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2016 DIGILAW 625 (GAU)

Md. Saleh Ahmed v. State of Assam

2016-07-14

MANOJIT BHUYAN

body2016
JUDGMENT : Heard Mr. G. Uddin, learned counsel for the petitioner as well as Mr. P. Hazarika, learned counsel representing all the respondents. 2. Challenge is made to the order dated 23.12.2011 (Annexure-9) issued by the Mission Director, NRHM, Assam rejecting the representation and holding that the petitioner is not fit to continue in service under the National Rural Health Mission. This order was passed pursuant to directions of this Court in Writ Appeal No.77/2010, whereby the respondent authority was directed to record a decision on the earlier order of termination dated 11.12.2009 after affording all reasonable opportunities of hearing to the petitioner. 3. Short facts are that the petitioner was appointed as Block Programme Manager under the National Rural Health Mission (NRHM) by order dated 29.05.2007. At the relevant time, the petitioner was posted at Kachuadam Primary Health Centre in the District of Karimganj. In the course of employment, the petitioner had successfully undergone Training-cum-Oriental Programme as well as State level training on Routine Immunization. However, by order dated 11.12.2009, the petitioner was informed that his services will not be renewed. Aggrieved, the petitioner had approached this Court in WP(C) No.5957/2009 and the same having been dismissed by order dated 11.03.2010, preferred appeal, being Writ Appeal No.77/2010. Judgment in the Writ Appeal was rendered on 01.09.2011 and this Court while appreciating the facts in issue, set aside the order of termination primarily on the ground of lack of fairness in action on the part of the State respondents. A direction was made allowing the petitioner to represent against the ground on which the impugned order of termination had been issued with further direction to the respondent authorities to afford all reasonable opportunities to the petitioner and thereafter to record a decision on the issue. Two months’ time was granted to the respondent authorities to complete the exercise. 4. The petitioner made a representation before the Mission Director, NHM on 25.11.2011 answering to each of the four grounds indicated in the earlier order of termination dated 11.12.2009. Point-wise clarification was made justifying his good performance in the concerned Primary Health Centre as well as making mention of the evaluation report conducted by a team of doctors of the Medical Colleges of Assam under the supervision of Dr. Mousumi Biswas. Point-wise clarification was made justifying his good performance in the concerned Primary Health Centre as well as making mention of the evaluation report conducted by a team of doctors of the Medical Colleges of Assam under the supervision of Dr. Mousumi Biswas. In the said representation, the petitioner, inter alia, stated that it was on account of his endeavour that performance at Kachuadam Primary Health Centre was adjudged as the best and that he had brought about 17 villages under the Routine Immunization plan. Reference was also made to the report of the Performance Appraisal Committee, which had applauded the performance of the petitioner and which the respondents in their affidavit in the earlier round of litigation had made mention of it and had also admitted that while issuing termination order dated 11.12.2009, such report of the S.D.M. & H.O., Kachuadam PHC was not taken into consideration. In all, the petitioner had made an effective representation for consideration of his case by the Mission Director, NHM. 5. Pursuant to the order passed in the Writ Appeal and representation submitted by the petitioner, the petitioner was heard in person by the Mission Director, NHM and eventually the order dated 23.12.2011 came to be passed, which is the subject matter of challenge in the present writ application. The said order dated 23.12.2011, which gains significance for determination of this case, is reproduced hereunder: “OFFICE OF THE MISSION DIRECTOR NATIONAL RURAL HEALTH MISSION, ASSAM House No.16, Jana Path, Opp. Kendriya Vidyalaya Khanapara, Guwahati Ph. No.0361 – 2363061 :: Fax No.0361 – 2363058 Website: www.nrhmassam.in , E-mail ID: misnrhm.assam@gmail.com No. NRHM/HRD/Court Case/08/09-10/24373 Date: 23/12/2011 ORDER Seen and perused the order of Hon’ble Gauhati High Court dated 01.09.2011 in the case no.WA(C) No:77/2010 between Md. Saleh Ahmed, S/O Lt. Mahmud Ali, Vill. & P.O. Kurikhala, District Karimganj, Assam vs State of Assam & others. In the order, the Hon’ble Gauhati High Court has directed the respondent authorities to offer all reasonable opportunities to the appellant to represent against the ground on which the order of termination had been issued and thereafter recorded decision on this issue. In addition to that the Hon’ble Court has directed to complete the process within a period of 2 months from the date of receipt of the order. A certified copy of the order was received on 29.09.2011 through an application of the appellant Md. Saleh Ahmed. In addition to that the Hon’ble Court has directed to complete the process within a period of 2 months from the date of receipt of the order. A certified copy of the order was received on 29.09.2011 through an application of the appellant Md. Saleh Ahmed. As per the High Court Order, the appellant was given an opportunity to represent vide letter no: NRHM/HRD/Court Case/08/09-10/ dated 14.11.2011 against the grounds on which he was terminated. The letter was received by the appellant on 21.11.2011 and he submitted a representation on 25.11.2011. The appellant was asked to appear in person on 05.12.2011 and accordingly he appeared on 05.12.2011 at 1:30 PM. During his personal appearance certain questions were asked relevant to NRHM programme which he could not answer satisfactorily. While asking questions on HMIS, he called it as HIMS. He could not reply the question on second ANC, MCH, and additional format of HMIS disease surveillance. It proves that he does not have adequate knowledge on the subject. As such the findings of the BPMU appraisal committee in the appraisal held on 26.06.2009 appear to be correct. His termination based on that appraisal seems justified. Under the above circumstances it is felt from the representations as well as the statements made during the personal appearance of the appellant that he is not fit to continue working with NRHM. As such the prayer of the appellant is rejected. The issue is thus disposed off as above as per the directions of Hon’ble Gauhati High Court in the order dated 01.09.2011 in the case no: WA(C) No.77/2010. Mission Director, NRHM, Assam & Com. & Secy., H & FW Deptt., Govt. of Assam Memo No.NRHM/HRD/Court Case/08/09-10 24374-76 Date: 23.12.2011 Copy to: 1. The Registered Guwahati High Court with respect to case no: WA(C) No:77/2010. 