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Mahesh Kumar Patidar and Ors Vs. State of Raj. and Ors - Court Judgment

LegalCrystal Citation
CourtRajasthan - Jodhpur High Court
Decided On
AppellantMahesh Kumar Patidar and Ors
Respondent State of Raj. and Ors
1 in the high court of judicature for rajasthan at jodhpur. order (1)sbcivil writ petition no.6207/2009 (rajkumar & ors.v.state of raj. & ors.) (2)sbcivil writ petition no.6632/2009 (fateh singh bhati & ors.v.state of raj. & ors.) (3)sbcivil writ petition no.6770/2009 (mahesh kumar patidar & ors.v.state of raj. & ors.) (4)sbcivil writ petition no.6943/2009 (moinuddin mansuri & ors.v.state of raj.& ors.) (5)sbcivil writ petition no.6978/2009 (devilal dhaker & ors.v.state of raj. & ors.) (6)sbcivil writ petition no.9163/2010 (sumitra vaishnav v. state of raj. & ors.) (7)sbcivil writ petition no.7995/2011 (sumitra vaishnav v. state of raj. & ors.) (8)dbcivil special appeal (writ) no.113/2013 (kiran choudhary v. state of raj. & ors.) (9)dbcivil special appeal (writ) no.114/2013 (sanjay kumar.....



(1)SBCivil Writ Petition No.6207/2009 (Rajkumar & Ors.v.State of Raj.

& Ors.) (2)SBCivil Writ Petition No.6632/2009 (Fateh Singh Bhati & Ors.v.State of Raj.

& Ors.) (3)SBCivil Writ Petition No.6770/2009 (Mahesh Kumar Patidar & Ors.v.State of Raj.

& Ors.) (4)SBCivil Writ Petition No.6943/2009 (Moinuddin Mansuri & Ors.v.State of Raj.& Ors.) (5)SBCivil Writ Petition No.6978/2009 (Devilal Dhaker & Ors.v.State of Raj.

& Ors.) (6)SBCivil Writ Petition No.9163/2010 (Sumitra Vaishnav v.

State of Raj.

& Ors.) (7)SBCivil Writ Petition No.7995/2011 (Sumitra Vaishnav v.

State of Raj.

& Ors.) (8)DBCivil Special Appeal (Writ) No.113/2013 (Kiran Choudhary v.

State of Raj.

& Ors.) (9)DBCivil Special Appeal (Writ) No.114/2013 (Sanjay Kumar Dhing & Ors.v.State of Raj.

& Ors.) (10)DBCivil Special Appeal (Writ) No.115/2013 (Mustak Ali & Ors.v.State of Raj.

& Ors.) Date of Order :: 30th November, 2015 HON'BLE Mr.JUSTICE GOVIND MATHUR HON'BLE Mr.JUSTICE P.K.LOHRA HON'BLE MISS JUSTICE JAISHREE THAKUR Mr.M.S.Singhvi, Senior Advocate, assisted by Mr.Vineet Dave and Mr.Deepak Chandak].Mr.R.S.Choudhary ].Mr.Rajesh Shah ].Mr.R.C.Joshi ].for the petitioners/appellants.

Mr.Manoj Bhandari].Mr.Rakesh Arora ].Dr.

RDSS Kharlia ].Mr.N.R.Choudhary ].Mr.Rajesh Panwar, Additional Advocate General with Mr.Sunil Joshi, for the respondent-State.

Mr.Hanuman Singh Choudhary, for the respondent(s).2 BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.) REPORTABLE This reference is before us to answer the following substantial questions :- “(1) Whether in view of the frame and purport of the National Rural Health Mission ('NRHM') Scheme, engagement of Para-Medical Staff with preparation of merit at District level, as opposed to that at State level, is permissible in law?.

(2)Whether in view of the frame and purport of the National Rural Health Mission ('NRHM') Scheme, engagement of Para-Medical Staff with reference to the place of residence and/or local criteria is permissible in law?.”.

