WP(C) 2447/2007 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY The grievance registered basically appertains to comprehended no ncompliance of the directions contained in the judgment and order dated 23/2/200 7 of this Court rendered in a batch of writ petitions, the lead case being WP(C) 3070/2006, Khanindra Das and others versus the State of Assam and others, requi ring the State respondents to issue necessary guidelines for recruitment of Seas onal Workers under the Central Government Scheme nomenclatured National Malaria Eradication Programme (hereafter for short also referred to as the Programme) as well as to decide on the relevancy or otherwise of the services rendered by the DDT Spray Workers engaged under the aforementioned scheme to determine the preference/weightage to be extended to their services in the matter of selection to the post of Field Worker and Superior Field Worker (hereafter for short also referred to as FW and SFW respectively) in the Health and Family Welfare Depart ment, Government of Assam. As the petitioners, who are serving as Seasonal Worke rs under various Primary Health Centres in different Districts of the State, the above pronouncement notwithstanding, apprehend ouster from their engagements, t hey approached this Court with several writ petitions, the lead case of that gro up being WP(C) 2440/07. In the meantime, the process for regular appointments to the vac ant post of FW and SFW in the afore-named department having been initiated by an advertisement dated 29/9/2006 on the prayer for interim relief, this Court by o rder dated 25/5/2007 passed in WP(C) 2440/2007 and other connected petitions whi le permitting the State respondents to proceed in the exercise, restrained them from making appointments to the posts involved. The official respondents in the above proceedings having taken a stand that in deference to the aforementioned judgment and order of this Court, a set of guidelines has been formulated as embodied in the order dated 21/5/200 7 of the Secretary to the Government of Assam, Health Department, laying down th e norms for engagement of Seasonal Workers (hereafter also referred to as the SW ) and that the DDT Spray Workers were not entitled to any preference or weightag e in the matter of appointment of FW/SFW in the department, the petitioners and many other similarly situated instituted a fresh group of petitions, the lead ca se being WP(C) 3781/2007, Sanjib Kumar Roy and others versus State of Assam and others. Therein they questioned the validity of the guidelines as wanting in som e provision for preference/weightage to them in engagement as Seasonal Workers a s well as for selection to regular posts of FW/SFW in the department and prayed for a writ of mandamus directing the respondents to accord the same and comply w ith all other directions incidental thereto as enumerated in the judgment and or der of this Court referred to hereinabove. As the petitions are structured on common facts and issues raise d are correlated those were heard analogously and are being disposed of by this judgment and order. I have heard Mr. M. Bhuyan, learned Counsel for the petitioners and Mr. D. Saikia, learned Standing Counsel, Health and Family Welfare Departmen t for the respondents. As the petitions noticeably relate to the successive phases of t he petitioners’ remonstrance against the perceived inaction and/or non-complianc e of the directions of this Court, the foundational facts being identical, it wo uld be expedient to confine to the pleadings of WP(C) 3781/2007 and WP(C) 2440/2 007 to glean the rival assertions. The petitioners, as noted hereinabove, claim to be serving or have served as FW or SFW for several years on seasonal basis wi th the respective Primary Health Centres in various Districts of the State under the Directorate of Health Services, Assam, and have thereby acquired considerab le knowledge, skill and experience in combating malaria in Assam. It has been st ated that to effectively quell the menace of the said disease, which assumed an alarming proportion in the recent years, the Central Government launched the Pro gramme wholly sponsoring the same for the Northeastern States. According to the petitioners, however, for the lack of careful planning, monitoring and decision making capability to harness a regular staff of field workers both in Grade III and Grade IV posts in the Primary Health Centres, malaria cases have increased i n the State of Assam and the escalation of the disease could not be effectively curbed. The petitioners have attributed this to a constant change of Sea sonal Workers from year to year for which persons without knowledge and/or exper ience in the field of prevention of malaria are being recruited at the cost of p ublic health undermining the solemn objective of the Centrally sponsored program me. The petitioners have maintained that the State Government not only has not f ramed suitable guidelines for recruitment and deployment of regular staff of fie ld workers in the Primary Health Centres, it has singularly from time to time le ft out FW and SFW with past services, knowledge and experience to prefer persons without any exposure to the works expected and required to be performed. In oth er words, the petitioners’ cavil is that recruitment as FW and SFW under the Pro gramme on seasonal basis is being made ignoring the basic eligibility criteria o f according preference to those having experience in the related field of activi ty. Being aggrieved by the continued insouciance of the State authorities in thi s regard, persons similarly situated approached this Court with WP(C) 2440/2007 and other connected petitions as already stated. This Court, in its judgment and order dated 23/2/2007, issued directions to the State respondents in the matter of weightage/preference at the time of recruitment of Seasonal Workers and regu lar incumbents in the post of FW and SFW in the State services, the essence