Bombay High Court
Megha Chandrakant Kale vs State Of Maharashtra on 12 March, 2014
Author: N.W. Sambre
Bench: R.M. Borde, N.W. Sambre
(1)
W.P. No.8853/2013, etc.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8853 OF 2013
1. Megha Chandrakant Kale,
Age : 29 years, Occu. Service
(as Staff Nurse, R.H. Vashi),
R/o Govt. Quarters, R.H.
Vashi Campus, Vashi,
Dist. Osmanabad
2. Bhagyashri Bhimrao Koli,
Age 30 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), R/o Datta Nagar,
Yedshi Road, Osmanabad
3. Surekha Abhimanyu Lonkhaskar,
Age : 34 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), R/o At & Post Ambika
Nagar, Palwan Road,
Tq. & Dist. Beed
4. Anita Dnyandeo Koli,
Age 38 years, Occu. Service
(as Staff Nurse, R.H. Vashi),
R/o At & Post Mandwa, Tq.
Vashi, Dist. Osmanabad
5. Smita Raybhanrao Mungal,
Age 28 years, Occu. Service
(as Staff Nurse, Women's Hospital,
Latur), R/o C/o Sangeeta
Raybhanrao Mungal, Shaskiya
Colony, Latur (Deleted vide order
dated 21.12.2013)
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W.P. No.8853/2013, etc.
6. Meeratai Vitthalrao Telange,
Age : 26 years, Occu. Service (as
Staff Nurse, Rural Hospital,
Naigaon), R/o At Post & Tq.
Naigaon, Dist. Nanded
7. Annapurna Chandrashekhar Puri,
Age 35 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), R/o Type-II,
Block No.45, B & C
Quarter, Anand Nagar,
Osmanabad
8. Swati Shahaji Ghone,
Age 28 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), R/o Bhavani
Chowk, Ganesh Nagar,
Osmanabad
9. Vaishali Maruti Deshmukh,
Age 27 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), R/o C/o J.D. Kulkarni,
Vidyanagar (West),
Tal. & Dist. Beed
10. Ashwini Gorakh Bhoskar,
Age : 26 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), R/o C/o
G.K. Sonne, Near Old Gas,
Tambri, Osmanabad
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W.P. No.8853/2013, etc.
11. Varsha Navnath Ugalmugle,
Age 27 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), R/o Dhanora Road,
Near Asha Talkies, Yashwant
Nagar, Beed
12. Nita Ankush Shinde,
Age 26 years, Occu. Service
(as Staff Nurse, R.H. Vashi),
R/o At Post Andora, Tq.
Kallamb, Dist. Osmanabad
13.
Sumitra Limbaji Abhang,
Age 27 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), R/o Gahate Niwas,
Bhandar Galli, Juna Bazar,
Beed
14. Yogita Ashok Mahindrakar,
Age 28 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), C/o Civil Hospital,
Beed
15. Jyoti Ramling Mengale,
Age 29 years, Occu. Service
(as Staff Nurse, R.H. Killari),
C/o Gramin Rugnalaya,
Killari, Dist. Latur
16. Ambrapali Rajendra Suryawanshi,
Age : 25 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), R/o B Block,
Civil Hospital, Osmanabad
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W.P. No.8853/2013, etc.
17. Minakshi Shahaji Chavan,
Age : 26 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Osmanabad), C/o Civil Hospital,
Osmanabad
18. Roshan Shaikh,
Age 25 years, Occu. Service
(as Staff Nurse, Civil Hospital,
Beed), R/o Beed ..PETITIONERS
VERSUS
1.
State of Maharashtra,
Through its Secretary,
Public Health Department,
M.S., Mantralaya,
Mumbai - 32
2. The Director,
Health Services,
M.S., Mumbai
3. The Deputy Director,
Health Services,
Latur ..RESPONDENTS
Mr Avinash Deshmukh, Advocate for petitioners;
Mr S.S. Tope, A.G.P. for respondents
WITH
WRIT PETITION NO.9143 OF 2013
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W.P. No.8853/2013, etc.
1. Smita Raybhanrao Mungal,
Age 27 yrs, Occu. Service
(As staff nurse Women's Hospital
Latur), R/o C/o Sangeeta
Raybhanrao Mungal,
Shaskiya Colony, Tq. & Dist.
