M.Rajesh Kumar vs State Of Telangana
2022 Latest Caselaw 4755 Tel

  THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                   W.P.No.36899 of 2021

ORDER:

This Writ Petition has been filed seeking a writ of

mandamus to declare the action of the respondents in not

considering the case of the petitioners for appointment to

the post of Multipurpose Health Assistants (MPHA) (Male),

even though they secured more marks than the candidates

who were reappointed vide G.O.Rt.No.1207, dated

09.10.2013 in spite of orders of this Court in

WVMP.No.2120 of 2015 in W.P.No.3178 of 2014, dated

15.09.2015 and rejecting the case of the petitioners vide

proceedings dated 29.06.2021, issued by the 3rd

respondent, as illegal, arbitrary and discriminatory and

consequently, to set aside the impugned order and direct

the respondents to appoint the petitioners to the post of

MPHA's (M) as per their merit, strictly by implementing the

orders of this Court dated 15.09.2015 in WVMP.No.2120 of

2015 in W.P.No.3178 of 2014, as was done in respect of

similarly placed persons, with all service and monetary

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benefits and to pass any such order or orders as this

Hon'ble Court may deem fit and proper in the

circumstances of the case.

2. The brief facts leading to the filing of the present writ

petition are that initially G.O.Ms.No.273, HM & FM, dated

24.04.1989 was issued prescribing the qualifications for

the post of MPHA's (M) as under:

(i) Must have passed intermediate or any other

equallent qualification.

(ii) Must possess a Sanitary Inspector Training

Course Certificate awarded by the Chairman of the Board

of Examiners, constituted by the State Government, or

(iii) Must possess a certificate of Multipurpose Health

Workers Training Course, conducted by the State

Government.

(iv) Must have physical Fitness for camp life.

Subsequently, vide G.O.Ms.No.352 HM&FW dated

01.08.1992 and G.O.Ms.No.111 HM&FW dated

12.04.2002, the educational qualification was modified as

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SSC along with Sanitary Inspector Training Course or

Multipurpose Health Workers Training Course.

3. While the matters stood thus, the Government had

issued a notification on 20.07.2002 for recruitment of

Paramedical Posts including MPHA's (M) with prescribed

qualifications of SSC + Multipurpose Health Workers

Training Course. On 11.08.2002 a written test was

conducted and all the petitioners herein have secured

qualifying marks. In the meantime, some of the candidates

filed the O.A.No.6856 of 2002 and batch before the Andhra

Pradesh Administrative Tribunal (APAT) challenging the

prescription of SSC qualification contrary to the earlier

prescribed qualification of intermediate. The APAT

dismissed the O.As., and challenging the same,

W.P.No.15107 of 2002 and also W.P.No.422 of 2003 and

others were filed before the Andhra Pradesh High Court.

The Andhra Pradesh High Court passed an interim order

dated 24.04.2003, to consider intermediate along with

Sanitary Inspector training course certificate or

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Multipurpose Health workers training course certificate as

the necessary qualification and accordingly, the candidates

were directed to be appointed. In view thereof,

G.O.Ms.No.159 HM&FW, dated 16.05.2003 was issued to

appoint the candidates who have passed diploma in public

health and sanitation and also possessed the intermediate

qualification and the finalized selection list was issued on

the basis of G.O.Ms.No.159.

4. Similar Writ Petitions were filed by some other

candidates, wherein the G.O.Ms.No.484 HM&FW dated

24.12.2002 being the orders of the Government cancelling

the selection process on the basis of complaints on the

issue of bogus certificates, were challenged. The

W.P.No.15107 of 2002 and also W.P.No.422 of 2003 were

disposed of by this Court vide orders dated 11.09.2003,

upholding the order of APAT and directing the Government

to prepare the select list of the candidates in accordance

with rules, who possessed SSC and diploma certificate

either from the Government institutions or from the four

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private institutions referred to therein including the college

of medical technology, Ongole, as the cancellation of

recognition of the said four colleges was effected from

05.07.2002. It was further observed that if any selected

candidate from the above institution is holding certificate

issued on 05.07.2002 or thereafter, it shall not be given

effect to. It was further directed that the candidates so

selected shall be issued with the appointment orders

within a period of four weeks from the date of the order

duly terminating the services of the candidates who were

appointed on the basis of interim orders and not figuring

the select list prepared under the said order.

