DR. (MAJOR) MEETA SAHAI versus STATE OF BIHAR & ORS.

DR. (MAJOR) MEETA SAHAI

STATE OF BIHAR & ORS.

(Civil Appeal No. 9482 of 2019)

DECEMBER 17, 2019

[DEEPAK GUPTA AND SURYA KANT, JJ.]

Service Law:

Bihar Health Service (Appointment and Service Conditions)Rules, 2013 – rr. 2(a), 5 and 6(iii) – Advertisement for appointmentof Medical Officers – By State Public Service Commission –Mandating that only work experience in the hospitals of StateGovernment was to be considered for granting marks for ‘WorkExperience’ – Appellant’s work experience in Army Hospital wasnot considered – Writ Petition challenging such clause in theadvertisement being arbitrary and contrary to rr. 5 and 6 (iii) –Writ Petition was dismissed by Single Judge of High Court – Writappeal was also dismissed by Division Bench of High Court –Appeal to Supreme Court – Held: Rules 5 and 6 (iii) cannot beconstrued by applying principle of literal interpretation – Theexpression ‘Government Hospital’ cannot be construed byimporting definition of ‘Government’ in s. 2(a) – The purposebehind formulation of the Rules was to recognize unique challengeof hospitals in the State and incentivise doctors to work in non-private hospitals – Any attempt to discriminate between hospitalsrun by the State Government and Central Government orMunicipalities/Panchayati Raj Institutions is bound to hit the veryethos of Constitutional governance set up – Therefore, rr. 5 and6(iii) are construed to include the experience gained by doctorin any hospital run by the State Government or its instrumentalities,as well as any other non-private hospital run by CentralGovernment, Municipalities and Panchayati Raj Institutions orother public authorities within the territory of the State –Constitution of India – Art. 14.

Estoppel:

Challenge to selection process – After having failed, goingthrough such process – Whether estopped – Held: The principle

EFG

Aof estoppel prevents candidate from challenging the selectionprocess after having failed in it – However, this principle isdifferentiated insofar as the candidate by agreeing to participatein the selection process only accepts the prescribed procedure andnot the illegality in it – If the challenge alleges misconstruction ofstatutory rules and discriminating consequences arising therefrom,Bthe same cannot be condoned merely because candidate haspartaken in it – Moreover, unless the candidate participates in theselection process, may not have locus to assail the illegality orderogation of the provisions.

Interpretation of Statutes:C

Construction of statutory provision – Held: As first stepthe Courts ought to interpret the text of the provision and constructit literally – This tool of interpretation can only be applied wherethe text of the enactment is susceptible to only one meaning – Wherethere is ambiguity in the meaning of the text, the Courts must alsoDgive due regard to the consequences to remedy such deficiency –When there are two plausible interpretations, the one whichpromotes constitutional values must be preferred.

Allowing the appeal, the Court

HELD: 1.1The principle of estoppel prevents candidateEfrom challenging the selection process after having failed in it.The underlying objective of this principle is to preventcandidates from trying another shot at consideration, and toavoid an impasse wherein every disgruntled candidate, havingfailed the selection, challenges it in the hope of getting secondFchance. [Para 17] [287-F; 288-B-C]

1.2 However, this principle is differentiated insofar as thecandidate by agreeing to participate in the selection process onlyaccepts the prescribed procedure and not the illegality in it. Ina situation where candidate alleges misconstruction of statutoryGrules and discriminating consequences arising therefrom, thesame cannot be condoned merely because candidate haspartaken in it. The constitutional scheme is sacrosanct and itsviolation in any manner is impermissible. In fact, candidate maynot have locus to assail the incurable illegality or derogation ofthe provisions of the Constitution, unless he/she participates inHthe selection process. [Para 18] [288-C-D]

1.3 The appellant has rightly not challenged the selectionprocedure but has narrowed her claim to only against therespondents’ interpretation of ‘work experience’ as part of meritdetermination. Since interpretation of statute or rule is theexclusive domain of Courts, and given the scope of judicialreview in delineating such criteria, the appellant’s challengecannot be turned down at the threshold. [Para 20] [289-A-B]

Manish Kumar Shahi v. State of Bihar (2010) 12 SCC

576 – relied on.

2.1 It is settled cannon of statutory interpretation thatas first step, the Courts ought to interpret the text of theprovision and construct it literally. Provisions in statute mustbe read in their original grammatical meaning to give its wordsa common textual meaning. However, this tool of interpretationcan only be applied in cases where the text of the enactment issusceptible to only one meaning. Nevertheless, in situationwhere there is ambiguity in the meaning of the text, the Courtsmust also give due regard to the consequences of theinterpretation taken. [Para 21] [289-C-D]

Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271:[2004] 6 Suppl. SCR 1141 – relied on.

