1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3846 OF 2006 Vijay Govind Chitod and others ..Petitioners Versus State of Maharashtra and others ..Respondents ... Advocates appearing for : Petitioners : Shri S.R.Barlinge, Respondent Nos.1 and 2 : Shri D.R.Korde, AGP and Respondent No.3 : Shri H.U.Dhage h/f Shri S.T.Shelke ... CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE, JJ. Dated : December 16, 2009 PER COURT :- 1. Heard respective counsel. 2. This petition has been filed on 11.5.2006. It was before this Court (Vacation Judge) on 16.5.2006. On that day, learned counsel for the petitioners was heard. Notice was made returnable on 26.5.2006. Learned Assistant Government Pleader waived for respondent Nos.1 and 2. Notice to respondent No.3 was issued. Parties were directed to maintain status quo till 26.5.2006. Thereafter, the matter was before this Court on 26.5.2006. On that day, none appeared for the petitioner. Learned Assistant Government 2 Pleader was present before the Court. In the interest of justice, the matter was adjourned after Summer Vacation and further order to await service for respondent No.3 was passed by this Court. Thereafter, the matter appeared on board on 16.7.2009. It was adjourned for four weeks. By the order dated 14.8.2009, returnable date was extended by four weeks. On 7.12.2009, learned counsel for the petitioners sought one week's time on the ground that he has received copy of the reply from respondent No.3 on that day only and that he wants to file rejoinder. The matter was adjourned to today. (Emphasis supplied). Today, Shri Barlinge, learned Advocate for the petitioners submitted that he tried to establish a contact with petitioners. However, he could not contact them for filing the rejoinder. He, therefore, sought permission to address the Court on merits. Permission granted. 3. Shri Barlinge, learned Advocate for the petitioners points out the prayers made by the petitioners and we reproduce the prayers herein below: "(A). By a Writ of Certiorari or any other appropriate Writ, Order or directions in the like nature, the letter dated 20.4.2006 issued by the respondent No.2 and the consequential letter dated 28.4.2006 issued by the respondent No.3, may kindly be quashed and set aside. (B). By a Writ of Mandamus or any other appropriate Writ, Order or directions in the like nature, the respondents be directed to continue the petitioners in service and absorb them on some substantive vacancies as per the availability of the posts. 3 (C). Pending hearing and final disposal of this Writ Petition, the operation and execution of the letters dated 20.4.2006 issued by the respondent No.2 and the consequential letter dated 28.4.2006 issued by the respondent No.3 may kindly be stayed. (D). Pending hearing and final disposal of this Writ Petition, the respondents be directed to continue the petitioners as Pada Swamay Sevaks and pay their honorarium regularly. (E). Any other relief to which the petitioners are found entitled to may please be granted." 4. Shri Barlinge, learned Advocate for the petitioners took us through the copies of the appointments of the petitioners, which are placed on record. Petitioner No.1, according to the learned counsel for the petitioners, was appointed somewhere in the year 1996. His appointment order is at page No.18. There is no date on this appointment order but then it appears from this communication that petitioner No.1 Vijay was appointed for rendering the health services at Baripada for the period of six months with effect from 1.6.1996 on the honorarium of Rs.400/- per month. The nature of the appointment was temporary. So far Petitioner No.2 Rohidas is concerned, the appointment order is at page No.12, dated 26.5.1999. This appointment is from 1.6.1996 on the honorarium of Rs.300/- per month. The terms and conditions of his appointment are detailed in the appointment orders. Item No.8 shows that this appointment is on temporary basis and in case of unsatisfactory work, the appointment shall be terminated. Petitioner 4 No.3's appointment is on record at page No.16. This appointment order bears the date as June 12, 1996. It was for the period of six months and with effect from 1.6.1996 on honorarium of Rs.400/- per month. It was on the temporary basis. 5. Shri Barlinge, learned Advocate after pointing out all these orders, submitted that the petitioners who are working from the respective dates are male persons. In other words, according to him, they are Pada Sevaks working prior to the introduction of the Scheme in question and/or communication, which is impugned in this Writ Petition dated 28.4.2006. He pointed out the said communication / Scheme dated 28.4.2006. Shri Barlinge, learned Advocate emphasized on last paragraph of the communication, which reads that, the male Pada Sevaks who were officiating or working till March 2006 shall not be re-appointed / re-employed and in their place other eligible female candidates be recommended for such appointments. His submission is that the petitioners who were validly appointed earlier, as we have referred in foregoing paragraphs, cannot be terminated and/or deprived from such employment and/or re-appointment by the Collector. He submits that the letter dt.20.4.2006, referred particularly in letter dt.28.4.2006 is not on record and could not be produced on record. He submits that this letter dt.20.4.2006 seems to be in between the Director of Health Services, Mumbai and the District Collector concerned. The only communication which was obtained by the petitioners is dated 28.4.2006 and it is produced on record and impugned in the present Writ Petition. Shri Barlinge, learned Advocate for the petitioners took us to 5 the Scheme produced on record, which is at page No.19 (Exhibit "B"). This scheme dt.4.4.2005 or communication seems to have been addressed to Chief Executive Officers of various Zilla Parishads, namely, Raigad, Nasik, Dhule, Nandurbar, Jalgaon, Ahmednagar, Pune, Nanded, Amaravati, Yeotmal, Nagpur, Gondia, Chandrapur and Gadchiroli. It appears that the State Government has decided to implement Pada Sevaks Scheme for the period of five years by the Government Resolution dated 23.5.2003. He also took us to the other details of this Scheme. The Scheme seems to have been floated under the signature of the Director of Health Services, Mumbai. Along with this Scheme / Communication, Guidelines consisting in Annexure 2 are placed on record (Page 22). Shri Barlinge, learned Advocate also took us to the Resolution of the Group Gram Panchayat Mandavi (Exhibit "C" - Page 24), whereby the recommendation for male Sandesh Wahak is made by preferring female Sandesh Wahak. According to him, Sandesh Wahak and Pada Sevaks are one and the same. He also points out another resolution of the Gram Panchayat Kharwad (Page 25), recommending the appointment of male persons preferred to female persons. Similar resolution passed by Gram Panchayat Sisa is also on record. 