MJC No.1750 OF 2008 PRAMOD KUMAR SON OF LATE LAL BIHARI PRASAD, RESIDENT OF VILLAGE- BHOUAR, P.O.- BIRNAWAN, P.S. KASHICHAK, DISTRICT- NAWADA. Versus 1. STATE OF BIHAR 2. DEEPAK KUMAR, DEPARTMENT OF HEALTH THROUGH ITS COMMISSIONER-CUM-SECRETARY, NEW SECRETARIAT, PATNA-1 3. DR. SMT. GEETA PRASAD, DIRECTOR IN CHIEF, DEPARTMENT OF HEALTH, NEW SECRETARIAT, PATNA-1 4. SRI ANIL KUMAR SINHA, BIHAR STAFF SELECTION COMMISSION THROUGH CHAIRMAN, BIHAR SELECTION COMMISSION, NEAR VETENERY COLLEGE, SHEIKHPURA, PATNA with CWJC No.3107 oF 2009 PRAMOD KUMAR SON OF LATE LAL BIHARI PRASAD, RESIDENT OF VILLAGE- BHOUAR, P.O.- BIRNAWAN, P.S. KASHICHAK, DISTRICT- NAWADA. Versus 1. STATE OF BIHAR 2. DEPARTMENT OF HEALTH THROUGH ITS COMMISSIONER-CUM- SECRETARY, NEW SECRETARIAT, PATNA-1 3. DIRECTOR IN CHIEF, DEPARTMENT OF HEALTH, NEW SECRETARIAT, PATNA-1 4. BIHAR STAFF SELECTION COMMISSION THROUGH CHAIRMAN, BIHAR SELECTION COMMISSION, NEAR VETENERY COLLEGE, SHEIKHPURA, PATNA with MJC No.1278 oF 2009 BRAJ BHUSHAN KUMAR SON OF GUPTESHWAR SHARMA, RESIDENT OF MOHALLA PROFESSOR COLONY, P.S. TOWN, DISTRICT- JEHANABAD. Versus 1. STATE OF BIHAR 2. SRI DEEPAK KUMAR, SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. DR. SMT. GEETA PRASAD, DIRECTOR, HEALTH SERVICES, BIHAR PATNA 4. JANARDAN PRASAD SINGH, THE SECRETARY, BIHAR STAFF SELECTION COMMISSION, SHEIKHPURA, PATNA with MJC No.1552 oF 2009 - 2 - MANINDRA KUMAR SON OF SRI DAYANAND PODDAR, RESIDENT OF VILLAGE KHARIK, P.O. KHARIK BAZAR, P.S. & BLOCK- KHARIK, DISTRICT- BHAGALPUR Versus 1. STATE OF BIHAR 2. SRI PRATAP SHARMA, THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA 3. SRI DR. DHATRUGHAN PRASAD SINGH, THE DIRECTOR-IN- CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, PATNA 4. SMT. GEETA PRASAD, THE DEPUTY DIRECTOR, HEALTH SERVICES, GOVT. OF BIHAR, PATNA 5. SRI ANIL KUMAR SINHA, THE CHAIRMAN/SECRETARY, BIHAR STAFF SELECTION COMMISSION, NEAR VETENERY COLLEGE, PATNA With M.J.C. No. 3067 of 2009 NAGENDRA KUMAR SON OF LATE RAM JATAN SINGH, RESIDENT OF VILLAGE MURLICHAK P.O.- B.V.COLLEGE, P.S. GARDANIBAGH, DISTRICT- PATNA VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT BUILDING, PATNA 2. Mr. ANUP MUKHERJI, THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT BUILDING, PATNA 3. Mr. ANIL KUMAR SINHA, SECRETARY STAFF SELECTION COMMISSION, PATNA 4. Mr. C.K.MISHRA, SECRETARY-CUM-COMMISSIONER, HEALTH, GOVERNMENT OF BIHAR, NEW SECRETARIAT BUILDING, PATNA WITH M.J.C. NO. 1292 OF 2008 RAVI BHUSHAN KUMAR SON OF GUPTESHWAR SHARMA RESIDENT OF MOHALLA PROFESSOR COLONY P.S. TOWN, DISTRICT- JEHANABAD. Versus 1. THE STATE OF BIHAR 2. SRI DEEPAK KUMAR, SECRETARY HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. Dr. SHREEMATI GEETA PRASAD, THE DIRECTOR HEALTH SERVICES, BIHAR, PATNA 4. JANARDAN PRASAD SINGH, THE SECRETARY STAFF SELECTION COMMISSION, SHEIKHPURA, PATNA AND M.J.C. NO. 1293 OF 2008 ARUN KUMAR SON OF YADUNANDAN SINGH RESIDENT OF VILLAGE GANGABIGHA, P.S. OBRA DISTRICT- AURANGABAD. VERSUS 1. THE STATE OF BIHAR - 3 - 2. SRI DEEPAK KUMAR, SECRETARY HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. Dr. SHREEMATI GEETA PRASAD, THE DIRECTOR HEALTH SERVICES, BIHAR, PATNA 4. JANARDAN PRASAD SINGH, THE SECRETARY STAFF SELECTION COMMISSION, SHEIKHPURA, PATNA ----------- For The Petitioners : Mr. Rajendra Prasad Singh, Sr. Advocate Mr. B.K.BARIAR, Advocate Mr. Shankar Kumar, Advocate Mr. Jitendra Kumar Roy, Advocate For The Respondents : Mr. P.K.Shahi, Advocate General, Bihar Mr. S.K.GHOSE, Addl. Advocate General No.2 Mr. S.S.Sundaram, Advocate **** PRESENT THE HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J. All the above cases involving the matter relating to the selection and appointment of Pharmacists in different hospitals/health centers of the State Government, and as such at the request of the parties, have been heard together and are being disposed of by this common order. The background of the matter is that in the hospitals/health centers of the State Government there were very few Pharmacists working. Consequently, large numbers of vacancies were available to be filled up by the qualified pharmacists. The State Government for whatsoever reason could not appoint the pharmacists who were available in good numbers and in need for such appointment. In the above situation some of such person seeking appointment approached this Court through a - 4 - writ petition vide C.W.J.C. No. 4302 of 1998 which was disposed of as per the order dated 21.07.1999 (Annexure- 2 of the C.W.J.C. No. 