IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9384 of 2007 DR.AMIT KUMAR JHA, son of Dr.Kedar Nath Jha, Resident of Mohalla Balbhadrapur, P.S. Laheriasarai, Dist. Darbhanga---petitioner Versus 1.THE STATE OF BIHAR 2.The Secretary, Health and Family Welfare Department, Government of Bihar,Patna 3.The Special Secretary, Health-cum-Executive Director, State Health Society, Government Of Bihar Pariwar Kalyan Bhawan, Sheikhpura Patna-800014 4.The District Magistrate, Darbhanga 5.The Civil Surgeon-cum-Chief Medical Officer Darbhanga 6.Dr.Narendra Nath Sharma son of (not known to the petitioner), presently posted as Civil Surgeon-cum-Chief Medical Officer,Darbhanga ---respondents ----------- For the petitioner :M/S Gyanand Roy Sheo Nandan Mishra For the respondent State:Mr.Bijay Kumar Pandey A.C.to G.P.18. ----- 6. 13.5.2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the order dated 6.7.2007 (Annexure-1) passed by the Executive Director, State Health Society, Bihar, Patna (respondent no.3) by which he has rejected the representation of the petitioner stating that no illegality was committed in the selection process for appointment on the post of Medical Officer on contract basis in pursuance to the advertisement dated 4.1.2007 and further consequential reliefs. 2 An advertisement was published in Hindi daily newspaper “Hindustan” on 4.1.2007 under the signature of the respondent no.3 for appointment on the post of Medical Officer (Chikitsak) on 11 months contract basis for which purpose walk-in interviews were to be conducted on 13.1.2007 in the Offices of the District Magistrates of several districts including the district of Darbhanga. The candidates were required to appear on the said date and file their applications between 10 A.M. to 12 noon after which the interviews were to be conducted from 12.30 P.M. It was provided in the said advertisement that the appointments were to be made on the remaining vacancies after the earlier appointments made on the basis of walk-in interview on the newly created posts of General Surgeon, Anesthetist, Pediatrician and Gynecologist in the Primary Health Centre and in the Intensive Care Units of the Sadar Hospitals. It was further provided that preference would be given to MS/MD degree holders but depending upon the availability of vacancies in the following order of preference the selection shall be made: (1) MBBS degree from any recognized institution along with diploma and in 3 addition permanent registration with Bihar State Medical Council or (2) MBBS degree from any recognized institution and any other higher degree along with permanent registration with the Bihar Medical Council or (3) MBBS degree from any recognized institution and permanent registration with the Bihar State Medical Council. The petitioner passed his MD(General Medicine) Physician Examination, 1999 from Moscow Medical Stomatological Institute, Moscow (Russia) which is equivalent to MBBS degree. Thereafter he worked with certain institutions and also registered with the Medical Council of India on 11.4.2001 as a Medical Practitioner. He was also registered with the Bihar Council of Medical Registration as a Medical Practitioner. Subsequently he obtained degree of Post Graduate Medical Diploma in Ophthalmology (D.O.) in the year 2003 from Manipal Academy of Higher Education, Faculty of Medicine, Kasturba Medical College, Manipal, India. Pursuant to the aforesaid advertisement the petitioner applied for appointment with all the required documents to participate in the walk-in interview to be held on 13.1.2007 but upon information that the 4 interview will be held on 18.1.2007 he had appeared on that date. The interview Board consisted of the District Magistrate, Darbhanga, Civil Surgeon-cum-Chief Medical Officer, Darbhanga and other Medical Experts. Thereafter on 7.2.2007 a list of 56 Doctors was notified who had been selected for appointment on 11 months contract basis as per the advertisement but the petitioner’s name was not in the said list. On enquiry the petitioner learnt that as many as 36 out of 56 selected Doctors had only MBBS degree including one Dr.Subhash Chandra Singh who was the son-in-law of respondent no.6 Dr.Narendra Nath Sharma, Civil Surgeon-cum-Chief Medical Officer, Darbhanga. Aggrieved by the said action of the authorities in not giving the preference to the petitioner as stated in the advertisement dated 4.1.2007 since he had MBBS degree along with diploma whereas mere MBBS degree holders had been appointed, the petitioner approached this Court by filing C.W.J.C.No. 2578 of 2007 which was disposed of by order dated 7.5.2007 with the observation/direction that the petitioner shall file a detailed representation before the 5 respondent no.3, Special Secretary Health-cum- Executive Director, State Health Society who was to consider the grievances of the petitioner and dispose of the representation by a reasoned order. Pursuant to the same the petitioner filed his representation which has been rejected by the impugned order dated 6.7.2007 (Annexure-1). Apart from other reasons it is stated in the said order that the selection committee decided that the candidates having degree and diploma other than those of four specialized area