Madhya Pradesh High Court
Smt. Tripti Gupta vs Union Of India on 29 November, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
WP 6502 of 2017
Hemant Kumar Shrivastava and Anr. Vs. Union of India & Ors.
WP 16071/2017
Deepak Kumar Sharma vs. Union of India and Ors.
WP 17733/2017
Devkinandan Sharma vs. State of MP and Ors.
&
WP 2110/2018
Smt. Tripti Gupta vs. Union of India and Ors.
Gwalior, Dated 29/11/2019
Shri Prashant Sharma, Counsel for petitioners Hemant Kumar
Shrivastava & Kapil Sharma in WP 6502/2017, petitioner Deepak Kumar
Sharma in WP 16071/2017 and petitioner Smt.Tripti Gupta in WP 2110 of
2018 & Shri MPS Raghuvanshi, Counsel for petitioner Devkinandan
Sharma in WP 17733 of 2017.
Shri Shashank Indrapurkar, Counsel for Union of India in WP
6502/2017, WP 16071/2017 and WP 2110/2018.
Shri Sankalp Sharma, Counsel for National Rural Health Mission in
all writ petitions.
Shri Alok Sharma, Counsel for the State in all petitions.
By this common order, WP 16071/2017, WP 17733/2017 & WP
2110/2018 shall be finally disposed of. As the facts in all writ petitions are
same, therefore, for the sake of convenience, the facts of WP 6502 of
2017 shall be considered.
(3) Heard finally.
2
(3) This writ petition under Article 226 of the Constitution of India has
been filed against the order dated 1-9-2017 passed by respondent no.6 by
which it has been directed not to take any work from the Data Entry Operators appointed at the Collector rate as N.H.M. Plan has not been sanctioned/approved and thus, it has been decided not to take services of the Data Entry Operators.
(4) I.A. No.5748 of 2019 has been filed seeking stay on the execution of the advertisement dated 13-11-2019 for recruitment to the post of Data Entry Operators.
(5) Since, this petition itself is being decided finally, therefore, the I.A. No. 5748 of 2019 is rejected.
(6) It is the case of the petitioners that looking to the pathetic Health condition of the citizens specifically residing in rural area, the National Rural Health Mission was constituted with specific objects to be achieved. It is pleaded that under the National Rural Health Mission Scheme, the Central Govt. is continuously funding the State Govt. and more than 80% of the amount has been funded by the Central Government and the remaining has to be contributed by the State. It is also pleaded that prescription in relation to modality of recruitment and qualification has also been prescribed and the appointments are made under the open and fair procedure. Accordingly, the petitioners were appointed on the post of Data Entry Operator on Contract Basis. It is the case of the petitioners that they were sincerely discharging their duties, however, the State 3 Government unilaterally passed the impugned order, thereby removing the Data Entry Operators for want of budget. It is submitted that non-receipt of budget cannot be a ground for removing the petitioners from service or for terminating their Contract as the principle of ''use and throw'' is not applicable in employment. The respondent no. 6 has no authority to pass the impugned order, as the respondent no.6 has no source of power to discontinue the services of the petitioners. It is further submitted that the petitioners were not appointed to meet out the temporary need, but the need of Data Entry Operators is still there.
(7) It is submitted by the Counsel for the Union of India that National Rural Health Mission is a Mission with number of Programmes/interventions under its umbrella. The Mission was initially launched for the period of 2005 to 2012. The Programmes /interventions were subjected to periodic review. Financial and Technical support is provided to the State/UTs based on Programme Implementation Plans (PIPs) submitted by them and subject to conditions of approval by the National Programme Coordination Committee. To achieve these goals, the NHM supports the State Governments to strengthen their healthcare system and encourage the States to carry out necessary reforms in the Health Sector. The NHM does not substitute the expenditure to be borne by the States/UTs on health care but only supplement efforts of the State Governments who have the primary responsibility of providing healthcare to its residents. It is also open to the State to supplement the NHM efforts 4 from its own sources. The support for Multipurpose Health Workers was given by the respondent No.1 to the States, initially for the period of 3 years from 2011-12 to 2013-14 on declining basis i.e., 85%,75% and 65%. It was made clear that the State Governments had to create the requisite number of posts and fill upon regular basis within next three years to maintain continuity. However, the support was further extended for 6 months i.e., upto 30-9-2014. Thereafter, the NHM continued Multipurpose Health Workers on its own. Thus, it was submitted that the respondent no.1 has no role to play.
(8) It is submitted by the Counsel for the respondent no.2 that it is clear from the appointment order that the appointment of the petitioners was on day-to-day basis on collector rate and does not fall in the category of contractual employment. It is further submitted that even if it is assumed that the petitioners were offered limited contract for a period of 89 days, then the non-renewal of their contract had resulted in termination of the contract between the parties and now there is no contractual obligation on the respondent no. 2 to further renew the contract. The petitioners have not been granted contractual appointment against the sanctioned post. Even otherwise, the petitioners have an alternative of seeking damages for breach of contract. The petitioners are not the civil servants nor workmen covered under the Industrial Disputes Act. It is further submitted that a scheme by the name of Janani Suraksha Yojna is being run by National Rural Health Mission with the focus to decrease the female mortality rate 5 of new born mortality rate and the scheme also focuses on the health of the female prior to and after delivery which includes facilities for the investigation. If a woman opts for institutional delivery either in Govt. Hospital or any Private Hospital, then she is given a financial assistance of Rs. 1400/- on such delivery.
