Madhya Pradesh High Court
Manish Kumar Tiwari vs The State Of Madhya Pradesh on 13 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13 th OF FEBRUARY, 2023
WRIT PETITION No. 3945 of 2021
BETWEEN:-
1. MANISH KUMAR TIWARI S/O SHRI NARAYAN PRASAD
TIWARI, AGED ABOUT 38 YEARS, OCCUPATION:
UNEMPLOYED, R/O VILLAGE KHAIRAHI, POST UPANI,
DISTT. SIDHI (MADHYA PRADESH)
2. ANIL HINGOVASIYA S/O SANTOSH KUMAR HINGOVASIYA,
AGED ABOUT 42 YEARS, OCCUPATION UNEMPLOYED, R/O
G-13 SHIKHAR PARWAT COMPLEX KAILASH NAGAR
BAIRAGARH, BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI PRATEEK DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. PRINCIPAL
SECRETARY, PUBLIC HEALTH AND FAMILY WELFARE
DEPARTMENT, VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. THE DIRECTOR, PUBLIC HEALTH AND FAMILY WELFARE
D EPARTM EN T SATPUDA BHAWAN BHOPAL (MADHYA
PRADESH)
3. THE MISSION DIRECTOR, NATIONAL HEALTH MISSION, 08
ARERA HILLS, OLD JAIL ROAD, BHOPAL, DISTT. BHOPAL
(MADHYA PRADESH)
4. CHIEF MEDICAL AND HEALTH OFFICER, SIDHI,
DISTT.SIDHI (MADHYA PRADESH)
5. CHIEF MEDICAL AND HEALTH OFFICER PANNA
DISTT.PANNA (MADHYA PRADESH)
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.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER FOR RESPONDENTS/SATE)
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Date: 2023.02.16 16:48:00 IST
(SHRI BRAMHADATT SINGH - ADVOCATE FOR RESPONDENT NO.3)
2
This petition coming on for orders this day, the court passed the following:
ORDER
The petitioners have filed this writ petition under Article 226 of the Constitution of
India being aggrieved of advertisement dated 04/02/2021 issued by National Health
Mission, Madhya Pradesh for appointment of Contractual Development Block Accounts
Manager and Contractual District Hospital Accountant on the ground that earlier
petitioners were working with the respondent authority as BEMOC (Basic Emergency
Obstructive Care) Accountant. Their services were dispensed with in the 2016.
Thereafter they had approached this Court by filing W.P. No.7103/2016 and other
connected matters. In this writ petition, Coordinate Bench of this Court vide order dated
16/12/2016 noted a fact that petitioners were appointed on the post of BEMOC
Accountant vide order dated 17/12/2007 and an agreement was executed. Thereafter due
to paucity of funds, posts were abolished and the petitioners' services were dispensed
with as contracts were not renewed after 31st March, 2016. It is pointed out that
Coordinate Bench of this Court disposed of the petition observing as under :
"It is not a case where a contractual appointee is being
discontinued prior to completion of tenure and, therefore, the
aforesaid judgments wherein it has been held that opportunity of
hearing should be given before terminating a contractual employee,
are of no help to the petitioners. They have been permitted to
complete their contractual period. So far as their continuance, in the
light of the period they have put in is concerned, the contractual
employees are being discontinued as the post on which they were
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working have not been continued by the Government and,
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therefore, this Court is of the considered opinion that the question
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of directing the continuance of the petitioner on the post held by
them, does not arise. However, it is made clear that in case in future
any appointment is made in respect of the post on which the
petitioner was working, the respondents shall appoint the petitioner
on preferential basis and in case there is any need in the Department
in respect of other posts, the respondents shall also consider the
case of the petitioner on preferential basis, subject to their fulfilling
the qualification. With the aforesaid, the question of interference
does not arise.
The petitioner shall be free to file a detailed representation
stating the qualifications to the respondents and the respondents
shall consider the case of the petitioner in case the posts are
available and the petitioner is qualified and also keeping in view the
number of years of service the petitioner has put in.
Accordingly, admission is declined."Â
Thereafter it is submitted that a writ appeal was filed which was registered as W.A.
No.71/2017. Writ appeal was disposed of by granting liberty to the appellant to seek
redeployment under the National Rural Health Mission. National Rural Health Mission
was directed to consider the application received for redeployment against the available
vacant posts in accordance with the scheme framed by it. Thereafter the petitioners have
not been given appointment against the posts which were available for redeployment
whereas some other persons were given appointments.
