Priyadarshi Kumar & Ors. v. NONE

9. Rabindra Kumar Ravi, S/O Sri Tul Mohan Ram, resident of village- Choughara, P.O+ P.S- Hardi, District- Supaul. Versus .... .... Petitioner/s

The State of Bihar

The Secretary- Cum- Commissioner, Health & Family Welfare Department, Government of Bihar, Patna.

The Joint Secretary, Health & Family Welfare Department, Government of Bihar, Patna.

The Director, Health Services, Government of Bihar, Patna.

The Director, State Health Society, Bihar, Sheikhpura, Patna.

The Executive Director, State Health Society, Bihar, Sheikhpura, Patna. .... .... Respondent/s ====================================================== Civil Writ Jurisdiction Case No.21457 of 2012 ====================================================== 1. Manoj Kumar Bharti, Son of Sri Madan Mohan Prasad, resident of village - Malahachakiya, P.O. + P.S. - Central Jail, District - Buxar; At present residing at E-12, Sone Canal Division, Buxar, P.S. + District - 2 Patna High Court CWJC No.21529 of 2012 (3) dt.18-12-2013 Buxar

2. Shiv Shankar Ashutosh, Son of Shri Basudeo Mahra, resident of village + P.O. - Mahatha Via Ladaniya, P.S. - Ladaniya, District - Madhubani .... .... Petitioner/s

1. The State of Bihar Versus

2. The Secretary-Cum-Commissioner, Health & Family Welfare Department, Government of Bihar, Patna

3. The Joint Secretary, Health & Family Welfare Department, Government of Bihar, Patna

4. The Director, Health Services, Government of Bihar, Patna

5. The Director, State Health Society, Bihar, Sheikhpura, Patna

6. The Executive Director, State Health Society, Bihar, Sheikhpura, Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No.21529 of 2012) For the Petitioner/s : Mr. Jagdhar Prasad, Advocate. For the Respondent/s : Mr. S.Raza Ahmad AAG-9 Mr. Aniswal Haque, Advocate. For the Respondent No. 6: Mr. K.K.Sinha, Advocate. (In CWJC No.21457 of 2012) For the Petitioner/s : Mr. Jagdhar Prasad, Advocate. For the Respondent/s : Mr. Zaki Haider, A.C. to G.A. 6 For the Respondent No. 6: Mr. K.K.Sinha, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3 18-12-2013 Heard learned counsel for the parties. Both the aforementioned writ applications, having an identical question and in fact challenging the same order dated

01.10.2012 passed by the Joint Secretary, Health and Family Welfare Department, Government of Bihar, Patna, have been heard by this Court and are being disposed of by this common judgment. 3 Patna High Court CWJC No.21529 of 2012 (3) dt.18-12-2013 The prayer of the petitioners in the writ application being CWJC No. 21529 of 2012 reads as follows:

….. for quashing the notice dated 01.10.2012 issued under the signature of Joint Secretary, Health and Family Welfare Department, Government of Bihar, by which the panel dated 18.8.2010 prepared for the appointment of Physiotherapist and occupational Therapist on contract basis has been revived and they have been called to present themselves for appointment direction/directions upon the Respondents to make a fresh panel including the name of petitioners who having requisite qualifications…..

certificates further etc. Learned counsel for the petitioners, in support of the aforementioned prayer, has referred to the specific conditions imposed in the advertisement which was published earlier, as contained in Annexure-2, wherein it was clearly mentioned that the panel, which was to be prepared in pursuance to the aforementioned advertisement issued some time in the year 2009 and for which last date of filing of the application was 24.12.2009, the panel drawn would be valid till March 2011. He has accordingly submitted that the impugned advertisement, as contained in Annexure-1, communicated by way of notice dated

01.10.2012, seeking to hold counselling for making appointment in terms of the earlier advertisement of the year 2008 (Annexure- 1) will be in negation to the rights of the candidates, who have passed their examination and become qualified for the post of Physiotherapist and Occupational Therapist inasmuch as if those vacancies were not filled up from the panel prepared earlier, life of which was to be remained valid up to March 2011, they have to be advertised afresh for considering the cases of all eligible persons. In this case, a counter affidavit had earlier been filed, wherein the issue relating to making appointment on the basis of a panel, whose life had already expired, was not specifically answered and as such by an order dated 02.12.2013, learned 4 Patna High Court CWJC No.21529 of 2012 (3) dt.18-12-2013 counsel for the State was directed to file a supplementary counter affidavit. The order of this Court dated 02.12.2013 being relevant reads as follows” “List this case along with CWJC No. 21457 of

