Prashikshit Mahila Barogjar Swasthya Karyakarta (ANM) v. the State of Bihar), wherein, continuation of contractual appointment of Aux
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20677 of 2012 ====================================================== Bihar Rajya Samvida Paricharika Maha Sangh, Bihar Patna Through Its President Punam Kumari W/O Sri Sanjay Sharma Resident Of Village - Raghopur, P.S. Bihta, District - Patna .... .... Petitioner Versus 1. The State Of Bihar , Through The Principal Secretary, Govt. Of Bihar, Patna 2. Secretary, Health Department, Govt. Of Bihar, Patna 3. Director General, Health Services, Govt. Of Bihar, Patna 4. Registrar, Bihar Nurses Registration Council, Patna 5. Secretary, Indian Nursing Council, New Delhi 6. Medical Council Of India, New Delhi 7. Bihar State Health Society, Pariwar Kalyan Bhawan, Sekhpura, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Ravindra Kumar, Adv. For the State : Mr. Anil Kr Uapdhyay SC20 Mr. Yashraj Bardhan, AC to SC20 For Respt. No.7 : Mr. K.K. Sinha, Adv. For Respt. No. 6 : Mr. Kumar Brijanandan, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 6 24-10-2013
Legal Reasoning
Heard learned counsel for the parties as with regard to the following relief:- "commanding the respondents to make appointment of the petitioners on permanent basis ore regularize the services of the petitioner who have been appointed in the cadre of Staff Nurse grade'A' on contract basis against the permanent sanctioned post having perennial in nature under non plan scheme of the Government."
Legal Reasoning
Learned counsel for the petitioner-association has submitted Patna High Court CWJC No.20677 of 2012 (6) dt.24-10-2013 2 that there are large number of vacant sanctioned post in the cadre of Staff Nurse Grade-A and yet the respondents are continuing to employee Staff Nurse Grade-A on contract basis. He has also referred to the orders issued by the State Health Society seeking to fill up the post of Staff Nurse Grade-A on contract basis for a period of one year and according to him again the State Health Society is continuing with the procedure of making appointment on the post of Staff Nurse Grade-A, is wholly illegal and arbitrary. Reliance in this regard has also been placed on a judgment of this Court dated 17.08.2010 passed in C.W.J.C No. 5538 of 1996 (Prashikshit Mahila Barogjar Swasthya Karyakarta (ANM) vs the State of Bihar), wherein, continuation of contractual appointment of Auxiliary Nurses and Midwifery (ANM) has been deprecated. Learned counsel for the respondents on the other hand has submitted that the contractual appointments have not been made by the State of Bihar but by State Health Society which has to make such appointment under the National Rural Health Mission which is itself a temporary scheme. It has been clarified that the petitioner-association having not cited any individual case cannot be allowed to raise issue in rem. In the considered opinion of this Court, this writ application is wholly misconceived. First of all the post which have been advertised for contractual appointment is not by the State Patna High Court CWJC No.20677 of 2012 (6) dt.24-10-2013 3 Government but by the State Health Society which is monitoring the scheme of temporary nature. Such schemes in fact exist on the grant being made available by the Central Government or the matching grant given by the State Government. By now it is well settled that there can be no regularization of a contractual employee. Reference in this connection may be usefully made to the following judgments of the Apex Court in the following cases of State of Rajasthan & Ors vs Daya Lal & Ors reported in 2011(2) SCC 429, Director, Institute of Management Development, U.P. vs Pushpa Srivastava reported in 1992(4) SCC 33, State of Orissa vs Chandra Shekhar Mishra, reported in 2002(10) SCC 583, Accounts Officer (A &I), AP SRTC & Ors vs K.V. Ramana & Ors, reported in 2007(2) SCC 324 and Harminder Kaur & Ors vs Union of India & Ors reported in 2009(13) SCC 90. In all these judgments the Apex Court has clarified that if the schemes are itself of temporary nature, there would be no concept of either making permanent appointment or regularizing the employees continuing on contract basis. In view of the above, the prayer made by the petitioner- association without disclosing any of the names of the members seems to be wholly misconceived both on fact and in law. It is true that an unregistered association can also maintain a writ petition for redressal of the grievances but then the individual members Patna High Court CWJC No.20677 of 2012 (6) dt.24-10-2013 4 association or at least some of them must join to agitate their rights under Article 14 and 16 of the constitution of India. In the present writ application there is absolute lack of individual detail which would make the task of this Court impossible as it cannot go into the aspect as to whether the members of the petitioner- association, who have been employed as Staff Nurse Grade-A on contractual basis are entitled for their regular appointment against the vacant sanctioned post of Staff Nurse Grade-A in different establishment of the State Government. Let it be also noted that for appointment on the post of Staff Nurse Grade-A in the State Government there is a recruitment Rule which lays down the procedure for issuance of an advertisement and selection through Bihar Public Service Commission/Bihar Staff Selection Commission. The members of the petitioner-association who may have been recruited in the State Health Society on contract basis therefore cannot claim their straightway induction on the vacant sanctioned post of Staff Nurse Grade-A in the different Government establishment without undergoing proper selection through an open competitive test. The claim of the petitioner-association that each and every nurse on completion of the course should straightway be appointed on the post of Staff Nurse Grade-A would in effect amount to deprivation of the rights of the meritorious candidates under Article 14 & 16 Patna High Court CWJC No.20677 of 2012 (6) dt.24-10-2013 5 of the Constitution who can get selected on the basis of advertisements and proper selection based on merit. When these observations have been made, learned counsel for the petitioner-association has submitted that since, the contempt application as with regard to the judgment of this Court passed in C.W.J.C No. 5538 of 1996 is pending consideration, the petitioner-association of this case would prefer to await the result of the aforementioned contempt application arising out of the judgment passed in C.W.J.C No. 5538 of 1996. While this Court will have no difficulty in allowing the petitioner-association to choose its own course of action but then it is made clear that till the State Government takes its own policy decision as with regard to filling up of the vacant sanctioned post of Staff Nurse Grade-A by issuance of an advertisement and followed by proper selection, the State Health Society will continue with its activities of implementing the National Rural Health Mission by evolving its own system of engagement of employees including the Staff Nurse Grade-A on contract basis so that the people in general of this State do not suffer in any manner. With the aforementioned observation and direction, this
Decision
application is disposed of. Rishi/Ranjan (Mihir Kumar Jha, J)