Patna High Court
Dr. Shakti Nath vs The State Of Bihar on 25 February, 2025
Author: Anjani Kumar Sharan
Bench: Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19314 of 2024
======================================================
1. Dr. Shakti Nath Son of Sri Sudhir Kumar @ Sri Sudhir Kumar Karn,
resident of village - Maharouli, P.O. Amnour, P.S. Aurai, District
Muzaffarpur, Bihar- 843129.
2. Dr. Rajeev Ranjan, Son of Sri Rameshwar Pandey, resident of Mission
Road, Pakri, Arrah, P.O. Arrah, P.S. Nawada, District Bhojpur, Bihar -
802301.
3. Dr. Rahul Kumar Roshan, Son of Sri Awadhesh Kumar, resident of Goraiya
Bigha, P.O. Badi, P.S.- Katrisarai, District- Nalanda, Bihar - 805105.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Department of Health, Medical Education and
Family Welfare, Government of Bihar, Patna, Bihar.
3. The Director, Department of Health, Medical Education and Family Welfare,
Government of Bihar, Patna, Bihar.
4. The Bihar Combined Entrance Competitive Examination Board, Patna, I.A.S
Association Building, Near Patna Airport, Patna, Bihar through the
Chairman, Bihar Combined Entrance Competitive Examination Board,
Patna, Bihar.
5. The Controller of Examination, Bihar Combined Entrance Competitive
Examination Board, Government of Bihar, I.A.S Association Building, Near
Patna Airport, Patna, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Rajni Kant Singh
For the Respondent/s : Mr.Standing Counsel (12)
======================================================
CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
ORAL JUDGMENT
Date : 25-02-2025
Heard learned counsels for the parties.
2. This Writ petition has been filed by the petitioners for
seeking following reliefs-
(i) For holding and directing that the petitioners are
entitled for grant of benefit of weightage/ 20%
weightage on the marks obtained by them in the
National Eligibility cum Entrance Test (Post Graduate)
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2024 examination for determination of their merit and
rank in selection process of Post Graduate Medical
Admission Counselling 2024 for admission to the 2024
session of post graduate degree course in medical
education in health institutions of State of Bihar
initiated under Advertisement No.2024/01 dated
03.11.2024
issued by the Bihar Combined Entrance
Competitive Examination Board, Patna and to further
hold and declare that the withdrawal of the said benefit
of weightage/ 20% weightage for the said purpose by
the respondents, in particular by the said Board, under
the following Advertisement No. 2024/06 dated
24.11.2024, is illegal, irrational and arbitrary.
(ii) For issuance of a writ in the nature of mandamus
directing the respondents, in particular the Bihar
Combined Entrance Competitive Examination Board,
Patna, to combine and to give effect to and to
consequently allot seats to the petitioners under the Post
Graduate Medical Admission Counselling 2024 for
admission to the 2024 session of post-graduate degree
course in medical education on the basis of the unrevised
merit list and unrevised rank cards of the petitioners
earlier issued by the said Board under follow up
Advertisement No. 2024/04 dated 13.11.2024 prepared by
adding the above benefit of 20% weightage on marks of
the petitioners of NEET-PG 2024 examination as well as
to direct the respondents, in particular the said Board, to
not to give effect to the revised merit list and revised rank
cards of the petitioners prepared withdrawing the said
benefit of 20% weightage as issued by it under the follow
up Advertisement No. 20224/06 dated 24.11.2024 for the
purpose of the said process of admission.
(iii) For issuance of a writ in the nature of Mandamus
directing the above said Board to produce its decision to
completely withdraw the above said benefit of 20%
weightage granted earlier to the petitioners in the above
said selection process for admission and on its
production to quash the same.
(iv) Alternatively, to quash letter No. 813 (1) dated
20.11.2024 of the Health Department, Government of
Bihar, Patna withdrawing the benefit of weightage of
20% on marks obtained by the petitioners in NEET-PG
2024 examination for determination of their merit and
rank for allocation of seats for admission to the above
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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said course of session 2024 under the Post Graduate
Medical Admission Counselling, 2024.
(v) For any other relief or reliefs, either independently or
consequentially, in the facts and circumstances of the
present case.
3. The brief facts of the case are that the Petitioner No. 1
had passed MBBS course from VIMS Pawapuri in the year
2020 and has also completed his one year internship from there
in the year 2021, the Petitioner No. 2 has passed MBBS course
from DMCH, Darbhanga in the year 2020 and had also
completed his one year internship from there in the year 2021,
and the Petitioner No. 3 has passed MBBS course from PMCH
in the year 2020 and had also completed his one year internship
from there in year 2021.
4. Learned counsel for the petitioners submitted that the
State Government, in its cabinet meeting held on 11.05.2021,
took a policy decision to create a total of 2,580 floating posts for
the employment of newly graduated MBBS doctors from
government medical colleges in Bihar. These positions were
intended for contractual employment in rural areas for a period
of two years. As per the policy, 1,290 posts would be filled each
year, with each Health Department, Government of Bihar, to the
accountant General, Bihar, through a letter bearing Memo No.
