Gauhati High Court
Vill- Chaner Gaon vs The State Of Assam And 3 Ors on 4 September, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010050762022
2025:GAU-AS:12228
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Case No. : WP(C)/2003/2022
SANKARI BALA DAS AND 12 ORS
W/O- SUSHIL KR. DAS, VILL- TENGNAMARI BHUTIA DANGA, P.O AND
P.S- SUKCHAN, DIST- SOUTH SALMARA MANKACHAR,
PIN-783128
2: ZOHURA KHATUN
W/O- ABDUR ROSHID SK
VILL- BHIMAPARA
P.O- SOUTH SALMARA
DIST- SOUTH SALMARA MANKACHAR
PIN-783136
3: MEHERUN NESSA
W/O- SHAHA ALAM MONDAL
VILL- DIARA (GARAMARI)
P.O- RADHA MADHAB HAT.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783131
4: REHENA AHMED
W/O- MD. CHAND MIAH
VILL- CHANGAN CHAR
P.O- PURAN DIARA.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783135
5: MOLINA SARKAR
W/O- DULAL CH SEAL
VILL- BHUTIA DANGA
P.O AND P.S- SUKCHAR
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DIST- SOUTH SALMARA MANKACHAR
PIN-783128
6: JOHURA KHATUN
W/O- SK NAZIM UDDIN AHMED
VILL- PATANGITALA
P.O- KALAPANI.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783135
7: AFRUZA AHMED
W/O- SORHAB ALI AHMED
VILL- BANIR ALGA
P.O- KOKRADANGA.
P.S-SUKCHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783128
8: ZAHIDA KHANOM
W/O- RAJIB ISLAM
VILL- SONAR PARA
P.O AND P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783131
9: UMME QULSUM
W/O- NURUL AHMED
VILL- BHURA KATA
P.O- R/M HAT.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783131
10: SULTAN BEGUM
W/O- ABU SAMIM HUSSAIN
VILL- KUKURMARA PART-I
P.O- RADHA MADHAB HAT.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783131
11: SHARIKA BEGUM
W/O- AKRAMUZZAMAN
VILL- KANAI MARA
P.O- KOKRADANGA
P.S- SUKCHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783128
12: ROHIMA KHATUN
W/O- SHAHJAMAN CHOWDHURY
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VILL- CHANER GAON
P.O- RADHA MADHAB HAT.
P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-783131
13: MAYA BEGUM
W/O- ABU AT ASID
VILL- 2ND NO. PUBER GAON
P.O AND P.S- MANKACHAR
DIST- SOUTH SALMARA MANKACHAR
PIN-78313
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, HEALTH AND FAMILY WELFARE DEPTT
2:DEPUTY COMMISSIONER
DIST- SOUTH SALMARA MANKACHAR
SINGIMARI
ASSAM
3:JOINT DIRECTOR HEALTH SERVICES
CUM MEMBER SECRETARY
DISTRICT HEALTH SOCIETY SOUTH SALMARA
MANKACHAR
HAT SINGIMARI
4:DISTRICT ASHA NODEL OFFICER
DISTRICT -SOUTH SALMARA
MANKACHAR
HAT SINGIMARI
PIN-783136
5:MISSION DIRECTOR
NATIONAL HEALTH MISSION
ASSAM
GUWAHATI - 05
Advocate for the Petitioner : MR. D P CHALIHA, MR M RANA,MS M ROY
Advocate for the Respondent : GA, ASSAM, SC, HEALTH
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BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
Date : 04-09-2025
1. The petitioners, 13 [thirteen] in nos., have joined together to institute
the present writ petition under Article 226 of the Constitution of India
inter alia seeking a direction in the nature of Mandamus to the
respondent authorities not to give effect to the revised norms of
engagement of ASHA Supervisors [Facilitators], conveyed through an
Office Letter bearing no. NHM-31017/1/2020-HRD-NHM/32948 dated
25.01.2022 by the Mission Director, National Health Mission [NHM],
Assam [the respondent no. 5] to the Deputy Commissioner-cum-
Chairman, District Health Society, South Salmara District [the
respondent no. 2], for completing the engagement process of ASHA
Supervisors [Facilitators] in respect of Gazarikandi Block Public Health
Centre [Gazarikandi BPHC, for short].
2. The case has a history of prolonged litigations. This round of litigation
is the fourth round.
