Bhuwan Bhaskar Vs Rajendra Institute of Medical Sciences through Its Director

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W.P.(S) No. 393 of 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 393 of 2020

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Bhuwan Bhaskar … Petitioner

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V E R S U S

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Rajendra Institute of Medical Sciences through its Director, having its office at Bariatu, RIMS, Ranchi

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Director, Rajendra Institute of Medical Sciences, having its office at Bariatu, RIMS, Ranchi

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Shashi Ranjan Kumar, son of Bikram Singh, Resident of Hill View Road No. 7, Bariatu, P.O. – RIMS, Ranchi.

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Rajiv Kumar, son of Sri Yamuna Singh, Resident of Q. No. B-II, 299, Sharma Road, Dhurwa, Ranchi

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Deepak Kumar Pathak, son of Shri Sanjay Kumar Pathak, C/o. Rajeev Kumar Mishra, Audrey House, Meyer’s Road, Near Raj Bhawan Gate No. 2, P.O. - Ranchi University, P.S. Gonda, District – Ranchi

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Santosh Kumar Singh, son of Sri Jitendra Singh, Resident of Q. No. C1/12, Sector – II, Dhurwa, Ranchi.

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Binita Kumari, wife of Sri Anand Kishore Yadav, Resident of Hill View Road No. 13, Bariatu, Ranchi

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Ratnesh Kumar, son of Sri Ram Ratan Prasad, Resident of C/o. RIMS Staff Q. No. 91, P.O. and P.S. – Bariatu, District – Ranchi

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Amit Kumar Deepak, son of Sri Laxman Kumar Deepak, Resident of Village Surid, P.O. – Landopath, PS. – Sonahatu, Ranchi

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10.Sonal Singh, Daughter of Sri Jagat Kishore Singh, Resident of Near Main Road, P.S. – Barwadih, Latehar

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11.Afasna Ruhi, daughter of Sri Basir Ahmad, Resident of – Village and P.O. – Boreya, P.S. – Kandi, District – Garhwa.

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… Respondents

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CORAM: HON'BLE DR. JUSTICE S. N. PATHAK

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For the Petitioner :Mr. Sameer Saurabh, Advocate Mr. Nitish Krishna, Advocate Mr. Vishal Kumar, Advocate For the RIMS : Dr. Ashok Kumar Singh, Advocate Mr. Shivam Singh, Advocate Mr. Prabhat Kumar, Advocate For the State : Ms. Darshana Poddar Mishra, AAG-I For the R. Nos. 5 and 10 : Mr. Lal Vikram Nath Shahdeo, Advocate Mr. Bhawesh Kumar Tiwari, Advocate For the R. Nos. 4, 6, 7, 11 : Mr. Shresth Gautam, Advocate Mr. Rishu Ranjan, Advocate Mr. Yogendra Yadav, Advocate Mr. Ankit Sinha, Advocate Mr. R. Singh, Advocate.

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W.P.(S) No. 393 of 2020

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For R. No. 8

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Mr. Abhijeet Kumar Singh, Advocate Mr. Harsh Chandra, Advocate

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C.A.V. On 28.06.2023 PRONOUNCED ON 09.01.2024

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Dr. Justice S.N. Pathak. Heard learned counsel for the parties.

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PRAYER

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Petitioner has approached this Court with a prayer for quashing part of list of selected candidates issued vide letter no. RIMS/ Admn. / No. 77, dated 27.01.2020 (Annesxure-11) so far it relates to respondent no. 3, who has been selected for appointment to the post of Laboratory Technician, as he secured lesser marks than the petitioner. Petitioner has further prayed for quashing entire select list issued vide letter no. RIMS/ Admn. / No. 77, dated 27.01.2020, relating to appointment on the post of Laboratory Technician, as the respondents have prepared the merit list by adding marks obtained in skill test with the marks obtained in the written test and marks given for experience, contrary to the guidelines mentioned in letter no. F. No. 39020/09/ 2015 – Estt. B, issued by Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training), Government of India and after quashing the list of selected candidates, the respondent nos. 1 and 2 be directed to revise the same and prepare fresh merit list on the basis of marks obtained in written test as well as marks awarded on the basis of experience. Further prayer has been made for a direction upon the respondents to appoint the petitioner to the post of Laboratory Technician as he has secured more marks than the respondent no. 3.