608(2), dated 24.05.2021. The policy further provided that
doctors serving in these positions for the stipulated period
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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would be granted weightage for admission to postgraduate
courses in the following year. Pursuant to this policy, the Health
Department, Government of Bihar, issued an Advertisement
through a Press Note dated 09.09.2021, inviting applications
until 30.09.2021, from MBBS graduates of the year 2020. The
selection of these 1,290 contractual posts of Medical Officers
was to be based on the candidates’ academic performance in
MBBS course. The advertisement also explicitly stated that
doctors appointed under this scheme would receive the benefit
of weightage in postgraduate course admission as a result of
their service. (Annexures P/1 & P/2 of the Writ Petition).
5. Thereafter, the petitioners being eligible for the aforesaid
Advertisement applied and subsequently got appointed by the
order dated 24.03.2022 bearing letter No. 391(2) issued by the
Health Department, Govt. of Bihar. The Petitioner No. 1 got
posted and joined on dated 19.04.2024 at Addl. Primary Health
Centre, Narhan, Vibhutipur, Samastipur; Petitioner No. 2 posted
and joined on dated 13.04.2024 at Addl. Primary Health Centre,
Lalukadera, Phalka, Katihar; and the Petitioner No. 3 got posted
and joined on 21.04.2024 at Addl. Primary Health Centre,
Saroun, Chakai, Jamui. (Annexures P/3 of the Writ Petition).
6. Learned counsel further submitted that, upon the
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completion of the two-year contractual period, the Civil
Surgeon-cum-Chief Medical Officer of the districts of
Samastipur, Katihar, and Jamui issued experience
certificates/experience-cum-character certificates in favor of
Petitioners No. 1, 2, 3, respectively. These certificates were
issued through Memo No. 4048 dated 24.09.2024, Memo No.
1465 dated 24.05.2024, and Memo No. 1326 dated 09.09.2024.
(Annexure P/4 of the Writ Petition)
7. Pursuant to this, the Petitioners applied for admission to
postgraduate medical education for the 2024 session through the
NEET-PG examination conducted by the National Board of
Examinations in Medical Sciences on 11.08.2024. The result
was declared on 23.08.2023, and all the Petitioners qualified,
securing All India Rankings in their respective categories. For
the purpose of conducting counselling for the allotment of seats
in postgraduate medical courses for the 2024 session, the Bihar
Combined Entrance Competitive Examination Board
(BCECEB), Patna, was responsible for filling 50% of the State
Quota seats in approved government and private
hospitals/colleges in Bihar based on the NEET-PG 2024 results.
In this regard, the Health Department, Government of Bihar,
through a letter bearing Memo No. 1314(2), dated 20.09.2024,
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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directed the grant of weightage benefits in postgraduate
admissions to medical officers as per the policy dated
24.05.2021. Furthermore, well before this issuance of this order,
the Health Department, Government of Bihar, had already
communicated its decision through Letter No. 700(1), dated
14.10.2023, addressed to the Board, instructing the
incorporation of the weightage benefit in postgraduate
admissions in accordance with the policy dated 24.05.2021.
Additionally, the Petitioners had submitted a representation
regarding the grant of weightage in their postgraduate
admissions to the Upper Príncipal Secretary, Health Department,
Government of Bihar, on 06.09.2024. (Annexures P/6, P/7 &
P/8 of the Writ Petition)
8. Learned counsel for the Petitioners further submits that a
state-specific merit list was prepared on 28.10.2024.
Subsequently, the Board issued Advertisement No. BCECEB
(PGMAC) 2024/01 dated 03.11.2024, inviting applications
based on the NEET-PG 2024 merit list for participation in the
admission counselling for the 2024 session. Along with this
advertisement, the Board also released the “Post Graduate
Medical Admission Counselling Prospectus 2024.” It has been
brought to the notice of this Court that the Health Department,
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Government of Bihar, through Letter No. 777(1) dated
11.11.2024, directed the Board to grant a 20% weightage benefit
in postgraduate course admissions to medical officers/doctors
appointed under Order No. 391(2) dated 24.03.2022. (Annexure
P/9 of the Writ Petition)
9. Subsequently, the Board issued Advertisement No.
BCECEB (PGMAC) – 2024/04 dated 14.11.2024, informing
candidates about the process of online counselling as per the
seat matrix. After duly understanding the rules outlined in the
advertisement, the Petitioners registered for counselling and
submitted their respective choices for seats in government
medical colleges offering MD and MS courses. Petitioners No. 1
and 2 opted for programs in General Medicine, General Surgery,
Orthopaedics, Dermatology, etc., and submitted their choices on
20.11.2024 and 19.11.2024, respectively. Whereas, Petitioner
No. 3 opted for Radiology, ENT, Anaesthesiology, and
Psychiatry and submitted his choices on 20.11.2024. All the
Petitioners downloaded their rank cards, and at this stage, they
were granted a 20% weightage on their percentile marks
obtained in the NEET-PG 2024 examination, as per the policy
decision of the State Government. Accordingly, Petitioner No. 1
was awarded a total of 95.7113349 percentile marks and secured
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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179th rank in the Unreserved Category. Petitioner No. 2 was
awarded a total of 94.1729706 percentile marks and secured
48th rank in the EWS Category. Petitioner No. 3 was awarded a
total of 72.8804454 percentile marks and secured 269th rank in
the BC Category. (Annexures P/10, P/11 Series, and P/12 Series
of the Writ Petition).
