IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11875 of 1998 1. Pushpa Kumari, Daughter of Ram Chandra Prasad and Wife of Shankar Prasad, resident of Budh Marg Road No.2, Postal Park, Chiraiya Tand, Patna- 800001. 2. Magadh Malti, Daughter of Mr. Harihar Prasad and Wife of Krishna Chandra Singh, Chandmari Road, Chitra Gupta Path, Patna. 3. Kumari Usha Sinha, Daughter of Babua Nand Singh, Staff Nurse, New Nurses Hostel, Nalanda Medical College Hospital, Agam Kuan, Patna-7. 4. Pushpa Kumari, Daughter of Ram Singhasan Prasad and Wife of Dilip Kumar, Village Naya Gaun, Post Office Gulzarbagh, Police Station Alamganj, Patna-800007. 5. Sushila Kumari, Daughter of Sri Lal Prasad, Wife of Arun Kumar, Village Akbarpur, Police Station and Post Office Asthawan, Dist. Nalanda. 6. Nill Mani Kumari, Daughter of Rameshwar Prasad Singh, Village Singriwan, Post Office Singriwan, Police Station Fatwah, Dist. Patna. ----- Petitioners Versus 1. The State of Bihar in the Health Department, represented through its Commissioner-cum- Secretary, Government of Bihar, Patna. 2. Director-in-Chief, Health Services, Bihar, Patna. 3. Bihar Public Service Commission, represented through its Chairman, 15, Jawaharlal Nehru Marg, Bailey Road, Patna. ------- Respondents ----------- For the Petitioners :- Mr. Binay Kumar, Adv. For the Respondents 1 & 2 :- Mr. Ray Shivaji Nath, AAG-3 Mr. Divya Verma, AC to AAG-3 Respondent No.3 :- Mr. Kumar Brajendra Nath, Adv. Mr. Durga Narayan, Adv. ------------ P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (28.07.2011) Mihir Kumar Jha, J. I.A. No. 10007 of 2010 I.A. No. 10112 of 2010 I.A. No. 10639 of 2010 All these I.A. applications have been filed for adding the intervenor a writ petitioner and allow them also to pray for the same relief, which has been prayed in this writ application. 2 This Court would however find it difficult to allow such prayer for the reason that under Rule 5 under Chapter 21(C) of the High Court Rules, there is no provision for making anyone as intervenor writ petitioner. To that extent, High Court Rules provide for intervention of a person for opposing the writ application. Rule 5 of Chapter 21(C) reads as follows:- “5. The notice of the application along with a copy of the application and annexures, if any, shall be served on all persons directly affected and on such other persons as the Court may direct: Provide that on the hearing of any such application, any person who desires to be heard in opposition and appears to the Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with notice of the application and shall be liable to costs in the discretion of the Court, if the order shall be made.” From the aforesaid reading of the Patna High Court Rules, this is absolutely clear that in a pending writ application, an intervention application can be filed for opposing the prayer in the writ application and not for being added as a petitioner for the same relief. Such persons, claiming identical relief for their individual cause of action, that can be pursued by them by filing a fresh writ application. Today, when the case has been taken up for final hearing, this Court would not find expedient in the ends of justice now to delay the proceeding for 3 allowing the intervenors to be added as petitioner and again taking a longer route of directing the respondents to file their counter affidavit as regard the case of the intervenors, the proposed writ petitioners. Thus, for the aforementioned reason, this Court would find no justification for entertaining the prayer for intervenors for making them writ petitioner in this writ application and consequently, I.A. Nos. 10112 of 2010, I.A. No. 10639 of 2010 and I.A. No. 1007 of 2010 are hereby dismissed. Notwithstanding, the dismissal of such intervention applications, the concerned persons, seeking intervention, shall have the right to file their independent writ application and claim the same relief either on the basis of the result of this case or on any other additional ground that may be found by them. CWJC No. 11875 of 1998 Heard learned counsel for the petitioners as also Mr. Rai Shivajee Nath, learned AAG-3, learned counsel for the State and Mr. Kumar Bajendra Nath, learned counsel on behalf of the Bihar Public Service Commission. The prayer of the petitioners in this writ application reads as follows:- “1. That this application is for appropriate 4 directions to the State Government in the Health Department to honour their solemn commitment and promise in accordance with advertisement published by the Director-in- Chief of Health Services, Bihar, Patna, in the INDIAN NATION Saturday the 28th September, 1985 and grant employment to the petitioners who were selected in accordance with the said advertisement and had their training at Nalanda Medical College and serials 1 to 4 successfully passed out in 1990 and serials 5 and 6 in 1991 as the respondent State Government was bound to comply with paragraph 5 of the advertisement, namely, to grant five years employment to the petitioners 1 to 4 in the year 1990 and petitioner nos. 5 to 6 in the year 1991. Paragraph 5 of the advertisement is quoted below: “The candidates selected for training will have to serve the State Government for at least 5(five) years after training for which they will have to execute a Bond at the time of admission in the training.” As would be evident from the prayer itself, the petitioners have based their claim on a clause of the advertisement for admission in Nursing Training Course laying down that upon selection for admission in such training course, they will have to execute a bond for serving the State Government at least for a period of five years. Learned counsel for the petitioners, therefore, has emphasized that it was under the legitimate expectation created