HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Petition No.674/2010)
Lt. Col. (Retd.) Satyendra Kumar Dhoraliya
Vs.
Union of India and others
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PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV
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Counsel for Petitioner : Shri K.K. Trivedi
Advocate, with Shri A.P.
Singh, Advocate
Counsel for respondents 1-4 : Smt. Kanak Gaharwar,
Advocate.
Counsel for respondent No. 5 : Shri V. Bhide, Advocate.
ORDER
(12.11.2010)
PER SANJAY YADAV, J
Govt. of India, Ministry of Defence to cater for Medicare of all
Ex-Serviceman in receipt of pension including disability pension and
family pensioners, as also dependants to include wife/husband,
sanctioned a health care scheme, viz., Ex-Servicemen Contributory
Health Scheme (hereafter referred as Scheme) vide circular No. 22
(1)/01/US(WE)/D (Res) dated 30.12.2002.
2. The Scheme being contributory provides that every service
personnel will compulsorily become a member by contributing
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his/her share and is applicable for life time. To cater the need for
Medicare to the Ex-servicemen the scheme provides for establishing
new polyclinics and Augmented Armed Forces Clinics at 227
stations spread across the country.
3. To meet out the requirement of manpower to man these new
polyclinics and Augmented Armed Forces Clinics, procedure for
contractual employment of staffs was laid down vide Govt. of India,
Ministry of Defence letter No. 24 (6)/03/US(WE)/D(Res) dt.
22.9.2003, authorizing General Officer Commanding of an area or
equivalent to grant sanction. The preference for contractual
appointment, as per the scheme, is to be given to Ex-servicemen for
all employment. In the case at hand since the appointment of
Officer-in-Charge, Polyclinics is in question, the deliberation is
confined to the same. The said post as per the procedure is cent
percent reserved in favour of Ex-servicemen.
4. Petitioner, a retired ex-serviceman, having retired on attaining
the age of Superannuation, w.e.f. 25.11.2003, was appointed as
Officer-in-Charge ECHS Polyclinics, Jabalpur on contract basis on
15.4.2004 for a period of one year. The contractual appointment, as
per the material on record, was extended for five times till
19.1.2010; thereafter, no extension was granted. And the petitioner
vide letter dated 13.1.2010 was informed that his services were no
longer required after expiry of contractual agreement on 19.1.2010
as Officer-in-Charge ECHS Polyclinic, Jabalpur. That, by another
letter dated 13.1.2010, the respondent No. 5 who retired from
service on 31.8.2009 was appointed as Officer Incharge for ECHS
Polyclinic Jabalpur on contractual basis for twelve months. The
appointment of respondent No. 5, as apparent from the letter dated
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13.1.2010, is on the basis of the Walk-in-Interview held on
29.4.2009.
5. The petitioner who is aggrieved of his non-continuation as the
Officer-in-Charge, ECHS Polyclinic and the appointment of
Respondent No. 5 as such, has preferred this petition seeking
quashment of appointment of respondent No. 5 and the directions to
respondents to allow the petitioner to work as OIC ECHS, Polyclinic,
Jabalpur with all consequential benefits.
6. Contentions put-forth by learned counsel for the petitioner is
that the respondents have arbitrarily discarded the petitioner for
appointment as OIC undermining his past performance of five
terms. It is also contended that, the respondent No. 5 has been
favoured by respondent Nos. 3 and 4. The petitioner further
contends that the respondent No. 5 when he was interviewed on
29.4.2009 was not eligible for appointment as he was in service and
not an ex-serviceman. It is urged that, the respondent No. 5,
though ineligible was favoured for appointment. Learned counsel for
the petitioner to bring home his submission referred to various
provisions as contained in the scheme as also the term of contract.
7. The respondent Nos. 1 to 4 on their turn counter the
allegation and assertion that ineligible person has been favoured
with the appointment. It is contended that, petitioner’s extension of
contractual appointment vide agreement dated 20.1.2009 was for a
period of one year which expired on 19.1.2010 and since no
extension was granted, no right accrues in favour of the petitioner
for continuation or renewal of appointment.
8. In respect of the appointment of respondent No. 5, it is
contended that, Army Circular AO 61/84 empowers the Regular
Officers of the army, if they so wish, apply for Civil appointments
4 W.P. NO. 674/2010
within one year of the date of their compulsory retirement. It is
urged that the respondent No. 5 retired from service on 31.8.2009
and, therefore, it was within his right to seek appointment as officer-
in-charge, ECHS, Polyclinic, Jabalpur on 29.4.2009. It is contended
that, no illegality has been committed in appointing respondent No.
5 as OIC, ECHS, Polyclinic, Jabalpur.
9. The respondents No. 1 to 4 in their reply though have also
pleaded that, there has been complaint against petitioner’s working
as OIC; however, since except the complaints no other materials are
brought on record as to how the authorities have adjudged the
complaint and there is no premature termination of the contractual
appointment which in fact has came to an end after its expiry on
19.1.2010, and the letter dated 13.1.2010 also does not reflect that
non-extension of the contract appointment is because of the
complaints, no credence is given to the stand taken by the
respondents regarding complaint against the petitioner. However,
the non-consideration of the complaints, in other words ignoring the
complaints ipso facto will not crystallize the right to reappointment
as OIC ECHS Polyclinic in favour of the petitioner. And though the
scheme stipulates that, the “Contractual employment at ECHS
Polyclinic will be for a period up to superannuation (age of
superannuation as stipulated in the circular B/49760/AG/ECHS(R)
dt. 7.3.2006 Annexure P-3 is 65 years) on renewal after every eleven
months based on the review of conduct of performance of
contractual employee. Therefore, when an individual’s performance
is satisfactory and he has adequate residual age for the specific post
he is holding; no wasteful expenditure will be incurred in advertising
fresh selection nor effort put in by convening a selection board.”
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10. However, the petitioner who categorically agreed vide
agreement dated 20.1.2009 that “the Engaged Person declares any
(sic and) acknowledge that, this agreement does not amount to
employment with ECHS or the Army, Navy, Air Force or Govt. of
India nor confer any right on the Engaged person nor any
representation or obligation on ECHS or the Army, Navy, Air Force
or Govt. of India as to possibility or performance in employment or
any further employment in ECHS or elsewhere at any time in future”
(clause 14), cannot as a matter of right seek direction to respondent
to allow the petitioner to work as OIC ECHS Polyclinic, Jabalpur.
11. The issue regarding appointment of respondent No. 5, who
admittedly, retired from service on 31.8.2009 and applied as per AO
61/84 (Annexure R/14) which gave right to Regular Officer to apply
for civil appointments within one year of the date of their
compulsory retirement was within his right to have applied for
appointment as OIC ECHS Polyclinic, Jabalpur. And since
respondent No. 5 was appointed on 13.1.2010, i.e., after his
retirement, the appointment of respondent No. 5 cannot be faulted
with.
12. In the result petition fails and is hereby dismissed. However,
no costs.
(Sanjay Yadav)
JUDGE
VT