BiharPSCVsStateOfBihar

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BIHAR PUBLIC SERVICE

COMMISSION



88 Bihar PSC



89 Bihar PSC

IN THE HIGH COURT OF JUDICATURE AT PATNA

L.P.A NO.1555 of 1999

D.D. 6.4.2001

Hon’ble Mr. Justice Nagendra Rai

Hon’ble Mr. Justice S.K.Katriar

The State of Bihar ... Petitioner

Vs.

Narendra Deo & Ors. ... Respondents

Recruitment :Recruitment Rules in force when selection process was started apply and

not amendment made in the midst of selection.

Recruitment to the post of Village Level Worker/Village Extension Worker in accordance with

the provisions of Bihar Jan Sewak and Gramin Prasar Karyakarta Niyamawali, 1987 – Learned

Single Judge allowed the writ application filed by the respondent as per the above principle –

Appeal filed by the State is dismissed.

Held:

Law is well settled that when the process of selection has started in accordance with the Rules in

force, then the selection has to be made on the basis of the said Rules and the amendment in the

midst of the selection process will not deprive the candidates of consideration of their cases

according to the Rules in force at the relevant time.

Further held:

If there is no vacancy at any place then the State is not obliged to fill up the same only because

advertisement has been issued for the said purposes.

ORDER

Heard the parties.

This appeal is directed against the judgment dated 2nd September, 1998, whereby the learned

single Judge allowed the writ application filed by the respondents – writ application filed by the



90 Bihar PSC

respondents – writ petitioners for commanding the respondent – appellant and its officers to

consider the cases of the writ petitioners for appointment to the post of Village Level Worker/

Village Extension Worker in accordance with the provisions of Bihar Jan Sewak and Gramin

Prasar Karyakarta (Bharti Avam Sewa Sharten) Niyamawali, 1987 (hereinafter referred to as the

Rules).

Learned single Judge held that as the process of selection in the case of the writ petitioners-

respondents had started according to the Rules prior to the Government decision dated 6.12.1995

providing a different procedure, the same has to be completed in accordance with the Rules.

Law is well settled that when the process of selection has started in accordance with the

Rules in force, then the selection has to be made on the basis of the said Rules and the amendment

in the midst of the selection process will not deprive the candidates of consideration of their

cases according to the Rules in force at the relevant time.

We fully agree with the view taken by the learned single Judge.

During the course of arguments, learned counsel for the appellant-State stated that in

many districts there is no vacancy and as such the direction given for filling of the post cannot be

carried out.

This Court has only directed for consideration of the cases of the writ petitioners –

respondents for appointment according to the Rules as it was in force at the time when the

selection process had started. If there is no vacancy at any place, then the State is not obliged to

fill up the same only because advertisement has been issued for the said purposes.

With the aforesaid observation, this appeal stands disposed of.

***



91 Bihar PSC


LPA NO.893 of 2003

D.D. 13.10.2003

Hon’ble Mr. Nagendra Rai, A.C.J.

Hon’ble Mr. R.S.Garg, J.

The Bihar P.S.C. ... Appellant

Vs.

The State of Bihar & Ors. ... Respondents

Reservation: Backward Caste Certificate required to be issued by District Magistrate is

issued by Sub Division Magistrate. Whether valid? - No

Recruitment to the post of Assistant Teacher in Primary School – The writ petitioner-respondent

No.2 who claimed to be backward caste candidate produced caste certificate granted by Sub

Division Magistrate – Rules provide that the said certificate should be issued by the District

Magistrate – Respondent No.2 was selected and appointed on the basis of backward class

certificate issued by the Sub Divisional Magistrate – This appeal preferred by the State is allowed

quashing the order of the learned Single Judge.

Held:

As per Government Circular dated 6.5.1995 for the purpose of admission and other purposes

apart from the District Magistrate other authorities are also authorised to grant caste certificate

but so far as appointment is concerned the sole authority to grant the certificate is District

Magistrate of the concerned District.

ORDER

The appellant – Bihar Public Service Commission (hereinafter referred to as the Commission) is

aggrieved by the order dated 14.8.2003 passed by the learned Single Judge of this Court allowing

the writ application being CWJC No.6344 of 1999 filed by the writ petitioner – respondent No.2

directing the Commission to publish his result for appointment as Assistant Teacher in Primary

School in the district of Bhojpur.



