SEE‘miE 3E§¥§§§§ (‘1 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG) W.P.s Noéw é PETITIONERS: f Dr. Sanjay Dave S/o Late shri s.H.Dave, Aged about 45 years, presently posted as Medical Officer, PHC, Khatti, CHC Mahasamund, District — Mahasamund Dr. Shyam Sunder Gupta S/o Late Shri Chotelal Gupta, Aged about 43 years, presently posted as Medical Officer, PHC/Kumarpura, CHC — Janakpur (CG) Dr. Mahendra Singh S/o Late Shri Prem Singh Aged about 48 years, presently posted as Medical Officer, PHC, Borea Kala; CHC Dharsiwa, District — Raipur (CG) Dr. Sanjay Jain ~ S/o Shri Vijay Prakash Jain, Aged about 45 years, Presently posted as Medical Officer, PHC, Kadela Kala,‘ District — Dhamtari (CG) Dr. Prashant Bais S/o Shri Iagat Singh Bais, Aged about 43 years, ‘ presently posted as Medical Officer, PHc, Gatba, CHC — Baleda, ~ District — Ianajgir - Champa ? ‘ /‘ 6. ' S/o Shri Ram Rekha Rai, Aged about 53 years, presently posted as Medical Officer, PHC, Jevra, CHC — Durg District —Durg (CG) Dr. Arjun Sharma S/o Shri R. P. Sharma, Aged about 52 years, Presently posted as Medical Officer, PHC, Hathbandh, CHC — Simga, ‘ District - Raipur (CG) VERSUS 1. / State of Chhattisgarh Through the Secretary Department of Health Education D.K.S. Bhawan, Mantralaya Raipur (C.G.) ‘ / r Director Directorate of Health Education Old Nurses Hostel, D.K.S. Bhawan Premises, Raipur (C.G.) Dr. Bhagwat Rai Dr. Kamal Kishor Rai, S/ o Shri Ramrekha Rai, Aged about 41 years, Working as Dental Surgeon in Government Maharani Hospital, Jagdalpur, District Bastar (CG) §/ lfe .» PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR _ ISSUANCE OF APPROPRIATE WRITS OF MANDAMUS AND CERTIORARI AND FOR OTHER SUITABLE WRITS AND DIRECTIONS:- ,\\" a § \ AM HIGH COURT OF CHHATTISGARH : BILASPUR WR!T PETlTlON (S) NO.6796 OF 2009 Q PETITIONERS Dr. Sanjay Dave & Others Versus RESPONDENTS State of Chhattisgarh & Others (Writ Petition under Article 226 of the Constitution of india) Single Bench : Hon’bie Shri Satish K. Agnihotri, J. Present :- Shri Jitendra Paii, counsel for the petitioners. Shri A.V. Sridhar, Panel Lawyer for the State. ORDER (ORAL) (Passed on this 19‘“ day of November, 2009) 1. With the consent of learned counsel appearing for the parties, the petition is heard finally. 2. The petitioners, who are presently working as Doctors on contract basis, by this petition, mainly seek the following reliefs: “To kindly direct the respondent State to consider the case of the petitioners for regularization in terms of the paragraph 53 of the Judgment of Uma Devi (2006) 4 SCC 1. To kindly direct the respondent State to frame a scheme for grant of age relaxation to the petitioners as being granted to the census worker, Panchayat Karmis and Shiksha Karmis in the State.” 3. The indisputable facts, in nutshell, as projected by the petitioners, are that initially the petitioners were appointed on contract basis for a period of two years by ordersdated 27—4-1998, 27—4—1998, 26-6-1994, 31-1-2002, 22—7-2002, 2—3-2001, as is evident from Annexure — P/1. Thereafter, the contract period of the petitioners‘was extended from time to / ‘ time for 2 or 3 years. The petitioners are at present working as Medical Officers on contract basis. In the year 2005, the ; Chhattisgarh Pubiic Service Commission (for short “the PSC") invited applications from the eligible candidates for selection! appointment on the post of Medical Officers. Pursuant to the said advertisement, the petitioners applied for the same, but their application forms have been rejected on the ground of being over-age, which is evident from the rejection letter dated 13-9—2005 (Annexure — P/5). Thereafter, the petitioners made several representations before the respondent—authorities for regularization of their services. After receipt of the representations, the respondent~authorities initiated proceedings to regularize the services of the petitioners, but thereafter no action has been taken. The State of Madhya Pradesh by order dated 31—12-2005 (Annexure - P/9) regularized the services of the contract appointees (Doctors) in the said State and on the basis of the said order, the petitioners herein also made a representation on 18-1 0-2007. On the said representation the respondent-authorities initiated action, but the same did not fructify. ln the meantime, again the PSC issued an advertisement on 29-5-2008 for 1200 posts, but the petitioners could not participate in the said selection process for the same reason .iie. over~age. ln the said selection process only 324 candidates have been selected. All the said candidates are junior to the petitioners possessing similar qualifications. Thus, this petition. Shri Pali, learned counsel appearing for the petitioners, would submit that the petitioners have served in rural areas of the State of Chhattisgarh for several years, which is in dire need of W health services. The action of the State i’f1 disqualifying the experienced doctors merely on the ground of over—age would be vioaltive of Articie 47 of the Constitution of India. The State of Chhattisgarh is having much less number of qualified doctors for providing health services to the people of State. Learned counsel would further submit that the action of the respondent-aUthorities ls against the provisions of Article 47 of th Constitution of India. Learned counsel would next submit e that the respondent-authorities have given the benefit of ge a relaxation to the Shiksha Karmis, Panchayat Karmis and Cesus Workers; therefore, the imilar benefit may be granted n s in case of the present petitioners. I support of his contention, n learned counsel appearing for the petitioners placed his reliance upon the decisions of the Supreme Court rendered in Dr. Ami Lal Bhat v. State of Rajasthan and 0thers1, Secretary, State of Karnataka and Others v. Umadevi (3) and Othersz and Mineral Exploration orpn. Employees’ C Union v. Mineral Exploration Corpn. Ltd. and Another3. 