IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5481 of 2004 VIJAY KUMAR, AGED ABOUT 27 YRS., S/O LATE BHAWANI PD. SINHA, R/O WEST BORING CANAL ROAD, NEAR SUSHANT DENTAL CLINIC, PATNA-800001. ………..Petitioner Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY, DEPT. OF HEALTH AND MEDICAL EDUCATION, GOVT. OF BIHAR, PATNA. 2. THE DEPUTY SECRETARY, DEPARTMENT OF HEALTH MEDICAL EDUCATION, GOVT. OF BIHAR, PATNA. 3. THE PRINCIPAL, PATNA MEDICAL COLLEGE & HOSPITAL, PATNA. 4. DR. VISHVENDRA KR. SINGH, FATHER’S NAME NOT KNOWN, AT PRESENT POSTED AT PATNA MEDICAL COLLEGE & HOSPITAL, PATNA. 5. DR. NAND KUMAR, FATHER’S NAME NOT KNOWN, AT PRESENT POSTED IN DEPARTMENT OF ORTHOPEDICS AT DARBHANGA MEDICAL COLLEGE AND HOSPITAL PATNA. 6. DR. RAM NANDAN SUMAN, FATHER’S NAME NOT KNOWN AT PRESENT POSTED IN DEPARTMENT OF ORTHOPEDICS IN NALANDA MEDICAL COLLEGE & HOSPITAL LAHERIA SARAI. 7. DR. DILIP KUMAR SINGH FATHER’S NAME NOT KNOWN, AT PRESENT POSTED IN DEPARTMENT OF ORTHOPEDICS IN JAWAHARLAL NEHRU MEDICAL COLLEGE & HOSPITAL, BHAGALPUR. ………….Respondents For the petitioner :- Mr. Jitendra Singh, Sr. Advocate Mr. Prabhat Ranjan I, Advocate Mr. Shankar Kumar Thakur, Advocate Mr. Bishwajeet Singh, Advocate For the State :- Mr. D.K. Sinha, A.A.G. III For Respondent No. 4 :- Mr. Ajay, Advocate For Respondent No. 5 :- Mr. Ashok Kumar Prasad, Advocate ----------- 11 7.4.2011 The State by issuing executive instructions contained in Annexure-6, vide Memo No. 189 (17) dated 22.03.2004 purports to fix the seniority of those persons 2 who were Registrars and were working as Registrars before the Bihar Medical Teaching Service Cadre and Appointment on the Cadre Posts Rule, 1997 (hereinafter referred to as the ‘1997 Rules’) came into existence, as also amongst those persons, who by virtue of the 1997 Rules came into the cadre of Registrars and those who came into the cadre by facing a competition held by the Bihar Public Service Commission (hereinafter referred to as the ‘Commission’) The question to be decided in this writ application is (a) Whether the executive instructions referred to above are inconsonance with Rule 1997 and the amended Rule of the year 2004? (b) Whether the executive instructions can override and make additions to the Rules framed under Article 309? (c) Whether Clause (Kha) and Clause (Gha) of the executive instructions can be reconciled? The facts of the case are that the petitioner was appointed as a Registrar Orthopedic in the year 1990, an advertisement was issued which is contained in Annexure-1. I may refer to the provisions of the advertisement which prescribes the qualifications for the 3 post. One of the qualifications was that those persons who had gained experience as Resident Surgeon would be allotted one mark for each completed year of service as a Resident Surgeon. The petitioner relies heavily on this provision of the advertisement to submit that the teaching experience as Resident Surgeon has been taken into consideration while preparing the merit list of incumbents, when they were being selected as Registrars in the year 1994, which has been emphasized by the following facts. A panel was prepared and approved on 28.09.1994. The petitioner’s name is at Serial No. 2. He has achieved 23 points, whereas the respondent no. 4 at Serial No. 7 was allotted 18 points, respondent no. 5 at Serial No. 10 was allotted 17 points and respondent no. 7 is at Serial No. 13, allotted 17 points vide Annexure-3 dated 10.01.1996. The marks allotted take into consideration the experience rendered as Resident surgeon. Annexure-3 also indicates that petitioner was shown at Serial No. 1 in the list of Registrars in the Orthopedic Department. While the petitioner and respondents were working as Registrars, the 1997 Rules 4 came into effect. This Court is referring to some of the provisions of the 1997 Rules which are relevant for deciding the issues that have arisen in this case. Rule 5 states that those working as Resident Surgeon, Registrar, Assistant Professor, Associate Professor, Professor, Principal and those working in the Directorate such as Deputy Director, Joint Director and Director would be entitled to give their options for the purposes of being included in the Teaching Cadre. All these persons who could not give their options would be reverted back to their original cadre of Bihar Health Services. The rule also envisages that those persons who do not have the requisite qualification and teaching experience on the date of their appointment on the post mentioned in the said rule shall be reverted to the cadre of Bihar Health Services. Similarly, Rule 8 (ii) of the said Rules deals with promotion. It provides that amongst Lecturers to be promoted from the post of Lecturer to Assistant Professor, the seniority, educational qualification etc. would be considered, it was also required that the persons applying for the higher post would need to