3107 of 2009) directing the State Government to initiate the process of appointment and complete the same by appointing the eligible persons on the post of pharmacists within a period of one year. The State Government in the department of Health pursuant to the said order of the Court issued an advertisement in the newspaper vide Advertisement No. 22/Pharma/1/99 dated 25th January, 2000 (Annexure-E of I.A. No. 844 of 2009 in M.J.C. No. 1750 of 2008) inviting applications from the candidates who fulfils the prescribed academic and technical qualifications. Applications received. Unfortunately, the matter remained pending. In the meantime, the State of Bihar got bifurcated with the creation of the State of Jharkhand. Thereafter either on the ground of re-determination of the number of vacancies available to the State after its bifurcation or the authority who will be entrusted with the job of selection of the eligible candidates and recommending to the State Government for their appointment, the matter again remained hanging for years. The applicants approached this Court through a writ application vide C.W.J.C. No. 11405 of 2004 seeking a direction of this Court that in terms of the above advertisement, the department of - 5 - Health, Government of Bihar, be directed to make appointment and issue necessary appointment letter in favour of the candidates. Counter affidavits followed by several affidavits as also separate counter affidavit have been filed on behalf of the Bihar Staff Selection Commission. During the pendency of the writ application another advertisement was issued by the Bihar Staff Selection Commission (hereinafter referred to as the ‘commission’) inviting applications from all eligible candidates for appointment on the post of pharmacists. A controversy arose as the petitioners stick to the stand that in terms of the order of this Court passed on 21.07.1999 (Annexure-2) the State Government is obliged to complete the process of appointment in terms of the advertisement No. 22/pharma/1/99, and as such, the State is further obliged to consider the candidature of such applicants separately who made application pursuant to the aforesaid advertisement. The matter was heard on several dates, and ultimately, the State agreed to hold a separate selection test for the applicants who sought their appointment in terms of the aforesaid advertisement. In this background the respondent authorities of the Health Department were directed to complete the process of appointment and issue necessary - 6 - appointment letters to the selected candidates who made application pursuant to the said advertisement within a period of six months by order dated 14.11.2007 passed in C.W.J.C. No. 11405 of 2004 and other analogous cases. Unfortunately, the matter got again delayed the Director- in-Chief, Department of Health constituted a three members committee to scrutinize the candidature of the applicants, but after one or two meetings the Committee expressed its inability to scrutinize the eligibility of the candidates, and as such, the State Government requested the Commission to carry on the job of selection and recommending the eligible candidates to the State Government for their appointment. Several correspondences made between them and in the meantime, the time allowed by this Court to complete the process of appointment within a period of six months by its order dated 14.11.2007 passed in C.W.J.C. No. 11405 of 2004 and analogous cases expired. The application for extension of time by the State to complete the process by another period of six months also expired by the efflux of time, the same was accordingly dismissed as infructuous. In the meantime, after good deal of correspondence between the State and the Commission the latter who initially refused to carry out the job of selection and recommendation with respect to the applicants of - 7 - advertisement no. 22/pharma/1/99 later on agreed and a communiqué dated 03.02.2009 in the news paper was issued informing applicants of the advertisement no.22/pharma/1/99 (Annexure-6) regarding proposed written test on a date to be notified separately vide Annexure A to the I.A. No. 844 of 2009 filed in M.J.C. No. 1750 of 2008. The petitioners vehemently opposed such action of the Commission on the ground that in terms of the above advertisement the appointment have to be made on the basis of the interview alone and any other test for selection including written examination can be resorted to only