Bombay High Court
Dr. Pratim P. Ambekar And Ors vs Kalyan Dombivali Municipal ... on 21 April, 2017
Bench: S.C. Dharmadhikari
Judgment-WP.12626.2015+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12626 OF 2015
1. Dr. Smita P. Hule }
Age 28 years, Occ: Service }
Residing at - B-304, Raigad }
Co-operative Housing }
Society, Building No. 87, }
Near Janta market, }
Kannamwar Nagar No. 2, }
Vikhroli (East) Mumbai - }
400 083 }
}
2. Dr. Sateja Sanjeev Sharma }
Age 33 years, Occ: Service }
Residing at 508, Shiv }
Shankar Apartment, near }
Ambika Mata Mandir, }
Ulhasnagar (East), }
Dist - Thane - 421 004 }
}
3. Dr. Rashmi U. Thakur }
Age 39 years, Occ: Service }
Residing at L-3, 104 Lok }
Kedar JSD Marg Mulund }
West, Mumbai 400 080 }
}
4. Dr. Madhuri S. Solanke }
Age 28 years, Occ: Service }
E-201, Balaji Angan, }
Sector-3, Belpada, Kharghar, }
Navi Mumbai 410 210 }
}
5. Dr. Adhwaryu A. Gaurkar }
Age 35 years, Occ: Service }
Residing at RX-4, B-308, }
Maruti Darshan Co-operative }
Housing society, Sudarshan }
Nagar, MIDC, Dombivali }
(East), Dist. Thane }
}
6. Dr. Anupama G. Salave }
Age 35 years, Occ: Service }
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Residing at C/o. Dhananjay }
B. Wankhede, A/404, Asha }
Angan Suryoday, Near P&T }
Colony, Back Side of Star }
Colony, Dombivali (East), }
Dist. Thane }
}
7. Dr. Trunali S. Mahatekar }
Age 40 years, Occ: Service }
Residing at 449, Sai Section, }
Suryoday Society, 2 nd floor, }
Ambarnath (East), }
Dist. Thane }
}
8. Dr. Deepali I. More }
Age 33 years, Occ: Service, }
Residing at 702, Suryoday }
Paradise, B Wing, Opposite }
Ram mandir, Near Damodar }
Hall, Kalyan (West), }
Dist. Thane 421 301 }
}
9. Dr. Vaishali P. Kashikar }
Ae 36 years, Occ: Service, }
Residing at Behind Block }
A/480, Opposite Punjab }
Gurudwara, Near Darshan }
Darbar, Lal Chakki Road, }
Ulhasnagar (East), }
Dist. Thane 421 004 } Petitioners
versus
1. Kalyan Dombivali }
Municipal Corporation }
through Municipal }
Commissioner, Shankarrao }
Chowk, Near Dena Bank, }
Kalyan (West), }
Maharashtra 421 301 }
}
2. State of Maharashtra }
through Secretary, (UD-2), }
Urban Development }
Department, 4 th floor, }
Mantralaya, }
Mumbai 400 032 } Respondents
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WITH
WRIT PETITION NO. 12794 OF 2015
Dr. Sheetal Kishor Patil }
Age 30 years, Occ: Service }
Residing at 3-402, }
Rajvaibhav Complex, }
Near Church, Ganesh Nagar, }
Dombivali (West) 421 201 } Petitioner
versus
1. Kalyan Dombivali }
Municipal Corporation }
through Municipal }
Commissioner, Shankarrao }
Chowk, Near Dena bank, }
Kalyan (West), }
Maharashtra 421 301 }
}
2. State of Maharashtra }
through Secretary, (UD-2), }
Urban Development }
Department, 4 th floor, }
Mantralaya, }
Mumbai 400 032 } Respondents
WITH
WRIT PETITION NO. 12299 OF 2015
1. Dr. Pratim P. Ambekar }
Aged 39 yrs., Occ: Service }
}
2. Dr.(Ms.)Pratibha Panpatil }
Aged 39 yrs., Occ. Service }
}
3. Dr. Santosh S. Kembhavi }
Aged 38 yrs., Occ. Service }
}
4. Dr. (Ms.) Nita Bhagwat }
Aged 42 yrs., Occ. Service }
}
5. Dr. Niren Pagare }
Aged 40 yrs., Occ. Service }
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6. Dr. (Ms.) Shobhana D. }
Lawankar }
Aged 39 yrs., Occ: Service }
}
7. Dr. (Ms.) Mamta D. }
Lawankar }
Aged 39 yrs., Occ. Service }
}
8. Dr. Sanjay R. Jadhav }
Aged 36 yrs., Occ. Service }
}
9. Dr. (Ms.) Poonam }
Amarsing Walvi }
Aged 34 yrs., Occ. Service }
}
10. Dr. Hemraj Deore }
Aged 33 yrs., Occ. Service }
}
11. Dr. (Ms.) Rohini Dhawale }
Aged 33 yrs., Occ: Service }
}
12. Dr. Jitendra Attarde }
Age 33 yrs., Occ. Service }
}
13. Dr. Parag Padavi }
Aged 38 yrs., Occ: Service }
}
All working as doctors with }
Kalyan Dombivali Municipal }
Corporation, Kalyan, }
Dist. Thane } Petitioners
versus
1. Kalyan Dombivali }
Municipal Corporation }
Kalyan, Dist. Thane }
through its Commissioner }
}
2. The State of Maharashtra }
through the Secretary, }
Urban Development }
Department, Mantralaya, }
Mumbai - 400 032 } Respondents
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Mr. Anil V. Anturkar - Senior Advocate i/b. Mr.
Abhijeet A. Desai and Ms. Vrushali L. Maindad for
the petitioners in WP/12626/2015.
Mr. Abhijeet A. Desai and Ms. Vrushali L. Maindad
for the petitioners in WP/12794/2015.
Mr. N. V. Bandiwadekar with Mr. Sagar A. Mane for
the petitioners in WP/12299/ 2015.
Mr. A. S. Rao with Mr. Prashant Kamble for
respondent no. 1 in all petitions.
Ms. M. S. Bane - 'B' Panel Counsel for respondent
no. 2 in all petitions.
CORAM :- S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
Reserved on 9 th March, 2017
Pronounced on 21 st April, 2017
Judgment :- (Per S. C. Dharmadhikari, J.)
1. By these petitions under Article 226 of the Constitution of
India, the petitioners are seeking a writ of mandamus or any
other writ, order or direction in the nature thereof to direct the
first respondent-Kalyan Dombivali Municipal Corporation
(hereinafter referred to as "the KDMC") to absorb, regularise and
confer permanency benefits on the petitioners. The petitioners
claim that they have been appointed as medical officers on
contractual basis in Urban Health Centers of the first respondent.
Now, there is an advertisement inserted on 19 th November, 2015.
Though this advertisement has been inserted and to fill up the
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posts, including even the posts held by the petitioners on
contractual basis, that is to circumvent and get over the right of
the petitioners of being absorbed/their services regularised with
the first respondent. Alternatively and without prejudice though
these petitioners are eligible for being appointed to the posts
advertised, they are not being considered for reasons wholly
untenable and unsustainable in law.
2. The petitioners are domiciled in the State of Maharashtra.
They are employed by the first respondent from 17 th July, 2012.
The circumstances in which they have been working as lady
medical officers in Urban Health Centers from this date are that
on 10th July, 2012, respondent no. 1 issued an advertisement
under the nomenclature "walk-in-interview" for the purpose of
recruitment of various specialists and "Lady Medical Officers" on
contractual basis for initial period of six months. The said
interview was scheduled to be held on 13th July, 2012 at 11.00
a.m. for the post of Gynecologist, Pediatrician, Anesthetic,
Physician, Radiologist and Lady Medical Officers. It is pertinent
to mention that the instant petitioners had made application for
the 12 vacant posts for appointment as Lady Medical Officers to
be posted at the Urban Health Centers. According to the
advertisement, the necessary qualification for appointment of
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Lady Medical Officer was stipulated as Bachelor of Ayurvedic
Medicines and Surgery (BAMS). The said post required three
years' experience and registration with the Medical Council of
Maharashtra. The copy of the advertisement dated 10 th July,
2012, published in Dainik Navakal, Dainik Punya Nagari and
Dainik Janmat is annexed as Annexure 'A' to the petition.
3. The petitioners state that they made necessary applications
for being appointed as the Lady Medical Officers in the Urban
Health Centers as against the 12 vacant posts. Upon scrutinising
the applications and necessary certificates/documents as
stipulated in the advertisement, the petitioners were invited and
accordingly appeared for the interviews of the post of lady
medical officer.
4. The petitioners state that the selection process was duly
carried out under section 54 of the Bombay Provincial Municipal
Corporation Act, 1949 (hereinafter referred to as "BPMC Act") by
respondent no. 1. The petitioners had undergone the interview
for the aforesaid post of Lady Medical Officer before the selection
committee duly constituted under the provisions of section 54 of
the BPMC Act. The petitioners state that the said committee
comprised of the Commissioner being the Chairman or any other
officer designated by the Commissioner together with Chief
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Accounts Officer as a member, the concerned Head of the
Department as a member, one another officer designated by the
Commissioner/representative of backward class as member, the
District Women and Child Welfare Officer as member, District
Social Welfare Officer as member, Project Officer Integrated Tribal
Development Project as member and the Deputy Commissioner
(Establishment) as the Secretary and Convener of the said
selection committee. The petitioners state that the constitution of
the said selection committee and the process undertaken by it for
selection had been published by respondent no. 2 in one of the
Government Gazette dated 16th December, 2010. The said
Government Gazette also prescribes the qualifications with
respect to the appointment for the post of Medical Officers. The
petitioners state that the rules and regulations with respect to the
selection procedure for the aforesaid posts had been stipulated in
the Gazette, copy of which is annexed as Annexure 'B' to the
petition.
5. The petitioners further state that they, pursuant to the
aforesaid "walk-in-interview", were declared to be the successful
candidates as against the 12 posts advertised for recruitment as
Lady Medical Officers for Urban Health Centers upon duly being
interviewed by the aforesaid selection committee on 13 th July,
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2012. Therefore, according to the petitioners, the said selection
was as per the recruitment norms set out in the aforesaid
Government Gazette.
