ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 06-09-2024 The controversy arises insofar as the shifting stance regarding requirement for admission to the Ophthalmic Assistants Diploma Course; a para medical course carried out in the State of Bihar and the eligibility condition for appointment as Ophthalmic Assistants, in the Health Department of the State.

2. An advertisement No. 1 of 2021 was brought out, produced as Annexure-7, which invited applications for appointment as Ophthalmic Assistants in 236 posts. The essential qualification required was Immediate/10+2 with Physics, Chemistry and Biology as also English. The petitioners herein are persons, who had acquired the qualification of Ophthalmic Assistants Diploma Course from Government Colleges but with an Intermediate/10+2; without Biology, but with Mathematics. The petitioners claim that the Government had provided different stipulations over the years for admission to the Ophthalmic Assistants Diploma Course and appointment to the public posts; at one time provided for appointment to even persons who had Intermediate/10+2 with Mathematics.

3. We heard Smt. Nivedita Nirvikar, learned Senior Counsel for the petitioners, Sri Miytabaul Haque, GP- 12 for the State and Sri Nikesh Kumar, learned Advocate appearing for the Bihar Technical Service Commission.

4. The learned Senior Counsel appearing for the appellants argued that earlier in the year 2005, the Diploma Course in Ophthalmic Assistants admitted persons with 10+2 having the subject Mathematics also. In 2011, there was a major change in stance which restricted the admissions to Intermediate/10+2 with Physics, Chemistry and Biology. The petitioners were persons who had applied for admissions to the Diploma course and got admission through an entrance examination. The petitioners have qualified in the Diploma course but by reason only of the prescription in the advertisement, in consonance with the rules for appointment to the post of Ophthalmic Assistants, which were modified in 2011; they were dis-entitled from applying for the post since they did not read Biology in the Intermediate/10+2 classes.

5. In fact, in 2021, the stipulation with respect to persons who studied Mathematics in Intermediate/10+2 has been brought back. The petitioners are persons who were admitted to Government Colleges and they cannot now be denied consideration for selection to the public posts of Ophthalmic Assistants in the Government. Reliance is placed on Annexure-8 judgment which frowned upon the sorry state of affairs in which the Department is functioning, by reason only of the shifting stance with respect to eligibility requirements. The learned Senior Counsel asserts that by virtue of the aforesaid judgment, the petitioners have to be given the benefit of applying under the post.

6. The learned Counsel appearing for the respondent-Commission pointed out that the advertisement was of 06.04.2021 and the result was declared on 04.07.2022. All the petitioners were persons who acquired the Ophthalmic Assistants Diploma Course qualification after the year 2011. In fact, they should not have been given admission since the requirement, as is clear from the Rules of 2011 indicates the essential eligibility condition to be Intermediate/10+2 with Physics, Chemistry and Biology. Only one of the petitioners, i.e. petitioner No.7 had obtained the Diploma qualification prior to 2011 when even a student who had read Mathematics in Intermediate/10+2 was admitted to the Diploma course. However, the 7th petitioner is a fence-sitter since, at the time of advertisement or before the last date of application stipulated therein, there was no challenge made. An application was made which was rejected by the Commission which also was not challenged. The writ petition is an after- thought and none of the other petitioners also applied under the advertisement.

7. At the outset, we have to notice that there is no averment that the petitioners applied under