The challenge to health-department service proceedings was dismissed as covered by an earlier decision. The court followed that decision, made no order as to costs and closed pending miscellaneous petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD (Special Original J urisdiction)
FRIDAY ,THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TWENTYTWO
PRESENT
THE HONOURABLE SRI JUSTICE ABHINANDKUMAR SHAVILI AND THE HONOURABLE SRI JUSTICE N.V.SHRAVANKUMAR
WRIT PETITION NO: 8236 OF 2009
Between:
V. Laxmana Chary,, S/o. Janardhana Chary A.P.lM.O.Primary HealthCenter, Dandumlaram, [Vlahaboobnagar District.
...PETITIONER
AI,iD
1 The Government of Andhra Pradesh, Rep. byits Principal SecretaryHealth, Medical and Family Welfare Department SecretariatBuildings, A.P. Hyderabad.-22
...RESPONDENTS
Petition under Article 226 of the Constitution of lndiapraying thatin the circumstances stated in the affidavit filed therewith, theHigh Courtmay be pleased to issue a writ order or direction particularly one in the nature of Writ of Certiorari after calling for the recordspertaining to the orderin OA.No.B 16'l/2008 df. 1714109 on the file of the Hon'ble Andhra Pradesh AdministrativeTribunal , Hyderabad and quash the same and consequently declarethat the Proceedings isused in Rc No. 1948/A2IRDH/2008 dt.22-9-2008 by the 3rdrespondentsare illegal, arbitrary and violative of article 14 and 16 of theconstitutionof lndiaand set aside the same.
l.A. NO: 1 OF 2009(WPMP. NO: 10763 OF 2009)
Petition under Section 151 CPCpraying that in the circumstances statedin the affidavit filed in support of thepetition, the High Courtmay be pleasedto suspend the order in OA,No.B161/2008 dt: 17-4-2009, ConsequentialOrder based on dismissal of O.A, and consequentialprocds. ln Rc No. 1948/A2IRDH/2008dt. 22-9-2008 by the 3rd respondentpending disposal of the writpetition.
Counsel for the Petitioner:SRl. N VIJENDER REDDY
Counsel for the Respondents: GP FOR SERVICES I The Court made the following:
.4 o'
IION'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
and
TtON'BLE SRI JTJSTICE N,V.SI{RAVAN KUMATT
\V.P.No.8216 of 2009
ORDER; (Per Hon'ble SriJustice Abhinand Kumat Shavili)
\X/her.r thc mattcr is taken up lor hearing, learned counsel
appeariflg lor the petiuoner fairly conceded that the issue
involved in this wtit petition is squarely covered by the order datcd 29.01.2014 passed by this Court in W.P.No.7554 of 2009.
Follor.ving thc ordct dared 29.04.2014 in !7.P.No.7554 of 2009 and lor the rcasons alike, this Writ Petition is also dismissecl. No costs.
t{iscellaneous petirions pendlng, i[ any, shall stand closed.
ASSrsii{ir%;5EFR[A ,/TRUE coPY/', ' ''''" flt= ,eEiroi
To, 1 One CC toSRI N VIJENDERREDDY Ad-vocate [OPUC] 2. Twoccs to GP ron sd[v-iclil"rrigrtCourt foi the state of relansana TOUTI
, . TwoCD CoPies' 4 order dated2sto4t2o14in wP'No 7554 or 200e ) liE^:rTiien:"JJo, "t
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HIGH COURT
DAf ED:2210712022
ORDER
WP.No.8236 of 2009
I T$i
Dismissing the WP Without costs.
lo @anu(,l\w
HONOURABLE SRIJUSTICER. SUBHASHREDDY
AND
HONOURABLE SRIJUSTICEA. SHANKAR NARAYANA
W.P. N os.20413. 2040.20541.20 543.20546, 641 AND 96 0F 2008: 7 7 10 7812 781 7 3 7855. 7 7507 17 79 'l 21 7 2 7 8183. 8'186, 7549.9160.28732.A1 81 . 8182,81 84. 8185, 243.8571. 8667 AND 8668 of 2009.
COMMON ORDEB:(Per Hon'blesri JusticeA ShankarNaravana)
This batch of writpetitionscan be broadly classified into two different setsfor conveniencesake.
