Rajasthan High Court - Jodhpur
Rajkumar & Ors vs State Of Raj. & Ors on 1 March, 2011
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
(1)SBCivil Writ Petition No.6207/2009 (Rajkumar & Ors. v. State of Raj. & Ors.) (2)SBCivil Writ Petition No.6632/2009 (Fateh Singh Bhati & Ors. v. State of Raj. & Ors.) (3)SBCivil Writ Petition No.6770/2009 (Mahesh Kumar Patidar & Ors. v. State of Raj. & Ors.) (4)SBCivil Writ Petition No.6943/2009 (Moinuddin Mansuri & Ors. v. State of Raj.& Ors.) (5)SBCivil Writ Petition No.6978/2009 (Devilal Dhaker & Ors. v. State of Raj. & Ors.) (6)SBCivil Writ Petition No.9163/2010 (Sumitra Vaishnav v. State of Raj. & Ors.) Date of Order :: 1st March, 2011 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. R.S.Choudhary ] Mr. Rajesh Shah ] Mr. R.C.Joshi ] for the petitioners.
Mr. Deelip Kawadia] Mr. G.R.Punia, Additional Advocate General. Mr. Yashpal Khileree, Deputy Government Counsel.
....
The Additional Director (Administration), Directorate of Medical and Health Services, Rajasthan, Jaipur, under an advertisement dated 4.5.2007 invited applications from the eligible desirous candidates for engagement as Nurse Grade-II/General Nurse Male (GNM) against the existing 2500 posts in various district of the State. The posts aforesaid were not regular 2 encadered posts, but created under the National Rural Health Mission (NRHM). Accordingly, appointments supposed to be made too were on contract basis at consolidated salary. The appointments under the advertisement aforesaid were required to be made at Sub Health Centres in rural areas at remote as well as general places, thus, a preference to the bonafide residents of the district concerned was also extended.
By an another advertisement dated 8.8.2007 the respondents again invited applications from eligible candidates against the posts in NRHM, however, the preference on district level was taken away, but it was made clear that those who have applied in pursuant to the first advertisement need not to apply afresh. A corrigendum thereafter was issued on 25.8.2007 wherein the criteria relating to appointment at district level was withdrawn and a merit list at State level was sought to be prepared. By an another corrigendum dated 21.1.2008 the condition of preparing a merit list of the selected incumbents at district level was again inserted.
A challenge was given to the condition pertaining to preparation of merit at district level by way of filing a petition for writ before this Court (SBCivil Writ Petition No.1120/2008, Dema Ram Choudhary v. State of Rajasthan & Ors.). The petition for writ aforesaid came to be accepted vide judgment 3 dated 20.2.2008 with following observations and directions:-
"Since the controversy raised in all the writ petitions comes in a narrow compass and inasmuch as learned counsel for the petitioners submits that if a direction is issued to prepare the merit list on state level with one and similar criteria and a further direction for consideration of candidature of all the candidates, who applied pursuant to the advertisement dated 04.05.2007 as well as well as 08.08.2007, then petitioners will have no grievance.
Looking to the fact that the aforesaid prayer is not seriously opposed by learned counsel for the respondents, more so when it was due to preparation of districtwise merit list, different criteria in discriminatory manner has been adopted in different districts and otherwise action of the respondents is illegal in view of by the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar gupta (supra) where selection on district level was held to be illegal.
In view of the above, I allow all these writ petitions and direct the respondents to prepare merit list on state level by adopting one and same criteria for preparation of the merit. The appointments are directed to be given thereupon strictly in order of merit irrespective of the place from a candidate is coming and while considering the merit of the candidates, all the applications already submitted, pursuant to the first and second 4 advertisement would be taken into consideration. The corrigendum dated 21.01.2008 is set aside accordingly, while maintaining the corrigendum dated 25.08.2007."
An another writ petition i.e. SBCivil Writ Petition No.741/2008, Santh Lal Yadav & Ors. v. State & Ors., too came to be accepted on 8.5.2008 in light of the directions given by this Court in the case of Dema Ram (supra). The issue was again considered by this Court in SBCivil Writ Petition No.3188/2008, Dinesh Kumar v. State of Rajasthan & Ors. and that also came to be disposed of in terms of the judgment given in the case of Dema Ram (supra). The State of Rajasthan in the case of Dinesh Kumar (supra) preferred a special appeal (DBCivil Special Appeal No.615/2008) before Division Bench of this Court, which came to be dismissed on 10.7.2008. The Division Bench while affirming the judgment given in the case of Dinesh Kumar (supra) held as under:-
"As regards, the submission made by the learned counsel for the State that the advertisement issued for the recruitment of the post of GNM, in the present case, was on contract basis and based on local criteria.