under the advertisement that the petitioners had taken admission in the Nursing 5 Training Course and, therefore, once they have passed such nursing course in the year 1990, they could not have been denied appointment on joining on the post of Nurse Grade-A. He has also submitted that the Government resolution of the year 1996 dated 10.6.1996, cannot seal the fate of the petitioners, inasmuch as, the same has only to be given a prospective operation, wherein, the post of Nurse Grade-A is to be filled up by holding the competitive examination through Bihar Public Service Commission. He has thus concentrated on the aspect that since the petitioners had passed the nursing training course in the year 1990, this Court should direct for their appointment as per the prevalent procedure and practice, which was in vogue prior to 10.6.1996. He has further submitted that it is a well settled proposition of law that the existing vacancy prior to the Government resolution dated 10.6.1996 had to be filled up by the earlier mode of recruitment wherein, the Director-in-Chief of the Health Services was authorized to appoint the nurses directly on the basis of their passing of the examination. Reliance in this regard has also been placed by him on an order of this Court dated 17.8.2010 in CWJC No. 5538 of 1996 [Prashikshit Mahila Barojgar Swasthya Karyakarta (ANM), Vs. State of Bihar & Ors.] Learned counsel for the State, on the other hand, 6 has submitted that merely because the petitioners were admitted in the nursing training course on the basis of an advertisement containing a provision of executing bond, they cannot claim appointment on the post of Nurse as a matter of right. In this regard, he would submit that after resolution dated 10.6.1996 had come into force, the appointment in and every post of Nurse Grade-A had to be made on the basis of the result of the competitive examination to be conducted by the Bihar Public Service Commission. He has also explained that the entire issue as with regard to the bond based on para-422 of the Health Manual was gone into by the Division Bench of this Court in the case of Manju Kumari Vs. State of Bihar & Ors. and its analogous cases and it was held in the judgment dated 15.7.2002 that such execution of bond would not confer any right for being appointed on the post of Nurse. In the light of the aforementioned submissions, the first and foremost issue which has to be gone into by this Court would be with regard to the right of the petitioners to claim appointment on the post of Nurse Grade-A. It is well settled that every public post has to be filled up by following the mandate of Article 14 & 16 of the Constitution of India and, therefore, if the State Government, on careful consideration, had departed with the earlier practice of straightway appointing someone on the basis of the result of the 7 Nurse Training Course by subjecting all of them to a common competitive test, the same cannot be held to be bad. In fact, the same would truly serve the mandate of Article 14 & 16 of the Constitution of India, wherein, every citizen having the requisite qualification have a right to be at least considered for appointment on a public post. The issue, which has been really bothering the petitioners and probably making them convined of their having a case for being appointed directly without facing such competitive examination, is their apprehension of being subjected to the competitive examination along with other nurses, who have passed their training examination subsequently. In this context, learned counsel for the petitioners was of the view that as there is a change in the qualification for admission in the Nurses Training Course by making I.Sc. with Biology compulsory, those nurses, who would now come to compete after completing their Nurses Training Course will have a comparatively advantageous position as against the person like the petitioners, who had taken their admission merely as an Intermediate and not Intermediate with Science and Biology. In the considered opinion of this Court, even this part of the submission of the learned counsel for the petitioners has to be noted only for its being rejected. It is not in doubt that the statutory 8 requirement by way of qualification for the post of Nurse Grade-A remains the same, namely, Intermediate. It is thus immaterial as to how the candidates would get admitted in Nurses Training Course because whenever the Bihar Public Service Commission will take up exercise of conducting the competitive test, it will have to base its selection norms on the course of study of the Nurse Training Course. It is not the case of the petitioners that even the Nurse Training Course Programme has been changed and, therefore, the apprehension of the petitioners that they would be standing on a disadvantageous position on account of other candidates coming from Science with Biology for being admitted in the Nurse Training Course and competing the same, seems to be wholly misconceived. The issue that the petitioners’ execution of bond in terms of the advertisement, as quoted in the prayer portion above, was directly gone into by the Division Bench of this Court in the case of Manju Kumari (supra), wherein, after considering all the aspects in relation to the post of auxiliary nurse and mid wife, it was held as follows:- “7. Admittedly, statutory rules have not been framed for appointment on the post of ANM. The Bihar Health Manual simply provides for training of Nurses & Midwives. Paras 419 and 420 of the Manual refer to General Nurses Training and Grade A Nurse Training, para 423 refers to training of Lady Health Visitor 9 (LHV). The provisions relating to Auxiliary Nurses & Midwives (ANM) are contained in para 422. These provisions refer to period of training, centre of training, the eligibility etc which are not relevant for the purpose of these cases. The only part of para 422 which could be said to be relevant and upon which reliance is placed by the petitioners relating to absorption runs as follows:- “After successful completion of the training, Auxiliary Nurses Mid Wives are absorbed in the services of the State Government in the scale of ....... plus allowances.” The point for consideration is whether para 422 confers any right on the candidates to claim absorption on successful completion of training. 