in case of number of eligible candidates are excessively large and as such, without taking into consideration the total number of eligible candidates, the written test sought to taken for selection in question is not permissible being contrary to the terms of the advertisement. Petitioners filed writ petition vie C.W.J.C. No. 3107 of 2009 challenging the action of the Commission. Since the matter in issue being virtually common, therefore at the request of the parties, the above writ application was heard along with the contempt applications. According to the petitioners the total number of applications received was 3499 which is not in dispute, and the total number of eligible candidates i.e. who are matriculate with diploma in pharmacy is 761 - 8 - only whereas admittedly number of vacancies is 771, therefore, in terms of the advertisement the eligible candidates were only required to be interviewed and on being found suitable, appointments are to be made. However, according to the State Government, as stated in its 4th supplementary show case in M.J.C. No. 1750 of 2008, the numbers of eligible candidates are more than 1800, taking into consideration the number of candidates who are diploma holders as well graduates in pharmacy as also the candidates of Jharkhand State. From the above summarization of relevant facts and the stand of the parties, the controversy between them is with regard to the number of eligible candidates and holding of the written examination. According to the petitioners, the scrutiny of the candidates, selection and appointments have to be carried out by the authorities of Health Department, Govt. of Bihar who issued the advertisement in question and invited applications. Mr. Rajendra Prasad Singh, learned Senior counsel leading the submissions of the petitioners assisted by the learned counsels appearing in the other cases, submitted that the candidates, who are matriculate and holding the diploma in pharmacy are only eligible candidates to be considered. Number of such candidates are 761 only whereas the number of - 9 - vacancies are 771 and as such after holding the interview of the candidates considering their suitability, the State is obliged to appoint the selected candidates without resorting to any other mode of selection including written test in terms of clause 1 read with clause 7 of the advertisement. On the other hand, Mr. S.K.Ghose, learned Additional Advocate General No.2 appearing for the State submitted that the State Government following the direction of this Court took steps for scrutiny of the applications received from the candidates by constituting a Committee of senior officials of the Health Department as per memo nos. 744(4) dated 24.04.2008, 920(4) dated 23.05.2008 and 962(4) dated 03.06.2008 as contained in Annexure- A (series) to the supplementary show cause filed on behalf of the opposite party nos. 2 & 3 in M.J.C. No. 1750 of 2008. The committee, however, after doing some work expressed its inability to scrutinizing the applications. The State, therefore, requested the Commission to carry on the job of scrutiny, selection and recommending the name of the candidates to the State Government for appointment. After several correspondences the Commission who initially declined the request later on however, agreed to carry on the work of scrutiny, selection and recommending the names of - 10 - the candidates for appointment. It was, accordingly, submitted that the State Government did its best to discharge its obligation to complete the process of appointment as directed by the court. However, the petitioners are getting the matter delayed by obtaining the interim order staying the press communiqué issued by the Commission with regard to holding of the written test which could have been done after scrutiny of the applications. Mr. P.K. Shahi, learned Advocate General assisted by the learned Advocate Mr. S.S. Sundaram appearing for the Staff Selection Commission as also protecting the interest of the State Government as well as the interest of the candidates, submitted that the petitioners have adopted an unreasonable approach by objecting the mode of selection. It is submitted that in view of the fact that the number of eligible candidates are more than 1800 approximately, and as such, it is not correct on the part of the petitioners to submit that no other scrutiny test including the written test can be resorted for selection. According to Mr. Shahi the mode of selection permissible