The factual matrix necessary to be taken into consideration to examine and answer the issues referred is that the Additional Director (Administration).Directorate of Medical and Health Services, Rajasthan, Jaipur, under an advertisement dated 4.5.2007 invited applications from the eligible desirous candidates for engagement as NuRs.Grade- II/General NuRs.Male (GNM) against the existing 2500 posts in various districts of the State.

The posts aforesaid were not regular encadered posts, but created under the National Rural Health Mission (NRHM).The appointments under the advertisement aforesaid were required to be made at Sub Health Centres in rural areas at remote as well as general places, thus, a preference to the bonafide residents of the district concerned was also extended.

3 By another advertisement dated 8.8.2007 the respondents again invited applications from eligible candidates against the posts in NRHM, however, the preference on district level was taken away, but it was made clear that those who have applied in pursuant to the fiRs.advertisement need not to apply afresh.

A corrigendum thereafter was issued on 25.8.2007 wherein the criterion relating to appointment at district level was withdrawn and a merit list at State level was sought to be prepared.

By another corrigendum dated 21.1.2008 the condition of preparing a merit list of the selected incumbents at district level was again inserted.

A challenge was given to the condition pertaining to preparation of merit at district level by way of filing a petition for writ before this Court (SBCivil Writ Petition No.1120/2008, Dema Ram Choudhary v.

State of Rajasthan & Ors.).The petition for writ aforesaid came to be accepted vide judgment dated 20.2.2008 with following observations and directions:- “Since the controveRs.raised in all the writ petitions comes in a narrow compass and inasmuch as learned counsel for the petitioners submits that if a direction is issued to prepare the merit list on state level with one and similar criteria and a further direction for consideration of candidature of all the candidates, who applied pursuant to the advertisement dated 04.05.2007 as well as well as 08.08.2007, then petitioners will have no grievance.

Looking to the fact that the aforesaid prayer is not seriously opposed by learned counsel for the 4 respondents, more so when it was due to preparation of districtwise merit list, different criteria in discriminatory manner has been adopted in different districts and otherwise action of the respondents is illegal in view of by the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar Gupta (supra) where selection on district level was held to be illegal.

In view of the above, I allow all these writ petitions and direct the respondents to prepare merit list on state level by adopting one and same criteria for preparation of the merit.

The appointments are directed to be given thereupon strictly in order of merit irrespective of the place from a candidate is coming and while considering the merit of the candidates, all the applications already submitted, pursuant to the fiRs.and second advertisement would be taken into consideration.

The corrigendum dated 21.01.2008 is set aside accordingly, while maintaining the corrigendum dated 25.08.2007.”


An other writ petition i.e.SBCivil Writ Petition No.741/2008, Santh Lal Yadav & Ors.v.State & Ors., too came to be accepted on 8.5.2008 in light of the directions given in the case of Dema Ram (supra).The issue was again considered in SBCivil Writ Petition No.3188/2008, Dinesh Kumar v.

State of Rajasthan & ORS.and that also came to be disposed of in terms of the judgment given in the case of Dema Ram (supra).The State of Rajasthan in the case of Dinesh Kumar (supra) preferred a special appeal (DBCivil Special Appeal No.615/2008).which came to be dismissed on 10.7.2008.

The Division Bench while affirming the judgment given in the case of Dinesh Kumar (supra) held as under:- 5 “As regards, the submission made by the learned counsel for the State that the advertisement issued for the recruitment of the post of GNM, in the present case, was on contract basis and based on local criteria.

It would suffice to say that similar contention had been dealt with by the Apex Court in the case of Rajesh Kumar Gupta & Ors.v.State of U.P.& ORS.(supra) but it had been turned down.

Therefore, this contention of the counsel for the State cannot be sustained.

In respect of the submissions made by the counsel for the State that the present recruitment was under National Rural Health Mission for one year and was with the aid of the World Bank and therefore the advertisements were issued for serving the said purpose.

It would be noted that the appellant State itself had been issued advertisement one after the other, starting from 04.05.2007.

More so corrigendum after corrigendum were also being issued which certainly resulted in delay in the selection of the candidates.

Therefore, the fault lies with the Government in consuming long time in the selection so as to serve the purpose for which it was proposed to be made.

