IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8986 of 2011 1. Dr.Bibhu Prasad, son of late Shambhu Sharan Prasad, 207, Ramchandra Lochan Vatika, Mohanpur, Punaichak, Patna-23 at present posted as Senior Resident (Medicine), N.M.C.H, Patna 2. Dr. Nagendra Mohan Sinha, son of late Bishwanath Sahay, resident of 201, Bhola apartment, 162, Anandpuri, West Boring Canal Road, Patna, at present posted as Senior Resident (Medicine), NMCH, Patna. 3. Dr. Mukul Kumar, son of Sri KDS Srivastava, resident of D/20, Vrindavan Apartment, Malahi Pakari, Kankerbagh, Patna-20, at present posted as Senior Resident (Medicine) NMCH, Patna. 4. Dr. Bishwajit Prasad Azad, son of late Dr. Basudeo Prasad Azad, resident of Renu-Basu Villa, Gola Road, Danapur Cantt. Patna, at present posted as Senior Resident (Medical) NMCH, Patna. 5. Dr. Sanjay Kumar, son of SBP Singh, resident of Amba Bhawan, SDO Lane, Bhadra Ghat, Gulzarbagh, Patna, at present posted as Senior Resident (Plastic Surgey), NMCH, Patna. 6. Dr. Krishna Prasaad, son of late Hira Lal Rajak, resident of MIG-216, Hanuman Nagar, Kankerbagh, Patna-20, at present posted as Senior Resident (Medicine), NMCH, Patna. 7. Dr. Shailendra Kumar, son of late D. Baitha, resident of HIG Flats, 4/12, Bahadurpur, Patna-26, at present posted as Senior Resident (Pediatrics) NMCH, Patna. 8. Dr. Sudama Prasad, son of late Indradeo Prasad, resident of B- 503, Nandan Tower, Colony More, Kankerbagh, Patna-20, at present posted as Senior Resident (Anesthesiology) NMCH, Patna. 9. Dr. Gurumukh Prasad, son of Sri Chandradeo Prasad, resident of MIG-104, Kankerbagh Colony, Patna-20, at present posted as Senior Resident (Anesthesia) NMCH,Patna. 10. Dr. Arjun Prasad, son of Sri Ramswaroop Prasad, resident of 303, Deo Complex, Munna Chowk, Kankerbagh, Patna-2-, at present posted as Senior Resident (Anesthesia), NMCH,Patna. 11. Dr. Bindeshwar Priyadarshi, son of late Jaga Ram, resident of East Indira Nagar, Road No.1, Kankerbagh, Patna-20, at present posted as Senior Resident (Orthopedic), NMCH, Patna. 12. Dr. Pranay Raj Sharan Sinha, son of late Siya Sharan Sinha, resident of D-404, Charminar Apartmens, Road No.12, 2 Rajendra Narar, Patna, at present posted as Senior Resident (Plastic Surgery), PMCH, Patna. 13. Dr. Suryadeo Prasad Singh, son of late Ramashish Sngh, resident of 44/19, Bahadurpur Housing Colony, Amarnath Temple Road, Kankarbagh, Patna-26 at present Senior Resident (Surgery), PMCH, Patna. 14. Dr. Krishna Kuamr, son of Sri Murali Manohar, permanent resident of Pali Road, Naga Path, Dehri-on-sone, P.O. and P.S. Dehri-on-sone, District- Rohtas and at present residing at Quarter No.20, MCPW, PMCH, Patna and posted as Senior Resident (Orthopedic), PMCH, Patna………. Petitioners Versus 1. The State Of Bihar through the Principal Secretary, Department of 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 Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 4. Deputy Secretary to the Government, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 5. Principal, Patna Medical College and Hospital, Patna. 6. Principal, Nalanda Medical College and Hospital, Patna. 7. The Bihar Public Service Commission through its Secretary, Bailedy Road, Patna. …………….. Respondents with CWJC No.9583 of 2011 1. Dr.Bijoy Kumar, son of Sri Saryu Prasad Mandal, resident of 0-73, Doctor’s Colony, Lohiya Nagar, Kankarbagh, Patna-20 and at present posted as Senior Resident (Anesthesia) PMCH, Patna. 2. Dr. Vijayendra Prasad, son of late Khublal Prasad, resident of 5/A30, North S.K. Puri, Patna-13 and at present posted as Senior Resident (Anesthesia), PMCH, Patna. 3. Dr. Moti Lal Das, son of late Ramchandra Das, resident of Flat No.304, Om Sai Villa, East Tilak nagar, Kankarbagh, Patna 20 and at present posted as Senior Resident (Anesthesia), PMCH, Patna. 4. Dr. Ajay Kumar Singh, son of late Rameshwar Prasad Singh, resident of House No.16, Road No.11 (Gokul Path), Patel Nagar, Patna-23. and at present posted as Senior Resident (Anesthesia), PMCH, Patna. 