Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Punjab-Haryana High Court
Som Dutt vs Union Of India And Others on 24 March, 2021CWP No.7378 of 2020(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.7378 of 2020(O&M)
Date of Decision: 24.03.2021
Som Dutt
…Petitioner
Versus
Union of India and others
…Respondents
CORAM: HON’BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Abhishek Sethi, Advocate
for the petitioner.
Mr. Rohit Verma, Advocate,
for respondent no.1 to 4.
ANIL KSHETARPAL, J.
The writ petitioner, who has remained employed on contract
basis upto 06.05.2020 as a driver under the Ex-Servicemen Contributory
Health Scheme (hereinafter referred to as ‘the ECHS Scheme’), has filed this
writ petition claiming the following substantive reliefs:-
“i). a writ in the nature of Mandamus directing Respondent
No. 1 to consider framing a law to establish, regulate
and to provide for quality health care to Ex-
Servicemen, Pensioners and their dependants replacing
the existing Employees Contributory Health Scheme
(ECHS) by using power bestowed upon it under Article
246 of the Constitution of India; as the power to make
laws governing the Naval, military, air forces and any
other armed forces of the Union falls in the Union List
(List-l) as contained in the 7th Schedule; the same been
1 of 15
::: Downloaded on – 16-01-2022 22:21:12 :::
CWP No.7378 of 2020(O&M) -2-
necessary and overdue as the existing Employees
Contributory Health Scheme (ECHS) is functioning on
the basis of a handful of letters issued by the Govt. of
India, Ministry of Defense, which are being changed
very frequently on the whims and fences of the
concerned officials of the Central Organization,
ECHS/Ministry of Defense;
ii). a writ in the nature of Certiorari quashing
advertisement (Annexure P-4) which has been issued in
violation/ contravention of the judgment of this Hon’ble
High Court (Annexure P-9);
iii). a Writ in the nature of Mandamus directing the
respondents to continue with the spotless services of the
petitioner as Driver at ECHS Polyclinic, Mohali,
Punjab by way of re-engaging him forthwith (in
compliance with the ratio of the judgment of this
Hon’ble High Court; P-9) and not to replace the
petitioner with another contractual employee;
iv). a writ in the nature of Mandamus directing the
respondents to not advertise the post of Driver at ECHS
Polyclinic, Mohali, Punjab during the pendency of the
Instant Writ Petition;
v). an interim direction to the respondents to re-engage the
petitioner as Driver at ECHS Polyclinic, Mohali,
Punjab in compliance with the ratio of the judgment of
this Hon’ble High Court; P-9;”
A brief introduction to the scheme under which the petitioners
have been appointed is necessary. Previously, the ex-servicemen and their
dependents were being provided health care facilities through the existing
2 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -3-
network of military hospitals of the Armed Forces. However, keeping in
view the large number of ex-servicemen and their dependents and the huge
expenditure involved in providing such health care facilities through
military hospitals, a decision was taken to float a separate contributory
scheme, which will be run by the ex-servicemen themselves under the
overall administrative control of the concerned Station Commander, vide a
letter dated 30.12.2002. Therefrom, the scheme has been functioning on the
basis of various communications/instructions issued by the Ministry of
Defence without framing any law or rules regulating the same. The scheme
provides for establishment of armed forces clinics at military stations and
non-military stations. It also gives details of the estimated expenditure for
establishing five types of poly clinics categorized in military and non-
military stations i.e. types A, B, C, D & E, respectively, based upon the
population of ex-servicemen and their dependents in that area. The scheme
also enlists total authorised staff which is subject to revision from time to
time. All the posts under ECHS Scheme which is a non-statutory scheme are
to be filled up on contractual basis. In the letter dated 30.12.2002, a
procedure for the engagement by way of contractual employment of the staff
for carrying out the ECHS scheme was laid down. Even a provision for
reservation has been made. The maximum age limit for various posts was
also prescribed. Subsequently, it was made mandatory that the staff to be
engaged will have to enter into a contract with the concerned Station
Commander. In the year 2013, the authorities decided that ECHS employees
after having put in more than five years of service in a particular poly clinic,
will have to re-appear in the interview before they are permitted to continue
3 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -4-
in the service. On the basis of the aforesaid instructions, the recruitment
notices were issued. Prior to the aforesaid letter, the contracts of ECHS
employees were being renewed on yearly basis on the dint of assessment of
meritorious work and conduct. The letter issued in the year 2013 resulted in
multiple litigations which were based on the claim of the employees that
they have a right to continue till the maximum age which is prescribed for
their posts in the scheme. On 30.06.2015, while deciding a bunch of writ
petitions i.e. CWP No.20113 of 2013 and other connected petitions, the
rights of ECHS employees were crystallized and the Court held that they
have a right to continue till the maximum age prescribed for their posts in
the scheme subject to availability of work and good conduct. On 19.12.2016
in LPA No.1691 of 2015, the judgment passed by the Learned Single Judge
was upheld. No special leave petition is stated to have been filed before the
Supreme Court.
