High Court Madhya Pradesh High Court

Lt. Col (Retd.) Satyendra Kumar … vs Secretary Union Of India on 12 November, 2010

Madhya Pradesh High Court
Lt. Col (Retd.) Satyendra Kumar … vs Secretary Union Of India on 12 November, 2010
         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
2 W.P. NO. 674/2010

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
3 W.P. NO. 674/2010

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.”

5 W.P. NO. 674/2010

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