DIRECTOR, REGIONAL INSTITUTE OF PARA MEDICAL AND NURSING SCIENCE, AIZAWL, MIZORAM v. RUBY ZOHMINGLIANI
2018-06-07
NELSON SAILO, SONGKHUPCHUNG SERTO
body2018
DigiLaw.ai
JUDGMENT & ORDER : N. SAILO, J. 1. Heard Mr. B. Lalramenga, the learned counsel for the writ appellant as well as Mr. Lalremtluanga, the learned counsel for the respondent No. 1. 2. This writ appeal is directed against the Judgment and Order dated 10.04.2015 passed by the learned Single Judge in WP (C) No. 153/2014 (Smt. Ruby Zohmingliani & 2 Ors). 3. Brief facts of the case may be noticed at the outset. 4. The respondent No. 1 was appointed as a Demonstrator on contract basis vide Order dated 28.10.2002 for a period of 6 (six) months initially with a remuneration of Rs.6000/- per month. The appointment order was followed by signing of the Deed of Agreement between the respondent No. 1 and the writ appellant. The writ appellant is the Director of Regional Institute of Para Medical & Nursing Sciences, Aizawl (RIPANS) . The respondent No. 1 and her four other colleagues on 28.02.2014 submitted a representation to the Joint Secretary, Ministry of Health & Family Welfare, Government of India through the Director of RIPANS praying for considering their regularization in service. The appellant thereafter vide communication dated 04.04.2014 sought for an explanation from the respondent No. 1 asking her to explain as to how an advance copy of the representation could have reached the Joint Secretary, Ministry of Health & Family Welfare, North East Region even before any comments were made by the Director of RIPANS. Therefore, the same was in clear violation of the CCS (Conduct) Rules, 1964 and she should submit her explanation on or before 11.04.2014. The respondent No. 1 on 10.04.2014 submitted her explanation to the appellant explaining that she had rendered more than 11 years of service under RIPANS on contract basis hoping to get regularized in service but as her regularization was not forth coming, she submitted the representation to the Joint Secretary, Ministry of Health & Family Welfare, Government of India through the Director of RIPANS. By doing so, she had not violated any provisions of CCS (Conduct) Rules and there was no bar in giving an advance copy to the officials concerned. However, not satisfied with the explanation, the appellant again called for an explanation vide communication dated 06.05.2014 by quoting paragraph No. 4 of the Office Memorandum dated 01.11.1999 issued by the Department of Personnel & Training, Government of India.
However, not satisfied with the explanation, the appellant again called for an explanation vide communication dated 06.05.2014 by quoting paragraph No. 4 of the Office Memorandum dated 01.11.1999 issued by the Department of Personnel & Training, Government of India. It was further stated that the respondent No. 1 was only appointed on contract basis and the same did not bestow her any right to claim for regular appointment. Her contract services would come to an end if further extension was not given. Therefore, as the explanation tendered by the respondent No. 1 could not be accepted, another chance was given to her till 16.05.2014 to submit an explanation in view of the instructions containing in the Office Memorandum dated 01.11.1999. The respondent No. 1 thereafter submitted her explanation vide her communication dated 15.05.2014, wherein she contended that she being a contract employee, the penal provision of the CCS (Conduct) Rules, 1964 would not apply to her. Thereafter, the appellant vide communication dated 27.06.2014 made the impugned communication to the respondent No. 1 informing her that her contractual engagement in the Institution was not extended w.e.f. 01.07.2014. Aggrieved, the respondent No. 1 initiated WP (C) No. 153/2014. 5. Against the writ petition, though opportunity was granted to the respondents therein to file their affidavit-in-opposition, no affidavit was filed and therefore, the learned Single Judge proceeded to dispose of the writ petition vide its Judgment and Order dated 10.04.2015, wherein the impugned communication made by the writ appellant dated 27.06.2014 was interfered with and direction was given to issue appropriate order appointing the writ petitioner as Demonstrator on contractual engagement till regular appointment was made as per the Rules and Regulation within a time frame. 6. Appearing for the writ appellant, Mr. B. Lalramenga, the learned counsel submits that the respondent No. 1 was only a contract employee and the appellant cannot claim regularization as a matter of right. In fact, there is no scheme for regularization of service of the employees of RIPANS. He submits that the conduct of the respondent No. 1 in filing the representation directly to the Joint Secretary, Ministry of Health & Family Welfare, Government of India cannot be accepted inasmuch as the CCS (Conduct) Rules, 1964 clearly prohibits making such representation directly to the higher authorities, bypassing the controlling authority i.e., the Director, RIPANS in the instant case. 7. Mr.
