Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1508 (ALL)

Qamer Jahan v. State of U. P.

2017-06-09

D.K.UPADHYAY, RAKESH SRIVASTAVA

body2017
JUDGMENT 1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Saurabh Lavania, learned counsel for respondent No. 2-National Rural Health Mission, Lucknow. 2. With the consent of learned counsel for the parties, we proceed to decide the matter at the admission stage itself. 3. The petitioner’s services were engaged on contractual basis as Ayush Medical Officer at Community Health Center, Zaidpur, District Barabanki by the Chief Medical Officer, Barabanki. The petitioner was initially appointed in the year 2008 on contract basis and depending on the terms of Project Implementation Plan of the National Health Mission, her term of contract has been extended from time to time. The contract of appointment was lastly extended till March, 2017. However, even after the period of contract came to an end on 31.03.2017, she has been allowed to continue to discharge her duties under the instructions of the Government of India in anticipation of her renewal, which is dependent on the new Project Implementation Plan to be in forced w.e.f. 01.04.2017. 4. In the meantime, while continuing on the said post, the Chief Medical Officer, Barabanki/Member Secretary, District Health Society, District Barabanki has passed the impugned order dated 29.05.2017 whereby the contract of appointment of the petitioner has been cancelled. 5. It has been submitted by learned counsel for the petitioner that in fact, the impugned order is stigmatic in nature and as such, the same could not have been resorted to without affording any opportunity of hearing to the petitioner in respect of the allegations, on the basis of which the impugned order has been passed. 6. On the other hand, learned counsel representing National Rural Health Mission has submitted that the contract has been terminated in terms of the provisions contained in Clauses 6, 6.4 and 20 of the said contract. He has further stated that there is no illegality so as to make the impugned order vulnerable for interference by this Court under Article 226 of the Constitution of India. He has further stated that there is no illegality so as to make the impugned order vulnerable for interference by this Court under Article 226 of the Constitution of India. It has also been stated by learned counsel for the petitioner that so far as the prayer No. 2 is concerned, since the petitioner’s services were engaged on contractual basis, as such in view of the law laid down by Hon’ble Supreme Court in the case of State Bank of India and others v. S.N. Goyal, reported in (2008) 2 SCC (L&S) 678, she is not entitled to seek any relief regarding her continuance on the post even if the impugned order is held to be bad. 7. Admittedly, the appointment of the petitioner was made on contractual basis. Clause 6.4 of the said contract provides that in case the appointee is found to be indisciplined or indulging in any corrupt practice/crime or he is found to be lacking in competence and does not maintain punctuality, his services are liable to be terminated before expiry of the period of contract with immediate effect. Clause 20 of the said contract provides that it will be lawful for the appointing authority to terminate the services of the appointee on administrative grounds (in case of any complaint or bribery etc.) without giving any notice. 8. It is true that contract of appointment of the petitioner gives ample powers to the appointing authority to terminate the contract of appointment without any notice. However, since the National Health Mission is a government society and undoubtedly is a State within the meaning of Article 12 of the Constitution of India, hence in all its actions, it has to necessarily conform to the constitutional provisions including the provisions contained in Article 14 of the Constitution of India which mandates non arbitrariness in the actions of the State. 9. From a perusal of the impugned order, it is clear that certain allegations have been levelled against the petitioner, on the basis of which the impugned order has been passed. The allegations, as recited in the impugned order, are based on some inquiry conducted by the Additional District Magistrate, Barabanki, report of which was submitted to the District Magistrate on 27.04.2017. The allegations, as recited in the impugned order, are based on some inquiry conducted by the Additional District Magistrate, Barabanki, report of which was submitted to the District Magistrate on 27.04.2017. The impugned order further recites that in the inquiry, it has been found that by her conduct and way of her functioning neither the patients nor the other doctors and paramedical staff are satisfied. The impugned order further recites that it appears that the petitioner does not have knowledge of her work which results in depriving the patients of appropriate medication. The impugned order even goes on to say that the petitioner is responsible for persuading the patients coming to hospital to get their medication at private hospital, namely, Farahan Hospital. The impugned order further states that there is no requirement of giving any notice before terminating the contract of appointment for the reason that the petitioner has not maintained punctuality and has indulged in indiscipline and lacks the competence. 10. The contents of the impugned order clearly indicate that the impugned order is not an order terminating the contract of appointment simpliciter. It is an order which is based on certain findings recorded by the Joint Committee/Additional District Magistrate, Barabanki. The inquiry indicts the petitioner of not only lapses but certain serious allegations, charges and misconduct. 11. In such a situation, even though the protection of Article 311 of the Constitution of India is not available to the petitioner, however, the District Health Society/National Health Mission, being a Government Agency and a State within the meaning of Article 12 of the Constitution of India, is expected to conform to Article 14 of the Constitution of India. In a case where contract of appointment is being terminated on the ground of misconduct and allegations, it was incumbent upon the appointing authority to have afforded opportunity of hearing to the petitioner before passing the impugned order. It is also relevant to observe at this juncture that the Additional District Magistrate while conducting the inquiry had also not associated the petitioner with the said inquiry. Thus, the impugned order cannot stand the test of reasonableness as also is suffering from the vice of non observance of the principles of natural justice. The impugned order, thus, cannot be permitted to be sustained. 12. Thus, the impugned order cannot stand the test of reasonableness as also is suffering from the vice of non observance of the principles of natural justice. The impugned order, thus, cannot be permitted to be sustained. 12. In these circumstances, the impugned order dated 29.05.2017 passed by the Member Secretary, District Health Society, District Barabanki, as is contained in annexure No. 1 to the writ petition, is hereby quashed. 13. So far as the relief being prayed for by the petitioner in respect of her continuance on the post in question is concerned, we are clearly of the view that she is not entitled to seek such relief in view of the law laid down by Hon’ble Supreme Court in the case of State Bank of India and others (supra). Para 17 of the said judgment is extracted below: - “17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well-recognized exceptions to this rule are: (i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309); (ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief-damages or reinstatement with consequential reliefs- is whether the employment is governed purely by contract or by a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief-damages or reinstatement with consequential reliefs- is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt v. University of Delhi AIR 1958 SC 1050 ; Executive Committee of UP State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi 1970 (2) SCR 250 ; Sirsi Municipality v. Cecelia Kom Francies Tellis 1973 (3) SCR 348 ; Executive Committee of Vaish Degree College v. Lakshmi Narain 1976 (2) SCR 1006 ; Smt. J. Tiwari v. Smt. Jawal Devi Vidya Mandir AIR 1981 SC 122 ; and Dipak Kumar Biswas v. Director of Public Instruction.” 14. For the reasons disclosed above, we are clearly of the view that the petitioner is not entitled to seek the relief for her continuance. Accordingly, the said prayer is rejected. 15. At this juncture, learned counsel for the petitioner has stated that depending on the terms of new or fresh Project Implementation Plan to be issued by the Central Government, engagement of the doctors and renewal of their term of appointment is made depending on performance appraisal and hence, direction may be issued that as and when the renewal is considered under new or fresh Project Implementation Plan, the petitioner’s case may also be considered. 16. Since we have already quashed the order dated 27.05.2017, we do not find any reason as to why the respondents shall not consider the petitioner’s case for renewal of her term as Ayush Medical Officer on contractual basis under fresh Project Implementation Plan to be issued by the Government of India/National Health Mission. 17. With the aforesaid directions, the petition stands partly allowed.