SHANKAR PANDIT Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Bindhyachal Singh, learned Senior Counsel appearing on behalf of the petitioners, Mr. A.C. to G.A.-10 for the State of Bihar and Mr. Nikesh Kumar, learned counsel representing the Bihar State Technical Service Commission.

(2.) The petitioners have sought for following reliefs : -

(3.) The petitioners hold BHMS qualification. According to them, they were appointed on contractual basis as Ayush Doctors on the basis of an advertisement issued in 2008 after following the reservation policy applicable in the State of Bihar. They were appointed in different districts. They contend that after their joining, Bihar District Ayush/State Ayush Medical Service (Appointment on Regular/Contract Basis and Service Conditions) Rules, 2010 (For short 2010 Rules), came into force, Rule 4 of which provided that Ayush Doctors working in Additional Primary Health Centers, Primary Health Centers and State Dispensaries (Ayurved, Unani & Homeopathic) shall be in District Ayush Medical Cadre. Appointment to the district cadre, under the said Rules, was to be made on contractual basis and they were to work for a minimum period of two years. However, in case of satisfactory service, their services were to be extended. No permanent appointment was to be made in the cadre. Rule 10 of the Rules further provided that all Ayush Doctors, who were appointed and working prior to coming into force of the Rules, would be deemed to be included in the cadre. Rule 16 of the Rules provided that all concerned departmental notifications/ resolutions would be deemed to have been repealed to the aforesaid extent with effect from the date of coming into force of the Rules. It is accordingly their case that by operation of Rule 4(a) read with Rule 10 of the 2010 Rules, the petitioners, who were appointed on contractual basis and were working in Additional Primary Health Centers and Primary Health Centers should be deemed to be included in the District Ayush Medical Cadre. It is further case of the petitioners that subsequently the State Government notified the Bihar District Ayush/State Ayush Medical Service (Appointment on Regular/Contract Basis and Service Conditions) (Amendment) Rules, 2017 [For short '(Amendment) Rules, 2017']. Rule 2 of the (Amendment) Rules, 2017 substituted Rule 4(e) of the 2010 Rules by making provision for the regular appointment in District Medical Ayush Cadre on the basis of the recommendation of the Bihar Public Service Commission (For short, 'the Commission'). Thus, the earlier provision of contractual appointment and the provision that no permanent/temporary appointments would be made in the District Ayush Medical cadre as the same existed in 2010 Rules, was done away with. These amended Rules provided a different type of selection process containing weightage of marks against various qualifications and work experience and 15 marks for interview. In the '(Amendment) Rules, 2017', Rule 4(a) and Rule 10, as it existed before, remained untouched. It is the petitioners' case accordingly that admittedly they were working in the Additional Primary Health Centers. Therefore, since Ayush Doctors working in Additional/Primary Health Centers, by a deeming fiction, stood included in the District cadre and since the provision of contractual appointments and the clause that no permanent/temporary appointments would be made in the cadre, stands deleted, by making provision for regular appointments, services of these petitioners stood regularized by operation of 2010 Rules as amended by (Amendment) Rules, 2017.