RAFIQ, J. - (1.) ALL the aforementioned writ petitions have been filed by an many as 224 petitioners who all are working on the post of Female Health Worker (for short F. H. W.) under Chief Medical and Health Officers of districts Barmer, Jaisalmer, Jalore and Nagaur on payment of consolidated monthly salary. In all these writ petitions the petitioners have prayed for a writ of mandamus directing the respondents to treat their selection and appointment on the post of F. H. W. regular and substantive. In the alternative it has been prayed that the advertisement dated 7th December, 2004 may be set aside and the respondents may be directed to first absorb the petitioners on the post of F. H. W. and thereafter proceed to make recruitment pursuant to advertisement dated 7th December, 2004 and in doing so, the respondents may fill up 50% of the posts from amongst the petitioners and further award 25% bonus marks to the rest of the petitioners against remaining 50% posts. Since common relief has been prayed for in all the writ petitions, arguments in all these cases were heard together and they are being decided by this common judgment. For the purpose of convenience however facts of S. B. C. Writ Petition No. 697/05 are being taken up to form basis for decision of all the writ petitions.
(2.) THE petitioners who are all female candidates have passed the training course of Auxiliary Nurse Midwifery/health Worker (Female ). According to the them, they were required to execute a bond on a non judicial stamp of Rs. 5/- upon completion of their training course undertaking to apply for appointment to the Joint Director, Medical & Health Services of respective zones within one month of declaration of result of their training course and serve the government for a period not less than five years from the date of offer of appointment made by the government. In case of their refusal or failure to serve the government, they were required to repay whatever expenditure was incurred by the government on their training. Vacancies on the post of F. H. W. are required to be determined every year as per Rule 9 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short "the Rules of 1965" ). According to schedule appended to the said rules, source of recruitment for appointment on the post of F. H. W. is 100% by direct recruitment and the qualification for such appointment is VIIIth standard with auxiliary nurse midwifery training/female Health Worker course. Determination of vacancies is made with reference to the post duly sanctioned by the Finance Department of the Government in the cadre strength under the said rules. The Chief Medical and Health Officer, Barmer published an advertisement on 17th May, 2000 inviting applications for appointment on 89 vacant posts of F. H. W. on urgent temporary basis on a consolidated salary of Rs. 3500/- per month. The said advertisement stated that the appointment were to be made for a period only upto 31st July, 2000. Such similar advertisements were also issued in respect of other districts too. The petitioners being eligible, they duly applied in response to such advertisement. The application forms were scrutinized as per Rule 19 of the Rules of 1965. They were then subjected to an interview by a Selection Committee duly constituted by the respondents for the purpose. The petitioners were selected on the basis of the recommendation of the Selection Committee and accordingly their appointment orders were issued. The case of the petitioners is that they were all having requisite qualifications and their appointment was made by duly advertising the vacancies after following the procedure meant for direct recruitment as contemplated by Part IV of the Rules of 1965. Even though, the appointment of the petitioners was made against duly sanctioned posts of F. H. W. In the pay scale of Rs. 4000-6000, yet they were being paid monthly salary of Rs. 3500/- with 20% annual increase for two years. After completion of two years however increase on the consolidated salary was to be made only @ 10% per year. Even though the petitioners were still continuing in service, the respondents all of sudden issued an advertisement on 7th December, 2004. A perusal of this advertisement shows that respondents advertised newly created 471 posts of F. M. H. (Midwifery) under C. S. S. Scheme (Central Sponsored Scheme) on regular basis. There was no reason for the respondents to have advertised the aforesaid vacancies on regular basis when the petitioners were already serving them for last several years and more particularly when their appointments too were made after following the due procedure for direct recruitment contained in the Rules. The petitioners were required to discharge the duties on the post of F. H. W. from 10 a. m. to 5 p. m. for a minimum period of seven hours every day. They were also required to remain present at the headquarters 24 hours and were not allowed to leave without prior permission. It is on these grounds that the present writ petitions have been filed with the prayers extracted above. The respondents have contested the writ petitions and stated in their reply to the writ petitions that so far as selection process initiated pursuant to the advertisement dated 7. 12. 2004 is concerned, the said process has since been completed and after declaration of the result, appointment orders to the selected candidates have been issued on 16. 2. 2005. A preliminary objection has been raised that the petitioners also applied in response to the aforesaid advertisement and it is only when they were not selected that they decided to challenge the said selection process. Having participated in the process of selection and failed to secure appointment on regular basis, they are now estopped from challenging validity of the same. According to respondents, all the petitioners were appointed on urgent temporary basis because the government wanted that health care in the rural areas should not suffer. Having once accepted the orders of appointment on the terms contained therein which were duly notified in advance, the petitioners are now estopped from challenging correctness of the same. The respondents have contended that the last meritorious candidate appointed in General category secured 71. 11 marks, in Scheduled Caste category 63. 31% marks, in Scheduled Tribe category 52. 84% marks and in OBC Category 71. 11% marks, whereas marks of those petitioners who competed and failed to qualify said selection were lower as compared to theirs in their respective categories. The petitioners cannot claim partly with those regular appointees because appointment of the petitioners was made only on contract basis with consolidated monthly salary. Their services are not transferable and further they are not subject to regular service rules. The respondents have contended that the petitioners are not discharging the same or similar duties which are being discharged by the regularly appointed F. H. W. Appointment of the petitioners was not made after following the procedure meant for direct recruitment. It was made only on urgent temporary basis for limited period. Even if the petitioners were subsequently continued in service, their appointment cannot be treated as regular appointment in service by reason of their prolonged continuation alone. It has therefore been prayed that the writ petition be dismissed. I have heard Mr. P. P. Choudhary and Mr. Girish Joshi, learned counsels for the petitioners and Mr. Rameshwar Dave, learned Dy. Government Advocate for the State and perused the record.
