JUDGMENT
Hari Lal Agrawal, J.
1. All these three applications relate to the appointment of medical graduates as Civil Assistant Surgeons on ad hoc basis in the Bihar Health Services. There is a large number of petitioners in all three cases and an equally large number has been added on application for their addition or intervention.
2. The first two applications were heard earlier by me sitting with another learned Judge. The first one (C.W.J.C. 1125/82) was listed for hearing and the second (C.W.J.C. 2801) under the heading ‘for admission’ and both were disposed of by a consent order dated 15-10-1982. The petitioners of the third case (C.W.J.C. 4962/82), however, filed Civil Appeal Nos. 3447 and 3448 of 1983 in the Supreme Court of India making an allegation that while disposing of the other two writ applications mentioned above, in which these petitioners had applied for being impleaded as parties, they were not heard, and the order passed by the High Court prejudiced their rights. The Supreme Court accordingly set aside the consent order and remitted the matter back for a fresh disposal with a further direction to implead the said appellants. Those appellants has now chosen to file the third case, namely, C.W.J.C. No. 4962 of 1982.
3. It was agreed at the Bar that the second and the third applications should be disposed of along with the first case (1125/82) at the admission stage itself and practically full hearing was given to the second and third cases as well and all the three cases are being disposed of herewith.
4. A large number of applications were filed in all the three writ applications, as stated earlier, for addition/intervention therein and all such applications have been allowed and counsels have been heard.
5. Unfortunately the health of the Health Department itself is very unhealthy and the medical students and the doctors in the service of this Department constitute quite a fair proportion of litigants coming to this Court from time to time on account of the vagaries of this Department.
6. The total strength of the cadre of the Civil Assistant Surgeons in the Health Department is in the neighbourhood of 6000. Surprisingly, quite a large number of them represent the appointees on ad hoc basis in the year 1976, 261 appointments were made on ad hoc basis. The services of 225, however, are said to have been regularised but 36 of them still continue on ad hoc basis. In the year 1979, 742 and in 1981 as many as 1312 appointments were made on ad hoc basis. It is thus quite distressing that since the last 7 years the Department has not seen its way for making regular appointments through the Public Service Commission and more than l/3rd of the strength is named by ad hoc appointees whose term has also not been officially extended. The reasons are obvious for this way of recruitment
7. On 10.7.1980 when the advertisement (Annexure 1 to first case) had been issued inviting applications for recruitment to the Bihar State Health Service cadre against temporary posts on ad hoc basis, by 30.7.1980, giving particulars of the eligibility and qualifications one of them being that the candidate should have completed one year’s training in a recognised institution by the last date of application, i.e., 30.7.1980, 2600 applications were made and a panel of the successful candidates was prepared. At this stage various writ applications were filed in this Court, some challenging the errors in the calculation of the points, some on the ground of change in the criteria and others on the ground of the rule of one year’s Internship. Some cases were also filed challenging the appointments on the ad hoc basis. The batch of those cases (C.W.J.C. No. 1188 of 1981 and analogous) was heard by Bench of which also I happened to be a Member. This Court, inter alia, did not accept the condonation of the period of Internship granted by the Principal of the Patna Medical College to some of the candidates, and held all such candidates ineligible. The main judgment in the case was of Uday Sinha, J. (on 2.5.81) he had made the following observations:
…Regular appointments will be done through the Commission and every candidate selected or not selected will be entitled to compete without any handicap. These appointments are to be made only for six months the candidates appointed for six months would be free to apply for the regular appointments to be made through Public Service Commission and may appear at the interview. If the Public Service Commission recommends their appointments, they will be formally appointed or the appointment will be terminated in case Public Service Commission does not recommend any candidates. In my view, therefore, drawing up of the provisional panel for ad hoc appointments on the basis of changed criteria could not be branded as arbitrary or unreasonable.
The writ applications were dismissed and agreeing with him I had added a few observations of my own and had said:
…the respondents would be well advised to take steps well in time to fill up the vacancies in the cadre on a permanent basis in accordance with law and not to extend the period of the appointees under the Ad hoc arrangement. If the State Government, however, adopts an attitude different than as indicated above, it will be open to the petitioners or anyone of them to come to this Court again.” This observation was thought necessary in view of the apprehension indicated that the Government, as usual would give a permanency to the ad hoc appointments. This case was also taken to the Supreme Court in S.L.P. (Civil) No. 4899 of 1981 and while dismissing the said leave application on 9.6.81 the Supreme Court did ‘reiterate and affirm” the observations of the High Court and hoped that these “observations would be heeded to by the respondents.
