Manju Verma And Ors. vs State Of U.P.Thru. Addl.Chief ...
2022 Latest Caselaw 237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
[A.F.R.]
 

 
[Reserved]
 

 

 

 

 
Court No. - 6
 

 
Case :- WRIT - A No. - 12236 of 2021
 
Petitioner :- Manju Verma And Ors.
 
Respondent :- State Of U.P.Thru. Addl.Chief Secy. Ayush Lko. And Ors.
 
Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 12572 of 2021
 
Petitioner :- Dr. Pankaj Krishna Kanchan And Others
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Ayush And Others
 
Counsel for Petitioner :- Prafulla Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 15540 of 2021
 
Petitioner :- Dr. Virshesh Mishra And Ors.
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. A.Y.U.S.H. Lko.And Ors.
 
Counsel for Petitioner :- Rakesh Kumar Modanwal,Amitabh Tripathi,Kripa Shanker Yadav
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 12689 of 2021
 
Petitioner :- Dr.Dhiraj Kumar Singh And Ors.
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Ayush Lko.Andors.
 
Counsel for Petitioner :- Prafulla Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 25671 of 2021
 
Petitioner :- Ragini Shukla
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Ayush Lko. And Ors.
 
Counsel for Petitioner :- Anand Dwivedi,Santosh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 22562 of 2021
 
Petitioner :- Abhishek Kumar And Ors.
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Ayush Lko. And Ors.
 
Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari,Ujjwal Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
with
 

 
Case :- WRIT - A No. - 23355 of 2021
 
Petitioner :- Surabhi Anand And Ors.
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Ayush Lko. And Ors.
 
Counsel for Petitioner :- Prafulla Tiwari,Ujjwal Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

1. This is a bunch of writ petitions whereby petitioners, who are paramedical and non paramedical staffs appointed on contractual basis in the government medical colleges and hospitals, have challenged their discharge orders issued on different dates from October, 2020 onwards and for a mandamus commanding the opposite parties to reinstate the petitioners on the posts on which they were working.

2. The facts of the case are that by government order dated 27.10.2017, the State Government took a decision for making selection and appointments on the posts of paramedical and non paramedical staff on contractual basis for government homeopathic medical colleges and hospitals. In furtherance of the aforesaid government order, an advertisement was issued on 15.12.2017 providing that contractual appointment as paramedical and non paramedical staff is to be made for a period of one year or till availability of regularly selected candidate from the UPSSSC or attaining the age of 65 years, which ever is earlier. It also provided that in the event of rendering satisfactory services the period of one year shall be extendable. The petitioners applied and were selected and appointed on different posts in terms of the advertisements issued in August, 2018 and thereafter The appointment letters also contained the conditions as mentioned in the advertisement. On the basis of the said appointment letters petitioners joined and started serving. On 26.03.2019, a video conference meeting took place under the chairmanship of Secretary, Department of Ayush, U.P., in which Regional Ayurvedic and Unani Officers, District Homeopathic Officers and Principals of Ayurvedic and Unani and Homeopathic Medical Colleges along with the Directors of the department were present. Number of decisions about the functioning of the department were taken and noted in the minutes of the said meeting, relevant for us, Clause-21 of the same notes, that, contractual appointment shall be made only for a period of 11 months and in no circumstance contractual employees shall be paid salary of 12 months. On the basis of the said noting in the minutes of the meeting, the Director, Homeopathy, U.P., by his letter dated 29.03.2019 asked the officials to initiate action. Again, Director, Homeopathy issued a letter dated 20.06.2019 instructing all the principals of the government homeopathic medical colleges and hospitals to discharge contractual employee on expiry of their term of contract, till execution of any fresh contract. In furtherance of the same petitioners were discharged on different dates on completion of the period of one year from their respective appointments. On 06.07.2019, the Director, Homeopathy again issued a letter to the principals of all State homeopathic medical colleges and hospitals stating that the purpose for which the teaching and other staff were appointed on contract still exists, therefore, in the public interest/government functioning, even after completion of the contract period their renewal is necessary and expedient, and therefore, the contracts of teaching and other staff detailed in the annexed list should be renewed again, after creating a break of one week, for a further period of 11 months or till the regular selection is made for the said contract posts. Thus, the services of the petitioners were extended for a period of 11 months but, now after the period of 11 months petitioners are again discharged by the impugned orders by respective principals from 2019 onwards.

