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RULE 5 & 6(iii) OF THE BIHAR HEALTH SERVICE RULES, 2013 ARE CONSTRUED TO INCLUDE THE EXPERIENCE

Dr. (MAJOR) MEETA SAHAI v. STATE OF BIHAR & ORS. CIVIL APPEAL NO.9482 OF 2019 [Arising out of Special Leave Petition (Civil) No. 12245 of 2017] December 17, 2019

The brief facts of the case are the Bihar Public Service Commission issued an advertisement inviting eligible candidates for the post of General Medical Officer in Bihar. Clause 5 of the advertisement elucidated the selection process should be based on the merit list prepared on qualification, work experience and marks obtained in interview. The appellant who applied for the post was neglected of the marks under work experience as she lacked experience in Government hospitals. Thus her name was not part of the merit list. The aggrieved appellant filed a writ petition before the Patna High Court challenging Clause 5(iii) of the advertisement. However the HC dismissed the petition quoting the judgment of Dr. Dharmbin Kumar v. State of Bihar. Unsatisfied with this order she approached the Divisional Bench of the Court which relied on Ram Surat Mishra v. State of U.P and M/s J.K. Jute Mills  V. State of U.P and dismissed the intra-court appeal giving rise to further challenge through Special Leave Petition. Thus this case approached this court.

The counsel for the appellant argued that the Divisional Bench judgment was erroneous because it restricted the work experience to only hospitals of Government of Bihar. He argued that the exclusion of service rendered in non-Bihar Government hospitals would be discriminatory.  Also it was contended that the expression ‘any Government hospital’ include all Government hospitals of the centre and other public bodies based on Rule 5 & 6(iii). Also the definition of ‘Government’ under Rule 2(a) did not control the meaning of the term ‘Government hospital’.

The counsel for the respondent questioned the maintainability of the appellant’s challenge and argued that once the candidate had participated in a recruitment process, the correctness of the process in a later stage. The advertisement was only a clarification in stating that marks are only for work experience in hospital. Also the Divisional Bench correctly interpreted the meaning of the term ‘Government Hospital’.

The chief issue that is to be addressed is the maintainability of the challenge.

The court observed in this case certain important aspects. In Manish Kumar Shahi v. State of Bihar it was a settled that the principle of estoppel prevents a candidate from challenging the selection process. Permissibility of giving weight for ‘work experience’ in government hospitals is not the bone of contention. “Medicine being an applied science cannot be mastered by mere academic   knowledge.   Longer   experience  of  a  candidate   adds   to  his knowledge  and  expertise.   Similarly,   government   hospitals   differ   from private   hospitals  vastly   for   the   former   have   unique   infrastructural constraints   and   deal   with   poor   masses. Doctors  in  such  non ­private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary”. Thus it can be found that the appellant has not rightly challenged the selection procedure.

The first step in statutory interpretation is the text should be interpreted constructively and effectively. Provisions in a statute must be read in the original grammatical sense. The courts are duty bound to interpret the text so as to eliminate hardship, inconvenience, injustice and absurdity. In Modern School v. Union of India it was held that legislature must further its objectives and not create any confusion in the system.

The executive actions like advertisements can never expand or restrict the scope of law. According to the literal interpretation the phrase ‘Government hospital’ cannot be construed to exclude other non-private hospitals. ‘Government hospitals’ refers to all non-private hospitals and not hospitals established by a particular government. The word ‘any’ in Rule 5 indicates the legislative intent to bestow a broad meaning to hospitals eligible for accrual of work experience. Thus the court viewed that the phrase ‘Government hospitals’ must have an expansive interpretation and Rule 2(a) need not be given much weightage. It was held by the court that the rigid interpretation would only lead to friction in the system. The rules framed must be in conformity with all other constitutional provisions. Where there is more than one interpretation, the one which promotes constitutional values must be preferred. It is unconstitutional to allow differentiation between experience gained by doctors in hospitals of Panchayats or Municipalities or by Central Government and its instrumentalities in the territory of Bihar.

“Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a non­private hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting   suitable   candidates.”The Court held that;  Thus Rule 5&6(iii) of the Bihar Health Services (Appointment and Services Conditions) Rules, 2013 are construed to include the experience gained by a doctor in any hospital run by the Bihar Government as well as other non-private hospital within the territory of Bihar. Thus the respondents are directed by the court to rework and prepare a fresh merit list by giving weightage to appellant and other similar candidates. However weightage on the basis of work experience shall have no bearing.

Hence, allowed the appeal.

–  PRIYADHARSHINI R

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