Disposed

Sunil Kumar v. State and Ors.

Rajasthan HC2 May 2018CW/2393/2018

Case brief

AI extract

What is this about?

High Court in Jodhpur disposed of multiple writ petitions challenging termination of District Consultant and Lab Technicians under NPPCF. Court held that while basic qualifications mandate strict adherence, authorities must apply valid relaxation clauses. Orders terminating staff were modified to allow petitions to submit pleas for qualification relaxation; qualified staff were to be retained, and

What did the court decide?

Writ petitions disposed. Petitioners given 7 days to submit representations regarding qualification relaxation. If representations are made, termination stays for 30 days; otherwise orders come into e

Sunil Kumar Vs State and Ors. — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 1455 / 2018

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Kishori Lal Verma S/o Shri Hari Ram, Aged About 33 Years, R/o Village-Post Bharni, Tehsil Srimadhopur, District Sikar (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Dungarpur.

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----Respondents Connected With

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S.B. Civil Writ Petition No. 1355 / 2018 Dr. Manish Soni S/o Shri Leeladhar Soni, Aged About 33 Years, R/o Mandora Sadan, Mutho Ka Mohalla, Merta City, District- Nagaur (Raj.)

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Nagaur.

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----Respondents

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S.B. Civil Writ Petition No. 1356 / 2018 Dr. Salim Javed S/o Shri Islamuddin, Aged About 28 Years, R/o 4866, Ward No. 24, Jahajpur Road, Shahpura, District Bhilwara.

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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(2 of 20)

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[CW-1455/2018]

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Jaisalmer, DistrictJaisalmer.

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----Respondents

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S.B. Civil Writ Petition No. 1357 / 2018 Priya Kalra D/o Shri Ashok Kalra, Aged About 28 Years, R/o 129, Chitrakoot Colony, Hanumangarh Town, District Hanumangarh.

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----Petitioner Versus 1. State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical & Health Officer, Rajsamand.

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----Respondents

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S.B. Civil Writ Petition No. 1358 / 2018 Dilip Sanadhya S/o Shri Prem Shanker, Aged About 27 Years, R/o New Sanadhya Mohalla, Rajyawas, Tehsil and District Rajsamand (Raj.).

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----Petitioner Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical & Health Officer, Rajsamand.

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----Respondents

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S.B. Civil Writ Petition No. 1388 / 2018 Digamber Singh S/o Shri Doulee Ram, Aged About 29 Years, R/o Village-Post Bahatana, Tehsil Deeg, District Bharatpur (Raj.).

----Petitioner

(3 of 20)

[CW-1455/2018]

Versus

State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Sri Ganganagar

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----Respondents

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S.B. Civil Writ Petition No. 1389 / 2018 Mahendra Kumar Jaiswal S/o Shri Mohan Lal, Aged About 29 Years, R/o C-46, Sarojani Marg, C- Scheme, Jaipur (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Bikaner.

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----Respondents

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S.B. Civil Writ Petition No. 1456 / 2018 Dr. Sunil Kumar Bishnoi S/o Shri Mangilal Bishnoi, Aged About 34 Years, R/o 5 JKM, Post Bajuwala, Tehsil Raisinghnagar, District Sri Ganganagar (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Sri Ganganagar.

----Respondents

(4 of 20)

[CW-1455/2018]

S.B. Civil Writ Petition No. 1491 / 2018 Manish Kumar S/o Shri Jagdish Prasad, Aged About 28 Years, R/o Near NDB College Gate, Ward No. 30, Nohar, District Hanumangarh (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Churu.

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----Respondents

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S.B. Civil Writ Petition No. 1567 / 2018 Smt. Sapna Choudhary W/o Shri Rajesh Choudhary, Aged About 32 Years, R/o K. Vinayak Nagar, Bohra Ganeshji Road, Udaipur (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secreatary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Udaipur.

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----Respondents

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S.B. Civil Writ Petition No. 1860 / 2018 Satish Chand Gupta S/o Shri Hajari Lal Gupta, Aged About 40 Years, R/o Rajendra Nagar, District Jalor (Raj.).

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----Petitioner

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur.

