SPA/185/2021
2021 Latest Caselaw 4691 UK

 IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
 THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH
                      CHAUHAN

                          AND

           THE HON'BLE SRI JUSTICE N.S. DHANIK

             SPECIAL APPEAL NO. 185 OF 2021

               23RD NOVEMBER, 2021
Between:

Kuldeep Singh                              ...Appellant.
and
State of Uttarakhand and others.
                                       ...Respondents

SPECIAL APPEAL NO. 186 OF 2021 (2)

Between:

Surendra Kumar Gond ...Appellant.

and State of Uttarakhand and others.

...Respondents SPECIAL APPEAL NO. 187 OF 2021 (3)

Between:

Ajay Raturi                                ...Appellant.
and
State of Uttarakhand and others.
                                       ...Respondents
           SPECIAL APPEAL NO. 188 OF 2021 (4)

Between:

Aawed Khyali                               ...Appellant.
and
State of Uttarakhand and others.
                                       ...Respondents
           SPECIAL APPEAL NO. 190 OF 2021 (5)

Between:

Harish Lal                                 ...Appellant.
and
State of Uttarakhand and others.
                                       ...Respondents
           SPECIAL APPEAL NO. 191 OF 2021 (6)

Between:


    Sushila Devi                                         ...Appellant.
   and
   State of Uttarakhand and others.
                                                    ...Respondents
                 SPECIAL APPEAL NO. 192 OF 2021 (7)

   Between:

   Sunil Kumar                                          ...Appellant.
   and
   State of Uttarakhand and others.
                                                    ...Respondents
                 SPECIAL APPEAL NO. 193 OF 2021 (8)

   Between:

   Lakhan Singh                                         ...Appellant.
   and
   State of Uttarakhand and others.
                                                    ...Respondents

   Counsel for the appellants   :Mr.    Kartikey    Hari
                                Gupta with Ms. Irum
                                Zeba, learned counsel.
   Counsel for the respondents: Mr.    S.S.    Chauhan,
                                learned          Deputy
                                Advocate General with
                                Mr.    Vikas    Pandey,
                                learned        Standing
                                Counsel for the State of
                                Uttarakhand..


   The Court made the following:

JUDGMENT : (per Hon'ble the Chief Justice Sri Raghvendra Singh Chauhan)

All these appeals arise out of a common

order, dated 26.03.2021, passed by the learned Single

Judge in Writ Petition (S/S) No. 473 of 2021 and batch

of cases, whereby the learned Single Judge has

dismissed the writ petitions filed by the appellant-writ

petitioners.

2. For the sake of convenience, the facts are

taken out from Special Appeal No. 185 of 2021.

3. Briefly, the facts of the case are that the

petitioners were appointed on daily wages on the post

of Ambulance Cleaner / Helper with the Medical Health

and Family Welfare Department. The petitioners

discharged their services from 05.09.2013 till

31.03.2021. On 17.06.2020, the respondent-

Department entered into a public private partnership

contract with Shri Guru Ram Rai Institute of Medical

and Health Sciences (Shri Mahant Indresh Hospital)

("the Institute", for short), in order to improve and

enhance the health facilities. According to the contract

entered between the Institute and the Government,

the Government had agreed that "it shall or shall

cause all persons hired by the State Government at

the Healthcare facilities to be transferred to other

facilities owned, operated and maintained by the State

Government For, the avoidance of doubt, it is clarified

that such staff shall include all medical, paramedical

and Class-IV employees, whether they have been hired

on employment or contract basis." In pursuance of the

said MOU, on 09.11.2020, the Principal Medical

Superintendent, District Hospital, Pauri Garhwal,

respondent No. 5, wrote a letter to the Director

General for issuance of guidelines with regard to the

daily wage or contract basis employees, who were

under the employment of the District Hospital, Pauri.

According to the petitioners, on 23.11.2020, the

Transition Management Committee decided to re-

deploy the government medical staff / paramedical

support and contractual staff with the local authority.

