Wednesday, February 8, 2023

Allahabad High Court refuses to stay recruitment of 5,628 health workers

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The Lucknow Bench of the Allahabad High Court has refused to stay the recruitment process for the posts of Health Workers (Female) in the state.

A single bench of Justice Suneet Kumar passed this order while hearing a petition filed by Anju Devi and 171 Others.

By the writ petition, petitioners have challenged the validity of the advertisement dated 15 December 2021, issued by the third respondent Uttar Pradesh Subordinate Service Selection Commission (UPSSSC), Lucknow, for filling up the post of Health Workers (Female).

The challenge, inter alia, is in respect of 5,628 posts of Health Worker (Female) which was earlier advertised on December 1, 2016 and as also the vacancies that have arisen prior to the enforcement of the Uttar Pradesh Medical, Health and Family Welfare Department Health Workers and Heath Supervisors (Male and Female), Non-Gazetted Service Rules, 2018 i.e before December 31, 2018.

It is urged that all these posts/vacancies of Health Workers (Female) be kept out of the selection pursuant to the impugned advertisement.

The anchor-sheet of the argument of the senior counsel for the petitioners rests on the premise that the selections on that many posts pertaining to Health Workers (Female) would be governed by the Uttar Pradesh Medical, Health and Family Welfare Department Health Workers and Health Supervisors (Male and Female) Service Rules, 1997 (for short ‘Rules, 1997’). The Rules 1997, admittedly, came to be superseded by the subsequent Rules, 2018, governing the selections of Health Workers (Female).

The Court observed that it is not being disputed by the counsel for the petitioners that the impugned advertisement has been issued after enactment of Rules, 2018, and the selections are to be governed under the Rules prevalent on the date of advertisement i.e Rules, 2018.

At this stage, the only question that arises is, as to whether, the selections in respect of the number of posts advertised or vacancies arising prior to December 31, 2018 can be directed to be filled under Rules, 1997. If the answer is in the affirmative, then the petitioners are entitled to interim relief.

The Court noted,

Attention of the Court has been drawn on the decision rendered by the Single Judge of the Court in Priyanka Shukla and others vs State of U.P and others. The issue before the Court was with regard to the advertisement issued in 2016 pertaining to 5628 posts of Health Worker (Female). The advertisement was under challenge and a further direction was sought that the respondents appoint the petitioners on the basis of their batch-wise seniority of training and also to relax the age limit for those candidates, who have become overage. The writ petition came to be allowed directing the respondents to consider the petitioner’s appointment on the basis of batch-wise seniority of training.

The operative portion of the order reads thus:

“In the result writ petitions succeed and are allowed. The respondents are directed to consider the petitioners for appointments on the posts of Health Worker (Female) as advertised on 01.12.2016, on the basis of their batch wise seniority of training.”

In this backdrop, it is urged by the counsel for the petitioners that mandamus issued by the Court is binding upon the State-respondents and it cannot be set at naught by the subsequent advertisement issued under the Rules, 2018, as vested right accrued to the petitioners. In other words, many posts of Health Workers (Female) and the vacancies that have occurred until the enactment of Rules, 2018 (31.12.2018) have to be considered for selection/appointment under the rules applicable at that point of time under Rules, 1997.

In rebuttal, counsel appearing for the State respondents has placed reliance on the decision rendered by the Division Bench of the Court in Reeta Singh and others vs State of UP and others.

The issue before the Court was that the Health Worker (Female) employed on contract basis in the State at different Community Health Centers, raised a challenge to the same advertisement 2016 for recruitment of 5628 posts of Health Worker (Female) on the premise that Rule-5 and Rule-8 of the Rules, 1997, is ultra vires of Article 14 and 16 of the Constitution of India. The Division Bench allowed the writ petitions declaring the Rules violative of Article 14 and 16 of the Constitution and quashed the advertisement.

It is submitted by the counsel for the respondent that in compliance and in pursuance to the Division Bench judgment, the State framed Rules, 2018 and thereafter, all the vacancies have been advertised.

The Court further noted that,

It is further urged that Part-V of the Rules, 2018 prescribes the procedure of recruitment. Rule 15(b) protects the interest of Health Workers working on contract basis by providing a weightage of maximum 15 marks having regard to the number of years they have put in service on contract.

In other words, it is submitted that the advertisement issued in 2016 for 5628 posts of Health Worker (Female) was quashed, therefore, the direction of the Single Judge of the Court to fill up the vacancies has been rendered of no consequence as the advertisement was quashed. The petitioners, therefore, cannot press that the 5628 posts be filled under the superseded Rules, 1997.

That apart on specific query, counsel for the petitioners fairly submitted that the vires of the Rules, 2018, is not under challenge, but the petitioners claim their right under the superseded Rules. Further, the petitioners have also not appeared in the written examination pursuant to the advertisement. It is further pointed out that the impugned advertisement was issued on 15 December 2021, and the written examination has also been conducted on 8 May 2022, by the Commission.

The petitioners have approached the Court at the fag end of the selections by filing the instant writ petition on 16 May 2022.

In the circumstances, at this belated stage, the interim relief cannot be pressed as the petitioners were fully aware of the advertisement and that the selections are to be made as per Rules, 2018, but for the reasons best known to them they did not knock the doors of the Court, the Court said

In this view of the matter the application for interim relief, at this stage, cannot be allowed, the Court further said while rejecting the stay application.

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