7. Mr. B. Lalramenga further submits that since the respondent No. 1 was only a contract employee, her service would stand terminated on expiry of the contract period unless there was further extension of the contract employment. Therefore, there was nothing wrong with the communication made by the appellant to the respondent No. 1 on 27.06.2014. He further submits that the learned Single Judge in interfering with the action of the appellant could not have granted relief beyond what was prayed for in the pleadings of the respondent No. 1 in her writ petition. The learned Single Judge, therefore, erred in giving a direction that the respondent No. 1 should be appointed as Demonstrator on contractual engagement till regular appointment was made. In support of his submission, the learned counsel for the appellant relies upon the decisions of the Honble Apex Court as follows:- (i) Fertilizer Corporation of India Ltd and Another vs. Sarat Chandra Rath and Others, (1996) 10 SCC 331 . (ii) Bharat Amratlal Kothari And Another vs. Dosukhan Samadkhan Sindhi and Others, (2010) 1 SCC 234 . 8. Appearing for the respondent No. 1 (the writ petitioner) , Mr. Lalremtluanga, the learned counsel submits that the respondent No. 1 no doubt was only a contractual employee, but nevertheless, such employment is governed by the Rules and Regulation of RIPANS. By referring to Rule 6.6 of the Bye-laws of RIPANS, he submits that the Director of RIPANS with the approval of the Council would be required to frame service rules which in fact would facilitate the regularization or give an opportunity to the employees serving a chance for regular employment in RIPANS. However, as no steps were taken in this regard, the respondent No. 1 along with four other employees submitted representation before the Joint Secretary, Ministry of Health & Family Welfare, Government of India on 28.02.2014. 9. By referring to the said communication, the learned counsel submits that the representation was addressed to the addressee through proper channel i.e., the Director of RIPANS. Only an advance copy was in fact marked to the Joint Secretary, Ministry of Health & Family Welfare, Government of India, North East Division, as an advanced intimation for facilitating the consideration of the representation. 10.
Only an advance copy was in fact marked to the Joint Secretary, Ministry of Health & Family Welfare, Government of India, North East Division, as an advanced intimation for facilitating the consideration of the representation. 10. The learned counsel for the respondent No. 1 further refers to the Office Memorandum dated 01.11.1999 issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training to contend that representation made by a Government servant to the higher authorities concerned would invite a serious view and may even invite appropriate disciplinary action only when the immediate Controlling Authority has been bypassed. He submits that in the instant case, the respondent No. 1 submitted her representation through proper channel i.e., through the Director of RIPANS, who is the writ appellant and this fact has also been accepted by the Director of RIPANS as can be seen from the communication dated 04.04.2014, wherein it is indicated that the respondent No. 1 submitted her representation through proper channel. He, therefore, submits that the respondent No. 1 has not violated any standing instructions with regard to submission of representations. 11. Mr. Lalremtluanga further submits that while the engagement of the respondent No. 1 was discontinued w.e.f. 01.07.2014, other similarly situated employees of RIPANS were continued with their contractual service. In fact, after the discontinuance of the contractual service of the respondent No. 1, many other employees have been engaged by the authority concerned. Therefore, the same only goes to show that the decision taken by the Director of RIPANS is most biased, arbitrary and discriminatory. He, therefore, submits that the learned Single Judge in passing the Judgment & Order dated 10.04.2015 rightly directed the authority concerned for engaging the respondent No. 1 as Demonstrator. 12. We have heard the submissions advanced by the learned counsels for the rival parties and have perused the materials available on record including the decisions relied upon by the learned counsel for the writ appellant. 13. The reason for discontinuance of the contractual engagement of the respondent No. 1 w.e.f. 01.07.2014 can only be understood to be an outcome of the explanation that was asked from the respondent No. 1 through communications dated 4. 04.2014 and 06.05.2014, inasmuch as the continuance of similar other engaged employees under RIPANS despite the discontinuance of the respondent No. 1 has not been disputed.
04.2014 and 06.05.2014, inasmuch as the continuance of similar other engaged employees under RIPANS despite the discontinuance of the respondent No. 1 has not been disputed. Further, the engagement of other new Demonstrators after discontinuing with the contractual engagement of the respondent No. 1 w.e.f. 1. 07.2014 as indicated by the Writ Court in the judgment impugned is also an admitted position. Therefore, what can be noticed is that though the contractual employment of the respondent No. 1 was discontinued, the services of Demonstrators is indeed required and as such, as many as 15 new Demonstrators were appointed after the discontinuance of the respondent No. 1. 14. A perusal of the representation dated 28.02.2014 also would reveal that the same was addressed to the Joint Secretary, Ministry of Health & Family Welfare, Government of India through the Director of RIPANS with an advance copy marked to the Joint Secretary, Ministry of Health & Family Welfare, Government of India, North East Division, besides others. The same in our considered view and as observed by the learned Single Judge can in no way amount to violation of the CCS (Conduct) Rules, 1964, as it was routed through proper channel. As noticed earlier, the writ appellant itself had observed in the communication dated 04.04.2014 that the representation was through proper channel. 15. Adverting to the decisions relied upon by the learned counsel for the writ appellant, the Honble Apex Court in Sarat Chandra Rath and Others (Supra) and Bharat Amratlal Kothari And Another (Supra) , no doubt held that a Writ Court would not be justified in granting reliefs which in fact was not pleaded by the petitioner in the writ petition. But in the present case, the learned Single Judge by directing the appointment of the petitioner as Demonstrator on contractual engagement till regular appointment is made as per Rules and Regulation cannot be construed as grant of relief beyond pleadings. As contended by the learned counsel for the writ appellant, there is no scheme for regularization of contract employees under RIPANS and therefore, implying that a direction for regularization of the respondent No. 1 has been given would only amount to misconstruing the judgment of the learned Single Judge. As can be seen, contractual engagement has been directed till regular appointment is made and that too, as per the Rules and Regulation.
As can be seen, contractual engagement has been directed till regular appointment is made and that too, as per the Rules and Regulation. Admittedly, the RIPANS has not come up with any Rules and Regulation in so far as the service conditions of its employees concerned and therefore, we do not see as to how the said direction can be implied as a direction for regularization of respondent No. 1. 16. In that view of the matter, we find no infirmity in the Judgment and Order dated 10.04.2015 rendered by the learned Single Judge and therefore, dismiss the writ appeal. 17. Interim order passed on 12.06.2015 also stands vacated.