Latur
2. Ranjana Avinash Kadam,
Age : 27 yrs. occu. Service
(As Staff Nurse Civil Hospital
Osmanabad), R/o C/o
Avinash V. Kadam
At Post Bori, Tq. & Dist. Latur
3. Jayshri Chandrakant Sangewar,
Age : 25 yrs., Occu. Service
(As Staff Nurse Sub District
Hospital, Mukhed),
R/o C/o Classis Dresses,
At Post - Mukhed, Tq. Mukhed,
Dist. Nanded
4. Lata Marotirao Warne,
Age 23 yrs., Occu. Service
(As staff nurse, Resident
Hospital, Biloli),
R/o C/o Gramin Rugnalaya,
Biloli, Tq. Biloli,
Dist. Latur ..RESPONDENTS
VERSUS
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W.P. No.8853/2013, etc.
1. The State of Maharashtra
Through its Secretary
Public Health Department
M.S., Mantralaya
Mumbai - 32
2. The Director,
Health Service,
Maharashtra State Mumbai
3. The Dy. Director,
Health Services, Latur ..RESPONDENTS
Mr D.M. Shinde, Advocate for petitioners;
Mr S.S. Tope, A.G.P. for respondents
WITH
WRIT PETITION NO.9772 OF 2013
1. Shubhangi Ganpatrao Ankulge,
Age : 27 years, Occupation :
Service as Staff Nurse,
District Sub Hospital Udgir,
Taluka Udgir, District Latur
R/o Udgir, District Latur
2. Suvarna Shivajirao Macalwad,
Age 25 years, Occupation : Service
as Staff Nurse, District Sub
Hospital Udgir, Taluka Udgir,
District Latur
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W.P. No.8853/2013, etc.
3. Mukta Nagorao Komwad,
Age 27 years, Occupation :
Service as Staff Nurse
District Sub Hospital
Mukhed, Taluka Mukhed,
District Nanded,
R/o Mukhed, District
Nanded ..PETITIONERS
VERSUS
1. The State of Maharashtra,
Through the Principal Secretary,
Public Health Department,
Mantralaya, Mumbai - 400 032
2. The Director, Health Services,
Maharashtra State Mumbai
3. The Deputy Director,
Health Services, Latur,
District Latur ..RESPONDENTS
Mr Vijay G. Sakolkar, Advocate for petitioners;
Mr S.S. Tope, A.G.P. for respondents
WITH
WRIT PETITION NO.9284 OF 2013
1. Savita Digambar Darade,
Age : 26 yrs, Occu. Service
(as Staff Nurse), Rural Hospital
Bhoom, Tq. Bhoom,
Dist. Osmanabad
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W.P. No.8853/2013, etc.
2. Swati Ganpat Pawar,
Age : 27 yrs. Occu. Service
(as Staff Nurse), Rural Hospital,
Bhoom, Tq. Bhoom, Dist.
Osmanabad
3. Sarika Dnyaneshwar Kolage,
Age 27 yrs. Occu. Service
(as Staff Nurse), Rural Hospital
Dhanora, Tq. Ambajogai,
Dist. Beed
4. Madhuri Shankarrao Jadhav,
Age : 26 yrs. Occu. Service
(as Staff Nurse), Rural Hospital
Kaij, Tq. Kaij, Dist. Beed ..PETITIONERS
VERSUS
1. The State of Maharashtra
2. The Director
Health Services,
Maharashtra State
Mumbai
3. The Deputy Director,
Health Services,
Latur, Dist. Latur ..RESPONDENTS
Mr V.R. Dhorde, Advocate for petitioners;
Mr S.S. Tope, A.G.P. for respondents
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W.P. No.8853/2013, etc.
CORAM : R.M.BORDE &
N.W. SAMBRE, JJ.
(Date of reserving the
judgment : 20th January, 2014
Date of pronouncing the
judgment : 12th March, 2014)
JUDGMENT (Per N.W. Sambre, J.)
Rule. Heard Rule finally with the consent of parties.
Respective Counsel waive service.
2. The petitioners to the present petitions are questioning the order passed by the Maharashtra Administrative Tribunal in Original Application No.40 of 2012 with Original Application No.70 of 2013, on 1.10.2013, whereby the prayer made by the petitioners before the Tribunal, in the matter of declaration about regularization of their service as Staff Nurses, came to be rejected.
3. Both the Original Applications i.e. O.A. No.40 of 2012 and O.A. No.70 of 2013 are concerned, those were heard and disposed ::: Downloaded on - 29/03/2014 18:56:39 ::: (10) W.P. No.8853/2013, etc. of together, prompting the petitioners to prefer present writ petitions, which are preferred in split up group.
4. The petitioners in the petitions claim that they were admitted to the Nursing course having regard to their educational qualification.
