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Himachal Pradesh High Court · body

2014 DIGILAW 1973 (HP)

Neha Mahajan v. Union of India

2014-12-22

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. The Government of India, Ministry of Defence has laid down the procedure for contractual employment of staff for ex-servicemen Contributory Health Scheme (ECHS) Polyclinics on 22.9.2003. According to para 5 of the guidelines, the advertisement for filling up the posts of medical, dental and specialist officers and officers in charge Polyclinic is required to be placed in the National newspapers, Local/regional newspapers. The selection procedure is provided under para 7 of the guidelines. It reads as under: “ADVERTISEMENTS 5. Advertisements inviting applications for employment under the ECHS for medical, dental & specialist officers and officers in charge Polyclinic will be placed in the National newspapers, Local/regional newspapers will be used for placing advertisements for employment of paramedical staff. Application forms will be made available at concerned Station Headquarters (Stn HQ). The employment of categories listed in Para 3 (a) to (c) above will be carried out by the Station Commander through a Station board of Officers. The Conservancy, Housekeeping, Records Maintenance & Data Entry and Motor Vehicles Operation &Maintenance Services will be outsourced through the licensed service provider/agency/contractor, for which advertisements for registration with the Station Headquarters will also be placed in local/regional newspapers. APPLICATIONS 6. The applications will be submitted by the candidates to the Stn HQ under whose jurisdiction Polyclinics are located. The applications will be processed by a Board of Officers to be set up by the Station Commander. SELECTION PROCEDURE 7. The procedure for the selection of candidates on contractual basis will be as under:- (a) Constitution of the Board of Officers. A Board of Officers for employment of medical/para medical/non medical staff for the ECHS Polyclinics will be constituted by the Station Commander. The Board Officers will comprise the following:- (i) Chairman - Station Commander (ii) Member - Senior Executive Medical Officer (SEMO)/Principal Medical Officer (PMO) /Senior Medical Officer (SMO) of the Station. (iii) Member - Any officer from the Station (Non Medical) (iv) Specialist – Where specialist/super specialist doctors are to be employed, Commanding Officer, Service Hospital/Deputy Director Medical Services (DDMS) Area /Command will nominate a specialist of that category on the board. (v) In attendance - Rep of Regional Centre (ECHS) (optional)” 2. (iii) Member - Any officer from the Station (Non Medical) (iv) Specialist – Where specialist/super specialist doctors are to be employed, Commanding Officer, Service Hospital/Deputy Director Medical Services (DDMS) Area /Command will nominate a specialist of that category on the board. (v) In attendance - Rep of Regional Centre (ECHS) (optional)” 2. According to para 8 (d) of Annexure P-7 dated 22.9.2003, the duration of the employment is entirely contractual in nature and is normally for a period of two years at the maximum, subject to review of their conduct and performance after eleven months. The detailed procedure for renewal of the contractual employment is provided as per Annexure P-6 dated 7.3.2006. Para 5 whereof reads as under: “5. In view of the above, henceforth, the contractual employment at ECHS Polyclinic will be for a period upto superannuation on renewal after every eleven months based on the review of conduct and performance of contractual employee. Therefore when an individual?s performance is satisfactory and he has adequate residual age for the specific post he is holding; no wasteful expenditure will be incurred in advertising fresh selection nor effort put in by convening a selection board.” 3. The interviews for the post of Dental Doctor were held on 20.7.2013. The petitioner was found suitable as per the criterion laid down. The petitioner was offered the appointment letter on 14.10.2013. She joined the duties on 17.10.2013. An agreement was also entered into by the petitioner on 16.10.2013. The services of the petitioner were terminated on 16.9.2014. The petitioner made representation. She was heard in person by respondent No. 3 on 29.9.2014. The respondents have also issued fresh advertisement for filling up the posts of Dental Doctors in the month of September, 2014. The interviews were held on 29.9.2014. The petitioner has also participated in the selection process. 4. Mr. J.L.Bhardwaj, Advocate, for the petitioner has vehemently argued that the respondents while terminating the services of the petitioner have not taken into consideration the criterion laid down as per Annexure P-7 dated 22.9.2003 and Annexure P-6 dated 7.3.2006. He has specifically drawn the attention of the Court to para 5, quoted hereinabove. On the other hand, Mr. Ashok Sharma, learned ASGI has strenuously argued that the petitioner?s performance as a doctor was not up to the mark and under these circumstances, it was open to the employer not to renew the contract. 5. He has specifically drawn the attention of the Court to para 5, quoted hereinabove. On the other hand, Mr. Ashok Sharma, learned ASGI has strenuously argued that the petitioner?s performance as a doctor was not up to the mark and under these circumstances, it was open to the employer not to renew the contract. 5. We have gone through the material placed on record and heard the learned counsel for the parties. 6. The petitioner has been selected strictly as per the selection procedure laid down in Annexure P-7 dated 22.9.2003. The petitioner has also made a representation on 18.9.2014, pursuant to which she was to be given personal hearing. The reasons assigned for the termination of the petitioner?s services are contained in Annexure R-2 dated 29.9.2014. These reasons have been assigned after terminating the services of the petitioner on 16.9.2014. The mis-conduct pointed out in Annexure R-2 is of a trivial nature. It is more of ego problem than serious aspersions on the duties discharged by the petitioner. It is expected that doctor always seeks the assistance of another doctor in case there is emergency. 7. Now, as far as the non-functioning of the Dental X-Ray machine is concerned, the same was required to be repaired by the mechanic. The petitioner is a dental doctor and not mechanic. The other reason assigned is also equally trivial whereby the respondent No. 3 has pointed out that the petitioner was not wearing proper dress. The performance of the petitioner was to be seen as a dental doctor as a whole during her subsisting contract. It was also highlighted in para 5 of Annexure P-6 that if the individual?s performance was up to the mark and has adequate residual age for the specific post he is holding, no wasteful expenditure should be incurred in advertising fresh selection nor effort put in convening a selection board. There is no material other than Annexure R-2 placed on record to show that the petitioners conduct and performance was ever adjudged during the subsisting period of the contract. 8. Mr. Ashok Sharma, learned ASGI has also placed on record the recommendations made by the Selection Committee pursuant to the fresh advertisement. There is no material other than Annexure R-2 placed on record to show that the petitioners conduct and performance was ever adjudged during the subsisting period of the contract. 8. Mr. Ashok Sharma, learned ASGI has also placed on record the recommendations made by the Selection Committee pursuant to the fresh advertisement. We are of the considered view that the action of the respondents of not renewing the contract of the petitioner in view of para 5 of Annexure P-6 dated 7.3.2006, is illegal and arbitrary and thus violative of Articles 14 & 16 of the Constitution of India. 9. Accordingly, the Writ Petition is allowed. The termination of the petitioner dated 16.9.2014 is quashed and set aside. The respondents are directed to permit the petitioner to continue as dental doctor as per para 5 of Annexure P-6 dated 7.3.2006. She would be permitted to join her duties forthwith, if not already permitted to do so. Needless to add that in view of the decision as above, we deem it not necessary to open the proceedings of the fresh selection placed on record before us by Mr. Ashok Sharma, learned ASGI in a sealed cover. The proceedings contained in the sealed cover are ordered to be returned to Mr. Ashok Sharma, learned ASGI.