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Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10596 of 2012 ====================================================== Sudhir Kumar son of Sri Ram Chandra Gope, present address Ram Krishna Welfare Hospital, Yogipur More, South Chitragupta Nagar, Near Buddha Dental College, Kankarbagh, P.S. Patrakar Nagar, District Patna .... .... Petitioner Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, Patna 2. The Principal Secretary, Department of Health and Family Welfare, Government of Bihar, Patna 3. The Bihar Public Service Commission, through its Secretary, 15, Jawaharlal Nehru Marg (Bailey Road), Patna-800001. 4. The Secretary, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg (Bailey Road), Patna-800001 5.The Joint Secretary-cum-Controller of Examinations, 15, Jawaharlal Nehru Marg (Bailey Road), Patna-800001 6. The Section Officer, Direct Recruitment Branch, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg (Bailey Road), Patna-800001 .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11074 of 2012 ====================================================== Dr.Pranay Raj Sharan Sinha son of late Sia Sharan Singh, resident of D-404, Charminar Apartment, Road No.12, Rajendra Nagar, P.O. Rajendra Nagar, P.S. Kadamkuan, District Patna-Patna and at present working as Senior Resident (Plastic Surgery), Patna Medical College and Hospital, Patna .... .... Petitioner/s Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2. The Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 3. The Additional Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 4. The Bihar Public Service Commission, through its Chairman, 15, Bailey Road, Patna-800001. 5. The Controller of Examination, Bihar Public Service Commission, through its Chairman, 15, Bailey Road, Patna 6. The Section Officer, Direct Recruitment Branch, Bihar Public Service Commission, through its Chairman, 15, Bailey Road, Patna 7. The Medical Council of India, Aiwan-E-Galib Marg, Kotla Road, New Delhi-110 002 .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13643 of 2012 ====================================================== Dr.Mrs.Rajshri Kumari, wife of Dr. Sushil Kumar Purbey, resident of Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 2 Kadira bagh Chowk, near Government Bus Stand, P.S. L.N. Mishra Institution Police Station, P.O. and District Darbhanga .... .... Petitioners Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Vikash Bhawan, Patna 3. The Chairman, Bihar Public Service Commission, 15, Bailey Road, Patna. 4. The Section Officer, Direct Appointment Section, BPSC, 15, Bailey Road, Patna ... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11416 of 2012 ====================================================== Dr.Nirmaja Kumari Jha @ Nirmaja Jha, wife of Dr. Santosh Kumar Jha, resident of Mohalla- Boei Park, Church Road, Opposite G.P.O. Bhagalpur, P.O. General Post Office, P.S. Kotwali, District Bhagalpur (Bihar) .... .... Petitioner Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2. The Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna through its Secretary, Patna -800001. 3.The Chairman, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna-800001. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.10729 of 2012 ====================================================== 1.Dr.Pradeep Kumar Verma son of Late Suryakant Prasad, resident of House No.35, Jhun Jhun Mahal Road, New Yarpur, P.O. Mithapur, P.S. Gardanibagh, District Patna, presently posted as Tutor, Anatomy Department, Vardhman Institute of Medical Sciences, Pawapuri, Nalanda 2. Dr. Amrendra Prasad Sinha, son of Chaturbhuj Prasad Sinha, resident of Katra, P.O. Katra, P.S. Katra, District Muzaffarpur, presently posted as Tutor Anatomy Department, Patna Medical College and Hospital, Patna .... .... Petitioners Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2. The Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 3. The Additional Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 4. The Deputy Secretary to the Government, Department of Medical Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 3 Education and Family Welfare, Government of Bihar, New Secretariat, Patna 5. The Bihar Public Service Commission, through its Chairman, , Bailey Road, Patna-800001. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13321 of 2012 ====================================================== Dr.Sambhu Nath Mahtha son of Late Vishwanath Mahtha, resident of Mohala- Azamnagar Ward No.6, P.S. LNMU, Town & District Darbhanga .... .... Petitioner through its Chairman, 15 Versus 1.State Of Bihar, through the Principal Secretary, Health (Medical Education and Family Welfare and Indigenous Medicine) Department, Government of Bihar, New Secretariat, Patna 2. Bihar Public Service Commission, JawaharLal Nehru Marg (Bailey Road), Patna-800 001 3.The Secretary, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001. 4. Examination Controller, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 5.The Section Officer, Direct Recruitment Section, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.9154 of 2012 ====================================================== 1.Dr.Vinod Kumar Mishra son of Late Jugal Kishore Mishra, resident of Barauni Block No.2, P.O. Barauni Deorhi, District Begusarai and at present Senior Resident (Pediatrics), PMCH, Patna 2. Dr. Md. Sarfaraz Alam, son of Late Abdulla Ansari, resident of Nilu Nursing Home, Chauhatta Masjid, near PMCH, P.S. Pirbahore, District Patna 3. Dr. Ashok Kumar son of late Ram Chandra Prasad, resident of Adorakh Ghat, Maruf Ganj, Patna City, at present posted as Senior Resident (Medicine), PMCH, Patna 4. Dr. Rana Randhir Kumar Singh, son of Ram Pujan Singh, resident of 93, Gandhi Path, North S.K. Puri, Patna and at present posted as Senior Resident (Medicine), PMCH, Patna 5.Dr. Brind Kumar Singh son of Late R.C. Singh, resident of Chamtha, Barkhut, PS Bchwara, District Begusarai and at present Assistant Professor (Biochemistry), PMCH, Patna 6. Dr. Janardan Prasad Sinha, son of late Sudarshan Prasad Singh, resident of China Kothi, Vidyapati Marg, Patna-800001 and at present posted as Senior Resident (Pediatrics), PMCH, Patna 7. Dr. Sharbeshwar Kumar son of Late Jaleshwar Prasad Singh, resident of House No.199, Varun Colony, Gola road, Bailey Road, Danapur, Patna and at present Tutor, PMCH, Patna 8. Dr. Ajit kumar son of late Bhupendra Prasad Sinha, resident of House No.10, Shiv Shambhu Nagar, Ashiyana Road, and at present posted as Tutor Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 4 (Pharmacology), PMCH, Patna 9. Dr. Binay Kumar, son of Sri Satyanarayan Gupta, resident of At and PO Maker, District Saran (Chapra) and at present posted as Senior Resident (Medicine), PMCH, Patna .... .... Petitioners Versus 1.The State Of Bihar, through the Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2. The Principal Secretary, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 3. The Additional Director, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 4. The Deputy Secretary to the Government, Department of Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 5. The Bihar Public Service Commission, through its Chairman, , Bailey Road, Patna. .... .... Respondents with Civil Writ Jurisdiction Case No.9291 of 2012 ====================================================== Dr.Jagat Narayan Nayak son of Late Sita Ram Nayak, resident of Shri Ram Janki Arogya Niketan, 8, GM Road (near Radio Station), P.S. Town Thana, District Darbhanga .... .... Petitioner Versus 1.State Of Bihar, through the Principal Secretary, Health (Medical Education and Family Welfare and Indigenous Medicine) Department, Government of Bihar, New Secretariat, Patna 2. Bihar Public Service Commission, JawaharLal Nehru Marg (Bailey Road), Patna-800 001 3.The Secretary, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001. 4. Examination Controller, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 5.The Section Officer, Direct Recruitment Section, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 its Chairman, 15 through .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11409 of 2012 ====================================================== Dr.Vasudha Rani wife of Dr. Jagat Narayan Nayak, resident of Shri Ram Janki Arogya Niketan, 8, GM Road (near Radio Station), P.S. Town Thana, District Darbhanga ... Petitioner Versus 1.State Of Bihar, through the Principal Secretary, Health (Medical Education and Family Welfare and Indigenous Medicine) Department, Government of Bihar, New Secretariat, Patna 2. Bihar Public Service Commission, JawaharLal Nehru Marg (Bailey Road), Patna-800 001 its Chairman, 15 through Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 5 3.The Secretary, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001. 4.Examination Controller, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 5.The Section Officer, Direct Recruitment Section, Bihar Public Service Commission, 15 JawaharLal Nehru Marg (Bailey Road), Patna-800 001 .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.12736 of 2012 ====================================================== Dr. Sujata Kumari wife of Dr. Vijay Kumar Chaudhary, resident of MIG 223, Shanti Kunj, Lohianagar, Kankarbagh, Patna-20 at present posted as Senior Resident, Department of Obstetrics and Gyanecology, PMCH, Patna .... .... Petitioner Versus 1.The State of Bihar, through the Principal Secretary, Health Department, Government of Bihar, Patna 2.The Bihar Public Service Commission, At 15, JawaharLal Nehru Marg (Bailey Road), Patna-1 through its Secretary 3.The Chairman, Bihar Public Service Commission, At 15, JawaharLal Nehru Marg (Bailey Road), Patna-1 4.The Secretary, Bihar Public Service Commission, At 15, JawaharLal Nehru Marg (Bailey Road), Patna-1 5.The Examination Controller, Bihar Public Service Commission, At 15, JawaharLal Nehru Marg (Bailey Road), Patna-1 6.The Sectional Officer, Direct Recruitment Branch, Bihar Public Service Commission, At 15, JawaharLal Nehru Marg (Bailey Road), Patna-1 .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11268 of 2012 ====================================================== Dr.(Mrs) Mridula Roy Chaudhary wife of Dr. Amarendra Roy Choudhary, resident of Dumraon Kothi Road No.2, Rajendra Nagar, P.S. Kadamkuan, and District Patna .... .... Petitioner Versus 1.The State of Bihar, through the Principal Secretary, Department of Health Medical Education and Family Welfare, Government of Bihar, Patna 2. The Deputy Secretary, Department of Health, Medical Educational and Family Welfare, Government of Bihar, Patna. 