2. Mr. Devajit Saikia, Standing Counsel, Health Department, Gauhati High Court. 3. Md. Saleh Ahmed, S/O. Lt. Mahmud Ali, Vill. & P.O. Kurikhala, District Karimganj, Assam. Mission Director, NRHM, Assam & Com. & Secy., H & FW Deptt., Govt. of Assam” 6. Mr. G. Uddin submits that the order dated 23.12.2011 is not in tandem with the directions issued by this Court. The said order do not discuss or decide upon the grounds taken in the representation dated 25.11.2011. & P.O. Kurikhala, District Karimganj, Assam. Mission Director, NRHM, Assam & Com. & Secy., H & FW Deptt., Govt. of Assam” 6. Mr. G. Uddin submits that the order dated 23.12.2011 is not in tandem with the directions issued by this Court. The said order do not discuss or decide upon the grounds taken in the representation dated 25.11.2011. The evaluation report of the team of doctors as well as the report of the S.D.M. & H.O., Kachuadam PHC find no mention. The same is only confined to certain questions put, which in the opinion of the Mission Director, the petitioner could not satisfactorily answer. A finding is also recorded, without any elaborate discussion, to the effect that the petitioner does not have adequate knowledge on the subject and, therefore, he is not fit to continue working under the NHM. The findings of the Performance Appraisal of the petitioner conducted on 26.06.2009 was affirmed whereby the petitioner’s performance was evaluated as below average, having been placed at Grade-E. 7. I have heard the learned counsel for the parties. The materials available on record are also perused. Admittedly, the earlier order of termination dated 11.12.2009 was set aside by this Court in Writ Appeal No.77/2010. The State respondents were directed to re-visit the issue by affording all reasonable opportunities of hearing to the petitioner. Liberty was also granted to the petitioner to make representation against the grounds on which the order of termination dated 11.12.2009 had been issued. A categorical direction was also made to the State respondents to record its decision on the issue. The grounds which the petitioner was required to explain was also noticed by this Court in the aforesaid Writ Appeal, in that, the Performance Appraisal of 26.06.2009 had indicated the following shortcomings on the part of the petitioner, which are- (i) Poor team spirit and tendency of insubordination; (ii) No lucid idea about HMIS and poor HMIS reporting; (iii) Lack of co-ordination with block level health functionaries; (iv) Involvement in corrupt practice (Third party report). 8. In the representation made by the petitioner, he had represented and demonstrated his stand against the aforesaid grounds. Point-wise explanations were made by making reference to various factors including the evaluation report of the team of doctors which had carried out a survey for the period from 05.08.2009 to 14.08.2009 in respect of Kachuadam PHC along with other PHCs. 8. In the representation made by the petitioner, he had represented and demonstrated his stand against the aforesaid grounds. Point-wise explanations were made by making reference to various factors including the evaluation report of the team of doctors which had carried out a survey for the period from 05.08.2009 to 14.08.2009 in respect of Kachuadam PHC along with other PHCs. A copy of the evaluation report, which is enclosed to the report, clearly shows that the percentage of immunization at Kachuadam PHC covering 12 months during the year 2009 was to the extent of 53%. In fact, the said report records highest performance at Kachuadam PHC. 9. A perusal of the order dated 23.12.2011 shows that the grounds urged by the petitioner and made explicit in his representation dated 25.11.2011, were not addressed to. The said order is a cryptic order confined to a decision based upon certain questions made to the petitioner. On such basis, a finding is recorded that the petitioner does not have adequate knowledge and he is not fit to continue working under NRHM. Above all, the said order dated 23.12.2011, is not in compliance of the directions issued by this Court in Writ Appeal No. 77/2010, whereby the petitioner was allowed to represent against the grounds on which the earlier order of termination dated 11.12.2009 had been issued and whereby the State respondents were asked to record a decision on the said issues. The order of 23.12.2011 makes no mention of the grounds urged or taken in the representation dated 25.11.2011. 10. For the reasons above, the order dated 23.12.2011 is not sustainable in law and is liable to be set aside, which is accordingly done. The State respondents shall now re-visit the issue and pass appropriate orders by taking into consideration each and every ground taken by the petitioner in his representation dated 25.11.2011 and while doing so, shall also afford opportunity of hearing to the petitioner before passing appropriate orders. The State respondents shall complete the exercise as indicated above within a period of 8(eight) weeks from today. Ordered accordingly. 11. The writ petition stands allowed to the extent indicated above. No cost.