| SooperKanoon Citation | sooperkanoon.com/139644 |
| Subject | ;Service |
| Court | Patna High Court |
| Decided On | Jul-15-2002 |
| Case Number | C.W.J.C. Nos. 538, 784, 1062, 1916, 3592, 6949, 8209, 10419, 11779, 12676 and 14306 of 2001 |
| Judge | S.N. Jha and T.P. Singh, JJ. |
| Appellant | Manju Kumari and ors. |
| Respondent | The State of Bihar and ors. |
| Disposition | Writ Petitions Dismissed |
S.N. Jha, J.
1. The dispute in this batch of writ petitions relates to appointment of Auxiliary Nurses and Midwives (ANM). The dispute precisely is whether appointment should be made as per the procedure existing prior to 10.6.1996 or on the basis of the written examination etc. as prescribed by resolution dated 10.6.1996. The case of the petitioners is that as the vacancies in question are of the earlier period they should be filled as per the old procedure and not on the basis of the competitive examination.
2. The cases came up earlier before one of us (S.N. Jha, J.) sitting singly, in course of hearing in support of the contention on behalf of the petitioners reliance was placed on orders in which direction was issued to fill the vacancies in accordance with the old procedure. The Court expressed reservation about the correctness of the orders but as sitting singly different order could not be passed, by order dated 1.3.2002 the cases were referred to Division Bench and that is how these cases came up for hearing before this Bench. It may be stated here that no objection was raised when the hearing was taken up by this Bench considering that the cases had been referred to Division Bench by a speaking order.
3. The facts of the case have been briefly noticed in the order of reference dated 1.3.2002. Suffice it to say that the ANMs used to be appointed by process of absorption from amongst the persons who had completed Auxiliary Nursing and Midwifery Course and were registered with the Bihar Nurses Registration Council as provided in the Bihar Health Manual. On 11.5.1990 a ban was imposed on the appointment of ANMs. On 11.1.1991 the ban was lifted and it was decided to make appointment, by a Committee, in accordance with Health Department's Letter No. 574(5), dated 27.6.1989 and other relevant rules. It is worth mentioning here that the said letter dated 11.1.1991 did not specifically refer to the post of ANM, the directions contained therein were applicable to all Class III and IV posts of the Health Department. The petitioners have referred to different letters issued by the Health Department from time to time which it is not necessary to notice. The case of the petitioners is that pursuant to the said letters the posts were advertised in different districts between 31.12.1991 and 27.5.1996. However, soon after and before the appointments could materialize, on 7.6.1996 a letter was issued informing the District Magistrates and the Civil Surgeons-cum-Chief Medical Officers that the policy regarding appointment of ANMs was under consideration of the State Government and therefore, the earlier letters on the subject be treated as cancelled forthwith. Soon thereafter, on 10.6.1996 the Government notified the policy regarding appointment on the posts of ANM/LHV/Nurse Grade A vide resolution/memo No. 435(6) dated 10.6.1996 of the Health Department. As per the said policy appointments on the above said posts are to be made on the basis of written examination conducted by the Bihar Public Service Commission. On 19.6.1996 a request letter was sent to the Commission to recommend candidates against the d, anticipated 4000 vacancies on the post of ANM besides other posts in accordance with the provisions of the said resolution dated 10.6.1996. Accordingly on 17.3.1998 the Commission issued advertisement being Advt. No. 59/98. The Commission at the end of the selection process, recommended 1271 candidates for appointment. Another advertisement was issued on 6.5.2000 being Advt. No. 4/2000 with respect to left over vacancies. At this stage the petitioners came to this Court in the present writ petitions.
4. It is worth mentioning here that majority of the petitioners had participated in the selection process pursuant to the above said advertisements dated 17.3.1998 and 6.5.2002. In the order of reference the Court observed that having taken chance of success but failed to secure appointment the concerned petitioners might be no suited on that ground as is but considering the importance of the question and in order that the dispute is finally resolved, so far as this Court is concerned, the Court entertained their writ petitions too. It would not be out of place to mention here that besides the present batch of writ petitions many more petitions were filed on behalf of the candidates were finally recommended by the Commission being successful at the written test etc. and thus they withdrew their respective petitions.
