- (1.) THE present appeal has a chequered history, but only those facts which are relevant for deciding the present appeal required to be noticed, which are as under:
(2.) WHAT it appears that respondent No. 1 Dr. Amareshwar Prasad as well as one Dr. Muni Bagish Tiwary were posted as basic health workers. Dr. Amareshwar Prasad was appointed as Homoeopathic Medical Officer on being Selected by Selection Committee. His appointment as Homoeopathic Medical Officer was challenged by Dr. Muni Bagish Tiwary by filing a writ petition before the Patna High Court being CWJC No. 8253 of 1988. The said writ petition was disposed of by terms of order dated 8.1.1990, copy of which has been annexed as Annexure -2 to this memo of appeal. From the said judgment contained in Annexure -2, it appears that the writ petitioner Dr. Muni Bagish Tiwary had raised a question that the Selection Committee, which selected Dr. Amareshwar Prasad, had made its own criteria for deciding amongst the basic health workers as to who should be selected for appointment as Homoeopathic Doctor and they decided to hold interview and to award marks on the basis of performance in the interview. According to Dr. Tiwari, only because Dr. Amareshwar Prasad, was awarded 5 marks in the interview and, as such, he ranked higher than him i.e., Dr. Muni Bagish Tiwary, though the said writ -petitioner claimed that he was senior and was better on merit than Dr. Amareshwar Prasad. The Patna High Court on consideration of facts held that the petitioner's case i.e., Muni Bagish Tiwary's case deserved a fresh look by the Appointing Authority and Selection Committee and accordingly the matter was remitted back to the Director, Indigenous Medicine. Government of Bihar, Patna, respondent No. 2, for reconsideration in the light of the observation made in the said order in order to find out as to who was senior and superior in merit between the two i.e., writ petitioner and Dr. Amareshwar Prasad. Consequently by order dated 1.6.2001 the Director, Indigenous Medicine Government of Bihar, Patna, respondent No. 2, passed an order holding that Dr. Amareshwar Prasad's (respondent No. 1 herein) promotion made against a post of Homoeopathic Medical Officer was illegal and thereby he was ordered to be reverted to the post of basic health worker and in his place Dr. Amarnath Purbey was ordered to be promoted to the said post. The aforesaid order passed by the Director, Indigenous Medicine Government of Bihar, Patna, respondent No. 2, was challenged by Dr. Amareshwar Prasad before this Court in WP (S) No. 2540 of 2001. By order dated 11.9.2001 the learned single Judge of this Court after noticing the fact that the writ petitioner was posted in the State of Jharkhand and therefore, held that the Director. Indigenous Medicine, Government of Bihar, Patna, respondent No. 2, had no Jurisdiction to pass any order in respect to a Government servant posted in the State of Jharkhand. Consequently the order passed by Director, Indigenous Medicine, Government of Bihar, Patna, respondent No. 2, dated 1.6.2001 was set aside. However, it was observed that it will be open to the Director, Indigenous Medicine, Government of Bihar. Patna, respondent No. 2, to refer the matter to the Government of Jharkhand or the Director, Indigenous Medicine Government of Jharkhand for passing an appropriate order in accordance with law if permissible. Thereafter by issue of order dated 22.3.2006 under the signature of the Secretary of the Department of the Health and Family Welfare. Jharkhand, the marks allotted to Dr. Amareshwar Prasad (respondent No. 1 herein) in the interview was cancelled and thereafter a fresh merit list was prepared, in which Dr. Muni Bagish Tiwari was placed at serial No. 4 and Dr. Amreshwar Prasad has been placed at Sr. No. 13 and one Dr. Amar Nath Purvey was placed at serial No. 3 in the merit list. Accordingly, promotion of Dr. Amareshwar Prasad (respondent No. 1 herein) to the post of Homoeopathic Medical Officer was cancelled and he was reverted to the post of Basic Health Worker. The order dated 22.3.2006 passed by the Secretary. Department of Health and Family Welfare, was challenged by Dr. Amareshwar Prasad before this Court in WP (S) No. 2229 of 2006 and the aforesaid writ petition filed by Dr. Amareshwar Prasad has been allowed by judgment and order dated 7.8.2006, which has been challenged by the State of Jharkhand in this Letters Patent Appeal.
(3.) MR . A. Allam, learned Sr. SC -II, appearing for the appellant -State of Jharkhand submitted that pursuant to the order and direction of the Patna High Court in CWJC No. 8253 of 1988, the marks awarded to Dr. Amareshwar Prasad in the interview was cancelled and excluded while determining the inter se merit of the candidates who appeared in the selection process and thereafter a fresh merit list was prepared. In that merit list Dr. Amareshwar Prasad was placed at serial No. 13 whereas Dr. Muni Bagish Tiwari was placed at serial No. 4 and since there were three vacancies available, therefore, Dr. Amareshwar Prasad and Dr. Muni Bagish Tiwari were excluded from the selection list and they were not appointed to the post of Homoeopathic Doctors.;