Dr. Koshy V. John & Others v. Union of India & Ors

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF MARCH 2018 / 25TH PHALGUNA, 1939 WP(C).No. 2187 of 2017** ## **PETITIONERS :** **1 DR.KOSHY V. JOHN, AGED 61 YEARS S/O. LATE EX. HAVILDAR K.K.JOHN, WORKING AS "MEDICAL OFFICER", EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, THUMPAMON P.O., PATHANAMTHITTA, PIN-689502, RESIDING AT VALIAYTHANNICKAL HOUSE, KUMBANAD P.O., PATHANAMTHITTA DISTRICT PIN-689547. 2 DR. DEEPAK PANICKER, AGED 32 YEARS, S/O. AMRUNATHA PANICKER, WORKING AS "DENTAL OFFICER EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, THUMPAMON P.O., PATHANAMTHITTA, PIN-689502, RESIDING AT DEE NIVAS, NEAR BLOCK OFFICE, RANNI P.O., PATHANAMTHITTA DISTRICT PIN-689672. 3 EX. HAVILDAR ASOKAN NAIR, AGED 45 YEARS S/O. DAMODARAN NAIR, WORKING AS "DRIVER", EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, THUMPAMON P.O., PATHANAMTHITTA, PIN-689502, RESIDING ANAGHALAYAM, VAYALA P.O., PATHANAMTHITTA DISTRICT PIN-691554. 4 EX. SUBEDAR MAJOR RADHAKRISHNAN R., AGED 54 YEARS, S/O. RAGHAVAN, WORKING AS "PHYSIOTHERAPIST" EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, THUMPAMON P.O., PATHANAMTHITTA, PIN-689502, RESIDING AT KRISHNAVILAAM, NELLIMUKAL P.O., PATHANAMTHITTA DISTRICT PIN-691551.** **BY ADVS.SRI.R.SREERAJ SMT.REKHA VASUDEVAN** **WP(C).No. 2187 of 2017** ## **RESPONDENTS:** **1. GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI.PIN-110010.** **2. THE STATION COMMANDER, STATION HEADQUARTERS, PANGODE, THIRUMALA P.O., THIRUVANANTHAPURAM PIN-695006.** **3. THE OFFICER IN CHARGE, EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, THUMPAMON P.O., PATHANAMTHITTA PIN-689502.** **BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.SUVIN R.MENON, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 2187 of 2017 (W)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE DETAILS OF CONTRACTUAL MANPOWER AT EX-SERVICEMEN CONTRIBUTORY HEALTH SCHEME (ECHS) POLYCLINIC, PATHANAMTHITTA EXHIBIT P2; TRUE COPY OF THE PROCEDUE FOR CONTRACTUAL EMPLOYMENT OF STAFF FOR ECHS POLYCLINICS EXHIBIT P3: TRUE COPY OF THE DETAILS OF THE TENURE OF CONTRACTUAL EMPLOYEES AT ECHS POLYCLINICS EXHIBIT P4: TRUE COPY OF MODEL CONTRACTUAL AGREEMENT BETWEEN CONTRACTUALLY ENGAGED PERSON AND STATION COMMANDER EXHIBIT P5: TRUE COPY OF ADVERTISEMENT INVITING APPLICATIONS FOR APPOINTMENT ON CONTRACTUAL BASIS PUBLISHED IN MATHURUBHOOMI DAILY DATED 27.12.2016 EXHIBIT P6: TRUE COPY OF REPRESENTATION DATED 28.12.2016 SUBMITTED BY THE PETITIONERS AND OTHER AGGRIEVED PERSONS BEFORE THE HON'BLE UNION DEFENCE MINISTER INCLUDING THE RESPONDENT EXHIBIT P7: TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF PUNJAB & HARYANA IN LPA 1691/2015(O&M) & CONNECTED CASES (AS DOWNLOADED FROM THE WEB SITE OF INDIAN CANOON.ORG)** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** **2.4.2018** ## **P.V.ASHA J.** ## **-------------------------------------** ## **W.P.(C).No.2187 of 2017** ## **-------------------------------------** Dated this the 16[th] day of March, 2018 ## **JUDGMENT** The petitioners who had been working in ExServicemen Contributory Health Scheme (ECHS) Polyclinic at Thumpamon, under the 3[rd] respondent, in the posts of Medical Officer, Dental Officer, Driver and Physiotherapist respectively, are aggrieved by the denial of extension to their contract appointments/reappointment. 2. The petitioners had been working in the respective posts since 01.12.2009, 05.12.2013, 05.11.2013 and 22.11.2011 on the basis of orders appointing them on contract basis for a period of one year each, on execution of agreement between the W.P.(C).No.2187 of 2017 2 petitioners and the 2[nd] respondent. While so, the 2[nd] respondent issued Ext.P5 notification inviting applications for selection and appointment to the posts held by them and conducted a selection pursuant to that. This writ petition was filed challenging Ext.P5 notification, seeking a direction to the respondents to renew the agreement and to allow the petitioners to continue in the respective posts. 3. Petitioners claim that they are entitled to be retained after renewing the contract and there is no reason for terminating their services and for appointing fresh hands again on contract basis. 