6. The petitioners further states that on 17 th July, 2012,
respondent no. 1 issued an appointment order on contractual
basis to the petitioners with a fixed salary of Rs.20,000/- per
month for six months on the terms and conditions more
specifically mentioned in the appointment order dated 17 th July,
2012, copy of which is annexed as Annexure 'C' to the petition.
7. The petitioners further state that respondent no. 1, vide its
office order dated 19th July, 2012, notified the destinations with
respect to each of the candidates/petitioners in the Urban Health
Centers within the jurisdiction of the respondent corporation.
Copy of the said office order dated 19 th July, 2012 is annexed as
Annexure 'D' to the petition. On 23 rd January, 2013, upon finding
the services of the petitioners satisfactory, the first respondent
revised the contractual period of the petitioners for further six
months as against the post of Lady Medical Officer in Urban
Health Centers with effect from 18th January, 2013. Copy of the
said appointment order dated 23rd January, 2013 on contractual
basis is annexed as Annexure 'E' to the petition. The petitioners
state that the said contractual appointment is till date
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periodically revised by the first respondent vide its respective
orders dated 25th July, 2013, 1st March, 2014, 1st August, 2014,
5th February, 2015, 6th August, 2015 and 27th August, 2015.
Copies of the said orders are annexed as Annexures 'F'
collectively to the petition. Therefore, according to the
petitioners, as per the last order issued by the first respondent,
the petitioners' services with the first respondent corporation are
ceased with effect from 31st December, 2015.
8. The petitioners further state that on 1 st August, 2014, a
joint representation came to be addressed by the petitioners to
respondent no. 1 in order to regularise the services of the
petitioners, who were otherwise appointed on contractual basis as
lady medical officers. Copy of the said representation is annexed
as Annexure 'G' to the petition.
9. The petitioners state that on 4th June, 2015, the second
respondent, through its Government Resolution, came to a
conclusion that in view of the growing population within the
jurisdiction of the first respondent corporation and
simultaneously 27 new villages having been included in its
jurisdiction and also instantaneous urbanisation of the said
villages being taking place, it is the need of the hour to enhance
the number of Urban Health Centers within the jurisdiction of the
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first respondent corporation. Therefore, it was proposed, by way
of the said resolution, to introduce two major hospitals, three
dispensaries, 13 Urban Health Centers/9 newly proposed Urban
Health Centers. In view of the same, around 83 posts for meeting
the aforesaid requirement came to be sanctioned/approved at the
instance of respondent no. 2 for respondent no. 1, essentially in
view of section 51(4) of the BPMC Act. The copy of the
Government Resolution dated 4th June, 2015 is annexed as
Annexure 'H' to the petition.
10. The petitioners state that in compliance of the aforesaid
Government Resolution dated 4th June, 2015, the first respondent
issued an advertisement dated 19 th November, 2015, whereby,
about 90 posts came to be advertised for recruitment of Medical
Officers pertaining to different area of specialisation. In the said
advertisement, about 29 posts came to be advertised under the
caption of "General Medical Officer". For the said post of General
Medical Officer, the qualification as stipulated in the
advertisement is MBBS/BAMS (Ayurved)/BHMS (Homeopathy)
from Government recognised universities or any other equivalent
degree as approved by the Government. The copy of the said
advertisement dated 19th November, 2015 is annexed as
Annexure 'I' to the petition. Further, an experience of three years
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in the Government/semi Government/private hospital was
required for appointment of the General Medical Officer. Also, the
candidate should be registered with the Maharashtra Medical
Council. The age requirement for the General Medical Officer is
33 years and 38 years for reserved candidates. The petitioners
state that they had applied for the post of General Medical Officer
in the aforesaid advertisement under protest. The petitioners
state that they, as on date, fulfill the qualification requirement
with regard to the appointment as General Medical Officer though
they are currently being employed under the caption of Lady
Medical Officer, which has the same profile as that of the General
Medical Officer. Hence, it is stated that rather than issuing
advertisement with respect to the aforesaid post of General
Medical Officer, it ought to have been deemed necessary by the
first respondent to convert the employment status of the instant
petitioners from contractual basis to regular basis. In view of the
same, the representations asking for regularisation of services
came to be addressed by the petitioners on 18th September, 2015,
26th October, 2015, 16th November, 2015 and 23rd November,
2015 to the first respondent. However, as on date, no cognizance
was taken by the first respondent. In the said representations,
copies of which are annexed as Annexure 'I-1' collectively, it was
urged at the behest of the petitioners to convert the employment
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on contractual basis of the petitioners into permanent basis inter
alia for a reason that due process of law had been followed by
respondent no. 1 during making such appointments on
contractual basis by complying with the provisions of section 54
of the BPMC Act. The qualification as required for the current
recruitment as General Medical Officer is akin to the one imposed
at the time of recruitment on contractual basis. Hence, in view of
the judgment and order passed by this court in Writ Petition No.
2046 of 2010, wherein the similarly placed candidates as that of
the petitioners came to be regularised, as the appointment was
upon being approved by the selection committee and the
candidates having experience of three years in contractual
employment and continuing to remain in the service, the
candidature of such employees came to be regularised by the
aforesaid order of this court dated 19 th October, 2013. The
petitioners state that the said order came to be challenged by the
respondents in the Hon'ble Supreme Court of India. However, the
same came to be rejected vide an order dated 6 th January, 2015
passed by the Hon'ble Supreme Court of India, whereby, the order
of this court had attained finality.
11. The petitioners state that on 27th January, 2015, in a
similar matter in Writ Petition No. 10145 of 2014 and Writ
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Petition No. 7461 of 2014, this court was pleased to regularise
the services of the petitioners in those petitions, thereby
conferring the permanency benefits on them, who were appointed
on contractual basis and whose selection was made through
selection committee and who have completed three years'
services with technical breaks. The ratio laid down in Writ
Petition No. 2046 of 2010 as aforestated came to be followed in
the aforesaid writ petitions, wherein this court, vide its order
dated 27th January, 2015 allowed the regularisation and
conferred permanency on the services of the petitioners who had
completed three years of service with technical breaks and who
continue to remain in service. The respondents were directed to
absorb the petitioners within six weeks and pay regular salary
from the date of their absorption. Similarly, on 11 th February,
2015, in a similar matter in Writ Petition No. 491 of 2014 this
court regularised and conferred permanency on the services of
the petitioners who had completed three years of service to be
absorbed as regular employees thereby allowing the regular
salaries to the said petitioners from the date of absorption.
Therefore, in the said case also this court applied the ratio laid
down by this court in Writ Petition No. 2046 of 2010. The
petitioners state that in Original Application No. 126 of 2014, the
Maharashtra Administrative Tribunal, vide its order dated 11 th
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March, 2015 regularised the services of the applicants who have
completed three years service with technical breaks, who were in
the continuous service till the date within a period of six weeks.
The copy of the said order dated 11th March, 2015 passed by the
Maharashtra Administrative Tribunal is annexed as Annexure 'N'
to the petition.
12. The petitioners state that, upon having the knowledge of the
aforesaid advertisement dated 19th November, 2015 they made
applications for the post of General Medical Officer under protest.
The petitioners state that they individually were issued
experience certificates bearing different dates, which, inter alia,
envisaged the petitioners' services so rendered till date with
respondent no. 1 being satisfactory as mentioned by respondent
no. 1 in the said experience certificates. The petitioners further
state that they, during the tenure of their employment with the
first respondent, were subjected to increment in their salaries
from fix salary of Rs.20,000/- per month to 23,000/- per month
with the fact that the petitioners had independently completed
three years of continuous service as Lady Medical Officers in
Urban Health Centers with a technical break.
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13. The petitioners further state that the notification dated 30 th
October, 2000, published by the Public Health Department, State
of Maharashtra, stipulated the provision for appointment to the
post of Medical Officer in Maharashtra Medical and Health
Services of a candidate with BAMS as his/her necessary
qualification as what had been contemplated in Rule 31 of the
said notification. Copy of the said notification is annexed as
Annexure 'P' to the petition.
14. The petitioners state that on 14th January, 2015, the first
respondent, through its Department of Higher Technical
Education, issued a Government Resolution, whereby, the
services of the 62 candidates, who were, at that instance,
appointed on contractual basis, came to be regularised vide the
said Government Resolution upon duly complying with the order
dated 19th October, 2013 in the aforesaid Writ Petition No. 2046
of 2010. The copy of Government Resolution dated 14 th January,
2015 is annexed as Annexure 'Q' to the petition.
15. The petitioners further state that they are aggrieved with
the inaction on the part of respondent no. 1 for having failed to
regularise the services of the petitioners, thereby further having
failed to confer permanency on their services and further
advertising the already recruited posts of the petitioners under
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the caption of "General Medical Officer". The petitioners seek to
challenge the aforesaid inaction inasmuch as the advertisement
so published on 19th November, 2015 vide the instant writ
petition by invoking writ jurisdiction of this court under Article
226 of the Constitution of India.
16. It is on such petitions being served that the first respondent
appeared through their advocate and sought time to file a reply.
However, while granting that request on 22 nd December, 2015,
this court directed that no coercive steps, including to terminate
the services of the petitioners be taken by the first respondent.
However, this court directed that the recruitment process can
continue, however, that will be subject to further orders of this
court. Accordingly, these petitions were listed on 17 th March,
2016, but at the request of the first respondent, they were
adjourned to 31st March, 2016. Thereafter, on 7 th April, 2016, the
petitions were adjourned to 12th April, 2016. The parties were
directed to file their written submissions. The matters were
directed to be disposed of finally at admission stage. That is how
we would refer to the affidavit in reply. That is filed on behalf of
the first respondent municipal corporation. The affidavit was
directed to be filed and indicating therein the procedure,
practices, whereby merely because the posts are sanctioned as
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per the requirement and demand, whether the first respondent is
entitled to issue fresh advertisement and select candidates
despite on the same posts, other candidates, though appointed
temporarily, have been working for past more than 3/8/10 years.
The KDMC was directed to file a chart and a reply also was
directed to be filed by the State Government. It is after such an
order and direction that the affidavits came to be filed.
