WP(C) 3977/2009 BEFORE THE HON’BLE MR. JUSTICE B.P.KATAKEY Judgement and Order (CAV) The petitioners in this batch of writ petitions have challenged the selection of candidates for engagement as ASHA Supervisors (Facilitator) in different Block Primary Health Centres (PHC) in Dhubri and Lakhimpur districts u nder the National Rural Health Mission (NRHM), a Government of India sponsored s cheme. The main ground of challenge being that after conducting selection on bl ock PHC-wise by district level committees, there cannot be any second selection by the state level committee, these writ petitions are taken up together for hea ring and disposal, as agreed to by the learned counsel for the parties. 2. WP(C) No.4401/2009 has been filed by 11(eleven) petitioners chal lenging the select list dated 06-10-2009 published by the Mission Director, NRHM , for engagement as ASHA Supervisor (Facilitators), in so far it relates to Gaza rikandi block PHC in the district of Dhubri, contending inter alia that pursuant to the advertisement dated 22-10-2008 they applied for their engagement as ASHA Supervisors (Facilitators), being qualified and having fulfilled all the eligib ility criteria stipulated therein, and thereafter on the basis of the guidelines , District level selection committees were constituted for selection of candidat es, wherein they appeared and were selected. According to the petitioners, a sel ect list was thereafter prepared by the District level selection committee on 12 -01-2009 for the Gazarikandi Block PHC, wherein their names appeared at serial N os.2, 3, 8, 9, 10, 12, 15, 19, 20, 26 and 28 and that of the private respondent Nos.7 and 8 at serial Nos.30 and 37, respectively. The further case of the petit ioners is that the respondent Nos.5 and 6 were not selected and as such, their n ames did not appear in the said select list. It is also the case of the petitio ners that while they were awaiting for their engagement as ASHA Supervisors (Fac ilitator), they were called for another selection at the State level, and accord ingly they appeared and though did well in the interview, were not selected, sel ect list for which was published on 06-10-2009. According to the petitioners, t he names of the respondent Nos.5 to 8 appeared at serial Nos.53, 66, 46 and 51 r espectively, though the respondent Nos.5 and 6 were not selected by the District level selection committee. Further case of the petitioners is that since neithe r the guidelines issued by the Government of India nor the one issued by the Mis sion Director envisage holding of a second selection by the State level committe e, the subsequent selection conducted by the State level committee is illegal be ing contrary to the guidelines. It is also the case of the petitioners that even assuming that the state level selection is permissible after holding selection by the District level committees, the respondent Nos.5 and 6 having not been sel ected by the District level committee, they cannot be selected by the State leve l committee, since the candidates selected by the District level committees were called for further interview and selection by the state level committee. The pe titioners, therefore, have challenged the selection of the respondent Nos.5 to 8 and claimed for their engagement as ASHA Supervisor (Facilitator) on the basis of the selection conducted by the District level committee. 3. WP(C) No.4127/2009 has been filed by the petitioner challenging the select list dated 06-09-2009 published by the Mission Director in so far it relates to the Ghilamara Block PHC in Lakhimpur District, contending that though she was selected for engagement as ASHA Supervisor (Facilitator) and placed at serial No.1 in the select list prepared by the District level selection committe e, she was subjected to another selection by the state level committee, though n ot permissible under the guidelines. The petitioner in this writ petition has a lso claims her engagement on the basis of the selection conducted by the Distric t level committee on 12-01-2009. The petitioner though has challenged the selec t list published by the Mission Director on 06-09-2009, in so far it relates to the Ghilamaora PHC, none of the selected candidates has been made party responde nt in the writ petition. 