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FACTUAL MATRIX

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According to the petitioner, an advertisement no. 955(A), dated 08.03.2019 was published for appointment on various Grade-III posts including the post of Laboratory Technician in RIMS followed by Corrigendum no. 1097, dated 16.03.2019. The maximum age prescribed for unreserved category was fixed as 35 years and the essential qualification was I.Sc./10+2 (Science) with Degree/ Diploma in Laboratory Technician and the candidate must be registered with State Paramedical Council. Petitioner, a local resident of State of Jharkhand,

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was fulfilling all the requisite criteria and as such submitted duly filled up application form in prescribed format within the prescribed time. On 16.09.2019, a list of eligible candidates for the post of Laboratory Technician was published and the candidates were instructed to appear in the written exam scheduled to be held on 21.09.2019. After the examination, the result was published on 30.12.2019. Thereafter, pursuant to the office order dated 30.12.2019 (Annexure-8), objections were invited from the aggrieved candidates relating to marks obtained by them till 04.01.2020 and the dates were also announced for documents verification and skill test. Subsequently, the notice dated 06.01.2020 was issued showing petitioner at sl. No. 14 in general category with 47.5 marks. After verification of documents, petitioner was found fit for appointment and the list of candidates were issued on 08.01.2020 again showing petitioner at serial no. 14. Thereafter, petitioner appeared in the skill test on 09.01.2020. However, instead of skill test, interview was conducted by the respondents. Thereafter, provisional merit list of selected candidates for appointment to the post of Laboratory Technician was published for which notice was issued vide RIMS/ Admn/ No. 77, Dated 27.01.2020. From the provisional merit list dated 27.01.2020, it is apparent that the candidates at Sl. No. 7, 10 to 17 under the General Category have secured less marks than the petitioner but they have been selected provisionally for appointment to the post of Laboratory Technician. The name of respondent no. 3 appears at serial no. 17 under General category, although said respondent no. 3 had secured 33.5 and was at serial no. 40, which is apparent from the notice dated 08.01.2020 whereas petitioner had secured 47.5 marks and was placed at serial no. 14 but was not selected for appointment. Respondents published fresh list of selected candidates as contained in Memo NO. 4046/ RIMS, dated 20.10.2020. Grievance of the petitioner is that out of the selected candidates, the candidates namely Rajiv Kumar, Deepak Kumar Pathak, Santosh Kumar Singh, Binita Kumari, Ratnesh Kumar, Amit Kumar Deepak, Sonal Singh and Afsana Ruhi had got marks lesser than the petitioner and despite that their names find place in the final list dated 20.10.2020. In the said list, name of respondent no. 3 Shashi Ranjan is

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not there. The final list selecting candidates having secured marks lesser than the petitioner is bad, illegal and as such, petitioner has knocked door of this Court.

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SUBMISSION ON BEHALF OF PETITIONER

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Mr. Sameer Saurabh assisted by Mr. Nitish Krishna and Mr. Vishal Kumar, learned counsel appearing for the petitioner strenuously urged that petitioner fulfills the essential qualification and criteria required for the appointment and he is registered with Jharkhand State Paramedical Council, Ranchi having Registration No. 2235/ JSPC, Ranchi, for which certificate of registration has been issued by the Registrar, Paramedical Council. He was also selected and appointed as Lab Technician in All India Institute of Medical Science (AIIMS), New Delhi and was working there. Learned counsel further urged that petitioner had secured 47.5 marks and was placed at serial no. 14 but was not selected for appointment whereas the respondent no. 3 was at serial no. 17 under General category and had secured 33.5 marks but has been selected only because the respondent authorities had given marks on the skill test and the same was added with the marks obtained in the written test as well as marks secured against the experience and after adding the same, final merit list was prepared. Learned counsel further argued that said action of the respondents is not permissible in terms of the guidelines of Government of India adopted by the State of Jharkhand issued vide Letter No. F. No. 39020/09/2015 – Estt. B, issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training), Government of India. In the said letter it has clearly been mentioned that interview will not be conducted for appointment against the Grade-B, C and D (Non-gazetted) posts. However, skill test is different from interview and the same may be conducted by the recruiting agencies. These tests are of qualifying in nature and assessment will not be done on the basis of marks obtained by a candidate in the skill test. Learned counsel further argued that out of finally selected candidates, the candidates namely Rajiv Kumar, Deepak Kumar Pathak, Santosh Kumar Singh, Binita Kumari, Ratnesh Kumar, Amit Kumar Deepak, Sonal Singh and Afsana Ruhi had got marks lesser

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than the petitioner and despite that their names find mention in the final merit list dated 20.10.2020. In the said list, name of respondent no. 3 Shashi Ranjan is not there. The final list selecting candidates having secured marks lesser than the petitioner is bad, illegal and in violation of settled principles of law. The skill test is qualifying in nature and no assessment can be made on the basis of marks obtained in the skill test.

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SUBMISSION ON BEHALF OF RESPONDENTS

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Per contra, counter-affidavit has been filed on behalf of respondents.

