BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/08/2011 CORAM THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.(MD)No.3617 of 2006 & W.P.(MD)No.3626 of 2006 and WPMP(MD)No.3873 & 3882 of 2006 S.Balamurugan ... Petitioner in W.P.3617 of 2006 Josuva Jebakumar ... Petitioner in W.P.3626 of 2006 Vs. 1.The Director of Medical and Rural Health Services, Teynampet, D.M.S. Campus, Chennai-600 018. 2.The District T.B. Control Authority/Chairman, Represented by the District Collector, Madurai. 3.The Joint Director of Medical and Rural Health Services, Represented by Vice Chairman, Government Headquarters Hospital, Usilampatti, 4.The Member Secretary, District T.B. Centre Society, Madurai @ Usilampatti. ... Respondents
PRAYER in W.P.(MD)Nos.3616 & 3626 of 2006
Writ Petitions filed under
Article 226 of the Constitution of India praying to issue a Writ of
Certitiorarified Mandamus, to call for the records on the file of the 4th
respondent in his Ref.No.55/DTCS/MDU/2006, dated 16.02.2006 and quash the same
and direct the respondents to offer employment to the petitioner by extending
the period of employment as done for all other candidates selected and appointed
along with him with all monetary and service benefits.
!For Petitioner
in both WPs. … Mrs.J.Nisha Banu
^For Respondents
in both WPs…. Mr.D.Muruganandam
Addl. Government Pleader
:COMMON ORDER
The petitioners have approached this court with a prayer, for issuance of
a writ, in nature of certiorari, to quash the order, dated 16th February 2006,
vide which, the representations filed by the petitioners, for renewal of
contract was declined.
2.The petitioners, in both the writ petitions, were appointed as ‘Lab
Technicians’ on 24.08.2002, at the District DTP Dispensary, Madurai Corporation
and Government Primary Health Centre, T.Kallupatty, respectively, on contractual
basis. The contract was renewed on execution of fresh agreement for one year.
In view of the fact, that services of the petitioners were not found to be
satisfactory, their contract was not renewed any further.
3.The petitioners approached this court, by filing writ petition in
W.P.No.3387 of 2004 [S.Balamurugan] and W.P.No.3388 of 2004 [Josuva Jebakumar],
seeking regularization of their services. The writ petitions were dismissed, by
observing that the petitioners were appointed only on contractual basis, on
fixed salary for a fixed period. That when, an employment was given in a
particular scheme, the employee could not be said to have the right of
regularization in service, as and when the contractual period is over, in-spite
of the fact that the petitioners put in more than 180 days or 240 days of
service. The reliance in support of this finding was placed on the judgment of
the Honourable Supreme Court, in the case of Executive Engineer ZP Engg. Div. &
Anr. vs. Digambara Rao etc. [2004(7) Supreme 302].
4.The petitioners, being aggrieved by the order passed in the writ
petitions, filed writ appeals, which were also dismissed. It was also observed
that the contract was renewable on yearly basis, on good performance and mutual
agreement.
5.In-spite of the fact that, after the dismissal of the earlier writ
petitions and the writ appeals, there were no legal right with the petitioners
to continue on the job, or seek enforcement of contractual employment, by
invoking the writ jurisdiction of this court, as contractual employment can not
be specifically enforced.
6.The petitioners again filed W.P.Nos.4730 of 2005 and 4711 of 2005. This
court directed the respondents to dispose of the representations filed by the
petitioners. In pursuance to the order passed by this court, in writ Petition
Nos.4730 of 2005 and 4711 of 2005, the representations for renewal of contract
were rejected.
7.The petitioners again filed another Writ petition Nos.5771 of 2005
[Josuva Jebakumar] and W.P.No.5783 of 2005 [S.Balamurugan]. In those writ
petitions, this court again ordered, holding of fresh enquiry, but it was
observed that the order passed by this court, will not be treated to confer any
right to the petitioners for seeking extension of contract.
8.In pursuance of the order passed by this court, the impugned order has
been passed. The reasons given for non-renewal of contract, reads as under:-
i)LT Mrs.Balamurugan frequently absented himself from duty without any
intimation and if the duty pay was cut he used to quarrel with the Medical
Officer and give police intimation on the M.O. His behavour was irresponsible.