2.2 It is the responsibility of the Courts to interpret thetext in manner which eliminates any element of hardship,inconvenience, injustice, absurdity or anomaly. legislation mustfurther its objectives and not create any confusion or friction inthe system. If the ordinary meaning of the text of such law isnon-conducive for the objects sought to be achieved, it must beinterpreted accordingly to remedy such deficiency. [Para 22][289-E]

Madan Lal v. State of J&K (1995) 3 SCC 486 : [1995]1 SCR 908 – relied on.

Principles of Statutory Interpretation by GP Singh (14th

Edn., 2016) Pp. 145-170 – referred to.

2.3 There is no doubt that executive actions likeadvertisements can neither expand nor restrict the scope or

[2019] 15 S.C.R.

Aobject of laws. It is therefore necessary to consider theinterpretation of the phrase ‘Government hospital’ as appearingin the Rules. [Para 23] [289-F]

2.4 Rule 2 of Bihar Health Service (Appointment andService Conditions) Rules 2013 is definitional provision andBdefines ‘Government’ as noun. However, it would notnecessarily govern instances where the word has been used inanother form. Under Rule 5, the operative phrase is “anyGovernment hospital”. Here, ‘Government’ is restrictivelydefining the noun ‘hospital’ to exclude those run by certainentities. Thus, ‘Government’ as part of ‘Government hospital’Cis noun adjunct and has been used as an adjective. Such usageof noun in its adjectival form changes its character altogetherand it would be unwise to import the meaning of its noun form.This is especially true considering how the prefatory portion ofRule 2 explicitly provides that the definitions as prescribedDthereunder shall be referred to unless otherwise required incontext. The phrase ‘Government hospital’ therefore cannot beconstrued to exclude other non-private hospitals which areotherwise run exclusively with the aid and assistance of theGovernments. Additionally given the difference in commonEusage wherein ‘government hospital’ refers to all non-privatehospitals and not hospitals established by particulargovernment, Rule 5 & 6(iii) would not be bound by Rule 2(a).[Para 24] [290-C-F]

–Navinchandra Mafatlal v. CIT, [1955] 1 SCR 829 Frelied on.

FCC v. AT&T Inc. 562 U.S. 397 (2011) – referred to.

2.5 Presence of the word ‘any’ in Rule 5 is also critical. Itindicates legislative intent to bestow broad meaning tohospitals eligible for accrual of work experience. Importing theGrestrictive definition of Rule 2(a) would hence lead to ananomalous situation in having both expansive and restrictiveadjectives applied to the same underlying noun. Consequently,the Court is inclined to adopt an expansive interpretation of thephrase, and not lay weight on Rule 2(a). [Para 25] [290-G; 291-HA]

2.6 In addition to this, adopting the respondents’interpretation would increase uncertainty and create practicaldifficulties. When Rule 2(a) is applied to ‘Government hospital’there is substantial ambiguity created as to whether or nothospitals run by instrumentalities of the Government, which arenot strictly owned by the Government of Bihar would be includedwithin Rule 5. Such issues are bound to arise repeatedly in anyselection process. Given how there is no simple answer to suchquestions, the rigid interpretation adopted by the Governmentwould only lead to friction in the system and cause interpretativechaos which would undermine the fair and just right to competefor public employment. [Para 26] [291-B-D]

2.7 Further, if faced between choice in which only fewpeople would be eligible versus fairly large group, the latterought to be adopted to have diverse pool of applicants. Thiswould promote merit, bring better doctors and further theConstitutional scheme of providing equal opportunity in publicemployment to the masses. Thus, the provisions of the Rulesin the present case cannot be construed or explained by applyingthe principle of literal interpretation. [Para 27] [291-E]

2.8 Therefore, it is necessary to resort to purposiveinterpretation of the provisions of the Rules, in the light of itsobjectives. Otherwise also as per the prefatory part of Article309 of the Constitution, the Rules framed thereunder must bein conformity with all other Constitutional provisions, whichnecessarily includes Part III. Dealing with recruitment inGovernment hospitals, it is clear that the object and purpose ofthe Rules too must satisfy the test of Article 16. [Para 28] [291-F-G]

2.9 Further, given the absence of express definition of‘Government hospitals’ under the Rules, the Court deems it fitto make use of Constitutional values as tool of statutoryinterpretation. The Constitution must not only be seen as abenchmark for testing the validity of legislations, but also as aninspirational document to guide State action. When there are twoplausible interpretations, the one which promotes Constitutionalvalues must be preferred. [Para 29] [291-H; 292-A-B]

R v. Jarvis, 2019 SCC 10 – relied on.

