Tuesday, 17 December 2019

Supreme Court: Candidate Not Estopped From Challenging Selection Process if there is misconstruction of statutory rules

The maintainability of

the very challenge by the appellant has been questioned on the ground
that she having partaken in the selection process cannot later challenge it
due to mere failure in selection. The counsel for respondents relied upon a
catena of decisions of this Court to substantiate his objection.
17. It is well settled that the principle of estoppel prevents a candidate
from challenging the selection process after having failed in it as iterated
by this Court in a plethora of judgements including Manish Kumar
Shahi v. State of Bihar (2010) 12 SCC 576, observing as follows:
“16. We also agree with the High Court that after having taken part
in the process of selection knowing fully well that more than 19%
marks have been earmarked for viva voce test, the appellant is not
entitled to challenge the criteria or process of selection. Surely, if the
appellant's name had appeared in the merit list, he would not have
even dreamed of challenging the selection. The appellant invoked
jurisdiction of the High Court under Article 226 of the Constitution of
India only after he found that his name does not figure in the merit
list prepared by the Commission. This conduct of the appellant
clearly disentitles him from questioning the selection and the High
Court did not commit any error by refusing to entertain the writ
petition.” See also: Madan Lal v. State of J&K [(1995) 3 SCC], Marripati Nagaraja v. State of A.P.[(2007) 11
SCC 522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171] and K.A.
Nagamani v. Indian Airlines [(2009) 5 SCC 515]
The underlying objective of this principle is to prevent candidates from
trying another shot at consideration, and to avoid an impasse wherein
every disgruntled candidate, having failed the selection, challenges it in the  hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the
candidate by agreeing to participate in the selection process only accepts
the prescribed procedure and not the illegality in it. In a situation where a
candidate alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, the same cannot be condoned merely
because a candidate has partaken in it. The constitutional scheme is
sacrosanct and its violation in any manner is impermissible.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9482 OF 2019

Dr. (Major) Meeta Sahai  Vs  State of Bihar 

Author:
SURYA KANT, J.

Leave granted.
2. The present appeal has been preferred against the order dated
24.11.2016 passed by a Division Bench of Patna High Court in LPA No.
1860/2016, whereby appellant’s work experience in an Army Hospital was
not considered for grant of weightage and consequential selection and
appointment as General Medical Officer in the State of Bihar, on the

ground that Rule 6(iii) of the Bihar Health Service (Appointment and
Service Conditions) Rules, 2013 (hereinafter, “Rules”) mandated that only
services rendered in employment of a hospital run by the Government of
Bihar could count under the head of work experience.
FACTUAL MATRIX
3. Ostensibly to rectify a constant shortage of doctors in Bihar which
was adversely impacting public health, the State of Bihar decided to fill
vacant posts in hospitals. Accordingly, an advertisement was published by
the Bihar Public Service Commission (hereinafter, “Commission”) in
various local newspapers on 18.07.2014, inviting applications from eligible
candidates for filling up 2301 vacant posts of General Medical Officer in
Bihar. The selection process was elucidated in Clause 5 of the
Advertisement wherein general subcadre
doctors were to be selected on
the basis of a merit list prepared by giving weightage for academic
qualifications (marks obtained in MBBS 50
marks, and higher degree 10
marks), work experience (5 marks per year for a maximum of 25 marks)
and marks obtained in interview (out of 15 marks). It is important to
reproduce the relevant portion of the advertisement to aptly comprehend
the selection criteria which is to the following effect:
“5. Selection Process – For appointment of the doctors in the general
sub cadre the candidates shall be selected on the basis of the merit list
prepared on the basis of the academic qualification, work experience

