PRANAY RAJ SHARAN SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner had initially filed this writ application for a direction to the respondents to fill up all vacant posts of Lecturers of all the faculties of all the Medical Colleges of the State on the basis of examination held by the Bihar Public Service Commission (hereinafter referred to as the BPSC?) in the year 2000 and for a direction to the BPSC to prepare complete merit list on the basis of the said examination. However, after liberty granted by this Court by order dated 04.02.2002, petitioner amended his writ application by confining his prayer for filling up of vacant post of Lecturers in the subject of Orthopaedics only. Subsequently, an I.A. No. 1178 of 2002 was also filed by the petitioner formally for such amendment in terms of the time granted by this Court by order dated 05.02.2002. Since the I.A. filed pursuant to liberty granted by this Court and there is no opposition to the same, the same is allowed.

(2.) The short facts of the case are that the petitioner joined Bihar Health Service in March 1988 and in July, 1995 he became Medical Officer in Patna Medical College and Hospital, Patna (for short PMCH?) and subsequently occupied the post of Resident and Registrar also. In 1997, in terms of 1997 Rules, which was published in the Bihar Gazette (Extraordinary) on 24.5.1997 (Annexure-1) Medical Education Cadre was separately created of the doctors working in the Medical Colleges of the State, as per the Rules. On the post of Lecturer, which was entry point in the Medical Education Cadre, appointment had to be made by direct recruitment through BPSC. Accordingly, after formation of the cadre, BPSC advertised 137 vacant posts of Lecturers of different faculties of different Medical Colleges through advertisement dated 17.12.1998 (Annexure-2). As per the case of the petitioner, the total number of vacancies in the Department of Orthopaedics was not notified by the State Government and, therefore, not included in the advertisement. However, petitioner applied in response to the advertisement and appeared in the examination which was held in September, 2000. It is stated that petitioner and other candidates kept on approaching the authorities of the Department to send requisition to the BPSC for total number of vacancies, but nothing tangible came out. They also formed an Association of which petitioner was nominated as Secretary. They filed representations also in the matter and kept on making efforts at different levels for the purpose, but to no avail. BPSC published the result of written examination on 28.09.2001 in which it declared 174 candidates to have passed (Annexure-5). Petitioner was also one of them. Petitioner and others thereafter started making efforts for getting the entire merit list sent to the Government for appointment against all available vacancies. Meanwhile, the BPSC held interview from 5th to 12th of November, 2001 and finally published the list of 60 successful candidates on 21.11.2001 (Annexure-7). It is stated that only because of shortage of notified vacancies the successful persons in the written test could not make up to the final list, although large number of vacancies were available. In the supplementary affidavit, it has been stated that another advertisement was published by the BPSC on 31.12.2001 in respect of 332 vacant posts of Lecturers in various Medical Colleges, in various subjects, which showed that vacancies were available at the time of earlier advertisement also. Some precedent has also been cited in the supplementary affidavit of the respondents having appointed more successful candidates than the original numbers of posts advertised. Thus, it has been contended that, as much more vacancies were available in the various Medical Colleges in different subjects, the respondents ought to have sent requisition to the BPSC for all the available vacancies, and the BPSC in turn should have sent the complete merit list to the Department for appointment against all available vacancies. Counter affidavits have been filed by the BPSC as well as by the authorities of the Department. In the counter affidavit, the facts with regard to the examination held have been narrated. It is stated that the petitioner could not come within the consideration zone after final result as he secured only 74 marks whereas the last candidate in his category had secured 83.5 marks. It is also stated that the State Government had sent requisition for only two vacant posts of lecturers of the Department of Orthopaedics out of which one post was for general candidate and one post was for schedule caste candidate.

(3.) The Controller of the Examination in his affidavit has stated that informations were sought for and received from the Principals of the Medical Colleges and on the basis of the same vacancies were notified and requisition was sent to the BPSC. In respect of one Dr.Rakesh Kumar whose example was cited by the petitioner in the writ application, it is stated that his posting was done on the orders of this Court. A copy of a judgment dated 20.02.2002 passed by this Court in CWJC NO. 15769 has been annexed as Annexure-A to contend that a similar matter has already been dismissed by this Court. In the supplementary counter affidavit filed by the respondent State authorities, it is stated that only two vacancies were available in the subject of Orthopaedics, out of which one was for general candidate and one was for schedule caste candidate and appointments were made accordingly.