Bombay High Court
Dr. Amol S/O Ramas Karhe And Others vs The Commissioner (Health ... on 18 August, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
J.WP.1378.2020.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1378 OF 2020
1. Dr. Amol S/o Ramdas Karhe
Aged about 35 years, Occupation - Service,
R/o. Nimgaon, Tah. Nandura,
District Buldhana
2. Dr. Swati D/o Dinkar Wagh,
Aged about 26 years, Occupation - Service,
R/o. Pundlik Nagar, Ward No.16,
Chikhli, Tah. Chikhli,
District Buldhana
3. Dr. Avinash S/o Ramkisan Pise
Aged about 26 years, Occupation - Service,
R/o. State Bank Road, Mehkar,
Tah. Mehkar, District Buldhana
4. Dr. Atul S/o Anilrao Sirsat,
Aged about 26 years, Occupation - Service,
R/o. Mahadev Wetal, Ward No.13, Mehkar,
Tah. Mehkar, District Buldhana
...PETITIONERS
VERSUS
1. The Commissioner (Health Services) and
Mission Director (N.H.M.)
National Health Mission,
third Floor, Arogya Bhawan,
St. George Hospital Compound,
P.D. Mello Road,
Signed By:DIVYA SONU BALDWA
Personal Assistant
Mumbai
Signing Date:18.08.2022 15:07
J.WP.1378.2020.odt 2
2. The Deputy Director of Health Services,
near Chaudhari Vidyalaya,
Women Hospital Premises,
Durga Chowk, Akola,
Tq. and Dist. Akola
3. The Zilla Parishad, Buldhana,
through its Chief Executive Officer,
4. The District Health Officer,
Health Department,
Zilla Parishad Buldhana
...RESPONDENTS
_______________________________________________________
Shri N.B. Kalwaghe, Advocate for the petitioners.
Mrs. S.S. Jachak, A.G.P. for respondent Nos.1 and 2/State.
Ms Vaishali Khadekar, Advocate for respondent Nos.3 & 4.
_______________________________________________________
CORAM : A.S. CHANDURKAR AND
URMILA JOSHI-PHALKE, JJ.
RESERVED ON : AUGUST 10, 2022.
PRONOUNCED ON : AUGUST 18, 2022.
JUDGMENT (Per Urmila Joshi-Phalke, J.)
Heard learned counsel for the parties.
2. RULE. Rule made returnable forthwith.
3. The petitioners are medical professionals possessing a
Signed By:DIVYA SONU BALDWA
degree of B.A.M.S. and duly registered with the Maharashtra Medical
Personal Assistant
Signing Date:18.08.2022 15:07
Council. In August, 2018, respondent No.3-Zilla Parishad, Amravati
issued an advertisement in the light of the directions issued by
respondent No.1-Commissioner (Health Services) and Mission Director
(N.H.M.), National Health Mission and respondent No.2 - The Deputy
Director of Health Services, Akola for the post of Community Health
Provider for the area Chikhaldara and Dharni in Amravati District under
the National Health Project Scheme on contract basis. As per the
eligibility criteria, petitioner Nos.1 to 3 who were qualified as B.A.M.S.
