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Gauhati High Court · body

2015 DIGILAW 454 (GAU)

Ruby Zohmingliani v. Union of India

2015-04-10

MICHAEL ZOTHANKHUMA

body2015
Heard Mr. Lalremtluanga, learned counsel for the petitioner. Also heard Mr. A.H. Barbhuiya, learned CGC for the respondent Nos. 1 and 2 and Mr. A.R. Malhotra, learned Standing Counsel for the respondent No. 3. 2. The petitioner case is that the petitioner was appointed as Demonstrator in B.Sc Nursing Section for a period of 6 (six) months on contractual basis on payment of lumpsum of Rs. 6000/- per month with effect from the date of joining duty vide order dated 28.10.2002. In pursuant to the appointment order dated 28.10.2002, a Deed of Agreement was executed between the petitioner and the respondent No. 3. Thereafter, the petitioner has been continuing as Demonstrator in the Regional Institute of Paramedical and Nursing(RIPANS), Aizawl. 3. The petitioner and 4 other colleagues had submitted representation dated 28.2.2014 to the Joint Secretary, Ministry of Health and Family Welfare, Govt. of India with copies to the Principal Secretary, Government of Mizoram, Health & Family Welfare Department in which they had prayed that as they had been in continuous service from 29.10.2002 till 28.02.2014, their services should be regularized. 4. Thereafter, the respondent No. 3 issued a letter dated 4.4.2014 to the petitioner seeking an explanation. The content of the letter dated 4.4.2014 issued by the respondent No. 3 is reproduced herein below: “It has come to the notice of the undersigned that you had submitted representation to the Joint Secretary, Ministry of Health & Family Welfare, Govt. of India through proper channel. However, without waiting for the forwarding and comment of the undersigned, your representation has reached the Ministry by dispatching advance copy to the Joint Secretary (NE). You have also given a copy of your representation to the following: 1. P.S. to Hon’ble Minister, Health & Family Welfare, Govt. of Mizoram. 2. P.S. to Jt. Secretary, Ministry of Health & Family Welfare, Govt. of India. 3. P.S. to Principal Secretary, Health & Family Welfare, Govt. of Mizoram. This is in violation of the CCS (Conduct) Rules which is viewed seriously and hence you are hereby informed to explain why appropriate disciplinary action should not be taken against you. Your reply should be submitted latest by 11th April, 2014.” 5. of India. 3. P.S. to Principal Secretary, Health & Family Welfare, Govt. of Mizoram. This is in violation of the CCS (Conduct) Rules which is viewed seriously and hence you are hereby informed to explain why appropriate disciplinary action should not be taken against you. Your reply should be submitted latest by 11th April, 2014.” 5. In reply to the respondent No. 3 letter dated 4.4.2014, the petitioner submitted her explanation dated 10.4.2014 stating that her representation was a request for a regularization of her post in RIPANS and the submission of advance copies to higher official does not violate the provision of CCS (Conduct) Rules. 6. The respondent No. 3 thereafter wrote another letter dated 6.5.2014 to the petitioner stating that sending representation directly and by-passing and ignoring the prescribed channels of representation is in violation of instructions issued by the Department of Personnel & Training, Government of India. The respondent No. 3 in his letter has also stated that the explanation given by the petitioner was not accepted by him and directed the petitioner to submit another explanation latest by 16.5.2014. 7. The petitioner thereafter submitted another explanation dated 15.5.2014 to the respondent No. 3 stating amongst other reasons that the CCS (Conduct) Rules, 1964 could not be made applicable to her as she was not a regular Government servant. 8. The respondent No. 3 thereafter wrote another letter dated 2.6.2014 to the petitioner informing her that her explanation dated 15.5.2014 was not acceptable to him as the issue is with regard to direct submission of representation to higher authority by-passing concerned authority. The petitioner was also informed vide letter dated 27.6.2014 that her service was terminated and her contractual engagement with RIPANS was not extended beyond 30.6.2014. 9. Mr. Lalremtluanga, learned counsel for the petitioner has submitted that the termination of the petitioner is ineligible inasmuch as while the other 4 Demonstrators who had submitted their representations alongwith the petitioner under the same set of facts and circumstances had their contract period extended beyond 30.11.2014. The only difference between the petitioner and her 4 colleagues was that their apology had been accepted while the petitioner’s explanation was not accepted by the respondent No. 3. 10. The only difference between the petitioner and her 4 colleagues was that their apology had been accepted while the petitioner’s explanation was not accepted by the respondent No. 3. 