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Mr. Lal Vikram Nath Shahdeo and Mr. Bhawesh Kumar Tiwari, learned counsel appearing on behalf of the respondent nos. 5 and 10 have opposed the contention of the petitioner and it has emphatically been argued that this writ petition itself is not maintainable. It has been further argued that no prejudice was caused to the petitioner even if the marks for skill test was taken into consideration as it was for every candidate. It has further been argued that Articles 14 and 16 are not attracted in the instant case and as such there is no question of violation of the same. There was no declaration regarding the powers of the Selection Committee. The appointments are fully justified. There is no discrimination. Learned counsel has placed heavy reliance on the Judgment of the Hon’ble Apex Court rendered in the case of Ran Vijay Suingh and others Vs. State of Uttar Pradesh and others reported in (2018) 2 SCC 357 and has referred to para-31 thereof and further submitted that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examining authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible.

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Mr. Shresth Gautam learned counsel appeared on behalf of respondent nos. 4, 6, 7 and 11 vociferously argued that since respondents

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were fulfilling all eligibility criteria for being appointed to the post of Laboratory Technician as per the advertisement, their candidature was accepted. Learned counsel further argued that in the list of eligible candidates, the names of respondent nos. 6 and 11 duly figured and thereafter they appeared in screening test (written test) which was scheduled to be held on 21.09.2019. It has further been argued that following all the procedures, the respondents were selected and on 06.01.2020, a list of candidates was published for skill test and in the said list also the names of respondents figured. At the time of documents verification, the documents of respondent nos. 6 and 11 were found correct and proper in terms of the advertisement. As the respondent nos. 6 and 11 appeared in the skill test and successfully qualified, their names appeared in the final list of selected candidates and as such there is no illegality or any infirmity in the select list. The appointments were made in complete adherence to the procedure and no illegality has been committed. Quoting rules, it has further been argued that the RIMS is an autonomous body and vests with the powers to formulate their own rules and procedure. Learned counsel further argued that the State Government’s powers under Section 29 read with Section 31 of the RIMS Act, 2002, has formulated the Para Medical Staff Appointment, Promotion and Service Condition Rules, 2015 (Para Medical Appointment Rules) which was notified vide memo no. 192(ii) dated 29.07.2015 and the selections are being made as per the guidelines framed under the said Rule. There is no infirmity or any illegality including the skill test for ascertaining the final merit list. Justifying the appointment of respondents, learned counsel argues that the Clause 4(4)(III) of the aforementioned Para Medical Appointment Rules clearly provides that the recruitment to the post of Para Medical staff through open advertisement must be done on the basis of cumulative marks attained by the candidates which includes the marks of interview/ oral examination and as such marks for skill test can also be included for ascertaining the final merit list since the same has been replaced with interview for the purposes of appointments.

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Dr. Ashok Kumar Singh assisted by Mr. Shivam Singh and Mr.

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Prabhat Kumar, learned counsel appearing on behalf of RIMS opposing the contention of learned counsel appearing on behalf of the petitioner, argued that the Director is fully empowered to make appointment on Class-III and IV posts in RIMS. No specific provision has been made in RIMS Act, 2002 or the RIMS Rule, 2002 and RIMS Regulation, 2014 with regard to qualification and procedures to be followed for appointment on Class-III and IV posts. As being empowered to do so, the Director constituted a Committee of Senior Doctors and thereafter the appointments were made as per the terms and conditions laid down by the Committee as well as the advertisement. Justifying the procedures and the select list, it has been argued that even if interview is conducted, the same is permissible and justified. Learned counsel further argued that the State Government has issued no direction, guidelines etc. with regard to selection process of Class-III and IV staffs in RIMS. In absence of any directions issued by the State, it was duty of the Director, RIMS to frame Rules and Regulation and the same was done and appointments were made which were transparent. Taking shelter of paragraphs-5 to 16, learned counsel justified the selection process and argued that the writ petition is devoid of merits and fit to be dismissed.

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The other private respondents have adopted the arguments advanced by the private respondents.

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FINDINGS OF THE COURT

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Having gone through rival submission of the parties across the bar and from perusal of counter affidavit filed by the respondents – RIMS as well as the private respondents, it would be apposite to consider the admitted facts which are not in dispute by the parties:

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There is no provision for Skill Test either in the advertisement or in the Rules. The candidates including the petitioner and the private respondents participated in the Skill Test and in the written test the petitioner has scored more marks than the last selected candidate as it appears from the enquiry report as well as the supplementary counter affidavit, Page-40, filed by the RIMS. In view of the enquiry report, the selection process could have been cancelled since there is a clear finding that the procedures were not duly followed. It is also admitted fact and

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finds strength from the supplementary counter affidavit, paragraphs-12 to 16, that after award of marks, moderation was done. Now the questions arises as to who ordered for moderation and what was the occasion for such moderation. Whether it was justified or just to help their own candidates for selection, the final selection list was revised in the garb of moderation.

