THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No.4002 of 2022
ORDER:
This Writ Petition has been filed seeking a writ of mandamus to declare the action of the respondents in not considering the case of the petitioners for appointment to the post of Multipurpose Health Assistants (MPHA) (Male), even though they secured more marks than the candidates who were reappointed vide G.O.Rt.No.1207, dated 09.10.2013 in spite of orders of this Court in WVMP.No.2120 of 2015 in W.P.No.3178 of 2014, dated 15.09.2015 and rejecting the case of the petitioners vide proceedings RC.No.Spl/NVBDCP/2021, dated 05.07.2021, issued by the 3rd respondent, as illegal, arbitrary and discriminatory and consequently, to set aside the impugned order and direct the respondents to appoint the petitioners to the post of MPHA's (M) as per their merit, strictly by implementing the orders of this Court dated 15.09.2015 in WVMP.No.2120 of 2015 in W.P.No.3178 of 2014, as was done in respect of similarly placed persons, 2 PMD,J W.P.No.4002 of 2022 with all service and monetary benefits and to pass any such order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
2. The brief facts leading to the filing of the present writ petition are that initially G.O.Ms.No.273, HM & FM, dated 24.04.1989 was issued prescribing the qualifications for the post of MPHA's (M) as under:
(i) Must have passed intermediate or any other equallent qualification.
(ii) Must possess a Sanitary Inspector Training Course Certificate awarded by the Chairman of the Board of Examiners, constituted by the State Government, or
(iii) Must possess a certificate of Multipurpose Health Workers Training Course, conducted by the State Government.
(iv) Must have physical Fitness for camp life. Subsequently, vide G.O.Ms.No.352 HM&FW dated 01.08.1992 and G.O.Ms.No.111 HM&FW dated 12.04.2002, the educational qualification was modified as 3 PMD,J W.P.No.4002 of 2022 SSC along with Sanitary Inspector Training Course or Multipurpose Health Workers Training Course.
3. While the matters stood thus, the Government had issued a notification on 20.07.2002 for recruitment of Paramedical Posts including MPHA's (M) with prescribed qualifications of SSC + Multipurpose Health Workers Training Course. On 11.08.2002 a written test was conducted and all the petitioners herein have secured qualifying marks. In the meantime, some of the candidates filed the O.A.No.6856 of 2002 and batch before the Andhra Pradesh Administrative Tribunal (APAT) challenging the prescription of SSC qualification contrary to the earlier prescribed qualification of intermediate. The APAT dismissed the O.As., and challenging the same, W.P.No.15107 of 2002 and also W.P.No.422 of 2003 and others were filed before the Andhra Pradesh High Court. The Andhra Pradesh High Court passed an interim order dated 24.04.2003, to consider intermediate along with Sanitary Inspector training course certificate or 4 PMD,J W.P.No.4002 of 2022 Multipurpose Health workers training course certificate as the necessary qualification and accordingly, the candidates were directed to be appointed. In view thereof, G.O.Ms.No.159 HM&FW, dated 16.05.2003 was issued to appoint the candidates who have passed diploma in public health and sanitation and also possessed the intermediate qualification and the finalized selection list was issued on the basis of G.O.Ms.No.159.
4. Similar Writ Petitions were filed by some other candidates, wherein the G.O.Ms.No.484 HM&FW dated 24.12.2002 being the orders of the Government cancelling the selection process on the basis of complaints on the issue of bogus certificates, were challenged. The W.P.No.15107 of 2002 and also W.P.No.422 of 2003 were disposed of by this Court vide orders dated 11.09.2003, upholding the order of APAT and directing the Government to prepare the select list of the candidates in accordance with rules, who possessed SSC and diploma certificate either from the Government institutions or from the four 5 PMD,J W.P.No.4002 of 2022 private institutions referred to therein including the college of medical technology, Ongole, as the cancellation of recognition of the said four colleges was effected from 05.07.2002. It was further observed that if any selected candidate from the above institution is holding certificate issued on 05.07.2002 or thereafter, it shall not be given effect to. It was further directed that the candidates so selected shall be issued with the appointment orders within a period of four weeks from the date of the order duly terminating the services of the candidates who were appointed on the basis of interim orders and not figuring the select list prepared under the said order.
5. Aggrieved by the orders of this Court in W.P.No.15107 of 2002, dated 11.09.2003, certain candidates with intermediate qualification who were appointed vide G.O.Ms.No.159, dated 16.05.2003, approached the Hon'ble Supreme Court and the Hon'ble Supreme Court granted interim orders that the petitioners therein shall be allowed to continue in service vide orders 6 PMD,J W.P.No.4002 of 2022 dated 07.08.2006 by taking note of the exigency of administration due to epidemic outburst the Hon'ble Supreme Court vacated the orders of stay of appointments of MPHA's (M) on contract basis. In view thereof, G.O.Rt.No.1234 HM&FW dated 15.09.2006 was issued permitting the Director of Health to fill up the vacancies existing as on 15.09.2006 subject to outcome of the final judgment of the Hon'ble Supreme Court. Accordingly, certain candidates were appointed by the Government. By orders dated 09.08.2011, the Hon'ble Supreme Court, in its final decision confirmed the order passed by this Court in W.P.No.15107 of 2002 and W.P.No.422 of 2003, dated 11.09.2003.