278SUPREME COURT REPORTS

A2.10 Under the constitutional scheme, obligations andduties of the ‘State’ have eloquently been divided using three-tier system of governance. The Union of India at the nationallevel, individual State Governments at the State Level andvarious Municipalities/Panchayats at the local level, parallellydischarge their respective Constitutional duties for the welfareBof the general public. In deference to their duties to raise thestandard of living, ensure adequate nutrition and public healthof its people under Article 47 of the Constitution, both theCentral as well as the State Governments formulate variouswelfare schemes and establish institutions including hospitals/Cprimary health centres. Still further, under Article 243G read withEntry 23 of Schedule XI of the Constitution, the legislature ofthe State can entrust the functions of “Health and sanitation,including hospitals, primary health centres and dispensaries” tothe Panchayati Raj Institutions. Similarly, the State legislature

Dmay entrust under Article 243W read with Entry 6 of ScheduleXII, the functions of “Public health, sanitation conservancy andsolid waste management” to Municipalities. Hospitals of theselocal governments are often run on the back of funds derivedfrom the Consolidated Fund of the States. It may thus be seenthat the Constitution envisages the setting up of hospitals byEmany different public authorities, including the CentralGovernment, State Government, Municipalities and PanchayatiRaj Institutions. [Para 30, 31] [292-B-F]

2.11 In addition, several hospitals throughout the countryhave been set up by instrumentalities of the Central or StateFGovernments, more notably the Employees’ State InsuranceCorporation Hospitals, to cater to the need of poor and needypersons. These hospitals, therefore, are at par with othergovernment hospitals for all intents and purposes, and theexperience gained by doctor in such hospitals subsume theGcharacteristics acquired in hospital set up by the BiharGovernment. [Para 32] [292-G; 293-A]

2.12 Other hospitals are also established byinstrumentalities of the States and the Centre in pursuance ofConstitutional obligations under Part IV. These although notHstrictly covered within the ambit of the Rules as propounded by

the respondents, nevertheless serve the same purpose ofproviding best medical facilities to public at large. An apt exampleis of Army hospitals, and there is little reason to ignore andoverlook the experience gained in such hospitals. [Para 33] [293-B]

2.13 It is hence irrational to urge that the work experiencein any such hospital is different from that in Government ofBihar hospital. Hence, it would be constitutionally unjust to allowdifferentiation between the experience gained by doctors at thesehospitals established by Panchayats or Municipalities or by theCentral Government and its instrumentalities in the territory ofBihar vis-à-vis those run by the Bihar Government. Any attemptto discriminate between hospitals run by the State Governmentand the Central Government or Municipalities/Panchayati RajInstitutions is bound to hit the very ethos of the Constitutionalgovernance setup. [Para 34] [293-C-D]

2.14 Having said so, the Court is not oblivious to the factthat equality does not imply that there can be no classification.Instead, sometimes it may be necessary to treat unequalsunequally, for equal treatment of persons with unequalcircumstances creates an unjust situation. Such classification,however, must not be arbitrary but rationally founded on somequality or characteristics which are identifiable within the classof people so created and absent in those excluded from suchclassification. [Para 35] [293-E]

Indira Sawhney v. Union of India (1992) Supp. 3 SCC217 : [1992] 2 Suppl. SCR 454 – followed.

2.15 The purpose behind formulation of the Rules was torecognize the unique challenges of hospitals in Bihar andincentivise doctors to work in non-private hospitals. Experiencein non-private hospital instills sensitivity in its doctors, makingthem more adept to understand the ail and agony of poorpatients. Such experience will undoubtedly be useful infurthering the object of Government hospitals and must be givendue weightage while selecting suitable candidates. Interpreting‘Government hospitals’ to include only small class of personswho have worked under the Government of Bihar, is thus clearlyerroneous and anti-merit. Such an objective would not be

Adefeated by the understanding of the Rules as has beenconstrued. [Para 36] [293-F-G; 294-A-B]

2.16 Therefore, Rule 5 & 6(iii) of the Bihar Health Service(Appointment and Service Conditions) Rules, 2013 areconstrued to include the experience gained by doctor in anyBhospital run by the Bihar Government or its instrumentalities,as well as any other non-private hospital (including those runby the Central Government, Municipalities and Panchayati RajInstitutions; or other public authorities) within the territory ofBihar. Respondents are accordingly directed to rework andprepare fresh merit list by granting due weightage to theCappellant and other similarly placed candidates. [Para 37] [294-C-D]

Dr. Dharmbir Kumar v. State of Bihar (2015) 2 PLJR916 ; Ram Surat Mishra v. State of U.P. (2008) 7 SCC409 ; M/s J.K. Jute Mills Co. Ltd. v. State of U.P. AIRD1961 SC 1534 [1962] SCR 1 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9482of 2019.

From the Judgment and Order dated 24.11.2016 of the HighHCourt of Judicature at Patna in LPA No. 1860 of 2016.

Gaurav Agrawal, Adv. for the Appellant.

Shivam Singh, Harpreet Singh Gupta, Gopal Singh, Navin Prakash,Advs. for the Respondents.