3. The genesis of the petitioners' claim is traceable to an Advertisement
dated 22.10.2008 published by the Mission Director of erstwhile
National Rural Health Mission [NRHM], which nomenclature is
subsequently changed to National Health Mission [NHM], in the
newspapers.
4. The National Rural Health Mission [NRHM] was launched by the
Government of India to address the health needs of rural population
and vulnerable sections of the society. A Scheme was formulated
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under the Mission envisaging creation of new bond of community
based functionaries named as Accredited Social Health Activists [ASHA]
to admit to the health related demand of the deprived section of the
population, especially women and children, who find it difficult to
access health services. The Scheme envisaged engagement of
Supervisors [Facilitators] in each Block over ten [10] ASHAs, who
should preferably be women. The Government of India used to issue
guidelines from time to time laying down the criteria for selection of
ASHAs and ASHA Supervisors [Facilitators].
5. The Government of India also envisaged the role of the ASHA
Supervisors [Facilitators]. The ASHA Supervisors [Facilitators] would
interact with the community by conducting Focused Group Discussions
[FGDs] / workshops of the local Self-Help Groups [SHGs], etc. which
would lead to awareness of roles and responsibilities of ASHA and
acceptance of ASHA as a concept in the community.
6. The Advertisement dated 22.10.2008, published by the Mission
Director, NRHM, Assam, was meant for engagement of ASHA
Supervisors [Facilitators] throughout the State of Assam. In response
to the Advertisement, more than 34,000 applications were received.
The candidates from Gazarikandi BPCH also responded to the
Advertisement and the petitioners in this writ petition were among
them.
7. In the Advertisement it was mentioned that a candidate must have the
qualification of Higher Secondary Examination pass and preference
would be given to those candidates who had at least two years'
experience of working with an NGO. The monthly fixed remuneration
for such ASHA Supervisors [Facilitators] was fixed at Rs. 3,500/-.
Scrutiny of applications were made at the State-level and thereafter,
applications were forwarded to the Office of the jurisdictional District
Commissioner to initiate the selection process after a decision was
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taken by the Government of Assam on 11.12.2008 to conduct the
selection of candidates for the engagement as ASHA Supervisors
[Facilitators] at two stages, with the first stage at the District-level and
the second and final stage at the State-level.
8. During the selection process, a Select list was prepared on 20.05.2009
at the District-level for Gazarikandi BPHC after interviewing the
candidates shortlisted and after preparing a merit list, the list was
forwarded to the State-level for completing the selection process.
Thereafter at the State-level, another merit list was prepared on
06.10.2009 wherein few names appearing in the list prepared at the
District-level were found missing with inclusion of names of few other
candidates, whose names were not included in the list prepared at the
District-level. Laying challenge to the merit list prepared at the State-
Level, eleven nos. of candidates who were aspirants for engagement
as ASHA Supervisors [Facilitators] in Gazarikandi BPHC, preferred a
writ petition, W.P.[C] no. 4401/2009. The petitioners alleged
anomalies in the selection process and one of the contentions of the
petitioners was that there could not be two selections, one at the
District-level and the other at the State-level. The writ petition,
W.P.[C] no. 4401/2001 was heard together with four other writ
petitions, W.P.[C] no. 4127/2009, W.P.[C] no. 3977/2009, W.P.[C] no.
4360/2009 & W.P.[C] no. 4957/2009.
9. After hearing all the writ petitions together, the writ petitions were
disposed of by a common Judgment and Order dated 07.04.2010 by
the learned Single Judge. The Judgment and Order noted that the
claim of the writ petitioners in W.P.[C] no. 4401/2009 was confined to
Gazarikandi BPHC only wherein few of the selected candidates at the
State-level were made respondents. After going through the records of
the selection process and hearing the parties, the learned Single Judge
set aside the select list dated 20.05.2009 prepared at the District-level,
which was forwarded by the Deputy Commissioner to the Mission
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Director, NRHM as well as the select list dated 06.10.2009 prepared by
the State-level Selection Committee in respect of Gazarikandi BPHC.
The respondent authorities were directed to initiate the selection
process afresh in respect of Gazarikandi BPHC by interviewing the
candidates who had applied for engagement as ASHA Supervisors
[Facilitators] in response to the Advertisement dated 22.10.2008 and
to complete the selection process as early as possible. The other four
writ petitions were, however, dismissed by the learned Single Judge
finding no merits therein.
