Lalit Kumar Sharma vs State of Madhya Pradesh

Learned counsel for the parties have fairly stated before this Court that that an identical writ petition has already been decided i.e. Writ Petition

No.5706/2017 (Praveen Patidar  s.

Public Health and Family Welfare Department and Others) and therefore, no further adjudication is required in the matter. Paragraphs No.2 to 14 of

the Judgment delivered in the case of Praveen Patidar on 22/03/2018 reads as under:-

“2. By these writ petitions, the petitioners are challenging the order dated 26.9.2017 / 13.10.2017, passed by the respondent No.2 in pursuance to

the order dated 27.7.2017, issued by the Director National Health Mission (Rashtriya Swasth Mission), Bhopal, by which direction has been issued to

the block / CHC / PHC, medical officer of State of M.P. to put the services of the employees appointed under the National Health Mission (M.P.) in

the respective Rogi Kalyan Sameeti (R.K.S.) by changing the service conditions of the petitioners and thereby reducing the salary of the petitioner and

changed the status of their employer. By the aforesaid order, it was directed that the service of the petitioners be handed over to the respective Rogi

Kalyan Sameeti and it was also held that the petitioners will become employer of Rogi Kalyan Sameeti. The challenge has been made mainly on the

ground that the aforesaid order has been passed without affording opportunity of hearing to the petitioners and without considering the provisions of

M.P. Contractual Appointment to Civil Post Rules, 2017.

Facts of the case are that the respondent No.3 issued an advertisement inviting application for the post of “DDC Support Staffâ€. The

petitioners being eligible candidates applied and after assessing their merits by duly constituted selection committee, they were appointed on 4.12.2014.

According to the petitioners, their services are governed under Rule issued by M.P. Public Health and Family Welfare Department, Bhopal. As per

Clause 24.1, the contract period will be upto 31st March of every current year and same shall be extended on the basis of their performances. Clause

24.1 & 24.11 reads as under :-

24-1 mijksDr lafonk inksa ij fu;qfDr] fu;qfDr vkns'k fnukad ls fnukad 31 ekpZ 2014 rd ds fy, gksxhA mDr vof/k ds i'pkr vkS""kf/k forj.k dsUnz&liksZV

LVkWQ ds dk;Z vk/kkfjr ewY;kadu esa ;ksX; ik;s tkus ij fu;qfDr vof/k dks jk""Vªh; xzkeh.k LokLF; fe'ku] e-iz- }kjk Lohd`r vof/k ds fy, cldsxkA

24-11 ftyk LokLF; lfefr }kjk ifjfLFkfrtU; dkj.kksa ls lafonk fu;qfDr ,d ekg dh iwoZ lwpuk vFkok ,d ekg ds lfaonk ekuns; dh lerqY; jkf'k dk Hkqxrku dj

lekIr dh tk ldsxhA

Their salary was Rs.7100/- and after deduction from the said salary, they received Rs.6262/-. After expiry of the contract period, they have been

allowed to continue on the post in question. By order dated 6.9.2016, the services of the petitioners have not been terminated yet they have been

denied the wages on the ground that since the funds have not been received, therefore, a notice has been given and the proposal for obtaining the

funds from the Central Government has already been sent and the response is awaited.

Considering the aforesaid, by virtue of order dt. 13.10.2016, passed in W.P.No.6625 of 2016, the learned writ court granted interim stay and

thereafter on the basis of letter dated 8.11.2016, the writ petition was allowed. The order impugned dated 6.9.2016 was set aside and the respondents

were directed to continue the services of the petitioners with existing wages as per the appointment order.