3.The Chairman, Bihar Public Service Commission, 15, Bailey Road, Patna 4.The Section Officer, Direct Appointment Section, Bihar Public Service Commission, Bailey Road, Patna .... .... Respondents With Civil Writ Jurisdiction Case No.14465 of 2012 Arun Kumar, aged about 47 years, son of Shri M.L. Rajak, resident of Bahadurpur Housing Colony, P.S. Agamkuan, District Patna. ………..Petitioner Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 6 Versus 1.The State of Bihar through the Principal Secretary, Health Department having his office in Vikas Bhawan, New Secretariat, Bailey Road, Patna 2. The Joint Secretary, Health Department having his office in Vikas Bhawan, New Secretariat, Bailey Road, Patna 3. The Bihar Public Service Commission through its Chairman, Bailey Road, Patna 4. The Examination Controller, Bihar Public Service Commission, Bailey Road, Patna ……Respondents With Civil Writ Jurisdiction Case No.14466 of 2012 Rakesh Kumar aged about 51 years, son of Late Kashi Prasad, resident of Dighwara, P.S. Dighwara, District Saran ………..Petitioner Versus 1.The State of Bihar through the Principal Secretary, Health Department having his office in Vikas Bhawan, New Secretariat, Bailey Road, Patna 2. The Joint Secretary, Health Department having his office in Vikas Bhawan, New Secretariat, Bailey Road, Patna 3. The Bihar Public Service Commission through its Chairman, Bailey Road, Patna 4. The Examination Controller, Bihar Public Service Commission, Bailey Road, Patna ====================================================== Appearance : (In CWJC No.10596 of 2012) For the Petitioner/s : Mr. Mritunjay Kumar For the Respondent/s : Mr. Ajay Sc11 For the BPSC Mr. Sanjay Pandey, Advocate ……Respondents : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.11074 of 2012) For the Petitioner/s : Mr. Akashdeep For the Respondent/s : Mr. G.K. Agrwal Ga10 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.13643 of 2012) For the Petitioner/s : Mr. Ramendra Nath Mukhopadhay For the Respondent/s : Mr. S.Raza Ahmad Aag9 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.11416 of 2012) For the Petitioner/s : Mr. Sanjay Kumar Srivastava For the Respondent/s : Mr. Abhay Shankar Jha Sc14 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.10729 of 2012) For the Petitioner/s : Mr. Sanjeev Kumar Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 7 For the Respondent/s : Mr. A.Ujjwal Sc25 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.13321 of 2012) For the Petitioner/s : Mr. Jai Kishor Poddar For the Respondent/s : Mr. P.K. Verma Aag5 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.9154 of 2012) For the Petitioner/s : Mr. Akashdeep For the Respondent/s : Mr. Anjani Kumar Aag10 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.11409 of 2012) For the Petitioner/s : Mr. Jai Kishor Poddar For the Respondent/s : Mr. Roy Shivaji Nath Aag3 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.12736 of 2012) For the Petitioner/s : Mr. Mahesh Narayan Prabat, Advocate For the Respondent/s : Mr. Manikant Mishra Gp25 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.11268 of 2012) For the Petitioner/s : Mr. Ramendra Nath Mukhopadhay For the Respondent/s : Mr. Madhuresh Prasad Gp12 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.9291 of 2012) For the Petitioner/s : Mr. Jai Kishor Poddar For the Respondent/s : Mr. Avnish Nandan Sinha Gp11 For the BPSC Mr. Sanjay Pandey, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate (In CWJC No.14465 of 2012 & CWJC No.14466 of 2012): For the Petitioner/s : Mr. Rupak Kumar, Advocate For the State : Mr. Rajiv Singh, GP 15 Mr. Bhaskar Shankar, AC to GP 16 For the BPSC Mr. Sanjay Pandey, Advocate For the MCI : Mr. Kumar Brij Nandan, Advocate : Mr. Ashok Kumar Singh, Sr. Advocate Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 8 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 10 14-02-2014 All these writ applications have been heard together and are being disposed of by this common order. 2. The petitioners in these batch of writ applications applied for appointment to the post of Assistant Professor in different departments of State Medical College & Hospital in light of advertisement no.6 of 2011 and 37 of 2011, published by the Bihar Public Service Commission (hereinafter referred to as „the Commission‟), on the basis of requisitions received from the Health Department. The selection was to be made on basis of both evaluation of educational qualifications/experience, as well as interview. 80 marks was earmarked for educational qualifications and experience, 20 marks for interview. A minimum of 10 marks on the basis of educational qualifications, experience and publications in recognized journals as a principal author was a required condition for being called for interview for appointment on the post of Assistant Professor. The applications of the petitioners were rejected on the ground that the candidates could not muster the minimum 10 marks required for being eligible for interview or lacked the necessary teaching experience/educational qualifications. 3. The petitioners have challenged the rejection of their Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 9 applications on various grounds, namely; the respondents erred in taking a view that additional marks would be allotted only if original publication is actually published in recognized State and All India Medical or Foreign Medical journal, and not only if accepted for publication. According to them, acceptance of publication would satisfy the relevant requirement in terms of M.C.I. Regulations, 1998. Further more, some petitioners have wrongly been disqualified on the ground that they do not have requisite educational qualifications and the teaching experience. The Expert Committee of Doctors constituted by the State Government could not be considered to be a Committee constituted by the Commission, and as such the report of the Committee was non est and in violation of the Bihar Public Service Commission Rules of Procedure, 1996. The Expert Committee also exceeded its jurisdiction in recording the eligibility and ineligibility of the candidate for which the Commission only was the appropriate authority. 4. On the other hand, learned counsel for the Commission and the State vehemently opposed the writ petitions and submitted that the applications of petitioners have been correctly evaluated and their candidatures have been rightly rejected and there has been no irregularity in the selection process. The petitioners once having subjected themselves to panel of Expert Committee cannot challenge

Legal Reasoning

Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 10 its constitution. 5. Before, I take up the rival submissions for considerations, it would be necessary to notice the facts of the case and relevant provisions of law in some details. 6. Prior to 1997, the Health Services in Bihar was one integrated cadre, consisting of teaching as well as non-teaching post. The teaching posts were categorized as Junior Teaching post, which comprised of Resident/Registrar and Senior Teaching Post of Assistant Professor, Associate Professor and Principal. The appointment to the teaching post was made from Doctors of Bihar Health Service. However, in the year 1997, the State Government in exercise of powers under Article 309 of the Constitution of India, framed, the Bihar Medical Education Service Cadre and Appointment to its Cadre Posts Rules, 1997 (hereinafter referred to as 1997 Rules) carving out a separate teaching cadre. The post of Resident/Registrar was amalgamated and was designated as Lecturer, which comprised Junior Teaching post. The post of Assistant Professor, Associate Professor and Professor, remained as Senior teaching posts, which were to be filled up on promotions from Junior teaching post on the basis of seniority-cum-merit. The initial entry against the post of Lecturer was to be on the basis of competitive examination to be conducted by the Commission. Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 11 7. In the year 2003, the 1997 Rules were amended and the post of Lecturers were re-designated as Senior Resident for Clinical department and that of Tutor for Non-Clinical and Para-Clinical department. Clause (iii) of Rule 8 was renumbered as Clause (iv) and a new Clause (iii) was added after Clause (ii) which states as follows: “(iii) Appointment on working arrangement/contract basis. Due to delay in selection process for appointment on vacant posts or otherwise in situation of posts being vacant and warning for de-recognition of Medical Colleges, in the interest of work, different posts can be filled up, as a one time working arrangement, from the Medical teachers on the basis of their Cadre seniority-cum-eligibility, in their own pay-scale, on the recommendations of the Departmental Promotion Committee constituted under the provisions of the Personnel and Administrative Department Resolution No.2653 dated 28.02.1989. In any category, in case of non-availability of suitable candidates for appointment against vacancies under the working arrangement, Retired Medical Teachers of the same category shall be appointed on contract basis, in accordance with the Appointment Department Resolution No.27 (17) dated 09.01.2002: Provided that such working arrangement or contract appointment, shall be applicable only till regular appointment Provided further no claim for benefit of any post or Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 12 regularization on the higher post, on the basis of such working arrangement, shall be admissible”. 8. It would appear from bare perusal of amended Rules that a provision was made in view of impending derecognition by M.C.I. on account of posts remaining vacant for a long time to fill up such posts as one time working arrangement from amongst the Medical teachers on the basis of seniority-cum-merit in the own pay scale on recommendation of the Departmental Promotion Committee. The Rules further provided that if sufficient candidates are not available for appointment under working arrangement, then such post could be filled up from amongst the retired Teachers on the basis of contract. Such appointments under working arrangement or under contract were to remain in force till regular appointments was made. Besides this, Rule 9 was also amended, which I need not elaborate as it would not be relevant in the context of the case. 9. Some provisions of 1997 Rules was again amended including Rule 8 in the year 2004 vide notification no.17 dated 22.3.2004. After Rule 8(ii), following new clause (ii A) and (ii B) respectively were added. The new clause (ii B) which was added after Rule 8(ii), with which we are concerned states as follows: “ (ii B) (A) On account of posts being vacant and in view of the threat of derecognition of Medical Colleges by the Medical Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 13 Council of India, the vacant posts of Assistant Professor, Associate Professor and Professor, shall be filled under working arrangement from the persons of the Medical Education Cadre, in their own pay-scale after following the provisions of Reservation, on the basis of Seniority-cum- eligibility, and on the recommendations of the Departmental Promotion Committee. In the event of non-availability of suitable Medical Teachers for appointment under the working arrangement, appointment on contract shall be made of Retired Medical Teachers of the same category, after following the provisions for Reservation. (B) On account of existence of vacancies, in view of apprehension of de-recognition of the Medical Colleges by the Medical Council of India, the vacant posts of Senior Resident/ Tutor, shall be filled from the qualified officers of the Bihar Health Service on the basis of Seniority-cum- eligibility, after following the provisions of Reservation and inviting applications. (C) Appointment on the basis of aforesaid Working arrangement/ contract shall continue only till regular appointments and no claim for regularization on the higher post or financial benefit of any post shall be admissible on such basis”. 10. It would be apparent from Rule 8(ii)(b)(b) that in view of a large number of vacancies, a threat of cancellation of recognition of Medical Colleges loomed large and as such provision was made to fill up the post of Senior Resident and Tutor from eligible Doctors of Bihar Health Services on the basis of seniority-cum-merit after Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 14 following provisions of reservation policy and after inviting applications through advertisement. Accordingly, advertisement was issued on 10.3.2004 for filling up the post of Senior Resident/Tutor but no appointment was made in terms of the advertisement. However, in the year 2005 and 2006, a panel was prepared of the eligible Doctors from Bihar Health Services from which appointment to the post of Tutors/Senior Residents were made in the Medical Colleges for a period of one year on contract basis, until regular appointments were made. However, Senior Resident/Tutor so appointed continued in view of extension granted from time to time. (The underlining is mine for emphasis) 11. In the year 2008, the 1997 Rules was repealed by Senior Resident, Tutor and Bihar Medical Education Service Cadre Recruitment, Appointment and Promotion Rules, 2008 (hereinafter referred to as „2008 Rules‟). The post of Senior Residents/Tutors were excluded from the post within the teaching cadre, but presumably to protect the interest of such working Senior Resident/Tutor, Rule 6 of 2008 Rules mandated that they would continue against their respective posts as being non-tenure post, till they were observed against basic teaching cadre post of Assistant Professor, where after such post of Senior Resident/Tutor would be Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 15 deemed to have been converted to a tenure post under 2008 Rules. Rule 7(iii)(c) of 2008 Rules provided that appointment under 2008 Rules to the post of Assistant Professor would be made, only after, earmarking such number of posts for promotion (for all such working Senior Resident/Tutor). 