10. Being aggrieved by the Judgment and Order dated 07.04.2010
[supra], rendered by the learned Single Judge whereby the select lists
prepared for Gazarikandi BPHC were set aside, few of the selected
candidates therein carried the matter to the Division Bench by way of
an intra-court appeal, Writ Appeal no. 165/2010. The Writ Appellate
Court after hearing the parties, by an Order dated 31.07.2012,
dismissed the writ appeal observing that the findings arrived at by the
learned Single Judge did not warrant interference.
11. The matter of selection process of Gazarikandi BPHC rested in such
position for the next few years till publication of another Advertisement
by the Mission Director, National Health Mission [NHM] on 07.03.2015.
By the Advertisement dated 07.03.2015, online applications were
invited from female candidates of Assam for engagement on
contractual basis in a number of posts of ASHA Supervisors
[Facilitators].
12. The office of the Mission Director, NHM also indicated the vacancies of
ASHA Supervisors [Facilitators] BPHC-wise and in respect of
Gazarikandi BPHC, District - Dhubri, the nos. of post of ASHA
Supervisors [Facilitators] which were available to be filled up, was
mentioned as 28 [twenty-eight]. The ASHA Supervisors [Facilitators]
were to be stationed at Block PHC and would work with the Block
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Programme Management Units [BPMU], supervise, coordinate activities
of ASHA and village health and nutrition days, etc. In the
Advertisement, the emoluments to be received by the ASHA
Supervisors [Facilitators] were mentioned as Rs. 5,500/-, [Fixed
remuneration : Rs. 1000 + D.A. : Rs. 1,500/- + T.A. : Rs. 3,000/-].
The minimum educational qualification and desirable criteria were also
mentioned.
13. Alarmed by the publication of the Advertisement dated 07.03.2015
wherein vacancies available in Gazarikandi BPHC were also mentioned,
some of the candidates who applied in response to the Advertisement
dated 22.10.2008 for the post of ASHA Supervisors [Facilitators],
approached this Court to initiate the second round of litigation by
preferring a writ petition, W.P.[C] no. 2863/2015. The Judgment and
Order dated 07.04.2010 [supra] rendered by the learned Single Judge
in W.P.[C] no. 4401/2010 and the Order passed by the Division Bench
thereafter in Writ Appeal no. 165/2010 were brought to the notice of
the learned Single Judge. Taking note of the direction made in respect
of the selection process of Gazarikandi BPHC, Dhubri District which had
been interfered with, the writ petition was disposed of by an Order
dated 20.05.2015 directing the Mission Director, NHM to abide by the
earlier decision while proceeding further with the Advertisement dated
07.03.2015.
14. It was on 17.05.2018, the Mission Director, NHM conveyed a decision
to the Member Secretary, District Health Society, Dhubri District to
conduct the interview for engagement of ASHA Supervisors
[Facilitators] in Gazarikandi BPHC as per the directions of this Court by
interviewing only the candidates who had applied for engagement of
ASHA Supervisors [Facilitators] pursuant to the Advertisement dated
22.10.2008. By an Office Letter dated 17.05.2018, the Member
Secretary, District Health Society, Dhubri District was asked to
complete the District-level selection process within July, 2018 as per
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the selection guidelines of 2008. The Office Letter made a mention of
the directions made in the Order dated 20.05.2015 passed in the writ
petition, W.P.[C] no. 2863/2015.
15. It was pursuant to the said direction of the Mission Director, NHM
given on 17.05.2018, the District-Level District Health Society, Dhubri
district interviewed the candidates who had responded to the
Advertisement dated 22.10.2008 and the interview was conducted by a
five-member Selection Committee. The Selection Committee gave
marks for academic collaboration, experience and performance of the
candidates in the interview. Thereafter, a merit list containing names
of forty-two candidates was prepared for Gazarikandi BPHC. In the
merit list, the ranks secured by the forty-two candidates were also
published and the present petitioners' names found mention in the
merit list with rankings.
16. During the year, 2018, a writ petition, W.P.[C] no. 8738/2018 was
preferred to challenge a handwritten notice issued by the Selection
Committee for ASHA Supervisors [Facilitators] for Gazarikandi BPHC.
The said writ petition was disposed of by an Order dated 31.01.2020.
As the issue raised in the third round is not found relevant for the
purpose of this writ petition, the details made in the said writ petition
are not referred to in this Order.
