Himachal Pradesh High Court
Surender Nikhil Gupta vs Union Of India & Others on 4 September, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1403 of 2020 Reserved on 31.08.2020 .
Decided on: 04.09.2020
Surender Nikhil Gupta ...Petitioner.
Versus
Union of India & others ....Respondents.
....................................................................................... Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Ms Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No
For the petitioner r : Petitioner in person.
For the respondents : Mr. Shashi Shirshoo, Central Government
Counsel, for the respondents.
(Through video conference)
Jyotsna Rewal Dua, Judge
Petitioner's contractual appointment for a period of 11 months as Medical Officer in Ex-servicemen Contributory Health Scheme ( ECHS) Polyclinic at Yol Cantt. District Kangra came to end on 7.4.2020. Fresh selection process was held by the respondents, selecting and appointing one Dr. Brij Mohan Sharma, who statedly has assumed his duties w.e.f 8.4.2020.
Against this backdrop, petitioner has prayed for quashing of fresh advertisement as well as for restoration of status-quo-ante prior to 7.4.2020.
2(i). The respondents launched Ex-servicemen Contributory Health Scheme (ECHS) in 2003 for rendering Medical Health Care through a network of service and Civil Empanelled Hospitals. ECHS functions in 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 2accordance with the policies framed by the Central Organization ECHS under the Government of India, Ministry of Defence, Department of Ex-
.
servicement Welfare.
2(ii) Under this scheme contractual employment of staff is made for ECHS Polyclinics.
2(ii)(a) Para-4 of the Government of India, Ministry of Defence letter dated 22.9.2003 in respect of duration of contractual period provides that "when requisite percentage of ex-servicemen are not available, specific certificate signed by GOC Area would be placed on record and thereafter the vacancies utilized by employing a suitable civilian. The GOC Area's sanction would be valid for a period of eleven months only. During this period efforts will be made to appoint a suitable Ex-serviceman."
Para-8 of the above mentioned letter spells out the terms and conditions for contractual employment. Para 8(d) pertaining to duration of employment reads as under:-
" Duration of employment. The employment of the staff will be entirely contractual in nature and will be normally for a period of two years at the maximum, subject to review of their conduct and performance after eleven months."
2(ii)(b) On 24.5.2011, respondents issued instructions regarding tenure of contractual employees at ECHS Polyclinics. As per these instructions "employment will be normally for a period of two years at the maximum. Subsequently owing to limited availability of candidates and ::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 3 consequent expenditure on advertisements etc., the Govt. permitted extension of contractual employment upto age of superannuation subject to .
review of conduct and performance."
2(ii)(c) Instructions were again issued in respect of employment of contractual employees at ECHS establishments on 22.12.2017. Following clause governed the duration of employment :-
"9. GOI. has specified the duration of contractual employment as two years wherein second year extn is granted based on satisfactory performance in the first year.
10. The enhanced duration as per letter at Para 1(d) (Letter No.B/49760/AG/ECHS (R)(i) dt 24 May 2011) will no longer be applicable w.e.f. 01 Apr 2018 onwards. All contractual employees who have completed/will complete two years as on 31 Mar 2018 (Extension granted in the same Polyclinic or in more than one Polyclinic based on previous performance) will mandatorily apply afresh if they want the contractual employment and will participate in the selection process on merit. This is essential to ensure that qualitative improvements are ensured in the 'manning profile' of ECHS establishments. After selection on merit next two years will be handled at par for new contractual employment, i.e. second year extn. based on satisfactory performance in the first year. Medical Specialists/Gynecologists/Radiologists will be also paid remuneration in the first year as approved and the second year as per the second year. All employees who are screened and selected will be at par in all considerations as employed for first year.
32. Civil candidates will not be appointed against ESM vacancies. Once BOO is approved by the sanctioning authority, sanction will be taken from sanctioning authority based on certificate in terms of Para 4 of Annexure I to GOI, MOD letter No.22(6)/03/OS(WE)/D(Res) dated 22 Sep 2003 amended from time to time. After this, vacancies will be available for the posts tenable by ESM for civilians. Civilians selected in lieu of ESM vacancy will be eligible to serve only till 11 months from the date of appt. The said vacancy will fall vacant thereafter for being made available to ESM."
It was clearly directed in the above instructions/circular that all the contractual employees, who have completed or will complete two years contractual employment as on 31.3.2018, will mandatorily have to apply afresh. The enhanced duration under letter dated 24.5.2011, was not available w.e.f. 1.4.2018 onwards. After selection on merit, next two years will be dealt with at par for new contractual employment i.e. second year extension based on satisfactory performance in the first year.
::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 43(i) In terms of above applicable instructions of 22.12.2017, petitioner was appointed as Medical officer on temporary basis for duration .
of 89 days in ECHS Polyclinic Yol Cantt. w.e.f. 1.10.2018 to 28.12.2018.
3(ii) The respondents started a proper selection process/screening at the headquarter for contractual employment for a period of 11 months under the 2017 instructions. Pending finalization of this selection process, temporary employment of the petitioner was extended by further 89 days i.e. from 29.12.2018 to 27.03.2019.