12. However, the extension last granted in 2010/2011 had indications that it would be the last and there would no further extension. According to the respondents, such of the Tutors/Senior Residents were appointed by way of working arrangement for a limited period and as such, their case would not come within the purview of Rule 7(iii)(c) of 2008 Rules, which related to regular appointment against these posts. 13. Becoming apprehensive that such Senior Residents and Tutors who have been appointed on temporary/contract basis may be reverted as Medical Officer, some of them filed C.W.J.C. No.8986 of 2011, C.W.J.C. No.9583 of 2011, C.W.J.C. No.12659 of 2011 and C.W.JC. No.13590 of 2011, for due considerations of their claim for promotion as Assistant Professor in accordance with Rule 6 read with Rule 7(iii)(c) of 2008 Rules. 14. It would be relevant to notice that during the pendency of the writ petitions, advertisement bearing No. 6 to 37 dated 20.7.2011 was published inviting applications for filling up all 394 sanctioned Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 16 vacant posts of Assistant Professor without earmarking equal number of posts as mandated under Rule 7(iii)(c) of the 2008 Rules. The writ petitions were allowed by order dated, 8.9.2011 directing the respondents to consider the case of the petitioners for promotion under Rule 7(iii)(c) of 2008 Rules and the advertisement issued by the Commission was struck down to the extent mentioned above with liberty to the respondents with respect to the number of vacancies to be filled up on the basis of provision of Annexure-B of 2008 Rules. Besides this, 20 marks kept for interview, was also struck down as being contrary to the said Rules. 15. The respondent-State being aggrieved filed L.P.A. against the order dated 8.9.2011 of learned Single Judge being L.P.A. Nos.1844 of 2011, 2011 of 2011, 2028 of 2011 and 248 of 2012. The L.P.A. Bench vide order dated 16.2.2012, passed in L.P.A. No.1844 of 2011 granted liberty to the respondents to proceed with the process of selection in terms of advertisement dated 20.7.2011 without

Decision

prejudicing the rights and contentions of the writ petitioners. In view of the liberty granted in L.P.A. No.1844 of 2011, the selection process proceeded. The applications of candidates were scrutinized, evaluated and successful candidates were called for interview. 16. This brings us back to the advertisement. The Commission issued advertisement no.6 of 2011 and 37 of 2011, inviting Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 17 applications from eligible candidates for appointment to the post of Assistant Professors in different faculties of Medical Education. The essential qualifications and experience as per the requisition of the department in terms of Rules, 2008 and as published in Advertisement no.6 of 2011 to 37 of 2011, in column no.3 is as follows: (i) Post-Graduation degree in the subject and after this 3 years teaching experiences as Senior Residents/Tutor. (ii) D.M./MCH for units/Super-Specialty Departments. (iii) Officers of the State Health Service who already served as Residents/Sr. Residents/Tutors for minimum three years in teaching Hospitals recognized by the MCI. (iv) Grounds for Selection: On the basis of educational qualification and Interview. - For educational qualifications – 80 marks - For Interview – 20 marks (v) Evaluations: Candidates will be allotted valuation marks as indicated below for determining their comparative merits: Above 70% 5 Above 65% 4 Above 50% 1 Above 60% 3 Above 55% 2 (a) Aggregate of marks obtained at the 3 MBBS Univ. Exams (b) Marks obtained in the subject of the specialty or subject group applied for as per recommendations of M.C.I. (c) Honours in the Subject or subjects group as defined in the recommendations of for which the M.C.I. applications being are considered (d)Honours in other Subjects (e) One or more diploma in specialty or M.D./M.S. (f) qualifications deemed to be at par by the MCI in the specialty (g) M.D. or M.S. or qualifications deemed to be 5 4 3 2 1 2 Marks 1 Marks for Honours in each other subject 1 Marks 4 Marks 6 Marks Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 18 at par by the MCI in the specialty and another M.D. or M.S. or qualifications deemed to be at par by the MCI or Ph.D. in any other subject of the speciality group. (vi) One mark should be deducted for each failure at any of the 3 MBBS Univ. Examinations. Candidates who have failed on more than 3 occasions in the examinations shall not be eligible. (vii) Additional marks to a candidate will be allotted as indicated below for original publications as principal author in recognized journals as detailed below. A candidate will be treated to be Principal author of a publication if he/she produces a certificate to this effect from the Professor-in-Charge or Head of the Department of the subject under whom he/she has prepared the paper. (a) 1 (one) marks for each publication in a Bihar State Medical Journal subject to a maximum of 2 (two) marks. (b) 2 (two) marks for each publication in All India Medical Journal which is the official organ of an All India Society or an Association or a Foreign Medical Journal which is the officials of a similar National or International Society or Association, subject to a maximum of 10 marks. (c) To be eligible for appointment as an Assistant Professor a candidate should have a minimum of 10 points. 17. 80 marks were earmarked for educational qualification and 20 marks for interview. Clause 5 of the advertisement dealt with evaluation and allotment of marks for determining comparative merits. 1 mark was to be deducted for each failure at any of the 3 M.B.B.S. University examinations. A candidate who has failed on more than three occasions would not be eligible for consideration of appointment. Clause 5(4) of the advertisement stipulated that additional marks would be allotted for original publication as Principal author in recognized journals as mentioned herein below. Further more, a candidate will be treated as Principal author of a Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 19 publication, if he or she produces certificate to the aforesaid effect from the Professor Incharge or from the Head of Department under whom the paper has been prepared. 18. The Health Department vide its letter dated 21.2.2012, 27.2.2012 and 1.3.2012 constituted a Seven Members team of the Expert Doctors for evaluating the eligibility of the candidates who had applied for the post of Professor in the light of the Advertisement no.6 of 2011/ 37 of 2011 in consultation with the Public Service Commission. Initially vide letter dated 21.2.2012, the Health Department constituted a Three Members Committee of Expert Doctors, all of whom were holding the rank of Professor of a Medical College & Hospital. Subsequently, the Health Department vide its letter dated 27.2.2012 and 1.3.2012 added four more expert Doctors on the Board of the Expert Committee. Out of these four Doctors, one was in the rank of Professor, two in the rank of Associate Professor and one in the rank of Assistant Professor. The Doctors constituting Expert Committee were from different faculties of Medical Education. It would be necessary to recall that it was one of the essential conditions in the advertisement that the candidates applying for the post of Assistant Professor must possess the Post Graduate Degree and a three years teaching experience as Senior Resident/Tutor in the Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 20 said subject, after obtaining the said degree. Clause 5 of the advertisement further stipulated that a candidate must secure a minimum of 10 marks for being called for interview which was of 20 marks, as per clause 6. 19. The grievance of the petitioners is that though other candidates were called for interview, their candidature was illegally rejected by the Expert Committee and consequently by the Commission. The details of the ground on which the applications of the petitioners have been rejected, are as follows: i) Sudhir Kumar, petitioner of C.W.J.C. No.10596 of 2012 was found lacking in mandatory three years teaching experience. ii) Pranay Raj Sharan Sinha, petitioner of C.W.J.C. No.11074 of 12 was found lacking in both in educational qualification as well as mandatory three years teaching experience in the said subject. iii) Dr. Mrs. Rajshri Kumari, the petitioner in C.W.J.C. No.13643 of 2012 was found lacking in mandatory three years teaching experience as Senior Resident/Tutor after Post Graduate. iv) Dr. (Mrs) Mridula Roy Chduahary, petitioner of C.W.J.C. No.11268 of 2012 was found lacking in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 21 mandatory three years teaching experience as Senior Resident/Tutor after Post Graduate. v) Arun Kumar, petitioner of C.W.J.C. No.14465 of 2012 was found lacking in mandatory three years teaching experience in the subject in which he has done his Post Graduation. vi) Rakesh Kumar, petitioner of C.W.J.C. No.14466 of 2012 was found lacking in mandatory three years teaching experience as Senior Resident/Tutor after Post Graduation. vii) The rest of the petitioners, namely, Dr. Jagat Narayan Nayak in C.W.J.C. No.9291 of 2012, Dr.Nirmaja Kumari Jha @ Nirmaja Jha, petitioner in C.W.J.C.No.11416 of 2012 and six out of nine petitioners of C.W.J.C. No.9154 of 2012 (Dr. Vinod Kumar Mishra & Ors), Dr. Pradeep Kumar Verma, petitioner of C.W.J.C.No.10729 of 2012, Dr. Sujata Kumari, petitioner of C.W.J.C. No.12736 of 2012, Dr. Vasudha Rani, petitioner of C.W.J.C. No.11409 of 2012 and Dr. Sambhu Nath Mahtha, petitioner of C.W.J.C. No.13321 of 2012, though had requisite educational qualifications and teaching experience Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 22 were not called for interview as they did not obtain minimum of 10 marks for being called for interview for their papers which were accepted for publication by recognized journals, but actually not published. A descriptive chart, depicting the grounds for not declaring the petitioners eligible for interview are given below: CWJC Nos. Name of the parties Lacking Educational Qualification Lacking Teaching Experience Lacking Published Research Papers/Articles Lacking mandatory 3 Teaching years experience as Senior after Resident/Tutor Super Specialty Degree Lacking mandatory 3 years Teaching Experience Only Diploma in Orthopedics and Ph.D. Degree; No M.S. in Orthopedics Surgery but M.Ch. in Plastic Surgery Remarks Hence found ineligible for interview Hence found ineligible for interview Hence found ineligible for interview Hence found ineligible for interview Hence found ineligible for interview Hence found ineligible for interview Lacking mandatory 3 years Teaching experience as Senior Resident/Tutor after P.G. Lacking mandatory 3 years Teaching experience as Senior Resident/Tutor after P.G. No marks for published Research Papers/Articles hence obtained only 8 out of mandatory 10 marks No marks for published Research papers/Articles on required date hence secured less than 10 mandatory marks the P-1 Dr. Vinod Kumar Mishra No marks for published Research papers/Articles Called for interview, appeared for 10596/12 Sudhir Kumar vs State of Bihar & Ors 11074/12 Pranay Raj Sharan Sinha vs State of Bihar & Ors 13643/12 Dr. Mrs Rajshri Kumari vs State of Bihar & Ors 11268/12 Dr. Mridula Roy Chaudhary vs State of Bihar & Ors 9291/12 Dr. Jagat Narayan Nayak vs State of Bihar & Ors 11416/12 Dr. Nirmajha Kumari Jha @ Nirmaja Jha vs State of Bihar & Ors 9154/12 Dr. Vinod Kumar Mishra & Ors vs State Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 23 of Bihar & Ors the required date- on secured 14 marks greater than 10 mandatory marks interview on 2.7.2012 P-2 Dr. Sarfaraz Alam No marks for published Research papers/Articles on