8. It is not in dispute that besides the successful completion of training the candidates are also required to be registered with the Bihar Nurses Registration Council before they can be considered for appointment as ANM under the State Government. In other words, it is only the trained and registered Nurses & Midwives who are eligible for appointment. The Court observed in the order of reference that this was the eligibility prior to 10.6.96 and this continues to be the eligibility even now. The resolution dated 10.6.96 has not brought any change in the qualification or eligibility for appointment. The only change brought about is that the appointment is to be made on the basis of written examination by the Bihar Public Service Commission. The moot question thus is whether a candidate can claim any right that he must be considered for appointment in accordance with the particular mode when his right to be considered for appointment is not 10 affected. Undisputedly no person can claim any vested or indefeasible right for appointment. The candidates have only limited right to be considered for appointment and when this right is not affected it is doubtful if he can object to the mode of selection or appointment. 9. No attempt was made to find fault with the above quoted observations in the order of reference on behalf of the petitioners. Counsel fairly stated that they have no vested right to appointment; however as the process had already commenced, according to them, the appointment should be made as per the old process. This is the substance of the orders relied upon on behalf of the petitioners. It would appear that in passing some of those orders reliance had been placed on decisions of the Supreme Court in A.A. Calton Vs. the Director of Education & anr., (1983) 3 SCC 33, Y.V. Rangaiah Vs. J. Shree Niwas Rao, (1983) 3 SCC 284, and P. Mahendran & Ors. Vs. State of Karnataka & Ors., (1990) 1 SCC 411. In the case of A.A. Calton the High Court had earlier directed the Director to make fresh appointment. In the meantime power of the Director to make appointment was taken away. The Supreme Court held that the selection made by the Director was not illegal. It observed that the process of selection had commenced from the stage of calling for the application and continued up to the date when the Director was entitled to make selection and the entire process was integrated one. In the case of Y.V. Rangaiah, under the relevant earlier existing rule, Lower Division Clerks could be appointed as Sub-Registrar Grade II. Under the amended rules transfer or promotion to that post could be made from the Upper Division 11 Clerks, thus affecting the rights of Lower Division Clerks. In the case of P. Mahendran by amendment it was sought to change the eligibility criteria for appointment on the post of Motor Vehicle Inspector. While earlier in terms of the relevant rule a Diploma holder in Automobile Engineering or Mechanical Engineering was eligible for appointment, as a result of the amendment the Diploma holder became ineligible. The Court noted that when the selection process commenced the concerned candidates were eligible but for the interim order of the High Court their selection and appointment would have materialized. The question thus was as to whether after the interim order stood vacated the selected candidates could be given appointment in the light of the earlier rules or not. In these facts the supreme court upheld their claim. 10. In the instant case as observed above no change has been brought about in the matter of qualification or eligibility for appointment on the post. In the circumstances the ratio of the above said decision has no application. In Jai Singh Dalal & Ors. Vs. State of Haryana & anr., 1993 Suppl (2) SCC 600, a three Judge Bench of the Supreme Court held that when process of recruitment had not been finalized and culminated into select list, a candidate did not have any right of appointment. In Shankarsan Dash Vs. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Supreme Court held that empanelment does not create any absolute or indefeasible right to appointment. Earlier, in State of Haryana Vs. Subhash Chander Marwaha & Ors., (1974) 3 SCC 220 it was held that process for selection and selection for the purpose of recruitment against the existing or anticipated vacancy 12 does not create a right to be appointed on the post which can be enforced by a mandamus. In State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. (1984) 6 SCC 151, the Court observed:- “The State has got power to prescribe qualifications for recruitment. The instant case is not one of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to consideration of their claims according to the Rules then in vogue. The amended rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended rules.” In Rajasthan Public Service Commission Vs. Chanan Ram, (1998) 4 SCC 202, the Court upheld the recruitment process on the basis of amended rules with respect to the earlier vacancies. 