Naresh Chandra & Others vs Union Of India & Others

Ramesh Ranganathan, CJ

Heard Mr. Anil K. Joshi, learned counsel for the appellant and Mr. Sanjay Bhatt, learned Standing Counsel appearing for the Union of India-respondents and, with their consent, the appeal is disposed of at the stage of admission. The appellants herein are petitioner nos.1 to 3 in the Writ Petition (S/S) No.675 of 2017. They, along with another, filed Writ Petition (S/S) No.675 of 2017 seeking a writ of certiorari to quash the advertisement dated 04.04.2017 in so far as it invited applications for contractual appointment against the posts held by the petitioners; a mandamus commanding the respondents to extend the appointment of the petitioners as per the stipulation made in the agreement executed between the petitioners and the Station Commander; and a mandamus restraining respondent nos.3, 4 and 5 from taking any decision contrary to the instructions issued by the second respondent vide letter dated 24.05.2011, and to permit the para-medical/non-medical employees to continue in service till they attain the age of superannuation i.e. 55 years.

Facts, to the limited extent necessary, are that, in the year 2003, the Central Government launched the Ex-servicemen Contributory Health Scheme (ECHS) to provide quality health care to ex-servicemen/pensioners, and their dependants through a network of ECHS Polyclinics across the country. The scheme provided for a structured cashless medical treatment for its beneficiaries in the Allopathic medical system of medicine. The scheme is funded by the Central Government. In terms thereof, the appellants-writ petitioners were appointed to the posts of Lab Technician, Pharmacist and Dental Hygienist in the years 2014 and 2016. Their services were extended, thereafter, in terms of the agreement. The agreement executed between the first appellant and the Station Commander dated 13.06.2016, stipulates, in Clause 2, as under:-

"The engagement of the Engaged person for rendering his professional services shall be entirely contractual in nature and will be for a period of 11 months initially and thereafter renewable for 12 months at a time upto and subject to attaining the maximum age prescribed/indicated in Appendix A to Government of India, Ministry of Defence letter No.24(6)/03/US(WE)D(Res) dt 22nd September 2003 and a subject to conditions as amended at Para 4 of the letter No.B/49760/AG/ECHS/(R) (i) dt 24th May 2011 of Central Org, ECHS, AG's Branch, AHQ, Maude Line Delhi Cantt-110010 (Tenure of Contractual Employees at ECHS Polyclinic) or as amended from time to time. The renewal of contract will be subject to continue good conduct and performance of the engaged person during the preceding 12 months and existence of the requirement for services of the Engaged person at the ECHS Polyclinic. A fresh contract will be executed for each renewal."

In terms of the said clause, while the engagement is entirely contractual, and was for a period of 11 months initially, it was renewable for a period of 12 months at a time, till the contractee attained the maximum age prescribed in the notification dated 24.05.2011 i.e. of 55 years. While the agreement contained a renewal clause, such a renewal was made subject to the continued good conduct and performance of the engaged persons during the preceding 12 months, and the existence of the requirement for their services at the ECHS Polyclinics. Further, a fresh contract was required to be executed for each renewal.

The appellants-writ petitioners were continued in service till an advertisement was issued on 04.04.2017 inviting applications for appointment on a contractual basis in the ECHS Polyclinics, at Haldwani and Rudrapur, for the posts stipulated in the advertisement. The advertised posts included the posts of Pharmacist, Lab Technician and Dental Hygienist, in which posts the appellants-writ petitioners were earlier employed. Aggrieved thereby, the appellants-writ petitioners invoked the jurisdiction of this Court and, despite the said advertisement, were continued in service in view of the interim order passed in Writ Petition (S/S) No.675 of 2017 dated 19.07.2017. Consequent on the dismissal of the Writ Petitioner, by the order under appeal dated 15.05.2019, the services of the appellants-writ petitioners were terminated by the respondents by proceedings dated 29.05.2019. Aggrieved thereby, the present appeal.

