Madhya Pradesh High Court

Hemant Kumar Shrivastava vs Union Of India on 12 October, 2022

Author: Anand Pathak

IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE ANAND PATHAK

ON THE 12th OF OCTOBER, 2022

WRIT APPEAL No. 300 of 2020
BETWEEN:-

HEMANT KUMAR SHRIVASTAVA S/O SHRI SARMAN
LAL SHRIVASTAVA, OCCUPATION: SERVICE, R/O- J-
665, DARPAN COLONY DISTRICT GWALIOR
(MADHYA PRADESH)

.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE)

AND
1. UNION OF INDIA THROUGH ITS SECRETARY
MINISTRY OF HEALTH NEW DELHI

2. NATIONAL RURAL HEALTH MISSION
THROUGH ITS DIRECTOR, ARERA HILLS OLD
JAIL ROAD, BHOPAL (MADHYA PRADESH)

3. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, MINISTRY OF
HEALTH, VALLBH BHAWAN, BHOPAL
(MADHYA PRADESH)

4. DIRECTOR, PUBLIC HEALTH AND FAMILY
WELFARE DEPARTMENT, SATPURA BHAWAN,
BHOPAL (MADHYA PRADESH)

5. COMMISSIONER, PUBLIC HEALTH AND
FAMILY WELFARE DEPARTMENT, SATPURA
BHAWAN, BHOPAL (MADHYA PRADESH)
2

6. CHIEF MEDICAL AND HEALTH OFFICER
GWALIOR DISTRICT GWALIOR (MADHYA
PRADESH)

.....RESPONDENTS
(SHRI PRAVEEN KUMAR NEWASKAR - ASSISTANT SOLICITOR
GENERAL FOR RESPONDENT NO.1, SHRI SANKALP SHARMA -
ADVOCATE FOR RESPONDENT NO.2 AND SHRI DEEPAK KHOT -
ADVOCATE FOR RESPONDENTS NO.3 TO 6.)

WRIT APPEAL No. 301 of 2020
BETWEEN:-

SMT. TRIPTI GUPTA D/O SHRI AKHILESH GUPTA,
AGED 31 YEARS, OCCUPATION: UNEMPLOYED, R/O-
402, DESHPANDEY COMPLEX, HUZRAT ROAD, NAYA
BAZAR, LASHKAR DISTRICT GWALIOR (MADHYA
PRADESH)

.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE)

AND
1. UNION OF INDIA THROUGH ITS SECRETARY
MINISTRY OF HEALTH, NEW DELHI

2. NATIONAL RURAL HEALTH MISSION THROUGH
ITS MISSION DIRECTOR, ARERA HILLS OLD JAIL
ROAD, BHOPAL (MADHYA PRADESH)

3. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, MINISTRY OF HEALTH,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)

4. DIRECTOR, PUBLIC HEALTH AND FAMILY
WELFARE DEPARTMENT SATPURA BHAWAN,
BHOPAL (MADHYA PRADESH)

5. COMMISSIONER, PUBLIC HEALTH AND FAMILY
WELFARE DEPARTMENT, SATPURA BHAWAN,
BHOPAL (MADHYA PRADESH)
3

6. CHIEF MIDICAL AND HEALTH OFFICER,
GWALIOR DISTRICT GWALIOR (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI SHRI PRAVEEN KUMAR NEWASKAR -
ASSISTANT SOLICITOR GENERAL FOR RESPONDENT
NO.1, SHRI SANKALP SHARMA - ADVOCATE FOR
RESPONDENT NO.2 AND SHRI DEEPAK KHOT -
ADVOCATE FOR RESPONDENTS NO.3 TO 6 )

WRIT APPEAL No. 2155 of 2019
BETWEEN:-

1. DEVKINANDAN SHARMA S/O SHRI
RAMSWAROOP SHARMA, AGED ABOUT 38
YEARS, OCCUPATION: COMPUTER OPERATOR
C.H.C. BAMORI, DISTRICT GUNA AT PRESENT
ATTACHED IN THE OFFICE OF CHIEF MEDICAL
AND HEALTH OFFICER, GUNA DISTRICT GUNA
(MADHYA PRADESH)

2. ANIL KUMAR NAMDEV S/O SHIR HAJARI LAL
MANDEV, AGED 48 YEARS, OCCUPATION:
COMPUTER OPERATOR IN C.H.C. RAGHOGARH
DISTRICT GUNA (MADHYA PRADESH) (DELETED)

3. VIKAS JAIN S/O SHRI DHAN KUMAR JAIN, AGED
32 YEARS, OCCUPATION: COMPUTER OPERATOR
POSTED IN CALL CENTER, GUNA DISTRICT
GUNA (MADHYA PRADESH) (DELETED)

4. MAHENDRA SINGH DHAKAD S/O SHRI
NARENDRA SINGH, AGED 45 YEARS,
OCCUPATION: COMPUTER OPERATOR,
DISTRICT HOSPITAL GUNA, DISTRICT GUNA
(MADHYA PRADESH) (DELETED)

.....APPELLANT
(BY SHRI SOURABH SINGH TOMAR - ADVOCATE)
4

AND

1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE
GOVERNMENT OF M.P., VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)

2. THE DIRECTOR, NATIONAL HEALTH MISSION
MADHYA PRADESH, STATE HEALTH SOCIETY, 8
ARRERA HILLS OLD JAIL RAOD BHOPAL
(MADHYA PRADESH)

