Dr. Santosh Kumar Nagar S/O Shri ... vs State Of Rajasthan
2022 Latest Caselaw 47 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         D.B. Civil Special Appeal (Writ) No. 1551/2019
                                IN
             S. B. Civil Writ Petition No. 6571/2019
Dr. Santosh Kumar Nagar S/o Shri Durgalal Nagar, Aged About
40 Years, Resident Of 197-E, R K Puram, Kota.
                                                                   ----Appellant
                                    Versus
1.     State Of Rajasthan, Through Its Principal Secretary,
       Department Of Medical And Health, Government Of
       Rajasthan, Secretariat, Jaipur.
2.     The Mission Director, National Health Mission, Directorate
       Of Medical And Health Services, Government Of
       Rajasthan, Jaipur.
3.     The Director (PH), Directorate Of Medical And Health
       Services, Government Of Rajasthan, Jaipur.
4.     The Chief Medical And Health Officer, Kota.
                                                                ----Respondents

Connected With D.B. Special Appeal Writ No. 1499/2019 IN S. B. Civil Writ Petition No. 6679/2019 Dr. Manish Kumar Sharma S/o Sh. Suresh Chand Sharma, Aged About 32 Years, Resident Of 49, Pancholi Vihar, Hem Marg, Sodala, Jaipur, At Present- Q-127, Narayan Vihar, Jaipur.

----Appellant Versus

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

2. The Mission Director, National Health Mission, Directorate Of Medical And Health Services, Government Of Rajasthan, Jaipur.

3. The Director (PH), Directorate Of Medical And Health Services, Government Of Rajasthan, Jaipur.

4. State Nodal Officer (NPPCF), Directorate Medical And Health Services Department, C-Scheme, Jaipur.

5. The Chief Medical And Health Officer, Dausa.

                                                                ----Respondents


For Appellant(s)          :    Mr. Punit Singhvi
                               Mr. Ashish Sharma Upadhyay
For Respondent(s)         :    Mr. Harshal Tholia for
                               Mr. V. B. Sharma, AAG, through VC




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HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Order 04/01/2022

Heard.

The aforesaid two appeals are being decided by this common

order as common issues arise for consideration in both the cases.

Appellants-Dr. Santosh Kumar Nagar and Dr. Manish Kumar

Sharma were engaged on contractual basis in the National

Programme of Prevention and Control of Fluorosis (NPPCF) along

with many other persons. Their services, however, were

terminated in the year 2017. These two appellants and many

other doctors, who were continuing on contractual basis and

whose services were also terminated, challenged their respective

orders of termination. All the petitions including the petitions filed

by Dr. Santosh Kumar Nagar and Dr. Manish Kumar Sharma were

allowed vide common order dated 20.07.2018 passed by learned

Single Judge of this Court in batch of petitions. The operative part

of that order reads as below:-

"This Court finds that the order passed by the Principal Seat at Jodhpur will govern the case of the present petitioners and as such following the said judgment, the present petitions are disposed of in the following terms:-

The termination order dt. 3rd May, 2017, is quashed and set aside. The respondents are directed to undertake the exercise of filling the post on contract basis under the National Programme of Prevention and Control of Fluorosis (NPPCF) and if the candidates are available without relaxation, the recruitment may be continued, in accordance with law.

If there is deficiency of the candidates without relaxation, then the petitioners are required to be continued on Principal of first come last go and they are further allowed to continue to work as contractual

(3 of 6) [SAW-1551/2019]

employees to the extent of post for which there is non availability of qualified candidates without relaxation.

The respondents are at liberty to take appropriate action as per law against the petitioners, who are ultimately found to be involved in the case of fraud or cheating and proper enquiry or investigation is allowed to be undertaken by the Competent Authorities in respect of selections of the petitioners."

Subsequent to the order of the Court, the appellants were

reinstated on contractual basis upto 31.03.2019. The appellants

thereafter were again terminated from services on the ground that

their contractual period has come to an end on 31.3.2019. This

gave rise to the cause of action for filing of two writ petitions by

the appellants which came to be dismissed by learned Single

Judge, giving rise to these appeals.

The learned Single Judge dismissed the petitions filed by the

two appellants mainly on the ground that the petitioners being

contractual employee, have no right to claim continuance in

service beyond the contractual period of service and that the

petitioners have no case that principle of first come last go has

been violated.

