DURGA DASS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Durga Dass petitioner is serving as a District Family Planning Officer with the Himachal Pradesh State. In this petition he has alleged that the rules regarding the method of recruitment for the post of District Family Planning Officer in the Medical and Public Health Department, Himachal Pradesh, were published in the Rajpatra, Himachal Pradesh, on 19th October, 1968, and that the said rules were made under Article 309 of the Constitution of India. The copies of the notification and the rules are Annexures A and A -l respectively. It is alleged that according to these rules, the posts of District Family Planning Officers are to be filled - 50% by promotion and 50% by direct recruitment. According to the rules (copy Annexures A -l) promotions are to be made from amongst the Health Educators and Family Planning Social workers, having five years service in the grade.

(2.) The petitioner alleges that an advertisement has been published in The Tribune, dated the l0th July, 1972, wherein applications have been invited for filling up of seven temporary posts of District Family Planning Officers and the copy of this advertisement is placed as Annexure B. It is alleged by the petitioner that in the advertisement the qualifications for eligibility to the post of District Family Planning Officer are quite different from the qualifications which are laid down in the rules (copy Annexure A). It is further stated by the petitioner that according to the advertisement, Annexure B, all the vacancies are to be filled by direct recruitment and there is no vacancy which is to be filled by promotion. The grievance of the petitioner is that the rules which were framed under proviso to Article 309 of the Constitution could not be changed and that the advertisement (Annexure B) is not in consonance with the statutory rules. It is further stated that the petitioner is an eligible person who can be considered for appointment as a District Family Planning Officer by promotion in accordance with the rules and that the said advertisement, (Annexure B) is likely to affect the rights of the petitioner because no post, according to the said advertisement, is to be filled by promotion. It is alleged by the petitioner that the imposition of the conditions, contained in the advertisement ( Annexure B ) are discriminatory and violative of the fundamental rights and the same are also against the statutory rules. On these allegations the petitioner has prayed that a writ in the nature of certiorari be issued by which the qualifications for the appointment of District Family Planning Officers laid down in the notification (Annexure B), which are contrary to the statutory rules, be quashed and that the respondent be directed to fill up the posts in accordance with the statutory rules, i. e. Annexure A -l.

(3.) A return was filed to this writ petition by the respondent and it was alleged that the Government of India, Ministry of Health, Family Planning and Urban Development, have prescribed the said pattern for implementation of family planning programme throughout the country and that in accordance with the instructions, dated 29th October, 1966, issued to all State Governments/Union Territories, the criteria for filling up the posts of District Family Planning Officers has been laid down. The copy of the instructions, dated 29th October, 1966, is Annexure RA. It is further stated that Himachal Pradesh Government has agreed to this scheme and for implementation of this scheme the posts of District Family Planning Officers have been created, vide Annexure RB. It is further stated that the posts of District Family Planning Officers under the new pattern are to be manned by the Medical Officers in accordance with the instructions of the Government of India, Ministry of Health, and, therefore, non - Medical Officer have no claim or right for being appointed as District Family Planning Officers and the old pattern is to be replaced in accordance with the pattern approved by the Government of India, Ministry of Health. It is further stated that the petitioner is working as a District Family Planning Officer on a purely stop -gap arrangement with effect from 21st August, 1970. It is also stated that the rules for recruitment of District Family Planning Officers published in the Rajpatra of the year 1968 under Article 309 of the Constitution pertained to non -Medical posts which were in existence prior to implementation of the new pattern approved by the Government of India, and as such the same are not applicable for filling up the present post of District Family Planning Officers for which the pay scale is quite different and which posts are to be manned by Medical Officers Class I. It is also stated that the old posts of District Family Planning Officers (who were non -Medical Officers) will be abolished after the appointment of Medical Officers of Class I iu the new scale. It is also stated that the petitioner is junior most Health Educator and was only allowed to work as a District Family Planning Officer on the old pattern as a purely stop -gap arrangement, which appointment has been discontinued from 14th August 1972. On these grounds it is alleged that the petitioner has no claim and the writ petition should be dismissed.