Sankari Bala Das and 12 Ors. v. the State of Assam and 3 Ors.

Gauhati HC3 Sept 2025WP(C)/2003/2022

Case brief

AI extract

What is this about?

ASHA Supervisor Facilitator engagement; Gazarikandi BPHC; National Health Mission Assam; merit list; indefeasible right to appointment; rules of the game changed mid-stream; Tej Prakash Pathak vs Rajasthan High Court [2024] 12 S.C.R. 28; revised norm 1 ASHA Supervisor : 20 ASHAs; D.O. Letter dated 20.02.2017; Article 226 mandamus; South Salmara Mankachar; fourth round litigation; writ petition dismissed; no costs.

What did the court decide?

Mere placement of a candidate's name in a merit list/select list confers no indefeasible or vested right to appointment; appointments remain guided by factors such as limited vacancies, changes in recruitment rules or norms, and subsequent administrative decisions. ¶¶120

Sankari Bala Das and 12 Ors. Vs the State of Assam… — Writ and Judicial Review | Gauhati HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the petitioners, whose names figure at serial nos. 16 onwards in the merit list of forty-two candidates prepared by the District Selection Committee for Gazarikandi BPHC, are entitled to be engaged as ASHA Supervisors [Facilitators] against the remaining posts out of the twenty-eight originally contemplated, notwithstanding the impugned Office Letter dated 25.01.2022 directing fresh engagement per the revised norm.

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Court's answer

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Ratio / Principle

If refusal to act further on a merit list, after making appointments strictly ranking-wise up to a certain position, is for valid and bona fide reasons, no mandamus is called for — as here, where the fifteen top-ranked candidates were engaged and the balance was not filled owing to the revised staffing norm.

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Key takeaways

The 'rules of the game' doctrine (Tej Prakash Pathak) is not attracted: there was no change in cut-off marks or eligibility criteria mid-stream; the selection process ran to a rank-wise merit list of forty-two and appointments were made according to rank up to the 15th; the revised norm of one ASHA Supervisor per twenty ASHAs, set by the Government of India as funding authority, was followed by NHM, Assam as implementing agency.ratio¶¶115
Engagement of ASHA Supervisors [Facilitators] is essentially dependent on the number of ASHAs to be mentored, guided and monitored, not merely on the number of advertised vacancies; the Ministry of Health & Family Welfare, Government of India, as framer of the programme and funding authority, may set and revise norms from time to time, and the fifteen engagements made in 2022 (against 289 ASHAs) conformed to the revised 1:20 norm conveyed by D.O. Letter dated 20.02.2017.ratio¶¶119

Detailed headnote1 paragraphs

Gauhati High Court (Hon'ble Mr. Justice Manish Choudhury, judgment & order dated 04-09-2025) in WP(C)/2003/2022: thirteen candidates placed at serial nos. 16-29 in a rank-wise merit list of forty-two candidates for engagement of ASHA Supervisors [Facilitators] at Gazarikandi BPHC (South Salmara Mankachar) sought a mandamus against an Office Letter dated 25.01.2022 of the Mission Director, NHM, Assam which cancelled the district-level selection of 17.05.2018 and directed fresh engagement per the revised Government of India norm of one ASHA Supervisor per twenty ASHAs; fifteen top-ranked candidates had already been engaged by Order dated 02.03.2022. This was the fourth round of litigation tracing to the Advertisement dated 22.10.2008. HELD: (i) mere placement in a merit list confers no indefeasible or vested right to appointment; (ii) the 'rules of the game' doctrine from Tej Prakash Pathak, [2024] 12 S.C.R. 28 is inapplicable as there was no change in cut-off marks or eligibility criteria mid-stream - the process culminated in a rank-wise merit list and appointments followed rank; (iii) engagement of ASHA Supervisors depends essentially on the number of ASHAs to be supervised under norms settable and revisable by the Ministry of Health & Family Welfare, Government of India as programme framer and funding authority, and the fifteen engagements conformed to the revised 1:20 norm (D.O. Letter dated 20.02.2017); (iv) refusal to act further on a merit list for valid and bona fide reasons attracts no mandamus. Writ petition dismissed; no order as to cost.