Learned counsel appearing for the appellants argued that

when the writ petitions were earlier allowed, which bound both the

parties, it was clearly held that the appellants would be entitled to

continue until availability of qualified candidates without

relaxation. As this order was not challenged by the respondents,

they were bound by the judicial verdict and their contractual

appointment could not be brought to an end only on the ground

that in a particular year the contractual employment had to

continue till 31.03.2019 only. The other submission is that in any

case the order of termination does not say that no work is

(4 of 6) [SAW-1551/2019]

available and therefore their services were no longer required and

their services have been discontinued. Their submission is that the

principle of law which has been applied to dismiss the petitioner's

case could not be applied in the present case. The order passed by

this Court in earlier round of litigation on 20.07.2018 binds both

the parties and therefore the respondents were obliged to

continue the service of the appellants until availability of qualified

candidates as per the spirit of the order.

On the other hand, learned counsel for the respondents

supporting the order passed by learned Single Judge and also

relying upon the judgment of the Supreme Court in the case of

Vidyavardhaka Sangha & Anr. Vs. Y. D. Deshpande & Ors. along

with Vidyavardhaka Sangha & Anr. Vs. S. K. Joshi & Ors.:(2006)

12 SCC 482, submits that the appellants were only contractual

employees and they could not claim to continue in service beyond

the contractual period. Learned counsel for the respondents

further submits that the appellants were reinstated in the service

after the order was passed on specific condition that their

contractual period was upto 31.03.2019 only. This condition was

never challenged by them, therefore, now they cannot be heard

on this aspect that their services ought to have continued. The

other argument of learned counsel for the respondents is that out

of the appellants and other persons, who were appointed on

contractual basis, number of candidates in the matter of selection

played fraud and this Court had otherwise given liberty in earlier

order dated 20.07.2018 to the effect that appropriate action as

per law may be taken against those who are ultimately found to

be involved in the case of fraud or cheating on which proper

(5 of 6) [SAW-1551/2019]

enquiry and investigation is allowed to be undertaken by

Competent Authorities in respect of selections of the appellants.

We have heard learned counsel for the parties and in our

view these appeals deserve to be allowed only on the ground that

the termination of the appellants is contrary to and in violation of

the order, which has been passed by learned Single Judge of this

Court on 20.07.2018, it being a common judgment applicable to

the two appellants herein and many other doctors, who had been

terminated on similar ground. The operative part of the order has

already been reproduced hereinabove. This Court while allowing

the petitions by quashing the termination orders, clearly directed

the respondents to undertake the exercise for filing the post of

District Consultant (Fluorosis) under NPPCF with further stipulation

that if candidates are available without relaxation, recruitment

may be continued in accordance with law. This Court in

unequivocal terms clearly stated that if there is a deficiency of

candidates without relaxation, then the petitioners are required to

be continued on principle of first come last go and they are further

allowed to continue to work as contractual employees to the

extent of post for which there is non-availability of qualified

candidates without relaxation.

The aforesaid order is binding on both the parties and clearly

obliged the respondents to continue the appellants until

availability of qualified candidates without relaxation.

The order impugned by which the services of the appellants

have been terminated does not whisper anywhere that qualified

candidates without relaxation have become available.

It goes without saying that if there is no work at all, certainly

the appellants could not claim to continue in service as they have

(6 of 6) [SAW-1551/2019]

been engaged as contractual employees and have no right to hold

the post but in the termination order there is no stipulation that

the services of the appellants had to be discontinued after expiry

of period of contractual service as work is no longer required. That

was the eventuality in which the services of the petitioners could

be discontinued even if the qualified candidates without

relaxation, were not available.

The principles which have been applied by the learned Single

Judge and the judgment which has been relied by learned counsel

for the respondents, do not apply in the present case because in

the present case, parties are bound by the order dated

20.07.2018 passed in earlier round of litigation under which the

appellants have been held entitled to continue till qualified

candidates without relaxation are available. That eventuality

having not happened and there being nothing on record to hold

that the termination was because work is not at all available.

In our considered opinion the order of termination was

clearly in the teeth of the order passed earlier by this Court. We

are inclined to allow the appeals filed by the appellants with the

direction to quash termination orders impugned in the writ

petitions. The respondents are directed to reinstate the appellants

forthwith as contractual employees and continue their services in

accordance with law.

Both the appeals are accordingly allowed.

(MANOJ KUMAR VYAS),J (MANINDRA MOHAN SHRIVASTAVA),J

Pooja/Hemant/26-27

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