(3.) MR. P. P. Choudhary, learned counsel for the petitioners appearing in the fist five writ petitions argued that the petitioners were required to fill up a bond undertaking to serve the respondents if required to do so, far at least a period of five years and in the event of their failure or refusal to do so, they were required to refund entire amount of expenditure incurred by the government on their training. There was therefore an element of compulsion in petitioners applying for appointment on urgent temporary basis on payment of consolidated monthly salary. According to the learned counsel, the conditions contained in their appointment orders such as that the appointment was on contract basis and that this appointment was in the nature of urgent temporary basis for a limited duration and further that the appointees would be entitled to only a consolidated monthly salary were all device employed by the respondents to frustrate the legitimate claim of the petitioners to regular appointment. In spite of these conditions, the fact remains that entire procedure which is required to be followed for making regular recruitment was in fact followed even in the case of appointment of the petitioners. Vacancies were duly determined; appointments were made against duly sanctioned post; vacancies were advertised in newspapers; all eligible candidates were provided opportunity to apply for appointment and compete for the available number posts; the candidates were duly interviewed by a selection committee; they were required to discharge their duties on the post of F. H. W. right from 10 a. m. to 5 p. m. for a minimum period of seven hours per day. They were also required to remain present at the headquarter for 24 hours and were not allowed to leave without prior permission. They were performing all those duties which are required to be performed by a regularly selected candidate. While for the first two years, they were allowed increase on consolidated salary @ 20% every year and from third year onwards they were being allowed an annual increase @ 10%. Learned counsel therefore argued that appointment of the petitioners is liable to be declared as regular appointment. Mr. Girish Joshi, learned counsel for the petitioners appearing in the last three of the aforesaid writ petitions argued that all the petitioners are females and holding the post of Health Worker (Female ). All of them are enjoying special status by virtue of provisions contained in the Constitution of India. Besides the preamble, directive principles mandate that every citizen shall be afforded social, economic and political justice and equality of status. In order to bring about an equilibrium in the society, a special treatment is required to be accordance to backward classes of the society such as woman, scheduled caste and scheduled tribe under Articles 16 (4) of the Constitution of India. In the present case when large number of women candidates have been appointed on the post of F. H. Ws after due advertisement and following the procedure prescribed for regular appointment, there was no reason not to treat their appointment as regular in nature. Learned counsel further argued that there are two types of Female Health Workers. While one category is that of Additional Health Worker Female, the other is of Health Worker Female (fixed ). They are not only having the same qualification but their appointments have been made in similar manner as they are discharging same kind of duties and they both are under the same control supervision and monitoring of the State Government. When the advertisement in question was issued pursuant to the government order dated 11. 2. 2004 and when in some of the appointment orders such as the order dated 4. 4. 2003, it has been stated that the petitioners are being appointed in desert and scheduled areas for development of woman and child health particularly when their appointment was made on recommendation of the selection committee, there was no reason not to treat them as regularly selected candidates. Learned counsel has referred to Rule 2 (a) of the Rules of 1965 which defines the appointing authority to mean Director Medical and Health Services, Rajasthan or any other person to whom such powers in this behalf have been delegated by a special order of the Government. According to him since in the present case such powers have been delegated to the Chief Medical and Health Officers of the respective districts, appointments would be liable to be treated as regular one for all purposes. Rule 2 (j) of the Rules of 1965 defines substantive appointment and the appointment in the present case also according to the learned counsel qualifies the definition of the said rule. While referring to the judgment of the Hon'ble Supreme Court in E. P. Rayappe vs. State of Tamilnadu, AIR 1974 SC Page 555 learned counsel argued that every state action in every sphere of administration must be free from arbitrariness, unreasonableness and unfairness because all state actions are susceptible to Article 14 of the Constitution of India. Reliance for the same proposition of law was also placed on Indra Sawhey vs. Union of India, 2000 (1) SCC P. 168. According to the learned counsel when appointment of the petitioners were initially made after following due procedure prescribed for direct recruitment, their appointment cannot be categorized as temporary. Learned counsel further argued that when the petitioners were placed under obligation by execution of the bond to satisfactorily serve the government for a period of five years, they had no option except to apply and accept the appointment on whatever terms and conditions it was offered to them. Such action of the state was arbitrary. Now having appointed the petitioners in those circumstances, the action of the respondents in not regularising their services is arbitrary and capricious. While citing certain other Supreme Court judgments, learned counsel argued that absence of arbitrariness in every action of the state is the essential requirement of rule of law. The respondents being in a dominant position and the petitioners being inferior, they were not in a position to dictate the former to follow particular mode of recruitment more particularly when they were not in a position to refuse to accept the employment being bound by execution of th bond as aforesaid. In the facts of the present case, even if the advertisement issued by the respondent did not mention the selection in question as regular in nature, the requirement of the rules qua the petitioners in the peculiar facts of the present case should be construed as directory in nature. For this argument, he relied on the judgment of the Hon'ble Supreme Court in Narendra Chaddha vs. Union of India, AIR 1986 SC p. 638. Alternatively, learned counsel for the petitioners argued that even if their claim for regularisation was not accepted, the State Government which is expected to be a model employer, should be required to pay a reasonable amount as salary by enhancing their monthly consolidated salary keeping in view the humanitain aspect that all the petitioners are woman and are being required to work at far and distant places. ;