8. On the basis of the panel thus prepared 443 doctors were appointed on ad hoc basis for a period of six months by different notifications issued in June, 1981. In July, 1981, 884 further appointments were made from the same panel and 35 appointments were made in November, 1981. The petitioners of the first application, however, have given a figure of only 1000 appointments in their writ application but in the synopsis of facts prepared and handed over to us on the basis of the figures in the Government file handed over to the Additional Advocate General, 1312 posts, as mentioned above, were shown to have been filled. The candidates who had secured points upto 193 were appointed. The petitioners of the first case are those who had applied in pursuance of the advertisement and also interviewed but were rejected. The petitioners of the second case also belong to the same group and they thus having no hope in the existing circumstances to get in the cadre even on an ad hoc basis unless a new opening was created for them in view of the earlier observation of this Court (in C.W.J.C. No. 1188 of 1981) laid emphasis to fill up the posts on substantive basis through the Bihar Public Service Commission and follow the directions of this Court in the above case confirmed by the Supreme Court.
9. The stand of the petitioners and intervenors of the third case, however, is slightly different. It has already been said that after the panel was prepared several objections were taken, inter alia, alleging irregularities in preparing the panel and giving undue preference to some of the candidates securing lesser points and it has been stated by them in their writ application that resort to hunger strike and other demonstrations was taken by the disgruntled candidates which led to the making of a declaration by the Health Minister on 15th November, 1981, to the effect that most of the unemployed candidates would also be absorbed soon by creating more jobs. A news item was also published in the local daily (Indian Nation) on 16.11.81 and undisputedly 500 further vacancies are/were still existing. The sheet-anchor of these petitioners is the advertisement dated 9.12.1982 published in the same local daily (Indian Nation) inviting applications for fresh appointment on ad hoc basis. It was specifically mentioned in this advertisement that those candidates who had applied on the previous occasion and were eligible on 30.7.80 would be provided relaxation in their age if they were otherwise eligible on the last date mentioned in the previous advertisement (Annexure 4).
Thus the petitioners of the first and second cases are mostly those who did not fulfil the requirement of one year’s rotation training (Internship) on 30.7.1980 and therefore, were ineligible for appointment to the posts advertised.
The petitioners of the third case (4962/82) are those candidates who although completed the said one year’s training period, had secured very poor points. Therefore, their main thrust is to get in the services and accordingly they pressed the claim in pursuance of the press advertisement (Annexure 4 to their writ application) for ad hoc appointment. On the other hand, the petitioners of the other two cases emphatically challenged the ad hoc appointment on this basis and their whole attempt is for tilling up of the vacancies on substantive basis through the Public Service Commission as it is only in this event that they will get a chance of consideration.
10 At this stage I feel it useful to refer to the terms of the settlement which had been arrived at on 15.10.82 between the parties and the first two cases were disposed of in terms thereof. They are as follows :
(a) All persons who have been appointed on ad hoc basis till today and those who will be appointed on ad hoc basis against 600 vacancies in pursuance of the advertisement to be made in short time their services shall be regularised in accordance with law within the period of six months by the same method and on the same transaction.
(b) Those, who had applied in pursuance of the advertisement on 10.7.80 and not appointed so far also be examined along with fresh applicants, who will apply on the basis of fresh advertisement and in case all such candidates, whose age has expired, the Government shall give relaxation with regard to age, if they were eligible to be considered till 30-7-1980, the last date of application of the aforesaid advertisement.
(c) That all such candidates, who were appointed on ad hoc basis, shall be granted leave from the date of their admission into the P. G. course till the date of their end of session, to which they are appointed.
Similarly, all such candidates who may be appointed on the basis of fresh selection on ad hoc basis pursuant to the advertisement to be made shortly hereafter, shall also be granted leave for the period from the date of appointment till the end of session to which they have been admitted for post-graduate course. The State Government shall withdraw the letter dated 19-9-1982 by which direction was given that the persons appointed should resign and then join P.G. course.
(d) That candidate selected for post-graduate studies, but disabled from joining his P.G. course, in spite of his selection, consequent to the refusal of leave or the ban recently imposed against granting of leave, shall be at liberty to avail of his chance, if available to him, to prosecute his studies and shall be entitled to leave for the period he prosecutes his studies.
(e) That the regularisation of the ad hoc appointees of 1976, 1979 and 1981 and those who are to be appointed hereinafter shall be made at the same time and by the same procedure in accordance with law within six months.
