C. W. J. C. No. 7150 of 1997 With C. W. J. C. No. 1546 of 1998 In the matter of applications under Article 226 of the Constitution of India. CWJC No. 7150 of 1997 1. DR. SUNIL KUMAR, son of Shri Rajeshwar Tiwary, C/o Dr. S.D. Mandal, Indira Nagar, Road No. 1, Postal Park, P.S.- Kankarbagh, Town & District- Patna. 2. Dr. Rajesh Verma, son of Late Ram Bihari Verma, resident of Birla Mandir Road, P.S.- Pirbahore, Town & District- Patna. 3. Dr. Ram Krishna Singh, son of Shri Ramawatar Singh, C/o Dr. K.P. Singh, Professor Colony, North Shastri Nagar, P.S. Shastrinagar, Town & District- Patna. 4. Dr. Umesh Prasad Sinha, son of Shri Shyam Bihari Prasad, resident of 77/LIG Colony, Kankarbagh, P.S. Kankarbagh, Town & District- Patna. 5. Dr. Satyadeo Singh, son of Shri Ram Nagina Singh, resident of Doctor’s Hostel 1/52, Patna Medical College & Hospital, P.S. Pirbahore, Town & District- Patna. 6. Dr. Mahendra Kumar Singh, son of Shri Rameshwar Prasad Singh, resident of Doctor’s Hostel 3/7, Patna Medical College & Hospital, P.S. Pirbahore, Town & District- Patna. 7. Dr. Birendra Kumar Sinha, son of Shri Jagdish Narayan Prasad, resident of Doctor’s Hostel 3/8, Patna Medical College & Hospital, P.S. Pirbahore, Town & District- Patna. 8. Dr. Sudhir Kumar Singh, son of Dr. T.N. Singh, resident of D-129 Kankarbagh Colony, P.S. Kankarbagh, Town & District Patna. 9. Dr. Sanjay Kumar, son of Shri Kanhaiya Lal, resident of J/36, P.C. Colony, Kankarbagh, P.S. Kankarbagh, Town & District Patna. 10.Dr. Rita Choudhary, wife of Dr. A.K. Jaiswal, resident of 54/E Rajendra Nagar Road No. 12, P.S. Kadamkuan, Town & District Patna. 11.Dr. Anil Kumar Gupta, son of Shri K.M.P. Gupta, resident of Mohalla Chamdoria, Patna City, Town & District Patna. 12.Dr. Sanjeev Kumar Jaiswal, son of Shri T.P. Jaiswal, resident of Atit, Opposite Road No. 1, Ashok Nagar, District- Ranchi. 13.Dr. Sanjay Kumar, son of Shri S.B.P. Singh, C/o Shri D.B.P. Singh, K.P. Sarkar Road, Mithapur B Area, District- Patna. 14.Dr. Raj Kishore Prasad, son of Late Ramdutt Prasad, C/o Shri R.P. Verma, Nauzarghat, Deewan Mohalla, Patna City, District- Patna. 15.Dr. Mani Bhushan Kumar Sinha, Son of Late Keshav Kumar Sinha, B-2/420(T), P.O.- Dhurwa, Ranchi. ----- Petitioners CWJC No.1546 oF 1998 1. DR.RAJIV RANJAN DAS, son of late Kali Prasad Das, resident of “Rain Basera”, Patna Collegiate School Compound Dariapur, P.S. Kadamkuan, Patna- 800 004. 2. Dr. Sunil Kumar Verma, Son of late Nandkeshwar Prasad, resident of village- Gaibee, P.O. Itasang, P.S. Rahui, District- Nalanda. 3. Dr. Mary Pushpa Bara, D/o Shri Victor Bara, resident of Konpala, P.S. Thethaitanger, District- Gumla 4. Dr. Augustina Guria, S/o Shree D. Guria, resident of village Tirla, P.O. Raikera, P.S. Manoharpur, West Singhbhum (Bihar) 5. Dr. Parasnath Mahto, son of Lakhraj Mahto, resident of village- Chechanha, P.S. Rajhara, P.S. Bishrampur, District- Palamau. 6. Dr. Ramesh pd. Singh, son of Late Raghu Bansh Singh, resident of village- Jamsona, P.S. Dawatah, District, Rohtas. 2 7. Dr. Sanjay Kumar Sinha son of Prof. Rajendra Pd. Sinha, resident of village- Haider Chak, P.S. Khorampur, Via- Itasarai, District- Nalanda. 8. Dr. Narendra Kumar Son of Sri Dilkeshwar Sharma, resident of village- Baddopur, P.S. Karpi, District- Jehanabad. 9. Dr. Mahendra Kumar Son of Balkeshwar Ram, resident of Rajauli, P.O. and P.S. Rajauli, District- Nawadah. 10.Dr. Kamendra Prasad son of Chhathu Prasad, resident of village- Hasan Bazar, P.O. and P.s. Piro, District- Bhojpur. ----- Petitioners Versus 1. THE STATE OF BIHAR through the Secretary-cum-Commissioner, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Vikash Bhawan, Building, Bailey Road, Patna. 2. Additional Secretary, Health Medical Education & Family Welfare Department, Govt. of Bihar, Patna. ---- Respondents in both the cases. CWJC No.7150 of 1997 For the petitioners : Mr. Shivendra Kishore, For the S t a t e : Mr. Shyam Kishore Sharma, G. A. V. CWJC No.1546 of 1998. For the petitioners : Mr. R.K.Verma, Sr. Advocate and Mr.R.N.Kanth, Advocate. For the S t a t e : Mr. Shashi Bhushan Prasad, S.C. XVI. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. These two writ petitions were heard together as the facts are common and the prayer in the writ petitions are also virtually the same. Hence, they have been heard together and are being disposed of by this common judgment. 2. In CWJC No. 7150 of 1997 there are fifteen petitioners. Petitioner no.15 was added by order, dated 25.11.1997 passed in I.A. No. 6662 of 1997. The prayer in the writ petition is that the respondents in the Health Department should provide facility of Training Reserve Post (for short „the T.R.P.‟) to the petitioners in terms of clause 7 (v) of the Prospectus For Post Graduate Medical Evaluation Test (hereinafter to be referred as „the P.G.M.A.T‟) as published in the years 1995, 1996 and 3 1997. 