3(iii) In the selection process, petitioner also appeared on 28.01.2019 and was placed at reserve-1 category. He was eventually appointed on contract basis as Medical officer at ECHS Polyclinic Yol Cantt. for a period of 11 months w.e.f. 8.5.2019 to 7.4.2020. A specific agreement in respect of this contractual appointment indicating the terms and conditions thereof was executed between the petitioner and the respondents on 8.5.2019. Some of the relevant Clauses of the agreement relating to contractual nature and duration of the appointment are reproduced hereinafter:-
"3. The ECHS reserve the right to terminate the appointee by giving 30 days notice of by paying remuneration for 30 days in lieu of notice any time during the tenure even without assigning any reason or misconduct or failure to perform assigned duties to the satisfaction of the Station Commander acting through the Officer-in-Charge Polyclinic/nominated Officer.
15. The engaged Person shall indemnify ECHS against all third party claims or proceeding in respect of his professional negligence, misconduct or deficiency in service. The engaged person declared and acknowledgement that the engagement under this contract is temporary and contractual in nature and that he/she will therefore have no right to approach any court of law for extension of his/her service in ECHS beyond the contractual period stipulated in this agreement. This agreement constituted the entire agreements, understanding, negotiations correspondence or discussions whether written or oral relative to the subject matter hereof.::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 5
17. The engaged person will also have the right to terminate this agreement before the expiry of tenure of contractual appointment by giving one month's notice or by foregoing one month's contractual amount as consideration for engagement of service.
19. The contractual appointment and continuation thereof, if any, shall be .
governed exclusively by the terms and conditions stated herein above."
3(iv) Since tenure of contractual appointment of the petitioner was till 7.4.2020, therefore, the Selection Board was held by the respondents on 6.12.2019. Six candidates applied for the post of Medical Officer at ECHS Polyclinic Yol Cantt including the petitioner. Petitioner did not qualify the selection board. One Dr. Brij Mohan Sharma emerged successful and was given appointment for a contractual period of 11 months w.e.f. 8.4.2020. Dr. Sharma statedly has joined his duties accordingly on 8.4.2020. Feeling aggrieved, instant petition has been preferred by the petitioner in person with following prayers:-
" (i) By way of court directions to restrain army authorities not to disengage my contractual services as Medical Officer at Poly Clinic, ECHS, Yol Cantt which is going to expire on 7th April, 2020 (Annexure A-4 and A-5) may kindly be stayed during the pendency of the petition.
(ii) Keeping in view the unprecedented medical, social and economic disaster like situation on account of ongoing Corona virus pandemic across the globe including India and Himachal Pradesh, in case my petition is not taken up for hearing before 14th April, 2020 due to lockdown/curfew in the State, the status quo ante is requested before 7th April, 2020 in the event of termination of services on 7th April, 2020.
(iii) The Notification calling for fresh advertisement of contractual appointment (Annexure A-6, page 9) to the said post may kindly be held illegal, arbitrary, unreasonable and unsustainable in the eyes of law and is required to be quashed and set aside."
4. We have heard the petitioner, learned counsel for the respondents and gone through the record of the case. Relevant factual position is:-
4(a) Petitioner was appointed only on contractual basis for a period of 11 months w.e.f. 8.5.2019 to 7.4.2020. This period has come to an end.::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 6
Contractual service and its extension, if any, was governed by the agreement executed between the petitioner and the respondents. The .
agreement does not give any vested right to the petitioner to seek extension in the period of contractual service.
4(b) Selection Board of Officer for selecting suitable candidate against the post of Medical officer in ECHS Polyclinic Yol Cantt. w.e.f 8.4.2020 was held by the respondents on 6.12.2019. No demur or protest was raised by the petitioner against holding of the fresh selection process.
Rather petitioner himself participated in the fresh selection process alongwith five other candidates. Petitioner did not qualify in the reserve list of selection board. It is only after remaining unsuccessful in the selection process that he preferred this writ petition, seeking quashing of advertisement and the selection process held under it besides praying for extension of his contractual service .
5. Indisputably, petitioner was appointed as Medical Officer in ECHS Polyclinic on contract basis only for 11 months duration i.e. till 7.4.2020. The duration of contractual appointment was as per applicable ECHS circular. Petitioner and respondents had also executed an agreement governing nature and duration of contractual employment of the petitioner.
Petitioner had voluntary accepted the terms and conditions of his contractual appointment. It is not the case of the petitioner that his services were terminated before the expiry of contract. Under the circumstances, petitioner cannot be said to have any vested right to continue in service ::: Downloaded on - 04/09/2020 20:19:48 :::HCHP 7 beyond his agreed & accepted contractual tenure. He has himself participated in the fresh selection process held by the respondents on .
6.12.2019. After participating in the fresh selection process under the advertisement, it is even otherwise not open for the petitioner to seek quashing of the advertisement and fresh selection process after remaining unsuccessful therein. Candidate as per merit in the fresh selection process duly approved by the competent authority has been given appointment w.e.f. 8.4.2020. This candidate has not even been made a party to the writ petition.
In view of above facts, which have come on record, it is not necessary for us to refer to the other pleadings in respect of complaints allegedly made against or by the petitioner.
For the foregoing observations, we find no merit in the instant writ ptition and the same is dismissed accordingly. The parties are left to bear their own costs. Pending application(s), if any, shall also stand disposed of.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua), Judge 4th September, 2020 (rohit) ::: Downloaded on - 04/09/2020 20:19:48 :::HCHP