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2015 DIGILAW 643 (GAU)

Binita Das and Ors. v. State of Assam and Ors.

2015-05-27

K.SREEDHAR RAO, P.K.SAIKIA

body2015
P.K. Saikia, J 1. This appeal is directed against the judgment dated 25.3.2015, passed by learned Single Judge in WP(C) No.744/2013 dismissing the petition filed by the appellants herein. 2. We have heard Mr. N. Karmakar, learned counsel for the appellants and Mr. S.K. Talukdar, learned Standing Counsel, Health. 3. The appellants as petitioners have approached this court by way of WP(C) No. 7447/2013 contending as follows : "By filing this petition under article 226 of the Constitution of India petitioners seek a direction to the respondents to appoint them on regular basis as Auxiliary Nurse-Midwives (ANMs). Forty-two petitioners have joined together and have instituted the common proceeding. Petitioners are qualified ANMs and have undergone training in this regard. They are rendering service as ANMs under the National Rural Health Mission (NRHM), Assam on contract basis. In the course of their contractual employment, some of the petitioners have become over-aged for Government employment, for example petitioner No. 1 is stated to be 47 years of age. Two advertisements were issued on 16.11.2013 and 17.11.2013, one by the Directorate of Health Services, Assam and the other by the Director of Health Services (FW), Assam. The first advertisement was for 176 vacancies in the post of ANM under the Directorate of Health Services, while the second advertisement was for 825 vacancies in the post of ANM under the Directorate of Health Services (FW). Thus, a total of 1001 vacancies in the post of ANM were notified. Petitioners fulfilled all the criteria, except that some of them have become overaged. As per the two advertisements, it was provided that candidates should not be less than 18 years and not above 38 years as on 1.1.2013. It was further provided that there would be relaxation of upper age limit as per rules. It is contended that in view of their long contractual service as ANMs in the NRHM and having regard to the directions of the Central Government issued e from time to time regarding filling up of vacancies in the health establishments on priority basis, ANMs working in NRHM, like the petitioners, should be appointed on regular basis in the State Health establishments irrespective of their crossing the upper age limit of 38 years as prescribed in the advertisements." 4. Such contentions were objected to by party respondent No. 4 staring that in pursuant to earlier advertisement dated 28.3.2003 interview was conducted and a select list was also placed before the Government for final decision. Since the selection was the subject-matter of litigation before this court in WP(C) No. 3325 of 2005 and WP(C) No. 4818 of 2006, this court in the aforesaid writ petitions directed the Government that it may take appropriate decision in the matter after taking into account all the attending facts and circumstances in view of certain anomalies noticed in the selection. 5. It is further contended by the State-respondents that contractual h appointments of the appellants/petitioners were made not by Government and as such, such contractual appointments cannot bin the Government in filling up the posts of Auxiliary Nurse/Midwives ('ANMs') under the Directorate of Health Services which were notified to the public vide advertisement dated 16.11.2013 and advertisement 17.11.2013 and which were to be filled up in accordance of the prescription of relevant Recruitment Rules holding the field. But acceptance of the prayer of the appellants would mean recruitment in violation of aforesaid Recruitment Rules which is not permissible under the law. 6. The State respondents further contend that realising the hardships, faced by some genuine candidates, age relaxation was provided allowing candidates up to the age of 45 years to apply for the aforesaid posts vide advertisement dated 16.11.2013 and advertisement dated 17.11.2013 and such benefits would be made available to the deserving candidates. In pursuant to the advertisements aforementioned, a large number of applications have already been received and the process of scrutinization, compilation and sorting out of the same are under way. 7. Refuting such contention of the State respondents, the learned counsel for the appellants/petitioners submits that when the petitioners rendered services as ANMs under the National Rural Health Mission ('NRHM'), there is no question of subjecting them to further selection. He further submits that since some of the petitioners have crossed the upper age limit, they are entitled to be appointed on regular basis without any further selection. 8. In order to appreciate the rival submissions, we find it necessary to have a look at the judgment under challenge. He further submits that since some of the petitioners have crossed the upper age limit, they are entitled to be appointed on regular basis without any further selection. 8. In order to appreciate the rival submissions, we find it necessary to have a look at the judgment under challenge. The relevant part of the same is reproduced below : "Basic question which arises for consideration in this writ petition is regarding entitlement of the petitioners to participate in the selection for the post of ANM pursuant to the advertisements issued by the State. Petitioners are serving as ANMs on contract basis under the NRHM, which is not a Government employment. It is within the authority of the employer, in this case, the State Government to prescribe various qualifications and eligibility criteria for the purpose of recruitment. One such criteria is the age factor. In this case, the prescription is that the candidates should be within 18 to 38 years of age as on 1.1.2013. In the affidavit of respondent No. 4, it is clarified as per Government decision, age relaxation can be provided up to the age of 45 years on individual case basis. Having regard to the main issue which arises for consideration in this case, it is not necessary to examine the distinction sought to be advanced by the learned counsel for the petitioners between recruitment and selection. Keeping in view the requirement of efficiency in the administration, there can be no two opinions that there is need to prescribe upper age limit for entry into Government Service. To ensure that fixation of such upper age limit does not cause undue hardship in a deserving case, the State has also made provision for relaxation of the upper age limit up to a maximum of 45 years. Therefore, in such circumstances, no general direction can be issued to the a respondents to waive the requirement of upper age limit and to allow all ANMs serving in NRHM on contract basis to be directly appointed under the State without any further selection. Such a proposition besides being absurd, would be contrary to the concept of public employment. Therefore, in such circumstances, no general direction can be issued to the a respondents to waive the requirement of upper age limit and to allow all ANMs serving in NRHM on contract basis to be directly appointed under the State without any further selection. Such a proposition besides being absurd, would be contrary to the concept of public employment. However, to ensure that deserving cases from amongst the petitioners are not put to any undue hardship because of crossing the age bar, respondents shall consider the cases of the petitioners for upper age relaxation as per prevailing norms and shall also consider giving due weight age to the petitioners for the past services rendered by them as ANMs under NRHM. Writ petition is accordingly disposed of. No costs." 9. The learned counsel for the parties have advanced similar submissions which they have rendered before the learned Single Judge. A perusal of the judgment reveals that a procedure has been in place which governs the recruitment to the various posts in the Department concerned including the post of ANM. Therefore, the authority is duty bound to follow the procedures in matter of recruitment to the posts in the Department including ANM. Therefore, sticking of the Department to the procedures, prescribed for filling up the posts in the Department concerned cannot be faulted with. 10. But then, in order to address the grievances of genuine candidates, the Department has taken care of some vital matters, such as, crossing of the maximum age limit, prescribed under the relevant Service Rules. This only shows that the Department is alive to the genuine grievances of prospective candidates. 11. Consequently, we have found no ground to interfere with the judgment passed by the learned Single Judge refusing to interfere with the recruitment process initiated by the authority concerned under the advertisements aforementioned. 12. Accordingly, this appeal stands dismissed.