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(5 of 20)

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The Director (PH), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical and Health Officer, Jalor.

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S.B. Civil Writ Petition No. 2393 / 2018 Sunil Kumar S/o Shri Kumbha Ram, Aged About 24 Years, R/o Village Bhagasara, Post Baiswa, Fatehpur, District Sikar.

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Versus 1. State of Rajasthan Through the Principal Secretary, Medical & Health Services, Government of Rajasthan, Secretariat, Jaipur. 2. The Director (PH), Medical & Health Services, Rajasthan, Jaipur.

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The Chief Medical and Health Officer, Udaipur.

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S.B. Civil Writ Petition No. 3671 / 2018 Mr. Fateh Kishan Sharma S/o Shri Mohan Kishan Sharma, Aged About 44 Years, R/o Pachetiya Hills, Fateh Pole, Near Mehrangarh Fort, District Jodhpur.

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Versus

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State of Rajasthan Through Its Principal Secretary, Department of Medical, Health and Family Welfare, Government of Rajasthan, Secretariat, Jaipur, Rajasthan.

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The Director (Public Health), Medical & Health Services, Rajasthan, Health Bhawan, Jaipur.

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The Chief Medical & Health Officer, Jodhpur.

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S.B. Civil Writ Petition No. 3992/2018

Krishna Pal

petitioner

(6 of 20)

[CW-1455/2018]

versus

State of Rajasthan & Ors.

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Respondents.

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S.B. Civil Writ Petition No. 4772/2018

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Rinku Meena

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Petitioner versus State of Rajasthan & Ors. Respondents. _____________________________________________________ For Petitioner(s) : Mr. Mahaveer Bishnoi

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Mr. Kuldeep Vaishnav

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For Respondent(s) : Mr. K L Thakur, AAG, with

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Mr. Rishabh Tayal

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Mr. K.L. Vishnoi

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 02/05/2018

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These matters pertain to common questions of fact and law and, therefore, the same are being decided by this common order. However, for brevity, the prayer clauses are being taken from the lead case being SBCWP No. 1355/2018 (Dr. Manish Soni Vs. State of Rajasthan & Ors) which read as under: -

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“(i) The impugned order dated 12.01.2018 (Annex. 17) may kindly be quashed and directed the respondents to continue the services of the petitioner on the post of District Level Consultant (Fluorosis) under the national Programme for Prevention and Control of Fluorosis (NPPCF) at Nagaur district. (ii) respondent No. 2 may kindly be also directed to make payment of due salary of the petitioner and (iii) respondent No. 2 may kindly be also

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directed to issue the certificate of experience to the petitioner for the period for which he is working under the programme of NPPCF as District level Consultant.

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Any other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

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Costs of the writ petition may kindly be awarded to the petitioner.”

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The petitioners are basically District Consultant Fluorosis and Lab Technicians Fluorosis under a common Scheme known as National Programme for Prevention and Control of Fluorosis (hereinafter referred to as the NPPCF). Under this programme, the Additional Director (R&H), Medical & Health Service, Rajasthan, Jaipur vide advertisement 10.01.2009 invited applications from individuals for job of District Consultant, Field Investigator and Laboratory Technicians. The petitioners were given appointment on being held qualified.

¶114

It is commonly pointed out by the learned counsel for the petitioners that the difficulty arose when the qualifications were amended for the NPPCF and the new qualification introduced in 2012, which reads as under:

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Govt. of Rajasthan

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Directorate of Medical & Health Services, Raj. Jaipur

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National Programme of Prevention and Control of Fluorosis

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Qualification for the post of Consultant, Field Investigator & Lab Technician

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Name of Post	Essential qualification	Desirable	Remuneration
District Level Consultant	(a) For Medical Person: Post Graduate Degree (MD) in community Medicine/Public Health/ Biochemistry/ Microbiology/ Pathology/ Community Resource or Management/Environm ental health or equivalent. (b) For Non medical Person: Doctorate Degree (PhD) Biochemistry/Nutrition/ Microbiology/ Molecular Biology/ Life Science/ Public Health/ Community Resource or equivalent.	At least 3 years experience after post graduate medical qualification / Doctorate qualification for non medical in research/ teaching/ laboratory services/ programme implementation etc.	35000/- (consolidated) per month
Field Investigator	10+2 with science at least 50% aggregate marks preference will		10,000/- (consolidated)

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(8 of 20)

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	be given to candidates with 50% and above marks.	per month
Lab Technician	As per State Government recruitment	10,000/- (consolidated) per month

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The change in qualification was also followed by the certain relaxations given by the respondents which include relaxations to BDS Decree, MBA & M.Sc.