In the order under appeal, the learned Single Judge observed that medical clinics had been established in almost all the districts; these clinics primarily catered to Ex-servicemen and their families; as per the scheme dated 22.09.2003, these clinics were to be manned by medical officers, including dental officers and para medics; and the said scheme laid down that employment in these clinics shall be made on a contractual basis, and reservation shall be provided to Ex-servicemen. After extracting the percentage of reservation, provided in favour of Ex-servicemen and for open vacancies in different posts, the learned Single Judge observed that it is only when Ex-servicemen are not available can resort be made to engaging civilians to man such posts; the appellants-writ petitioners were, admittedly, civilians who were working as paramedics in these clinics; in its counter-affidavit, the Union of India had stated that ECHS not only catered to Ex-servicemen and their family, but was primarily to be manned by Ex-servicemen; though, in the case of paramedics, only 30% of the posts can be filled up by civilians, in many cases they were occupying more than 30% of the posts whereas Ex-servicemen, who were fully qualified for these posts, were sitting idle; it is on their request that the process had been initiated for recruitment by fresh advertisement so that, in the districts where Ex-servicemen were available against the posts reserved for them, they could be suitably employed.

In the order under appeal, the learned Single Judge distinguished the earlier Division Bench judgment, in Writ Petition (S/B) No.122 of 2018 dated 19.09.2018, and held that the said judgment was in the context of doctors and dental officers, whereas the present matter related to paramedics; and the attention of the Division Bench was not drawn to the fact that most of the posts were occupied by civilians, though the same was required to be manned primarily to benefit Ex-servicemen. While dismissing the Writ Petition, the learned Single Judge observed that the respondents should continue with the process of selection; the appellants-writ petitioners were always at liberty to participate in the recruitment process; and, in case sufficient Ex-servicemen were not available, they shall then be considered for employment against the posts which were reserved for Ex-servicemen.

Mr. Anil K. Joshi, learned counsel for the appellants-writ petitioners, would submit that a contractual employee cannot be replaced by another, even if it be through a process of selection; it is only if a selection process is resorted to, to fill up the posts on a regular basis, can the services of a contractual employee be dispensed with thereafter; in the present case, the contract, entered into between the appellants-writ petitioner on the one hand and the Station Commander on the other, provided for automatic extension of the contract till the contractee attained the age of super-annuation as stipulated in the 2011 Rules; the appellants-writ petitioners were appointed in terms of the 2011 Rules, and not under the 2003 Rules; there is no provision for reservation of posts, in favour of Ex-Servicemen, in the 2011 Rules; and the learned Single Judge was in error in directing the appellants-writ petitioners to also participate in the selection process, for appointment, on a contractual basis, afresh.

On the other hand Mr. Sanjay Bhatt, learned Standing Counsel for the Union of India, would submit that, since the scheme is made primarily to provide appointment to Ex-servicemen and to cater to their medial requirements, the present process of recruitment, for engagement of personnel on contractual basis, is being resorted to in order to give preference to Ex-servicemen in such posts; the appellants-writ petitioners are, admittedly, civilians and are not Ex-servicemen; the clause providing reservation, in favour of Ex-servicemen, in the 2003 Rules has not been superseded by the 2011 Rules; consequently, the respondents were justified in resorting to a fresh recruitment process; and the order of the learned Single Judge does not necessitate interference.

Before examining the rival contentions, it is necessary to take note of the relevant provisions of the 2003 Rules as modified in the year 2011. The Ex-Servicemen Contributory Health Scheme (ECHS) was framed vide proceedings dated 22.09.2003. The said scheme prescribed the procedure for contractual employment of staff for ECHS Polyclinics. The said scheme stipulated that the manpower to be authorized at the ECHS Polyclinics would be as per the details of contracted staff sanctioned for Types 'A', 'B', 'C' and 'D' Military and Non Military Stations as specified in Appendix 'E' and 'F' to the letter dated 30.12.2002; sanction, for contractual employment of medical, paramedical and non-medical staff for ECHS Polyclinics, would be accorded by a General Officer Commanding of an Area or equivalent; preference would be given to Ex-Servicemen for all employment in the ECHS; and, with respect to Paramedical staff including Dental Hygienist/Assistant and Lab Assistant (the posts in which the appellants-writ petitioners were earlier appointed on a contractual basis), the percentage of vacancies reserved in favour of Ex-servicemen was 70%, and for open vacancies it was only 30%. Clause 4 of the said scheme stipulated that, when the requisite percentage of Ex-servicemen were not available, a specific certificate signed by the GOC Area would be placed on record and, thereafter, the vacancies shall be utilized by employing a suitable civilian; the GOC Area's sanction would be valid for a period of eleven months; and, during this period, efforts would be made to appoint suitable Ex-servicemen. The said scheme, thereafter, prescribed the mode in which applications were to be invited, and the procedure for selection.