In any case, the selection, whatever may be the purpose, has to be made in accordance to law and the State Government cannot deviate from the settled principles in respect of such selection.

In case, it is not so done then the same is violative of the provision of the Constitution and interference by the Courts is warranted.”


The special appeal preferred in the case of Dema Ram Choudhary (DBCivil Special Appeal No.388/2008).too came to be rejected on 4.11.2009, in terms of the Division Bench judgment dated 10.7.2008.

Subsequent thereto, certain other writ petitions were also accepted by this Court in light of the judgments referred above.

In one writ petition i.e.SBCivil Writ Petition No.4298/2008, Manoj Kumar Sharma 6 & Ors.V.State of Rajasthan & Ors., decided on 15.5.2009, this Court directed the respondents that in case name of any petitioner stand in the state merit list relating to General NuRs.Male and the advertised vacancies are available, then they may be given appointment as per their merit if the less meritorious persons are continuing.

In view of the directions given in the case of Manoj Kumar Sharma (supra).the respondents cancelled appointment of the persons, who were employed as GNM in pursuant to short term advertisement dated 4.5.2007 as amended time to time by determining their merit at district level.

These persons questioned correctness of the orders cancelling their appointment by way of filing writ petitions with contention that they were not party to any proceedings undertaken before this Court, therefore, the rights accrued in their favour could have not been disturbed without affording them an opportunity of hearing.

It was also urged that the vacancies advertised under the fiRs.advertisement dated 4.5.2007 could have not been clubbed with subsequent vacancies advertised under subsequent notifications.

As per the petitioners they were employed as a consequent to submission of application forms in pursuant to the fiRs.advertisement and, therefore, the vacancies advertised under this advertisement should have remained undisturbed irrespective of the directions given by this Court.

Beside the grounds stated above, it was also urged that the view taken by this Court in the case of Dema Ram, Manoj Kumar, Dinesh Kumar and Santh Lal Yadav (all 7 supra) is per incuriam being arrived at without considering the NRHM scheme under which the posts concerned are created and sought to be filled.

As per the petitioners the vacancies under the NRHM are required to be filled in only as per the scheme prescribed and not otherwise, as such the directions given to prepare a merit list at state level is erroneous, being contrary to the scheme.

It is also urged that the NRHM is a self-contend scheme with sufficient and reasonable cause to make appointments at district level and that is having nexus sought to be achieved.

A Single Bench of this Court after hearing counsels for the petitioners and after taking into consideration several provisions of National Rural Health Mission opined as under :- “In the case of Dema Ram (supra) and other cases disposed of in light of Dema Ram's case including Dinesh Kumar's case (upto the Division Bench level).the scheme created under the NRHM has not been taken into consideration.

The judgments in the cases aforesaid given are based on the judgments of Rajesh Kumar Gupta (supra) and Deepak Kumar Suthar (supra) which in my considered opinion are based on different set of facts and are having no application in present controversy.

The judgments given in the cases of Dema Ram, Manoj Kumar, Santh Lal and Dinesh Kumar, thus, require reconsideration.”


8 Accordingly, the instant reference is before this Larger Bench.

Heard learned counsels appearing on behalf of the petitioneRs.learned Additional Advocate General and Shri Hanuman Singh Choudhary, supporting the preposition that the select list even under National Rural Health Mission Scheme should be made at State level and no preference at all could have been given on basis of the place of residence.

To adjudicate the issue, it is necessary to examine the entire scheme floated by the Government of India in the name of “National Rural Health Mission”.The National Rural Health Mission (NRHM) was launched on 12.4.2005 to provide accessible, affordable and accountable quality health services to the poorest households in the remotest rural regions.

Under the NRHM the difficult areas with unsatisfactory health indicators were classified as special focus states to ensure the attention where needed.

The thrust of the mission is on establishing a fully functional community owned, decentralised health delivery system with inter-sectoral conversance at all levels to ensure simultaneous action on a wide range of determinants of health like water, sanitation, education, nutrition, social and general equality.

Institutional integration within the fragmented health centre was expected to provide a focus on outcomes measured against Indian Public Health Standards for all 9 health facilities.

The NRHM was shifting the focus to a functional health system at all levels from a village to district.