3. Learned counsels for petitioners submit that petitioners were appointed in terms of the government order dated 27.10.2017. The decision to remove the petitioners is contrary to the government order and could not be taken by the Secretary in a meeting of the department. He further submits that it is not in dispute that the nature and requirement of the said work is permanent, as there is no decision of the State Government to close the homeopathic medical colleges and hospitals and that the decision taken is in gross violation of the settled principal of law, that, an adhoc employee cannot be replaced by another adhoc employee. Admittedly, till date, the selection process for regular appointments is not even initiated. Emphasis is also laid by him on the fact that the government and principals of respective colleges have jointly signed duly notarized undertakings/affidavits and indemnity bond before the Central Council of Homeopathy, New Delhi, while seeking recognition for the Academic Session 2020-21 and 2021-22, specifying the existing teaching and non teaching staff of the colleges including the names of the petitioners. Thus, while seeking recognition for the Academic Session 2020-21 and 2021-22 they had given the impression that petitioners are working and they shall be maintained. He further submits that the teaching staff/doctors, similarly situated as petitioners, were also appointed in furtherance of similar government orders on similar terms and conditions and were also removed in similar manner. They filed Writ Petition No.14731 (S/S) of 2020; ''Narendra Singh Sengar and Others Vs. State of U.P. and Others' and other writ petitions challenging their discharge. The said writ petitions were filed almost on the same grounds as the present writ petitions. The said writ petitions were allowed by this Court by its judgment and order dated 09.12.2020. The Court quashed the orders of discharge of the doctors in the said writ petitions and the government order dated 14.08.2020 which provided that their services shall not be renewed. Petitioners in the said writ petitions were further allowed to work on their respective posts in their respective colleges as per the government order dated 28.05.2015 and 27.10.2017. Thus, he draws strength from the said judgment also.

4. Some of the petitioners before this Court had filed a Writ-A No.2917 of 2021 ''Devesh Shukla and 38 others Vs. State of U.P. and 7 Others' at Allahabad and the said writ petition was disposed of by this Court by order dated 22.06.2021 providing:-

"In view of the above, on consent and without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally asking the petitioners to move an appropriate representation before the competent authority ventilating their grievances within two weeks from today and in case any such representation is preferred the same would be looked into, examined and remedied in the light of the judgment in Dr. Narendra Singh Sengar(supra) within four weeks from the date of filing the representation. "

5. The representations of petitioners was rejected by order dated 29.07.2021 and the said order is challenged by the petitioners by way of a connected writ petition, being Writ Petition No.22562 (S/S) of 2021 ''Abhishek Kumar and others Vs. State of U.P. and Others'. Reason for rejecting the representations by order dated 29.07.2021 are:-

(i) There are no statutory service rules for recruitment of Nursing Staff like the teaching staff, and

(ii) There was no cabinet approval in regard to the appointment on the posts of Store Superintendent, Swagati, Telephone Operator and Registration Clerk.

6. The petitioners of the said writ petition have also adopted the submissions of other petitioners before this Court. They further submit that both the grounds mentioned for rejecting the representation do not have any force; as mere absence of any statutory rules would not impact the submission of the petitioners that an ad-hoc appointee cannot be replaced by another ad-hoc appointee and further the ground that there is not approval of the Cabinet with regard to appointment on some of the posts only would not impact majority of posts and further that there is no necessity of Cabinets' approval for contractual appointment on the said Class-III posts.