4. Respondents filed a counter affidavit stating that petitioners' appointments were for a fixed period covered by the agreements executed by them and once that term expires, they can not have any right to continue. It is stated that the Polyclinic has been functioning since December, 2004 and the 1[st] petitioner was appointed from 01.12.2009 as a W.P.(C).No.2187 of 2017 3 contractual employee, for a period of 12 months. Similarly the other petitioners were also appointed on the basis of agreements executed on contract basis and all the appointments were for a period of 12 months. It is stated that on expiry of the period of contract the petitioners do not have any right to seek renewal of contract. It is further stated that the ECH Scheme is envisaged and executed for monitoring high quality health care for Ex-Servicemen / Women of Indian Army / Air Force / Navy / Coast Guard and their dependents, in terms of initial screening of ECHS staff and subsequent follow up to get the best result. The selection, appointment and retention beyond the contractual period have been entrusted with the appointing authority, based on the sensitivity and importance of service being rendered. It is stated that the rules and guidelines on the functioning of the Polyclinic under the ECHS are meant to ensure the efficient functioning of the Polyclinics and the 4 W.P.(C).No.2187 of 2017 staff entrusted for the jobs are required to be monitored constantly. It is stated that it is the prerogative of the concerned authorities to implement suitable alterations as required to improve the functioning of the Polyclinics. It is stated that the 1[st] petitioner, was granted extension for five times and the sixth extension was not considered favourably. The 2[nd] petitioner was granted extension twice and his tenure expired on 09.12.2016. In the case of 3[rd] petitioner, his tenure expired on 08.11.2016 and in the case of the 4[th] petitioner, it expired on 29.11.2016 on extension by four times, in accordance with the rules. 5. Relying on the Division Bench judgment of the Punjab and Haryana High Court in LPA 1691/2015 (O&M) & Connected cases (Union of India & Ors v. Paramjit Kaur), the learned Counsel for the petitioners argued that the appointments of the petitioners were liable to be renewed and they cannot W.P.(C).No.2187 of 2017 5 be replaced by fresh hands in the absence of any justifiable reason for the same. At the same time, the learned Central Government Counsel relied on the Full Bench judgment of the Himachal Pradesh High Court in C.W.P. No.9093/2014 (Pawan Kumar & Others v. Union of India & Others) and argued that the petitioners have no right to claim retention. 6. Sri.R.Sreeraj, the learned Counsel for the petitioners argued that Ext.P3 does not provide for any particular tenure for those appointed in Polyclinics located away from large cities/military stations as given in Clause 4(b) thereof. As the polyclinics in which they were working were away from cities, they legitimately expected to continue in service till the age of their superannuation. It was argued that the 2[nd] respondent refused to exercise his discretion in tune with the policy in Ext.P3 and did not even assess the performance of the petitioners in order to exercise his discretion on the question of 6 W.P.(C).No.2187 of 2017 the renewal of contract in the case of petitioners. It is also the case of petitioners that there is disparity in the matter of appointments/renewal of appointments under the ECHS, as several persons in other units are allowed to continue in some of the units under the ECHS. It is argued that as long as the respondents do not have any complaint on their performance, the proceedings for fresh selection is illegal. 7. Sri.Suvin R.Menon, the learned CGC, stoutly opposed the contentions, arguing that the term of appointment was determined at the time of their appointment itself; petitioners do not have any right to seek for a writ of mandamus as far as none of their legal rights are infringed at the instance of the respondents on their failure to discharge any statutory obligation cast on them, much less to extend their tenure. The learned CGC relied on the judgment of the Apex Court in **2008 (2) SCC 280 :** _**Oriental Bank**_ W.P.