Dr. Prabha Negi vs Union of India & Ors

Manoj K. Tiwari, J.

By means of this petition, petitioner has sought following reliefs:

“(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned termination order dated 18.02.2018, whereby it has been stated

that the services of the petitioner on contract basis would come to an end on 31st March 2018.

(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 21.02.2018 so far as it invites applications for

contractual appointment against the post of Officer Incharge, ECHS Polyclinic Bageshwar held by the petitioner.

(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to continue as Officer Incharge

ECHS Polyclinc Bageshwar as per the contract agreement entered between the petitioner and the Station Commander, ECHS Cell, Station

Headquarters, Ranikhet.â€​

Key facts necessary for adjudication of this writ petition are that in the year 2003, Central Government introduced Ex-Serviceman Contributory

Health Scheme (hereinafter referred to as ‘ECHS’) for the benefit of ex-servicemen and their dependents. The Ministry of Defence,

Government of India issued a circular on 22.09.2003, wherein the procedure for contractual appointment of staff for ECHS Polyclinics was laid down.

In the annexure to the said circular, it was provided that certain percentage of vacancies in all category of post shall be reserved for ex-servicemen

and the remaining, would be open vacancies. The maximum age limit upto which a person could continue in employment was also mentioned in the

annexure to the said circular, which is 65 years for a Dental Officer.

The Managing Director, ECHS, thereafter issued a communication to his Subordinate Officers on 24.05.2011, stating that since ECHS Polyclinics

are manned by contractual staff, it is therefore a challenge for the Station Commanders to find suitable human resource and then retain them in

service. It was further stated that in larger cities, adequate number of prospective candidates may be available, however, the same is not true in

respect of smaller cities and towns. Paragraph no. 2 of the said communication is extracted below:

“2. The Govt orders on the subject initially stipulated that the employment will be normally for a period of two years at the maximum. Subsequently

owing to limited availability of candidates and consequent expenditure on advertisement etc. the Govt permitted extension of contractual employment

upto age of superannuation subject to review of conduct and performance.â€​

Petitioner, who possessed B.D.S. Degree, responded to an advertisement, which was issued by Station Commander, Station Headquarter, Ranikhet

and upon her selection, petitioner was appointed as Dental Officer at ECHS Polyclinic, Bageshwar vide order dated 27.01.2015. The said appointment

was for a term of 11 months w.e.f. 01.02.2015 on a consolidated salary of Rs. 46000/- per month. Upon assessment of petitioner’s work, her

appointment was extended for further one year effective from 03.01.2017.

On 18.02.2018, Officiating S.O., ECHS Ranikhet issued a letter, whereby petitioner was informed that her services will stand terminated on

31.03.2018. It was further stated in the said letter that all contractual employees who have completed/will complete two years as on 31.03.2018 will be

required to apply afresh, if they are desirous to continue in contractual employment with the Polyclinic. Thereafter, on 21.02.2018, Station

Commander, Station Headquarters, Ranikhet issued an advertisement inviting applications for appointment to various posts in ECHS Polyclinic,

Bageshwar. The post of Dental Officer, which was held by the petitioner, was also advertised. Thus feeling aggrieved, petitioner filed this writ

petition.

A counter affidavit has been filed on behalf of the respondents, in which reliance has been placed upon a letter dated 22.12.2017 issued by

Managing Director, ECHS and it is stated that the post has to be re-advertised after every two years and contract has to be executed afresh, if the

same person is re-appointed. Thus according to respondents, contract of appointment of the petitioner was rightly terminated and post was rightly re-

advertised in terms of the aforesaid communication dated 22.12.2017.

It is not the case of the respondents that the post of Dental Officer has been abolished or that there is no requirement of Dental Surgeon in the

ECHS Polyclinic, Bageshwar. Since work and post is available, therefore, the respondent ought to have given an option to the petitioner for extension

of her contract, unless her performance as a Dental Officer is not found upto the mark. The reason for termination of services of the petitioner and

re-advertisement of the post, is not petitioner’s unsatisfactory performance, but it is due to the direction issued by respondent no. 2 vide

communication dated 22.12.2017.

Similar issue regarding non-renewal of employment of ECHS employees came up for consideration before Hon’ble Himachal High Court and a

Division Bench of the said Court decided all writ petitions in favour of ECHS employees, vide judgment dated 16.12.2015 rendered in C.W.P. No.

4446 of 2014 and other connected writ petitions. Copy of the said judgment is on record, as Annexure-10 to the writ petition.

A Division Bench of Hon’ble Punjab and Haryana High Court has also decided similar controversy in favour of ECHS employees vide

judgment dated 19.02.2016 rendered in LPA No. 1691 of 2015 (O&M) and other connected appeals. The said judgment is on record as Annexure-11

to the writ petition. The judgment rendered by learned Single Judge of Hon’ble Punjab and Haryana High Court, on similar issue, have been

enclosed as Annexure-12 to the writ petition.

Hon’ble Supreme Court in the Case of State of Haryana and Others Vs. Piara Singh and Others reported in (1992) 4 SCC 118 and Ashwani

Kumar Vs. State of Bihar reported in (1996) 7 SCC 577 has held that one temporary employee cannot be replaced by another temporary employee.

In the present case, respondents have advertised the post after terminating services of the petitioner for the purpose of making contractual

appointment and not regular appointment. A person appointed on contract although has no lien on the post, but in the absence of any adverse material

against him, she/he has a right to continue till regular appointment is made on the post. If the employer decides not to continue the contractual

employee in service, then reason for not continuing the contractual employee should be made known to the contract employee, so that he/she comes to

know the shortcoming in his/her work and he/she can also have recourse to judicial forum.

We are in respectful agreement with the judgments rendered by Hon’ble Himachal Pradesh High Court and Hon’ble Punjab and Haryana

High Court on similar issue. We, therefore hold that a contractual employee cannot be replaced by another contractual employee, except of course in

cases, where there are legally valid reasons for not continuing a contractual employee in service, such as misconduct or other valid reasons as per

law.

In view of the aforesaid discussion, the writ petition is allowed. The impugned advertisement dated 21.02.2018 and the selection held pursuant

thereto, in so far as the post of Dental Officer is concerned are quashed and set aside. Respondents are directed to consider petitioner’s claim for

re-appointment as Dental Officer, on contract basis, in accordance with law within two weeks from the date of production of certified copy of this

judgment.

No order as to cost.