5. Dr. Amar Nath Singh who argued first for the petitioners on CWJC No. 12676/2001 referred to different orders of this Court wherein directions were issued to the respondents to appoint the petitioners. I propose to specifically refer to only one of them passed by the Division Bench in CWJC No. 5410/92 and analogous cases. He also referred to certain letters of the Health Department in the matter of appointment of ANMs, but apparently they were issued pursuant to the directions of this Court. Shri Aditya Narain Singh in CWJC No. 11779/2001 submitted that 33 candidates were selected for training, out of whom those placed below were appointed while the petitioners were by passed. Admittedly this was done pursuant to the order of this Court. Not being an independent decision of the Health Department the petitioners cannot make any grievance. The question as to whether on the ground that candidates placed below were appointed, the petitioners too should be appointed would depend on the decision as to the procedure or modality of appointment, for if the appointments are to be made on the basis of written examination as provided in the resolution dated 10.6.1996, any direction for appointment of the petitioners without appearing at the written examination would amount to continuing the illegality committed earlier. That would be against the spirit of Article 14 of the Constitution. Shri K.K. Mandal in CWJC Nos. 1061, 1916 and 7842 of 2001 submitted that the vacancies existing at the time when the process of selection commenced should be filled by the then existing procedure. He submitted that all that the petitioners want is to complete the process which had begun.
6. Shri Ganesh Prasad Singh, who argued at the end but supposedly made the leading argument submitted that though the petitioners cannot claim any vested right to appointment, as observed in the order of reference, as the process had commenced, the appointment should be made as per old procedure. He placed reliance on Kaushalaya Devi v. State of Bihar 2000 (2) PUR 656. Dealing with the observation in the order of reference that the number of trained and registered Nurses may be more than the number of vacancies, he submitted that a standing panel may be prepared from which the appointments can be made against the available vacancies. Alternatively, if it is not possible to bunch all the vacancies, year wise panel may be prepared on the basis of year of passing the examination. Dealing with the efficacy of appointment on the basis of competitive examination Shri Singh submitted that those who passed the examination prior to 10.6.1996 may be treated as a separate class and subjected to limited examination to test their merit. He submitted that it would not be fair to treat candidates who passed the examination ten years ago on par with those who passed the examination recently. It was pointed out that the situation is not likely to recur in future because the petitioners and others similarly situate comprise the last batch of the candidates who passed the examination prior to 10.6.1996.
7. Admittedly, statutory rules have not been framed for appointment on the post of ANM. The Bihar Health Manual simply provides for training of Nureses and Midwives. Paras 419 and 420 of the Manual refer to General Nurses Training and Grade A Nurse Training, para 423 refers to training of Lady Health Visitors (LHV). The provisions relating to Auxiliary Nurses and Midwives (ANM) are contained in para 422. These provisions refer to period of training, centre of training, the eligibility etc. which are not relevant for the purpose of these case. The only part of para 422 which could be said to be relevant and upon which reliance is placed by the petitioners relating to absorption runs as follows:
After successful completion of the training, Auxiliary Nurses Midwives are absorbed in the services of the State Government in the scale of...plus allowances.
The point for consideration is whether para 422 confers any right on the candidates to claim absorption on successful completion of training.
8. It is not in dispute that besides the successful completion of training the candidates are also required to be registered with the Bihar Nurses Registration Council before they can be considered for appointment as ANM under the State Government. In other words, it is only the trained and registered Nurses & Midwives who are eligible for appointment. The Court observed in the order of reference that this was the eligibility prior to 10.6.1996 and this continues to be the eligibility even now. The resolution dated 10.6.1996 has not brought any change in the qualification or eligibility for appointment. The only change brought about is that the appointment is to be made on the basis of written examination by the Bihar Public Service Commission. The moot question thus is whether a candidate can claim any right that he must be considered for appointment in accordance with the particular mode when his right to be considered for appointment is not affected. Undisputedly no person can claim any vested or indefeasible right for appointment. The candidates have only limited right to be considered for appointment and when this right is not affected it is doubtful if he can object to the mode of selection or appointment.