as advertised namely MS in general surgery, gynecology, pediatrics and anesthesia were treated as general medical officers and for the said reason also the petitioner could not secure position in the list of selected candidates since his diploma did not come in four specialized areas as advertised and he was therefore treated as general MBBS. Learned counsel for the petitioner submits that it was not open to the selection committee to have made any changes in the criteria that had been laid down in the advertisement dated 4.1.2007 issued by the respondent no.3 himself. It is contended that the same was done for the mere reason that the son-in-law of respondent 6 no.6, Civil Surgeon-cum-Chief Medical Officer, Darbhanga was also candidate and he had only MBBS degree and in order to benefit him in getting through the selection process since if the qualification and preference as laid down in the advertisement had been followed then it was likely that all the posts may have been filled up by the candidates having diploma or any higher degree and simple MBBS degree holders may not have been selected. It is further argued that the Civil Surgeon knowing the fact that his son-in-law was one of the candidates for the appointment ought to have withdrawn himself from the selection committee as his mere presence in the selection committee had the effect of vitiating the entire process of selection. In support of the said proposition learned counsel for the petitioner relies upon a Constitution Bench decision of the Supreme Court in the case of A.K.Kraipak vs. Union of India:AIR 1970 SC 150, in paragraphs 15 and 21 of which it has held as follows : “15. It is unfortunate that Naqishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the 7 selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naqishbund as a member of the selection board. He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney-General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. 8 21. It was next urged by the learned Attorney-General that after all the selection board was only a recommendatory body. Its recommendations had first to be considered by the Home Ministry and thereafter by the U.P.S.C. The final recommendations were made by the U.P.S.C. Hence grievance of the petitioners have no real basis. According to him while considering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or not. We are unable to agree with the learned Attorney-General that the recommendations made by the selection board were of little consequence. Looking at the composition of the board and the nature of the duties entrusted to it we have no doubt that its recommendations should have carried considerable weight with the U.P.S.C. If the decision of the selection board is held to have been vitiated, it is clear to our mind that the final recommendations made by the Commission must also be held to have been vitiated. The recommendations made by the Union Public Service Commission cannot be disassociated from the selections made by the selection board which is the foundation for the recommendations of the Union Public Service Commission. In this connection reference may be usefully made to the decision in 1967-2 QB 864 (supra).” He further relies upon the decision of a four Judges Bench of the Supreme Court in the case of Ashok Kumar Yadav vs. State of Haryana : (1985)4 SCC 417 in which relying upon A.K.Kraipak’s case (supra) it was held in paragraph 18 of the decision as follows : “18. We must straightaway point out that A.K.Kaipak case is a landmark in the development of administrative law and it has contributed in a large 9 measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in the decision which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a Selection Committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the Selection Committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection…………………..” It is pointed out by learned counsel that in Ashok Kumar Yadav’s case the Supreme Court had only made a distinction in the case of Public Service Commission set up under the provisions of the Constitution, making an exception with respect to the same, and holding that whenever a close relative of a Member of the Public Service Commission is appearing in the interview such Members must only withdraw from the process of interview and selection of such candidate and must not take part as a Member of the Committee to judge the merit of the said candidates and 10 even give marks to him. But so far as other Selection Committees are concerned, with regard to them the law was upheld that when a close relation of a Member of such Selection Committee is appearing as a candidate at the interview he must altogether withdraw from the entire selection process and not take any part for the selection of the candidates. Failure to do so according to the Apex Court would vitiate the selection made on account of a reasonable likelihood of bias affecting the process of selection. In the counter affidavit filed on behalf of the respondent no.6 Dr.Narendra Nath Sharma apart from the denial of the allegation that he was highly interested for appointment of his son-in- law it has been sought to justify the action of the Selection