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Rajasthan High Court · body

2016 DIGILAW 1603 (RAJ)

Sunil Kumar, S/o Bhana Ram Khatri v. State of Rajasthan, through Secretary, Medical and Health Department

2016-11-15

SANGEET LODHA

body2016
JUDGMENT : 1. This petition is directed against order dated 31.10.14 issued by the Member Secretary, Rajasthan Medicare Relief Society ('RMRS'), General Hospital, Jalore, whereby the services of the petitioner, who was employed as Computer Operator on contract basis under Mukhyamantri BPL Raksha Kosh Scheme ('CMBPL Scheme'), have been brought to an end treating him to be in employment under RMRS. 2. The relevant facts in nutshell are that vide order dated 15.10.09, the petitioner was appointed as Computer Operator on contract basis vide order dated 15.10.09 issued by the Chief Medical Officer, Jalore. Thereafter, the petitioner continued in service uninterruptedly. However, all of a sudden, vide order dated 31.10.14 issued by the Member Secretary, RMRS, General Hospital, Jalore, pursuant to decision taken by the RMRS in its meeting held on 21.10.14, the petitioner's services were brought to an end allegedly on account of posting of Information Assistant in General Hospital, Jalore, by the State Government and non renewal of the contract of the petitioner. 3. Precisely, the case of the petitioner is that he was engaged as Computer Operator on contract basis by the Chief Medical Officer, Jalore under CMBPL and therefore, the Member Secretary, RMRS, had no jurisdiction to terminate his services. It is submitted that the work for which the petitioner was engaged was of perennial nature and therefore, there was no occasion for the respondents to terminate his services. The petitioner has placed on record a copy of the order dated 30.8.14 issued by the State Government, whereby the term of services of the persons working on the post of Computer Operator, Pharmacist etc. on contract basis under CMBPL Scheme, was extended upto 28.2.15 or till the regular appointment on the posts created, whichever is earlier. It is submitted that in view of extension granted by the State Government, the services of the petitioner could not have been brought to an end. 4. on contract basis under CMBPL Scheme, was extended upto 28.2.15 or till the regular appointment on the posts created, whichever is earlier. It is submitted that in view of extension granted by the State Government, the services of the petitioner could not have been brought to an end. 4. It is not disputed by the respondents that the petitioner was engaged on contract basis under CMBPL Scheme, however, it is submitted that after regularly recruited Information Assistants being posted by the Government in the General Hospital, Jalore, the services of the petitioner were not required and therefore, in the meeting of RMRS held on 21.10.14, a decision was taken to discontinue the services of the persons engaged on contract basis and accordingly, the petitioner's services, who was engaged only on contract basis, were brought to an end. According to the respondents, the petitioner, a contractual employee, cannot claim any right to continue on the post after posting of the regularly selected persons. 5. On 6.5.16, on the statement being made by the counsel appearing for the petitioner that the posts are still lying vacant, the counsel appearing for the respondents sought time to verify whether any post of Computer Operator is lying vacant under the Scheme under which petitioner was appointed. Pursuant thereto, on 25.7.16, an affidavit was filed on behalf of the respondents taking the stand that no post of Computer Operator is lying vacant in the Rajasthan Medicare Relief Society, General Hospital, Jalore. It is pertinent to note that the petitioner was engaged on contract basis on the post of Computer Operator under CMBPL Scheme, however, the position regarding availability of the posts under the said Scheme was not clarified by the respondents. Later, on 7.11.16, yet another additional affidavit has been filed on behalf of the respondents, taking the categorical stand that vide order dated 8.7.16 issued by the Project Director, CMBPL Scheme, sanction has been accorded for engaging three Computer Operator on contract basis in District Hospital, Jalore and vide order dated 9.7.16, one more post of Computer Operator to be engaged on contract basis has been sanctioned. It is submitted that out of four posts of Computer Operator sanctioned for the financial year 2016-17, two posts are occupied by the persons appointed on the said posts and two posts are still lying vacant. 6. It is submitted that out of four posts of Computer Operator sanctioned for the financial year 2016-17, two posts are occupied by the persons appointed on the said posts and two posts are still lying vacant. 6. Learned counsel appearing for the petitioner contended that admittedly, the petitioner was appointed as Computer Operator on contract basis vide order dated 15.10.09 issued by the Chief Medical Officer, Jalore under CMBPL Scheme and therefore, the Member Secretary, RMRS, had no jurisdiction to terminate the services of the petitioner and thus, the order impugned is ex facie illegal and void. Learned counsel submitted that the petitioner has to be treated in service for all intent and purposes and the respondents are under an obligation to take him on duty. Learned counsel urged that the services of the persons engaged on contract basis were extended by the State Government vide order dated 30.8.14 and therefore, even otherwise, the petitioner's services could not have been terminated. Learned counsel submitted that even according to the respondents, two posts of Computer Operator sanctioned by the State Government under CMBPL Scheme, are still lying vacant and therefore, the action of the respondents in terminating the services of the petitioner is ex facie illegal. 7. On the other hand, the counsel appearing for the respondents while not disputing that the petitioner was engaged on contract basis under the CMBPL Scheme, submitted that the petitioner, who was engaged on contract basis for the specified period, cannot claim continuance in service for indefinite period. On being asked by the court as to how the petitioner's services have been brought to an end by the Member Secretary, RMRS, whereas he was engaged by the Chief Medical Officer, Jalore under CMBPL Scheme, the learned counsel had no answer. 8. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 9. Indisputably, the petitioner was appointed on the post of Computer Operator on contract basis vide order dated 15.10.09 issued by the Chief Medical Officer, General Hospital, Jalore under CMBPL Scheme and thus, the Member Secretary, RMRS, had no jurisdiction to terminate the petitioner's services treating him to be an employee of RMRS, allegedly on account of posting of Information Assistant by the State Government in the General Hospital, Jalore. It is not disputed before this court that as a matter of fact, by virtue of order dated 30.8.14 issued by the State Government , the petitioner's services already stood extended upto 28.2.15 or till the availability of regularly selected candidates, whichever is earlier and therefore, the termination of services of the petitioner allegedly on account of posting of the Information Assistant by the State Government, was ex facie illegal. It is not the case of the respondents that the posts of Computer Operator, sanctioned by the State Government under CMBPL Scheme, were abolished or the regular recruitment has been made on the post of Computer Operator rather, the specific case of the respondents is that the sanction issued stands extended time to time and as on the date, two posts of Computer Operator sanctioned by the State Government under the CMBPL Scheme are still lying vacant in the General Hospital, Jalore. In this view of the matter, in the considered opinion of this court, the termination of services of the petitioner vide order dated 31.10.14 issued by the Member Secretary, Rajasthan Medicare Relief Society, General Hospital, Jalore, is ex facie illegal and without jurisdiction and therefore, deserves to be quashed. 10. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 31.10.14 is quashed. The petitioner shall be treated to be in continuous service of the respondents as Computer Operator on contract basis under the CMBPL Scheme and shall be entitled for consequential benefits. It is made clear that the respondents shall be at liberty to terminate the services of the petitioner if the posts of the Computer Operator sanctioned by the State Government under the CMBPL Scheme, are abolished or the sanction issued is not further extended or the regularly recruited candidates are made available. No order as to costs.