The Judgment of the Court was delivered by

SURYA KANT, J.

1. Leave granted.

2. The present appeal has been preferred against the order dated24.11.2016 passed by Division Bench of Patna High Court in LPANo. 1860/2016, whereby appellant’s work experience in an ArmyHospital was not considered for grant of weightage and consequentialselection and appointment as General Medical Officer in the State ofBihar, 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 hospital runby the Government of Bihar could count under the head of workexperience.

FACTUAL MATRIX

3. Ostensibly to rectify constant shortage of doctors in Biharwhich was adversely impacting public health, the State of Bihar decidedto fill vacant posts in hospitals. Accordingly, an advertisement waspublished by the Bihar Public Service Commission (hereinafter,“Commission”) in various local newspapers on 18.07.2014, invitingapplications from eligible candidates for filling up 2301 vacant posts ofGeneral Medical Officer in Bihar. The selection process was elucidatedin Clause 5 of the Advertisement wherein general sub-cadre doctorswere to be selected on the basis of merit list prepared by givingweightage for academic qualifications (marks obtained in MBBS - 50marks, and higher degree - 10 marks), work experience (5 marks peryear for maximum of 25 marks) and marks obtained in interview (outof 15 marks). It is important to reproduce the relevant portion of theadvertisement to aptly comprehend the selection criteria which is to thefollowing effect:

“5. Selection Process – For appointment of the doctors inthe general sub cadre the candidates shall be selected onthe basis of the merit list prepared on the basis of theacademic qualification, work experience and the marks

obtained in the interview. In case there are more applicationsthan the vacancy/vacancies, five times candidates shall beinvited for the interview as against the vacancy/vacanciesprescribed reservation wise.

100 marks shall be prescribed for academic qualification,Bwork experience and interview. The 100 marks shall becounted as under-

Marks 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 basisin the Government hospitals (the work experience of theGovernment hospital of the Government of Bihar only shallbe counted) – total 25 marks

But 05 marks shall be given for the work experience of thewhole year, thus, maximum 25 marks shall be given.

Oral interview – total 15 marks.

Note – (a) The marks given to any candidate on the basisof the M.B.B.S. course shall be on multiplication of 0.5 withthe total of all the examinations of the said course, viz., ifthe total of the total marks obtained by any candidate in allEexaminations of the M.B.B.S. coms to 50%, then he shall begiven 50% x 0.5 = 25 marks.

(sic)

(c) There shall be requirement of minimum 30 marks on thebasis of academic qualification, work experience andFinterview for consideration of any candidate for appointmentin the general duty sub cadre.”

(emphasis supplied)

4. Pursuant to this advertisement, the appellant also applied forGthe post of General Medical Officer. She was called for an interviewwhere she was informed that no marks could be granted under the headof ‘work experience’ as she lacked experience in hospital run by theGovernment of Bihar. Post conduction of interview, merit list wasprepared. The appellant was unsuccessful in securing place in themerit list as she had obtained only 42.61 marks which did not meet theHprescribed cut off of 53.04 marks for the General Category.

5. The aggrieved appellant filed writ petition before the PatnaHigh Court challenging Clause 5(iii) of the advertisement issued by theCommission to the extent it mandated that only work experience inhospitals of Government of Bihar shall be considered for awardingmarks for ‘work experience’. The appellant contended that this Clauseof the advertisement was in contravention of the Rules (which didn’tprescribe any such limitation of work experience only being in hospitalsof the Government of Bihar). She was upset that her work experiencein the Army Medical Corp Hospital had been disregarded while otherswho served in Bihar Government hospitals were given due weightage.She felt that if not for this erroneous interpretation of the Rules, shewould 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 non-consideration of workexperience in non-private hospitals other than those administered by theGovernment of Bihar.

6. Learned Single Judge of the High Court dismissed all thesewrit petitions with brief order holding that the validity of such provisionhad already been upheld by Division Bench of the Patna High Courtin Dr. Dharmbir Kumar v. State of Bihar[1]and, therefore, the appellantcould 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 Letter PatentAppeal, with the foremost plea that the condition in the advertisementwhich restricted the work experience to only hospitals of Governmentof Bihar, was contrary to the Rules which gave weightage forexperience in any Government hospital for the purpose of drawing themerit list. Further, it was highlighted that in Dharmbir (supra) theDivision Bench had dismissed petition relating to appointment ofDentists wherein challenge had been made against grant of benefitof experience to contractual employees. This was contended as beingdifferent from the present case. Additionally, the appellant placedreliance on the English version of the analogous Bihar Dentist ServiceRules, 2014 which explicitly defined the term ‘Government hospital’ toinclude hospitals run by both Central and State Government, to showthat the same should be transposed to the present instance.