Thereafter, again certain recruitment notice were challenged in
the High Court and another Co-ordinate Bench vide a judgment dated
17.12.2017 in CWP No.439 of 2017, while following the previously
referred judgment, the Court, also, restrained the authorities from issuing
fresh recruitment notice. The aforesaid judgment was also upheld by the
Division Bench in LPA No.1216 of 2017. Keeping in view the various
judgments passed, the Government of India on 06.09.2018 changed its
policy of recruitment under the scheme. The terms and conditions of a
standard agreement, to be entered with the contractual employees of ECHS,
were circulated. The relevant Clauses of the said agreement are as under:-
2. The employment of the staff will be entirely
4 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -5-
contractual in nature and will be for a period of two years
at the maximum based on the selection process by the
competent authority, subject to review of their conduct
and performance after eleven months.
3. The ECHS reserves the right to terminate the
appointee by giving 30 days notice or by paying
remuneration for 30 days in lieu of notice any time
during the tenure even without assigning any reason; or
for misconduct or failure to perform assigned duties to
the satisfaction of the Station Commander acting through
the Officer-in-Charge Polyclinic/nominated Officers.
7. The Polyclinic can employ a relief if the duration of
absence of an employee exceeds 20 days at a stretch. The
services of the contractual employees will be terminated
by the appointing authority without any notice in case the
cumulative absence period exceeds 60 days.
17. The engaged person will also have the right to
terminate this agreement before the expiry of tenure of
contractual appointment by giving one month’s notice or
by foregoing one month’s contractual amount as
consideration for engagement of services.
It may be noted here that under the scheme, there is a provision
for reservation and it has been provided that preference will be given to the
ex-servicemen, which is extracted as under:-
A. Para 3 – Reservation. Preference will be given to ex-
servicemen for all employment in the ECHS. Reservation
5 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -6-
criterion is as under:-
Sr. No. Category Percentage of vacancies
(a) Medical
officers/specialists/De
nta
l Officers 60 40
(b) Officer-in-charge –
Polyclinics 100
(c) Paramedical staff to
include Nurses,
Nursing
Assistants (General,
Radiographer,
Physiotherapist),
Dental
Hygienist/Assistants &
Lab Assistants 70 30
(d) Non Medical Staff to
include Receptionist
(Records maintenance
&
Data Entry service)
Drivers (Motor
Vehicles
operation &
maintenance
services)
Peons & Female
Attendant
(housekeeping
services) Safaiwala
(conservancy services) 70 30
Note:- The total authorisation of the staff will be as laid down
in Appendix ‘E’ and ‘F’ MOD letter No.22(1)/US(WE)/D(Res)
dated 30 Dec 2002.
It has also been stated in the written statement of the
respondents that the contractual employment for a fixed tenure is being
offered so as to give an opportunity to all the ex-servicemen to serve for a
fixed tenure to tide over the retirement blues. It is well known that in the
armed forces, retirement age is quite early and the officials, who
superannuate at such an early age, usually look for an opportunity for re-
employment. In this manner, by launching the ECHS of medical care, efforts
6 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -7-
were made to not only provide health care facilities to the ex-servicemen
and their dependents but also give them an opportunity of re-employment.