6. In order to implement the orders of the Hon'ble Supreme Court, the Government of Andhra Pradesh (as it then was) has issued G.O.Rt.No.273 HM&FW, dated 16.02.2012, directing the Director of Health to terminate the appointment of the candidates with less merit and appoint the candidates with more merit by re-drawing the 7 PMD,J W.P.No.4002 of 2022 select list. The merit list was re-drawn accordingly and the services of the candidates with less merit were terminated. The terminated candidates requested the Government to continue their services and their request was referred to a group of Ministers for consideration. The said group of Ministers decided to reappoint all the terminated candidates and accordingly, G.O.Rt.No.1207, dated 09.10.2013 was issued to take back all the candidates who were terminated, into service.
7. On 11.10.2013, consequential orders were issued reappointing all the terminated MPHA's back in duty. Aggrieved by the same, persons with more merit than the persons appointed under G.O.Rt.No.1207, dated 09.10.2013 filed O.A.No.7455 of 2013 and batch, for not considering the merit list even after passing of final orders by the Hon'ble Supreme Court. The said O.As., were dismissed by the Tribunal and aggrieved, several Writ Petitions were filed before this Court including W.P.No.3178 of 2014. This Court granted interim 8 PMD,J W.P.No.4002 of 2022 suspension of G.O.Rt.No.1207, dated 09.10.2013. The Government and the terminated candidates filed stay vacate petition in WVMP.No.2120 of 2015 in W.P.No.3178 of 2014 and by order dated 15.09.2015, this Court modified the interim orders by directing both the States i.e., the States of Andhra Pradesh and Telangana to appoint all those candidates who secured more marks than the candidates who were appointed vide G.O.Rt.No.1207, dated 09.10.2013. It is submitted that after bifurcation of the State of Andhra Pradesh into the States of Andhra Pradesh and Telangana, the Government of Andhra Pradesh implemented the orders without any protest appointing several MPHA's. Meanwhile, C.C.No.2038 of 2016 was filed before this Court i.e., the High Court for the State of Telangana by certain candidates for non- implementation of the orders of the High Court for the States of Telangana and Andhra Pradesh in WVMP.No.2120 of 2015 in W.P.No.3178 of 2014 and consequently, two persons were appointed on 24.11.2017. When the respondents did not take action for appointing 9 PMD,J W.P.No.4002 of 2022 other more meritorious candidates shown in the list, some of the candidates filed W.P.No.26556 of 2017 and the said writ petition was disposed of by orders dated 15.09.2015, directing the respondents to consider the representations of the petitioners therein and subsequently, after filing Contempt Cases i.e., C.C.No.1296 of 2018 and C.C.No.1680 of 2018, the respondents have issued orders of appointment to the petitioners therein.
8. It is submitted that the petitioners in the present writ petition are also similarly placed and also sought similar directions from this Court and they accordingly filed W.P.No.15441 of 2020. This Court, vide orders dated 28.12.2020, directed the respondents to consider the representations of the petitioners therein in the light of the orders of the Division Bench of this Court dated 15.09.2015 in WVMP.No.2120 of 2015. The Petitioners also filed Contempt Case in C.C.No.486 of 2021 in W.P.No.15441 of 2020. The Petitioners also filed Contempt Case i.e., C.C.No.486 of 2021 in W.P.No.15441 of 2020 and 10 PMD,J W.P.No.4002 of 2022 C.C.No.4876 of 2021. Notices were ordered on 09.04.2021 and the respondents filed counter affidavits contending that the representations of the petitioners have been rejected vide orders dated 05.07.2021. Challenging the rejection order dated 05.07.2021, the present writ petition is filed.
9. Learned counsel for the petitioners submitted that petitioners are possessing necessary qualifications for the post of MPHA's and they are more meritorious than the candidates who have been appointed vide G.O.Rt.No.1207 and in spite of the directions of this Court in W.P.No.15107 of 2002, the respondents are not appointing the petitioners as MPHA's. It is submitted that the impugned order rejecting the representation of the petitioners were passed on the ground that they approached the Hon'ble Court after lapse of nearly four years and that the other writ petitions filed by the candidates appointed vide G.O.Rt.No.1207, dated 09.10.2013 are pending on the file of the Hon'ble High Court.
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PMD,J W.P.No.4002 of 2022
10. Learned counsel for the petitioner, while reiterating all the above submissions, submitted that similar issue has already been considered by the Single Bench of the Hon'ble Andhra Pradesh High Court in W.P.No.17665 of 2021 and others vide judgment dated 27.12.2021, and the Court had issued following directions:
(i) The respondents shall consider cases of the Writ Petitioners for appointment as MPHAs within a period of four (04) weeks from the date of receipt of copy of this order, in terms of Memo No.7342/G2/2015-8, dated 24.05.2016 based on their merit, if any candidate less meritorious than the Writ Petitioners are appointed;
(ii) If any of the Writ Petitioners have not submitted the relevant certificates/documents they should be called upon to submit the same by granting reasonable time of not less than four (04) weeks;
(iii) In the event of any genuine objection for considering the case of any of the Writ Petitioners, they shall be notified the same by issuing 12 PMD,J W.P.No.4002 of 2022 appropriate notice/communication and afforded an opportunity before taking further action in the matter.