11. It was, therefore, agreed and understood that against the then about 800 existing vacancies some further appointment on ad-hoc basis itself were to be made, but within a period of six months the services of all the ad hoc appointees would be regularised in accordance with law. The second advertisement which is the basis of the claim of the petitioners of the third case. i.e., Mr. Mridul’s clients, i.e., perhaps, based upon Clause (b) in the consent order. It will be seen that this order was set aside by the Supreme Court on the objections of the petitioners of the third case on the ground that they had not been heard, although by the supplementary affidavit the writ petitioners of the first two cases have furnished sufficient materials before the Court to controvert that plea of those patitioners. However, I do not think necessary to go into that controversy as to whether they have misled the Supreme Court in getting the order set aside on a misleading stand. I do not see what advantage actually those petitioners have derived by getting the consent order upset in asmuch as all that they claim and for which so much exercise has been undertaken, was already contained in Clause (b) of the consent order, and an opportunity that might have become available to them ipso facto and agreed at all hands, has now become the subject matter of a great controversy and is being opposed by the State as well as by the other group of petitioners. But being cause of their poor performance they feel shy to compete with other candidates.
Their further case is in pursuance of the second advertisement (Annexure 4 to the first case) they would have got appointment that they failed because of the restrain order of this Court passed in C.W.J.C. 1125/82, dated 25-8-82, whereby the respondents were restrained from making any fresh ad hoc appointment and also from regularising the ad hoc appointments already made. Some relaxation was, however, made by the order dated 6-4-82 passed in the same case leaving it open to the Public Service Commission to proceed with the preliminaries with respect to the advertisement. Later, on 6-7-1982 another Bench vacated the order of restraint regarding making any fresh appointment in the meantime and ultimately, as already said earlier, the case was disposed of on the consent order.
12. From the facts slated, it is thus clear that the concept that petition of the third case parties are at once that the vacancies of the Health Department should be filled up on substantive basis and recourse to adhocism should be taken. An advertisement was also issued by the Government.
At this stage 1 would refer to some of the relevant facts from the counter-affidavit of the respondent Slate in C.W.J.C. No. 4962 of 1982 affirmed by an under Secretary of the Health Department It has been stated that against 1418 vacancies, 1312 persons were appointed on ad hoc basis in pursuance of the first advertisement after de-reserving the post earmarked for reserved categories of candidates under the reservation rules, as eligible candidates from those categories were not available. The Government accepts that on receipt of several complaints regarding omissions and commissions in preparation of the first merit list, the Government had invited papers from the candidates who had applied in pursuance of the said advertisement of the year 1980 and on re examination of the papers a list of 751 persons who prepared but no appointment could be made because their names were at lower places in the merit list than the candidates already appointed and no further posts for general candidates were available, and, therefore, a fresh advertisement was made giving opportunity to the previous candidates also.
It is on the basis of this statement in the counter-affidavit to the effect that a list of 781 persons was prepared after re-examination of the documents of the candidates who had earlier applied that Mr. Mridul contended that a mandamus should be issued to the Government for giving effect to that list in the matter of appointment of fresh candidates against the existing vacancies and, therefore, an enforceable right accrued to the petitioners, particularly when all those candidates were fulfilling the criteria mentioned in the advertisement and the Government was quite considerate in giving relaxation to their age which otherwise would debar them from any consideration to enter into Government service. He, therefore, contended that according to the existing rules of employment if the petitioners of the third case were not given the opportunity of ad hoc appointment irreparable loss and injury would be caused to them as they would deem the maximum age limit fixed for entering into Health Services, and that it was always open to the Government to fix any reasonable criteria for making appointment, for which no person raised any objection. He accordingly submitted that the Government was entitled to ask for fresh appointments by freezing the situation as obtaining in July, 198G, as it would appear from the second advertisement filed along with the supplementary affidavit on behalf of the intervenors in the second case (2801/82). This stand of the petitioners of the third case is vehemently opposed by the petitioners of the other two cases on the ground that in the meantime a large number of medical graduates (from the 9 medical colleges in the State) had qualified between 30-7-1980 and March, 1982 and this step of the Government would deny the opportunity to all those candidates.
13. It may also be mentioned that the Government had also issued an advertisement (Annexure 6 to the suit filed on 6.4.82 in the first case) which was subsequently withdrawn. As regards the petitioners of the first two cases, there does not appear to be much controversy, but complication has arisen on account of the assertion of the petitioners of the third case making a rule of mandamus for their appointment on adhoc basis. Mr. Mridul, learned Counsel appearing in support of the third case, contended that there was a reasonable nexus between the select list prepared by the Government in pursuance of Annexure 2 (to the intervenors’ application in the second case) and the claim of the petitioners in as much as the Government has decided to give preference to such medical graduates who have remained out of employment for a period of more than two years and whose age was expiring, over other fresh medical graduates.
