<(• \'<i^,\- DaBsiofftoch (.' BEFORE THE HIGH COURT OF GHHATnSGARH AT BILASPU R WRIT PETITION fS1 N0. /2009 PETinONERS : ,'<?^M^r'.^ ^/. .^^ <^/ 'y ^ s:^^ .'^^;'" [}:•••:y^^^^ Dr. Khurshid Khan, B.A.M.S,, aged about 38 years (date of birfh 06.03.1971) SonoflateAtaullahKhan, Occupation Contract Ayurved Medical Qfficer, Goyt. Ayurvedic Hospital IKrinda, Tahsil Dharamjaigarh, Distr(ct Raigai-h (C.G.). •: .: : .; : : :. ••r- •(.O.B.C.)' . , ' ': -'; ;.".:: Dr. Karuna Sagar Patel, B.A.M.S., aged about 34 years (date of bif-th 15.Q5.1975) SQH of Shri Dwarika Prasad Ratel, QccupatiQn Contract Ayurvsd Medical Offieer, Govt. Ayuryeclic Mospiital Bhedwan, Tahsil Sarangarh, District Raigarh<C.G.). ^ - I CO.B.C.) ; ; Dr. Tilak Ram Patel; B.A.M.S., aged about 34 . years 'Cdate ;of 14.08.1975) sonof Shri Puni Lal Patg],/ Occupation .Contract Ayuryed Medit:al OffiGer, Govt. Ayurvedic Hospital Sanl|ra (Sariya), Tahsil SaFangar-h, .DistrfiGt Raigarh (C.G.). .{O.B.C.^;: :, . \::" i., . : :'', : Dr. ^Pi-astiarit ;Saxena, B.A.'Mi.S.1, a^ed ;aboufc 32 • years i(;date . ofi 10.0t..l977) son of Shri V.iK.;Sax:e|ia, Occupation ContFaGt iAyurved . Medj|al OffiGer, Govt. Ayuryedie ! 1-lQspijtal • Rengalpali ^Pusaur), |!Distnct jRaig^nM •(C.G.).,..--.'..;:'';: •' .. :;. •^^'.•'.j-^f ^.^^^y;. •^^c^.-sf.^g^.t.,^: aa M Mt m m "V y 5. Dr. Rajkumar Naik, B.A.M.S., aged about 35 years (date of birth 01.06.1973) son of Shri Khiri Lal Naik, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Jatri (Pusaur), District Raigarh (C.G.). (O.B.C.) 6. Dr. Sanjeev Kumar Patel, B.A.M.S., aged about 38 years (date of birth 06.02.1970) son of Shri Dindayal Patel, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Gorpar, Tahsil Kharsiya, District Raigarh (C.G.). (O.B.C.) 7 Dr. Rajesh Kumar Patel, B.A.M.S., aged dbout 38 years (date of birth 13.04.1970) son of Shri Lochan Prasad Patel, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Hamirpur (Tamnar) District Raigarh (C.G.). (O.B.C.) 8 Dr. Pramendra Kumar, B.A.M.S. aged about 35 years (date of birth 10.11.1974) son of Shri Dwarika Prasad Patel, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Bhusu, Tahsil Sitapur, District Surguja (C.G.). Dr. Dinesh Kumar Patel, B.A.M.S., aged about 47 years (date of birth 30.06.1961) son of Shri Fanindra Singh Patel, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Tarapur, Tahsi! Kharsiya, District Raigarh (C.G.). ^' ^ p RESPONDENTS 10 Dr. Mitra Bhanu Gupta, B.A.M.S., aged about 45 years (date of birth 05.05.1963) son of Shri T. D. Gupta, Occupation Contract Ayurved Medical Officer, Govt. Ayurvedic Hospital Urva (Tamnar), District Raigarh (C.G.). VERSUS 1. State of Chhattisgarh, through Secretary, Department of Health and Medical Services, D.K.S. Bhawan, Raipur (C.G.). 2. The Secretary, General Administration Department, State of Chhattisgarh, D.K.S. Bhawan, Raipur(C.G.). 3. The Director, Health and Medical Services, State of Chhattisgarh, Raipur (C.G.). 4. The Secretary, C.G. Public Service Commission, Shankar Nagar, Raipur (C.G.). WRIT PETITION U/A 226/227 OF THE CONSTITUTION OF INDIA, r V-! HIGH COURT OF CHHATTISGARH : BIL^SPUR Division Bench: HonTiIe Shrl Satlsh K. Agnihotri ?B Hon'Ue Shri Manindra Mohan Sh^ivastava. JJ. Writ Petition (Sl No.1746/2009 PETITIONERS Dr. Khurshid Khan & others Versus RESPONDENTS State of Chhattisgarh & others Appearance: Shri Dashrath Lal, counsel for the petitioners. Shri V.V.S. Murhty, Dy. Advocate General for the State/ respondents No. 1 to 3. Shri Ashutosh Singh Kachhawaha, counsel for respondent No.4. Writ Petition IS) No. 1990/2009 PETITIONERS Dr. Jitendra Kumar Kamde & others RESPONDENTS Versus State of Chhattisgarh 8s others Appearance: Shri Vimlesh Bajpai, counsel for the petidoners. Shri V.V.S. Murhty, Dy. Advocate General for the State/ respondents No. 1,3,4,6 & 7. Shri Ashutosh Singh Kachhawaha, counsel for respondent No.2. Shri Pawan Shrivastava, counsel for respondent No.8 And PETITJONER RESPONDENTS Writ Petitlon (Sl No.2549/2009 Dr. Ranjit Kumar Guru Versus State of Chhattisgarh & others Apoearance: Shri Dashrath Lal, Advocate appears on behalf of Shri A.N. Bhakta, counsel for the petitioner. Shri V.V.S. Murhty, Dy. Advocate General for thc State/respondents No. 1 to 3. Shri Ashutosh Singh Kachhawaha , counsel for respondent No.4. PETITIONS UNDER ARTICLE 226/227 OF THE CONpTITUTION OF INDIA -2- ORDER (Passed on I? .03.2010) Per Manindra Mohan Shrivastava. J. 1. In this batch of petitions filed under Article 226 of the Constitution of India, common question of law and facts arise for consideration al the instance of the petitioners, who are all worklng as contract Ayui-veda Chikitsa Adhikari in various Ayurvedaic Hospitals in the State. 