Imran Khan & Anr. vs State Of M. P. & Ors

Learned counsel for the parties at the outset has drawn the attention of this Court towards judgment delivered in Writ Petition No.17265/2017

(Munnawar Khan Vs. Public Health and Family Welfare Department and Ors.) and have stated that in large number of connected matters, writ

petitions have been disposed of on 22/03/2018. Relevant paragraphs of the judgment delivered in the aforesaid case i.e. paragraphs No.9 to 14 reads

as under:-

“9. The co-ordinate Bench of this court vide order dated 15.5.2017, disposed of bunch of writ petitions by passing the following order :-

“W.P.No.714/2016, W.P.No.719/2016, W.P.No.721/2016, W.P.No.716/2016 & W.P.No.899/2016 5.05.2017

Parties through their counsel.

Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order,

they are being disposed of by this Court. Facts of the Writ Petition No.714/2016 are narrated hereunder. The petitioners before this Court are young

persons holding qualification to serve on the post of Pharmacist and their qualification is not in dispute and they do have the B. Pharma degree from

Rajeev Technical University, Bhopal. They are also registered with the M.P. State Pharmacy Council, Bhopal.

The Government of India has introduced a very important program relating to health known as National Rural Health Mission (for the short

“NRHMâ€) in order to cater the need of distribution of drugs and for the State of M.P., a roster was prepared, which is Annexure P-1 and the

same shows the distribution of posts in the entire State of M.P. belonging to various categories. Total 1595 posts were to be filled in the State of M.P.

in respect of Pharmacist, Data Entry Operator and Supporting Staffs etc.. and the Model State Level Roster was implemented by the State of M.P.

as it was the national level program, which is being funded by the Government of India for the State of M.P. also.

An advertisement was issued by the NRHM and it was in respect of the same posts, later on, additional 778 additional posts were sanctioned and

again an advertisement was issued. The National Rural Health Mission has also issued guidelines for appointment of the persons holding the requisite

qualification throughout the State of M.P. and the persons were given option to opt for a particular district. Executive instructions issued vide order

26.12.2012 Annexure P-5 also provided for constitution of the selection committee. Thereafter, the procedure for recruitment was initiated by the

respondent and again advertisements were issued on 19.10.2012 (Annexure P-7) and 31.12.2012 (Annexure P-7) and finally after the recruitment,

appointment orders were issued in favour of the petitioners on 09.07.2014 and in some of the connected matters, the appointment orders were issued

in the year 2013-14. All the executive instructions brought on record reflect for the State Level Roster System meant for reservation.

Petitioners' grievance is that in respect of petitioners, who have joined the service in the district- Barwani, some complaint was made by some local

level politician and based upon the complaint of the politician, an order was issued putting the services of the petitioners to an end. Services of the

petitioners were terminated on 16.03.2015 and the petitioner came up before this Court by filing a writ petition, which was registered as W.P.

No.2063/2015 and all the connected matters were heard by this Court and learned Single Judge has allowed all the writ petitions vide judgment

19.10.2015 and the order passed in W.P. No.2063/2015 reads as under:-

“2/ In brief, the case of the petitioners is that the applications were invited for appointment to the 868 posts of Pharmacist, Data Entry Operator

and Support Staff vide advertisement dated 26.10.2012 from all over the State but before the commencement of the selection process, additional 778

posts were sanctioned, hence another advertisement dated 26.12.2012 was issued by the respondents inviting applications for total 1595 posts in each

category. The petitioners had applied in response to the advertisement and the selection process was undertaken at the District Level. The petitioners

were candidate for appointment in District Barwani and they had participated in the selection process. Initially 39 candidates were selected and

appointed on the post of Pharmacist by order dated 5.8.2013 and while making the said appointment, the reservation for ST category was exceeded

but those candidates had not joined, hence the mistake was corrected and the petitioners were given the appointment. The petitioners had joined the

duties in pursuance to the said appointment and were discharging the duties satisfactorily. The appointment was initially up to 31.3.2014 which was

renewed and extended till 31.3.2015 but by the order dated 16.3.2015, the services of the petitioners have been put to an end on the ground that the

petitioners' contract period had expired on 31.3.2015 and the will not be renewed.

3/.Learned counsel appearing for the petitioners submits that the contract period of other pharmacists appointed in pursuance to the same

advertisement in other districts has been extended and that even the State Government has taken a policy decision to renew such contracts

automatically. He submits that the services of the petitioners have been put to an end on erroneous ground that the appointment of the petitioners was

by exceeding the reservation. He further submits that no such ground has been assigned in the order of termination and the grounds cannot be

supplemented in the reply before this Court and that the impugned order has been passed without complying with the principles of natural justice.