9. No attempt was made to find fault with the above quoted observations in the order of reference on behalf of the petitioners. Counsel fairly stated that they have no vested right to appointment; however as the process had already commenced, according to them, the appointment should be made as per the old process. This is the substance of the orders relied upon on behalf of the petitioners. It would appear that in passing some of those orders reliance had been placed on decisions of the Supreme Court in A.A. Calton v. The Director of Education and Anr. : (1983)ILLJ502SC ; Y.V. Rangaiah v. J. Shree Niwas Rao : (1983)IILLJ23SC , and P. Mahendran and Ors. v. State of Karnataka and Ors. : AIR1990SC405 . In the case of A.A. Calton the High Court had earlier directed the Director to make fresh appointment. In the meantime power of the Director to make appointment was taken away. The Supreme Court held that the selection made by the Director was not illegal. It observed that the process of selection had commenced from the stage of calling for the application and continued up to the date when the Director was entitled to make selection and the entire process was integrated one. In the case of Y.V. Rangaiah, under the relevant earlier existing rule, Lower Division Clerks could be appointed as Sub-Registrar Grade II. Under the amended rules transfer or promotion to that post could be made from the Upper Division Clerks, thus affecting the rights of Lower Division Clerks. In the case of P. Mahendran by amendment it was sought to change the eligibility criteria for appointment on the post of Motor Vehicle Inspector. While earlier in terms of the relevant rule a Diploma holder in Automobile Engineering or Mechanical Engineering was eligible for appointment, as a result of the amendment the Diploma holder became ineligible. The Court noted that when the selection process commenced the concerned candidates were eligible and but for the interim order of the High Court their selection and appointment would have materialized. The question thus was as to whether after the interim order stood vacated the selected candidates could be given appointment in the light of the earlier rules or not. In these facts the Supreme Court upheld their claim.
10. In the instant case as observed above no change has been brought about in the matter of qualification or eligibility for appointment on the post. In the circumstances the ratio of the above said decision has no application. In Jai Singh Dalai and Ors. v. State of Haryana and Anr. 1993 Suppl. (2) SCC 600, a three Judge Bench of the Supreme Court held that when process of recruitment had not been finalised and culminated into select list, a candidate did not have any right of appointment. In Shankarsan Das v. Union of India : (1992)IILLJ18SC , a Constitution Bench of the Supreme Court held that empanelment does not create any absolute or indefeasible right to appointment. Earlier, in State of Haryana v. Subhash Chander Marwaha and Ors. : (1973)IILLJ266SC , it was held that process for selection and selection for the purpose of recruitment against the existing or anticipated vacancy does not create a right to be appointed on the post which can be enforced by a mandamus, in State of M.P. and Ors. v. Raghuveer Singh Yadav and Ors. : (1994)6SCC151 , the Court observed:
The State has got power to prescribe qualifications for recruitment. The instant case is not one of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to consideration of their claims according to the Rules then in vogue. The amended rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended rules.
In Rajasthan Public Service Commission v. Chanan Ram : [1998]1SCR1099 , the Court upheld the recruitment process on the basis of amended rules with respect to the earlier vacancies.
11. The instant case stands on a far better footing from the respondents' point of view inasmuch as the impugned resolution does not bring about any change in qualification or eligibility and thus does not affect the right of the candidates considered for appointment on the post. The only change brought about is as to mode of selection on the basis of written examination and the petitioners cannot make any grievance of it. If they cannot make any grievance of addition of qualification, as held by the Supreme Court, surely, they cannot object to recruitment on the basis of written test. It need hardly be emphasized that recruitment on the basis of written examination eliminates the chance of favoritism and by the large ensures fair selection, considering that the basis of admission to the ANM course is the result of the matriculation examination it is all the more important than the candidates are subjected to selection test consisting of written examination. The manner in which matriculations examination are conducted in the State of Bihar is an open secret.
