Jammu & Kashmir High Court
Amit Sharma vs Ut Of J&K And Others on 23 August, 2022
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 205/2021
CM No. 1048/2021 in
WP(C) No. 355/2021
CM No. 1772/2021
CM No. 1773/2021
Pronounced on: 23.08.2022
Amit Sharma .... Petitioner/Appellant(s)
Through:- Mr. Rahul Pant, Senior Advocate with
Ms. Shriya Nagpal, Advocate.
V/s
UT of J&K and others .....Respondent(s)
Through:- Mr. H.A. Siddiqui, Sr. A.A.G.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner, in the present petition, seeks quashing of order No. CMO/P/NHM/ACTT/1163-68 dated 06.02.2021 vide which the engagement for the post of X-ray Technician in Community Health Centre, Mandi (hereinafter referred to as „CHC‟) was cancelled and respondent No. 6 has been reverted back to the post of X-ray Technician from CHC, Mandi to CHC, Mendhar. A direction is also sought to the respondents to allow the petitioner to continue his duties as X-ray Technician in CHC, Mandi.
02. The petitioner had participated in the selection process and was selected for the post of X-ray Technician in CHC, Mendhar, pursuant to advertisement notice No. 03 of 2018, issued by the District Health Society, Poonch under the National Health Mission (hereinafter referred to as „NHM‟).
2 WP(C) No. 205/2021
03. It appears that the Mission Director, NHM issued an order for withdrawal of the selection for the post of X-ray Technician, advertised vide notice No. 03 of 2018, vide his communication dated 09.07.2018 but subsequently the Mission Director, NHM vide letter dated 03.07.2020, directed the Chief Medical Officer, District Health Society, Poonch to proceed ahead with the recruitment process under rules.
04. The selection process, initiated in terms of notification No. 03 of 2018, was taken to its logical conclusion and after the conclusion of the selection process, the petitioner was declared selected and one Sh. Mohinder Singh was kept in the waiting list.
05. The petitioner, after his appointment vide order dated 13.10.2020, as X-ray Technician was diligently discharging his duties when the Mission Director, NHM vide his communication dated 03.02.2021, directed the Chief Medical Officer (Vice Chairman, District Health Society), Poonch to set aside the engagement of the petitioner ab-initio, as the same was in violation of the standing guidelines and norms governing appointments under NHM, J&K, by the same order also directed reversion of Sh. Gourav Sharma to his original place of posting i.e., CHC, Mandi and filling-up of vacancy of X-ray Technician at CHC, Mendhar afresh, in accordance with the rules and regulations.
06. The grievance of the petitioner is that, his engagement as an X-ray Technician has been cancelled by the Mission Director, NHM on the complaint filed by one Sh. Mohinder Singh and Sh. Iftikhar Ahmed, that the selection process was not fair. It appears that Sh. Mohinder Singh had participated in the selection process and figures in the waiting list. 3 WP(C) No. 205/2021
07. Learned counsel for the petitioner submits that the impugned order is illegal, arbitrary and has been passed without affording any opportunity of hearing to the petitioner. The petitioner had been selected pursuant to a regular selection process, therefore, termination of his services on a false complaint made by an unsuccessful candidate is unwarranted and is required to be set aside. The impugned order also directs that Sh. Gourav Sharma be reverted back to its original place of posting i.e., CHC, Mandi, it is submitted that the appointment of Sh. Gourav Sharma was in violation of NHM guidelines, as he belongs to Mendhar but was selected in CHC, Mandi. It is also submitted that initially, the Mission Director, NHM issued an order for withdrawal of the selection process for the post of X-ray Technician, pursuant to advertisement notice No. 03 of 2018 but subsequently, vide his communication dated 03.07.2020, directed the Chief Medical Officer to proceed the recruitment process and the petitioner was selected pursuant to the same. The candidate namely Sh. Gourav Sharma who was initially appointed as an X-ray Technician in the year 2012 in CHC, Mandi was shifted to CHC, Mendhar due to rationalization of the post, therefore, the post which felt vacant at CHC, Mandi was advertised and the petitioner was appointed on the said post.
08. Learned counsel for the petitioner submits that the petitioner had participated in the selection process, who fulfilled all the conditions as raised by the respondents and now he has been terminated before the expiry of the period of contract on the ground that the recruitment was against the norms of NHM, the order is thus unsustainable and is required to be set aside.
4 WP(C) No. 205/2021
09. The respondents, in their objections, have submitted that a joint complaint was received by the Administrative Department by Sh. Mohinder Singh and Sh. Iftikhar Ahmed, both residents of District Poonch, alleging that the appointment of X-ray Technician at CHC, Mandi vide which the petitioner was selected was against the guidelines governing the selection process of NHM. A factual report was sought from the Vice Chairman, District Health Society on 04.12.2020 and after considering the report, it became evident that there was gross violation of basic NHM norms/guidelines in recruitment of Sh. Amit Sharma, as such, a direction was issued to set aside the engagement of the petitioner.
10. As per the report, it appears that due to resignation of Smt. Anchal Sharma (X-ray Technician) at CHC, Mendhar that a vacancy was created as a stop gap arrangement and the same vacant post was filled up by shifting Sh. Gourav Sharma to CHC, Mendhar, who was appointed as X- ray Technician in CHC, Mandi, resultantly, a vacancy was created at CHC, Mandi and the same was filled by notifying the advertisement notification pursuant to which the petitioner has been engaged.