3. In CWJC No. 1546 of 1998 there are ten petitioners claiming the same benefits in terms of clause 7(v) of the Prospectus of the year 1997 published by the Department of Health, Medical Education & Family Welfare, Bihar (hereinafter referred to as the Health Department for the sake of convenience) as it was then known. The petitioners have also challenged the validity of the order, dated 29.12.1997 issued vide memo no. 8642 by the Addl. Secretary, Health Department as contained in Annexure 12. The aforesaid order, dated 29.12.1997 was issued while CWJC No. 7150 of 1997 was pending in this court. By the impugned order, the State Government has revoked the decision taken earlier on the basis of which the facility of T.R.P. was provided to students who had taken admission at the post graduate level. 4. The main contention advanced by learned counsel appearing on behalf of the petitioners is that the Health Department / State Government could not have revoked the facility and the consequences of the facility of providing training reserve posts for persons who had opted to carry on with the post graduate studies with respect to certain subjects defined in the prospectus. It was further contended that the order should also be quashed on the ground that the effect of the order was retrospective inasmuch as it was to take effect from 15.8.1996 although the actual date of issuance of the order was 29.12.1997. 5. To examine the validity of the order, dated 29.12.1997 it would be proper to look into the reasons for which the Health Department had accorded the facility of T.R.P. to the students of G.M.A.T. It would be 4 relevant to quote here the provisions of sub clause (v) of clause 7 of the Prospectus For Post Graduate Medical Admission Test, 1996 – the basis on which the petitioners are claiming their rights. Sub clause (v) of Clause 7 reads as under : “(v) A candidate who has one availed government Scholarship or Training Reserve Post for the degree course will not be entitled for Scholarship or Training Reserve Post facility second time for any other course. However, if a candidate has availed Scholarship/T.R.P. Facility for a Diploma Course, he will be eligible for scholarship/T.R.P. Facility for degree course provided that the said facility will not extend beyond three academic years irrespective of years of study for the course.” 6. This provision was inserted in the prospectus on the basis of Annexure 2 which is the decision by the State Government issued through memo no. 3902, dated 3.3.1985 which was extended from time to time till the year 1996. 7. The State Government in order to facilitate the smooth running of the Health Department and in order to ensure that doctors were available in the hospitals of the State Government, formulated certain policies. It had been noted that because of the fact that several doctors on the clinical side took leave from the State Government either for higher education in foreign countries or to avail opportunities of better employment schemes for short periods without pay, lead to temporary vacancies. It was, therefore, found necessary to create more posts which were known as Training Reserve Posts („the T.R.P.‟. hereinafter) allocated to those persons who were undergoing post graduate studies for which the Government had allocated funds and such persons were given appointment against the Training Reserve Posts for a period of one year to three years taking into consideration whether such persons were doing 5 diploma courses or degree courses. This facility was available only for those post graduate students who had taken up non-clinical subjects. The policy decision of the State Government was reflected in sub-clause (v) of clause 7 of the prospectus quoted above. 8. Petitioners 1 and 2 are of 1995 batch; petitioners 3, 4, 5, 6, 7, 9, 10, 12, 13, 14 and 15 of CWJC No. 7150 of 1997 are persons who successfully appeared in the P.G.M.A.T. examination in the year, 1996. Petitioner no.11 appeared for the admission of P.G.M.A.T. in the year 1994 for the degree course. After successfully passing the entrance examination the petitioners were prosecuting their studies in different faculties carrying the T.R.P. facility. However, the formalities of their posting was not completed and as such they represented the department concerned to pass a formal order of posting and give them the salary which was attached with the Training Reserve Posts. 9. Similarly the petitioners of CWJC No. 1546 of 1998 appeared in the admission test for the years 1996-1988 and 1997-2000. The description of the subjects opted by the petitioners, their postings and the hospitals where they were pursuing their studies is mentioned at paragraph 13 of the writ petition. 10. The cases of all these petitioners stand on similar footing as all of them have prayed before this court for payment of salary which was due to them during their tenure on the Training Reserve Posts. It is a fact that no formal order granting the facility of T.R.P. was issued to the petitioners at any stage before they moved this court or during the pendency of these two writ petitions. 