(9) It is further submitted that under the Scheme, every District is provided with a 3% fund from the overall fund allotted to the District in the name of administrative fund and a provision has been made for expenditure of the fund for following four heads :
1.Stational expenditures for the purposes of record keeping of the work related to the Scheme
2.Expenditure on cleaning of the delivery ward.
3.Expenditure on the telephone connection for delivery ward.
4.Expenditure on advertisement material which includes flag sheets, wall painting etc. Out of said 3% administrative fund, in some of the Districts, appointments on the post of Computer Operator were made by National Rural Health Mission on contractual basis whereas in some Districts the appointment on Collector rate basis i.e., day-to-day basis were made. It is claimed that the petitioners were appointed on day-to-day basis to work on different projects. Because of limited allocation of funds, it is claimed that the Mission was finding difficulty in making payments to the Data Entry Operators, therefore, it was decided to re-deploy and only after due 6 selection process, they will be given appointment on vacant post of Data Entry Operator. It was also decided that only those Data Entry Operators will be given an opportunity who were ever on pay role of NRHM and those Data Entry Operators who had remained on Collector rate shall not be made part of this process. It is further submitted that decision was taken to give preference to those persons who have been appointed under the NRHM and the employees working on Collector Rates were simply daily wages employees. Since, the petitioners were not working on the pay roll, therefore, it is claimed that they have not been made part of the re-deployment process. It was claimed that the petitioners were ever given appointment on substantive post.
(10) A copy of the appointment order has been placed as Annexure P/4. In this appointment order, it is specifically mentioned that the said order can be cancelled under any circumstance and time by the issuing authority. It is also mentioned that any kind of claim in this regard shall not be accepted. Further, from the appointment order dated 31-5-2014 of petitioner Hemant Kumar Shrivastava, it appears that the said appointment was made without issuing any advertisement. It is mentioned in the appointment order, that as the Data Entry Operator has tendered resignation and a post has fallen vacant, therefore, the Petitioner no.1 was given appointment on Collector rate for a period of three months or till the further orders. Similarly, the appointment of Kapil Sharma was also for a period of three months at the rate of collector rate. Thus, it is clear that the 7 petitioners were given appointment at the collector rate for a limited period, with a clear stipulation that the period of service would be three months or till further orders. Further, it is the case of the respondent no.2, that the salary to the Data Entry Operator was being made from 3% administrative fund and it was becoming difficult for the respondent no.2 to release the salary.
(11) Heard the learned Counsel for the parties.
(12) The Counsel for the petitioners could not point any substantive right which had accrued to the petitioners. The petitioners were appointed on the post of Data Entry Operator for a limited period on Collector rate. The petitioners have not challenged the decision of the NRHM to re-deploy those Data Entry Operators, who were on pay roll of NRHM. The doctrine of legitimate expectation cannot be invoked by a daily wager to claim that they be made permanent. The NRHM has to meet out various expenses as well as to make payment to the daily wages employee from the administrative fund which is only 3% of the overall fund allotted to the District. When the petitioners were appointed on collector rate for a period of three months or till further orders, and their services were liable to be discontinued by the order of the appointing authority, then the petitioners cannot claim that their services should not be discontinued. Since, the petitioners have not challenged the decision of the NRHM to re-deploy those Data Entry Operators who were on pay roll of the NRHM, this Court cannot consider the said decision of the NRHM. 8 Discontinuation from service as per the terms and conditions of the appointment order, cannot be said to be improper. (13) The Supreme Court in the case of State Bank of India Vs. S.N. Goyal reported in (2008) 8 SCC 92 has held as under :
17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well-
recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article
309);
(ii) where a workman having the protection of the Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.
There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief--damages or reinstatement with consequential reliefs--is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory 9 rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide S.B. Dutt (Dr.) v.
University of Delhi, U.P. Warehousing Corpn. v. Chandra Kiran Tyagi, Sirsi Municipality v. Cecelia Kom Francis Tellis, Vaish Degree College v. Lakshmi Narain J. Tiwari v. Jwala Devi Vidya Mandir and Dipak Kumar Biswas v. Director of Public Instruction.) The Division Bench of this Court in the case of Brijendra Gupta and others Vs. State of M.P. and others being Writ Appeal No. 617/2015, has held as under:-
"It was further observed that it is settled legal position that extension of contractual term from time to time will not create any right in the employee to be continued in employment. The Division Bench has observed that after expiry of the period, the interim protection granted in ordinary course ought to expire.
Similar is the situation in the present case."
A coordinate Bench of this Court in the case of Prem Chand Yadav Vs. The Madhya Pradesh Madhya Kshetra Vidyut Vitaran Company Ltd Thr. passed in W.P. No.5590/2017 has held as under:-
"17. Thus, from the aforesaid facts and circumstances and considering the legal settled position the impugned order is being quashed to the extent reason assigned for terminating services of the petitioner not fulfilling the requisite criteria, but as the petitioner has no right of extension of contract period of service as his contract period is over, the employer cannot be forced to continue the petitioner in service as the same is prerogative of the employer."
(14) Under the facts and circumstances of the case, this Court is of the considered opinion that in absence of any substantive right in favour of the petitioners, no direction can be issued to the respondents to continue the 10 petitioners in service.
(15) Accordingly, this petition fails and is hereby dismissed. (16) In view of above observations, WP 16071/2017 [Deepak Kumar Sharma vs. Union of India and Ors.] WP 17733/2017 [Devkinandan Sharma vs. State of MP and Ors.] & WP 2110/2018 [Smt. Tripti Gupta vs. Union of India and Ors.] also fail and are hereby dismissed.
(G.S. Ahluwalia) Judge mkb* MAHENDRA KUMAR BARIK 2019.12.06 17:26:22 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'