17. The affidavit filed by Mr. Milind Ramchandra Dhat on
behalf of the KDMC, on 9 th February, 2016 and the additional
affidavit filed as directed on 13th July, 2016 may now be referred.
18. In the first affidavit, the deponent sets out the stand of the
KDMC in the following words:-
"4. I say that as per the provisions of the Maharashtra
Municipal Corporation Act, 1949 the Corporation is
maintaining municipal hospitals, maternity centers etc. in
the territorial limits of the Corporation. I say that vide
Government Resolutions dated 13.1.1999 and dated
18.3.2008 issued by the Urban Development Department,
the State Government had created 32 (27+5) posts of
Medical Officers for the Kalyan Dombivli Municipal
Corporation.
5. Afterwards, the Standing Committee of the
Corporation accorded sanction for the creation of 54
(15+39) posts of Medical Officers purely on temporary
basis, vide their Resolutions dated 28.8.2003 and
19.11.2003 respectively. In the process, an advertisement
was published by the Corporation to fill 21 posts of Medical
Officers purely on temporary basis for a period of 6
months, on 10.7.2012. Out of these 21 posts, 12 posts
were of Lady medical Officers. The required qualifications
for these posts, were:
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i) A recognized degree in BAMS (Ayurved)
ii) 3 years experience in hospitals run by
Government, Semi Government or Private
Management.
iii) The candidate should be duly registered with
the Maharashtra Medical Council.
The interviews for the said posts were conducted on
13.7.2012.
6. I say that the interview were held on 13.7.2012 for 12
posts of Lady Medical Officers. Accordingly 12 candidates
were selected and the appointment order was issued on
17.7.2012. The order clearly stated that:
i) The said appointments are on fix pay and are
purely on temporary basis for the period of 6 months.
ii) The candidates shall not have any right for
regularization or for any permanency on the
establishment of the Corporation.
iii) The candidates shall give undertaking on
Stamp Paper that they will not claim any permanency
or regularization.
7. Accordingly the following candidates were appointed
on temporary basis as Lady Medical Officers for the
temporary period of 6 months:
1. Dr. Rashim U. Thakur
2. Dr. Madhuri S. Solanke
3. Dr. Trinali S. Mahatekar
4. Dr. Snehal D. Patil
5. Dr. Shubhangi Wankhedkar
6. Dr. Adhvaryu Gaurkar
7. Dr. Leena Jadhav-Pawar
8. Dr. Deepali Ishwar More
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9. Dr. Sateja S. Sharma
10. Dr. Anupama Salve
11. Dr. Seema Ramesh Jadhav
12. Dr. Samita Prakash Hule
8. I say that the aforesaid 12 candidates were appointed
vide order dated 17.7.2012 purely on contract/temporary
basis for the period of 6 months at honorarium of 20000/-
p.m. as Lady Medical Officers w.e.f. 17.7.2012 to
16.1.2013 and as per the terms and conditions mentioned
therein.
9. It is submitted that out of 12 appointed candidates
Dr.Leena Jadhav-Pawar did not join. Therefore, in her
place Dr. Vaishali Kashikar who was on the waitlist was
appointed for the contract/temporary basis w.e.f. 3.8.2012
to 16.1.2013. Similarly Dr. Shubhangi Wankhedkar left
the job after 6 months. Hence, another advertisement was
issued and after interviewing Dr. Sheetal Kishor Patil was
appointed for the contract/temporary basis for the period
of 6 months w.e.f. 27.6.2013. I say that since there was a
necessity of the Lady Medical Officers, the said temporary
appointments were continued after giving technical break
of one day as detailed below:
Sr. Period of temporary appointment
Order dated
No. From To
1 17.7.2012 17.7.2012 16.1.2013
2 23.1.2013 18.1.2013 17.7.2013
3 25.7.2013 19.7.2013 18.1.2014
4 1.8.2014 21.7.2014 20.1.2015
5 5.2.2015 22.1.2015 21.7.2015
6 6.8.2015 23.7.2015 31.12.2015
7 8.1.2016 2.1.2016 30.60.2016
10. I say that as stated hereinabove all these
appointments are on contract/temporary basis for the
period of 6 months and the respective candidates have
given their undertakings on Stamp Paper to the
Corporation that they will not claim any permanency in
appointments and also that they will not litigate for
regularization.
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11. I say that as per the establishment staffing pattern of
the Corporation, there were about 32 sanctioned posts of
Medical Officers. However, in view of the continuous
increase in the population and further due to inclusion of
27 villages in the territorial limits of the Corporation,
which were earlier excluded, the Municipal Administration
felt it necessary to increase the medical staff of the
Corporation. Keeping this in view, the Urban Development
Department of Government of Maharashtra vide
Resolution dated 4.6.2015 sanctioned 83 posts of
Specialist Medical Officer for Kalyan Dombivli Municipal
Corporation. Thus as on today there are total 115 (32+83)
sanction posts of Medical Officers in the Corporation. The
current position of these posts is as follows:
i) Permanent posts: Out of the 115 posts of
permanent Medical Officers, 23 permanent Medical
Officers are presently working and remaining 92
posts are lying vacant.
ii) Temporary posts on contractual basis : As
elaborated in Para 5 above, there are 54 temporary
posts, out of these, 44 posts are filled in and 10 are
vacant.
12. I say that as stated in Para 11 above, 92 posts were
vacant. Out of these the requisite qualification for 2 posts
of Post Mortem Specialist is not mentioned in the
Government approved Recruitment Rules of the
Corporation. Hence, excluding these 2 posts, an
advertisement for 90 posts of Medical Officers was
published by the Corporation on 10.11.2015 on its website
as well as in the local newspapers inviting applications
from suitable and qualified candidates upto 4.12.2015.
13. I say that as per the Recruitment Rules sanctioned by
the Government of Maharashtra, the qualifications for the
posts of Medical Officers/Emergency Medical Officers/
Medical Record Officers, are as follows:
i) Degree in MBBS/BAMS (Ayurved), BHMS
(Homeopathy) Degree from a recognized University
or an equivalent.
ii) Three years experience in the Hospital run by
Government/Semi Government/Private Organisation
in the relevant field.
iii) The candidate should be duly registered with
the Maharashtra Medical Council.
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Judgment-WP.12626.2015+.doc
14. I say that as stated hereinabove, the recruitment for
filling up total 90 posts of Medical officers is in process.
After completion of the said process temporary posts that
were created by the Standing Committee for intermittent
and emergency purposes will not be continued as there will
not be any necessity for these posts."
19. Consistent with this stand, the first respondent denies the
allegations in the writ petitions. It is also pointed out that the
petitioners have also applied for regular appointment. There is a
justification provided for the stand in the further paragraphs of
this affidavit.
20. In the additional affidavit filed pursuant to the order of 1st
July, 2016, the first respondent states and with reference to the
specific provisions of the BPMC Act that sections 51, 53, 54(1)
and (2) thereof permit the first respondent to make the
appointments, whether temporary or permanent. However, a
procedure has to be followed in that behalf and that is duly
followed. It is submitted that even the Standing Committee, by its
resolution dated 28th August, 2003, has created only 4 posts of
Casualty Medical Officers out of 30 posts as the remaining are
specialised posts. Further, the Resolution of 19 th November, 2003
of the Standing Committee allowed the Corporation 39 posts for
different medical officers in different hospitals. Then, there is a
reference made to the following facts:-
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"11. I say that as per the sanction granted on 13.1.1999,
only 6 posts of Casualty Medical Officers were sanctioned.
Hereto annexed and marked as EXHIBIT-C is a copy of
said sanction of the Govt. of Maharashtra, dt. 13.1.1999.
Similarly vide sanction dt. 18.3.2008 only 5 posts of
Casualty Medical Officers were sanctioned. Hereto
annexed and marked as EXHIBIT-D is a copy of said
sanction granted by the Govt. of Maharashtra on
18.3.2008.
12. I say that the Municipal Corporation had submitted
proposal dt. 27.3.2015 seeking additional posts in view of
increase in population due to merger of 27 villages in the
territorial limits of the Corporation. The Govt. of
Maharashtra has sanctioned about 83 posts, out of which
about 6 posts are of Casualty Medical Officers/General
Medical Officers for Kolsewadi Hospital as well as for
Maternity Home, Dombivli. 25 posts are of General
Medical Officers for 13 City Health Centers and 3 Small
Dispensaries at Kalyan and Titwala and for 9 proposed
City Health Centers and further about 15 posts of General
Medical Officers for Rukminibai Hospital at Kalyan and
Shastri Nagar General Hospital at Dombivli. Hereto
annexed and marked as EXHIBIT-E is a copy of said
sanction of the Govt. of Maharashtra dt. ...6.2015. I say
that as on 1.1.2016 the strength of various medical
officers, who are actually working on the establishment of
the Corporation is as shown in the statement attached
herewith as EXHIBIT-F.
13. I say that as per Recruitment Rules sanctioned by the
Government, qualifications prescribed are Degree of
MBBS/BAMS/BHMS and registration from Maharashtra
Medical Council. I say that at the time of making
temporary posts though the Corporation has appointed
certain BAMS candidates for the posts of Medical Officers
but when making the regular appointment, it was found
that in view of the condition of registration with
Maharashtra Medical Council being mandatory, it resulted
in filtration of Ayurvedic and Homeopathy category
doctors. I say that the Corporation cannot go beyond the
recruitment rules nor has any right/power to relax the
same. Therefore vide letter dt. 25.5.2016 and 15.6.2016
the Corporation sought clarification from the government
considering the above position of recruitment rules as to
whether the Corporation can consider BAMS & BHMS
qualification for the purpose of General Medical Officers or
Casualty Medical Officers. The Corporation followed up the
J.V.Salunke,PA
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matter by sending reminder on 24.6.2016. Hereto
annexed and marked as EXHIBIT-G (Colly.) are copies of
said letters/reminder dt. 25.5.2016, 15.6.2016 &
24.6.2016.
14. I say that as far as the contention of the petitioners
that some of the petitioners have become age barred for
the appointment on the establishment of the Government
and Semi Government is concerned, though it is true that
as per the existing Rules the maximum age limit for
Regular candidates is 33 and for the reserved candidates is
38, however as per the Recent G.R. issued by the
Government of Maharashtra dt. 25 th April, 2016, the said
maximum age limit has been extended to 38 years in case
of open candidates and 43 in case of reserved category
candidates. Therefore, the said contention of the
petitioners is not tenable. Hereto annexed and marked as
EXHIBIT-H is the copy of the said G.R. Of the Government
of Maharashtra dt. 25th April, 2016.