10. Learned counsel for the Petitioners further submits that
the Health Department, Government of Bihar, vide Letter No.
813(1) dated 20.11.2024, addressed to the Board, withdrew its
earlier Letter No. 777(1) dated 11.11.2024, which had granted a
20% weightage for admission to postgraduate courses as per
Order No. 391(2) dated 24.03.2022. Furthermore, the Health
Department directed the Board to take necessary action
concerning Order No. 391(2) dated 24.03.2022, in light of the
provisions of Notification No. 1037(2) dated 27.08.2013 and
Notification No. 695(2) dated 17.06.2014, issued by the Health
Department, Government of Bihar. (Annexure P/13 of the Writ
Petition)
11. It is pertinent to mention that Notification No. 1037(2)
dated 27.08.2013, issued by the Health Department,
Government of Bihar, provides a detailed list of “remote and
difficult areas” in a tabular form, which is subject to
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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modification by the State Government or the Competent
Authority from time to time Furthermore, Notification No.
695(2) dated 17.06.2014, issued by the Health Department,
Government of Bihar, was passed in light of Notification No.
62052 dated 15.02.2012, issued by the Medical Council of India
(MCI). This notification clearly specifies that doctors who have
served for three years or more in health institutions designated
as remote or difficult areas will be eligible for 50% of the
diploma course seats. (Annexure P/14, Annexure P/15 of the
Writ Petition)
12. Learned counsel further submits that following the
withdrawal of weightage through Letter No. 813(1) dated
20.11.2024, Petitioner No. 1 and Petitioner No. 3 submitted
representations before the Health Department, requesting the
continuation of the 20% weightage benefit. However, no
decision was made or communicated to the Petitioners regarding
their request (Annexure P/16 of the Writ Petition)
13. Learned Counsel submits that, based on Letter No. 813(1)
dated 20.11.2024, the Board issued Advertisement No. 2024/06
dated 24.11 2024, notifying the revised merit list and rank cards
for PG Course admission Candidates were instructed to
download their revised rank cards and make necessary
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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modifications to their choices of health institutions for online
counselling for the aforementioned PG admission course.
(Annexure P/17 and P/18 Series of the Writ Petition).
14. In these newly issued rank cards, the Board entirely
withdrew the 20% weightage that was previously granted to the
Petitioners, resulting in a significant reduction in their total
marks and ranks. Consequently, Petitioner No. 1, who had
earlier secured a rank of 179 in the Unreserved Category with
95.7113349 percentile marks, was now placed at rank 780 with
83.2593855 percentile marks. Petitioner No. 2, who was earlier
ranked 48 in the EWS category with 94.1729706 percentile
marks, was now placed at rank 128 with 81.8697172 percentile
marks. Similarly, Petitioner No. 3, who was earlier ranked 269
in the BC category with 72.8804454 percentile marks, was now
placed at rank 336 with 58.8084365 percentile marks. Despite
this setback, the Petitioners once again submitted their choices
for medical colleges and PG courses for online counselling,
following the same selection process as their previous
counselling sessions on 19.11.2024 and 20.11.2024.
15. Thereafter, first online counselling took place on
30.11.2024 and unfortunately these petitioners were not allotted
any seats of their respective choices in Govt Colleges for Post
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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Graduate Courses.
16. Subsequently, the Petitioners filed their first
Supplementary Affidavit, bringing on record the statement of
vacant seats for the second round of counselling under PG-
MAC 2024, which commenced on 17.12.2024, as uploaded on
the website of BCECEB, Patna. Further, the Petitioners filed a
second Supplementary Affidavit, submitting that a coordinate
bench of this Court, vide order dated 20.12.2024, directed the
Respondents to keep two seats vacant in the General Category
and one seat in the Backward Class Category, as per availability.
Based on this order, the Petitioners submitted a representation
on 22.12.2024 before BCECEB and the Health Department,
Government of Bihar, requesting compliance with the Court’s
directive dated 20.12.2024 However, despite the Court’s order,
the Board failed to reserve the specified seats in the second
round of counselling held on 23 12.2024. (Annexure P/23 and
P/25 of the Writ Petition)
17. Learned counsel for the Petitioners further submits that on
08.01.2025, the Board has issued notices bearing Advertisement
No. 2024/11 and 2024/12 for the third round of counselling for
allotment of seats under PGMAC 2024, and the seat matrix of
the third round of counselling of PGMAC 2024. (Annexure P/27
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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and P/28 of the Writ Petition)
18. Thereafter, the petitioners filed the third Supplementary
Affidavit stating that on the 04.02.2025 the BCECEB has
declared result of third round of counselling and has fixed the
dates for taking admission from 05.02.2025 and 07.02.2025 vide
Notice No. 2024/19 dated 03.02.2025. (Annexure P/33 and P/34
of the Writ Petition)
19. Learned Counsel further submits that on the basis of
above result dated 04.02.2025, Petitioner no. I is entitled for
admission to PG Degree Course for Orthopaedics in PMC,
Lakhisarai and Petitioner no. 2 is entitled for admission to PG
Degree Course of General Surgery at ANMMC, Gaya (and also
for other seats as per their merit), if they are granted benefit of
weightage of 20%.
