Allowed

Dr. Abhijeet Kumar Jha v. The State Of Bihar and Ors.

Patna HC29 Oct 2015CWJC/14262/2015

Case brief

AI extract

What is this about?

Petitioner applied for Senior Resident post but was excluded due to a rule barring prior 'Resident' tenure. Court held that a short-term outsourcing engagement does not trigger disqualification and ordered appointment, directing authorities to notify petitioner within four weeks.

What did the court decide?

Notified the petitioner on the post of Senior Resident within four weeks from date of order production.

Dr. Abhijeet Kumar Jha Vs The State Of Bihar… — Pension and Retirement Benefits | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.14262 of 2015

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=========================================================== Dr. Abhijeet Kumar Jha son of Sri Birendra Kumar Jha, resident of Walmi, Brindavan Colony, Patna, P.S.- Phulwarisharif, District- Patna

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.... .... Petitioner/s Versus 1. The State of Bihar through the Secretary- cum- Commissioner, Health Department. 2. The Secretary-cum-Commissioner, Health Department, Govt. of Bihar, Patna 3. The Joint Secretary, Health Department, Govt. of Bihar, Patna 4. The Special Officer, Health Department, Govt. of Bihar, Patna 5. Dr. Md. Jishan, son of name not known to the Petitioner, Resident Surgeon, Patna Medical College and Hospital, P.S.- Pirbahore, District- Patna 6. Dr. Vikash Anand, son of name not known to the Petitioner, Resident Surgeon, Jawahar Lal Nehru Medical College and Hospital, Bhagalpur, P.S.- Tilka Manjhi, Bhagalpur 7. Dr. Smita Prasad, son of name not known to the Petitioner, Resident Surgeon, Patna Medical College and Hospital, P.S.- Pirbahore, District- Patna 8. Dr. U.K. Pallavi, son of name not known to the Petitioner, Resident Surgeon, Patna Medical College and Hospital, P.S.- Pirbahore, District- Patna

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.... .... Respondent/s =========================================================== Appearance : For the Petitioner/s : Mr. B. P. Pandey, Sr. Advocate Mr. Pravin Kumar Sinha Mr. Nirbhay Prashant For the Respondent State: Mr.ASHOK PRIYADARSHI, GA 4 Mr. Mani Madhukar, AC to GA 4 For Respondent No.5 : Mr. Satish Chandra Jha For Respondent No.6 : Dr. Harendra Kumar Singh For Respondent No.7 : Mr. Shashi Bhushan Kumar For Respondent No.8 : Mr. Y. V. Giri, Sr. Advocate Mr. Pranav Kumar =========================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL JUDGMENT Date: 29-10-2015

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On the basis of an advertisement issued by the Department of Health, Government of Bihar, dated 7.5.2015, contained in Annexure-3, petitioner applied for the post of Senior Resident for a period of 3 years. Petitioner was considered, short-listed and placed at

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serial No.1 for appointment as a Senior Resident, Skin and V.D. Department. He is a general category candidate and he being the sole short-listed candidate, placed at top of the list, expected to be notified on the position. However, to the shock and horror when notification, contained in Anneuxre-9 dated 2.9.2015 was issued, his name was missing. He tried to find out the reason for omission but since he did not get any satisfactory response, he decided to file the writ application seeking quashing of Annexure-9, if not a direction upon the respondents to appoint him on the post of Senior Resident.

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Petitioner has also impleaded certain private respondents who have been appointed. They are represented through various counsels and have filed counter affidavits as well.

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Learned senior counsel representing the petitioner submits that the whole decision not to appoint the petitioner is arbitrary, mala fide and a deliberate exercise done by the respondent State authorities not to appoint him on the post of a Senior Resident when he has all the attributes and fulfilled the requirements as per the advertisement.

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The response of the State and some of the private respondents is that the petitioner stands disqualified as per Rule 6 (c) of the Rule known as Senior Resident/Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion

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Rules, 2008. This rule has been notified on 10^th of October, 2008. A copy of the notification issued, both in Hindi and English, has been tendered to the Court.

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Before proceeding, since the heart of the dispute lies on the provisions laid down in Rule 6, especially Rule 6 (c), the Rule is reproduced herein below:

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“Rule 6 (c): Those who have earlier at any time held the tenure post of Resident shall not be eligible to apply for the present post of Senior Resident.”

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There is no dispute that the petitioner is at present working as a Senior Resident (Dermatology) on direct job outsourcing basis for a tenure period of 11 months in All India Institute of Medical Sciences, Patna (for short, AIIMS). A copy of such appointment letter has been annexed by the petitioner himself as Anneuxre-1 and is dated 1^st March, 2014.

