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Himachal Pradesh High Court · body

2016 DIGILAW 2 (HP)

Bir Pal Singh v. Union of India

2016-01-01

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, Judge The respondents with a view to cater to the medical care of all ex-servicemen in receipt of pension including disability pension and family pension besides of dependents including wife/husband, children and their wholly dependent parents, conveyed its sanction for the introduction of a scheme for the health care of the aforesaid nomenclatured as Ex-servicemen Contributory Health Scheme (ECHS). The aforesaid scheme was made effective w.e.f. 01.04.2003. For recruitment of staff in various capacities for the manning of polyclinics for carrying forward the spirit and mandate of ECHS, the respondents issued an advertisement comprised in Annexure P-6. The petitioner standing empowered with the qualifications ordained therein qua the post of Laboratory Assistant as stood advertised for being filled, applied for his being considered for selection and appointment to the post of Laboratory Assistant against which he aspired for his being considered for selection and appointment. The petitioner successfully withstood the rigor of a viva voce whereupon appointment letter comprised in Annexure P-7 stood issued to him by the competent appointing authority. In pursuance to the petitioner herein standing appointed against the post for which he had applied for in pursuance to the advertisement standing published by the respondents herein, he respectively in terms of his appointment letter comprised in the aforesaid annexure whereunder he stood enjoined to execute a contract of service with the designated/authorized officer of the respondents executed with the latter contract. The apt portion of the contracts of service respectively entered inter se the petitioner herein with the authorised officer of the respondents herein is extracted hereinafter:- “2. The engagement of the engaged person for rendering his professional service shall be entirely contractual in nature and will be for a period of 12 months initially and thereafter renewable for 12 months at a time up to and subject to attaining the maximum age prescribed/indicated in appendix A to Govt. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time. The renewal of contract will be subject to continued good conduct and performance of the engaged person during the preceding 12 months and existence of the requirement for services of the engaged person at the ECHS Polyclinic. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time. The renewal of contract will be subject to continued good conduct and performance of the engaged person during the preceding 12 months and existence of the requirement for services of the engaged person at the ECHS Polyclinic. A fresh contract will be executed for each renewal.” It is imminent from a perusal of the afore extracted relevant portion of the contract of service executed inter se the petitioner and the competent/authorized officer of the respondents, of the appointment of the petitioner against the post of Laboratory Assistant being entirely contractual in nature whose longevity was initially surviveable upto 12 months yet was successively thereafter renewable for 12 months each for a period upto and subject to his attaining the maximum age prescribed/indicated in appendix A to Govt. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time. The respondents though revered the mandate of the afore extracted clause embedded in the contract of service executed inter se its authorized officer and the petitioner herein upto September, 2015, yet thereafter omitted to mete compliance thereof besides have concerted to derogate from besides infract its mandate by readvertising the post on the anvil of clause (d) of Letter No.24(6)/03/US(WE)/D(Res), 22nd September, 2003 (hereinafter referred to in short “letter of 22nd September, 2003) comprised in Annexure-R, the relevant clause (d) whereof stands extracted hereinafter:- “(d) Duration of Employment - The employment of the staff will be entirely contractual in nature and will be normally for a period of two years at the maximum, subject to review of their conduct and performance after 12 months” 3. Given the uncontroverted factum of the petitioner herein having completed more than four years of contractual appointment against the post of laboratory attendant whereon he stood appointed at polyclinic established under ECHS, hence, with the embargo aforesaid enshrined in Annexure R against the petitioner herein being barred to stake a claim for the affording of an extension in his contractual appointment by the respondents herein besides, hence his being not amenable for consideration for affording to him any further extension in his contractual appointment by execution of a contract of service inter se him and the authorised officer of the respondent constrained the respondents to not extantly accord any extension in the contractual service of the petitioner under the respondents besides constrained them to not execute with him a contract of service in terms of clause-2 as stand extracted hereinabove which clause stands embedded in the contract of service executed inter se the petitioner and the authorized officer of the respondents whereunder the respondents were rather obliged to successively after expiry of the initial contract of service of 12 months successively execute renewed or fresh contract of service with the petitioner upto his attaining the maximum age prescribed/indicated in appendix A to Govt. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time. Contrarily, the respondents proceeded to issue advertisement comprised in Annexures P-9 inviting applications from all eligible aspirants for theirs being considered for selection and appointment on a contractual basis against various posts existing at polyclinics including the post of Laboratory Assistant against which the petitioner herein stood previously appointed on a contractual basis by the respondents herein. 