¶124

Learned counsel for the petitioners have stated that many of the petitioners were directly brought under the purview of NPPCF and the placement agencies through which they were working were discontinued. The petitioners are all young persons who have served for more than 5 years with the respondents and have contributed to the NPPCF.

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Learned counsel for the petitioners have vehemently harped upon the requirement to have been heard before their services were terminated. It is an admitted position that in all these cases, the petitioners had been contracted to continue until 31.03.2018 and were to remain in service but for the termination orders passed against them.

¶126

Learned counsel for the petitioners have pointed out that while adjudicating the issue in question, this Court had passed the following order in the matter of the same petitioners and other similarly situated persons in SBCWP No. 5518/2017 decided on 11.12.2017. The relevant portion of the same reads as under:

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Learned counsel for the petitioners have pointed out that before passing such termination orders, not even a basic opportunity of hearing or a representation was called for from the petitioners who were carrying the NPPCF on their shoulders for a long time and putting their best services to achieve the necessary goals.

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Learned counsel for the petitioners have further pointed out that in case, an opportunity of hearing or any kind of representation is permitted, the petitioners could have convinced the respondents about their eligibility to continue and if such eligibility was still not found then of course the petitioners would have been terminated. Learned counsel for the petitioners have pointed out that it is not a case where a fresh recruitment was taking place and a qualification went bad but it is a case where the

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respondents have consciously made the selection from the open market and the selections are under a cloud because of certain amendments in the necessary qualifications made by the Union of India for the purpose of NPPCF but still all the petitioners who had rendered more than 5 years of service in continuing the programme were required to heard at-least.

¶132

Learned counsel for the petitioners have also individually pointed out the degrees of MBA, M.Sc., BDS and DMLT alongwith experience.

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Learned counsel for the respondents has further pointed out that the controversy has already been decided by a coordinate Bench of this Hon'ble Court at Jaipur Bench in S.B. Civil Writ Petition No.6924/2017; Dr. Rajni Godara Vs. State of Rajasthan & Ors. on 08.05.2017, which reads as under:

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"The petitioner by way of this writ petition seeks to assail the order by which her services have been dispensed with from the post of District Consultant (Fluorosis) vide order dated 3rd May, 2017.

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It is a case of the petitioner that she was appointed initially through placement agency as District Consultant under the National Programme for Prevention and Control of Flurosis(In short "NPPCF") and has also been working thereafter on the post upon having entered into agreement with the respondent from time to time. Last agreement entered into between the petitioner and the respondent was on 1st April, 2017 to be continued up to 31st March, 2018. It is a submission that the respondents have wrongfully dispensed with her services on the ground that she does not possess the minimum required qualifications for the post held by him of the District Consultant. It is her further case that petitioner's contract could not have been terminated in the midst as it was executed upto the period ending on 31st March, 2018.

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Counsel for the petitioner has taken this Court through initial qualification laid down for the post under the said scheme which reads as under:

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"Qualifications for the District Consultant and Laboratory Technician have been communicated vide letters No.G.20011/3/2011-Nut&IDD Cell dated 11th May, 2012, 17th September, 2012 and 15th July 2013.

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Overall, the qualifications are as below:

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District Consultant (Fluorsis)

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1. Essential Qualification

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(a) For Medical Person:Post Graduate Degree (MD) in Community Medicine/Public Health/ Biochemistry/ Microbiology/ Pathology/ Comm

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(10 of 20)

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[CW-1455/2018]

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unity Resource Management/ Environment Health or Equivalent.