17. Subsequent to preparation of the merit list by District Health Society at
the District-level for Gazarikandi BPHC, the matter did not proceed
further till 2021. Aggrieved by inaction on the part of the respondent
authorities to proceed further with the engagement process of ASHA
Supervisors [Facilitators] in respect of Gazarikandi BPHC, an
application was submitted before the District ASHA Nodal Officer,
South Salmara Mankachar District requesting to proceed further with
the engagement process of ASHA Supervisors [Facilitators]. On receipt
of the application, the District ASHA Nodal Officer wrote to the
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respondent no. 2 to take necessary steps for appointing 29 nos. of
ASHA Supervisors [Facilitators] from the merit list as there were 289
ASHA workers then working at Gazarikandi Block PHC as in view of the
ratio of 1:10 mentioned in the Advertisement dated 22.10.2008 there
would be requirement of 29 ASHA Supervisors [Facilitators] at
Gazarikandi Block PHC.
18. When on 25.01.2022, the Mission Director, NHM, Assam vide an Office
Letter of even date wrote to the respondent no. 2, who was the
Chairman, District Health Society, South Salmara District, requested to
conduct the engagement process of ASHA Supervisor [Facilitator] in
Gazarikandi BPHC afresh by following the revised norms and to
complete the engagement process, the petitioners herein are before
this Court by the instant writ petition.
19. For ready reference, the relevant excerpts of the Office Letter dated
25.01.2022 are reproduced herein for ready reference :-
OFFICE OF THE MISSION DIRECTOR
NATIONAL HEALTH MISSION, ASSAM
* * * * * * * * *
No. NHM-31017/1/2020-HRD-NHM/32948 Date: 25.01.2022
[ECF-177912]
* * * * * * * * *
Sub : Recruitment of ASHA Supervisor in Gazarikandi BPHC
* * * * * * * * *
Sir,
With reference to the subject cited above, I am to inform your
that considering the difficulty in rationalization of ASHA
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Supervisor in Gazarikandi BPHC, it has been decided to fill the
vacancies through a new recruitment process. The earlier district
level selection done as per letter dtd. 17.05.2018 referred at [iii]
above is cancelled based on the revised norm of 1 ASHA
Supervisor against 20 ASHAs received from Govt. of India vide
letter D.O. No.10[36]/2017-NHM-1 dtd. 20/02/2017 referred at [ii]
above.
You are hereby requested to conduct fresh engagement of
ASHA Supervisor in Gazarikandi BPHC following the new
revised norms [1 ASHA Supervisor against 20 ASHAs] and
complete the engagement process. The candidates of the
erstwhile recruitment may also be considered. The honorarium &
emoluments details is FMR: 3.1.3.1 of RoP 2021-22.
20. I have heard Mr. D.P. Chaliha, learned Senior Counsel assisted by Ms.
M. Roy, learned counsel for the petitioners; Ms. D. Borah, learned
Standing Counsel, Health & Family Welfare Department for the
respondent no. 1; Ms. U. Sharma, learned Junior Government
Advocate, Assam for the respondent no. 2; and Ms. A. Bora, learned
Standing Counsel, NHM for the respondent nos. 3, 4 & 5.
21. Mr. Chaliha, learned Senior Counsel appearing for the respondents has
submitted that it is evident from the Advertisement dated 07.03.2015
as well as from the materials pertaining to the engagement process
initiated pursuant to the Advertisement dated 22.10.2008 that the
engagement process was initiated for engaging 28 [twenty-eight] nos.
of ASHA Supervisors [Facilitators] in Gazarikandi BPHC. The
engagement process was accordingly proceeded with and a merit list
of forty-two nos. of candidates with rankings was prepared. The
names of the petitioners herein had found places in the merit list of
forty-two candidates. However, the respondent authorities acting
arbitrarily proceeded to engage only fifteen candidates from the said
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merit list and it stopped from engaging any other candidates from the
said merit list. As the petitioners' names were in the merit list, and
there are no valid reasons for the respondent authorities not to act
further on the said merit list to fill up the remaining vacancies available
in Gazarikandi BPHC, the actions of the respondent authorities are
clearly arbitrary. He has, thus, contended that the direction given in
the impugned Letter dated 25.01.2022 is liable to be interfered with
and a direction to the respondent authorities is clearly called for to fill
up the remaining vacancies in Gazarikandi BPHC from the candidates
whose names are in the merit list of forty-two candidates. When
vacancies are available, the respondent authorities could not have
stopped the engagement process in the mid-stream. He has contended
that such action on the part of the respondent authorities is clearly an
act of changing the rule of the game in the mid-stream. To buttress his
submissions, Mr. Chaliha has referred to the decision of Hon'ble
Supreme Court in Tej Prakash Pathak and others vs. Rajasthan
High Court and others reported in [2024] 12 S.C.R. 28.
