Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties. Petitioner still working on contractual basis as a Medical Officer since 10th May, 2005 under Respondent, Health, Medical Education and Family Welfare Department on his appointment by order bearing Memo No. 489 dated 10th May, 2005 (Annexure -1), extended from time to time thereafter, is seeking regularization in service in terms of the provisions of Regularization Rules, 2011, notified by the respondent department on 12th August, 2011, Annexure -2. The eligibility conditions under Rule 4(Kha) specified that any such contractual medical officer should be in continuous contractual service for more than 5 years till the date of his regularization. Petitioner's name was also sent to J.P.S.C. when such an exercise was undertaken by the respondent department as is evident from paragraph -9 of the counter affidavit of J.P.S.C. However, J.P.S.C. made a request on 4th September, 2012 through letter No. 2565 to send the authenticated list and applications of the candidates as per reservation category in the given proforma. The reply of the department through letter No. 603 dated 10th November, 2012 did not contain the name of the petitioner in the said list though it contained the names of some left over candidates. Respondent J.P.S.C. therefore, did not call the petitioner for interview held on various dates in April, 2013 as is the stand in paras 10 and 11 of their counter affidavit. The respondent department at para 23 of their counter affidavit admit that candidature of the petitioner was not considered on account of absence of certificate of Civil Surgeon, Koderma, which he had not sent inadvertently, as would be also evident from Annexure -7 to the writ application dated 25th April, 2013 bearing Memo No. 598. The respondents however have also taken the plea of absence of the petitioner over different periods as communicated by Civil Surgeon, Koderma, on being called for by the department through letter No. 901(3) dated 3rd August, 2013. The Civil Surgeon through letter dated 8th August, 2013 bearing No. 1128 refers to the payment of contractual allowance of the petitioner for the different periods and deductions for the period of absence (Annexure -C). A detailed report was again called for from Civil Surgeon, Koderma through letter No. 1307 dated 7th September, 2013, regarding petitioner's absence and payment of contractual allowance to him. The letter dated 5th July, 2013 and the report sent thereafter vide Annexures -E & F indicate absence of the petitioner in the month of June, 2005 and 17 days in July, 2005 at his place of posting as Additional PHC, Koderma; absence for certain period from March, 2007 to October, 2008 for 19 days in four different months and certain period of absence from March, 2010 to February, 2013 in different months. By referring to the said report the respondent department has submitted that his contractual service was not continuous in terms of Rule 4(Kha) of 2011 Rules. These are the reasons for non -regularization of the petitioner.
(2.) Counsel for the petitioner submits that petitioner's case was not recommended to J.P.S.C, initially only due to want of certificate of Civil Surgeon, Koderma. Later on, it was duly supplied through Annexure -7, where it is categorically stated by the respondent No. 5 that petitioner - has been working on contractual basis as a Medical Officer in different Primary Health Centres in the district of Koderma since 10.5.2005 in a regular manner. There are no departmental proceedings against him. The certificate of recommendation could not be sent earlier because of inadvertent error. The Civil Surgeon, Koderma also recommended for his regularization. It is submitted that the department has sought to supplement reasons through the counter affidavit by enclosing certain reports relating to absence of the petitioner in -contractual service career of 7 years by then for certain days distributed over the period of 7 years. At no point of time, petitioner was served with any show cause for such absence nor his contractual engagement has been severed at any point of time. As a matter of fact, he continues in contractual engagement till date. The respondents have not followed the spirit of the provisions of the Regularization Rules, 2011 and in fact resorted on untenable hyper -technical grounds of absence for certain days or period in his entire contractual service to infer that he does not fulfill the requirement of continuous service for being recommended and regularized in the respondent department. It is prayed that the respondent department and J.P.S.C. may be issued proper directions to consider the petitioner's case on its own merit in accordance with the Rules of 2011 and regularize his service under the department as he satisfies the mandatory conditions required under the Rules.
(3.) Counsel for the Respondent -State has, in response, relied upon the contents of the counter affidavit, the details of which have already been referred to in the foregoing paragraphs of the judgment. He also submits that because of his absence, he cannot be treated as in continuous service for more than 5 years to be entitled for regularization. He, however, is not in a position to dispute that respondent No. 5, Civil Surgeon, Koderma has issued the certificate in favour of the petitioner at Annexure -7 clearly stating that petitioner has been in continuous service as contractual doctor in the said district at different PHC without any charges alleged against him over the period of his engagement.;