Heard Sri M.P. Singh, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri R.S. Tiwari, learned counsel for the opposite party no. 2.
By means of this petition the petitioner has prayed following relief :
i. Issue a writ, order or direction in the nature of Certiorari for quashing the impugned letter dated 18.06.2019 and order dated 29.08.2019 issued by the opposite party no. 2 which is already contained as Annexure No.-1 & 2 to this writ petition.
ii. Issue a writ, order or direction in the nature of Mandamus the opposite party No. 1 to 4 for permitting to the petitioner to perform his duty as Medical Officer at Shivli Kanpur Dehat, Samudayak Swasthya Kendra, Shivli, Kanpur Dehat and his wages may also be paid w.e.f. 01.08.2019.
The admitted fact of the present case is that the petitioner has been appointed as Medical Officer (Ayush) under National Health Mission, U.P,. on contract basis in the year 2010 and his contract period has been extended time to time.
It appears that the policy decision has been taken by the duly constituted committee of the State Government on 21.8.2018 that those doctors who are above 65 years of age would not be permitted to continue as Medical Officer (Ayush) and their term of contract appointment shall come to an end immediately after completion of their 65 years of age. Earlier the cut off age was 62 years which has now been fixed as 65 years. Admittedly the petitioner is presently aged about 70 years, therefore, he has already exceeded the cut off age i.e. 65 years.
By means of impugned order dated 18.6.2019 the aforesaid policy decision has been informed by the Mission Director, National Health Mission, U.P., Lucknow to all the Chief Medical Officer, U.P. Further, by means of order dated 29.8.2019 the Mission Director, National Health Mission, U.P., Lucknow directed the Chief Medical Officer, Kanpur Dehat to pass consequential order in view of the aforesaid policy decision in the case of present petitioner.
This is trite law that the contract appointees may not claim their continuance beyond the contract period. In the present case the petitioner has already served beyond 65 years of his age. The learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 6 which is a letter dated 3.5.2019 preferred by the Mission Director of National Health Mission, U.P. addressed to all the District Magistrates and Chief Medical Officers of the State of U.P. circulating guidelines. Para 21 of the aforesaid guideline clearly mandates that the maximum age of any employee to serve in a National Health Mission would be 65 years but the contract employee, particularly the Medical Officers may be retained in service beyond the period of 65 years if they are mentally and physically fit. It appears that the petitioner has been provided the benefit of the aforesaid guidelines as he has been permitted to continue on the post of Medical Officer (Ayush) beyond the period of 65 years of age as presently he is 70 years of age.
However, the learned counsel for the petitioner has submitted that in the light of the aforesaid guidelines which authorizes that the Medical Officers (Ayush) may be permitted to continue even beyond the age of 65 years and no cut off date has been prescribed, therefore, the petitioner may be permitted to continue even beyond the age of 70 years as he is mentally and physically fit to discharge the duties.
Learned counsel for the opposite parties have submitted that after the aforesaid guidelines being issued by the Mission Director, National Health Mission, U.P., the impugned orders dated 18.6.2019 and 29.8.2019 have been issued, therefore, in the wake of aforesaid guidelines dated 3.5.2019 ( Annexure no. 6) the petitioner may not claim his continuance in service beyond the period of 70 years. Not only the above the contract appointee may not claim his continuance in service beyond the condition so finalized by the competent authority concerned.
This is a trite law that the service condition of an employee shall be governed by the terms and conditions settled between the parties.