22. Ms. Bora, learned Standing Counsel, NHM has submitted that the
Government of India in the Ministry of Health & Family Welfare
Department has framed the relevant Scheme which has provided for
engagement of ASHA and ASHA Supervisors [Facilitators]. The
Government of India only had/has the authority to issue guidelines for
engagement of ASHA and ASHA Supervisors [Facilitators] from time to
time and the National Health Mission [NHM], Assam is only the
implementing agency for the programme. As an implementing agency,
the NHM has to abide by the guidelines and norms set by the
Government of India from time to time. Ms. Bora has submitted that
though at the time of issuance of the Advertisement dated 22.10.2008,
the norm was to engage one ASHA Supervisor [Facilitator] against ten
nos. of ASHAs, the norm of engagement undergone a change in the
meantime when litigations regarding engagement of ASHA Supervisors
[Facilitators] for Gazarikandi BPHS were pending. In the year 2017, the
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Government of India in the Ministry of Health & Family Welfare had
intimated to the Mission Director, NHM that as per the revised norm,
only one ASHA Supervisor [Facilitator] could be engaged against
twenty nos. of ASHAs. When the engagement process for the
Gazarikandi BPHC was finalized in the year 2022, there were 289 nos.
of ASHAs then working within the areas under Gazarikandi BPHC.
Therefore, following the revised norms set by the Government of
India, engagement of only fifteen nos. of ASHA Supervisors
[Facilitators] were possible and therefore, it was decided to engage
fifteen nos. of candidates from the merit list containing forty-two nos.
of names as per their ranks. Ms. Bora has further contended that the
principles regarding change in the rules of the game, as observed in
Tej Prakash Pathak [supra] is not applicable in the case in hand.
23. Mr. Bora, learned Standing Counsel, Health & Family Welfare
Department and Ms. Sharma, learned Junior Government Advocate
have made submissions in line with the submissions of Mr. Bora,
learned Standing Counsel, NHM, Assam.
24. I have given due consideration to the submissions made by the
learned counsel for the parties and have gone through the materials
brought on record by the parties through their pleadings.
25. The facts and events leading to the issuance of the Office Letter dated
25.01.2022 have already been exposited above briefly.
26. It is noticed from an Order dated 02.03.2022, issued under the hand
of the respondent no. 2, that after the Office Letter dated 25.01.2022,
fifteen nos. of candidates came to be engaged as ASHA Supervisors
[Facilitators] in Gazarikandi BPHC. For ready reference, relevant
excerpts of the Order dated 02.03.2022 are extracted hereinbelow :-
GOVT. OF ASSAM
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OFFICE OF THE DEPUTY COMMISSIONER
SOUTH SALMARA MANKACHAR DISTRICT
HATSINGIMARI
No. HDD-1/ASHA Hatsingimari the 2nd March/2022
Supervisor/2022/70
ORDER
In pursuance of approval the letter from the Mission Director,
NHM, Assam vide No. NHM-31017/1/2020-HRD-
NHM/22948/35601 dated 24.02.2022, the following 15 [fifteen]
nos candidates of ASHA Supervisors, are hereby engaged as
ASHA Supervisor under Gazarikandi Block PHC with an
immediate effect.
After joining, the working place for the engaged candidates will
be determined by the SDM & HO I/c Gazarikandi Block PHC.
The honorarium with emoluments of the engaged candidates as
per the norms shall be paid under FMR Code 3.1.3.1 of ROP
2021-22.
The engaged candidates are directed to Join at the Gazarikandi
Block PHC not later than 3rd March, 2022.
List of the engaged candidates are as follows:
SI No Name of ASHA Supervisor Roll Nos.
