- (1.) PETITIONER was appointed as Basic Health Worker in the year 1977 pursuant to the selection made by the competent authority. In the year 1980 as many as 15 posts of Homeopathy Doctors were required to be filled up. The Govt. decided to fill up 11 posts by direct recruitment and 4 posts by selection from the Basic Health Workers on the basis of marks obtained in the interview. It is alleged that this decision was taken by the State on 12.5.1980 by the order of Adviser. At the relevant time petitioner and some other candidates who were holding requisite qualifications were summoned for interview. Petitioner came to be selected. It is alleged that petitioner was awarded 4 marks in the interview whereas one Dr. Muni Bagish Tiwari was awarded 1 mark. Said Dr. Muni Bagish Tiwari filed C.W.J.C. No. 8253 of 1988 challenging the appointment of the petitioner. This petition came to be disposed of vide order dated 8.1.1990 after making certain observations regarding the marks in interview, the Court remitted the matter to the Director, Indigenous Medicine, Govt. of Bihar, Patna for reconsideration. It was further observed that if the Respondent NO.4 is found to be senior to petitioner then there is no reason why the petitioner should not be appointed in preference to respondent NO.4, It was further observed that if there are several vacancies available it shall be open to the r. respondent to retain the Respondent NO.4 also as Homeopathy Doctor. It is relevant to mention here that petitioner was arrayed as Respondent NO.4 in the said petition. After disposal of the writ petition, the State of Bihar passed an order dated 1.6.2001 reverting the petitioner to the post of Basic Health Worker. This order became subject -matter of challenge in W.P.(S) No. 2540/2001 before this Court. The writ petition came to be disposed of vide order dated 11.9.2001 and the order of reversion was quashed. While quashing the aforesaid order a direction was issued to the Director, Indigenous Medicine, Govt. of Bihar, Patna and the State of Bihar to refer the matter to the State of Jharkhand and/or Director, Indigenous Medicine, Govt. of Jharkhand, Ranchi to pass appropriate order in accordance with law if permissible. The State of Jharkhand has passed the order dated 22nd March, 2006 reverting the petitioner to post of Basic Health Worker and it has been held that marks allotted in the interview ought to be excluded while determining the inter se merit of the candidates who appeared in this selection process. Based upon this decision 4 marks awarded to the petitioner were excluded and inter se merit re -determined by the Secretary himself. On the basis of the re -determination of merit, petitioner is said to be at SI. No. 13 of the select list and Dr. Tiwary at SI. NO.4. Since only 3 vacancies were available both petitioner and Dr. Tiwari who had earlier filed the writ petition have been excluded from the selection list and consequently denied appointment to the post of Homeopathy Doctor. It is this order, which is impugned in this petition. In the counter affidavit it is mentioned that marks allotted in the interview were excluded in accordance with directions in C.W.J.C. No. 8253/85 and hence petitioner has been reverted back to the post of Basic Health Worker.
(2.) I have heard the learned Counsel for the parties. It is pertinent to note that the selection process on the basis of which the petitioner came to be selected was challenged in C.W.J.C. No. 8253/1988. This Court though made certain observation in respect of the marks awarded in the interview but the selection was never set aside though the matter was remitted to the director, Indigenous Medicine for giving a fresh look in respect of the petitioner and Dr. Tiwari who was the writ petitioner in the said case. The Court did not interfere in the criteria adopted at the relevant time. Reliance has been placed by the respondents on the observations of the Court in respect to the interview marks awarded. These observations have been read out of context. Even if the observations made by the Court are given its face value it was obligatory upon the respondent -Secretary to have given a clear finding whether the criteria laid down for the selection was valid or not. No reference is made in the impugned order in respect to the validity or otherwise of the criteria adopted by the Selection Authority. In absence of that respondents were not entitled to exclude the marks awarded for interview in the selection process and re -determine the merit. Even if the Secretary was of the opinion that the criteria adopted in the selection was bad he should have set aside the entire selection/promotion and ordered re -selection by the competent Selection Body. Apart from above, petitioner has specifically mentioned in paragraph NO.6 that the then Adviser of State of Bihar vide decision dated 12.5.1980 laid down the criteria for selection. This specific averment has not been denied in the counter filed by the respondents Nos. 1 and 2 therefore it can be safely concluded that a criteria was laid down by the competent authority i.e. the Employer State and criteria being not under challenge in any of the writ proceedings, it was not open to the respondents to change the criteria in the guise of a fresh look under the orders of this Court and re -determine the merit. Even the order of the court passed in C.W.J.C. No. 8253/1988 is misinterpreted. While remitting the matter back to the Govt. High Court had specifically directed to "pass appropriate order in accordance with" law, if permissible". Thus it was obligatory on the Secretary to have examined the legal position before passing the impugned order.
(3.) IN view of the above circumstances, the order impugned reverting the petitioner by changing the criteria of selection by the Secretary is not sustainable in law and is liable to be quashed. I order accordingly. As a consequence of the quashing of the impugned order, petitioner shall be promoted/appointed as Homeopathy Doctor with effect from the date of his reversion. He shall be entitled to all consequential benefit of the promotional post.;