Writ petition dismissed. Contractual employee sought renewal of appointment and recovery of salary deductions. Court held no right to extend contract when fresh selection commenced and qualification standards amended.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941
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PETITIONER:
SHYMA.K.BABU, AGED 33 YEARS, 11-F, SOUPARNIKA POMANADE, POONTHI ROAD, ANAYARA P. O., THIRUVANANTHAPURAM - 695 029.
BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 REGIONAL CANCER CENTRE THIRUVANANTHAPURAM, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695 011, REPRESENTED BY ITS DIRECTOR
3 THE DIRECTOR REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695 011
R2-3 BY ADV. SRI.ATHUL SHAJI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.09.2019, THE COURT ON 11.10.2019 DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 11th day of October, 2019
“i) Declare that the action of the respondents in not renewing the contract of appointment of petitioner as Bio-Medical Engineer under the 2nd respondent inspite of Ext.P5 is arbitrary, illegal and unsustainable.
ii) Declare that the action of the respondents in effecting recovery from the salary of the petitioner as per Ext.P7 and P8 towards the amount paid to her during the period she availed maternity leave is arbitrary, illegal and unsustainable.
iii)Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the respondents 2 and 3 to renew the contract appointment of the petitioner as Bio-Medical Engineer as decided in Ext.P5 and permit her to rejoin duty and continue in service. iv) Direct the respondents to repay the amount recovered from the salary of the petitioner towards the amount paid to her during the period of maternity leave forthwith.”
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contention. It is stated that the availing of the maternity leave by the petitioner was penalized by the present Director and despite Ext.P5 decision, the 3rd respondent has decided not to renew the contract of the petitioner. Hence the writ petition.
and the petitioner had agreed that the contract can be terminated at any time without notice. It is stated that pursuant to Ext.P3, the period of contract had expired on 25.05.2019 and it was only after the completion of the period of contract that the petitioner had disengaged. It is stated that the qualifications of Engineer in the RCC is Graduation in the concerned subject except for Bio Medical Engineer where the Diploma is the required qualification. It is stated that the Executive Committee of the RCC in its meeting held on
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04.07.2019 has revised the qualification of Bio Medical Engineer also as Graduation in the Engineering and a further decision was taken to conduct open recruitment for the post of Bio Medical Engineer with the revised qualification. It is stated that the petitioner is being paid an amount of Rs.36,000/- as monthly remuneration while Graduate Engineers are being paid only Rs.30,000/- p.m. It is submitted that the petitioner was not entitled to maternity benefits since the appointment of the petitioner was purely contractual, and, therefore, the maternity benefits wrongly sanctioned to the petitioner had been recovered from her. It is stated that there is no connection between the grant of maternity leave to the petitioner and non extension of her period of contract, since the extension of contract was only for a period of one year, and, the decision recorded in Ext.P5 that the contract would be renewable for a further period of two years cannot stand in the way of the amendment of Rules and appointment of fresh hands in accordance with the amended Rules. It is further stated that after the renewal of the contract for one year from 26.05.2018, the petitioner was irregular in
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attending the work and she was also late in attending her duties.
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appreciation issued by the former Director on 14.08.2018 is produced as Ext.P11. It is further stated that the second respondent had published notification dated 26.07.2019 inviting applications for the selection of Bio Medical Engineer on contract basis and the said fact is not revealed in the counter affidavit filed on 29.07.2019.
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Ext.P5 minutes of the Executive Committee directed enhancement of remuneration as well as extension of contract for a further period of one year renewable for a further period of two more years. It is stated that consolidated pay was enhanced to Rs.36,000/- p.m. for one year and enhanced by 10% per annum thereafter. However, it is contended in the counter affidavit that the implementation of the decision of the Executive Committee held on 26.03.2018 was put on hold and the matter was placed before the Executive Committee held on 04.07.2019. It is stated that a decision had been taken by the Executive Committee held on 04.07.2019 to revise the qualification of Bio Medical Engineer as B.Tech/B.E. in Bio Medical Engineering with 60% marks. It is stated that the Executive Committee had also decided to conduct an open recruitment for the selection to the post of Bio Medical Engineer.