10. The petitioner’s counsel has also submitted that with regard to the termination order dated 27.6.2014 issued by the respondent No. 3 is illegal as he is not the competent authority to impose penalties as provided by the Rules and Regulation of RIPANS. The Rules and Regulation of RIPANS does not provide for the respondent No. 3 to impose penalties. 11. The petitioner’s counsel has also submitted that the petitioner had submitted a representation dated 17.9.2014 to the Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, Government of India to reinstate the petitioner as a Demonstrator on contract basis under RIPANS and that the said representation has not been decided till date. 12. I have heard the learned counsel for the parties. 13. A perusal of the writ petition shows that the impugned order dated 27.6.2014 clearly shows that the petitioner’s service has been terminated and that her contractual engagement has not been extended with effect from 1.7.2014. The letters dated 6.5.2014 and 2.6.2014 issued by the respondent No. 3 i.e. Director, Regional Institute of Paramedical and Nursing Sciences, Aizawl also shows that the explanation given by the petitioner was not acceptable to the respondent No. 3. 14. It is also seen that on the same date of termination of the petitioner’s contract employment, vide letter dated 27.6.2014 the respondent No. 3 has appointed 15 new Demonstrators under RIPANS. 15. Article 14 of the Constitution eschewed arbitrariness and discrimination. In the present case, the petitioner’s contractual engagement had not been extended while her 4 colleagues under contractual engagement had been extended though their case were similar. 16. The petitioner’s counsel has also submitted that the post left vacant by the petitioner has still remained vacant. 17. The facts that RIPANS need Demonstrators is clearly seen from the order dated 27.6.2014 whereby it has appointed 15 new Demonstrators while terminating the contractual engagement of the petitioner by the impugned order of the same date. It has been clearly held by the Hon’ble Supreme Court in various judgments that 1(one) contractual employee should not be replaced by another contractual employee unless the said posts are filled by regular appointments 18. It has been clearly held by the Hon’ble Supreme Court in various judgments that 1(one) contractual employee should not be replaced by another contractual employee unless the said posts are filled by regular appointments 18. In the present case, I find that there is discrimination and arbitration writ large in view of the discriminatory action in extending the contractual engagement of the petitioner’s 4 colleagues while terminating the petitioner’s contractual engagement. 19. A perusal of the letter shown by the respondent No. 3 clearly shows that punitive action has been taken by the respondent No. 3 against the petitioner inasmuch as he has not accepted the petitioner’s explanation while accepting the explanation of the petitioner’s 4 colleagues. 20. The counsel for the respondent No. 3 has submitted a prayer for filing affidavit-in-opposition. However, in view of the facts which are clearly seen in the writ petition, I do not find it necessary to keep the petition pending any longer. Also this Court had passed order dated 19.3.2015 as follows “Heard Mr. Lalremtluanga, learned counsel appearing for the petitioner. Also heard Mr. A.R. Malhotra, learned counsel appearing for the respondent No. 3 i.e. Director, RIPANS and Mr. A.H. Barbhuiya, learned CGC appearing for the respondent (i.e. Union of India) Nos. 1 and 2. By the next date fixed, the respondents shall file their affidavit in this matter without fail as the petitioner is out of service since July, 2014.” 21. As can be seen from the documents, the termination order dated 27.6.2014 is only due to the request made by the petitioner to regularize her service as she had been working as a Demonstrator on contractual basis from the year 2002 till 2014. The request of the petitioner to my mind does not warrant an order of termination. It is normal that a person who is on contract basis for a long period would have a legitimate expectation of her service to be regularized. In any event, in the present case there has been clear discrimination and arbitrariness in not extending petitioner’s contractual engagement while appointing 15 new Demonstrators on the same date after the termination of the petitioner’s contractual engagement. The action of the respondent No. 3 is arbitrary and accordingly the termination order dated 22. In any event, in the present case there has been clear discrimination and arbitrariness in not extending petitioner’s contractual engagement while appointing 15 new Demonstrators on the same date after the termination of the petitioner’s contractual engagement. The action of the respondent No. 3 is arbitrary and accordingly the termination order dated 22. The respondent No. 3 i.e. Director, Regional Institute of Paramedical and Nursing(RIPANS), Aizawl is directed to issue an appropriate order appointing the petitioner as Demonstrator on contractual engagement till regular appointment is made as per Rules and Regulation within 2 (two) weeks of receipt of a certified copy of this order. 23. The writ petition is allowed. No cost