DR POONAM GARG v. STATE (MEDICAL AN HEALT DEPT) ORS

Judgment 02/06/2017 Matters have come up on a prayer for grant of interim relief for in identical matters, interim orders have been made, at Principal Seat, Jodhpur so also by this Court. The State-respondents have filed response to the writ application No. 7621 of 2017:Dr. Poonam Garg Vs. State of Rajasthan & Ors.. Main thrust of the learned counsel for the petitioners has been on the aspect of personal hearing before making an order of termination for the petitioners were accorded appointment through an advertisement involving placement agencies. From the materials available on record and upon hearing the learned counsel for the parties, it is reflected that the appointments involved herein, were made through placement agencies, mainly through M/s. Dixit Computers. Later on, it has surfaced that the Nodal Officer namely Dr. Ramawtar Jaiswal in collusion with with M/s. Dixit Computers, played fraud in according appointments under the National Programme for Prevention and Control of Fuorosis (NPPCF) and National Mental Health Programme; Schemes, floated by the Central Government. (4 of 9) [CW-7621/2017] From the impugned order, it is further reflected that the placement agency M/s. Dixit Computers was black listed. From the advertisement, it is also evident that the qualification for the post of District Consultant, Field Investigator and Laboratory Technician, were specifically detailed out but appointments were accorded to candidates, who were not in possession of essential qualification allegedly for non-availability of candidates with the required qualifications as contained in the advertisement. There is no material available on record to substantiate the fact that eligible candidates with the qualifications as contemplated under the advertisement were not available. A Co-ordinate Bench of this Court in the case of Dr. Rajani Godara Vs. State of Rajasthan & Ors.:SBCWP No. 6924/2017 referring to the directions issued in the case of Surender Kumar Gurjar & Ors. Vs. State of Rajasthan & Ors., observed thus:-

It is a firm view of this Court that even for making contractual appointment, at least there has to be a minimum procedure for undertaking the process of selection and one may be offered appointment only upon having gone through such criteria/process of selection, on the contrary there is no documents in fact to show that there was no candidate available possessing the minimum required qualification and it is apparent that the selection made is a complete backdoor entry without following any basis/procedure provided under the law and in this fact situation thus no equity lies in favour of the petitioner. However, the petitioner would be at liberty to participate in any selection which the respondents may conduct for the said post in terms of the judgment passed by this Court. In the case of Surender Kumar Gurjar & Ors. Vs. State of Rajasthan & Ors." wherein directions have been issued to the fact as under: "(a) The State Government is restrained from appointing any persons on contract basis or otherwise allowing any person to work through placement agency on any (5 of 9) [CW-7621/2017] government post or posts created under any particular scheme henceforth ; (b) The State Government is henceforth directed to make appointments only in accordance with the rules framed under proviso to Article 309 of the Constitution of India for the various services in the State or the rules framed for the various departments, Corporations under the State; (c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations. However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and choose method and subsequent litigation; (d) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key; (e) In view of the law laid down by the Apex Court in the case of State of Rajasthan vs. Mitendra Singh Rathore (SLP No.32671/2013 decided on 17.02.2017, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government. The bonus marks quantum should be on the basis of number of years of service already rendered by any contractual employee but the exact quantum may be decided by the Government while conducting selections for individual schemes/posts; (f) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity; (g) If any selections are found to be wrongful, accountability of the concerned Officials who have conducted selection must be necessarily fixed and action be taken under the relevant provisions of law against them; (h) Considering that such exercise would take some time (6 of 9) [CW-7621/2017] to be implemented, this Court grants three months time to the Government to make such provisions from the date of submission of the certified copy of this order;

