IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.14503 OF 2007 DR.PUSHPA RAI,W/O PRASHANT KUMAR ROY, R/O VILLAGE KAITHWALIA, WARD NO. 17, GOPALGANJ POLICE STATION, GOPALGANJ, DISTRICT GOPALGANJ. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE SECRETARY, HEALTH DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE EXECUTIVE DIRECTOR, STATE HEALTH COMMITTEE, PATNA. 4.THE STATE IMMUNIZATION OFFICER, BIHAR STATE HEALTH COMMITTEE, SEIKHPURA, PATNA. 5.THE DISTRICT MAGISTRATE, GOPALGANJ. 6.THE CIVIL SURGEON/THE MEMBER SECRETARY, DISTRICT HEALTH COMMITTEE, GOPALGANJ. 7.THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, MANJHAGARH, GOPALGANJ. ………………………RESPONDENTS. --------------- 03/ 05.12.2011 Heard counsel for the parties. The petitioner, a lady Doctor appointed on contractual basis for the period of 11 months by the District Health Society, Gopalganj has assailed the order of termination of her service dated 04.04.2007, on the ground that her tenure was prematurely terminated even without completion of the period of 11 months as originally stipulated in her order of appointment dated 19.2.2007 and that too on a wholly non est and non existent ground. Mr. Sudhir Singh, learned counsel 2 for the petitioner while assailing the impugned order of termination of service of the petitioner has submitted that the only allegation on which the petitioner’s service came to be terminated is that she did not perform a single sterilization operation during her tenure of one month seven days is itself illogical, inasmuch as, it was not the part of duty of the petitioner to perform such sterilization operation. He has further submitted that in view of the interim order of the show cause notice dated 01.03.2005 in Writ Petition (Civil) No(s) 209 of 2003) Rama Kant Rai & Anr vs Union of India Ors and its modification order passed on 26.07.2007, the petitioner in the absence of expert training given to her by the senior Doctors could not have been expected to perform such sterilization operation. He has further submitted that as a matter of fact there was complete lack of infrastructure for undertaking the sterilization operation by her at the place of her posting and as such when 3 there were six Doctors posted in the same dispensary, the petitioner could not have been singled out for not performing the sterilization operation. Learned counsel for the State on the other hand has submitted that it was the part of the service condition of every Doctor appointed by the District Health Society under the programme undertaken by the Government of Bihar in its resolution dated 02.08.2006, that a lady Doctor posted in such places have to perform the ordinary sterilization operation and in view of the fact that the petitioner had repeatedly flouted the order of her senior officers in carrying out such operation, the respondents had no alternative but to terminate the services of the petitioner after fulfilling the requirement of natural justice. In this context, he has referred to the wordings in the show cause notice given to the petitioner as also the stand taken in reply filed by the petitioner. In the considered opinion of this 4 Court, an order of termination passed in the case of petitioner has to be decided in the light of the show cause notice given to her and the answer furnished by her in her reply. The petitioner who was engaged by the Civil Surgeon cum Principal Secretary of the District Health Society, Gopalganj for a period of 11 months on contract had been admittedly directed by her controlling Authorities to perform ordinary sterilization operation in the family planning camps and the petitioner did not perform such duty whereafter a show cause notice was given to the petitioner on 01.04.2007 which reads as follows:- dk;kZy;%& izHkkjh fpfdRlk ink0] izk0Lok0 dsUnz] eka>k Kkikad 247] eka>k fnukad 1-4-07 izsf’kr %& MkW0 ¼Jherh½ iq’ik dqekjh fpfdRld izk0 Lok0 dsUnz] eka>k fo’k;%&i0 d0 vkijs”ku ugha djus ds lEcU/k esa Li’Vhdj.kA mijksDr fo’k;d dguk gS fd fnukad 19-3-07 dks jkT; izfrj{k.k ink0 fcgkj] iVuk vius fujh{k.k ds dze esa vkidks izR;sd eaxyokj dks i0 d0 vkijs”ku djus gsrq funsf”kr fd;s Fks ysfdu vkius vkt rd ,d Hkh vkijs”ku ugha dh gSA vr% i= izkfIr ds lkFk gh vki viuk Li’Vhdj.k nsus dk d’V djs rkfd dy fnukad 2-4-07 dks 12-00 cts fnu rd vkidk Li’Vhdj.k jk; izfrj{k.k ink0 fcgkj iVuk dks QSDl Hkstk tk ldsA bls vfr vko”;d le>sA g0@& vLi’V 1-4-07 iz0 fpfdRlk ink0 izk0 Lok0 dsUnz eka>k xksikyxatA 5 From the reading of the aforementioned show cause notice, it would become clear that it was in course of inspection by the State Authorities, it was found that the petitioner had not performed any family planning operation whereafter she was asked to explain the reason for not doing so. In reply thereof the petitioner had submitted her explanation on 01.04.2007 in which she itself had clearly admitted to have received orders of her superior as with regard to carrying out the operations in the family planning camps. Her only defence was that she was an ordinary Doctor (Samanya Chikitsak) and not a specialist Doctor (Vishist Chikitsak) and in absence of experience of carrying out such operation she was unable to perform her duty as with regard to sterilization operations. The explanation of the petitioner as contained in annexure-5 reading as follows:- lsok esa] izHkkjh fpfdRlk inkf/kdkjh] izk0 Lok0 dsUnz eka>k fo’k;% i0d0 vkijs”ku ugha djus ds lEcU/k esaA izlax% Hkonh; Kkikad 