wher eof has been noticed hereinabove. With reference to the guidelines contained in the communication dated 21/5/2007 as earlier alluded, the petitioners contend that the same did no t contain any provision for granting preference/weightage to persons with past s ervices and experience for engagement as Seasonal Workers as mandated by the abo ve verdict of this Court. While pleading that in terms of the directions of this Court, the State respondents were also obliged to extend preference/weightage t o them in the matter of regular selection to the post of FW/SFW in the State ser vices, the nature of works and responsibility performed/discharged being wholly identical in both the engagements, the petitioners have maintained that the omis sion on their part is an infringement of the constitutional guarantee enshrined in Article 14, 21 and 39(A) of the Constitution of India. They have insisted tha t the minimum educational qualification for appointment as FW/SFW either on seas onal or regular basis is a pass in Class VIII standard as is apparent from the g uidelines dated 21/5/2007 and the Circular No. V-108/Estt./05/11,287 dated 17/12 /2005 issued by the Joint Director of Health Services (M), Assam. According to t hem, the Seasonal Workers, in addition to the DDT spraying works are also engage d in the jobs of technical nature like collection of blood slides from fever cas es, examination of blood slides and assisting the Laboratory Assistants in carry ing out blood tests. In discharge of their duties, the petitioners as FW/SFW on seasonal basis are also entrusted with the task of distributing medicine, mosqui to nets etc. The have, therefore, asserted that the nature of works discharged b y them is identical to and rather more strenuous than that of their counterparts in equivalent posts under the Department/Directorate concerned. The State respondents in their counter have averred that in comp liance of the judgment and order of this Court, the guidelines as contained in t he communication dated 21/5/2007 have been formulated for engagement of Seasonal DDT Spray Workers on daily basis as and when their services would be required a nd that these norms would be followed for future recruitments of such workers. T hey, however, insisted that spraying of DDT is one of preventive measures to era dicate malaria in the State of Assam. Two rounds of fumigation are conducted in a year of sessions of 75 days each. The Seasonal DDT Spray Workers are engaged o n daily wage basis and the number of squads for each District varies depending o n the annual parasite incidence of the disease during the previous year. Each DD T Spray Squad comprises of five FW and one SFW as Supervisor and normally in eng aging them their previous experience is recognized and preference is extended ta king into account the physical fitness of the person concerned. The State respondents further affirmed that the minimum educatio nal qualification for a DDT Spray Worker was a pass in Class VIII standard which is further relaxable to the event considered necessary. They, however, asserted that the nature of works of DDT Spray Workers also designated as FW/SFW engaged under the Programme is completely different from that of the FW or SFW recruite d under the Health and Family Welfare Department of the State inasmuch as their works are of technical nature. They are to assist the Laboratory Assistants and without them the Laboratory cannot function. The answering respondents clarified that the educational qualification for the post of FW/SFW in the Department is a pass in Higher Secondary Examination, which is higher than that required for t he DDT Spray Worker. The nature of the works and the entry level qualifications for these two categories of recruits being distinctly different, the State respo ndents have pleaded that the experience of DDT Spray Workers is not considered r elevant for the services to be rendered by the FW/SFW in the State services. Acc ording to them, weightage to the past services of a DDT Spray Worker for appoint ment as seasonal worker has been comprehended in the form of relaxation in the u pper age limits for candidates having previous experience as depicted in the gui delines dated 21/5/2007. In that view of the matter, they have contended that no preference/weightage is sanctionable to the DDT Spray Workers for the selection to the post of FW and/or SFW for whose appointment the advertisement dated 29/9 /2007 has been published and, therefore, there was no necessity of issuing any c orrigendum to the said effect. The respondents, however, assured to issue a corr igendum indicating different category of posts in Grade IV available for recruit ment shortly. The pleaded reply of the petitioners vis-à-vis the differentiati on made by the official respondents between the Seasonal Workers under the Progr amme and the FW/SFW in the State services is that the plea that the nature of jo bs and the entry level qualifications for the two engagement are different, is p atently incorrect and flawed in face of the circular dated 17/12/2005 issued by the Joint Director of Health Services (M), Assam. They have reiterated that the works performed by them are wholly identical to those of the FW and the SFW in r egular employment in the State services and that therefore the classification so ught to be made is imaginary, arbitrary, unreasonable and discriminatory which i s constitutionally impermissible. Mr. Bhuyan has emphatically urged that the judgment and order da ted 23/2/2007 of this Court having attained finality, the same not having been a ssailed in any higher forum, the State respondents were obliged in law to comply with the directions contained therein. He argued that the omission on the part of the State respondents to provide for weightage/preference to the petitioners and of those equally placed in the matter of engagement as Seasonal Workers unde r the Programme as well as selection for appointments on