Judgment 02/06/2017 Matters have come up on a prayer for grant of interim relief for in identical matters, interim orders have been made, at Principal Seat, Jodhpur so also by this Court. The State-respondents have filed response to the writ application No. 7621 of 2017:Dr. Poonam Garg Vs. State of Rajasthan & Ors.. Main thrust of the learned counsel for the petitioners has been on the aspect of personal hearing before making an order of termination for the petitioners were accorded appointment through an advertisement involving placement agencies. From the materials available on record and upon hearing the learned counsel for the parties, it is reflected that the appointments involved herein, were made through placement agencies, mainly through M/s. Dixit Computers. Later on, it has surfaced that the Nodal Officer namely Dr. Ramawtar Jaiswal in collusion with with M/s. Dixit Computers, played fraud in according appointments under the National Programme for Prevention and Control of Fuorosis (NPPCF) and National Mental Health Programme; Schemes, floated by the Central Government. (4 of 9) [CW-7621/2017] From the impugned order, it is further reflected that the placement agency M/s. Dixit Computers was black listed. From the advertisement, it is also evident that the qualification for the post of District Consultant, Field Investigator and Laboratory Technician, were specifically detailed out but appointments were accorded to candidates, who were not in possession of essential qualification allegedly for non-availability of candidates with the required qualifications as contained in the advertisement. There is no material available on record to substantiate the fact that eligible candidates with the qualifications as contemplated under the advertisement were not available. A Co-ordinate Bench of this Court in the case of Dr. Rajani Godara Vs. State of Rajasthan & Ors.:SBCWP No. 6924/2017 referring to the directions issued in the case of Surender Kumar Gurjar & Ors. Vs. State of Rajasthan & Ors., observed thus:-

It is a firm view of this Court that even for making contractual appointment, at least there has to be a minimum procedure for undertaking the process of selection and one may be offered appointment only upon having gone through such criteria/process of selection, on the contrary there is no documents in fact to show that there was no candidate available possessing the minimum required qualification and it is apparent that the selection made is a complete backdoor entry without following any basis/procedure provided under the law and in this fact situation thus no equity lies in favour of the petitioner. However, the petitioner would be at liberty to participate in any selection which the respondents may conduct for the said post in terms of the judgment passed by this Court. In the case of Surender Kumar Gurjar & Ors. Vs. State of Rajasthan & Ors." wherein directions have been issued to the fact as under: "(a) The State Government is restrained from appointing any persons on contract basis or otherwise allowing any person to work through placement agency on any (5 of 9) [CW-7621/2017] government post or posts created under any particular scheme henceforth ; (b) The State Government is henceforth directed to make appointments only in accordance with the rules framed under proviso to Article 309 of the Constitution of India for the various services in the State or the rules framed for the various departments, Corporations under the State; (c) The State Government is further directed to make appointments on the posts created under various schemes sponsored by State or by the Centre on contract basis or otherwise only by conducting selection through open advertisement and after inviting applications and conducting written examinations and selecting persons on merit basis by a transparent method. For the said purpose, the State Government may lay down procedure and a recruiting agency either department wise or a Central nodal agency may be created for the said purpose keeping in view the provisions laid down for conducting public examinations. However, there shall be no interviews method followed in order to avoid any room for arbitrariness or pick and choose method and subsequent litigation; (d) The merit of the candidates so prepared, shall be published showing the marks obtained by each candidate and after publishing the answer key; (e) In view of the law laid down by the Apex Court in the case of State of Rajasthan vs. Mitendra Singh Rathore (SLP No.32671/2013 decided on 17.02.2017, the State Government may provide additional bonus marks to those candidates who have prior working experience with the State Government. The bonus marks quantum should be on the basis of number of years of service already rendered by any contractual employee but the exact quantum may be decided by the Government while conducting selections for individual schemes/posts; (f) Every attempt should be made to see that the entire selection process is transparent and without any ambiguity; (g) If any selections are found to be wrongful, accountability of the concerned Officials who have conducted selection must be necessarily fixed and action be taken under the relevant provisions of law against them; (h) Considering that such exercise would take some time (6 of 9) [CW-7621/2017] to be implemented, this Court grants three months time to the Government to make such provisions from the date of submission of the certified copy of this order; (i) All the persons presently working in the State Government through placement agency will now henceforth be treated as working directly on contractual basis till the aforesaid selection process is completed; (j) Services of the persons however, shall be continued only if the Government takes a decision to continue them otherwise their services shall be dispensed with forthwith and new selections shall only be conducted after issuing advertisements as directed herein above.