3 5. Dr. Sanjay Kumar Gupta, son of late Bal Krishna Prasad, resident of Langertoli (Cheek Lane), Patna-4 and at present posted as Senior Resident (Plastic Surgery) PMCH, Patna. 6. Dr. Ram Raj Ravi, son of late Bhola Ram resident of Mayur Vihar, Kumhrar, Patna-26 and at present posted as Senior Resident (Medicine), PMCH, Patna. 7. Dr. Binay Kumar, son of Sri Satyanarain Gupta, resident of 206/B-Mohani Aparetments, Near Shalimar Sweets, Kankarbagh, Patna.20. 8. Dr. Binod Prasad Singh, son of late Gajadhar Prasad Singh, resident of H4, Doctor’s Colony, Kankerbagh, Patna-20 and at present posted as Senior Resident (Medicine), PMCH, Patna. 9. Dr. (Smt.) Kiran Suman, daughter of late Dr. Ram Krishna Ram, resident of Chitragupta nagar, Kankarbagh, Patna.-20 and at present posted as Senior Resident (Obstetrics and Gynecology), PMCH, Patna. 10. Dr. Rajmani Prasad, son late Surat Singh, resident of 58, Nehru Nagar, Patna-13 and at present posted as Senior Resident (Surgery), NMCH, Patna. 11. Dr. Anil Varma, son of late Kashi Nath Varma, resident of A/245, Peoples Co-operative Colony, Kankarbagh, Patna-20 and at present posted as Senior Resident (Surgery),Jawaharlal Nehru Medical College and Hospital, Bhagalpur. 12. Dr. J.P. Sinha, son of late Sudarshan Prasad Singh, resident of Cheena kothi, Vidyapati Marg, Patna-1 and at present posted as Senior Resident (Paediatrics), PMCH, Patna. 13. Dr. Arjun Prasad, son of Ramswaroop Prasad, resident of 303, Deo Complex, Munna Chak, Kankarbagh, Patna-20 and at present posted as Senior Resident (Anesthesia) NMCH, Patna. 14. Dr. Pradip Kumar Verma, son of late Surya Kant Prasad, resident of House No.Ny/35, Jhunjhun Mahal Road, New Yarpur, Patna-1 and at present posted as Tutor, Department of Anatomy, PMCH, Patna. Versus 1. The State Of Bihar through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat. 2. The Principal Secretary, Deparment of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 3. The Additional Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 4. Deputy Secretary to the Government, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 5. Principal, Patna Medical College and Hospital, Patna. 4 6. Principal, Nalanda Medical College and Hospital, Patna. 7. Principal, Jawaharlal Nehru Medical College and Hospital, Bhagalpur. 8. The Bihar Public Service Commission through its Secretary, Bailey Road, Patna……………… Respondents with CWJC No.12659 of 2011 1. Dr.Ramnandan Prasad Sinha, S/o late Muralidhar Narayan Prasad, resident of Mohalla- B/22, Vijay Nagar, P.S. Patrakar Nagar, Patna, District- Patna. 2. Dr. Sunil Kumar Sinha, s/o Shri Mahabir Prasad Sinha, resident of Mohalla-6H/14, Bahadurpur Colony, P.S.Agamkuan, District- Patna. 3. Dr. Ashok Kumar Verma, S/o late Nawal Kishore Lal Verma, resident of 102, Gauri Shankar Apartment, Kurji, Sadaquat Ashram, P.S. Kurji, District- Patna………. Petitioners Versus 1. The State Of Bihar through the Principal Secretary, Department of 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 Director, Department of Medical Education and Family Welfare, Government of Bihar New Secretariat, Patna. 4. Deputy Secretary to the Government, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 5. Principal, Patna Medical College and Hospital, Patna. ……………….. Respondents. with CWJC No.13590 of 2011 1. Dr.Vinod Kumar Mishra, S/o late Jugal Kishore Mishra, R/o- village-Barauni, Block No.2, P.S. Teghra in the district of Begusarai. 2. Dr. Dinesh Kumar Rajak, S/o late Gorakh Nath, R/o Mohalla- Doorukhi Gali, P.S. Pirbahore, District-Patna. 3. Dr. Md. Sarfaraz Alam, S/o late Abdullah Ansari, resident of Neelu Nursing Home, Chauhatta the Masjid, Near PMCH, P.S.Pirbahor in the District of Patna…………… Petitioners Versus 1. The State Of Bihar through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 5 2. The Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 3. The Additional Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 4. Deputy Secretary to the Government, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna. 5. Principal, Patna Medical College and Hospital, Patna. 