THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) WP(C) Nos. 835/2009 and 2465/2009

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1 THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) WP(C) Nos. 835/2009 and 2465/2009 (I) WP(C) No.835/2009 Smt. Lakhimi Hazarika, W/O Shri Madan Hazarika, Village-No.2 Kawaimari Gohain Gaon, P.O.-Kawaimari, PS-Teok, Dist.-Jorhat, Assam. -Versus- Petitioner. 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Health and Family Welfare Department, Dispur, Guwahati The Mission Director, National Rural Health Mission, House No.16, Janapath, Opposite K.V. Khanapara, Guwahati The Director of Health Services, Hengarabari, Guwahati Joint-Director of Health Services, Jorhat, PO & PS-Jorhat, Assam. 5. Sub-Divisional Health Officer, Kakajan, PO & PS-Kakajan, Dist.-Jorhat, Assam. Respondents. (II) WP(C) No.2465/2009 Mrs. Phulada Das, W/O Chitra Ranjan Das, resident of Seujipar, PS-Teok, PO-Teok, Dist.-Jorhat, Assam. Petitioner.

2 2 -Versus- 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Health and Family Welfare Department, Dispur, Guwahati The Mission Director, National Rural Health Mission, House No.16, Janapath, Opposite K.V. Khanapara, Guwahati The Director of Health Services, Hengarabari, Guwahati Joint-Director of Health Services, Jorhat, PO & PS-Jorhat, Assam. 5. Sub-Divisional Health Officer, Kakajan, PO & PS-Kakajan, Dist.-Jorhat, Assam. Respondents. Advocate(s) for the Petitioners : Advocate for the Respondents : Mr. Y.P. Das, Mr. S.A. Mussabir. GA, Assam, SC, Health. BEFORE THE HON BLE MR. JUSTICE B.P. KATAKEY Date of Hearing : Date of Judgment & Order :

3 3 JUDGMENT AND ORDER The petitioners in these writ petitions have challenged the selection process initiated by the respondent authorities for selection of candidates for engagement as ASHA Supervisor (Facilitator) in respect of Kakajan Block Primary Health Centre, in the district of Jorhat and as such both the writ petitions are taken up together for hearing and disposal, as agreed to by the learned counsel for the parties. 2. WP(C) No.835/2009 has been filed by the petitioner challenging the list dated prepared by the district level committee, wherein the name of the petitioner does not find place and on the basis of which the second and the final phase of selection was conducted at the State level by the State level selection committee for selection and engagement as ASHA Supervisor (Facilitator), on the ground that though pursuant to the advertisement dated she applied for selection and did well in the district level selection, she was not selected and her name was left out from such list only with a view to accommodate other candidates in the locality though according to her having regard to her qualification, experience and performance in the interview, she ought to have been selected by the district level committee.

4 4 3. WP(C) No.2465/2009 has been filed by the petitioner challenging the final select list dated published in a local daily newspaper on by the Mission Director, National Rural Health Mission (NRHM), reflecting the names of the selected candidate for engagement as ASHA Supervisor (Facilitator) in respect of Kakajan Block PHC, where the petitioner s name does not appear, on the same ground as taken in WP(C) No.835/2009, apart from the ground that while making such selection, the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies and Posts) Act, 1978 has not been followed and she being the lone candidate from the Schedule Caste community ought to have been selected and engaged. 4. In none of the writ petitions, the petitioners, however, arraigned any of the selected candidates though the final select list dated was prepared and published by the Mission Director, NRHM, in respect of Kakajan Block PHC in the district of Jorhat. 5. I have heard learned counsel for the petitioners as well as the learned standing counsel, Health Department, appearing for the respondents. 6. It is the contention of the learned counsel for the petitioner in WP(C) No.835/2009 that she having requisite qualification and experience and doing well in the district level selection conducted by the

5 5 district level committee, ought to have been selected for the purpose of second phase of selection at the State level, which was not done only with a view to accommodate some other persons in the locality. In respect of the petitioner in WP(C) No.2465/2009, it has been submitted that she also did well in the second and final stage of selection at the State level, but in spite of the same she was not selected with a view to accommodate other persons, who are less meritorious than the petitioner. According to the learned counsel the petitioner in the said writ petition being the candidate belonging to the Schedule Caste community is also entitled to the benefit of reservation policy, but the same has not been given by the respondent authorities in as much as the provisions of the 1978 Act have not been followed while making the selection and engagement. 7. Referring to the affidavit-in-opposition filed in WP(C) No.835/2009, the learned standing counsel, Health Department, has submitted that the petitioner in the said writ petition having place at Serial No.27 at the district level selection, she having secured 13 marks out of 50 and the cut off mark being 17.5, she was not selected by such district level committee and as such there is no illegality in preparing the list by such district level committee. Relating to WP(C) No.2465/2009, relying on the affidavit-in-opposition filed therein, it has been submitted by the learned standing counsel that the petitioner having not done well and better than the other selected candidates, she

6 6 was not selected by the State level committee. It has further been submitted that the engagement of the ASHA Supervisor (Facilitator) being contractual fixed pay engagement for a period of 6(six) months with the provision of extension by executing fresh contract subject to satisfactory performance and not being against any posts, the provisions of the 1978 Act and the Rules framed thereunder are not applicable. 8. I have considered the submissions of the learned counsel for the parties and also perused the pleadings. 9. One of the grounds on which the selection of candidates for engagement as ASHA Supervisor (Facilitator) has been challenged is that the petitioners did well in the interview conducted by the respective committees at the respective levels i.e. in the district level and the State level and in spite of that they were not selected. Such contention, however, has been refuted by the respondents in the affidavit filed. The writ court cannot sit over the decision of the selection committee in awarding the marks to any candidate. The court cannot sit on appeal on the selection and set aside the marks allotted by the selection committee and award any mark to any candidate. It is the prerogative of the selection committee to judge a candidate and to allot marks on the basis of the performance. It is no doubt correct that the writ court can interfere with the selection made, if it is in violation of any provisions of

7 7 the Act and the Rules/guidelines or in case of arbitrary selection. The petitioners in the present writ petitions except stating that they did well in the interview and, therefore, they ought to have been selected, have not pleaded anything more. The court cannot on the basis of such vague statement interfere with the selection made. That apart, the selected candidates are not made parties, in these writ petitions. 10. The next contention of the petitioner in WP(C) No.2465/2009 is that the selection and engagement of candidates as ASHA Supervisor (Facilitator) is not valid, as the provisions of the 1978 Act and the Rules framed thereunder have not been followed. It is not in dispute that the ASHA Supervisors (Facilitators) are the creation of Government of India sponsored scheme and are engaged on contractual basis at a monthly fixed amount and for a fixed period of time. The provisions of 1978 Act applies to the appointment to services and posts in any office of the State Government, a local or statutory authority constituted under any State Act for the time being in force or a Corporation in which not less than fifty-one per cent of the paid up share capital is held by the State Government and includes Universities and Colleges affiliated to the Universities, Primary, Secondary and Multipurpose Schools and also other educational institutions, which are owned or aided by the State Government and also includes an establishment in Public Sector.

8 8 11. The engagement of ASHA Supervisor (Facilitator) is contractual, under the Govt. of India scheme, for a fixed period of time and not against any post or service under the Government and as such the provisions of the 1978 Act is not applicable in such engagement. Moreover, as noticed above, none of the selected candidates has been arraigned as party respondent in the writ petition, in the absence of whom, the relief claimed in the writ petitions cannot also be granted. 12. In view of the aforesaid discussion, I am of the view that the writ petitions are devoid of any merit and as such the same are dismissed. No cost. Roy JUDGE

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