Madhya Pradesh High Court
Manmohan Singh vs The State Of Madhya Pradesh on 24 March, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 24th OF MARCH, 2025
WRIT PETITION No. 22867 of 2018
MANMOHAN SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Ravindra Kumar Shrivastava -Advocate for the petitioner.
Mr. N.K. Gupta - Government Advocate for the State.
Mr. Sankalp Sharma - Advocate for respondent No.3.
ORDER
1. The petitioner has filed this writ petition challenging the order dated
07.09.2016 (Annexure P-1), whereby his contractual service has been
terminated by giving him salary for one month. He has also prayed for a
direction to respondents to reinstate and continue him in service on the post
of Data Entry Operator at Community Health Centre, Indergarh, District
Datia.
2. The facts relevant for decision of the case are that pursuant to the
advertisement issued by respondent No.3, petitioner was appointed as Data
Entry Operator vide order dated 04.06.2014 (Annexure P-3) and was posted
at Community Health Centre, Indergarh, District Datia. As per Clause - 1 of
the appointment order, the appointment was made up to 31.03.2015, which
was extendable for further one year based upon valuation of petitioner's
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performance. Subsequently, vide impugned order dated 07.09.2016
(Annexure P-1), respondent No.5 i.e. Chief Medical and Health Officer,
Datia terminated the contractual service of the petitioner by making payment
of one month salary of Rs.10,000/- vide Cheque No.710570 dated
07.09.2016.
3. The petitioner has challenged this order dated 07.09.2016 on the
ground that respondent No.5, Chief Medical and Health Officer is not his
appointing authority and was thus not competent to terminate his service. The
order is also challenged on the ground that the termination of his service is
stigmatic which could not have been done without affording opportunity of
hearing to him.
4 . On the other hand, learned counsel for the respondents have filed
the return and denied the grounds raised by the petitioner. The respondents
have firstly raised a preliminary objection of delay and laches inasmuch as
the petition has been filed after a lapse of more than two years of passing of
impugned order. Referring to Clause - 14 & 15 of the Rule Book filed as
Annexure P-10, learned Government Advocate submits that CMHO is the
appointing authority of the petitioner, which, according to him, is also
evident from the order of appointment filed as Annexure P-3. He further
submits that since the petitioner's service has been terminated under Clause -
10 of the order of appointment, by making payment of one month salary in
lieu of notice, therefore, it cannot be said that the order is stigmatic. He
submits that the mention of petitioner's absence from service is only for
purposes of valuating his further continuance in service and the same is not
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an stigma. He also submits that contract of personal service is not
enforceable in law.
5. Heard learned counsel for the parties and perused the record.
6. The primary objection of the petitioner is with regard to jurisdiction
of CMHO, Datia in passing the impugned order. In this regard, the
appointment order dated 04.06.2014 (Annexure P-3) is seen to have been
issued by CMHO Datia. Further, Clause 14 & 15 of the Rule Book being
relevant are reproduced as under :
14.द तावेज पर ण के उपरांत सम त अहताये सह पाये जाने पर
िनयु आदे श आवं टत जले के मु य िच क सा एवं वा थ अिधकार
ारा जार कये जायगे। तदानुसार सभी चयिनत व पद थ अ यथ
रा ीय ामीण वा थ िमशन, म य दे श के सं वदा पर िनयु औषिध
वतरण के -डे टा ए ऑपरे टर ह गे।
15 जले के अंतगत वीकृ त पद के िलए पद थल आवंटन क कायवाह
वर यता सूची को गत रखते हुए मु य िच क सा एवं वा थ
अिधकार ारा सुिन त क जाएगी अथात सव च वर यता ा
अ यथ को जले के िनकट थ औषिध वतरण के अथवा अ यथ
ारा द गई ाथिमकता के आधार पर पद थ कया जा सकेगा।
7. A perusal of Clause - 14 shows that the power of appointment has
been given to CMHO. Clause - 15 further provides that CMHO is competent
to give the posting to Data Entry Operator. Thus, it is evident from the
aforesaid clauses that CMHO was competent to issue the impugned order.
8. Learned counsel for the petitioner has placed reliance upon the
Clause 24.11 of the Rule Book, which only provides that appointing
authority shall be competent to terminate the service on account of
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misconduct or involvement in any criminal case after giving opportunity of
hearing to the incumbent. It does not provide as to who would be the
appointing authority. Thus, from reading clause 24.11, it cannot be said that
CMHO was not competent.
