RABINDRA KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE dispute in these ten writ petitions relates to fixing the upper age limit of 35 years (in the case of general category candidates) on the cut -off date i.e. 1.10.98, for making applications for the post of Medical Officer in the Bihar Health Service.

(2.) RECRUITMENT to the Bihar Health Services (Basic Grade) is governed by the Bihar Health Services (Basic Grade) Recruitment Rules, 1984 framed under proviso to Article 309 of the Constitution of India. Rule 6(a) of the said Rules lays down (for the purpose of admission to the competitive examination and recruitment to the post) that a candidate must not have crossed 35 years of age or in the case of candidate belonging to the scheduled caste and scheduled tribes 40 years of age on the 1st day of October in which the competitive examination is to be held. From the impugned advertisement published in newspapers on or about 10.11.98 the upper age limit has been fixed at 35 years in the case of general category candidates, 37 years in the case of Backward class/Most Backward class category candidates, 38 years in the case of Backward class (Females) and 40 years in the case of Scheduled Caste/Scheduled Tribes candidates. It would, thus, appear that the age limits fixed are in accordance with the rules and in that sense no objection can possibly be taken. The grievance of the petitioners, however, arises from the fact that during the last 9 years after 1989, no recruitment for the basic grade post of Medical Officer in the Bihar Health Service was made with the result that many candidates became over -age. This, if I may say, is the inevitable fall out of not making recruitment periodically. A candidate, who was not eligible on the cut -off date for the last recruitment on the ground of lesser age may become over age when the next recruitment takes place and he may thus be deprived of the opportunity to seek appointment. Though no such minimum age limit has been fixed in the case of recruitment to the basic grade post in the Bihar Health Services under Rule 6, the Rules lay down certain qualifications, such as, passing of the MBBS examination, intemship etc. without which the candidate is not eligible to appear. A candidate qualified for recruitment at a comparative higher age may still find himsef in the same position of being deprived of the opportunity to apply for appointment and, thus, being considered for the post. The Supreme Court has deprecated the practice of not holding examination periodically resulting in denial of opportunity to the candidates, who may otherwise be suitable for appointment, in several cases. Reference may be made to one of them, State of Bihar & ors. vs. The Secretariat Assistant Successful Examinees Union of 1986 & ors., AIR 1994 Supreme Court, 736 = (1994) 1 SCC 126 : 1994(1) PUR (SC) 41. The case related to the appointment of Secretariat Assistants and had arisen from the State of Bihar itself. It is noteworthy that in the aforesaid case there was no statutory Recruitment Rule laying down holding of examination every year or so, as in the case of the Bihar Health Services (Basic Grade) Recruitment Rules. It would be useful to quote rule 4 of the said Rules as under: -

(3.) IT may be observed here that as a general principle there is no compulsion on the part of the Government to make appointment even though vacancies are available but at the same time if vacancies are allowed to accumulate and bulk appointments are made at a time, there may be possibility of candidates possessing inferior merit coming in. Where examinations are held periodically the chances are that the best of the available lot would be appointed.