Rajasthan High Court - Jaipur
Anshu Chauhan vs State (Medical An Healt Dept) Ors on 8 February, 2017
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 16270 / 2016
Anshu Chauhan Daughter of Shri Indra Pal Singh,, Aged About 29
Years, Permanent Resident of Central State Farm, 10kms, Sirsa
Road Hissar Haryana At Present Residing At 233A, Custom Officer
Enclave, in Front of Shivdaspura Railway Station, Jaipur
----Petitioner
Versus
1. State of Rajasthan Through Its Secretary, Medical Health
Department,, Government of Rajasthan, Government Secretariat,
Jaipur.
2. The Director, Medical & Health Department,, Swasthya Bhawan,
Jaipur.
3. State Nodal Officer, Directorate Medical and Health Services,,
Rajasthan, Jaipur.
4. Chief Medical and Health Officer,, Hanumangarh.
5. Sonali Jakhad, Clinical Psychologist,, Chief Medical and Health
Office At Chittorgarh (rajasthan).
6. Radha Rani, Clinical Psychologist,, Chief Medical and Health
Office At Churu (rajasthan).
----Respondents
_____________________________________________________ For Petitioner(s) : Sh. Ajay Shukla Adv.
For Respondent(s) : Sh. Sanjeev Singhal Dy. GC. _____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI Order 08/02/2017 Instant petition has been filed by the petitioner questioning the order of termination (Ann.8 dt.17-9-2016) from the post of Clinical Psychologist on which she was appointed on contract basis.
The brief facts which are necessary for disposal of the present petition are that the Joint Secretary, Department of Medical & Health, Rajasthan, Jaipur issued an advertisement dt.16-1-2015 inviting applications from the Service Provider/ (2 of 6) [CW-16270/2016] Agencies for making appointment on contract basis for different posts namely Psychiatrist, Clinical Psychologist, Psychiatric Nurse, Psychiatric Social Worker, Community Nurse(Case Manager), Monitoring & Evaluation Officer, Case Registry Assistant, Ward Assistants/Orderlies, Community Health Worker and service provider was called upon to submit their application by 27-1-2015 and their interviews were scheduled to be held on 29-1-2015.
It is something a unique mechanism which is brought to the notice of the Court that the service provider has been called upon to appear in the interview who has no knowledge of the job to be assigned for either of the post and at one point of time took a decision to induct the persons of the required qualification of the respective posts which was never approved and the incumbents who are finally selected is completely unknown to the process of selection which was initiated pursuant to advertisement dt.16-1- 2015 and the contract was executed between M/s. Dixit Computers (Service Provider) and the Government and Clause(A) of the agreement indicates various posts & the places Jaipur, Hanumangarh, Churu, Chittorgarh, Jhalawar & Baran Districts where number of persons per district has to be appointed through agency on monthly payment per person per month and this Court considers it appropriate to quote the Clause(A) as under:-
"(A) Agency will provide the services of following Contractual Manpower under National Mental Health Programmed (NMHP) in the six districts of the Rajasthan State i.e. Jaipur, Hanumangarh, Churu, Chittorgarh, Jhalawar and Baran Districts. The details are given in the table given below :-
S.No. Particular of Services Number of Persons per Monthly Payment (Name of the Post) District to the Agency Per Person Per Month (3 of 6) [CW-16270/2016] 1 Psychiatrist 1 Rs.70000.00 2 Clinical Psychologist 1 Rs.60000.00
3. Psychiatric Nurse 1 Rs.40000.00
4. Psychiatric Social 1 Rs.50000.00 Worker
5. Community Nurse 1 Rs.30000.00 (Case Manager)
6. M & E Officer 1 Rs.30000.00
7. Caser Registry 1 Rs.15000.00 Assistant
8. Ward Assistant 1 Rs.15000.00 Indisputably, the candidates to be appointed on contract basis are made available by the service provider without scrutiny of their qualifications and personality by the competent authority but still the fact is that the agreements were executed by the individual candidates with the service provider and in consequence appointments were made in various districts and copy of the appointment made in district Hanumangarh dt.1-4-2015 is on record & the period of contract was of one year from 1-4-2016 to 31-3-2017.