5. Aggrieved by the orders of this Court in

W.P.No.15107 of 2002, dated 11.09.2003, certain

candidates with intermediate qualification who were

appointed vide G.O.Ms.No.159, dated 16.05.2003,

approached the Hon'ble Supreme Court and the Hon'ble

Supreme Court granted interim orders that the petitioners

therein shall be allowed to continue in service vide orders

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dated 07.08.2006 by taking note of the exigency of

administration due to epidemic outburst the Hon'ble

Supreme Court vacated the orders of stay of appointments

of MPHA's (M) on contract basis. In view thereof,

G.O.Rt.No.1234 HM&FW dated 15.09.2006 was issued

permitting the Director of Health to fill up the vacancies

existing as on 15.09.2006 subject to outcome of the final

judgment of the Hon'ble Supreme Court. Accordingly,

certain candidates were appointed by the Government. By

orders dated 09.08.2011, the Hon'ble Supreme Court, in

its final decision confirmed the order passed by this Court

in W.P.No.15107 of 2002 and W.P.No.422 of 2003, dated

11.09.2003.

6. In order to implement the orders of the Hon'ble

Supreme Court, the Government of Andhra Pradesh (as it

then was) has issued G.O.Rt.No.273 HM&FW, dated

16.02.2012, directing the Director of Health to terminate

the appointment of the candidates with less merit and

appoint the candidates with more merit by re-drawing the

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select list. The merit list was re-drawn accordingly and the

services of the candidates with less merit were terminated.

The terminated candidates requested the Government to

continue their services and their request was referred to a

group of Ministers for consideration. The said group of

Ministers decided to reappoint all the terminated

candidates and accordingly, G.O.Rt.No.1207, dated

09.10.2013 was issued to take back all the candidates who

were terminated, into service.

7. On 11.10.2013, consequential orders were issued

reappointing all the terminated MPHA's back in duty.

Aggrieved by the same, persons with more merit than the

persons appointed under G.O.Rt.No.1207, dated

09.10.2013 filed O.A.No.7455 of 2013 and batch, for not

considering the merit list even after passing of final orders

by the Hon'ble Supreme Court. The said O.As., were

dismissed by the Tribunal and aggrieved, several Writ

Petitions were filed before this Court including

W.P.No.3178 of 2014. This Court granted interim

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suspension of G.O.Rt.No.1207, dated 09.10.2013. The

Government and the terminated candidates filed stay

vacate petition in WVMP.No.2120 of 2015 in W.P.No.3178

of 2014 and by order dated 15.09.2015, this Court

modified the interim orders by directing both the States

i.e., the States of Andhra Pradesh and Telangana to

appoint all those candidates who secured more marks than

the candidates who were appointed vide G.O.Rt.No.1207,

dated 09.10.2013. It is submitted that after bifurcation of

the State of Andhra Pradesh into the States of Andhra

Pradesh and Telangana, the Government of Andhra

Pradesh implemented the orders without any protest

appointing several MPHA's. Meanwhile, C.C.No.2038 of

2016 was filed before this Court i.e., the High Court for the

State of Telangana by certain candidates for non-

implementation of the orders of the High Court for the

States of Telangana and Andhra Pradesh in

WVMP.No.2120 of 2015 in W.P.No.3178 of 2014 and

consequently, two persons were appointed on 24.11.2017.