4. Contrarily, the respondents proceeded to issue advertisement comprised in Annexures P-9 inviting applications from all eligible aspirants for theirs being considered for selection and appointment on a contractual basis against various posts existing at polyclinics including the post of Laboratory Assistant against which the petitioner herein stood previously appointed on a contractual basis by the respondents herein. 4. As above stated, the defensibility on the part of the respondents herein to not execute a further contract of service with the petitioner herein stands anchored upon the afore extracted letter/communication comprised in Annexure-R. However, the succor as concerted to be lent to the aforesaid defensibility to the act of the respondents herein to not revere the mandate of clause-2 of the contract of service executed by an authorized officer of the respondents herein with the petitioner herein would acquire vigour only in the event of there being demonstrable material on record of the petitioner herein having committed misdemeanors or his performance against the post against which he stood appointed on a contractual basis being abysmally poor besides with a palpable graphic disclosure by apposite material, of the post against which he stood appointed on a contractual basis no longer subsisting, rendering dispensable the services of the petitioner besides concomitantly disobliging the respondents herein to hence execute a contract of service with the petitioner. However, a close and incisive rummaging of the record omits to make any disclosure of (a) the petitioner herein having committed any misdemeanors or his having under performed or abysmally performed the callings of his avocation and (b) work of the post against which he stood appointed on a contractual basis no longer subsisting rather as stands manifested by the respondents herein taking to advertise the post against which the petitioner herein hitherto served or is serving bolsters an inference of the service of the petitioner herein being not amenable for dispensation. Contrarily with the inhibitions aforesaid cast in clause-2 of the contract of service executed by the authorised officer of the respondents herein with the petitioner herein not obviously warranting their attraction against the petitioner herein rather enjoined the respondents herein to in consonance therewith execute successive renewed contracts of service with the petitioner herein. Contrarily with the inhibitions aforesaid cast in clause-2 of the contract of service executed by the authorised officer of the respondents herein with the petitioner herein not obviously warranting their attraction against the petitioner herein rather enjoined the respondents herein to in consonance therewith execute successive renewed contracts of service with the petitioner herein. Dehors the aforesaid inhibitions existing in cluase-2 of the contract of service executed inter se the authorised officer of the respondents herein and the petitioner herein being unavailable for dependence by the respondents herein for validating their omission to execute a fresh contract of service with the petitioner herein, rather the existence of a mandate therein of the services of the petitioner herein being liable for retention by the respondents upto his attaining the maximum age prescribed/indicated in appendix A to Govt. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time contrarily inhibited the respondents herein to issue the aforesaid communication besides inhibited the attraction of its rigor qua the petitioner herein especially when for reiteration the prescription in Clause-2 therein qua the entitlement of the petitioner herein for his retention in service upto his attaining the maximum age prescribed/indicated in appendix A to Govt. of India Ministry of Defence letter NO.24(6)/03/US(WE)/D(Res) dated 22 Sep. 2003, or as amended from time to time would suffer abrogation or dwindlement only a proven amendment therein standing carried out by the respondents herein. As a corollary, no infraction of the mandate of Clause-2 of the contract of service qua the facet aforesaid was vindicable unless a proven amendment thereto stood effectuated by the competent authority. Though the learned Assistant Solicitor General of India relies upon a letter of 22nd September, 2003 clause (d) whereof stands extracted hereinabobve for succoring his contention qua given its embodiment in Clause-2 of the contract of service executed inter se the petitioner herein and the authorised officer of the respondents herein, the former standing debarred besides being baulked for staking any claim from the respondents of the latter being obliged to execute with him any renewed successive contracts of service beyond two years. However, the aforesaid espousal before this Court by the learned Assistant Solicitor General of India for disentitiling the petitioner claiming from the respondents of the latter renewing his contract of service with them, is of no avail to him rather its vigour get sapped given the existence on record of a letter No.B/49760/AG/ECHS(R) of 24th May, 2011(hereinafter referred to in short “letter of 24th May, 2011) wherein a mandate stands enjoined upon the Government of India to permit extension in the contractual employment of the petitioner herein inconsonance therewith. Preeminently, given the occurrence of a reference therein to letter of 22nd September, 2003 which stands incorporated in the contract of service executed inter se the petitioners and the authorized officer of the respondents herein, the rigour of a prescription therein comprised in clause (d) extracted herein above would stand relaxed besides