were found eligible and succeeded in the entrance examination whereas
petitioner No.4 applied in response to the advertisement issued by the
Officer of District Health Office, District Palghar and was found eligible
and succeeded in the entrance examination. As per the conditions
mentioned in the advertisement candidates who were selected had to
undergo Certificate Program for six months. The appointment being on
contract basis was for 11 months. The advertisement further imposed
the condition that if local candidates are available from the concerned
taluka they would be given additional 20 marks and would be given
preference. After entrance examination and after completion of
Certificate Course of six months, petitioners appeared for exit exam and
they were selected as Mid-Level Health Provider. Accordingly, petitioner
No.1-Dr. Amol s/o Ramdas Karhe was selected for training by Order
dated 05/10/2018. He successfully completed six months training and
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
appointed as Community Health Officer on contract basis by an order
dated 07/03/2019. He was working at Primary Health Centre,
Kalamkhar, Sub-centre Diya, Taluka Dharni, District Amravati. Petitioner
No.2-Dr. Swati s/o Dinkar Wagh and petitioner No.3-Dr. Avinash s/o
Ramkisan Pise were selected for the training by Order dated
03/10/2018. After completion of six months training they appointed on
the post of Community Health Officer on contract basis by Order dated
07/03/2019. Petitioner No.2 joined at Primary Health Centre,
Kalamkhar, Sub-centre Dhuni, Taluka Dharni, District Amravati whereas
petitioner No.3 joined at Primary Health Centre, Kalamkher, Sub-centre
Chichghat Taluka Dharni, District Amravati. All the three petitioners
were appointed for 11 months. Petitioner No.4-Dr. Atul S/o Anilrao
Sirsat applied in response to Zilla Parishad, Palghar which has issued an
advertisement in the year 2018 and thereby invited the applications of
the eligible candidates for filling the post of Community Health Officer
on contractual basis. As per the said advertisement, the eligible
candidates were required to undergo six months training and thereafter
to pass exit exam. Accordingly, petitioner No.4 applied for the said post
and he was selected for the training by an order dated 05/10/2018 and
he had successfully completed six months training. Thereafter he was
appointed on the post of Community Health Officer on contract basis by
an order dated 08/03/2019 and was working at Primary Health Centre,
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
Aina, Taluka Dahanu, District Palghar. All the four petitioners were
initially appointed for 11 months. As per the service conditions,
petitioners had to issue Bond. They had to complete the service of three
years in the said tribal area otherwise they were required to refund the
amount of Rs.1,03,000/-.
4. As per the contention of the petitioners from July, 2019 they
were rendering services as Community Health Officer in tribal area.
There were no facilities of residence and transportation but they have
rendered the services with full devotion. On 19/06/2019, respondent
No.2 issued an advertisement for the post of Community Health Officer
for Buldhana as well as for other districts. As per the said
advertisement, near about 236 posts were declared. As per the said
advertisement, the selection of the candidates would be through
entrance examination conducted by National Health Mission of
Maharashtra. The results would be declared by publishing district wise
list on the website. The candidates fulfilling the eligibility criteria and
qualifying the entrance examination would be allotted Program Study
Centre at designated hospital in public health department. The
candidates after completion of Certificate Program were required to
appear at the exit exam conducted by the Maharashtra University of
Health Sciences, Nashik. The successful candidates would be appointed
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
as Community Health Officer initially for 11 months. It was further
made clear in the advertisement that the successful candidates in the exit
exam would be appointed as Community Health Officer as per the
vacancies and as per the requirement of program through counselling at
regional level based on merits of exit exam. The petitioners have
applied for the post of the Community Health Officer. Their applications
were duly accepted by respondent No.2 and petitioners were also
permitted to appear for entrance examination conducted by respondent
No.2. The petitioners were declared successful candidates in the
entrance examination held by respondent No.2. As per the terms and
conditions stipulated in the advertisement, respondent Nos.3 and 4 have
issued the letter of counselling to the petitioners. As per the directions
of respondent Nos.4 and 5, petitioners had attended the counselling
process to the respective office. However, when the petitioners had
visited the office of respondent Nos.3 and 4, they came across one notice
which was displayed stating that the candidates who are presently
working as a Community Health Officer are not permitted to participate
in counselling process.
5. On inquiry by the petitioners in the office of respondent
Nos.3 and 4, they came to know that Additional Director of National
Health Mission, Mumbai issued communication to respondent No.2 that
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
the candidates who are presently working as Community Health Officer
are not entitled to participate in the recruitment exercise of Community
Health Officer for the year 2019 and 2020. The petitioners who are
qualified and eligible for the post of Community Health Officer were
refused to participate in the recruitment exercise. They immediately
approached to the office of respondent No.2 and made their grievances
in writing. They made grievances that they were not communicated on
what basis they were refused to participate in the middle of recruitment
exercise as there were no rules and regulations or circulars which would
restrain them from participating in the recruitment exercise merely
because they have already in the employment. There was no such
condition imposed in the advertisement also.
6. It is the contention of the petitioners that the action of
respondent Nos.1 to 4 refusing them an opportunity to appear them in
the further recruitment process only on the ground that they are already
in service which is not stipulated in the advertisement is arbitrary, illegal
and liable to be set aside. The representations filed by the petitioners
were rejected subsequently on 03/08/2019.
