LPA/285/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 285 of 2000 In SPECIAL CIVIL APPLICATION No. 3871 of 2000 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR. JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= JETHUBHA JATUBHA RAHOL & 2 - Appellant(s) Versus BHAVNAGAR DISTRICT PANCHAYAT & 2 - Respondent(s) ========================================================= Appearance : MR BHUSHAN B OZA for Appellants MR HS MUNSHAW for Respondent(s) : 1 - 2. MS ML SHAH AGP for Respondent(s) : 3-State ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 21st February, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal, preferred under Clause 15 of the LPA/285/2000 2/8 JUDGMENT Letters Patent, arises from the Order dated 26th April, 2000 made by the learned Single Judge in above Special Civil Application No. 3871 of 2000. The appellants are the writ petitioners. On 25th June, 1996, the District Panchayat Selection Committee, Bhavnagar published advertise- ment inviting applications, inter alia, for appointment to the post of Multipurpose Health Workers [Male]. Applications were also invited from Superior Health Workers who had passed SSC Examination; who were not above the age of 40 years; who had done seasonal service of spraying insecticides for atleast 10 years. In answer to the said advertisement, the appellants applied for selection and appointment as Multipurpose Health Worker [Male] in the category of Superior Health Workers. Pursuant to their selection, they were appointed under the District Panchayat, Bhavnagar as Multipurpose Health Worker [Male]. As the appellants had not taken training for Multipurpose Health Worker [Male] and passed the examination, by impugned order dated 12th March, 1998, they were relieved to join the training. LPA/285/2000 3/8 JUDGMENT Feeling aggrieved, the petitioners instituted Regular Civil Suit No. 198 of 1998 in the Court of Civil Judge [SD], Bhavnagar. The said suit came to be dismissed on 11th April, 2000. In the opinion of the Civil Court, the Civil Court had no jurisdiction to entertain and decide the said suit. Since the rejection of the suit, the appellants preferred above Special Civil Application before this Court. The same has been rejected by the learned Single Judge. The learned Single Judge has held that as the appellants were relieved from service to join training, the challenge to the said order was not sustainable. The learned Single Judge, however, observed that, “..if the petitioners so choose, they may approach the authorities requesting them to send the petitioners for training, which may commence hereafter and after the petitioners are sent for training and after they complete the same they may seek the rights which may be available to them.” Feeling aggrieved, the appellants have preferred the present Appeal. LPA/285/2000 4/8 JUDGMENT The same subject came before one of us {Ms. R.M Doshit, J.} in the matter of Mehta Narbheram Jasabhai & Ors. vs. Amreli District Panchayat & Ors. [2004 (7) GHJ 343]. The Court had occasion to consider the scheme of appointment of Superior Field Work as Multipurpose Health Worker [Male] under the District Panchayats. The Court held thus - “..Under the National Malaria Eradication Programme, the Superior Field Workers are engaged every year during the Monsoon for spraying disinfectants and larvicidals. Such Superior Field Workers were later absorbed in regular service in malaria cadre. Pursuant to the instructions issued by the Government of India, in the year 1977 a separate cadre of Multipurpose Health Worker was created. The candidates who have passed S.S.C. examination are selected for appointment as Multipurpose Health Worker. They are sent for one year's training. After completing the training and passing the examination they are appointed as Multipurpose Health Worker. On account of the direct selection and recruitment made to the posts of Multipurpose Health Worker, the Superior Field Workers lost the chance of being absorbed in the regular service. Pursuant to the representation made by such Superior Field Workers, by Government Resolution dated 26th August, 1992, it was decided that the Superior Field Workers who had been engaged as such continuously for a period of 10 years; who had passed S.S.C. examination prior to such 10 years and who had not completed 40 years of age as on 1st April, 1991, be sent for training as Multipurpose Health Worker (Male) and, after successfully undergoing the training they be appointed as Multipurpose Health Worker (Male). Necessary relaxation in the relevant rules with respect to the age bar was directed to be given for training as Multipurpose Health Worker and for recruitment to the post of Multipurpose Health Worker. LPA/285/2000 5/8 JUDGMENT Pursuant to the said Resolution, by Resolution dated 20th December, 1995, the recruitment rules for appointment to the post of Multipurpose Health Worker were relaxed with respect to the Superior Field Workers to the extent that the upper age limit of 25 years was extended to 40 years as on 1st April, 1991. Clause (2) of the said Resolution specifically provided that suitable Superior Field Worker shall have to take specified training and pass the