regular basis as FW and SFW with the Department besides being grossly arbitrary and contemptuous is wit hout any justification what so ever and, therefore, a writ of mandamus, as praye d for, ought to be issued to uphold the rule of law and sustain the interest of justice. The learned Counsel referring to the State’s affidavit has submitted th at it having been admitted therein that persons with past experience are being a ccorded preference for appointment as Seasonal Workers, a clause to the said eff ect ought to be, in categorical terms, incorporated in the guidelines dated 21/5 /2007. In absence thereof, the guidelines are wholly ostentious. As a matter of fact, those run counter to the plea taken in the State’s affidavit, he urged. Th e learned Counsel further submitted that the academic qualification for being el igible to participate in the selection for the post of FW and SFW being a pass i n Class VIII, as is evident from the letter dated 17/12/2005 of the Joint Direct or of Health Services, Assam, (Annexure V to WP(C) 3781/2007) and the nature of duties and responsibilities performed and discharged by the Seasonal Workers bei ng the same as that of the FW and SFW of the Department, the respondent authorit ies were obliged in law in terms of the direction of this Court to regard the Se asonal Workers eligible for regular appointment to the post of FW and/or SFW in the Department and extend due weightage/preference on the basis of their past se rvices. The impugned action being in contravention of the letter and spirit of t he decision of this Court and in flagrant violation of the constitutional guaran tee of equality in the matter of public appointment is liable to be adjudged ill egal and arbitrary and an appropriate writ or direction needs to be issued to en force the directions of this Court, he urged. Mr. Saikia, in reply, has while endorsing the decision of the St ate authorities argued that the petitioners as DDT Spray Workers were not entitl ed to any preference or weightage for regular employment as FW and/or SFW in the Department, the nature of duties and functions of the two categories of incumbe nts being obviously different. He, however, admitted that the academic qualifica tion for appointment as a regular FW and/or SFW is a pass in Class VIII and the plea in the counter that a candidate to be eligible ought to have passed the HSS LC examination is an inadvertent mistake. The learned Standing Counsel further a ffirmed that in case of Seasonal Spray Staff the academic qualification is furth er relaxable, if deemed necessary. According to Mr. Saikia, the guidelines dated 21/5/2007 is in meticulous compliance of the directions of this Court, weightag e to past experience having been accorded in the form of relaxation of age of th e persons concerned. Moreover, preference has also been sanctioned for local can didates in the respective blocks. Referring to the Operation Manual for Malaria Action Programme (hereafter also referred to as the Manual) published by the Gov ernment of India, Ministry of Health and Family Welfare, for implementation of t he National Malaria Eradication Programme, Mr. Saikia has insisted that it is ap parent therefrom that the seasonal spray staff like the petitioners who have bee n loosely designated as Seasonal Workers are exclusively engaged in insecticidal spray operations annually and thus have no exposure to the duties dischargeable by the FW and the SFW in the departmental service. The confusion, according to him, is for the identicalness in the designation, both categories of workers bei ng referred to as FW and/or SFW. The learned Standing Counsel, however, apprised this Court that for regular appointment as a FW or SFW, no experience in the wo rks to be performed or any education qualification is insisted upon and that the recruits would be trained in all relevant technical aspects after their inducti on in service. Mr. Bhuyan in reply relied on the Manual as well to contend that the same belied the assertion of variance in the nature and extent of duties an d responsibilities of the Seasonal Workers and the Regular FW and/or SFW of the Department. He, therefore, maintained that in compliance of the directions of th is Court, the petitioners are entitled to the weightage/preference drawable from their past service and experience in the matter of their selection and appointm ent as FW and SFW in the State service. The rival submissions have been duly analyzed. The petitioner(s) claim of being engaged as FWs and/or SFWs, as the case may be, under the progra mme for varying periods stretching over years has not been disputed by the respo ndents. The certificates issued by the concerned authorities of the Primary Heal th Centres involved, testify that they had been engaged as such though some of t he documents specify that it was for DDT Spray Operations. It is thus not possib le to conclude on the basis of the materials presently available that all the pe titioners were engaged only in insecticidal spray operations envisaged in the Ma nual. The litigational background is also not in dispute. In the earli er round of adjudication, this Court declined to entertain the prayer of the pet itioners as DDT Spray Workers under the Scheme to treat them as permanent season al worker for not having been engaged by following any prescribed procedure. How ever, it required the State respondents to issue necessary guidelines for stream lining the process of selection for engagement of seasonal workers to ensure fai rness and transparency in their recruitments. This Court as well did not record any finding on the claim of the petitioners therein asserting similarity in the nature of duties and responsibility of the DDT Spray Workers under the scheme an d the FW and SFW in the State services for want of essential details in that reg ard. In that perspective, this Court left it to the concerned State a uthorities to mull over this aspect of the controversy