One of the conditions while entering into such educational training was to execute a bond of service of two years after successfully completing the said course of Nursing. In compliance of said condition, the petitioners executed bonds and after passing out the respective training programme in the Nursing, were appointed on the posts of Nurses on temporary basis on the establishment of State Government as bonded candidates.
5. After completion of the above referred period as bonded candidates, the petitioners were issued the appointment orders for a period of about 3 months or till the posts are filled in by regularly selected candidates. Subsequently, again the petitioners were issued the appointment orders for a period of 11 months.
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6. As narrated by the petitioners in the body of the petition, the State Government framed the Recruitment Rules for Nursing Personnel in Maharashtra Nursing Service (Class-III) on 10.1.1964.
According to the petitioners, by virtue of the said Recruitment Rules, the petitioners and their predecessors were appointed on the posts of Staff Nurses. The petitioners further claim that though the similarly placed candidates like that of the petitioners were earlier given status of a regular employee, the petitioners are discriminated, as despite they have completed the bond period and though a proposal for regularization of their services was submitted, the same was not considered.
7. Accordingly, petitioners prayed for regularization of their services as Staff Nurses, having regard to their length of service and re-appointment granted in their favour from time to time.
8. The above referred claim of the petitioners was resisted by the respondents by filing a detailed reply before the Tribunal. The ::: Downloaded on - 29/03/2014 18:56:39 ::: (12) W.P. No.8853/2013, etc. State Government pointed out that the policy of the Government is not that of regularization of the services of the candidates like that of the petitioners and if they adhere to such practice or grant the prayer of the petitioners for regularization of their services, the said act will be contrary to the law laid down by the Apex Court in the matter of public employment.
9. The Tribunal, after considering the contentions canvassed by both, the petitioners and the respondents, and having regard to the law laid down by the Apex Court in the matter of Secretary, State of Karnataka & ors. vs. Umadevi & ors., 2006 (4) SCC 1 and A. Umarani vs. Registrar, Co-operative Societies & ors., (2004) 7 SCC 112, has rejected the Original Applications of the petitioners, resulting into filing of the present petitions.
10. Learned Counsel for the petitioners Shri Avinash Deshmukh would urge that the Tribunal has committed an error by not considering the factual matrix and the law on the point, in its true letter and spirit. He further claims that the act on the part of the ::: Downloaded on - 29/03/2014 18:56:39 ::: (13) W.P. No.8853/2013, etc. State Government in not granting the similar status of permanency to the petitioners as that of their predecessors whose services were regularized, results into violation of Articles 14 and 16 of the Constitution of India. He further claims that the prayer of the petitioners for regularization is in tune with the Recruitment Rules of 1964 as such practice is adopted by the State Government for regularization of the services of the other similarly situated candidates prior to the claim of the petitioners. He further urged that having regard to the length of service put into by the petitioners, it is legitimately expected that their services will be continued and regularized. Learned Counsel for the petitioners Mr Deshmukh has brought to the notice of this Court the terms and conditions of the appointment order and the instructions issued by the State Government, from time to time, so as to canvass that it is not open for the State to terminate the services of the petitioners as the principle of promissory estoppel will operate. So as to draw support to the contentions, the petitioners have placed reliance upon the following judgments :-
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1) State of U.P. & anr. vs. Santosh Kumar Mishra & anr., reported in 2010 (9) SCC 52, to canvass that the past conduct of the Government in regularization of the services of the candidates similar to that of the petitioners, in spite of the Government instructions of 2005, mandates regularization of services of the petitioners.
2) State of Punjab vs. Nestle India Limited, reported in 2004 AIR (SC) 4559, to support the contention that the ig principle of promissory estoppel will be required to be invoked against the State Government in the light of conditions in the appointment orders.
Confederation of Ex-Servicemen Associations & ors. vs.
3) Union of India & ors., reported in 2006 AIR (SC) 2945, to canvass that the consistent practice of regularization of services of the similar employees in past and conditions of appointment orders give rise to a legitimate expectation in favour of the petitioners for getting their services regularized.
4) Secretary, State of Karnataka & ors. vs. Umadevi & ors., reported in 2006 AIR (SC) 1806, to canvass that the services of the petitioners need to be protected.
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11. While countering the above referred submissions, the State has filed its reply and supported the order passed by the Maharashtra Administrative Tribunal. The State Government has placed reliance upon the Recruitment Rules of 1964, as also upon the Government policy in the matter of public employment, so as to canvass that just because a candidate has completed the bond period, that by itself will not confer any absolute right in public employment on permanent basis. The respondent State has further canvassed that while selecting the petitioners for giving effect to bond period, no selection procedure was adopted so as to give equal opportunity in public employment, however, just to give effect to the bond period, the services of the petitioners were taken. It is further necessary to note that the subsequent appointments of the petitioners after the bond period has come to an end as it was ad hoc in nature, as the petitioners were given appointment for a restricted period of 3 to 11 months.