7. Opposing the petitions, learned Additional Chief Standing Counsel places reliance upon government order dated 27.10.2017 and clause 21 of the minutes of meeting. He submits that contractual appointment could be made only for a period of 11 months and could also be renewed for a period of 11 months only, with a break of one week. The government letter dated 14.08.2020 specifically provides for non renewal of contract after expiry of the said term. He submits that there were large number of complaints filed before the Lok Ayukt, U.P., with regard to the said contractual appointments and during inquiry it was found that contractual appointments made were inappropriate and illegal and thus were cancelled. He further submits that there are no service rules promulgated for the said posts and, therefore, it is not possible to renew the contract period of the petitioners and it was decided to cancel the appointments by government order dated 14.08.2020 and proceed for re-selection on contract basis. Since re-selection on contract basis is again going to take place, it shall be open for the petitioners also to participate in the same. He lastly submits that the decision of the state government is a policy decision and is immune from judicial scrutiny as is held by the Supreme Court in:

(i) Ugar Sugar Works Ltd. Vs. Delhi Administration and Ors in Writ Petition (Civil) 321 of 2000;

(ii) Punjab Communications Ltd. Vs. Union of India & Others, (1999) 4 SCC 727;

(iii) Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh Kumar Sheth, (1984) AIR 1543;

(iv) State of Punjab & Ors. Vs. Ram Lubhaya Bagga, (1998) 4 SCC 117;

(v) Premium Granites Vs. State of Tamil Nadu, (1994) AIR 2233 paragraphs 53, 54 and 56;

(vi) Delhi Science Forum Vs. Union of India & Anr., 1996 AIR 1356 paragraph 52 and 59;

(vii) Krishnan Kakkanth Vs. Government of Kerala, (1997) 9 SCC 5069 paragraph 32 and 36;

(viii) Surjit Singh Vs. State of Punjab and Others, 1996 AIR 1388;

(ix) Bhavesh D. Parish Vs. Union of India, (2000) 5 SCC 471 paragraph 23 and 26;

(x) BALCO Employees Union Case (2002) 2 SCC 333;

(xi) Ashok Kumar Vs. Union Territory, (1995) SCC 1631;

(xii) Narmada Bachao Case, (2000) 10 SCC 664.

8. I have heard learned counsels for parties and perused the record with their assistance.

9. Before coming to the legal issues involved it is necessary to clear the facts. The State Government always treated the teaching and non-teaching staff as separate from each other. The teaching staff i.e. doctors were appointed in furtherance of separate government orders dated 28.05.2015 and 11.04.2018 while the non-teaching staff, i.e., petitioners, were appointed in furtherance of government order dated 27.10.2017. With regard to doctors/teaching staff a government order dated 14.08.2020 was issued providing that their contract period may not be extended any further and their services be dispensed with for making fresh appointment. With regard to non-teaching staff there is no such order passed by the State Government. It appears that the authorities in the department, without there being any order of the State Government requiring removal of the non-teaching staff, have under wrong impression proceeded and passed order with regard to non-teaching staff also. The government order dated 14.08.2020 refers to G.O. dated 28.05.2015 and 11.04.2018. Both the said government orders are only with regard to the teaching staff i.e. doctors. In absence of any decision of the State Government, the departmental officers including the director could not have passed any order removing or refusing to extend the contract period of the non-teaching staff. Thus, the entire exercise conducted by the respondents is in violation of the order of the State Government itself.

Clause-21 of the minutes of video conference meeting dated 26.03.2019 also only states that no further appointment on outsourcing shall be done unless budget is arranged. It nowhere says anything about the persons who were already working on contract basis. Admittedly, the petitioners were working on contract basis on 26.03.2019 and, therefore, since there case is not covered by Clause-21 of the video conference dated 26.03.2019, they cannot be removed in furtherance thereof. Admittedly, the contract period of petitioners was extended between July, 2019 to December, 2019, i.e. after the minutes of meeting dated 26.03.2019. Therefore, even the stand of the respondents remained that the petitioners were not covered by the decision taken in the video conference meeting dated 26.03.2019.

10. From the above facts and circumstance, I do not find any decision of the State Government taken for removal of the non-teaching staff which has completed its contract period and for which till date no direct selection is made. Clause-21 of the minutes of video conference meeting dated 26.03.2019 merely states that contractual employees shall be appointed for a period of 11 months and shall not be paid salary of 12 months. Even after the said letter was issued, the contractual employees were continued for an earlier period of contract of 12 months and on its expiry after giving artificial break of one week, their contracts were extended for a further period of 11 months. I do not find any direction to the Director, Homeopathy from the State Government requiring him to remove the non teaching staff appointed on contract basis and replace the same from fresh contractual employees.

