Patna High Court - Orders
Dr. Kishore Kumar Das And Ors vs The State Of Bihar And Ors on 17 May, 2019
Author: Amreshwar Pratap Sahi
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.407 of 2019
In
Civil Writ Jurisdiction Case No.2434 of 2019
======================================================
1. Dr. Shakti Kishore Son of Kaushal Kishore Singh Resident of D-171, P.C.
Colony, Kankarbagh, P.S-Kankarbagh, District-Panta.
2. Dr. Rakesh Kumar Son of Ram Vilash Sharma Resident of MIG-343, Lohia
Nagar, P.S.-Kankarbagh, District-Patna.
3. Dr. Akhilesh Kumar Son of Sri Radhe Pd. Singh Resident of Village-Bhatu
Bigha, P.S. and P.O.-Ben, District-Nalanda.
4. Dr. Anshu Anand Son of Shri S.N.Sharma Resident of Village-Tilakpur,
P.O.-Tilakpur, P.S.-Sultanganj, District-Bhagalpur.
5. Dr. Raj Kishor Roshan Son of Anandi Pd. Yadav Resident of Near Sangita
Musical School, Durgabari, P.S.-Bhatthabazar, District-Purnea.
6. Dr. Dipu Kumar Singh Son of Sri Birendra Singh Resident of Village and
P.O.-Jasauli (Kharg), P.S.-Pachrukhi, District-Siwan.
7. Dr. Abhisek Mishra Son of Sri Abhiram Mishra Resident of Village and
P.O.-Champa (Parjuar), P.S.-Arer, District-Madhubani.
8. Dr. Sushil Kumar Son of Shri Narayan Mukhia Resident of Village-Bhotia,
P.S. Simri Bakhtiarpur, District-Saharsa.
9. Dr. Ravi Ranjan Kumar Son of Keshav Chaudhary Resident of Village-
Akbarpur, P.O.-Habbipur, P.S.-Hilsa, District-Nalanda.
10. Dr. Sunita Kumari W/o Dr. Jay Jyoti Resident of Bhagwat Nagar, P.S.-
Kumhrar, District-Patna.
11. Dr. Sudhanshu Kumar Son of Sri Saryu Prasad Resident of Village-
Bodhibigha, P.S.-Chandi, District-Nalanda.
... ... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Health
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019
2/29
Education and Family Welfare, Government of Bihar, New Secretariat,
Patna.
2. The Principal Secretary, Department of Health Education and Family
Welfare, Government of Bihar, New Secretariat, Patna.
3. The Additional Secretary, Department of Health Education and Family
Welfare, Government of Bihar, New Secretariat, Patna.
4. Joint Secretary, Department of Health Education and Family Welfare,
Government of Bihar, New Secretariat, Patna.
5. Deputy Secretary to the Government, Department of Health Education and
Family Welfare, Government of Bihar, New Secretariat, Patna.
6. Dr. Kishore Kumar Das Son of Late Hira Nand Das Resident of Surya
Bhawan, Choti Badalpura, Khagaul, Patna.
7. Dr. (Mrs) Neeta Sharma W/o Dr. Vinod Kumar Mishra Resident of Mishra
Poly Clinic, Ambedkar Path, Bailey Road, Patna.
8. Dr. (Mrs) Nibha Mohan W/o Dr. Pranav Ranjan Resident of North S.K.Puri,
Besides Krishna Apartment, Near A.N.College, Boaring Road, Patna.
9. Dr. Puanm Singh D/o Sri Bishwanath Prasad Singh Resident of Road No.4,
Rajeev Nagar, P.S.-Rajeev Nagar, Patna.
10. Col. Dr. Ahmed Ansari Son of Late Babujan Ansari Resident of C-4, AL-
Nazir Complex, Danyapur, Sabzibagh, Patna.
11. Dr. (Mrs) Vimla Kumari W/o Dr. Rajendra Nath Prasad Resident of 303,
Mansarovar Apartment, Khajpura, Patna.
12. Dr. (Mrs) Veena Kumari D/o Late J.C. Singh Resident of 12, Jagat Annexe,
Jagat Amrawati, Bailey Road, Patna.
13. Dr. Navindra Kumar Son of Late Satya Narayan Singh Resident of 201,
Surya Palace, Near WHO Office, Boring Patliputra Road, P.O.-Patliputra,
Patna.
14. Dr. (Mrs) Kiran Kumari Wife of Dr. Arun Kumar Resident of Rajendra
Nagar, Road No.6E, Patna.