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(b) For Non Medical Person: Doctorate Degree(PhD) in Biochemistry/Nutrition/Microbiology/Molecular Biology/Life Sciences/Public Health/Community Resource or equivalent.

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2. Desirable

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At least 3 years experience after Post Graduate medical qualification/Doctorate qualification for non medical in research/teaching/laboratory services/programme implementation etc.

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Note:In case of non-availability of medical person with MD Qualification or Non Medical person with PhD qualification, the essential qualification can be relaxed for medical person as MBBS/BDA or for Non Medical person as M.Sc in the subjects specified above. The desirable experience in such cases where relaxed qualifications are being considered would be six years in research/teaching/laboratory services/ programme implementation etc."

¶150

It is her case that at the time of her selection there was no candidate available possessing qualification of M.D. for Community Medicine/Public Health/Biochemistry/Microbiology /Pathology/Community Resource Management/Environment Health . On a specific query being asked from the learned counsel for the petitioner with regard to experience for the subject of Fluorosis, it is stated that there is no such mention in the petition nor he is able to satisfy this Court from the qualifications placed on record.

¶151

Learned counsel for the respondent who has entered as caveator informs that the officer who had made the selections is under a ACB Scanner and is absconding and the appointments made by him have been found to be irregular and illegal without conducting the selection as per the procedure prescribed under the Scheme.

¶152

It is a firm view of this Court that even for making contractual appointment, at least there has to be a minimum procedure for undertaking the process of selection and one may be offered appointment only upon having gone through such criteria/process of selection, on the contrary there is no documents in fact to show that there was no candidate available possessing the minimum required qualification and it is apparent that the selection made is a complete backdoor entry without following any basis/procedure provided under the law and in this fact situation thus no equity lies in favour of the petitioner. However, the petitioner would be at liberty to participate in any selection which the respondents may conduct for the said post in terms of the judgment passed by this Court. In the case of Surender Kumar Gurjar & Ors. Vs. State of Rajasthan & Ors." wherein directions have been

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issued to the fact as under:

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"(a) The State Government is restrained from appointing any persons on contract basis or otherwise allowing any person to work through placement agency on any government post or posts created under any particular scheme henceforth ;

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(b) The State Government is henceforth directed to make appointments only in accordance with the rules framed under proviso to Article 309 of the Constitution of India for the various services in the State or the rules framed for the various departments, Corporations under the State;

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(c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations. However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and choose method and subsequent litigation;

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(d) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key;

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(e) In view of the law laid down by the Apex Court in the case of State of Rajasthan vs. Mitendra Singh Rathore (SLP No.32671/2013 decided on 17.02.2017, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government. The bonus marks quantum should be on the basis of number of years of service already rendered by any contractual employee but the exact quantum may be decided by the Government while conducting selections for individual schemes/posts;

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(f) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity;

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(g) If any selections are found to be wrongful, accountability of the concerned Officials who have conducted selection must be necessarily fixed and action be taken under the relevant

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(12 of 20)

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provisions of law against them;

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(h) Considering that such exercise would take some time to be implemented, this Court grants three months time to the Government to make such provisions from the date of submission of the certified copy of this order;

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(i) All the persons presently working in the State Government through placement agency will now henceforth be treated as working directly on contractual basis till the aforesaid selection process is completed;

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(j) Services of the persons however, shall be continued only if the Government takes a decision to continue them otherwise their services shall be dispensed with forthwith and new selections shall only be conducted after issuing advertisements as directed herein above.”

¶169

However, considering the nature of the post for which specific qualification is required to be fulfilled, I do not think it appropriate to continue the petitioner on the said post and direct the respondent to conduct the selection afresh as soon as possible within a period of one month henceforth.

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Accordingly, the writ petition is dismissed.

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No costs.”

¶172

Learned counsel for the respondents has also pointed out that the Division Bench of this Hon'ble Court at Jaipur Bench has also upheld the termination in another set of litigation in D.B. Civil Special Appeal (Writ) No.1162/2017; Kamal Meena Vs. State of Rajasthan & Ors. decided on 12.09.2017, which reads as under:

¶173

"The instant special appeal is directed against order of the ld. Single Judge dt. 07.07.2017.