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appointment, I am of the definite view that the petitioner has no right to claim that her engagement should continue. It is true that Ext.P5 minutes of the Executive Committee held on 26.03.2018 had decided that the contract appointment of the petitioner would be renewed for a period of one year, further renewable for a period of two more years. It appears that the Executive Committee held on 04.07.2019 decided to review its decision and to amend the qualification of appointment of the Bio Medical Engineer. It is now not in dispute that the procedure for further selection has also been commenced by the respondents. The decision of the Executive Committee held on 04.07.2019 to amend the qualification and to conduct a fresh selection is not under challenge in this writ petition. Further reasons have been attributed to the decision of the Executive Committee. However the orders adverse to the interest of the petitioner with regard to the grant of maternity leave are also not under challenge.
In the above view of the matter, the only question that requires examination is whether the petitioner, who is a contract
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employee, has any right to claim that her contract is liable to be extended even in spite of the change in the qualification as implemented by the Executive Committee. The answer has to be in the negative. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. Writ Petition fails and the same is accordingly dismissed.
Sd/-
ANU SIVARAMAN
JUDGE
kmd
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APPENDIX
PETITIONER'S EXHIBITS:
| EXHIBIT P1 | COPY OF THE NOTIFICATION DATED 23.02.2011 FOR THE POST OF BIO-MEDICAL ENGINEER (TEMPORARY) PUBLISHED BY THE RCC. |
|---|---|
| EXHIBIT P2 | COPY OF THE APPOINTMENT ORDER VIDE NO.133/BIOMED/ADMN.II/2011/RCC DATED 23.05.2011 ISSUED IN FAVOUR OF THE PETITIONER |
| EXHIBIT P3 | COPY OF THE APPOINTMENT ORDER RCC/471/2016-ADMN4 DATED 22.05.2018 ISSUED IN FAVOUR OF THE PETITIONER |
| EXHIBIT P4 | COPY OF THE CERTIFICATE VIDE NO.RCC/471/2016-ADMN4 ISSUED BY THE 2ND RESPONDENT ISSUED IN FAVOUR OF THE PETITIONER |
| EXHIBIT P5 | COPY OF THE MINUTES OF THE MEETING OF THE EXECUTIVE COMMITTEE HELD ON 26.03.2018 |
| EXHIBIT P6 | COPY OF THE ORDER VIDE NO.4435/ADMN.IV/2015/RCC DATED 17.07.2017 ISSUED IN FAVOUR OF THE PETITIONER |
| EXHIBIT P7 | COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTHS OF NOVEMBER 2018 |
| EXHIBIT P8 | COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTHS OF MARCH 2019 |
| EXHIBIT P9 | COPY OF THE DIPLOMA CERTIFICATE DATED 18.09.2006 ISSUED TO THE PETITIONER. |
| EXHIBIT P10 | COPY OF THE ORDER NO.F16-19/75/R-2 DATED 26.05.1977 ISSUED BY THE MINISTRY OF EDUCATION AND SOCIAL WELFARE, NEW DELHI. |
| EXHIBIT P11 | COPY OF THE APPRECIATION LETTER DATED 14.8.2018 ISSUED BY THE FORMER DIRECTOR OF THE REGIONAL CANCER CENTER TO THE PETITIONER. |
| EXHIBIT P12 | COPY OF NOTIFICATION NO.RCC/471/2016-ADMN4 DATED 26.7.2019 ISSUED BY THE 3RD RESPONDENT. |
2 issues framed by the court
Whether a contractual employee has a right to claim extension of contract despite a change in qualification requirements decided by the Executive Committee.
Whether the non-renewal of the petitioner's contract can be challenged in a writ petition when the contract expressly allows termination without notice.
Shyma.K.Babu
State of Kerala
Regional Cancer Centre Thiruvananthapuram
The Director Regional Cancer Centre, Thiruvananthapuram
Anu Sivaraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