15. Dr. Sagar Dulal Sinha Son of Late Sudhanshu Shekhar Sinha Resident of
Arya Samaj Path (Sahebganj), P.O.-Chapra, District-Saran.
16. Dr. Parmeshwar Prasad Son of Dr. Ram Niranjan Prasad Resident of Road
No.4, Rajendra Nagar, Patna.
17. Dr. Pawan Kumar Jha Son of Late Jagdish Jha Resident of Tulsi Nagar,
Bank Colony, Jail Road, Tilkamanjhi, Bhagalpur.
18. Dr. Jai Prakash Sinha Son of Late Bishwanath Sinha Resident of
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019
3/29
Vikramshilla Colony, Tilkamanjhi, P.S.-Tilkamanjhi, District-Bhagalpur.
19. Dr. Dina Nath Son of Late Ambika Dutta Singh Resident of Doctors Quarter,
Jawaharlal Nehru Medical College and Hospital, District-Bhagalpur.
20. Dr. Umesh Nandan Prasad Sinha Son of Late Brij Nandan Prasad Resident
of Anant Bhawan, RRB Sahay Road, Bhikhanpur, District-Bhagalpur.
21. Dr. Sohail Anjum Son of Late Md. Equiwal Ansari Resident of 2A,
Mozahidpur Lane, Near Imambara, P.S.-Mozahidpur, Jagdishpur, Bhagalpur.
22. Dr. Rajendra Prasad Jaiswal Son of Sri Gurudev Prasad Jaiswal Resident of
Opposite Kala Kendra, U.N Bagchi Road, Kharmanchak, Bhagalpur.
23. Dr. Asha Sinha D/o Late Ram Narayan Prasad Sinha Resident of Ganpati
Hospital, Jail road, P.S.-Tilkamanjhi, District-Bhagalpur.
24. Dr. Anjum Parvez Son of Syed Moizur Rab Resident of Bhikhanpur,
Bhagalpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 8149 of 2017
======================================================
1. Dr. Kishore Kumar Das son of Late Hira Nand Das, resident of Surya
Bhawan, Choti Badalpura, Khagaul, Patna- 801105.
2. Col. Dr. Ahmed Ansari, son of Late Babujan Ansari, resident of C-4, Al-
Nazir Complex, Dariyapur, Sabzibagh, Patna- 800004.
3. Dr. Prashant Kumar, son of Late Ramakant Prasad, resident of Bishanpur,
Begusarai.
4. Dr. Mrs Neeta Sharma, wife of Dr. Vinod Kumar Mishra, resident of Mishra
Poly Clinic, Ambedkar Path, Bailey Road, Patna.
5. Dr. Mrs Veena Kumari, Daughter of Late J.C. Singh, resident of 12, Jagat
Annexe, Jagat Amrawati, Bailey Road, Patna- 800001.
6. Dr. Mrs Kiran Kumari, wife of Dr. Arun Kumar, resident of Rajendra Nagar,
Road No.6E, Patna- 800016.
7. Dr. Mrs Vimla Kumari, wife of Dr. Rajendra Nath Prasad, resident of 303,
Mansarovar Apartment, Khajpura, Patna- 800014.
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019
4/29
8. Dr. Sagar Dulal Sinha, son of Late Sudhanshu Shekhar Sinha, resident of
Arya Samaj Path Sahebganj, PO- Chapra, District- Saran, PI N- 841301.
9. Dr. Mithilesh Kumar, son of Late Lakhan Lal, resident of B-301, Kapil Deo
Kunj Apartment, West Anandpuri, Boring Canal Road, Patna- 800001.
10. Dr. Krishna Mohan Verma, son of Late Raghav Sharan Verma, permanent
resident of Village and PO- Dharampur, P.S.- Sathi, District- West
Champaran.
11. Dr. Pradeep Nandan, son of Late Deoki Nandan Prasad, resident of Mohalla-
West Saristabad, PO- Anisabad, District- Patna.
12. Dr. Umesh Nandan Prasad Sinha, son of Late Brij Nandan Prasad, resident
of Flat No.504, Omkar City Appartment, Near LIC Divisional Office, Zero
Mile, Bhagalpur.
13. Dr. Pawan Kumar Jha, son of Late Jagdish Jha, resident of Tulsi Nagar,
Bank Colony, Jail Road, Tilkamanjhi, Bhagalpur- 812001.