and the marks obtained in the interview. In case there are more
applications than the vacancy/vacancies, five times candidates shall be
invited for the interview as against the vacancy/vacancies prescribed
reservation wise.
100 marks shall be prescribed for academic qualification, work
experience and interview. The 100 marks shall be counted as underMarks
obtained in M.B.B.S. – total 50 marks
Master’s degree or higher degree – total 10 marks
Work experience after appointment on regular/contract basis in
the Government hospitals (the work experience of the Government
hospital of the Government of Bihar only shall be counted) – total
25 marks
But 05 marks shall be given for the work experience of the whole year,
thus, maximum 25 marks shall be given.
Oral interview – total 15 marks.
Note – (a) The marks given to any candidate on the basis of the M.B.B.S.
course shall be on multiplication of 0.5 with the total of all the
examinations of the said course, viz., if the total of the total marks
obtained by any candidate in all examinations of the M.B.B.S. coms to
50%, then he shall be given 50% x 0.5 = 25 marks.
(b) (sic)
(c) There shall be requirement of minimum 30 marks on the basis of
academic qualification, work experience and interview for consideration
of any candidate for appointment in the general duty sub cadre.”
(emphasis supplied)
4. Pursuant to this advertisement, the appellant also applied for the
post of General Medical Officer. She was called for an interview where she
was informed that no marks could be granted under the head of ‘work
experience’ as she lacked experience in a hospital run by the Government
of Bihar. Post conduction of interview, a merit list was prepared. The

appellant was unsuccessful in securing a place in the merit list as she had
obtained only 42.61 marks which did not meet the prescribed cut off of
53.04 marks for the General Category.
5. The aggrieved appellant filed a writ petition before the Patna High
Court challenging Clause 5(iii) of the advertisement issued by the
Commission to the extent it mandated that only work experience in
hospitals of Government of Bihar shall be considered for awarding marks
for ‘work experience’. The appellant contended that this Clause of the
advertisement was in contravention of the Rules (which didn’t prescribe
any such limitation of work experience only being in hospitals of the
Government of Bihar). She was upset that her work experience in the Army
Medical Corp Hospital had been disregarded while others who served in
Bihar Government hospitals were given due weightage. She felt that if not
for this erroneous interpretation of the Rules, she would have been selected
for the post of General Medical Officer. Similarly, some other candidates
also approached the Patna High Court, agitating their exclusion pursuant
to the nonconsideration
of work experience in nonprivate
hospitals other
than those administered by the Government of Bihar.
6. A Learned Single Judge of the High Court dismissed all these writ
petitions with a brief order holding that the validity of such provision had
already been upheld by a Division Bench of the Patna High Court in Dr.

Dharmbir Kumar v. State of Bihar1 and, therefore, the appellant could
not plead that exclusion of service rendered in Army Hospitals, while
evaluating work experience, resulted in discrimination.
7. Unsatisfied with this Order, the appellant filed a Letter Patent Appeal,
with the foremost plea that the condition in the advertisement which
restricted the work experience to only hospitals of Government of Bihar,
was contrary to the Rules which gave weightage for experience in any
Government hospital for the purpose of drawing the merit list. Further, it
was highlighted that in Dharmbir (supra) the Division Bench had
dismissed a petition relating to appointment of Dentists wherein a
challenge had been made against grant of benefit of experience to
contractual employees. This was contended as being different from the
present case. Additionally, the appellant placed reliance on the English
version of the analogous Bihar Dentist Service Rules, 2014 which explicitly
defined the term ‘Government hospital’ to include hospitals run by both
Central and State Government, to show that the same should be
transposed to the present instance.
8. The Division Bench placed reliance on several decisions of this Court
including Ram Surat Mishra v. State of U.P.2 and M/s J.K. Jute Mills
1 2015 (2) PLJR 916
2 (2008) 7 SCC 409