have 5 at least four years of teaching experience as Lecturers. Clause 8 (ii) was amended by a notification issued under Article 309 of the Constitution on 22.03.2004. The amendment provided that the promotion to the higher post would be considered on the basis of seniority-cum- merit. Thereby, the aforesaid amendment, the State Government removed the earlier criterias fixed under Rule 8 of the 1997 Rules. Rule 8 (i) Ka of the 1997 Rules also provided that from the date on issuance of the Rule, those persons who wish to apply for the Teaching Cadre of the Health Services would have to face an examination to be held by the Bihar Public Service Commission. The dispute has arisen between the petitioner and the respondents on the ground that while considering their appointment and posting as the Registrars, a panel was prepared and approved on 28.9.1994 (Annexure-2) on the basis of an advertisement issued which is contained in Annexure-1 of the writ application. I shall refer to the relevant clause in the advertisement which is responsible for causing friction between the parties. (6) ’kS{kf.kd vuqHko ds fy, %& 6 (v) vkosnu i= izLrqr djus dh vafre frfFk rd lgk;d izk/;kid ds in ds fy, Hkkjrh; fpfdRlk ifjÔn }kjk Hkkjr esa ekU;rk izkIr fdlh fpfdRlk f’k{k.k laLFkku esa Lohd`r vkoklh; fpfdRlk inkf/kdkjh@fuca/kd dk in nksuksa tksM+dj dk;Z vuqHko ds fy, izR;sd iwjs oÔZ ds vuqHko ds fy,A (vf/kdre 5 vad vuqekU; gS) (c) vkosnu i= izLrqr djus dh vafre frfFk rd fuca/kd ds in ds fy, Hkkjrh; fpfdRlk 1 vad ifjÔn }kjk Hkkjr esa ekU;rk izkIr fdlh fpfdRlk f’k{k.k laLFkku esa Lohd`r vkoklh; fpfdRlk ink- dk dk;Z vuqHko izR;sd iwjs oÔZ ds vuqHko ds fy,A 1 vad It has been submitted on the basis of the aforesaid provision in the advertisement that the experience as a Resident Surgeons was considered at the time of preparing the panel in 1994. As mentioned earlier the petitioner was shown to be at serial 2 whereas the respondents were below in the panel which is also mentioned in the final letter of appointment and posting as Registrar. It may be noted that the transaction for making appointment and posting, the petitioner and the respondents as Registrars was completed on 10.1.1996. 7 Thereafter the 1997 Rules came into existence creating two cadres, one teaching cadre and the other general cadre in the Health Services. Several disputes arose because of the bifurcation of the cadre in view of the fact that the Rules 1997 and the amendment thereof, did not contain the manner in which seniority would be fixed between those persons who had at any point of time worked as Resident Surgeons and subsequently as Registrars and had filed their options for being absorbed in the teaching cadre of the Health Services. One other fact which may be taken note of is that the post of Registrar was a tenure post of three years. However, quite often such persons appointed as Registrars continued to work as Registrar beyond the period of three years. Result of which was that on the date on which the rules of 1997 were issued, several persons were working as Registrars although their tenure of three years had expired, a dispute arose whether such persons who were working beyond their period of tenure could be absorbed in the medical education cadre. The matter was decided in the case of the Junior Medical Teachers Association, Bihar through its Secretary & Ors. Versus 8 State of Bihar & Ors., reported in 1999 (1) PLJR 590. In the case aforesaid an order was issued by the State Government that those persons holding tenure post of Resident Medical/Surgical Officer/Registrar on completion of their tenure shall be automatically reverted to the basic health cadre. It was the contention of the petitioners that since they were working on the aforesaid mentioned post on the date of issuance of rules, they were entitled to exercise their option to remain in the Medical Education Cadre. This Court quashed Annexure-3 by holding that the right to exercise the option has been conferred by Article 309 and it cannot be taken away by executive circulars as has sought to be done by the State Government. The Court, therefore, held that those persons who were working as Resident Medical Officers and Registrars on the date of coming into force of the said rule on 21.5.1997 and those who had exercised their option, would become lecturers by operation of the law and the State Government could not have issued a circular reverting them back to the basic health cadre as such the Court quashed Annexure-3. On the basis of the aforesaid judgment It has been argued 9 that any executive instructions issued beyond the scope of the 1997 Rules has to be quashed. The judgment aforesaid would not be applicable in the present case. The Resolutions contained in annexures which I will presently discuss does not take away any of rights provided to the Doctors in the Medical Education Cadre rather it lays down criteria to