KAUSALAYA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) AFTER hearing leamed counsel appearing for the petitioners, State and the Bihar Public Service Commission, present application with the consent of the parties is being disposed of finally at this stage itself.

(2.) PRESENT application under Article,226 of the Constitution of India has been filed for quashing the advertisement No.59/98 of Bihar Public Service Commission (hereinafter to be referred to as B.P.S. C. ') inviting application forms to the post of Auxillary Nurse Midwifery (hereinafter to be referred to as 'A.N.M. ') on the district level vacancies and a further direction has been sought for directing the Respondents to appoint the petitioners to the post of A.N.M., as according to learned counsel, petitioners fell under the category of those A.N.M. who had been directed by this Court to be appointed on that post on the . vacancies Which fell vacant prior to coming of the new rules, after calculating such vacancies.

(3.) THE factual matrix of the case between the parties are quite plain and simple. The writ petitioners are the trained A.N.Ms. who had successfully completed their training and had also emerged successful in the examination conducted by the Bihar Nurses Registration council. It has been contended by the counsel for the petitioners that the State Government vide Annexure -1, had laid down the procedure for appointment of class -lIl and IV employees and had thereby resolved to constitute a selection committee at the district level duly headed by the District Magistrate. On the strength of direction issued by the State Government to all Civil Surgeons of the district vide letter No. 166(6) dated 1.2.91 (as contained in Annexure -2) by which the latter were requested to take needful steps in the direction to fill up all existing vacant posts of A.N.Ms; and accordingly vide An - nexure -3 within the surgency of Vaishali 38 ANM 'swere even provided with the appointment letters. Simultaneously it was contended, a waiting list was also prepared wherein the names of petitioners have been included. According to the own showing of the writ petitioners apart from the said 38 appointments other 29 seats were left vacant to be filled up from the candidates hailing from the reserved categories. A categoric reference has been made by the writ petitioners to the order dated 3.10.94 passed in respect of batch of writ applications as contained in Annexure -6; whereby and whereunder, the petitioners of the said writ applications, who had agitated their grievance that prior to 1993 the mode of selection to such posts in question was to appoint the candidates on their mere completion of training subject to availability of vacancies which was altered since 1993 to the extent that on such successful completion of training a candidate was required to pass the examination conducted by Nurses Registration Council. This Court while disposing of the batch of the said writ applications had directed the concerned respondents that in respect of the vacancies occuring earlier to the revised procedure, the mode of selection shall be the same as was in existence prior to the revised procedure and in terms of the said direction the cases of the respective writ petitioners were ordered to be considered within the stipulated time frame. At this juncture this Court may usefully refer to the several decisions of the Apex Court, as reported in A.I.R. 1983 S.C. 1143, A.I.R. 1990 S.C. 405, 1996 L.I.C. 2739 besides there are several other decisions which have gone to perpetually settle the law in this regard that once a process of selection starts the mode of appointment is to be followed on the basis of the Rule as was existing at the time of initiation of such selection, if the rule is not given any retrospective effect. It is equally well settled that a valid selection process will be deemed to have commenced with the publication of an advertisement, which only, goes to confer a legal right to an eligible candidate to consider his candidature on merit. In the instant case at hand, no attempt has been made by the counsel for the petitioners to demonstrate that any advertisement was published to fill up such posts in question within the surgency of Vaishali obviously for the reason that since there was no such factual pleadings made in the writ application and there was nothing brought on record to conclusively uphold as to whether any advertisement was brought forth to effect the appointments of 38 A.N.Ms or to prepare a waiting list of candidates for such appointment on the basis of which the writ petitioners are staking their claim for such appointment. In respect of such contention it has already been well settled that mere empanelment is only a condition of eligibility