IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL REVIEW No.213 of 2007 1. THE STATE OF BIHAR THROUGH SECRETARY-CUM- COMMISSIONER, DEPARTMENT OF HEALTH SERVICES AND FAMILY WELFARE, BIHAR, PATNA 2. THE ADDITIONAL SECRETARY, DEPARTMENT OF HEALTH SERVICES AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA 4. THE DIRECTOR, HEALTH SERVICES AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA 5. THE DEPUTY DIRECTOR, HEALTH SERVICES AND FAMILY WELFARE, GOVT. OF BIHAR, PATNA ………. RESPONDENTS/-PETITIONERS Versus 1. SHAMSHER SINGH AWADHWALE , S/O- LATE SHYAM SUNDAR SINHA, R/O- VILLAGE – BHERIA, P.S. CHANDI, DISTRICT – NALANDA ………….. PETITIONER/- O.P. 2. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA 3. THE UNION OF INDIA, THROUGH THE DIRECTOR GENERAL, HEALTH SERVICES, GOVERNMENT OF INDIA IN THE CAPACITY OF CHAIRMAN, TUBERCULOSIS ASSOCIATION OF INDIA, 3, RED CROSS ROAD, NEW DELHI – 110001 …………… RESPONDENT/O.P. ----------- 13. 18.04.2009 Heard. Petitioner-State seeks review of the order dated 30th of April 2007, passed in C.W.J.C. No. 11497 of 2005 whereby the Government resolution bearing Memo No. 1497 (ii) dated 09.12.2003, (Annexure-13 of the writ application) directing that appointment of the candidates on the post of Health Visitor who have not obtained the technical training certificate from government institute cannot be appointed was quashed - 2 - by the order under review. The aforesaid resolution was assailed by the writ petitioner on the ground that in absence of any requirement training of Government Institute in the advertisement no. 1/97/55/2007 as contained in Annexure-4 of the writ application, the impugned decision can not be taken to disentitle the petitioner who was selected and recommended by Bihar Public Service Commission for appointment in question. Therefore, the candidature of the petitioner cannot be rejected who has been selected in terms of the advertisement and, as a matter of fact, requirement of having training certificate from Government Institute is specifically mentioned against other posts like B.C.G. (technician). The writ application was allowed quashing the aforesaid Government resolution primarily on the ground that for selection on the post of Health Visitor, the prescribed essential requirement was of technical training besides academic qualification of intermediate (science). There was no stipulation that the technical training in question must be from a Government Institute. The writ petitioner had obtained such certificate of training from “Tuberculosis Association of India”, a recognized institution under the provisions of Indian Nursing Council Act, and included in the list of - 3 - recognized institutions under the aforesaid Act. The contention of the writ petitioner that having obtained the technical training certificate from the aforesaid institute, his appointment could not have been refused on the ground that he has obtained the certificate from other than a government institute, as the same was not a condition prescribed in the advertisement in question, was accepted and the writ application was allowed quashing the aforesaid Government Resolution. No counter affidavit was filed on behalf of the State even though the writ application was filed on 12.09.2005 after serving a copy of the writ application on the State. In course of hearing, learned counsel appearing for the State, sought to review the order on the ground that no counter affidavit was filed on behalf of the State as a result, the State could not place the relevant facts for opposing the writ application. The learned counsel also relied upon the order dated 04.04.2203, passed in C.W.J.C. No. 142 of 2003, annexed as Annexure-12 to the writ application, as also the judgement dated 22.05.2002, passed in C.W.J.C. No. 9256 and 12545 of 1999 vide Annexure-C to the review application in support of the proposition that a candidate cannot be appointed who did not obtain the technical training - 4 - certificate from the Government Institute. The writ petitioner having obtained the training certificate from other than Government Institute was not qualified for being appointed on the post of Health Visitor. Accordingly, the order in question is sought to be reviewed. Learned counsel appearing on behalf of the Opposite Party (Writ petitioner) opposes the prayer and submits that the State did not choose to file counter affidavit for one and half years without any explanation for not filing for the same. As such, the above contention raised on behalf of the State in this review application is devoid of any merit. It was next contended that obtaining the training certificate from the Government Institute was not the requirement for appointment on the post of Health Visitor. Such requirement of obtaining the training certificate from a Government Institute is confined to the appointment on the post of B.C.G. (technician) at Serial No. 7, in the advertisement in question vide Annexure-4 to the writ application and in