Co. Ltd. V. State of U.P.3, and followed the dictum therein to note how the
Hindi version only referred to Government of Bihar and there being a
conflict between English and Hindi versions, the latter version of the Bihar
Dentist Service Rules, 2014 would prevail. The Bench further observed that
Rule 2(a) of the Dentist Rules defined ‘Government’ as Government of Bihar
and that thus work experience under Rule 6(iii) must be read conjointly
with Rule 2(a) which would show that only work experience in hospitals of
Government of Bihar ought to be considered for awarding marks under the
head of work experience. The intracourt
appeal was thus dismissed, giving
rise to further challenge through this Special Leave Petition.
CONTENTION OF PARTIES
9. Learned Counsel for the appellant vehemently argued that the
Division Bench judgement was erroneous. He hammered clause 5(iii) of the
advertisement and urged that the restriction of work experience to only
hospitals of Government of Bihar was arbitrary and contrary to Rule 5 and
Rule 6(iii) of the Rules, which read as under:
“5. For appointment in General Duty Sub Cadre minimum educational
qualification shall be MBBS degree from a recognized university:
Provided that the postgraduate or higher degree holder in any
subject of Medical science and the doctors appointed on
regular/contract basis in any Government hospital shall be given
weightage for work experience.
3 AIR 1961 SC 1534

6. For selection of doctors to appointment in General subcadre,
candidates shall be given marks for their educational qualification and
work experience. Apart from that, they shall also be given marks for the
oral interview.
A total 100 marks shall be for educational qualification, work experience
and interview. The break up of these 100 marks shall be as follows:
(i) Marks obtained in MBBS Total 50 Marks
(ii) PG or Higher Degree Total 10 Marks
(iii) Work Experience after appointment in Total 25 Marks
Government hospital on contract/regular basis.
Provided that for each complete one year of work experience, candidates
will be given 5 and thus maximum 25 marks will be given.
(iv)Interview: Total 15 Marks
Note: (a) The determination of marks to be given to candidate for
MBBS shall be in multiple of 0.5 of total percentage of
marks obtained in the examination of said course. Thus, if
a candidate has obtained 50% marks, he/she shall get 50
x 0.5 = 25 marks
(b)Minimum 30 marks will be required for consideration for the
appointment in the General sub cadre and specialist sub cadre.”
(emphasis supplied)
10. He argued that the Rules did not define the term ‘Government
hospital’ and that hence its common meaning be taken. Since the Rules
have been formulated under Article 309 of the Constitution, they carried
the same force as a legislation and the Commission or the State
Government could not have restricted the meaning of “any Government
hospital” to “Government hospital of the Government of Bihar only”
through the advertisement. It was also argued that exclusion of services
rendered in nonBihar
Government hospitals would be discriminatory for it

failed to further the object of the Rules to promote recruitment of better
qualified doctors and recognize technical knowledge or expertise gained in
this field. The learned Counsel although admitted that the work experience
gained in Government hospitals was different than private hospitals owing
to doctors’ interactions with poor patients and them being accustomed to
working with minimal infrastructure, nevertheless contended that the
services rendered in hospitals of Government of Bihar offered no special
experience as compared to other nonprivate
hospitals in the State; and
that no public purpose was served for both categories similarly gave
medical treatment to swarms of patients, in return for a meagre salary.
11. The counsel for appellant further based his argument on Rule 5 &
6(iii) of the Rules which contain the expression ‘any Government hospital’,
to contend that it must be interpreted to include all Government hospitals
in Bihar, including those run by the Central Government and other public
bodies to avoid any unconstitutionality. It was contended that the
definition of ‘Government’ as under Rule 2(a) of the Rules did not control
the meaning of the term ‘Government hospital’ since presence of ‘any’ as a
prefix to ‘Government hospital’ was indicative of the fact that the Rules
envisaged all Government hospitals in its ambit. He made a pointed
reference to the definitional clause contained in the Rules, which has been
extracted below:

“2. Definitions. – In this Rule unless anything otherwise
requires in the context:
(a) ‘Government’ means Government of Bihar.
xxxxxxxxx”
(emphasis supplied)
12. It was also urged that the observation of the High Court with respect
to the ascendancy of Hindi version over English version of the Bihar
Dentist Service Rules, 2014 would be inapplicable to the present case since
the issue at hand pertains to a different enactment which did not have any
conflict between versions. The appellant stated that reference to the
English version of the Dentist Rules which explicitly defined ‘Government
hospital’ as both Government of Bihar and Central Government hospitals,
was merely illustrative to support an argument that ‘Government hospital’
can have a different meaning than ‘Government’ and thus her case ought
not to have been dismissed on this count.
13. On the other hand, learned counsel for Respondents questioned the
maintainability of the appellant’s challenge and urged that once a
candidate had participated in a recruitment process, he/she could not at a
later stage challenge its correctness merely because of having failed in
selection. It was contended that the appellant was taking ‘two shots’ at
success, and her challenge was opposed for being opportunistic. Further it

was argued by the respondents that the appellant’s attempt to draw
inference from the Dentist Rules has rightly not been accepted by the High
Court. Moreover, the advertisement was shown as being merely
clarificatory in stating that marks shall only be granted for work experience
in hospitals of Government of Bihar.
14. Additionally, the Commission has filed a separate counter affidavit
supplementing the stand taken by other respondents with the plea that the
Courts ought not to interfere with the selection procedure as stipulated by
the employer unless it was found to be patently illegal. It is urged by the
Commission that the Division Bench correctly interpreted the meaning and
ambit of the term ‘Government hospital’ in light of Rule 2(a) of the Rules
which defines ‘Government’ as Government of Bihar, and hence ruled that
the advertisement is in accordance with the subject Rules.
FINDINGS AND ANALYSIS
15. We may at the outset clarify that question of reconciling the Hindi
and English versions does not arise in the present case for both versions of
the Rules are similarly worded. We thus proceed under the assumption
that Hindi will prevail over the English version in case of any conflict.
Preliminary Issues
16. Furthermore, before beginning analysis of the legal issues involved, it
is necessary to first address the preliminary issue. The maintainability of

the very challenge by the appellant has been questioned on the ground
that she having partaken in the selection process cannot later challenge it
due to mere failure in selection. The counsel for respondents relied upon a
catena of decisions of this Court to substantiate his objection.
17. It is well settled that the principle of estoppel prevents a candidate
from challenging the selection process after having failed in it as iterated
by this Court in a plethora of judgements including Manish Kumar
Shahi v. State of Bihar4, observing as follows:
“16. We also agree with the High Court that after having taken part
in the process of selection knowing fully well that more than 19%
marks have been earmarked for viva voce test, the appellant is not
entitled to challenge the criteria or process of selection. Surely, if the
appellant's name had appeared in the merit list, he would not have
even dreamed of challenging the selection. The appellant invoked
jurisdiction of the High Court under Article 226 of the Constitution of
India only after he found that his name does not figure in the merit
list prepared by the Commission. This conduct of the appellant
clearly disentitles him from questioning the selection and the High
Court did not commit any error by refusing to entertain the writ
petition.”5
The underlying objective of this principle is to prevent candidates from
trying another shot at consideration, and to avoid an impasse wherein
every disgruntled candidate, having failed the selection, challenges it in the
4 (2010) 12 SCC 576
5 See also: Madan Lal v. State of J&K [(1995) 3 SCC], Marripati Nagaraja v. State of A.P.[(2007) 11
SCC 522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171] and K.A.
Nagamani v. Indian Airlines [(2009) 5 SCC 515]

hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the
candidate by agreeing to participate in the selection process only accepts
the prescribed procedure and not the illegality in it. In a situation where a
candidate alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, the same cannot be condoned merely
because a candidate has partaken in it. The constitutional scheme is
sacrosanct and its violation in any manner is impermissible. In fact, a
candidate may not have locus to assail the incurable illegality or derogation
of the provisions of the Constitution, unless he/she participates in the
selection process.
19. The question of permissibility of giving weightage for ‘work
experience’ in government hospitals is also not the bone of contention in
this case. Medicine being an applied science cannot be mastered by mere
academic knowledge. Longer experience of a candidate adds to his
knowledge and expertise. Similarly, government hospitals differ from
private hospitals vastly for the former have unique infrastructural
constraints and deal with poor masses. Doctors in such nonprivate
hospitals serve a public purpose by giving medical treatment to swarms of
patients, in return for a meagre salary. Hence, when placing emphasis on
the requirement of work experience, there is no dispute on such