7. The petitioners have challenged the said condition which
was issued subsequently by the respondents in the present writ petition.
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
It is contended by the petitioners that there was no clause in the
advertisement which debars or disqualifies the candidate in the selection
process who is already working on the post of Community Health
Officer. Since the petitioners belong to Buldhana district and, therefore,
they applied for the post of Community Health Officer. On perusal of the
aforesaid advertisement through online process for Buldhana district the
petitioners did not suppress the fact that they are working on the post of
Community Health Officer. The petitioners are qualified and eligible to
be appointed on the post of Community Health Officer. The respondents
conducted written entrance examination. The petitioners were qualified
in the said examination. The respondents published merit list wherein
petitioner No.1 was at serial No.5, petitioner No.2 was at serial No.86,
petitioner No.3 was at serial No.179 and petitioner No.4 was at serial
No.90. First time they came to know when they appeared for
counselling as per the advertisement that they would not be considered
for the post of Community Health Officer for the reason that they are
already working as a Community Health Officer in the Amravati District.
They made representations to respondent Nos.2 and 4 thereafter they
came across the communication dated 04/07/2019 issued by the
Additional Director of National Health Mission, Mumbai to respondent
No.2 and thereby informed that the candidates who are presently
working as Community Health Officer are not entitled to participate in
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
the recruitment process for the year 2019-2020. Subsequently, by the
communication dated 18/09/2019 in the meeting it was decided that if
an employee working under the National Health Mission applies for the
same post, his application shall be taken into consideration subject to
educational qualification required for the said post. Thus the
respondents have rectified the mistakes in the subsequent meeting and
made it clear that the candidates who are already working as a
Community Health Officer would be entitled for participation in the
fresh recruitment process undertaken for the said post. The petitioners
who had already successfully completed the training also qualified for
the exit exam, therefore, they are more qualified and eligible candidates
but opportunity was not given to them by the communication dated
04/07/2019 and opportunity was denied to them to participate in the
selection process to work in non-tribal area in the Buldhana district
wherein total 236 posts were advertised. It is the contention of the
petitioners that the condition stipulated in the communication dated
04/07/2019 is arbitrary, illegal and liable to be set aside.
8. Respondent Nos.1 and 4 opposed the petition by filing their
reply on the ground that the Committee is constituted under the
Chairmanship of Commissioner (Heath Services) and Mission Director,
National Health Mission, Mumbai on 27/07/2020 at Mumbai, wherein
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
the representation of the petitioners dated 26/02/2020 and the decision
taken in the meeting dated 03/08/2019 have been discussed and the
claim of the petitioners had been rejected on the basis of certain grounds
mentioned in the minutes of the meeting. It is further submitted that the
communication along with the minutes of the meeting dated
03/08/2019 was misconceived by the petitioners. The minutes of the
meeting dated 03/08/2019 clause 2 specifically shows that if an
employee working under the National Health Mission applies for the
same post, his application shall be taken into consideration subject to
educational qualification required for the said post. On the basis of
representation made by the union of National Health Mission employee,
Mahasangh dated 31/07/2019 a committee was constituted under the
Chairmanship of Additional Mission Director, National Urban Health
Mission, Mumbai. The Committee meeting was conducted on
03/08/2019 wherein the issues pertaining to the representation of the
union were discussed and accordingly the decision was taken. As per
said decision the employees who are working in the National Health
Mission, salary of such employee of same qualification working in
different programs were different. Also salary to some cadres was much
less considering the required education, qualification and experience,
therefore, it was resolved that if employees working under the National
Health Mission applies for the same post in upcoming new
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
advertisement because of salary difference, then their application shall
be taken into consideration subject to educational qualification required
for the said post. It was the aim and object of this clause to provide
opportunity of higher salary to the employee if they are selected by
competition. As far as petitioners are concerned there is no difference in
the salary of newly recruited and already working Community Health
Officers, therefore, said clause No.2 does not apply to the petitioners. It
is further the contention of the respondents that all the petitioners were
already working as a Community Health Officer, District Amravati and
Palghar and posted in the tribal areas. They were posted as per their
willingness by counselling. As they were already posted and there is no
salary difference and they were not considered freshly.