6. Principal, Darbhanga Medical College & Hospital, Darbhanga. 7. Bihar Public Service Commission, through its Secretary, Bailey Road, Patna……………. Respondents. ----------- For the petitioners: Mr. Binok Kanth, Senior Advocate Mr. Akash Deep, Advocate (In CWJC Nos.8986 & 9583 of 2011) For the State: Mr. Ashok Kumar Keshari, AAG-XI Mr. Ujjawal Kumar Sinha, A.C. to AAG-XI (In CWJC No.8986 of 2011) Mr. Rakesh Kumar Samrendra, S.C.21 (In CWJC No.9583 of 2011) For the petitioners: Mr. Chandrashekhar, Senior Advocate Mr. Braj Nandan Kumar Tiwari, Advocate Mr. Kumar Devashish, Advocate ( In CWJC Nos.12659 & 13590 of 2011) For the State: Mr. Binay Kumar, A.C. to G.P.13 (In CWJC No.12659 of 2011) Mr. Pankanj Kumar, A.C. to G.A.8 (In CWJC No.13590 of 2011) For Intervenor: Mr. Chakrapani, Advocate ( In CWJC No.9583 of 2011) For the B.P.S.C.: Mr. Sanjay Pandey, Advocate ( In all cases) --------------- 4. 8.9.2011 Heard learned counsels for the petitioners and learned counsels for the State. All the four writ applications raise common issues and accordingly, they have been heard together and are being disposed of by this common order. 6 The writ applications were filed by the petitioners for a direction upon the respondents to consider and promote them as Assistant Professor against the posts earmarked under Rule 7 (iii) (c ) of the Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008 in accordance with Rule 6 Criteria (ii) read with Rule 7 (iii) (c ) of the said Rules with all consequential benefits. All the petitioners were initially appointed as Medical Officer on different dates from the year 1979 to 1997 in the Bihar State Health Service ( in short “B.S.H.S.”). The Health Service in Bihar prior to 1997 was an integrated cadre consisting of teaching and non-teaching posts. The teaching posts were categorized as Junior Teaching posts of Residents/ Registrars and Senior Teaching posts of Assistant Professor, Associate Professor, Professor and Principal. Prior to 1997, appointments to teaching posts were made from the Doctors of the Bihar State Health Services. In 1997, the State Government came out with new Rules known as the Bihar Medical Education Service Cadre and Appointment to its Cadre Posts Rules, 1997 framed under Article 309 of the Constitution of India, by which a separate teaching cadre was created. The posts of Residents/Registrars, were amalgamated to that of Lecturers known as Junior Teaching 7 posts, while the posts of Assistant Professor, Associate Professor and Professor were kept as Senior Teaching posts to be filed by promotion from the Junior Teaching post on the basis of seniority-cum- eligibility under Rule 8 (ii) of the Rules providing for appointment and promotion in the cadre. The entry into the cadre on the post of Lecturer was to be on the basis of competitive examination to be conducted by the Bihar Public Service Commission. The Rules were amended in 2003 under which the designation of Lecturer was replaced by that of Senior Resident for Clinical Departments and that of Tutor for non- clinical and para clinical Departments. Further, Rule 8 was amended and a new sub- rule (iii) was introduced which, taking into account the threat of de-recognition of the Medical Colleges of the State on account of posts of teachers remaining vacant for a long period of time or delay in following regular procedures, provided for a one-time appointment as a working arrangement from among the Medical teachers on the basis of seniority-cum- merit in their own pay scales on the recommendation of the Departmental Promotion Committee. It was further provided that in case proper candidate was not available for appointment under the working arrangement, then on the basis of contract the retired teacher of the same category could be appointed on the said post. 8 The said appointment under working arrangement/contract was to remain in force until regular appointments were made. The Rules again underwent an amendment on 22.3.2004 and apart from the