required date- secured 11 marks greater than 10 mandatory marks the P-3 Dr. Ashok Kumar No marks for published Research papers/Articles on required date- secured 10 marks greater than 10 mandatory marks. the P-4 Dr. Rana Randhir Kumar: No marks for published Research papers/Articles required date- on hence secured less than 10 mandatory marks. the P-5 Dr. Brind Kumar Singh: No marks for published Research papers/Articles on required date- hence secured only 7 marks i.e less than 10 mandatory marks. the Janardhan P-6 Dr. Prasad: No marks for published Research papers/Articles on required date- hence secured only 7 marks i.e less than 10 mandatory marks. the P-7 Dr. Sarbeshwar Kumar No marks for published Research papers/Articles on required date- hence secured only 8 marks i.e less than 10 mandatory marks. the Called for interview, appeared for interview on 28.6.2012 Called for interview, appeared for interview on 28.6.2012 Gave only Letters of “Accepta for nce” Publicatio n-Hence, found ineligible for interview. Gave only Letters of “Accepta nce” for Publicatio n-Hence, found ineligible for interview Gave only Letters of “Accepta nce” for Publicatio n-Hence, found ineligible for interview Gave only Letters of “Accepta nce” for Publicatio n-Hence, found ineligible for interview Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 24 P-8 Dr. Ajit Kumar: No marks for published Research papers/Articles on required date- hence secured only 8 marks i.e less than 10 mandatory marks the P-9 Dr. Vinay Kumar: No marks for published Research papers/Articles on required date- hence secured only 9 marks i.e less than 10 mandatory marks the P-1 Dr. Pradeep Kumar Verma No marks for published Research papers/Articles on required date- hence secured only 9 marks i.e less than 10 mandatory marks the Gave only Letters of “Accepta nce” for Publicatio n-Hence, found ineligible for interview Gave only Letters of “Accepta nce” for Publicatio n-Hence, found ineligible for interview Hence found ineligible for interview P-2 Dr. Amrendra Prasad Sinha: No marks for published Research papers/Articles required date- on hence secured only 9 marks i.e less than 10 mandatory marks the Hence found ineligible for interview No marks for published Research Papers/Articles hence obtained only 8 out of mandatory 10 marks. No marks for published Research Papers/Articles hence obtained only 9 out of mandatory 10 marks. Obtained only 9 out of mandatory 10 marks. Hence found ineligible for interview Hence found ineligible for interview Hence found ineligible for interview. Hence found ineligible for interview. Hence found ineligible for interview. 10729/12 Dr. Pradeep Kumar Verma & Ors Vs State of Bihar & Ors 12736/12 Dr. Sujata Kumari v State of Bihar & Ors 11409/12 Dr. Vasudha Rani v State of Bihar & Ors 13321/12 Dr. Shambhu Nath Mahatha 14465/12 Arun Kumar Vs State of Bihar Lacking mandatory 3 years Teaching Experience 14466/12 Rakesh Kumar vs State of Bihar Lacking mandatory 3 years Teaching Experience Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 25 20. The petitioners being aggrieved by the rejection of their candidature for appointment to the post of Assistant Professor, have moved this Court in writ jurisdiction. In most of the cases, even representations made against rejection of candidature have too met the same fate. Some of the grounds raised in this batch of writ applications would be common to all, whereas some grounds would be individual to some of the petitioners. The grounds which are common to the petitioners are as follows: (i) The Seven Members Expert Committee of Doctors was constituted by the State Government and not by the Commission to evaluate the eligibility of the candidates and as such evaluation made by them cannot be said to be evaluation done by the Commission. (ii) The Expert Committee was constituted for evaluation of eligibility but it exceeded its jurisdiction by recording eligibility or ineligibility of the candidates. (iii) The Government and the Commission cannot prescribe eligibility criteria higher than the one laid down under MCI Regulations. The grounds which are individual to a petitioner or a group of petitioners are as follows: Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 26 (a) The petitioners of C.W.J.C. Nos.9291 of 2012, 11416/12, 9154/12, 10729/12, 12736/12, 11409/12, 13321/12 have raised a grievance that the respondents have erred in not allowing any marks for publication of the original papers though they were accepted for publication in recognized journals. (b) Petitioners of C.W.J.C. Nos.10596 of 2012, 13643 of 2012, 11268 of 2012, 14465 of 2012 and 14466 of 2012 have stated that the respondents erred in coming to the conclusion that they did not have requisite teaching experience in the subject in which they have done their post graduation. (c) Petitioner of C.W.J.C. No.11074 of 2012 state that he has wrongly been held lacking in requisite educational qualification and teaching experience. 21. The counsels for the Commissions and the State, however, submit that the petitioners once having participated in the selection, and having failed cannot challenge the selection process. 22. The points raised by the parties raises the following legal issues: (i) Whether the candidates who have not been successful for being called for interview, can challenge the selection Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 27 process? (ii) Whether 7 members Expert Committee, constituted by the State Government to scrutinize and evaluate the qualification of the candidates would be deemed to be one constituted by Commission? (iii) Whether the Expert Committee has exceeded its jurisdiction by recording eligibility and ineligibility of the candidates? (iv) Whether Government and Commission can legally prescribe eligibility requirements, which would be higher than the minimum eligibility criteria laid under M.C.I. Regulation? (v) Whether the respondents are correct in their findings that some of the petitioners were lacking in eligibility and not having requisite qualification or both? 23. Now I will take up the issues, one by one. Ref: Issue No.(i) :- Whether the candidates who have not been successful for being called for interview can challenge the selection process? Mr. Ashok Kumar Singh, learned Senior Counsel appearing for the Commission submits that a candidate once having taken chance in the selection process, on being unsuccessful, cannot challenge Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 28 the selection process itself. In support of his submissions, he has relied upon decisions, reported in (i) (1989) 1 SCC 136, (ii) (1995) 3 SCC 486, (iii) 2008(1) PLJR SC 193 and (iv) (2011) 1 SCC 150. 24. On the other hand, counsel for the petitioners submits that in case the selection has been made in violation of the relevant rules and the Commission has committed an obvious error in judging the suitability or misconstruing conditions of advertisement or the relevant rules, nothing would prevent such candidates from challenging the rejection of their candidature. 25. Whether the unsuccessful candidate can challenge the selection process or the constitution of selection Committee has been subject of considerations before the Courts. I would now notice the relevant decisions including ones cited by learned counsel for the Commission. In the case of Trivedi Himanshu Ghanshyambhai vs Ahmedabad Municipal Corporation & Ors, reported in 2008(1) PLJR SC 193, the Hon‟ble Apex Court observed that it is not open to the unsuccessful candidate to challenge the selection of successful candidates. The ratio decided by the Apex Court in the said case would be no help to the Commission as it was rendered in the facts and circumstances of the case. The matter therein related to Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 29 appointment of Assistant Manager, Ahmedabad Municipal Corporation. It was inter departmental appointment, which was to be made on the basis of 10 years of administrative experience while working as X-Ray Tech Ministrative Duty. The candidates were required to fill in form which was to be forwarded by the Head of the Department only after being satisfied that a candidate was having more than 10 years administrative experience. The application of the successful candidate, who was appellant in the Apex Court, was forwarded after being duly examined and scrutinized by the Committee, which conducted the written test and thereafter promoted him to appear in the examination. The Committee did not make any objection with respect to experience, eligibility of the appellant. In these circumstances, the Apex Court observed that unsuccessful candidates cannot be permitted to raise such objection after the final selection of the appellant. The Apex Court as such quashed the order of the High Court, which on the application of the unsuccessful candidates concluded that the appellant did not possess administrative experience. 26. In the case of Ramesh Chandra Sah & Ors vs Anil Joshi & Ors, reported in (2013) XI SCC 309, the Apex Court held that having participated in process of selection with full knowledge that recruitment was made as per General Rules and having not Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 30 questioned the advertisement or methodology adopted for making selection, the unsuccessful candidate cannot turn around and challenge the method of selection. 27. In the case of Madan Lal Vs State of J & K & Ors, reported in (1995) 4 SCC 486, the Apex Court observed that having taken a change to appear in an interview and having remained unsuccessful, the candidate cannot turn around and challenge either the constitution of selection Board or the selection as being illegal, as he is estopped from challenging the correctness of the selection. 28. In case of Sanjay Kumar & Ors vs Narendra Kumar & Ors, reported in (2006)6 SCC 467, the Apex Court observed that once having appeared in the written examination and having failed, the candidate cannot challenge the selection process. 29. In case of Vijendra Kumar Verma vs Public Service Commission, Uttrakhand & Ors, reported (2011)1 SCC 150, the appointment was to be made on the basis of computer knowledge and written examination. The appellant, Vijendra Kumar Verma was not selected, as he lacked basic knowledge of computer operation for being successful. He challenged the criteria adopted for judging the basic knowledge of computer operation. The Apex Court observed that appellant having appeared in the Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 31 interview knowing fully well the selection criteria, and that too without any protest, cannot turn back and challenge that the procedure adopted for selection was without jurisdiction. 30. The Commission has also relied upon a decision in the case of Dr. M.C. Bindal vs Shri R.C. Singh & Ors, reported in (1989) 1 SCC 136. In the said case, the government appointed the person who was provisionally recommended by the Public Service Commission, but later on, after enquiry by the Public Service Commission, the person appointed was found to be not fulfilling the essential qualification/experience prescribed, and as such it withdrew the provisional recommendation. The Apex Court held that the recommendation made by the Public Service Commission is directory and it was competent to withdraw recommendations. The said case is not on the issue relevant in the context of the case, as it is not the case of the petitioners that the Commission cannot withdraw its provisional recommendation. 31. The Apex Court in the case of Dhananjay Malik & Ors vs State of Uttarakhand & Ors, reported in 2008(3) PLJR SC 271 observed that if one participates in the process of selection knowing fully well that the qualification required is contrary to the rules and later on after becoming unsuccessful, they cannot turn around and challenge that the qualifications mentioned was Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 32 contrary to the Rules. 