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12. At last, it is submitted by the State Government that the process of recruitment is required to be undertaken strictly in accordance with the Recruitment Rules read with the Circular of the State Government dated 25.8.2005, which is issued based upon the judgment of Apex Court in the case of A. Umarani (cited supra).
13. Having considered the contentions of the petitioners, more particularly about the protection of services of petitioners and conferring status of a regular employee on the petitioners, this Court is of the view that such relief, as is prayed by the petitioners, cannot be granted.
14. That the petitioners claim their entry into the service by virtue of the bond executed by them with the State Government.
The said bond was executed by the petitioners based upon the then rule of admission to the respective courses. What appears from the above referred background is that the petitioners have taken their education of Nursing from the School of Nursing run by ::: Downloaded on - 29/03/2014 18:56:39 ::: (17) W.P. No.8853/2013, etc. the Government of Maharashtra. The Government, while managing such institutions has spent substantially on the studies of the petitioners. It appears to be the intention of the Government that the Government having spent substantial amount on the studies of the candidates like the petitioners, the petitioners after completion of their studies are required to undergo the course of training on the conditions mentioned in the bond which was executed in accordance with the policy of the Government. It is necessary for such candidate by virtue of the Admission Rules notified on 2nd May, 1979, that such candidate is required to sign an agreement to serve in Armed Forces, Medical Services in any of the three Defence Services in Army, Navy or Air Force anywhere in India or abroad, for a minimum period of two years on such remuneration as may be prescribed. The said Rules of 2nd May, 1979 are modified in 1986, pursuant to which it was made mandatory for the candidates like that of the petitioners to honour the bond period of two years.
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15. The above referred condition of bond is incorporated in the Admission Rules, has statutory status so as to enable the State Government to take services of the candidates on whom the State Government had spent and also to have services of such candidates during the emergency period.
16. Merely because a bond is executed by a candidate out of the Rules of Admission and further completion of bond period ipso facto does not confer any right on such candidate to seek public employment or status of permanency, in the background of services rendered as a bonded candidate. In fact, the plain reading of the Rules of Admission coupled with Recruitment Rules of 1979 also does not indicate that any right is conferred upon the candidates of permanency in employment after completion of the bond period.
17. The issue about the recruitment in the public employment, more particularly without following the due process under the Recruitment Rules and maintaining transparency was looked ::: Downloaded on - 29/03/2014 18:56:39 ::: (19) W.P. No.8853/2013, etc. into by the Honourable Apex Court. The Apex Court, while dealing with the similar issues has laid down law in State of Karnataka vs. Umadevi (supra). Based upon the same, the State Government has framed its policy about entry into the public employment and granting status of permanency on an employee who has entered into the public employment. A support could be drawn from the decision dated 19th November, 2003, which postulates that it is mandatory for the Recruiting Authority/Employer to intimate the Employment Exchange and in turn, the Employment Exchange should sponsor the names of the candidates to the requisitioning Department for selection strictly according to seniority and reservation as per the requisition, in addition to call for the names by a publication in the newspaper having wider circulation and also display on the office notice board or announcement on radio, television and employment news bulletin. The State has accordingly, based upon the above referred judgment of the Apex Court in the matter of A. Umarani (supra), has issued instructions on 25th August, 2005 as regards steps to be taken in the public employment.
::: Downloaded on - 29/03/2014 18:56:39 ::: (20)W.P. No.8853/2013, etc. The State has taken a decision on 20th May, 2005, thereby announcing a competitive examination for selection and appointment of the Staff Nurses like that of the petitioners and has also in clear terms instructed not to grant employment or permanency as was done earlier. The above referred law and the policy of the Government are rightly looked into and dealt with by the learned Tribunal. This Court is required to be conscious of the fact that it is not sitting in an appeal over the judgment delivered by the Maharashtra Administrative Tribunal, which is assailed in the present writ petition.
18. Reliance placed by the learned Counsel for the petitioners on the judgment in the case of State of U.P. & anr. vs. Santosh Kumar Mishra & anr. (cited supra) is wholly misplaced. The said judgment has interpreted the Recruitment Rules which provide for direct entry of Pharmacists after acquiring relevant qualification in the public employment. Whereas, in the case in hand, there is no such Rule or policy which confers any right in the petitioners in the present case to seek direct entry in the service without ::: Downloaded on - 29/03/2014 18:56:39 ::: (21) W.P. No.8853/2013, etc. undergoing the recruitment process as contemplated under the Recruitment Rules.