18-07-2008, in O.A.No.1883 ot 2007 and nine other O.As.,passed bythe A.P. Administrative Tribunal (for brevity,"Tribunal"),whereby and whereunderthe request of thepetitioners herein was rejectedfor implementation of the orderspassed by the Government /Heads of Departments / otherappointing authorities,as Assistant Para Medical Officers(for brevity, "APMOs"). The Tribunal while dismissing theO.As., also allowedvacate
t,'
some of the petitioners herein.
appropriate torefer toa pertinent fact in the relief portion that being, thepetitionersnot only sought to set aside the order, dated 18-07-2008,in O.A. No.3774 of 2007 and batch, but also sought furtherrelief to declare that the consequential MemoNo.1003/F2l2007,HM & FW (F2) Department, dated 12-09-2008,issued bythe Government as illegaland void.
We adverted to this relieffor the reason we opine that it falls beyond the scopeof the relief to set aside the common order, dated
18-07-2008,passed by theTribunalin O.A. No.1883 of 2OO7 and batch.
,that lead to filing W.P. No.20413 of 2008 constituting one of the writpetitionsin theformer batch.
regularised with effect trom 24-05-1993, 24-05-1993 and 28-05-1998 respectively. They, even completed the Para lVedical Worker training course, which is a pre-requisite course for promotion as APMO and all three of them were well qualified and better equipped for promotion. Earlier, the post of APMO was called Non-Medical Assistant, which post was governed by the Ad hoc Rules (for brevity, "the Rules") issued by G.O. tr/s. No.395, dated 30-061981, called as Non Medical Assistants in the National Leprosy Control Programme Service Rules. Rule 3 thereof provides for appointment to the said post either by direct recruitment or by promotion of qualified service candidates belonging to A.P. Medical and Public Health Subordinate Services or A.P. Ministerial Services. The 'qualificationsfor promotionare prescribed underRule4 and one must have passed S.S.L.C. equivalent examinations and also must possess a certificate of six months training in leprosy. They state that it was subsequently reduced to four months.
respondent No.3, despite receipt of the said representations did not foruvard them to respondent No.2 with necessary remarks for consideration of their case for promotion. That inaction of respondent No.3, the petitioners claimed, compelled them to approach the Tribunal seeking directions to promote them as APMOS. ln some of the O.As. of the said batch, thepetitioners' claim is, that despite issuance of the orders, since respondent Nos.2 and 3 did not promote them, they were also compelled to approach the Tribunal for the very same relief.
(3) that in none of the orders issued by the Government including G.O. Rt. No.39, Health, Medical and Family Welfare (F) Department, dated 10-01-2007, the saidpolicy
service rules make provisions for all individuals for promotion or appointment by transfer to the post of APIVO, once as a matter of policy, a decision was taken to integrate these posts with General Health Care Scheme and also not to fill up the vacant posts, none has right to claim promotions/appointment by transfers to the posts which were abolished by the Government in exercise of their powers and
further observing that it was nobody's case that the government do not have the power to abolish the posts and it is the prerogative of the government in the process of rationalisation of service, to re-order its departments by creation of new posts, abolition of existing posts, conversion of existing posts and re-deployment from one category to other category in order to achieve the objectives of the scheme by rationalisation, and, therefore, neither the petitioners nor any other individuals can claim any rights to be considered APMO in respect of any posts which have been abolished by virtue of the policy of the government laid down in G.O. Ms. No.637, dated 03-112003, dismissed the applications.
1 1 . Turning to W.P. No.7812 of 2009 and batch, the Tribunal, basing on the common order, dated 18-07-200g, in O.A. No.l8B3 ol 2007 and batch, after extracting the relevant observations therein,_observing that the
out and under such circumstances, the petitioners seeking their continuance as ApMOs will be against the policy decision of the Government and hording that in exercise of its power of judicial review cannot interfere with the policy decision of the Government and any attempt in that direction would amount to making in_roads into the executive's domain and thereby dismissed the O.As.
\
05-05-2005 and 08-10-2005. Thus, they were considered for promotion and there was no lapse on their part and they were discharging their duties to the best of their ability and their services were also regularised and probation was declared in the said post. When some other similarly situated persons asked to be appointed as APtt/Os basing on the Government Memos, their request was not considered, and, therefore, they filed O.A. No.18B3 of 2007 and batch before the Tribunal and obtained interim orders and were promoted, but the said batch of cases were dismissed by the Tribunal on 18-072008, mainly relying on G.O. Ms. No.637, Health lVledical & Family Welfare (G1) Department, dated 03-11-2003, which they challenged by filing W.P. Nos.20413 of 2008 and batch.
rarhothar tha nnrnrnnn nrrlorc irnnrrnnod in lhic hatnh nf rrrrrit
-/
G.P. for Services -I for the respondent -Government, andperused thematerial on record.
