IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.4193 OF 2005 DR.SURENDRA KUMAR, SON OF LATE PRASURAM, WORKING AS LECTURER IN THE DEPARTMENT OF SURGERY, GOVERNMENT AYURVEDIC COLLEGE, KADAMKUAN, PATNA ………………………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE SECRETARY, MEDICAL EDUCATION, FAMILY WELFARE AND (DESHI) DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA 2. THE SECRETARY OF ADMINISTRATIVE AND PERSONNEL REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE CHAIRMAN OF BIHAR PUBLIC SERVICE COMMISSION, GOVERNMENT OF BIHAR, PATNA 4. THE DEPUTY SECRETARY, MEDICAL EDUCATION, FAMILY WELFARE AND INDIGENOUS MEDICINE, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA 5. THE DIRECTOR (DESHI CHIKITSA), GOVERNMENT OF BIHAR, PATNA ………………………………………………………………………….RESPONDENTS ******** FOR THE PETITIONER :- MR. VINAY KRISHNA TRIPATHY, ADVOCATE FOR THE INTERVENORS:- MR. SURENDRA PRASAD SINGH, ADV. ******* 5 23 .02.2011 The petitioner has filed this writ application for quashing the notification dated 15.12.2004 issued by the Deputy Secretary, Medical Education, Family Welfare, Department of Health, Government of Bihar, Patna whereby the respondent-State has regularized the services of persons juniors to the petitioner, who were working as Lecturers on the basis of being deputed on the said posts. The petitioner challenges the order in view of the observations of this Court passed in CWJC No. 9095 of 1994, CWJC No. 9601 of 1997, CWJC No. 4895 of 1995, CWJC No. 1212 of 1999, CWJC No.1289 of 2002 and CWJC No. 366 of 2005. Before discussing the orders passed by this Court 2 in different writ applications, it would be relevant to state the facts on the basis of which the petitioner has claimed that he should, after quashing the order dated 15.12.2004, be regularized as a Lecturer with effect from 11.01.1995 and be promoted to the post of Reader in the Government Ayurvedic College, Patna. The petitioner was appointed in the year 1992 on the post of Ayurvedic Medical Officer. Thereafter, the petitioner was posted in the Government Ayurvedic College, Patna and joined on 11.01.1995 along with five other Medical Officers. The order dated 30.12.1994 deputing the petitioner in the Government Ayurvedic College would indicate that the petitioner was allowed to work as a Lecturer in order to complete the M. D. Course. It has also been specifically mentioned in the said order dated 30.12.1994 that the petitioner would not be entitled for the benefit of the teaching experience during his tenure of posting in the Government Ayurvedic College. The reason for not including the period of teaching in the College aforesaid is that the Central Council Indian Medicine Act, 1970 clearly mentions that the minimum qualification for appointment on the post of Lecturer is post graduate degree in the subject concerned. The appointment on the post of lecturer also envisages that the candidate should be recommended by the Bihar Public Service Commission for the purpose of appointment. In the meantime, the 3 respondent-state deputed vide notification dated 16.5.1997 several persons as lecturers in view of the fact that there was urgency to fill up the post due to shortage of lecturers and the fact that Bihar Public Service Commission was not taking any action to recommend persons for the post of lecturers. Subsequently, by notification no. 338 dated 17.5.1997 and notification no. 414 dated 17.6.1997, the respondent-state deputed Medical Officers against the vacant post of lecturers in different departments in the Government Ayurvedic College (vide Annexure 7A and 7B). The deputations of various persons were challenged vide CWJC No. 9601 of 1997 and CWJC No. 4895 of 1995. The petitioner completed his postgraduate studies. He applied for the post of lecturer against Advertisement Nos. 5 of 2001 and 10 of 2001. The petitioner succeeded and was declared successful for the subject for Pharmocolgy (Advertisement No. 5 of 2001) and was also declared a successful candidate against the Advertisement No. 10 of 2001 it may, however, be noted that although the petitioners had done his postgraduate degree in Pharmocology, he was allowed to work as a lecturer in Surgery, the post on which he was deputed in the year 1994. Therefore, the petitioner is claiming that he should be regularized taking into account the period that he has worked as lecturer i.e. from 11.1.1995 and thereafter he 4 was promoted to the post of Reader. It is not in dispute that the minimum qualification for appointment on the post of lecturer is postgraduate degree in the subject in which the incumbent is seeking appointment. The parties on principle also agree that the appointment on the post of lecturer is to be made after advertisement and due recommendation of the Bihar Public Service Commission. The only question to be decided here is whether the notification dated 15.12.2004 by which 25 persons have been regularized by the state government has been issued without application of mind and following the due procedures required for regularizing the services of a particular class of persons ? The beneficiary of Annexure-10 dated 15.12.2004 were not made party in this writ application at the initial stage, however, an interlocutary application being I.A. No. 179 of 2011 has been filed on 10.01.2011 by the petitioner for adding the 25 persons as party-respondents in this writ application. This Court is not passing any order for addition of parties in this case as this Court does not intend to pass any orders adverse to the interests