He prays for similar relief in the present case also.
11. Learned Special Government Pleader appearing for the Government, sought time to file counter. However, since this case has long been pending and all the relevant facts are already on record through various proceedings, this Court, after hearing both the parties and with consent of both the parties, is disposing of the writ petition at the admission stage.
12. Learned counsel for the petitioner had filed a copy of the affidavit filed by the 1st respondent before this Court in W.P.No.3178 of 2014, wherein the respondents in para-19 thereof, had stated that the department is taking all steps to appoint the meritorious candidates than candidates covered by G.O.Rt.No.1207, dated 09.10.2013 towards implementation of orders of this Court and since there are less vacancies, the department needs to obtain approval of 13 PMD,J W.P.No.4002 of 2022 the Government to obtain sanction for the balance posts and that if the department has not obtained favourable orders from the Government, the department would be compelled to disturb the candidates appointed vide G.O.Rt.No.1207, dated 09.10.2013 in order to comply with the orders of Hon'ble Court by identifying more meritorious candidates with the available meritorious candidates when compared to the candidates appointed vide G.O.Rt.No.1207, dated 09.10.2013.
13. Learned counsel thus pointed out that though the department has stated before this Court that they would implement the orders of this Court dated 11.09.2003 in W.P.No.15107 of 2002, they have now rejected the representations of the petitioners on the ground of pending Court Cases and that such orders are contrary to the earlier orders of this Court.
14. Having regard to the rival contentions and the material on record it is noticed that though the validity of 14 PMD,J W.P.No.4002 of 2022 reappointment of less meritorious candidates is pending before this Court, the case of the candidates with merit should not be defeated on the ground of laches, particularly, when the delay is not attributable to them. It is noticed that this Court in WVMP.No.2120 of 2015 in W.P.No.3178 of 2014 had given a direction to prepare the list of meritorious candidates and to appoint them thereafter in the order of their merit. Therefore, it is not necessary for all the candidates who are more meritorious than the candidates who were appointed vide G.O.Rt.No.1207, to approach the authorities for their appointment. It is the bounden duty of the authorities to prepare the list of the meritorious candidates and implement the orders of this Court by issuing the appointment orders accordingly by taking all the necessary steps. But, the respondents herein are attributing the delay to the petitioners herein in approaching the authorities. Such an action cannot be sustained by any stretch of imagination. The respondents are expected to discharge their solemn duty of making appointments to Government 15 PMD,J W.P.No.4002 of 2022 posts strictly in accordance with merit without any further nudge or prodding from the Courts. It is the legitimate expectation of a citizen that his rights would be protected and that the eligible and qualified meritorious candidates would be offered appointment on the basis of their merit. Therefore, on this ground alone, the impugned order cannot be sustained.
15. As regards the submission of the learned Government Pleader that there are no vacancies as of now and therefore, the case of the petitioners cannot be considered, the learned counsel for the petitioners has drawn the attention of this Court to the order of the Division Bench of this Court in W.P.No.26556 of 2017, wherein it is clearly recorded that Government Pleader therein had stated that there are 754 existing vacancies and after taking note of the same only, the Division Bench had directed the respondents to appoint the petitioners therein. It is not the case of the Government that all the posts of MPHA's (M) have been filled up thereafter. It is also noticed that the 16 PMD,J W.P.No.4002 of 2022 Government had issued Memo No.397/F1/2014, dated 24.11.2017, appointing the petitioners in C.C.No.2038 of 2016 by accommodating them in the existing vacancies subject to final order passed in W.P.No.3178 of 2014 and subject to fulfilment of the conditions stipulated in G.O.Rt.No.273, dated 16.02.2012 and also following the conditions for appointment of 'contract and outsourcing candidates' under the G.O.Ms.No.14 Finance (HRM-I), dated 19.02.2016. Similar orders have been passed with regard to other candidates as well.
16. In view of the same, this Court deems it fit and proper to set aside the impugned order, dated 05.07.2021 and direct the respondents to issue appointment orders to the petitioners herein within a period of four weeks from the date of receipt of a copy of this order in the existing vacancies or by creating super numerary posts if necessary, if the petitioners are more meritorious than the candidates appointed vide G.O.Rt.No.1207, dated 09.10.2013. Since the delay in appointments cannot be 17 PMD,J W.P.No.4002 of 2022 attributed to the petitioners herein, the candidates shall be eligible for all consequential benefits such as notional seniority from the date of appointment of the candidates who were less meritorious to the petitioners herein and such seniority shall also be counted for the purpose of retirement benefits. However, the petitioners shall not be entitled to back wages.
17. Accordingly, this writ petition is allowed. There shall be no order as to costs.
18. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________
JUSTICE P.MADHAVI DEVI
Dated: 20.09.2022
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W.P.No.4002 of 2022
THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P.No.4002 of 2022 Dated: 20.09.2022 bak