¶174

The appellant indisputably is appointed as Lab. Technician (Fluorosis) under the NPPCF Scheme and indisputably he was not eligible to be appointed in terms of the conditions of eligibility which are very much indicated in the letter of his termination impugned dt. 03.05.2017 (Annex.4) which read ad infra:

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“1. The essential qualification prescribe by the Government of India for the post of Laboratory Technician (Fluorosis) is as follows:

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“Qualification as per State Government Recruitment.”

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As per State Government recruitment rules, the qualification for the post of Laboratory Technician is as follows:

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a. Senior Secondary in Science with Biology or Mathematics or equivalent qualification from recognized board.

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b. Diploma in Laboratory Technician from the recognized institute by State Government/Central Government/Rajasthan Para Medical Council.

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c. Registration in Rajasthan Para Medical Council (Essential).

¶183

While Mr. Kamal Meena has done 12^th Arts & DMLT, he does not have Senior Secondary in Science with Biology or Mathematics or equivalent and does not have Registration in Rajasthan Para Medical Council.”

¶184

Indisputably, the appellant was not holding the qualifying examination of Senior Secondary in Science with Biology or Mathematics which is certainly a pre-condition for appointment. In absence of holding minimum qualification certainly his appointment apparent on the face of it was bad in law and this was taken note of by the authority while terminating his contract of service under order impugned dt. 03.05.2017 and that was the reason assigned by the ld. Single Judge also and there appears no error in the decision making process adopted by the respondent while passing the order of termination dated 03.05.2017.

¶185

After we have heard counsel for the appellant, find no error in the order impugned, which may call for our interference.

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Consequently, the instant appeal fails and is hereby dismissed.”

¶187

Learned counsel for the respondent has vehemently stated that once the controversy has been decided by the Division Bench of this Hon'ble Court at Jaipur Bench then it was not open for the petitioners to get the issue adjudicated as the adjudication has already taken place.

¶188

Learned counsel for the respondents has also pointed out that the Hon'ble Court has categorically held that the minimum qualification was apparently required and thus, no Court could interfere where the candidate was not possessing the minimum qualification itself. It is also stated that any deviation from the Division Bench judgment and Single Bench judgment is not called for in the present case as the same pertains to the same NPPCF and also deals with the post of District Consultant/Field Investigator/Lab Technician. The grounds of contract and the grounds of termination are common as single reason of termination is lack of qualification.

¶189

Learned counsel for the respondents has further pointed out that the appointments are under ACB scanner and

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since the petitioners are not possessing the necessary qualification as required in the NPPCF therefore, it will not be appropriate to interfere in any of the termination orders.

¶193

Learned counsel for the petitioners in their rejoinder have stated that the opportunity of hearing was the minimum requirement that ought to have been provided by the respondents before making any order of termination. Learned counsel for the petitioners have also pointed out that in the ambit of qualification laid down for the NPPCF, if relaxations are implemented, they are likely to be continued as qualified candidates.

¶194

After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that we are bound by the precedent law cited by the learned counsel for the respondents in the matter of Dr. Rajni Godara (supra) and Kamal Meena (supra) and of course the basic qualification as to meet the criteria stipulated for the appointment and in the absence of holding the minimum qualification, the appointment on the face of it is bad in law. However, after perusing the record, it seems that some of the petitioners were having the necessary qualifications and the experience as per the relaxation provided by Union of India, which reads as under:

¶195

“Undersigned is directed to refer to D.O. No. of even dated 17^th September, 2012 and 11^th May, 2012 regarding qualifications of a District Consultant and state that in case of non-availability of medical person with MD Qualification or Non Medical person with Ph.D. qualification, the essential qualification can be relaxed for medical person as MBBS/BDS degree or for non-Medical person as M.Sc. Degree in the subjects specified in the letter dated 11^th may 2012.

¶196

The desirable experience in such cases where relaxed qualifications are being considered would be 6 years in research/ teaching/ laboratory service/ programme implementation etc.”