15. I say that the Respondents have completed the
process of appointments for the posts of various specialists
contained in the Advertisement dt. 4/12/2015. In the said
process the respondents have selected the Petitioner No. 8
Dr. Sanjay Jadhav and Petitioner No. 9 Dr. Poonam Walvi
in W.P. No. 12299/15 and Dr. Madhuri Shekokar for the
post of Specialists. However, the Petitioner No. 9 and
Dr.Shekokar have refused the said appointment on regular
basis. Hereto annexed and marked as EXHBIT-I (Colly)
are the copies of the said refusal."
21. It is in the above facts and circumstances, it is prayed that
the Municipal Corporation has not committed any illegality in
refusing to regularise the petitioners. That would cause serious
prejudice to those who come by the regular mode. For all these
reasons, the reliefs be denied.
22. A rejoinder affidavit was placed on the file by the
petitioners on 1st September, 2016, in which, there is a specific
stand taken. That is in the following words:-
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"2) I say that, the aforesaid aspect is more clear in view of
the chart annexed by the Respondent No. 1 dated
01.01.2016 wherein it came to the notice of the Petitioners
that, out of total 45 posts earmarked for General Medical
Officer, only 29 posts was sought to be advertised in the
impugned advertisement dated 19.11.2015 inter-alia for
reason that, the remaining 14 posts who are already into
municipal service were undisturbed. It further came to the
notice of the Petitioners that, the said 14 Medical Officers
were appointed prior the date of sanctioning of their post
on 18.03.2008 (wherein only 5 posts for general medical
officers were sanctioned) on permanent basis. Despite the
fact the post of General Medical Officer came to sanctioned
for the first time on 18th March of 2008 to the extent of 5
posts, the Respondent No. 1 had failed to offer any
explanation as to how the said post were appointed on
permanent basis during the year 1987-1995 despite the
same were not sanctioned by the State Government till
2008 that too only 5 posts. The said aspect is clarified
disclosing the said details. Hereto annexed and marked as
Exhibit A-1 is the copy of the chart. Also annexed and
marked as Exhibit A-2 is the copy of the details of the
said 14 Medical Officers vis a vis their date of
appointments. The said chart reflects that, by and large
most of the candidates came to be appointed on permanent
basis before the date of sanction of the posts by the state
government.
3) I say that, as contemplated in section 54(2) of BPMC
Act and also in view of the appointments made as
described herein above on permanent basis without
granting sanction to the same, the appointment of the
instant Petitioner should be regularized by following the
same uniform principle as was made applicable to the
aforesaid 14 post which were appointed on permanent
basis prior to the date of sanction upon invoking the
provision under section 54 (2) of the BPMC Act.
4) I say that, the impugned advertisement does not
earmark the post independently and separately for the
MBBS and BAMS candidates which means, the candidates
of MBBS and BAMS degree can jointly compete for the said
29 posts. I say that, the Petitioner had prepared a chart
which seeks to offer the employment details of the
Petitioner vis-a-vis the date of appointment and date of
renewal of their contract which Hereto annexed and
marked as Exhibit-A-3 is the copy of the said Chart.
5) I say that, in view of the Government Resolution
dated 26th May 1981 issued by the Urban Development and
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Public Health Department, the said GR imposes a mandate
upon the Primary Health Centers to reserve 25% of the
total posts for BAMS category. Hereto annexed with and
marked as Exhibit-A-4 is the copy of the said
Government Resolution.
6) I say that, if the petitioners are not regularized by
applying the same set of principles as made applicable to
the aforesaid 14 posts, this shall violate their fundamental
rights guaranteed under Article 14 to them by the
Constitution of India in as much as right to Equality is
concerned and that, they shall be subjected to unfair
discrimination vis a vis other employees are concerned
who were regularised by adopting a different yardstick or
policy despite being appointed by the same method as the
instant petitioners."
23. Then, there is an affidavit in reply filed by the State
Government, which seeks to support the Municipal Corporation.
The State also justifies the Municipal Corporation's stand by
referring to the provisions of the BPMC Act and the KDMC City
Municipal Corporation (Recruitment and Classification of
Service) Rules, 2010. It is submitted that qualification and
eligibility criteria are laid down in these rules and they have to be
fulfilled before even a relief of regularisation can be sought by any
aggrieved party like the petitioners. The State also makes a
reference to the Government Resolution dated 4 th June, 2015
granting approval to the posts for the hospitals/Urban Health
Centers administered and managed by the KDMC. The details of
the posts are also set out in para 11 at pages 461 and 462 of the
paper book. Further, in para 12, the State-second respondent
states as under:-
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"12. I say that, the Kalyan-Dombivali Municipal
Corporation vide its letter dated 25.05.2016 and
15.06.2016 has sought clarification from the Government
considering the position of Recruitment Rules, as to
whether the Corporation can consider BAMS and MHS
qualification for the purpose of General Medical Officers or
Casualty Medical Officers. In this regard the Medical
Education Department of the State Government has opined
that as per the recruitment Rules for the posts of Medical
Officers/Emergency Medical Officers/Medical Record
Officers, the candidate should be duly registered with the
Maharashtra Medical Council. In view of this, the
candidates possessing BAMS/BHMS degree cannot be
considered eligible for appointment on the said posts."
24. With the above factual background, we heard these
petitions on 15th December, 2016 at some length. After that
hearing, we came to the conclusion that further details would be
required. Therefore, the following order was passed on 15 th
December, 2016:-
" During the course of arguments, especially by
Mr.Bandiwadekar, it was noticed by us that in the Petition
filed by Mr. Desai as well as Mr. Bandiwadekar, the Kalyan
Dombivali Municipal Corporation has filed a common
affidavit in reply.
2 In paragraph 4 of this affidavit, it is stated that as per
the provisions of the Maharashtra Municipal Corporation
Act, 1949, the corporation is maintaining municipal
hospitals, maternity centers etc in the territorial limits of
the corporation. The Government Resolutions dated 13th
January, 1999 and 18th March, 2008 issued by its Urban
Development Department permitted creation of 32 posts of
Medical Officers for the said corporation. It is then alleged
that afterwards the Standing Committee of the corporation
accorded sanction for the creation of 54 posts of Medical
Officers purely on temporary basis by Resolution dated
28th August, 2003 and 19th November, 2003. In the
process, an advertisement was published by the
corporation to fill 21 posts of the Medical Officers purely
on temporary basis for a period of six months on 10 th July,
2012. Out of these 21 posts, 12 posts were of Lady Medical
Officers.
J.V.Salunke,PA
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3 In the petition of Dr. Pratim Ambekar and others
(Writ Petition No. 12299 of 2015) a specific factual
statement is made that the Petitioners therein have been
in the services of the municipal corporation from the year
2003. Their statement is that in order to provide the
indoor and outdoor medical services, the first respondent
corporation has been running 2 big hospitals, 2 small
dispensaries and 13 public health centers. In order to fill
up the full time posts of Medical Officers, an advertisement
was published in the local newspapers. Petitioner No.1
made an application in the recruitment initiated in the
year 2003 and he came to be selected. He was appointed on
29th October, 2003. Thereafter, an advertisement was
issued on 16th August, 2004 inviting applications from
qualified candidates for the post of Medical Officers in
different faculties. The first Respondent received several
applications for various posts and these candidates came
to be interviewed on 19th August, 2004 and 21st August,
2004. In that process, Petitioner No.2 came to be selected
and appointed on 24th August, 2004.
4 In regard to such a specific case, and with
illustrations as highlighted together with the copies of the
appointment orders, naturally a query was raised by the
Court as to when the Government Resolutions dated 13th
January, 1999 and 18th March, 2008 are stated to be the
Resolutions sanctioning the post, then, how come the
appointments were made in the year 2003. If those were
made as against the posts sanctioned by the Standing
Committee Resolution and recorded in further paragraphs
of the affidavit in reply, namely 28th August, 2003 and
19th November, 2003, then, when another and subsequent
Resolution of the Government of Maharashtra dated 18th
March, 2008 sanctioned posts on the establishment of the
municipal corporation, whether the appointments of such
of the Petitioners referred above are against the
Government Resolutions or the Standing Committee
Resolution, and therefore, purely temporary, has not been
clarified with the records.
5 Further we fail to understand as to what was the
occasion for issuance of the advertisement to fill up 21
posts of Medical Officers purely on temporary basis relying
on the Standing Committee Resolution of the Corporation
dated 28th August, 2003 and 19th November, 2003, when
the Government Resolution sanctioned and permitted
creation of 32 posts of Medical Officers in the Corporation.
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
6 Mr. Bandiwadekar has relied upon the further
affidavit in reply filed by the municipal corporation
purporting to clarify this position. We do not find from a
reading of that affidavit and particularly the chart at page
212 that the corporation has prima facie satisfied the
Court that the temporary appointments were made in
pursuance of its Standing Committee Resolutions to meet
immediate and emergent exigencies. Though the
Government Resolutions of 1999 and 2008 were in place
and sanctioning 32 posts, these additional posts had to be
created on temporary basis to man the hospitals,
dispensaries and primary health centre. Thus, the
requirement of the Municipal Corporation far exceeds the
permanently created posts (32 in number vide
Government Resolutions of 1999 to 2008) and 83 (vide
Government Resolution of 2015). How, the Municipal
Corporation has filled in the 32 posts and yet required the
54 temporary posts has not been clarified at all. If there is
a workload requiring appointment of Medical Officers
particularly after 27 villages have been included in the
Municipal Corporation limits, then, that needs proper and
complete explanation. Why then against so many
sanctioned permanent posts, temporary appointments are
made and for decades together, why those already working
and duly qualified cannot be absorbed in these posts
requires elaboration and over and above the cryptic
explanation in the Affidavits filed by Shri Milind Dhat.