of the persons who have been benefited by Annexure-10 for the reasons mentioned hereinafter in this order. I shall now discuss the various orders passed by this Court. CWJC No. 5898 of 1994 was heard along with 5 CWJC No. 9095 of 1994. The prayer of the writ petitioners in both the above writ applications was for appointment on the post of Demonstrator which has now been redesignated as a lecturer. The Court dismissed the two writ applications on the ground that the educational qualification can be a basis for a valid classification in matters of appointment and since the persons seeking to be appointed as lecturers did not have the educational qualification of having a postgraduate degree, their cases were dismissed. The issues raised in the aforesaid writ applications are not very relevant in the facts of the present case. Counsel for the petitioner next referred to the order passed in CWJC No. 4895 of 1997, disposed of on 29.07.1998. The writ petitioner Dr. Uday Shankar Singh and Another made a grievance that the State authorities without any advertisement of the post of Lecturer and Professors in Ayurvedic College, are making appointments on pick and choose basis. The facts reveals that by the resolution dated 19.06.1991, posts of Lecturers in Ayurvedic Colleges were to be filled up on the basis of the recommendation of the Bihar Public Service Commission after due advertisement etc., however, no advertisement was issued. The State took a stand that they have already send the requisition to the Bihar Public Service Commission which was under consideration of the Bihar Public Service Commission. The 6 Bihar Public Service Commission was asked to take steps to finalize the process for advertising the posts of Lecturers. This order does not bind the petitioner in any way, as there was a mere direction by the Court to the Bihar Public Service Commission and the Government to take steps for advertising the post of Lecturers. A contempt application being MJC No. 1212 of 1999 was filed for compliance of the order passed in CWJC No. 4895 of 1997. Apparently, in the show cause of the Department, the ground taken was that one of the Ayurvedic College at Buxar was facing a criminal investigation by the Central Bureau of Investigation and as such, there was a delay in the implementation of the order. Subsequently, a stand was also taken that the roaster clearance was issued on 20.11.2001, and as such the Department will communicate the roaster clearance to the Bihar Public Service Commission by 20.11.2001 and therefore, the contempt proceedings were dropped. Thereafter, another writ application being CWJC No. 1289 of 2002 was filed on behalf of one Dr. Binod Pathak and some others in which there was a complaint that although there were 128 sanctioned posts of Lecturers, the advertisement issued by the Bihar Public Service Commission was only for 64 vacancies. There was also some dispute with respect to the clauses relating to domicile and age limit. The petitioners also submitted before the Court 7 that they were entitled for being considered for appointment against the advertisement and were also entitled to be considered for appointment by regularizing their services. This Court clarified the matter by saying as follows:- “It was submitted that as the petitioners are eligible both for regularization and direct recruitment pursuant to the above advertisement, a clarification may be made that their participation in the selection pursuant to the advertisement may not bar consideration of their cases for regularization. The submission appears to be well founded. There does not appear to be any Government decision to the contrary barring consideration of cases of such of the persons for regularization who participated in the selection for direct recruitment and in that view of the matter, the Court would clarify that the petitioner’s participation in the selection for direct recruitment will not be a bar to consideration of their cases for regularization in accordance with law.” These observations made by the Court are quite clear inasmuch as the Court has considered that the claim for appointment on the basis of an advertisement and selection process by the Bihar Public Service Commission would not bar a candidate from being considered as a Lecturer by regularizing his services. The decision of this case helps the 25 beneficiaries of Annexure-10 rather than 8 the case of the petitioner. Counsel for the petitioner refers to still another writ application being CWJC No. 366 of 2005. One Nawal Kishore Singh filed CWJC No. 366 of 2005 claiming that persons in Ayurvedic College and Hospital who are not duly qualified for holding the gazette posts contrary to the statutory provisions. This Court refused to interfere as it holds that it cannot conduct a roving enquiry and gave the petitioner liberty to move the concerned authorities. Therefore, this Court finds that in fact the petitioner’s submission that the order for regularizing the services of the 25 persons has not been passed in violation of any orders of this Court. The next issue before this Court is whether the order of regularization was passed after due application of mind? To answer this question, the Court will consider the stand of the respondent-State. The State has taken a stand that the orders passed for regularizing the services of the 25 persons vide Notification No. 907 dated 15.12.2004 has been passed in compliance of the orders of this Court passed in CWJC No. 1289 of 2003, 10971 of 2003 and MJC No. 1684 of 