under the law can not be interfered with by the applicants seeking appointment. In course of hearing on being enquired by the Court about the expected time by which the scrutiny of eligible candidates - 11 - are likely to be completed, Mr. Sundaram learned counsel appearing for the Commission, after seeking instructions from the Chairman of the Commission, informed the Court that the scrutiny of the applications of the eligible candidates could be completed only by the end of January, 2010 as the Commission is presently engaged in the process of selection of candidate of some other services. In reply the learned counsels for the petitioners submitted that it is well settled and adopted by all leading selection agencies to the effect that the number of candidates called for in the interview are 3-4 times the number of available vacancies. Learned counsels for the petitioners submits that admittedly the number of vacancies are 771 and the number of eligible candidates, and even according to the State, are about 1800 and even in the event, three time the number of candidates are called for the interview, it would be less than the number of eligible candidates indicated by the State in its affidavit. Therefore, in terms of the clause 7 of the advertisement, compelling the candidates to appear in the written test is contrary to the terms of advertisement which is not permissible under the law. After hearing the submissions of the parties and their respective pleadings as also affidavits, in my - 12 - opinion, the controversy, as to on whose account the matter of appointment got delayed for several years, need not be gone into at this stage. During the course of hearing, all the parties expressed their sincere concern that the paramount need of the hour is the appointment of the eligible candidates at the earliest since by now the delay has occasioned roughly for about ten years from the date of the advertisement. So far as the petitioners are concerned the primary concern is of their appointment without any further delay, and as such, their apprehension that any departure of the procedure for selection and appointment other than one laid down in the advertisement will cause much hardship and further undue delay, may not be unfounded. So far as the State Government is concerned it is on record that they did take steps for appointment, however the process could not be completed on account of various factors including the bifurcation of the State of Bihar, re- determination of the vacancies, initiating the process of scrutiny of the applications by the department itself followed by the correspondence entrusting the job of scrutiny, selection and recommendation for appointment to the Commission even during the pendency of the writ petition from which it can not be said that they were not taking steps for appointment. However the promptness - 13 - and the seriousness in completing the process of selection and appointment within the time, as indicated in the orders of this Court, were lacking much in view of the admitted position that the hospitals and health centers of the State were running with a very few number of pharmacists and consequently people at large continued to suffer. The Commission, an agency of the State, could have avoided much undue delay in accepting the job of selection and recommendation which the State had been requesting through its several letters. The initial stand of commission that in terms of section 10 of the Staff Selection Commission Act, 2002 the Commission is not permitted under the law to carry on the job of selection with respect to an advertisement issued by the State Government or Bihar Public Service Commission was not correct. In terms of the aforesaid provisions it is only the advertisement which was issued by the Bihar Public Service Commission, the Staff Selection Commission could not go ahead with the selection or appointment against such advertisement. It does not cover the cases in which the advertisements have been issued by the State Government or the authority other than the Bihar Public Service Commission. Be that as it may, this Court is not inclined to - 14 - go further into the matter since the Commission later agreed to carry on the work of scrutiny, selection and recommendation for appointment. As regard the mode of selection The relevant clause 1 & 7 of the advertisement is quoted below : 1) vkosnu i= Hkjus ls iqoZ vH;FkhZ foLrqr foKkiu dk v?;;u vo’; dj ysa ,oa muds vuqlkj gh lrZdrk ls