11. It is the categoric stand of the respondents that as per NHM guidelines, all the posts are facility based, non-transferable and actual presence, at the place of posting is to be ensured, thus, for the Block Level Posts, Block-wise criteria has to be adopted subject to availability of the local eligible candidates. It is only in the case of non-availability of local eligible candidates from the concerned blocks when candidates of other blocks are concerned, though, some shifting of the manpower can be done on the basis of exigencies but the same should be for a short span of time. 5 WP(C) No. 205/2021
12. The post of X-ray Technician at CHC, Mandi was already filled up in the year 2012 by engaging Sh. Gourav Sharma as X-ray Technician, as such, no such post was available at CHC, Mandi and selection of the post could not have been done twice when the post stood already advertised and selection was complete.
13. The Chief Medical Officer, Poonch authorized the transfer of Sh. Gourav Sharma from CHC, Mandi to CHC, Mendhar on the basis of rationalization of the post which was not permissible as per the norms of NHM and, accordingly, the same being illegal the order was set aside.
14. The engagement of the petitioner vide order 13.10.2020 was contractual and the terms of engagement were to be governed as per the condition set out in the engagement order dated 13.10.2020. Clauses 1, 2 and 3 of the order of engagement being relevant are quoted below:"
1. The contractual appointment shall be purely on contract basis up to 31-03-2021 and shall be extendable depending upon the term of project to be approved by GOI to satisfactory performance by the contractual appointee and in case of unsatisfactory performance the chairman shall have the right to terminate the service of the contractual appointee without any notice.
2. The contractual hiring shall not confer any right on the appointee to claim extension or for regular selection at any time.
3. The contractual appointee of the contracting party, shall be terminable on either side by prior notice of one month.
15. The period of engagement of the petitioner was only till 31.03.2021 which was no doubt extendable, depending upon the term of project to be approved by respondents or to the satisfactory performance by the contractual appointee, thus, as per Clause 3 of the terms of the engagement order, either of the contracting party could terminate the 6 WP(C) No. 205/2021 contract on a prior notice of one month, therefore, the respondents, in terms of the said contract could terminate the contract but the only condition was that one month‟s period notice was to be given to the other side.
16. The petitioner after issuance of order dated 03.02.2021, directing the Vice Chairman, District Health Society, Poonch to set aside his appointment, immediately approached this Court by filing a petition (WP(C) No. 205/2021) and on 12.02.2021, this Court directed that till the next date of hearing, the impugned order dated 03.02.2021 should not be given effect to without affording an opportunity of being heard to the petitioner. The contention of the petitioner is that the respondents have not complied with the directions of this Court and terminated his service but this contention is without any basis, as the impugned order of termination was issued on 06.02.2021, before the order was passed, the petitioner subsequently filed the present petition, challenging the order of termination dated 06.02.2021.
17. In terms of the contract, no doubt the petitioner‟s services can be terminated in terms of Clause 3 of the hiring letter, the contractual appointment of the contracting party shall be terminated on other side with a prior notice of one month but in the present case, it appears that no notice was given to the petitioner before terminating the contract, which was from 13.10.2020 to 31.03.2021.
18. The fact of the matter is that there was no post of X-ray Technician available at CHC, Mandi, as such, the entire process of selection was against the norms of NHM. The petitioner though was thus 7 WP(C) No. 205/2021 appointed on a post against the norms of NHM, though, regular selection was held. The term of contract specifically contained that the services of the petitioner are terminable on either side by prior notice of one month, even if the notice was given then also, the respondents were well within their rights to terminate the services and there would have been no change in circumstances. The respondents have already terminated the engagement of the petitioner w.e.f. 06.02.2021 before he approached this Court and even the period of contract, as per the engagement letter i.e., 31.03.2021 also stands expired. Since, there was no post available for selection in CHC, Mandi, therefore, the prayer of the petitioner to allow him to continue on the said post cannot be allowed and he is only entitled to salary for a period of one month i.e., notice period before terminating the services of petitioner.
19. The right of an employer to terminate the services of an employee in accordance with the terms of his employment is inherent and well recognized by law. In "State of U.P. and another vs. Kaushal Kishore Shukla", 1991 SCC (1) 691, it has been held that:
"A temporary Govt. Servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants..."
20. The period of contract for which the petitioner‟s services were hired stands expired on 31.03.2021 and admittedly, there was no post for CHC, Mandi and also Sh. Gourav Sharma who was earlier working at 8 WP(C) No. 205/2021 CHC, Mandi has been reverted back to work as X-ray Technician on the said post.
21. In view of the peculiar facts and circumstances of the case, the relief of allowing the petitioner to continue as X-ray Technician at CHC, Mandi cannot be granted, however, since the engagement of the petitioner has been terminated without giving him notice, the petitioner is entitled to salary for a period of one month of the notice period.
22. In view of the aforesaid, there is no merit in both these petitions and the same are accordingly dismissed.
(Sindhu Sharma) Judge JAMMU 23.08.2022 Michal Sharma Whether the judgment is speaking : Yes/No Whether the judgment is reportable : Yes/No