32. The ratio which emerges from various pronouncements of the Hon‟ble Apex Court is that an unsuccessful candidate having participated in the written examination or interview cannot turn around and challenge the selection process, the constitution of Selection Committee, the methodology adopted for selection and the correctness of selection of successful candidates. However, the Apex Court has not laid down as a law that in no circumstances, there can be no challenge to selection and recommendation made by a „Commission‟ or a „Committee‟, however, arbitrary or discriminatory it may be. A selection can be challenged if it is violative of basic rights guaranteed under Articles 14 and 16 of the Constitution and the viability to challenge to selection would thus depend from case to case. 33. The Hon‟ble Apex Court in the case of Raj Kumar & Ors vs Shakti Ray & Ors, reported in (1997) 9 SCC 527 observed that where respondents have committed glaring illegalities in the procedure, to get the candidates for examination under the relevant rules, so also in method of selection and in contravention of the rules, the principle of estoppel by conduct or acquiescence would have no application. The said judgment still holds the fort and has not been watered down or adversely commented upon by the Apex Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 33 Court in any subsequent decision as having not laid down good law. 34. In view of ratio laid down by the Apex Court in the case of Raj Kumar & Ors (supra), it can be inferred that if the selection process suffers from mala fide or glaring illegality which goes to the root of the selection process and if infringement is fundamental in nature, challenge to selection is not prohibited and a writ would be maintainable. 35. In the instant case, apart from other grounds of challenge, the petitioners have raised a grievance that the Commission has wrongly denied them additional marks for publication of journals as an original author by misconstruing the terms of advertisement and the Rules in true perspective. They have further raised a point that the respondents were not correct in coming to a finding that some of the candidates did not hold required qualifications and experience as per eligibility conditions laid down in the advertisement. The petitioners are not challenging the selection of other candidates but submit that the Commission has committed patent illegality in rejecting their candidature against the provisions of statutory Medical Regulations framed by Medical Council of India under Section 33 of the Medical Council of India Act, 1956. The points raised by the petitioners involves legal issues and can Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 34 be agitated in writ jurisdiction. 36. I may agree with the counsel for the Commission that it may not be open for the petitioners to challenge the Constitution of Expert Committee once they have subjected themselves to the Committee without any protest, in view of decisions rendered in the case of Madan Lal (supra). However, I may hasten to add that as already noticed, this is not the only ground of challenge. Thus, it is evident that the case in hand is not one which challenges the selection process, simplicitor, but has raised other issues, which would require interpretations in light of provisions of Medical Council of India Rules and Regulations. The objection to maintainability of the writ applications is rejected. 37. This takes up to the next issues which is being reproduced for sake of convenience: Issue No. (ii): Whether 7 members Expert Committee of Doctors constituted to scrutinize the application of the candidates could be said to be one constituted by Commission as per B.P.S.C. Rules? Issue No. (iii): Whether the Expert Committee has exceeded its jurisdiction by recording eligibility and ineligibility of the candidates? 38. Both the issues are taken up together as they are interlinked. Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 35 The case of petitioners is that the process of selection was to be made through the Commission and only a Committee constituted by the Commission could have had the authority to evaluate the eligibility of the candidates. Furthermore, no member of the Commission was on the board of the Expert Committee and as such the evaluation made by them cannot be said to be one of Commission. They state that the Commission mechanically accepted the recommendation of Expert Committee of Doctors constituted by the Government, and as such it cannot be said that the recommendation made by the Commission in fact was of the Commission itself. They state that the Commission cannot abdicate its function to an expert body de hors its members for the purposes of selection of the candidates. Some of the candidates are even facing Vigilance enquiry. 39. They next argued that even assuming but not admitting that the Committee was competent to make evaluation of marks on the basis of qualification, still it could not have proceeded to determine the eligibility or ineligibility of a candidate. 40. Countering the argument, learned counsel for the Commission submits that the Committee was properly constituted and the Commission after independently examining the report of the Committee, took a decision to call only eligible candidates Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 36 securing minimum of 10 mandatory marks required for the interview. Further more, once having subjected themselves to the scrutiny of Expert Panel of Doctors, they cannot challenge its constitution. Reliance was place in the case of Madan Lal (Supra). 41. I have heard counsel for the parties on the issue. A panel of Expert Committee was constituted vide letter dated 21.2.2012, 27.2.2012 and 1.3.2012 of the Health Department. It would appear from the contents of letters that the team of Doctors was constituted in consultation with the Chairman of the Commission. The panel of expert Doctors represented different faculties of Medical Education and four of them were in the rank of Professors and two of them were holding the rank of Associate Professors. It is not the case of the petitioners that the panel of expert Doctors were not competent to examine the eligibility of the candidates for selection to the post of Assistant Professor. Situated so, it is difficult to accept the contention of the petitioners that the Commission did not have any role in the Constitution of Committee of Doctors. Further more, the Commission did not mechanically accept the report of the Committee of Doctors but duly discussed the report. In this respect, it is relevant to refer paragraph 6 to the Supplementary Counter Affidavit of the Commission filed on behalf of the Commission in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 37 C.W.J.C.No.10596 of 2012 (Sudhir Kumar vs State of Bihar) which is quoted herein for easy reference. “6. That the Expert Committee after scrutiny of applications of candidates submitted its evaluation report and the evaluations were further examined by the Officers of the “Commission” and thereafter the Full Commission after thread bare discussions on the evaluation report, subject-wise approved the list and then either Interview Letters or Letters of rejection were issued to concerned candidates. It is stated that some of the candidates after receipt of their rejection letters made their representations which were also reexamined by the Expert Committee and submitted the report. The said report was also placed before the Full Commission and after due deliberation and consideration the Commission took the decision”. 42. It would appear from paragraph 6 of supplementary counter affidavit that the Full Commission after thread bare discussions on the evaluation report, subject-wise approved the list and then proceeded to issue either interview letters or letters rejecting the candidature for interview. The Commission produced the original file before this Court in support of their submissions that the Commission had minutely discussed and examined the report, where after a decision was taken with respect to issuance of interview letters. All these aspects irretrievably lead to the conclusion that the Commission discharged its basic functions of selecting the candidates as authorized under Rule 3 read with Rule 2 of Bihar Public Service Commission Procedure Rules, 1996. 43. The contention of the petitioners that the Committee exceeded Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 38 its jurisdiction in judging eligibility and illegibility of candidates is too misplaced. Annexure-B to the 2008 Rules as well as advertisement clearly indicates that the candidates will be allotted marks as provided therein. The Committee was constituted for evaluation of marks. The Committee while evaluating marks will necessarily have to first satisfy whether the candidate is eligible or ineligible for the said purpose. In case, if one is not eligible, not only he or she will be entitled to any marks, he/she would not be considered eligible for consideration for the post in view of Clause 3 of the advertisement. Furthermore, the petitioners once having subjected themselves to the scrutiny of the Expert Committee on being found either ineligible or not having secured minimum marks required after being called for interview cannot turn back and challenge the constitution of the Expert Committee. Reliance can be placed in the case of Madan Lal vs State of J& K (supra), wherein the Apex Court observed that once having taken a chance in the examination, one cannot challenge the constitution of selection process. 44. The petitioners lastly submit that some of the Members were facing Vigilance Enquiry and as such they were not suitable to be on the Expert Committee. I find that the petitioners have not taken any such objection earlier while selection process was going Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 39 on. The petitioners do not allege any mala fide or bias. In such circumstances, it is not open for the petitioners, now, to challenge their constitution, particularly when they did not lack the qualifications to be a member of panel, which could only be dubbed as an after thought. I have already observed that petitioners have not disputed that the Expert Committee comprised of Doctors who were expert in their field. Thus, the belated challenge of the petitioners to the constitution of Expert Committee of Doctors, is bereft of merit and is rejected. Similarly, the contention of the petitioners that selection made in effect was one of Commission but of Expert Committee is too misconceived and is too rejected. The Expert Committee was competent to judge the eligibility of candidature with respect to their qualification and eligibility. 45. Issue no. (iv): Whether the Government and the Commission can prescribe higher qualification other than the minimum standard as laid down by the M.C.I? The petitioners submit that the minimum qualification prescribed by the M.C.I. for appointment to the post of Assistant Professor is a Post Graduate degree and three years teaching experience as a Resident/Tutor in the said subject. 46. It is true that neither Rule 7 of the Rules, 2008 nor the Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 40 advertisement prescribed that a candidate necessarily ought to be author of an article published in a recognized Medical Journals as an original author. The Medical Council of India Regulations, 1998 too has not prescribed that for appointment to the post of Assistant Professor one need to have some „publications‟ to one‟s credit. But both the criteria for evaluation of marks in Rule 2008 and Advertisement, provide for additional marks to a candidate for publication of Article as principal author in order to judge comparative merit as indicated therein, which however, do not infringe the minimum qualification prescribed in M.C.I. Regulations. 