amendments sub-rules (ii) (a) and (ii) (b) were added. Sub-rule (ii)(b) is relevant in connection with the present writ petitions, which is quoted herein below:- ¼¼d½ inksa dh fjfDr;ksa ,oa Hkkjrh; fpfdRlk ifj"kn }kjk fdlh fpfdRlk egkfo|ky; dh ekU;rk jn~n djus dh vka'kdk dh n'kk esa lgk;d izk/;kid] lg&izk/;kid rFkk izk/;kid ds fjDr inksa dks dk;Zdkjh O;oLFkk ds v/khu fpfdRlk f'k{kk lsok laoxZ ds O;fDr;ksa ls vkj{k.k&izko/kkuksa dk ikyu djrs gq, ojh;rk lg ;ksX;rk ds vk/kkj ij rFkk foHkkxh; izksUufr lfefr dh vuq'kalk ij muds gh osrueku esa Hkjk tk ldsxkA dk;Zdkjh O;oLFkk ds v/khu fu;qfDr gsrq mi;qDr fpfdRld f'k{kdksa dh vuqiyC/krk dh n'kk esa lafonk ds vk/kkj ij mlh Js.kh ds lsokfuo`Rr fpfdRld f'k{kdksa dks vkj{k.k&izko/kkuksa dk vuqikyu djrs gq, fu;qDr fd;k tk;sxkA¼ ¼¼[k½ inksa dh fjfDr ds dkj.k Hkkjrh; fpfdRlk ifj"kn }kjk fdlh fpfdRlk egkfo|ky; dh ekU;rk jn~n djus dh vk'kadk dh n'kk esa lhfu;j 9 jsthMsUV@V~;wVj ds fjDr inksa dks fcgkj LokLF; lsok laoxZ ds vgZrk izkIr fpfdRldksa ds chp ls ojh;rk lg ;ksX;rk ds vk/kkj ij ,oa vkj{k.k izko/kkuksa dk vuqikyu djrs gq, vkosnu vkeaf=r dj] Hkjk tk ldsxkA ¼x½ mDr dk;Zdkjh O;oLFkk@lafonk ds vk/kkj ij fu;qfDr dsoy fu;fer p;u rd tkjh jgsxh vkSj bl vk/kkj ij ojh;in ij fu;fer fu;qfDr ;k fdlh in dk foRrh; ykHk dk nkok vuqekU; ugha gksxkA By the aforesaid amendment, under Rule 8(ii) (b) (b) it was provided that if on account of vacancies in the posts there is apprehension of cancellation of recognition of the Medical Colleges by the Indian Medical Council then the vacant posts of Senior Residents/Tutors can be filled by the Bihar Health Service Cadre from the eligible Doctors of the Bihar Health Services Cadre on the basis of seniority-cum- merit after following the provisions of reservation policy and inviting applications. In the meantime, on 10.3.2004, an advertisement was issued by the Health Department, Government of Bihar for deputation on the post of Senior Residents/Tutors from amongst the Doctors of the State Health Services. Several of the 10 petitioners applied against the said advertisement, but according to the petitioners, no appointments were made in terms of the said advertisement and subsequently in the year 2005 and 2006 on the basis of panel prepared after following all the procedures, a number of petitioners were appointed on the posts of Tutors/Senior Residents in the Medical Colleges. Similar advertisements were also issued subsequently in the year 2006 onwards on the basis of which several petitioners applied and were appointed on the posts of Senior Residents/Tutors in the Medical Colleges, the last such appointments having been made till May, 2008. According to the petitioners, the appointments have been made pursuant to the newly amended Rule 8 (ii) (b) (b). However, the appointment letters stated that the appointments have been made for a period of one year or until regular appointments, whichever is earlier, on the basis of contract. It was further stated that after the period of one year was over or if regular appointments were made earlier, all the Doctors would be reverted to their original cadre. It was also provided that their salary and allowances, etc. in their original cadre shall remain protected. The appointment letter also provided that the provisions of 1997 Rules would continue to apply to the appointees. 11 As a matter of fact, however, the petitioners were not reverted to their original cadre and they have continued as Senior Residents/Tutors on the basis of extension granted from time to time, lastly till February, 2012. The petitioners through their Association represented against the mention of the word contract in their letters of appointment. A High Level Empowered Committee was also constituted by the Government by notification dated 30.6.2005 consisting of the Principal Secretary of the Personnel and Administrative Reforms Department as its Chairman, the Departmental Secretary and high Government Officials on the basis of the recommendation of the Fitment Committee, and the recommendations of