92 Bihar PSC

It is admitted position that there is provision for reservation for appointment to the post

of Assistant Teacher. Category 05 relates to backward class candidates. The writ petitioner –

respondent No.2 applied and claimed to be the backward class candidate but filed the caste

certificate granted by the Sub-divisional Officer. The Commission did not accept the said

certificate and treated the writ petitioner – respondent No.2 as a general category candidate and

as such he has not been selected by virtue of having obtained lesser marks as general category

candidates. The writ petitioner – respondent No.2 filed the said writ application before this

Court and the learned Single Judge has allowed the same on the ground that Clause (kha) of the

Circular of the Government No.1031 of 1994 dated 9.2.1994 provides that in case of extremely

backward class and backward class, the Collector/District Magistrate/Deputy Commissioner,Additional Collector/Additional District Magistrate/Additional Deputy Commissioner and Sub-

Divisional Officer/Deputy Collector, Land Reforms are competent to issue caste certificate. As

in the case of writ petitioner – respondent No.2 certificate has been issued by the Sub-divisional

Officer, the authorities have wrongly treated him in general category candidate.

The Government Circular of 1994 has been modified and clarified by subsequent

Government Circular No.32 dated 6.5.1995 which has been filed by the Commission as Annexure

C/1 to the counter affidavit in the writ petition. From perusal of the same it appears that the

District Magistrate and other authorities are the prescribed authorities for grant of caste certificate

but so far appointment is concerned Clause (4) of the said Circular of 1995 clearly states that so

far appointment to the post in Government service is concerned the competent authority to grant

caste certificate is the District Magistrate. In other words for the purpose of admission and other

purposes, apart from the District Magistrate the other authorities have also been authorised to

grant caste certificate but so far appointment is concerned the sole authority to grant certificate is

the District Magistrate of the concerned District. As admittedly in this case caste certificate

granted by the District Magistrate has not been filed by the writ petitioner – respondent No.2 the

stand taken by him that he belongs to the backward class candidate cannot be accepted.

We have already dealt with the similar matter in LPA No.729 of 2003 (Ashok Kumar Vs.

The State of Bihar & others) disposed of on 26.8.2003 and we have already held that for the

purpose of employment/appointment the authority competent to grant caste certificate is the

District Magistrate. In that view of the matter we find force in the submission raised by the

appellant – Commission that the learned Single Judge was not justified in allowing the writ



93 Bihar PSC

application on the ground that the requisite caste certificate was filed by the writ petitioner –

respondent No.2.

In the result, the impugned order passed by the learned Single Judge is set aside and the

appeal is allowed.

***



94 Bihar PSC


L.P.A. No. 930 of 1998 With

L.P.A. No. 931 of 1998

D.D.20.5.2005

The Hon’ble Mr. Justice Barin Ghosh

The Hon’ble Mr. Justice V.N.Sinha

Dr. Dharmendra Kumar Singh ... Applicant

Vs.

Dr. Jyoti Prasad & Anr. ... Respondents

Appointment : Whether Teaching experience gained on the basis of an order which was

subsequently quashed can be treated as valid experience in the eye of law? – Yes

Recruitment Rules prescribe minimum teaching experience of 3 years for promotion to the post

of Lecturer, Prosthetic apart from requisite qualification – Learned Single Judge quashed the

promotion of the appellant Dr.Singh on the ground that the teaching experience gained by Dr.

Singh on the basis of an order which was subsequently quashed cannot be treated as valid – TheDivision Bench allowed the Appeals and issued direction.

Held:

It is true that no one can take advantage of a wrong order. It is also true that an order quashed by

the court in a proceeding initiated under Article 226 of the Constitution of India should be treated

to have never been in existence. However, it cannot be said that a person who had worked on the

basis of such an order does not earn experience.

Case referred:

A.I.R. 1983 SC 509 – Dr. Prashun Kumar Ghosh Vs. Union of India

ORDER

Barin Ghosh, J. The two appeals are by Dr. Dharmendra Kumar Singh (hereinafter referred

to as ‘Dr.Singh’) against the common judgement and order dated 03rd August, 1998 rendered in

two writ petitions, registered as C.W.J.C.No. 8106 of 1997 and C.W.J.C. No.9321 of 1997 filed



95 Bihar PSC

by Dr.(Mrs.) Mridula Verma (hereinafter referred to as ‘Dr. Verma’) and Dr.Jyoti Prasad

(hereinafter referred to as ‘Dr.Prasad’) respectively.

