IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 2618 of 2009 with C.W.P. No. 3453 of 2009. Reserved on: 14.07.2010. Decided on: 20.09.2010. _________________________________________________________ 1. Sanjeev Kumar and others. …Petitioners. -Versus- State of Himachal Pradesh and another. …Respondents. 2. Ajay Kumar and another. ….Petitioners. -Versus- State of Himachal Pradesh and another. ….Respondents. ---------------------------------------------------------------------------------------- Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ C.W.P. No. 2618 of 2009. For the petitioners. : Mr. Rajnish Maniktala, Advocate. For the respondents. : Mr. R.K. Bawa, Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. C.W.P. No. 3453 of 2009. For the petitioners. : Mr. Ashwani K. Sharma, Advocate. For the respondents. : Mr. R.K. Bawa, Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Since common questions of law and facts are involved in these petitions, these were heard together and are being disposed of by this common judgment. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. 2. In order to maintain clarity in the facts, the facts of C.W.P. No. 2618 of 2009 are being referred. 3. Petitioners have completed 1 & ½ years Certificate Course of Multipurpose Health Workers (Male) from recognized institutions. Thereafter, they have got their names registered with Himachal Pradesh Para-medical Council. The respondent- State has framed Himachal Pradesh Department of Health & Family Welfare, Male Multipurpose Health Worker, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 1998. These rules were notified on 21.10.1998. The minimum qualification prescribed for filling up the post of Male Multipurpose Health Worker is matriculation with Science/Hr. Secondary Part-I pass or its equivalent from a recognized Board/Institution. These posts have to be filled up 100% by direct recruitment. The selection for appointment to the post in the case of direct recruitment is to be made on the basis of viva-voce test and if the Himachal Pradesh Public Service Commission or other recruiting authority as the case may be, so consider necessary or expedient by a written test or practical test etc.. The respondent-State has also notified the Himachal Pradesh Department of Health and Family Welfare, Female Multipurpose Health Workers Group-C (Non-Gazetted) Recruitment and Promotion Rules, 1998 on 15.12.1998. The minimum essential educational qualification, mode of filling up the post and selection process is the same as prescribed for Male Multipurpose Health Worker. However, the respondent-State has issued a notification on 25th February, 2009, whereby “Mahila Gram Panchayat Swasthya Sahayika Scheme (MGPSS), 2009 has been notified. The objective of the Scheme is to promote the role of Gram Panchayats in providing basic health care to their residents and as a part of the decentralization process. The Gram Panchayat can engage the services of Mahila Gram Panchayat Swasthya Sahayikas in Preventive Health Services and Curative Health Services. It will be apt at this stage to reproduce paragraph No. 2 of the Scheme, which reads thus: “2. Scheme Coverage: This scheme seeks to devolve the functions of a Sub Centre to the Gram Panchayat and introduce the Mahila Gram Panchayat Swasthya Sahyika in place of the Female Health Worker/Male Health Worker in those Gram Panchayats which are selected under this scheme. The scheme is being introduced in 1172 Gram Panchayats initially. District wise allocation of this number will be based on Gram Panchayats without a Sub Centre and Sub Centres without female health workers in the district. The selection of Gram Panchayats will be based on applications to be invited from Gram Panchayats. If the application received exceed the District quota then those Gram Panchayats will be selected which have a better record on criteria such as number of Gram Sabha meetings held without postponement necessitated by lack of quorum, amount of per capita own tax resources raised and receipt of NGP, State sanitation reward or achievement of ODF status. The Panchayati Raj Department will help to carry out the selection of Gram Panchayats and the entire scheme will be run in close co-ordination with that Department. If the selected Gram Panchayat is in the area of a Sub Centre where FHW is posted, the area will be deleted from her area of responsibility and appropriate substitution will be effected in her work area.” 4. To carry out these functions, the Gram Panchayat is required to be provided funds in the form of a Grant-in-aid, which will vary according to the population of the Gram Panchayat. The terms and conditions of appointment of Mahila Gram Panchayat Swasthyas Sahayika (MGPSS) have been provided in paragraph No. 4 of the scheme. A Gram Panchayat can appoint one or more MGPSS in the Gram Panchayat depending on the workload. The Gram Panchayats are free to appoint a MGPSS even on part time basis or sharing basis. The MGPSS (Mahila Gram Panchayat Swasthya Sahyika) is to be selected by a Committee comprising of : i) PHC Medical Officer- Chairman; ii) Gram Panchayat Pradhan-Member; and Mahila Panch- Member. The eligibility criteria prescribed in paragraph No. 4 (ii) of the scheme reads thus: “4.