Dr. Narendra Kumar v. THE STATE OF BIHAR

8. Dr. Narendra Kumar Son of Sri Dilkeshwar Sharma, resident of village- Baddopur, P.S. Karpi, District- Jehanabad.

9. Dr. Mahendra Kumar Son of Balkeshwar Ram, resident of Rajauli, P.O. and P.S. Rajauli, District- Nawadah.

10. Dr. Kamendra Prasad son of Chhathu Prasad, resident of village- Hasan Bazar, P.O. and P.s. Piro, District- Bhojpur. ----- Petitioners Versus

THE STATE OF BIHAR through the Secretary-cum-Commissioner, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Vikash Bhawan, Building, Bailey Road, Patna.

Additional Secretary, Health Medical Education & Family Welfare Department, Govt. of Bihar, Patna. ---- Respondents in both the cases. CWJC No.7150 of 1997 For the petitioners : Mr. Shivendra Kishore, For the S t a t e : Mr. Shyam Kishore Sharma, G. A. V. CWJC No.1546 of 1998. For the petitioners : Mr. R.K.Verma, Sr. Advocate and Mr.R.N.Kanth, Advocate. For the S t a t e : Mr. Shashi Bhushan Prasad, S.C. XVI. P R E S E N T THE HON’BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. These two writ petitions were heard together as the facts are common and the prayer in the writ petitions are also virtually the same. Hence, they have been heard together and are being disposed of by this common judgment.

2. In CWJC No. 7150 of 1997 there are fifteen petitioners. Petitioner no.15 was added by order, dated 25.11.1997 passed in I.A. No. 6662 of 1997. The prayer in the writ petition is that the respondents in the Health Department should provide facility of Training Reserve Post (for short „the T.R.P.‟) to the petitioners in terms of clause 7 (v) of the Prospectus For Post Graduate Medical Evaluation Test (hereinafter to be referred as „the P.G.M.A.T‟) as published in the years 1995, 1996 and 3

In CWJC No. 1546 of 1998 there are ten petitioners claiming the same benefits in terms of clause 7(v) of the Prospectus of the year 1997 published by the Department of Health, Medical Education & Family Welfare, Bihar (hereinafter referred to as the Health Department for the sake of convenience) as it was then known. The petitioners have also challenged the validity of the order, dated 29.12.1997 issued vide memo no. 8642 by the Addl. Secretary, Health Department as contained in Annexure 12. The aforesaid order, dated 29.12.1997 was issued while CWJC No. 7150 of 1997 was pending in this court. By the impugned order, the State Government has revoked the decision taken earlier on the basis of which the facility of T.R.P. was provided to students who had taken admission at the post graduate level.

The main contention advanced by learned counsel appearing on behalf of the petitioners is that the Health Department / State Government could not have revoked the facility and the consequences of the facility of providing training reserve posts for persons who had opted to carry on with the post graduate studies with respect to certain subjects defined in the prospectus. It was further contended that the order should also be quashed on the ground that the effect of the order was retrospective inasmuch as it was to take effect from 15.8.1996 although the actual date of issuance of the order was 29.12.1997.

To examine the validity of the order, dated 29.12.1997 it would be proper to look into the reasons for which the Health Department had accorded the facility of T.R.P. to the students of G.M.A.T. It would be 4 relevant to quote here the provisions of sub clause (v) of clause 7 of the Prospectus For Post Graduate Medical Admission Test, 1996 – the basis on which the petitioners are claiming their rights. Sub clause (v) of Clause 7 reads as under :

(v) A candidate who has one availed government Scholarship or Training Reserve Post for the degree course will not be entitled for Scholarship or Training Reserve Post facility second time for any other course. However, if a candidate has availed Scholarship/T.R.P. Facility for a Diploma Course, he will be eligible for scholarship/T.R.P. Facility for degree course provided that the said facility will not extend beyond three academic years irrespective of years of study for the course.

This provision was inserted in the prospectus on the basis of Annexure 2 which is the decision by the State Government issued through memo no. 3902, dated 3.3.1985 which was extended from time to time till the year 1996.

The State Government in order to facilitate the smooth running of the Health Department and in order to ensure that doctors were available in the hospitals of the State Government, formulated certain policies. It had been noted that because of the fact that several doctors on the clinical side took leave from the State Government either for higher education in foreign countries or to avail opportunities of better employment schemes for short periods without pay, lead to temporary vacancies. It was, therefore, found necessary to create more posts which were known as Training Reserve Posts („the T.R.P.‟. hereinafter) allocated to those persons who were undergoing post graduate studies for which the Government had allocated funds and such persons were given appointment against the Training Reserve Posts for a period of one year to three years taking into consideration whether such persons were doing 5 diploma courses or degree courses. This facility was available only for those post graduate students who had taken up non-clinical subjects. The policy decision of the State Government was reflected in sub-clause (v) of clause 7 of the prospectus quoted above.

Petitioners 1 and 2 are of 1995 batch; petitioners 3, 4, 5, 6, 7, 9, 10, 12, 13, 14 and 15 of CWJC No. 7150 of 1997 are persons who successfully appeared in the P.G.M.A.T. examination in the year, 1996. Petitioner no.11 appeared for the admission of P.G.M.A.T. in the year 1994 for the degree course. After successfully passing the entrance examination the petitioners were prosecuting their studies in different faculties carrying the T.R.P. facility. However, the formalities of their posting was not completed and as such they represented the department concerned to pass a formal order of posting and give them the salary which was attached with the Training Reserve Posts.

