Letters Patent Appeal No.696 OF 2008 Against the judgment and order dated 24.6.2008 passed in C.W.J.C. No. 1608/2008 -------------- THE STATE OF BIHAR, through Secretary, Health (Medical Education & Indigenous Medical) Depaprtment, State of Bihar,Patna -----(Appellant) Versus 1.DR.KISHORE KUMAR son of Sri Bishwanath Gupta, resident of Mohalla Sarvoday Nagar (Mission Compound), P.O. Chapra, P.S. Chapra,Town, Dist. Saran. 2. The Acting Director , Udyamita Vikash Sansthan, 5th Floor, Bihar State Financial Corporation Building, Frazer Road, Patna 80001. 3.The Administrative Officer, State Health Committee , Bihar Family Welfare Building, Sheikhpura, Patna 4. The Chairman, District Health Committee-cum-District Magistrate, Saran ……Respondents. ------------- For the Appellant M/s. Lalit Kishorfe, A.A.G-3 Sheojee Prasad G.P.-2 with AC Sri R.K. Singh Janardan Prasad Singh For the Respondents : Mr. M.N. Parbat, Advocate Ajay Kumar No.1 Md. Mustaque Alam Md. Harun Qurashi Mr. Ajit Kumar ----------------- P R E S E N T THE HON'BLE ACTING CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA Shiva Kirti Singh ,ACJ) & S.K.Sharma, J Heard learned counsel for the appellant as also some interveners in support of the State of Bihar, the appellant. Also heard learned counsel appearing for the respondent and some interveners who have intervened to support the writ petitioner, respondent no.1. By the order under appeal dated 4.6.2008 writ petition preferred by respondentno.1 has been allowed, and the corrigendum dated 14.12.2007 - 2 - requiring the candidates for appointment on contractual basis on the post of Unani, Ayurvedic and Homeopathic doctors to appear at a written examination, has been held to be bad. As a consequence, the State of Bihar and concerned respondents had been directed to proceed with the consideration of cases of the applicants in terms of the original advertisement published on 19.4.2007, in response to which the petitioner has claimed to have applied. The relevant facts are not in dispute. An advertisement was published by the authorities concerned on 19.4.2007 inviting applications for appointment on contract basis for 11 months as Unani, Ayurvedic and Homeopathic doctors. The qualification required a candidate to have the requisite degree and also registration with the concerned Board. The age limit was up to 60 years. The last date for submitting applications was 15.5.2007. The advertisement stipulated that merit list would be prepared on the basis of marks obtained at the University level in the concerned degree course or equivalent course. On 14.12.2007 a corrigendum was published providing for holding of a written examination in order to select the suitable candidate who had applied. The simple point raised by the writ petitioner and accepted by the writ court was that once the recruitment process was initiated on the basis of conditions and procedure mentioned in the advertisement, the respondents shall have no option but to follow the procedure and there was no power in the respondents to change the method of selection by requiring the candidate to undergo written examination when the earlier stipulation - 3 - was of selection on the basis of marks obtained in the degree or equivalent examination. The writ court has allowed the writ petition by holding that once the last date for receipt of the applications was over and the process of selection on the basis of marks had commenced, the condition or the criteria of selection could not be changed under a subsequent policy decision and advertisement. The other ground, faintly mentioned in the order of writ court is a question mark on the reasonableness and practicability of subjecting persons of advanced age like the writ petitioner who claimed to be 54 years old, to a written test so as to make them compete with those who had finished their studies recently. The argument that process of selection of persons with higher age and years of experience behind them, in the matter of appointment on contract basis for 11 months could not be equated with an ordinary situation of holding test at the entry level, appears to have found favour with the writ court. On behalf of the State, it has been submitted that the corrigendum published on 14.12.2007 was on account of a policy decision and there was no limitation on the power of the competent authority to amend the stipulations in the advertisement. Distinction was sought to be made between a case where law or rules require a particular procedure to be followed and where the procedure has been devised only by way of policy mentioned in the advertisement ,with a view to explain the well settled principle of law that once appointment process commences, it should be - 4 - concluded as per law or rule operating on the day the process commences. It was emphasized that in that matters of contractual appointment for 11 months the service rules are not applicable and this kind of appointment has been envisaged only under a policy decision. The power to revise a policy any time can be curtailed only by statute or if it will affect a vested right. In the present case there is no vested right nor any law or rules to prevent changing the policy decision relating to mode of selection. On considering the aforesaid submission, we arte of the view that there is no law or rule operating in the field which could limit the power of the competent authority to modify its policy decision even after earlier policy decision was advertised. We find substance in the submission advanced on behalf of the State, that even if the candidate like the writ petitioner had been included in the selection list, that alone would not create any vested right and cancellation of selection process prior to appointment is permissible under law. Only requirement for exercise of such power would be that it does not violate any law or rule occupying the field or is not exercised malafide or arbitrarily. Amendment in the rules and in the prescribed qualification for appointment are most accepted grounds for cancellation of selection and for inviting even fresh application for selecting proper candidates. In support of this proposition learned counsel for the State placed reliance on the judgement of the Supreme Court reported in the case of State of M.P. Vs. Raghubir Singh Yadav, [(1994) 6 SCC 151] and in the case of Jay Singh Dalal Vs. State of Haryana [1993 Supplementary (2) SCC 600]. Our attention was drawn to undisputed development in the - 5 - matter which is to be found in annexure-D to the appeal which is a fresh advertisement dated 26.3.2008 inviting fresh applications in respect of the same very post to be filled up on contract basis for a period of 11 months. To be fair to learned counsel for the respondents it must be mentioned that an objection was raised against taking into consideration the subsequent advertisement published on 26.3.2008 contained in annexure-D on the ground that the same was not brought before the writ court and does not find mention in the order under appeal dated 24.6.08. So far as this objection is concerned, in our view in an appropriate case the court of appeal has power to take into consideration further developments specially when they are not in dispute. We are further of the view that it was the duty of the writ petitioner himself to bring such development to the notice of the writ court before the matter was finally heard and decided in June 2008, failure to do so, in our view has allowed the writ court to come to erroneous decision on account of suppression of a material fact. So far as the merit of the policy requiring even persons at the age of 60 years to take written examination, cannot be examined by the court unless it is shown that such policy decision is per se arbitrary and violates constitutional guarantee. Considering the nature of the appointment which is on the basis of contract for 11 months only, and the capability of the State to formulate its policy as per its requirement, we are not persuaded to doubt the correctness of the policy. - 6 - Patnaa High Court, The 26th Nov. 2008 Rahman/ AFR As a result we are compelled to hold that the order under appeal does not decide the issue correctly. The same is set aside. The writ petition is dismissed for lack of merit and the appeal is allowed but without cost. (Shiva Kirti Singh, ACJ) (Shyam Kishore Sharma, J)