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GAHC010050762022

2025:GAU-AS:12228

THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2003/2022

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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

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2: ZOHURA KHATUN W/O- ABDUR ROSHID SK VILL- BHIMAPARA P.O- SOUTH SALMARA DIST- SOUTH SALMARA MANKACHAR PIN-783136

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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

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4: REHENA AHMED W/O- MD. CHAND MIAH VILL- CHANGAN CHAR P.O- PURAN DIARA. P.S- MANKACHAR DIST- SOUTH SALMARA MANKACHAR PIN-783135

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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

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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

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8: ZAHIDA KHANOM W/O- RAJIB ISLAM VILL- SONAR PARA P.O AND P.S- MANKACHAR DIST- SOUTH SALMARA MANKACHAR PIN-783131

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9: UMME QULSUM W/O- NURUL AHMED VILL- BHURA KATA P.O- R/M HAT. P.S- MANKACHAR DIST- SOUTH SALMARA MANKACHAR PIN-783131

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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

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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

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HEALTH AND FAMILY WELFARE DEPTT

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2:DEPUTY COMMISSIONER DIST- SOUTH SALMARA MANKACHAR SINGIMARI ASSAM

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3:JOINT DIRECTOR HEALTH SERVICES CUM MEMBER SECRETARY DISTRICT HEALTH SOCIETY SOUTH SALMARA MANKACHAR HAT SINGIMARI

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4:DISTRICT ASHA NODEL OFFICER DISTRICT -SOUTH SALMARA MANKACHAR HAT SINGIMARI PIN-783136

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5:MISSION DIRECTOR NATIONAL HEALTH MISSION ASSAM GUWAHATI - 05

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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

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HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER [ORAL]

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Date : 04-09-2025

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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-cumChairman, 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].

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The case has a history of prolonged litigations. This round of litigation is the fourth round.

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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.

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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].

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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.

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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.

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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.

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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 StateLevel, 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.

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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.

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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.

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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].

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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For ready reference, the relevant excerpts of the Office Letter dated 25.01.2022 are reproduced herein for ready reference :-

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OFFICE OF THE MISSION DIRECTOR

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NATIONAL HEALTH MISSION, ASSAM

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No. NHM-31017/1/2020-HRD-NHM/32948 Date: 25.01.2022 [ECF-177912]

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Sub : Recruitment of ASHA Supervisor in Gazarikandi BPHC

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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.

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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.

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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.

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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 .

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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.

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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.

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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.

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The facts and events leading to the issuance of the Office Letter dated 25.01.2022 have already been exposited above briefly.

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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 :-

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GOVT. OF ASSAM

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OFFICE OF THE DEPUTY COMMISSIONER SOUTH SALMARA MANKACHAR DISTRICT

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HATSINGIMARI

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No. HDD-1/ASHA Hatsingimari the 2^nd March/2022 Supervisor/2022/70

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ORDER

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In pursuance of approval the letter from the Mission Director, NHM, Assam vide No. NHM-31017/1/2020-HRDNHM/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.

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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.

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The engaged candidates are directed to Join at the Gazarikandi Block PHC not later than 3rd March, 2022.

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List of the engaged candidates are as follows:

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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

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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

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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 1^st rank to 15^th rank after the selection process.

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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.

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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.

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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

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merit list of forty-two candidates prepared by the District Selection Committee for Gazarikandi BPHC and engagement process was undertaken for twenty-eight posts.

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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.

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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,

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¶105

fifteen nos. of ASHA Supervisors [Facilitators] were engaged vide the Order dated 02.03.2022.

¶106

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.

¶107

The Constitution Bench in Tej Prakash Pathak [supra] framed the following points for analysis and adjudication :-

¶108

[a] When the recruitment process commences and comes to an end;

¶109

[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;

¶110

[c] Whether the decision in K. Manjusree [supra] is at variance with earlier precedents on the subject;

¶111

[d] Whether the above doctrine applies with equal strictness qua method or procedure for selection as it does qua eligibility criteria;

¶112

[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;

¶113

[f] Whether appointment could be denied by change in the eligibility criteria after the game is played.

¶114

Page 18 of 20

¶115

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 15^th rank were appointed. Admittedly, the petitioners’ rankings were from 16^th 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.

¶116

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.

¶117

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

¶118

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¶119

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.

¶120

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

¶121

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¶122

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.

¶123

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.