14. Dr. Ashok Kumar Singh, son of Late Manelal Singh, resident of Jail Road,
Tilkamanjhi, Bhagalpur- 812001.
15. Dr. Navindra Kumar, son of Late Satya Narayan Singh, resident of 201,
Surya Palace, Near WHO Office, Boring Patliputra Road, PO- Patliputra,
Patna- 800013.
16. Dr. Jitendra Prasad Singh, son of Sri Shyam Bilash Singh, resident of House
No.53, Road No.01, Friends Colony, Ashiana, PO- Ashiana Nagar, Patna-
800025.
17. Dr. Parmeshwar Prasad, son of Dr. Ram Niranjan Prasad, resident of Road
No.4, Rajendra Nagar, Patna.
18. Dr. Nirmal Kumar, son of Late Mahadeo Prasad, resident of 102,
Rameshwaram Apartments, DVC Road, Yarpur, Patna- 800001.
19. Dr. Mrs Nibha Mohan, wife of Dr. Pranav Ranjan, resident of North S.K.
Puri, Besides Krishna Appartment, Near A.N. College, Boring Road, Patna-
800013.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Health Department of
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019
5/29
Medical Education and Family Welfare, Government of Bihar, new
Secretariat, Patna
2. The Principal Secretary, Department of Medical Education and Family
Welfare, Government of Bihar, New Secretariat, Patna
3. The Additional Secretary, Department of Medical and Education and Family
Welfare, Government of Bihhar, New Secretariat, Patna
4. Joint Secretary, Department of Medical Education and Family Welfare,
Government of Bihar, New Secretariat, Patna
5. Deputy Secretary to the Government, Department of Medical Education and
Family Welfare, Government of Bihar, New Secretariat, Patna
6. Bihar Public Service Commission, Patna.
... ... Respondent/s
Appearance :
(In Letters Patent Appeal No. 407 of 2019)
For the Appellant/s : Mr. P.K. Shahi, Senior Advocate
Mr. Vikas Kumar, Advocate
Mr. Mukesh Kumar, Advocate
For the State : Mr. Lalit Kishore, Advocate General
Mr. S.D. Yadav, AAG-9
For the Private Respondent: Mr. Vinod Kanth, Senior Advocate
Mr. Aakashdeep, Advocate
(In Civil Writ Jurisdiction Case No. 8149 of 2017)
For the Petitioner/s : Mr.Akashdeep, Advocate
For the Respondent/s : Mr.Ramadhar Singh- GP-25
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
ORAL ORDER
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019
6/29
(Per: HONOURABLE THE CHIEF JUSTICE)
6 17-05-2019This appeal assails an interim order dated 14th February, 2019 in C.W.J.C. No. 2434 of 2019, which is to the following effect:
"The present writ petition has been filed impugning Clause 3(Daa) of the Advertisement no. 03 of 2018 dated 16.01.2019, issued by the Health Department, Government of Bihar for recruiting Assistant Professor on contractual basis for one year or till regular appointments are made.
The learned counsel for the petitioners has submitted that all throughout, the age limit has never been 50 years, inasmuch as in the advertisement of the year 2013, issued for making appointment on the post of Assistant Professor by the Health Department, the age limit was 64 years, similarly when the advertisement was issued in the year 2015, the age limit was 69 years. In the year 2017, an advertisement was issued for making regular appointment on the post of Assistant Professor in various Medical Colleges and the age limit was fixed at 50 years, however the same was challenged in various writ petitions; one of them being C.W.J.C. no. 8149 of 2017, wherein the learned Division Bench by an order dated 26.07.2017 has directed that the final result, Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 7/29 pursuant to the said advertisement, shall not be published and shall be kept in a sealed cover.
It is further submitted by the learned counsel for the petitioners that now again, the Department of Health, Government of Bihar, Patna has issued the advertisement in question dated 16.01.2019, wherein again, the maximum age limit has been fixed at 50 years for the purposes of inviting applications from eligible candidates for appointment on the post of Assistant Professor in the various Medical Colleges on contractual basis, which is not only contrary to the aforesaid interim order of the learned Division Bench dated 26.07.2017 but is also in violation of Articles 14 and 16 of the Constitution of India.
Having regard to the issue raised by the petitioners in the present writ petition, I deem it fit and appropriate to grant time to the respondents to file counter affidavit, however, instead of staying the said advertisement dated 16.01.2019, I deem it appropriate to direct the respondent- authorities to accept and consider the applications of the petitioners, pertaining to the aforementioned Advertisement dated 16.01.2019, without taking into account the age bar of 50 years.