¶197

Apparently, the relaxation has been given to the persons holding the degree of MBBS, BDS, M.Sc. & MBA and the experience. However, at this stage, it is not the domain of this Court to make any examination about the qualification required for such appointments and thus, no interference is called for and the writ petitions are closed only with the same observations that the persons who are not holding the qualifications shall not be entitled to continue with the appointment strictly adhering to the

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precedent law laid down in the matter of Dr.Rajni Godara (supra) . However, in the interest of justice, the petitioners who have objective reasons that they are qualified and have requisite experience and will not fall under the criteria of termination on account of not fulfilling the conditions of minimum qualification shall give representations to the respondents who shall consider the same within a period of 30 days from today. The representations to be considered shall be submitted by the petitioners if they desire so within a period of 7 days from today. In case, the representations are not submitted within a period of 7 days, the termination orders shall come into effect and for the petitioners whose representations are made, the termination orders shall not come into effect until next 30 days. It is needless to say that the respondents shall have complete liberty to exercise their powers to terminate the services of the persons who are not qualified in accordance with stipulations and requirements of NPPCF.

¶201

Learned counsel for the petitioners have pointed out that after adjudicating the controversy in question as above, this Court had categorically directed the respondents to consider extension of the relaxation by the respondents for the post in question vide various orders. The Court considered whether the petitioners are qualified as per the relaxation provided by the respondents.

¶202

Learned counsel for the petitioners have pointed out that the representation was submitted in light of the above quoted judgment passed by this Court on 11.12.2017 and the order passed by the respondents on 12.1.2018. The relevant portion of the said order dated 12.1.2018 reads as follows:

¶203

The essential qualification prescribed by the Government of India for the post of District Consultant (Fluorosis) is as follows:

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a. For Medical person: Post Graduate Degree (MD ) in Community Medicine/Public Health/Biochemistry? Microbiology/Pathology/Community Resources Management/Environmental Health or equivalent. Or

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b. For Non Medical Person: Decorate Decree (PhD) in Biochemistry Nutrition/Microbiology?moledular Biology/Life Sciences/Public Health/ Community Resources or equivalent.

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While you have done only BDS and not done either M.D. or Ph.D., thus you are ineligible for the post of District Consultant (Fluorosis) under NPPCF.

¶209

Therefore department has decided to terminate your illegitimate service contract. Hence, your contractual service is terminated forthwith. You are relieved from the contractual post of District Consultant (Fluorosis) under NPPCF with effect from 12.01.2018 (After Noon).

¶210

The respondents have not applied their mind before passing the said orders. The Relaxation clause is reproduced again as follows:

¶211

“Undersigned is directed to refer to D.O. No. of even dated 17^th September, 2012 and 11^th May, 2012 regarding qualifications of a District Consultant and state that in case of non-availability of medical person with MD Qualification or Non Medical person with Ph.D. qualification, the essential qualification can be relaxed for medical person as MBBS/BDS degree or for non- Medical person as M.Sc. Degree in the subjects specified in the letter dated 11^th may 2012.

¶212

The desirable experience in such cases where relaxed qualifications are being considered would be 6 years in research/ teaching/ laboratory service/ pro gramme implementation etc.”

¶213

On an earlier occasion, this Court had found that the authority concerned had made the necessary relaxation applicable in respect of the post in question, in case of nonavailability of the qualified persons, and as per the said relaxation, the petitioners being qualified were entitled to be continued as qualified candidates. Learned counsel for the petitioners have further pointed out that the respondents could have only discontinued their services, if the qualified persons without relaxation were available for recruitment on contractual basis.

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Learned counsel for the respondents submitted that the essential qualification for the post of District Consultant (Fluorosis) is only M.D. or Ph.D. as per the guideline of the programme and after complete advertisement and wide publicity by the department if the candidates of M.D. & Ph.D. qualifications are not available than only qualification can be relaxed after taking due approval of the Executive Committee of the National Health Mission, which is the competent body to do the same. After taking due approval for the qualification and experience from the Executive Committee of National Health Mission, the said post has to be re-advertized widely with the relaxed qualification.