A8. The Division Bench placed reliance on several decisions ofthis Court including Ram Surat Mishra v. State of U.P.[2]and M/s J.K.Jute Mills Co. Ltd. V. State of U.P.[3], and followed the dictum thereinto note how the Hindi version only referred to Government of Biharand there being conflict between English and Hindi versions, the latterversion of the Bihar Dentist Service Rules, 2014 would prevail. TheBBench further observed that Rule 2(a) of the Dentist Rules defined‘Government’ as Government of Bihar and that thus work experienceunder Rule 6(iii) must be read conjointly with Rule 2(a) which wouldshow that only work experience in hospitals of Government of Biharought to be considered for awarding marks under the head of workCexperience. The intra-court appeal was thus dismissed, giving rise tofurther challenge through this Special Leave Petition.CONTENTION OF PARTIES

9. Learned Counsel for the appellant vehemently argued that theDivision Bench judgement was erroneous. He hammered clause 5(iii)Dof the advertisement and urged that the restriction of work experienceto only hospitals of Government of Bihar was arbitrary and contrary toRule 5 and Rule 6(iii) of the Rules, which read as under:

“5. For appointment in General Duty Sub Cadre minimumeducational qualification shall be MBBS degree from arecognized university:EProvided that the postgraduate or higher degree holder inany subject of Medical science and the doctors appointed onregular/contract basis in any Government hospital shall begiven weightage for work experience.

6. For selection of doctors to appointment in General sub-Fcadre, candidates shall be given marks for their educationalqualification and work experience. Apart from that, theyshall also be given marks for the oral interview.

total 100 marks shall be for educational qualification,work experience and interview. The break up of these 100Gmarks shall be as follows:

(i) Marks obtained in MBBS

Total 50 MarksTotal 10 Marks

(ii) PG or Higher Degree

2 (2008) 7 SCC 409H3 AIR 1961 SC 1534

(iii) Work Experience after appointmentTotal 25 MarksAin 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 willbe given.

(iv) Interview

Total 15 Marks

Note: (a) The determination of marks to be given tocandidate for MBBS shall be in multiple of 0.5 of totalpercentage of marks obtained in the examination of saidcourse. Thus, if candidate has obtained 50% marks, he/she shall get 50 x 0.5 = 25 marks

(b) Minimum 30 marks will be required for consideration forthe appointment in the General sub cadre and specialist subcadre.”

(emphasis supplied)

10. He argued that the Rules did not define the term ‘Governmenthospital’ and that hence its common meaning be taken. Since the Ruleshave been formulated under Article 309 of the Constitution, they carriedthe same force as legislation and the Commission or the StateGovernment could not have restricted the meaning of “any Governmenthospital” to “Government hospital of the Government of Bihar only”through the advertisement. It was also argued that exclusion of servicesrendered in non-Bihar Government hospitals would be discriminatoryfor it failed to further the object of the Rules to promote recruitmentof better qualified doctors and recognize technical knowledge orexpertise gained in this field. The learned Counsel although admittedthat the work experience gained in Government hospitals was differentthan private hospitals owing to doctors’ interactions with poor patientsand them being accustomed to working with minimal infrastructure,nevertheless contended that the services rendered in hospitals ofGovernment of Bihar offered no special experience as compared toother non-private hospitals in the State; and that no public purpose wasserved for both categories similarly gave medical treatment to swarmsof patients, in return for meagre salary.

A11. The counsel for appellant further based his argument on Rule5 & 6(iii) of the Rules which contain the expression ‘any Governmenthospital’, to contend that it must be interpreted to include all Governmenthospitals in Bihar, including those run by the Central Government andother public bodies to avoid any unconstitutionality. It was contendedthat the definition of ‘Government’ as under Rule 2(a) of the Rules didBnot control the meaning of the term ‘Government hospital’ sincepresence of ‘any’ as prefix to ‘Government hospital’ was indicativeof the fact that the Rules envisaged all Government hospitals in its ambit.He made pointed reference to the definitional clause contained in theRules, which has been extracted below:

“2. Definitions. – In this Rule unless anything otherwiserequires in the context:

(a) ‘Government’ means Government of Bihar.

xxxxxxxxx”

(emphasis supplied)

12. It was also urged that the observation of the High Court withrespect to the ascendancy of Hindi version over English version of theBihar Dentist Service Rules, 2014 would be inapplicable to the presentcase since the issue at hand pertains to different enactment whichEdid not have any conflict between versions. The appellant stated thatreference to the English version of the Dentist Rules which explicitlydefined ‘Government hospital’ as both Government of Bihar and CentralGovernment hospitals, was merely illustrative to support an argumentthat ‘Government hospital’ can have different meaning thanF‘Government’ and thus her case ought not to have been dismissed onthis count.