During JD’s inspection and STO’s visit, they pointed out his poor performance.
For this he gave legal notice to STO. He never used to be present during duty
time and in the habit of coming late to the work and in case if MO asked about
his behaviour, he threaten him by saying that he has sent legal notice to the
STO himself he his not bothered about anyone. Because of his behavour he was
frequently transferred from one place to another and given warning orally many
times. He was in the habit of giving police complaint and giving legal notice
to anyone who pointed out his mistake. By this he was giving trouble for smooth
administration.
ii)Mr.Josua Jebakumar also shown poor performance. It was pointed out
during WHO Consultant’s visit and also by the Medical Officer. Dr.Ismail
Fathima, when asked about the theft of the microscope he was shirking away his
responsibility by saying that he was not responsible for that and he was
answering the higher authority carelessly. Because of his negligence, his
contract was not renewed. More over when she was retiring on superannuation on
30.04.2005 these two LTs had given her a lawyer notice and publicly challenged
that they would not let her to retire peacefully.’
9.In the enquiry, the Enquiry Officer, reported that the appointment of
the petitioners was on the basis of guidelines and their, contractual
appointments were renewed for two years. It was, in the 3rd year, that their
performance was not found satisfactory and the behaviour of petitioners was not
also good, further they absented themselves without prior intimation, and
disturbed the functioning of the hospital. The petitioners were also guilty of
insubordination.
10.The Enquiry Officer also found that the petitioners were habitual
litigant and filed false complaint with the police. The Enquiry Officer, held
that non-renewal of the contract was fully justified. It was on the basis of the
enquiry conducted that the petitioners were not found fit for renewal of the
contract.
11.The learned counsel for the petitioners, vehemently contended that the
Enquiry Officer, has failed to notice that the petitioners were discriminated
with the other employees, who were similarly situated, as their contract was
renewed.
12.It is also the contention of the learned counsel for the petitioners,
that the Enquiry Officer did not consider the stand taken by the petitioners,
therefore, the findings recorded are based on conjuncture and surmises, and are
not supported by any documentary evidence.
13.On consideration, I find no force in the contentions raised by the
learned counsel for the petitioners.
14.This court recorded a positive finding that the petitioners were not
entitled to regularization of services, as their appointments was purely on
contractual basis, in terms of the contract.
15.The findings were confirmed in the writ appeals, thereby, finally
deciding that the petitioners had no legal right to continue in the employment.
16.The appointment of the petitioners, was held to be purely contractual,
which could not be specifically enforced in the court of law.
17.Even though, no reasons were required, to be recorded for not entering
into fresh contract, the contractual appointments is a bilateral contract
between two parties, and nobody can enforce the contract of a personal service,
as a remedy, in case of breach of contract or term thereof, can entitle the
claim of damages for breach of contract.
18.It was, in view of the orders passed by this court, the enquiry was
conducted, wherein it was revealed that the conduct of the petitioners was not
good, and that, they were guilty of absence from duty.
19.The enquiry was not in the nature of statutory enquiry to prove the
charges by way of positive evidence, as no legal right of the petitioners was
infringed. The Enquiry Officer was appointed to see, whether the claim of the
petitioners for appointment of contractual basis could be considered or not.
20.It cannot be said that the petitioners were discriminated, as it is for
the competent authority to select the person for appointment on contractual
basis, to carry out the scheme, for a specified period.
21.It cannot, therefore, be said that the impugned order is violative of
Article 14 and 16 of the Constitution of India.
22.No merit. “Dismissed”.
23.Consequently, connected Miscellaneous Petitions are closed. No costs.
er
To
1.The Director of Medical and Rural Health Services,
Teynampet,
D.M.S. Campus,
Chennai-600 018.
2.The District T.B. Control Authority/Chairman,
Represented by the District Collector,
Madurai.
3.The Joint Director of Medical and Rural Health Services,
Represented by Vice Chairman,
Government Headquarters Hospital,
Usilampatti,
4.The Member Secretary,
District T.B. Centre Society,
Madurai @ Usilampatti.