5. I have heard learned counsel appearin for the parties, g perused the pleadings nd the documents appended thereto. a 6. Article 47 is one of the directive principles of State policy enshrined in part lV of the Constitution of India. Article 47 provides for the duty of the State to raise the level of nutrition / \ and the standard of living and to improve public health. 1 (1 997) 6 SCC 614 2 (2006) 4 SCC 1 a (2006) 6 SCC 310 ‘ m The contention of the Iearned counsel 'éppearing for the V petitioners that the Ste authorits may be directed to gran benefit of age reiaxation to the petitioners pursuant to directive principies as enshrined in Aricle 47 to improve public health is noticed to be rejected. lt is trite that a directive principle is not enforceable by issue of a writ, as is clear from th provisions of Article 37 itself, which read that the provisions contained in this Part (Part IV) shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Thus, Article 47 provides for a principle, which may guide the State Government in making laws. 8. In Minerva Mills Ltd. and Others v. Union of lndia and Others‘, the Supreme Court obserd as under : “106 .....The social and economic rights and other matters dealt with in the directive principles are by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the state of economic development in the country, the availability of necessary finances and the government’s assessment of priority of objectives and values and that is why they are mad non-justiable. But merely because the directive principles are non-justiciable, t does not follow that they are in any way subservient or inferior to the fundamental rights.” 9. The Supreme Court in V. Markendeya and Others v. State'of Andhra Pradesh and Oters5, the Supreme Court observed as under : “9. Article 39(d) contained. in Part IV of the Constitution, ordains the State to direct its policy 4 (1980) 3 soc 625 5 (1989) 3 soc 191 at ie t t e s 5 ve e ic i h (1% towards securing equal pay for equal work for both men and women. Provisions contained in the chapter on Directive Principles of State Policy cannot be enforced by courts aithough the principles contained therein are fundamental in nature for the governance of our country. The court has no power to direct the legislature to frame laws to give effect to the Directive Principles as contained in Part IV ofthe Constitution or to injunct the legislature from making any such law ...... " 10. All grounds raised by the learned counsel appearing for the petitioners have been considered by a Constitution Bench of the Supreme Court in Umadevi (supra), In ”Umadevi (supra), the Supreme Court observed as under : “12 ...... This right of e Union \or of the State overnment cannot but be recognized and here is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagments are resorted to, cannot be used o defeat the vy scheme of public employment. Nor can a court say that te Union or the State Governments o not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment i respected, tere cannot be uch difficulty in coming o the conclusion that it is ordinarily not proper for the courtsfwhether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have bn engaged without following a due process of selection as envisaged by the constitutional sceme. 16. In B.N. Nagarajan v. Sate of Karnataka this ourt cleary held that the words “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments They are terms calculated to condone an procedural irregularities and are eant to cure only such defects as are attribable to methodolgy followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution th G t e t er h d s h m t ee h t C l ; y m ut o M are in force, no regularisation is p’ermissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation. 17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non—fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. 39. There have been decisions which have taken the cue from Dharwad case and given directions for regularisation, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in Workman v. Bhurkunda Colliery of Central Coalfields Ltd. though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the v ~ appointees and that the Court cannot direct their absorption or regularisation or re-engagement or making them permanent. 43 ...... if it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made \.\\V . \¥ "\l permanent on the expiry of his term ofappointment. . It has also to be clarmed that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. lt is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. . 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. it cannot also be held that the State has held out any promise while engaging these persons either to continue them ‘where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 48 ......There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be’absorbed in service ..... " ln Mineral Exploration (supra), relied upon by the learned counsel appearing for the petitione’rs,‘ the Supreme Court observed that the State Government and their instrumentalities \9 ‘ to regularise as a one-time measure, {He services of such irregularly appointed workmen, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that required to be filled up, in cases where temporary ‘employees or daily wagers are being now employed. 13. The Supreme Court in Ashok Kumar Sonkar Vs: Union of lndia and otherss observed as under: “34. lt is not a case where appointment was irregular. if an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.” 