List this case after four weeks for admission under the list of "Priority Cases".
It is needless to state that the aforesaid Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 8/29 consideration of the case of the petitioners for being appointed on the post of Assistant Professor shall be subject to the result of the present case, however the petitioners shall not claim any equities."
2. The relief claimed in the writ petition is by a group of petitioners of Bihar State Health Service who have questioned the age bar placed by the respondent-State for appointment on the post of Assistant Professor, which is a teaching post in various Medical Colleges throughout the State of Bihar.
3. At this stage, we may only refer to the fact that the post of Assistant Professors which are meant to be filled up on permanent basis remains a mirage in the State of Bihar and appointments are being continued on contract basis. This has been noticed in detail in the judgment of a learned Single Judge in the case of Dr. Sudhir Kumar & Ors. Vs. State of Bihar through Principal Secretary, Department of Health & Ors., reported in 2018 (2) PLJR 609 about which we will make a reference a little later.
4. Thus, appointments are being made on contract basis under rules promulgated through notifications which ultimately came to be amended on 10th October, 2013 where the Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 9/29 maximum age for appointment on the post of Assistant Professor from the cadre of Bihar State Health Service was fixed at 50 years. The appointments were made under an advertisement dated 01.12.2013 and again an advertisement was issued on 13.3.2015. This advertisement again fluctuated the age to 69 years as on 01.07.2015.
5. In the year 2017, the advertisement issued referred to the maximum age as 50 years in accordance with Rule 7(iii)
(d) of the Senior Resident/Tutor and Bihar Medical Education Service Recruitment, Appointment and Promotion Rules, 2008. The prescription of 50 years both in the advertisement and the Rule aforesaid was questioned and the matter being one of vires being cognizable by a Division Bench was entertained in C.W.J.C. No. 8149 of 2017 where some of the respondent- petitioners were petitioners in the said writ petition. On 26 th July, 2017 an interim order was passed by a Division Bench staying the final publication of the results with a direction that it shall be kept in a sealed cover. The said petition is still pending where the validity of the rules as also the then advertisement pertaining to the prescription of the maximum age of 50 years is under challenge.
6. A fresh advertisement has been issued on 16th Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 10/29 January, 2019 for engaging Assistant Professors on contract basis for one year or till regular appointments are made and it is this advertisement which has been challenged in the writ petition giving rise to this appeal where the interim order quoted hereinabove has been passed.
7. The appellants contend that they are aggrieved because the respondent-petitioners who are being allowed to participate in the selection process in spite of the age bar are putting the appellants to a disadvantageous position of competing against them and who in spite of being ineligible are being permitted to be included in the pool of contenders for the post that is eminently going to affect the prospects of selection of the appellants. It is urged on their behalf that this vitally affects the right of the appellants who were neither made parties in the writ petition either individually or collectively through any individual of the same class representing the appellants.
8. The writ petition has been filed challenging the condition put forth in the advertisement which in effect is questioning the vires of the very rule of prescription that is already under challenge in C.W.J.C. No. 8149 of 2017. The nature of the writ petition, therefore, is one and the same and against a fresh advertisement and, therefore, the writ petition Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 11/29 ought to have been placed before a Division Bench, inasmuch as, as per the rules of roster prescribed, whenever there is a challenge raised to the vires of any statutory provision or rules, the same has to be considered by a Division Bench and not by a learned Single Judge. It is, therefore, urged that the learned Single Judge exceeded in jurisdiction in entertaining the writ petition himself when the matter was cognizable by a Division Bench.
9. It is then contended that the learned Single Judge has granted a final relief by an interim order and has exercised a judicial discretion against law. For both these propositions, reliance has been placed by the learned counsel for the appellants on the judgment in the case of State of U.P. and Others Vs. Ram Sukhi Devi, reported in (2005) 9 SCC 733 and the judgment in the case of Anurag Kumar Singh and others Vs. State of Uttarakhand and others, reported in (2016) 9 SCC 426.
10. It is in this background that we had proceeded to entertain this appeal on behalf of the appellants who are also applicants and candidates against the said advertisement and had passed the following order on 10th of May, 2019:
"Re: I.A. No. 1 of 2019 The applicants have come up seeking Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 12/29 leave to appeal contending that the selection process of Assistant Professors in which the applicants are also candidates would be affected in the event the respondent-petitioners are allowed to participate in the said selection process in spite of the fact that they are ineligible being beyond the prescribed age in the rules. It is in this background that leave is sought to assail the impugned order of the learned Single Judge dated 14.02.2019 in C.W.J.C. No. 2434 of 2019 as its implementation is likely to affect the appellants.
