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2015 DIGILAW 898 (JHR)

Mazharul Haque v. State of Jharkhand

2015-07-31

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. The aforesaid writ petitions are being heard together. Since, the relief sought for are similar in both the writ petitions, therefore, with the consent of counsel of respective parties these aforesaid writ petitions are heard analogously and disposed of by this common order/judgment. 2. The writ petitions have been preferred for the following reliefs: (a) For issuance of an appropriate writ/order/direction and/or a writ in the nature of Certiorari to quash the order as contained in Memo No. 113 (2) dated 15-02-2008 (Annexure-3) passed by the concerned respondents who have extended the period of services of those medical and paramedical employees who were given employment on contractual basis for a certain period and also to direct the respondents to initiate action for regular appointment on the sanctioned and vacant posts of medical and paramedical staffs viz., Lab Technicians, Pharmacists, Nurses Grade-A, A.N.M. etc., by the Jharkhand State Public Service Commission. (b) For issuance of an appropriate writ/order/direction and/or a writ in the nature of certiorari commanding the respondents concerned to fillup the posts of paramedicals viz., Lab Technicians, Pharmacists, Nurses Grade-A, Auxiliary Nurse Mid-Wife (A.N.M.) against the sanctioned post in the State of Jharkhand on regular basis after following legal process for appointment. (c) For issuance of an appropriate writ/order/direction to prohibit the respondents to take services of such paramedical employees whose services have been extended vide order dated 13-2-2007 (Annexure-2 to the writ petition) which debars the petitioners from their legal rights to apply for their appointment on the said posts. (d) For issuance of such other writ/order/direction for which the petitioners are legally entitled under the facts and circumstances of this case. 3. Sans details, the facts in nutshell is that the petitioners in pursuance to a notice published for appointment on contract basis for the posts of Doctor and Para Medical Staffs as evident form Annexure1 to the writ application, finding themselves eligible for the posts, have applied for the same and after proper verification of their testimonials, they were selected for the said posts and accordingly, agreements were executed between the petitioners and the respondents on 14.11.2003 for the period 01.01.2004 to 31.12.2005 as evident from Annexure2 to the writ application. 4. As per the agreement, the petitioners submitted their joining on their respective posts in the district and performed their duties. 4. As per the agreement, the petitioners submitted their joining on their respective posts in the district and performed their duties. Since the period of the contract of the petitioners was expired on 31.12.2005 but on interference of the Hon'ble High Court they were paid the wage or remuneration for period of contract. 5. A notification has been issued by the respondents' office on 30.01.2014 known as “Rule for Regularization of 2014” for regularization of the services of the persons working on contract basis on the posts of Nurses Grade-A, Pharmacists and Lab Technicians. In the said Rule provisions have been made in detail for regularization of the persons working as para medical staffs on contract basis as evident from Annexure4 to the writ application (W.P.(S) No. 4915 of 2014). 6. In view of the vacancies available, the petitioners have approached this court invoking extraordinary jurisdiction under article 226 of the Constitution of India for direction to the respondents to regularize the persons appointed on the contract basis on the respective posts. 7. Per contra, a counter-affidavit has been filed on behalf of the respondent nos. 1 to 4 controverting the averments made in the writ application. In the counter-affidavit, it has been stated that in Clause 11 of the Contractual Appointment Letter given to the petitioners, it is clearly mentioned that on account of contractual service, one cannot claim for any regular appointment, as is evident vide Annexure-A to the counter-affidavit. It has further been submitted since the period of contractual appointment of the petitioners has already been expired, therefore, there is no question of regular appointment of the petitioners. 8. It has further been submitted that writ application bearing W.P. (S.) No. 376 of 2005 has been disposed of by the Hon'ble High Court vide its order dated 22.11.2005 with a direction to the respondents to pay arrears to the petitioners as per the terms of the contract within a period of three months from the date of the order. 