11. So far as the legal position is concerned, there is settled principal of service law that an adhoc employee cannot be replaced by another adhoc employee. The same finds mention in large number of judgments including the judgment passed in case of ''State of Haryana and Others Vs. Piara Singh and Others', reported in [(1992) 4 SCC 118], second condition of paragraph-46 of the judgment holds:-

"46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."

12. Though the judgment of Piara Singh (supra) case is explained on certain other legal preposition in some later judgments of the Supreme Court but the aforesaid preposition of law holds good till date. It is not disputed in the present case that the requirement of work is permanent in nature as on instructions, the Standing Counsel had submitted before this Court that there is no decision taken by the State Government till date for closure of the aforesaid homeopathic medical colleges and hospitals. Once, the nature of work is permanent State Government is bound to make regular appointments on the same. Non-existence of statutory service rules does not make any difference as the State has co-extensive executive power for the same. It is duty of the State Government to forthwith frame the rules and make regular selection as per law. In the garb of not framing the rules State Government cannot claim right to become arbitrary and hire and fire at its own sweet will in the garb of contractual appointment. The conduct of the State has to be non arbitrary. Unless strong reasons are provided it cannot replace an ad-hoc employee with another ad-hoc employee. The only reason provided by the State Government for removing the petitioners during the course of argument is that there were large number of complaints before the Lok Ayukt and in an inquiry it was found that contractual appointments were inappropriate or not legal. No such inquiry report or other material is submitted before this Court. There is no declaration from any court that the appointments were inappropriate or not legal. The said ground also does not find mention in the discharge orders. Thus, in absence of any material, this Court does not find any force in the said submission of the State Government.

13. So far as the last submission made by learned Additional Chief Standing Counsel that the aforesaid decision of the State Government is a policy decision and immune from the judicial scrutiny is concerned, suffice would be to say that the none of the judgment referred to by learned Additional Chief Standing Counsel relates to any service matter and all of them are with regard to economic or financial policy of the State. So far as the present case is concerned, learned Standing Counsel could not place any policy decision of the State Government whereby it require removal of the contractual employee, as is already held above. Even presuming there is such a policy decision, the Court can definitely look into a policy decision basis of which violates the rule of law. Where a policy decision is on the face of it arbitrary and violates settled principal of law, this Court has power to look into the same also. Suffice to refer to the judgment of the Supreme Court in case of ''Brij Mohan Lal Vs. Union of India' reported in (2012) 6 SCC 502. In paragraph 99, 100 and 134 the Court held that:-

"99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions.

100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:

(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.

(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.

(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V) It is dehors the provisions of the Act or Legislations.

(VI) If the delegate has acted beyond its power of delegation.

134. The policy decision of the State should be in public interest and taken objectively. Ad hocism or uncertainty in the State policy particularly relating to vital factors of governance, may not bring the requisite dividend. Reasons for taking a policy decision would squarely fall in the domain of the State, but it should be free from element of arbitrariness and mala fides."

14. In view of aforesaid, this Court does not find any force in the stand taken by learned Additional Chief Standing Counsel. It is apparent that the petitioners are discharged in arbitrary manner. Admittedly, till date no other person have been appointed on the said posts, therefore, all the writ petitions are allowed and all the impugned discharge orders of the petitioners are set aside. The petitioners are allowed to work on their respective posts in their respective colleges as per government orders dated 27.10.2017. However, in case, any complaint is made/received, the State Government shall be at liberty to examine/inquire the said complaint in respect of each candidate as per law and pass order on each case separately. The State or the respondent/authorities shall also be at liberty to examine performance of each petitioner on their respective posts before renewing their services after expiry of their contract period and pass appropriate order in accordance with law.

Order Date :- 31.03.2022

Arti/-

(Vivek Chaudhary,J.)