'l 7. The submissions of the learned Government Pleader are that theintegration of employeesworking in National LeprosyEradication Programmeinto the General Health Care System byphasing out the posts of APMOs by issuance of G.O.Ms. No.637and furlher directions contained in G.O.lr/s. No.20 is based on the National Policy and whenkept in view, the objectiveof such rationalisation, itfalls within the ambit of executive
-tlo'
disregard to the very policy contained in the said G.Os., and, therefore, the common orders passed by the Tribunal, which are under challenge, do not warrant any interference.
PO!NT:
19" Sub-paragraph (v) envisages that Leprosy Eradication Programme shall be integrated with the General Health Services and the staff under the Leprosy Eradication Programme shall be
re-deployed and certain posts as required re-designated as part of the proposed rationalisation without involving
21 . It is pertinent to note at thisjuncture itself that under the G.O. even the staff underfilarialand malaria schemes shall also be similarlyrationalised by re- deploymenVre-designation without additionalfinancial implications toprovide forgreater accountabilityand effective andpreventive outreachservices.Certain other incidental directions weregivenin the said G.O.including budgetary allocations to meet the salarycommitmentof the downgraded stafffor the balancefinancial year 2003- 04 indicating immediatemeasures tobe taken.
:*;!
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under NLEP with General Health Care System and accordingly, ordered for integration of the services of the staff in NLEP with General Health Care System. ln Paragraph No.6 of the G.O., it is stated that the details of the deployment in the different Heads of Departments is as at
annexure - l, job functions of the different cadres is as at annexure - ll and the requirements in different Heads of Departments is as at annexure - lll , annexed thereto. The reasons that lead to issuance of G.O. Ms. Nos.637 and 20 gain significance in assessing the rights claimed by the petitioners herein. The Government of lndia, after obtaining memorandum of understanding from all the State Governments / Union Territories have entered into an agreement with the World Bank for implementation of National Leprosy Eradication Programme and prepared Project lmplementation Plan for Phase - ll of NLEP. The main objective is to maintain and achieve elimination of leprosy by the end of 2003 and also to rapidly and effectively integrate vertical services under Leprosy with General Health Side. After review of the progress of the leprosy programme in our State by the then Special Secretary, the Government of lndia with the Director of Health, Andhra Pradesh State Leprosy Officer and Deputy l-'lirontnr Gonoral /l \ nn 1A-1 i _2nni it rrrrac r{anirlar{ that
Care. The guidelines were suggestedby several service associations for integration ofthe staff under NLEPwith General Health Side. Acommitteeheaded by the Commissioner of FamilyWelfare, A.P., with other members was constituted to considerintegration at every level of care and submitrecommendationsto the Government by also consideringfunctional integration of RNTCP Programme withGeneral Health Servicesto ensure involvement andaccountabilityat every level. The Committee has madecerlain recommendationsand accepting the said recommendations,G.O. Ms. No.20, dated 20-01-2004, was issued.The Governmentfinally directed the Director ofHealth, A.P., Hyderabad,to take necessary action for relief of thestaff along with budget and consequently theother Heads of Departmentsshall admit them to duty.
Health, l/edical and Family Welfare (F2) Department, dated 05-05-2005, permitted the Regional Director of ti/edicaland Health Services, Zone - Vl, Hyderabad, to fill up the promotional post of APIVO (NIVA) for appointment by transfer / promotion by following Rules 3 and 4(a) of G.O. Ms. No.395, dated 30-06-l98'1, and other relevant Government Orders in force according to vacancy position.
15-11-2005, respondent No.1 referring to G.O. tr/s. No.20, dated
20-01 -2004, whereunder it was agreed for rationalisation of existing staff and posts of restationing redeployment cr rhiont tn tha nnnditinnc /e\ n^ nar^, nraatinn nf nnclc i/h\
7
to take necessary action duly following the said conditions scrupulously.
10-01-2007, by relaxing the Rules issued in G.O. Ms. No.395, and requested the Regional Director, Ir/edicaland Health Services, Zone - Vl, Hyderabad to appoint Smt. lVlumtaz Ahmed, Attender, LCU, Bhongir, Nalgonda District on transfer/promotion as API\zlO.
