Patna High Court
Case Details
Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2239 of 2013 ====================================================== 1. Poonam Prabha Wife Of Dr. Sudhansu Kumar Resident Of Raj Nagar, Hospital Area, Line Bazar, Purnea, At Present Working As Contractual Medical Officer, I.C.U. Sadar Hospital, Purnea 2. Vani Kumar Son Of Arjun Lal Sah Resident Of Kaswa, District - Purnea, At Present Working As Contractual Medical Officer, I.C.U. Sadar Hospital, Purnea 3. Ravi Babu Son Of Hukum Roy Resident Of Krishnapuri, Yadav Tola, Madhubani, Purnea, At Present Working As I.C.U.. Sadar Hospital, Purnea .... .... Petitioner/s Versus 1. The State Of Bihar , Through The Principal, Health Department, Government Of Bihar, New Secretariat, Patna 2. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, Baily Road, Patna - 1 3. The Civil Surgeon-Cum-Chief Medical Officer, Purnea .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.K.N.Chaubey, Sr.Advocate Mr. Sushil Kumar, Advocate For the BPSC Mr. Sanjay Pandey, Advocate For the State : Ms. Kumari Amrita,GP 10 : Mr.Pushkar Narain,Sr.Advocate ====================================================== CORAM: HONOURABLE MR. PRATAP SINGH ORAL ORDER JUSTICE SAMARENDRA 4 13-02-2013 All the petitioners are Medical Officers appointed on contract basis in the year 2008 and at the moment they are working in I.C.U., Sadar Hospital, Purnea. Copies of appointment letters are at Annexure-3.
Legal Reasoning
The petitioners are aggrieved by the decision of the Bihar Public Service Commission (hereinafter referred to as ‘the Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 2 Commission’) contained in memo no.5384 dated 18.12.2002 (Annexure-1 series) disentitling them from appearing in the Medical Examination to be held from 16.2.2013 to 24.2.2013 for the post of regular Medical Officer in the cadre of Bihar Health Service General Duty sub-cadre on the ground that they did not have two years necessary working experience in government hospitals in rural areas. The petitioners state that the said criteria ought not to have been applied in case of Medical officers appointed on contract basis prior to 25.11.2008, the date of coming into force 2008 Rules. The petitioners submit that Rule 8 of the Bihar District Medical Cadre/Bihar Health Service Cadre (Appointment on Regular/Contract basis and Service Conditions) Rules, 2008 (hereinafter referred to as ‘ the 2008 Rules’) for the first time envisaged two years working experience in government hospitals in rural areas for appointment in the General Duty Sub- Cadre of Bihar Health Service Cadre. They state that they are appointee of prior period. Further-more getting posting in rural areas is not a prerogative of an employee but it depend upon discretion of the authority and as such the said criteria is arbitrary and unreasonable. The respondents instead ought to Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 3 have insisted only for two years working experience in government hospital. On these grounds, the petitioners have assailed the impugned order holding them ineligible to appear in the examination for the post of Medical Officers in Bihar Health Service General Duty Sub-cadre.
Legal Reasoning
Mr. Pushkar Narain Shahi, learned Senior Counsel appearing for the Commission submits that the eligibility requirement mentioned in the advertisement inviting applications for the post of Medical Officer is inconsonance with 2008 Rules which makes it obligatory for a candidate to possess at least two years working experience in government hospitals in rural areas for appointment in the General Duty Sub-cadre. The petitioners having not challenged the said Rules and conditions contained in the advertisement as such they challenge the impugned order holding them ineligible to appear in the said test. He next submits that the petitioners are appointed on contract basis for a limited period and have no indefeasible right of regularization. Their appointments are on contractual basis on fixed honorarium. Both the counsels for the Commission as well as the State submit that in order to reward the Doctors who have served on contract basis, the government has come out with Rules to Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 4 absorb such eligible Medical Officers into a regular cadre of Bihar Health Service. I have heard counsel for the parties. The petitioners were appointed on contract basis on a consolidated honorarium on terms and conditions mentioned in the letter of contract/agreement. The appointment agreement did not hold any promise for future regularization or absorption in regular service. It was up to the Government to terminate such agreement which was purely contractual as per procedure. The government decided to make appointment in regular cadre of Medical Officers also from amongst the Medical Officers who have served on contractual basis in its General Duty sub-cadre. Rule 7 of 2008 Rules states that appointments to the Bihar Health Service General Cadre would be made by the Government against the posts of Medical Officer/Specialist Grade-II from amongst Doctors working as Medical Officers on contract basis. Keeping in view the available vacancies every year, the Doctors are to be selected through a competitive examination. Rule 8 states that it will be obligatory to have a working experience of at least two years in government hospitals in rural areas for appointment in the General Duty Sub-cadre. Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 5 The Government in terms of the aforesaid rule has resolved to appoint Medical Officers in General Duty sub-cadre from amongst the Doctors who are serving on contract basis subject to having two years minimum working experience in government hospitals in Rural areas apart from other conditions. The said requirement of having two years of rural service in the advertisement is in consonance with Rule 8 of 2008 Rules. Neither Rule 8 of 2008 Rules nor the corresponding conditions prescribed in the advertisement has been challenged. The provision of Rule 8 of 2008 Rules prima facie does not seem arbitrary or unreasonable. Furthermore, the examination is being held after four years of coming into force 2008 Rules as well and there was opportunity for the Doctors appointed on contract to venture for rural posting. The petitioners admittedly do not have two years working experience in government hospitals situated in rural areas. The BPSC as per the terms of conditions contained in the advertisement has rightly held them ineligible for the forthcoming examination of Medical Officers. Before parting with the record of this case, it is observed that the respondents may consider such Medical Officers appointed on contract basis for rural posting particularly on their Patna High Court CWJC No.2239 of 2013 (4) dt.13-02-2013 6 representation so that they may not be disadvantaged because of the concerned eligibility clause. With the aforesaid observations, this writ application is dismissed. KHAN/- (Samarendra Pratap Singh, J)