It is significant to note that there has been significant change in
the manner in which the contracts are entered into with the contractual
employees. On 06.09.2018, a new format of the service contracts was
introduced. In the aforesaid communication, it has been provided that the
employment of the staff will be entirely contractual in nature for a period of
two years at the maximum, subject to review of their conduct and
performance after a period of 11 months. There is no provision in the
contract to grant extension beyond the period of two years.
The petitioner, after having retired as ‘Nayak’ on 30.04.2015,
applied for the post of Driver in ECHS Polyclinic, Mohali and was
appointed on the said post on 22.02.2018. He was initially appointed for 89
days. However, on 04.04.2018, the petitioner was appointed on contract
basis for a period of 12 months with a provision for grant of extension
subject to satisfactory work and conduct for another term of 12 months.
Clause-2 of the agreement reads as under:-
“The engagement of the Engaged person for rendering
his professional services shall be entirely contractual in
nature and will be for a period of 12 months initially
and thereafter renewable for 12 months at a time upto
and subject to attaining the maximum age
prescribed/indicated in Appendix A to Government of
India, Ministry of Defence letter No 24(6)/03/US (WE)
D (Res) dated 22 Sep 2003 or as amended from time to
time. The renewal of contract will be subject to
continued good conduct and performance of the
Engaged Person during the proceeding 12 months and
7 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -8-
existence of the requirement for services of the Engaged
person at the ECHS Polyclinic. A fresh contract will be
executed for each renewal.”
The petitioner has pleaded that a fresh contract was entered into
on 08.04.2019 which was valid till 07.04.2020, however, a copy of the
contract was not made available. When the tenure of the petitioner was
nearing end, a fresh recruitment notice was issued on 12.02.2020 inviting
applications for various posts including the post held by the petitioner. The
petitioner after applying for the post pursuant to the recruitment notice,
chose not to participate in the selection process. The petitioner claims that
after 07.04.2020, he was granted an extension for a period of 89 days due to
the situation created by COVID-19 Pandemic and thereafter, on selection of
respondent no.5, the petitioner has been discharged on 06.05.2020.
As noticed above, the petitioner now prays for direction to the
respondents to re-engage him and not to replace him with another
contractual employee.
Pursuant to the notice of motion, the official respondents have
filed their reply contesting the petition. It has been pleaded that the
petitioner did not participate in the selection process on 16.03.2020 and the
petitioner has no right to continue or re-engagement. It is submitted that as
per the terms of the contract, the petitioner could only be retained for a
maximum period of 2 years and since the period has come to an end,
therefore, he has been relieved.
This court has heard learned counsels for the parties at length
and with their able assistance perused the paper book.
Learned counsel appearing for the petitioner relies upon a
judgment passed by the Court in Civil Writ Petition No.20113 of 2013 and
8 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -9-
connected matters (Dr. Sukhpreet Singh vs. Union of India and others),
decided on 30.06.2015. It has been submitted that the aforesaid judgment
passed has been upheld by the Division Bench in Letters Patent Appeal
No.1691 of 2015 (Union of India and others vs. Paramjit Kaur) and other
connected cases, decided on 19.12.2016. Further reliance is placed on
another Division Bench judgment in Renu Bala vs. Union of India and
others, decided on 17.02.2017. Reliance has also been placed on interim
order dated 31.07.2017 passed in S.L.P.(Civil) No.18373 of 2017 (Pawan
Kumar vs. Union of India). The petitioner has pleaded that the aforesaid
Special Leave Petition has been filed against the judgment passed by the
Himachal Pradesh High Court.
Per contra, learned counsel representing the respondents has
submitted that the judgments relied upon by the petitioner are not applicable
in the facts and circumstances of the case because in these judgments
referred to above, while interpreting the terms of the employment contracts
and keeping in view that these employees have worked for 5 or more years,
the court held that the contractual employees were entitled to continue till
the age of superannuation subject to availability of work and their good
work and conduct.