(ii) Eligibility Criteria- a) Minimum education qualification will be Matric. Weightage will be given to the candidates with higher qualification. (b) Applicant would be required to have undergone a recognized course of health worker training or Nursing and possess necessary certification registration with relevant Council in this regard. (c) Retired FHW or a Nurse up to the age of 65 years will be eligible to apply for the position. (d) Preference will be given to those candidates having working experience either as a Female Health Worker or a Nurse in a recognized Health Institution.” 5. The B.M.O. and M.O. is liable to provide an induction training of six working days at the Block Head quarter/nearest Functional PHC to the selected candidates. Three days refresher training by the BMO at the Block Head quarter is also stipulated in every subsequent year. The functions and duties of MGPSS is stipulated in paragraph No. 5 of the scheme. 6. Mr. Rajnish Maniktala and Mr. Ashwani K. Sharma, learned counsel for the petitioners have strenuously argued that the respondent-State could not issue notification dated 25th February, 2009 (Annexure P-4), i.e., “Mahila Gram Panchayat Swasthya Sahayika Scheme (MGPSS), 2009” in contravention of Rules framed under Article 309 of the Constitution of India vide Annexures P-2 and P-5. Mr. Rajnish Maniktala has strenuously argued that the Recruitment and Promotion Rules framed under Article 309 cannot be substituted by a Scheme, which is non- statutory in nature. 7. Mr. R.K. Bawa, learned Advocate General has supported the issuance of Scheme vide notification dated 25th February, 2009 (Annexure P-4). According to him, the petitioners have no legal right to be appointed as Male/Female Multipurpose Health Workers merely on the ground that they have acquired the necessary educational qualification. He then contended that Annexure P-4, dated 25th February, 2009 only talks of Mahila Gram Panchayat Swasthya Sahyikas and the petitioners are not at all entitled to be considered against the same. He lastly contended that the Scheme is an out-come of a policy decision. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. A bare perusal of Annexures P-2 and P-5 makes it abundantly clear that these Rules have been framed under Article 309 of the Constitution of India. These rules provide for minimum educational qualification, mode of recruitment and the process of selection. The Health Department has also out-lined the job responsibilities of Male Multipurpose Health Workers as well as Female Multipurpose Health Workers as per Annexure P- 6. The Male Multipurpose Health Workers are required to ensure the eradication of Malaria, Communicable Diseases, Leprosy, Tuberculosis, Environmental Sanitation, Reproductive and Child Health Programme, Nutrition, Vital Events and Control of Blindness etc.. The Female Health Workers are required to look after Reproductive and Child Health Programme, Nutrition, Dai (Tba) Training, Communicable Diseases, Vital Events etc.. As noticed above, the respondent-State has issued a Scheme vice notification on 25th February, 2009 (Annexure P-4). The objectives of the Scheme have already been discussed in the opening part of the judgment. The scheme seeks to devolve the functions of a Sub Centre to the Gram Panchayat and introduce the Mahila Gram Panchayat Swasthya Sahyika in place of the Female Health Worker/Male Health Worker in those Gram Panchayats which are selected under this scheme. This scheme was introduced in 1172 Gram Panchayats initially. A bare perusal of paragraph No. 2 of the scheme stipulates to devolve the functions of a Sub Centre to the Gram Panchayat and introduce the Mahila Gram Panchayat Swasthya Sahayika in place of the Female Health Worker/Male Health Worker. In these circumstances, it can safely be presumed that neither Female Health Worker nor the Male Health Workers shall be appointed, whose conditions of service are to be governed under Annexures P-2 and P-5. In other words, the Female Health Workers/Male Health Workers are being replaced by a scheme notified on 25th February, 2009. The Female Health Workers/Male Health Workers are being replaced by the Mahila Gram Panchayat Swasthya Sahayika under the scheme. The Female Health Workers/Male Health Workers as per Annexures P-2 and P-5 were to be recruited by the State Agencies in regular pay scale and were required to discharge their duties as visualized in Annexure P-5. The Mahila Gram Panchayat Swasthya Sahayikas are to be appointed as per the scheme by a Committee comprising of: i) PHC Medical