa fu/kkZfjr vgZrk ds la"kks/ku ds laca/k esaA izlax% LokLF; foHkkx ds i=kad 315(1B) fnukad 01-06-2005] 612¼11½ fnukad 25-08-2006 ,oa i=kad 21¼11½] fnukad 04-01-2007A egk"k;
mi;qZDr fo'k;d izlaxk/khu i= ds laca/k esa funs"kkuqlkj dguk gS fd us= lgk;d ds inksa ij fu;qfDr gsrq vk;ksx }kjk fnukad 23-01-2007 dks nSfud lekpkj i=ksa esa izdkf"kr foKkiu laŒ&2307 esa fu/kkZfjr vgZrk dh mYysf[kr dafMdk esa fuEu :isu la"kks/ku djus dh Ñik dh tk;& Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 14/16 1- "kS{kf.kd ;ksX;rk vkbZŒ,lŒlhŒ ck;ksykWth vFkok xf.kr (Biology or Mathematics) esa mÙkh.kZA 2- rduhdh ;ksX;rk fcgkj ljdkj }kjk ekU;rk izkIr ljdkjh@xSj ljdkjh@ v)Z ljdkjh laLFkkuksa ls us= lgk;d ds nks ¼2½ o'khZ; fMIyksek ikB~;Øe ds izR;sd fo'k; esa 50% U;wure vad ds lkFk mRÙkhZ.k gksuk vko";d gksxkA 3- ikjk esfMdy@ikjk MsUVy ijh{kk lfefr }kjk us= lgk;d ds nks ¼2½ o'khZ; fMIyksek ikB~;Øe dh ekpZ] 2007 esa vk;ksftr gksus okyh vfUre ijh{kk esa lfEefyr gksus okys mEehnokj Hkh vkoaVu ns ldsaxsA lk{kkRdkj dh frfFk dks mRrhZ.krk dk izek.k i= izLrqr djuk vfuok;Z gksxk vU;Fkk mudh vgZrk lekIr dj nh tk;xhA vuqjks/k gS fd ;Fkk LFkku mi;qZDr la"kks/ku djrs gq, iqu% la"kksf/kr foKkiu izdkf"kr djkus dh Ñik dh tk;A fo "oklHkktu ¼teh:n~nhu valkjh½ ljdkj ds la;qDr lfpo It is quite surprising that during pendency of writ petition prospectus for entrance examination 2021 was issued for admission in Diploma Course in Opthalmic Assistant and again in prospectus eligibility for admission in Diploma course of Opthalmic Assistant has been made Intermediate (Science) with Physics, Chemistry, English and Mathematics or Biology which depicts a very sorry state of affairs in which Department is functioning.
Having heard learned counsel for the parties, this Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 15/16 Court finds that once admission to candidates passing Intermediate (Science) with Biology or Mathematics have been permitted to appear in the competitive examination for admission in Diploma course of Opthalmic Assistants and after successfully completing the diploma course and getting diploma certificate in Opthalmic Assistant, State cannot deny them opportunity of appointment on the post of Opthalmic Assistant and denial of opportunity for appointment on the post of Opthalmic Assistant is arbitrary, unreasonable and discriminatory and offends Article -14 and 16 of the Constitution of India.
Respondent-Health Department, in the year 2006 also permitted selection of candidates on the post of Opthalmic Assistant in the State Government having passed Intermediate (Science) with Biology or Mathematics and same principle will apply in the case of petitioners also and they are also governed by letter dated 12.02.2007 as contained in (Annexure 4 page
107).
Once the State government has permitted students passing Intermediate (Science) with Mathematics or Biology for admission in the Diploma course of Opthalmic Assistant and having obtained diploma certificate State cannot Patna High Court CWJC No.9848 of 2021 dt.18-10-2022 16/16 deny them appointment on the ground that they have passed Intermediate (Science) examination having Physics, Chemistry, English and Mathematics and not Biology same being arbitrary and cannot stand twin test of reasonableness and fairness.
Accordingly, petitioners who were admitted in the Diploma Course in Opthalmic Assistant before framing of recruitment Rules-2011 are eligible to be considered for appointment on the post of Opthalmic Assistant, since there is already a direction issued by this Court to accept the application forms of candidates passing Intermediate (Science) with Physics, Chemistry, English and Mathematics, as such the Bihar State Technical Commission is directed to prepare merit list treating petitioners to be eligible for appointment on the post of Opthalmic Assistant.
Accordingly, the writ petitions are allowed.
(Sanjay Karol, CJ) ( S. Kumar, J) ranjan/-
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