Uttarakhand High Court
WPSS/436/2021 on 30 March, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 30TH OF MARCH, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (S/S) No. 436 OF 2022
BETWEEN:
Neelam Arya ... Petitioner
(By Mr. Asif Ali, Advocate)
AND:
State of Uttarakhand & others ... Respondents
(By Mr. P.C. Bisht, Additional C.S.C. for the State of
Uttarakhand)
JUDGMENT
1. Petitioner was earlier serving on contract as Auxiliary Nurse Midwife (in short "ANM") in Maigari Braham Pokhari, Sub-Centre of Primary Health Centre Hawalbagh, District Almora w.e.f. 12.07.2017. Prior to her contractual engagement in the aforesaid Sub- Centre, petitioner had responded to an advertisement dated 14.03.2016 issued by Medical Directorate for regular appointment to the post of "Health Worker Female".
2. Result of the selection held in terms of said advertisement was communicated by Director General (respondent no. 2) to the appointing authority, i.e. Chief Medical Officer, Almora (respondent no. 3) vide communication dated 06.02.2019, which is on record 2 as CA-2 to the counter affidavit filed by respondent nos. 2 to 4.
3. By the said communication, respondent no. 3 was informed that the selected candidates have been asked to report for duties in the Office of Chief Medical Officer, Almora on or before 07.03.2019. Copy of the said communication was also sent to petitioner with the direction to report in the Office of Chief Medical Officer, Almora, with necessary documents, latest by 07.03.2019, failing which, her candidature would stand cancelled.
4. It is not in dispute that petitioner reported, pursuant to the aforesaid communication dated 06.02.2019 issued by respondent no. 2, before respondent no. 3, on 20.02.2019, and submitted all her documents. Since respondent no. 3 is the Appointing Authority for the post of Health Worker Female, therefore, formal order of appointment was issued by him to the petitioner on 25.02.2019.
5. The appointment order dated 25.02.2019 contains a stipulation that petitioner is being appointed in terms of her joining, submitted on 20.02.2019.
6. Perusal of the appointment order reveals that petitioner is appointed on regular basis in the Pay Scale of ₹5200-20200, Pay Band-I, Grade Pay ₹2000. It is also interesting to note that by the said order, petitioner was appointed in the same Sub-Centre, where she was serving as contract employee., namely, Sub-Centre Maigari Braham Pokhari.
37. Petitioner is challenging the order dated 23.10.2020, passed by Chief Medical Officer, Almora, whereby her appointment as Health Worker Female, vide order dated 25.02.2019 has been cancelled. The sole reason assigned for cancelling her appointment is that she did not join duties at Sub-Centre Maigari Braham Pokhari in terms of order of appointment issued to her on 25.02.2019.
8. Mr. Asif Ali, learned counsel for the petitioner contends that petitioner had submitted joining in terms of the communication issued by Director General, on 20.02.2019; petitioner was earlier engaged on contract in the same Sub-Centre and after submitting joining on 20.02.2019, she continued to serve in the same Sub-Centre, month after month, therefore, ground taken by respondents to cancel her appointment, is unjust and unsustainable. Learned counsel has also drawn attention of this Court to the correspondence made between different authorities pursuant to the representations submitted by the petitioner.
9. From the correspondence, it is revealed that petitioner was insisting that her joining be accepted from 20.02.2019, while respondents were insisting that since appointment order was issued on 25.02.2019, therefore, she should submit fresh joining report effective from 26.02.2019. This is revealed from the letter issued by Chief Medical Officer, Almora to the petitioner on 10.06.2019, which is enclosed as Annexure -9 to the writ petition, in which it is admitted that petitioner had reported 4 before In-charge Medical Officer, Primary Health Centre, Hawalbagh on 26.02.2019.
10. The only defence taken in the counter affidavit is that petitioner did not join duties as per appointment letter dated 25.02.2019, therefore, her appointment was rightly cancelled. Para 3 to 5 of the counter affidavit filed on behalf of respondent are reproduced below:-
"3. That the contents of paragraph no. 1 of the writ petition as stated are not admitted. It is submitted that an advertisement dated 14.03.2016 was issued by the Director General, Medical Health & Family Welfare (i.e. respondent no. 2), Govt. of Uttarakhand, calling for applications from eligible persons for appointment to the posts of Auxiliary Nurse Midwife (ANM). Result was declared on 6.2.2019 by the respondent no. 2 wherein the petitioner's name figured at Serial No. 24 as successful candidate. In this regard, vide letter dated 6.2.2019 the Respondent no. 2 forwarded list of successful candidates to the Respondent no. 3 and copy of result also forwarded to the petitioner directing therein that contract respondent no. 3 within all educational documents and report for duty on or before 7.3.2019, in compliance of the letter dated 6.2.2019, vide letter dated 25.02.2019 the respondent no. 3 issued appointment letter in favour of the petitioner and she was allowed to report for duty on or before 7.3.2019 in Primary Health Centre Hawalbagh at Sub Health Centre Maigari Bram Pokhari (under the respondent no. 4).
It is further submitted that the name of the petitioner was only included in the select list and no appointment letter issued by respondent no. 2 in favour of petitioner. It is further submitted that respondent no. 3 issued appointment letter on 25.2.2019 whereas the petitioner joined the duty on 20.8.2019 on the basis of respondent no. 2 recommendation. However, due to intransigence, the petitioner not joined the duty as per appointment letter dated 25.2.2019 but insisted to permit her to join duty from 20.2.2019. Thereafter number of opportunity given to the petitioner to join duty but petitioner did not join duty. Thereafter a six members Committee was also constituted in the matter of petitioner. After the Committee report 5 dated 14.10.2020, petitioner's candidature was cancelled by respondent no. 3 on 23.10.2020. True photocopy/correct typed version of the letter dated 6.2.2019 and copy of the committee report with Director letter dated 14.10.2020 are collectively annexed as Annexure No. C-2 (Collectively) to this counter affidavit.