After having considered the arguments of learned counsel for
the parties, this Bench now proceeds to adjudicate the dispute. From
careful reading of Clause-2 of the contract which has been extracted herein-
before, it is apparent that the petitioner was engaged on entirely contractual
basis for a period of 12 months which was renewable for another period of
12 months at a time upto and subject to attainting the maximum age
prescribed or indicated in Appendix-A to letter dated 22.09.2003 issued by
9 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -10-
the Government of India, Ministry of Defence as amended from time to
time. It is pertinent to note that the same clause was the subject matter of
interpretation by the Court in Dr. Sukhpreet Singh’s case (supra).
Therefore, the argument of learned counsel representing the respondents
that the terms of the contract are different is not correct.
However, it is well settled that the contractual employes have
no right to continue on the post against the terms of the contract. The
petitioner applied and got appointed to the post after having accepted the
offer of appointment and thereafter he voluntarily entered into a contract.
Under the ECHS Scheme, no rules or regulations have been framed. This is
a contributory scheme which has been promulgated by the Government with
twin purposes. One is to provide medical services to the ex-servicemen and
their dependents on contributory basis by opening polyclinics of various
categories near their place of abode. Second, to give preference to ex-
servicemen by providing them tenure appointments so that maximum ex-
servicemen can get the opportunity to serve for a limited period in order to
tide over the retirement blues. Under the ECHS Scheme, there are no
permanent vacancies. The contractual employees are not public servants.
They are appointed by the management of the ECHS Scheme and the
contract is entered into between the Station Commander and the employee.
In the service contract, it is specifically provided that on completion of the
term or when the requirement comes to an end, the services can be
dispensed with. It is further provided that for each renewal, a fresh contract
will have to be executed. It is not in dispute that no fresh contract has been
entered into in the present case.
Still further, the petitioner do not dispute that he applied to the
10 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -11-
said post pursuant to a recruitment notice dated 12.02.2020, however, did
not choose to participate in the selection process.
No doubt, the judgments passed by the court referred to above
have interpreted the exactly same clause, however, the attention of the Court
was not drawn to the judgment passed by the Hon’ble Supreme Court in
State of Maharashtra and others vs. Anita and another, 2016(8) SCC
293. In fact, the judgment of learned Single Judge in Dr. Sukhpreet Singh’s
case (supra) is dated 30.06.2015, hence prior to the decision of the Supreme
Court. However, the judgment passed by the LPA Bench is dated
19.12.2016. The judgment of the Hon’ble Supreme Court in State of
Maharashtra (supra) was not brought to the notice of the Bench. In State of
Maharashtra’s case (supra), the court was examining the appeals filed by the
contractual employees as well the State of Maharashtra. In that case, 471
posts of Legal Advisors, Law Officers and Law Instructors were created by
the Government vide a resolution passed in the year 2006. It was decided to
fill these posts on contract basis under the supervision of Director General
of Police as well as the Commissioner of Police, Mumbai. The employment
contract provided for initial term for a period of 11 months, which could be
extended for a maximum of 3 terms, whereafter the employment will come
to an end. In that case, fresh recruitment notice was challenged before the
Maharashtra Administrative Tribunal. The Maharashtra Administrative
Tribunal quashed Clause ‘A’, ‘B’ and ‘C’ of the resolution passed while
creating and deciding to fill up the post on contractual basis. The judgment
passed by the Tribunal was challenged before the High Court of Nagpur
Bench and the Court went on to hold that the posts are permanent. When
the matter reached before the Hon’ble Supreme Court, the Supreme Court
11 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -12-
while referring to the terms of the contract held as under:-
“14. It is relevant to note that the respondents at the time of
appointment have accepted an agreement in accordance
with Appendix ‘B’ attached to Government Resolution
dated 15.09.2006. The terms of the agreement
specifically lay down that the appointment is purely
contractual and that the respondents will not be entitled
to claim any rights, interest and benefits whatsoever of
the permanent service in the government. We may
usefully refer to the relevant clauses in the format of the
agreement which read as under:-
“1. The First Party hereby agrees to appoint
Shri/Smt._________ (Party No. II) as a
________ on contract basis for a period of
11 months commencing from __________ to
__________ (mention date) on consolidated
remuneration of Rs.___________ (Rupees
_____________ only) per month, and said
remuneration will be payable at the end of
each calendar month according to British
Calendar. It is agreed that IInd party shall
not be entitled for separate T.A. and D.A.
during the contract period….
