Imran Hussain Khan vs The State Of Assam And 2 Ors
2022 Latest Caselaw 2484 Gua

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GAHC010289462019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                                 Case No. : WP(C)/8779/2019

            IMRAN HUSSAIN KHAN
            S/O- LT BORHAN ALI KHAN, R/O- VILL- KOKILA MAZ PARA, P.O. KOKILA,
            P.S. ABHAYAPURI, DIST- BONGAIGAON, ASSAM, PIN- 783392


            VERSUS


            THE STATE OF ASSAM AND 2 ORS.
            REP. BY THE SECY. TO THE GOVT. OF ASSAM, HEALTH AND FAMILY
            WELFARE DEPTT., DISPUR, GHY-06


            2:THE MISSION DIRECTOR
             NATIONAL HEALTH MISSION
             SAIKIA COMMERCIAL COMPLEX
             CHRISTIANBASTI
             G.S.ROAD
             GHY-05


            3:THE JOINT DIRECTOR OF THE HEALTH SERVICES-CUM-MEMBER
            SECRETARY
             DISTRICT HEALTH SOCIETY BONGAIGAON
            ASSAM- 78338


Advocate for the Petitioner   : MD. B ISLAM


Advocate for the Respondent : SC, NHM
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                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                     ORDER

Date : 26-07-2022

1. Heard Mr. B Islam, learned counsel for the petitioner. Also heard Mr. B Gogoi, learned counsel for the Health Department.

2. The petitioner has prayed for setting aside the impugned order dated 30.10.2019 issued by the Mission Director, National Health Mission, Assam, by which the petitioner's prayer to rejoin his service as a Pharmacist in the Rashtriya Bal Swasthya Karyakram (RBSK), Boitamari PHC in Bongaigaon District has been rejected.

3. The petitioner's case is that the petitioner was initially appointed as a Pharmacist in the RBSK, Boitamari PHC in Bongaigaon district, vide order dated 01.03.2014, on contract basis for the period from 05.03.2014 to 31.03.2017. However, the petitioner was arrested on 09.08.2016 in connection with Abhayapuri P.S. Case No. 347/2016 under Sections 147/148/149/447/341/325/326/354/307/379/371 of the IPC. The petitioner was released on bail on 12.09.2016. The petitioner thereafter wrote a letter dated 17.09.2016 to the respondent No. 3 praying that he should be allowed to rejoin his post/duty. The petitioner's letter dated 17.09.2016 praying to rejoin his post was forwarded to the respondent No. 2 by the respondent No. 3 vide letter dated 30.11.2016.

4. The petitioner was thereafter, acquitted from the charges levelled against him, vide judgment dated 11.02.2019 passed by the Court of Sub-Divisional Judicial Magistrate (M), North Salmara, Abhayapuri. The petitioner thereafter wrote a letter dated 26.02.2019 to the respondent No. 2 praying that he should Page No.# 3/5

be allowed to rejoin his duty, as he has been acquitted from the charges levelled against him. No action being taken by the respondents, the petitioner filed WP(C) No. 2509/2017.

5. WP(C) No. 2509/2017 was disposed of vide order dated 11.04.2019, by directing the respondent authorities to consider the petitioner's representation dated 26.02.2019 to allow him to rejoin his duty and to pass appropriate orders in terms of the observations and directions mentioned in the order dated 11.04.2019.

The relevant paragraph Nos. 4 to 9 of the order dated 11.04.2019 passed in WP(C) No. 2509/2017 are reproduced below:-

"4. The contention of the petitioner is that since the petitioner was wrongly implicated in the said case and accordingly, he was discharged from service, he could not be faulted for the break in service which had occasioned because of arrest and the trial before the Court.

5. Accordingly, after being discharged from the aforesaid criminal case, he submitted an application on 26.02.2019 to the authority for allowing him to re-join the service. Unfortunately, authorities have not responded to the same because of which the petitioner has approached this Court.

6. This Court is of the view that, though a contractual employee has no vested right to continue in service, in the present case, the break in service was occasioned due to certain criminal case which was foisted upon him in which he has been acquitted and as such, the break in service was not due to any deliberate act on the part of the petitioner but due to reasons beyond his control.

7. If that is so, if similarly situated persons who were appointed on contractual basis have been allowed to continue and the service of the Pharmacist is still required, the authorities will consider taking the petitioner back break in service so that he may Page No.# 4/5

be allowed to continue in service as Pharmacist as was done on the earlier occasions.

8. Ms. A. Borah, learned counsel for the State respondents submits that since the contractual period of the petitioner has already expired, there is no vested right on the part of the petitioner to seek reinstatement in service. However, as mentioned above, this direction would be compliable only if other contractual Pharmasists/ employees have been continued in service as the petitioner also would have continued in service had he not been implicated in the criminal case from which he has now been acquitted.

9. Accordingly, the present petition is disposed of with a direction to the respondent authorities to consider the said representation submitted by the petitioner on 26.02.2019 and pass appropriate orders in terms of the observations and directions mentioned above, within a period of one month from the date of receipt of a certified copy of this order."

6. In compliance with the order dated 11.04.2019 passed in WP(C) No. 2509/2017, the respondent No. 2 issued the impugned order dated 30.10.2019, which states that the State Level Committee under the chairmanship of the Executive Director, NHM, Assam had assessed the pharmaceutical knowledge of the petitioner and found that he did not have the basic knowledge as a Pharmacist to work in public health facilities dealing with "patient community". The impugned order also states that as the petitioner was not on duty since 09.08.2016, due to his arrest till his acquittal and as the petitioner's contract period had expired on 31.03.2017 he was not treated as in service and was not eligible for any relief.

7. The petitioner's counsel submits that as the petitioner's break-in-service during his contract period was occasioned due to the criminal case foisted upon him and in which he had been acquitted, the petitioner should be allowed to Page No.# 5/5

rejoin his duty. He further submits that similarly situated persons who had been appointed along with the petitioner are still in service and as such, he should be allowed to continue in service.

8. Mr. B Gogoi, learned counsel for the respondents submits that the petitioner's contract period having expired, the petitioner cannot be allowed to rejoin his duty and in this regard he has relied upon the judgment passed by this Court in the case of Ajoy Kumar Haloi vs. State of Assam & Ors ., reported in 2014 (3) GLT 420. He also submits that, as reflected in the impugned order dated 30.10.2019, the petitioner does not have the basic knowledge of a Pharmacist and it would not be reasonable to allow him to deal with patients in the rural areas. Mr. B Gogoi, thus submits that the only recourse left to the petitioner, for any breach of contract or termination of service of the petitioner, would be to file a civil case for payment of damages as held by this Court in the case of Ajoy Kumar Haloi (supra).

At this stage, Mr. B Islam, learned counsel for the petitioner prays for time to submit citations. Prayer is allowed.

List the matter on 30th August, 2022 as Part-Heard.

JUDGE

Comparing Assistant