9. It is further the contention of the respondent that in the
training of Community Health Officer, the trainees are provided training
material, lectures, demonstration etc. for that purpose the Government
has to incur the expenditure per candidate is Rs.1,03,000/-. Once the
candidate has undergone the training and successfully passed the
examination conducted by the Maharashtra University of Health
Sciences, Nashik, 'he/she' is supposed to join the district which is
allotted to him/her accepting the application of the candidates who are
already trained and posted again incurring expenses for them is a
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
wastage of public money and human resources, therefore, the petitioners
are not entitled for any benefits. This writ petition is devoid of merits
and liable to be dismissed.
10. Heard Shri N.B. Kalwaghe, learned Counsel for the
petitioners. He submitted that the petitioners are possessing
qualification of B.A.M.S. and, therefore, they applied to the post of
Health Officer in response to the advertisement published by respondent
Nos.1 and 2 in August, 2018. They had undergone the entrance
examination, counselling and exit exam and thereafter they were
selected. The petitioners were duly selected by following due procedure
of law for the post of Community Health Provider. The petitioners were
well aware that their appointment is for limited period but as they were
facing unemployment since years together they decided to join the
services in tribal area. From July, 2019 they were rendering services as
Community Health Officer in tribal area of Amravati district. Admittedly
in tribal area, there were no facilities of residence and transportation,
however, the petitioners had rendered the services with full devotion. As
they got opportunity to work in a better condition as respondent No.2
issued an advertisement on 19/06/2019 for the post of Community
Health Officer for Buldhana and other districts. Total 236 posts were
declared to be filled in Buldhana, therefore, the petitioners had applied
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
for the said post. There was no condition mentioned in the said
advertisement that the candidates who are already in service as a
Community Health Officer are not entitled for applying in response to
the advertisement published on 19/06/2019. Therefore, they have
applied for the said post. In their applications, which were submitted by
them, they have mentioned that they are already in service. The
applications of the petitioners for the post of Community Health Officer
were duly accepted by the office of respondent No.2 and they were
permitted to appear for entrance examination conducted by respondent
No.2 by issuing them Admit Card. Accordingly, entrance examination
was conducted by respondent No.2 on 21/07/2019. The petitioners
were declared as a successful candidate in the result of Community
Health Officer entrance examination hold by respondent No.2. They
have also received the letters issued by respondent Nos.3 and 4 of
counselling. Accordingly, they visited the counselling process at the
office of respondent Nos.4 and 5. However, they came across the notice
which was displayed stating that the candidates who were presently
working as Community Health Officer are not permitted to participate in
counselling process. On inquiry they came to know that Additional
Director of National Health Mission, Mumbai informed respondent No.2
that the candidates who are presently working as Community Health
Officer are not entitled to participate in the recruitment exercise of
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
Community Health Officer for the year 2019 and 2020. He submitted
that the petitioners who are eligible for the post of Community Health
Officer were refused to participate in the recruitment exercise. The
opportunity of appearing in further process of recruitment was denied to
the petitioners. In fact, there was no condition mentioned in the
advertisement that the candidates who are already working as a
Community Health Officers are not entitled to apply for the said post.
The communication was issued by the respondents against the said
advertisement which is arbitrary and illegal. Opportunity to work in a
better condition is denied to the petitioners and, therefore, the said
action deserves to be quashed and set aside.
11. On the other hand Mrs. Jachak, learned Assistant
Government Pleader for respondent Nos.1 and 2 submitted that as per
the terms and conditions of the appointment of the petitioners they had
to serve minimum three years services in the given district, if not served
minimum for three years then the amount spend of Rs.1,03,000/- for the
training of the candidates would be recovered from them. In view of the
above condition, the petitioners are bound to provide their services to
the department. She further submitted that as per the National Health
Mission, there was no salary difference regarding the post wherein the
petitioners are working and the post which are advertised, therefore, the
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
application of the petitioners are not taken into consideration. The
petitioners have been posted as per their willingness by counselling.