Committee on the ground that there were other members like the District Magistrate- cum-Chairman, Head of the Departments of Gynecology, Pediatrics, Associate Professor of Department of Anesthesia, District Welfare Officer and District Immunization Officer who were the members of the Selection Committee and 11 thus the allegation of influencing the decision of the Committee is baseless and concocted. Learned counsel for the State supports the stand taken in the counter affidavit and also the reasons mentioned in the impugned order that the selection committee was justified in excluding the candidates who were not having degree/diploma of area other than the four advertised area of specialization for the purpose of grant of preference. So far as the question of qualification is concerned, the authorities cannot be permitted to interpret the advertisement in a manner which is not borne out from the advertisement itself. There is nothing in the advertisement that diploma or higher degree had to be in one of the four areas of specialization mentioned therein rather, as pointed out by learned counsel for the petitioner, the first round of walk-in interview having been held for the purpose of selection of the candidates having those areas of specialization and yet several posts having remained vacant, in the second round with respect to the qualification and giving of preference it was clearly mentioned in the said advertisement 12 that MBBS degree holders who had additional diploma or any other higher degree would be given preference and there was no mention in the advertisement that the diploma or degree had to be in one of the four areas of specialization of General Surgery, Anesthesia, Pediatrics or Gynecology. Moreover in the second preference the word mentioned is “any other higher degree” and thus the same cannot in any case relate to one of the four areas of specialization. Clearly it appears that an attempt has been made by the respondent authorities, for the reasons best known to them, to interpret the advertisement in a manner which was not borne out from the advertisement itself. The authorities are required to act in terms of the advertisement and not create any further condition as the same is not permissible since it would not be known to the candidates who applied for the purpose of selection in terms of the said advertisement. Thus, the action of the authorities in interpreting the advertisement in a manner which is not borne out by the advertisement itself is impermissible and illegal and is to be deprecated. 13 In the context of the present case there appears to be substantial force in the submission of learned counsel for the petitioner that the advertisement had been given the aforesaid interpretation only to benefit the son-in-law of respondent no.6. In any case, as has been laid down by the Supreme Court in A.K.Kraipak’s case(supra) and reaffirmed in Ashok Kumar Yadav’s case(supra), it is evident that the mere participation of the Civil Surgeon-cum-Chief Medical Officer, Darbhanga in the selection committee when his son-in-law was a candidate in the process of selection has vitiated the entire selection process and the same is fit to be set aside. It was clearly held in the aforesaid cases that a person having a personal interest in the selection process, either of his own or on account of a close relative being a candidate for selection, ought not to take any part in the selection process and it is not sufficient that he withdraws when the interview of his close relation is taking place. His mere participation with respect to other candidates even if he has withdrawn himself during the interview of his 14 relation would vitiate the selection process. In the present matter it is not even the stand of the respondents that respondent no.6 had withdrawn from the interview when his son-in-law had appeared. Thus, on a consideration of the facts and circumstances of the case and the legal position, as discussed above, it is evident that the impugned order dated 6.7.2007 passed by the respondent no.3, Executive Director, State Health Society is contrary to law. It is, accordingly, quashed. The selection process on the basis of the advertisement dated 4.1.2007 was clearly vitiated by the presence of respondent no.6. However, it is pointed out that the appointments had been made on a contract basis for 11 months which has already expired and it is also pointed out that during the subsequent selection process against another advertisement the petitioner has been appointed on a similar post. In the said circumstances, no further order is required to be passed with respect to the selection made pursuant to the advertisement dated 4.1.2007. However, the respondent authorities are directed 15 to ensure that such acts on the part of the authorities must not be repeated and they are directed to ensure that the concerned official informs the higher officials if any of their close relatives are candidates for such interviews and in such circumstances another person should be nominated in the selection committee in their place. The writ application is, accordingly, allowed to the extent indicated above with cost quantified at Rs.5000/-. (Ramesh Kumar Datta,J.) spal/