19. The contention of the petitioners that past decision of the Government of granting permanent employment to the bonded candidates confers similar right in the present petitioners of permanency is required to be rejected in view of the fact that the said claim has to be considered in the light of the Recruitment Rules and the policy of the Government.
20. So far as the reliance placed by the petitioners upon the judgment in the case of Confederation of Ex-Servicemen Associations & ors. vs. Union of India & ors. (cited supra) in support of the contention that there is a legitimate expectation in their favour about granting status of a permanent employee is concerned, the said principle cannot be made applicable to the case of the petitioners inasmuch as the Recruitment Rules and the policy adopted by the Government; more particularly in the light of the law laid down by the Apex Court in the case of Secretary, state ::: Downloaded on - 29/03/2014 18:56:39 ::: (22) W.P. No.8853/2013, etc. of Karnataka & ors. vs. Umadevi & ors. (cited supra), the petitioners have no right to ask for the benefit under the doctrine of legitimate expectation. The further claim of the petitioners that they are entitled for the benefit of promissory estoppel is also liable to be rejected in view of the fact that the principle of promissory estoppel will not operate against the principle of law.
The principle of law postulates that recruitment in the public employment has to be after following due procedure as provided under the Recruitment Rules.
21. The contention of the petitioners that the person has worked for some time and in some cases for considerable length of time will have hardly any bearing on the status of permanency sought by the petitioners. In fact, the petitioners were aware of the fact that their entry into the service is by virtue of bond executed by them and the fact that they will not be given status of permanency was very much known to them. In the present case, there was no promise by the authorities that the petitioners will be given the status of permanency. In fact, it was the intention of the ::: Downloaded on - 29/03/2014 18:56:39 ::: (23) W.P. No.8853/2013, etc. appointing authority that posts in question, which are permanent vacancies, are required to be filled in after following due procedure as provided for the recruitment. The observations made by the Honourable Apex Court in the case of Secretary, State of Karnataka & ors. vs. Umadevi & ors. (cited supra) in paragraphs 34, 36, 37, 38, 39 and 40 deal with the claim put-forth by the petitioners. In the light of above referred observations made by the Apex Court, the claim of the petitioners for grant of permanency in service is liable to be rejected and is rightly rejected by the learned Maharashtra Administrative Tribunal.
22. The view taken above about the binding effect of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & ors. vs. Umadevi & ors. (cited supra) is reiterated by the Honourable Apex Court in the judgment of Official Liquidator vs. Dayanand & ors., reported in (2008) 10 SCC 1. In the said judgment the Honourable Apex Court came across the view taken by a Division Bench in the case of Pooran Chandra Pandey, reported in (2007) 11 SCC 92, where the two Judges' Bench of the ::: Downloaded on - 29/03/2014 18:56:39 ::: (24) W.P. No.8853/2013, etc. Honourable Apex Court has watered down the binding effect of the judgment of the Apex Court in Secretary, State of Karnataka & ors. vs. Umadevi & ors. (cited supra) . The Honourable Apex Court, while dealing with the same has observed that the comments and observations made in Pooran Chandra Pandey case should be read as obiter and should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor should they be relied upon or made the basis for bypassing the principles laid down in Umadevi (3) (cited supra).
23. In the matter of Offficial Liquidator vs. Dayanand & ors.
(cited supra), it could be easily inferred that a regular appointment to the post under the State cannot be made without issuing advertisement in the prescribed manner, which may in some cases include inviting applications from Employment Exchange where the eligible candidates get their names registered.
An advertisement has also to be made inviting applications from eligible candidates and holding of a selection by a body of experts or specially constituted committee, whose members are fair and ::: Downloaded on - 29/03/2014 18:56:39 ::: (25) W.P. No.8853/2013, etc. impartial, through a written examination, or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. The petitioners' claim for permanency, if tested in the light of above principle which is laid down by the Apex Court, same is liable to be rejected as their entry into employment is as a bonded candidate.
24. Having regard to the above, this Court does not notice any error of law or any ground calling for interference in the view taken by the learned Maharashtra Administrative Tribunal while dismissing the Original Applications preferred by the petitioners.
25. No case for interference is made out. Writ Petitions are dismissed. Rule stands discharged. In the circumstances, there shall be no order as to costs.
N.W. SAMBRE R.M.BORDE
JUDGE JUDGE
amj/wp8853.13
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