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2015 DIGILAW 987 (MP)

Pinki Mishra v. State of M. P.

2015-09-16

R.S.JHA

body2015
ORDER : R.S. Jha, J. The petitioner has filed this petition being aggrieved by the communication dated 2-6-2014 sent by the Chief Medical and Health Officer, Datia, to the Director, National Rural Health Mission, Bhopal whereby he has proposed that action against the petitioner be taken for bringing the contractual service of the petitioner to an end. 2. Learned counsel appearing for the petitioner submits that the petitioner was engaged as Block Programme Manager by the order dated 4-8-2009 on contract basis for a period of one year. It is submitted that the period of the contractual appointment of the petitioner was extended from time to time for successive periods of one year. 3. It is submitted that the petitioner has been discharging duties regularly. However, the Chief Medical and Health Officer, Datia who has no power or authority to do so has sent the impugned communication to the Director which deserves to be quashed. It is submitted that no opportunity of hearing has been given to the petitioner prior to issuance of Annexure P/1 and, therefore, the impugned communication is violative of Article 14 of the Constitution of India as has been held in by this Court in the cases Prem Chand Yadav v. Madhya Pradesh Poorva Kshetra Vidyut Vitam Company Ltd., 2013(2) MPLJ 323 : 2013(1) MPWN 101 and Deepak Nagle v. State of M. P., 2014(2) MPLJ 76 : 2014(2) MPHT 531 . 4. It is further submitted that the impugned communication deserves to be quashed on account of the fact that the respondent No. 3 has forwarded the impugned communication on account of mala fides. The Learned counsel for the appellant has also contended that the averments made by the petitioner have not been denied and, therefore, in view of the decision of the Supreme Court rendered in the case of Smt. Naseem Bano v. State of U. P. and others, AIR 1993 SC 2592 the same should be deemed to be admitted. 5. The Learned counsel for the appellant has also contended that the averments made by the petitioner have not been denied and, therefore, in view of the decision of the Supreme Court rendered in the case of Smt. Naseem Bano v. State of U. P. and others, AIR 1993 SC 2592 the same should be deemed to be admitted. 5. The respondents No. 1 and 2 have filed a return and have stated that the petitioner was not discharging her duties properly and her conduct was very offensive, negligent and disobedient and as she had misbehaved with her senior officer, therefore, the competent authority who is required to send her performance appraisal for the purposes of considering the case of the contract employee for extension of the period of contract has stated the aforesaid aspect and has proposed the competent authority that the petitioner's contract appointment be cancelled. The respondents in the return have also stated that on the previous occasion also the petitioner was warned but she did not improve and, therefore, the authority had no option but to forward the aforesaid proposal to the competent authority. It is further contended that the petition filed by the petitioner is premature as the competent authority has not taken any final decision or passed any final order and the petition has been filed only against the proposal and not against the final order of the competent authority and, therefore, the petition be dismissed at this stage. 6. I have heard the learned counsel for the parties at length and perused the record. 7. From a perusal of the impugned communication dated 2-6-2014 it is clear that the Chief Medical and Health Officer has not passed any order bringing to an end the contractual service of the petitioner. On the contrary it is apparent from a perusal of Annexure P/1 that he has referred the matter for decision to the Director, National Rural Health Mission, Bhopal with his proposal and, therefore, at the outset the contention of the learned counsel for the petitioner to the effect that the petitioner's contractual service has been brought to an end by respondent No. 3 without issuing notice or giving an opportunity or that the authority has passed an order which is stigmatic is factually misconceived. In fact the impugned letter has not even been issued to the petitioner and has been sent to the director and the director has not taken any further steps in the matter till date. In the facts and circumstances of the case as the petitioner's services have not been terminated as yet nor have any steps against the petitioner been taken pursuant to Annexure P-l the reliance placed by the petitioner on the aforesaid decisions of this Court is misconceived as the said decisions have no applicability to the facts of the present case. 8. I may hasten to add that the aforesaid decisions of this Court relied upon by the petitioner would be applicable only in cases where the authority concerned has terminated the contract of appointment during the period of its existence and such an order of termination of contract issued during the contractual period is stigmatic. In other words, where the contract has ceased to exist or has come to an end with the efflux of time and on that count the services come to an end then the question of issuance of notice etc. does not arise. 9. In the instant case, the present petition has been filed by the petitioner merely against the performance appraisal report and proposal to take action against the petitioner which has been forwarded to the competent authority and the authority is yet to take any cognizance of it or act upon it or take a decision in that regard and, therefore, in such circumstances, the question of issuance of any notice to the petitioner by the authority forwarding the performance appraisal/ proposal does not arise and the contention to the contrary of the petitioner is misconceived and is hereby rejected. 10. 10. In view of the aforesaid apparent facts, the contention of the learned counsel for the petitioner to the effect that the impugned order is an order in the form of a notice by placing reliance on the decision of the Supreme Court in the case of Shekhar Ghosh v. Union of India and another, (2007) 1 SCC 331 is misconceived and is hereby rejected as the facts of the present case are totally different inasmuch as in the instant case the Chief Medical and Health Officer has not taken any decision in the matter nor has he issued any notice to the petitioner but has simply forwarded his report and proposal to the competent authority by letter dated 2-6-2014 and in such circumstances the aforesaid decision of the Supreme Court has no applicability to the facts and circumstances of the present case. 11. It is also pertinent to take note of the fact that there is nothing on record to indicate that the petitioner's contractual services have been extended except for a bald averment made in this regard by the petitioner. Even if it is assumed to be true that the petitioner's contractual service was extended periodically for a period of one year from time to time, it is observed that the order of appointment is dated 4-8-2009 and was for a period of one year and therefore the extended period ends on 4th of August of each year including this year and there is nothing on record to indicate that it has been extended beyond that date in the current year. 12. As far as the contention of the petitioner regarding mala fide is concerned, it is settled law that the allegations made by the petitioner against the authority should be clear and specific. In the instant case the petitioner has not filed any specific document or mentioned any specific instance to indicate that the respondent No. 3 harbours any mala fide against the petitioner. On the contrary, it is evident from Annexure P-l that the respondent No. 3 himself has not taken any decision but has forwarded the matter to the competent authority against whom there are no allegations of mala fide and who has yet not taken any decision or action in the matter which fact in itself belies the assertions of mala fide made by the petitioner. 13. 13. In view of the aforesaid facts and circumstances, I do not find any merit in the petition which is accordingly, dismissed with an observation that the petitioner, if so advised, may approach the authority to whom the respondent No. 3 has forwarded the matter for decision, by filing a representation before it. It goes without saying that the said authority concerned shall take action in accordance with law if occasion so arises. 14. With the aforesaid observations the petition filed by the petitioner stands dismissed.