20. Hence, aggrieved by the actions of the Respondents, the
Petitioners have approached this Hon’ble Court seeking the
reliefs as mentioned herein.
21. The Learned Counsel further relies upon the judgment of
the Hon’ble Apex Court in the case of Nutan Kumari vs.
B.R.A. Bihar University and Ors. reported in 2023 SCC
Online SC 1408 relevant paras are mentioned herein below –
19. It has been time and again held in judicial
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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verdicts that the selection process is bound by the
terms and conditions of an advertisement inviting
applications from eligible candidates. Unless it can
be demonstrated that an advertisement has been
issued contrary to any Statute or the applicable rules,
it is binding on all the participants to the point that
not even the Selection Committee has the
jurisdiction to lay down a separate yardstick or basis
for selection as that would be tantamount to
legislating rules of selection. It is equally well
settled that once the process of selection
commences, the criteria prescribed in the
advertisement for conducting the selection of the
eligible candidates cannot be altered. There is sound
logic behind the same which is that if the selection
criteria is tinkered with in midstream, say for
example by lowering the standards, a party can have
a legitimate grievance that had it known that the
criteria would be reduced subsequently, it too could
have applied for the said post
21. In Bedanga Talukdar v. Saifudaullah Khan
(2011) 12 SCC 85, this Court highlighted the fact
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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that any power of relaxation of the stipulated
selection procedure ought to be mentioned in the
advertisement in the following words:-
“29. We have considered the entire
matter in detail. In our opinion, it is
too well settled to need any further
reiteration that all appointments to
public office have to be made in
conformity with Article 14 of the
Constitution of India. In other words,
there must be no arbitrariness resulting
from any undue favour being shown to
any candidate. Therefore, the selection
process has to be conducted strictly in
accordance with the stipulated
selection procedure. Consequently,
when a particular schedule is
mentioned in an advertisement, the
same has to be scrupulously
maintained. There cannot be any
relaxation in the terms and conditions
of the advertisement unless such a
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
15/38power is specifically reserved. Such a
power could be reserved in the
relevant statutory rules. Even if power
of relaxation is provided in the rules, it
must still be mentioned in the
advertisement. In the absence of such
power in the rules, it could still be
provided in the advertisement.
However, the power of relaxation, if
exercised, has to be given due
publicity. This would be necessary to
ensure that those candidates who
become eligible due to the relaxation,
are afforded an equal opportunity to
apply and compete. Relaxation of any
condition in advertisement without
due publication would be contrary to
the mandate of equality contained in
Articles 14 and 16 of the Constitution
of India.
[Emphasis added]
(Also refer: Krishna Rai v. Banaras
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
16/38Hindu University (2022) 8 SCC 713)
22. It is also a part of settled service jurisprudence
that merely by applying for a post pursuant to an
advertisement, a candidate does not automatically
acquire any vested right of selection. He only
acquires a right for being considered for selection
strictly in accordance with the extant rules. This
Court has held in N.T. Devin Katti v. Karnataka
Public Service Commission (1990) 3 SCC 157 as
follows:
“11. There is yet another aspect of the
question. Where advertisement is
issued inviting applications for direct
recruitment to category of posts, and
the advertisement expressly states that
selection shall be made in accordance
with the existing rules or government
orders, and if it further indicates the
extent of reservations in favour of
various categories, the selection of
candidates in such a case must be
made in accordance with the then
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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Candidates who apply, and undergo
written or viva voce test acquire
vested right for being considered for
selection in accordance with the terms
and conditions contained in the
advertisement, unless the
advertisement itself indicates a
contrary intention. Generally, a
candidate has right to be considered in
accordance with the terms and
conditions set out in the advertisement
as his right crystallizes on the date of
publication of advertisement, however
he has no absolute right in the matter.
If the recruitment Rules are amended
retrospectively during the pendency of
selection, in that event selection must
be held in accordance with the
amended Rules. Whether the Rules
have retrospective effect or not,
primarily depends upon the language
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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ascertain the legislative intent. The
legislative intent is ascertained either
by express provision or by necessary
implication, if the amended Rules are
not retrospective in nature the
selection must be regulated in
accordance with the rules and orders
which were in force on the date of
advertisement. Determination of this
question largely depends on the facts
of each case having regard to the
terms and conditions set out in the
advertisement and the relevant rules
and orders. Lest there be any
confusion, we would like to make it
clear that a candidate on making
application for a post pursuant to an
advertisement does not acquire any
vested right of selection, but if he is
eligible and is otherwise qualified in
accordance with the relevant rules and
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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advertisement, he does acquire a
vested right of being considered for
selection is accordance with the rules
as they existed on the date of
advertisement. He cannot be deprived
of that limited right on the amendment
of rules during the pendency of
selection unless the amended rules are
retrospective in nature.”