2. The said contention raised is correct and, therefore, we allow this application and grant leave to appeal to the appellants.
3. I.A. No. 1 of 2019 stands allowed accordingly.
Re: I.A. No. 2 of 2019 A prayer for interim relief has been made while questioning the interim order dated 14th February, 2019 passed by the learned Single Judge in C.W.J.C. No. 2434 of 2019.
2. The contention of the appellants is to the effect that some of the respondent- petitioners admittedly filed C.W.J.C. No. 8149 of 2017 challenging the validity of the prescription of the maximum age for the post of Assistant Professors, as provided for in Rule 3 of the Amendment Rules of Senior Resident/Tutor and and Bihar Medical Education Service Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 13/29 Recruitment, Appointment and Promotion Rules, 2008. This rule of amendment in the prescription of age was brought about by way of notification dated 28th November, 2013, whereby Clause (d) reads as under:-
"(d) The maximum age limit for appointment on the post of Assistant Professor shall be 45 years for unreserved category, 48 years for backward class/extremely backward class, 48 years for women (unreserved, backward/extremely backward class) and 50 years for Scheduled Castes/Scheduled Tribes. The age limit for Doctors working in the Bihar Health Service Cadre shall be 50 years."
3. It is this rule which came to be challenged by some of the respondent-petitioners in C.W.J.C. No. 8149 of 2017 where the writ petition was entertained on 29th June, 2017 and the amendment prayed for challenging the validity of the rules was also entertained. On 26 th July, 2017 the said writ petition was admitted and the following order was passed therein:
"Admit.
State Government to file counter affidavit within two weeks not only in this case, but also in cases which have been admitted for final hearing.
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 14/29 Office to list this matter along with CWJC No. 7973 of 2017, CWJC No. 8388 of 2017 and CWJC No. 7531 of 2017 which have been admitted for final hearing on 17th of August, 2017.
We are informed that the
process of interview is to be
commence from 2nd of August, 2017
and after entire selection process if the writ petition is allowed, the right of the petitioners would be adversely affected and, therefore, a prayer was made at least to hear the matter finally. We are conscious of the fact that in certain other admitted cases, like CWJC No. 7973 of 2017, the prayer for interim relief was rejected. However, we feel that the matter has to be heard finally and, therefore, we direct the State to file their counter affidavit within two weeks in all the cases so that the matters can be heard. In the meanwhile, the process of interview may go on, but the final result shall not be published without leave of this Court, it shall be kept in a sealed cover."
4. A perusal of the said order leaves no room for doubt that the learned Single Judge had Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 15/29 rejected the prayer for interim relief, but at the same time had allowed the process of interview to go on restraining the declaration of final results which shall not be published without the leave of the Court. This was with regard to the appointments which were proposed in the year 2017 on contract basis, but it involved the validity of the very same rules which are presently in question and was raised by some of the same petitioners who are the respondent- petitioners in the present case.
5. It is thus clear that the validity of the rules having been questioned and there being no restraint on the operation of the rule, the same remains intact. It is pursuant to the said rules that a fresh advertisement was issued in 2019 and the same prescription of maximum age of 50 years was provided for. The respondent-petitioners have challenged the said advertisement in the writ petition giving rise to the said controversy which indirectly questions the validity of the rules. This is evident from the pleadings in the writ petition and the facts stated by the respondent-petitioners themselves about the order passed in C.W.J.C. No. 8149 of 2017. The writ petition, however, complained of the embargo of 50 years imposed under the rules, but a prayer was made that the respondent-
petitioners be also permitted to participate in the selection process of the Assistant Professors Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 16/29 irrespective of the age embargo of 50 years with a further prayer to strike down the Note appended to Condition No. 6 (M-) where the age bar of 50 years is mentioned, which is at pari materia with Condition No. 3 (M-) of the notification of the Health Department dated 25.01.2017 contending that the same deserves to be struck down. This, in our opinion, is an indirect way of challenging the very prescription of the rules and, therefore, it is the vires of the same rules under question which has been challenged in the earlier writ petition referred to hereinabove.
6. The learned Single Judge while entertaining the writ petition has noticed these facts and has called for a counter affidavit, but instead of restraining any further process of selection has proceeded to allow the respondent-petitioners to participate in the selection process inspite of the age bar of 50 years.