7 Let, therefore, the Municipal Commissioner file an
affidavit as to on what basis the Municipal Corporation is
issuing advertisement after advertisement for temporary
appointments, how does the corporation intends to
regularize its affairs or whether it is intending to
perpetuate a temporary arrangement created in 2003 for
the benefit of somebody who was not entitled and eligible
to hold the post.
8 The affidavits filed by Mr. Milind Dhat, the Assistant
Municipal Commissioner are relevant for what they are
not setting out. They do not convey to the Court the
Corporation's views with clarity and precision. Such
selective statements would create doubts about the
records and their maintenance. If this is how the
establishment is functioning, then, indeed these are sorry
state of affairs and if tomorrow the entire workforce
comprising of these Petitioners is thrust upon the
Municipal Corporation, then, it is entirely its fault and it
alone should be blamed rather than anybody else. We
would be constrained to pass orders on the lines of the
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Division Bench judgments of this Court, if the records are
not forthcoming. If that will be contravening the larger
public interest, then, it is for the corporation and those in-
charge of its administration and supervising its affairs who
must take a call and not this Court.
9 We are, therefore, directing a affidavit to be filed by
the Municipal Commissioner and none else. Let, all the
original records and available with the Municipal
Corporation be produced on the returnable date. We place
these matters on 12th January, 2017. The interim order to
continue until further orders."
25. The sum and substance of these directions are that the
Municipal Corporation is duty bound to place before the court the
correct facts and particulars with regard to the subsequent
advertisement issued for making temporary appointments and
whether it ever intends to frame a proper policy for
regularisation and if framed, its implementation. After that,
several adjournments were sought so as to file the affidavit. The
affidavit could not be filed until 17 th February, 2017. That
affidavit explains the position as under:-
"2. I say that on 1.10.1983 the Kalyan Dombivli
Municipal Corporation came to be constituted by merging
mainly the 3 Municipal Councils i.e. Kalyan Municipal
Council, Ambernath Municipal Corporation and Dombivli
Municipal Council. At the time of constitution of the
Corporation, the strength of the Medical Officers in the
said 3 Municipal Councils was as follows :-
Sr. Municipal No. of
Remarks
No. Council posts
1. Kalyan 3 Resident Medical Officer
2. Dombivli 1 For Maternity Home
1 IPD RMO
1 Patkar Dispensary
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1 Shastri Nagar Hospital
1 Ayurved dispensary
1 Manjunath Urban Health
Centre
3. Ambernath 6 Chhaya Hospital
So also there was 1post of Anesthetist sanctioned on
Ambernath Municipal Council's establishment.
Hereto annexed and marked as ANNEXURE-I is a
copy of the chart showing total number of posts of Medial
Officers including Anesthetist.
3. I say that after the constitution of the Kalyan
Dombivli Municipal Corporation the then Administrators
created the posts of Medical Officers by passing
Administrative Resolutions, based on the then
requirements. The details of the posts created are as
follows:
Sr. Name & No. of No. and date of
Posts created for
No. posts Resolution
1 Anesthetists-1 744/12.9.85 Dombivli Hospital
2 Anesthetists-2 405/7.8.89 Rukminibai
Hospital, Kalyan &
Shstri Nagar
Hospital, Dombivli
3 Medical Officer-1 92/12.10.1984 Ambernath T. B.
Clinic
4 Medical Officer-3 157/16.11.1984 For mobile Clinic of
Kalyan Corporation
5 Medical Officer-1 258/11.1.1985 Family Welfare
Centra of Municipal
Corporation,
Dombivli
6 Medical Officer-2 54/16.4.1986 Rukminibai
Hospital, Kalyan
7 Medical Officer-3 413/16.9.1986 Shastri Nagar
Hospital, Dombivli
8 1. Medical Officer 968/19.1.1991 Rukminibai
(Medicine Hospital, Kalyan
Specialists)-3
Shastri Nagar
2. Medical Officer Hospital, Dombivli
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(Surgery
Specialists)-3 Chhaya Hospital,
ambernath
3. Medical Officer
(Gynecologist (one each in each
Specialists)-3 Hospital)
9 Medical Officer-6 Kulgaon Badlapur
936/19.10.1991
Hospital
Hereto annexed and marked as ANNEXURE-II
(Colly.) are the copies of said administrative resolutions,
through which the then Administrators created various
posts of Medical Officers and Anesthetists.
4. I say that as on 1991, there were total 44 posts of
Medical Officers, out of which 31 were General Medical
Officers and 13 were Specialists (4 - Anesthetists, 3 -
Surgeons, 3 - Medicine, 3 - Gynecologists) on the
establishment of the Municipal Corporation.
5. I say that during the aforesaid period, the then
administration issued advertisement and filled in the said
posts created firstly on probation and thereafter confirmed
them on successful completion of probation. Dr. Satpute,
regarding whose appointment the petitioners made
allegation that the said Dr. Satpute has been appointed on
temporary basis and thereafter regularized, came to be
appointed on probation on 04.08.2987 on a pay-scale of
Rs.600-30-750-40-1150 + allowances for a period of 1
year, and thereafter confirmed on the said post on the
completion of probation period. Similarly, there were
other officers appointed in the Health Department during
the said period. Hereto annexed and marked as
ANNEXURE-III is a copy of said appointment order of Dr.
Satpute dt. 04.08.87.
6. I say that w.e.f. 14.4.1992 the Ambernath Municipal
Council and some other villages were deleted from the
territories of the then Municipal Corporation and
constituted as 2 separate Municipal Councils. In view of
the said bifurcation of the Corporation, the then
administrator passed Administrative Resolution No.417
dt. 30.8.1993, which contained the Establishment
Schedule of the Corporation. In this Establishment
Schedule, a total of 44 posts of General Medical Officers
and Specialists were included, the details of which are as
follows :
Sr. No. Name of post Number of posts
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Medical Officer (Medicine
Specialist)
Medical Officer (Surgery
Specialist
Medical Officer
(Gynecologist Specialist)
This Resolution along with the proposed
Establishment Schedule was forwarded to the
Government, vide letter dated 15.9.1993, with request to
sanction the same. Hereto annexed and marked as
ANNEXURE-IV is a copy of the said Administrative
Resolution No. 417 dt. 30.8.1993. The outcome of this
proposal is not known, as the Government has neither
accorded a sanction to this proposal nor it has rejected it.
7. It appears that thereafter an establishment schedule
for the entire Corporation (Considering the requirement
of next ten years for the eight wards formed in the
Corporation) was sanctioned by the General Body in its
meeting No.19, vide Resolution No.240 dated 18.3.1997.
Thereafter based on the same resolution, a request letter to
sanction posts on establishment schedule for Ward
Officers, Unauthorised Construction Department, KDMC's
hospital service and Medical Officer Health (medical
department) was submitted vide letter dated 30.5.1997.
During the pendency of the above establishment schedule
to the Government, the Corporation submitted a proposal
for 27 posts of Medical Officers for 2 Hospitals and
maternity home (on the basis of General Body Resolution
No.240 dated 18.3.1997 as clearly mentioned in the
preface of the Government Resolution) and the same has
been sanctioned by the Government vide G.R. Dated
13/1/1999 (Pl. see page 167) sanctioning 27 posts. The
details of these 27 posts are as follows:-
Sr. No. Name of the post No. of posts
4 Psychiatrics --
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This statement shows that out of the 27 posts, only 6
are that of Casualty Medical Officers and remaining 21
posts are that of Specialists.
Thereafter the Government has sanctioned the entire
establishment schedule vide Government Resolution dated
9.12.99, however the schedule sanctioned vide
Government Resolution dated 9.12.99 did not contain any
post of Medical Officers.
Hereto annexed and marked as ANNEXURE-V
(Colly.) are the copies of the letters dated 3.4.1997 and
30.5.1997 submitted by the Respondents to the
Government, along with the Resolution No.240 dated
18.3.1997 and the Government Resolution dated
9.12.1999.
8. I say that the recruitments were made for the posts
created by the Administrators as per administrative
resolutions. Hereto annexed and marked as ANNEXURE-
VI is a chart showing appointments of various medical
officers made by the Corporation during the period from
1983 to 2011. I say that thus, it clearly appears that the
posts which were created, were filled in, firstly on
probation and subsequently made permanent on
completion of probation period.
9. I say that as the posts of General Medical Officers
sanctioned by the Government were insufficient and
further due to increased stress on the Hospitals, since
there being no district level Government hospital in
Kalyan, requiring more Medical Officers (General Medial
as well specialists). Hence, a proposal for creation of
temporary posts of Medical Officers for a period of 6
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
months on monthly stipend (Rs.10,500/- per month) basis
for a period of six months as per the Provisions under
section 53(3) of the Municipal Corporation Act, subject to
Government approval, came to be submitted to the
Standing Committee and the Standing Committee, vide
Resolution No.71, dated 28.8.2003 sanctioned the said
proposal for 15 posts, to be filled in temporarily. Similarly,
vide Resolution No.117, dated 19.11.2003 the Standing
Committee has created 39 posts of Medical Officers on
temporary basis. The details of these resolutions is given
below:-
(A) Resolution No.71, dated 28.8.2003
Sr. No. Name of post Number of posts
(B) Resolution No.117, dated 19.11.2003
Sr. Number of Medical
Name of the Hospital/Health Post
No. Officers posts
H.M.Dalal Kolsewadi
Dispensary/maternity Home
Saleh Mahmed Ansari Chowk
Dispensary/Maternity Home
The said resolutions are already annexed at page-165
and 166 of the compilation. It is submitted that vide
General Body Resolution No.181 dated 2.4.42006, the
stipend for these Medical Officers and specialists was
revised and the Commissioner has been authorised to
extend the period for those Medical Officers appointed on
posts of temporarily basis after six months and also to
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appoint the alternative candidates on the posts vacated by
the left out Medical Officers.
