P. Seshaditya Murthy and Others vs District Medical and Health Officer, Guntur and Others

All the petitioners are qualified doctors. They were appointed pursuant to the scheme envisaged in G.O.Ms. No. 809 dated November 29, 1986, on honorarium basis of Rs. 50/- per day to the doctors working in non-trial areas and Rs. 75/- per day to those working in tribal areas. The petitioners are seeking a Mandamus directing the respondents to continue the petitioners in service, also to regularise their services and to pay salary and allowances attached to the post of Civil Assistant Surgeon, with effect from their dates of appointment.

Admittedly, the appointments to the post of Civil Assistant Surgeons are to be made by direct recruitment through a process of selection. The right to post arises only on selection by the competent authority, be it by the Andhra Pradesh Public Service Commission or any other commission constituted under the relevant rules. But the procedure of recruitment and appointment are regulated under the relevant rules. Therefore, the recruitment shall be made only in accordance with those rules land the appointment should be consistent with the statutory rules but not in derogation thereof. Any appointment made in derogation of the statutory rules, must always be considered to be temporary appointment otherwise than in accordance with the rules. Therefore, the question of regularisation of their services with effect from their initial appointment does not arise. The rules do not provide for any regular appointment on temporary basis otherwise than by direct recruitment. Under those circumstances, the first relief, viz., regularisation of the their services, cannot be granted. If such a relief is granted, undoubtedly it is fraught with several incongruities and is in derogation of statutory rules, in particular, of Rule 22 of the State and Subordinate Service Rules. Under those circumstances, this Court cannot grant a Mandamus directing the respondents to regularise the services of the petitioners, appointed pursuant to the scheme envisaged in G.O.Ms. No. 809.

The next question is whether the petitioners are entitled to regular pay attached to the post of Civil Assistant Surgeon. Admittedly the petitioners have been discharging the duties assigned to the post of Civil Assistant Surgeon. Article 39 of the Constitution provides that "there shall be equal pay for equal work for both men and women". This is a constitutional mandate charged on the State. If a qualified doctor is appointed to the post he is entitled to the regular scale of pay and allowances attached to the post. This position is not disputed across the bar, but the contention of Sri Sitarama Sastry, learned Government Pleader is that the Government have envisaged a special scheme under G.O.Ms. No. 809 dated November 29, 1986 to appoint such of those candidates who are willing to be appointed on payment of honorarium and that having accepted the appointment, they are bound to receive the honorarium at the prescribed rate and they cannot have any higher rate than what they bargained under the scheme envisaged under the G.O. It is further contended that the appointment is not a regular appointment and therefore they are not entitled to the regular scale of pay attached to the post. It is true that the Government have envisaged a scheme for appointment of qualified doctors on honorarium basis at the rate of Rs. 50/- for those who work in non-tribal areas and Rs. 75/- for those working in the tribal areas. But there is no loss the State suffers and the doctrine of estoppel cannot be extended in favour of the State. It is well settled legal position that a citizen cannot waive nor made to forgo his constitutional right to equality and that there is no estoppel against enforcement of a constitutional right.

The right to work enshrined in Article 41 of the Constitution emanates from the right to life assured under Article 21 to subserve dignity of person and of status assured in the preamble of the Constitution to develop scientific temper, humanism, spirit of enquiry and reform for the purpose of achieving excellence in all spheres of the activities of the concerned individual without which the right to life becomes animal existence bereft of finer facets of life and its vitality. Thereby by right to work becomes a fundamental right. Therefore, it is enjoined on the State, though within its economic limits, to afford to every citizen the right to work and that employment under the State is one of the avenues through which the individual could achieve the constitutional goals set out hereinbefore. Despite the appointment of the petitioners under a special scheme envisaged under G.O.Ms. 809 on honorarium basis, the State has been extracting services from the doctors who have been discharging the same duties as the Civil Assistant Surgeons that would be appointed on regular basis except very trivial and inconsequential duties. When a regular candidate is entitled to a particular scale of pay and allowances, when he discharges the same duties, merely because the petitioners are appointed temporarily, they cannot be denied of the same salary and allowances attached to the post of Civil Assistant Surgeon. In Surinder Singh and Another Vs. Engineer-in-chief, C.P.W.D. and Others, , Chinappa Reddi, J. speaking for the Bench has held that the persons employed even on daily wages are not only entitled to daily wages but are entitled to the same wages as other permanent employees employed in the department to do the identical work. The doctrine of equal pay for equal work enshrined under Article 39 was extended to temporary employees appointed on daily wages. The same ratio was reiterated in the latest decision of the Supreme Court in Daily Rated Casual Labour employed under Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, . Venkataramiah, J., speaking for the Court has extended the same principle and directed payment of equal salary to the daily-rated workers, on par with the regular candidates. The same ratio would apply to the facts in this case. Merely because the petitioners are working on temporary basis, it cannot be said that they become disentitled to receive equal pay attached to the post of the Civil Assistant Surgeon. Therefore, the petitioners are entitled to the pay and allowances attached to the post of Civil Assistant Surgeon.

It is undoubtedly true, as regards the grant of relief, normally it is to be confined to the persons who approached the Court seeking the relief. But in a case of persons governed by a particular scheme, it would become a class action. If the scheme is found to be not consistent with the constitutional philosophy, it is now well settled by the decision of the Supreme Court to reinstate or pay compensation to the employees whose superannuation was found to be unconstitutional. Therefore, when the appointment on honorarium basis with a fixed sum is found to be inconsistent with or in derogation on the doctrine of equal pay for equal work under Article 39(d), merely because only few of them approached this Court or claimed the relief, it should not be confined to the petitioners herein. The relief could be granted to all the class of doctors as a whole, particularly when it is at the behest of the State. Under these circumstances, there shall be a direction to pay salary and allowances attached to the post of Civil Assistant Surgeon to all the doctors appointed pursuant to G.O.Ms. No. 809 dated November 29, 1986 on and with effect from January 1, 1988, irrespective of the fact whether they are petitioners or otherwise, so long as they continue to discharge the duties of the post of Civil Assistant Surgeon. It is needless to mention that they would be continued till the regular candidates are recruited, appointed and taken charge of their respective posts.

The writ petitions are accordingly allowed in part as indicated above. In the circumstances, there will be no order as to costs. Advocate''s fees Rs. 350/- in each.