4. WP(C) No.3977/2009, WP(C) No.4360/2009 and WP(C) No.4957/2009 ha ve been filed by petitioners on identical grounds claiming that though they were selected by the District level selection committees for three different PHCs un der the Boginadi Block PHC for engagement as ASHA Supervisor (Facilitator), but were illegally subjected to another selection by the state level selection commi ttee, though they were required to be engaged on the basis of the selection cond ucted on 13-01-2009 by the District level selection committee. According to the petitioners, the state level selection committee did not select them and as such their names did not appear in the select list published by the Mission Director on 03-09-2009 for Boginadi Block PHC. The petitioners, therefore, have challen ged the select list dated 03-09-2009 published by the Mission Director for the B oginadi Block PHC on the ground that the guidelines issued for the purpose do no t envisage a second selection and engagement is to be made on the basis of the s election conducted by the District level selection committee only. In this writ petition also, none of the candidates selected by the State level selection comm ittee has been arraigned as party respondent in the writ petition, though the pe titioners have challenged their selection as well as the select list. 5. The plea of the state respondents as projected in the two affida vits-in-opposition, one dated 16-12-2009 and the other dated 02-02-2010 filed by the Mission Director, is that pursuant to the advertisement dated 22-10-2008 is sued by the Mission Director, altogether 34,466 applicants have applied for thei r engagement as ASHA Supervisor, which has subsequently been re-designated as AS HA Facilitator, and keeping in view the huge number of applicants, it was not po ssible to conduct interview of all those candidates at the State level and as s uch the decision to conduct the interview at two levels, namely District level f or the purpose of screening of candidates and recommending twice the number of c andidates against the total number of ASHA Supervisors (facilitators) to be enga ged in each Block PHC and sending the same to the Mission Director for final sel ection to be conducted at the State level was taken, pursuant to which the appli cations were scrutinised and sent to the respective Districts conveying the deci sion to the Deputy Commissioners in that regard, with a direction to constitute selection committees for the purpose of District level selection and submit the names of the short-listed candidates in the ratio of 1:2 to be prepared Block PH C-wise, to the Mission Director for final selection through an interview to be c onducted at the State level and accordingly, the Deputy Commissioners constitute d various committees in respect of each sub-division with Sub-Divisional Officer (Civil) as the Chairman; Sub-Divisional Medical Officer, in-charge of the PHC a s Member-Secretary; and the Circle Officer as member. It has further been conten ded in the affidavits-in-opposition that selections at the District level were m ade and the list of short-listed candidates in the ratio of 1:2 were prepared an d sent to the Mission Director. According to the respondents, those short liste d candidates were again called for interview by the State level selection commit tee consisting of five members and the petitioners appeared in such selection. T he State level selection committee thereafter prepared the final select lists. T he State respondents have contended that the selection was conducted in terms of the guidelines issued by the Government of India in that respect. Further case of the state respondents is that as the petitioners could not secure the cut-off marks, they were not selected by the state level selection committee and accord ingly, their names did not appear in the select list prepared and published. In respect of allegation of the petitioners in WP(C) No.4401/2009 that the names of respondent Nos.5 and 6 did not find place in the select list prepared at the Di strict level, it has been contended that their names appeared at serial Noos.s.4 9 & 51 in the District level list and as such, they were called for interview by the state level committee and were selected on the basis of their performance i n the interview. 6. Private respondent Nos.5 to 8 in their joint affidavit-in-opposi tion have taken the same stand as has been taken by the official respondents in their affidavits-in-opposition and contended that they are the residents under t he Gazarikandi PHC and as did well in both the interviews, namely at the Distric t level and at the state level, they were initially selected by the District lev el selection committee and thereafter by state level selection committee. 7. I have heard Mr DP Chaliha, learned senior counsel for the petit ioners in WP(C) No.4401/2009; Mr MH Choudhury, learned counsel for the petitione rs in WP(C) Nos.4360/2009 and 4957/2009; Mr PJ Saikia, learned counsel for the petitioners in WP(C) No.3977/2009; Mr S. Borthakur, learned counsel for the peti tioner in WP(C) No.4127/2009; Mrs A. Verma, learned standing counsel for the Hea lth Department appearing for the state respondents and Mr MH Rajborbhuyan, learn ed counsel for the private respondent Nos.5 to 8 in WP(C) No.4401/2009. 