Patna High Court: Ashutosh Kumar, J., directed the Bihar government to consider representation made by the petitioners for appointment in the State Health Department, contrary to the advertisement issued by the state whereby it had barred the doctors above 37 years of age from participating. The Bench stated,
“Though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower.”
Background
The petitioners were qualified doctors, who were aggrieved by the decision of the Government as also of the Technical Service Commission in fixing the upper age limit of 37 years for unreserved male doctors for participating in the interview against the advertisement issued for tackling the difficult situation arising out of Pandemic.
The government of Bihar had advertised the posts of 2632 doctors to be posted as Medical Officers against regular and vacant posts in various Districts and Sub-Divisions as well as Primary Health Centres. This was required to be done as an emergency for the paucity of doctors to handle the COVID-19 Pandemic situation. Pursuant to the aforesaid direction by the State Government, the Bihar Technical Service Commission came up with the impugned advertisement, whereby, the age limit was set as below 37 years.
The petitioners had submitted that fixing of the outer age limit for unreserved male doctors was arbitrary and it does not serve the purpose for which such advertisement had been issued. The petitioner contended that a female doctor in the general category had been allowed to participate if she is 40 years of age whereas the outer age for other class of doctors had been kept as 42 years; also many other States in their Health Departments have considered it appropriate to fix the outer age limit at 42 to 47 years. Apart from this, it had been submitted that the advertisement for appointment and posting of doctors was first issued in the Year 2015, thereafter in 2019 and presently, in an emergency situation in the Year 2019. For the last seven years, there had been only three advertisements which had prevented the qualified doctors in Bihar to get any opportunity of serving in the Health Department.
Maintainability of the petition has been assailed by the state on the ground that the decision to fix the particular age limit for a class of doctors for the purposes of appointment and posting was exclusively in the Government domain as it pertains to policy decision and, therefore, it could not be interfered with in a writ petition by a Court of law.
Findings of the Court
Finding substance in the argument of the petitioners, the Bench agreed that the fixation of 37 years as the outer age limit for the doctors of the General Category may not serve the purpose of improving the medical infrastructure and manpower. Noticing that in last seven years, instead of yearly advertisement for filling-up of such posts, only three advertisements had been issued including the present one and in the earlier advertisement, lesser number of posts than the vacancy was advertised and, therefore, only less number of doctors were appointed, the Bench directed that the state would definitely do a better job by giving relaxation in the outer age limit of the doctors. Moreover, the Bench stated, when the age of superannuation of such Government doctors has been increased from 62 years to 65 or 67 years, it would only be in the commonweal to tackle this problem of lack of medical hands in tackling the problem at the stage of appointment itself.
Accordingly, it was held by the Court that though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower. Hence, the Bench while asking the state to file a detailed affidavit on the matter, directed it to consider representation made by the aspirants including the petitioners.[Abhay Kumar v. State of Bihar, CWJC No.10366 of 2021, decided on 15-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner/s: Mr. Sanjeev Ranjan- Advocate
For the State: Mr. Suryakant- Advocate
For BTSC: Mr. Nikesh Kumar- Advocate