When the respondents did not take action for appointing

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other more meritorious candidates shown in the list, some

of the candidates filed W.P.No.26556 of 2017 and the said

writ petition was disposed of by orders dated 15.09.2015,

directing the respondents to consider the representations

of the petitioners therein and subsequently, after filing

Contempt Cases i.e., C.C.No.1296 of 2018 and

C.C.No.1680 of 2018, the respondents have issued orders

of appointment to the petitioners therein.

8. It is submitted that the petitioners in the present writ

petition are also similarly placed and also sought similar

directions from this Court and they accordingly filed

W.P.No.15441 of 2020. This Court, vide orders dated

28.12.2020, directed the respondents to consider the

representations of the petitioners therein in the light of the

orders of the Division Bench of this Court dated

15.09.2015 in WVMP.No.2120 of 2015. The Petitioners also

filed Contempt Case in C.C.No.486 of 2021 in

W.P.No.15441 of 2020. The Petitioners also filed Contempt

Case i.e., C.C.No.486 of 2021 in W.P.No.15441 of 2020 and

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C.C.No.4876 of 2021. Notices were ordered on 09.04.2021

and the respondents filed counter affidavits contending

that the representations of the petitioners have been

rejected vide orders dated 29.06.2021. Challenging the

rejection order dated 29.06.2021, the present writ petition

is filed.

9. Learned counsel for the petitioners submitted that

petitioners are possessing necessary qualifications for the

post of MPHA's and they are more meritorious than the

candidates who have been appointed vide G.O.Rt.No.1207

and in spite of the directions of this Court in W.P.No.15107

of 2002, the respondents are not appointing the petitioners

as MPHA's. It is submitted that the impugned order

rejecting the representation of the petitioners were passed

on the ground that they approached the Hon'ble Court

after lapse of nearly four years and that the other writ

petitions filed by the candidates appointed vide

G.O.Rt.No.1207, dated 09.10.2013 are pending on the file

of the Hon'ble High Court.

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10. Learned counsel for the petitioner, while reiterating

all the above submissions, submitted that similar issue

has already been considered by the Single Bench of the

Hon'ble Andhra Pradesh High Court in W.P.No.17665 of

2021 and others vide judgment dated 27.12.2021, and the

Court had issued following directions:

(i) The respondents shall consider cases of the Writ

Petitioners for appointment as MPHAs within a

period of four (04) weeks from the date of receipt of

copy of this order, in terms of Memo

No.7342/G2/2015-8, dated 24.05.2016 based on

their merit, if any candidate less meritorious than

the Writ Petitioners are appointed;

(ii) If any of the Writ Petitioners have not submitted

the relevant certificates/documents they should be

called upon to submit the same by granting

reasonable time of not less than four (04) weeks;

(iii) In the event of any genuine objection for

considering the case of any of the Writ Petitioners,

they shall be notified the same by issuing

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appropriate notice/communication and afforded an

opportunity before taking further action in the

matter.

He prays for similar relief in the present case also.

11. Learned Special Government Pleader appearing for

the Government, sought time to file counter. However,

since this case has long been pending and all the relevant

facts are already on record through various proceedings,

this Court, after hearing both the parties and with consent

of both the parties, is disposing of the writ petition at the

admission stage.

12. Learned counsel for the petitioner had filed a copy of

the affidavit filed by the 1st respondent before this Court in

W.P.No.3178 of 2014, wherein the respondents in para-19

thereof, had stated that the department is taking all steps

to appoint the meritorious candidates than candidates

covered by G.O.Rt.No.1207, dated 09.10.2013 towards

implementation of orders of this Court and since there are

less vacancies, the department needs to obtain approval of

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the Government to obtain sanction for the balance posts

and that if the department has not obtained favourable

orders from the Government, the department would be

compelled to disturb the candidates appointed vide

G.O.Rt.No.1207, dated 09.10.2013 in order to comply with

the orders of Hon'ble Court by identifying more meritorious

candidates with the available meritorious candidates when

compared to the candidates appointed vide

G.O.Rt.No.1207, dated 09.10.2013.