10 I say that Dr. Zoya Patil, Dr. Manjusha Itkar and Dr.
Nitin Zabak were appointed on purely temporary posts of
Medical Officers on contract basis on honorarium of
Rs.5000/- per month initially for a period of six months by
orders dt. 24.10.2003. I say that in the year 2007, the
then Commissioner sent a proposal dt. 23.6.2007 for
regularization of services of senior most Dr. Zoya Patil
(OBC and Child Specialist), Dr. Manjusha Itkar (Open and
Dentist) and Dr. Nitin Zhabak (Open and General Surgeon)
after calling their willingness and an undertaking that
they will not claim back wages for the past service and
other benefits as there were posts of the said category
were vacant and the General Body has accepted the said
proposal and passed the Resolution no.33, dt. 17.08.2007
and accordingly their services were regularized, however
thereafter Dr. Zoya Patil and Dr. Nitin Zhabak have
resigned their respective jobs and left the Corporation's
services. Dr. Manjusha Itkar is still working with KDMC.
11 It is stated that for the programme of R.C.H. Phase-II
to be continued in Corporation area after 2007, for
implementing this programme as per the General Body
Resolution No. 108, dated 19.10.2005, a proposal dated
14.08.2007 was submitted to the Government, and the
Government was accorded sanction to 51 posts vide
Government Resolution dated 18.3.2008, in which 5 posts
of Medical Officers are also sanctioned.
12. I say that after the sanction accorded to posts in
Medical Department by Government Resolution dt.
13.1.1999 a proposal to sanction 332 posts for Medical
Department was sent to the government by letter dt.
31.8.2006.
In pursuance of the above proposal as suggested by
the then Principal Secretary UDD by letter dt. 16.6.2007 a
fresh proposal for sanction of total 90 posts for Medical
Department (including 38 Medical Officers) was sent to the
government on 14.8.2007 since there is no government
hospital in and around KDMC area. The detailed proposal
was submitted to the government by giving the reference
of the earlier General Body resolution no. 240 dt.
18/3/1997 and the sanctioned schedule as per government
resolution dated 9.12.99 and 7.1.99. The outcome of this
proposal is hot known, as the government has neither
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accorded sanction to this proposal nor it has rejected it.
The proposal dated 14.8.2007 for the RCH
programme and the other proposal dated 14.8.2007 for
the above 90 posts are hereby attached herewith and
marked as Annexure-VII (Colly.)
13. I say that vide Advertisement dated 21 st December,
2010, the Respondents called upon the candidates for
filling the 5 vacant specialist Medical Officer posts on
permanent basis (Physicians-2, Child Specialists-2 and
Radiologist-1 reserved in the categories V.J.(A)-1, N.T.(C)-
1, N.T.(D)-1, Sp.B.C-1 and OBC-(1). Hereto annexed and
marked as ANNEXURE-VIII is a copy of the said
Advertisement. Pursuant to the said advertisement Dr.
Yogesh Chowdhary (OBC) has been appointed as Child
Specialist. It is also sumitted that Advertisements for
filling the posts of Medical Officer and Specialists created
on temporary basis through Walk-in-Intervies, were issued
in the years 2011, 2012 and 2013 and eight, fourteen and
eight candidates were selected in those interviews
respectively.
14. I say that the Corporation made a request to the
Government, stating that the Corporation has under its
control 2 big Hospitals and 6 dispensaries and 13 Urban
Health Centers. Considering the increase in the population
and further due to the decision of the Government to
inlcude 27 villages in the Corporation limits, the existing
manpower in the Health Department is insufficient.
Therefore the Commissioner vide his letter dt. 27.3.2015
has requested for creation of 83 posts of Medical Officers.
The Government of Maharashtra after considering the said
proposal has sanctioned the same vide Government
Resolution dt. 4/6/2015. Out of said 83 posts, about 40
posts are of General Medical Officers and 6 posts are of
Casualty medical Officers.
15. I say that, therefore, as on 4.6.2015, total 115 posts
of Medical Officers on permanent basis were existing on
the KDMC establishment schedule. The information of the
same is illustrated in the chart given below:-
Government Remarks
Resolution
Sr. Name of the Number
date
No. post of post Vacant filled
creating the
post
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
Casualty
1 13.01.1999 6 1 5
Medical Officers
2 18.03.2008 Medical Officers 5 0 5
Casualty
6 6 0
Medical Officers
3 04.06.15
Medical Officers
40 17 23
(General)
Total 57 24 33
Total Medical Officers including Casualty Medical Officers.
4 13.01.1999 Physician 2 2 0
Gynecologists 2 0 2
Skin Specialists 1 0 1
Ear, Nose,
Throat 2 0 2
Specialists
Radiologists 2 2 0
Anesthetists 2 0 2
General
2 1 1
Surgeon
Pediatrician 2 0 2
Pathologist 2 0 2
Opthalmic
1 0 1
Specialists
Orthopedic
2 0 2
Specialists
Dentist 1 0 1
Total 21 5 16
5 04/06/15 Gynecologists 10 10 0
Pediatrician 8 7 1
Anaesthesiolo-
6 4 2
gist
Skin Specialist 1 0 1
Ophthalmic 1 0 1
Dentist 1 1 0
Psychiatrist 2 2 0
Physician 2 2 0
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
Surgeon 2 2 0
Pathologist 2 2 0
Post-Mortem 2 2 0
Total 37 32 5
Total Specialist Medical Officers = 58
Grand Total (Medical officers, Casualty Medical Officers
and Specialists = 115
16. I say that there are 54 posts created for appointing
medical officers/specialists on temporary/contract basis as
per Standing Committee Resolution as mentioned in para 9
above.
Temporary Posts created by Standing Committee
Resolution u/s 53(3) of MMC Act
Standing Remarks
Committee
Sr. Name of the Number
Resolution No.
No. post of posts Vacant filled
and date
creating the post
Casualty
1 71/28.8.2003 4 4 0
Medical Officer
Medical
2 117/19.11.2003 39 23 16
Officers
Medical+Casualty Medical
43 27 16
Officers
3 71/28.8.2003 Gynecologists 4 2 2
Pediatrician 2 2 0
Anaesthesiol-
3 3 0
ogist
Physician 2 1 1
Dentist 0 0 1
Ophthalmic 0 0 1
Total
11 8 5
Specialist
Grand total of Temporary posts (Medical Officers, Casualty
Medical Officers and Specialist) = 54
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
17. The present position of the Petitioners who are/were
working in KDMC as Medical/Specialist Officer is attached
herewith and marked as Annexure-IX.
Here, it is pertinent to note that, as per the
Government sanctioned recruitment rules vide GR dated
16.12.2010, the basic criteria for selection in the
Corporation as Medical Officer, is "to possess a registration
of Maharashtra Medical Council". As can be seen from the
above mentioned statement in Annexure-IX, the 9
Petitioners in Writ Petition No. 12626/2015 and
Petitioners in Writ Petition No. 12794/2015 who are
having B.A.M.S. As their educational qualification, do not
qualify for permanent selection in the Corporation, as a
B.A.M.S. Degree Holder cannot possess the said
registration. Hence, these petitioners cannot claim for the
selection on permanent post of Medical Officer in the
Corporation.
18. I say that as per the above mentioned seniority list dt.
1.1.2016, there were about 23 Medical Officers working on
the establishment of the Corporation and out of which
there are 15 General Medical Officers (including 1
Casualty Medical Officer) and the remaining 8 are
Specialists (Anesthetists-2, Gyenic-2, Pathologist-1,
Dentist-1 & Pediatrician-1 and General Surgeon-1). Their
appointment ranges from 1985 till 2011. Hereto annexed
and marked as ANNEXURE-X is a copy of the said
seniority list as on 1.1.2016. Further, as a result of
recruitments made after 1.1.2016, the total number of
permanent Medical Officers working as on today is 54.
These include 32 General Medical Officers (27 General
Medical Officers+5 Casualty Medical Officers) and 22
Specialists (Ortho-3), Anesthetists-4, Pathology-2, Gyenic-
2, Surgeon-1, Dentist-1, Child Specialists-3, Optho-2, Skin-
2 & ENT-2).
19. Here, it is also stated that the Section 53(3) of the
Maharashtra Municipal Corporation Act stipulates that:-
"Save as otherwise provided in this Act, the
power of appointing Municipal Officers and servants
whether permanent or temporary, vests in the
Commissioner. Provided that, such power in respect
of permanent appointments shall be subject to the
statement for the time being in force prepared and
sanctioned.
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
Under Section 51 Provided further that, no
temporary appointment shall be made by the
Commissioner for any period exceeding six months
and no such appointment (carrying a salary
equivalent to or higher in rank than the post of Clerk)
shall be renewed by the Commissioner on the expiry
of the said period of six months without the previous
sanction of the Standing Committee."
Hence, as per this provision, the then Commissioners,
by giving regular advertisement in the newspaper and
prescribing the requisite qualification for the posts from
time to time, have filled in the 54 posts of Medical Officers
on temporary/contract basis, sanctioned by the Standing
Committee vide Resolutions dated 28.8.2003 and
19.11.2003 as per the provisions of Section 53(3) of MMC
Act, 1949. As per the provision in section 53(1) of MMC
Act, 1949, a Resolution of General Body No. 181 dated
24.4.2006, these Medical Officers after giving a break of
one day were given extension of 6 months from time to
time till the State Government has accorded sanction to
posts on permanent basis by G. R. Dt. 4.6.2015. Out of
these 54 temporary posts of Medical Officers and
Specialists, 21 Medical Officers and Specialists are working
with the Corporation at present. Therefore, the total
number of Medical Officers (working on permanent as well
as temporary) working at present in the Corporation is 75.
I crave leave to refer to and rely upon the available letter
of appointments and the service book registers as and
when necessary.
20. I say that as stated herein above, it is clear that, in the
year 2007 three Medical Officers were regularised. Rest of
the Medical Officers were appointed by issuing
advertisements for posts on permanent basis in the year
2010, save and except the petitioners who were appointed
on the temporary posts created by the Standing
Committee, no other recruitments were made either by
way of regularisation or by way of advertisement on
permanent basis for the Medical officers. The total
vacancies (Permanent and Temporary) in the Health
Department were also brought to the notice in the above
paragraphs. The calculation of posts in the proposal
submitted in the 2015 to the Government has been made
on the basis of the posts sanctioned in the year 1999 and
2008 (posts for RCH-II), ignoring the earlier posts that
were originally existed and created between 1983-1993.
