MANJEET KUMAR v. THE STATE OF BIHAR

the High Court of Judicature at Patna. The appellant is aggrieved by the order dated 24.10.2008, passed by a learned Single Judge of this Court, in C.WJ.C. No. 7441 of 2000 (Manjeet Kumar Vs. The State of Bihar and Ors.), whereby the writ petition has been allowed. The State Government has been directed to appoint the petitioner on the post of Heath Visitor. We shall go by description of the parties in the writ proceedings, except by specific reference to the present appeal.

2. The facts necessary for adjudication of the issue is not in dispute and may be briefly indicated. The State Government had 2 issued advertisement no. 1/97, dated 05.05.1997 (Annexure-2). The appointment has been denied to the petitioner on the ground that his training certificate is not from a Government institute. While allowing the writ petition, the learned Single Judge has held that, in view of the terms of the advertisement, certificate from a Government institute was not essential.

3. Learned Government counsel submits that it was essential for every candidate to have the certificate from a Government institute.

4. Learned counsel for the writ petitioner has supported the impugned order and states that the State Government issued an advertisement (Anneuxre-2), inviting applications for appointment of 148 posts of Health Visitors. After completion of the selection process, the merit list was published on 20.8.1999 (Annexure-5), and the petitioner figured at Sl. No. 2, notwithstanding which he did not receive the appointment letter leading to the writ petition which has been allowed by the said order dated 24.10.2008.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that as per the terms of the advertisement (Annexure-2), the minimum educational qualification prescribed for appointment of Health Visitor was I.Sc. (with Health Visitor Certificate). There was no requirement that the Certificate should be from any prescribed institute, or essentially from a government institute, or a government recognized institute. With regard to some of the other posts referred in the same advertisement at Sl. Nos. 4 and 7, the 3 eligibility criteria itself stated that the training certificate should be from a government institute. This obviously in contrast presents the petitioner‟s case, making it quite clear that certificate from a government institute for the post of Health Visitor was not essential.

6. The certificate produced by the petitioner was issued by the “Tuberculosis Association of India” during the period 1995-

96. Except that the certificate is not from a government institute or a government-recognized institute, it does not seem to be lacking in any other respect. It appears from Schedule-2 of the Indian Nursing Act, 1947, that the “Tuberculosis Association of India” is a recognized institute for the purpose of diploma in Tuberculosis Nursing. It appears to be an old institute with statutory recognition for such diploma courses.

7. It further appears that the certificate was obviously required from a recognized institution. Furthermore, the notification dated 9.12.2003, issued by the State Government had introduced the new condition that such a certificate should be from a government institute, or a government-recognized institute was evidently after the date of the advertisement. Law is well-settled that there cannot be alteration of the terms and conditions of the selection process after the same has commenced. As indicated above, the advertisement was published on 5.5.1997 (Annexure- 2), and the new condition was introduced on 9.12.2003.

8. A Division Bench of the Himachal Pradesh High Court in the case of Anuj Gupta and others Vs. State of 4 Himachal Pradesh and others reported in 1990 (6) S LR 79, has held as follows:- “25 The learned Advocate General submits that the concept of „legitimate expectation‟ demands only fairness in action and that is only an aspect of the principles of natural justice and not of promissory estoppel. He further submits that by mere change in the criteria for selection it cannot be said that is change the policy depriving petitioners of any of their rights. The petitioners had acquired no right of being selected but have only a right to apply for being selected and under the changed policy, they still have a right to apply and then compete with the other candidates. Even so, the change of policy after the issue of the prospectus was unfair to these candidates and cannot be sustained in law.” (Emphasis added) The aforesaid proposition of law was applied by a Division Bench of this Court in the case of Namita Jayaswal Vs. The State of Bihar and Ors, reported in 1993(1) P.L.J.R. 391.

9. It is relevant to state that the said notification dated

9.12.2003, which brought about amendment in the advertisement, was challenged by one candidate in C.W.J.C. No. 11497 of 2005, which was allowed by order dated 30.4.2007, and the amendment in the advertisement was struck down. The State Government preferred Civil Review No. 213 of 2007 (State of Bihar through Secretary-cum-Commissioner, Department of Health Services and Family Welfare, Bihar, Patna Vs. Shamsher Singh Awardwale & 5 Ors), for review of the order dated 18.04.2009, which was rejected by a learned Single Judge of this Court by order dated 18.04.2009.

10. It further appears that a number of vacancies have remained unfilled.

11. The next question which arises for consideration is as to the relief admissible to the petitioner. The learned Single Judge has directed for the petitioner‟s appointment, but has denied to the petitioner salary for the past period, but has given notional benefits. We are of the view that the same needs modification in the interest of justice, even though the writ petitioner has not preferred appeal. The petitioner shall be entitled to the salary with effect from the date of disposal of the writ petition, inter alia, for the reason that, we are clearly of the view that the present appeal is wholly unjustified and unmerited, causing clearly avoidable harassment to the petitioner, and has burdened this Court with a most unwanted matter.

12. In the result, the order of the learned Single Judge is upheld with the modification that the writ petitioner shall be entitled to the appointment with effect from 25.3.2000 (Annexure-6), the date on which the notification appointing others including those junior to the petitioner, was issued. He shall be entitled to his seniority and shall rank just next to the person above him in the merit list. He shall accordingly be entitled to computation of salary notionally and computation of actual money benefit with effect from 24.10.2008. He shall also be entitled to full salary with effect from 24.10.2008, after taking into account the benefit 6 accruing to him notionally till 23.10.2008.

12.1. The learned Single Judge had directed to issue the appointment letter within a period of two months from the date of notification of implementation of the order. The State Government has preferred the appeal needlessly delaying implementation of the order. In that view of the matter, the petitioner shall be entitled to interest at the rate of 6 (six) per cent on his dues with effect from

24.10.2008, till the date of appointment.

13. The appeal is accordingly disposed of. S.Sb/- (S.K. Katriar, J.) (Jyoti Saran, J.)