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2021 Supreme(P&H) 667
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
G.S. Sandhawalia, J.
Kamaljeet - Appellant
Versus
Union Of India - Respondent
CWP No. 9035 of 2020
Decided On : 19-01-2021
Mr. Rakesh Bakshi, Advocate, for the Appellant, Ms. Anita Balyan, Advocate, for the Respondent.
The main legal point established in the judgment is the binding nature of the contract terms and the requirement for appointments to conform to the terms of the advertisement, emphasizing the rights of the petitioner based on his qualifications and performance.
Headnote:
Appointment - Writ Petition - ECHS - 22.03.2003 - 226, 227 - [Annexure P-2, Annexure P-9, Annexure P-14, Annexure P-18, Annexure R-2] - The court discussed the appointment under the Ex-servicemen Contributory Health Scheme (ECHS) and the qualifications required for the post, emphasizing the terms of the advertisement and the contractual employment. The court highlighted the lack of qualifications of the appointed candidate and the arbitrary nature of the appointment, and emphasized the binding nature of the contract terms and the positive performance certificate issued to the petitioner.
Fact of the Case:
The petitioner sought to quash the appointment of respondent No. 7 and requested a writ of mandamus for his own appointment, citing lack of qualifications and arbitrary appointment. The petitioner had been working for the respondents for the last 6 years and had the requisite qualifications.
Finding of the Court:
The court found that the appointment of respondent No. 7 was arbitrary and not in conformity with the terms of the advertisement. The court also held that the petitioner, having the necessary qualifications, was entitled to the benefit of the writ of mandamus for appointment. The court emphasized the binding nature of the contract terms and the positive performance certificate issued to the petitioner.
Issues: The issues revolved around the qualifications required for the appointment, the arbitrary nature of the appointment, and the binding nature of the contract terms.
Ratio Decidendi: The court held that the appointment of respondent No. 7 was arbitrary and not in conformity with the terms of the advertisement. The court also emphasized the binding nature of the contract terms and the positive performance certificate issued to the petitioner, granting him the benefit of the writ of mandamus for appointment.
Final Decision: The court quashed the appointment of respondent No. 7 and issued a writ of mandamus to re-employ the petitioner for a period of one full year as per the terms of the contract. The petitioner was also awarded costs of Rs.25,000 for the unnecessary harassment caused to him.
ORDER
G.S. Sandhawalia, J. - The present writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari for quashing of arbitrary appointment of respondent No. 7 vide Annexure P-17 dated 28.04.2020 whereby, the result was declared for the post of IT Net Tech at the polyclinic at Ambala. Further prayer has been made for issuance of a writ in the nature of Mandamus directing the respondents to appoint the petitioner on the said post being more meritorious than respondent No.7.
2. The challenge is on the ground that the said candidate lacks the qualifications required, which is minimum of 2 years' work experience as per advertisement Annexure P-9 and also does not have the requisite diploma. The additional ground taken is that the petitioner is a contractual employee and is being replaced by another contractual employee against the policies of the respondents themselves. The respondents are stated to have introduced Ex-servicemen Contributory Health Scheme dated 22.03.2003 (Annexure P-2) (in short, ECHS') wherein, medical care is to be provided to ex-servicemen and their dependents through network poly clinics and service medical facilities across the country. The appointment under ECHS was to be on contractual basis.
3. The petitioner was initially appointed on 30.04.2013 for a period of 11 months as a Technical Service Provider (Annexure P-3) and thereafter on 08.09.2014 (Annexure P-5) as a Computer Operator -cum- Bill Verifier, again on contractual basis. On 21.06.2018 (Annexure P-6), he was appointed as IT Net Tech on temporary basis for a period of 89 days at the regional centre ECHS Ambala. On 25.09.2018 (Annexure P-7), he was again appointed on the same post upto 31.03.2019 and was drawing contractual fee of Rs.28,100/- per month. The said appointment was continued for another period of one year vide letter dated 31.03.2019 (Annexure P-8) on the same terms and conditions. Thus, it is his case that he had been working for the last 6 years to the satisfaction of seniors and colleagues. Reliance is also placed upon the certificate issued to him on 31.01.2020 (Annexure P-18) whereby, it is held out that there was no adverse report against the individual.
4. It is not disputed that in terms of the last appointment letter, a contract dated 01.04.2019 (Annexure R-2) was also entered into. The advertisement, as such, was issued in February, 2020 wherein, again applications were invited for engaging staff on contractual basis for polyclinics for a period of 11/12 months from civilians and ex-servicemen which was respectively renewable for an additional period of 11/12 months based on satisfactory performance in the first year. It is not disputed that as per clause (4) of the advertisement, there was open vacancy for the said post along with other posts. Separate number of reserved vacancies for ex-servicemen at different places were also advertised. The qualification was stated to be Diploma Certificate equivalent in IT networking. Computer Application. The experience required was also to be of 2 years. Specific averments, thus, have been made in para nos. 8 to 10 of the petition that the petitioner has the requisite diploma in hardware and networking (Annexure P-12 and P-13) whereas, the private respondent No. 7 has no such qualification. Additional plea has also been taken that as per letter dated 22.12.2017 (Annexure P-14), the duration of contractual employment is to be for 2 years and the second extension is to be granted on the basis of satisfactory performance in the 1st year. Thus, claim had been made for extension of 1 year on the strength of the positive report given which is dated 31.01.2020 (Annexure P-18). Apart from the fact that the petitioner has been continuously working with respondents for the last 6 years, it is pertinent to notice that respondent no. 7 has chosen not to contest the writ petition and was proceeded ex parte on 04.08.2020