The NRHM seeks to provide effective health care to rural population and raise public spending on health from 0.9% of GDP to 2-3%.

It has its key component provisions of health activists at grass root level with village as a unit, therefore, a village health plan is prepared through a local team headed by the Health and Sanitation Committee of the Panchayat.

For effective implementation of the scheme, various committees are established those are at National Level, State Level, District Monitoring Council at District Level, District National Rural Health Mission Committee at District Level, Block Governing Council Committee at Block Level, District Governing Council at District Level, Executive Committee at Zila Parishad Level, Rugna Kalyan Committee at District Level, Sub Centre Strengthening Committee and Village Health Nutrition Water Supply and Sanitary Committee at village level.

Under the mission several schemes are floated for providing basic and fundamental health awareness and health protection system at village, panchayat block and district level.

The vision of mission as per its mission document is as under:- “To provide effective healthcare to rural population throughout the country with special focus on 18 states, which have weak public health indicators and/or weak infrastructure.

10 18 special focus states are Arunachal Pradesh, Assam, Bihar, Chattisgarh, Himachal Pradesh, Jharkhand, Jammu and Kashmir, Manipur, Mizoram, Meghalaya, Madhya Pradesh, Nagaland, Orissa, Rajasthan, Sikkim, Tripura, Uttaranchal and Uttar Pradesh.

To raise public spending on health from 0.9% GDP to 2-3% of GDP, with improved arrangement for community financing and risk pooling.

To undertake architectural correction of the health system to enable it to effectively handle increased allocations and promote policies that strengthen public health management and service delivery in the country.

To revitalize local health traditions and mainstream AYUSH into the public health system.

Effective integration of health concerns through decentralized management at district, with determinants of health like sanitation and hygiene, nutrition, safe drinking water, gender and social concerns.

Address inter State and inter district disparities.

Time bound goals and report publicly on progress.

To improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care.”


The core strategies of the mission are as follows:- “Train and enhance capacity of Panchayati Raj Institutions (PRIs) to own, control and manage public health services.

11 Promote access to improved healthcare at household level through the female health activist (ASHA).Health Plan for each village through Village Health Committee of the Panchayat.

Strengthening sub-centre through better human resource development, clear quality standards, better community support and an untied fund to enable local planning and action and more Multi Purpose Workers (MPWs).Strengthening existing (PHCs) through better staffing and human resource development policy, clear quality standards, better community support and an untied fund to enable the local management committee to achieve these standards.

Provision of 30-50 bedded CHC per lakh population for improved curative care to a normative standard.

(IPHS defining personnel, equipment and management standards, its decentralized administration by a hospital management committee and the provision of adequate funds and powers to enable these committees to reach desired levels).Preparation and implementation of an inter sector District Health Plan prepared by the District Health Mission, including drinking water, sanitation, hygiene and nutrition.

Integrating vertical Health and Family Welfare programmes at National, State, District and Block levels.

Technical support to National, State and District Health Mission, for public health management.

Strengthening capacities for data collection, assessment and review for evidence based planning, monitoring and supervision.

12 Formulation of transparent policies for deployment and career development of human resource for health.

Developing capacities for preventive health care at all levels for promoting healthy life style, reduction in consumption of tobacco and alcohol, etc.Promoting non-profit sector particularly in underserved areas.”


Looking to the area of operation i.e.the rural area, the NRHM aims at empowering local governments to manage, control and making those accountable for public health service at grass root levels, thus, the mission envisages a definite role for Panchayat Raj institutions.

The Panchayat Raj institutions are the fundamental and basic unit for implementing the schemes and the State Government is required to indicate in its memorandum of understanding the commitment for devolution of funds, functionaries and programmes for health to Panchayat Raj Institutions.

The mission at district level is required to be led by the Zila Parishad.

The Zila Parishad is the main controlling authority to guide and manage all public health institutions in district, sub-centres, primary health centres and community health centres.

Panchayat Raj Institutions' effective involvement is made necessary in hospitals management committees for good hospital management.

A training programme for the members of the Panchayat Raj Institutions is also prescribed under the mission.