Shri Bramhadatt Singh, learned counsel for the respondent-National Health
Mission, in his turn, submits that for redeployment posts were less and candidates were
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more, therefore, a scheme was formulated to call the persons seeking redeployment for a
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written suitability test in which in the first round, some of petitioners had appeared and
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had failed to qualify. Those who were qualified, were redeployed against the available
posts. In view of the orders of this High Court with a view to afford another opportunity
to the unsuccessful candidates, another examination was scheduled on 8th March, 2020
but petitioners had boycotted that exam and having failed to appear in the exam as is
apparent from Annexure-R/1, they are now not entitled to claim any employment by
challenging the advertisement as contained in Annexure-P/1. It is also submitted that in
pursuance of advertisement Annexure-P/1, respondents have already recruited the
requisite manpower and they are already functional.
At this stage, Shri Prateek Dubey, learned counsel for the petitioners, places
reliance on the decision of Hon'ble Supreme Court in the case of State of Haryana and
others Vs. Piara Singh and others, AIR 1992 SC 2130, wherein it is held that one set
of contract employees should not be replaced with another set of contract employees.
He also places reliance on the decision of Hon'ble Supreme Court in the case of
Maharashtra State Road Transport Corporation and others Vs. Rajendra
Bhimrao Mandve and others, AIR 2002 SC 224, to point out that rules of the games
cannot be changed once the game begins. Placing reliance on these two judgments, it is
submitted that respondents are not entitled to conduct any screening test or evaluating
test to fill the posts through redeployment of earlier retrenched employees whose
contract was not renewed.
After hearing learned counsel for the parties and going through the record, this
Court raised a specific query to Shri Prateek Dubey, learned counsel for the petitioners,
that whether they had raised this issue before the authority in earlier point of time. The
answer is vague but there is no document on record to substantiate this fact that any
objection was raised in regard to conduct of any screening test.
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Therefore, as far as this submission of the petitioners that there is change of the
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rules of the game after the game began is not made out because for that petitioner was
required to show that screening test was organized after redeployment of similarly
situated employees just to discriminate with the set of petitioners who are before this
Court. But, there is neither such pleading nor any material on record, therefore, judgment
of Hon'ble Supreme Court in the case of Rajendra Bhimrao Mandve and others
(supra) has no application to the facts of the present case.
As far as second judgment of Hon'ble Supreme Court in the case of Piara Singh
and others (supra) is concerned, petitioners' claim in the first round of litigation against
non-renewal of their contract is already answered by a Coordinate Bench vide order
dated 16/12/2016 wherein it had showed some indulgence by giving some directions but
had even refused admission of the petition. Thereafter in the writ appeal also at the
instance of the petitioners, no indulgence was granted except on the concession of the
National Rural Health Mission, it was directed that if any application was received for
redeployment against the available posts, then they be filled up in accordance with the
scheme framed in that behalf. Thus, this submission that one set of contract employees
are being replaced by another set of contract employees is not made out specially when
the posts against which petitioners were appointed i.e. of BEMOC Accountant stood
abolished due to financial crunch in NRHM and thereafter minimum manpower is being
deployed to get work done.
Principle of 'estoppel' will also be applicable inasmuch as Shri Prateek Dubey,
learned counsel for the petitioners, has not disputed this argument put forth by Shri
Bramhadatt Singh, learned counsel for respondent No.3, that in the first round of
screening test which was conducted, petitioners had participated. After having
participated in the screening test organized by NRHM and having failed to secure place in
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terms of the result of that screening test, petitioners are now estopped for saying that
respondents are not entitled to conduct any screening test to fill the posts on
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Date: 2023.02.16 16:48:00 IST
redeployment and that will amount to change of the 'rules of game'.
The scheme which was framed, as posts available for redeployment were less, and
persons seeking redeployment were more, cannot be said to be illegal or arbitrary as that
was the only rational way to redeploy different persons seeking redeployment out of a
huge pool of such aspirants for a limited pool of the posts available. Thus, timing of
such test whether it was conducted prior to the order passed by the Division Bench of
this Court in the writ appeal or after is not material. The material fact is that in terms of
the orders of this High Court in the writ petition, a test was conducted and the petitioners
in this set of writ petitions failed to achieve the desired benchmark, then when second
opportunity was granted, they chose to absent themselves from availing the said
opportunity of qualifying the screening test. Thus, there cannot be any challenge to the
advertisement for the failure of the petitioners themselves not to participate in the
screening test as such posts which are necessary for public employment and discharge of
public function cannot be left vacant merely to suit the convenience of the petitioners.
Thus, challenge to the advertisement fails.
Accordingly, this writ petition is dismissed.
(VIVEK AGARWAL)
JUDGE
ts
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Digitally signed by TULSA SINGH
Date: 2023.02.16 16:48:00 IST
