Madhya Pradesh High Court
Sunita Tiwari vs Union Of India on 9 June, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P.No.1405/2021
Dr.M.Shakil and others
Versus
The State of Madhya Pradesh and others
W.P.No.1490/2021
Sunita Tiwari & another
Versus
Union of India and others
Date of Order 10/06/2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J
Whether approved for
reporting
Name of counsels for For Petitioners: Shri Anshuman
the parties Singh and Shri Ankit Saxena,
Advocate
For Respondent-State: Shri Vivek
Sharma, Deputy Advocate General.
Law laid down
Significant Para Nos.
Reserved on: 22/02/2021
Delivered on: 10/06/2021
ORDER
Since facts of both the petitions are identical, the matters are heard and decided by this common order. For the sake of convenience, facts of W.P. No.1405/2021 are being taken-up for consideration.
2(2) By this petition, the petitioners have challenged the advertisement dated 06/01/2021 (Annexure-P-3) and are asking that the same be set aside because it is arbitrary, illegal and violative of Fundamental Rights of the petitioners. It is further claimed that by issuing appropriate directions, the respondents be directed to include BHMS degree as the educational qualification for the post of Community Health Officer as stipulated in the guidelines of the year 2020.
(3) The petitioners are working as Contract Ayush Medical Officer possessing the degree of BHMS. According to them, the guidelines issued in the year 2020 provide that a candidate possessing BHMS degree from a recognized institution can become a Community Health Officer. They have also stated that earlier in the policy of 2017 and 2018 there was no such qualification provided to become a Community Health Officer but it has been included in the guidelines of the year 2020 and as such impugned advertisement Annexure-P-3 is illegal and only BAMS candidates have been called to participate in the selection process but candidates having degree of BHMS 3 have been deprived.
(4) It is contended by the petitioners that the impugned advertisement being illegal, arbitrary and discriminatory deserves interference of this Court to the extent of permitting them to participate in the selection process. It has also been submitted that the respondent no.3 cannot discriminate the candidates having degree of BHMS by allowing only BAMS candidates for appointing them as Community Health Officer.
(5) The respondents have filed their reply taking stand therein that the impugned advertisement makes it clear that the qualification to become a Community Health Officer has been prescribed under Schedule 2 of Indian Medical Central Council Adhiniyam. It is also stated that the Government of India under a scheme to establish Ayush Health and Wellness Center under Ayushman Bharat Scheme would implement the entire scheme in the phase- wise manner by 2023-2024. As per the return submitted, as many as 12500 Health and Wellness Sub Centers are to be opened all over the State. In those Wellness Sub Centers, 4 Community Health Officers are to be appointed during the implementation of the programme. The same has to be done in a phase-wise manner and vacancies that arise have to be filled up by calling candidates having requisite qualification. It is stated that the vacancies have to be filled up as per the required Community Health Officers of a particular subject but it does not mean that other qualified persons are being deprived. It is also clarified that the impugned advertisement has not been issued inviting applications for total vacant posts. It is also stated by the respondents that on earlier occasion almost similar issues have been raised and dealt with by the High Court in which claim of the petitioners has been rejected by the Court holding that the assurance given by the State to call other qualified persons in subsequent phases and as such there is no discrimination with the petitioners and action of the State has not been considered arbitrary or illegal. Respondents/State have annexed several orders of Division Bench and also of Single Bench dealing with the same issue certifying the action of the State valid.
(6) Considering the rival contentions of parties and 5 perusal of record, it is clear that the advertisement was issued to fill up only 337 posts of Community Health Officers whereas total 12500 Health and Wellness Centers have to be upgraded and that exercise has to be completed in a phased manner. Accordingly, only BAMS candidates are being called in respective phases. The stand taken by the respondent-State makes it clear that the candidates having degree of BHMS have not been declared disqualified or debarred to participate in the selection process but considering the present requirement, only BAMS candidates are being called and as such the petitioners are not being discriminated in any manner. (7) I have also perused the order of Division Bench in case of Dr.Jaikumar Sahu Vs. Union of India and others, W.P.No.18425/2020 decided by order dated 16/12/2020 in which BAMS candidates were not called in the selection of Bridge program whereas they were qualified. The Division Bench has found the advertisement was confined to BSc (Nursing) candidates only and it was only in a phased manner and selection was being done for limited posts and there is every possibility that in subsequent phase 6 applications would be invited from BAMS candidates as well. As such nothing illegal was noticed by the Division Bench in the action of State while dismissing the petition. (8) Likewise in W.P.No.15982/2020, Dr.Lakhanlal Patel Vs. State of Madhya Pradesh and others advertisement was issued inviting applications for Community Health Officer in which Homeopathy doctors were not eligible to participate because advertisement was confined to the candidates having BSc (Nursing) with integrated curriculum of certificate in community health. The Court has found that the selection process cannot be faulted only because a particular category of candidates have been called but it is a prerogative of the State to decide and formulate the policy as per their requirement and to lay down the eligibility criteria. Further same view has been taken by the High Court in W.P.No.15301/2020 (Association of Modern Ayush Doctors Samiti Vs. State of M.P. and others). The said order was later on affirmed by the Division Bench in Writ Appeal 1173/2020. In a Writ Petition No.23625/2019 (Abhishek Parmar Vs. State of M.P. and another) an advertisement was under challenge 7 in which for health and wellness programme certificate in community health candidates having the qualification of BSc (Nursing), post basic BSc or GNM or BAMS were invited, whereas other qualified candidates of other categories had not been invited. The Court has found that the grievance of the candidates cannot be entertained because the employer has decided not to include a particular category of candidates though qualified to be included for a particular post and as such found that cannot be said to be contrary to the policy.
(9) Considering the issues already dealt with by the High Court in several occasions, wherein almost similar type of grievances have been raised by the candidates though qualified but not called to participate in the selection. (10) I am also of the opinion that in the present case also the Government has decided to invite the applications for a post of Community Health Officer from the candidates having degree of BAMS. It is an exercise for implementing the policy formulated by the Central Government with an intention to carry out the said exercise in phased manner till 8 2023-24. The Ministry of Ayush Government of India in the year 2020 issued the guidelines under which Ayush Health and Wellness Centers have to be established all over the State. The impugned advertisement has been issued to fill-up the limited posts calling candidates having degree of BAMS considering the requirement of services of Community Health Officers of said category but it does not mean that the petitioners who are having degree of BHMS would not be called in future and have been assured by the State that they can also be called in subsequent phases. Therefore, impugned advertisement in any manner cannot be said to be illegal arbitrary and discriminatory. (11) Ex consequentia the Petition being without any substance, is accordingly dismissed.
(SANJAY DWIVEDI) JUDGE Sushma Digitally signed by SMT SUSHMA KUSHWAHA Date: 2021.06.14 18:30:12 +05'30' 9 10 11