G.K. PUSHPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) All these petitions are taken up for consideration together as the questions of law involved are one and the same. For the purpose of convenience, the parties in these petitions would be referred to as they are arrayed in the applications before the Karnataka Administrative Tribunal. All the petitioners are diploma holders in Health Inspector course conducted by Para Medical Board, Directorate of Medical Education. They are qualified and eligible to be appointed to the post of Junior Health Assistant (Male) in the department of Health and Family Welfare Services. The second respondent-Directorate of Karnataka, Health and Family Welfare Department, issued a notification calling for posts of Junior Health Assistants (Male) and Junior Health Assistants (Female). The pay-scale for both these posts is Rs. 6250-12,000.

(2.) The petitioners applied to the post of Junior Health Assistants (Male). Their applications were duly received by respondent No. 2 and they also issued acknowledgement. These petitioners were not called for the interview. Only male candidates received the interview letters. The final selection list of 972 male candidates was published. Aggrieved by the same, the petitioners preferred applications before the Karnataka Administrative Tribunal for declaration that the act of the respondents in depriving the applicants from taking the interview pursuant to the notification dated 27.2.2009 is unconstitutional; for a direction to the respondents to call them for interview and to consider their case on merits for appointment to the post of Junior Health Assistants (male). It was contended that the action of the respondents is violative of Articles 14, 15 and 16 of the Constitution. It also violates Rule 9(1-B) of the Karnataka Civil Services (General Recruitment) Rules 1977 (for short hereinafter referred to as the Rules'), which provides for 30% of vacancies being reserved to be filled-up from among the women candidates.

(3.) After service of notice the respondents entered appearance, filed statement of objections contending that Rule 9(1-B) is not an absolute one, but on the other hand, the same is subject to any general instructions regarding the method for appointment. Reserving 30% of posts for women candidates is exempted in certain situations. The very nomenclature of the cadre i.e. the Junior Health Assistants (Male) itself implies that there can be no reservation for women candidates to the said cadre. In the impugned notification, posts of Junior Health Assistants (female) is notified for inviting applications from eligible candidates. In other words, in the Directorate of Health and Family Welfare Services there are two different and distinct cadres i.e. Junior Health Assistants (Male) and Junior Health Assistants (Female). Consequently no male candidate is eligible for being considered for the post of Junior Health Assistants (Female) vis--vis no female candidate is eligible for being considered for appointment to the post of Junior Health Assistants (Male). Therefore, 30% reservation for women for the post of Junior Health Assistants (Male) is not permissible. These Junior Health Assistants, both male and female, are recruited to be appointed to the sub-centres. The Ministry of Health and Family Welfare, Union of India has introduced certain welfare measures. One such scheme is multipurpose works scheme. Under the said scheme, one Health Worker (female) and one Health Worker (male) is required to be posted to each sub-centre. The Government of Karnataka has opened sub-centres for areas of 5,000 population and 3,000 population in hilly area. These sub-centres are under the control of Primary Health Centres which is a portion of an area which comprised population of 50,000. For the implementation of various national programmes i.e. health services it is necessary that every sub centre shall have Junior Health Assistants (Male) and Junior Health Assistants (Female). Keeping this in mind, under the C & R Rules two different and distinct cadres of Junior Health Assistants (Male) and Junior Health Assistants (Female) have been created. The Ministry of Health, Government of India has prescribed job responsibilities to the staff in the Primary Health Centres. In the process, they have prescribed job responsibilities of Health Worker Male and Female. A comparison of these job responsibilities of the said two cadres reveals that in respect of certain matters they were common and in respect of certain matters work is distinct and different. Though medical termination of pregnancy is shown as responsibility of both male and female, it is to be noted that the responsibilities of Male Health Assistants relating to medical termination of pregnancy is only to identify the women requiring help and to inform the same to the Junior Male Assistants (Female) and to educate the community on the availability of services for medical termination of pregnancy. The responsibility of Junior Health Assistants (Male) relating to medical termination of pregnancy is not only to identify women requiring help for medical termination of pregnancy, but also refer them to the nearest approved institution and inform the health worker (female) and also mainly to educate the community on the availability of services for medical termination of pregnancy. Though the medical termination of pregnancy looks similar, the nature of job involved is different and distinct. The job responsibilities relating to communicable diseases also look similar. The grievance is when the nomenclature of both the posts is one and the same and the pay-scale attached to both the posts is one and the same, the respondents cannot prescribe different qualification for these posts and therefore, is unsustainable and not correct. The settled legal position of law is that the prescription of qualification, creation of cadre etc., are all in the domain of an employer. Therefore, the applicants are not entitled to contend that the prescription of different qualifications for these posts as arbitrary and without any substance. Similarly, they have pointed out the syllabus for the courses which are required for the qualification of these posts, the nature of work they are expected to perform in the post, also the difference in the nature of work between these two posts and contended that their action is not arbitrary and therefore, they sought for dismissal of the writ petition.