3. THE CHIEF MEDICAL AND HEALTH OFFICER
GUNA DISTRICT GUNA (MADHYA PRADESH)

.....RESPONDENTS
(SHRI DEEPAK KHOT - ADVOCATE FOR RESPONDENTS
NO.1 AND 3 AND SHRI SANKALP SHARMA - ADVOCATE
FOR RESPONDENT NO.2)
.............................................................................................
This appeals coming on for hearing this day, Hon'ble Shri Justice
Anand Pathak passed the following:-

ORDER

Regard being had to the similitude of controversy, all the writ appeals are heard analogously and decided by this common order. For convenience's sake, facts as narrated in Writ Appeal No.300 of 2020 are taken into consideration

2. The present writ appeals have been preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 taking exception to the order dated 29.11.2019 passed in bunch of writ petitions in which Writ Petition No.6502 of 2017 (Hemant Kumar Shrivastava and another Vs. Union of India and other) was the lead case whereby the learned Writ Court has dismissed the writ petitions so filed by the then petitioners.

3. It is the submissions of the learned counsel for the appellant of Writ Appeal No.300 of 2020 that appellant was appointed on the basis of contractual employment in department of National Health Mission, therefore, non-renewal of contract period amounts to termination of service. Since the post on which the appellant was working, was never abolished, therefore, order is bad in law. It is further submitted that there is no reason assigned for disengagement of the appellant and this constituted breach of natural justice. The project of National Health Mission is ongoing project and therefore, removal of appellant amounts to colourable exercise of power and arbitrary.

4. Learned counsel for the respondents opposed the prayer and submitted that appellant was not holding any subsequent civil post in the respondent department nor as he being granted any contractual appointment against the sanctioned vacant post as defined under Section 41 of the Madhya Pradesh Contractual Appointment to Civil Post Rules, 2017. Therefore, it is clear that the appellant was working on daily rate employee as per collector rates. As per the judgment of Apex Court in the case of State Bank of India and others Vs. S.N. Goyal reported in (2008) 8 SCC 92, wherein it has been held that contract of a personal service is not specifically enforceable and employee can claim damages at best for breach of contract if any exists.

5. National Rural Health Mission (NRHM) provides funds and technical support to the State Government by which all concerned Chief Medical and Health Officers appoint different required personnel on collector rates under the heading of Administrative Funds (3% funds from over all funds allotted to the districts), therefore in absence of any enforceable claims, appeal deserves dismissal.

6. Learned counsel for the respondents No.3 to 6 also filed a detail reply and contested the case.

7. Heard learned counsel for the parties at length.

8. This is case where appellant / petitioner was admittedly appointed as daily rate employee / contractual employment. As the nomenclature suggests, the National Rural Health Mission is a mission and by very concept itself, it is temporal in nature. As submitted by the counsel for respondent No.2 (NHM), 3% of total fund goes under the head of Administrative Funds which look after the exigencies / expenditures as narrated in its reply and incidentally, appointment of Computer Operators / Data Entry Operators are paid from the said Administrative Funds, therefore, no permanence or semblance of regular appointment can be attached or inferred. Therefore, on this count also, plea of discrimination if any raised by appellant is not maintainable.

9. Since the appellant's appointment is contractual in nature and is contingent upon release of funds by the Central Government, therefore, same cannot be asserted as a matter of right by appellant. In the case of State Bank of India Vs. S.N. Goyal (supra) wherein Apex Court has carved out the exceptions (total in 3 numbers) and the case of appellant does not fall under those exceptions.

10. Those three exceptions are reproduced for ready reference:-

"(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article

309);

(ii) where a workman having the protection of the Industrial Disputes Act, 1947 is wrongly terminated from service; and

(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules."

11. In the case of Zigitza Health Care Ltd. Vs. Naresh Kumar Verma and others, reported ILR (2022) M.P. 871, Division Bench of this Court has discussed this aspect in detail about the very concept of contractual appointment vis-a-vis different appointees under National Health Mission. Same is reproduced as under:-

"1. Case pertains to contractual employment of National Health Mission and as the name suggests, it is a mission with an aim and by its very implication temporal in nature till the aim is fulfilled. To meet the aims and objects, it has to work in tandem with the State Authorities in extending the reach of medical health services in each and every part of the State. Under the aegis of NHM, different programmes are being run like 108 Ambulance Services, Janni Suraksha Vehicle and Deen Dayal Mobile Hospital etc.

2. Therefore, by very existence appellant is a Mission and its existence is for the time being or it may come to an end or transform in some different form in future, hence, the concept itself is temporal in nature, therefore, controversy is to be seen from this perspective also beside going into legal aspects of the same.

12. Considering the overall fact situation as discussed above, nature of duties as well as aims and objects of the Mission, any observation whereby employee is woven into the employer - employee relationship with the appellant would cause service related complications in future which has been deprecated by the Apex Court in the case of State of Karnataka and others vs. Uma Devi, (2006) 4 SCC 1 because in that condition employee may claim entitlement for absorption, regularization, classification etc. over a post which is neither raised by NHM in its establishment, nor employee entered into it through a proper selection process as approved by law, thus fall under back door entry. Therefore, to avoid future complications, it is imperative that factual position be put into right perspective.

13. In the present case, learned Writ Court has considered the necessary contours of the controversy in detail and thereafter, rightly came to the conclusion that appellant being contractual employee has no substantive right to agitate for employment. Therefore, no case is made out for interference. Appeals stand dismissed accordingly.

                        (RAVI MALIMATH)                                        (ANAND PATHAK)
                         CHIEF JUSTICE                                             JUDGE


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2022.10.18 12:10:30 +05'30'
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