Madhya Pradesh High Court
Anoop Kumar Patel vs The State Of Madhya Pradesh on 13 February, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13 th OF FEBRUARY, 2023
WRIT PETITION No. 8205 of 2021
BETWEEN:-
1. ANOOP KUMAR PATEL S/O SHRI P.D.PATEL, AGED
ABOUT 46 YEARS, OCCUPATION: UNEMPLOYED
R/O 85-A NEHARU NAGAR BHOPAL (MADHYA
PRADESH)
2. SUNITA JAIN W/O SHRI AKHILESH KUMAR JAIN,
AGED ABOUT 34 YEARS, OCCUPATION:
UNEMPLOYED INDRAPURI COLONY TIKAMGARH
(MADHYA PRADESH)
3. NEELESH AGARWAL S/O RAMKISHORE
AGARWAL, AGED ABOUT 38 YEARS,
OCCUPATION: UNEMPLOYED BOORI DAWAZA
WARD NO.8 TIKAMGARH (MADHYA PRADESH)
4. VINOD KORI S/O SHRI CHOTTELAL KORI, AGED
ABOUT 37 YEARS, OCCUPATION: UNEMPLOYED
WARD NO. 4 LOKMAN SQUARE PRITHVIPUR
(MADHYA PRADESH)
5. VIKAS KUMAR JAIN S/O LATE SHRI NATTHU RAM
JAIN, AGED ABOUT 40 YEARS, OCCUPATION:
UNEMPLOYED MAJHPURA MOHALLA (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI PRATEEK DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY PUBLIC HEALTH AND
FAMILY WELFARE DEPARATMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
Signature Not Verified
SAN
2. DIRECTOR PUBLIC HEALTH AND FAMILY
Digitally signed by TULSA SINGH
Date: 2023.02.16 16:48:01 IST
WELFARE DEPARTMENT SATPURA BHAWAN
BHOPAL, M.P. (MADHYA PRADESH)
2
3. NATIONAL HEALTH MISSION THROUGH MISSION
DIRECTOR 08 ARERA HILLS OLD JAIL ROAD
BHOPAL DIST. BHOPAL MP (MADHYA PRADESH)
4. CHIEF MEDICAL AND HEALTH OFFICER
TIKAMGARH DISTT. TIKAMGARH MP (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER FOR
RESPONDENTS/STATE)
(BY SHRI BRAMHADATT SINGH - ADVOCATE FOR RESPONDENT NO.3)
This petition coming on for admission. this day, the court passed the
following:
ORDER
T h e petitioners have filed this writ petition under Article 226 of the Constitution of India being aggrieved of advertisement dated 04/02/2021 issued by National Health Mission, Madhya Pradesh for appointment of Contractual Development Block Accounts Manager and Contractual District Hospital Accountant on the ground that earlier petitioners were working with the respondent authority as BEMOC (Basic Emergency Obstructive Care) Accountant. Their services were dispensed with in the 2016. Thereafter they had approached this Court by filing W.P. No.7103/2016 and other connected matters. In this writ petition, Coordinate Bench of this Court vide order dated 16/12/2016 noted a fact that petitioners were appointed on the post of BEMOC Accountant vide order dated 17/12/2007 and an agreement was executed. Thereafter due to paucity of funds, posts were abolished and the petitioners' services were dispensed with as contracts were not renewed after 31st March, 2016. It is pointed out that Coordinate Bench of this Court disposed of the Signature Not Verified SAN petition observing as under :
Digitally signed by TULSA SINGH Date: 2023.02.16 16:48:01 IST"It is not a case where a contractual appointee is 3 being discontinued prior to completion of tenure and, therefore, the aforesaid judgments wherein it has been held that opportunity of hearing should be given before terminating a contractual employee, are of no help to the petitioners. They have been permitted to complete their contractual period. So far as their continuance, in the light of the period they have put in is concerned, the contractual employees are being discontinued as the post on which they were working have not been continued by the Government and, therefore, this Court is of the considered opinion that the question of directing the continuance of the petitioner on the post held by them, does not arise. However, it is made clear that in case in future any appointment is made in respect of the post on which the petitioner was working, the respondents shall appoint the petitioner on preferential basis and in case there is any need in the Department in respect of other posts, the respondents shall also consider the case of the petitioner on preferential basis, subject to their fulfilling the qualification. With the aforesaid, the question of interference does not arise.
T h e petitioner shall be free to file a detailed representation stating the qualifications to the respondents Signature Not Verified SAN and the respondents shall consider the case of the Digitally signed by TULSA SINGH petitioner in case the posts are available and the petitioner Date: 2023.02.16 16:48:01 IST is qualified and also keeping in view the number of years 4 of service the petitioner has put in.
Accordingly, admission is declined."
Thereafter it is submitted that a writ appeal was filed which was registered as W.A. No.71/2017. Writ appeal was disposed of by granting liberty to the appellant to seek redeployment under the National Rural Health Mission. National Rural Health Mission was directed to consider the application received for redeployment against the available vacant posts in accordance with the scheme framed by it. Thereafter the petitioners have not been given appointment against the posts which were available for redeployment whereas some other persons were given appointments.