It would suffice to say that similar contention had been dealt with by the Apex Court in the case of Rajesh Kumar Gupta & Ors. v. State of U.P. & Ors. (supra) but it had been turned down. Therefore, this 5 contention of the counsel for the State cannot be sustained. In respect of the submissions made by the counsel for the State that the present recruitment was under
National Rural Health Mission for one year and was with the aid of the World Bank and therefore the advertisements were issued for serving the said purpose. It would be noted that the appellant State itself had been issued advertisement one after the other, starting from 04.05.2007. More so corrigendum after corrigendum were also being issued which certainly resulted in delay in the selection of the candidates. Therefore, the fault lies with the Government in consuming long time in the selection so as to serve the purpose for which it was proposed to be made. In any case, the selection, whatever may be the purpose, has to be made in accordance to law and the State Government cannot deviate from the settled principles in respect of such selection. In case, it is not so done then the same is violative of the provision of the Constitution and interference by the Courts is warranted."
The special appeal preferred in the case of Dema Ram Choudhary (DBCivil Special Appeal No.388/2008), too came to be rejected on 4.11.2009, in terms of the Division Bench judgment dated 10.7.2008. Subsequent thereto, certain other writ petitions were also accepted by this Court in light of the judgments referred above. In one writ petition i.e. SBCivil Writ Petition No.4298/2008, Manoj Kumar Sharma & Ors. V. State of Rajasthan & Ors., decided on 15.5.2009, this 6 Court directed the respondents that in case name of any petitioner stand in the state merit list relating to General Nurse Male and the advertised vacancies are available, then they may be given appointment as per their merit even if the less meritorious persons are continuing, then they have to make room for the petitioners who find place at higher pedestal in state merit list. In view of the directions given by this Court in the case of Manoj Kumar Sharma (supra), the respondents cancelled appointment of the petitioners, who were employed as GNM in pursuant to short term advertisement dated 4.5.2007 as amended time to time. To challenge the orders of termination from service, these petitions for writ are preferred.
The contention of counsel for the petitioners is that the petitioners were not party to any of the proceedings undertaken before this Court and, therefore, the rights accrued in their favour could have not been disturbed without affording them an opportunity of hearing. It is also urged that the vacancies advertised under the first advertisement dated 4.5.2007 could have not been clubbed with subsequent vacancies advertised under subsequent notifications. As per the petitioners they were employed as a consequent to submission of application forms in pursuant to the first advertisement and, therefore, the vacancies advertised under this advertisement should have remained undisturbed 7 irrespective of the directions given by this Court. It is also stated by counsel for the petitioners that the judgments given by this Court in the case of Dema Ram, Manoj Kumar, Dinesh Kumar and Santh Lal Yadav (all supra) are per incuriam as in none of the case the NRHM scheme under which the posts concern are created and sought to be filled in is considered. As per the petitioners the vacancies under the NRHM are required to be filled in only as per the scheme prescribed and not otherwise, as such the directions given to prepare a merit list at state level is erroneous, being contrary to the scheme. It is also urged that the NRHM is a self-contend scheme with sufficient and reasonable cause to make appointments at district level and that is having nexus sought to be achieved.
Heard.