These employees could later be transferred to other

facilities lacking in manpower. By letter dated

16.01.2021, even the Chief Medical Officer, Pauri

Garhwal, the respondent No. 4, sent a proposal for

continuing the services of the petitioners till March,

2021. On 08.02.2021, the Project Director,

Uttarakhand Health Systems Development Project also

wrote to the Director General, Medical Health for

seeking directions for adjustment of the contractual

employees, such as the petitioners. Moreover,

according to the petitioners, on 01.02.2021, District

Hospital, Pauri Garhwal was taken over by the

Institute. Although the petitioners were entitled to be

transferred or adjusted with the other Health facilities

functioning in the State, on 06.02.2021, services of

the petitioners were terminated by the Principal

Medical Superintendent, District Hospital, District Pauri

Garhwal, the respondent No. 5. Therefore, the

petitioners filed their respective writ petitions before

the learned Single Judge. By order dated 26.03.2021,

the learned Single Judge has dismissed their petitions.

Hence, these appeals before this Court.

4. Ever since these appeals were posted

before this Court from 12.07.2021 till today, this Court

has tried to ensure that the petitioners could be

adjusted in government hospitals, which are

functioning throughout the State. For this purpose,

this Court had directed Mr. Vikas Pandey, the learned

Standing Counsel for the State of Uttarakhand, to seek

instructions from the Government, whether these

persons can be adjusted, or not? For according to this

Court, once an MOU was signed by the State with the

Institute, it was the bounden duty of the State to

adhere to the MOU. The State cannot be permitted to

hide behind the fig leaf of the privity of contract and to

wriggle out its contractual obligations, ostensibly on

the ground that no privity of contract exists between

the petitioners and the State Government.

5. According to Mr. S.S. Chauhan, the learned

Deputy Advocate General for the State, the petitioners

could be employed though an outsourcing agency,

such as Uttarakhand Purv Sainik Kalyan Nigam Limited

(for short 'UPNL'). This Court was informed on

08.09.2021 that, in fact, the petitioners are registered

with UPNL. Therefore, this Court had directed the

learned counsel for the State to find out if the

petitioners could can be employed through UPNL, and

be adjusted in any of the government hospitals

functioning in the State.

6. By order dated 22.11.2021, this Court had

directed the Director General, Medical Health and

Family Welfare, the Chief Medical Officer, District

Pauri-Garhwal and the Principal Medical

Superintendent, District Hospital, Pauri-Garhwal to be

present before this Court through video-conferencing.

Consequently, today Dr. Tripti Bahuguna, the Director

General, Medical Health and Family Welfare, Dr.

Praveen Kumar, the Chief Medical Officer, District

Pauri-Garhwal and Dr. Ramesh Singh Rana, the

Principal Medical Superintendent, District Hospital,

Pauri-Garhwal are present before this Court.

7. Dr. Tripti Bahuguna informs this Court that

presently there are no vacancies in Group 'D' cadre in

any of the government hospitals. In fact, according to

her, by letter dated 23.09.2021, the Department has

sent a proposal to the State Government for creating

1701 Group-D posts. However, the said letter has not

elicited any response from the Government. Even Dr.

Praveen Kumar, the Chief Medical Officer, informs this

Court that by letter dated 07.07.2021, he had

requested for permission to fill-up forty-six vacancies.

However, only thirty-two vacancies could be filled up

due to the permission granted by the Government.

Therefore, fourteen posts could not be filled-up.

8. Since this Court needed certain

clarifications from the Secretary, Medical Health, this

Court directed the Secretary, Medical Health, to join

this Court through video-conferencing. Therefore, in

the post-lunch session, Mr. Amit Negi, the Secretary,

Medical Health, appeared before this Court through

video-conferencing. Even Mr. Amit Negi states that

due to the Covid-19 pandemic, a large number of

Group-D posts were created. Presently, all the posts

are filled-up; thus, presently, there are no vacancies.

Hence, the appellants cannot be adjusted against any

vacancy. Moreover, due to the financial crisis being

faced by the State Government, the possibility of

creating new posts is rather bleak.

9. Considering the position being taken by the

Secretary, Medical Health and other Government

officers, it is not possible for this Court to direct the

respondents to adjust the appellants against any

vacant posts, for there are none at the moment.

10. For the reasons stated above, this Court

does not find any merit in the present appeals.

Therefore, all these appeals are hereby dismissed.

11. In sequel thereto, pending application, if

any, also stands disposed of accordingly.

12. No order as to costs.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ N.S. Dhanik, J.

Dt: 23rd November, 2021 Rathour