Dr. Lokendra Bidiyasar vs State Of Rajasthan
2021 Latest Caselaw 8200 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 4300/2021

1. Dr. Lokendra Bidiyasar S/o Purna Ram, Aged About 26 Years, Village Jakhan, Tehsil Jayal, District Nagaur (Raj.).

2. Manoj Kumar Changal S/o Shaitan Ram, Aged About 28 Years, Village Deh, Tehsil Jayal, District Nagaur (Raj.).

3. Varun Singh Shekhawat S/o Jitendra Singh, Aged About 26 Years, Village Rulana, Tehsil Dataramgarh, District Sikar (Raj.).

4. Jitendra Baroria S/o Ramniwas, Aged About 26 Years, Village Dhingsari, Tehsil Ladnun, District Nagaur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through The Additional Chief Secretary, Medical, Health And Family Welfare Services, Government Of Rajasthan, Secretariat, Jaipur.

2. The Director (Public Health), Medical And Health Services, Health Bhawan, Jaipur.

3. The District Collector, Nagaur.

4. The Chief Medical And Health Officer, Nagaur.

5. The Block Chief Medical Officer, Deedwana, District Nagaur.

6. The Block Chief Medical Officer, Parbatsar, District Nagaur.

7. The Block Chief Medical Officer, Ladnun, District Nagaur.

----Respondents Connected with

(2) S.B. Civil Writ Petition No. 4595/2021

1. Ramprakash S/o Shri Shivdan Ram Bhakar, Aged About 27 Years, R/o Village Post Indokaly, Roon, Maliyon Ka Bas, Tehsil Mundwa, District Nagaur (Raj.) , Mobile No. 9730148000

2. Dr. Richhpal S/o Shri Prahlad Ram, Aged About 31 Years, R/o Village Post Bhatnokha, Jato Ka Bas, Tehsil And District Nagaur (Raj.)

3. Dr. Raghuveer Saini S/o Shri Gordhan Singh, Aged

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About 29 Years, R/o Behind Sangam Pole, Near Ajmeri Gate, Nagaur (Raj.)

4. Dr. Mahendra Latiyal S/o Shri Sukh Ram Latiyal, Aged About 27 Years, R/o Village Thirod, Shiv Mohalla, Tehsil Mundwa, District Nagaur (Raj.)

5. Dr. Rakesh Kagat S/o Shri Khinya Ram, Aged About 30 Years, R/o Village Khinwtana , Kagato Ki Dhani, Post Dotina, Tehsil Degana, District Nagaur (Raj.)

6. Dr. Devendra Mirdha S/o Shri Balveer Singh Mirdha, Aged About 26 Years, R/o 16, Sainik Basti, Nagaur (Raj.)

----Petitioners Versus

1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical, Health And Family Welfare Services, Government Of Rajasthan, Secretariat, Jaipur.

2. The Director (Public Health), Medical And Health Services, Health Bhawan, Jaipur.

3. The District Collector, Nagaur.

4. The Chief Medical And Health Officer, Nagaur.

5. The Senior Medical Officer Incharge, Community Health Centre, Kuchera, Block Mundwa, District Nagaur.

6. The Senior Medical Officer - Incharge, Community Health Centre, Mundwa, Block Mundwa, District Nagaur.

7. The Senior Medical Officer - Incharge, Community Health Centre, Gotan, Block Merta, District Nagaur.

8. The Block Chief Medical Officer, Merta City, District Nagaur.

9. The Block Chief Medical Officer Nagaur, District Nagaur.

----Respondents

(3) S.B. Civil Writ Petition No. 4838/2021

Dr. Murari Lal Saini S/o Shri Dwarika Prasad Saini, Aged About 38 Years, R/o Opposite Railway Station Vinayak Nagar, Borawar, Tehsil Makrana, District Nagaur, Medical Officer Posted At Community Health Center, Borawar, Block Nagaur, District Nagaur.