The judgments given in the case of Dema Ram (supra) is mainly based on the law laid down by Hon'ble Supreme Court in the case of Rajesh Kumar Gupta and Ors. v. State of U.P. & Ors. [(2005)5 SCC 172] and by Full Bench of this Court in the case of Deepak Kumar Suthar v. State of Rajasthan & Ors., reported in 2000(1) WLC (Raj.) 1. The Deepak Kumar Suthar's case (supra) was relating to preference given on basis of the place of residence while making appointments under the Rajasthan Education Subordinate Service Rules, 1971. The Rules of 1971 are the Rules 8 framed under proviso to Article 309 of the Constitution of India and those nowhere prescribes any classification among the aspirants for appointment to the post of Teacher Grade-III/Physical Training Instructor on basis of the place of residence. The Rajasthan Education Subordinate Service under the Rules of 1971 is an integrated service and, therefore, any preference prescribed on basis of the place of residence was treated bad by Full Bench of this Court. The procedure of appointment under consideration in the case of Deepak Kumar Suthar (supra) was also on state level. The Court, thus, held that such preference on basis of place of residence is in violation of Articles 14, 15 and 16 of the Constitution of India. In the case of Rajesh Kumar (supra) Hon'ble Supreme Court was dealing with the issue regarding grant of preference while making admissions in Basic Teacher Certificate Training Course wherein a preference was given for admission to the persons coming from the specific districts. Hon'ble Supreme Court in the case aforesaid while holding such classification bad, quite specifically noticed that "in the first place, there was no material to indicate that dialects vary from district to district. Consequently, there was no material to indicate that a candidate from one district was not likely to be familiar with the dialect of another district for which he applied for training. There was also no material placed on record to indicate that 9 training was to be in local dialect for the local school only. Finally, if the emphasis is really on the regional dialect, nothing prevented the State Government from making the knowledge of a specified regional dialect as preferential criterion for recruitment. For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation of merit list at the district level was arbitrary and violative of Articles 15(1) and 16(2) of the Constitution." It is pertinent to notice that in the case aforesaid it was noticed by the Apex Court that the State Government could have provided preferential criteria for recruitment if the emphasis is really on the regional dialect. The only reason given by the Apex Court for declaring preferential criteria bad was that no sufficient material was available before the Court to hold the classification reasonable and having nexus with the object sought to be achieved by making admission in BTC Course.
In the case in hand, for examining rationality of the preference given, the entire thrust of the objects of NRHM deserves thorough consideration.
The National Rural Health Mission (NRHM) was launched on 12.4.2005 to provide accessible, affordable and accountable quality health services to 10 the poorest households in the remotest rural regions. Under the NRHM the difficult areas with unsatisfactory health indicators were classified as special focus states to ensure the attention where needed. The thrust of the mission is on establishing a fully functional community owned, decentralised health delivery system with inter-sectoral conversance at all levels to ensure simultaneous action on a wide range of determinants of health like water, sanitation, education, nutrition, social and general equality. Institutional integration within the fragmented health centre was expected to provide a focus on out comes measured against Indian Public Health Standards for all health facilities. The NRHM was shifting the focus to a functional health system at all levels from a village to district.
The NRHM seeks to provide effective health care to rural population and raise public spending on health from 0.9% of GDP to 2-3%. It has its key component provisions of health activists at grass root level with village as a unit, therefore, a village health plan is prepared through a local team headed by the Health and Sanitation Committee of the Panchayat. For effective implementation of the scheme, various committees are established those are at National Level, State Level, District Monitoring Council at District Level, District National Rural Health Mission Committee at District Level, Block Governing Council 11 Committee at Block Level, District Governing Council at District Level, Executive Committee at Zila Parishad Level, Rugna Kalyan Committee at District Level, Sub Centre Strengthening Committee and Village Health Nutrition Water Supply and Sanitary Committee at village level. Under the mission several schemes are floated for providing basic and fundamental health awareness and health protection system at village, panchayat block and district level.
The vision of mission as per its mission document is as under:-
"To provide effective healthcare to rural population throughout the country with special focus on 18 states, which have weak public health indicators and/or weak infrastructure.
18 special focus states are Arunachal Pradesh, Assam, Bihar, Chattisgarh, Himachal Pradesh, Jharkhand, Jammu and Kashmir, Manipur, Mizoram, Meghalaya, Madhya Pradesh, Nagaland, Orissa, Rajasthan, Sikkim, Tripura, Uttaranchal and Uttar Pradesh.
To raise public spending on health from 0.9% GDP to 2-3% of GDP, with improved arrangement for community financing and risk pooling.
To undertake architectural correction of the health system to enable it to effectively handle increased allocations and promote policies that strengthen public health 12 management and service delivery in the country.
To revitalize local health traditions and mainstream AYUSH into the public health system.
Effective integration of health concerns through decentralized management at district, with determinants of health like sanitation and hygiene, nutrition, safe drinking water, gender and social concerns.
Address inter State and inter district disparities.
Time bound goals and report publicly on progress.
To improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care."
The core strategies of the mission are as follows:-
"Train and enhance capacity of Panchayati Raj Institutions (PRIs) to own, control and manage public health services.
Promote access to improved healthcare at household level through the female health activist (ASHA).
Health Plan for each village through Village Health Committee of the Panchayat.13
Strengthening sub-centre through better human resource development, clear quality standards, better community support and an untied fund to enable local planning and action and more Multi Purpose Workers (MPWs).
