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2015 DIGILAW 1155 (PNJ)

Gurjit Singh v. Union of India

2015-06-30

DEEPAK SIBAL

body2015
Deepak Sibal, J. 1. In the year 2003, the Ministry of Defence, Government of India introduced the Ex-Servicemen Contributory Health Scheme (hereinafter referred to as - the Scheme). 2. The Scheme aimed to provide medicare to ex-servicemen and their dependents through a network of polyclinics and service medical facilities spread across the country. The Scheme was a contributory Scheme and was to extend the earlier referred benefits on payment of contribution. The appointment of the staff, under the Scheme, was to be on contractual basis. 3. As per Appendix-A attached to the Scheme, for the category of Medical Officers/Specialists, Dental Officers and Officers Incharge of Poly Clinics, the age limit for contractual appointments was 65 years. So far as Nursing Assistants/Laboratory Assistants and Dental Assistants/Hygienists were concerned, the prescribed age limit for them was 55 years. 4. It is in pursuance to the Scheme that all the petitioners were appointed on different dates on contractual basis, but before such appointments, an Agreement of service was duly entered into between the petitioners and respondents. The relevant portion of such Agreement in the case of one of the petitioners is reproduced below :- "NOW THIS AGREEMENT WITNESSETH AS FOLLOWS :- 1. xx xx xx xx 2. The engagement of the Engaged person for rendering his/her professional services shall be entirely contractual in nature and will be for a period of 12 months initially and thereafter renewable for 12 months at a time up to and subject to attaining the maximum age prescribed/indicated in Appendix A to Government of India, Ministry of Defence letter No. 24(6)/03/US(WE) D (Res) dated 22 Sep 2003 or as amended from time to time. The renewal of contract will be subject to continued good conduct and performance of the Engager Person during the proceeding 12 months and existence of the requirement for services of the Engager person at the ECHS Polyclinic. A fresh contract will be executed for each renewal." xx xx xx xx "11. The ECHS shall have the right to terminate this agreement by giving one month's notice to the Engaged person or one month's consideration as compensation in lieu thereof without prejudice to the generality of the right of termination may be on any of the following grounds for which an opportunity to show cause will be afforded to him/her:- (a) Professional incompetence or misconduct or an act of moral turpitude. (b) Unsatisfactory performance of duty. (c) Arrest of conviction by a court of law for any offence. (d) Any act prejudicial to security or interest of the Organization (ECHS). (e) Absence of leave beyond 60 days. (f) Prolonged or habitual absence from duty without prior permission of the competent authority including prolonged absence due to medical illness. (g) Inadequate work load. (h) Brach/violation of any provision of this agreement by the Engaged Persons. (i) Any other ground warranting his/her removal from the contractual arrangement. 12. 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 services." 5. All the petitioners entered into identical agreements. 6. From a perusal of the above terms and conditions governing the services of the petitioners, it is clear that all appointments were initially to be for a period of 12 months. However, as per clause 2, the services were renewable for a further period of 12 months at a time up to attainment of the maximum age, as prescribed in Appendix-A attached to the Scheme dated 22.09.2003 (as amended from time to time). As per clause 2 of the Agreement, the renewal in services was subject to good performance and existence of the requirement for services of the appointed person. 7. As per the above terms, petitioners no. 1 and 2 were appointed as Lab Assistants and petitioner no. 3 was appointed as Physiotherapist for 12 months. Thereafter, their services were renewed from time to time for 12 months at a time. 8. At the time of filing of the writ petition, petitioners no. 1 and 2 had served the respondents for over ten years, whereas petitioner no. 3 had served for over six years. For the year in question, their services have not been renewed. Instead, the respondents got issued an advertisement inviting applications for appointment on contractual basis, against the posts being held by the petitioners. Aggrieved by the above action, particularly non-renewal of their service, the petitioners have approached this Court through the present writ petition. 9. I have heard learned counsel for the parties and with their able assistance, have also gone through the record of the case. 10. Aggrieved by the above action, particularly non-renewal of their service, the petitioners have approached this Court through the present writ petition. 9. I have heard learned counsel for the parties and with their able assistance, have also gone through the record of the case. 10. The arguments raised at the bar and a perusal of the relevant record reveals that the services of the petitioners have not been renewed for three reasons :- Firstly: the petitioners have served the respondents for over five years and the respondents, while relying upon the letter dated 11.10.2013, have not given further renewal to the services of the petitioners. 11. Secondly: the petitioners have no right to claim renewal of their service. 12. Thirdly: (in case of petitioners no. 1 and 2 only) the posts of Lab Assistants, which were earlier two in number, have been reduced to only one. 13. On the first issue, the preliminary reliance of the respondents in not extending the service of the petitioners beyond the period of five years is on a letter dated 11.10.2013, which reads as thus :- "Central Organisation ECHS Army Headquarters Adjutant General's Branch Maude Lines Delhi Cantt - 110010 B/49760/AG/ECHS (WC) 11 Oct, 2013 Headquarters Western Command Adjutant General's Branch (ECHS) Pin - 908 543 c/o 56 APO TENURE OF CONTRACTUAL STAFF AT ECHS POLYCLINICS 1. Ref your letter No. 46153/3/ECHS dt 15 July 2013. 