7. It is informed at the Bar that pursuant to the said interim order, the process of selection has proceeded and the scrutiny of candidates has begun.
8. Two arguments have been advanced, firstly that the learned Single Judge could not have granted the final relief at the interim stage itself and secondly in the background of the facts aforesaid when the validity of the rule itself is Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 17/29 under challenge and has not been set aside so far, extending the benefit of participating in the selection process would be contrary to the rules itself in the background of the litigation to which some of the respondent-petitioners are themselves parties, as admitted in the writ petition.
9. It is further to be noted that once the question of vires was raised then the matter was cognizable by a Division Bench and the writ petition could not have been entertained by the learned Single Judge.
10. We have heard Smt. Shyama Sinha, learned counsel for the State of Bihar who is called upon to file a response to the same and we further direct the learned counsel for the appellants to serve a copy of this appeal on the learned counsel for the respondent-petitioners by 13th of May, 2019.
11. We further direct the respondent-
State of Bihar not to declare the results of the respondent-petitioners for appointment without the leave of this Court.
Re: L.P.A. No. 407 of 2019 Learned counsel for the appellants submits that Defect No. 1 shall be removed during the course of the day.
2. Put up on 14th May, 2019 alongwith C.W.J.C. No. 8149 of 2017."
Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 18/29
11. We may at the outset mention that Shri Akashdeep, learned counsel who had appeared for the respondent-petitioners before the learned Single Judge was present on the date when the said order was passed, even though the same has not been noted in our order. We had directed that a copy of the appeal be served on the learned counsel for the respondent-petitioners by 13.05.2019.
12. The matter was fixed for 15.05.2019 on which date the following order was passed:
"Heard learned counsel for the appellant who has invited the attention of the Court to the judgment of a learned Single Judge in the case of Dr. Sudhir Kumar & Ors. Vs. State of Bihar through Principal Secretary, Department of Health & Ors. Reported in 2018 (2) P.L.J.R.
609. It is also informed that M.J.C. No. 4167 of 2018 has been filed pointing out disobedience on the part of the State Government in complying with the direction in the said judgment.
A preliminary counter affidavit has been filed in this appeal raising objections with regard to the maintainability of the appeal on behalf of the appellants.
A counter affidavit on behalf of the State has been filed which is taken on record.
The records of M.J.C. No. 4167 of 2018 shall also be placed along with these Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 19/29 matters.
The matter shall continue tomorrow (16.05.2019)."
13. The matter was taken up yesterday and the learned counsel for the respondent-petitioners have advanced their arguments raising only preliminary objections at this stage to the maintainability of the appeal and also praying for passing of an interim order to the effect that the results of the appellants should also not be declared if the matter has to be finally heard and disposed of on merits.
14. Shri Vinod Kanth, learned senior counsel inviting the attention of the Court to Clause-X of the Letters Patent under the Patna High Court Rules submits that firstly the appellants if they felt aggrieved could have sought impleadment in the writ petition itself and, therefore, without being a party to the said writ petition they have no lis to complain of in an appeal under Clause-X. He submits that none of the rights of the appellants are affected at all, inasmuch as, if they are applicants, they cannot have any grievance against the respondent- petitioners who are entitled to be considered for being appointed in their own right being a member of the Bihar State Health Service. The consideration of the respondent-petitioners as Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 20/29 applicants for the post in no way prejudices the cause of the appellants and, therefore, the appeal at their instance is not maintainable. He has also referred to the judgment in the case of Shivdev Singh and Ors. v. State of Punjab and Ors., reported in AIR 1963 SC 1909 to urge that they could have sought their relief by seeking impleadment in the writ petition if they were aggrieved at all and the present appeal where leave has been sought is accompanied by a misconceived application under Section 151 C.P.C. He, therefore, submits that neither the appellants fall within the definition of aggrieved or interested persons nor do they have any locus standi to question the proceedings before the learned Single Judge. He submits that it was only the State of Bihar which was a party and it has not chosen to file any appeal. He has further urged that the conduct of the State of Bihar is questionable, inasmuch as, it has not been sincerely pursuing the proceedings relating to the challenge raised to the vires of the rules and in this background, the appellants have absolutely no right to contest the proceedings.