[Emphasis added]
(Also refer: Sureshkumar Lalitkumar Patel v. State
of Gujarat 2023 SCC Online SC 167)
22. Further, once an advertisement has been issued and the
selection criteria prescribed, there is little scope for relaxing the
norms, more so. by the Selection Committee unless and until it
can be adequately demonstrated that it had the power to do so.
We may allude to a decision of this Court in Secretary, A.P.
Public Service Commission and B. Swapna (2005) 4 SCC 154
which highlights the adverse consequences of interfering with
the criteria of selection laid down under the rules in the
following words:
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
20/38“14. The High Court has committed an error
in holding that the amended rule was operative As
has been fairly conceded by learned counsel for
Respondent 1 applicant it was the unamended rule
which was applicable. Once a process of selection
starts, the prescribed selection criteria cannot be
changed. The logic behind the same is based on fair
play. A person who did not apply because a certain
criterion eg minimum percentage of marks can
make a legitimate grievance, in case the same is
lowered, that he could have applied because he
possessed the said percentage. Rules regarding
qualification for appointment if amended during
continuance of the process of selection do not
affect the same. That is because every statute or
statutory rule is prospective unless it is expressly or
by necessary implication made to have
retrospective effect. Unless there are words in the
statute or in the rules showing the intention to
affect existing rights the rule must be held to be
prospective. If the rule is expressed in a language
which is fairly capable of either interpretation it
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
21/38ought to be considered as prospective only (See P
Mahendran v. State of Karnataka [(1990) 1 SCC
4111990 SCC (L&S) 163 (1990) 12 ATC 727] and
Gopal Krushna Rath v. M.A.A. Baig [(1999) | SCC
544 1999 SCC (L&S) 325].)
15. Another aspect which this Court has
highlighted is scope for relaxation of norms.
Although the Court must look with respect upon
the performance of duties by experts in the
respective fields, it cannot abdicate its functions of
ushering in a society based on rule of law. Once it
is most satisfactorily established that the Selection
Committee did not have the power to relax
essential qualification, the entire process of
selection so far as the selected candidate is
concerned gets vitiated. In P.K. Ramachandra Iyer
v. Union of India [(1984) 2 SCC 141: 1984 SCC
(L&S) 214] this Court held that once it is
established that there is no power to relax essential
qualification, the entire process of selection of the
candidate was in contravention of the established
norms prescribed by advertisement. The power to
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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relax essential qualification, the entire process of
selection of the candidate was in contravention of
the established norms prescribed by advertisement.
The power to relax must be clearly spelt out and
cannot otherwise be exercised.
[Emphasis added]
23. Thereafter the Counsel for the petitioner further
mentioned the reference of the case of Uday Pratap Singh and
Ors. vs The State of Bihar and Ors, reported in 1994 Suppl
(3) SCC 451 , the relevant para of this case has been cited
herein below for the reference-
6. By a catena of decisions of this Court, it is
now well-settled that by an executive order the
statutory rules cannot be whittled down nor can any
retrospective effect be given to such executive
order so as to destroy any right which became
crystallised in this connection, it is profitable to
refer a decision of this Court in T.R. Kapur v. State
of Haryana [1986 Supp SCC 584 (1987) 2 ATC 595
AIR 1987 SC 415] wherein it is held that rules
framed under Article 309 of the Constitution cannot
affect or impair vested rights, unless it is
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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specifically so provided in the statutory rules
concerned It is obvious that an executive direction
stands even on a much weaker footing. It is true, as
laid down in Bishan Sarup Gupta v. Union of India
[(1973) 3 SCC1 1973 SCC (L&S) 1], that effect of
upgradation of a post is to make the incumbent
occupy the upgraded post with all logical benefits
flowing therefrom and can be treated as promoted
to the post. Still it cannot be gainsaid that no
retrospective effect could be given to any merger of
erstwhile lower branch into higher branch in the
cadre so as to affect the vested rights of incumbents
already occupying posts in the erstwhile higher
branch of the cadre. In the present case it has to be
kept in view that the contesting respondents were
directly recruited and appointed in the Senior
Branch on 12-5- 1974 and 25-5-1974 respectively,
while the appellants were appointed on 2-11-1975
in the merged cadre. It is true that their order of
appointment purports to give them appointment
retrospectively from 1-4-1974 but such effect
cannot be given so as to destroy the seniority rights
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
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of the writ petitioners, respondents herein, who
were inducted as direct recruits in the Senior
Branch prior to 2-11-1975. The earlier decision of
the Patna High Court in the case of Kartik Charan
Jha case [W.P. Nos. 4827 of 1984 & 2335 of 1982,
decided on 8.4.1986 (Pat HC)] was rightly
distinguished by the Division Bench in the present
case as in Jha case [W.P. Nos. 4827 of 1984 & 2335
of 1982, decided on 8.4.1986 (Pat HC)] the direct
recruits were inducted much after 2-11-1975 when
the mergees got their Junior Branch’s appointments
upgraded to the combined merged cadre and
became a part and parcel of the Senior Branch
earlier to these direct recruits, while in the present
case all the contesting respondents had entered the
Senior Branch much prior to 2-11-1975 as seen
above. Therefore, they were entitled to be treated as
seniors to the appellants. It is true that against
earlier decision of the High Court, special leave
petition was rejected by this Court but as it was not
a speaking order, it cannot be said that this Court
had put its imprimatur on the observations found in
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
25/38
paragraph 14 of the Judgment in Jha case [W.P.