13. On the other hand, learned counsel for Respondentsquestioned the maintainability of the appellant’s challenge and urged thatonce candidate had participated in recruitment process, he/she couldGnot at later stage challenge its correctness merely because of havingfailed in selection. It was contended that the appellant was taking ‘twoshots’ at success, and her challenge was opposed for being opportunistic.Further it was argued by the respondents that the appellant’s attemptto draw inference from the Dentist Rules has rightly not been acceptedHby the High Court. Moreover, the advertisement was shown as being

merely clarificatory in stating that marks shall only be granted for workexperience in hospitals of Government of Bihar.

14. Additionally, the Commission has filed separate counteraffidavit supplementing the stand taken by other respondents with theplea that the Courts ought not to interfere with the selection procedureas stipulated by the employer unless it was found to be patently illegal.It is urged by the Commission that the Division Bench correctlyinterpreted the meaning and ambit of the term ‘Government hospital’in light of Rule 2(a) of the Rules which defines ‘Government’ asGovernment of Bihar, and hence ruled that the advertisement is inaccordance with the subject Rules.

FINDINGS AND ANALYSIS

15. We may at the outset clarify that question of reconciling theHindi and English versions does not arise in the present case for bothversions of the Rules are similarly worded. We thus proceed under theassumption that Hindi will prevail over the English version in case ofany conflict.

Preliminary Issues

16. Furthermore, before beginning analysis of the legal issuesinvolved, it is necessary to first address the preliminary issue. Themaintainability of the very challenge by the appellant has beenquestioned on the ground that she having partaken in the selectionprocess cannot later challenge it due to mere failure in selection. Thecounsel for respondents relied upon catena of decisions of this Courtto substantiate his objection.

17. It is well settled that the principle of estoppel prevents acandidate from challenging the selection process after having failed init as iterated by this Court in plethora of judgements including ManishKumar Shahi v. State of Bihar[4], observing as follows:

“16. We also agree with the High Court that after havingtaken part in the process of selection knowing fully well thatmore than 19% marks have been earmarked for viva vocetest, the appellant is not entitled to challenge the criteria orprocess of selection. Surely, if the appellant’s name hadappeared in the merit list, he would not have even dreamed

4 (2010) 12 SCC 576

Aof challenging the selection. The appellant invokedjurisdiction of the High Court under Article 226 of theConstitution of India only after he found that his name doesnot figure in the merit list prepared by the Commission. Thisconduct of the appellant clearly disentitles him fromquestioning the selection and the High Court did not commitBany error by refusing to entertain the writ petition.”[5]

The underlying objective of this principle is to prevent candidatesfrom trying another shot at consideration, and to avoid an impassewherein every disgruntled candidate, having failed the selection,challenges it in the hope of getting second chance.C

18. However, we must differentiate from this principle insofaras the candidate by agreeing to participate in the selection process onlyaccepts the prescribed procedure and not the illegality in it. In situationwhere candidate alleges misconstruction of statutory rules anddiscriminating consequences arising therefrom, the same cannot beDcondoned merely because candidate has partaken in it. Theconstitutional scheme is sacrosanct and its violation in any manner isimpermissible. In fact, candidate may not have locus to assail theincurable illegality or derogation of the provisions of the Constitution,unless he/she participates in the selection process.

E19. The question of permissibility of giving weightage for ‘workexperience’ in government hospitals is also not the bone of contentionin this case. Medicine being an applied science cannot be mastered bymere academic knowledge. Longer experience of candidate adds tohis knowledge and expertise. Similarly, government hospitals differ fromprivate hospitals vastly for the former have unique infrastructuralFconstraints and deal with poor masses. Doctors in such non-privatehospitals serve public purpose by giving medical treatment to swarmsof patients, in return for meagre salary. Hence, when placing emphasison the requirement of work experience, there is no dispute on suchrecognition of government hospitals and private hospitals as distinctGclasses. Instead such recognition ensures that the doctors recruited innot-so-rich states like Bihar have the requisite exposure to challengesfaced in those regions.

5 See also: Madan Lal v. State of J&K [(1995) 3 SCC], Marripati Nagaraja v. State ofA.P.[(2007) 11 SCC 522], Dhananjay Malik v. State of Uttaranchal [(2008) 4 SCC 171]Hand K.A. Nagamani v. Indian Airlines [(2009) 5 SCC 515]