47. List I of the 7th Schedule lays down the subjects with respect to which Union Government can make legislations. The State Government makes legislation with respect to List II. Both the Union and the State Government can make legislations with respect to List III; the Concurrent List. Entry 25 of List III deals with higher and technical education including Medical education. The State can make legislations and can lay down standard of Medical Education under Entry 25 List III which is subject to legislation made under Entry 66, List I by the Central Government. It thus follows that once minimum standard of education is laid down by the Central Government, the State cannot prescribe criteria which would be Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 41 inferior to it or adversely affect the standard so laid down by the Central Government. However, the provisions do not bar the State from laying any further qualifications to maintain excellence in higher education and ensure that there is not deterioration in the quality of candidate to be appointed in Medical Education. 48. The Constitution Bench of Apex Court in the case of Dr. Preeti Srivastava & anr vs State of M.P. & Ors, reported in (1999) 7 SCC 120 in paras 35 and 36 observed as follows: in “35. …………Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List-1 which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-1. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254……” “36. It would not be correct to say that the norms for admission have not connection with the standard of education, or that the rules for admission are covered only Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 42 by entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in additi8on to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education…..” 49. Reiterating the views expressed in case of Dr. Preeti Srivastava (supra), the Apex Court in the case of Visveswaraya Technological University vs Krishnendu Halder & Ors, reported in 2011(2) PLJR (SC) 199 has observed that the object of the State or University fixing eligibility criteria higher than those fixed by AICTE, is two fold. The first and foremost is to maintain excellence in higher education and ensure that there is no deterioration in the quality of candidates participating in professional Engineering Courses. The second is to enable the State to shortlist the applicants for admission in an effective manner, when there are more applicants than available seats. The Apex Court in paragraph 10(i) observed as follows: to institutions of higher education, “10(i) While prescribing the eligibility criteria for admission the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term „adversely affect the standards‟ refers to lowering of the norms laid down by Central Body/AICTE. Prescribing Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 43 in addition for admission by laying down higher standards qualifications to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE”. (The underlining is mine for emphasis) 50. In view of law laid down in case of Dr. Preeti Srivastava and Visveswaraya Technological University, there is no dispute that the State can lay down additional qualification other than minimum prescribed by the appropriate authority including Medical Council of India. However, the State cannot lay down criteria or qualification which is minimum or inferior then one prescribed by appropriate authority or Medical Council of India. Thus the State in view of its right to control Medical education, can prescribe additional qualifications, besides the minimum qualification laid down under the law. 51. Now I would take up the points which are individual to petitioner or group of petitioners. The petitioners state that both Annexure-B to 2008 Rules as well as advertisement provides that an additional marks would be allotted to a candidate for original publication as principal author in recognized journals. The grievance of petitioners of C.W.J.C. Nos. 9291 of 2012, 114416 of 2012, 9154 of 2012, 10729 of 2012, 12736 of 2012, 11409 of 2012, 13321 of 2012 is that they have Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 44 wrongly been denied by the respondents additional marks for original publications as principal author because of wrong interpretation of the term „publication‟ in spite of clear indication contained in 1998 Regulations of Medical Council of India, as amended in 2009. 52. Both the advertisement and the Rules state that a candidate will be treated to be principal author of a publication, if he or she produces certificate to the aforesaid effect from the Professor Incharge or Head of Department of the subject under whom he or she has prepared the paper. 53. On the other hand, counsel for the Commission submits that the petitioners were rightly not allotted any additional marks for original publication as their articles was not actually published either in recognized State journal or journal at National or International level. He further submits that unless the journal is actually published, no marks can be allotted to a candidate. 54. Rule 7 of 2008 Rules states that appointment to the post of Assistant Professor would be made as per conditions and criteria laid down by the State Government from time to time. Rules, 2008 further lays down that the State Government would make appointment to this post from a panel prepared by the Commission, in accordance with the procedure laid down in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 45 Annexure-B to 2008 Rules. Annexure-B provides for evaluation of marks for determining comparative merits of the candidates. Clause 4of Annexure-B provides for 1 (one) marks for each publication in a Bihar State Medical Journal, subject to a maximum of 2 (two) marks; 2 (two) marks for each publication in All India Medical Journal which is the official organ of an All India Society or an Association or a Foreign Medical Journal which is the officials of a similar National or International Society or Association, subject to a maximum of 10 marks. Clause 4 of the advertisement has also provided accordingly. Both Clause 5 of Annexure-B of 2008 Rules and Advertisement mandate that for being eligible for appointment as an Assistant Professor, a candidate should have a minimum of 10 points. There is no dispute that all these petitioners had produced certificates with respect to publications from Professor Incharge or Head of Department of the subject under whom he or she prepared the papers. 55. The Commission does not controvert the claim of the petitioners that they had submitted their articles for publication in recognized journals. The stand of the Commission is that no marks can be allotted merely because the documents have been accepted by the journals for publications, but not actually Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 46 published. According to Commission, the word “publication” used in the advertisement as well as in the Rules would refer to actual publication. 56. Refuting the claim of the Commission, the petitioners submit that “publication” would mean both published or „accepted for publication‟ in view of amendment to “Minimum Qualification for Teachers in Medical Institutions (Amendment) Regulations, 2009. 57. I find that the word „publication‟ has not been defined in Rules, 2008. However, one gets some clue about the „term‟ from 2009 Amendment to 1998 Regulations made by Medical Council of India. 58. M.C.I. is a statutory authority created and constituted under Indian Medical Council Act, 1955 by the Central Government with the objective, inter alia, to regulate medical education in the country and to formulate regulations and guide lines with regard to the standards and conducts of medical education in India. The Indian Medical Council Act empowers the M.C.I. to prescribe minimum standard in the field of education and profession. Section 33 of Indian Medical Council Act confers M.C.I. with a power to frame Regulations with prior approval of the Central Government. In terms of power conferred under section 33, the Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 47 M.C.I. has framed Minimum Qualification for teachers in Medical Institution Regulation Act, 1998. As stated above, 1998 Regulations has been amended in 2009 by 2009 amendment. Clause 4(A) of 1998 Regulations was further amended by inserting Clause 4(A)(ii) which is relevant in the context is quoted herein below: “3(a). In Clause 4(A) under the heading “Professor” as amended vide “Minimum Qualification for Teachers (Amendment) Regulations, 2009”, be further amended by inserting the following proviso in 4(A)(ii):- in Medical Institutions “Provided that these research publications are published/accepted for publication in the Journals by the national Associations/Societies of the respective specialities as the First Author. Further provided that the requirement of 4 research publications for promotion to the post of Professor should be taken on cumulative basis with minimum of 2 research publications must be published during the tenure of the Associate Professor”. 59. It appears from Clause 4(A)(ii) which has been inserted by amending Clause 4A, that wherever the word “publication” has been referred, the same has been qualified as „accepted‟ or „published‟. The word „Publication‟, as used in the 2008 Rules as well as in advertisement, therefore, has to be given harmonious construction and is to be assigned the same interpretation and meaning as indicated in 2009 Regulations framed by the Medical Council of India. Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 48 60. Apart from this, the “Oxford English-Hindi Dictionary”, printed by the “Oxford University Press”, the word “Publication” has been defined as “The Act of printing, and making it available to Public”. In “Oxford English-Hindi Dictionary” printed by the “Oxford University Press”, the word “Publication” has been defined as “Kisi Baat Ko Sarvajanik Karney Ki Kriya”. The “Publication” as such would include all acts of publishing i.e. from acceptance of an article to it actual printing and offering to public. 61. As submitted by the petitioners, the process of Publication involves submission of an article by the author, its examination by an Editorial Board consisting of experts, acceptance by the Publisher, Printing and offering to Public by the Publisher. The publication of an article if accepted for publication, the matter of actual printing is within the sole discretion and authority of the Publisher, over which the author has no control. From the aforesaid situation, it is evident that till the time the articles are accepted for publication, the author is responsible in the matter of timely presentation of the same, but the moment the same is accepted by the Publisher, the matter of actual printing and sale is within the sole discretion and authority of the Publisher over which the author has no control. It is equally true that once an article has been accepted for publication, it is necessarily to be published by the publisher in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 49 its edition and cannot defer it indefinitely. 62. In backdrop of discussions made in foregoing paragraphs and particularly in view of 1998 Regulations of M.C.I. amended in 2009, where the term „publication‟ has been referred and qualified as either „publication‟ or „accepted‟, I hold that an original article of principal author, if accepted for publication by the recognized journals as indicated in Annexure-B of 2008 Rules, would satisfy the necessary requirement and would entitle the aggrieved candidates to additional marks under Clause 4 of Advertisement and clause 4 of Annexure-B of 2008, Rules. 63. Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the petitioner Dr. Sujata Kumari in C.W.J.C.No.12736 of 2012 states that the research paper of the petitioner has been published in International Journals, U.K. in 1991 and in U.S.A. in the year 1993. Apart from journals, the research papers have been published by the authorities of the aforesaid Countries on Internet also. He submits that the invention of the petitioner has been made patent in her name and she has been given certificate also in this regard by the Commissioner of Patent and Trade Marks of USA. The subject of the invention of the petitioner is Dissecting-cum- Haemostapling scissors. 64. On the other hand, counsel for the Commission submits Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 50 that the „publications‟ in Commercial journals would have no relevance in the context of the issue. 