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Going through the affidavit filed by the Health Secretary, it appears that the illegalities cannot be routed out. In view of affidavit filed by the Health secretary and the Enquiry Report brought on record, it smacks of favouritism and nepotism, then the big question arises – why the entire selection process be not cancelled.

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The chart brought by way of supplementary counter affidavit of RIMS clearly shows that in order to select the candidates of their own choice, the marks were enhanced. The moderation of marks does not have any approval of the Governing Body or of the State. Whether in absence of any approval, the same can be justified. Annexure-12, Page69, clearly shows that the Skill Test was only of qualifying in nature and the same has been adopted by the State of Jharkhand. This aspect has not been taken into consideration. The same finds place at page-21 of the Supplementary Counter Affidavit. It is also an admitted fact that all have obtained less marks than the petitioner in the written test. In reply to application filed under Right to Information Act, full marks sheet was supplied by the RIMS on 17.04.2021 just to save their skin.

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Now from the aforesaid findings and the observations, it appears that when there was no provision for Skill Test, Interview, whether the marks obtained in the Skill Test can be considered for preparation of the final selection list. From the marks sheet of respondent nos. 4 and 8, it appears that in the Chart supplied under Right to Information, two marks were given but the marks sheet annexed by the respondent shows ten marks. Similarly, the respondent no. 9 obtained four marks as per chart supplied under Right to Information but in the counter affidavit it shows twelve marks. There is complete variation and interpolation in the marks produced by the respondents and the marks supplied by way of Right to Information. The entire documents show that there has been malpractice,

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favouritism and nepotism which cannot be ruled out.

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From the affidavit and the arguments it appears that the selected candidates have been appointed and they are still working. The appointments were made giving a complete go-bye to the rules and regulations and further the documents brought on record goes to show that there has been favoritism and malpractice.

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The issue fell for consideration before the Hon’ble Apex Court in the case of State of Bihar Vs. Upendra Narayan Singh reported in (2009) 5 SCC 65. Paragraphs-60 and 61 of the said Judgment reads as under:

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“60. In our opinion, there is no merit in the submission of the learned Senior Counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularisation of their services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names of eligible persons then they would have certainly produced the relevant documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the High Court and none has been produced before this Court.

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61. The report of enquiry held against Dr. Darogi Razak, the then Regional Director, Gaya (a copy of the report has been placed before this Court in the form of additional document) bears ample testimony of manipulations made by the officer in making appointment on Class III and Class IV posts. So much so, with a view to remove every trace of the illegality committed by him, Dr. Darogi Razak ensured disappearance of all the papers relating to appointments from his office. … … …”

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In the instant case, from the enquiry report, the affidavit of the Additional Chief Secretary – cum – Health secretary, it is crystal clear that there are illegalities, favouritism and nepotism, which has been brought on record by the Health Secretary himself. The variation in the marks obtained by way of Right to Information Act and that brought on record by the respondents in their individual affidavit, clarifies that everything was done just to select the candidates of their own choice.

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The process of appointments, even in Class-III and IV posts, have to be transparent. The rules of game cannot be changed in the mid-way or after the game is over, which is settled principles of law, as has been held by the Hon’ble Apex Court.

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Since the persons who does not deserve to be appointed are enjoying the fruits of appointment and those who deserves to be appointed, have been thrown on road, this Court is of the view that the panel prepared for appointment of Laboratory Technician is fit to be scrapped and set aside. The merit list prepared taking into account the marks obtained in the Skill Test is also not tenable and hence the said merit list does not have legs to stand and any appointment from the said merit list is dehors the rule. However, instead of quashing the entire selection process, I, hereby, direct the respondents to prepare a fresh merit list on the basis of marks obtained in the written test and the marks awarded for experience. The respondents are further directed to prepare the panel/ merit list as per the observations and findings made hereinabove and make appointment to the post of Laboratory Technician in accordance with law. Earlier appointment to the post of Laboratory Technician based on the previous merit list prepared on the basis of the marks obtained in the written test as well as the skill test, in connection with list of candidates issued vide letter no. RIMS/Admn./No. 77, Dated 27.01.2020, is hereby quashed and set aside and any appointment based on that is also hereby quashed and set aside.

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Let fresh appointment be made on the post of Laboratory Technician considering the fresh merit list prepared on the basis of written marks and experience. Let the entire exercise be concluded within a period of twelve weeks from the date of receipt/ production of a copy of this order.

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The writ petition stands allowed with aforementioned observations and directions.

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( Dr. S.N. Pathak, J. )

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Bhuwan Bhaskar v. Rajendra Institute of Medical Sciences through Its Director

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Bhuwan Bhaskar v. Rajendra Institute of Medical Sciences through Its Director

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