1 Roshida Begum Dhubri- 359
2 Zulia Begum Dhubri- 432
3 Wakila Khatun Dhubri- 1118
4 Afruza Begum Dhubri- 401
5 Solimon Nessa Dhubri- 273
6 Giaboon Necha Dhubri- 397
7 Mamataz Sultana Dhubri- 975
8 Safura Begum Dhubri- 238
9 Niva Begum Dhubri- 1628
10 Sorifun Nehar Dhubri- 1689
11 Halima Khatun Dhubri- 1131
12 Lutfa Zaman Dhubri- 1311
13 Mafuza Khatun Dhubri- 1330
14 Begum Forzina Ahmed Dhubri- 728
15 Nargis Khandakar Dhubri- 2013
27. When a comparison is made with the names of the candidates
appearing in the Order dated 02.03.2022 with the merit list containing
forty-two names, prepared ranking-wise by the District Selection
Committee, it is found that the candidates engaged as ASHA
Supervisors [Facilitators] by the Order dates 02.03.2022 secured first
fifteen ranks in the merit list. In other words, the engaged candidates
secured 1st rank to 15th rank after the selection process.
28. The petitioners herein have stated that in the same merit list
containing forty-two names, their positions are at serial nos. 26, 25,
28, 22, 17, 27, 23, 21, 29, 19, 20, 16 & 24.
29. From the above, it is clear that the positions of the petitioners in the
merit list of forty-two candidates are from serial no. 16 onwards in
order of merit.
30. In the above factual backdrop, the issue arises for consideration is
whether the petitioners have any right to contend that they are
entitled to be engaged as ASHA Supervisors [Facilitators] in
Gazarikandi BPHC on the ground that their names are included in the
merit list of forty-two candidates prepared by the District Selection
Committee for Gazarikandi BPHC and engagement process was
undertaken for twenty-eight posts.
31. In the Advertisement dated 22.10.2008, it was mentioned that the
engagement ASHA Supervisors [Facilitators] would be made against
ten ASHAs. However, in the year 2017, the Government of India in the
Ministry of Health & Family Welfare vide its D.O. Letter no.
10[36]/2017-NHM-1 dated 20.02.2017 informed the Mission Director,
NHM that the general norm is to appoint one ASHA Supervisor
[Facilitator] for every twenty ASHAs and one ASHA Supervisor
[Facilitator] would work with about twenty ASHAs in a population of
about twenty thousand. It was conveyed that such a norm was fixed
to make efficient use of the human resources and it was conveyed that
an ASHA Supervisor [Facilitator] was expected to provide support,
supervise, build capacity of the ASHAs and to monitor the progress of
each individual ASHA in their given area.
32. In the counter affidavit filed by the respondent no. 5, the respondent
no. 5 has referred to the afore-mentioned D.O. Letter dated
20.02.2017 of the Ministry of Health & Welfare Department,
Government of India. It has been averred that the programme for
engagement for ASHA and ASHA Supervisors [Facilitators] is one which
is under the Ministry of Health & Family Welfare, Government of India.
The guidelines and funds to implement the programme are also
provided by the Ministry of Health & Family Welfare, Government of
India. Therefore, the NHM, Assam is bound to follow the guidelines
and norms set by the Ministry of Health & Family Welfare, Government
of India from time to time. When the process of selection and
engagement of ASHA Supervisors [Facilitators] was finalized for
Gazarikandi BPHC in 2022, 289 nos. of ASHAs were found working in
the areas under Gazarikandi Block PHC and following the revised norm
set by the Ministry of Health & Family Welfare, Government of India,
fifteen nos. of ASHA Supervisors [Facilitators] were engaged vide the
Order dated 02.03.2022.
33. When the number of engagements of ASHA Supervisors [Facilitators]
made in the year 2022 for Gazarikandi Block vide Order dated
02.03.2022 qua the number of ASHAs working within Gazarikandi
BPHC is examined, it is found that the norm of engagement was in
conformity with the norm set by the Government of India, which was
conveyed by the D.O. Letter dated 20.02.2017. As against 289 nos. of
ASHAs then working within areas of Gazarikandi BPHC, fifteen nos. of
ASHA Supervisors [Facilitators], as per their ranks in the merit list of
forty-two candidates, were appointed, which is approximately in the
ratio of one AHSA Supervisor [Facilitator] against twenty ASHAs.