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
21. I say that, so far as the petitioners, they were made
clear that their appointments are on temporary basis for a
period of six months on contractual basis on monthly
honorarium as revised from time to time and there is no
chance of Regularization. Since the Respondents are
making a new recruitment for permanent posts, the
Petitioners cannot seek regularization as it would amount
to back door entry which is not a mode of recruitment in
the Recruitment Rules. Hereto annexed and marked as
ANNEXURE-XI is a copy of the Recruitment Rules duly
sanctioned by the Govt. Hence the petitioners are not
entitled to be regularized and the present petition is liable
to be dismissed with Costs."
26. On the above material we have heard the learned senior
counsel Mr. A. V. Anturkar appearing for the petitioners in Writ
Petition Nos. 12626 of 2015 and 12794 of 2015 and Mr.N.V.
Bandiwadekar appearing for the petitioners in Writ Petition
No.12299 of 2015. As far as Mr. Anturkar's submissions are
concerned, he firstly invited our attention to the Maharashtra
Medical Practitioners Act, 1961. This is an Act to regulate the
qualifications and to provide for the registration of practitioners
of the Ayurvedic (Siddha) and Unani Systems of Medicine, with a
view to encourage the study and spread of such systems and to
make certain provisions relating to medical practitioners
generally in the State of Maharashtra and for that purpose to
consolidate and amend the law relating thereto. Mr. Anturkar
would submit that several qualifications have been set out in the
Schedule, which would entitle a person to registration. Thus, he
would submit that these are not systems of medicines, which
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
altogether rule out appointment of such doctors to man the post
in District Hospitals/Health Centers. The post is of
Medical/Health Officer. Mr. Anturkar would submit that one can
understand a distinction being made between a Medical Officer
and a Specialist. If a specialisation that would specifically refer to
Allopathic System of Medicine is set out in the subject
advertisement, then, the insistence on the requirement of
registration under the Maharashtra Medical Council Act, 1965
and the Maharashtra Medical Council Rules, 1967 can be
understood. However, when a candidate like the petitioners is
qualified and can apply, then, merely because he holds a
registration not under the Maharashtra Medical Council Act,
1965, but under the Maharashtra Medical Practitioners Act,
1961 and the rules made thereunder, namely, the Maharashtra
Council of Indian Medicine Rules, 1961, he cannot be said to be
ineligible or disqualified. Mr. Anturkar would submit that in the
subject advertisement, as far as the requirement for filling the
posts of Lady Medical Officer is concerned, BAMS candidates are
not ineligible. In fact, the advertisement itself makes a reference
to the BAMS degree. A candidate possessing the same would be
entitled to a lumpsum salary of Rs.20,000/- per month. As far as
the educational qualifications are concerned [for the post of Lady
Medical Officer (at Urban Health Centers)], a candidate must
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
possess the BAMS degree from a recognised university. The
candidate must have experience of three years of work in
Government/semi Government/private hospital. The third
requirement of registration under the Maharashtra Medical
Council Act, 1965 and rules framed thereunder cannot be said to
be consistent with the educational qualifications prescribed by
Column 6(a) and (b). Further, the Condition No. 7 states that if
BAMS candidates possess degree recognised by the Maharashtra
Council of Indian Medicine, they would be appointed only at the
Urban Health Centers. In these circumstances, from a reading of
the advertisement itself and which advertisement was dated 19 th
July, 2012, Mr. Anturkar would submit that it would be apparent
that the KDMC does not rule out applications by such candidates.
Even as far as the subject advertisement is concerned, namely,
dated 19th November, 2015, it sets out that there are 90 vacant
posts. Out of the 90 vacant posts, one post is of General Health
Officer. There also a candidate possessing MBBS, BAMS
(Ayurvedic), BHMS (Homeopathy) or any Government
recognised degree on par, with experience of three years can
apply. The third condition that there should be a registration
obtained from the Maharashtra Medical Council thus does not
accord with the candidate holding a BAMS degree. That must be
held to be applicable to only those candidates who are holding
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
MBBS degree. Mr.Anturkar's argument is that something which
the law itself does not envisage, namely, the Maharashtra
Medical Council Act, 1965, that cannot be insisted, as far as the
candidates possessing BAMS degree. Mr. Anrutkar would submit
that Ayurved is a faculty of medicine and once it has been
clarified by even the Minister for Health in the Parliament that
specialised and experienced competent teachers, physicians,
surgeons, gynecologists etc. are encouraged and hereafter would
be promoted, then, it is incorrect to argue that BAMS doctors do
not qualify for surgical post or they are not entitled to perform
any surgery. Mr. Anturkar submits that the premise on which
the Municipal Corporation has proceeded is entirely incorrect.
27. Mr. Anturkar's arguments are adopted by Mr. Desai
appearing in the other petition. As far as Mr. Bandiwadekar is
concerned, it is urged by him that the petitioners in this petition
have put in meritorious service. The petitioners were appointed
after advertisements were published in local newspapers inviting
applications from qualified candidates. After several applications
were received, proper interviews were held that the petitioners
were appointed as Medical Officers. The petitioners have been
appointed on various dates after being selected in the selection
process undertaken by the respondents. The petitioners have
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
been so appointed from the year 2003 onwards on various dates
as mentioned in the chart annexed to the petition. These
petitioners are continuously working in the said post. Though the
appointment was on temporary basis, a notional break was given
and again the appointment was continued. It is the first
respondent Municipal Corporation which requested the State to
sanction about 90 posts and as per its requirement. These
requests were made though the first respondent was aware that
duly qualified candidates like the petitioners were serving the
Municipal Corporation from 2003. Be that as it may, the second
respondent issued a Government Resolution granting approval to
create 87 posts of Medical Officers in various faculties of
respondent no. 1 Municipal Corporation. It appears that the first
respondent decided to fill up the posts and called for a report from
the in-charge Health Officer. Mr. Bandiwadekar submits that
from the 115 sanctioned posts of Medical Officers, 23 posts are
filled in and 92 are vacant. It was further stated that the General
Body of the Municipal Corporation approved 40 posts of
temporary Medical Officers and at present all temporary Medical
Officers are working. Considering their period of service in the
Corporation, educational qualifications and experience, they
should be permanently absorbed in the services. The
recommendation was that only after these temporary officials are
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
absorbed then the remaining posts be advertised and filled up by
direct recruitment.
28. Mr. Bandiwadekar submits that instead of following this
rule, the first respondent issued advertisement in newspapers
inviting applications for filling up vacant posts of Medical
Officers, including the posts in which the petitioners are
appointed. It is in these circumstances that there is grave and
serious injustice to these Medical Officers.
29. Mr. Bandiwadekar then submitted and in the alternative
that despite the exercise carried out, the Municipal Corporation,
now and pursuant to the recent advertisement, was unable to fill
in the posts. Some posts are still vacant.
30. Mr. A. S. Rao appearing for the Municipal Corporation
sought to justify the Municipal Corporation's stand, but could not
dispute the factual position that several candidates applied,
including those in service, still, all the posts could not be filled in.
It is not disputed that some posts are lying vacant. Mr.Rao could
not dispute the fact that the advertisement carried an insertion
and to the effect that those possessing BAMS degree can also
apply.
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
31. It is in the above factual circumstances and backdrop that
we indicated to the first respondent Municipal Corporation that
when duly qualified candidates are available and they can be
considered for appointment even now, instead of keeping the
posts vacant. The Municipal Corporation would submit that it
would abide by the orders and directions of this court, but on its
own it cannot take any decision.
32. After hearing both sides, we find that concededly all the
posts, pursuant to the advertisement inserted in the newspapers,
could not be filled up. We have also found that for the post of
Lady Medical Officer and Medical Officer, the BAMS candidates
could have applied and could have been duly considered. In these
circumstances, not considering them for appointment only
because they do not possess a registration under the
Maharashtra Medical Council Act, 1965 would be unjust and
improper. It would be unfair and contravening the mandate of
Articles 14 and 16(1) of the Constitution of India. We are not, for
a minute, suggesting that those who are not qualified to man
specialised posts should be appointed. We are only concerned
here with the post of the General Medical/Health Officer. If the
advertisement itself postulates and permits candidates from
BAMS faculty to apply and they can be considered for
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
appointment, then, the requirement that they should possess a
registration under the Maharashtra Medical Council Act, 1965
does not apply at least to them. They can be appointed on the
post at the Urban Health Centers. Some of the petitioners herein
have indeed applied pursuant to the fresh advertisement. The
petitioners represented by Mr. Anturkar and Mr. Desai have gone
as far as stating that even if now they are appointed and pursuant
to the advertisement issued in 2015 and the process initiated in
pursuance thereof, they would not claim any benefit of the past
services, save and except for the purposes of continuity and other
permanency benefits. Meaning thereby, they are ready and
willing to forgo their entitlement though they were working and
serving the Municipal Corporation from 2012 albeit on temporary
basis. If for the purposes of seniority, continuity in service and
pension or terminal benefits these services are reckoned, they
would have no objection in accepting the appointment in terms of
the current recruitment process.
33. Mr. Bandiwadekar appearing for the petitioners in Writ
Petition No. 12299 of 2015 also obtained instructions and
submitted that not all the petitioners in this petition have
indicated their readiness and willingness to serve the Municipal
Corporation. From the chart at page 67 of the paper book,
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
Mr.Bandiwadekar submitted that there are Medical Offices and
who are holding the MBBS degree. The candidate at serial
number 3 from the chart is interested and can be considered for
the appointment. Some of the petitioners are already appointed.
Therefore, the others may be considered and their appointments
be regularised. These appointments can be regularised by
reckoning them against the permanent vacancies.
34. It is in the above facts and circumstances peculiar to this
case and without this order being treated as a precedent, we
direct the first respondent in these petitions to consider the
petitioners in the first two petitions, namely, Writ Petition Nos.
12626 of 2015 and 12794 of 2015 in terms of the existing
vacancies and on permanent posts, but subject to their concession
as recorded above. As far as the petitioners in Writ Petition
No.12299 of 2015 are concerned, as per the position recorded
above, these petitioners be considered for granting permanency
benefits/regularisation/absorption in the Municipal Corporation
services against the existing vacancies.