14. The appointment of the petitioners was for a period of fixed term and, as such, granting permanence to the contract Doctors is not permissible, as the facts in the case on hand are different. The Supreme Court in Mineral Exploration (supra) directed to regularize the persons whose appointments were irregular not illegal. 15. ln Official Liquidator.’Vs. Dayanand and Others7, the Supreme Court observed as under : “59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fail within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, fr (2007) 4 scc 54} 7 (2008) 1O SCC 1 / ~g~ \ ‘L7/ the circumspect Court will in alwa tin%ering s be extremel’y with the cautious exercise and of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides. 65. The questions whether in exercise o‘f the power vested in it under Article 226 of theConstitution of lndia, the High Court can issue a mandamus and compel the State and its lnstrumentalities/agencies to regularise the services of temporary/ad hoc/daily wager/casual/contract employees and whether direction can be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different conditions of service and different sources of payment have become subject—matter of debate and adjudication in several cases. 75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Kamataka v. Umadevi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two- Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/ temporary/daily—wage/casual reversmg the orders of the High emplogees ourt granting or for relief to such employees — Indian Drugs and Pharmaceuticals Ltd. v. Workman, Gangadhar Pillai v. Siemens Ltd., Kendriya Vidyalaya Sangathan v’ L V. Subramanyeswara, Hindustan Aeronautics Ltd. v.' Dan Bahadur Singh. However, in up. SE3 v. Pooran Chandra Pande on which reliance has been placed by Shri Gup a, a two-Judge Bench has attempted to dilute the Constitution Bench judgment by suggesting that the said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the seven-Judge Bench in Maneka Gandhi v. Union of India." 16. it is well settled principle of law that the Court cannot direct the State Government to make a law or to act beyond the provisions of law, if there is no provision for age relaxation, the same cannot be directed by the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. i l l l i i i ’ The Madhya Pradesh/Chhattisgarh Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 (for shon‘ “the Rules, 1988”) provides for age relaxation under Rule 8 of the Rules, 1988 in case of Scheduled Caste, Scheduled Tribe, permanent Government servant, retrenched Government servant, Ex—serviceman, Ex—personnel of Madras Civil Unit, Officers (Military and Civil) and Officers discharged after working for more than six months. There is no provision for age relaxation in case of persons working on contract basis. In Dr. Ami Lal Bhat (supra), relied upon by the learned counsel appearing for the petitioners, the Supreme Court was dealing with the provisions of Rajasthan Medical Services (Collegiate Branch) Rules, 1962 wherein proviso to Rule 11 provides for grant of age relaxation for 5 years in exceptional cases by Government in consultation with the Commission. In the Rules, 1988 there is no provision like proviso to Rule 11 of the Rules, 1962 and, as such, no directioncan be issued to the respondent-authorities with regard to grant of age relaxation in case of the present petitioners. 19. The Supreme Court in Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others8, observed that the requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. The appointing committee/selection committee are bound by the rules. The discretionary jurisdiction could be exercised for relaxation of a (2006) 8 SCC 671 .‘t‘ x, 1‘ /H/ M [ age provided for in the rules and within’the four corners thereof. 20. In Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai (Dead) By LRS. And Othersg, the Supreme Court observed as under : “7. Learned Single Judge allowed the writ petition mainly on the ground that on two earlier occasions the appeliant had granted exemption from age and quaiifications and no material was placed before the High Court as to why such a discretion could not be exercised by the appellant in favour of the employees concerned, namely, the writ petitioners.‘ The learned Single Judge has also issued a writ of mandamus to the appellant to consider whether Writ Petitioner 5 was entitled for exemption from the requirement of age-limit having regard to certain GOs issued by the Revenue Department of the State Government. 8. In our opinion the reasons given by the learned Single Judge for allowing the writ petition are wholly untenable in law. Merely because on two earlier occasions the appellant granted exemption from eligibility criterion in respect of some employees cannot be a ground to grant relief to the writ petitioners. Even if some concession had been shown to some employees in the past it would not confer any right upon anyone seeking employment in future to claim exemption from eligibility criterion as a matter of right. In K.V. Raja/akshmiah Setty v. State of Mysore it was held as under in para 12 of the Report: (AIR p. 996) ' “12. There is some force in some of the contentions put forward on behalf of the State of Mysore. it is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concessionhad been shown to the first batch of .41 persons and the batches of persons Who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. ' ‘ The State of Mysore might have shown some indulgence tothis batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant 9 (2007) 9 SCC 461 ./ 1 Q/§ Engineers from surveyors. Th'é indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us.” Therefore, the view taken by the learned Single Judge that by not granting exemption from age criterion the appellant had indulged in invidious discrimination is clearly erroneous in law.” 21. So far as grant of direction to the respondent-authorities to