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2015 DIGILAW 194 (RAJ)

FAISAL BAIG v. STATE OF RAJASTHAN

2015-01-21

PRAKASH GUPTA, SUNIL AMBWANI

body2015
JUDGMENT : 1. We have heard learned counsel appearing for the appellants. 2. The delay in filing the Special Appeals has been sufficiently explained, and is accordingly condoned. The applications under Section 5 of the Limitation Act are allowed. 3. In the year 2009, by an advertisement dated 05.02.2009, issued by the Dean, Jhalawar Hospital & Medical College Society, Jhalawar, for appointment, on contract, on the posts of Health Educator, GNM, Storekeeper and Health Inspector, the appellants applied, participated in the Walk in Interview, and were appointed on contract, for a period of one year. The appointment letter of appellant No.1, dated 16.02.2009, is annexed as Annexure-3 to the writ petition, in which he was required to enter into a contract with the Jhalawar Hospital & Medical College Society, Jhalawar, to work for a minimum period of one year, and to execute a bond of service. The contract and the bond are not annexed to the writ petition, nor were produced in the proceedings. 4. On a complaint made on the irregularities committed in the selections for appointment of 21 persons including the appellants on various posts, on contract, the Dean of Faculty, by its order dated 13.10.2009, appointed an Enquiry Committee, consisting of Dr. M.S. Rathore, as Chairman & Convener of the Enquiry Committee, Dr. B.L. Bhatia and Dr. Deepak Gupta, as its members. The Enquiry Committee found that numerous irregularities were committed in the selections. The Superintendent of the Hospital could not produce the records of the selections, nor the basis and criteria of the selections to defend the selections. The appointment letters were not found to be available on records, and that many of the persons, who were appointed, were not found qualified for the posts. The District Collector, Jhalawar, by his letter dated 24.06.2011, addressed to the Principal Secretary, Medical & Health Department, Jaipur, submitted a report on the irregularities in the appointments in the Hospital on various posts. In his letter, he relied upon the report of the Additional District Collector, Jhalawar, who reported that the Dean of the Medical College, Jhalawar, did not produce the required documents with regard to the selections. The number of persons included in the wait list dated 13.03.2008, and the manner in which the petitioners/appellants were picked up from the wait list and included in the merit list, was not made available. The number of persons included in the wait list dated 13.03.2008, and the manner in which the petitioners/appellants were picked up from the wait list and included in the merit list, was not made available. The Dean himself, in his report, admitted that the prescribed selection procedure was not followed in the appointment of 20 persons and consequently, by a show cause notice dated 08.11.2013, the services of appellants were sought to be terminated. 5. The writ petitions were filed challenging the notice, which were dismissed on the ground that the respondents have withdrawn the notice for making an enquiry, in accordance with law. The operative portion of the order dated 27.11.2013, passed in S.B. Civil Writ Petition No.20525/2013- Manish Kumar Goyal & Ors. Vs. Assistant Secretary (Superintendent), Jhalawar Hospital and Medical College Society, Jhalawar & Ors., is quoted as below:- “Consequently, the writ petition is disposed of recording the statement of the learned AAG that the show cause notice dated 08.11.2013 stands withdrawn. It is however made clear that the respondents shall be free to issue a fresh show cause notice giving more material particulars relevant to the allegations against the petitioners. In the event such a fresh show cause notice being issued, the petitioners shall be under an obligation to file a detailed reply thereto and take their remedy in the first instance before the competent authority issuing the show cause notice. The writ petition stands disposed of accordingly. The stay application stands disposed of in view of the writ petition being disposed of.” 6. It appears that a suo moto contempt petition was drawn by this Court, on which fresh notices were issued, which were again challenged in the writ petitions, which were dismissing, giving rise to the present Special Appeals. The review petitions, filed by the petitioners, were also dismissed by learned Single Judge, causing delay in filing of these Special Appeals, which has been condoned. 7. Learned Single Judge, in his judgment dated 12.02.2014, found that in pursuance to the show cause notice dated 27.11.2013, an enquiry was conducted by a three member Committee of the College, in which it was proved that the irregularities were committed in the process of selection for appointment of as many as 17 persons on different posts. No criteria was adopted in selections. No criteria was adopted in selections. The appointments were not made on merit and that no transparency was maintained in the process of selection. The appointment of the petitioners/appellants was not on regular basis. The writ petitions were thus dismissed. 8. The petitioners filed review petitions, which were dismissed on the ground that there was no error apparent in the judgment of this Court, in which it was held that even though appointment of the petitioners was of contractual nature, no transparent criteria was adopted, and in any case, merit was not the criteria, and since the selection itself was held to be illegal, there was no need for holding a regular departmental enquiry. 9. Before proceeding to consider the submissions on merit, we may observe here that the appellants have not produced any contract, under which they were appointed or the bond which they were required to execute. They had only produced an Office Order dated 16.02.2009, under which it was provided that the Jhalawar Hospital & Medical College Society, Jhalawar, will enter into a contract with the appellants for a period of one year, and that the appellants will have to execute a bond. The appellants thereafter worked up to 13.12.2013 without execution of any contract or bond. They got salary up to the date of their termination. The appointment letters were not issued, nor any contract or bond was executed. 10. The office order provided that the appellants were to be appointed on contract, initially for a period of one year, by the Jhalawar Hospital & Medical College Society, Jhalawar, which is a Society, of which the Secretary, Medical & Health, Government of Rajasthan is the Chairman. They were not appointed in the medical college or in the hospital in any cadre. The question of application of Conduct and Appeal Rules of the Rajasthan Government, therefore, does not arise. 11. In the present case, we do not find any substance in the contention of learned counsel appearing for the appellants that since the respondents did not produce records of selections and the appointment letters, an adverse inference was to be drawn that the appellants were appointed in accordance with the procedure prescribed for selection and for appointment, on contract. 11. In the present case, we do not find any substance in the contention of learned counsel appearing for the appellants that since the respondents did not produce records of selections and the appointment letters, an adverse inference was to be drawn that the appellants were appointed in accordance with the procedure prescribed for selection and for appointment, on contract. In the enquiry, conducted under the orders of the Dean of the Medical College by the Professors/Doctors, the Medical Superintendent of the hospital could not produce the records of selections, nor could he give the criteria adopted for selection. 12. In the facts and circumstances, we do not find any error in the judgment of learned Single Judge, in which it was held that where selections are held without adopting any criteria, and in which no transparency was maintained, nor any records of the selections were maintained, the appointments cannot be held to be valid. 13. We may also observe here that in any case, the period of contract has run out on completing one year. There is no averments, nor there is any material on record, to show that the contract was renewed or extended by the appointing authority beyond the period of one year. 14. It is submitted that the respondents should not be allowed to appoint, any person by substituting the appellants services on contract, unless there was any misconduct committed on their part. We are unable to appreciate the submission inasmuch as there is no averment that any fresh selections have been made, or any new persons have been appointed on contract, replacing the appellants. 15. In our view, the enquiry report on an enquiry conducted by the Additional District Collector, Jhalawar, and the Anti Corruption Department, Jhalawar, clearly establishes that the appellants were not appointed by following and adhering to any fair and transparent procedure prescribed by the Society, an instrumentality of State, nor the records of selections were maintained. 16. There is no merit in the Special Appeals and the same are accordingly dismissed. A copy of this order be placed in all the connected files.