6 11. CWJC No. 7150 of 1997 was taken up for hearing and during the pendency of the writ petition interim orders were passed by this court on 18.8.1997, 1.10.1997 and 27.10.1997. The court has specifically directed that counter affidavits would be filed and in the mean time the admitted dues were to be paid to the petitioners. The stand of the State Government was that the Government had already taken a decision regarding the grant of T.R.P. facility. This court thereafter asked the State Government to file supplementary counter affidavit making it clear whether T.R.P. facility has been abolished or not and as to why they had made the stipulation of granting T.R.P. facility in the prospectus of the years 1996 and 1997. CWJC No. 7150 of 1997 was admitted on 7.1.1998. I.A No. 5560 of 1998 was filed wherein the petitioners had taken a stand that despite the orders of the court no payments had been made to the petitioners for which they had filed a contempt petition being MJC No. 2088 of 1998 which was disposed of on 4.8.1998 with a direction to the State Government to pay the dues up to 15.8.1996. 12. the petitioners have also referred to certain other document, such as, Annexures 15 and 16 to show before this court that the T.R.P. facility was granted to several doctors by notifications, dated 19.1.1998 and 21.9.1998. From perusal of these two documents, it would appear that the facility of Training Reserve Post were extended from the date given in the said annexures for six months or till the conclusion of the final examination. It is contended on the basis of Annexures 15 and 16 that the case of the petitioners stands identical to the cases of such persons who are mentioned at Annexures 15 and 16. Although these documents 7 does show that the Government had extended the T.R.P. facility for several persons in the years 1996 and 1997 but it is not clear as to whether the doctors mentioned in the annexures were from 1996-99, 1997 and/or 1997-2000 batches. Therefore, these documents cannot help the petitioners to substantiate the stand with the cases of the persons mentioned at annexures 15 and 16 of CWJC No. 1546 of 1998. 13. After CWJC No. 7150 of 1997 was admitted, memo no. 864(2), dated 29.12.1997 was issued which has also been challenged in the writ petition and is subject matter of challenge in analogous matter as well. 14. Memo no. 864(2), dated 29.12.1997 is a decision by the Health Department, Government of Bihar wherein it has been stated that the State Government finds that there is no longer a shortage of doctors in the clinical, para-clinical and non-clinical subjects and, therefore, the creation of 476 Training Reserve Posts has been done away. It is further stated that the decision to do away with the facility of Training Reserve Posts would apply retrospectively from 15.8.1996. 15. Learned counsel appearing on behalf of the petitioners contended that the State Government since the year 1985 has published prospectus wherein one of the conditions is that those persons who apply for the post graduate admission in non-clinical subjects would be granted the facility of Training Reserve Posts during the entire course to which such persons were admitted. This clause in the prospectus could not varied or changed to the detriment of those persons who had applied in the subjects as mentioned in the prospectus in order to get the facility of 8 Training Reserve Post. According to the petitioners the decision of the State Government is erroneous on two counts; firstly, the State Government could not have removed clause 7(v) of the prospectus in the middle of the sessions and secondly the order could not have been passed retrospectively. 16. The stand of the State, on the other hand, is that there was no further requirement for creating Training Reserve Posts and as such petitioners were not posted against the posts that were created by the State Government and posts were abolished by the impugned order, dated 25.12.1997. It is submitted that if the posts are no longer available, the petitioners would not be entitled to be posted against non-existing posts and receive any financial benefits as a result of such a posting. 17. The question, therefore, before this court is whether the petitioners had a vested right to receive the facility of posting of T.R.Ps. as per the provisions of the prospectus. The prospectus has been published for the purpose of conducting post graduate medical admission tests in the State of Bihar and for regulating the courses of studies in post graduate medical studies. It contains provisions with respect to the courses available to the students, the eligibility of the students to take the examination, the requirements for applying for the said examination, the selection, reservation and training etc. 18. The clause on which the petitioners rely merely states that a candidate would not be entitled for scholarship or training reserve post for a degree college if he had at any time availed these two facilities. This clause does not enjoin that the State Government would necessarily 9 award a scholarship or a training reserve post for each and every candidate who had successfully competed in the admission test. The creation of the Training Reserve Posts was a decision taken taking into account the requirement of the Health Department and, therefore, certain posts were created which were to be availed of by successful candidates who had appeared in the admission examination for the post graduate courses. This provision in the prospectus does not create a vested right, rather, it would depend upon the requirement of the Health Department. It may be noted that the Training Reserve Posts were created year to year and allotment of funds for payment of such persons who were appointed / posted against the temporary posts were to be made by a formal order. 