2. Petitioners in all the petitions are contract Ayurveda Chikitsa Adhikari. In order to cope-up with requirement of post of Ayurveda Chikitsa Adhikari for various Ayurvedaic Hospitals in tbe State, appointments were made by the Chief Executive Officer of various Janpad Panchayat as also Collector pursuant to Government decision circulated vide Circular No. 1459/152/01/'RIT. dated 5.4.2002 issued by the Department of Public Health and Family Welfare and Medical Education, Govt. of Chhattisgarh. Petitioners in these three pctitions are those who were appointed in various Ayui-vedaic Hospitals/Dispensaries as Ayurveda Chikitsa Adhikari on contract basis ajid on fbced pay of Rs.8,000/- per nionth for a period of 3 years. The appointment orders of all the petitioners which have been placed on record show that all these petitioners were appointed on contract basis and their services could be terminated by giving onc month notice or in lieu fhereof one month salary upon completion of period of contract service. 3. Petitioners in the aforesaid petitions were appointed on various posts in the year 2003, initially for a period of 3 years. Later on, as the need condnued and regular selection could not be made as per the 1. <' -3- * ^ . recruitment rules, services of these petitioners were continued from time to time. 4. For the purposes of making regular appointment of 106 posts of Ayurveda Chikitsa Adhikari, process of recruitment was set in motion in accordance with the M.P./C.G. Public Health [Indian System of Medicme and Homoeopathy (Gazetted) Service Recruitment Rules, 1987 (hereinafter referred to as 'the Recruitment Rules of 1987°] by issuing advertisement dated 22.5.2008. Recruitaient Rules of 1987 were amended vide notiflcation dated 5.7.2008. Thereafter, a corrigendum was issued on 17.7.2008 published in fhe Newspaper on 23.7.2008 (Annexure R-2/1) filed in W.P.(S) No. 1990/09. By amendment made in the Recruitment Rules of 1987, one time relaxation of age up to 5 years was granted to inedical offlcers working or possessed of experience having worked in the Governinent, Seini- Government and other recognized Medical Institutions. The number of post for which selecdon were to be made were increased to 297 vide Public Service Commission advertisement dated 31.12.2008 in continuation of earlier advertisement dated 22.5.2008, 17.7.2008 and 21.8.2008. 5. In all the three petitions, petitioners are those Ayurveda Chikitsa Adhikaris who were appointed on contract basis and have been continuing in service for the last 6 years on contract basis. They all are commonly aggrieved by the eligibUity criteria laid down in the Advertisement dated 22.5.2008. In all the three petitions, petitioners have prayed that the Advertisement dated 22.5.2008 (Annexure P-1 m W.P.tS) 1746/09) be declared iUegal. In W.P.(S) No; 1746/09 86 2549/09, petitioners have edso challenged fhe Constitudonal validity of -4- provision contained in Rule 7 (1) of the M.P./C.G. Civil Services (General Cbndition of Service), Rules 1961 (hcnceforth "the Rules of 1961") and Rule 6 (1) (a) of the Recruitment Rules of 1987. Petitioncrs have also prayed for issuance of suitable instructions/directions to conduct separate examination for the petitioners reserring the quota of post in view of judgment of Supreme Court in the case of Jacob Mathew Vs. State o{ Paniab & anotber. AIR 2005 SC 3180 . Further prayer has been made for issuance of direction to the State to cxtend the upper age limit up to 48 years. Petitioners have also prayed for issuance of direction for reserving 50 per cent post for those Ayurveda Chikitsa Adhikaris who are presently working on contract basis and allowing the petitioners to take part in the examination irrespective of upper age limit of 45 years. In W.P.