recognition of government hospitals and private hospitals as distinct
classes. Instead such recognition ensures that the doctors recruited in notsorich
states like Bihar have the requisite exposure to challenges faced in
those regions.
20. The appellant has thus rightly not challenged the selection procedure
but has narrowed her claim to only against the respondents’ interpretation
of ‘work experience’ as part of merit determination. Since interpretation of
a statute or rule is the exclusive domain of Courts, and given the scope of
judicial review in delineating such criteria, the appellant’s challenge cannot
be turned down at the threshold. However, we are not commenting
specifically on the merit of appellant’s case, and our determination is alien
to the outcome of the selection process. It is possible post what is held
hereinafter that she be selected, or not.
Statutory Interpretation
21. It is a settled cannon of statutory interpretation that as a first step,
the Courts ought to interpret the text of the provision and construct it
literally. Provisions in a statute must be read in their original grammatical
meaning to give its words a common textual meaning. However, this tool of
interpretation can only be applied in cases where the text of the enactment
is susceptible to only one meaning.6 Nevertheless, in a situation where
6 Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271 ¶13.

there is ambiguity in the meaning of the text, the Courts must also give
due regard to the consequences of the interpretation taken.
22. It is the responsibility of the Courts to interpret the text in a manner
which eliminates any element of hardship, inconvenience, injustice,
absurdity or anomaly.7 This principle of statutory construction has been
approved by this Court in Modern School v. Union of India8, by
reiterating that a legislation must further its objectives and not create any
confusion or friction in the system. If the ordinary meaning of the text of
such law is nonconducive
for the objects sought to be achieved, it must be
interpreted accordingly to remedy such deficiency.
23. There is no doubt that executive actions like advertisements can
neither expand nor restrict the scope or object of laws. It is therefore
necessary to consider the interpretation of the phrase ‘Government
hospital’ as appearing in the Rules. Two interpretations have been put
forth before us which can be summarized as follows:
a. Only hospitals run by the Government of Bihar.
b. Hospitals run by the Bihar Government or its instrumentalities, as
well as any other nonprivate
hospital within the territory of Bihar.
The former interpretation to the term, as accorded to it by the respondents,
7 GP SINGH ON PRINCIPLES OF STATUTORY INTERPRETATION (14th edn., 2016) pp. 145170.
8 (2004) 5 SCC 583 ¶62.

forms a narrower class whereas the latter interpretation used by the
appellant is broader and more inclusive.
Literal Interpretation
24. At the outset, the respondents’ contention that meaning of the term
‘Government hospital’ would be bound by the restrictive definition of
‘Government’ under Rule 2(a) of the Rules, does not sound well. It is settled
that grammatical rules must be given due weightage during statutory
interpretation.9 Rule 2 is a definitional provision and defines ‘Government’
as a noun. However, it would not necessarily govern instances where the
word has been used in another form.10 Under Rule 5, the operative phrase
is “any Government hospital”. Here, ‘Government’ is restrictively defining
the noun ‘hospital’ to exclude those run by certain entities. Thus,
‘Government’ as part of ‘Government hospital’ is a noun adjunct and has
been used as an adjective. Such usage of a noun in its adjectival form
changes its character altogether and it would be unwise to import the
meaning of its noun form. This is especially true considering how the
prefatory portion of Rule 2 explicitly provides that the definitions as
prescribed thereunder shall be referred to unless otherwise required in
context. The phrase ‘Government hospital’ therefore cannot be construed to
exclude other nonprivate
hospitals which are otherwise run exclusively
9 Navinchandra Mafatlal v. CIT, (1955) 1 SCR 829 ¶6.
10 See FCC v. AT&T Inc. 562 U.S. 397 (2011); where the Supreme Court of the United States held
that definition of ‘person’ as a noun would not be applicable to its use as an adjective.

