IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35075 of 2007(A)
1. DR.SIVANANDAN, AGED 63 YEARS,
... Petitioner
Vs
1. GOVERNMENT OF INDIA REPRESENTED BY THE
... Respondent
2. STATION COMMANDER, PANGODE, MILITARY
3. DR.M.S.VARGHESE, M.D., C/O.S.K.HOSPITAL
For Petitioner :SRI.K.V.SADANANDA PRABHU
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice V.GIRI
Dated :09/07/2008
O R D E R
V. GIRI, J.
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WP(C).NO. 35075 of 2007
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Dated this the 9th day of July, 2008.
JUDGMENT
The petitioner, a Major in the Army Medical Corps was
invalidated out of service due to illness attributable to his
military service. He was selected to the post of Medical
Specialist in the Poly Clinic run by the Station Commander at
Pangode. Mode of selection to the post of Medical Specialist in
the Ex-servicemen Contributory Health Service Scheme is
provided in Ext.P1. There is a reservation in favour of ex-
servicemen in the case of Medical Officers. 60% of the
vacancies are reserved for ex-servicemen. Clause 5 of Ext.P1
states that advertisements inviting applications for employment
under the ECHS for medical, dental and specialist officers and
officers in charge of the Poly Clinic will be placed in the National
newspapers. Applications are to be submitted by the candidates
to the Station Head Quarters. The procedure for selection of
candidates is provided under clause 7. Clause 8 provides the
conditions for contractual employment. Clause 8(d) deals with
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the duration of employment which reads as follows :-
” Duration of employment: The employment of
the staff will be entirely contractual in nature
and will be normally for a period of two years at
the maximum, subject to review of their
conduct and performance after eleven months.”
2. Ext.P2 is a communication which is issued by the
Central Organisation ECHS, Adjutant General’s Branch, Army
Head Quarters and it also lays down the procedure for
contractual employment of staff for ECHS Poly Clinic. The
employment of staff was entirely contractual in nature and is
likely to be for a maximum of two years subject to review of their
conduct and performance after 11 months. As per clause 4 every
employee should be given break from employment for atleast
one day after every 11 months of service.
3. The petitioner was originally engaged as Medical
Specialist in the Pangode Poly Clinic on 16.11.2004 on a
contractual basis and the period of agreement was later extended
as per Ext.P3. The appointment was purely contractual and
temporary in nature and the agreement was for a period of 11
months from 17.10.2005. It was open to the parties to renew
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the agreement on the same terms and conditions. As per clause
7 of Ext.P3 he is prevented from working in any other hospital,
health service or organisation during the period of contractual
employment with ECHS.
4. The petitioner completed his term under Ext.P3 and
according to him, he sought for an extension of the term but
without considering his claim for extension, the third respondent
was appointed. Apparently the petitioner had complained
about this before the Head Quarters but his complaint was
rejected under Ext.P4. The petitioner had again represented
before the Minister for Defence. When the same was rejected,
he has approached this court. The petitioner has challenged the
engagement of the third respondent as such on several grounds.
There is also a specific allegation that the third respondent is an
employee working in a Civil Multi Speciality Hospital by name
S.K.Hospital just a kilometer away from Pangode. The petitioner
submits that the contract with the third respondent obviously
would contain a clause similar to para 7 of Ext.P3 preventing
private employment but nevertheless the third respondent has
been appointed. The petitioner therefore prays for a direction to
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terminate the appointment of the third respondent and also for a
direction to consider his request for extension in service.
5. A counter affidavit has been filed by the second
respondent on behalf of respondent 1 and 3 as well. I only find
a bald statement in the counter affidavit that the third
respondent was selected by conforming to the selection
procedure as specified by the Government of India, Ministry of
Defence Policy on the subject and is legally in order. There is a
further statement that on expiry of the petitioner’s contractual
period his services have been dispensed with. In para 5 of the
counter affidavit there is a contention that the petitioner was
discharged from the Army Medical Corps due to Parkinsons’s
disease with 70% disability and that the petitioner was unable to
cope with the work load and also maintains poor inter personal
relationship with his colleagues. The petitioner has filed a reply
affidavit specifically controverting this aspect.
6. I heard learned counsel for the petitioner Sri. Sadananda
Prabhu and the learned Assistant Solicitor General
Sri.P.Parameswaran Nair. Sri. Sadananda Prabhu contends that
under Exts.P1 and P2, subject to his willingness he should have
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been considered for an extension of the period of contractual
service. The nature of the service to be rendered as per Ext.P1
as evidenced by Ext.P3 is contractual. The period of contract is 11
months. There is a clause in Ext.P1 which says that the
maximum period of contractual service is two years. But is is
open to the parties to mutually agree for an extension, even after
completion of the two tenures of 11 months each, with a break of
one day in service. But this enabling provision cannot be
considered as conferring a right on the petitioner to be
necessarily considered for extension after completing two tenures
of 11 months each.
7. If a person who continues in service on contractual basis
has not been granted extension, then the authorities are bound
to advertise the post in terms of clause 5 of Ext.P3. In such
circumstances the person who was already engaged will not be
disabled from being considered again. If that be so, if the
respondents were not willing for an extension of the terms under
Ext.P3, the post should have been advertised with liberty to the
petitioner to apply for the same like any other person who is
eligible to respond to such a notification. That has not been
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done in this case. To the specific assertion by the petitioner that
the third respondent is appointed without any procedure followed,
the bald statement in the counter affidavit that a proper
procedure has been followed does not seem to be sufficient.
Another aspect which merits mention is that the second
respondent has purported to file his counter affidavit on behalf of
the third respondent also. Where the engagement of the third
respondent is challenged and there are allegations of malafides
and there is a specific allegation that the third respondent is not
qualified to be appointed, it was necessary for the third
respondent to file a counter affidavit dealing with the said
allegation. That has not been done. A specific allegation by the
petitioner in ground (D) in the writ petition imputing
disqualification against the third respondent remains
uncontroverted in the counter affidavit.
8. There is yet another aspect which attributes
disqualification in so far as the third respondent is concerned.
Apparently the post of Medial Specialist in the ECH Poly Clinic is
one reserved for ex-serviceman in accordance with the
prescription under Ext.P2. The specific case of the petitioner is
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that the third respondent is a civilian and this aspect has not
been controverted in the counter affidavit filed by the
respondents. It is made clear that as long as the prescription
with regard to the reservation of post in Ext.P1 remains in tact,
then the post of Medical Specialist in ECHS shall be treated as
one reserved for ex-serviceman. This aspect shall be made clear
in the advertisement for the post as well.
For all these reasons the writ petition is allowed in
part. It is declared that the engagement of the third respondent
as Medical Specialist in the ECHS at Pangode is illegal.
Respondents 1 and 2 are directed to take steps to terminate the
appointment of the third respondent, within one month from the
date of receipt of a copy of this judgment. But in the meanwhile,
they shall advertise the post of Medical Specialist in ECHS Poly
Clinic in Pangode in the manner provided in clause (5) of Ext.P1.
Before advertising the post the first respondent shall decide
whether the vacancy of Medical Specialist in Pangode is one
eligible to be reserved for Ex-serviceman. The petitioner shall
be entitled to apply in response to the said notification and the
petitioner shall be considered by the selection committee subject
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to his eligibility in that regard. The entire process may be
completed within a period of two months six weeks from the date
of receipt of a copy of this judgment.
V. GIRI, JUDGE.
Pmn/