Similarly the petitioners of CWJC No. 1546 of 1998 appeared in the admission test for the years 1996-1988 and 1997-2000. The description of the subjects opted by the petitioners, their postings and the hospitals where they were pursuing their studies is mentioned at paragraph 13 of the writ petition.

The cases of all these petitioners stand on similar footing as all of them have prayed before this court for payment of salary which was due to them during their tenure on the Training Reserve Posts. It is a fact that no formal order granting the facility of T.R.P. was issued to the petitioners at any stage before they moved this court or during the pendency of these two writ petitions. 6

CWJC No. 7150 of 1997 was taken up for hearing and during the pendency of the writ petition interim orders were passed by this court on 18.8.1997, 1.10.1997 and 27.10.1997. The court has specifically directed that counter affidavits would be filed and in the mean time the admitted dues were to be paid to the petitioners. The stand of the State Government was that the Government had already taken a decision regarding the grant of T.R.P. facility. This court thereafter asked the State Government to file supplementary counter affidavit making it clear whether T.R.P. facility has been abolished or not and as to why they had made the stipulation of granting T.R.P. facility in the prospectus of the years 1996 and 1997. CWJC No. 7150 of 1997 was admitted on 7.1.1998. I.A No. 5560 of 1998 was filed wherein the petitioners had taken a stand that despite the orders of the court no payments had been made to the petitioners for which they had filed a contempt petition being MJC No. 2088 of 1998 which was disposed of on 4.8.1998 with a direction to the State Government to pay the dues up to 15.8.1996.

the petitioners have also referred to certain other document, such as, Annexures 15 and 16 to show before this court that the T.R.P. facility was granted to several doctors by notifications, dated

19.1.1998 and 21.9.1998. From perusal of these two documents, it would appear that the facility of Training Reserve Post were extended from the date given in the said annexures for six months or till the conclusion of the final examination. It is contended on the basis of Annexures 15 and 16 that the case of the petitioners stands identical to the cases of such persons who are mentioned at Annexures 15 and 16. Although these documents 7 does show that the Government had extended the T.R.P. facility for several persons in the years 1996 and 1997 but it is not clear as to whether the doctors mentioned in the annexures were from 1996-99, 1997 and/or 1997-2000 batches. Therefore, these documents cannot help the petitioners to substantiate the stand with the cases of the persons mentioned at annexures 15 and 16 of CWJC No. 1546 of 1998.

After CWJC No. 7150 of 1997 was admitted, memo no. 864(2), dated 29.12.1997 was issued which has also been challenged in the writ petition and is subject matter of challenge in analogous matter as well.

Memo no. 864(2), dated 29.12.1997 is a decision by the Health Department, Government of Bihar wherein it has been stated that the State Government finds that there is no longer a shortage of doctors in the clinical, para-clinical and non-clinical subjects and, therefore, the creation of 476 Training Reserve Posts has been done away. It is further stated that the decision to do away with the facility of Training Reserve Posts would apply retrospectively from 15.8.1996.

Learned counsel appearing on behalf of the petitioners contended that the State Government since the year 1985 has published prospectus wherein one of the conditions is that those persons who apply for the post graduate admission in non-clinical subjects would be granted the facility of Training Reserve Posts during the entire course to which such persons were admitted. This clause in the prospectus could not varied or changed to the detriment of those persons who had applied in the subjects as mentioned in the prospectus in order to get the facility of 8 Training Reserve Post. According to the petitioners the decision of the State Government is erroneous on two counts; firstly, the State Government could not have removed clause 7(v) of the prospectus in the middle of the sessions and secondly the order could not have been passed retrospectively.

The stand of the State, on the other hand, is that there was no further requirement for creating Training Reserve Posts and as such petitioners were not posted against the posts that were created by the State Government and posts were abolished by the impugned order, dated

25.12.1997. It is submitted that if the posts are no longer available, the petitioners would not be entitled to be posted against non-existing posts and receive any financial benefits as a result of such a posting.

The question, therefore, before this court is whether the petitioners had a vested right to receive the facility of posting of T.R.Ps. as per the provisions of the prospectus. The prospectus has been published for the purpose of conducting post graduate medical admission tests in the State of Bihar and for regulating the courses of studies in post graduate medical studies. It contains provisions with respect to the courses available to the students, the eligibility of the students to take the examination, the requirements for applying for the said examination, the selection, reservation and training etc.

The clause on which the petitioners rely merely states that a candidate would not be entitled for scholarship or training reserve post for a degree college if he had at any time availed these two facilities. This clause does not enjoin that the State Government would necessarily 9 award a scholarship or a training reserve post for each and every candidate who had successfully competed in the admission test. The creation of the Training Reserve Posts was a decision taken taking into account the requirement of the Health Department and, therefore, certain posts were created which were to be availed of by successful candidates who had appeared in the admission examination for the post graduate courses. This provision in the prospectus does not create a vested right, rather, it would depend upon the requirement of the Health Department. It may be noted that the Training Reserve Posts were created year to year and allotment of funds for payment of such persons who were appointed / posted against the temporary posts were to be made by a formal order.

In the circumstances it cannot be said that the petitioners had any vested right to be posted against the Training Reserve Posts. The State Government could have taken a decision to fill up some or none of the posts and a decision so taken by the State Government cannot be challenged on the ground that some right of the petitioners has been violated.

It is well settled that the power to frame rules to regulate the conditions of services also carries with it the power to amend or alter the rules with retrospective effect as held in the cases of B.S. Vadhera vs Union of India, 1968 SCR 575, Raj Kumar vs. Union of