2. In both the writ petitions the petitioners contended that Dr.Singh does not posses the minimum

required teaching experience of three years for being promoted to the post of Lecturer, Prosthetic,

which was accorded to him. They also contended that it was improper on the part of the State

respondents in not considering their candidature for being appointed to the said post.

3. By the impugned judgement and order the learned Judge held that the appointment of Dr.Singh

is not in accordance with law and accordingly, His Lordship set aside the said appointment and

remitted the matter back to the Government to consider the question afresh in the light of the

observations made in the said Judgment. At the same time the learned Judge found that the

question was of filling up of vacancy of 1991 and, accordingly, Dr.Prasad was not eligible to be

appointed to the post in question for he was appointed to the feeder post of Tutor in 1992. The

learned Judge, however, directed that if it is found that Dr.Singh and Dr.Verma were having

requisite qualifications and experience up to the relevant date, then the appointment has to be

made according to law with an observation that if it is found that neither Dr. Singh, nor Dr.Vermahas requisite qualification up to the relevant date, then the cases of the other doctors, who acquired

requisite qualifications and experience subsequently, should be considered for promotion to the

post of Lecturer, Prosthetic though in that case the appointment has to be made not from 1991,

but from a subsequent date.

4. In holding that the appointment of Dr.Singh is not in accordance with law, the learned Judge

accepted two principal contentions of Dr.Verma and Dr.Prasad, namely, that any experience

gained on the basis of an order, authorizing Dr.Singh to teach, which order was subsequently

quashed, cannot be treated to be valid experience in the eye of law; and that the observations

made in a decision by a Division Bench of this Court in an earlier appeal, before whom Dr.Singh,

Dr.Verma and Dr.Prasad were present in addition to the State respondents, in relation to the

experience of Dr.Singh, are res integra and have not attended finality.

5. In order to appreciate the rival contentions of the parties and to appreciate the findings of the

learned Single Judge we have looked into those facts which were accepted by the learned Single



96 Bihar PSC

Judge and which were also accepted by the parties before us. It appears that on 20 th December,

1979 Dr.Singh was appointed as Tutor, Dental Hygienist, whereas Dr.Verma was appointed as

Tutor, Dental Mechanics on purely ad hoc basis for six months in Patna Dental College. On 30 th

July, 1981 Dr.Singh was posted as Tutor, Hygienist and Dr.Verma was appointed as Tutor, Dental

Technician in Patna Dental College until further order. At the same time Dr. Singh was asked to

perform the duty of Tutor Dentistry. He, thus, started his teaching career. The Dental Council of

India in its meeting held on 17th and 18th April, 1984 took a decision that duties of a Doctor as

Dental Hygienist be taken into account as teaching experience of Tutor Dentistry. Accordingly, a

request was made by the Dental Council of India to the Government of India for approval of its

said decision as required under section 20(1) of the Dentist Act, 1948. No approval to the saiddecision was granted by the Government of India. It does not appear that even now the Government

of India has given approval to the said decision. On 30th May, 1984 the Central Government

approved the proposal of the Dental Council of India to treat the post of Tutor Dental Technician

as a teaching post. On 19th February, 1987 the State Government issued a notification and thereby

appointed Dr. Singh as Tutor Dentistry with retrospective effect from 01st August, 1981.

Simultaneously therewith a writ petition registered as C.W.J.C. No. 762 of 1992 was filed

challenging the said Notification dated 19th February, 1987. By the judgment and order dated 26th

September, 1988 C.W.J.C.No.762 of 1987 was allowed and the said notification of the Government

dated 19th February, 1987 was quashed. On 12th July, 1991 the Additional Secretary, Health,

Medical Education and Family Welfare, Government of Bihar prepared a note and therein proposed

to grant promotion to Dr.Singh to the said post of Lecturer, Prosthetics in Patna Dental College.