15. He has then urged that the interim order is only an arrangement for allowing the respondent-petitioners to be considered for the post and does not amount to extending any Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 21/29 benefit that may affect the rights of the appellants. He submits that the order passed by the learned Single Judge impugned in this appeal is not a judgment so as to warrant an interference, that too in the above circumstances. He has extensively cited the paragraphs of the celebrated decision of the Apex Court in the case of Shah Babulal Khimji Vs. Jayaben D. Kania and another, reported in (1981) 4 SCC 8, as subsequently dealt with in the case of Central Mine Planning and Design Institute Ltd. Vs. Union of India and another, reported in (2001) 2 SCC 588. He submits that the law expounded in the said decisions as applied on the facts of the present case would establish that the nature of the order passed by the learned Single Judge does not amount to any determination either affecting the rights of the appellants and in no way prejudices them so as to enable an appeal to be maintainable under Clause- X of the Letters patent.
16. He has further submitted that the order granting leave to the appellants on 10th of May, 2019 was without serving a copy of the appeal and behind the back of the appellants and, therefore, the same being ex parte and not justified in view of what has been urged above deserves to be recalled and the appeal deserves to be dismissed as not maintainable as the Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 22/29 appellants have no right to seek leave to appeal.
17. He further contends that he shall address the Court on merits of the matter in case so required in the event of a decision on the question of the maintainability of the appeal itself.
18. Responding to the said submissions, Shri P.K. Shahi, learned senior counsel for the appellants contends that the preliminary objections do not deserve to be entertained, that too even in the background in which the orders have been passed. He contends that merely because Section 151 C.P.C. has been mentioned in the caption of the application seeking leave to appeal, the same would not take away the power of this Court as conferred under Clause-X of the Letters Patent to entertain the appeal keeping in view the width of the extensive powers for entertaining an intra court appeal. He submits that Clause-X cannot be restricted in the manner as suggested at the instance of the appellants who are not only proper and necessary parties but are those who shall be adversely affected and shall be put to a disadvantageous position if the respondent-petitioners are also allowed to compete with them in spite of being ineligible. This would vitally affect the interest of the appellants whose chance of success of getting selected would stand substantially reduced Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 23/29 in the event ineligible candidates including the respondent- petitioners who are over age are allowed to participate in the selection process. He, therefore, submits that the appellants have every locus to question the correctness of the order of the learned Single Judge as the appellants are applicants against the same advertisement, the validity whereof in a couched manner raises a challenge to the vires of the very rules prescribing the age limit. He submits that the learned Single Judge did not have jurisdiction to entertain the petition or pass an interim order in the background aforesaid which virtually amounted to granting a final relief.
19. He submits that prejudice is caused as the appellants would be denying a level playing field and the passing of the interim order aids the said imbalance by granting relaxation to the respondent-petitioners to which they are not entitled so long as the rules remain intact.
20. We have considered the submissions raised and we find that the appellants being applicants against the same advertisement have an interest in the subject matter as it involves their selections against the posts advertised. The contention on behalf of the respondent-petitioners that the appellants would not be adversely affected is not correct, Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 24/29 inasmuch as, once ineligible candidates are allowed to participate in the selection process then in that event the cause of the appellants would definitely suffer as they would be put to a disadvantageous position to compete in the selection process keeping in view the limited number of posts. The prejudice, therefore, is evident as the respondent-petitioners are not possessed of the eligibility criteria. The interim order, which is under challenge, therefore, amounts to virtually altering the rules in spite of the fact that the challenge raised to the rule is still under consideration in C.W.J.C. No. 8149 of 2017 where some of the respondent-petitioners are the petitioners therein. The learned Single Judge has noted this fact, yet has proceeded to allow the respondent-petitioners to be considered ignoring the statutory prescription of maximum age. This direction is, therefore, in teeth of the judgment in the case of Anurag Kumar Singh (supra) and also amounts to a final relief at the interim stage that is not in consonance with the law laid down by the Apex Court in the case of Ram Sukhi Devi (supra).
21. Coming to the second aspect of the matter, apart from the fact that the order adversely affects the appellants, the nature of the order is such that it generates a lis by which the appellants are adversely affected and, therefore, they are Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 25/29 interested and aggrieved persons. The appellants are, therefore, entitled to prefer an appeal.