abrogated in the event of a valid amendment thereto standing effectuated by the competent authority. Necessarily, when the issuance of letter of May, 2011 is rendered encompassable within the domain of clause 2 permitting amendments to letter of 22nd September, 2003, in sequel, with its issuance standing validation as a corollary it attains empowerment to hold the field qua the entitlement of the petitioner to in consonance therewith seek extension in his contractual appointment under the respondents upto his attaining the age of superannuation unless his performance is wanting or his conduct is reproachable especially when on an incisive reading of the words “as amended from time to time” succeeding the reference of letter of 22nd September, 2003 in clause-2 of the contract of service entered inter se the petitioner and the authorised officer of the respondents disinters besides unfolds an empowerment standing foisted in the employer to relax by its carrying an amendment thereto the rigidity of the tenure of two years of contractual appointment manifested in the afore referred letter of 22nd September, 2003. With an empowerment vested in the employer to relax the rigidity of the prescriptions constituted in clause (d) relied upon by the learned Assistant Solicitor General of India, which stands extracted hereinabove, qua the limited tenure of contractual appointment of the petitioner under the respondents, the respondents herein hence proceeding to in tandem thereto issue letter of 24th May, 2011 with an explicit prescription therein of the Government of India purveying permission to the department concerned to accord extensions in the contractual employment of employees upto theirs attaining the age of superannuation subject to review of conduct and performance, obviously, benumbs the contention of the learned Assistant Solicitor General of India of the rigidity of a prescription in clause(d) of the tenure or duration of the contractual appointment of the petitioner when standing constituted in a contract of service executed by them with the petitioner herein, its force and vigour is unabrogable. On the contrary, with the existence of words “as amended from time to time” in succession to a reference of letter of 22nd September, 2003 in clause 2 of the contract of service executed inter se the petitioner herein and the authorised officer of the respondents herein rather tenably by a valid amendment thereto standing effectuated erases the rigidity of the prescription in clause 2 of the duration and tenure of the contractual appointment of the petitioner herein under the respondents being restricted upto a maximum of two years. The relevant portion of letter of 24th May, 2011, whereunder the prescription in clause (d) extracted hereinabove of the duration of the contractual appointment of the petitioners under the respondents being restricted upto two years stood amended or relaxed is extracted hereinafter:- “2. The Govt orders on the subject initially stipulated that the employment will be normally for a period of two years at the maximum. The Govt orders on the subject initially stipulated that the employment will be normally for a period of two years at the maximum. Subsequently owing to limited availability of candidates and consequent expenditure on advertisements etc., the Govt permitted extension of contractual employment upto age of superannuation subject to review of conduct and performance.” The effect thereof is with the letter of May, 2011 holding leverage in making a loud communication in the afore extracted portion thereof of a tenable amendment standing effectuated or carried out to the limit or duration of contractual appointment of the petitioner herein under the respondents prescribed under clause (d) of letter of 22nd September, 2003 whereunder in abrogation thereof by an amendment thereto standing effectuated in the manner aforesaid, the department concerned was permitted to extend the contractual appointment of the petitioner herein upto his attaining the age of superannuation naturally for reiteration nullifies the effect of clause (d) of letter of 22nd September, 2003. In sequel the main plank of the submission of the learned Assistant Solicitor General of India anchored upon clause (d) of letter of 22nd September, 2003, for restricting the contractual engagement of the petitioner herein under the respondents upto two years gets shaken. In nut shell, the respondents herein though adducing apposite material comprised in clause (d) which stands extracted hereinabove of the contractual appointment of the petitioner herein not surviving beyond two years yet with the respondents having, for reasons aforestated, effectuated a tenable amendment thereto comprised in a prescription in clause (2) of letter of 24th May, 2011, of the petitioner herein standing entitled for retention by the respondents as a contractual employee upto the age of superannuation subject to review of conduct and performance which however has not been portrayed by the respondents to be warranting reproach in any regard. Consequently, the mandate of clause-2 of the letter of 24th May, 2011 was enjoined to be adhered to by the respondents herein. Moreover, it dis-empowered them from (a) omitting to execute renewed successive contracts of service with the petitioner herein and (b) issue advertisements eliciting applications from eligible aspirants for their consideration for selection and appointment on contractual basis against post which stand manned by the petitioner herein under a validly executed contract of service inter se him and the authorised officer of the respondents herein. Obviously, the communication comprised in Annexure-R, the relevant portion whereof stands extracted hereinabove carries no force or tenacity to dilute the rigor of Clause-2 of the contract of service executed inter se the petitioner herein and the