On 12th August, 1991 the Departmental Promotion Committee found Dr. Singh fit for promotion

to the said post. The Departmental Promotion Committee though considered the case of Dr.Singh

on the basis of the proposal contained in the note dated 12 th July, 1991, where the proposal was

only to promote Dr.Singh, it held that Dr.Singh is senior to Dr.Verma. As aforesaid Dr.Singh and

Dr.Verma were appointed on the same date. There is no dispute that Dr.Verma passed BDS

earlier. There is also not dispute that by age Dr.Verma is also senior to Dr.Singh, There is also no

dispute that prior to 12th August, 1991 there was no determination of inter se seniority in between

Dr.Singh and Dr.Verma. At the same time there is no dispute that Dr.Singh and Dr.Verma were

then working in two different Departments, one in the Department of Prosthetics and the other in

the Department of Prothentia. When the recommendation of the Departmental Promotion

Committee came to be considered by the Government, the Government on 24th November, 1992



97 Bihar PSC

rejected the same on the ground that Dr.Singh did not have required teaching experience. This

decision of the Government was challenged by Dr.Singh by filing a writ petition which was

registered as C.W.J.C.No.12481 of 1992. In the said writ petition it was contended that since

Dental Council of India has taken a decision that duty of a doctor as Dental Hygienist should be

taken into account as experience of Tutor, Dentistry, it must be deemed that in 1991 Dr.Singh

had sufficient teaching experience. In addition to that it was contended that Dr.Singh acquired

teaching experience by, in fact, teaching with effect from 30th July, 1981 until the same was

quashed by the Court on 26th September, 1988 and therefrom it was incorrect on the part of the

Government to assume that Dr.Singh did not have required teaching experience. By a judgment

and order rendered on 08 th April 1994, a learned Single Judge of this Court rejected

C.W.J.C.No.12481 of 1992 principally on the ground that the decision of the Dental Council of

India that duties of a doctor as Dental Hygienist be taken into account as experience of teaching

in Dentistry was not translated into law as the Government of India did not accord approval,

which is a requirement under section 20(1) of the Dentist Act, 1941. The Government, while

rejecting the recommendation of the Departmental Promotion Committee also held out that Dr.

Verma too does not have required teaching experience. Accordingly, Dr.Verma also challenged

the said decision of the Government by filing a writ petition registered as C.W.J.C.no. 0844 of 1993. C.W.J.C.No.0844 of 1993 was also dismissed on 08th April, 1994 by a common judgment.

Dr.Singh filed L.P.A. No.59 of 1994 and Dr.Verma filed L.P.A. 61 of 1994 challenging the common

judgment and order rendered on 08th April, 1994 while dismissing C.W.J.C. No.12418 of 1992

and C.W.J.C. No.0844 of 1993. The said two appeals were decided by a Division Bench on 20 th

December, 1996. The Division Bench held that in the absence of the approval by the Central

Government under section 20(1) of the Dentist Act, 1948, the proposal of the Dental Council of

India to treat the duty of the Dental Hygienist as teaching experience of a Tutor would be improper

and accordingly it agreed with the finding of the learned Single Judge to that effect. At the same

time the Court observed as follows:

“But considering the claim of this appellant’s (Dr.Singh) teaching experience as

Tutor. Dentistry, there cannot be any dispute that by an order dated 30.7.1981,

contained in Annexure-6 to the writ petition, he was directed to work as Tutor

Dentistry in addition to his duties. This is also not in dispute that the aforesaid order

was later confirmed by the State Government vide a Notification of the Health

Department dated 19th February, 1987 with effect from 1.8.1981.





99 Bihar PSC

Simultaneously Dr.Verma filed a writ petition registered as C.W.J.C.No.8106 of 1997 for

consideration of her case for promotion to the said post and during pendency of the said writ

petition on 11th April, 1998 a Notification was issued and thereby Dr.Singh was promoted to the

said post. At that stage Dr.Prasad also filed a writ petition registered as C.W.J.C. No.9321 of

1997. On 22nd April, 1998 a learned single Judge passed an order restraining Dr.Singh from

functioning as Lecturer, Prosthetics, in Patna Dental College. Thereafter, the impugned judgment

and order was passed on 03rd August, 1998 and on 01st September, 1998 a Division Bench of this

Court granted stay of the impugned judgment and order in L.P.A. No.930 if 1998. Subsequently,

on 01st August, 2002 Departmental Promotion Committee found Dr.Verma fit for promotion to

the said post as on 11

th

January, 1987.