(S) No. 1990/09 petitioners have prayed for declaration that action of respondents/State is discriminatory, arbitrary and illegal being ultra vires ofArticle 14 & 16 of the Constitution of India. In addition to prayer for quashing advertisement dated 25.5.2008, they have also praycd for issuance of direction to State to increase age lunit and grant weightage to the petitioners in respect of services extended by them. 6. In W.P.(S) No. 1746/09 & W.P.(S) 2549/09, learned counsel for the. petitioners argued that while initiating process of recruitmcnt for regular appointment on the post of Ayurveda Chikitsa Adhikari, interest of Ayurveda Chikitsa Adhikari working since last many years has not been taken care of. It is further submitted that thcy arc entitled to preferential right in view oftheir long experience ofworking as contract Ayurveda Chikitsa Adhikari and in the absence of their being any such provision in the rules and in the advertisement, the 1 K) \ v llNKhUBUflllllKlllin—t -5- method of competitive examination is irrational and unconstitutional and contrary to the law laid down by the Supreme Court in the case of Kuldeep Kumar Gupta & ors. Vs. Himachal Pradesh State Electricitv Board & ors.. AIR 2001 S.C. 308 . It is contended that the process of recruitment is liable to be set aside on the ground that it does not categorize the direct recruitment and limited recniitment and therefore the same is irrational. It is further contended that it is not in consonance with the recruitment process adopted in the case of Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (henceforth "the Rules of 2006"). Petitioners contended that the same scheme of recruitment as laid down in the Rules of 2006 shall be applied in the case of the recruitinent to the post of Ayurveda Chikitsa Adhikari. According to fche leamed counsel for the petitioners, petitioners, having continued as contract Ayurveda Chikitsa Adhikari for last several years, have legitimate expectations which have been completely ignored rendering the entire process of recruitinent and selection violative of Ardcle 14 & 16 of the Constitution of India. Placing reliance on the decision of the Supreme Court in the case of Mohd. Abdul Kadir & another Vs. Director General of Police, Assam & ors., (2009) 6 SCC 611, it has been argued that though in the case of policy matters having financial and other implications, judicial review is not perinissible, in case of arbitrariness and unreasonableness, interference woiild be warranted by issuing suitable directions/guidelines drawing attention of the authorities concerned to the issue involved. 7. Learned counsel for the petitioners appearing in W.P.(S) No. 1990/09 has also made similar submission. It has been argued that petitioners, -6- having continued as contract Ayurveda Chikitsa Adhikari, are cnlitled to appropriate weightage. In the absence of such weightage either in fhe relevant statutory recruitment rules or in the advertisement, they have been illegally and arbitrarily denied equality of opportunity. It is contended that the maximum age limit has been fixed illegally and arbitrarily. 8. Opposing the reliefs claimed by the petitioners, learned counscl for the State submitted that the matter, relating to creation and abolition of post, formation and restricting ofcadres, prescribe the source/mode of recruitment and qualifications, criteria of selection, valuation of sen'ice record of the einployees, fall with.in the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also domain of the employer. Learned counsel for the State submits that the power of judicial review can be exercised in such matters only if it is demonstrated that the action of the employer is contrary to any constitutional or statutory provisions or is patently, arbitrary or vitiated due to malafide. He further submits that the Court has no role in determining the methodology of recruitment or laying down criteria of selection. Matter relating to prescription of eligibility criteria and age limit is subject matter ofpolicy and as long as the Rule Making