The present petitioner was engaged through service provider & her suitability was never adjudged at any stage while appointed on the post of Clinical Psychologist and when this fact came to the notice of the Government at a later stage that the qualifications which were made available by the Government of India, Ministry of Health & Family Welfare laying down the guidelines for implementing the district level activities under the National Mental Health Programme(NMHP) during the 12 th Plan Period for various posts, have not been taken note of while the appointments being offered to the candidates, their contracts were terminated vide order dt.17-9-2016.
The complaint of the writ petitioner is that the at the time (4 of 6) [CW-16270/2016] when she was appointed the qualifications are indicated in the agreement executed between the petitioner and the service provided, Annx.3 on 1-4-2016 and which according to the petitioner she fulfills and further submits that her appointment was made as per the conditions laid down by the authorities and once her contract of service was executed upto the period 31-3- 2017 there appears no justification in terminating her services prior thereto and submits that the qualification which has now been prescribed and placed on record by the respondents along with their reply was never the qualification for the post in question and submits that under these facts & circumstances terminating her service contract is an arbitrary exercise of power and in violation of Art.14 of the Constitution.
Reply has been filed by the respondents and it has been averred that the Nodal Officer has proceeded on its own without taking instructions/permission from the Government and adopted his own mechanism inviting service provider and inducted the individual candidates of its own which was never approved by the Government and immediately after this fact came to their notice that such action has been taken by the Nodal Officer of its own a departmental enquiry has been initiated at the same time the matter has been referred to ACB and at least such of the persons who are not holding the prescribed qualification alike the present petitioner of Clinical Psychologist which has been prescribed by the Government of India vide its circular dt.24-6-2015 at least they cannot be allowed to continue and no error has been committed by the respondents in terminating such contract of (5 of 6) [CW-16270/2016] service which was per se bad in law and more so these are not the statutory contracts and if at all the termination is in contravention of the conditions of service contract one can claim damages but reinstatement is otherwise not permissible by law.
I had an occasion to examine similar controversy where appointments were made by adopting self same mechanism and such of the candidates who were not holding the required qualification prescribed by the Government, vide circular dt.24-6- 2015, I have dismissed such writ petitions assigning detailed reasons in my order dt.10-1-2017 passed in CWP-451/2017- Sonali Jakar Vs. State of Raj. & Ors, at the admission stage.
I have heard counsel for the parties and taking note of the earlier order passed by me of which reference has been made dt.10-1-2017 where the candidate was appointed to the post of Clinical Psychologist who was not holding the requisite qualification prescribed by the Government dt.24-6-2015 to hold the post of Clinical Psychologist, I have dismissed such writ petition assigning detailed reasons under order dt.10-1-2017.
That apart submission of petitioner's counsel is wholly without substance for the reason that the method adopted by the respondent through Nodal Officer inviting service provider through advertisement for interview is a unique mechanism which cannot be countenanced by this Court and the candidates selected with whom contract has been executed for different posts their suitability was never adjudged before deploying under the National Mental Health Programme and if such service contracts are executed it is a void ab initio bad and the persons who were (6 of 6) [CW-16270/2016] appointed by adopting such arbitrary procedure cannot be allowed to continue and that apart the qualifications prescribed by the Government of India if the petitioner failed to hold at least no error has been committed in terminating her services & also of such other unqualified persons.
Counsel for petitioner submits that the petitioner had worked for sometime under the contract but salary for that period has not been paid to her. It is expected from the respondents that if the petitioner had worked let the matter be considered for release of salary of the period during which she had worked.
Consequently, the writ petition is devoid of merit and is accordingly dismissed with the observations supra.
(AJAY RASTOGI)J. Shekhawatvs(S-301)