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TMI Blog2019 (12) TMI 1672X X X X Extracts X X X X X X X X Extracts X X X X ..... ndoned 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. 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 - 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. Statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective would not be defeated by the understanding of the Rules. Thus, 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. Appeal allowed. - DEEPAK GUPTA AND SURYA KANT, JJ. For the Petitioner : Mr. Gaurav Agrawal, AOR For the Respondent : Mr. Shivam Singh, Adv., Mr. Manish Kumar, Adv., Mr. Aditya Raina, Adv., Mr. Udian Sharma, Adv., Mr. Srikaanth S., Adv., Mr. Jaideep Khnna, Adv., Mr. Harpreet Singh Gupta, Adv., Mr. Manjesh Kumar Jha, Adv., Mr. Gopal Singh, AOR, Mr. Navin Prakash, AOR JUDGMENT SURYA KANT, J. Leave granted. 2. The present appeal has been preferred against the order dated 24.11.2016 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pitals 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. (2008) 7 SCC 409 and M/s J.K. Jute Mills Co. Ltd. V. State of U.P. AIR 1961 SC 1534, 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 intra court 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 advertiseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person as a noun would not be applicable to its use as an adjective. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfy 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. 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. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities in the territory of Bihar vis- -vis 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. Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 415. 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 was to recognize the unique challenges of hospitals in Bihar and in-centivise 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 havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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