2. ……….
3. ………
4. ………..
5. Assignment of 11 months contract is
renewable for a further two terms of 11
months (i.e. total 3 terms), subject to the
satisfaction of Competent Authority, and on
its recommendations.
6. The Party No. II will not be entitled to claim
any rights, interest, benefits whatsoever of
the permanent service in the Government.”
15. The above terms of the agreement further reiterate the
stand of the State that the appointments were purely
contractual and that the respondents shall not be entitled
to claim any right or interest of permanent service in the
government. The appointments of respondents were
made initially for eleven months but were renewed twice
and after serving the maximum contractual period, the
12 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -13-
services of the respondents came to an end and the
Government initiated a fresh process of selection.
Conditions of respondents’ engagement is governed by
the terms of agreement. After having accepted
contractual appointment, the respondents are estopped
from challenging the terms of their appointment.
Furthermore, respondents are not precluded from
applying for the said posts afresh subject to the
satisfaction of other eligibility criteria.
16. The High Court did not keep in view the various clauses
in the Government Resolutions dated 21.08.2006 and
15.09.2006 and also the terms of the agreement entered
into by the respondents with the government. Creation of
posts was only for administrative purposes for sanction
of the amount towards expenditure incurred but merely
because the posts were created, they cannot be held to be
permanent in nature. When the government has taken a
policy decision to fill up 471 posts of Legal Advisors,
Law Officers and Law Instructors on contractual basis,
the tribunal and the High Court ought not to have
interfered with the policy decision to hold that the
appointments are permanent in nature.”
Keeping in view the aforesaid well settled position, this Bench
is of the considered view that the judgment passed by the Division Bench in
LPA No.1691 of 2015, with highest respect, is per incuriam as the attention
of the Division Bench was not drawn to the judgment passed in the State of
Maharashtra (supra).
This matter can be examined from another perspective. The
petitioner was appointed pursuant to a recruitment notice wherein it was
clearly stipulated that the appointment is for a fixed tenure of two years
only. The petitioner applied pursuant to the aforesaid recruitment notice.
The petitioner accepted the appointment after being fully aware that it is
13 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -14-
only for two years. In these circumstances, if the court offers its helping
hand and extends the tenure of the petitioner, it will cause serious prejudice
to other aspirants, who may not have applied for the post due to the
stipulation in the recruitment notice that the appointment is being offered
only for two years i.e. a short duration. There may be many candidates, who
are more qualified and efficient, but did not choose to apply, in view of the
stipulation in the recruitment notice. Now, if the petitioner is directed to be
re-engaged, it would be iniquitous to those candidates who did not apply in
view of the stipulation in the recruitment notice.
Yet another aspect is the principle of estoppel. The Hon’ble
Supreme Court in the case of State of Maharashtra (supra) has examined
this aspect and held that the contractual appointees for a fixed tenure cannot
be permitted to take a u-turn and challenge the terms of the appointment.
The court while deciding such writ petitions is required to keep the equity
of everyone in mind. The Court cannot be expected to keep only the
interest of the writ petitioner while passing the order without keeping in
view the over all impact thereof.
Further, the other interested ex-servicemen who may have
recently been superannuated from the Forces, would also stand deprived of
the opportunity of getting a tenure employment particularly when the
contributory scheme is for the benefit of the entire community of ex-
servicemen.
There is yet another perspective. The scheme is in realm of a
policy decision taken by the Central Government and unless the policy is
found to be arbitrary or illegal, it would not be appropriate to interfere in the
manner of its working which will result in changing the entire scheme.
14 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
CWP No.7378 of 2020(O&M) -15-
It may be noted here that in an another judgment a similar
conclusion has been drawn, i.e. in Amarjit Singh Chitchot vs. Union of
India and others, 2018 SCC Online (P&H), 487.
Keeping in view the aforesaid facts, this court does not find it
appropriate to issue the writ as prayed for.
Hence, dismissed.
24th March, 2021 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
15 of 15
::: Downloaded on – 16-01-2022 22:21:13 :::
Comments