observing that if upon su ch consideration, it was found that the experience gathered by the DDT Spray Wor kers was of any help and would be beneficial , necessary weightage to the servi ces rendered as DDT Spray Workers be provided while making selection and appoint ment to the post of FW/SFW. While restraining itself from indicating the extent of preference or weightage to be granted, if need be, this Court underlined that the State Authorities before deciding on it would have to ascertain as to wheth er the services rendered by the DDT Spray Workers were of any relevance to those to be performed by this FW and/or SFW. As a matter of fact, this course was sug gested by the learned Counsel for the respondents in course of the arguments. Th e following operative directions were thus issued to the above effect. In view of the said discussion as well as the concession given by the re spondents, it is hereby ordered that, before proceeding further with the process of selection, pursuant to the advertisement dated 29/9/2006, the respondents ar e directed to:- 1. Consider as to the relevancy or otherwise of the services rendered by th e DDT Spray Workers under the Government of India Sponsored Scheme, to the servi ces of the FW/SFW and to take a decision in that regard and, thereafter, to fix the extent of preference/weightage to be given to such service in making selecti on to the post of FW/SFW. 2. Issue the corrigendum in widely circulated newspapers published from Ass am indicating the extent of preference/weightage to be given and giving a furthe r opportunity to such persons to file their applications. 3. Consider whether any age relaxation can be given to such persons, if so, to indicate the same in the corrigendum to be issued as aforesaid. 4. Issue corrigendum indicating the different categories of posts in Grade IV available for recruitment including the numbers of posts available in each ca tegory. It is more than apparent from the State affidavit that in engagi ng DDT Spray Workers under the Programme, previous experience is accorded weight age and preference on the basis thereof is extended to the persons concerned sub ject to their physical fitness. The minimum academic qualification is a pass in Class VIII, which is further relaxable, if required. This averment notwithstandi ng, the guidelines dated 21/5/2007 do not embody any provision to the said effec t though it provides for relaxation in age for candidates having previous experi ence for application for selection and preference to those from the respective B lock Primary Health Areas. In the face of the clear and categorical stand of the respondents in the affidavit on the aspect of preference founded on past experi ence in my view such a clause in the guidelines ought be incorporated to conform to the directions of this Court in this regard. With the concession that the minimum academic qualification for regular appointment as FW and/or SFW in the department is a pass in Class VIII s tandard, the first limb of pleaded objection against the eligibility of seasonal workers or seasonal DDT Spray Workers stands effaced. In the communication HSE/ 243/20057/8698 dated 21/7/2005 of the Director of Health Services, Assam, Guwaha ti, incorporating the proposal for filling up the vacant post of Grade III and G rade IV under the National Vector Borne Disease Control Programme i.e. NVBDCP, t he duties dischargable by the FW and/or SFW have been identified to be technical in nature and confined to the works in the laboratory. They are to assist the L aboratory Assistant so much so that the laboratory would not function properly i n their absence. The letter, however, elaborates that the malaria eradication pr ogramme was started in the year 1958 as a national programme and the related sch eme was placed under the Centrally sponsored category and the works comprehended thereunder include spray of DDT, collection of blood slides from fever cases, e xamination of blood slides in BHC Laboratories to provide treatment to those who are found to be malaria positive, dissemination of required information to sens itize and educate the people by distributing leaflets, pamphlets, booklets and p osters containing informations regarding the disease and the preventive measures . The letter further underlines that the implementation of the scheme have been immensely hampered due to the unfilled vacancies. Clause 4.4 of the Manual deals with Insecticidal Spray Operation s to be conducted by the District Malaria Officer in every district with the ass ociation of the Medical Officer in-charge of the concerned Primary Health Centre . The Seasonal Spray Staff contemplated in clause 4.9 would comprise of squads e ach made up of 5 FW and 1 SFW which are required to cover the number of househol ds as mentioned therein. The SFW is supposed to supervise the spray operations a nd maintain records in connection therewith. The Manual further in clause 6.8 en umerates the duties of different categories of staff under the Urban Malaria Sch eme. Thereunder a FW amongst others in addition to helping the SFW in collecting necessary materials and equipments and ensuring the working condition thereof i s required also to apply the recommended larvicide in all the breeding places as signed to him with correct dosage and technique. He is also required to oversee that the drains and water collections are free of vegetation and is further obli ged to obey the instructions of the SFW for all sorts of duties connected with a nti-larval measures and such other duties as may be assigned to him. The SFW as the incharge of a section is entrusted with the respo nsibility of implementing efficient anti larval measures in his area. Not only i s he personally responsible for proper maintenance and safety of the equipments issued to him, he is required to check those and undertake minor repairs so as t o ready the same for next days works. He is required to distribute the works to