8. Mr DP Chaliha, learned senior counsel, who has advanced the lead argument, referring to the guidelines issued for engagement of ASHA supervisors by the Mission Director to the Deputy Commissioners of each district, which has been annexed as Annexure-1 to affidavit-in-opposition filed by the state respon dents in WP(C) No.4127/2009, has submitted that the guidelines envisage only one selection at district level for engagement as ASHA Supervisors (Facilitators) a nd do not envisage holding of another interview at the State level, as has been done in the instant cases. According to learned senior counsel, the said guideli nes also contain the criteria on the basis of which the District level committee has to conduct the selection in each Block PHC, with a direction to forward the list of the selected candidates in the ratio 1:2 against the vacancies in each Block PHC. According to the learned senior counsel, the said list is the final l ist, which is required to be submitted to the Mission Director on or before 15-0 1-2009, who thereafter has to issue the orders of engagement on the basis of the list prepared at the District level. According to learned senior counsel, in th e list prepared by the district level committee in respect of the Ghilamara Bloc k PHC, though the names of the petitioners appeared above the names of the priva te respondent Nos.7 and 8 and the names of the private respondent Nos.5 and 6 di d not at all find place, the respondent Nos.5 to 8 were selected for engagement denying the claim of the petitioners. Referring to the guidelines issued by the Government of India, which are required to be followed in the matter of selectio n of candidates for engagement as ASHA Supervisors (Facilitator), it has further been submitted that the said guidelines also do not envisage selection of candi dates at two levels namely at the District level and at the State level, and the District level selection is the final selection, on the basis of which the enga gement orders are required to be issued. 9. Referring to the guidelines stated to have been issued by the Mi ssion Director, which is annexed as Annexure-A to the affidavit-in-opposition fi led by the Mission Director on 02-02-2010 in WP(C) No.4401/2009, it has been sub mitted that no such guidelines were in fact issued and the same was prepared for the purpose of the case, as the said document does not contain the issue number and date, which is also evident from the stand of the Mission Director in the a ffidavit-in-opposition filed on 23-12-2009 in WP(C) No.4127/2009 that only one g uideline was issued, which is annexed as Annexure-1 to the said affidavit. 10. Learned senior counsel, referring to the records produced by the learned standing counsel for the health department has further contended that e ven assuming that the selection at two levels, i.e. at the District level and at the State level is permissible, then also the selection by the State level comm ittee including the respondent Nos.5 to 8 for their engagement as ASHA Superviso rs (Facilitator) cannot stand the scrutiny of law, as there was a second selecti on conducted at District level by a committee headed by the Deputy Commissioner, in the proceeding dated 02-01-2009, after the selection was conducted by the co mmittee constituted by him, on the alleged ground that the selection by the earl ier committee was not conducted properly, that too without interviewing the cand idates afresh. Learned senior counsel submits that since the State level committ ee has made the final selection on the basis of the list prepared and forwarded by the Deputy Commissioner, on the basis of the second selection, such State lev el selection and the select list dated 03-09-2009 is illegal. Learned senior cou nsel therefore, submits that in so far as Ghilamara Block PHC in the district of Dhubri is concerned, which is the subject matter in WP(C) No.4401/2009, the Sta te respondents may be directed to issue orders of engagement on the basis of the first list, i.e. the list prepared by the district level selection committee, o r in the alternative, if this Court finds that two-tire selection is permissible , then necessary directions may be issued to state respondents to undertake fres h selection for Ghilamara block PHC. 11. Learned counsel for the petitioners in other writ petitions whil e adopting the argument advanced by the learned senior counsel, have submitted t hat the guidelines issued by the Missions Director, which is annexed as Annexure -1 to the affidavit-in-opposition filed in WP(C) No.4127/2009, do not envisage t wo-tire selection and the selection made at the District level is the final and the orders for engagements are required to be issued on the basis of the list pr epared by such committees. Referring to the guidelines issued by Government of India, which is