20. The appellant has thus rightly not challenged the selectionprocedure but has narrowed her claim to only against the respondents’interpretation of ‘work experience’ as part of merit determination. Sinceinterpretation of statute or rule is the exclusive domain of Courts, andgiven the scope of judicial review in delineating such criteria, theappellant’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 settled cannon of statutory interpretation that as firststep, the Courts ought to interpret the text of the provision and constructit literally. Provisions in statute must be read in their originalgrammatical meaning to give its words common textual meaning.However, this tool of interpretation can only be applied in cases wherethe text of the enactment is susceptible to only one meaning.[6]Nevertheless, in situation where there is ambiguity in the meaning ofthe text, the Courts must also give due regard to the consequences ofthe interpretation taken.22. It is the responsibility of the Courts to interpret the text in amanner which eliminates any element of hardship, inconvenience,injustice, absurdity or anomaly.[7] This principle of statutory constructionhas been approved by this Court in Modern School v. Union of India[8],by reiterating that legislation must further its objectives and not createany confusion or friction in the system. If the ordinary meaning of thetext of such law is non-conducive 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 advertisementscan neither expand nor restrict the scope or object of laws. It is thereforenecessary to consider the interpretation of the phrase ‘Governmenthospital’ as appearing in the Rules. Two interpretations have been putforth before us which can be summarized as follows:

a. Only hospitals run by the Government of Bihar.

6 Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271 ¶ 13.

7 GP SINGH ON PRINCIPLES OF STATUTORY INTERPRETATION (14th edn.,2016) pp. 145-170.

8 (2004) 5 SCC 583 ¶62.

Ab. Hospitals run by the Bihar Government or itsinstrumentalities, as well as any other non-private hospitalwithin the territory of Bihar.

The former interpretation to the term, as accorded to it by therespondents, forms narrower class whereas the latter interpretationBused by the appellant is broader and more inclusive.

Literal Interpretation

24. At the outset, the respondents’ contention that meaning ofthe term ‘Government hospital’ would be bound by the restrictivedefinition of ‘Government’ under Rule 2(a) of the Rules, does not soundCwell. It is settled that grammatical rules must be given due weightageduring statutory interpretation.[9] Rule 2 is definitional provision anddefines ‘Government’ as noun. However, it would not necessarilygovern instances where the word has been used in another form.[10]Under Rule 5, the operative phrase is “any Government hospital”. Here,D‘Government’ is restrictively defining the noun ‘hospital’ to exclude thoserun by certain entities. Thus, ‘Government’ as part of ‘Governmenthospital’ is noun adjunct and has been used as an adjective. Suchusage of noun in its adjectival form changes its character altogetherand it would be unwise to import the meaning of its noun form. This isespecially true considering how the prefatory portion of Rule 2 explicitlyEprovides that the definitions as prescribed thereunder shall be referredto unless otherwise required in context. The phrase ‘Governmenthospital’ therefore cannot be construed to exclude other non-privatehospitals which are otherwise run exclusively with the aid and assistanceof the Governments. Additionally given the difference in common usageFwherein ‘government hospital’ refers to all non-private hospitals andnot hospitals established by particular government, Rule 5 & 6(iii) wouldnot be bound by Rule 2(a).

25. Presence of the word ‘any’ in Rule 5 is also critical. Itindicates legislative intent to bestow broad meaning to hospitalsGeligible for accrual of work experience. Importing the restrictivedefinition of Rule 2(a) would hence lead to an anomalous situation in

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 theUnited States held that definition of ‘person’ as noun would not be applicable toHits use as an adjective.

having both expansive and restrictive adjectives applied to the sameunderlying noun. Consequently, we are inclined to adopt an expansiveinterpretation of the phrase, and not lay weight on Rule 2(a), as urgedby the respondents.

26. In addition to this, adopting the respondents’ interpretationwould increase uncertainty and create practical difficulties. When Rule2(a) is applied to ‘Government hospital’ there is substantial ambiguitycreated as to whether or not hospitals run by instrumentalities of theGovernment, which are not strictly owned by the Government of Biharwould be included within Rule 5. When pointed question was put forthto learned counsel for the respondents as to whether hospitalestablished by the municipality or one run by an institute substantiallyfunded by State money would be included in their definition, no clearanswer was forthcoming. Such issues are bound to arise repeatedly inany selection process. Given how there is no simple answer to suchquestions, the rigid interpretation adopted by the Government would onlylead to friction in the system and cause interpretative chaos which wouldundermine the fair and just right to compete for public employment.

27. Further, if faced between choice in which only few peoplewould be eligible versus fairly large group, we feel that the latter oughtto be adopted to have diverse pool of applicants. This would promotemerit, bring better doctors and further the Constitutional scheme ofproviding equal opportunity in public employment to the masses. Weare thus of the view that the provisions of the Rules in the case-at-hand cannot be construed or explained by applying the principle of literalinterpretation.

Purposive Interpretation

28. In pursuance to the above analysis, we are of the view thatit is necessary to resort to purposive interpretation of the provisions ofthe Rules, in light of its objectives. Otherwise also as per the prefatorypart of Article 309, the Rules framed thereunder must be in conformitywith all other Constitutional provisions, which necessarily includes PartIII. Dealing with recruitment in Government hospitals, it is clear thatthe object and purpose of the Rules too must satisfy the test of Article16.