Officer-Chairman; ii) Gram Panchayat Pradhan-Member; and Mahila Panch- Member. The training imparted to newly appointed MGPSS is six working days with three days refresher course every year. Though the petitioners have not been held out any assurance by the State Government when they were undergoing the training of Female Health Workers/Male Health Workers, however, they have the legitimate expectation that as and when the posts are filled up, their cases shall be considered in accordance with law. The respondent State has not filled up the posts of Female Health Workers/Male Health Workers since 2002. Petitioners have made representations for the redressal of their grievances. The Additional Director of Health Services has apprised the petitioners as per Annexure P-9, dated 10th February, 2009 that as and when the posts of Female Health Workers/Male Health Workers are notified, the petitioners can apply for the same. However, fact of the matter is that since there is devolvement of functions of the Sub Centre upon the Gram Panchayats, the Female Health Workers/Male Health Workers will be replaced by the MGPSS. The respondent-State has overridden the Recruitment and Promotion Rules notified vide Annexures P-2 and P-5, dated 21.10.1998 and 15.12.1998 under Article 309 of the Constitution of India by Annexure P-4, dated 25.02.2009. 10. Their lordships of the Hon’ble Supreme Court in B.N. Nagaranjan and others etc. Versus State of Karnatka and others etc., AIR 1979 Supreme Court 1676 have held that act done in exercise of executive power of Government cannot override Rules under Article 309 of the Constitution of India. Their lordships have held as under: “5. The first order appointing promotees as Assistant Engineers is dated the 15th of November, 1958 (Exhibit A). That order made it clear that all the promotees covered by it were appointed officiating Assistant Engineers and were to hold office until further orders. The promotion was also made subject to review after the finalisation of the inter-State seniority list of Supervisors and the Recruitment Rules. The notification went on to state that in the case of 94 of the officers promoted under it, their appointment as Assistant Engineers was being made on a purely temporary basis inasmuch as they would have to vacate the posts against which they were being fitted, as soon as candidates were available through a process of direct recruitment. The language employed leaves no doubt that the promotion of the 167 officers was not substantively made, the tenture being specifically stated to be either "officiating" or "purely temporary" which expressions clearly militate against a substantive appointment. Orders made by the State Government later on and right up to the 31st of October, 1961 when the direct recruits were appointed Assistant Engineers did not improve the position of any of of the promotees in any manner. Those orders were either silent on the point of the nature of the tenture of the promotees as Assistant Engineers, or stated in no uncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. That us why Dr. Chitley and Mr. Sen, learned counsel for the promotees, mainly placed their reliance on the two notifications dated the 27th of February, 1962, and order exhibit D dated the 6th of October, 1962, the combined effect of which was to promote the said 107 officers as Assistant Engineers with effect from the 1st of November, 1956 "on a regular basis." It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st of November, 1956. The argument however is unacceptable to us for two reasons. Firstly the words "regular" or "regularisation" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenture of the appointments. In this connection reference may with advantage be made to State of Mysore v. S. V. Narayanappa, (1967) 1 SCR 128 and R. N. Nanjundappa v. T. Thimmaiah, (1972) 2 SCR 799. In the former this Court observed: "Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence." In Nanjundappa's case also the question of regularisation of an appointment arose and this Court dealt with it thus:- "..... Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of performance on the appointment whereas counsel on behalf of the State contended that regularisation did not mean performance but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non- compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Art. 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Art 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from the 1st of Nov. 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regualrisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotes a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art. 309 of the Constitution. The case has, for both the above reasons, to be decided on the footing that all through the relevant period the promotees held appointments as Assistant Engineers in a non-substantive capacity i.e., either on an officiating or a temporary basis. This being the position, they would all rank junior to the direct recruits who, from the very start, held appointments made "substantively in clear vacancies." 