case of appointment of Health Visitor, the only requirement was that the candidate should have the technical training besides being an intermediate (science). There is no stipulation in the advertisement that it must be from a Government Institute. Learned - 5 - counsel, further submits that the aforesaid two decisions of this court as relied upon by the petitioner-State in support of the review application is not applicable in the facts and circumstances of the present case, as in the first decision vide Annexure-12 of the writ application the court merely directed the State to take a final decision regarding the eligibility of the candidate seeking appointment on the post of Health Visitor while in the second decision vide Annexure-C to the Review Application the question for consideration was of appointment on the post of B.C.G. (technician) in which case it was required that the training must be obtained from a Government Institute which is not the case in respect of Health Visitor. Besides the above, it was also submitted that a Division Bench of this court while considering the Contempt matter vide M.J.C. No. 2828 of 1998, registered in terms of the order of the Hon’ble Supreme Court vide order dated 03.11.1997, in Civil Appeal No. 10758-59 of 1995, held by the order dated 12.03.2001, (Annexure-9 of the writ application) to the effect that the instant selection process and appointment has to be finalized on the terms and conditions enumerated in the advertisement. Considering the submission of the parties and on perusal of their respective pleadings, it appears that there - 6 - is absolutely no justification/ explanation brought on record to justify non-filing of the counter affidavit for such a long time on behalf of the State in the writ application. As such, in my opinion, the order sought to be reviewed on this ground cannot be accepted. So far the contention of the State on merits that the petitioner was not qualified, as he did not obtain the technical certificate from a Government Institute also has not legs to stand for the simple reason that in terms of the necessary requirements stipulated in the advertisement vide Annexure-4 of the application, it would appear that appointment on the post of Health Visitor is that the candidate should be intermediate (science) and should have obtained technical training of Health Visitor. It is evident that the post for which the training from Government Institute is required, has been specifically mentioned and therefore the contention of the State that the petitioner was required to have obtained the technical training certificate from the Government Institute cannot be accepted in absence of any such requirement as per the advertisement in question. The aforesaid two decisions of this court relied upon by the State are equally of no help for the reasons that the order dated 04.04.2003 in C.W.J.C. No. 142 of 2003 (Annexure-12 of the application) directed the State to decide the question - 7 - of eligibility of the candidate and in the second case disposed of by order dated 22.05.2002, passed in C.W.J.C. No. 9256 and 12545 of 1999, the matter in those case related to the appointment on the post of B.C.G. (technician) having specific requirement that candidate must have technical training certificate from Government Institute whereas the present case is of the appointment on the post of Health Visitor having no such requirement. Besides the above the Division Bench of this court as per order dated 12.03.2001 in the contempt proceeding vide M.J.C. No. 2828 of 1998 arising out the controversy in the matter of appointment on the different posts including Health Visitor pursuant to the advertisement in question held in paragraph – 10 as follows: “In our view, having regard to such disputed facts, it would not be possible for this court to scrutinize the materials in a contempt proceeding. But undisputedly certain conditions regarding eligibility of the candidate for respective posts were definitely prescribed in the advertisement. Therefore, in view of settled norms, the instant selection process and appointment has to be finalized on the terms and conditions, enumerated in the advertisement. If for some of the posts there was no specific requirement that a candidate must possess - 8 - training from a Government recognized institution, no restriction subsequently can be brought if he or she produces a certificate granted by the private institution. Likewise with respect to the posts, which are required to be filled up by the candidates having got training from recognized institutions by the State Govt., no candidate having otherwise training can be preferred. The allegation regarding irregularity in the selection process etc. can only be examined before an appropriate forum, but not in a contempt proceeding. In the result, in view of the above discussions I do not find any merit in this review application. The same is accordingly dismissed. Jagdish/- (Shailesh Kumar Sinha,J)