There was no issue of rationalisation of their salary, therefore, they were
not considered as per the decision during the meeting dated
03/08/2019. It is submitted that a Committee was constituted under
the Chairmanship of Commissioner (Health Services) and Mission
Director, National Health Mission, Mumbai on 27/07/2020 wherein the
decision is taken in the meeting dated 03/08/2019 about the candidates
who are already in service as Health Officer would not be considered for
the post which was advertised in the subsequent advertisement in the
year 2019. Said decision is taken in view of the fact that during the
training of Community Health Officer for six months, the trainees are
provided training material, lectures, demonstration, clinical cases etc.
and the expenditure of such training per candidate is Rs.1,03,000/-,
therefore, the communication of respondent No.1 is legal and proper
one.
12. Heard both the sides and perused the record on which the
petitioners as well as the respondents are relied upon. The issue
involved in this petition is already dealt by this Court in Writ Petition
No.6765/2019 (Dr. Punam Gangadharrao Ingle and ors. Vs.
Commissioner (Health Services) and Mission Director (N.H.M.), Mumbai
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
and ors.) with Writ Petition No.2784/2021 (Dr. Bhushan Rajendra
Randale and anr. Vs. Commissioner (Health Services) and Mission
Director (N.H.M.), Mumbai and ors.) decided on 29/07/2022 by
allowing those petitions. Admittedly, all the petitioners had resigned
from their post. Admittedly, in the year 2018, respondent Nos.3-Zilla
Parishad, Amravati as per the directions of respondent Nos.1 and 2 had
issued an advertisement for the post of Community Health Provider
under the National Health Project Scheme on contract basis particularly
for tribal area for Amravati district i.e. Chikhaldara and Dharni. Said
advertisement is on record as Annexure-1. As per the terms and
conditions of the said advertisement the candidate who is qualified as
B.A.M.S. or B.Sc. (Nursing) is eligible to apply for the said post. The
post of Community Health Provider under the National Health Project
Scheme was on the contract basis particularly for the tribal area. The
petitioners are possessing qualification of B.A.M.S. and they were duly
registered with the Maharashtra Medical Council, applied for the said
post. As per the advertisement, the candidates who are applied for the
post have to appear for the entrance examination. After clearing the
entrance examination, the candidates are selected would have to go
through the Certificate Program for six months and thereafter they have
to appear for exit exam which would be conducted by the Maharashtra
University of Health Sciences, Nashik. It is further a part of record that
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
the petitioners have cleared the entrance examination, they had
undergone six months Certificate of Program for six months thereafter
appeared for exit exam and cleared the same. They had participated in
the said process for the post of Community Health Provider. It is also an
admitted position that the said post was on contract basis and, therefore,
the candidates would be appointed initially for 11 months. As the
petitioners had participated in the entire process, they were duly
selected by following due procedure of law and appointed as a
Community Health Provider. The appointment orders were issued to
them respectively on 07/03/2019 and 08/03/2019. As per the terms and
conditions of the said advertisement, the petitioners were asked to
execute a bond. As per the terms and conditions of the said bond, the
petitioners have to work continuously for a period of three years in the
tribal area otherwise they have to refund the amount of Rs.1,03,000/-
which was incurred for their training. In the light of the above condition,
they were under the obligation to provide their services to the
department. It is further the matter of record that again on 19/06/2019,
respondent No.2 - Deputy Director of Health Services, Akola issued an
advertisement for the post of Community Health Officer of Buldhana and
other districts. The petitioners had applied for the post which was
advertised on 19/06/2019 for the post of Community Health Officer for
Buldhana and other districts. As per the said advertisement at about 236
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
posts were declared for Buldhana district. As per the terms and
conditions mentioned in the advertisement the selection of the
candidates would be through entrance examination conducted by the
National Health Mission of Maharashtra. The result would be declared
by publishing districtwise list on the website. The candidates fulfilling
the eligibility criteria and qualifying the entrance examination would be
allotted program study centres at designated hospitals in Public Health
Department. The candidates after completion of Certificate Program
were required to appear for exit exam conducted by Maharashtra
University of Health Sciences, Nashik. Thereafter the successful
candidates would be appointed as Community Health Officer. The
petitioners had submitted their applications online. Said applications
were duly accepted by the office of respondent No.2 - Deputy Director of
Health Services, Akola. The petitioners were also permitted to appear
for the entrance examination conducted by respondent No.2. The
petitioners were declared successful in the entrance examination. As per
the terms and conditions stipulated in the advertisement respondent
Nos.3 and 4 issued a letter of counselling to the petitioners. In
accordance with the direction to remain present to attend counselling
process, the petitioners have visited the office of respondent Nos.4 and
5. They were not intimated in advance that they would not be
considered for the further process. But they came across the notice
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
displayed that the candidates who are working as a Community Health
Officer presently are not permitted to participate in the counselling
process. It is also a part of record that the petitioners have preferred
their representations and made a grievance that they were not
communicated on what basis they were refused to participate in the
middle of recruitment exercise. In absence of any rules, regulations and
circulars their representations were not considered by the respondents
and, therefore, they approached to this Court.
