Nirbhan Singh Yadav And Anr vs State Of Madhya Pradesh

Since the common question of law is involved in these petitions, therefore they are heard together and are being disposed of by this common order.

2 For the sake of convenience, the facts are borrowed from W.P.No.12167/2017 and W.P.No.12184/2017.

By the writ petitions, the petitioners are challenging the policy dated 27.7.2017 passed by the Director, National Health Mission, Bhopal, respondent

no.3 herein, by which the direction has been issued to the Block/CHC/PHC, Medical Officer of the State of Madhya Pradesh to put the services of

employees appointed under the National Health Mission (M.P.) in their respective Rogi Kalyan Samiti (R.K.S.) by changing the service conditions of

the petitioners and thereby reducing the salary of the petitioners and changed the status of their Employer.

Facts in brief for adjudication are that the respondent/Department of Health and Family issued an advertisement for recruitment to the sanctioned

post of Contract DDC Support Staff under the National Health Mission through the State of Madhya Pradesh and the applications were invited.

Department also formulated Rules in this regard. The petitioners responded to the advertisement and were selected on the post of Contractual

DDC Supprot Staff from their respective Districts and were appointed vide different appointment orders.

It is the submission of the petitioners that in the year 2016-17 they received total salary which includes total emoluments of Rs.7,099/-. By the

impugned order dated 27.7.2017, respondent no.3 passed an order addressed to the Chief Medical and Health Officer of State of Madhya Pradesh

directing them that National Health Mission will provide fixed amount of Rs.5,000/- towards per Support Staff per month to the Rogi Kalyan Samiti,

in which the Samiti has to manage the staff. Impliedly petitioners’ salaries have been reduced from Rs.7099/- to fixed amount of Rs.5,000/-

which amounts to variance of service conditions to their detriment. Therefore, as per the submissions, by the impugned order not only the

petitioners’ salary have been reduced, but terms and conditions of services have also been changed including the change of Employer itself,

inasmuch as, instead of National Health Mission, the petitioners have been brought under the administrative control of Rogi Kalyan Samiti. The said

action of respondents was put to challenge by the petitioners before this Court by way of filing writ petitions under Article 226 of the Constitution of

India.

The respondent no.3 which appears to be the contesting respondent filed the reply, rebutted the claim of the petitioners. According to the learned

counsel for respondent no.3, as per the policy decision and after various rounds of discussion with the Government of India representatives, a decision

has been arrived at to allot lump sum amount to the State Government to run support services. While granting administrative approval for the year

2017-18 Government of India, put a rider and suggestions to outsource services to the extent possible. While referring charter of Rogi Kalyan

Samiti (Annexure R-3) and its different clauses 6(5), (19) of Charter dealing with powers and responsibility of the Executive Council, it is apparent

that the Executive Council is empowered to appoint Support Staff as well as decide the emoluments and honorarium. Therefore, to provide effective

responsibility for running support services PIP 2017-18 has been made available to represent R.K.S., already looking after the management of the

Hospitals in the entire State and empower to appoint the Support Staff on contract basis as well as to decide the remuneration and honorarium ,as per

their requirements.

Respondents opposed the prayer of petitioners on the ground that petitioners were not given contractual appointment against the sanctioned vacant

post or on the post as defined under section 4 of M.P. Contractual Appointment to Civil post Rules, 2017, therefore the petitioners were at best given

the contractual appointment, as per the requirement for a fixed tenure and once the contractual period is over and since it was not renewed, therefore

no question of breach of contract subsists. At best damages could have been claimed by the petitioners for breach of contract, if any existing

(although denied). The respondent no.3 relied upon the judgment of Apex Court in the case of State Bank of India and others Vs. S.N.GoyalÂ

[(2008) 8 SCC 92] wherein, it has been held that a contract of personal service is not specifically enforceable. Through the series of judgments

relied upon, learned counsel for respondent prays for dismissal of writ petition.

Today when the case was listed for hearing, learned counsel for respondent no.3 referred the application for disposal of bunch of petitions in the

light of judgment passed passed by Coordinate Bench of this Court in bunch of writ petitions, decided on 22.3.2018, in which W.P.No.5594/2017(S) is

the leading case and sought parity. The said application vide I.A.No.4029/2018 was pressed for arguments.

Learned counsel for petitioners could not able to factually distinguish the similarity of facts contained in order passed in W.P.No.5594/2017(S) (as

leading case) in any manner.

Learned counsel for respondent/State also opposed the prayer made by the petitioners, but submits in the light of order dated 22.3.2018 passed in

bunch of writ petitions that the Department will not discontinue their services till the individual case of every petitioner is considered and scrutinized

separately on the basis of their appraisal and after giving due opportunity of hearing to them, appropriate steps shall be ensured.

The factual controversy as referred in the present bunch of cases are akin to the facts of bunch of writ petitions, which were decided by order

dated 22.3.2018 passed in bunch of Writ petitions, in which W.P.No.5594/2017(S) is the leading case. In the said bunch of writ petitions, the

petitioners were aggrieved by the order dated 27.7.2017 issued by the Director, National Health Mission, Bhopal and same is the case in the present

petitions.

After considering the submission of the parties as well as the order dated 15.5.2017 passed by a Coordinate Bench of this Court in the bunch of

writ petitions, vide W.P.No.714/2016 and other writ petitions, Coordinate Bench has finally passed the order in which operative part reads as under :-

“10.   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 the present case also the respondent no.3 has taken exception to the submission of petitioners on the ground of their status as contractual

employees, but at the same time has submitted for consideration of each case individually, as per the order dated 22.3.2018 passed by Coordinate

Bench.

In the present bunch of cases, it appears that in the majority of cases interim orders have been passed and service condition of petitioners have

been protected by the effect of said interim orders. Therefore, while relying upon the order dated 22.3.2018 as referred above, this Court deem it

appropriate to dispose of writ petitions by directing the respondents that they will consider the case of petitioners on individual basis for renewal of

contractual in terms of rules/policy/executive instructions issued on 1.4.2015, as per clause 1.3 of H.R.Policy of National Health Mission and said

scrutiny of individual case shall be ensured separately on the basis of individual appraisal and after due opportunity of hearing accorded to them by the

competent authority and thereafter reasoned order shall be passed by the authority under due intimation to the petitioners.

Since the petitioners were enjoying interim protection by different interim orders passed by this Court in different writ petitions on separate

occasions, therefore in the interest of justice, it is hereby clarified that till date of decision to be taken by the competent Court, all the petitioners who

are in receipt of interim order shall be allowed to enjoy the service benefits, which they were enjoying at the time of issuance of impugned order dated

27.7.2017 and they will not be put up to any disadvantage in this regard, till a final decision is taken by the competent authority in each case by

scrutinizing the case on the basis of individual performance/appraisal.

With the aforesaid direction, all the petitions stand partly allowed and disposed of.