vkosnu Hkjsa A =qfViwq.kZ rFkk vk/ks v/kwjs vkosnu fujLr dj fn;s tk;saxs rFkk bl laca/k esa dksbZ fuosnu Lohdkj ugha fd;k tk;sxk A 2) vfuok;Z 'kS{kf.kd ;ksX;rk& izosf’kdksmfRr.kZ eSfV`d ,oa ekU;rk izkIr QkesZlh laLFkku ls fMIyksek rFkk fcgkj QkesZlh dkWafly ls fucaf/kr gksuk vfuok;Z gS A 7 fu/kkZfjr vfuok;Z ;ksX;rk,a U;wure gSa vkSj dsoy bu ;ksX;rkvksa dks j[kus ls gh mEehnokj lk{kkRdkj gsrq cqyk;s tkus ds fy;s l{ke ugha gks tkrs A tc bl foKkiu ds vk/kkj ij izkIr vkosnu i+=ksa dh la[;k vf/kd gks vkSj funs’kky; LokLF; lsok,a ds fy;s mu lHkh mEehnokjksa dk lk{kkRdkj djuk lqfo/kktud laHko ugha gks rks funs’kky; LokLF; lsok,a foKkiu esa fu/kkZfjr U;wure ;ksX;rkvksa vkSj vuqHko esa mPprj ;ksX;rk rFkk vuqHko j[kus ;k lac) {ks= esa vuqHko j[kus ds vk/kkj ij ;k ,d Ldzhfuax ijh{kk vk;ksftr djds mlds vk/kkj ij lk{kkRdkj gsrq mEehnokjksa dh ;Fkksfpr lhek dks de dj ldrk gS A On conjoint reading of the aforesaid clauses of the advertisement it is manifest that the minimum - 15 - qualification for appointment of Pharmacist in question is matriculate with diploma in pharmacy and having got registered with the Bihar State Pharmacy Council. The qualification matriculate with diploma in pharmacy is the minimum, and as such, candidates possessing higher technical qualification can not be said to be ineligible. Therefore, the candidates have higher qualification are equally entitled to receive consideration for the appointment in question in terms of the advertisement. On considering the aforesaid clause 7 it is also manifest that the selection and appointments of the eligible candidates are to be made on the basis of the interview of the candidates suitable for the job. The necessity of adopting any other mode of screening including written test is called for only in case the number of candidates are large in number and interview of such large number of candidates may not be conveniently possible without down sizing the number of eligible candidates. It is relevant to note the fact that as per the stand of the State, the total number of candidates is about 1800 although according to the petitioner the eligible candidates are 761 only. Therefore, even accepting the number of eligible candidates as indicated by the State, the candidates for interview calling even three times of number of vacancies which are 771, a fact not in dispute - 16 - the number of candidates can not be said to be large in number and may not be possible to hold interview of the candidates conveniently. Therefore, in terms of the advertisement in question the selection and appointment in question is to be made on the basis of the interview and no written examination is called for in view of the facts of the present case. In view of the discussions made above, the interim order passed by this Court dated 20.05.2009 passed in C.W.J.C. No. 3107 of 2009 stands vacated and the press communiqué dated 06.05.2009 as contained in Annexure-F of the interlocutory application to the said writ application is quashed. This Court in the interest of justice, passes the following orders/directions : (I) The Chairman of the Staff Selection Commission, Bihar Patna shall ensure that the scrutiny of the applicants who made applications pursuant to Advertisement no. 22/pharma/1/99 dated 25.01.2000 for appointment on the post of pharmacists is completed by 30th of January, 2010. (II) Immediately upon the scrutiny and preparation of the list of eligible candidates in terms of the advertisement, the candidates should be issued interview letters indicating the date of interview. - 17 - The interview of the eligible candidates be completed by 15th of March 2010. (III) The list of selected candidates recommended for appointment shall be sent to the Commissioner- cum-Secretary, Health Department, Govt. of Bihar, Patna so as to reach him by 30th of March, 2010. The Commission shall publish the list of selected candidates for appointment at least in two of the daily newspapers published from Patna. (IV) The Commissioner-cum-Secretary, Department of Health, Govt. of Bihar, Patna shall ensure that the appointment letters in respect of the selected candidates are issued indicating the place of their postings so that the appointed candidates may join their respective posts by 30th of April, 2010. All the above contempt applications as also writ application are, accordingly, disposed of with the above observations/directions. The Patna High Court The 23rd Day of December, 2009 Manish/N.A.F.R. (Shailesh Kumar Sinha, J.)