Nos. 4827 of 1984 & 2335 of 1982. decided on
8.4.1986 (Pat HC)] which we have referred to
earlier As held in the decision of this Court in
Indian Oil Corpn. Ltd. v. State of Bihar [(1986) 4
SCC 146: 1986 SCC (L&S) 740 AIR 1986 SC
1780] when special leave petition is summarily
rejected, it occasions no merger of the order of the
lower court in the order of the Supreme Court, and
even such an order can be challenged in the High
Court It is true that even the review petition filed
against the decision in Jha case W.P. Nos. 4827 of
1984 & 2335 of 1982, decided on 8.4.1986 (Pat
HC)] was rejected by the High Court. But that is
neither here nor there It is not possible to agree
with the observations of the High Court in Jha case
[W.P. Nos 4827 of 1984 & 2335 of 1982, decided
on 8.4.1986 (Pat HC)] made in paragraph 14 that
on account of the merger, the erstwhile incumbents
in Junior Branch became substantively appointed to
the merged cadre with effect from 1-4-1974. That
observation runs counter to the well- established
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
26/38
legal position that by executive fiat no such
retrospective appointments can be given to any
incumbent so as to destroy the seniority of
employees who had entered the cadre much prior to
their entry. Reliance placed on the decision of this
Court in Director, Lift Irrigation Corpn. Ltd. v.
Pravat Kıran Mohanty [(1991) 2 SCC 295: 1991
SCC (L&S) 472 (1991) 16 ATC 467] for
submitting that a policy decision to merge the two
branches of a cadre cannot be subjected to a
judicial review is also of no avail to the learned
counsel for the appellants for the simple reason that
in that case the Court was not concerned with the
consideration about any retrospective effect of such
a policy decision. Similarly, the decision of this
Court in Nirmal Kumar Choudhary v. State of
Bihar [1988 Supp SCC 107: 1988 SCC (L&S) 457
(1988) 6 ATC 881], which laid down that in the
absence of any statutory rules seniority can be
reckoned in the common cadre considering all the
incumbents, also cannot be of any avail to the
appellants as at the relevant time when the
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
27/38
respondents entered the cadre as direct recruits, the
erstwhile rules were already holding the field, and
the appellants were not on the scene. On the other
hand, pursuant to the merger of both these branches
fresh rules were required to be framed under
Article 309 of the Constitution even after 1-4-1975
and which were not framed till the appellants
entered the merged cadre. Learned counsel for the
appellants lastly placed reliance on the decision of
this Court in Union of India v. Dr S Krishna
Murthy [(1989) 4 SCC 689: 1990 SCC (L&S) 23:
(1989) 11 ATC 892] for submitting that there is no
fundamental right of anyone to a particular
seniority. This decision also cannot be of any
assistance to the appellants as in the present case as
rightly found by the High Court if the appellants
who entered the merged cadre of the Senior Branch
only on 2-11-1975 are to be treated as senior to the
respondents who had entered the Senior Branch as
direct recruits prior thereto, the respondents would
clearly get their constitutional rights guaranteed
under Articles 14 and 16 violated.
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
28/38
24. Learned counsel for the petitioner lastly relied upon the
judgment of this court passed in the case bearing LPA No. 255-
256 of 2020, wherein this court vide order dated 28.05.2020
considered the both the Notification No. 1037 dated 27.08.2013
and Notification No. 695 dated 17.06.2014 while deciding the
question as to whether Notification dated 27.08.2013 and
17.06.2014 actually grant benefit of incentive or not was
pleased to refer Para 63 which has been reiterated herein below:
63. Mere reading of two Notifications, it is
apparent that Notification dated 27.08.2013
was issued to grant incentive of 10% to 30%
in marks obtained in NEET Examination to
the in service doctors of the State
Government who had served in
remote/difficult areas from one year to three
years or more for admission in P.G. Degree
Course in view of Proviso to 9(IV) of
Regulation whereas Notification dated
17.06.2014 was issued to provide reservation
of 50% in P.G. Diploma Course to in-service
Doctor who served in rural areas for three
years. 50% reservation in P.G. Diploma
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
29/38Course to doctors serving in rural areas is
mandatory and State has only to notify
remote/difficult areas for said purpose.
The Division Bench of this Hon’ble Court upheld the
stand of the Medical Council of India (MCI) that the
terms “remote,” “distant,” and “rural areas” under Clauses
9(4) and 9(8) of the Postgraduate Medical Education
(PGME) Regulations, 2000 (as amended in 2018) hold
identical meaning and interpretation. Consequently, once
the State Government has identified these areas for
granting 50% reservation in postgraduate diploma courses
under Clause 9(8), the same notification can be utilized
for granting weightage under the proviso to Clause 9(4)
of the said Regulations. Furthermore, this Hon’ble Court
held that the Notification dated 17.06.2014, although
issued in the context of Clause 9(8) of the PGME
Regulations, 2002 of the MCI, must be applied for the
purpose of conferring benefits to doctors under the
proviso to Clause 9(4). Additionally, the term “rural area”
must be read in conjunction with and as part of the
Notification dated 27.08.2013.
