Heard Dr. L.P. Misra, Advocate assisted by Mr. Vijay Kumar Tripathi, learned counsel for the petitioners and Mr. Zafaryab Jilani, learned Additional Advocate General and Sri Mohd. Mansoor, learned Chief Standing Counsel for the opposite parties and perused the records.
The controversy involved in the present writ petition relates to the appointment on the post of Laboratory Assistants (Rural) in the State of U.P. against 721 posts for which permission was granted by the State Government by the Government Order dated 2.8.2011 and advertisement dated 9.9.2011 was issued. The date fixed for interview was however cancelled later on and now the posts in question are not being filled up.
It is submitted by learned counsel for the petitioners that the petitioners have completed training for Laboratory Assistants (Rural) in pursuance of the selection held for 728 vacant posts of Laboratory Assistant (Rural) vide advertisement dated 17.12.2008. In fact only 721 candidates including the petitioners were selected for six months' training. They have undergone the said training from 18 centres and it is meant only for those who are to be given appointment on the post of Laboratory Assistant (Rural) in the establishment of opposite parties.
The service conditions on the post of Laboratory Assistant (Rural) are governed by "U.P. Chikitsa Swasthya Evam Parivar Kalyan Vighag Prayogshala Sahayak (Gramaya) Sewa Niyamawali, 1999", which has been amended in the year 2001 vide "U.P. Medical Health and Family Welfare Department Laboratory Assistant (Rural) Service (First) Amendment Rules, 2001."
Dr. L.P.Misra, learned counsel for the petitioners submitted that opposite party no. 2-Director General, Medical & Health Services, U.P. Lucknow vide letter dated 15.6.2011 had informed the opposite party no. 1-Principal Secretary, Medical & Health Service, Government of U.P. Lucknow that there exist 769 vacancies on the post of Laboratory Assistant (Rural). For proper examination of patients at various Primary Health Centres and for implementation of National Health Programmes Laboratory Assistants play an important role. The department in the year 2010 has given six months' training to 721 candidates whose appointments at various Primay Health Centres in districts are contemplated. The State Government is, therefore, requested to grant approval/sanction for filling up the existing vacant posts of Laboratory Assistants (Rural) at various Primary Health Centres.
Considering the said letter the State Government vide Government Order dated 2.8.2011 had accorded sanction to fill up the existing vacancies and take appropriate action with regard to appointment on 721 posts of Laboratory Assistants (Rural). It is submitted that it was in pursuance of the said permission accorded by the State Government for appointment of 721 posts of Laboratory Assistant (Rural) that vide advertisement dated 9.9.2011 applications were invited from trained candidates for the post of Laboratory Assistants (Rural). The petitioners in response to the said advertisement had duly applied for the post in question and completed all the necessary formalities in this regard.
The opposite parties vide press notification dated 22.12.2011 published in daily newspaper "Hindustan" dated 24.12.2011 had informed the date of interview as 11.1.2012. It was further informed that interview letters are being sent through post and information in this regard may be obtained from Website also. However, when no interview letters were received by the petitioners they approached the Office of opposite party nos. 2 and 3 on 9.1.2012 then they came to know through the notice dated 6.1.2012 pasted on the notice board that the interviews which were scheduled to be held on 11.1.2012 have been postponed. The said notice, however, did not disclose any reason for postponement of interviews.
It is contended that the State Government vide Government Order dated 15.3.2012 has put a ban on recruitments on all Government posts. In pursuance thereof vide Government Order dated 16.3.2012 the opposite parties were directed to put ban on the recruitments on Government posts except the posts falling within the purview of the State Public Services Commission. However, the said ban would not be applicable to the posts for which the process of selection had commenced prior to issuance of the Government Orders dated 15.3.2012 and 16.3.2012.
It is also contended that in the present case the State Government has itself accorded permission to fill up the posts in question vide Government Order dated 2.8.2011 and in pursuance thereof the advertisement dated 9.9.2011 was issued and the process of selection had commenced. The Government Order dated 15.3.2012 is applicable prospectively and it cannot be made applicable retrospectively particularly relating to such posts for which the process of selection was already started and was in progress.
It is submitted that the State Government had taken a conscience decision by Government Order dated 2.8.2011 according permission to fill up the posts in question and the Government Order dated 2.8.2011 has not been cancelled, rescinded or superseded by any subsequent Government Order. The Government Order dated 15.3.2012 does not supersede the Government Order dated 2.8.2011.
