GAURI NATH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the order, dated 18.8.2006 in CWJC No. 1218 of 2004* whereby and whereunder the learned Single Judge has dismissed the writ application filed by the appellant seeking a relief of setting aside the appointment of respondent no. 6 on the post of the Deputy Director, Homeopathy.

(2.) The appellant -writ petitioner, holding the cost of Homeopathy Medical Officer in the State Homeopathy Dispensary, Bithuar, Madhubani had initially filed a writ application on 27.1.2004 challenging the validity and correctness of an advertisement, dated 7.1.2004 issued by the Bihar Public Service Commission (hereinafter referred to as "the Commission") on the requisition made by the Department of Medical Education, Family Welfare and Indigenous Medicine of the Government of Bihar for the solitary post of Deputy Director, Homeopathy. The appellant -writ petitioner had also prayed for a consequential relief for considering his case for the appointment on the post of the Deputy Director, Homeopathy. It appears that while the writ application was still pending before this Court, the Commission had fixed a date of interview for the post of Deputy Director, Homeopathy in the month of August, 2004 and the appellant -writ petitioner had filed an interlocutory application, being I.A. No. 4037 of 2004 on 16.8.2004 seeking an interim relief that the proposed interview for the post of Deputy Director, Homeopathy may be stayed. It, however, appears that the said interim relief was neither pressed nor considered by the Court and in the meantime, the Commission on the basis of the interview of all the eligible candidates, conducted by it had made its recommendation as a result whereof the respondent no. 6 to this appeal was appointed as Deputy Director, Homeopathy on 29.9.2004 under the orders of the Government of Bihar. Such appointment of respondent no. 6 was thereafter assailed by the appellant -writ petitioner through a supplementary petition being I.A. No. 243 of 2006 filed on 16.1.2006 in this very writ application. Thus, even when the petitioner had initially challenged the advertisement seeking to fill up the post of Deputy Director, Homeopathy by direct recruitment, ultimately the writ application got reduced to challenging the appointment of respondent no. 6 who as stated above came to be appointed on the said post during the pendency of the writ application.

(3.) FROM the records of the writ application, it is clear that while the challenge of the petitioner either to the advertisement or to the consequential appointment of respondent no. 6 on the post of the Deputy Director, Homeopathy was based primarily on the ground that the decision of the Government to fill up the said post by way of direct recruitment was itself illegal and arbitrary. In this context, it was the case of the appellant -writ petitioner before the Writ Court and also before this Court that the Department of Health of the Government of Bihar had appointed doctors in four disciplines i.e. Allopathy, Unani, Ayurvedic and Homeopathic system of medicine and, therefore, when the post of Deputy Director in the other disciplines, namely, Unani, Allopathic and Ayurvedic were being filled up by way of promotion from the respective cadre of Medical Officers, there was no rational or justification in filling up the post of Deputy Director in Homeopathic by the impugned, advertisement through the mode of direct recruitment. The appellant -writ petitioner while assailing the advertisement and the process of selection and ultimately the appointment of respondent no. 6 on the post of Deputy Director had also raised his challenge to the whole process on the ground that the laying down of qualification of teaching experience of a minimum period of six years as well as the maximum age limit of 45 years for the candidates of general category as prescribed in the advertisement for the direct recruitment on the post of the Deputy Director, Homeopathy was wholly illegal and arbitrary. In this context, the grievance of the appellant -writ petitioner was/is that on account of both these qualifications either in respect of maximum age or of minimum teaching experience, he got eliminated even though he was the senior -most Homeopathic Medical Officer in the State of Bihar and that too in super -time pay scale of the post of the Medical Officer of Rs. 4,100 -5,300 (pre -revised) and Rs. 12,000 -16,500 (revised) which was the equivalent pay scale of the post of the Deputy Director, Homeopathy, The real rub for the appellant -writ petitioner, therefore, was that even when he was already placed in an equivalent pay scale by virtue of his seniority and holding the post of Medical Officer, Homeopathy for the last 32 years, he stood conveniently elbowed out and eliminated on account of introduction of the two qualifications relating to age and teaching experience in the impugned advertisement issued by the Commission on the requisition of the State Government.