25. Learned counsel for the Respondent No. 4 & 5 submits
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
30/38that it is apt to mention here that the following facts, relevant for
adjudication of the issues raised by the petitioners in the Writ
Petitions under reply:
a. Letter No 739/2024 dated 02.06.2024 addressed to the
Additional Chief Secretary, Health Department, Bihar.
Patna was spent under the signature of the Officer-on-
special Duty, BCECE Board for approval of the draft of
the prospectus w.r.t POST GRADUATE MEDICAL
ADMISSION COUNSELLING (PGMAC) 2024, for
conducting counselling of State quota seats in
Govt/Private Medical Colleges in Bihar on the basis of
result of NEET-PG (MD/MS/PGT)-2024 conducted by
the National Board Examination, New Delhi (Annexure
R4/A).
b. After making necessary amendments/corrections in the
prospectus, approval was granted by letter no. 700(1)
dated 14.10.2024 issued under the signature of the
Controller, Department of Health, Bihar, Patna, addressed
to the Officer-on-Special Duty, BCECE Board. In
column-3 of the aforesaid letter it was mentioned that by
the Departmental Letter No. 1314(2) dated 20.09.2024 a
decision has been taken regarding giving the benefit of
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
31/38weightage for admission in post graduate course to the
general Medical Officers appointed on Contract against
the floating post, having served for two years in Rural
areas. (Annexure R3/B)
c. A letter was issued bearing letter no. 1637/2024 dated
16.10.2024 addressed to the Additional Chief Secretary,
Department of Health, Govt. of Bihar, mentioning therein
inter-alia that in column-3 of the letter no 700 (1)
(Annexure-R/B to dated 14.10 2024 this counter affidavit)
letter no 1314 (2) dated 20.09.2024 has been referred
whereby a decision has been taken regarding giving the
benefit of weightage for admission in post graduate
course to the general Medical Officers appointed on
Contract against the floating post, having served for
whereas in column two years in Rural Areas, of the no 5.4
(a) (1) approved prospectus it is mentioned:
“50% Graduate seats of the Post Courses,
Diploma available in Govt. Medical Colleges
reserved of Bihar, will be Bihar Health
Services Doctor as well as Contractual
Doctors in the of Bihar Govt. Service, who
have served for at least three years in remove
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
32/38and difficult areas of the state notified as per
Health Department, Govt. of Bihar vide
notification no. 2/कोरर -59/13-695 (2)/ सवा०,
ददनांक 17.06.2014.”
Similarly, in column 5.4 (b) (i) it has been
mentioned that:
……. incentive marks upto maximum terms
of Regulation 9 (iv) issued by the MCI
notification no.MCI-18(1)-2018-
Med./100818 dated 05.04.2018 will be
provided for admission in PG degree courses
to the Medical Officers who are in service of
Bihar Govt. Public authority in
remote/difficult 30% in area….
It was also pointed out in the said letter that
the result of the NEET- PG-2024 provided in
National Board of Examinations (NBE), the
marks of the candidates were not made
available by the NBE and therefore in that
situation it is not clear as to how the
incentive marks will be calculated.
(Annexure R3/C)
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
33/38d. In the light of the aforesaid letter no. 1637/2024 dated
10.10.2024 (Annexure-R3/C to this counter affidavit),
column 5.4 (a) (v) has been incorporated in the prospectus
as mentioned hereunder:
“As communicated by the Department of
Health, Govt. of Bihar vide letter number-
स०स० ०/प०दन०-06/2024-700(1) dated 14 10
2024 that decision taken vide department
letter no. 1314 (2) dated benefit of 21.09.
2024 weightage for admission in Post
Graduate Medical Courses so those doctors
who served in rural area for at least 2 years
against floating post of medical officer
(contractual) will be given.” (Anxure R3/D)
e. A notice was published through no. BCECEB
(PGMAC)-2024/01 inviting form online from the
interested advertisement dated 03 11.2024 application in
prescribed qualified. NEET-PG-2024 eligible and
candidates on the basis of merit list of NEET-PG-2024 for
appearing at the Post Graduate Medical Admission
Counselling (PGMAC)-2024 in order to selection of
candidates for admission in Ist Year Post Graduate
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
34/38Degree/Diploma Courses in Govt/Private Medical
colleges of Bihar. (Annexure R3/E)
f. In response to letter no 1637/2024 dated 16.10.2024 of
the BCECE Board (Annexure-R3/C to this counter
affidavit), letter number-स०स०-1/प०दन०-06/2024-777(1)
dated 11.11.2024, was issued under the signature of
Controiler Examination, Health Department. Bihar Patna,
informing the Officer-on-Special Duty, BСЕСЕ Board
that the steps should be taken for providing the benefit of
20% weightage for enrolment in Post Graduate courses to
the doctors who were appointed and posted by the order
contained in Memo No. 391(2) dated 24.03.2022
(Annexure-P3 to the writ petition) of the Health
Department after completing two years of service.