fix the seniority of persons who have opted for this Cadre. The Rule of 1997 is completely silent on this point and as such it cannot be held by this Court that annexure-6 should be struck down on the ground that it is de hors the Rule of 1997. It is obvious while fixing seniority of the medical teaching cadre, all facts relating to the date of joining, number of years rendered in the teaching cadre and experience, have to be considered amongst all such persons who opted for being retained in the Medical Teaching Cadre. For this purpose, the State Government issued Annexure-6 vide Memo No. 187(17) dated 22.3.2004. Before interpreting Annexure-6, I would like also to refer to the object behind the 1997 Rule which created a teaching cadre. The object and motive has been mentioned in the rule. It envisages that because of 10 the present tenure arrangement to enter into the permanent teaching cadre, it takes about 10 to 15 years, on account of such long intervals many problems arise related to the career of the teachers, there is a requirement for stream lining the teaching work. The necessity and motivation of research and competition amongst the doctors cease to exist and as such it should be ascertained at the very beginning of the career as to which of the doctors wish to enter the cadre in general health services and which of them would like to enter into teaching career, so that the doctors may mould their career accordingly. These rules were being issued in the interest of Medical Education Health Services and the recipients of these services. Thus the rules sought to create distinct cadres for the aforesaid purposes. The rules, however, do not envisage the manner in which seniority is to be fixed amongst those persons who opted for Medical Education Health Cadre. In the light of the aforesaid objects and for the purpose of fixing the seniority amongst Lecturers, the State Government came out with the executive order dated 22.3.2004 (Annexure-6) which is being quoted 11 below: ** ¼d½ iwoZ esa fuca/kdks ds :i esa dk;Zjr fpfdRldks dks vkoklh; fpfdRlk inkf/kdkjh ds :i es dk;Zjr fpfdRldks ls ojh; ekuk tk;sxkA ¼[k½ fuca/kdks es ls oSls fuca/kd] ftUgs vkoklh; fpfdRlk inkf/kdkjh dk dk;Z vuqHko izkIr gS] dks lh/ks fu;qfDr fuca/kdks ls ojh; ekuk tk;sxkA ¼x½ fuca/kd@vkoklh; fpfdRlk inkf/kdkjh ds :i es fu;qDr mu fpfdRldks dks ojh; ekuk tk;sxk ftudh vf/klwpuk igys fuxZr gq;h gSA ,d gh frfFk dks fuxZr vf/klwpuk dh fLFkfr es iqjkus iSuy ls fu;qDr fd;s x;s fpfdRldks dks ckn ds iSuy ls fu;qDr fpfdRldks ls ojh; ekuk tk;sxkA ¼?k½ fdlh ,d iSuy ls fu;qDr fpfdRldks dh ojh;rk iSuy es vafdr dzekad ds vuqlkj ekuh tk;sxhA ¼M-½ o’kZ 2002 es fcgkj yksd lsok vk;ksx dh vuq”kalk ij fu;qDr lhfu;j jsthMsUV dh ojh;rk vk;ksx dh es?kk lwph ds vuqlkj gksxhA vkns”k%& vkns”k fn;k tkrk gS fd mi;ZqDr ladYi dks fcgkj jkti= ds vkxkeh vlk/kkj.k vad es izdkf”kr fd;k tk;s rFkk mldh 500 ¼ikWap lkS½ izfr;kW 12 foHkkx dks miyC/k djk;h tk;A** The introduction or purpose of the resolution indicates that it is being issued to decide the seniority of Resident Surgeons/Registrars who have been declared as Lecturers (Senior Residents from 21.2.2003) w.e.f. 21.5.1997 or the date of joining whichever is late vide Notification No. 187(17), dated 22.3.2004 of Health (M.E.F.B. and 1M) Department. Also amongst those who after recommendation of the Bihar Public Service Commission were appointed as Lecturers in the year 2002. The aforesaid criteria as referred to above have thus been laid down. The challenge of the petitioner is that the criteria (Kha) and the criteria (Gha) contradict each other and should be interpreted in their favour. The intention of the executive instructions is to set out a procedure for considering the seniority of Resident Surgeons/Registrars after they have opted and come into the cadre of Registrars of medical teaching services and for this purpose it envisages that:- (a)(Ka) The doctors working previously as Registrars should be deemed to be senior to the doctors working as Resident Medical Officers. (b) 13 (Kha) Those Registrars who have got the work experience of a Resident Registrar and have also got work experience of Resident Medical Officer shall be deemed to be senior to those persons who were directly appointed as Registrars although they did not have any experience of Resident Medical Officer. (c) (Ga) Those doctors appointed as Registrars/Resident Medical Officer shall be deemed to be senior whose notification has been issued earlier. In case the notification is issued on the same date, the doctors appointed from the old panel shall be deemed senior to those doctors who are appointed from a panel prepared later on. (d) (Gha) The seniority of doctors appointed from one panel shall be determined as per the serial number mentioned against their name in the panel. (e) (Anga) The seniority of Senior Resident appointed on the recommendation of the Bihar Public