Learned counsel for the petitioners elaborating his contention submitted that the question of applicability of Government Order dated 15.3.2012 has been considered in the case of Gyan Prakash & others Vs. State of U.P. & others (W.P.No. 2704 (S/S) of 2012) wherein vide judgment and order dated 28.8.2012, it has been held that the Government Order dated 15.3.2012 clearly means that a ban has been imposed on all those recruitments for which the process is to start. It does not mean that the recruitment for which the process was already started prior to issuance of the said Government Order shall also stop and no appointments be made.
Dr. L.P.Misra vehemently argued that change of Government cannot undo the earlier conscience decision taken by the previous Government and it is the Government which has to take work and the Government headed by one or the other political party shall not affect the decision taken by the previous Government. In this regard, learned counsel for the petitioner relied on the decision of the Supreme Court in the case of Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narasimha Reddy and others (2011) 9 Supreme Court Cases 286 (Para 40) wherein the Apex Court has observed that in the matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State" within the meaning of Article 12 of the Constitution, which continues to subsist.
It is submitted that even after issuance of the Government Order dated 15.3.2012 the opposite party no. 2 vide letter dated 29.5.2012 has informed the opposite party no. 1 that looking into the shortage of Laboratory Assistants (Rural) in Primary Health Centres at Block level, it is necessary to make appointment on the posts in question. It was requested that considering the priorities of the Government and in the interest of patients in the rural areas, permission to hold interview for the existing vacancies on the posts of Laboratory Assistants (Rural) be granted.
Dr. Misra elaborating his arguments further submitted that the State Government vide letter dated 19.6.2012 had asked the opposite party no. 2 to inform as to whether the posts of Laboratory Assistant (Rural) are necessary for providing the benefit of better medical facilities. In reply to the said letter the opposite party no. 2 vide letter dated 6.7.2012 has again informed that in order to provide proper medical facilities in far off rural areas the requirement of Laboratory Assistants (Rural) is beneficial in public interest.
Contention of learned counsel for the petitioners is that from the correspondences referred to hereinabove, it is very much clear that the opposite parties on the one hand themselves admitted that the posts in question shall be filled up as they are necessary in public interest for providing proper medical facilities in rural areas and on the other hand they are not taking any decision to hold the interview and make appointments on the posts in question. Moreover, it is also evident that the opposite parties have not put absolute ban on the recruitments on the posts in question but they have not taken any decision as yet to fill up the posts. The petitioners who have completed the required training and had applied in pursuance of the advertisement dated 9.9.2011 have been put in lurch due to inaction on the part of the opposite parties.
Learned Additional Advocate General appearing for the opposite parties, on the other hand, submitted that the judgment in the case of Gyan Prakash & others Vs. State of U.P. & others (Supra) is not applicable in the present case as in that case conditional appointment letters were already issued to the candidates and the question before the Court was with respect to sending those persons on training including holding of examination etc. for the purpose of posting on the post of Tube-Well Operators.
It is further submitted that in the advertisement dated 17.12.2008 on the basis of which the candidates were selected for sending them for six months' training for appointment on the post of Laboratory Assistant (Rural), itself provides that completion of training would not confer any right to seek appointment on any post under the State Government, as such the petitioners have no right to claim appointment on the posts in question.
It is contended that it is settled proposition of law that mere selection does not confer any vested right on the candidates. In the present case, the petitioners have not even been selected for the posts in question and as such unless there is any right conferred on them, no mandamus can be issued. The petitioners have got no right to claim appointment on the post in question and as such the Court cannot issue direction in the nature of mandamus to appoint the petitioners on the post in question. In support of his contention, learned Additional Advocate General has relied on the following judgments of the Apex Court:
(1) State of Andhra Pradesh and others Vs. D. Dastagiri & others (2003) 2 UPLBEC 1697 and another connected case (Para 4) wherein it has been observed as under:
"..............even if the selection process was complete and assuming that only select list was remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list............"
(2) In the case of The State of Haryana Vs. Subash Chander Marwaha and others (1974) 3 Supreme Court Cases 220, wherein in Para-10, the Court has observed as under:
"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking even in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect."