The Division Bench judgment of this Court in a bunch of writ petition leading writ petition bearing Writ-A No. 54840 of 2013 : Rajesh Bhardwaj vs. Union of India & others, vide judgment and order dated 20.11.2018 has interpreted the term 'contract appointment' vide para 31,32,33,34,35,36, and 39, which are being reproduced as under :
"31. As we have already said that CUPGL even if taken to be a 'State' within the meaning of Article 12 of Constitution, this by itself would not mean that petitioner can claim status of a Government Servant or holding a post governed by 'status'. Nature of engagement/ appointment of petitioner is not to be governed by 'status' but by a 'contract of service' entered into between master and servant. A distinction between an appointment under a contract and status was noticed and explained by Supreme Court in Roshan Lal Tandon Vs. Union of India AIR 1967 SC 1889. Court held that when a matter is governed by status, the employee has no vested contractual rights in regard to the terms of service but where employment is purely in the realm of a simple contract of employment, it is strictly governed by terms and conditions of employment settled between the parties. To remind the difference between 'status' and 'contractual appointment', we may take up case of a Government Servant. Origin of employment in a Government department is contractual. There is an offer and acceptance in every case but once appointed to the post or office, the person appointed, i.e., Government Servant, acquires a status and his rights and obligations are no longer determined by consent of both the parties but same are governed by Statute or statutory rules which may be framed and altered unilaterally by employer, i.e., the Government. Legal position of a Government Servant, thus, is more one of 'status' than of a 'contract'. The hallmark of 'status' is that attachment to a legal relationship of rights and duties must be by public law and not by mere agreement of parties. Relationship between Government (employer) and Government Servant (employee) is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. In the language of jurisprudence, 'status' is a condition of membership of a group, whereof powers and duties are exclusively determined by law and not by agreement between the parties concerned. Thus, where appointment and conditions of service are governed by Statute, relationship of 'employer' and 'employee' is that of 'status' and not a mere contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant.
32. In the present case also, relationship of employment between petitioner and CUPGL is purely and simply an ordinary contract of service which is not governed by any statute or statutory provision. In such cases, a contract of service cannot be sought to be enforced by Court of law by giving relief of reinstatement or continuance in employment as this relief is barred under Act, 1963.
33. In Executive Committee of U.P. State Warehousing Corporation, Lucknow Vs. C.K. Tyagi AIR 1970 SC 1244 considering the question as to when such a relief is granted Apex Court observed:
"Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognised. The Courts are also investigated with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, ... "
34. Again in para 25 of the judgment, Court held:
"The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial law by Labour or Industrial Tribunals. (3). A statutory body when it has acted in breach of a mandatory obligation, imposed by statute".
35. In Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College (1972) 1 SCC 623, Court said that it is well settled that when there is a termination of a contract of service, a declaration that the contract of service still subsists would not be made in the absence of special circumstances, because of the principle that Courts do not ordinarily enforce specific performance of contract of service. Referring to earlier decision in Executive Committee of U.P. State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi (supra), Court further said that if master rightfully ends the contract, there can be no complaint but if master wrongfully ends the contract, then servant can pursue a claim for damages. It is said, "So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated."
36. The matter was again considered by a Constitution Bench in Sirsi Municipality Vs. Cecelia Kom Francis Tellis (1973) 1 SCC 409 and therein Court held that cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit against wrongful dismissal and for claiming damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief.
39. Recently also, in Kailash Singh Vs. The Managing Committee, Mayo College, Ajmer anD others. (2018) 10 SCALE 638, where dispute related to termination of an employee of Mayo College, Court held that employment was governed by simple contract of employment and, hence, no relief of reinstatement can be granted, but employee, if wrongfully terminated, may claim damages.
In view of the Division Bench judgment in re: Rajesh Bhardwaj (supra) wherein the various dictums of Hon'ble Apex Court have been considered, I am of the considered opinion that the petitioner may not claim his continuance in service being a contract employee and as such there is no infirmity or illegality in the order dated 18.6.2019 and 29.8.2019 issued by the opposite party no. 2 ( Annexure nos. 1 & 2), therefore, the writ petition is liable to be dismissed.
Accordingly, the present writ petition fails and is accordingly dismissed.
No order as to costs.
Order Date :- 19.12.2019 Om [Rajesh Singh Chauhan, J.]