9. With regard to the objection of learned counsel for the respondents
with regard to delay in filing the writ petition, it is seen that the impugned
order is passed on 07.09.2016, whereas this petition is filed on 24.09.2018
i.e. after lapse of more than two years. In para - 4 of the writ petition, it is
stated that there is no delay in filing the petition. Learned counsel for the
petitioner tried to explain the delay by submitting that he has been
submitting representations to the authorities which have been brought on
record as Annexure P-5 to P-7. From perusal of the representations, it is
gathered that first representation was given on 10.01.2017, then on
23.01.2017 and lastly on 29.05.2017. Thus, from 29.05.2017 also, the
petition is filed after about 16 months, for which there is no explanation is
given.
10. The other relevant aspect to be looked into is that the petitioner
was holding the post of Data Entry Operator on contractual basis. His period
of service already expired on 31.03.2015 and even by invoking the extension
clause, his period of service would have ended on 31.03.2016. Thus, the
period of contractual service having already expired, he cannot claim any
right to continue in service, that too, after lapse of more than two years.
Further, it is settled legal proposition that contract of personal service is not
enforceable as has been held in State Bank of India Vs. S.N. Goyal, reported
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in (2008)8 SCC 92 wherein the Apex Court held in para 17 as under:
"1 7 . Where the relationship of master and servant is purely
contractual, it is well settled that a contract of personal service is
not specifically enforceable, having regard to the bar contained in
Section 14 of the Specific Relief Act, 1963. Even if the
termination of the contract of employment (by dismissal or
otherwise) is found to be illegal or in breach, the remedy of the
employee is only to seek damages and not specific performance.
Courts will neither declare such termination to be a nullity nor
declare that the contract of employment subsists nor grant the
consequential relief of reinstatement. The three well recognized
exceptions to this rule are:
(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 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.
There is thus a clear distinction between public employment
governed by statutory rules and private employment governed
purely by contract. The test for deciding the nature of relief
damages or reinstatement with consequential reliefs is whether
the employment is governed purely by contract or by a statute or
statutory rules. Even where the employer is a statutory body,
where the relationship is purely governed by contract with no
element of statutory governance, the contract of personal service
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will not be specifically enforceable. Conversely, where the
employer is a non-statutory body, but the employment is governed
by a statute or statutory rules, a declaration that the termination is
null and void and that the employee should be reinstated can be
granted by courts. (Vide : S.B. Dutt (Dr.) v. University of Delhi,
U.P. Warehousing Corpn. v. Chandra Kiran Tyagi, Sirsi
Municipality v. Cecelia Kom Francis Tellis, Vaish Degree College
v. Lakshmi Narain J. Tiwari v. Jwala Devi Vidya Mandir and
Dipak Kumar Biswas v. Director of Public Instruction.)
11. Relying upon the judgment in the case of State Bank of India
(Supra), this Court dealing with a contractual employee of respondent
NRHM held in the case of Hemant Kumar Shrivastava and Anr. Vs. Union
of India & Ors., passed in W.P. No.6502 of 2017, in para 14 as under:
"14. Under the facts and circumstances of the case, this Court is of
the considered opinion that in absence of any substantive right in
favour of the petitioners, no direction can be issued to the
respondents to continue the petitioners in service."
12. Thus, the relief claimed by the petitioner cannot be granted to him
in this petition in view of aforesaid legal proposition.
13. The learned counsel for the petitioner also submitted that the
impugned order being stigmatic, same could not have been passed without
affording opportunity of hearing to him. From reading the impugned order, it
is gathered that the authority has mentioned about the petitioner's remaining
absent from duty for purposes of evaluating his further continuance in
service. However, the fact remains that the contractual service has been
terminated by giving him one month salary. Thus, the termination is not on
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account of any misconduct but is in terms of Clause - 10 of the appointment
order. The submission of the petitioner that he has not received the amount
of Rs.10,000/- as mentioned in the impugned order would also not vitiate the
order and would only make petitioner entitle to get this amount of
Rs.10,000/-. It is gathered from the document filed as Annexure P-8 that this
amount of Rs.10,000/- is actually not paid to the petitioner. Thus, he is held
entitled to receive the amount of Rs.10,000/- as one month salary in lieu of
notice period.
14. In view of the aforesaid, validity of the impugned order dated
07.09.2016 (Annexure P-1) is upheld and the petition is dismissed so far as
challenge made to the said order . However, respondent No.5 is directed to
make payment of Rs.10,000/- to the petitioner within a period of one month
from the date of communication of this order . It is also observed that the
observations made in the impugned order are treated to have been made only
for the purposes of continuance of petitioner in service and would not be
used against him as stigmatic for future employee.
15. Petition is accordingly disposed off.
(ASHISH SHROTI)
JUDGE
bj/-