13 The mission document also deals with the issue of availability of critical man power in the rural areas and that is proposed to be addressed through initiatives like introduction of a trained voluntary community health worker in every village, additional Auxiliary NuRs.Midwife at each sub-centres, three staff nurses at primary health centre.

These para medical workers are required to remain operational round the clock with the aid of specialists and other para medical staff at the community health centres.

The condition of local residency is emphasised under the mission document to ensure the presence of staff at their place of posting.

Keeping in view the difficulty in availing services of doctors and specialists the mission document emphasises on recruitment, training and skills upgradation of locally recruited ANMs/Nurses/Midwives/other para medical staff.

It is also pertinent to note that the basic network of the scheme is in remote rural areas and as such it is decentralised upto the lowest level of administrative hierarchy.

We have also examined critical areas for action under National Rural Health Mission to introduce necessary reforms in the health sector.

As per the scheme the reforms are necessary for restructuring the health delivery system as well as for developing better health financing mechanisMs.The strengthening and effectiveness of health institutions like Primary Health Centres, Community Health Centres, District Hospitals, Hospitals at Taluka level have positive consequences for health programmes specially in relation to Tuberculosis, Malaria, HIV/AIDS, Filaria, Family Welfare, Leprosy, Disease Surveillance etc.The 14 scheme noticed that for increasing and improving human resources in rural areas action to overcome constraints deserves to be taken by extending local preference, contractual appointment to a facility for filling short term gaps, management of facilities including personnel by PRI committees, train and develop local residents of remote areas with appropriate cadre structure and incentives, multi-skilling of doctORS.paramedics and continuous skill upgradation, convergence with AYUSH, involvement of registered medical practitioners and partnership with non- State StakeholdeRs.The scheme also take care of reducing maternal and child deaths and population stabilisation by activating functional public health system including CHCs as FRUs, PHC-24X7, SHCs, Taluk/District Hospital, trained ANM locally recruited, institutional delivery, quality services at facility and expanding facilities capable of providing contraception including quality sterilisation services on a regular basis so as to meet existing demand and unmet needs.

For planning and monitoring with community ownership, it was also found necessary to have habitation/village based household surveys and facility surveys as the basis for local action, untied resources for planning and monitoring, management of health facilities by the PRIs, thrust on community monitoring, NGO, involvement, PRI action, etc.and ensure equity and health, promote education of women SC/ST and other vulnerable groups.

Chapter V of the scheme which relates to key strategy or instrument also provides complete planning at District level.

As per the planning process, the plans 15 under National Rural Health Mission are to be prepared by an aggregation and consolidation of Village Health Plans and further block plans on basis of the District plan.

This requires setting up of planning teams and committees at various levels which are Habitation/Village, Gram Panchayat, Primary Health Centre (Cluster level, Block level and District level).From perusal of the entire scheme, it is apparent that the scheme is to be implemented by taking care of the basic units of rural area with a view to reach to each and every person for protecting and promoting his/her health.

The scheme is having a very wide amplitude with an ambition to have healthy citizens and for that purpose a complete network of experts is to be unrolled at foundation level.

It is also found necessary in the scheme that such an ambitious project can be executed by taking aid and assistance of local residents, therefore, a complete action is provided to train local residents and utilise their services to make the scheme successful.

Under the scheme the Panchayat Raj Institutions are required to play a vital role in its implementation.

The scheme requires knowledge of the area concerned from various aspects including its social, political, economical and geographical conditions including the fact relating to general health of the natives.

The basic unit of the scheme is Panchayat and i.e.having control by the District Level Committee created with the aid of Zila Parishad.

The State Level phenomenon in the entire scheme is only for providing funds and for general administrative control relating to broad implementation of the scheme.

The minute and effective control of the scheme, 16 as a matter of fact is in the hands of the smaller units created at Panchayat Raj Institutions level, block level and district level.

In such circumstances the classification while engaging para medical staff including the GNMs on basis of their place of residence appears to be in consonance with the object sought to be achieved by establishment of the NRHM.