2012. In the meantime, learned AAG-9 will file a supplementary counter affidavit bringing on record the relevant decision of the competent authority under which the terms of advertisement as contained in Annexure- 2 laying down that the life of panel, so prepared on the basis of the advertisement issued in December 2009, shall expire on 31.03.2011, was changed, modified or rescinded so as to give jurisdiction to the State impugned order dated Government 01.10.2012. Put up this case after two weeks under the heading „Admission-I‟ within first five cases along with CWJC No. 21457 of 2012. In the meantime, contemplated under Annexure-A of the counter affidavit may continue but no appointment on its basis shall be made till the final disposal of this writ petition.” counselling, Today, a supplementary counter affidavit has been filed wherein all that has been stated in regard aforementioned query of this Court can be found in Paragraph nos. 5 and 6 which reads as follows: “5. That it is humbly stated and submitted that the above said panel has neither been changed nor modified. Nobody has been appointed till today from that panel. Hence, it cannot be said that the panel has lapsed. It is relevant to state here that the terms recruitment and appointment are different. Recruitment is a process in which panel is prepared and it takes effect from the date of starting process of appointment and after starting appointment from any panel. Thereafter, such panel is lapsed within one year appointment. the date of

6. That it is humbly stated that one similar matter being C.W.J.C. No. 19665 of 2012 (Navin Kumar & Others Vs. The State of Bihar and others) was heard and disposed of by this Hon‟ble Court vide order dated 19.12.2012 with observation that counselling and empanelment are undoubtedly different matters and the Hon‟ble Court does not consider it appropriate at this stage to go into the validity of action of the respondents in the light of the recitals contained in the Advertisement.” As noted above, when advertisement was issued 5 Patna High Court CWJC No.21529 of 2012 (3) dt.18-12-2013 earlier and it was made clear that the life of the panel will remain valid only up to 31.03.2011 (end of March), there had to be some decision of the Government for revalidating that very old panel. Whatever has been brought in supplementary counter affidavit does not say a word as to when and by whom and under what circumstances such a decision for giving life to a penal which had already expired after 31.03.2011 was taken. All that has been sought to be impressed before this Court that a similar writ petition was heard by this Court and an order was passed on

19.12.2012 in CWJC No. 19665 of 2012. This Court, from perusal of the aforementioned order dated 19.12.2012, would find that the question being raised in this writ application was left open for being answered in any other case inasmuch as the last paragraph of the order in question reads as follows:

In view of the statement made in the counter affidavit, the Court does not consider it appropriate at this stage to go into the validity of the action of the respondents in light of the recitals contained in the Advertisement. That question is left open for consideration in any other appropriate case.

A question would, therefore, arise as to whether the employer has a liberty of filling the post on the basis of an advertisement by preparing a panel and keep that panel alive till eternity? In this regard the Rules of State Government is very clear and specific that the life of panel would only for a period of one year from the date of its preparation.

In this case the life of panel by this advertisement itself was restricted up to only 31.03.2011 and thus if no appointment could be made from the panel in question dated 18.8.2010, the State Government could not have given life to the dead panel by taking a decision on any date subsequent to 31.03.2011. Nothing however has been brought on 6 Patna High Court CWJC No.21529 of 2012 (3) dt.18-12-2013 record as with regard to any decision taken during the life of the panel dated 12.8.2010, which was to remain valid till 31.3.2011, whereby and whereunder the life of panel had been extended. Thus by the impugned notice dated 1.10.2012 and the life of panel dated 12.8.2010 could not have been extended. Considering the aforesaid aspects and the fact that every citizen of this country, under Articles 14 and 16 of the Constitution, has a right to be considered for appointment on a post which has not been filled up and that such right is sought to be taken away by the purported impugned order dated 1.10.2012 by allowing that dead panel dated 12.8.2010 to be continuing for the purpose of appointment, this Court will have no hesitation in holding that the impugned order dated 1.10.2012 as contained in Annexure-3 is wholly bad, both on facts and in law and the same is, accordingly, quashed.