By way of the notification dated 24.05.2011, the tenure of contractual employees at ECHS Polyclinics was modified. In terms of the 2011 modification to the scheme, there is no restriction for paramedic and non-medics; and, in the said case, it should be ensured that the contract of persons, found involved in accepting business promotion incentives from Private Hospitals/Nursing Homes/Dental Centres/Diagnostic Centres, be terminated; and an appropriate clause be included in the agreement.

As the proceedings dated 24.05.2011 specifically states that the earlier letter dated 07.03.2006 is being superseded, it is evident, therefore, that the 70% reservation provided in the 2003 scheme, in the posts of paramedical staff, in favour of Ex-servicemen, continues; and it is only in the remaining 30% vacancies can civilians also be considered for appointment.

The appellants-writ petitioners are, admittedly, civilians. While it is no doubt true that the contract executed with them contains a specific clause for renewal of the contract periodically, till the contractee attains the age of superannuation, the said contract is itself required to be made in terms of the scheme; and as is evident, from Clause 4 of the 2003 scheme, renewal of the contract in favour of civilians can only be made, in posts reserved for Ex-servicemen, till Ex-servicemen are appointed to the said posts.

It is brought to our notice by Mr. Sanjay Bhatt, learned Standing Counsel appearing of the Union of India-respondents, that, during the pendency of the Writ Petition, a new scheme was introduced in the year 2017.

As the Division Bench judgment, on which the appellants-writ petitioners place reliance upon, did not notice the requirement of the 2003 scheme to provide 70% reservation in favour of Ex-servicemen, the learned Single Judge was justified in holding that the Division Bench judgment had no application; and reliance placed on the said Division Bench judgment, on behalf of the petitioners, was misplaced.

We are satisfied that, in case, sufficient number of Ex-servicemen are not available to man the posts of paramedics, which were hitherto occupied by them, the appellants-writ petitioners cannot be subjected to another process of selection only to be appointed on contractual basis, for it is well settled that an employee engaged on a contractual basis cannot be substituted by another contractual employee. Suffice it, in such circumstances, to modify the order under appeal to the limited extent that if, after conclusion of the process of selection, all the available posts are not filled up with Ex-servicemen and sufficient posts still remain unfilled, the respondents shall consider the claim of the appellants-writ petitioners to be continued in service, in terms of the agreement executed earlier, in such posts.

Needless to state that, since the agreement entered into with the appellants-writ petitioners itself stipulates that they shall be continued subject to good conduct and performance during the preceding 12 months, and existence of the requirement for services of the engaged person at the ECHS polyclinic, the respondent shall consider renewal the contract entered into with the appellants-writ petitioners earlier, provided also that they satisfy this requirement. It is further made clear that the contract, with the appellants-writ petitioners, shall be renewed strictly in compliance with the 2003 and 2017 schemes, including Clause 4 of the 2003 scheme which requires the GOC Area's sanction to be valid only for a period of 11 months, during which period efforts were required to be made to appoint suitable Ex-servicemen in these posts.

Mr. Anil K. Joshi, learned counsel for the appellants-writ petitioners, would submit that, though the appellants-writ petitioners had actually worked till 29.05.2019, their services were terminated w.e.f. 15.05.2019 since the order under appeal was passed on that date. If, as is now contended before us on behalf of the appellants-writ petitioners, they had actually worked till 29.05.2019, they are undoubtedly entitled to be paid their remuneration till that date. The mere fact that the Writ Petition was dismissed on 15.05.2019 cannot result in their being deprived of salary for the period for which they had actually worked.

Suffice it, in such circumstances, to permit the appellants-writ petitioners to make a representation to the competent authority seeking payment of salary for the period from 15.05.2019 to 29.05.2019. The competent authority shall, after verification, pay the appellants-writ petitioners' salary, for the period for which they actually worked, within two months from today.

Subject to the aforesaid modification, the Special Appeal fails and is, accordingly, dismissed. No costs.