TaxTMI 
TaxTMI 
2019 (12) TMI 1672
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....f a hospital run by the Government of Bihar could count under the head of work experience. FACTUAL MATRIX 3. Ostensibly to rectify a constant shortage of doctors in Bihar which was adversely impacting public health, the State of Bihar decided to fill vacant posts in hospitals. Accordingly, an advertisement was published by the Bihar Public Service Commission (hereinafter, "Commission") in various local newspapers on 18.07.2014, inviting applications from eligible candidates for filling up 2301 vacant posts of General Medical Officer in Bihar. The selection process was elucidated in Clause 5 of the Advertisement wherein general sub-cadre doctors were to be selected on the basis of a merit list prepared by giving weightage for academic qualifications (marks obtained in MBBS 50 marks, and higher degree 10 marks), work experience (5 marks per year for a maximum of 25 marks) and marks obtained in interview (out of 15 marks). It is important to reproduce the relevant portion of the advertisement to aptly comprehend the selection criteria which is to the following effect: "5. Selection Process - For appointment of the doctors in the general sub cadre the candidates shall be selected o....
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....on of the Rules (which didn't prescribe any such limitation of work experience only being in hospitals of the Government of Bihar). She was upset that her work experience in the Army Medical Corp Hospital had been disregarded while others who served in Bihar Government hospitals were given due weightage. She felt that if not for this erroneous interpretation of the Rules, she would have been selected for the post of General Medical Officer. Similarly, some other candidates also approached the Patna High Court, agitating their exclusion pursuant to the non-consideration of work experience in nonprivate hospitals other than those administered by the Government of Bihar. 6. A Learned Single Judge of the High Court dismissed all these writ petitions with a brief order holding that the validity of such provision had already been upheld by a Division Bench of the Patna High Court in Dr. Dharmbir Kumar v. State of Bihar 2015 (2) PLJR 916 and, therefore, the appellant could not plead that exclusion of service rendered in Army Hospitals, while evaluating work experience, resulted in discrimination. 7. Unsatisfied with this Order, the appellant filed a Letter Patent Appeal, with the foremo....
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....nment hospital shall be given weightage for work experience. 6. For selection of doctors to appointment in General subcadre, candidates shall be given marks for their educational qualification and work experience. Apart from that, they shall also be given marks for the oral interview. A total 100 marks shall be for educational qualification, work experience and interview. The break up of these 100 marks shall be as follows: (i) Marks obtained in MBBS Total 50 Marks (ii) PG or Higher Degree Total 10 Marks (iii) Work Experience after appointment in Government hospital on contract/regular basis. Total 25 Marks Provided that for each complete one year of work experience, candidates will be given 5 and thus maximum 25 marks will be given. (iv)Interview: Total 15 Marks Note: (a) The determination of marks to be given to candidate for MBBS shall be in multiple of 0.5 of total percentage of marks obtained in the examination of said course. Thus, if a candidate has obtained 50% marks, he/she shall get 50 x 0.5 = 25 marks (b)Minimum 30 marks will be required for consideration for the appointment in the General sub cadre and specialist sub cadre." (emphasis supplied) 10. H....
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....ince the issue at hand pertains to a different enactment which did not have any conflict between versions. The appellant stated that reference to the English version of the Dentist Rules which explicitly defined 'Government hospital' as both Government of Bihar and Central Government hospitals, was merely illustrative to support an argument that 'Government hospital' can have a different meaning than 'Government' and thus her case ought not to have been dismissed on this count. 13. On the other hand, learned counsel for Respondents questioned the maintainability of the appellant's challenge and urged that once a candidate had participated in a recruitment process, he/she could not at a later stage challenge its correctness merely because of having failed in selection. It was contended that the appellant was taking 'two shots' at success, and her challenge was opposed for being opportunistic. Further it was argued by the respondents that the appellant's attempt to draw inference from the Dentist Rules has rightly not been accepted by the High Court. Moreover, the advertisement was shown as being merely clarificatory in stating that marks shall only be granted for work experience in....
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.... to entertain the writ petition." See also: Madan Lal v. State of J&K [(1995) 3 SCC], Marripati Nagaraja v. State of A.P.[(2007) 11 SCC 522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171] and K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. 18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process. 19. The qu....
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.... ON PRINCIPLES OF STATUTORY INTERPRETATION (14th edn., 2016) pp. 145170. This principle of statutory construction has been approved by this Court in Modern School v. Union of India (2004) 5 SCC 583 ¶62, by reiterating that a legislation must further its objectives and not create any confusion or friction in the system. If the ordinary meaning of the text of such law is non conducive for the objects sought to be achieved, it must be interpreted accordingly to remedy such deficiency. 23. There is no doubt that executive actions like advertisements can neither expand nor restrict the scope or object of laws. It is therefore necessary to consider the interpretation of the phrase 'Government hospital' as appearing in the Rules. Two interpretations have been put forth before us which can be summarized as follows: a. Only hospitals run by the Government of Bihar. b. Hospitals run by the Bihar Government or its instrumentalities, as well as any other nonprivate hospital within the territory of Bihar. The former interpretation to the term, as accorded to it by the respondents, forms a narrower class whereas the latter interpretation used by the appellant is broader and more inclu....
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....e 2(a) is applied to 'Government hospital' there is substantial ambiguity created as to whether or not hospitals run by instrumentalities of the Government, which are not strictly owned by the Government of Bihar would be included within Rule 5. When a pointed question was put forth to learned counsel for the respondents as to whether a hospital established by the municipality or one run by an institute substantially funded by State money would be included in their definition, no clear answer was forthcoming. Such issues are bound to arise repeatedly in any selection process. Given how there is no simple answer to such questions, the rigid interpretation adopted by the Government would only lead to friction in the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment. 27. Further, if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses. We are thu....
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....under Article 243W read with Entry 6 of Schedule XII, the functions of "Public health, sanitation conservancy and solid waste management" to Municipalities. Hospitals of these local governments are often run on the back of funds derived from the Consolidated Fund of the States. It may thus be seen that the Constitution envisages the setting up of hospitals by many different public authorities, including the Central Government, State Government, Municipalities and Panchayati Raj Institutions. 32. In addition, it is a wellknown fact that several hospitals throughout the country have been set up by instrumentalities of the Central or State Governments, more notably the Employees' State Insurance Corporation Hospitals, to cater to the need of poor and needy persons. These hospitals, therefore, are at par with other government hospitals for all intents and purposes, and the experience gained by a doctor in such hospitals subsume the characteristics acquired in a hospital set up by the Bihar Government. 33. Other hospitals are also established by instrumentalities of the States and the Centre in pursuance of Constitutional obligations under Part IV. These although not strictly covered ....