Doctors appointed on an honorarium basis under a special scheme are entitled to regular pay and allowances attached to the post of Civil Assistant Surgeon as they discharge the same duties as regular appointees, in accordance with the doctrine of equal pay for equal work under Article 39(d) of the Constitution.

JUDGMENT :

1. All the petitioners are the qualified doctors. They were appointed pursuant to the scheme envisaged in G.O. Ms. No. 809 dated November 29, 1986, on honorarium basis of Rs. 50/- per day to the doctors working in ncn-tribal areas and Rs. 75/- per day to those working in tribal areas. The petitioners are seeking a Mandamus directing the respondents to continue the petitioners in service, also to regularise their service and to pay salary and allowances attached to the post of Civil Assistant Surgeon, with effect from their dates of appointment.

2. Admittedly, the appointment to the post of Civil Assistant Surgeons are to he made by direct recruitment through a process of selection. The right to post arises only on selection by the competent authority, be it by the Andhra Pradesh Public Service Commission or any other commission constituted under the relevant rules. But the procedure of recruitment and appointment are regulated under the relevant rules, Therefore, the recruit-ment shall be made only in accordance with those rules and the appoint-ment should be consistent with the statutory rules but not in derogation thereof. Any appointment made in derogation of the statutory rules, must always be considered to be temporary appointment otherwise than in accordance with the rules. Therefore, the question of regularisation of their services with effect from their initial appointment does not arise. The rules do not provide for any regular appointment on temporary basis otherwise than by direct recruitment. Under those circumstances, the first relief, viz., regularisation of their services, cannot be granted. If such a relief is granted, undoubtedly it is frought with several incongruities and is in derogation of statutory rules, in particular, of Rule 22 of the State and Subordinate Service Rules. Under those circumstances, this Court cannot grant a Mandamus directing the respondents to regularise the services of the peti-tioners, appointed pursuant to the scheme envisaged in G.O. Ms. No. 809.

3. The next question is whether the petitioners are entitled to regular pay attached to the post of Civil Assistant Surgeon. Admittedly the petitioners have been discharging the duties assigned, to the post of Civil Assistant Surgeons. Article 39 of the Constitution provides that there shall be equal pay for equal work for both men and women”. This is a con-stitutional mandate charged on the State. If a qualified doctor is appointed to the post he is entitled to the regular scale of pay and allowance attached to the post. This position is not disputed across the bar, but the contenr tion of Sri Sitarama Sastry, learned Government Pleader is that the Govern-ment have envisaged a special scheme under G.O. Ms. No. 809 dated November 29, 1986 to appoint such of those candidates who are witling to be appointed on payment of honorarium and that having accepted the appointment, they are bound to receive the honorarium at the prescribed rate and they cannot have any higher rate than what they bargained under the scheme envisaged under the G.O. It is further contended that the appintment is not a regular appointment and therefore they are not entitled to the regular scale of pay attached to the post. It is true that the Government have envisaged a scheme for appointment of qualified doctors on honorarium basis at the rate of Rs. 50/- for those who work in non-tiibal areas and Rs. 75/- for those working in the tribal areas. But there is no loss the State suffers and the doctrine of estoppel cannot be extended in favour of the State. It is well settled legal position that a citizen cannot waive nor made to forgo his constitutional right to equality and that there is no estoppel against enforcement of a constitutional right.

4. The right to work enshrined in Article 41 of the Constitution emanates from the right to life assured under Article 21 to subserve dignity of person and of status assured in the preamble of the Constitution to develo