65. In my view, if the articles of the petitioner Dr. Sujata Kumari have been accepted in any of the recognized journals as an original author, she would be entitled to additional marks as provided in the advertisement. Thus, I need not go into the issue whether the display of articles on Internet would amount to actual printing of the article in a journal. It has to be further examined whether it has been put on Net, by and at behest of the Controlling authorities of the concerned journal. 66. In view of the above findings, I find that the respondents erred in not allowing additional marks to the petitioners whose articles has been accepted for „publication‟ as principal author in recognized journals indicated in the advertisement. 67. The writ applications, bearing C.W.J.C. Nos. 11416 of 2012, 10729 of 2012, 13321 of 2012, 9291 of 2012, 9154 of 2012, 11409 of 2012 and 12736 of 2012 would succeed, and so would C.W.J.C. No.13643 of 2012 so far her grievance is with respect to denial of marks for publication of articles as a Principal author, if it has been accepted for publication in recognized journal, subject to meeting the eligibility requirements, with which I would deal later as and when I take up eligibility and qualifications issues Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 51 separately. 68. The case of the petitioners aforesaid is, accordingly, remitted to the respondents to re-calculate their marks after allotting them due marks for articles which have been accepted for publication in recognized journals, and after re-calculation, if any one of them is found to have secured more than the minimum 10 marks in total, they would be called for counseling/interview. It is further made clear that the petitioners who have obtained more than minimum of 10 marks e.g petitioner nos.1 to 3 of C.W.J.C.No.9154 of 2012 and have been called for interview would further benefit improvement in their positions and would be shifted to the slot they would have occupied, had they not been denied additional marks for acceptance of their publications which was not actually printed. 69. In the result, these, writ applications are, accordingly, allowed and the impugned order rejecting their candidature is set aside. 70. Issue no.(v): Whether the respondents have erred in holding that some of the petitioners lacked mandatory three years teaching experience after Post Graduation or Super Speciality degree or both? In this category, the petitioners affected by such decisions Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 52 of the respondents are (i) Dr. Sudhir Kumar, petitioner in C.W.J.C.No.10596 of 2012, (ii) Dr. Pranay Raj Sharan Sinha, petitioner in C.W.J.C. No.11074 of 2012, (iii) Dr. Mrs. Rajshri Kumari, petitioner in C.W.J.C. No.13643 of 2012, (iv) Dr. Mridula Roy Chaudhary, petitioner in C.W.J.C. No.11268 of 2012, (v) Arun Kumar, petitioner in C.W.J.C. No.14465 of 2012 and (vi) Rakesh Kumar, petitioner in C.W.J.C. No.14466 of 2012. C.W.J.C. No.10596 of 2012: The writ petitioner Sudhir Kumar has filed the instant writ application against rejection of his candidature vide order dated 18.5.2012 issued under the signature of Administrative Officer, Bihar Public Service Commission for appointment to the post of Assistant Professor, Department of T.B. & Chest against advertisement no.15/11 as well as rejection of his representation dated 9.6.2012 on the ground that he lacked mandatory three years experience as Senior Resident/Tutor after super specialty degree. The petitioner has done his M.D. in T.B.& Respiratory degree, D.M. (Pulmonary Medicine) and D.N.B. (Respiratory disease). He has got degree of Bachelor of Medicine and Bachelor of Surgery from Banaras Hindu University Examination held in the year 1989. The petitioner successfully obtained Bachelor of Medicine and Surgery degree from Banaras Hindu University in 1991. He did M.D. in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 53 Tuberculosis and Respiratory disease from Banaras Hindu University for examination held in 1993 vide certificate dated 20.7.1994. Thereafter he got D.N.B. certificate in Respiratory disease in 1985. He completed super specialty degree, e.g. D.M. (Pulmonary medicine) in the year 1995-96 from Post Graduate Institute of Medical Education and Research, Chandigarh. He did his Senior Resident teaching fellow from January 1994 to December, 1995 in Pulmonary medicine. He was Senior Resident in the department of T.B. & Chest from 12.1.1996 to 20.5.1996 in Government Medical College, Chandigarh. The petitioner was appointed as Assistant Professor, Department of Phenomenology in IGIMS, Patna to which he joined on 10.12.1998 and continued to work on the said post till 30.6.2003. He worked as Associate Professor in the same department at IGIMS from 1.7.2003 to 25.11.2003. The Bihar Public Service Commission in the year 2001 had even taken him on board as expert in the selection process of Bihar Health Examination 1993-98. He submits that many Doctors pursued their Senior residency under him while he was posted as Assistant Professor and Associate Professor. The petitioner submits that TB & Chest is known by different names in different parts of country, such as department of Phenomenology; a Phenomenology medicine of chest disease and respiratory disease. He submits that Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 54 besides 2 ½ years teaching experience after completing his Post Graduate degree of M.D. (TB & Chest), he possesses 4 years 11 months and 16 days teaching experience after completion of super specialty degree; e.g. D.M. in Pulmonary medicine on account of having worked as Assistant Professor, Department of Phenomenology, IGIMS, Patna from 10.12.1998 to 30.6.2003 and Associate Professor in the same faculty from 1.7.2003 to 25.11.2003. On the other hand, it is the case of the State that the IGIMS was not recognized by M.C.I. as teaching experience during the period 1998 to 2003. It is further case of the State that the Department of Phenomenology is like other Super specialty (Urology, Nephrology and Cardiology) are conducted by non- teaching institution. The petitioner states that he is the only person in the State of Bihar who possesses M.D., D.N.B. and D.M. qualification in the subject of Tuberculosis and Chest/Respiratory disease/pulmonary disease. Altogether 13 posts of T.B.& Chest were advertised vide advertisement no.15/11 and only two candidates both ineligible were called for interview. The petitioner next submits that Division Bench of this Court in the case of Dr. Ranbir Prasad Singh vs State of Bihar and Ors, C.W.J.C. No.6945/1991 and Dr. Ashok Kumar Sinha vs Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 55 State of Bihar & Ors, C.W.J.C. No.1022 of 1990 (reported in 2000(3) PLJR 618) held that teaching experience gained by a candidate while holding a teaching post can be validly taken into consideration for appointment to the post of Assistant Professor. Having regard to the facts and circumstances of the case and also in view of the Division Bench order of this court, I direct the respondents to reconsider the case of the petitioner afresh with respect to his eligibility. The impugned order rejecting the candidature of the petitioner is set aside. The writ application is accordingly allowed. C.W.J.C. No.11074 of 2012: The petitioner Dr. Pranay Raj Sharan Sinha was appointed as Medical Officer in Bihar Health Service in the year 1988. The candidature of the petitioner for appointment on the post of Assistant Professor Orthopedics has been rejected on the ground that he neither has Post Graduate degree in Orthopedics nor three years teaching experience in the said subject. The petitioner states that the respondents erred in holding that he does not have requisite qualification of Post Graduate degree in Orthopedics as well as three years teaching experience in the subject as Senior Resident/Tutor. So far as issue of qualification is concerned, the affidavit of M.C.I. and letter of Government admits that the petitioner does have Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 56 requisite qualification of Post Graduate degree. The petitioner was initially appointed as Medical Officer in Bihar Health Service on 23.3.1988. He was selected for doing Post Graduate course in Orthopedics for the sessions 1987-89 in D.M.C.H., which admittedly did not have recognition of M.C.I. then. While the petitioner was pursuing his P.G. Course, the M.C.I. issued advertisement for three years P.G. Course under Residency Scheme in various disciplines in different Medical Institutions in U.S.S.R. M.C.I. further notified through its “Application Form and Bulletin of Information for Admission to Medical Institutions in U.S.S.R.-1989” that the matter of granting equivalence of Ph.D qualification awarded by recognized Institute/University in U.S.S.R. to D.M./M.Ch./Ph.D(Post Doctorate) of Indian University was under active consideration of M.C.I. The petitioner applied through proper channel and was selected for P.G. study in Medical Institute in U.S.S.R. in Orthopedics. He successfully completed three years P.G. Course under residency scheme and was awarded Ph.D in Orthopedics which he claims to be M.S. of India University. M.C.I., after due consideration recognized the P.G. Course of petitioner from U.S.S.R. as equivalent qualification for the post of Assistant Professor/Lecturer through letter no.34244, dated 4.2.1998. Thereafter, the petitioner did diploma in Orthopedics from P.M.C.H. Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 57 and M.C.H. in Plastic Surgery in 1995. The M.C.I. in paragraph 16 of its affidavit admits that in light of provisions of Technical Eligibility Qualification contained in Schedule II, the petitioner has got recognized medical qualification for the post of Assistant Professor as M.C.I. has granted equivalency to the Post Graduate qualification of petitioner in Orthopedic, obtained from U.S.S.R. with the Post Graduate qualification in Orthopedic from Indian University. The State while disposing of the representation of the petitioner rejecting his candidature admits that the petitioner has requisite qualification of Post Graduate degree. However, the respondents observed that the petitioner does not have three years teaching experience in Orthopedics. There is nothing on the record to show that the petitioner has three years teaching experience in Orthopedics after doing his Post Graduation. Serving as a Medical Officer cannot be counted as teaching experience in Orthopedics. Thus, the impugned order rejecting his candidature is modified to the extent that the petitioner has requisite qualification of Post Graduate qualification of petitioner in Orthopedic, obtained from U.S.S.R. with the Post Graduate qualification in Orthopedic from Indian University. The writ application is partly allowed. C.W.J.C.No.13643 of 2012 Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 58 The candidature of petitioner Dr. Mrs. Rajshri Kumari was rejected on the ground that she lacked three years teaching experience as Resident/Tutor in the subject after her Post Graduation as on the cut off date which was 31.7.2011. Both 2008 Rules as well as clause 3 of the advertisement mandates that one must have three years teaching experience as Resident/Tutor in the subject concerned after the Post Graduation Degree. It would appear from own pleadings of the petitioner that she in effect had a total of 2 years 2 months 9 days of teaching experience as Senior Resident after doing her Post Graduation as on 31.7.2004. Thus, on her own showing, the petitioner does not have the requisite teaching experience as Senior Resident/Tutor and as such she has rightly not been found eligible for consideration for the post of Assistant Professor. The writ application is accordingly dismissed with an observation that her claim with respect to denial of marks for publication of article as an original author is allowed provided it has been accepted for publication in recognized journals as already observed in paragraph 67 of this order. C.W.J.C. No.11268 of 2012: The candidature of the writ petitioner Dr.