19. In the circumstances it cannot be said that the petitioners had any vested right to be posted against the Training Reserve Posts. The State Government could have taken a decision to fill up some or none of the posts and a decision so taken by the State Government cannot be challenged on the ground that some right of the petitioners has been violated. 20. It is well settled that the power to frame rules to regulate the conditions of services also carries with it the power to amend or alter the rules with retrospective effect as held in the cases of B.S. Vadhera vs Union of India, 1968 SCR 575, Raj Kumar vs. Union of India, AIR 1975 SC 1116, K. Nagaraj vs. State of A.P., AIR 1985 SC 551 and State of J & K vs. Triloki Nath Khosla, AIR 1974 SC 1. This court, therefore, finds that the post graduate medical examination tests prospectus 1996 does not create any right in favour of the petitioners so 10 that this court could issue a writ directing the State to fill up the Training Reserve Posts and appoint the petitioners against those posts. 21. The second question is with regard to the fact whether the State Government could have retrospectively passed an order abolishing the Training Reserve Posts. In view of the discussion above there can be no doubt that the decision of the State Government could be retrospectively applied. However, in the present case the contention is that some persons belonging to the petitioners‟ batch were extended the facility while others were not. So, this question has to be considered in the light of the test of Articles 14 and 16(1) of the Constitution of India. There can be no doubt about the fact that the State Government has taken a conscious decision that they would create posts for the purpose of filling the vacancies created due to the fact that a number of doctors were granted leave by the State Government to pursue higher education in foreign countries or temporary career advancement programme at the same time retaining their lien with the Health Department which motivated the creation of training reserve posts. The fall out of the decision taken by the State Government had been translated into action by posting those persons who had taken admission in post graduate degree or diploma medical courses in the State of Bihar during their course of studies. This was the procedure followed from year to year since 1985 to 1995 and for each of these years the students of P.G.M.A.T. were in fact availing the facility of Training Reserve Posts. The petitioners expected that they too would be extended this facility and as such they moved this court so that the State Government should take steps to pass formal orders to post the petitioners 11 against these training posts so that the petitioners could get monetary benefit that went along with such a posting. 22. It has also been argued and pleaded that others from their batch i.e. 1996 batch, 1999 batch and 1997-2000 batch were given the facility and the monetary benefit but the petitioners were deprived of the monetary benefit which goes along with the Training Reserve Posts. 23. In my view it would be a violation of Articles 14 and 16(1) of the Constitution if persons similarly situated to the petitioners were allowed the facility of training reserve posts and the monetary benefit attached to the posts and the petitioners were deprived by virtue of the fact that no steps were taken by the State Government to allot the Training Reserve Posts to the petitioners. As observed earlier prima facie it appears that there is no material on record to show that anyone from the 1996-99 and 1997-2000 batches had been granted the facility of training reserve post. 24. Learned State counsel could not answer as to whether the persons of the 1996 and 1997 post graduate batches were allowed this facility or not and as such this court cannot give any positive direction that similar facility should be extended to the petitioners. This fact would have to be examined by the Secretary of the Health Department and if the Secretary finds that other persons belonging to 1996-99 and 1997-2000 batches were given the facility during the entire diploma or degree course, then the same benefit ought to be given to the petitioners. 25. In case the Secretary, Health Department on examination of facts finds that other persons belonging to the petitioners‟ batch have 12 been granted the facility, then same benefit should be extended to the petitioners. The decision should be taken within a period of three months to put an end to the controversy pending since 1997 on receipt of a copy of this order. The order may be produced by the petitioners before the concerned authority in order to facilitate quick disposal of the matter. 26. These writ petitions stand disposed of with the aforesaid observations and directions. Patna High Court, March 27 , 2009, AFR / Haque. (Sheema Ali Khan, J.)