34. The Constitution Bench in Tej Prakash Pathak [supra] framed the
following points for analysis and adjudication :-
[a] When the recruitment process commences and comes to an
end;
[b] Basis of the doctrine that 'rules of the game' must not be
changed during the course of the game, or after the game is
played;
[c] Whether the decision in K. Manjusree [supra] is at variance
with earlier precedents on the subject;
[d] Whether the above doctrine applies with equal strictness qua
method or procedure for selection as it does qua eligibility
criteria;
[e] Whether procedure for selection stipulated by Act or Rules
framed either under the proviso to Article 309 of the Constitution
or a Statute could be given a go-bye;
[f] Whether appointment could be denied by change in the
eligibility criteria after the game is played.
35. In the case in hand, there is no question either of change in cut-off
marks or change in eligibility criteria for selection in the mid-stream.
The selection process initiated by the Advertisement dated 22.10.2008
progressed to the stage of preparation of the merit list, rank-wise,
containing forty-two names. The respondent authorities are found to
have acted on the merit list as per the rankings secured by the
candidates and the candidates from the said merit list, rank-wise, up
to 15th rank were appointed. Admittedly, the petitioners' rankings were
from 16th rank onwards. It was the revised norm, set by the
Government of India as the funding authority for the programme
which includes engagement of ASHA and ASHA Supervisors
[Facilitators], which the NHM, Assam as the implementing agency had
followed. The revised norm at the time of engagement of ASHA
Supervisors [Facilitators] in the year 2022 was one ASHA Supervisor
[Facilitator] against twenty ASHAs in each Block PHC.
36. One of the principles laid down by the Hon'ble Supreme Court in Tej
Prakash Pathak [supra] is that the placement in the select list gives
no indefeasible right to appointment. The State or its instrumentality
for valid and bona fide reasons may choose not to fill up the vacancies.
However, if vacancies exist, the State or its instrumentality cannot
arbitrarily deny appointment to a person within the zone of
consideration in the select-list.
37. It is contended that since vacancies from twenty-eight vacancies,
originally contemplated in the year 2015, are available in Gazarikandi
BPHC, therefore, the respondent authorities should be directed to take
further action for engagement of ASHA Supervisors [Facilitators] in
those vacancies by acting on the merit list of forty-two candidates.
Such contention advanced on behalf of the petitioners, in the
considered view of this Court, is not acceptable. The engagement of
ASHA Supervisors [Facilitators], in essence, is not stricto sensu
dependent only in the nos. of vacancies. The engagement of ASHA
Supervisor [Facilitator] is essentially dependent upon the number of
ASHAs to whom an ASHA Supervisor [Facilitator] is to act as a mentor,
guide and counsel. An ASHA Supervisor [Facilitator] is engaged for
monitoring the progress of individual ASHAs in a given area. The
Ministry of Health & Family Welfare, Government of India being the
framer of the programme and also the funding authority, it has the
authority to set the norms as well as to revise the norms from time to
time depending on the ground situations. The Government of India in
the Ministry of Health & Family Welfare at the relevant point of time,
while framing the revised norm of engaging one ASHA Supervisor
[Facilitator] against twenty ASHAs, was of the view that such norm
would be optimum for a population of twenty thousand and there
would be an efficient use of the human resources. The proposition
regarding the rules of the game or change in the rules of the game is
not found applicable in the case in hand. Therefore, the direction
sought for in this writ petition are ones which are found unmerited and
such direction in the fact situation obtaining in the case are not called
for.
38. The law is settled that mere placement of his or her name in the merit
list does not entitle the candidate any right to be appointed. In other
words, being selected for a position or included in the merit list does
not automatically grant a candidate a guaranteed right to be appointed
for the job. A candidate's name appearing in a merit list signifies that
he or she has successfully passed the selection process but the same
does not confer an indefeasible or vested right to an appointment.
Appointments can be guided by and dependent upon many factors
such as existence of limited nos. of vacancies, changes in recruitment
rules or norms, subsequent administrative decision, etc. Events
subsequent to preparation of the merit list can be taken into
consideration for either making or not making appointments from the
merit list. If the refusal to act further on the merit list after making
appointments from the same list, strictly ranking-wise, upto a certain
position is found to be for valid and bonafide reason, no direction in
the nature of the mandamus is called for. Such is the case found here
in the present case.
39. Consequently, the case of the petitioners is found bereft of merits.
Resultantly, the writ petition is dismissed. There shall be no order as to
cost.
JUDGE
Comparing Assistant