12 Another aspect of the case is that if the recruitment is made in accordance with Para 422 of the Bihar Health Manual i.e. by absorption it would follow that all the candidates on successful completion of training and registration with the Bihar Nurses Registration Council would become entitled to appointment by absorption. Clearly, all of them cannot be absorbed in the services of the State Government. That would depend on availability of vacancies; besides that would be violative of the reservation rules, for in the matter of admission to the ANM course in private institutions the reservation rules are not followed and as per judgment of this Court in the cases of Indu Rani, Suman Kumari and Poonam Kumari, CWJC Nos. 3624/91, 9618/94 and 9512/94, the State Government cannot make any discrimination between the ANMs on the basis of their getting training from the Government Institutes or Non-Government Institutes.
13. As a matter of fact I have grave doubts, if Para 422 can be construed as a substantive provision for absorption of ANMs. All that Para 422 contemplates is that on successful completion of training they are eligible for appointment under the State Government. As mentioned above, the provisions of the Bihar Health Manual relate to training of different categories of Nurses and Midwives at the end of which they become eligible for appointment. This is what the relevant part of Para 422 (quoted above) says. There being no substantive rule for appointment on the post of ANM a procedure having been laid down in the impugned resolution, which cannot be said to be unfair or arbitrary, the grievance of the petitioners has to be rejected.
14. The suggestion of Shri Ganesh Prasad Singh that if adequate number of vacancies are not available, a standing panel should be prepared from which appointment could be made against the vacancies as and when they arise, cannot be accepted, for any standing panel of the kind suggested would be at the cost of the candidates who may acquire the qualification later. In State of U.P. v. Ram Gopal Shukla : (1981)ILLJ494SC , by framing rules under Article 309 of the Constitution the Government of Uttar Pradesh tried to make appointments from a panel until it stood exhausted, provision was held to be violative of Articles 14 and 16.
15. The other suggestion to prepare year wise panel for the candidates on the basis of year of passing the examination also cannot be accepted. That would amount to introducing a 'chain system' of appointment. In J & K Public Service Commission v. Nagendra Mohan : (1994)ILLJ780SC , disapproving the method the Supreme Court observed that it is difficult to accept suggestion for adoption of chain system of recruitment by notifying each year's vacancies and recruiting candidates found eligible for the respective years which would be fraught with grave consequences. The Government need not notify vacancies as they arise. It may inform, as early as possible, the existing and anticipated vacancies to the Public Service Commission so that every eligible person may apply and be considered for recruitment if he satisfies the requisite qualification. Pegging the recruitment in the chain system would deprive all the eligible candidates as on the date of inviting application offending Article 14 and 16.
16. The last suggestion to consider the cases of the petitioners and others similarly situate who had completed training prior to 1996 on a separate footing on the basis of limited examination different completing the training course later as a proposition of law sounds attractive but considering that in two transactions 2013 (1271+742) appointments have already been made pursuant to Acvertisement Nos. 59/98 and 4/2000, it would be futile to direct the Government/Commission to make separate parallel selection at this stage. The fact that majority of the petitioners had already applied pursuant to the above said advertisements and participated in the selection also stares at their face.
17. By order dated 3.10.1994 in the cases of Manju Kumari and Ors. CWJC No. 5410/92 and analogous, relied upon by the petitioners the Division Bench (of which I was a member) directed the Government to fill-up the earlier vacancies as per the old procedure. This order was passed in view of the stand of the Health Commissioner in the affidavit that as per the existing executive instructions on successful completion of the training, the candidate becomes entitled for appointment. It is also to be kept in mind that the order was passed much prior to the impugned policy decision dated 10.6.1996. Besides the isues involved were not debated. The writ petitions were disposed of in view of the affidavit of the Health Commissioner referred to above. The said order thus is of no help to the petitioners.
18. In the result do not find any merit in these writ petitions which are accordingly dismissed. No order as to costs.
T.P. Singh, J.
I agree.