                                                                      ----Petitioner


                                           (3 of 8)                     [CW-4300/2021]


                                    Versus

1. State Of Rajasthan, Through Principal Secretary, Medical And Health Department, Government Of Rajasthan, Secretariat, Jaipur.

2. The Director (Public Health) Medical And Health Services, Rajasthan Swasthya Bhawan, Tilak Marg, C- Scheme, Jaipur.

3. The Chief Medical And Health Officer, Nagaur.

4. The Block Chief Medical And Health Officer, Nagaur, District Nagaur, Rajasthan.

5. In-Charge Community Health Center, Borawar, Block Nagaur District Nagaur.

----Respondents

(4) S.B. Civil Writ Petition No. 5233/2021

1. Murli Manohar Choudhary S/o Hari Ram Choudhary, Aged About 28 Years, Village / Post Palri Kallan, Tehsil Degana, District Nagaur (Raj.), Mobile No.9509090864.

2. Pratibha Singh Choudhary W/o Dr. Mukesh Khoja, Aged About 28 Years, Village Post Sadokan, Tehsil And District Nagaur (Raj.), Mobile No.8839268583.

----Petitioners Versus

1. State Of Rajasthan, Through Its Additional Chief Secretary, Medical, Health And Family Welfare Services, Government Of Rajasthan, Secretariat, Jaipur.

2. The Director (Public Health), Medical And Health Services, Health Bhawan, Jaipur.

3. The District Collector, Nagaur.

4. The Chief Medical And Health Officer, Nagaur.

5. The Medical Officer-Incharge, Primary Health Centre, Chindaliya, Block Makrana, District Nagaur.

6. The Block Chief Medical Officer, Makrana, District Nagaur.

7. The Senior Medical Officer-Incharge, Community Health Centre Harsor, Block Degana, District Nagaur.

                                                                  ----Respondents




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For Petitioner(s)             :     Mr. Yash Pal Khileree
                                    Mr. Mahesh Chand Gupta
For Respondent(s)             :     Mr. K. S. Rajpurohit, AAG assisted by
                                    Mr. Shreyansh Mehta



                         JUSTICE DINESH MEHTA

                                     Judgment

25/03/2021

1. By way of the present writ petitions the petitioners have

challenged the order dated 24.02.2021 whereby the respondents

have decided to continue petitioners' services only upto

31.03.2021, as the State has not granted sanction to extend the

period of petitioners' engagement as Medical Officer.

2. Mr. Khileree, learned counsel for the petitioners, invited

Court's attention towards the order dated 29.04.2020, whereby

the petitioners were appointed on urgent temporary basis and

highlighted that petitioners' engagement was for a period of one

year and the same is required to be counted from the date of

appointment order.

3. In this regard learned counsel for the petitioners carefully

read condition No.1, mentioned in the appointment order

aforesaid, which reads thus :

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4. Learned counsel for the petitioners argued that the Chief

Medical and Health Officer (for short 'CMHO') is not inclined to

continue petitioners' engagement because of the fact that due

sanction by State Government has not been received. He

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apprehended that the respondents are going to discontinue

petitioners' services w.e.f 31.03.2021.

5. Learned counsel for the petitioners alternatively argued that

petitioners were engaged in wake of onslaught of pandemic

(COVID-19) and the engagement was for a period of one year or

till the regularly recruited Medical Officers were appointed. He

argued that since many posts of Medical Officer are still lying

vacant, the CMHO/State is not justified in dispensing with

petitioners' engagement on the pretext of non-grant of State's

sanction to extend their engagement.

6. It is also argued by Mr. Khileree that since the posts are still

lying vacant and pandemic is not yet over, the respondent - State

will have to engage other candidates on contractual basis as

Medical Officer and the State's action, thus, in light of settled

position of law that one set of contractual employees cannot be

replaced by another set of contractual employees, is illegal.