4. That the contents of paragraph no. 2 of the writ petition as stated need no comments.
5. That in reply to the contents of paragraph no. 3 of the writ petition it is submitted that initially appointment of the petitioner was purely contractual in nature. It is further submitted that appointment on contractural basis is not an appointment to a post according to the rules. Petitioner participated in selection process and regularly selected on 6.2.2019 as ANM. Subsequently vide letter dated 25.2.2019 the respondent no. 3 issued fresh appointment letter in favour of petitioner thus petitioner cannot acquire any right or lien over the ANM post. Since the petitioner failed to report within stipulated time frame, her candidature for the post of ANM stood cancelled."
11. Respondents have referred to a report submitted by a six member Committee, which is on record as Annexure No. C-2 to the counter affidavit. Para 6 of the said report refers to a letter issued by Director, Medical Health, Kumaon, Nainital on 08.08.2019, in which it was stated that since petitioner was serving on contract in the same Sub- Centre, therefore, she will be treated to have served on contract between 20.02.2019 (date of submission of her joining report) till 24.02.2019 and she shall be deemed to have joined duties post regular appointment, on 25.02.2019.
12. Para 7 of the Minutes of Meeting of the Committee further refers to a letter issued by In- charge Medical Officer, Primary Health Centre, Hawalbagh, Almora to show that petitioner was paid 6 remuneration as 'contract employee' from the concerned Sub-Centre upto 25.02.2019.
13. Another document enclosed as annexure No. C-4 to the counter affidavit is a letter issued by In-charge Medical Officer on 04.05.2019. Perusal of the letter reveals that petitioner had reported for joining at Primary Health Centre Hawalbagh, Almora on 26.02.2019, however, since petitioner insisted that her joining be accepted w.e.f. 20.02.2019, the In- charge Medical Officer reported the matter to Chief Medical Officer, Almora.
14. Annexure No. C-5 to the counter affidavit is a letter dated 08.08.2019 issued by Director, Medical Health, Kumaon to Director General, in which it is stated that date of petitioner's joining, after her regular appointment be treated as 25.02.2019 and she shall be treated to have served on contract between 20.02.2019 to 24.02.2019.
15. From the aforesaid discussion, it is apparent that petitioner had not only submitted her documents on 20.02.2019 in terms of letter issued by Director General, but she was regularly coming to the Sub- Centre for duties and there is nothing to show that she did not turn up for duty after 20.02.2019 or 25.02.2019. Thus, the reason assigned for cancelling petitioner's appointment in the impugned order dated 23.10.2020 is unsustainable in the eyes of law.
16. From the documents, enclosed by the respondents with their counter affidavit, it is revealed that petitioner was serving in the same Sub-Centre on contract where she was later given regular 7 appointment; she served in the Sub-Centre, even after 20.02.2019, when she claims to have joined pursuant to letter issued by Director General; petitioner had reported before the In-charge Medical Officer of the concerned Primary Health Centre on 26.02.2019, but due to her insistence that joining be given to her w.e.f. 20.02.2019, she was not permitted to join; petitioner's remuneration as contract employee was drawn upto 25.02.2019, which indicates that petitioner reported for duties continuously at least till 25.02.2019 in the concerned Sub-Centre.
17. In the impugned order dated 23.10.2020, it is alleged that till date petitioner has not submitted joining at the place of her posting, however, in the counter affidavit in para 3, it is stated that she joined duty on 20.08.2019, which creates doubt over credibility of the reason assigned in the impugned order.
18. In sequel to the order dated 28.03.2022, Dr. Ramesh Chandra Pant, Chief Medical Officer, Almora is present before the Court. He admitted that petitioner was earlier serving on contract as ANM in the same Sub-Centre where she was given regular appointment. He, however, stated that petitioner served as ANM on contract upto 25.02.2019, but thereafter she did not turn up for duties.
19. When he was asked whether any notice was given to petitioner regarding her absence after 25.02.2019, his answer is in the "negative".
820. Chief Medical Officer, Almora further informed that appointment letter, which is dated 25.02.2019, was issued from the Office of Chief Medical Officer at District Headquarter, Almora and it was sent by post to petitioner's address, therefore, it would have taken at least three days in reaching the petitioner.
21. It is incomprehensible that petitioner, who was diligently discharging duties as contract employee, on meager wages upto 25.02.2019, would not submit her joining when she was given regular appointment in the same Sub-Centre, where she was serving earlier. The documents, relied upon by the respondents, also belie their defence that petitioner did not report for duties pursuant to the order of regular appointment. In fact, petitioner had approached different authorities regarding her joining in view of her regular appointment.
22. In such view of the matter, this Court is of the considered opinion that cancellation of regular appointment given to the petitioner on the ground of her non-joining is unjust and unsustainable.
23. Accordingly, the writ petition is allowed. The impugned order dated 23.10.2020 passed by Chief Medical Officer, Almora is liable to be quashed and is hereby quashed. Chief Medical Officer, Almora is directed to permit the petitioner to resume duties in Primary Health Centre Hawalbagh, Almora or any other Health Centre, within the district, within three days from the date of production of certified copy of this order. It is made clear that petitioner shall be 9 entitled to salary only from the date of resuming duties and she will not claim salary for the period during which she did not serve in the Department.
(MANOJ KUMAR TIWARI, J.) Aswal