6. From the facts, as above, it would be evidenced that the promotion to the post in question was

considered in 1991. Admittedly, Dr.Prasad was appointed as Tutor in 1992. There is no dispute

that the State Government has not made any law either statutory or by way of administrative

instructions specifying eligibility to be promoted to the said post. There is, however, no dispute

that the Central Government in July, 1973 laid down that in order to be appointed to the post of

Assistant Professor/Reader/Senior Lecturer, which is equivalent to the post of Lecturer in the

instant case, the required qualification is BDS degree of an Indian University or an equivalent

qualification with post Graduate qualification in the subject with three years’ teaching experience

in the subject. Dr.Prasad having joined as Tutor, i.e, a teaching post in 1992 could not acquire

three years teaching experience in the subject. Dr. Prasad having joined as Tutor, i.e. a teaching

post in 1992 could not acquire three years teaching experience in 1991 and, accordingly, he

could not be considered for promotion to the post in question. There is no dispute that Dr.Singh

was asked to perform duty of Tutor Dentistry with effect from 30th July, 1981 and Dr.Verma was

appointed as Tutor Dental Technician and in terms of the decision of the Central Government

dated 30th May, 1984 such duty is to be considered as teaching duty. There is also no dispute that

they performed their such duty until 26th September, 1988 when the Notification dated 09th

February, 1987, appointing Dr.Singh and Dr.Verma as Tutor Dentistry and Tutor Dental Technician

respectively with retrospective effect from 01st January, 1981 was quashed. Therefore, Dr.Singh

acquired teaching experience by actually teaching, whereas Dr.Verma acquired deemed teaching

experience for a period in excess of three years prior to 1991.



100 Bihar PSC

7. There is also no dispute that in 1991 when the case for promotion of Dr.Singh to the said post

was considered the case of Dr.Verma was not considered at all. There was no just reason why the

case of Dr.Verma was not considered. There is no promotion policy of the government. The

aforementioned policy of the Government of India does not suggest that seniority is a fact to be

taken note of for grant of promotion to the said post. As aforesaid, the State Government has not

laid down any law fixing seniority as one of the requirements for granting promotion to the said

post. Even after the positive direction of the Division Bench rendered on 20th December, 1996,

the case of Dr.Verma was not considered on the ground that she is junior to Dr.Singh. At that

stage it was added that the case of Dr.Verma will not be considered for she has been proceeded

with departmentally on serious charges. Although in 1991 no charge sheet was issued against

Dr.Verma it appears that before 25th April, 1997 a charge sheet was issued against her but no

final decision in the disciplinary proceeding has yet been taken. In such situation, the case of

Dr.Verma was also required to be considered and the decision in relation thereto should have

been kept in a sealed cover and if she was preferred over Dr.Singh, the post ought to have been

kept vacant until the departmental proceeding reached its finality, inasmuch as there was only

one post. For no just reason this procedure was not adopted, and, accordingly, Dr.Verma had

reasons to be aggrieved by the decision of the Departmental Promotion Committee dated 19th

August, 1997 declaring Dr.Singh fit for, promotion to the said post. However, inasmuch as

Dr.Prasad did not come within the zone of consideration, he had no reason to be aggrieved by the

said decision, but then it was the contention of Dr.Prasad that neither Dr.Singh nor Dr.Verma

was entitled to be promoted for they did not have required teaching experience, as was contended

in his writ petition and, accordingly, if none of them could be promoted, the post in question will

remain vacant and the same would be filled up by a proper person having all necessary requisite

qualifications and when the cases of other persons will be considered, the case of Dr.Prasad will

also be considered. The learned Judge partly accepted the contention of Dr.Prasad and declared

that Dr.Singh did not have the requisite teaching experience by accepting the contentions as

mentioned above.