2004. On perusal of all the documents as well as the note sheets filed in this Court and also produced before this Court, there was a resolution in the year 1991 that all selection for the post of Lecturers in the Ayurvedic 9 College should be made as per the resolution of the year 1991, which envisages that the selection should be made through the Bihar Public Service Commission. Thereafter, it appears that there was a decision taken in the meeting dated 16.08.2001 that the 1991 resolution be amended up to the effect that 50 per cent of the vacancies should be filled by regularizing the services and rest 50 per cent of the vacancies through the selection by the Bihar Public Service Commission. However, 1991 resolution was not amended. Subsequent to that, the two writ applications were filed being CWJC Nos. 10971 of 2003 and 1289 of 2004, disposed of on 17.03.2004 and 16.04.2004 respectively. The order passed in CWJC No. 10971 of 2003 is contained in Annexure-D to the counter affidavit, which reflects that the petitioners were aggrieved by the fact that despite the assurances given by the State Government to amend the resolution of the year 1991 in accordance with the Government Notification of the year 2001. No steps have been taken in that direction. In the said writ applications, a stand was taken on behalf of the State Government that they are taking steps for regularizing the services of the petitioners and other such persons, but amendment has to be made in the resolution which requires the approval of the Council of the Ministers. The Court granted two months’ time to the State for taking necessary steps in that 10 direction. The State ought to have filed a review application in CWJC Nos. 1289 of 2003 and 10971 of 2003 in view of the observations of this Court in the writ applications filed earlier i.e. CWJC Nos. 5898 of 2004, 9095 of 2004 and 4895 of 1997, wherein the Court noticed that the appointment to the post of Lecturers was to be made on the recommendation of the Bihar Public Service Commission after considering the educational qualifications of a candidate and the resolution of the State Government of the year 1991. The Government has now taken a decision to regularize the services of those 25 persons who were deputed to work as Lecturers in the year 1997. The decision has been taken after considering all the facts and also in compliance of the order passed in CWJC No. 10971 of 2003. A duly constituted committee first examined all the facts relating to the appointments, qualifications and deputations of the petitioners, which was then placed for approval before the Finance Department, the Finance Minister and finally the Council of the Ministers. The order passed with respect to regularization of the services was done in compliance of the orders of this Court dated 16.04.2004 and 17.03.2004. The State while regularizing the services of the petitioner was quite conscious of the fact that any relaxation of the rules has to be done after following the rules and procedures established and laid down by the State 11 Government through the Personnel and Administrative Reforms Department’s notification no. 11505 dated 28.11.1956, which appears to be mentioned in the minutes of the file while considering the case of the beneficiaries of the Annexure-10. I, therefore, find that the State has taken all required steps to relax the rules and pass appropriate orders after due approval of the Law Department, Personnel and Administrative Reforms Department and the Council of the Ministers. These procedures have been followed in the present case and therefore, this Court finds no reason to quash the order of regularization. As mentioned earlier, there is no requirement for allowing the intervention application in view of the aforesaid findings. The case of the petitioner for the regularization of his services retrospectively from 11.01.1995 cannot be considered in view of the fact that the petitioner did not have the postgraduate degree on 11.01.1995. His case could have only been considered along with the cases of the 25 persons, whose regularization has been challenged in this writ application, if he had the same educational qualification as the others. The persons whose services have been regularized had the minimum educational qualification for consideration i.e. the postgraduate degree in the subject in which they have been appointed. Another aspect of the 12 matter is that this Court cannot hold that the petitioner should be considered as a Lecturer in 1995, as he had not completed his M. D. Course in Pharmacology. The petitioner achieved the minimum qualification in the year 2002. The petitioner is presently teaching as a Lecturer in surgery although he has been recommended for the post of Pharmacology. It ought to be remedied by the State Government by giving the petitioner an appropriate posting as Lecturer in the subject concerned within a period of eight weeks from the date of receipt of a copy of this order. The consideration of the case of the petitioner on the post of Reader shall be considered in accordance with law as and when the petitioner would become eligible for such consideration. In conclusion, I may note that a stand has been taken on behalf of the State that this regularization has been done as a one-time measure by relaxing all the recruitment rules as stated in paragraph 21 (iii) of the counter affidavit. In view of the aforesaid discussions, I find no merit in this writ application. It is accordingly dismissed. AFR/ Anand ( Sheema Ali Khan, J. )