Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21119 of 2013 ====================================================== 1. Pramod Kumar Son Of Sri Suresh Thakur Resident Of Mohalla- Murtujiganj, P.O.- Thauganj, Patna City, P.S.- Mehdiganj, District- Patna 2. Satish Kumar Son Of Kailash Prasad Singh Resident Of Village- Dadanpur, P.O.- Pirmaker, P.S.- Maker, District- Saran 3. Avinash Srivastava Son Of Sri Suresh Prasad Resident Of Mohalla- Gopalganj, P.O.- Gaur Kahni, P.S.- Sasaram, District- Rohtas 4. Md. Shahanshah Son Of Abdul Hadee Resident Of Village- Ninga, P.O.- Ninga, P.S.- Brauni, District- Begusarai Versus .... .... Petitioners 1. The State Of Bihar 2. The Principal Secretary, Health And Family Welfare Department, Govt. Of Bihar, New Secretariat, Patna 3. The State Of Health Society, Bihar Through Its Executive Director 4. The Executive Director, State Health Society, Bihar .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Alok Kumar, Adv. Mr. Umeshanand Pandit, Adv. For respondents no. 1 & 2: Ms. Swapna Tripathi, AC to GP25 For respondents no. 3 & 4: Mr. K.K.Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 18-11-2013 Heard learned counsel for the parties. The prayer of the four petitioners in this writ application reads as follows: “For quashing the advertisement published in the Daily News paper, Hindustan on 15th September, 2013 by State Health Society Bihar, Pariwar Kalyan Bhawan, Sheikhpura whereby and where under National Rural Health Mission. The applications were invited on line application from suitable candidates under post mentioned as the Data Operator for the purpose of appointment on the contractual basis against which i.e. respective post. The petitioners are working since a petty
Facts
Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 2 long time and there is no vacancy in the department till they remains in service and for the other necessary relief/ reliefs on the basis of the facts and circumstances of the case as an enumerated and stated hereinafter.”
Legal Reasoning
advertisement. By-now it is well settled that the Courts in presence of adequate compelling reasons are not required to interfere with the policy matter which has to be primarily governed by the executive action. Such policy matters in fact have to be evolved and implemented suited for the best of the interest of the implementation of scheme by the executive agencies and unless they are wholly arbitrary and illegal they cannot be interfered by the Courts by weighing and Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 6 evaluating the comparative merits of such executive decisions. In that view of the matter, the main challenge of the petitioners to the impugned advertisement as contained in Annexure 3 to this writ application must be held to be wholly misconceived both on facts and in law. There would be however yet another facet which would require consideration of this court. When the petitioners were selected for establishing Data Centre which was open not only to agencies/ organizations but even to the individuals as is apparent from reading of Annexure 1, the advertisement issued in the year 2012, which led to assignment of job to them on 27.6.2012, a legitimate expectation was created in favour of those individuals including the petitioners who were to run Data Centres after establishing the same. It is not in doubt that the petitioners were also selected for establishing Data Centre and in fact they have also continued for a period of more than one year. Thus, if that Scheme is being changed and the State Health Society has now proceeded to engage Data Entry Operator at its own level, the persons like the petitioners will be entitled for at least for their being considered with other eligible candidates. The petitioners having filed their writ application before this Court could not have also subjected themselves to the selection Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 7 procedure undertaken in terms of the impugned advertisement, as contained in Annexure 3. The very fact that this advertisement was issued some time in the month of September, 2013 and this writ application was presented on 3.10.2013 which eventually got registered on 22.10.2013 this Court would not find that the petitioners would stand debarred from being considered only because in the meantime the selection procedure had commenced from 6.10.2013. The petitioners as noted above had presented this present writ application on 3.10.2013, whereas the last date of submission of application was 6.10.2013 and as such, they cannot be denied of an opportunity of competing with others in terms of the selection procedure undertaken vide the impugned advertisement, contained in Annexure 3. Considering all these aspects this Court would direct that the petitioners‟ case should also be subjected to screening by examining as to whether they fulfil the requisite qualification as laid down in the advertisement and if it is found that they are eligible and fulfil the terms and conditions as laid down in the advertisement (Annexure 3), they should also be allowed to appear in interview which is to be held on 27th and 28th November, 2013. The petitioners, therefore, are directed to appear before the Executive Director, State Health Society on or before 22nd of Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 8 November, 2013 alongwith their application and connected documents and if the Executive Director of the State Health Society finds that all these four petitioners or any of them fulfil the requisite terms and conditions of the advertisement he shall allow these petitioners to be subjected to further selection process by allowing them to appear in the interview for the post of Data Entry Operators. Let it be however made clear that this Court has issued no further direction beyond considering the case of the petitioners with others, inasmuch as the ultimate decision for appointment of the petitioners or anyone of them will depend on their respective performance in the interview and their successfully competing with other eligible candidates in the selection process. Before parting with it is made clear that the petitioners‟ earlier selection and engagement on the basis of scheme for establishing Data centre in no way would be an impediment for their consideration of case for appointment on the post of Data Entry Operators in terms of the advertisement. With the aforementioned observations and directions, this
