Madhya Pradesh High Court
Rohit Ahirwar vs The State Of Madhya Pradesh on 18 April, 2018
HIGH COURT OF MADHYA PRADESH, JABALPUR
W.P.No.11905/2017(S)
(Nirbhan Singh Yadav Vs. State of M.P.)
W.P. No.12167/2017(S)
(Vijay Kumar Lodhi Vs. State of M.P.)
W.P. No.12184/2017(S)
(Suraj Prakash Awadhiya Vs. State of M.P.)
W.P. No.12286/2017(S)
Chandan Singh Banskar Vs. State of M.P.)
W.P. No.12287/2017(S)
(Aditya Soni Vs. State of M.P.)
W.P. No.12584/2017(S)
(Smt. Tanjeeb Begam Vs. State of M.P.)
W.P. No.12746/2017(S)
(Subhash Pawar Vs. State of M.P.)
W.P. No.12865/2017(S)
(Darvari Singh Sareyam Vs. State of M.P.)
W.P. No.12897/2017(S)
(Kamlesh Jatav Vs. State of M.P.)
W.P. No.12900/2017(S)
(Smt. Seema More Vs. State of M.P.)
W.P. No.12990/2017(S)
(Harendra Prasad Chaturvedi Vs. State of M.P.)
2
(W.P.No.11905/2017 & connected matters)
W.P. No.13061/2017(S)
(Rajendra Prasad Ahirwar Vs. State of M.P.)
W.P. No.13114/2017(S)
(Deepak Singh Lodhi Vs. State of M.P.)
W.P. No.13121/2017(S)
(Smt. Kiran Namdeo Vs. State of M.P.)
W.P. No.13139/2017(S)
(Ajay Prakash Gautam Vs. State of M.P.)
W.P. No.13154/2017(S)
(Mahendra Mehra Vs. State of M.P.)
W.P. No.13157/2017(S)
(Ahok Kumar Marskol Vs. State of M.P.)
W.P. No.13304/2017(S)
(Smt. Sadhna Singh Vs. State of M.P.)
W.P. No.13626/2017(S)
(Jugal Bohat Vs. State of M.P.)
W.P. No.13647/2017(S)
(Shanteshwar Prasad Tiwari Vs. State of M.P.)
W.P. No.13667/2017(S)
(Smt. Nisha Bhatt Vs. State of M.P.)
W.P. No.13811/2017 (S)
(Smt. Rekha Tiwari Vs. State of M.P.)
W.P. No.13986/2017(S)
(Arun Kumar Kannojiya Vs. State of M.P.)
3
(W.P.No.11905/2017 & connected matters)
W.P. No.14065/2017(S)
(Hukum Chand Rajak Vs. State of M.P.)
W.P. No.14226/2017(S)
(Smt. Leelawati Rathore Vs. State of M.P.)
W.P. No.14229/2017(S)
(Arpit Jain Vs. State of M.P.)
W.P. No.14296/2017(S)
(Deepak Dubey Vs. State of M.P.)
W.P. No.14301/2017(S)
(Ravi Shanker Verma Vs. State of M.P.)
W.P. No.14325/2017(S)
(Ankit Chourasia Vs. State of M.P.)
W.P. No.14455/2017(S)
(Mulayam Singh Yadav Vs. State of M.P.)
W.P. No.14504/2017(S)
(Ramshanker Padwar Vs. State of M.P.)
W.P. No.14581/2017(S)
(Prabhakar Dwivedi Vs. State of M.P.)
W.P. No.14607/2017(S)
(Vaishali Sen Vs. State of M.P.)
W.P. No.14617/017 (S)
(Suresh Kumar Pankika Vs. State of M.P.)
W.P. No.14634/2017 (S)
(Dhirendra Ahirwar Vs. State of M.P.)
4
(W.P.No.11905/2017 & connected matters)
W.P. No.14902/2017(S)
(Sunita Mishra Vs. State of M.P.)
W.P. No.14961/2017(S)
(Arvind Rawat Vs. State of M.P.)
W.P. No.15264/2017(S)
(Mukesh Kumar Harijan Vs. State of M.P.)
W.P. No.15357/2017(S)
(Amar Chandel Vs. State of M.P.)
W.P. No.15545/2017(S)
(Smt. Vijaylaxmi Sen Vs. State of M.P.)
W.P. No.15726/2017(S)
(Smt. Alpana Tiwari Vs. State of M.P.)
W.P. No.16322/2017(S)
(Prahlad Kumar Banse Vs. State of M.P.)
W.P. No.16790/2017(S)
(Smt. Sandhya Gupta Vs. State of M.P.)
W.P. No.16945/2017(S)
(Smt. Deepika Parihar Vs. State of M.P.)
W.P. No.17428/2017(S)
(Kamla Vishwakarma Vs. State of M.P.)
W.P. No.17877/2017(S)
(Sarvesh Kumar Mishra Vs. State of M.P.)
5
(W.P.No.11905/2017 & connected matters)
W.P. No.18296/2017(S)
(Vinay Kumar Pandey Vs. State of M.P.)
W.P.19618/2017(S)
(Foolmani Bhatiya Vs. State of M.P.)
W.P. No.20309/2017(S)
(Rohit Ahirwar Vs. State of M.P.)
W.P. No.20331/2017(S)
(Chetna Inwati Vs. State of M.P.)
W.P. No.753/2018(S)
(Rittu Kol Vs. State of M.P.)
&
W.P.No.5670/2018(S)
(Kamal Dubey Vs. State of M.P.)
Present : Hon. Shri Justice Anand Pathak
Sarvashri K.C.Ghildiyal, Jagannath Tripathi, Nilesh
Kotechcha, S.P.Mishra, M.N.Ansari, Jitendra Jain,
Praveen Pandey, Anwar Ahmed, G.R.Saket, Dinesh
Tripathi, Ankur Shrivastava, Ramdarsh Tiwari, Jafar
Khan, R.K.Tandon, Anil Kumar Tiwari, D.K.Khare,
R.Singh, Adamya Bajpai, G.S.Uddey, Vikas Mahawar,
S.P.Gupta, Lalji Kushwaha, learned counsel for
petitioners.
Shri Sudeep Deb, G.A., for State.
Shri Satyam Agarwal, learned counsel for respondent
no.3.
6
(W.P.No.11905/2017 & connected matters)
ORDER
(18.04.2018) 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.
3. 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.
4. It is the submission of the petitioners that in the year 2016-17 they received total salary which includes total 7 (W.P.No.11905/2017 & connected matters) 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.
5. 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 8 (W.P.No.11905/2017 & connected matters) 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.
6. 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.Goyal [(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.
7. 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 9 (W.P.No.11905/2017 & connected matters) 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.
8. 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.
9. 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.
10. 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.
11. After considering the submission of the parties as well as the order dated 15.5.2017 passed by a Coordinate Bench 10 (W.P.No.11905/2017 & connected matters) 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.
11. 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.
12. 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.
13. 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 11 (W.P.No.11905/2017 & connected matters) 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.
14. With the aforesaid, the petitions are disposed of."
12. 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.
13. 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.
14. 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 12 (W.P.No.11905/2017 & connected matters) 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.
15. With the aforesaid direction, all the petitions stand partly allowed and disposed of.
(Anand Pathak) Judge M Digitally signed by SANTOSH P MATHEWS Date: 2018.04.20 10:02:11 +05'30'