4/Learned counsel for the respondents has submitted that the services of the petitioners have been put to an end since while making the appointment,

the quota was exceeded and the petitioners who are General Category candidates have been appointed against the post of ST category.

5/I have heard the learned counsel for the parties and perused the record.

6/Undisputedly the petitioners' appointment was a contract appointment and by the impugned order dated 16.3.2015, the services of the petitioners

were sought to be put to an end w.e.f. 31.3.2015, on the ground that the petitioners' contract was going to expire on that date and the contract would

not be renewed. Normally such an order of termination after expiry of contract period does not require interference by the Court but in the present

case counsel for the respondent has not disputed the fact that the contract appointments of similarly situated Pharmacist, Data Entry Operators and

Support Staff who were appointed in pursuance to the same selection process in other districts all over the State have been renewed and they are

continuing in service and even in Barwani District the contract appointment of Data Entry Operators and Support Staff which was appointed along

with the petitioners, has been renewed which makes it apparent that the petitioners have been discriminated in respect of renewal of the contract

appointment. That apart counsel for the respondent has also not disputed the Circular dated 1.4.2015 issued by the Mission Director of National

Health Mission, M.P. to the effect that all the contract of employees and officers of the Mission whose contract services were coming to an end on

31.3.2015, would be continued until further orders.

7/In these circumstances the petitioners have a right of continuation of their contract appointment as similar appointments on the same post have

continued, if there is no other objection.

8/As per the reply of the respondents, the petitioners have been discontinued since they belong to general category and were appointed against the

post reserved for ST category candidates.

9/The petitioners have filed numerous documents before this Court in support of their plea that the reservation and quota rule has not been violated

and the appointments of the petitioners have been made in terms of the reservation of seats which was shown at the time of issuing the advertisement

for recruitment as also in the Circular dated 19.10.2012 and the Rule book issued in this regard, but considering the undisputed position that the

impugned orders of discontinuation of the contract do not mention that the petitioners' contract has not been renewed because of violating the

reservation rule and also keeping in view the judgments of the Supreme Court in the matter of Mohinder Singh Gill and Another Vs. The Chief

Election Commissioner, New Delhi reported in AIR 1978 SC 851 and in the matter of Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G. I. of

Medical Sciences and another reported in AIR 2002 SC 23, which provide that the reasons are required to be contained in the order itself and they

cannot be supplemented in the reply, I am of the opinion that the respondents at this stage cannot be permitted to support the impugned orders on the

ground which is not mentioned in the impugned orders.

10/That apart, if the respondents want to discontinue the services of the petitioners on the ground that the appointments of the petitioners have been

made violating the rule of reservation or the appointments are against posts reserved for ST category candidate, then they were required to issue

showcause notice to the petitioners so that the petitioners could get an opportunity to demonstrate if the appointment of the petitioners was illegal or it

was made in accordance with law by following the rule of reservation. If the respondents wanted to discontinue the services of the petitioners on the

ground of violating rule of reservation which is for the first time disclosed in the reply before this Court, then they were required to follow the

principles of natural justice.

10/It is worth mentioning that by virtue of the interim order passed by this Court, the petitioners are continuing in service.

11/In these circumstances, the impugned order dated 16.3.2015 putting on end to the contract service of the petitioners are set aside with a direction

that if the respondents want to discontinue the services of the petitioners on the ground of violation of the reservation or quota rule or on the ground

that the initial appointment of the petitioners itself was illegal, then they will issue a showcause notice to the petitioners clearly stating the ground for

the proposed action and after giving opportunity of hearing and following the principles of natural justice, it will be open to the respondents to pass

fresh order, in accordance with law.

13/ Writ petitions are accordingly disposed of.â€​

Thereafter, as directed by this Court, the respondents have passed the impugned order, which is on record dated 12.01.2016 and services of the

petitioners have been again put to an end and the reasons assigned in the order is that the roster applicable for reservation of SC/ST/OBC have not

been followed by the respondent/State in the district of Barwani and there are 40% posts are reserved for SC/ST/OBC and as they were not given

appropriate representation, the appointments of the petitioners are bad in law.

Learned government advocate has vehementally argued before this Court that in the district of Barwani, as district level roster system has not been

followed in respect of the appointment of the petitioners, their services have been put to an end vide order dated 12.01.2016 and therefore, the

question of interference by this Court does not arise.

This Court has carefully gone through the order and is of the considered opinion that the interpretation given by the respondents is erroneous. A

categoric question was asked to the government advocate i.e. whether in all the other districts of the State of M.P., by applying the district level roster

system, they have cancelled the appointment or not and his answer was 'No' and he has stated that in all other districts the appointments have not

been cancelled.

