Interpretation of Rule 6 (c) and the advertisement provisions to establish the eligibility criteria for appointment as a Senior Resident.

On the basis of an advertisement issued by the Department of Health, Government of Bihar, dated 7.5.2015, contained in Annexure-3, petitioner applied for the post of Senior Resident for a period of 3 years. Petitioner was considered, short-listed and placed at serial No.1 for appointment as a Senior Resident, Skin and V.D. Department. He is a general category candidate and he being the sole short-listed candidate, placed at top of the list, expected to be notified on the position. However, to the shock and horror when notification, contained in Anneuxre-9 dated 2.9.2015 was issued, his name was missing. He tried to find out the reason for omission but since he did not get any satisfactory response, he decided to file the writ application seeking quashing of Annexure-9, if not a direction upon the respondents to appoint him on the post of Senior Resident.

2. Petitioner has also impleaded certain private respondents who have been appointed. They are represented through various counsels and have filed counter affidavits as well.

3. Learned senior counsel representing the petitioner submits that the whole decision not to appoint the petitioner is arbitrary, mala fide and a deliberate exercise done by the respondent State authorities not to appoint him on the post of a Senior Resident when he has all the attributes and fulfilled the requirements as per the advertisement.

4. The response of the State and some of the private respondents is that the petitioner stands disqualified as per Rule 6 (c) of the Rule known as Senior Resident/Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008. This rule has been notified on 10th of October, 2008. A copy of the notification issued, both in Hindi and English, has been tendered to the Court.

5. Before proceeding, since the heart of the dispute lies on the provisions laid down in Rule 6, especially Rule 6 (c), the Rule is reproduced herein below:

“Rule 6 (c): Those who have earlier at any time held the tenure post of Resident shall not be eligible to apply for the present post of Senior Resident.”

6. There is no dispute that the petitioner is at present working as a Senior Resident (Dermatology) on direct job outsourcing basis for a tenure period of 11 months in All India Institute of Medical Sciences, Patna (for short, AIIMS). A copy of such appointment letter has been annexed by the petitioner himself as Anneuxre-1 and is dated 1st March, 2014.

7. Learned senior counsel representing the petitioner submits that this appointment on outsourcing basis for a fixed period of 11 months in AIIMS at Patna does not bar him from consideration or appointment on the post of a Senior Resident. A reading of Rule 6 and the sub clauses is pointer of the fact that a person who has already held a post for a period of 3 years is barred or precluded from holding such a post or re-appointment. Rule 6 (c) cannot be read to mean that any person who has worked or held the post as a Senior Tutor or Resident even for a short period of time will stand automatically disqualified. The petitioner is not holding the post of Senior Resident and has not worked as a Senior Resident for a period of 3 years. The term of appointment itself would indicate that he has been appointed on contract for a fixed tenure of 11 months and that too on outsourcing basis. This engagement by no kind of interpretation can mean that the petitioner would stand disqualified for consideration as is the stand or the reason assigned by the respondent State authorities as well as the private respondents.

8. Attention of the Court is also drawn to para 8 (vi) of the advertisement. This part of the advertisement reads as under:

“Tutor/Senior Resident ke pad par purva me niyukta chikitsak punah awaden karne ke patra nahi honge. Pratyek awedak ko shapath-patra mul rup me sakshatkar ke samay prastut karna hoga ki ye purva me awedit bishay me MCI se manyata prapt Chikitsa Mahavidyalaya Aspatal se Senior Re