annexed as Annexure-B to the affidavit-in-opposition filed by th e Mission Director on 02-02-2010 in WP(C) No.4401/2009, it has been submitted th at the Block Facilitators, i.e. ASHA Supervisors, are required to be engaged as provided under the first guidelines on Asha issued by Government of India to dif ferent States and according to the first guidelines, the selection is to be made at the District level only and in case the State Government modifies the guidel ines, the same will have to be widely disseminated in local languages as envisa ged in the first guidelines issued by the Government of India. According to lear ned counsel, there being no such dissemination of any changed guidelines in loca l language by the State Government, the engagement is to be made on the basis of the selection conducted at the District level. Learned counsel, therefore, subm it that the state level selection is contrary to the guidelines, and hence the s elect lists published on the basis of such selection cannot be acted upon. 12. Mrs A. Verma, learned standing counsel for the Health Department , referring to the averments made in the affidavits-in-opposition filed by the M ission Director as well as the records produced before the Court has submitted t hat since pursuant to an earlier advertisement only 55 candidates, as against th e requirement of 149 ASHA Supervisors (Facilitator) had applied for their engage ment, the Government of Assam had taken a decision for re-advertisement and acco rdingly, a fresh advertisement was issued on 22-10-2008, pursuant to which 34,46 6 applicants have applied for. Thereafter, the decision for conducting two-tire selection was approved by the Minister of Health and Family Welfare, Government of Assam on 11-12-2008, requiring the first stage selection at District level an d the second and final stage at the State level. Accordingly, five State level s election committees were constituted. According to the learned standing counsel, both the guidelines, i.e. the Annexure-1 to the affidavit-in-opposition dated 2 3-12-2009 filed in WP(C) No.4127/2009 and the Annexure-A to the affidavit-in-opp osition filed by the Mission Director on 02-02-2010 were accordingly issued. It has further been submitted that the guidelines issued by the Government of India [Annexure B to the affidavit-in-opposition filed by the Mission Director in WP( C) No.4401/2009] do not envisage that the selection of candidates has to be at t he District level only and there cannot be any State level selection. Learned s tanding counsel further submits that in any case, since the first guidelines iss ued by the Government of India empower the State Government to modify the same, the Government had decided to select candidates at two levels, i.e. at the Distr ict level and at the State level and as such, no illegality can be found in maki ng a further selection at the State level, on the ground that such modified guid elines were not widely disseminated in local languages when all the writ petiti oners have participated in the second selection, namely at the State level selec tion. It has further been submitted that in any case, the petitioners having par ticipated in the second selection, i.e. at the State level selection, cannot sub sequently turn around and challenge such selection on the ground that such selec tion is not envisaged under the guidelines. 13. Referring to the records produced before this Court, it has been submitted by the learned standing counsel that the Deputy Commissioner, Dhubri, on receiving a number of complaints relating to the initial selection conducted at the District level in Block PHC-wise, got a vigilance enquiry conducted and thereafter decided to constitute another selection committee consisting of himse lf, Additional Deputy Commissioner and the Joint-Director of Health Services (I/ c), which committee, after scrutinizing all the records of earlier selection, pr epared another list containing the names of the petitioners and all the private respondents in WP(C) No.4401/2009 and forwarded the same to the Mission Director for State level selection, on the basis of which further interview was conducte d at State level and the select list was prepared and published, wherein the nam es of the private respondents appeared, they having been selected. According to the learned standing counsel, the petitioners having not secured the cut-off mar ks in the interview conducted at the state level, they were not selected. Mrs Ve rma, however, has fairly submitted that the selection committee consisting of th e Deputy Commissioner, Additional Deputy Commissioner and I/c Joint-Director of Health Services had prepared the second District level select list without inter viewing the candidates afresh and the list was prepared on the basis of the inte rview conducted by the earlier District level committee constituted by the Deput y Commissioner. The learned counsel also does not dispute that in the list prep ared by the earlier district level committee, the names of the respondent Nos.5 and 6 did not figure. 