S hri Bramhadatt Singh, learned counsel for the respondent-National Health Mission, in his turn, submits that for redeployment posts were less and candidates were more, therefore, a scheme was formulated to call the persons seeking redeployment for a written suitability test in which in the first round, some of petitioners had appeared and had failed to qualify. Those who were qualified, were redeployed against the available posts. In view of the orders of this High Court with a view to afford another opportunity to the unsuccessful candidates, another examination was scheduled on 8th March, 2020 but petitioners had boycotted that exam and having failed to appear in the exam as i s apparent from Annexure-R/1, they are now not entitled to claim any employment by challenging the advertisement as contained in Annexure-P/1. It is also submitted that in pursuance of advertisement Annexure-P/1, respondents have already recruited the requisite manpower and they are already functional.
Signature Not Verified SANA t this stage, Shri Prateek Dubey, learned counsel for the petitioners, Digitally signed by TULSA SINGH Date: 2023.02.16 16:48:01 IST places reliance on the decision of Hon'ble Supreme Court in the case of State 5 of Haryana and others Vs. Piara Singh and others, AIR 1992 SC 2130, wherein it is held that one set of contract employees should not be replaced with another set of contract employees. He also places reliance on the decision of Hon'ble Supreme Court in the case of Maharashtra State Road Transport Corporation and others Vs. Rajendra Bhimrao Mandve and others, AIR 2002 SC 224, to point out that rules of the games cannot be changed once the game begins. Placing reliance on these two judgments, it is submitted that respondents are not entitled to conduct any screening test or evaluating test to fill the posts through redeployment of earlier retrenched employees whose contract was not renewed.
After hearing learned counsel for the parties and going through the record, this Court raised a specific query to Shri Prateek Dubey, learned counsel for the petitioners, that whether they had raised this issue before the authority in earlier point of time. The answer is vague but there is no document on record to substantiate this fact that any objection was raised in regard to conduct of any screening test.
Therefore, as far as this submission of the petitioners that there is change of the rules of the game after the game began is not made out because for that petitioner was required to show that screening test was organized after redeployment of similarly situated employees just to discriminate with the set of petitioners who are before this Court. But, there is neither such pleading nor any material on record, therefore, judgment of Hon'ble Supreme Court in the case of Rajendra Bhimrao Mandve and others (supra) has no application Signature Not Verified to the facts of the present case.
SANAs far as second judgment of Hon'ble Supreme Court in the case of Digitally signed by TULSA SINGH Date: 2023.02.16 16:48:01 IST Piara Singh and others (supra) is concerned, petitioners' claim in the first 6 round of litigation against non-renewal of their contract is already answered by a Coordinate Bench vide order dated 16/12/2016 wherein it had showed some indulgence by giving some directions but had even refused admission of the petition. Thereafter in the writ appeal also at the instance of the petitioners, no indulgence was granted except on the concession of the National Rural Health Mission, it was directed that if any application was received for redeployment against the available posts, then they be filled up in accordance with the scheme framed in that behalf. Thus, this submission that one set of contract employees are being replaced by another set of contract employees is not made out specially when the posts against which petitioners were appointed i.e. of BEMOC Accountant stood abolished due to financial crunch in NRHM and thereafter minimum manpower is being deployed to get work done.
Principle of 'estoppel' will also be applicable inasmuch as Shri Prateek Dubey, learned counsel for the petitioners, has not disputed this argument put forth by Shri Bramhadatt Singh, learned counsel for respondent No.3, that in the first round of screening test which was conducted, petitioners had not participated. Since petitioners were not participated in the screening test, therefore, they are not entitled for any claim. The petitioners are now estopped for saying that respondents are not entitled to conduct any screening test to fill the posts on redeployment and that will amount to change of the 'rules of game'.
The scheme which was framed, as posts available for redeployment were less, and persons seeking redeployment were more, cannot be said to be illegal or arbitrary as that was the only rational way to redeploy different persons Signature Not Verified SAN seeking redeployment out of a huge pool of such aspirants for a limited pool of Digitally signed by TULSA SINGH Date: 2023.02.16 16:48:01 IST the posts available. Thus, timing of such test whether it was conducted prior to 7 the order passed by the Division Bench of this Court in the writ appeal or after is not material. The material fact is that in terms of the orders of this High Court in the writ petition, a test was conducted and the petitioners in this set of writ petitions but the petitioners were absent themselves from availing the said opportunity of qualifying the screening test. Thus, there cannot be any challenge to the advertisement for the failure of the petitioners themselves not to participate in the screening test as such posts which are necessary for public employment and discharge of public function cannot be left vacant merely to suit the convenience of the petitioners. Thus, challenge to the advertisement fails.
Accordingly, this writ petition is dismissed.
(VIVEK AGARWAL) JUDGE ts Signature Not Verified SAN Digitally signed by TULSA SINGH Date: 2023.02.16 16:48:01 IST