with the aid and assistance of the Governments. Additionally given the
difference in common usage wherein ‘government hospital’ refers to all
nonprivate
hospitals and not hospitals established by a particular
government, Rule 5 & 6(iii) would not be bound by Rule 2(a).
25. Presence of the word ‘any’ in Rule 5 is also critical. It indicates a
legislative intent to bestow a broad meaning to hospitals eligible for accrual
of work experience. Importing the restrictive definition of Rule 2(a) would
hence lead to an anomalous situation in having both expansive and
restrictive adjectives applied to the same underlying noun. Consequently,
we are inclined to adopt an expansive interpretation of the phrase, and not
lay weight on Rule 2(a), as urged by the respondents.
26. In addition to this, adopting the respondents’ interpretation would
increase uncertainty and create practical difficulties. When Rule 2(a) is
applied to ‘Government hospital’ there is substantial ambiguity created as
to whether or not hospitals run by instrumentalities of the Government,
which are not strictly owned by the Government of Bihar would be
included within Rule 5. When a pointed question was put forth to learned
counsel for the respondents as to whether a hospital established by the
municipality or one run by an institute substantially funded by State
money would be included in their definition, no clear answer was
forthcoming. Such issues are bound to arise repeatedly in any selection

process. Given how there is no simple answer to such questions, the rigid
interpretation adopted by the Government would only lead to friction in the
system and cause interpretative chaos which would undermine the fair and
just right to compete for public employment.
27. Further, if faced between a choice in which only a few people would
be eligible versus a fairly large group, we feel that the latter ought to be
adopted to have a diverse pool of applicants. This would promote merit,
bring better doctors and further the Constitutional scheme of providing
equal opportunity in public employment to the masses. We are thus of the
view that the provisions of the Rules in the caseathand
cannot be
construed or explained by applying the principle of literal interpretation.
Purposive Interpretation
28. In pursuance to the above analysis, we are of the view that it is
necessary to resort to purposive interpretation of the provisions of the
Rules, in light of its objectives. Otherwise also as per the prefatory part of
Article 309, the Rules framed thereunder must be in conformity with all
other Constitutional provisions, which necessarily includes Part III. Dealing
with recruitment in Government hospitals, it is clear that the object and
purpose of the Rules too must satisfy the test of Article 16.
29. Further, given the absence of express definition of ‘Government

hospitals’ under the Rules which is the central stage of this debate, we
deem it fit to make use of Constitutional values as a tool of statutory
interpretation. It is well known the Constitution must not only be seen as a
benchmark for testing the validity of legislations, but also as an
inspirational document to guide State action. When there are two plausible
interpretations, the one which promotes Constitutional values must be
preferred.11
30. Under our constitutional scheme, obligations and duties of the ‘State’
have eloquently been divided using a threetier
system of governance. The
Union of India at the national level, individual State Governments at the
State Level and various Municipalities/Panchayats at the local level,
parallelly discharge their respective Constitutional duties for the welfare of
the general public.
31. In deference to their duties to raise the standard of living, ensure
adequate nutrition and public health of its people under Article 47 of the
Constitution, both the Central as well as the State Governments formulate
various welfare schemes and establish institutions including
hospitals/primary health centres. Still further, under Article 243G read
with Entry 23 of Schedule XI of the Constitution, the legislature of the
State can entrust the functions of “Health and sanitation, including
11 See R v. Jarvis, 2019 SCC 10; where the Supreme Court of Canada held that the Canadian
Charter of Rights and Freedoms could be used as an interpretive tool in certain cases.