8. We do not think that the learned single Judge was right in directing that if it is found that

Dr.Singh and Dr.Verma were having requisite qualification and experience upto the relevant

dates, then the appointment has to be made according to law, for the learned Judge held that

Dr.Singh did not have requisite teaching experience. However, the direction that is it is found



101 Bihar PSC

that none has requisite qualification upto the relevant date, then the cases of other doctors who

acquired requisite qualifications and experience subsequently should be considered for promotion

to post in question though in that case the appointment has to be made not from 1991 but from a

subsequent date is a direction which cannot be interfered with. We are, however, unable to

accept the view of the learned single Judge as contained in the impugned judgment and order to

the effect that the experience gained on the basis of an order which was subsequently quashed

cannot be treated to be a valid experience in the eye of law and that the decision of the division

bench rendered on 20th December, 1996 is res integra and has not attended finality.

9. From the portion of the judgment of the division bench as quoted above, it is clear that there

is a direct and clear pronouncement of the division bench rendered on 20 th September, 1996 that

Dr.Singh Undisputedly has got experience as tutor Dentistry for more than three years. The

passage of the division bench judgment dated 20th December, 1996 referred by the learned single

Judge makes it abundantly clear that the division bench did not go into the question as to grant of

the benefit of teaching experience to Dr.Singh with effect from 1st August 1981 which may

offend the seniority of Dr.Prasad, as was claimed by him, inasmuch as the question before the

division bench was not of seniority and the scope of appeal was only to consider as to whetherDr.Singh and Dr.Verma were qualified to be considered for the said post and that too only in

regard to three years teaching experience and in no uncertain terms directed consideration of the

cases of Dr.Singh and Dr.Verma for the said post. The division bench, accordingly, held that

Dr.Singh had requisite teaching experience which was the bone of contention between the parties

in the said appeals. The said finding given by the division bench which has been permitted to

reach finality, cannot be said to be res integra, or has not attended finality.

10. It is true that no one can take advantage of a wrong order. It is also true that an order quashed

by the court in a proceeding initiated under Article 226 of the Constitution of India should be

treated to have never been in existence. However, it cannot be said that a person who had worked

on the basis of such an order do not earn experience. In the case of Dr.Prashun Kumar Ghosh

vs.Union of India, reported in A.I.R. 1983 S.C. 509 on the facts it was found that Dr.Prashun

Kumar Ghosh while holding the post of Radiologist-cum-Professor of Radiology was asked to

teach in addition to his duty as Radiologist. It was found that Dr.Ghosh actually taught students.

It was also found that Dr.Ghosh was not drawing teaching allowance for such allowance was



102 Bihar PSC

attached to the regular teaching post. The experience thus gained by Dr.Ghosh was not taken

into account as the required teaching experience. This dispute was sorted out by the Supreme

Court. The Supreme Court looked at the rules and found that there is no provision made in the

Rules that the teaching experience must be gained on a regular appointment and unless the same

is so gained, it would not count towards teaching experience. The Supreme court observed that

there is hardly any difference so far as teaching experience is concerned whether it is acquired on

regular appointment or as specialist in a teaching hospital with the Ex-officio capacity. The

court, thus, held that Dr.Ghosh was entitled to be considered for he had the actual teaching

experience. In the instant case not only Dr.Singh had actual teaching experience but his such

experience has been taken note of and upheld by a division bench of this court, which has reachedits finality and is binding upon the parties before us. In such situation it was not permissible for

the learned single Judge to hold that the impugned appointment of Dr.Singh to the question was

not in accordance with law for he did not have the requisite teaching experience, as is the view

of the learned single Judge expressed in the impugned judgment and order.

11. While, therefore, we set aside the judgment and order under appeal but at the same time

direct Dr. Singh not to function in the said post until the cases of Dr.Singh and Dr.Verma for

promotion to the said post is considered simultaneously on their merits. In the event it is held

that Dr.Verma is to be preferred for the promotion, sealed cover method should be adopted and

only after the disciplinary proceeding against her reached its finality, the decision in the sealed

cover shall be given effect to in the manner as is required to be given effect to on the basis of the

out come of the disciplinary proceeding and in such case the post shall remain vacant until

disciplinary proceeding against Dr.Verma reaches its finality. In the event it is found that Dr.Singh

and Dr.Verma are not fit to be promoted, then the cases of the other doctors should be considered

for promotion to the post in question and in that case appointment shall be given not from 1991

but from a subsequent date when the chosen incumbent acquired necessary qualification to be

appointed.

12. The appeal is, thus, disposed of. There shall be no order as to costs.

***

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BiharPSCVsStateOfBihar