22. The contention of the learned counsel for the respondent-petitioners that there has to be a lis between the parties, suffice it to say that the lis is about the participation of eligible candidates in a selection process. The contest, therefore, is clearly between those who are eligible and those who have been made eligible because of the interim order. It is, therefore, evident that the appellants become parties to the lis. There is no doubt that the appellants could have moved and sought for impleadment in the writ petition, but that by itself does not restrict the jurisdiction of this Court to entertain an appeal on their behalf under Clause-X of the Letters Patent. The law on the question of maintainability of an appeal has been discussed in many judgments against the nature of the orders passed and we may refer to the Division Bench judgment in the case of Ranjan Kumar Chauhan Vs. The State of Bihar & Ors., reported in 2015 (4) PLJR 790 and the Division Bench judgment in the case of The Regional Provident Fund Commissioner Vs. M/s Sulabh Internatinoal Social Service Organization, reported in 2011 (4) PLJR 321. We may also record that it is the duty of every Court to first examine as to Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 26/29 whether it has jurisdiction to entertain the matter or not. For the time being, we are satisfied that the learned Single Judge in the light of the issue raised which clearly touches upon the vires of the rules ought not to have entertained the writ petition and should have directed for placing the matter before the Division Bench along with C.W.J.C. No. 8149 of 2017 where the respondent-petitioners themselves have clearly challenged the vires of the very same rule.
23. We may also refer to a couple of judgments throwing light on the maintainability of an intra court appeal that was dealt with by a Division Bench of the Allahabad High Court in Special Appeal No. 629 of 2014 Sri Ghisai Ram Krishak Vidyalaya Samiti & Anr. Vs. State of U.P. & Ors decided on 05.11.2014 that came to be considered while answering a reference on the same subject matter in a different case by a Full Bench of the Allahabad High Court in Special Appeal No. 1140 of 2008 Ashutosh Shrotriya & Ors. Vs. Vice Chancellor, Dr. B.R. Ambedkar University & Ors. decided on 4th September, 2015. The Full Bench went on to hold that the powers of the Division Bench hearing an intra court appeal is of an unquestionable jurisdiction where the Appellate Court can decide whether the direction is of a procedural nature against Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 27/29 which a special appeal is not maintainable or whether the interlocutory order decides the matter of moment or affects vital and valuable rights of parties and works serious injustice to the party concerned. The said judgments have been delivered after taking notice of the ratio of the judgment in the case of Shah Babulal Khimji (supra) and other judgments on the issue including the judgment in the case of Central Mine Planning and Design Institute Ltd. (supra).
24. Applying the aforesaid principles, we have no doubt in our mind that the appellants have the right of preferring this appeal even if they have not moved an impleadment application in the writ petition as the nature of the interim order impugned in the present appeal brings within its sweep the rights and interests of the appellants which are being adversely affected on the facts and circumstances of the present case as reasoned out hereinabove. The valuable right of the appellants to participate in selections with only eligible candidates competing with them is their right. They cannot be asked to participate in a selection with ineligible candidates. This will work serious injustice and, therefore, is a matter of moment. We, therefore, overrule the preliminary objections raised on behalf of the respondents and maintain our order dated 10th of May, Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 28/29 2019.
25. On the issue relating to modifying the interim order passed, the learned Advocate General appearing for the State of Bihar, who has also supported the arguments on behalf of the appellants on the merits of the interim order, contends that the selection process cannot be stalled as it would affect the recognition of the Medical Colleges by the Medical Council of India and also the undertaking given for filling up the posts before the Apex Court about which reference has been made in C.W.J.C. No. 8149 of 2017. He, therefore, submits that the entire selection process should not be forestalled and in the event the respondent-petitioners succeed, the State Government shall consider their cases accordingly and he also prays that these matters may be decided at the earliest as it affects teaching in the Medical Colleges which is of vital interest to their running.
26. In these circumstances, we agree with the submissions of the learned Advocate General and we see no reason to modify our interim order passed on 10 th of May, 2019 at this stage.
27. It has been pointed out that C.W.J.C. No. 8149 of 2017 was directed to be listed along with C.W.J.C. Nos. 7973 of Patna High Court L.P.A No.407 of 2019(6) dt.17-05-2019 29/29 2017, 7531 of 2017 and 8388 of 2017 for final hearing vide order dated 26th July, 2017. It has further been pointed out that the order dated 23rd July, 2018 reflects listing of other analogous cases as well.
28. In view of the judicial orders of connecting all the cases together for being finally heard, as agreed by learned counsel for all the parties, the office is directed to list all these cases along with this petition on 24th June, 2019 showing the name of the counsel in all the analogous cases.
(Amreshwar Pratap Sahi, CJ) (Anjana Mishra, J) AFR P.K.P./-
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