Shakti Kishore Son of Kaushal Kishore Singh vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Pat) 466

IN THE HIGH COURT OF JUDICATURE AT PATNA
AMRESHWAR PRATAP SAHI, ANJANA MISHRA, JJ.
Dr. Shakti Kishore Son of Kaushal Kishore Singh - Appellant
Versus
The State of Bihar - Respondent
Civil Writ Jurisdiction Case No. 8149 of 2017
Letters Patent Appeal No.407 of 2019 In Civil Writ Jurisdiction Case No.2434 of 2019
Decided on : 17-05-2019

Advocates:
Advocate Appeared:
For the Appellants :Mr. P.K. Shahi, Mr. Vikas Kumar, Mr. Mukesh Kumar, Advocate
For the State :Mr. Lalit Kishore, Mr. S.D. Yadav, Mr. Vinod Kanth, Mr. Aakashdeep, Advocate

Headnote:
Service Law – Appointment – Post of Assistant Professor in Health Department – Rule 7(iii)(d) of Senior Resident/Tutor and Bihar Medical Education Service Recruitment, Appointment and Promotion Rules, 2008 – Valuable right of appellants to participate in selections with only eligible candidates competing with them is their right – They cannot be asked to participate in selection with ineligible candidates – Once ineligible candidates are allowed to participate in selection process then in that event cause of appellants would definitely suffer as they would be put to a disadvantageous position to compete in selection process keeping in view limited number of posts – Prejudice is evident as respondent-petitioners are not possessed of eligibility criteria – Lis is about participation of eligible candidates in a selection process – Contest is clearly between those who are eligible and those who have been made eligible because of interim order – Appellants have right of preferring this appeal even if they have not moved an impleadment application in writ petition as nature of interim order impugned in present appeal brings within its sweep rights and interests of appellants which are being adversely affected on facts and circumstances of present case – However, entire selection process should not be forestalled and in the event respondent-petitioners succeed, State Government shall consider their cases accordingly – Interim order maintained. (Paras 20, 22, 24, 25 and 26)

ORDER :

This appeal assails an interim order dated 14th February, 2019 in C.W.J.C. No. 2434 of 2019, which is to the following effect:

“The present writ petition has been filed impugning Clause 3(Daa) of the Advertisement no. 03 of 2018 dated 16.01.2019, issued by the Health Department, Government of Bihar for recruiting Assistant Professor on contractual basis for one year or till regular appointments are made.

The learned counsel for the petitioners has submitted that all throughout, the age limit has never been 50 years, inasmuch as in the advertisement of the year 2013, issued for making appointment on the post of Assistant Professor by the Health Department, the age limit was 64 years, similarly when the advertisement was issued in the year 2015, the age limit was 69 years. In the year 2017, an advertisement was issued for making regular appointment on the post of Assistant Professor in various Medical Colleges and the age limit was fixed at 50 years, however the same was challenged in various writ petitions; one of them being C.W.J.C. no. 8149 of 2017, wherein the learned Division Bench by an order dated 26.07.2017 has directed that the final result, pursuant to the said advertisement, shall not be published and shall be kept in a sealed cover.

It is further submitted by the learned counsel for the petitioners that now again, the Department of Health, Government of Bihar, Patna has issued the advertisement in question dated 16.01.2019, wherein again, the maximum age limit has been fixed at 50 years for the purposes of inviting applications from eligible candidates for appointment on the post of Assistant Professor in the various Medical Colleges on contractual basis, which is not only contrary to the aforesaid interim order of the learned Division Bench dated 26.07.2017 but is also in violation of Articles 14 and 16 of the Constitution of India.

Having regard to the issue raised by the petitioners in the present writ petition, I deem it fit and appropriate to grant time to the respondents to file counter affidavit, however, instead of staying the said advertisement dated 16.01.2019, I deem it appropriate to direct the respondent- authorities to accept and consider the applications of the petitioners, pertaining to the aforementioned Advertisement dated 16.01.2019, without taking into account the age bar of 50 years.

List this case after four weeks for admission under the list of “Priority Cases”.

It is needless to state that the aforesaid consideration of the case of the petitioners for being appointed on the post of Assistant Professor shall be subject to the result of the present case, however the petitioners shall not claim any equities.”

2. The relief claimed in the writ petition is by a group of petitioners of Bihar State Health Service who have questioned the age bar placed by the respondent-State for appointment on the post of Assistant Professor, which is a teaching post in various Medical Colleges throughout the State of Bihar.

3. At this stage, we may only refer to the fact that the post of Assistant Professors which are meant to be filled up on permanent basis remains a mirage in the State of Bihar and appointments are being continued on contract basis. This has been noticed in detail in the judgment of a learned Single Judge in the case of Dr. Sudhir Kumar & Ors. Vs. State of Bihar through Principal Secretary, Department of Health & Ors., reported in 2018 (2) PLJR 609 about which we will make a reference a little later.

4. Thus, appointments are being made on contract basis under rules promulgated through notifications which ultimately came to be amended on 10th October, 2013 where the maximum age for appointment on the post of Assistant Professor from the cadre of Bihar State Health Service was fixed at 50 years. The appointments were made under an advertisement dated 01.12.2013 and again an advertisement was issued on 13.3.2015. This advertisement again fluctuated the age to 69 years as on 01.07.2015.

5. In the year 2