7. In support of his submissions, learned counsel for the

petitioners relied upon the judgment of Coordinate Bench of this

Court in the case of Dr. Om Prakash Lathi Vs. Sate of Rajasthan &

Ors. : SB Civil Writ Petition No.9939/2012, decided on 16.05.2013

and claimed similar treatment and directions.

8. Learned counsel for the petitioners also invited Court's

attention towards the communication dated 23.03.2021, sent by

Director, Medical & Health Services, Rajasthan, and informed that

the respondent No.2 is in the process of extending petitioners'

contractual engagement and thus all CMHO's have been asked to

send proposals for the same forthwith by 24.03.2021.

9. Learned counsel for the petitioners submitted that petitioners

are hopeful of extension of their tenure, but the same may take

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some time and if their engagement is brought to an end on

31.03.2021, their rights of seeking extension will be practically

closed.

10. He submitted that consequent to their termination, their

entitlement to claim ten bonus marks for each year of service for

admission in post graduation will also be adversely affected, as

the petitioners, who were appointed w.e.f. 29.04.2020 will not be

able to complete one full year.

11. Heard.

12. So far as the petitioners' first contention is concerned that

their engagement cannot be dispensed with till regularly selected

candidates are available, cannot be countenanced, having regard

to the extant facts and condition enumerated in the appointment

order itself.

13. A careful reading of the appointment order reveals that

petitioners were given appointment on urgent temporary basis in

wake of onslaught of COVID-19. Condition of the appointment

order clearly stipulates that engagement will be absolutely on

temporary basis, till the regularly selected candidates are available

or for a maximum period of one year.

14. This being the position, merely because regularly selected

Medical Officers are not available, petitioners do not get a right to

claim extension of their term beyond a year.

15. So far as principle that one set of contractual employee

cannot be replaced by another set of contractual employee is

concerned, the petitioners have not placed on record any order,

which could show the intention of the respondent - State to

replace their services by another set of contractual employees or

employees on urgent temporary basis.

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16. Judgment relied upon by Mr. Khileree, rendered in the case

of Dr. Om Prakash Lathi (supra), in considered opinion of this

Court does not apply to the facts of the present case. The facts in

the case of Dr. Om Prakash Lathi (supra) were such, that though

the engagement was for a year, the respondents (State)

themselves had continued the same for a period of three years.

Hence, this Court held that the respondents cannot abruptly bring

an end to the engagement and direction was issued to continue

petitioners' services till regularly selected candidates are available.

17. In the instant case, the situation is strikingly different. The

CMHO concerned has decided to dispense with termination of

petitioners' engagement w.e.f. 31.03.2021 that too solely for want

of requisite sanction by the State Government.

18. Notwithstanding above referred adjudication, this Court finds

that appointment order came to be issued on 29.04.2020 and the

term of said order unequivocally stipulated that the engagement

will be in force until such time regularly selected candidates will be

available or for a year, whichever is earlier.

19. Indisputably, period of one year will not be completed by

31.03.2021. The respondent - State, therefore, cannot justifiably

bring an end to petitioners' engagement on 31.03.2021.

20. These writ petitions are, therefore, disposed of, while holding

that petitioners cannot claim extension of their engagement as a

matter of right, merely because regular selection has not taken

place. The respondent - State is, however, directed to continue

petitioners' engagement for a period of full one year i.e. till

29.04.2021.

21. In case, the State decides to grant extension to such

candidates including petitioners, in furtherance of the

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communication dated 23.03.2021, naturally petitioners' rights will

be governed by such extension, else their engagement will come

to an end on 29.04.2021.

22. The impugned order dated 24.02.2021 to the extent of

dispensing with petitioners' engagement w.e.f. 31.03.2021 is,

hereby, quashed, subject ofcourse to modification as indicated

above.

23. Stay applications also stand disposed of.

(DINESH MEHTA),J 48, 53, 194 & 203-A.Arora/-

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