We are having no hesitation in saying that the scheme is not meant to provide employment but to take care of health of Indian citizens in rural and remote areas, thus, it emphasises for availing services of the persons who are aware with the local circumstances, local geography, local ailments, local habits etc.The judgment given in the case of Dema Ram (supra) is mainly based on the law laid down by Hon'ble Supreme Court in the case of Rajesh Kumar Gupta and Ors.v.State of U.P.& ORS.[(2005).SCC172 and by Full Bench of this Court in the case of Deepak Kumar Suthar v.

State of Rajasthan & Ors., reported in 2000(1) WLC (Raj.) 1.

The Deepak Kumar Suthar's case (supra) was relating to preference given in the form of bonus marks to the residents of rural area while making appointments under the Rajasthan Education Subordinate Service Rules, 1971.

The Rules of 1971 are the Rules framed under proviso to Article 309 of the Constitution of India and those regulate service conditions of the persons employed to Rajasthan Education Subordinate Service.

The Rajasthan Education Subordinate Service under the Rules of 1971 is a State level integrated service and, therefore, any preference prescribed on basis of the place of residence by awarding bonus marks was treated bad by Full Bench of this Court.

Suffice to mention 17 that the procedure of appointment under consideration in the case of Deepak Kumar Suthar (supra) was also on state level, the Court, thus, held that the preference by awarding bonus marks on basis of place of residence is in violation of Articles 14, 15 and 16 of the Constitution of India.

In the case of Rajesh Kumar (supra) Hon'ble Supreme Court was dealing with the issue regarding grant of preference while making admissions in Basic Teacher Certificate Training CouRs.wherein a preference was given for admission to the persons coming from the specific districts.

Hon'ble Supreme Court in the case aforesaid while holding such classification bad, quite specifically noticed that - “in the, there was no material to indicate that dialects vary from district to district.

Consequently, there was no material to indicate that a candidate from one district was not likely to be familiar with the dialect of another district for which he applied for training.

There was also no material placed on record to indicate that training was to be in local dialect for the local school only.

Finally, if the emphasis is really on the regional dialect, nothing prevented the State Government from making the knowledge of a specified regional dialect as preferential criterion for recruitment.

For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation of merit list at the district level was arbitrary and violative of Articles 15(1) and 16(2) of the Constitution.”


18 It is pertinent to note that in the case aforesaid it was noticed by the Apex Court that the State Government could have provided preferential criteria for recruitment if the emphasis is really on the regional dialect.

The reason given by the Apex Court for declaring preferential criteria bad was that no sufficient material was available before the Court to hold the classification reasonable and having nexus with the object sought to be achieved by making admission in BTC Course, and further that the qualification of BTC which was under consideration had no special features to identify that with local needs.

On the contrary the NRHM has a complete network at village and hamlet level to identify health issues of different local areas.

The scheme is designed in a fashion that satisfies and addresses health issues of tailenders by using local human resources.

In the case of Dinesh Kumar (supra).the Division Bench held that the selection, whatever may be the purpose, has to be made in accordance with law and the State Government cannot deviate from the settled principles in respect of such selections.

Though no discussion of NRHM is made either by Single Bench in Dema Ram's case (supra) or by Division Bench in Dinesh Kumar's case (supra).but being based on judgment of Rajesh Kumar Gupta (supra).it can be said that in view of both the Courts selection at district level is not a classification reasonable with intelligible differentia, hence, is violative of Article 14 of the Constitution of India.

We have examined the scheme threadbare and on basis of that in our opinion, the view taken in both the cases is erroneous.

No doubt, every 19 action in a setup under our constitution must be in accordance with law and legality of such action is to be measured by its nexus with the object, purpose and intention of the law applicable.

Every law possesses its philosophy with executing concept, hence, while examining correctness of any action, the philosophy behind the law and its kinetics must be kept in mind.

The philosophy of law is determinative factor of enactment, its kinetics indicate amplitude of its terminals and the executing concept provides mode for its implementation.

The object and kinetics of every law must always be in consonance with the executing concept.

Any disharmony in these factors may result into failure to achieve the object.

It is well settled that under Article 14 of the Constitution of India right to equality is to describe within the periphery of doctrine of reasonable classification and principles of absence of arbitrariness.