The Additional Advocate General further submitted that after issuance of Government Orders dated 15.3.2012 & 16.3.2012, subsequently by Government Order dated 14.5.2012, it was provided that a time bound proposal be sent for filling up the post which satisfy the criteria laid down in Para-2 of the Government Order dated 14.5.2012 so that necessary steps may be taken for relaxation of the Government Order dated 15.3.2012. The State Government vide letter dated 31.7.2012 has asked the opposite party no. 2 to inform as to how many persons are employed in the cadre of Laboratory Assistant (Rural) in the department and what has been their work accomplishment. In pursuance of the said letter opposite party no. 2 vide letter dated 7.8.2012 has sought information from all the Chief Medical Officers in the State and in this regard a reminder letter dated 31.8.2012 has been sent to all the Chief Medical Officers requiring them to give details about the work achievements/accomplishments of Laboratory Assistants (Rural). The information sought by opposite party no. 2 is still awaited and it is submitted that the State Government would take sometime to decide the viability and feasibility of the post in question and only after the said decision any date for holding interview for the post in question can be decided.
I have considered the submissions made by the parties' counsel and perused the records.
In order to settle the controversy the short question which requires consideration in the present writ petition is as to whether the Government Orders dated 15.3.2012 and 16.3.2012 would be applicable to the post in question for which the process of selection had already commenced prior to issuance of the said Government Orders and whether the State Government is justified to reconsider the matter with regard to appointment on the post in question in pursuance of Government Order dated 14.5.2012, especially when the State Government vide Government Order dated 2.8.2011 had already accorded permission to fill up the said post.
It is the admitted position between the parties that by means of letter dated 15.6.2011, Director General, Medical & Health Services, U.P. Lucknow had emphasized the importance of the posts in question for implementation of various national programmes, health programems and for providing effective medical facilities at various Primary Health Centres in rural areas. The State Government vide Government Order dated 2.8.2011 had accorded sanction/permission to fill up the existing 721 vacancies and to take appropriate steps for immediate appointment on the said post. It is also admitted that in pursuance of the said decision the advertisement dated 9.9.2011 was issued by the opposite parties inviting applications for appointment on 721 posts of Laboratory Assistants (Rural). Further the opposite parties had fixed the date for interview as 11.1.2012 which was subsequently cancelled vide notice dated 6.1.2012.
It is to be noted that the Government Order dated 2.8.2011 by which permission was granted to fill up the post in question has not been cancelled, revoked or superseded by any Government Order till date and for all practical purposes it is still operative. Once the permission to fill up existing vacant posts of Laboratory Assistants (Rural) has been granted by the State Government, there is no justification for the State to withhold the selection process and does not fill up the posts which are urgently required in public interest in order to provide proper medical facilities in far off rural areas.
Learned counsel for the opposite parties have not been able to show any reason or justification for not filling up the posts in question urgently. It has been submitted by learned State Counsels that since a ban has been imposed by the Government vide G.Os. dated 15.3.2012 and 16.3.2012 on all recruitments, in pursuance thereof vide Government Order dated 14.5.2012 the said ban on recruitments can be relaxed only in case the posts are required for fulfilling the priorities of State Government relating to developmental activities and for providing quality based civic amenities/public facilities to the general public in order to fulfill the important activities of any department etc. and for that purpose appropriate proposal within a time frame and phased manner to fill up the posts shall be sent to the personnel department of the Government for appropriate decision.
The stand of the State Government is that it is in pursuance of the said Government Order that the opposite party no. 2 has been asked to submit information regarding the work accomplishment/achievement etc. of the employees working on the posts of Laboratory Assistant (Rural). The said information is still awaited and unless and until appropriate decision is taken by the State Government no recruitments on the post in question can be made.
As observed above, it is noteworthy to mention here that the State Government by Government Order dated 2.8.2011 has already taken a decision to fill up the post in question and in pursuance thereof the advertisement dated 9.9.2011 was issued. As such this Court is of the view that there is no occasion for the opposite parties to reconsider the issue and decide as to whether appointment on the posts of Laboratory Assistants (Rural) are to be made or not.
So far as the applicability of Government Orders dated 15.3.2012 and 16.3.2012 whereby the ban was imposed on recruitments is concerned, it is to be observed that the said Government Orders clearly provide that they are prospective in nature and they do not provide that they will be applicable retrospectively on all such appointments for which the process of selection had started prior to issuance of the said Government Orders. The question of applicability of the Government Order dated 15.3.2012 was under consideration in the case of Gyan Prakash & others Vs. State of U.P. & others (Supra) wherein the Court has held as under:
"The Government Order dated 15.3.2012, copy of which is annexed as Annexure No. 8 to the writ petition, indicates that the State Government has imposed a ban on all recruitment except the post within the purview of Public Service Commission and appointments which are to be made in compliance of the Court's order. The said Government Order indicates that it is to be made applicable prospectively.