(C).No.2187 of 2017 7 _**of Commerce v. Sunder Lal Jain and Another**_ , in support of his contention that no writ of mandamus can be issued in the case when petitioners have not substantiated their legal right to enforce any statutory duty cast upon the respondents and therefore no writ of mandamus is liable to be issued against the 2[nd] respondent under Article 226 of the constitution of India. 8. I have considered the contentions advanced by both sides. It is an admitted fact that petitioners' appointments were purely on contract basis and they have executed agreements with conditions as contained in Ext.P4 form with the respondents, for appointment for a fixed period. As rightly contended by the learned CGC, the orders of appointment of petitioners provided for the termination of their services also, as each of the appointment was for a fixed period, providing for termination on expiry of that period. Apart from that W.P.(C).No.2187 of 2017 8 petitioners have executed agreements as contained in Ext.P4, which also fixed their tenure. No right is conferred on them to get the contract of appointment renewed. It is up to the discretion of the appointing authority to renew or not to renew the contract of appointments i.e., whether to allow the petitioners to continue or not by renewal of contract. It is pertinent to note that the Ex-servicemen who were appointed under the ECHS in Himachal Pradesh claimed that their appointments are co-terminus with the scheme or till they attain the age of superannuation. The Full Bench of the Himachal Pradesh High Court which considered their claim in **2017(4) SLR 72 :** _**Pawan Kumar & Others v. Union of India & Others**_ , found that the fixed term of contractual appointment, as envisaged under the ECH scheme was not only to provide medical facilities to Ex-servicemen but at the same time for rehabilitating the Ex-servicemen also, adjusting their tenure with the ECHS polyclinics. W.P.(C).No.2187 of 2017 9 Their claim was repelled and it was held that they do not have any right to continue beyond the period stipulated in the contract. Similar is the case of the petitioners. Though petitioners have relied on the Division Bench judgment of Punjab & Haryana High Court, I am persuaded to follow the Full Bench judgment of the Himachal Pradesh High Court. Even otherwise as long as the appointment of the petitioners is governed by a contract, they do not have any right to continue beyond the period of contract. The allegation that the 2[nd] respondent failed to exercise his administrative discretion to consider the question of extension also cannot be accepted, because petitioners continued all these years after the expiry of the tenure of their first appointment only because that discretion was exercised by the 2[nd] respondent. Therefore the contention of the petitioners is unsustainable. At any rate, that cannot be a reason for re-appointment of the 10 W.P.(C).No.2187 of 2017 petitioners. If the 2[nd] respondent found it necessary to conduct a fresh selection to induct fresh hands, such a decision cannot be said to be perverse or arbitrary or without authority. As held by the Full Bench in _**Pawan Kumar's case (supra)**_ , petitioners cannot insist that other qualified Ex-servicemen aspiring appointment under the scheme should not be considered or given appointment, by insisting their retention. 9. As rightly pointed out by the learned CGC, no circumstances exists in the present case which warrants issuance of a writ of mandamus, as long as the petitioners do not have any legal right to enforce any statutory duty cast upon the respondents. Moreover appointments were already made pursuant to Ext.P5 notification. None of the persons appointed are impleaded in this writ petition. On that ground also this Court will not interfere with a notification which is already acted upon, evolving W.P.(C).No.2187 of 2017 11 third party rights, without them on the party array. Accordingly, this writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE.** ww