The concept of equality forbids class legislation but not a reasonable classification of purposeful nature.

The classification sought to be made must not be arbitrary, artificial, evasive and must be based on some real substantial foundation evolving a just and reasonable relation to the object sought to be achieved.

In Chirangji Lal v.

Union of India (AIR1951SC41, Hon'ble Supreme Court held that mere differentiation or inequality of treatment does not per se amount to discrimination with the inhabitation of the equal protection clause.

To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does 20 not rest on any rational basis having regard to the object which the Legislature has in view.

In the same case it was observed that the Court should not adopt a doctrinaire approach which might choke all beneficial legislation.

The U.S.Supreme Court in Arkansas Gas Co.v.Railroad Commission (261 US379 while discussing the concept of equality, held that mere production of inequality is not enough to hold that equal protection has been denied.

For, every selection of person for regulation produces inequality in some degree.

The inequality produced, in order to encounter the challenge of the Constitution, must be “actually and palpably unreasonable and arbitrary”.The governance is not a simple thing.

It encounters and deals with the problems which come from persons in an infinite variety of relations.

Classification is the recognition of those relations, and, in making it a wide latitude of discretion and judgment must be given.

As already discussed, the object of the NRHM is to provide accessible, affordable and accountable quality health service to the poorest households in the remotest rural regions.

To achieve this object the thrust of the mission is on establishing a fully functional community owned, decentralised health delivery system with inter- sectoral conversance at all levels to ensure simultaneous action on a wide range of detriments of health like water, sanitation, education, nutrition, social and general quality.

The scheme is having multi tasks and for that purpose local teams headed by health and sanitation committee at panchayat level are to be formed.

The scheme 21 in so many words emphasise aid and assistance of local residents in its implementation and further to have their service as experts and resource persons.

The scheme demands uninterrupted availability of the staff responsible to execute different programmes.

It also requires setting up of planning teams and committees by local residents on habitation/village, gram panchayat, primary health centre and cluster level basis.

Further pertinent to notice that the engagement of the staff in NRHM from locals is neither a concession nor a reservation, but a tactics for effective implementation of the scheme.

The locals are certainly in better position to identify the specific health issues of the area concern with more effective persuasive value to bring the habitants of area within the fold of NRHM.

The needs noticed indicate that engagement of paramedical staff by examining merit at district level is in accordance with the frame and purport of the National Rural Health Mission.

It is a just and reasonable classification with intelligible differentia to achieve the objects enshrined.

Accordingly, the fiRs.question referred to us is answered by holding that engagement of paramedical staff with preparation of merit at District level does not violate Article 14 of the Constitution of India.

The second question is that whether while engaging paramedical staff in National Rural Health Mission, any reference to the place of residence and/or local criteria is permissible in law or not?.

We are of the view that in light of the complete scheme of NRHM as discussed, the assistance and support of 22 the locals in its implementation is essential and, therefore, for the purpose of engagement of staff, if preference is given on basis of the place of residence and/or local criteria among the equals, then that is not irrational or in violation of Article 14 of the Constitution of India.

The engagement of staff under National Rural Health Mission at district level and by providing preference to the locals, equals have not been treated differently without any justifiable reasons.

As such, there is no violation of Articles 14 and 16 of the Constitution of India.

The second question referred is also answered accordingly.

The judgments given by learned Single Bench in Dema Ram (supra) (SBCivil Writ Petition No.1120/2008).Manoj Kumar Sharma (supra) (SBCivil Writ Petition No.4298/2008).Santh Lal Yadav (supra) (SBCivil Writ Petition No.741/2008) and Division Bench in Dinesh Kumar (supra) (DBCivil Special Appeal No.615/2008) do not lay down correct law.

Let the writ petitions SBCivil Writ Petitions No.6207/2009, 6632/2009, 6770/2009, 6943/2009, 6978/2009, 9163/2010 and 7995/2011 be listed before Single Bench and DBCivil Special Appeals (Writ) No.113/2013, 114/2013 and 115/2013 be listed before Division Bench for their disposal on merits by keeping in mind the answers to the questions referred to the Larger Bench.





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