6. We may here make it clear that this order does not cover such officers as were holding the posts of Assistant Engineers on a substantive basis prior to the 1st of Nov. 1956 when the new State of Mysore now known as Karnataka came into being. Nor would it adversely affect the case of any Assistant Engineer who acquired a substantive status prior to the promulgation of the Recruitment Rules and the appointment of the direct recruits. Persons falling within these two categories will first have to be accommodated in the clear vacancies available and only the remaining vacancies will have to be utilized for fitting in the direct recruits and the Assistant Engineers who have disputed their claim in these proceedings. It may also be mentioned that the quota rule will not stand in the way of the Government giving effect to this arrangement which has been taken care of in the amendment (promulgated on the 23rd of Oct., 1961) to the Recruitment Rules. The relevant portion of that amendment is contained in item 3 thereof which is reproduced below: "3. To R. 2 the following proviso shall be added and shall be deemed always to have been added, namely- "Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the period of probation shall be the following namely- "Qualifications:....." It is common ground between the parties that the posts comprised in the cadre of Assistant Engineers constituted by the Recruitment Rules have yet to be filled in for the first time. The proviso extracted above therefore will apply fully to the utilization of those vacancies as stated above. It goes without saying that all questions of seniority shall be decided in accordance with the Seniority Rules and that the Recruitment Rules, as amended from time to time, shall be fully implemented as from the date of their enforcement, i.e., 1st of March, 1958. 11. In K. Kuppusamy and another Versus State of T.N. and Others (1998) 8 Supreme Court Cases 469, their lordships of the Hon’ble Supreme Court have held that the statutory rules cannot be overridden by executive orders or executive practice. “3. The short point on which these appeals must succeed is that the tribunal fell into an error in taking the view that since the government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The tribunal was, therefore, wrong in ignoring the rule. 12. In Punjab Water Supply and Sewerage Board Versus Ranjodh Singh and Others (2007) 2 Supreme Court Cases 491, their lordships of the Hon’ble Supreme Court have held that a scheme issued under Article 162 cannot prevail over statutory rules or Article 309. Their lordships have further held that if terms and conditions of service are governed either by statutory rules or Article 309 proviso rules, any policy decision adopted by State Government under Article 162 would be illegal and without jurisdiction. Their lordships have held as under: “14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. In A. Umarani vs. Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112], a Three Judge Bench of this Court has opined : "No is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules." It was further held : "It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput)." 13. In Mahadeo Bhau Khilare (Mane) and others Versus State of Maharashtra and Others, (2007) 5 Supreme Court Cases 524, their lordships of the Hon’ble Supreme Court have held that a scheme framed by way of administrative instruction, in violation of statutory rules cannot be sustained. Their lordships have held as under: “7. Indisputably, the State of Maharashtra has framed recruitment rules. Any scheme by way of an executive instruction in terms of Article 162 of the Constitution of India, if violative of such statutory rules would not be legally sustainable. [See A. Umarani v Registrar, Cooperative Societies and Others, (2004) 7 SCC 112].” 10. In terms of the said Scheme, Steno- typists, Typists on the IIIrd grade or similar posts of the Revenue Department could be absorbed in the State service. We would assume that the said scheme was valid in law, although it was not in view of the decision of this Court in Umarani (supra). Appellants were appointed by Talathis as their assistants. They only used to assist the Talathis in their day to day work. They were never appointed as Talathis. No such post of Assistant to Talathis had been created and/or sanctioned by any competent authority. No recruitment rule therefor was framed. Therefore, their appointments were illegal. The State had also imposed a ban on appointment of such persons. In any event, they were appointed by the employees themselves to help them and not by any authority having the requisite jurisdiction therefor.” 14. In State of Orissa