11. The instant case stands on a far better footing from the respondents‟ point of view inasmuch as the impugned resolution does not bring about any change in qualification or eligibility and thus does not affect the right of the candidates considered for appointment on the post. The only change brought about is as to mode of selection on the basis of written examination and the petitioners cannot 13 make any grievance of it. If they cannot make any grievance of addition of qualification, as held by the Supreme Court, surely, they cannot object to recruitment on the basis of written test. It need hardly be emphasized that recruitment on the basis of written examination eliminates the chance of favoritism and by and large ensures fair selection. Considering that the basis of admission to the ANM course is the result of the matriculation examination it is all the more important that the candidates are subjected to selection test consisting of written examination. The manner in which matriculation examinations are conducted in the State of Bihar is an open secret. 12. Another aspect of the case is that if the recruitment is made in accordance with Para 422 of the Bihar Health Manual i.e. by absorption it would follow that all the candidates on successful completion of training and registration with the Bihar Nurses Registration Council would become entitled to appointment by absorption. Clearly, all of them cannot be absorbed in the services of the State Government. That would depend on availability of vacancies; besides that would be violative of the reservation rules, for in the matter of admission to the ANM course in private institutions the reservation rules are not followed and as per judgment of this Court in the cases of Indu Rani, Suman Kumari and Poonam Kumari, CWJC Nos. 3624/91, 9618/94 and 9612/94, the State Govt. cannot make any discrimination between the ANMs on the basis of their getting training from the Government Institutes or Non-government Institutes. 13. As a matter of fact I have grave doubts if 14 para 422 can be construed as a substantive provision for absorption of ANMs. All that para 422 contemplates is that on successful completion of training they are eligible for appointment under the State Govt. As mentioned above, the provisions of the Bihar Health Manual relates to training of different categories of Nurses & Midwives at the end of which they become eligible for appointment. This is what the relevant part of para 422 (quoted above) says. There being no substantive rule for appointment on the post of ANM a procedure having been laid down in the impugned resolution, which cannot be said to be unfair or arbitrary, the grievance of the petitioners has to be rejected. 14. The suggestion of Shri Ganesh Prasad Singh that if adequate number of vacancies are not available, a standing panel should be prepared from which appointment could be made against the vacancies as and when they arise, cannot be accepted, for any standing panel of the kind suggested would be at the cost of the candidates who may acquire the qualification later. In State of U.P. Vs Ram Gopal Shukla, (1981) 3 SCC 1, by framing rules under Article 309 of the Constitution the Government of Uttar Pradesh tried to make appointments from a panel until it stood exhausted, provision was held to be violative of Articles 14 and 16. 15. The other suggestion to prepare yearwise panel for the candidates on the basis of year of passing the examination also cannot be accepted. That would amount to introducing a „chain system‟ of appointment. In J & K Public Service Commission Vs. V. Nagendra Mohan, (1994) 2 SCC 630, disapproving the method the Supreme Court observed that it is difficult to 15 accept suggestion for adoption of chain system of recruitment by notifying each year‟s vacancies and recruiting candidates found eligible for the respective years which would be fraught with grave consequences. The government need not notify vacancies as they arise. It may inform, as early as possible, the existing and anticipated vacancies to the Public Service Commission so that every eligible person may apply and be considered for recruitment, if he satisfies the requisite qualification. “Pegging the recruitment in the chain system would deprive all the eligible candidates as on the date of inviting application offending Articles 14 and 16”.---- -” In the considered opinion of this Court, each and every aspect of the matter which has been canvassed by the learned counsel for the petitioners in this case stands answered by the Division Bench of this Court in the case of Manju Kumari (supra). The reliance placed by the learned counsel for the petitioners on an order of this Court in the case of Prashikshit Mahila Barojgar Swasthya Karyakarta (supra) seems to be wholly misplaced. That case was in fact related to the manner of filling up the post by contractual appointment in place of permanent appointment. That however is not the case of the petitioners. Here in this case, the petitioners, having passed their Nursing Training Course, are seeking their regular appointment, which they can get easily if they compete in the selection test conducted by the Bihar 16 Public Service Commission as per the resolution of the State Government dated 10.6.1996. The concept of the ‘old vacancy and old rules' very heavily relied by the learned counsel for the petitioners in fact would also not apply to the facts of this case. The provision of the Health Manual under Clause-420 to paragraph no.422 for the ANM could have given some right to the petitioners for being appointed. Such provision made by executive instruction in the Health Manual cannot be relied now when a clear departure has been made by framing Rules under proviso to Article 309 of the Constitution of India. As a matter of fact earlier the number of posts were more and there was possibility of assured appointment and thus the State used to follow the practice of absorbing the Nurses directly on the basis of the result but then such practice of