29. Further, given the absence of express definition of‘Government hospitals’ under the Rules which is the central stage of

BCD

Athis debate, we deem it fit to make use of Constitutional values as atool of statutory interpretation. It is well known the Constitution mustnot only be seen as benchmark for testing the validity of legislations,but also as an inspirational document to guide State action. When thereare two plausible interpretations, the one which promotes Constitutionalvalues must be preferred.[11]B

30. Under our constitutional scheme, obligations and duties of the‘State’ have eloquently been divided using three-tier system ofgovernance. The Union of India at the national level, individual StateGovernments at the State Level and various Municipalities/Panchayatsat the local level, parallelly discharge their respective ConstitutionalCduties 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 Article47 of the Constitution, both the Central as well as the State Governmentsformulate various welfare schemes and establish institutions includingDhospitals/primary health centres. Still further, under Article 243G readwith Entry 23 of Schedule XI of the Constitution, the legislature of theState can entrust the functions of “Health and sanitation, includinghospitals, primary health centres and dispensaries” to thePanchayati Raj Institutions. Similarly, the State legislature may entrustEunder Article 243W read with Entry 6 of Schedule XII, the functionsof “Public health, sanitation conservancy and solid wastemanagement” to Municipalities. Hospitals of these local governmentsare often run on the back of funds derived from the Consolidated Fundof the States. It may thus be seen that the Constitution envisages thesetting up of hospitals by many different public authorities, including theFCentral Government, State Government, Municipalities and PanchayatiRaj Institutions.

32. In addition, it is well-known fact that several hospitalsthroughout the country have been set up by instrumentalities of theCentral or State Governments, more notably the Employees’ StateGInsurance Corporation Hospitals, to cater to the need of poor and needypersons. These hospitals, therefore, are at par with other governmenthospitals for all intents and purposes, and the experience gained by

11 See R v. Jarvis, 2019 SCC 10; where the Supreme Court of Canada held that theCanadian Charter of Rights and Freedoms could be used as an interpretive tool inHcertain cases.

doctor in such hospitals subsume the characteristics acquired in ahospital set up by the Bihar Government.

33. Other hospitals are also established by instrumentalities ofthe States and the Centre in pursuance of Constitutional obligations underPart IV. These although not strictly covered within the ambit of theRules as propounded by the respondents, nevertheless serve the samepurpose of providing best medical facilities to public at large. An aptexample is of Army hospitals, and there is little reason to ignore andoverlook the experience gained in such hospitals.

34. It is hence irrational to urge that the work experience in anysuch hospital is different from that in Government of Bihar hospital.Hence, it would be Constitutionally unjust to allow differentiationbetween the experience gained by doctors at these hospitals establishedby Panchayats or Municipalities or by the Central Government and itsinstrumentalities in the territory of Bihar vis-à-vis those run by the BiharGovernment. Any attempt to discriminate between hospitals run by theState Government and the Central Government or Municipalities/Panchayati Raj Institutions is bound to hit the very ethos of ourConstitutional governance setup.

35. Having said so, we are not oblivious to the fact that equalitydoes not imply that there can be no classification. Instead, sometimesit may be necessary to treat unequals unequally, for equal treatment ofpersons with unequal circumstances creates an unjust situation.[12] Suchclassification, however, must not be arbitrary but rationally founded onsome quality or characteristics which are identifiable within the classof people so created and absent in those excluded from suchclassification.

36. We are of the view that the purpose behind formulation ofthe Rules was to recognize the unique challenges of hospitals in Biharand incentivise doctors to work in non-private hospitals. There is somesubstance in the submission of learned counsel for the respondents thatBihar is predominantly poor and thus requires doctors having exposureto such challenging environment as compared to their counterparts inprivate hospitals. Experience in non-private hospital instills sensitivityin its doctors, making them more adept to understand the ail and agonyof poor patients. Such experience will undoubtedly be useful in furthering

12 Indira Sawhney v. Union of India 1992 Supp. (3) SCC 217 ¶ 415.

Athe object of Government hospitals and must be given due weightagewhile selecting suitable candidates. Interpreting ‘Government hospitals’to include only small class of persons who have worked under theGovernment of Bihar, is thus clearly erroneous and anti-merit. Such anobjective would not be defeated by the understanding of the Rules ashas 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 ServiceConditions) Rules, 2013 are construed to include the experience gainedCby doctor in any hospital run by the Bihar Government or itsinstrumentalities, as well as any other non-private hospital (includingthose run by the Central Government, Municipalities and PanchayatiRaj Institutions; or other public authorities) within the territory of Bihar.Respondents are accordingly directed to rework and prepare freshmerit list by granting due weightage to the appellant and other similarlyDplaced candidates, within two months. We however clarify that grantof weightage on the basis of work experience shall have no bearing onthe suitability of candidate.

Kalpana K. TripathyE

Appeal allowed.