the Empowered Committee was to be placed before the Government for approval without any further scrutiny by the Finance, Law or Personnel Departments. In the year 2008, the 1997 Rules were replaced by the Senior Resident/Tutor and Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008. Under the said Rules, the Bihar Medical Education Service Cadre was to comprise only of teachers starting at the level of Assistant Professor and above. The posts of Senior Residents/Tutors in the Government Medical Colleges were made tenure teaching posts 12 of four years duration. The appointment on the post of Senior Residents/Tutors was first to be filled up on the basis of 40% post from the Bihar State Health Services, 40% from the Doctors who have completed the P.G. Course (under Residency Scheme) from the State Medical Colleges and remaining 20% from Doctors who have obtained P.G. Course (Residency Scheme) from outside the State. So far as the post of Assistant Professor is concerned, appointment to the same is to be made from a panel prepared by the B.P.S.C. in accordance with the procedure laid down in Annexure-B of the Rules. The Officers of the State Health Service, who have already served as Senior Resident/Tutor for minimum three years in teaching stream may apply for the post of Assistant Professor. The criteria for selection is on the basis of marks obtained at different levels and also for original publications, etc. For Senior Residents/Tutors also the criteria of appointment is similarly on the basis of marks obtained at different examinations. It is, however, provided under Rule 6 Criteria (ii) that the previous non-tenure post of Senior Residents/Tutors held by Medical Teachers under the panel system and as per the provisions of 1997 Rules on regular basis shall be deemed to be vacant after they are promoted as Assistant 13 Professors and then only these posts would stand converted to tenure posts of four years duration. It is also provided by Rule 7 (iii) (c ) that in those subjects, where Senior Resident/Tutor appointed under earlier panel system or as per provision of 1997 Rules, are working, new appointment (under this rule) to the post of Assistant Professor shall be made after earmarking that much number of posts for promotion for all such working Senior Residents/Tutors. Rule 6 Criteria (ii) and Rule 7 (iii) (c ) are quoted below:- “6 Criteria (ii) The previous non-tenure post of Senior Residents/Tutors held by Medical Teachers under the panel system and as per the provisions of 1997 rules on regular basis shall be deemed to be vacant after they are promoted as Assistant Professors and then only these posts would stand converted to tenure posts of four years duration. 7 (iii) (c ) In those subjects, where Senior Resident/Tutor appointed under earlier panel system or as per provision of the 1997 Rules, are working, new 14 appointment (under this rule) to the post of Assistant Professor shall be made after earmarking that much number of posts for promotion for all such working Senior Resident/Tutors.” The case of the Senior Residents/Tutors was considered by the Empowered Committee of Secretaries which suggested an amendment to the 2008 Rules providing that the benefit so far as the Senior Residents/Tutors appointed from the State Health Service Cadre are concerned, in their case also they should be appointed as Assistant Professor on the recommendation of the Bihar Public Service Commission. The matter however, does not appear to have been considered by the Government and accordingly, the petitioners have approached this Court by filing the writ petitions. During the pendency of the writ petitions, the Bihar Public Service Commission has come out with an advertisement dated 20th July, 2011 for appointment on the post of Assistant Professor giving the total vacancies on the said post in different Departments as 394. Aggrieved by the same, as no posts were earmarked for the petitioner from the said posts, the petitioners 15 have also assailed the said advertisement by