examination at the end of the training. The candidate who failed to pass such examination within the specified period shall have no right to appointment as Multipurpose Health Worker. ....The appointment to the posts of Multipurpose Health Worker (Male) is governed by the Multi-purpose Health Workers (Health and Family Welfare Department) Recruitment Rules, 1981 made in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Rule 2 thereof provides for appointment to be made by direct selection. Rule 3 thereof provides for eligibility for such appointment. The said Rule reads as under : "3. To be eligible for appointment by direct selection to the post, a candidate must; (1) not be more than 25 years of age, (2) have passed Secondary School Certificate Examination or other equivalent Examination from recognised Board. (3) [a] have passed Sanitary Inspector's Examination or, [b] have undergone training of Family Planning Assistant for six months and declared pass, and have taken training of vaccination or performed 100 primary vaccination satis- factorily, or [c] have undergone 1-1/2 years training of Multipurpose Health Workers and declared pass." Thus, passing of the Sanitary Inspector's Examination or successful training of Family Planning Assistant or successful training of Multipurpose Health Worker is a pre-requisite for being eligible for appointment as Multipurpose Health Worker. As it is evident, by Resolution dated 26th August, 1992 the said eligibility criteria LPA/285/2000 6/8 JUDGMENT was relaxed to the extent that the Superior Field Workers who had not completed the age of 40 years as on 1st April, 1991 were considered to be eligible for selection and appointment as Multipurpose Health Worker (Male) provided that such Superior Field Workers had been engaged as Superior Field Workers continuously for 10 years and had passed the S.S.C. Examination before such 10 years. No concession was allowed with respect to the requirement of undergoing training as Multipurpose Health Worker. On the contrary, the said Resolution specifically mentioned that such Superior Field Workers be appointed as Multipurpose Health Worker (Male) after they successfully undergo the training of Multipurpose Health Worker. Hence, before appointment as Multipurpose Health Worker, taking the training as Multipurpose Health Worker was sine qua non. The petitioners who admittedly had not taken such training could not have been appointed as Multipurpose Health Worker (Male). The appointment of the petitioners as Multipurpose Health Worker by orders dated 20th December, 1997 was made in gross violation of the statutory recruitment rules, was illegal and void ab initio. The petitioners, therefore, could not have claimed right to continue as Multipurpose Health Worker (Male) nor can they have legitimate grievance against the termination of their service.” The appellants before us were similarly situated as the petitioners in the above referred matter. The appellants were the Superior Field Workers engaged in seasional work under the National Malaria Eradication Programme. They were, in fact, not eligible for appointment as Multipurpose Health Worker [Male] under the relevant recruitment rules. But for the concession granted under the above referred Resolution dated 20th December, 1995, the appellants could not have been employed as Multipurpose Health Worker [Male]. The appellants could, therefore, have been employed as Multipurpose LPA/285/2000 7/8 JUDGMENT Health Worker only if they answered all the conditions mentioned in the Resolution dated 20th December, 1995. One of the conditions was that the concerned Superior Field Worker, before he is appointed as Multipurpose Health Worker [Male], must take specified training and pass the examination. Admittedly, the appellants had not taken training as Multipurpose Health Worker [Male]. In absence of such training, the appellants were not eligible for appointment as Multipurpose Health Worker [Male]. By impugned order, they were relieved to join training, a pre-requisite for appointment as Multipurpose Health Worker [Male]. The appellants ought to have joined the training. The impugned order did not infringe any right accrued to the appellants nor did it give a cause of action to the appellants. As such the appellants had no right to appointment. Nevertheless, they were appointed as such. The challenge to the impugned order dated 12th March, 1998 has rightly been rejected by the learned Single Judge. Pending this Appeal, the appellants have placed on record order dated 30th March, 2007 made by the LPA/285/2000 8/8 JUDGMENT Jamnagar District Panchayat in respect of appointment of certain Multipurpose Health Workers. By the said order the concerned Superior Field workers who satisfied all conditions set out in the Resolution dated 20th December, 1995 have been appointed as Multipurpose Health Worker [Male] in the regular pay scale. In the present case, it is not the case of the appellants that they have qualified themselves by taking requisite training and passing the examination. For the aforesaid reasons, the Appeal is dismissed. Parties will bear their own cost. {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*