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2014 Supreme(Raj) 322
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
VINEET KOTHARI, J.
Smt. Nisha Mathur & Ors.
Vs.
State of Rajasthan & Ors.
CIVIL WRIT PETITION NO. 2329/2014
Decided on: 28th July, 2014
Mr. G.R. Punia, Sr. Advocate with Mr. Y.P. Khileree, Mr. Narpat Singh, Mr. Suniel Purohit, Mr. T.S. Rathore, Mr. N.R. Choudhary, Mr. R.S. Choudhary, Mr. S.S. Gour, Mr. S.P. Singh, Mr. Hanuman Singh Choudhary, Mr. Narpat Singh Rajpurohit, Mr. Mahaveer Bishnoi for the petitioner(s).
Dr. P.S. Bhati, AAG for the State.
Mr. Sajjan Singh Rathore, Assistant to the AAG.
Employees who have worked for more than 10 years on a continuous basis without any break in service, even though initially appointed on a contractual basis against duly sanctioned posts, are entitled to regularisation of their services, provided that their appointment was not illegal and that the posts against which they were appointed were duly sanctioned.
Headnote:
REGULARISATION OF SERVICE - AUXILIARY NURSE MIDWIFE (ANM) - HEALTH WORKERS (FEMALE) - CONTRACTUAL APPOINTMENT - SANCTIONED POSTS - CONTINUOUS SERVICE - REGULARISATION OF SERVICE - ENCADRED POSTS - FINANCIAL CONSTRAINTS - EXPLOITATION OF UNEMPLOYED YOUTH - REGULAR RECRUITMENT - CREATION OF POSTS - CONSTITUTIONAL MANDATE - ARTICLE 21 OF THE CONSTITUTION OF INDIA - REGULAR PAY-SCALE - PROSPECTIVE EFFECT - NO ARREARS.
Fact of the Case:
The petitioners, working as Auxiliary Nurse Midwife ('ANM') or Health Workers (Female), sought regularisation of their services, having worked for more than 10 years on a continuous basis without any break in service, though initially appointed on a contractual basis against duly sanctioned posts of ANM under different advertisements issued by different Chief Medical and Health Officers of different districts. The respondent-State contended that the petitioners were not entitled to regularisation as their employment was purely temporary or on an ad-hoc basis, coterminous with the life of the project known as “Reproduction and Child Health Project” ('RCH') and that their services could not be continued beyond the closure of the project.
Finding of the Court:
The Court held that the petitioners were entitled to regularisation of their services as they had worked for more than 10 years without any break in service in the respondent Medical and Health Department and that their services had been unblemished in the Annual Appraisal Reports filled up by their In-charge of the respective Primary Health Centres or Community Health Centres where they were working and assigned the duties to work as ANMs. The Court further held that the respondent State could not shirk or throw away its obligation to ensure that the employed persons get fair wages and that there is no hostile discrimination or arbitrary exploitation resulting from such contractual employments without any security of tenure or period rendering them ineligible to seek alternative employment elsewhere, if the State decides to discontinue their contractual employment and plead that their contract is coterminous with the life of the project in question.
Issues: 1. Whether the petitioners were entitled to regularisation of their services as ANMs/Health Workers (Female) despite being appointed on a contractual basis against sanctioned posts for a specific project? 2. Whether the respondent State could contend that the petitioners' employment was coterminous with the life of the RCH project and, therefore, their services could not be continued beyond the closure of the project?
Ratio Decidendi: 1. The Court held that the petitioners were entitled to regularisation of their services as they had worked for more than 10 years without any break in service in the respondent Medical and Health Department and that their services had been unblemished in the Annual Appraisal Reports filled up by their In-charge of the respective Primary Health Centres or Community Health Centres where they were working and assigned the duties to work as ANMs. 2. The Court further held that the respondent State could not shirk or throw away its obligation to ensure that the employed persons get fair wages and that there is no hostile discrimination or arbitrary exploitation resulting from such contractual employments without any security of tenure or period rendering them ineligible to seek alternative employment elsewhere, if the State decides to discontinue their contractual employment and plead that their contract is coterminous with the life of the project in question.
Final Decision: The writ petitions were allowed, and the respondents were directed to regularise the services of all the petitioners as ANMs/Health Workers (Female) within three months and give them the regular pay-scale with prospective effect immediately. The same relief was extended to all similarly situated ANMs without requiring them to obtain a separate Court's order in individual cases.
1. This lot of writ petitions is being disposed of by this common judgment and all the present petitioners are working as Auxiliary Nurse Midwife ('ANM') who are now called Health Workers (Female).
2. The rai-son d?tre of the petitioners before this Court is their claim for regularisation in service, since they have worked for more than 10 years on continuous basis without any break in service, even though appointed on contractual basis initially but against the duly sanctioned posts of ANM under different advertisements issued by different Chief Medical and Health Officers of different districts. The factual aspects of the case are not in dispute from the side of the respondents and the undisputed facts in, nutshell, on the basis of which, the claim of the petitioners for regularisation is based are that the petitioners were appointed after due selection process against the sanctioned vacancies; they possess the prescribed qualifications to be appointed as Nurses or ANM and are duly registered with the Rajasthan Nursing Council and that they have served for more than 10 years without any break in service in the respondent Medical and Health Department and finally that their services so far have been unblemished in the Annual Appraisal Reports filled up by their In-charge of the respective Primary Health Centres or Community Health Centres where they were so working and assigned the duties to work as ANMs.
3. The following facts of the case are illustratively taken from CWP No. 2329/2014:Smt. Nisha Mathur & Ors. Vs. State of Rajasthan & Ors. The appointment order dated 05.05.2003 (Annex. 6) indicates that the petitioners in the list of the said appointment order were appointed on contractual basis against 173 posts of Health Workers (Female) notified by the Chief Medical and Health Officer, Jodhpur were selected under the advertisement dated 08.04.2003 (Annex.5) by the Selection Committee headed by the District Collector, Jodhpur and their appointment order also indicates that their appointment is purely temporary or on ad-hoc basis initially for a period of six months or till the end of the project known as “Reproduction and Child Health Project” ('RCH') and on a monthly fixed honorarium of Rs. 3,500/-. The merit list was prepared on the recommendations of the said Selection Committee and on that basis various persons like the present petitioners were so appointed as ANMs/ Health Workers under the said project of RCH. The petitioners have also produced their experience certificate issued by the respondent – Chief Medical and Health Officer, Jodhpur in support of their contention that they have completed 10 years' of service in the said position under the contractual appointment which was extended from time to time by the respondents and they have also relied upon the order passed by a co-ordinate Bench of this Court in a writ petition (No. 7476/2006) : Suman & Ors. Vs. State of Rajasthan & Ors. directing the respondent-Chief Medical and Health Officer to consider the case of the petitioners for regularisation of their services in view of Para-53 of the Hon'ble Supreme Court judgment in the case of State of Karnataka Vs. Uma Devi : (2006) 4 SCC 1.
4. Upon issuance of the notices, the respondent-Medical and Health Department represented by Dr. P.S. Bhati, the learned Additional Advocate General filed a detailed reply to the writ petition and have contested the writ petition seriously.
5. Completing the pleadings, the petitioners have filed a rejoinder in counter to the reply filed by the State and during the course of hearing on 14.07.2014, the petitioners have also filed an additional affidavit rebutting the contentions raised by the respondent-State.
6. The sheet anchor of the contention raised on behalf of the respondent State is that the petitioners are not entitled for regularisation in the services as there were no encadred posts of ANMs/Health Workers (Female) in the project of RCH for which the said petitione