¶217

Learned counsel for the respondents further stated -:

¶218

That in the case of the petitioner his selection was prefixed, therefore no efforts had been made by the department to get the M.D./Ph.D. candidates no approval from the Executive Committee of National Health Mission had been obtained for relaxation of the qualification and experience, the present petitioner had been chosen with the complete connivance of Dr. B.R. Meena ( the then SNO, NPPCF), Thus the petitioner is unqualified and ineligible for the post.

¶219

Learned counsel for the respondents further submitted that it is trite position that for making contractual appointment at least there has to be a minimum procedure for undertaking the process of selection. Whereas the present selection was undertaken for giving

¶220

(18 of 20)

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place to the back door entrants who even did not possess the necessary qualification. It is established position of law that the qualification required for a post has to be seen on the last date of application invited for the post in question, but in the present case neither the petitioner held necessary qualification on the last date of submission of the application nor even on the date of giving such appointment. The petitioner was wrongly taken on direct contract basis from the placement agency without following due procedure and even without verification of the eligibility, qualification and experience. The petitioner was called for proving the qualification

¶223

and eligibility but the petitioner failed to prove the same and this clearly shows that the petitioner did not hold eligibility and qualification for the post in question. That apart he was also instrumental in cheating and irregularity committed by the placement agency. The fact remains to be un-controverted that the petitioner was not holding necessary requisite eligibility and qualification and that the act of taking the petitioner in service was hit by procedure established by law for the purpose. Having found the petitioner in-eligible for the post in question the consequence of terminating services did rightly flow. The petitioner has taken illegal gain of wrongful act of the then Director (PH) and when it was unearthed that the petitioner did not have requisite qualification and eligibility for the post in question the consequent action was rightly taken. Once the inception of act is void ab-initio then all the subsequent acts are nullity in eye of law. The impugned order is therefore, perfectly legal, valid and in

¶224

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consonance with principles of law.

¶227

Learned counsel for the respondents further submitted that the process is under the cloud of investigation, and as already reiterated, the relaxation was only subject to the availability of the qualified and eligible candidates.

¶228

After hearing the counsel for the parties this Court notes that the competent authority of the respondents have themselves provided for relaxation for appointment on the said posts. The relaxation is not disputed by the respondents. The relaxation even was not considered in the impugned orders even after the direction of the court in the previous vound of litigation. This Court had categorically directed the respondents to examine and apply their mind upon the relaxation provided by the same authority that is Dr. B K Tiwari, Advisor Directorate General of Health Services, Nriman Bhawan which has prescribed the qualifications. The impugned orders reflect that without application of mind, even for one moment regarding relaxation provided, the respondents have reiterated their original orders of termination. This court is now forced to adjudicate upon the impact of relaxation upon contractual posts, which the petitioners are holding as the respondents have contemptuously failed to examine the same inpsite of clear order of this Court .

¶229

Since the relaxation has not been disputed and has not been considered by the respondents even after specific direction by this Court , this Court is constrained to pass an order that the total posts, which are available with the respondents for being filled up

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(20 of 20)

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by appointing the persons on contractual basis under the aegis of National Programme for Prevention and Control of Fluorosis (NPPCF) may be advertised by the respondents and in case there is availability of candidates for the post without extension of relaxation then such recruitment process shall be continued in accordance with law. If there is deficiency in the number of candidates without relaxation then the petitioners are to be continued on the principle of first come last go and shall be permitted to continue on contractual appointment to the extent of post for which there is non availability of qualified candidates without relaxation as they admittedly fall within the zone of relaxed qualification and it is a settled law that contractual employees cannot be replaced by another set of contractual employee for no reason and their services shall not be terminated on that count.

¶233

With the aforesaid observations the writ petitions stand disposed of. However, it is made clear that in case any fraud or cheating is committed as expressed by the learned Addl. Advocate General contrary to the provisions for the recruitment and proved upon a proper inquiry or investigation or in the criminal case then the respondents shall be free to take appropriate action against the concerned erring petitioner(s). The order shall operate only qua the petitioners before this court.

¶234

(DR. PUSHPENDRA SINGH BHATI)J.

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ns./

Sunil Kumar v. State and Ors.

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Sunil Kumar v. State and Ors.

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