13. Learned counsel thus pointed out that though the

department has stated before this Court that they would

implement the orders of this Court dated 11.09.2003 in

W.P.No.15107 of 2002, they have now rejected the

representations of the petitioners on the ground of pending

Court Cases and that such orders are contrary to the

earlier orders of this Court.

14. Having regard to the rival contentions and the

material on record it is noticed that though the validity of

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reappointment of less meritorious candidates is pending

before this Court, the case of the candidates with merit

should not be defeated on the ground of laches,

particularly, when the delay is not attributable to them. It

is noticed that this Court in WVMP.No.2120 of 2015 in

W.P.No.3178 of 2014 had given a direction to prepare the

list of meritorious candidates and to appoint them

thereafter in the order of their merit. Therefore, it is not

necessary for all the candidates who are more meritorious

than the candidates who were appointed vide

G.O.Rt.No.1207, to approach the authorities for their

appointment. It is the bounden duty of the authorities to

prepare the list of the meritorious candidates and

implement the orders of this Court by issuing the

appointment orders accordingly by taking all the necessary

steps. But, the respondents herein are attributing the delay

to the petitioners herein in approaching the authorities.

Such an action cannot be sustained by any stretch of

imagination. The respondents are expected to discharge

their solemn duty of making appointments to Government

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posts strictly in accordance with merit without any further

nudge or prodding from the Courts. It is the legitimate

expectation of a citizen that his rights would be protected

and that the eligible and qualified meritorious candidates

would be offered appointment on the basis of their merit.

Therefore, on this ground alone, the impugned order

cannot be sustained.

15. As regards the submission of the learned Government

Pleader that there are no vacancies as of now and

therefore, the case of the petitioners cannot be considered,

the learned counsel for the petitioners has drawn the

attention of this Court to the order of the Division Bench of

this Court in W.P.No.26556 of 2017, wherein it is clearly

recorded that Government Pleader therein had stated that

there are 754 existing vacancies and after taking note of

the same only, the Division Bench had directed the

respondents to appoint the petitioners therein. It is not the

case of the Government that all the posts of MPHA's (M)

have been filled up thereafter. It is also noticed that the

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Government had issued Memo No.397/F1/2014, dated

24.11.2017, appointing the petitioners in C.C.No.2038 of

2016 by accommodating them in the existing vacancies

subject to final order passed in W.P.No.3178 of 2014 and

subject to fulfilment of the conditions stipulated in

G.O.Rt.No.273, dated 16.02.2012 and also following the

conditions for appointment of 'contract and outsourcing

candidates' under the G.O.Ms.No.14 Finance (HRM-I),

dated 19.02.2016. Similar orders have been passed with

regard to other candidates as well.

16. In view of the same, this Court deems it fit and

proper to set aside the impugned order dated 29.06.2021

and direct the respondents to issue appointment orders to

the petitioners herein within a period of four weeks from

the date of receipt of a copy of this order in the existing

vacancies or by creating super numerary posts if

necessary, if the petitioners are more meritorious than the

candidates appointed vide G.O.Rt.No.1207, dated

09.10.2013. Since the delay in appointments cannot be

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attributed to the petitioners herein, the candidates shall be

eligible for all consequential benefits such as notional

seniority from the date of appointment of the candidates

who were less meritorious to the petitioners herein and

such seniority shall also be counted for the purpose of

retirement benefits. However, the petitioners shall not be

entitled to back wages.

17. Accordingly, this writ petition is allowed. There shall

be no order as to costs.

18. Miscellaneous petitions, if any, pending in this Writ

Petition, shall stand closed.

                                 ____________________________
                                 JUSTICE P.MADHAVI DEVI
Dated:    .09.2022
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                                                       PMD,J
                                        W.P.No.36899 of 2021

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P.No.36899 of 2021

Dated: .09.2022

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