Authority exercise its power within the constitutional limits, petitioners are not entitled for issuance of any direction to alter/change the eligibility criteriawith regard to age in such a manner so as to make the petitioners, who are otberwise ineligible, eligible for the purpose of selection and appointment to the post of Ayui-veda Chikitsa Adhikari. It has also been argued that the provision contained in the mles and reflected under the age eligibility criteria in the -7- \ - advertisement dated 22.5.2008 make appropriate provision for relaxation which is statutory scheme. Petitioners have no right to claim prescription of age limit or weightage for experience or relaxation in any manner desired by the petitioners. 9. Respondent-Chhattisgarh Public Service Commission has filed its separate return submitting that the recruitment is being made by issuing advertisement dated 22.5.2008 in accordance with the provisions contained in the Recruitments Rules of 1987. It has also been highlighted that in view of amendments made in the Rule vide notification dated 5.7.2008, a corrigendum was issued on 17.7.2008 that those who are beneflciary of the amended provision regarding relaxation of age, may submit their application by 31st July, 2008.It is the submission of leamed counsel for the P.S.C. that now after the amendment, vide notification dated 5.7.2008, one time age relaxation up to 5 years has been provided in respect of medical officers who are working or bave acquired experience of working in Government, Semi- Government and other recognized Medical Institutions. It has also been submitted that the upper age limit is 35 years and relaxation has been provided to various category of persons like Woman/ ST-SC, OBC/Permanent/Temporary Worked Charged Contingency Employee of Corporation/Project/Ex-Military Persons, relaxation of age up to 5 years as one tiine ineasure has also been provided to medical officers. Petitioners are not entitled to issuance of any direction/mandamus for fudng any age limit or felaxaUon to their choice and suitability, as it is, being purely policy matter, for the Government to fix the norms/criteria, rules of appointment to public services on various posts in different department of the Government. Reliance has been placed on the decision of Supreme Court in the case of P.U. Joshi & others Vs. Accountant General, Ahmedabad and others, (2003) 2 SCC 632. In W.P. (S) No. 1990/09, respondent No. 8 has filed its separate return supporting the action of the respondents/State and the Public Service Commission. It is submitted that petitioners are only contract einployees and mere continuance in service for few years does not confer upon the petitioners any indefeasible right to compete for regular appointment during the process of recruitment uiiclcr the relevant statutory rules if the petitioners are otherwise not fulfilling eligibility criteria with regard to age at the time when the process of recruitinent has been initiated. Petitioners at the time of their appointment were fully aware of the nature of their appointment that they are contract employees and not regular employees. It was fully known to the petitioners that their appointinent will continue only till regular appointments are made in accordance with rules. If thc petitioners are not fulfilling eligibility criteria prescribcd under the rules, their mere continuance as contract medical officers, would not endtled them to seek any direction to alter/amend the such criteria or to claiin relaxation or weightage so as to inake them eligible. 10. We have given our anxious consideradon to the submissions made by the learned counsel for the respective parties and perused the record. 