9. In para 12 of the counter-affidavit it has been submitted that the petitioners were appointed purely on contractual basis such as : Sl. No. Petitioner No. Name Period Place & Posting 1. Petitioner No. 1 Mazharul Haque 12.11.03 to 8.2.05 Lab Technician, Tandwa, Chatra 2. Petitioner No. 2 Abhay Kumar Singh 12.11.03 to 8.2.05 Lab Technician, Pratappur, Chatra 3. 9. In para 12 of the counter-affidavit it has been submitted that the petitioners were appointed purely on contractual basis such as : Sl. No. Petitioner No. Name Period Place & Posting 1. Petitioner No. 1 Mazharul Haque 12.11.03 to 8.2.05 Lab Technician, Tandwa, Chatra 2. Petitioner No. 2 Abhay Kumar Singh 12.11.03 to 8.2.05 Lab Technician, Pratappur, Chatra 3. Petitioner No. 3 Suman Kumar Pandey 14.11.03 to 28.2.05 Pharmacist, Bishnugarh, Hazaribagh 4. Petitioner No. 4 Bani Mazumdar 14.11.03 to 28.2.05 A.N.M. Grade-A, Bishnugarh, Hazaribagh Petitioner No. 5 Menna Kumari 14.11.03 to 28.2.05 A.N.M. Grade-A, Ichak, Hazaribagh 10. Further it has been submitted that the Government of Jharkhand issued a notification bearing no. 29 (10) dated 30.01.2014 in which it is clearly mentioned that the paramedical staffs, who were appointed pursuant to the Resolution No. 531 (4) dated 21.12.2004, shall be regularized as per Annexure-B to the counter-affidavit. Since the petitioners were not appointed on contract by virtue of the Resolution No. 531 (4) dated 21.12.2004, therefore, there is no question of regular appointment of the petitioners. These petitioners, who were appointed in the year 2003 were terminated from their services. It has further been submitted that pursuant to notification no. 29(10) dated 30.01.2014, the proposal of regular appointment of paramedical staffs, who were appointed under Resolution No. 531(4) dated 21.12.2004, was sent to the Jharkhand State Staff Selection Commission as per Clause 5(1) of the Appointment Rules, 2014. 11. It has further been submitted that the Deputy Secretary of the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi vide Memo No. 994 dated 05.02.2015 informed that the Jharkhand Staff Selection Commission has not finalized the names of the Paramedical staffs, rather it has been informed that the Department has power/jurisdiction to regularize the services of the paramedical staffs as per Annexure-C to the counter-affidavit. Furthermore, it has been submitted that since the petitioners were appointed purely on contractual basis in the year 2003 and, therefore, these petitioners do not come within the purview of Notification No. 29 (10) dated 30.01.2014. 12. Heard Mr. R.S.P. Sinha, learned senior counsel appearing for the petitioners and Mr. D.K. Dubey learned standing council-I appearing for the respondents. 13. Learned senior counsel for the petitioners strenuously urged before this court that the action of the respondents not fillup the posts of paramedical staffs viz. 12. Heard Mr. R.S.P. Sinha, learned senior counsel appearing for the petitioners and Mr. D.K. Dubey learned standing council-I appearing for the respondents. 13. Learned senior counsel for the petitioners strenuously urged before this court that the action of the respondents not fillup the posts of paramedical staffs viz. Pharmacist, Lab Technicians, Nurses Grade-A and A.N.M. in the Department of Health and Family Welfare on regular basis without following the procedure of selection violates article 14 to 16 of the Constitution of India. Learned senior counsel further submits that the action of the respondents of reappointing or extending the services of the employees on contractual basis is bad, illegal, arbitrary and violative to the directions given by this Hon'ble Court. 14. As against assiduous submissions of learned senior counsel for the petitioner learned counsel for the State dexterously countered the submissions of the petitioner by referring to the supplementary counter-affidavit filed on behalf of the respondents wherein notification dated 30.01.2014 issued by the Health, Medical Education and Family Welfare Department, Government of Jharkhand, has been enclosed relating to the constitution of Regular Recruitment Rules, 2014 for appointment of Para Medical Staffs (Viz. Nurses Grade-A, A.N. Ms., Pharmacists, Lab Technicians) on contract basis under the non plan head of Health, Medical Education and Family Welfare Department. 15. The writ petitions are disposed of with a direction to the respondents to consider the case of the petitioners for regular selection of the paramedical staffs as per the notification dated 30.01.2014 issued by the Health, Medical Education and Family Welfare Department, Government of Jharkhand strictly in consonance with the aforesaid notification/rules preferably within a period of three months from the date of receipt/production of copy of this order.