Strengthening existing (PHCs) through better staffing and human resource development policy, clear quality standards, better community support and an untied fund to enable the local management committee to achieve these standards.
Provision of 30-50 bedded CHC per lakh population for improved curative care to a normative standard. (IPHS defining personnel, equipment and management standards, its decentralized administration by a hospital management committee and the provision of adequate funds and powers to enable these committees to reach desired levels).
Preparation and implementation of an inter sector District Health Plan prepared by the District Health Mission, including drinking water, sanitation, hygiene and nutrition.
Integrating vertical Health and Family Welfare programmes at National, State, District and Block levels.
Technical support to National, State and District Health Mission, for public health management.
Strengthening capacities for data collection, assessment and review for evidence based planning, monitoring and supervision.14
Formulation of transparent policies for deployment and career development of human resource for health.
Developing capacities for preventive health care at all levels for promoting healthy life style, reduction in consumption of tobacco and alcohol, etc. Promoting non-profit sector particularly in underserved areas."
Looking to the area of operation i.e. the rural area, the NRHM aims at empowering local governments to manage, control and making those accountable for public health service at grass root levels, thus, the mission envisages a definite role for Panchayat Raj institutions. The Panchayat Raj institutions are the fundamental and basic unit for implementing the missions schemes and the State Government is required to indicate in its memorandum of understanding the commitment for devolution of funds, functionaries and programmes for health to Panchayat Raj Institutions. The mission at district level is required to be led by the Zila Parishad. The Zila Parishad is the main controlling authority to guide and manage all public health institutions in district, sub-centres, primary health centres and community health centres. Panchayat Raj Institutions effective involvement is made necessary in hospitals 15 management committees for good hospital management. A training programme for the members of the Panchayat Raj Institutions is also prescribed under the mission.
The mission document also deals with the issue of availability of critical man power in the rural areas and i.e. proposed to be addressed through initiatives like introduction of a trained voluntary community health worker in every village, additional Auxiliary Nurse Midwife at each sub-centres, three staff nurses at primary health centre. These para medical workers are required to remain operational round the clock with the aid of specialists and other para medical staff at the community health centres. The condition of local residency is emphasised under the mission document to ensure the presence of staff at their place of posting. Keeping in view the difficulty in availing services of doctors and specialists the mission document emphasises on recruitment, training and skills upgradation of locally recruited ANMs/Nurses/Midwives/other para medical staff. It is also pertinent to note that the basic network of the scheme is in remote rural areas and as such it is decentralised upto the lowest level of administrative hierarchy.
Under the scheme the Panchayat Raj Institutions are required to play a vital role in its implementation. The scheme requires knowledge of the 16 area concerned from various aspects including its social, political, economical and geographical conditions including the fact relating to general health of the natives. The basic unit of the scheme is Panchayat and i.e. having control by the District Level Committee created with the aid of Zila Parishad. The State Level phenomenon in the entire scheme is only for providing funds and for general administrative control relating to broad implementation of the scheme. The minute and effective control of the scheme, as a matter of fact is in the hands of the smaller units created at Panchayat Raj Institutions level, block level and district level. In such circumstances the classification while engaging para medical staff including the GNMs on basis of their place of residence appears to be in consonance with the object sought to be achieved by establishment of the NRHM.
I am of the view that in the case of Dema Ram (supra) and other cases disposed of in light of Dema Ram's case including Dinesh Kumar's case (upto the Division Bench level), the scheme created under the NRHM has not been taken into consideration. The judgments in the cases aforesaid given are based on the judgments of Rajesh Kumar Gupta (supra) and Deepak Kumar Suthar (supra) which in my considered opinion are based on different set of facts and are having no application in present controversy. The judgments 17 given in the cases of Dema Ram, Manoj Kumar, Santh Lal and Dinesh Kumar, thus, require reconsideration.
In view of the opinion aforesaid, I deem it appropriate to refer this matter to Hon'ble the Chief Justice for placing it before a Larger Bench. Shri G.R.Punia, learned Additional Advocate General has informed that an appeal (DBCivil Special Appeal (Writ) No.01800/2009, Sanjay Kumar Dhing & Ors. v. State of Rajasthan & Ors.) preferred by the effected private persons from the judgment given in the case of Dema Ram (supra) is pending consideration before this Court. Thus, it shall be appropriate to hear these petitions too alongwith the special appeal aforesaid. An interim order is already operating in favour of the petitioners in these cases and as such they are required to be continued in service till disposal of the writ petitions.
( GOVIND MATHUR ),J.
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