Service Commission in the year 2002 shall be as per the merit list of the Commission. Each of these clauses of the executive instruction takes into account the sources from which the Registrars have been appointed at a specific point of time. The argument of the petitioner that Clause 14 B(Ka) and D(Gha) should be read together and if not read together they would contradict each other. Normally while ascertaining the meaning of a clause in an executive order or for that matter in any statute what precedes and what succeeds and not merely the clause itself should be taken into account. One should read the entire provisions of the clauses to ascertain the intention and reason for the executive instructions issued. One must compare the clause with the purpose for which it has been introduced. The Court should not lean against the construction which reduces the entire statute or resolution to a futility. It should be construed to make it effective and operative on the principle expressed in the maxim: ut res magis valeat quam pereat. One would hardly come across a case where a statute or a resolution of the Government has been set aside on the ground that it is vague. If the resolution, as in this case, is enacted for the purposes of achieving the object of fixing the seniority amongst the teaching cadre of the Health Department, which the State Government can by issuing an executive order/resolution do in the absence of any rule on the subject, it cannot be held to vague. It may 15 only be struck down on the ground that it is unworkable, or is unjust. The argument of the petitioner that the provision of Clause (Kha) should be interpreted in their favour because of the reason that while considering the appointment of the petitioner and the respondents in the year 1996 on the post of Registrars, the work experience of the Resident Medical Officer was taken into consideration as marks were allotted to the respondents for the experience they had gained as Resident Medical Officers and after considering this aspect they were placed lower in the panel prepared in the year 1996. At the time when the panel of 1996 was prepared, the Medical Education Cadre was not created, and as such the panel was prepared for a limited purpose. The petitioner, therefore, cannot submit that by virtue of Clause D (Gha), since the respondents and petitioner were appointed from one panel, their seniority would be as per the serial number mentioned against their name in the said panel (Annexure 3 series). This Court cannot agree to such an interpretation of the Clause aforesaid. The petitioners were appointed as Registrars for a 16 particular year or tenure. However, this resolution is not aimed taking into account appointments made in a particular year rather it also considers the cases of all such persons who were working as Registrars/Lecturers as a result of their appointment in different transactions, therefore, it would create hardship and anomalies, if the State Government was to fix the seniority panel wise only, without taking into consideration the fact that certain persons were appointed as Registrars much earlier and had worked on different teaching posts and thereby had gained experience on the said post. On the cut off date several other persons were also working as Registrars but were appointed as Registrars in a different transaction, yet continued to work beyond their tenure of 3 years. All such persons were eligible to give their options, therefore, the seniority has to be fixed taking into account all persons who had filed their options. Clause D(Gha) is a general condition which envisages that persons who are appointed as Registrars in one transaction will be treated as per their serial number in the panel through which they were appointed. The meaning of this clause cannot be interpreted to mean that 17 the persons who are senior in the years of experience/service would be at a disadvantage as it would make the resolution dated 22.3.2004 unworkable as such if Clause Gha is to be read in isolation it has to be struck down on the ground that it is unworkable and would render the entire exercise of fixing seniority redundant. The State Government would have the right to clarify or reframe the criteria in consonance with the rest of Clauses of Annexure-6. Therefore, the seniority ought to be fixed in the manner as provided in the resolution (Annexure-6) and as explained by this Court. As far as the provisional seniority list is concerned, the petitioner would have the right to file their objections. It is further clarified that the appointment of the respondents to the next higher posts vide Annexure-8 is a temporary arrangement and would be subject to the final decision of the State Government with respect to fixation of the seniority. This writ application is thus disposed of with the aforesaid observations and directions. Sanjay ( Sheema Ali Khan, J.)