IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16066 of 2011 1. Dr. Imran Azam S/O Shahid Akhtar R/O Mohalla- Mohammad Colony, Dargah Road, P.O.- Mahendru, P.S.- Sultanganj, District- Patna Versus 1. The State Of Bihar Through The Principal Secretary Health-Cum- Executive Director, State Health Society, Bihar, Patna 2. The Secretary, Health-Cum-Executive Director State Health Society, Bihar, Patna 3. The District Magistrate-Cum-Chairman District Health Society, Patna 4. The District Magistrate-Cum-Chairman, District Health Society, Samastipur 5. The Civil Surgeon-Cum-Member Secretary District Health Society, Patna 6. The Civil Surgeon-Cum-Member Secretary District Health Society, Samastipur 7. The I/C Medical Officer, Primary Health Centre, Bikram, Munger 8. The State Health Society Through The Executive Director Parivar Kalyan Bhawan, Patna ---------------------------------- with Civil Writ Jurisdiction Case No.16650 of 2011 1. Shahnaz Bano W/O Zubair Arshad Resident Of Mohalla-New Millat Colony, P.O. Khagaul, P.S. Phulwari Sharif, District-Patna. Versus 1. The State Of Bihar Through The Principal Secretary, Health-Cum- Executive Director, State Health Society, Bihar, Patna. 2. The Secretary, Health-Cum-Executive Director, State Health Society, Bihar, Patna. 3. The District Magistrate-Cum-Chairman, District Health Society, Patna. 4. The District Magistrate-Cum-Chairman, District Health Society, Nalanda. 5. The Civil Surgeon-Cum-Member Secretary, District Health Society, Patna. 6. The Civil Surgeon-Cum-Member Secretary, District Health Society, Nalanda. 7. The I/C Medical Officer, Primary Health Centre, Nohsa, Phulwari Sharif, Patna. 8. The State Health Society Through The Executive Director, Parivar Kalyan Bhawan, Patna. 2 ---------------------------------- with Civil Writ Jurisdiction Case No.16067 of 2011 1. Dr. Abdullah Ansari S/O Shamshul Haque Ansari R/O Village- Pipra Tara, P.O.- Mustafabad, P.S.- Goria Kothi, District - Siwan Versus 1. The State Of Bihar Through The Principal Secretary Health-Cum- Executive Director, State Health Society, Bihar, Patna 2. The Secretary, Health-Cum-Executive Director State Health Society, Bihar, Patna 3. The District Magistrate-Cum-Chairman District Health Society, Siwan 4. The District Magistrate-Cum-Chairman District Health Society, Saran 5. The Civil Surgeon-Cum-Member Secretary District Health Society, Siwan 6. The Civil Surgeon -Cum-Member Secretary District Health Society, Saran 7. The I/C Medical Officer Primary Health Centre, Goria Kothi, Siwan 8. The I/C Medical Officer, Primary Health Centre, Goria Taraia, Saran 9. The State Health Society Through The Executive Director Parivar Kalyan Bhawan, Patna ---------------------------------- with Civil Writ Jurisdiction Case No.14321 of 2011 1. Dr. Bimla Kumari D/O Shri Sidheshwar Pandit R/O Vill.- Harnichak, P.O.- Anishabad, P.S.-Beur, Distt.- Patna, At Present Working And Posted Ayush Doctor In Additional Primary Health Centre, Biapur (Maner), Patna Versus 1. The State Of Bihar Through The Secretary Health-Cum-Executive Director, State Health Society, Bihar, Patna 2. The Secretary, Health-Cum-Executive Director State Health Society, Bihar, Patna 3. The District Magistrate-Cum-Chairman, District Health Society, Patna 4. The Civil Surgeon-Cum-Member Secretary District Health Society, Patna 5. The State Health Society Through The Executive Director Parivar Kalyan Bhawan, Patna-800 004 6. The I/C Medical Officer, Primary Health Centre, Maner 3 7. The Civil Surgeon-Cum-Member Secretary District Health Society, Gaya ---------------------------------- Appearance : For the Petitioners : M/s. Krishna Murari, Sr. Advocate &. Harish Kumar, Advocate For the State Health Society: Mr. K.K.Sinha, Advocate For the State : A.Cs. to M/s. GA-22, AAG-1, GP-23 & GP- 25 10. 21.12.2011 I.A.No.8839/2011 in CWJC No. 16066/2011: I.A.No.8841/2011 in CWJC No. 16050/2011: I.A.No.8842/2011 in CWJC No. 16067/2011: I.A.No.8843/2011 in CWJC No. 14321/2011: These four interlocutory applications have been filed with a prayer to amend the relief sought in the writ petitions so as to challenge the office order dated 7.12.2011 issued under the signature of State Programme Officer (Ayush) rejecting the representations made by the petitioners against the impugned order dated 17.8.2011 and holding that the posting of the petitioners on the principles of merit-cum-choice should be done in view of the order dated 17.8.2011. In the facts and circumstances, the prayer for amendment is allowed. I.A.Nos. 8839/2011 , 8841/2011 , 8842/2011 and 8843/2011 are accordingly disposed of. All the four writ applications raise common 4 issues regarding the posting of reserved category candidates, who have been selected on the basis of their merit against general category seats vis-à-vis those belonging to the similar category who have been selected and appointed against the vacancies meant for such category and therefore, these four writ applications have been heard together and are being disposed of by this common order at the stage of admission itself. The short facts of the case are that for the contractual appointment of Ayush Doctors to Additional Primary Health Centres and Primary Health Centres on the basis of a combined written competitive examination held on 20.12.2009, all the four petitioners were selected for the post of Ayush Unani/Ayurvedic/ Homoeopathic Doctors under the EBC category. On account of the higher position of the petitioners in the merit list they could qualify and were appointed against open category posts. Initially the selected candidates were posted at different