authorised officer of the respondents herein read with clause 2 of letter of 24th May, 2011 which letter/communication embeds therein a tenable amendment thereto standing embodied therein nor facilitates them to espouse for vindication besides for rendering defensible its act of not renewing the contractual appointment of the petitioner herein. Even otherwise given the manifestation in sub clause (f) to clause 4 of letter of 24th May, 2011 of the tenure or duration of the contractual appointments of paramedics and non paramedics being unrestricted and with the petitioner herein while standing appointed as a Laboratory Assistant hence falling in the category of paramedics stood foisted with a right in consonance with sub clause (f) to Clause 4 of letter of 24th May, 2011 to enjoin the respondents herein to successively after expiry of his initial period of contract of service with them, execute with him renewed successive contracts of service without any fetter qua any limit in its duration or tenure except up to his attaining the age of superannuation. More so when there is no material on record in portrayal of the performance or conduct of the petitioner while serving under the respondents being reproachable as a corollary with the retention of the petitioner in service under the respondents as a Laboratory Assistant not wanting in efficiency nor his conduct during his service under the respondents in the aforesaid capacity standing censured, interdicted besides proscribed the respondents to irrever the mandate of sub clause (f) to Clause 4 of letter of 24th May, 2011. 5. Preponderantly, the tenacity which the aforesaid communication may carry suffers emaciation in the face of the aforesaid communication borne in Annexure R standing amended under Annexure P-1 the relevant portion whereof is extracted hereinabove. In aftermath, the concert of the respondents herein to render defensible their act of not revering the mandate of Clause-2 of the contract of service executed by its authorised officer with the petitioner herein read with clause 2 of letter of 24th May, 2011 is wholly rudderless. 6. In aftermath, the concert of the respondents herein to render defensible their act of not revering the mandate of Clause-2 of the contract of service executed by its authorised officer with the petitioner herein read with clause 2 of letter of 24th May, 2011 is wholly rudderless. 6. Furthermore, the inhibition cast by Clause- 2 of the contract of service entered inter se the petitioner herein with the authorised officer of the respondents herein, the relevant portion whereof stand extracted hereinabove when for reasons aforestated stands unattracted qua the petitioner herein obviously generated in the petitioner herein legitimate expectations on whose spurring the respondents herein stood concomitantly obliged to renew the contractual appointment of the petitioner herein by theirs executing contracts of service with the petitioner herein as a corollary with the arousal of legitimate expectations in the petitioner herein qua his entitlement for renewal of his contract of service by the respondents herein especially when its arousal stands for reasons aforesaid anchored upon the uneroded mandate of Clause-2 of the contract of service executed inter se the petitioner herein and the authorised officer of the respondents herein read with Clause-2 of letter of May, 2011 besides with its enjoying legal efficacy naturally it also then rears or nurses the sprouting therefrom of the principle of promissory estoppel with a legal effect thereof of the respondents herein being interdicted to contravene in the manner they concert the mandate enshrined in Clause-2 of the contract of service entered by its authorised officer with the petitioner herein. 7. The Hon'ble Apex Court in a catena of decisions has deprecated the endeavours on the part of the employer to displace contractual appointees by substituting them with appointees alike to the petitioners herein. It appears that the diktat of the verdicts of the Hon'ble Apex Court frowning upon the employer resorting to displace or dislodge the services of contractual appointees by concerting to substitute or replace them by appointees whose terms of appointments bear an affinity or are alike to the appointments on a contractual basis of the petitioner herein stands openly irrevered by the respondents herein. The irreverence meted by the respondents herein to the principle aforesaid encapsulated in verdicts of the Hon'ble Apex Court reproaching the employer against its substituting contractual appointees by concerting their replacement by appointments on an alike basis, has led the respondents herein to make an indefensible endeavour to by issuing advertisements elicit applications from desirous aspirants for being considered for selection and appointment against post on a contractual basis which hitherto on an alike contractual basis was or stand manned by the petitioner herein. The said endeavour warrants its being baulked especially when its being permitted to be carried forward would overwhelm the experience gained by the petitioner herein on the post whereon he stood/stand appointed on a contractual basis defeating the salutary purpose of skilled man power manning the polyclinics established under ECHS for hence purveying optimum medical care to the stakeholders. 8. For the foregoing reasons the instant petition is allowed. In sequel, Annexure P-9 is quashed and set aside. The respondents herein are directed to within one month from today and successively thereafter execute with the petitioner herein fresh contract of service in consonance with Clause 2 of letter No. B/49760/AG/ECHS(R) of 24th May, 2011, unless the inhibitions cast therein against the renewal of his contract of service by the respondents stand attracted against the petitioner herein. All pending applications stand disposed of.