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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
CWJC No. 7282 of 2020
(8.10.2021)
Dr. Vikash Kumar & Ors. ... Petitioners
vs.
State of Bihar & Ors. ... Respondents
Service Law – Termination – Decision taken by State Government to terminate all contractual appointments of Dentists consequent upon regular appointments having been made by State Government of Bihar – Contractual engagement ends with expiry of term of contract – Such contractual engagements automatically come to an end once regular appointments are made on substantive basis after following due procedure as prescribed under Rules – Petitioners claim that they hold requisite qualification and are registered under provisions of Dentist Act – An employee working on contractual basis does not have any right to hold post after termination of contract either with lapse of period of contract or with filling up of posts against which he was working, on regular basis by following a process of selection in accordance with statutory Rules – In such situation, Dentists, who were working on contractual basis against posts which have been filled up on regular basis, cannot claim by way of right, their continuance on contractual basis – Despite huge number of posts advertised and weightage given, petitioners could not find their position in merit list – Promise made by State, contrary to law, cannot be enforced by way of right – State cannot deviate from its own Rules having statutory force laying down a procedure for appointment on regular basis – However, there are posts of Dentists vacant in State of Bihar even after appointment of Dentists on regular basis – State Government has yet not formulated any policy in terms of its own decision – This Court exercising power of judicial review may not direct respondent State of Bihar to engage persons including petitioners on contractual basis – However, if posts of Dentists are vacant and Dentists including these petitioners have been working for long, on contractual basis, State Government should, in public interest, consider engagement of petitioners on contractual basis against posts which are vacant with clear stipulation that their contractual engagement shall terminate with appointment on regular basis. (Paras 16, 19, 20, 21, 23 and 25)
Doctrine – Promissory Estoppel – For invoking doctrine of promissory estoppel, there has to be a promise based on which party concerned must have acted to its prejudice – Doctrine of promissory estoppel cannot be invoked where decision of public authority is founded against a provision of law. (Para 19)
Chakradhari Sharan Singh, J.—Since both the writ applications involve common issue, they have been heard together and in the facts and circumstances of the case are being disposed of by the present common judgment and order.
2. Heard Mr. P.K. Shahi, learned Senior counsel appearing on behalf of the petitioners and Mr. Ajay Behari Sinha, learned GA-8 appearing on behalf of the State in C.W.J.C. No. 7282 of 2020. Mrs. Nivedita Nirvikar, learned Senior counsel has represented the petitioner and Mr. Nagendra Prasad Yadav, learned SC-23 appearing for the State in C.W.J.C. No. 10738 of 2020. Mr. Kishore Kumar Sinha has appeared for the Bihar State Health Society.
3. There are 30 petitioners in C.W.J.C. No. 7282 of 2020 and one in C.W.J.C. No. 10738 of 2020. They are aggrieved by an order issued vide Memo No. 256 dated 25.02.2020 by the Health Department, Government of Bihar whereby a decision has been taken by the State Government to terminate all contractual appointments of Dentists consequent upon regular appointments having been made by the State Government of Bihar. The petitioners claim that they hold requisite qualification and are registered under the provisions of the Dentist Act, 1948. Pursuant to different advertisements for appointment on contractual basis they were engaged after following a process of selection. Initially they were appointed on daily wage basis and were allowed to work for two days in a week. Subsequently, a decision was taken in 2011 to pay Rs. 30,000/- per month to the Dentists. They also assert that the Dentists appointed on contractual basis were claiming regularization of their services and in order to press their demands, such Dentists had resorted to strike which resulted into an agreement between the representatives of the Dentists on the one hand and the Principal Secretary, Health Department on the other. The minutes of the meeting held on 10.03.2015 has been brought on record by way of Annexure 5 to the writ petition. It is further case of the petitioners that it was resolved in the said meeting that legal opinion from the learned Advocate General on the proposal of the body of the Dentists for regularization of their services shall be obtained and the department shall, on the basis of said legal opinion would send accordingly a proposal to the State Government. It was also resolved that no penal action shall be taken against such Dentists who had resorted to strike.
4. Noticeably, the Bihar Dentist Service Rules, 2014 framed under the proviso to Article 309 of the Constitution of India was already notified on 14.10.2014. The opinion of the learned Advocate General dated 30.03.2015 has been brought on record by way of Annexure 7 to the writ application. As no privilege has been claimed on behalf of the respondents in relation to legal opinion of the Advocate General being brought on record, the Court is refraining from making any comments thereon. The said opinion is apparently referable to the ‘Doctors’ and there is clue that the said opinion was referable to Dentists also.
5. The Bihar Public Service Commission (in short Commission) subsequently came out with an advertisement dated 25.03.2015 inviting applications for appointment of 558 Dentists in basic grade. From the selection process prescribed in the advertisement, which has been brought on record by way of Annexure 6 to the writ application, it appears that out of total 100 marks for the selection process weightage of 25 was given against work experience for Dentists working in Government Hospitals.
6. The petitioners are relying on a communication dated 31.03.2015 addressed by the Principal Secretary, Health Department, Government of Bihar to the representatives of the Doctors including Dentists working on contract basis wherein it was indicated that if after completion of the process of selection by the Commission, some of the Doctors
Point of Law : It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding h....
Ad hoc employees cannot be replaced by another ad hoc employee and can only be replaced by regularly appointed candidates.
The court ruled that contract employees with over ten years of service against sanctioned posts are entitled to regularization, emphasizing the need for fair recruitment processes and age relaxation ....
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