This Court fails to understand as to why the Chief Medical and Health Officer and the Collector, Barwarni have not applied the state level roster and

how can they follow their own roster in spite of the fact that clear cut directions have been given in respect of entire State of M.P. and the executive

instructions issued by the State Government cannot be ignored by the Collector and the Collector cannot supersede the instructions given by the State

Government.

There are clear pleadings on record stating that in all other districts, state level roster has been made applicable. The respondent/State Government

has safely ignored the aforesaid contention made by the petitioner in the return. The contention of the petitioner is that the Collector and Chief Medical

and Health Officer both have discontinued the petitioners as they want to introduce new persons on the posts of Pharmacist for obvious reasons.

The respondents cannot be permitted to adopt pick and choose method in respect of identical persons and the petitioners have been segregated from

their counterparts working in the other districts of M.P.. In the present case, they have been discriminated by the Collector and without following the

procedures, the order dated 12.01.2016 has been passed. Resultantly, the impugned order dated dated 12.01.2016 deserves to be quashed and is,

accordingly, quashed.

Another shocking aspect of the case is that this Court has granted an interim order on 28.01.2016 and the Chief Medical & Health Officer has passed

an order on 01.04.2017 holding that the petitioners will not be entitled to continue in service because they are working on stay and a similar decision

has been taken by the Mission Director on 13.01.2017.

In the present case, the District Collector and the Chief Medical & Health Officer have totally ignored the instructions issued by the State

Government by saying that district level roster is applicable and they have disobeyed the stay order and the interim relief granted by this Court.

In the considered opinion, once an interim order was granted, the petitioners were certainly entitled to continue in service. Resultantly, the writ petition

is allowed. Petitioners shall be entitled for grant of backwages and all other consequential benefits. Shri Patne, learned counsel has argued that the

petitioners are entitled to continue and the respondents cannot discontinue the petitioners by engaging new persons on contractual basis.

Resultantly, it is also ordered that the respondents will not discontinue the petitioners and in case, the posts are abolished or the mission itself comes to

an end, the respondents shall be free to discontinue the petitioners. However, in case, identical persons are continuing in the service, the respondents

shall also renew the contract of the petitioners from time to time keeping in view the executive instructions issued on 01.04.2015 as there is a clause

for auto renewal. The petitioners are also entitled for auto-renewal of their appointments, hence, the respondents are directed to pass an order for

auto-renewal in case of the petitioner as per executive instructions dated 01.04.2015.

With the aforesaid, writ petitions are allowed.â€​

A detailed reply has been filed by the respondents No.3 and 4 in W.P.No.18762 of 2017. Their stand is that the petitioners are not holding any

substantive or civil post with the respondents and once their contractual period is over they cannot claim appointment as a matter of right. They also

raised an issue regarding maintainability of the writ petition, on the ground that a contract of personal service is not specifically enforceable. The

remedy is only to seek the damages and not specific performance. The petitioners are neither civil servant nor workmen covered under Industrial

Dispute Act nor employees terminated from service in breach of violation of any mandatory provisions of a statute or statutory rules, the writ petition

is not maintainable.

The said stand of the NHM has been reputed by the petitioners by filing a detailed rejoinder and submitted that the Rules have been framed under

Article 309 of the Constitution of India. Article 21 of the Constitution of India, confers right to work and earn livelihood. Deprivation of means of

livelihood must be by a just fair and reasonable procedure prescribed by law. When the employer decides to terminate the services of an employee on

the ground of misconduct, an opportunity of hearing has to be afforded to the concerned employee even though his appointment may be contractual in

nature.

Shri Romesh Dave, learned Government Advocate for the respondents No.3 and 4 has submitted that the department will continue their services

till 31.3.2018 and thereafter, regarding renewal of their employment, their case will be considered as per Clause 1.3 of H.R. Policy of a National

Health Mission and the services of the petitioner's will not be terminated without considering their case as per Clause 1.3 of H.R. Policy of a National

Health Mission.

In view of the aforesaid statement, made by Shri Romesh Dave, learned Government Advocate, I disposed of these writ petitions by directing the

respondents that they will not discontinue the services of petitioner's till 31.3.2018 and thereafter, they shall consider the case of the petitioners for

renewal strictly in terms of the Rules / policy / executive instructions issued on 1.4.2015, as per Clause 1.3 of H.R. Policy of a National Health

Mission. Each individual case will be considered separately on the basis of their appraisal and after giving due opportunity of hearing to them the

competent authority will take decision by passing a reasoned order. Till then the interim order passed in these cases shall continue.

With the aforesaid, the petitions are disposed of.â€​

In light of the aforesaid judgment, present writ petitions also stand disposed of and the order passed in the case of Munnawar Khan (supra) shall be

applicable mutatis-mutandis in the present cases also. The petitioners shall be entitled for similar relief.

Certified copy as per rules.