\
transfer/promotion by following Rules 3 and 4(a) of G.O. li/s. No.395, dated 30-06-1981, also asked him to follow other relevant Government Orders in force according to vacancy position. ln the presence of such a direction to refer to other relevant Government Orders, still, existence of G.O. lVs. No.637, dated
03-1 1-2003, was not brought to the notice of respondent No.1.
ln fact, lVlemo No.1351, dated 05-05-2005, was first in point of time, whereunder such a permission was accorded by respondent No.1.
Had the existence of G.O. Ms. No.637, dated 03-11-2003 was brought to the notice of respondent No.1, the promotion to fill up the promotional post of APIMOS for 'appointment by transfer/promotionas per the rules in G.O. Ms. No.395, dated 30-06-1981, as ordered in the said memo would have been annulled. The same is the case even in regard to [Vemo No..1351, dated 08-'10-2005. lt is also peftinent to mention that through lt/emo No.22144, dated 15-11-2005, respondent No.1 issued instructions to the Director of Health, Hyderabad, to follow the conditions mentioned therein, which were incorporated basing on G.O. IVs. No.20, dated 20-01 -2004, scrupulously. Despite issuance of that memo, the subordinate authorities, Director, Regional Director, and the District lr/edical Officer
{
08-1 0-2005 for taking necessary action to withdraw the permission and promotions accorded there under. Even in Memo No.21859, dated 06-01-2007 and in G.O. Rt. No.39, dated
10-01-2007, surprisingly, there was no reference to either G.O. Ms. No.637, dated 03-'11-2003 or G.O. tt/s. No.20, dated 20-01-2004 and the inference that has to be invariably drawn is that purposely they were not mentioned, apprehending that they would come in the way of issuance of the tVemos and G.O. Rt No.39, despite there being rationalisation scheme directed to be implemented by the'orOJrs in G.O. Ms. No.637 and the subsequent G.O. Ms. No.20 to phase out the posts of APMOs and not to fill them.
,r.;,
issuance of G.O. Rt. No.39
(1 ) the promotions are in accordance with ad-hoc rules contemplated by G.O. tt/s. No.395, (2) even the services of the petitioners were also regularised, (3) probation was also declared, (4) the six years P.P.P. was also extended to them and (5) they all fall in cadre strength and, therefore, the orders impugned are liable to be set aside by quashing Memo No.1003/F2l2007, dated 12-09-2008, they require consideration in the light of the decisions rendered by the Hon'ble Apex Court on which reliance was placed by the learned Government Pleader.
M. Ramanatha Pillai v. The State of Kerala and
anothelil wherein it was hetd in paragraph No.36 that the abolition of post is not personal penalty against the Government Servant and the abolition of post is an executive policy decision and whether after abolition of the post the Government Servant, who was holding the
Government becausethe abolitionof post does not con{er on the personholdingthe abolishedpost any right to hold thepost.
PharmaceuticalsLimitedH,in the context of prerogative of the Government to createor abolish the posls held in paragraph No.37 thus:
t
"37. Creation and abolition ofposts and regularisation arepurely executivefunctions vide P.L). Joshiv. AccountantGeneral ((2003) 2 scc 632i 2oo3 scc(L&S) 191). Hence, the court cannotcreate a post where none exists. Also,we cannot issue any direction to absorb therespondentsor continue themin service, orpay them salariesof regular employees, as theseare purelyexecutive tunctions. ThisCourt cannot arrogate to itself thepowers ofthe executive or legislature' There is broad separationof powersunder the Constitution, andthe judiciary, too, must know its limits."
.-. I .*1'
ottrersH, theHon'bleApex Court while observing that creation andabolition ofposts, formationand structuring/restructuringof cadres, prescribing lhe source and mode ofrecruitmentand qualifications and criteria of
\
review, held in paragraph Nos.59 and 60, thus:
\
"59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode ofjudicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over thejudgment of the employer and ordain that a particular post or number of pgsts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides.
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ir
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(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;
(c) creation and abolition of posts is a matter of government policy and every sovereign Government has this power in the interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all decided by the Government in the interest of administration and general public;
(e) the court would be the least competent in the face of scanty material to decide whether the Governme'nt acted honestly in creating a post or refusing to create a post or its decision suffers from mala fldes, legal or factual;
I
(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted."