places after taking into consideration the option exercised by them but subsequently on account of large number of representations received, it was decided to rationalize the posting on the basis of various principles including that of 5 husband-wife being posted at the same place. After the said rationalization, the petitioners, Dr. Imran Azam whose merit position is at Sl. No. 61 and Dr. Shahnaz Bano at Sl. No. 33 among the EBC candidates had opted for Patna but they were sent to Samastipur and Nalanda respectively whereas the three candidates belonging to EBC category having merit position at Sl. No. 64, 66 and 67 were posted at Patna. Similarly, petitioner Dr. Abdullah Ansari, whose merit position among EBC category is at Sl. No. 48, was not allotted his choice posting of Siwan and sent to Saran district whereas at least two candidates belonging to the same category at Sl. Nos. 82 and 103 were allotted posting at Siwan. In the same manner petitioner Dr. Bimla kumari placed at Sl. No. 15 in the merit list of EBC category was not given first option of posting at Patna whereas the candidates much lower in the merit list of EBC category at Sl. Nos. 47,52,55,64 and 79 were allotted Patna District. Aggrieved by the said action of the respondent-authorities, the petitioners have approached this Court. In the counter affidavit and supplementary 6 counter affidavit filed on behalf of the State Health Society, it is stated that the petitioners having been appointed against vacancies meant for open category candidates, their cases were treated as one in general category and accordingly, the allotments of districts were made to them according to the option exercised by them on merit-cum-choice basis. It is reiterated that not a single person below the petitioners, in general category, have been retained at the places of their choice posting except on the basis of husband-wife policy and merit-cum-choice basis. Learned counsel for the petitioner submits that the exercise carried out by the State Health Society in putting the petitioners in a disadvantageous position vis-à- vis other EBC category candidates, so far as the exercise of their posting on the basis of option exercised by them under the merit-cum-choice policy, is contrary to the law laid down by the Apex Court in the case of Ritesh R. Sah Vs. Dr. Y.L. Yamul and others: (1996) 3 Supreme Court Cases 253, in relevant part of para-17 of which it has been held as follows:- “…..But at the same time the provisions should be so made that it 7 will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.” Similarly, in the case of Anurag Patel Vs. U.P. Public Service Commission and others: AIR 2005 Supreme Court 1262 after quoting the decision of the Apex Court in Ritesh R. Sah (supra) and another decision, it was held as follows in the last part of para-6:- “ …..In the instant case, as noticed earlier, out of 8 petitioners in Writ 8 Petition No. 22753/93, two of them who had secured ranks 13 and 14 in the merit list, were appointed as Sales Tax Officer-II, whereas the persons who secured rank Nos. 38,72 and 97, ranks lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons who are more meritorious and directed that a list of all selected Backward Class candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a person lower in the list will be seen only later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court.” Learned counsel for the State Health Society was unable to meet the contention raised on behalf of the petitioners in view of the law succinctly laid down by the aforesaid decisions of the Supreme Court. On a consideration of the aforesaid decisions it is evident that while a candidate belonging to the reserved category, who may have performed well enough to be selected against vacancy meant for general category, 9 would be entitled to be appointed against the post of general category but that cannot mean that he would be given a treatment more disadvantageous than others belonging to the same reserved category who were lower down the merit list. In the matter of exercise of choice or option the said candidate has to be treated along with other reserved category candidates belonging to his category and only then the option or preference exercised by him has to be considered in order of merit among the reserved category candidates belonging to that particular class. Thus, in the present matter, where it is admitted that the petitioners stood higher in the merit list vis-à-vis the other EBC category candidate, they could not have been ignored for choice posting vis-à-vis the candidates of EBC category much lower in the merit list, who have been given posting at the places which the petitioners had opted for and which they have been denied. In the aforesaid circumstances, the impugned orders dated 17.8.2011 and 7.12.2011 are quashed in so far as they concern the present petitioners. The respondents are directed to post the petitioners as per their position in the merit-cum- choice list along with all other EBC 10 category candidates. Let the exercise be completed within a period of three weeks from the date of receipt/production of a copy of this order. It is made clear that any orders passed consequent upon the impugned order dated 17.8.2011, which has been quashed, shall also be treated as having been quashed and the petitioners shall be entitled to all benefits to which they would have been otherwise entitled to but for the order dated 17.8.2011. All the four writ applications are accordingly allowed with the aforesaid observations and directions S.Pandey (Ramesh Kumar Datta, J.)