IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 35075 of 2007(A) ----------------------------------------- PETITIONER: -------------------- DR.SIVANANDAN, AGED 63 YEARS, S/O.LATE RAMAN NANOO (MR.03487-K, MEDICAL SPECIALIST, MAJOR, ARMY MEDICAL CORPS (RETD) RESIDING AT TRA 46, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.T.GOPALAKRISHNAN RESPONDENTS: ------------------------- 1. GOVERNMENT OF INDIA REPRESENTED BY THE SECRETARY OF DEFENCE, NEW DELHI 01. 2. STATION COMMANDER, PANGODE, MILITARY CANTONMENT, PANGODE, THIRUVANANTHAPURAM-06. 3. DR.M.S.VARGHESE, M.D., C/O.S.K.HOSPITAL PANGODE, THIRUVANANTHAPURAM 06. BY ADV.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35075/2007 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: A TRUE EXTRACT OF THE PROCEDURE FOR CONTRACTUAL EMPLOYMENT OF STAFF FOR ECHS POLY CLINIC ISSUED BY THE 1ST RESPONDENT VIDE LETTER NO.24(6)/03/US (WE)/D (RES) DTD. 22/09/03. EXT.P2: LETTER CONTAINING PROCEDURE FOR CONTRACTUAL EMPLOYMENT OF STAFF FOR ECHS POLICLINIC ISSUED BY THE CENTRAL ORGANIZATION ECHS NO.B/49760/AG/ ECHS ® DTD. 8TH FEB.2005. EXT.P3: COPY OF THE AGREEMENT DTD. 17/10/05 BETWEEN THE PETITIONER AND THE 2ND RESPONDENT. EXT.P4: COPY OF THE REPLY RECEIVED FROM THE H1 ATNK & K AREA DTD. 5TH MAY 2007. EXT.P5: COPY OF THE REPRESENTATION DTD.1/10/2007 ADDRESSED TO THE HON.DEFENCE MINISTER OF INDIA. EXT.P6: COPY OF THE CERTIFICATE DTD. 28/06/96 ISSUED BY THE ARMY HEADQUARTERS. EXT.P7: COPY OF THE CERTIFICATE DTD. 16/04/2008 ISSUED BY SREE CHITHIRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES & TECHNOLOGY, THIRUVANANTHAPURAM. EXT.P8: COPY OF LETTER DTD. 6/05/2005 ISSUED BY THE AIR COMMODOR P.J.VINCENT VSM, PRINCIPAL MEDICAL OFFICER, HQ SOUTHERN AIR COMMAND, IAF, AKKULAM, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE MEDICAL CERTIFICATE ISSUED BY SREE CHITHIRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. EXT.R2(B): COPY OF THE REPLY FORWARDED TO ADVOCATE K.KUSUMAM. /TRUE COPY/ P.S.TO JUDGE Kss V. GIRI, J. ------------------------------- WP(C).NO. 35075 of 2007 --------------------------------- 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 WPC.35075 /2007 2 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 WPC.35075 /2007 3 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 WPC.35075 /2007 4 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 WPC.35075 /2007 5 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 WPC.35075 /2007 6 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 WPC.35075 /2007 7 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 WPC.35075 /2007 8 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/