11. In order to ap'preciate the submission made by learned counsel for tlie respective parties with reference to statutory scheme of recruitment to the post of Ayurveda Chikitsa Adhikari, we consider it appropriate to consider the statutory scheme of recruitment, eligibility criteria qualifications etc. -9- 12. Recru.itment to various posts including post of Ayurveda Chikitsa Adhikari is govemed by the Recmitment Rules of 1987. Rule 5 thereof provides that qualifications, the number of posts included in the service and the scale of pay attached thereto shall be in accordance with the provision contained in Schedule -I. A perusal of Schedule-I shows that the post of Ayurveda Chikitsa Adhikari is also included in the service. Recruitment to the service, after the commencement of the Recruitment Rules of 1987 can be made by any of the method specified in Clauses (a), (b), or (c) of Rule 6 of the Recruitment Rules of 1987. One of such method is by direct recruitment by selection/competitive examination. Rules make elaborate provisions with regard to conditions of eligibility of direct recruits. Rule 8 (1) of the Recruitment Rules of 1987 deals with the criteria relating to age. The same being relevant for the purposes of present case is being reproduced as under: "8 Conditions of legibility of direct recruits.- In order to be eligible to be selected/compete the examination, a candidate must satisfy the following conditions, namely:- (1) Age (a) He must have attained the age in column (3) and not attained the age in column (4) of Schedule III on the first day of January next following the date of commencement of the selection. (b) The upper age limit shall be relaxable up to a maximum of 5 years if a candidate belongs to a Scheduled Castes or a Scheduled Tribe. (c) The upper age limit will also be relaxable in respect of candidates who are or have been employed of the Madhya Pradesh Government to the extent and subject to the conditions specified below :- (i) A candidate, who is holdtng a post temporarily and applying for another post should not be more then 38 years of age. This concession shall also be •••ess-^^E-. -10- admissible to work-charges employees, contingcncy paid employees and persons employed in the Project implementing Coinmittees." (ii) A candidate, who is retrenched Govemment servant will be allowed to deduct from his age the period of all temporary service previously rendered by him up to a maximum limit of seven years cvcn if it represents more than on spell provided that the resultant age does not exceed the upper age limit by more than 3 years. " (d) A candidate, who is an ex-serviceman will be allowcd to deduct from his age the period of all defence services previously rendered by him provided that the resultant age does not exceed the upper age limit by more than three years. (e) The upper age limit will be 35 years in respect of widow candidates. (f) The upper age limit shall also be relaxable up to 2 years in respect of Green Card holder candidates under Family Welfare Progamme. (g) The upper age limits shall be relaxable up to 5 years in respect of awarded couple of Inter-caste Marriage Incentive Scheme under the Tribal Harijan and Backward Classes Welfare Department. (h) The general upper age limit shall also be relaxablc up to 15 years in respect of Vikram Award holder candidate. (i) The upper age limit shall also be relaxable in respect of employees of Madhya Pradesh Statc Corporations/Boards upto 38 years. (j) The upper age limit will be relaxed in the case of voluntary Home Guards and Non-Commissioncd OfEcer of the Home Guards for the period of sen'icc rendered so by them subject to the limit of 8 years, but in no case tfieir age should not exceed 38 ycars. •v' -11- Perusal of the aforesaid provision would show that in order to be eligible for appointment, a candidate must have attained the age in column (3) and not attained the age of column (4) of Schedule III on the first day of January next following the date of commencement of the selection. Sr. No.6 of Schedule-III shows that the minimum age Umit is 22 years, whereas the maximum age limit is 32 years. Clauses (b), (c), (d), (e), (1), (g), (h), (i) and (j) of Rule 8 provide for relaxation in upper age limit in respect ofdifference classes/categories of candidates. Clause (c) inakes provisions for relaxation of upper age limit in respect of candidates who or have been employed in the M.P/C.G. Govemment to the extent and subject to conditions specified in sub clause- (i) and (ii). It is also admitted position on record that vide notification dated 5.7.2008, the aforesaid recruitment rules have been amended and following has been inserted in column (7) corresponding to Sr. No.4, 6 SE 8 of Schedule-III. "'ill^cl!)