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IN THE HIGH COURT OF JUDICATURE AT PATNA
S. Kumar, J.
Dr. Shyam Sunder Singh - Appellant
Versus
State Of Bihar & Ors. - Respondent
Civil Writ Jurisdiction Case No. 18744 of 2017
Decided On : 25-11-2021
Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and Service Conditions) Rules, 2010 – Rule 9 – Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and Service Conditions) (Amendment) Rules, 2017 passes constitutional muster – Creation of post of Director General, Ayush and earmarking the post for an officer of Indian Forest Service by making a specific provision in Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and Service Conditions) (Amendment) Rules, 2017, is absolutely justified and perfectly in the tune with objectives visualized by Government of India for mainstreaming of Ayush in State an bringing Ayush into mainstreaming delivery scheme of country and also fulfilling objectives of National Rural Health Mission (NHRM) – There cannot be any legitimate expectation on part of petitioner for being chosen to post in question. (Paras 35, 38 and 40)
Constitution of India – Articles 14 and 16 – Equality does not involve a concept of absolute equality amongst all. Equality under Article 14 is not indiscriminate – It permits rational or discriminating discrimination – Discrimination, which qualifies as reasonable classification and has also nexus with object sought to be achieved by undertaking such discrimination, then it is held to be permissible – Though concept of equal protection and opportunity permeate whole spectrum of individual employment, it is an inherent limitation that equality is for equals and only those who are similarly circumstanced are entitled to equal treatment – Validity of rule is to be judged by accessing its overall effect and not picking up exceptional cases but what court has to see is whether after taking all aspects into consideration classification is just. (Paras 18, 19 and 26)
Service Law – Employment – Equivalence in educational qualification is a technical question – When recommendation is by experts, Court not to disturb lightly, same being uninformed of data and technical insight – For the purposes of promotion, a valid classification can be made amongst members holding same post on the basis of their qualification – Distinction made on technical qualifications or for that matter even on the basis of general educational qualification relevant to suitability of candidate for public service is permissible under Articles 14 and 16 of Constitution of India – There is no vested right for promotion, but only a right to be considered in accordance with Rules as they existed on the date when case for promotion was taken up – Different pay scale within same cadre, when persons having same degree even where roles are interchangeable, are permissible in law. (Para 26)
Service Law – Appointment – It cannot be said that discretion to appoint does not include power to appoint on contract basis – When statute does not lay down method of appointment or term of appointment and when statute specifies that appointment is one of sure tenure, appointing authority which has power to appoint has absolute discretion in the matter. (Para 30)
1994 Supp. (1) SCC 191; 1950 SCR 869; AIR 1953 SC 404; AIR 1968 SC 349; (1971) 2 SCC 188; (1981) 2 SCC 600; (1990 (2) SCC 502; 1991 Supp 2 SCC 190; 1992 Suppl. (2) SCC 105; (2014) 8 SCC 682 (Five- Judges Bench); (1976) 2 SCC 310; 1989 Supp (1) SCC 116; AIR 1964 SC 179 : (1964) 4 SCR 680, 689-90 : (1965) 2 LLJ 560; (1978) 1 SCC 37 (6, 11)]; (1975) 3 SCC 76 (paras 14, 15, 24, 25, 26); (2019) 10 SCC 49, Paras 19, 20, 27]; 1993 Supp (2) SCC 194, (Para 3); (1997) 3 SCC 103, para 9, 18, 23; (1994) 6 SCC 282; (1996) 10 SCC 1 (para 4); (2006) 11 SCC 731; (2015) 6 SCC 727; (1993) 2 SCC 340 (para 11); (1974) 1 SCC, 19; (2019) 6 SCC 674; (2003) 2 SCC 632; 1993 Supp (3) SCC 9, para 6; (1997) 4 SCC 401, para 11; (2004) 4 SCC 646, para 16 & 17; (2019) 10 SCC 674, para 12 & 13.]; (2006) 9 SCC 82 – Relied.
JUDGMENT
1. The Questions that arise for consideration by this court are:-
(a) Whether the demarcation of the position of Director General Aayush, Government of Bihar for an officer of the Indian Forest Service is permissible in law?
(b) Whether Rule 9(b)(v) of the Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and Service Conditions) (Amendment) Rules, 2017 is ultra vires the Constitution of India?
2. The petitioner has prayed for the following reliefs-
"For issuance of an appropriate writ/order or direction or of declaring as ultra vires the part of notification issued under memo no. 16/M.1-03/2008-1282 (Aa.Chi.) dated 20.11.2017 whereby and where under amendments have been made in Bihar District AYUSH Medical/State AYUSH Medical service (Regular/contract appointment and service conditions) Rules 2010 and a provision has been made that the post of Director General shall be earmarked for officer of the Indian Forest Service and/or for any other order or orders to which the petitioner may be entitled to in the facts and circumstances of this case."
3. The Rules relating to the Appointment and Service Conditions of the District and State Ayush (Non-teaching) Doctors, with effect from 21st December, 2010 were enacted under Article 309 of the Constitution of India termed as Bihar District Ayush Medical/State Ayush Medical Service (Appointment on Regular/Contract basis and Service Conditions) Rules, 2010 (referred to as the Rules).
4. Relevant Rules reads as under:
"5. The following two sub-cadres shall be in State Ayush Medical Cadre :-
(a) State Ayush Medical Service General Duty sub-cadre and
(b) State Ayush Medical Service specialist sub-cadre.
Doctors of this Cadre may be transferred anywhere in the State."
"6. All other posts except the posts identified for the District Ayush Cadre, shall be deemed to be post of the State Ayush Medical Cadre."
"7. Appointment in the State Health Ayush Cadre shall be made by the State Government on the posts of Ayush Medical Officer/Ayush Specialist grade II. They shall be selected every year having regard to available vacancies through a competitive examination according to prescribed procedure. The selection shall be made through commission and it shall be necessary to follow the reservation rules prescribed by the State Government."
"8. It shall be necessary to have a working experience of at least two years in rural area Hospitals or appointment in the General Duty sub-cadre. For appointment in specialist sub- cadre, it shall be essential to have a post graduate degree."
"9. (a) Pay scales for different posts shall be as perschedule-1 of these Rules
(b) The following posts shall be deemed to be administrative posts ;
(i) In-charge Ayush Medical Officer, Primary Heath Centre.
(ii) Dy. Superintendent, In-charge Officer, Referral Hospital/Sub-Divisional Hospital/1 Sadar Hospital, Hospitals relating to Medical Colleges of Ayush Sector/ Research Officer (Ayush).
(iii) District chief Ayush Medical Officer/ Dy. Director (Ayurved, Unani & Homoeopathic) (Ayush Sector)/Ayush Superintendent/Manager, State Ayurvedic and Unanai Drug Pharmacy, Patna & equivalent posts.
(iv) Director (Ayush sector)/ Regional Director Ayush. (v) Director General/ Director in Chief Ayush.
Post mentioned in SI. No. (i) & (ii) shall be filled on the basis of seniority from amongst working doctors in the concerned Hospital. The total No. of Posts mentioned in SI. No. (iii) Shall be three times to the total No. of sanctioned posts of District Chief Ayush Medical Officer. District Chief Ayush Medical Officer will be selected from amongst the senior doctors of this level on the basis of seniority and efficiency in which 50% posts of Ayurved, 20% posts of Unani and 30% posts of Homoeopathic sector shall be filled out of sanction posts. The posts equivalent to Dy. Director shall also be notified by the Department. Out of total No. of posts mentioned in SI. No-(iii) and (IV), separate number of the po
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