13. Perused the advertisement dated 19/06/2019. Admittedly
said advertisement was issued for the Buldhana as well as for other
districts for the post of Community Health Provider. As per the said
advertisement National Health Mission, Maharashtra invited applications
for 6/8 months Certificate Program in Community Health from the
candidates who are willing/enthusiastic to serve the Community.
Candidates who successfully complete this Program would be posted at
the Health and Wellness Centres and Sub-centres as Community Health
Officer on contract basis. Community Health Officers were expected to
carry out public health functions, ambulatory care management and
leadership at Health and Wellness Centre. The selection process
stipulated in the advertisement is that selection of the candidates for
Certificate Program in Community Health will be done through an
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
entrance examination that would be conducted by National Health
Mission, Maharashtra. The relevant terms and conditions are reproduced
herein for reference:
(i) The entrance examination would be conducted on
21/07/2019 between 11.00 a.m. to 1.00 p.m. in selected
examination centres at the level of Deputy Director of Health
Sciences.
(ii) The entrance examination will be objective type with 50
questions.
(iii) Admit Card would be issued through e-mails on the
candidates e-mail id mentioned in the application form.
(iv) The candidates fulfilling the eligibility criteria and
qualifying entrance examination would be allotted Program
Study Centres for 6/8 months Certificate Program at designated
Hospitals in Public Health Department, Trust Hospitals and
Hospitals decided by Public Health Department in State by
counselling process at Deputy Director level based on the merit
of entrance examination.
(v) After completion of Certificate Program, candidate will
have to appear for an exit exam which will be conducted by
M.U.H.S. Nashik.
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
(vi) Candidate successfully qualifying the exit exam
would be appointed as Community Health Officer at Subcentre in
the same or other district as per vacancy and requirement of
program through counselling at regional level based on merit of
exit exam.
14. As per the terms and conditions for the appointment, the
relevant condition is that - candidate successfully clearing the exit exam
will get a certificate which will be applicable only for working as a
Community Health Officer at Sub-centre under Health and Wellness
Scheme. This certificate does not make the candidate eligible for any
specialisation/private practice/ any government job. Under the head of
general terms and conditions, the relevant condition is that the
candidates qualifying exit exam may likely to be appointed as
Community Health Officer initially for 11 months, which may be
extended subject to continuation of the project from Government of
India and their performance. If the same is not extended : candidate
cannot claim any right on the post or permanency of job or job
protection by Government or any litigation regarding the employment
protection. In case of unsatisfactory performance the services of
candidate may be terminated after giving due notice. Thus, as per the
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
terms and conditions of the advertisement there is no stipulation or
condition that the persons who are already working as a Community
Service Provider are not eligible to apply to the post as per the
advertisement dated 19/06/2019.