¶124

JUDGE

¶125

Comparing Assistant

Procedural history

How this case reached the court

AI extract

Order under challenge
Office Letter No. NHM-31017/1/2020-HRD-NHM/32948 dated 25.01.2022 [ECF-177912] of the Mission Director, NHM, Assam to respondent no. 2 (Chairman, District Health Society, South Salmara): the earlier district-level selection done as per letter dtd. 17.05.2018 cancelled based on the revised Government of India norm (D.O. No.10[36]/2017-NHM-1 dtd. 20/02/2017) of 1 ASHA Supervisor against 20 ASHAs; fresh engagement to be conducted following the new revised norms, erstwhile candidates also to be considered.¶¶70
Mission Director, National Health Mission, Assam · 25.01.2022
Prior proceeding
Advertisement dated 22.10.2008 published by the Mission Director, NRHM, Assam for engagement of ASHA Supervisors [Facilitators] throughout the State of Assam; more than 34,000 applications received, including from the present petitioners.¶¶40
Prior proceeding
Two-stage selection per Government of Assam decision dated 11.12.2008: District-level select list dated 20.05.2009 prepared for Gazarikandi BPHC and forwarded to the State-level; State-level merit list dated 06.10.2009 prepared with some names missing from, and others added to, the District-level list.¶¶44
Prior proceeding
First round: eleven aspirants challenged the State-level merit list in W.P.[C] no. 4401/2009, heard with W.P.[C] nos. 4127/2009, 3977/2009, 4360/2009 & 4957/2009; by common Judgment and Order dated 07.04.2010 the learned Single Judge set aside the select lists dated 20.05.2009 (District-level) and 06.10.2009 (State-level) for Gazarikandi BPHC and directed selection afresh from applicants to the Advertisement dated 22.10.2008; the other four writ petitions were dismissed.¶¶47
Prior proceeding
Few selected candidates carried the matter to the Division Bench in intra-court Writ Appeal no. 165/2010; dismissed by Order dated 31.07.2012, the learned Single Judge's findings not warranting interference.¶¶48
Prior proceeding
Second round: Advertisement dated 07.03.2015 by Mission Director, NHM for contractual engagement of ASHA Supervisors [Facilitators], indicating 28 posts for Gazarikandi BPHC, District Dhubri (emoluments Rs. 5,500/-); some 2008 applicants filed W.P.[C] no. 2863/2015, disposed of by Order dated 20.05.2015 directing the Mission Director, NHM to abide by the earlier decision while proceeding with the Advertisement.¶¶53
Prior proceeding
Pursuant to Office Letter dated 17.05.2018 of the Mission Director, NHM, the District-Level District Health Society, Dhubri interviewed only candidates who had responded to the Advertisement dated 22.10.2008 through a five-member Selection Committee; a rank-wise merit list of forty-two candidates was prepared for Gazarikandi BPHC, including the present petitioners.¶¶57
Prior proceeding
Third round: W.P.[C] no. 8738/2018 challenging a handwritten notice issued by the Selection Committee for Gazarikandi BPHC, disposed of by Order dated 31.01.2020; details not referred to in the present Order as the issue raised was found irrelevant.¶¶58
Prior proceeding
On an application by aggrieved persons, the District ASHA Nodal Officer, South Salmara Mankachar wrote to respondent no. 2 to take steps to appoint 29 ASHA Supervisors [Facilitators] from the merit list, there being 289 ASHA workers then working at Gazarikandi Block PHC (1:10 ratio per the Advertisement dated 22.10.2008).¶¶61
Prior proceeding
Order dated 02.03.2022 issued by respondent no. 2 (Deputy Commissioner, South Salmara Mankachar), in pursuance of approval vide NHM letter No. NHM-31017/1/2020-HRDNHM/22948/35601 dated 24.02.2022, engaging fifteen candidates as ASHA Supervisors under Gazarikandi Block PHC; comparison with the merit list shows the engaged candidates secured ranks 1 to 15, while the petitioners stand at serial nos. 26, 25, 28, 22, 17, 27, 23, 21, 29, 19, 20, 16 & 24.¶¶89

Sankari Bala Das and 12 Ors. v. the State of Assam and 3 Ors.

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Sankari Bala Das and 12 Ors. v. the State of Assam and 3 Ors.

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