Shri Jitendra Verma, learned counsel for the petitioners has drawn my attention to letter dated 4.4.2017 (Annexure P/9) and submitted that Director

National Health Mission, M.P. renewed the contract of the petitioners. After renewal on 27.7.2017 (Annexure P/1), the Director NHM, M.P. without

taking any prior approval of the Government of India, changed the service condition of the petitioners and transferred the services of the petitioner's to

Rogi Kalyan Sameeti. By order dated 27.7.2017, Director, National Rural Health Mission, respondent No.4 directed all the concerned department that

the separate staff will be appointed by Rogi Kalyan Sameeti and their services shall be governed by Rogi Kalyan Sameeti and further reduced the

salary from Rs.7100/- to Rs.5000/- per month. According to the petitioners, this is absolutely contrary to the policy of the National Health Mission,

which is running and controlled by the Union of India. He further submitted that as per H.R. Policy, 2017 dated 19.2.2017, the Mission Director is sole

controlling authority of the petitioners and only respondent No.4, the Mission Director has jurisdiction to absorb the service of the petitioners in other

project under National Health Mission. To support the aforesaid contention, he has drawn my attention to Clause 8.1 and 8.3 of Annexure P/12, which

reads as under :-

8- ;qfDrdj.k@iz'kkldh; LFkkukarj.k

8-1 3 o""kZ ;k blls vf/kd le; rd LFkkiuk@foRr ls lacaf/kr inksa ij dk;Zjr vf/kdkjh@deZpkfj;ksa dk inLFkkiuk LFky ifjorZu fd;k tk ldsxkA dk;ZØe

izca/kd] ys[kk izca/kd] ekWuhVfjax ,oa bosY;w'ku vf/kdkjh bR;kfn dks vko';drkuqlkj 3 o""kZ dh lafonk vof/k ds mijkUr vU; ftys@LFky ij lafonk vk/kkj

ij inLFk fd;k tk ldsxkA

8-3 fe'ku ds varxZr ftyksa esa inLFk lafonk deZpkfj;ksa ds inLFkkiuk LFky esa ifjorZu iz'kkldh; vko';drkuqlkj ;qfDr;qDrdj.k ds ek/;e ls ftyk LokLFk

lfefr }kjk ftys ds Hkhrj fd;k tk ldsxkA ;qfDr;qDrdj.k dk foLr`r izLrko eq[; fpfdRlk ,oa LokLFk; vf/kdkjh } jk rS;kj fd;k tk;sxkA ftlesa fu;fer ,oa lafonk

nksuksa izdkj ds deZpkfj;ksa dk ;qfDr;qDrdj.k 'kkfey gksxkA bl izLrko dk fe'ku lapkyu@fe'ku lapkyd }kjk vf/kd`r vf/kdkjh ds le> izLrqr fd;k tk;sxkA

fe'ku lapkyd dh lgefr i'pkr ;qfDr;qDrdj.k izLrko dk;kZfUor fd;k tk;sxkA fe'ku lapkyd dh iwokZuqefr ds fcuk fd;s s;s ;qfDr;qDrdj.k voS/k ekus tk;sxkA

The stand of the respondents No.3 and 4 that the impugned order has been issued on the instructions of the Government of India, but there is no

material on record regarding the instructions, if any, issued by the Government of India.

In the earlier round of litigation, the respondent No.2 made a statement that they will not terminate the service of the petitioners and no fresh

appointment will be issued unless the service of the support staff is merged in other department. On the basis of the aforesaid, the respondent No.3

issued a letter dated 4.4.2017 to renew the contract of the petitioners. The H.R. Policy provides for automatic renewal of contract of employees,

therefore, once a letter for renewal of contract of the petitioner's is issued, no such impugned order can be passed and prayed that writ petition(s) be

allowed.

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

15.05.2017

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 wasÂ

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 beÂ

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 andÂ

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 ofÂ

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 theÂ

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 mentionthat 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 beÂ

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 appointmentsÂ

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 toÂ

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.

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

12/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 back-wages 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 petition also stands disposed of. The judgment delivered in the case of “Praveen Patidar†(supra) shall

be applicable mutatis-mutandis in the present case also.

Certified copy as per rules.