Dr. Mohd. Akram C/o Mohd. Ilyas vs The State of Bihar

Heard learned counsel for the appellants, learned counsel

representing the private respondents, the State Health Society as also

the State of Bihar.

The three appellants in the present Letters Patent Appeal

were respondents no. 9, 7 and 8 respectively in CWJC No.

10912/2014 which was filed by the respondent no. 7 and 8 in the

present appeal.

The appellants are aggrieved by the order dated

01.08.2016 passed in the Writ Application by which the learned single

Judge of this Court has been pleased to set aside Memo No. 5031

dated 03.06.2014 issued by the respondent no. 6 cancelling the

appointment of the writ petitioners - respondents no. 7 & 8 on the

basis of the opinion of the General Administrative Department,

Government of Bihar.

A short point for consideration arose before the learned

single Judge. The learned single Judge held that the General

Administrative Department as well as the Bihar State Health Society

failed to consider that the selection and appointment vide the second

list was in continuance of the selection process which was initiated

vide Annexure-1 to the Writ Application. The second list was

prepared to fill up the vacancies which arose on account of non-

joining of the 63 Aayush Doctors, 16 of whom belong to Aayush

Homoeopathic Category with which the Writ Petition was concerned.

The learned single Judge took note of the fact that out of

16 Aayush Doctors, who did not join, 10 were from the general

category and 6 were from the reserved category. A distinguishing

feature was also noticed by the learned single Judge saying that it is

not the case of the respondents that 16 members of Aayush

Homoeopathic Doctors joined the job and then left the service, it is a

case where they had not joined and so the vacancies which were not

filled up were required to be filled up by issuing the second list.

According to the merit panel of the respective categories against

respective vacancies if 10 of the general category candidates and 6 of

the reserved category candidates did not join the vacancies were

required to be filled up from their respective merit list and, therefore,

while issuing the second list there were no requirement of providing a

fresh roster as it would have amounted drawing a fresh panel and the

number of the vacancies which were notified and against which the

panel was prepared all would have been altered. The learned single

Judge has also considered the judgment of the Hon''ble Supreme

Court, particularly the Constitution Bench judgment of the Hon''ble

Apex Court in the case of Union of India Vs. Ramesh Ram, reported

in (2010) 7 SCC 23, and the judgment rendered in the case of Indra

Sawhney Vs. Union of India, reported in 1992 Suppl. (3) SCC 217.

Paragraph 39 of the order of the Hon''ble Apex Court in the case of

Union of India Vs. Ramesh Ram (Supra) has been quoted and it is

once again taken note of hereunder for a ready reference:

"39. A significant aspect which needs to be discussed is that the aggregate reservation should not exceed 50% of all the available vacancies, in accordance with the decision of this Court in Indra Sawhney v. Union of India . If MRC candidates are adjusted against the reserved category vacancies with respect to their higher preferences and the seats vacated by them in the general category are further allotted to other reserved category candidates, the aggregate reservation could possibly exceed 50% of all of the available posts."

In course of submissions learned counsel for the

appellants submits that the reservation rule would permit such kind of

fresh creation of roster and / or adjustments which were sought by one

Dr. Kameshwar Prasad Singh, who had filed a representation in his

representative capacity. No such reservation rule has been brought to

our notice and we are of the view that no such rule can be followed

which is in direct conflict with the judgment of the Hon''ble Apex

Court, particularly the Constitution Bench judgment, which has been

referred here-in-above. If the plea of the appellants is allowed then it

would amount to transgressing the limit of reservation of 50% and it

would virtually amount to preparing a fresh merit list with an altered

vacancies which, in our opinion, cannot be permitted in accordance

with law.

It is also worth noticing that the impugned order was passed on the opinion of the General Administrative Department,

Govt. of Bihar, the State of Bihar has not preferred any appeal against

the order of the learned single Judge and thereby accepted the view

expressed by this Court passed on the basis of the Constitution bench

judgment of the Hon''ble Apex Court. We find no illegality or

infirmity in the order passed by the learned single Judge.

The Appeal has no merit and it is accordingly

dismissed.