14. Reliance was placed by Mr. Mridul on the cases of Bararsidas and Ors. v. State of Uttar Pardesh and Ors. ., Subhas Chand Jain v. Delhi Electricity Supply Undertaking and Ors. 1979 (3) S.C. 786. and D.S. Nakara and Ors. v. Union of India in support of the general proposition that it was open to the appointing authority to lay down the requisite qualifications for recruitment to the Government service, and even to make relaxations in appropriate circumstances. There is no quarrel over this general proposition, but the argument of the learned additional Advocate General as well as learned Counsel for the petitioners of the other two cases, opposing the claim of the petitioners of the third cases, was that the Court would not issue a mandamus to any authority to fill up the existing vacancies as a matter of course.
Mr. Balbhadra Prasad Singh who appeared for the petitioners in the second case, rightly contended that the entire load of back log and ad hoc appointments was acting to the great prejudice of the meritorious medical graduates who were not getting proper opportunity to appear at any competitive examination and similar was the attitude of Shri Umesh Prasad Singh, appearing for the petitioners in the first case, whose contention was that the Government should not appoint persons out of the 1980 select list ignoring the claim of the other available persons on that day as this would amount to denial of equal opportunity The argument went on that no panel was prepared; rather nobody was selected and all that was done in pursuance of Annexure 2 (supra) was to examine the documents of the candidates and only to note the results of the scrutiny and nothing beyond that.
Mr. Mridul also referred to Rule 9 of the Rules for appointment to the Bihar Medical Service issued under Notification No. 13020-L.S.G., dated 14.11.1929, published at page 365 of the Bihar Health Manual, 1960 edition, which reads as follows;
If any of the candidates selected by Government for permanent appointment on the recommendation of the selection board are not absorbed in permanent vacancies through no fault of their own, such candidates will have precedence over the candidates selected next year and will not be required to apply again.
This rule has got hardly any application to this case as this itself speaks of selection by the Board for filling up permanent vacancies.
15. Mr. Additional Advocate General vehemently argued that no classification whatsoever was made in favour of the petitioners of the third case and, therefore, the other question as to whether the classification was reasonable or had any nexus with the object did not arise in this case. He argued that the appointment of competent Civil Assistant Surgeons was the dominant object and no equity was in favour of these patitioners as they had secured very less points and were, therefore, very deficient in merits and as such the Court should be reluctant and slow in giving any assistance to these petitioners in the larger interest of the community, even if they had any enforceable right in law. Mr. Mridul however, tried to wriggle out of the situation by advancing an argument that once a select list was prepared it could not be nullified and an administrative decision was also equally enforceable. In support of this proposition he placed reliance on the decisions of the Supreme Court in K.N. Guruswamy v. The State of Mysore and Ors. A.I.R. 1954 S.C. 502. Sunderlal v. Paramsukhdus and Ors. A.I.R. 1960 S.C. 366. and Gurdial Singh Fijji v. State of Punjab and Ors. .
16. Having given my anxious consideration to the fact and circumstances mentioned above it is difficult to accept the contention of Mr. Mridul, as the list on which he bases his claim cannot he said to be the ‘select list’ in the sense of a panel or a merit list prepared for the purpose of giving appointment. It was just a scrutiny made on the grievances from certain quarters that in preparing the earlier panel some bunglings had been done and people securing less points were given higher points and vice versa. In the counter affidavit a definite assertion has been made that on verification this charge was found entirely untenable, and in any event, in view of the Courts earlier decisions which were confirmed by the Supreme Court that the Government should not be allowed to perpetuate ad hocism to the great prejudice of Medical Services, giving a direction in the year 1983 just contrary to the earlier wishes of this Court, would practically amount to putting the cart before the horse. In the earlier decisions the Government has repeatedly been told to regularise the previous appointment in accordance with law and not to resort to any further adhoc appointments. In that view of the matter, it will create an anomalous position if this Court itself at this stage would direct for perpetuating the same irregularities which were so adversely commented upon by it, practically when the Government is inclined and agreeable to fill up the posts on the substantive basis, thus giving opportunity to all the candidates. It was held by the Supreme Court in the case of State of Haryana v. Subash Chander Marwaha and Ors. . that the Government was not bound to fill up all the posts and that existence of vacancies gives no right to candidates for appointment. It was observed that it was open to the Government to decide as to how many appointments would be made and the mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be appointed.
In that view of the matter, I am of the opinion there is no legal right in the petitioners of the third case, muchless a right which can be said to be judicially enforceable and, therefore, no ground is made out for issuing a rule of mandamus in their favour see Mani Subrat Jain etc., v. State of Haryana and Ors. .