35. In issuing the above directions, we proceeded in terms of an
order passed on 16th March, 2017 in Writ Petition Nos. 1007 and
1006 of 2013. There, the petitioners were working as Junior
Medical Officers, Extension Officers (Health), Technical Services,
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
Class-III. They joined the services of the Kolhapur Zilla Parishad
and Sangli Zilla Parishad. They had argued that they have served
the Government and the Zilla Parishad successfully and at the fag
end of their career and upon retirement, the pensionary and
other benefits so also the increased pay scales were denied on the
footing that they were not qualified to be appointed at all. Their
qualifications were not in tune with the Maharashtra Medical
Practitioners Act, 1961 and the Indian Medicine Central Council
Act, 1970. Noting these arguments, we found that it is not as if
the educational qualification possessed by these petitioners is not
the same as mentioned and required for Junior Medical
Officers/Extension Officers (Health) under District Technical
Services and mentioned in para A and A-1 to the Schedule to the
Act of 1970. If they are working in the Health Department of the
Zilla Parishad, Kolhapur, then, the said Zilla Parishad and the
Government, through its Health Department was directed to
clarify the status of the Petitioners, the position of their
qualification and registration.
36. After granting time in that behalf, the State agreed with the
contentions of the petitioners therein. That is how on 16 th March,
2017, the following order was passed:-
"1 By these writ petitions under Article 226 of the
Constitution of India, the petitioners seek a writ of
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
mandamus or any other writ, order or direction directing
the respondents to pay to them salary at the scale, more
particularly mentioned in prayer clause (b) of this writ
petition. A further direction to the respondents to make
payment of consequential arrears and interest, release the
non-practising allowance and to refund the amounts in
terms of the averments in paragraphs 13 and 14 of the
Writ Petition No.1007 of 2013.
2 The petitioners before us were working as Junior
Medical Officers, Extension Officers (Health), Technical
Services, Class-III. Their respective qualifications, dates of
joining the service of the Kolhapur Zilla Parishad-second
respondent to the writ petition are set out. Some of the
petitioners joined the services of the Sangli Zilla Parishad.
The respective dates of retirements are also mentioned.
The grievance raised in this writ petition was noted in
great details by us while noting the stand of the State. On
10th February, 2017, this Court passed the following order :
"Mr. Deshmukh appearing for the Petitioners
has raised three contentions in this Petition.
2 The first contention is that the Petitioners
having served the Government and the Zilla
Parishad at the fag end of their career and upon
retirement the pensionary and other benefits so also
the increased pay scales are denied on the footing
that they were not qualified to be appointed at all.
The reliance placed on the affidavit in reply at page
125 on paragraph 6, is inaccurate in as much as in
the Indian Medicine Central Council Act, 1970, there
is a Schedule and referable to Section 14. Section 14
of that Act and this Schedule together sets out the
recognized medical qualification in Indian Medicine
granted by Universities, Board or other medical
institutions In India. The institution at Item No.12
All India Aayurved Vidyaphith, Delhi is identical and
same to the one mentioned in paragraph 6 page 125
of the affidavit in reply in Writ Petition No.1007 of
2013. Similarly, the institution and degree that is
referred in Item 59 is also on par with this
requirement and as stipulated.
3 The next argument of Mr. Deshmukh is that if
the Aayurved Vidyaphith which is referred to in
paragraph 6 is not a recognized medical
qualification in Indian Medicine and granted by the
Universities, Boards or other medical institutions
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
set out in the Second Schedule, then, on the strength
of that no registration could have been obtained
under the Maharashtra Medical Practitioners Act,
1961. Inviting our attention to the provisions of that
Act and particularly the Part-A, A-1 and Part-E to
the Schedule to that Act, it is submitted that the
degree obtained by the Petitioner from the Aayurved
Vidyaphith is recognized qualification for
registration under the Maharashtra Act.
4 The third argument is that if non practicing
allowance is made admissible from 1st April, 1981
and to all such practitioners who are in the service
of the Government, Zilla Parishads and rather in
public Health Service, then, exclusion of the
Petitioners therefrom and the entitlement thereto
only on a strength of the letter or a clarification copy
of which is at Exhibit-3 page 139 to the affidavit-in-
reply is impermissible. No specific order or direction
is required prohibiting private practice by such
medical or health official. It is implicit in their
appointment that they must be available at the
primary / rural health centre or any public / civil
hospital round the clock. They need not be
specifically directed to stop a private practice or
undertake it. Therefore, irrespective of such
communication, as is warranted by page 139, the
non practicing allowance is admissible and ought to
be released.
5 For all the three contentions to be met, it is
stated by Ms.Vhatkar that she would obtain
necessary instructions and verify the position as
brought to the notice of this Court by Mr. Deshmukh
by thoroughly studying and researching on the
Schedules to both the Acts. She would also take
instructions as to whether in Kolhapur Zilla
Parishad was there any specific order or direction
necessary and to be issued by the Rural
Development Department of Government of
Maharashtra directing the Doctors and Health
Officers in Zilla Parishad Health Service not to
undertake or stop private practice. For Ms. Vhatkar
to obtain the above instructions and get ready to
argue this case, we list this matter as part-heard on
22nd February, 2017.'
3 On the three contentions noted in great details in this
order, the State was directed to issue a clarification. On
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Judgment-WP.12626.2015+.doc
22nd February, 2017, and on 2nd March, 2017, we granted
time to Ms. Bhende appearing for the State in both the
petitions.
4 We inquired from her specifically as to why the
petitioners were disentitled and she would rely upon an
affidavit-in-reply which has been filed on behalf of the
State in both matters. The affidavit is filed by the
Administrative Officer, Grade-B, Health Department, Zilla
Parishad, Kolhapur. In that affidavit in paragraphs 6 and
8, the following statements are made:
"6 I say that educational qualification
possessed by the petitioners are not the same as
mentioned and required for Junior Medical
Officers / Extension Officers (Health) under
District Technical Services and mentioned in para
A and A-1 to the schedule to the said Act. Also
certificates issued by Nikhil Bharatvesiy Ayurved
Vidyaphith, New Delhi to the Petitioners are not
recognized by any University.
.........
8 As regards petitioners' claim for payment of
non practicing allowance with effect from
1.4.1981, I say that the State Government
addressed a letter dated 4.1.2008 to the Chief
Executive Officer, Zilla Parishad, Kolhapur and
mentioned therein that Junior Medical Officers /
Extension Officers (Health) under District
Technical Services falling in category III are not
entitled for non practicing allowance for the
reasons mentioned in the said report. The said
letter is in force till date. Hereto annexed and
marked Exhibit-3 is the letter dated 4.1.2008."
5 It is precisely because of this understanding that we
called upon the learned Assistant Government Pleader to
clarify as to what is the understanding of the Public Health
Department of the Government of Maharashtra with
respect to the qualifications and registration of the
petitioners. It is now claimed before us that the Registrar
of the Maharashtra Council of Indian Medicine who was
approached by the state through this Department on 15 th
March, 2017, has clarified that each of the petitioners are
holding recognized qualifications inasmuch as not only the
qualifications, but the institutions from where the
petitioners educated themselves and underwent training,
are duly recognized and in terms of the Indian Medicine
Central Council Act, 1970. The registration is obtained
under the Maharashtra Medical Practitioners Act, 1961,
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Judgment-WP.12626.2015+.doc
which can also register the practitioners in the branch of
Ayurved. The communication dated 15th March, 2017,
from the Registrar is shown to us. We take a copy of the
same on record in both the petitions and mark them as "X"
and "X-1" for identification.
6 Overleaf, the main communication, the Registrar of
Indian Medicine reproduces the extract of the second
Schedule of the Indian Medicine Central Council Act, 1970.
At Sr. No.12, the Institution details, including the Nikhil
Bharatvarshiya Ayurved Vidyapeeth, New Delhi. It is in
these circumstances that we inquired from Ms. Bhende as
to what is now the position and stand of the State. On
taking instructions from the official of the Department of
Public Health, Government of Maharashtra, present in
Court, Ms. Bhende fairly states that the contents of
paragraphs 6 and 8 of the affidavit-in-reply reproduced
above and the entire affidavit be ignored. The stand of the
Government is that the petitioners are holding recognized
degrees / qualifications and from institutions which are
equally recognized. Once the State has taken this fair
stand before us, then, each of the writ petitions must
succeed. They, accordingly, succeed.
7 All consequences in law will follow inasmuch as the
pay scales of the period prayed would be admissible and if
any arrears have to be released, they must be released,
including any other benefits, such as terminal, retiral
benefits, pension etc. The monetary entitlement in terms
of the above shall be made as expeditiously as possible and
within a period of three months from the date of receipt of
a copy of this order. We direct the Department of Public
Health to instruct and inform all other Departments,
including the Department of Finance and Directorate of
Pay & Accounts so that the petitioners emoluments in
terms of our directions would be released and within the
time stipulated.
8 We have passed this order after informing Ms. Bhende
and making aware the official present in Court that the
position as emerging from the stand of the State before us
would now be common to all Zilla Parishads and
particularly in the services which have been referred by us
in great details. If not these services in other Zilla
Parishads such of the doctors and practitioners and on par
with the petitioners have been appointed, then, needless to
clarify that the State's position may benefit them
depending upon the other facts and circumstances.
9 Both the petitions are, therefore, allowed. Rule is
made absolute in both the petitions. However, there shall
be no order as to costs."
J.V.Salunke,PA
Judgment-WP.12626.2015+.doc
37. Thus, it is not as if these petitioners are altogether ruled out
for consideration and appointment in the Health Services. If they
can be considered and as held above, then, we do not see why the
KDMC should be allowed to deny them appointments.
38. Consistent with these directions in the other matters and by
the above clarifications and directions, we dispose of these writ
petitions. There would be no order as to costs.
39. We are informed that about 24 posts are still vacant and
after the November, 2015 advertisement and the recruitment
process in furtherance thereof. The case of the petitioners for
appointment against these vacancies, therefore, be considered
and if they are otherwise eligible, the appointment orders be
issued. This is subject to the statements made by Mr. Desai and
Mr. Anturkar on behalf of the petitioners in the respective
petitions. Equally, Mr.Bandiwadekar has also stated before us
that the petitioners who are represented by him and who can be
considered for appointment as above will forego their claim for
back wages/past salaries. They would be granted continuity in
service and notional benefit in service, if appointed, and this
process to be completed within three months.
(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