2. In this regard, the following clarification to be ensured:- (a) Employee who has completed five years of contractual employment should not be considered for the same polyclinic again. (b) The ESM should be considered in the reserve category quota of 60%, however, the board of Offrs should be convinced of the efficiency of the ESM in case his selection is made. (DS Khangarot) Lt. Col. Offg. Jt. Dir (Pers) for MD ECHS Copy to: HQ PH & HP (I) Sub Area Pin - 900 241 c/o 56 APO" 14. Reliance of the respondents on the above quoted letter for non-renewal of the service of the petitioners beyond a period of five years is misplaced. The conditions of service of the petitioners are governed by the agreement duly entered into by them with the respondents. Reliance of the respondents on the above quoted letter for non-renewal of the service of the petitioners beyond a period of five years is misplaced. The conditions of service of the petitioners are governed by the agreement duly entered into by them with the respondents. These conditions of service cannot be allowed to be changed without there being any amendment in the Scheme or the agreement itself, which bind the parties to the same, especially when the Scheme or the agreement remain unchallenged by either side. As per Clause 2 of the agreement of service, as reproduced earlier, is clear that all appointees like the petitioners, though initially appointed for a period of 12 months, their services could be renewed for 12 months at a time from time to time till the maximum age so specified in Appendix-A attached to the Scheme, subject only to good performance by them and existence of work. 15. It is the admitted position that neither of the petitioners have attained the maximum age so prescribed in Appendix-A attached to the Scheme. It is further not disputed that there is no complaint with regard to the work and conduct of the petitioners and that work exists. 16. The agreement provides that the terms and conditions of service of the petitioners are subject to any amendment to the Scheme. The above reproduced letter dated 11.10.2013 cannot, by any length of imagination, be considered to be an amendment to the Scheme. As observed earlier, the Scheme was introduced by the Ministry of Defence, Government of India, whereas the letter dated 11.10.2013 is merely an intra departmental communication between two officers of the respondents. 17. Undisputably, there is no amendment to the agreement of service entered into between the parties. The letter dated 11.10.2013 thus could not be made the basis for non-renewal of the services of the petitioners. 18. There is yet another issue, which needs to be noticed, which is that the letter dated 11.10.2013 was itself withdrawn by the respondents vide their subsequent letter dated 18.09.2014, which reads as under :- "Tele: 25684946 ASCON: 36832 Central Organisation ECHS Adjutant General's Branch IHQ of MoD (Army) Maude Lines Delhi Cantt - 110 010 B/49760/AG/ECHS (R) 18 Sep 2014 (All Regional Centres ECHS) CANCELLATION OF LETTER: SELECTION OF MEDICAL/DENTAL OFFRS FOR POLYCLINICS IN MIL STNS 1. Policy guidelines on tenure of contractual employees issue vide Central Org ECHS letter No. B/49760/AG/ECHS (R) dt 24 May 2011 will be followed for selection of candidates. 2. This HQ letter No. B/49760/AG/ECHS (CC) dt 11 Oct 2013 be treated as cancelled. The contractual staff is emp. on yearly basis with a clear gap of two days between each successive employment. 3. For info and necessary implementation pl. Sd/- (CK Nayak) Lt. Col. Jt. Dir (Pers) for MD ECHS Copy to:- HQ Western Comd. (A/ECHS) PIN - 908543 This office letter No.B/49760/AG/ECHS (WC) C/o 56 APO dt 11 Oct 2013 may please be treated as cancelled. HQ PH & HP (I) Sub Area Pin - 900241 c/o 56 APO" 19. Learned counsel for the respondents argued that the petitioners have no right to claim renewal of their services as a matter of right and for that proposition, reliance has been placed on two judgments - one of Apex Court in State of Uttar Pradesh and others vs. Rakesh Kumar Keshari and another reported as (2011) 5 SCC 341 and another of this Court in S.K. Verma and others vs. State of Punjab and others (F.B.) reported as 1979 (2) S. L. R. 164. 20. After going through the above referred judgments, I am of the opinion that the same would not apply to the facts of the case in hand. So far as the case of Rakesh Kumar Keshari (supra) is concerned, in that case, there was no clause in the agreement of service between the parties therein, which provided for renewal of their services on the basis of certain stipulated conditions. This is a basic fact which would distinguish that case from the present one. 21. So far as S.K. Verma's case (supra) is concerned, in that case, it has been held that services of the employees can be terminated as per terms of their appointment. As observed earlier, the right of renewal of services of each of the petitioners is enshrined in terms of their appointment, which not only governs the services of the petitioners, but is also binding on the respondents. No such right of renewal was in existence in the terms of appointment in S.K. Verma's case (supra). 22. As observed earlier, the right of renewal of services of each of the petitioners is enshrined in terms of their appointment, which not only governs the services of the petitioners, but is also binding on the respondents. No such right of renewal was in existence in the terms of appointment in S.K. Verma's case (supra). 22. So far as the issue with regard to reduction of posts of Lab Assistants from two posts to one post is concerned, the same is belied by the advertisement recently issued by the respondents seeking to employ two Lab Assistants and not one. This advertisement has been issued after the non-renewal of the contract of petitioners no. 1 and 2. That being so, the case of the respondents that the services of the petitioners no. 1 and 2 have not been renewed due to reduction of posts from two to one, stands falsified. 23. Keeping in view the above facts, the present writ petition is allowed, with directions to the respondents to permit the petitioners to serve the respondents strictly as per the agreement of service duly entered into by the parties i.e. subject to their good performance and existence of work. 24. No costs.