2003 and 2004, respectively, would certainly,reflect that they were made with mala fideintention to make wrongful gain and the consequence was, the authoritiesin hierarchy from the level of DistrictlVledical Officerand upwards were entrapped for thereasons not known and the outcome was issuance of thefvlemosand G.O. Rt. No.39 referred to above in fragrantviolation of the policy envisaged by G.O. tt/s. No.637 andissuanceof further orders in G.O. Ms. No.20.
"6. The inter se dispute between the parties in the present appeals originated when the {act of successful eradication oi leprosy by the national Leprosy Eradication Programme (NLEP) led to the integration of the employees working in the said Scheme
7
ql -t
Scheme took place vide GOtt/s No.320, Health and Family Welfare (G-1) Department dated 27-6-1997.
"The National Leprosy Eradication Programme is in operation in Tamil Nadu trom 1955. With the introduction of the tUulti_Drug Therapy (l\4DD comprising these drugs: DAPSONE, RIFAMPCIN and CLoFAZIMINE, incidence of leprosy has been brought down considerably. Tamil Nadu has done a commendable work in the Leprosy Control Programme over the years. The prevalence of leprosy in Tamil Nadu was 11g per 10,000 in 1983 which has been reduced to 7 per 10,000.
The reduction in prevalence rate for the last two years is not very significant. Recently, lndia hosted an lnternational Meet on Eradication of Leprosy and the prime Minister has set a goal that the leprosy should be eradicated from lndia by 2000 A.D. The IWHO has also taken similar efforts globally. The eradication of leprosy means bringing down the prevalence rate to 1 per 10,000.',
B. Thus, the Government of lndia in 199091 had suggested integration of leprosy services. lt was felt that in order to sustain leprosy services at the operational level, its integration with the public health services will be desirable. lntegration would not result in abolition of special services. On the contrary, specialised component will nnnlinr ro ln ha rr,^;l^l.l^ ...:.t-:-
services and research. The purpose of this integration would be to involve the leprosy field staff in public health work and Health lnspectors in the leprosy work, so that the Leprosy Inspector will cover a population of 5000 to 10,000 as against 25,000 which was berng covered at that time by the Leprosy lnspectors.
The Government of Tamil Nadu had also upon considering, for quite some time, the question of integrating the leprosy services with Multipurpose Health Workers Scheme, under the Primary Health Care Services, constituted a committee by
GOIt/s No.1705 dated 18-12-1996 to go into the various aspects of integration and submit a report. The recommendations submitted by the aforesaid'Committee were examined by the Government and accepted with some modif ications.
The G.O. made elaborate provisions with regard to: (r) the administrative control of the National Leprosy Eradication Programme, which was to be vested with the Director of Public Health and Preventive lr/edicine, who was to be responsible for the implementation of the National Leprosy Eradication Programme activities in the State. At the district level, the Deputy Director of Medical Services (Leprosy) would be the in-charge of the hospital based units, and would be the Programme Officer, assisted by the Deputy Director(Health Services). and(it] the salarv
the existing allotment under Demand 18."
The Apex Couft also emphasised the extent to which the Courts can interfere in the matters relating to fusion of employees in paragraph No.69 thus:
"We may also mention here about the extent of interference of this Court in matters relating to integration or fusion of employees. This Court held in Officers' Assn. case [(2007)10 SCC 684 :(2008) 1 SCC(L&S) 1351 that the matter of integration or the fusion of employees, being one of policy, could not have been challenged by the employees unless the said decision was arbitrary, unreasonable'or capricious. And as noticed earlier, that none of the government orders vide which integration was effectuated, suffers from any of the aforesaid irregularities. The High Court has merely undone the injustice done to the respondents. We are, therefore, not inclined to interfere in the well-reasoned order of the Division Bench of the High Court."
&,
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R. SUBHASH REDDY, J
A. SHANKAR NARAYANA, J
Apri129,2014. PV
u_l (1973) 2 SCC 650
1 issue framed by the court
Was the challenge to the health-department service proceedings covered by the earlier decision in W.P.No.7554 of 2009?
Colour shows how this judgement treated each authority
W.P.No.7554 of 2009Followed¶27
V. Laxmana Chary
The Government of Andhra Pradesh
The Director of Health
The Regional Director, [/edical and Health, Services, Hyderabad.
The District IMedical and Health Officer, Ranga Reddy District.
t\/edical Officer, P.H.C. Dandumylaram,, Ranga Reddy District.
ABHINAND KUMAR SHAVILI
N.V.SHRAVAN KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