(Mrs) Mridula Roy Chaudhary was rejected on the ground that she is lacking mandatory teaching experience as Sr. Resident/Tutor after Post Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 59 Graduation. The petitioner in paragraph 10 has herself stated that she was appointed against the teaching post of Senior Resident of Gynecology/Obstetrics on contract basis where she gave her joining on 13.5.2009 and as such on that count itself, she would not be completing three years teaching experience as Resident in the said subject till the cut off date i.e. 31.7.2011. The eligibility requirement as contained in the advertisement as well as in 2008 Rules clearly states that a candidate should be possessing Post Graduate degree with three years teaching experience in the said subject. The petitioner as such was lacking three years mandatory teaching experience as Senior Resident/Tutor after completing her Post Graduate in the specified subject on the cut off date. The impugned order rejecting her candidature as well rejecting her representation on 11.6.2012 cannot be faulted. The writ petition is accordingly dismissed. C.W.J.C. Nos. 14465 & 14466 of 2012: Both the cases are taken up together as the issues and facts are substantially similar in nature. Petitioner Arun Kumar in C.W.J.C. No.14465 of 2012 did his Post Graduation in Orthopedic in the year 1994 and petitioner Rakesh Kumar in C.W.J.C. No.14466 of 2012 did his Post Graduation in Orthopedic in the year 1993. In short, the case of the petitioners are that they have more than Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 60 3 years Teaching/Residency experience in Physical Medicine and Rehabilitation (PMR), which is an allied and inter disciplinary of Orthopedic subject and as such the same would satisfy the requirement with respect to teaching experience. However, as per respondents, the teaching experience in PMR would not satisfy the eligibility criteria, as it is not same as Orthopedic and the advertisement clearly mandates that one should have teaching experience in the subject in which one has done one‟s Post Graduation. It appears that petitioner Arun Kumar worked as Senior Resident in PMR from 29.3.2005 to 18.5.2011 and is still working so in S.K.M.C.H., Muzaffarpur. Similarly, the petitioner Rakesh Kumar had worked as Senior Resident in PMR from 1.3.2008 to 16.5.2011. He too has completed more than three years teaching experience in PMR. Thus, there cannot be any dispute that they were having more than three years teaching experience in PMR, though on contract basis. According to the petitioners, it is immaterial in view of the Advertisement itself whether they have three years teaching experience as Senior Resident in PMR on contract basis or on regular basis in view of such options in Clause 3 of the advertisement. I may agree with the broad propositions put forth in Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 61 view of such stipulations in the Advertisement itself. But I need not in detail examine this matter as the basic question would be whether PMR and Orthopedic faculties are not two different and denotes the same subject. The petitioners in support of their submissions that PMR is an allied and inter disciplinary of Orthopedic subject refer to a letter dated, 29.4.2011 issued by the Principal Secretary, Health Department, wherein he has stated that the person who has secured three years experience in residency, would satisfy the required eligibility of three years teaching experience as laid down in 2008 Rules. The petitioner further submits that P.M.R. Department is inter disciplinary faculty of Orthopedics and both the Medical Council of India and Health Department has fixed similar qualification for appointment of Senior Resident and Assistant Professor in P.M.R. and Orthopedics. He submits that one Dr. Binod Kumar Singh had done residency in P.M.R. in P.M.C.H., Patna as well as residency in Orthopedics. He was promoted to the post of Assistant Professor Orthopedics in A.N.M.C.H., Gaya vide notification no. 11(17) dated 9.1.1996. Similarly, one Dr. Ram Nandan Suman who has done residency in P.M.R. from P.M.C.H. Patna and served as Registrar in N.M.C.H. was promoted to the post of Assistant Professor Orthopedics in P.M.C.H., Patna. One Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 62 Dr. U.C. Choudhary having completed residency in Orthopedics was promoted to the post of Assistant Professor, P.M.R. and then as Assistant Professor Orthopedics, Darbhanga (now retired). Further more, one Dr. V.K.Sinha, who was Registrar in Orthopedics and had also completed Residency in the said subject was promoted to the post of Assistant Professor in PMR and then he was posted as Registrar in the Department of Orthopedics in Patna Medical College Hospital, Patna. Thereafter he was also posted as Acting Assistant Professor, Orthopedics in P.M.C.H. vide notification dated 24.3.2004 It has been further submitted that one Dr. Ajit Kumar Verma, who had done his residency in Orthopedics, Patna Medical College Hospital was promoted to the post of Assistant Professor/Associate Professor and Professor/Head of Department in Physical Medicine and Rehabilitation Department, Patna Medical College Hospital, Patna. One Dr. Alok Kumar Mishra, who was Registrar, Orthopedics and had also done residency in the said subject was promoted as Assistant Professor/ Associate Professor and retired from Associate Professor, P.M.R., Patna Medical College Hospital, Patna. The petitioners also cited the example of Dr. Akshay Kumar Singh who was promoted to the post of Assistant Professor, Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 63 P.M.R., Patna Medical College Hospital, Patna, though he had done his residency in Orthopedics. The State has not been able to controvert the submissions of learned counsel for the petitioners that in the past the persons who had done M.S. in Orthopedics was promoted as Assistant Professor in P.M.R. and similarly persons posted in P.M.R. were too promoted and posted inter changeably in Orthopedics Department. Neither the State nor the Commission deny that in past the persons having residency in P.M.R. were promoted as Assistant Professor in Orthopedics. They submit that a mistake committed in the past cannot be a justification for perpetuating it further, more so, when a new faculty of P.M.R. has already come into being. He, however, submits that P.M.R. and Orthopedics are two different faculties and the word “inter disciplinary” involves two or more academic disciplines which are usually considered distinct. A counter affidavit has been filed on behalf of the Medical Council of India wherein it has been stated that the minimum eligibility criteria provided for appointment to the post of Assistant Professor/Lecturer of a Medical Institution in Orthopedics is that the person must have the degree of M.S. (Orthopedics) and must also have the minimum three years teaching experience in the said Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 64 subject in a recognized Medical College as Resident/ Registrar/ Demonstrator/ Tutor. I have counsel for the parties on this issue. I find that 2008 Rules as well as the advertisement clearly states that a person can be appointed to the post of Assistant Professor, if one has Post Graduate degree as well as three years teaching experience in the said specified subject. The issue is whether the person who has done Post Graduation in Orthopedics and residency in P.M.R., can be appointed to the post of Assistant Professor (Orthopedics). Medical Council of India is a statutory and expert body created under the Medical Council of India Act to control minimum standard of medical education. The Medical Council of India in exercise of its power conferred under Section 33 of the Indian Medical Council Act, 1956 has framed Minimum Qualification for Teachers in Medical Education vide its 1998 Regulations. The regulations contain an Index of Teaching Specialities in which Orthopedics and PMR finds mentioned separately at Sl. No.17 and 25 respectively. The Regulations thus earmarks P.M.R. and Orthopedics as two distinct subjects. The qualification for the teaching post in P.M.R. has been indicated separately. The relevant portion of Regulations is being Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 65 reproduced herein below for easy reference. ORTHOPEDICS Post (A) Professor Academic Qualifications M.S.(Orthopedics) (B) Associate Professor Reader/ - do - (C) Professor/Lecturer Assistant - do - Tutor/ (D) Demonstrator/ Resident/ Registrar MBBS Teaching/Research Experience As publication (i) As Reader/Associate Professor in Orthopedics for four years in a recognized Medical College Desirable (ii) Minimum of four Research publications in Index indexed Medicus/national journal and one in research International journal. (i) Assistant Professor/Lecturer in Orthopedics for five years in a recognized Medical College. Desirable (ii) Minimum of four Research in Index indexed publications Medicus/national journals (i) recognized Requisite postgraduate qualification in the subject. (ii) teaching experience in the subject in a recognized medical college as Resident/Registrar/ Demonstrator/ Tutor. Three years It would thus appear that the Medical Council of India which is a highest body, controlling the minimum standard of medical education, treats both the subjects as distinct teaching speciality. This also could be precisely the reasons that the Commission has invited applications separately for appointment to the post of Assistant Professor of P.M.R. and Assistant Professor (Orthopedics). The Advertisement no.21/2011 is with respect to Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 66 inviting application for the post of Assistant Professor (P.M.R.), whereas Advertisement no.20/11 is with respect to inviting application for the post of Assistant Professor (Orthopedics). The case of the petitioners is that teaching experience or Residency in P.M.R. would as well satisfy the requirement of three years teaching experience in Orthopedics. The plea of the petitioners has to be strictly tested in light of specifications in advertisement and 2008 Rules and the parameters laid down in the M.C.I. Regulations. The M.C.I. Regulations, 2008 Rules and the advertisement, mandate that for the post of Assistant Professor in the concerned faculty one must have three years teaching experience in the said subject after Post Graduation. The Apex Court in the case of M.C.I. vs State of Karnataka, reported in (1998) 6 SCC 131 observed that if regulation framed under Section 33 of the M.C.I. Act, falls within the purposes referred to under section 33 of the M.C.I. Act, it will have mandatory force. The petitioners admittedly do not have three years teaching experience in Orthopedics but in PMR. The M.C.I. in its affidavit too has also stated that the petitioner does not have three years teaching experience in the Department of Orthopedics. Earlier the P.M.R. course was included in study of Orthopedics, but since quite some time past it has been separated and carved out as an Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 67 impendent faculty. Generally speaking Orthopedics is a branch of Surgery concerned with disease of Skelton system, whereas P.M.R. primary deals with massaging and rehabilitation. The work of P.M.R. begins once the work of an Orthopedic Surgeon comes to an end. P.M.R. may be an allied section of Orthopedic but it cannot be treated akin to Orthopedic. Thus, teaching experience gathered as Resident in P.M.R. cannot be equated with teaching experience in Orthopedics faculty. I do not find any infirmity in the impugned order rejecting their candidatures. These two writ petitions are, accordingly, dismissed. 71. For the reasons discussed above, C.W.J.C. Nos. 11416 of 2012, 10729 of 2012, 13321 of 2012, 9291 of 2012, 9154 of 2012, 11409 of 2012, 12736 of 2012 and 10596 of 2012 are allowed and C.W.J.C.Nos.13643 of 2012, 11268 of 2012, 14465 of 2012, 14466 of 2012 are dismissed. C.W.J.C. No. 11074 of 2012 is partly allowed. The State Government and the Bihar Public Service Commission would immediately take up the follow up action in the light of the order of this Court. (Samarendra Pratap Singh, J) Md.Jamaluddin Khan AFR Patna High Court CWJC No.10596 of 2012 (10) dt.14-02-2014 68