filing the interlocutory applications. Learned counsel for the petitioners submits that the petitioners have been regularly appointed after coming into force the 2004 Amendment Rules and after following the rules of reservation. The very mention of the word contractual in the appointment letters can have no relevance, as there is no provision under the said rules for contractual appointment on the post of Senior Residents and thus the mention of word contractual in their respective letters of appointment have to be ignored as being de hors the Rules. It is submitted that the word contractual has only been put in without reference to the actual position, as the petitioners were already Government servants working in the Bihar State Health Service and no fresh terms and conditions had been imposed upon them and only to limit their period for appointment to one year the said term has been used contrary to the statutory rules. It is submitted that Rule 8 (ii) (b) (b) of the 1997 Rules, as amended in 2004, does not lay down any such limitation on an appointment made under the said Rules and thus the executive authorities could not have acted contrary to the said Rules once they had considered the cases of the petitioners on the basis of the eligibility criteria as laid down 16 therein. It is further submitted that the State Government, as a matter of fact, conceded the same as none of the Senior Residents appointed by it was automatically sent back to the Bihar State Health Service on completion of one year term and they have continued on the said post since the year 2005 onwards till date and thus the use of the term contract and period of one year is nothing but mischievous, apart from being de hors the Rules and does not affect their status as regularly appointed Senior Residents under the concerned Rule. It is contended that even before the Medical Council of India during the course of inspection carried out by its team, the petitioners were held out to be legally and regularly appointed Senior Residents on the basis of which the Medical Colleges were saved from the threat of de-recognition by the Medical Council of India and they were also issued smart cards by the Medical Council of India as Senior Residents. Any attempt by the State to hold otherwise can only lead to the conclusion that the State Government has tried to defraud the Medical Council of India while holding out before it that the petitioners are Senior Residents/ Tutors in the Medical Colleges. It is further submitted by learned counsel that although 17 the appointment letters state that the benefit of experience shall not accrue to the petitioners but ultimately the State Government has accepted that the petitioners would be entitled to the benefit of experience for the period they have served as Senior Residents. The further submission of learned counsel for the petitioners is that the State Government cannot act contrary to the statutory rules and any such action like the statements made in the letters of appointment have to be read in keeping with the statutory rules. Learned counsel for the petitioners urges that if there is statute or rules laying down the manner in which the power conferred is to be exercised then it has to be exercised in that very manner and not in any other way as laid down in a catena of decisions of the Apex Court accepting the proposition laid down by the House of Lords in the matter. It is further contended that even the Empowered Committee of Secretaries had come to the conclusion that the Senior Residents like the petitioners are entitled to the benefit of a post being earmarked for them as Assistant Professor but due to the action of certain vested interests the same could not be adopted or acted upon . According to learned counsel this clearly 18 shows that the equity is also in favour of the petitioners. On the basis of the same, it is submitted by learned counsel for the petitioners that their appointment as Senior Residents has to be taken as regular appointment under Rule