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IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, CJ. and S. KUMAR, J.
(18.10.2022)
CWJC Nos. 9848, 21242 of 2021 with 1188 of 2022
Varsha Kumari & Ors. (in 9848)
Pappu Kumar Chaudhary (in 21242)
Randhir Kumar Singh & Ors.
(in 1188) : Petitioners
Vs.
State of Bihar & Ors. : Respondents
(in all)
Bihar Ophthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011–Clause-5 (ii)–Bihar Ophthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2019 (as amended)–Clause-5 (ii)–Appointment of Ophthalmic Assistants in State services–Once State government has permitted students passing Intermediate (Science) with Mathematics or Biology for admission in Diploma course of Ophthalmic Assistant and having obtained diploma certificate State cannot deny them appointment on the ground that they have passed Intermediate (Science) examination having Physics, Chemistry, English and Mathematics and not Biology same being arbitrary and cannot stand twin test of reasonableness and fairness–Petitioners who were admitted in Diploma Course in Ophthalmic Assistant before framing of recruitment Rules-2011 are eligible to be considered for appointment on post of Ophthalmic Assistant–Once admission to candidates passing Intermediate (Science) with Biology or Mathematics have been permitted to appear in competitive examination for admission in Diploma course of Ophthalmic Assistants and after successfully completing diploma course and getting diploma certificate in Ophthalmic Assistant, State cannot deny them opportunity of appointment on post of Ophthalmic Assistant and denial of opportunity for appointment on post of Ophthalmic Assistant is arbitrary, unreasonable and discriminatory and offends Articles 14 and 16 of Constitution of India–Bihar State Technical Commission directed to prepare merit list treating petitioners to be eligible for appointment on post of Ophthalmic Assistant–Writ Petitions allowed. (Paras 22, 23, 25 to 28)
SANJAY KAROL, CJ.:–Petitioners have prayed for the following reliefs:—
(i) For setting aside Clause-5 (ii) of the Bihar Opthalmic Assistants joint cadre (Recruitment and Service Conditions) Rules, 2011.
(ii) For setting aside Clause-5(ii) of the Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2019 (as amended).
(iii) For setting aside the letter no. 500(11)(dated 8.07.2020 issued by the Director in chief, Health Services, Government of Bihar, Patna, rejecting the representation of the National Opthalmic Association Bihar, Patna.
2. Petitioners got admission in course of ophthalmic assistant on the basis of entrance test conducted by the Bihar Combined Competitive Examination Council and at that time i.e. prior to 2011 the eligibility criteria for admission in Diploma in Opthalmic Assistant was 10+2 intermediate Science with Physics, Chemistry, English and either Mathematics or Biology. Petitioners are 10+2 intermediate with Physics, Chemistry, English and Mathematics and were admitted in the course of Opthalmic Assistant and passed the course of Diploma in Opthalmic Assistant from Government institute in between 2006-2011.
3. Department of Health, Government of Bihar, vide letter no. 646 dated 21.09.2011 issued instructions that from next session i.e. 2012 onwards candidates who have passed intermediate with Physics, Chemistry, English and Biology only will be eligible for taking admission in Diploma Course in Opthalmic Assistant.
4. In exercise of power conferred under Article 309 of the Constitution of India, State Government framed Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011 (as amended on 06.03.2019) which prescribes the eligibility criteria for recruitment in State Government on the post of Opthalmic Assistants to be Diploma in Opthalmic Assistant with Physics, Chemistry, English with Biology at +2 level (Intermediate Science).
5. Advertisement No. 1 of 2021 has been issued by the Bihar Technical Service Commission for appointment on the post of Opthalmic Assistants in which eligibility is Diploma in Opthalmic Assistant and intermediate(Science) passed with Physics, Chemistry, English and Biology.
6. It is submitted that this advertisement for appointment of Opthalmic Assistants in State services has been issued first time after framing of Bihar Opthalmic Assistant Cadre (Recruitment & Service Conditions) Rules, 2011 and petitioners have been made ineligible to be appointed on the post of Opthalmic Assistant although they are Diploma in Opthalmic Assistant but they are intermediate(Science) with mathematics which was permissible for admission in the Diploma Course of Opthalmic Assistant prior to 2011.
7. Prospectus of 2006 and 2010 issued by Bihar Combined Competitive entrance Examination Council, the eligibility criteria for taking admission in the course of Diploma in Opthalmic Assistance was +2 intermediate (Science) with Physics, Chemistry, English and Mathematics or Biology. In the year-2006 also Advertisement for appointment on the post of Opthalmic Assistant was issued in which also the eligibility was corrected as Diploma in Opthalmic Assistant and intermediate with Physics, Chemistry, English and Biology or Mathematics and only after 21.01.2011, educational qualification for admission in Diploma Course of Opthalmic Assistant was confined to intermediate (Science) with Biology.
8. Accordingly, admission in the Diploma course of Opthalmic Assistant was confined to students passing intermediate (Science) with Physics, Chemistry, English and Biology. Students passing intermediate (Science) with Physics, Chemistry, English and Mathematics were not eligible for admission in the Diploma Course of Opthalmic Assistant after 2011.
9. It is submitted on behalf of petitioners that they took admission in Diploma course of Opthalmic Assistant in Govt., institution and completed their diploma course prior to coming of Bihar Opthalmic Assistant Cadre (Recruitment & Service Condit
Court affirmed that the requirement for a discontinued course was improper, allowing candidates with a Diploma in Optometry to participate in selection without the three-month course.
The authority to determine eligibility qualifications for public posts lies solely with the State Government, and recruitment processes must adhere strictly to established service rules.
Eligibility criteria for public posts must have rational nexus with duties; arbitrary prescription without justification liable to challenge, relief moulded for fairness.
it is the legal or executive policy of the Government to create post or to prescribe the qualification for the post. The Court or Tribunal is devoid of power to give such direction. The relief sought....
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