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Learned senior counsel representing the petitioner submits that this appointment on outsourcing basis for a fixed period of 11 months in AIIMS at Patna does not bar him from consideration or appointment on the post of a Senior Resident. A reading of Rule 6 and the sub clauses is pointer of the fact that a person who has already held a post for a period of 3 years is barred or precluded from holding such a post or re-appointment. Rule 6 (c ) cannot be read to mean that any person who has worked or held the post as a Senior

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Tutor or Resident even for a short period of time will stand automatically disqualified. The petitioner is not holding the post of Senior Resident and has not worked as a Senior Resident for a period of 3 years. The term of appointment itself would indicate that he has been appointed on contract for a fixed tenure of 11 months and that too on outsourcing basis. This engagement by no kind of interpretation can mean that the petitioner would stand disqualified for consideration as is the stand or the reason assigned by the respondent State authorities as well as the private respondents.

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Attention of the Court is also drawn to para 8 (vi) of the advertisement. This part of the advertisement reads as under:

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“Tutor/Senior Resident ke pad par purva me niyukta chikitsak punah awaden karne ke patra nahi honge. Pratyek awedak ko shapath-patra mul rup me sakshatkar ke samay prastut karna hoga ki ye purva me awedit bishay me MCI se manyata prapt Chikitsa Mahavidyalaya Aspatal se Senior Resident / Tutor (Tin Barshiya) ke rup me karya nahi kiya hai. Shapath patra nahi diye jane ki ishthiti me awedak ki patrata radd kar di jayegi.”

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Learned senior counsel representing the petitioner,

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therefore, submits that the rule read with the advertisement surely establishes the fact that only such person who held the post of Senior Resident and Tutor for 3 years are barred or disqualified from re-

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consideration or appointment. If the petitioner has been ousted on this spacious ground that he is already a Senior Resident in AIIMS, Patna, therefore, was disqualified is a wrong reading of the rule and the advertisement.

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Mr. Y. V. Giri, learned senior counsel representing respondent No.8 interprets Rule 6 (c) to mean that it is not the period or tenure, which is relevant for incurring disqualification. Even the 11 months appointment of the petitioner in terms of Anneuxre-1 is a valid reason why petitioner was not and cannot be appointed as a Senior Resident.

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Reliance has been placed on the Hindi version of the notification to indicate such a poison. The Hindi version of Rule 6 (Ga) is hereby reproduced:

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“ Waise Chikitsak jo purva me Resident ka tenure pad dharan kar chuke hai we Senior Resident ke wartman pad per awedan dene ke yogya nahi honge.”

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The respondent State as well as the private respondents reads the above provision to mean that if a person has held the post of Senior Resident is good enough, the length and tenure does not make a difference even if it is less than three years.

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The stand of the respondents including private respondents needs to be rejected at the threshold. The rule has to be

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read as a whole. Whatever little ambiguity there could be in the Hindi version of the notification relating to the Rule, the English version leaves no doubt that the object and intent of such provision is to bar any person from being re-appointed as a Senior Resident or Tutor if he or she has held the tenure post of Resident or Senior Resident.

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Engagement of the petitioner for a period of 11 months, that too in AIIMS, does not bring the petitioner’s case within the mischief of Rule 6 (c) or Rule 6 (Ga).

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The advertisement portion quoted above in Clause (vi), therefore, is in conformity with the rules clearly establishes that it intends to bar persons who have held the post of Senior Resident for 3 years and not any shorter tenure or engagement or the kind the petitioner was/is holding in AIIMS, Patna.

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The Court, therefore, comes to a considered opinion that the reason for non-appointment of the petitioner as a Senior Resident on the ground that he is working as a Senior Resident is a mischief, if not arbitrary decision. Petitioner cannot be disqualified from being appointed as a Senior Resident for 3 years under the State.

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Mr. Y V Giri, representing respondent No.8, has clearly indicated that the private respondents, who have been appointed or notified as Senior Residents, may not be ousted because there are vacancies available against which petitioner can be adjusted.

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Since State is silent on this aspect of the matter, it is left open to the State to decide what is required to be done with regard to the claim of the petitioner but in totality, the Court directs the Principal Secretary, Health, Government of Bihar, to notify the petitioner on the post of a Senior Resident within a period of four weeks from the date of production of a copy of this order since the reason for non-appointment of the petitioner is, per say, arbitrary and irrational and on a wrong reading of the rules. If any other private respondent needs to be ousted then the peril is of such a person. Since the petitioner was at serial No.1 of the select list in general category candidate, his right cannot be snatched away on such a casual and cursory reading and understanding of the provisions of the rules.

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Private respondent No.7 also supports the claim of the petitioner. One of the reasons being that there is also similar background as the petitioner. This has given her legitimate apprehension that the respondent State may also try to oust her to justify non-appointment of the petitioner.

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Such a position or occasion may not arise because the reason for disqualification of the petitioner for working as a Senior Resident for a short period or for that matter any other person in that capacity does not create a bar or disqualification from such

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consideration and appointment.

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Writ application, therefore, is allowed in terms of the

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above.

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(Ajay Kumar Tripathi, J)

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R.K.Pathak/-

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Dr. Abhijeet Kumar Jha v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Dr. Abhijeet Kumar Jha v. The State Of Bihar and Ors.

Case brief

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What did the court decide?

What the court decided

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