Arguments
Learned counsel for the petitioners while pressing for the aforementioned relief has submitted that once the petitioners were selected for establishing Data Centre at Rogi Kalyan Samiti Vaishali and they were also individually assigned the job, the respondents could not have advertised the posts of Data Entry Operator and to that extent the advertisement, contained in Annexure 3, under the heading „Recruitment Application‟ is bad both on fact and in law on the settled proposition that one set of ad-hoc appointment cannot be replaced by another set of ad-hoc appointment. Learned counsel for the State Health Society on the other hand, has submitted that earlier, the Government of India which is monitoring the schemes run by the District Health Society, had envisaged establishment of Data centres of self entrepreneurship basis and that is how the selection and engagement of the petitioners were made but subsequently the Government of India itself has changed its policy by way of making direct recruitment on the posts of Data Entry Operators and as such, the petitioners on assignment of job in the earlier scheme of things have no such Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 3 indefeasible right that they can go to object to the new scheme of making recruitment on the post of Data Entry Operators undertaken by the State Health Society/ District Health Society, which is actually only by way of implementation of the Government of India Scheme. He has also submitted that in pursuance of the said advertisement, as contained in Annexure 3, the process has commenced and now only the interviews are to be held on 27th and 28th November, 2013 and as such, the petitioners who did not file their application within prescribed period cannot be allowed to compete with others in terms of the advertisement. In the considered opinion of this Court there are two facets to be issue involved in this writ petition. Firstly, as to whether the decision of the State Health Society/ District Health Society to make recruitment on the post of Data Entry Operator on contractual basis can be faulted only because the earlier self entrepreneurship scheme of establishment of Data centre was in operation?. An obvious answer to the question will be in negative inasmuch as it is always open for the Government while formulating its policy to also lay down modalities for running such policy. Therefore, if at earlier point of time the Government of India had directed the State Health Society/ District Health Society to establish Data centres under self entrepreneurship scheme that Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 4 by itself cannot be an impediment in its coming out with a new scheme for engaging Data Operators for an effective functioning of the scheme. To that extent this Court is also in agreement with the submission of the learned counsel for the State Health Society that the impugned advertisement is only by way of implementation of the scheme of the Government of India which is fully supported by the document dated 18.9.2012, as contained in annexure 4, being the letter of the Secretary, Health Department cum Executive Director of the State Health Society, the relevant portion whereof reads as follows: ^^vki voxr gS fd foRrh; o"kZ 2012&13 eas Hkkjr ljdkj us izkFkfed LokLF; dsUnz ij LFkkfir CykWd MkVk lsaVj ds lapkyu dks Lohd‘fr iznku ugha dh gSA Hkkjr ljdkj us jkT; ds 933 izkFkfed LokLF; dsUnzaks a ds fy, lafonk ds vk/kkj ij Block M&F Assistant-cum-Data Entry Operator (FMR-Code:-A.S.1.7) dks fu;qDr dj muls dk;Z ysus dh Lohd‘fr iznku dh gSa bl dk;Zdze ls lacaf/kr foRrh; fn’kk funs’k lHkh ftyksa dks miyC/k djk;k tk ;qdk gSA mDr foRrh; fn’kk funsZ’k ds ek/;e ls lwfpr fd;k x;k gS fd bu inksa dh fu;qfDRk ftyk LokLF; lfefr ds }kjk fd;k tk,xk rFkk fu;qfDr izfdz;k esa jkT; ljdkj ds vkj{k.k fu;ekoyh ,oa vU; lHkh fu;eksa dk vuqikyu djuk vfuok;Z gksxkA blds vykok ;g Hkh funs’k fn;k x;k gS fd Block M&F Assistant-cum-Data Entry Operator in dh fu;qfDr dh lkjh izfdz;k laiw.kZ gksus rd oRrZeku esa LFkkfir ,oa lapkfyr CykWd MkVk lsaVj ls dk;Z fy;k tk; rFkk buds jkf’k dk Hkqxrku iwoZ esa fn;s x;s fn’kk funsZ’k ds vkyksd es a blh in vFkkZr FMR-Code-A.8.1.7 ls fd;k tk;A Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 5 leh{kk ds dze esa ;g ik;k x;k gS fd bl izkFkfed LokLF; dsUnzks a ij Block M&F Assistant-cum-Data Entry Operator ds lkFk&lkFk CykWd MkVk lsaVj dh Hkh vko’;drk gSa mDr vko’;drk dks ns[krs gq, iqu% Hkkjr ljdkj dks bu izkFkfed LokLF; dsUnzksa ij LFkkfir CykWd MkVk la sVj ds lapkyu dk izLrko Supplementary PIP ds ek/;e ls Hkstk tk jgk gSa blh dze esa lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd vki bu 533 izkFkfed LokLF; dsUnzksa ij lafonk ds vk/kkj ij Block M&F Assistant-cum-Data Entry Operator in dh fu;qfDr dks rc rd LFkfxr j[ksa tc rd jkT; Lrj ls bl fu;qfDr ls lacaf/kr ubZ fn’kk funsZ’k vkidks izkIr ugha gks tkrk gSA vki ;g Hkh lqfuf’pr djsaxs fd izkFkfed LokLF; dsUnz ds Lrj ij LFkkfir ,oa lapkfyr CykWd MkVk lsaVj dk Hkq zxrku yfEcr uk jgsA** The aforementioned detailed instruction issued by the Executive Director, State Health Society, will therefore leave nothing for speculation that it is the change of the policy by the Central Government which has led to issuance of the impugned
Decision
application is disposed of. Let a copy of this order be given to Mr. Kishore Kumar Sinha, learned counsel appearing on behalf of the Bihar Health Patna High Court CWJC No.21119 of 2013 (2) dt.18-11-2013 9 Society for its strict compliance by all concerned authorities. surendra/- (Mihir Kumar Jha, J)