17. In view of the discussion made above, I find no merit for allowing the main reliefs prayed for by the petitioners in C.W.J.C. 4962 of 1982, i.e., for issuance of a writ of mandamus directing the Government to appoint them in accordance with the panel prepared in 1981-82 pursuant to the advertisement dated 10.7.80 against the 800 vacancies but I see no difficulty in allowing the alternative prayer to direct the Government to make regular appointments according to law on all the posts on which adhoc appointments have been made. Actually this prayer of the writ petitioners of the other two cases also as already said earlier.
18. It has already been stated that out of 261 adhoc appointments made in the year 1976, the services of 225 candidates have since already been regularised and only 36 appointees are continuing on adhoc basis. Since these persons have remained in service for a pretty long time, i.e., for about 7 years, I do not propose to terminate their appointments as that may put them to irreparable loss and injury, but at the same time 1 would direct the Government to take steps for regularising the services of these candidates also in accordance with law within a period of four months from today by the same process as was done with regard to others of that batch.
19. The position of the 1979 and 1981 recruits, however, stands on a different footing as their appointments are under challenge in some form or the other and, therefore, with regard to the adhoc appointees of the years 1979 and 1981, I would adopt a different attitude with a determination to give a death blow to the adhocism pervading the Health Services in the State of Bihar, with a hope that in future the Government would not take recourse to adhoc appointments in casual and routine manner. We were informed at the Bar that the adhoc appointments give the candidates some advantage in relaxation of age limit for future appointments and, therefore, no prejudice will be caused to them if they are compelled to face the Commission in the general competition. The meritorious candidates are suffering the agony of the adhocism and there is a brain drain from the State of Bihar on account of this, if I am be permitted to use the expression, clan estine method of appointment in the Health Services. I am constrained to observe further that the Health Department of the State Government has always found out some ways and means to circumvent the modalities and directions indicated or issued from time to time in different cases coming for consideration before this Court and all those observations have been circumvented. I therefore, make bold this time to give firm directions so that the Government may feel compelled and bound to carry out the same in the larger interest of the society and suffering humanity in the State. The condition of the Government hospitals and dispensaries in the State of Bihar has become chaotic and this will be a step in the right direction that appointment of deserving and suitable candidates are made on their merits.
I would, therefore, direct that all the vacant posts which are occupied by the adhoc appointees of the years 1979 and 1981, as well as all those posts which might have fallen vacant or be otherwise available, should be filled upon regular basis through the Public Service Commission by open advertisement. It will, however, be open to the Government, if it is thought necessary to obviate or overcome any hardship, to give reasonable relaxation in regard to the age limit to any particular class of candidates who are getting delayed opportunity on account of the inaction of the Government to fill up the vacancies in proper time see State of Andhxa Pradesh v. T. Ram Krishna and Ors. 1971 (1) S.L.R. 453.
20. The view that I am taking in the matter under the circumstances, is in keeping with the earlier views taken in C.W.J.C. No. 1188 of 1981 duly confirmed by the Supreme Court; rather, I do not find any way out for taking a different view and I feel myself bound to fall in line with the decision already taken in the matter, practically when the same 1981 appointments were directly under consideration before this Court on the earlier occasion when those observations were made and direction was given. I would accordingly direct the Government to fill up all the vacancies indicated above on regular basis in accordance with law, positively within a period of six months from today. But at the same time, having regard to the suffering of the humanity, I leave it open to the Government to make such further appointments as if it be thought absolutely urgent and necessary, against the existing vacancies as a stop-gap measure in the mean time, on the basis of the advertisement published in the Indian Nation, copy of which has been filed as Annexure 4 to the third case, in pursuance whereof the petitioners of that case (C.W.J. No. 4962 of 1982) have also already applied.
21. However, before parting with this case I could also make it clear that all the adhoc appointments arleady made in the years 1979 and 1981, subsisting so far or to be made as permitted above, would stand automatically terminated if the Government does not fill up those vacancies on substantive basis within the time fixed by the Court, i.e., by the end of six months from today, and at the same time would restrain the Government from taking any other measure for filling up those vacancies save and except as directed above. I hope the respondents would gear up their machinery and take immediate steps, in the matter so that the directions of this Court are carried out within the said period.
22. In the result, the third case (4962/82) fails and hereby dismissed, and the other two cases, namely C.W.J.C. Nos. 1125 and 289 of 1982 are allowed to the extent and subject to the directions and observations given above. In the circumstances, however, I shall make no order as to costs.