Imtiyaz Hussain Parray and others vs State & Ors.

Issues which arise for determination in the present petitions are that whether a Government order could override the statutory rule, if so whether

a Male Multipurpose HealthWorker (MMPHW) is entitled to promotion to the post of Health Educator under the Jammu & Kashmir Health &

Medical (Subordinate) Services Recruitment Rules, 1992 (for short the Rules).

The petitioners in SWP No. 91/2008 are substantively holding the post of Male Multipurpose Health Worker in the pay scale of Rs.30504590.

They seek mandamus directing the respondents to forebear from considering an ineligible class of employees viz. Health Inspectors for the post of

Health Educator against the quota fixed for inservice candidates, alternately they seek their promotion and appointment to the post of Health

Educator.

Petitioners in SWP No. 315/08 are holding the posts of Health Inspectors. They state that under the rules they are entitled for promotion to the

post of Health Educators but the respondents have under an order dated 21.9.2007 directed promotion of private respondents vide order Nos.

283/NG of 2007, 784/NG of 2007, 285/NG of 2007, 286/NG of 2007, 287/NG. The private respondents being Male Multipurpose Health

Workers are not under the rules entitled to promotion to the post of Health Educators so the Government order is not in accordance with the

recruitment rules.

Heard. I have considered the matter.

The rules, which were framed vide SRO No. 20 of 1992 dated 24.2.1992, have constituted a service called as the Jammu & Kashmir Health &

Medical (Subordinate) Service. Under the schedule appended to the rules, the posts of Health Educator are to bellied as under:

Class

IV

Category

(f)

Designation

Health Educator

Grade

11502050

Qualification

i) Graduate

ii)

iii) Matric

iv)

Mode of Recruitment

i) 25% by direct recruitment

ii)

75% by promotion from class V category (b) having five years services in that category

Admittedly petitioners of SWP No. 315/08 are holding the posts of Health Inspectors as such they have quota of 75% fixed for promotion to

the post of Health Educator under the rules, therefore, they are eligible for promotion to the post of Health Educator.

In SWP No. 91/08 petitioners are admittedly holding the post of Male Multipurpose Health Worker. There is no provision under the rules for

their promotion to the post of Health Inspectors as such they are not entitled to any such consideration under the said rules.

These petitioners admit that under the rules they do not have any avenue for promotion to the post of Health Inspectors, They, however, state

that they represented to the Government for providing promotional avenues to them. The matter was considered by the Government and it was

proposed to make amendment in the recruitment rules by incorporating Male Multipurpose Health Workers as one of the feeding categories to the

post of Health Educator. In this behalf vide Government Order No. 631HME of 2007 dated 21.9.2007 the Government ordered that those Male

Multipurpose Health Workers (MMPHW) who have ten years experience, shall be treated as one of the feeding categories, to the post of Health

Educator in the pay scale of Rs. 50008000 on the basis of the sanctioned strength of each category. It is on the basis of this Government Order

that promotions of some of the MMPHW have been ordered which is impugned in SWP No. 315/08.

These facts are not in dispute. It is admitted that vide Government Order No. 631HME of 2007 dated 21.9.2007 the Government has ordered

that Male Multipurpose Health Worker shall form one of the feeding categories to the post of Health Educator but the issue raised by Mr.

Qayoom, the learned counsel for the petitioners (in SWP No. 315/2008) is that since the recruitment rules are still in force and no amendment has

been made in the same in this behalf promotion to the post of Health Educator is to be governed by the existing rules only. On this basis, urge the

petitioners, the private respondents would not become eligible for promotion to the post of health educator as such their promotion on the basis of

said Government Order is not in accordance with the recruitment rules. In support learned counsel has relied on Paluru Ramkrishnaiah v. Union of

India, AIR 1990 SC 167, Dr. Rajinder Singh v. State of Punjab (2001) 5 SCC 482, Virender Singh Hooda v. State of Haryana AIR 2005 SC

137 and Sk. Abdul Rashid v. State of J&K (2008) 1 SCC 722.

In Paluru Ramkrishnaiah v. Union of India, AIR 1990 SC 167 the Apex Court held that an executive instruction could make a provision only

with regard to service matter which was not covered by the rules and that such executive instructions could not override any provision of the rule

framed under Art. 309.

Similarly in Dr. Rajinder Singh v. State of Punjab, (2001) 5 SCC 482 the Supreme Court held that settled position of law is that no government

order, notification or circular can be a substitute to the statutory rules framed with the authority of law. Following any other course would be

disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional

scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing

that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course

in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution.

In Virender Singh Hooda v. State of Haryana AIR 2005 SC 137 it was held that a vested right cannot be taken away by legislature by way of

retrospective legislation.

Similarly in Sk. Abdul Rashid and Others v. State of J&K, (2008) 1 SCC 722 the Apex Court in a matter which was from this State, observed

that no executive order could be issued in derogation of the statutory rules far less a legislative Act.

Applying this settled legal position to the facts of the present case I find the promotion to the Post of Health Educator is to be governed by the

rules and as per the rules in vogue post of Health Inspectors only is the feeding category for it for the inservice candidates. The post of Male

Multipurpose Health Workers is not a feeding category for promotion to the post of Health Educator as such persons holding the post cannot be

considered for the post of Health Educator till the rules are amended suitably. This being the rule position Government Order No. 631HME of

2007 dated 21.9.2007 would not confer any right on the petitioners of SWP No. 91/08 or the private respondents of SWP No. 315/08 to get the

post of Health Educator. This order being an executive order would not override the provisions of the Act for which a proper amendment is

required. Till that is done promotion to the post of Health Educator are to be governed by the existing rules.

Respondents No. 11 to 36 in SWP No: 315 of 2008 have in their reply stated that the petitioner no: 1 was appointed as cook on temporary

basis on 6.2.1982 and that there is no rule providing promotion of a cook as health educator. They have further stated that under the rules a health

inspector can be considered for promotion to the higher post of health educator only if he has completed 5 years of service as health inspector.

The petitioners, according to them, have not completed their 5 years service as such are not eligible for promotions.

Mr. Manzoor appearing for there respondents has vehemently objected to the right of the petitioners to claim promotion on the basis of the

rules.

Similarly Mr. Ahmad, appearing for the petitioners in SWP No: 91 of 2008 would submit that the appointment of the private respondents in

the petition as health inspectors itself was not in accordance with the rules as such they cannot claim any promotion under the rules.

Both the learned counsels have referred to the draft rules which have been now framed by the respondents and which include the post of

MMPHW as the feeding category to the post of health educators.

On consideration I could not find force in the submissions for the reasons that MMPHW being not eligible for promotion to the post of health

educator have got no locus to stop consideration of the health inspectors for promotion. Appointment of the petitioners in SWP NO: 315 of 2008

as health inspectors is not under challenge. They being members of the services holding the said post are entitled to consideration provided they

fulfill other considerations as provided by the rules. It is for the respondents to see whether they fulfill these conditions.

Accordingly I find no merit in SWP No. 91/08.

I find due substance in the pleas taken and submissions made in SWP NO: 315/08 accordingly the same is allowed. The impugned orders in

petition SWP NO: 315 of 2008 i.e. orders No. 631HME of 2007 dated 21.9.2007, 283, 284, 285, 286, 287 & 288/NG of 2007 dated

20.12.2007 are set aside.

Order accordingly.