15. It is vehemently submitted by the learned Assistant
Government Pleader that the Deputy Director, Health Services, Nashik
raised query as to whether to consider the applications of the candidates
for training who are already trained in the earlier round. Then it was
decided and accordingly informed to the Field Officers vide
communication dated 04/07/2019 that not to consider the applications
of the candidates who have already undergone six months training to
become eligible to be appointed as Community Health Officer. Said
decision is taken in view of fact that during the training of Community
Health Officer for six months, the trainees are provided training
material, lectures, demonstration and clinical cases etc., and the
expenditure for giving such training per candidate is Rs.1,03,000/-. The
communication dated 04/07/2019 was discussed in the meeting held
under the Chairmanship of Commissioner (Health Services) and Mission
Director, National Health Mission, Mumbai on 03/08/2019 and
representations of the petitioners are rejected. Thus it is apparent that
the petitioners are not considered for the said post only on the ground
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
that they are already working as a Community Health Provider. They
had undergone the training of six months. The Government was
required to incur the expenses of Rs.1,03,000/- per candidate for the
said training and, therefore, it was decided not to consider the
candidates who are already working as a Community Health Officer in
Health and Wellness Centres. Admittedly, there was no condition
stipulated in the advertisement. Admittedly, said decision is taken by
respondent Nos.1 and 2 subsequently in the meeting held under the
Chairmanship of Commissioner (Health Services) and Mission Director,
National Health Mission, Mumbai on 03/08/2019. There is no basis for
the such decision. The petitioners applications were accepted by
respondent No.2. They were afforded with an opportunity to appear for
the entrance examination. If an individual get an opportunity to work in
a better condition definitely he or she would avail the said opportunity.
Said opportunity could not be denied to the individual merely because
they undergone the training and Government has to incur the expenses
for the said training. The respondents were at liberty to exempt them
from the said training if they would be selected in the further process
but denying the opportunity to them to undergo further process of
recruitment itself is arbitrary. It is held by the Hon'ble Apex Court in the
case of Madan Mohan Sharma and anr. Vs. State of Rajasthan and ors.
(2008) 3 SCC 724 that once the advertisement had been issued on the
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
basis of Circular obtaining at that particular time, the effect would be
that the selection process should continue on the basis of criteria which
were laid down and which cannot be on the basis of criteria which has
been made subsequently. Subsequent amendment of the rules laid
during the pendency of the advertisement which was prospective cannot
be made retrospective so as to make the selection on the basis of the
rules which were subsequently amended. If this was to be done, then
the only course open was to recall the advertisement and to issue a fresh
advertisement according to the rules which had come into force. These
observations are applicable in the present case also. As when
advertisement had been issued there was no condition that the
candidates who are already working as a Community Service Provider
are not eligible to apply for the post of Community Health Provider as
per the advertisement dated 19/06/2019. The applications of the
petitioners are accepted. They appeared for the entrance examination.
They have cleared the entrance examination, they were called for
counselling and, thereafter, subsequently the decisions was taken that
the candidates who are already working as a Health Service Provider are
not to be taken into consideration as they have already undergone six
months training. The contention of the respondents in their reply shows
that said decision is taken in view of the fact that during the training of
Community Health Officer for six months, the trainees are provided
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
training material, lectures, demonstration, clinical cases, etc. and the
expenditure for giving such training per candidate is Rs.1,03,000/-. This
subsequent decision is contrary to the selection process declared by the
respondents in the advertisement dated 19/06/2019. The selection
process has to be conducted on the basis of criteria which was already
laid down as observed by the Hon'ble Apex Court otherwise the only
course is open to recall the advertisement and to issue a fresh
advertisement. The decision taken by respondent No.1 not to consider
the petitioners as they are already in service as a Community Health
Officer is arbitrary, illegal and against the principles of natural justice
hence, is liable to be quashed and set aside. Therefore, the writ petition
deserves to be allowed.
16. In the light of above discussion and in the light of the
observation of the Hon'ble Apex Court, we hold that the communication
of respondent No.1 dated 04/07/2019 is illegal and needs to be quashed
and set aside.
17. We, therefore, pass the following order :
(a) The writ petition is allowed.
(b) The communication of respondent No.1 dated
04/07/2019 and subsequent decision taken in meeting held
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
on 03/08/2019 are hereby quashed and set aside
(c) Respondent No.1 is directed to permit the petitioners
to participate in further process of recruitment as per the
advertisement dated 19/06/2019.
18. Rule is made absolute in the aforesaid terms. There will be
no order as to costs.
(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)
*Divya
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:18.08.2022 15:07