hospitals, primary health centres and dispensaries” to the Panchayati Raj
Institutions. Similarly, the State legislature may entrust under Article
243W read with Entry 6 of Schedule XII, the functions of “Public health,
sanitation conservancy and solid waste management” to Municipalities.
Hospitals of these local governments are often run on the back of funds
derived from the Consolidated Fund of the States. It may thus be seen that
the Constitution envisages the setting up of hospitals by many different
public authorities, including the Central Government, State Government,
Municipalities and Panchayati Raj Institutions.
32. In addition, it is a wellknown
fact that several hospitals throughout
the country have been set up by instrumentalities of the Central or State
Governments, more notably the Employees’ State Insurance Corporation
Hospitals, to cater to the need of poor and needy persons. These hospitals,
therefore, are at par with other government hospitals for all intents and
purposes, and the experience gained by a doctor in such hospitals
subsume the characteristics acquired in a hospital set up by the Bihar
Government.
33. Other hospitals are also established by instrumentalities of the States
and the Centre in pursuance of Constitutional obligations under Part IV.
These although not strictly covered within the ambit of the Rules as
propounded by the respondents, nevertheless serve the same purpose of

providing best medical facilities to public at large. An apt example is of
Army hospitals, and there is little reason to ignore and overlook the
experience gained in such hospitals.
34. It is hence irrational to urge that the work experience in any such
hospital is different from that in a Government of Bihar hospital. Hence, it
would be Constitutionally unjust to allow differentiation between the
experience gained by doctors at these hospitals established by Panchayats
or Municipalities or by the Central Government and its instrumentalities in
the territory of Bihar visàvis
those run by the Bihar Government. Any
attempt to discriminate between hospitals run by the State Government
and the Central Government or Municipalities/Panchayati Raj Institutions
is bound to hit the very ethos of our Constitutional governance setup.
35. Having said so, we are not oblivious to the fact that equality does not
imply that there can be no classification. Instead, sometimes it may be
necessary to treat unequals unequally, for equal treatment of persons with
unequal circumstances creates an unjust situation.12 Such classification,
however, must not be arbitrary but rationally founded on some quality or
characteristics which are identifiable within the class of people so created
and absent in those excluded from such classification.
36. We are of the view that the purpose behind formulation of the Rules
12 Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.

was to recognize the unique challenges of hospitals in Bihar and
incentivise doctors to work in nonprivate
hospitals. There is some
substance in the submission of learned counsel for the respondents that
Bihar is predominantly poor and thus requires doctors having exposure to
such challenging environment as compared to their counterparts in private
hospitals. Experience in a nonprivate
hospital instills sensitivity in its
doctors, making them more adept to understand the ail and agony of poor
patients. Such experience will undoubtedly be useful in furthering the
object of Government hospitals and must be given due weightage while
selecting suitable candidates. Interpreting ‘Government hospitals’ to
include only a small class of persons who have worked under the
Government of Bihar, is thus clearly erroneous and antimerit.
Such an
objective would not be defeated by the understanding of the Rules as has
been construed by us.
CONCLUSION
37. For the reasons stated above, the appeal is allowed. Rule 5 & 6(iii) of
the Bihar Health Service (Appointment and Service Conditions) Rules, 2013
are construed to include the experience gained by a doctor in any hospital
run by the Bihar Government or its instrumentalities, as well as any other
nonprivate
hospital (including those run by the Central Government,
Municipalities and Panchayati Raj Institutions; or other public authorities)

within the territory of Bihar. Respondents are accordingly directed to
rework and prepare a fresh merit list by granting due weightage to the
appellant and other similarly placed candidates, within two months. We
however clarify that grant of weightage on the basis of work experience
shall have no bearing on the suitability of a candidate.
……………………………..J.
(DEEPAK GUPTA)
…………………………… J.
(SURYA KANT)
NEW DELHI
DATED : 17.12.2019

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