Dr. J.C. Masiwal and Others vs State of Uttarakhand and Others

Barin Ghosh, C.J.—Petitioners were engaged on contractual basis from time to time to discharge the duties of Homeopathic Medical Officer. The present writ petition principally seeks conversion of such contractual engagement into regular engagement. An advertisement, published on 10th April, 2009, as it appears to be the contention of the Petitioners, stands in the way of such conversion. By that advertisement, response was sought for supplying vacancies in the posts of Homeopathic Medical Officers on regular basis. As a result, the said advertisement has also been challenged. On 22nd April, 2009, an interim order was passed by this Court to the effect that appointments, made on the basis of said advertisement, will be subject to final decision of the writ petition. The contention of the Petitioners is that the posts, in which they were contractually functioning, are substantive posts and the same were sought to be supplied by the said advertisement. It is their contention that in as much as they are entitled to the status, as has been sought for in the writ petition, advertisement should be struck down. Therefore, the question is whether Petitioners, who were engaged and continued to remain engaged on contractual basis, could, in law, ask for regularization. Petitioners are not relying on any decision of the State, either legislative or administrative, authorizing regularization of contractual employees as that of the Petitioners to regular employees of the State. In the absence of power to regularize, no one on behalf of the State can regularize the Petitioners and, accordingly, no mandamus can be issued in that regard.

Petitioners are contending that in the other Medical Department, namely, in the Ayurvedic Department, contractual Medical Officers have been given ad hoc status and, accordingly, Petitioners, at least, should be given such status. Learned Counsel for the State did not deny the fact that contractual Medical Officers in Ayurvedic Department have been given the status of ad hoc employees. In such view of the matter, we called upon the learned Counsel for the State to bring to our notice any Government decision, authorizing grant of such status. Learned Counsel for the State utterly failed to bring the same to our notice.

Learned Counsel for the Petitioners submitted that it would be discriminatory in the event similar people, working in the same Department and sailing almost in the same boat, are dealt with in a different manner. In as much as there is no conscious decision on the part of the State to give ad hoc status to contractual Ayurvedic Medical Officers, it appears to us, that grant thereof is not legal.

Accordingly, we cannot direct the Government to do another illegal act by granting similar status to the Petitioners herein, who are Homeopathic Medical Officers. However, having noticed that the State has taken an illegal step, if we do not take steps in regard thereto, that would tantamount to acting irresponsibly, while exercising plenary power of the people in exercise of jurisdiction under Article 226 of the Constitution of India. We, therefore, are required to pass appropriate order, which we will pass hereafter.

Having thus concluded, we find there is no substance in the challenge to the advertisement in question. We, accordingly, vacate the interim order. Having found that there is no legal right of the Petitioners, which can be enforced through a mandamus, we refuse to issue any mandamus. However, for the reasons already indicated above, we direct the State to take steps, as are required to be taken, in respect of giving such status to Ayurvedic Medical Officers, as mentioned above, without any authority to do so. In the event the State feels that it is not possible, it must be deemed that the State has already granted appropriate power to the Medical Department of the State to do what it did and, accordingly, Medical Department of the State shall also consider the case of the Petitioners for giving such status. The above exercise be completed by the State as quickly as possible, but not later than six months from the date of service of a copy of this order upon the Principal Secretary, Medical Health and Social Welfare, Government of Uttarakhand.

The writ petition is, accordingly, disposed of.