^ 3Isf?ITHt|5N cTSIT 3T.iq 11"Ddl TIT<T RlRirMI ;FR«IT3ft ^ ^pfer 'cn d?^ ^ sf^vs gro- RiRic^ii sriSRiT^jf ^, 'clTRR (5) 4 vifcdRslff ^EERH 3{^ ^tTfr i[ ^; cIR ^ 1^;, irrg q4 ^t •s'e ^ire ?Mt i dd4Mid iss yiciyi-1 W:[IIT[ ?t From the perusal of aforesaid statutory scheme engrafted in the Recruitment Rules of 1987, it is clear that relaxation ofupper age limit has been granted to different categories. While Clause (c) generally provides for relaxation of upper age limit in respect of candidates who are or have been employed by the M.P./C.G. Government, the newly added provision provides for relaxation of age to the entire class of medical officer'; working or having worked in Government, Semi- Government and Recognized Medical Institutions. -12- 13. While different recruitment rules have been made for various departments of the Government by the Governor in exercise of power under Article 309 of the Constitution of India, general conditions ot' service applicable to all the Government servants irrespective of their individual departments are regulated by the Rules of 1961. Rule 7 thereof specifies various methods of recruitment. It embodies thrce well-known methods of recruitment- namely- direct rccruitment, promotion, transfer of person or persons already employed in another service or post. 14. Recruitment Rules of 1987 also speciiies three well recognized mode and methods of recruitments i.e. by direct recruitmcnt, by promotion , by transfer of persons. Rules 6(4) of the Recruitment Rules of 1987 further provides that notwithstanding anything contained in sub rule (1) ifin the opinion ofthe Government, the exigencies of the service so require, the Government may with prior concurrence of the Department of Personnel and Administration Reforms and Training adopt such method of the recruitment of service other than those specified in sub-rule (1), as it may be order issued in this behalf, prescribe. 15. In the Advertisement No.07/2008/~^^/^m, 22.5.2008 published on 28.5.2008 inviting applications' for appointment to the post of Ayurveda Chikitsa Adhikari, minimum and maximum age limit has been prescribed as 22 & 35 yeas respectively. The note appended to Clause (4) p) clarifies that as per G.A.D. Circular dated 28.6.2007, the upper age limit for direct recruitment has been prescribed as 35 years. It further provides that the benefit of relaxation of age to vanous categories will continue as before but with such relaxation the -13- \€ maximum age limit should not exceed 45 years. Clause (5) of the said Advertisement makes provisions with regard to relaxation in age consistent with the statutory scheme engrafted in Rule 8 of the Recruitment Rules of 1987. Further, in view of special provision, 10 years relaxation in upper age limit has been provided for female candidates. In view of GAD Notification dated 2.6.2004, relaxation in upper age limit has also been provided to Shiksha Karmis in respect of the number ofyears they have remained in Government service subject to maximum upper age limit of 45 years. Provision for relaxation has also been provided in respect of volimtary Home Guards, Widows, Destitute, Divorced Female, Green Card Holders, Recipients of reward under Inter Caste Marriage Incentive Scheme and Recipient of other rewards and the cutoff date has been provided as 1st January 2009. In view of the amendment made in the Recruitment Rules of 1987, the Public Service Commission issued a Corrigendum on 17.7.2008 (Annexure R -2/1 in W.P(S) No. 1990/09) allowing even those medical officers who are entitled to compete in view of newly added provision providing for relaxation of age to the extent of 5 years and were granted opportunity to submit their application forms by 31st July, 2008. An analysis of the provisions contained in the Recruitment Rules of 1987 shows that an elaborate and comprehensive statutory scheme for relaxation of age to different classes and categories of candidates has been provided including medical officers who were working or have worked in Government, Semi-Semi Qovernment or recognized medical institutions. Rule 7(1)