(Annexure R3/F)
g. On the basis of the letter no. 813 (1) dated 20.11.2024
(Annexure-R3/G series to this counter affidavit) revised
Rank card of PGMAC (Degree)-2024 was issued
(Annexure-P/18 series to the writ petition).
26. Learned counsel for the Respondent No. 2 & 3 submits
that by the order dated 06.02.2025 passed in this case, this court
has directed the State to consider the decision of the Division
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
35/38
Bench dated 28.05.2020 passed in LPA 255 of 2020 for the
applicability of the Notification No. 1037(2) dated 27.08.2013
as well as Departmental Notification No. 712(2) dated
20.06.2014 to the Medical Officer appointed on floating post. It
is pertinent to mention here that aforesaid LPA 255-256 of 2020
have been preferred by the State of Bihar aggrieved with the
Order dated 27.04.2020 passed in CWJC No. 15523/2018.
27. Learned Counsel for the Respondent No. 2 & 3 submits
that thereafter in light of direction of this court in the LPA No.
255/2020, the under Secretary, Health Department, Govt. of
Bihar vide Departmental Letter No. 623(1) dated 26.06.2020
had already requested the examination controller, B.C.E.C.E
Board Patna, to ensure compliance of the order passed in the
LPA No. 255/2020 also taking into account the Departmental
Notification No. 1037 (2) dated 27.08.2013 as well as
Departmental Notification No. 712(2) dated 20.06.2014 with a
further request to make necessary amendment in PG Prospectus
and also prepare revised merit list. (Annexure R/A)
28. Learned Counsel further submitted that the officer on
Special Duty, BCECE Board, Patna vide Ref. No. 1637/2024
dated 16.10.2024 (Annexure R/G) addressed to the Addl. Chief
Secretary, Health Department, Bihar sought guidelines on the
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
36/38
issue of grant of weightage to General Medical Officers
(Contractual) who have served for two years in rural area as the
Board is facing difficulty or confusion in giving the benefit of
weightage in view of the following provisions –
Clause 5.4 (a)(i) of the approved prospectus
-“50% seats of the Post Graduate Diploma
Courses, available in Govt. Medical Colleges
of Bihar, will be reserved of Bihar Health
Services Doctor as well as Contractual
Doctors in the Bihar Govt. Service, who
have served for at least three years in remote
and difficult areas of the State notified as per
Health Department, Govt. of Bihar vide
Notification No. 2/Court-59/13-695(2)/Swa.,
dated 17.06.2014″ Clause 5.4 (b) (i) of the
approved prospectus – Incentive marks upto
maximum 30% in terms of Regulation 9 (iv)
issued by the MCI Notification No. MCI
18(1)-2018-Med./100818 dated 05.04.2018
will be provided for admission in PG
Courses to the Medical Officers who are in
service of Bihar Govt. @ Public authority in
remote/difficult area…….”
29. Lastly, it is manifest from the above facts and
circumstances that petitioners, who were appointed on contract
basis pursuant to Departmental Memo No. 391(2) dated
24.03.2022 are having difficulty in getting 20% weightage
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
37/38
marks in PG admission in view of the condition laid down under
earlier Departmental Notification No. 695(2) dated 17.06.2014
to the following effect “remote and difficult areas identified for
the purpose of 50% seat in Diploma Course to such medical
Officers who have worked there years or more in all health
centres barring medical centres/hospitals situated in State
Headquarter and District Headquarter.”
30. Heard the parties at length.
31. It is an admitted fact that earlier the petitioners were
granted the benefit of 20% weightage based on their
successfully completion of two years of contractual service in
terms of the letter no.777(1) dated 11.11.2024, but thereafter, a
Letter bearing No.813(1) dated 20.11.2024, was issued under
the signature of Additional Secretary, Health Department, Bihar
by which Letter No.777(1) dated 11.11.2025 was withdrawn and
subsequently 20% weightage has been removed. Therefore, the
petitioners have not made themselves in the merit list for the
admission in PG-MAC.
32. A counter affidavit has also been filed on behalf of the
State Government/Respondent No.2 & 3, in which it has been
stated that in light of the direction of this Court vide order dated
28.05.2020 passed in LPA No.255-256/2020, the Under
Patna High Court CWJC No.19314 of 2024 dt.25-02-2025
38/38
Secretary, Health Department, Government of Bihar in the
departmental letter No.623(1) dated 26.06.2020 had already
requested the Examination Controller of BCECEB, Patna to
comply with the order of this Court passed in LPA No.255-
256/2020 and also take into account the Departmental
Notification No.1037(2) dated 27.08.2013 as well as the
Departmental Notification No.712(2) dated 20.06.2014 with a
further request to make necessary amendment and also prepare
revised merit list of PGMAC 2024.
33. Considering the submissions advanced on behalf of the
parties, I direct the respondent no.4 and 5 to give weightage of
20% to the petitioners and revise the entire result within a
period of 15 days from the date of production/receipt of a copy
of this order.
34. With the aforesaid direction, this writ application stands
allowed.
(Anjani Kumar Sharan, J)
shikha/-
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