The Government Order dated 15.3.2012 as such clearly means that a ban has been imposed on all those recruitment for which the process is to start after the issuance of said Government Order. It does not mean that the recruitment for which process was already started prior to issuance of the said Government Order is also stopped and no appointments are to be made thereof.
In the present case, admittedly, the process of recruitment for the post in question was started much before issuance of the Government Order dated 15.3.2012 as such I am of the Considered opinion that on the basis of Government Order dated 15.3.2012 the opposite parties are not justified in withholding the practical examination for which date was fixed by letter dated 16.3.2012 and thereafter withheld the posting of petitioners on the post of Tube-Well Operators."
In the present case, the process of selection was started much prior to issuance of the Government Orders dated 15.3.2012 and 16.3.2012 and as such I am of the considered view that the law laid down by this Court in the case of Gyan Prakash & others Vs. State of U.P. & others (Supra) is fully applicable.
It is also to be noted that after issuance of the Government Order dated 15.3.2012, the opposite party no. 2 vide letter dated 29.5.2012 had informed the Government that considering the priorities of the Government and looking into the shortage of Laboratory Assistants (Rural) at Primary Health Centres in all the Development Blocks, appointment on the posts in question shall be made and, therefore, permission to hold interview shall be accorded at the earliest. It was again in pursuance of the letter dated 19.6.2012 of State Government that the opposite party no. 2 vide letter dated 6.7.2012 has informed that for improving the medical facilities in far off rural areas the utility of Laboratory Assistants (Rural) is in public interest.
Once the State Government has taken a decision to fill up the posts in question, it is duty bound to carry on and complete the said unfinished job may be of the previous Government. Mere change of Government cannot undo the decision taken by the previous Government. The Apex Court in the case of Andhra Pradesh Dairy Development Corporation Federation Vs. B. Narasimha Reddy and others (Supra) (Para 40) has observed as under:
"40. In the matter of the Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary to the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law". The Government has to rise above the nexus of vested interest and nepotism etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate."
So far as the contention of learned Additional Advocate General that the petitioners have no right to claim appointment as such no direction by way of mandamus can be issued is concerned, the Apex Court in the case of Mohd. Raisul Islam and others Vs. Gokul Mohan Hazarika and others (2010) 7 Supreme Court Cases 560, has observed that there can be no dispute that as a matter of policy the Government may take a conscious decision not to fill up vacancies for justifiable reasons, but at the same time, having started the process of selection under the unamended rules, it cannot take the stand that it still was entitled not to make appointments of persons from the selected candidates. Relevant Paragraph 37 on reproduction would read as under:
"37. There can be no dispute that as a matter of policy the Government may take a conscious decision not to fill up vacancies for justifiable reasons, but at the same time, having started a process of selection under the unamended Rules, it cannot take the stand that it still was entitled not to make appointments of persons from amongst the candidates selected in terms of the process initiated under the old Rules. In fact, in the instant case, the recommendation made by the APSC was submitted to the Government on 22.6.1986, before the amended Rules came into operation on 21.7.1986 whereby the quota system was discarded. In such a situation, in our view, the decision in K. Ramulu's case cannot be applied to the facts of this case."
In the present case, the opposite parties have failed to show any justifiable reason not to complete the process of selection which was commenced vide advertisement dated 9.9.2011.
As has been observed in the preceding paragraphs that the Government Order 16.3.2012 and the Government Order dated 14.5.2012, which were issued in pursuance of the Government Order dated 15.3.2012 would not be applicable in the present facts and circumstances of the case and no fresh exercise is required to be done in pursuance of Government Order dated 14.5.2012, as such it is held that the stand taken by the opposite parties not to fill up the posts in question at present is totally arbitrary, wrong and unsustainable in the eye of law.
For the facts and reasons given hereinabove, the writ petition is hereby allowed. The opposite parties are directed to complete the process for selection and appointment as Laboratory Assistants (Rural) for which approval was given by the State Government vide Government Order dated 2.8.2011 expeditiously, say, within a period of two months from the date a certified copy of this order is produced before them.
The writ petition is allowed.
Date: September 25, 2012 Arjun/-