6. Learned Assistant Government Pleader submits that there is no reply filed on behalf of the State. As was submitted by Shri Barlinge, he also seeks a liberty to address this Court in absence of affidavit in reply. We have heard Shri Korde, learned Assistant Government Pleader. He points out item No.13 from the Scheme (page 22), which in our view, specifies the location 6 and/or area of services to be rendered by Pada Sevaks or Sandesh Wahaks, whatever is contemplated in the Scheme. It appears from the material on record that the State Government was worried about the non-availability of the health services to the tribals residing in the remote areas of various districts for which this Scheme is intended by the State Government. While identifying the localities in the remote area of triable habitats, State has given guidelines under item No.13. The State was also worried about the deaths of mothers and children and mal-nutrition of the children. This item No.13, in our view, specifies the areas to which services of Pada Sevaks had been intended by the State Government. 7. On behalf of the Zilla Parishad, affidavit in reply is filed on record. This affidavit is filed by one Dr. Dhudku Mahale, District Health Officer, Zilla Parishad, Nandurbar. In paragraph No.1 of the affidavit, it has been stated by affiant, " The ' Pada Swayam Sevika' Scheme came to be introduced by the Government in the tribal area of the State for providing health services to the tribal people." Letter of the Director of Health Services dt. 4th April, 2005 has been referred. Intention stated in paragraph No.1 of the said affidavit is to introduce the scheme in order to curb the rate of infanticide and reduce the malnutrition in the tribal areas. It has been further stated that in Nandurbar district 1657 Pada Swayam Sevikas were to be appointed and that all these Pada Swayam Sevikas have been appointed in Nandurbar district and they have been working since introduction of the Scheme. It is further stated that the areas wherein Pada Swayam Sevikas came to be appointed were identified as "Navsanjivani Kshetra". Reference is 7 also made to the infanticide evaluation committee of Dr.Abhay Bang. Said Committee, according to affiant, has suggested at the time of discussion that women Pada Swayam Sevak would be appointed. It appears from the affidavit that on the subject, there was a discussion on the floor of the house of the State. Referring this discussion, further it has been stated by the affiant that the Government though it fit to appoint women as Pada Swayam Sevikas who could better cater the needs of the tribal women. It has been further stated that these appointments are for the period of eleven months and the appointees receive only honorarium. (Emphasis supplied). In paragraph No.2, a contention is raised that the petitioners have not challenged the very scheme and therefore, the challenge to the consequential communications in relation to the Scheme cannot be sustained in law. According to affiant, relief sought by the petitioners to the extent of absorption of some substantive vacancies is also misconceived. 8. This petition is filed under Article 226 of the Constitution of India. Article 226 of the Constitution of India, empowers every High Court, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purposes. Every High Court is also empowered to have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, under Article 227 8 of the Constitution of India. The jurisdiction of the High Court under Article 226 is much wider because the High Courts are required to exercise this jurisdiction not only for enforcement of fundamental rights conferred upon the citizens but also for enforcement of any legal right. [Bandhua Mukti Morcha Vs. Union of India - (1984) 3 SCC 161]. (Emphasis supplied). 9. From the view point of powers to be exercised by this Court under Article 226, we have examined the submissions of learned counsel for the parties. On our pointed query to Shri Barlinge, learned Advocate, that the petitioners are enforcing which constitutional rights, there was no answer. We have also put a query to Shri Barlinge as to which legal right has been vested with the petitioners of which enforcement is being sought by this writ petition. For these queries, answer of Barlinge, learned Advocate is that dis-continuation of the male petitioners by the communication dt.28.4.2006 is illegal. Indisputably, the scheme is not challenged in the Writ Petition. Shri Barlinge, learned Advocate submits that they are not required to challenge the scheme. Be that as it may, the fact remains that the Scheme is not challenged. From the record it is not in dispute that entire scheme by the Government Resolution had been intended for the period of five years. Communication dt.28.4.2006, which is challenged by the petitioners and more specifically concluding part of the communication page 39, which is attacked by the petitioners that the male Pada Swayam Sevaks working till March 2007 shall not be reappointed or reemployed is concerned, the clarification as made by the Collector in the second sentence that in place of such male swayam sevaks any other eligible women from his family shall be 9 recommended. 10. Shri Barlinge, learned Advocate for the petitioners points out that the scheme does not indicate dis-continuation of the Male Swayam Sevaks but the communication dt.28.4.2006 specifically mandates or prohibits reemployment of the Male Swayam Sevaks. This submission also we are not agreeing. For the reasons that the appointments of Pada Swayam Sevaks concerning the present petitioners, which are on record, are temporary appointments. Period is mentioned in the appointment order itself. In other words, the appointments are for the limited period and termination time is mentioned in the appointment order itself. So far public employment and temporary appointments and/or issue of regularization in services, has been fairly settled by the Constitution Bench of the Supreme Court in the matter of Secretary, State of Karnataka Vs. Umadevi and others [ (2006) 4 SCC 1]. 11. Considering the submissions of the learned counsel for the parties, in our view, no case for exercising extra ordinary jurisdiction of this Court has been made out. 12. In the result, Writ Petition stands dismissed. No order as to costs. (SHRIHARI P.DAVARE,J.) (S.B.DESHMUKH,J.) ... akl