14. Relating to WP(C) Nos.4127/2009, 4957/2009, 3977/2009 and 4360/2 009, it has been contended by the learned standing counsel that though the writ petitioners have challenged the select list prepared in respect of the concerned Block PHCs in the district of Lakhimur, none of the selected candidates has bee n made party respondent to the writ petitions and as such, according to the lear ned standing counsel, the select list in respect of those block PHCs cannot be i nterfered with. 15. Mr MH Rajborbhuiya, learned counsel for the private respondent N os.5 to 8 in WP(C) No.4401/2009, supporting the argument of the learned standing counsel for the Health Department, has submitted that since a decision had been taken by the Government of Assam to have two-tire selection i.e. at the Distric t level and thereafter, the final selection at the State level, no illegality ha s been committed in making the selection at two stages. Learned counsel further submits that the Deputy Commissioner had to conduct a further selection after th e first selection at the District level was found to be not proper due to detect ion of large-scale anomalies in the selection. It has further been submitted tha t since the Deputy Commissioner recasted the select list on the basis of the int erview already conducted by the earlier committee and prepared a fresh select li st at the District level, on the basis of which the state level selection was co nducted, no illegality can be found in preparing such list by the committee head ed by the Deputy Commissioner without interviewing the candidates afresh. 16. The submissions of the learned counsel for the parties received my due consideration. I have also perused the pleadings of the parties as well a s the materials available on the records produced by the learned standing counse l for the Health Department. 17. From the pleadings of the parties as well as the submissions of the learned counsel, it, therefore, appears that the core issue, which requires determination by this Court, is whether selection of candidates for engagement a s ASHA Supervisor (Facilitator) at 2 (two) stages, i.e. first at the District Le vel and thereafter, the final selection at State Level, is permissible. In respe ct of WP(C) No.4401/2009, another issue arises for determination, i.e. whether t he second selection at the District Level by a Board headed by the Deputy Commis sioner with 2 (two) other members, after the first selection at the District Lev el by another Board, is valid. 18. The National Rural Health Mission (NRHM) has been launched by th e Government of India to address the health needs of rural population and vulner able sections of the society. A scheme for that purpose has also been formulate d, which envisages creation of new band of community based functionaries named a s Accredited Social Health Activists (ASHA) to admit to the health related deman d of deprived section of the population, specially women and children, who find it difficult to access health services. Such scheme also envisages engagement o f facilitators in each block over 10 ASHAs, who should preferably be women. The guideline issued by the Government of India from time to time has laid down the criteria for selection of ASHA. After the first set of guidelines issued by th e Government of India, a further set of guideline was issued, which has been ann exed as Annexure-B to the affidavit-in-opposition filed by the Mission Director, on 02-02-2010 in WP(C) No.4401/2009, wherein it has been provided that the bloc k facilitators (one for every 10 ASHAs) could be appointed as provided under the first set of guidelines of ASHA issued to the States and such block facilitator s may necessarily be women. However, male members, if any, who may have already been appointed earlier as block facilitators may continue. The relevant portio n of the said guideline is reproduced below:- (11) Block level management: - At the block level, the BMO will be in over all charge of ASHA related activities. However, an officer will be designated as Bl ock level organizer for the ASHA to be assisted by Block Facilitators (one for e very 10 ASHAs). Block Facilitators could be appointed as provided for under the first set of guidelines on ASHA already issued to the States. The Block Facili tators may be necessarily women. However, male members, if any, who may have al ready been appointed earlier as Block Facilitator may continue. The Block Facil itators would provide feedback on the functioning of ASHAs to the BMO & Block le vel organisers. They shall