247] fnukad 1-4-07 egk”k;] 6 mijksDr izlaxk/khu i= ds lanHkZ esa dguk gS fd fnukad 19-3- 2007 dks jkT; izfrj{k.k ink0 fcgkj iVuk }kjk eq>s ekSf[kd :i ls i0d0 vkijs”ku gsrq funsZ”k izkIr gqvk FkkA ysfdu Kkr gks fd eSa ,d lkekU; fpfdRld gw¡ fo”ks’kK ugha gw¡] bl dk;Z dk iwoZ dk dksbZ vuqHko eq>s ugha gSA vr% Jheku~ ls dguk gS fd i0d0 vkijs”ku djus esa eSa vleFkZ gw¡A fo”oklHkktu g0@& ¼MkW0 iq’ik dqekjh½ fpfdRld] izk0Lok0 dsUnz] eka>k would leave nothing for speculation that her only defence was her own disability to perform such operation and her only possible explanation in this regard was that she was not a specialist Doctor. A question therefore, would arise whether a person holding degree of M.B.B.S is competent to perform the ordinary family planning operation? The course of M.B.B.S is a five and a half years integrated course which is being followed by one year compulsory house job and internship programme. The Indian Medical Association under the auspices of Indian Medical Council therefore, issues a certificate authorizing such persons to be entitled for carrying out their own practice and that too after subscribing under an oath. In the present case, if the 7 petitioner having completed the M.B.B.S degree and one year house job and internship programme had declared herself to be unable to perform such ordinary family planning operation that would only show her incompetence to perform the duty of a Medical Officer working under the State Government and its programme undertaken by the District Health Society. The submission of Mr. Singh that there was an order of the Apex Court which had given a saving grace to the petitioner will also be of no avail, inasmuch as, the interim order dated 26.07.2007 produced before this Court and also the earlier interim order dated 01.03.2005 would not throw light as with regard to the programme undertaken by the Bihar Health Society. Moreover, at least from the earlier show cause reply filed by the petitioner it becomes clear that the petitioner had never placed reliance on the interim order of Supreme Court and had only stated that she was not a specialist Doctor and thus not expected to carry out 8 such operation. It is well settled that a new plea which was never raised by a person before the authority in reply to the show cause notice cannot be raised for the purposes of assailing the resultant final order of the authority can not be pressed for the first time in the writ petition. The petitioner who has passed her M.B.B.S examination in the year 1994 from Patna Medical College had already experience of 13 years before being appointed in 2007 on contractual basis for 11 months only. The submission of Mr. Singh, that in 13 years after passing out the M.B.B.S examination, the petitioner on account of being unemployed could acquire no experience would only go to show that whatever expertise was possessed by her by way of doing M.B.B.S followed by one year compulsory house job and internship programme was even sought to be ignored for being engaged for performing the duty of a Doctor in the District Health Society. India is a poor country and it is 9 not possible that in every village there can be specialist Doctor of each and every discipline of the filed of medicine and surgery. Large number of people have to depend on Doctors with basic qualification. In this case the State Government has undertaken a programme under Health Society Scheme envisaging engagement of Doctors for the purposes of providing medical facilities to the masses at their door step and it can allow the Doctors to deny the services and still continue in employment. The State Government is not supposed to give charity to the such doctors who do not want to perform their duty. In fact the earlier experience with regard to six persons being of same health centre as submitted by the learned counsel also does not impress this Court as the petitioner in her own show cause reply has stated that she was unable to perform her duty to carry out the ordinary sterilization operation because she was not trained and adept and she was not a specialist. The 10 ordinary sterilization operation in fact would not require service of any specialist and therefore, this Court would not find any error in the order terminating the services of the petitioner because she has herself expressed her disability to perform the duty assigned to her. There is yet another facet which would disentitle the petitioner to get relief in this writ application. The petitioner had a fixed tenure appointment of eleven months which began on 19.2.2007 and had its life only till 18.1.2008. Today after almost four years of expiry of tenure, this Court cannot issue a writ of mandamus for reinstatement of the petitioner back in service which would be contrary to the terms and conditions of appointment of the petitioner. Infact on completion of tenure period this writ application has become infructuous far it relates to her reinstatement in service. This Court however would in the facts and circumstances of this case 11 clarify that the impugned order of termination of service of the petitioner will not attach any stigma nor would disqualify her from getting any appointment in future inasmuch as the engagement of the petitioner under Bihar Health Society was purely contractual limited to a period of eleven months. With the aforesaid observations this writ application is dismissed. Ranjan (Mihir Kumar Jha, J.)