However, considering the nature of the post for which specific qualification is required to be fulfilled, I do not think it appropriate to continue the petitioner on the said post and direct the respondent to conduct the selection afresh as soon as possible within a period of one month henceforth. Accordingly, the writ petition is dismissed. No costs. Another Co-ordinate Bench of this Court in the case of Anshu Chauhan Vs. State of Rajasthan & Ors.; SBCWP No. 16270/2016, while dismissing the writ application, observed thus:-

Reply has been filed by the respondents and it has been averred that the Nodal Officer has proceeded on its own without taking instructions/permission from the Government and adopted his own mechanism inviting service provider and inducted the individual candidates of its own which was never approved by the Government and immediately after this fact came to their notice that such action has been taken by the Nodal Officer of its own a departmental enquiry has been initiated at the same time the matter has been referred to ACB and at least such of the persons who are not holding the prescribed qualification alike the present petitioner of Clinical Psychologist which has been prescribed by the Government of India vide its circular dt.24-6- 2015 at least they cannot be allowed to continue and no error has been committed by the respondents in (7 of 9) [CW-7621/2017] terminating such contract of (5 of 6) [CW- 16270/2016] service which was per se bad in law and more so these are not the statutory contracts and if at all the termination is in contravention of the conditions of service contract one can claim damages but reinstatement is otherwise not permissible by law. I had an occasion to examine similar controversy where appointments were made by adopting self same mechanism and such of the candidates who were not holding the required qualification prescribed by the Government, vide circular dt.24-6- 2015, I have dismissed such writ petitions assigning detailed reasons in my order dt.10-1-2017 passed in CWP-451/2017- Sonali Jakar Vs. State of Raj. & Ors, at the admission stage. I have heard counsel for the parties and taking note of the earlier order passed by me of which reference has been made dt.10-1-2017 where the candidate was appointed to the post of Clinical Psychologist who was not holding the requisite qualification prescribed by the Government dt.24-6-2015 to hold the post of Clinical Psychologist, I have dismissed such writ petition assigning detailed reasons under order dt.10-1-2017. That apart submission of petitioners counsel is wholly without substance for the reason that the method adopted by the respondent through Nodal Officer inviting service provider through advertisement for interview is a unique mechanism which cannot be countenanced by this Court and the candidates selected with whom contract has been executed for different posts their suitability was never adjudged before deploying under the National Mental Health Programme and if such service contracts are executed it is a void ab initio bad and the persons who were (6 of 6) [CW-16270/2016] appointed by adopting such arbitrary procedure cannot be allowed to continue and that apart the qualifications prescribed by the Government of India if the petitioner failed to hold at least no error has been committed in terminating her services & also of such other unqualified persons. Counsel for petitioner submits that the petitioner had worked for sometime under the contract but salary for that period has not been paid to her. It is (8 of 9) [CW-7621/2017] expected from the respondents that if the petitioner had worked let the matter be considered for release of salary of the period during which she had worked. Consequently, the writ petition is devoid of merit and is accordingly dismissed with the observations supra.

Every eligible youth of the country has a fundamental right of consideration of his candidature in the matter of public employment made by the public authorities even on contractual, temporary or adhoc basis. Any experience gained by virtue of an appointment on contractual, temporary or ad-hoc basis made contrary to the scheme of appointment under the relevant statutory recruitment Rules and/or in violation to mandate of Article 14 and 16 of the Constitution of India, shall not count for any weightage for such a preference/weightage conferred would amount to perpetuation of an illegality. Admittedly, appointments involved herein were not made inviting applications from all eligible candidates but a procedure was adopted introducing placement agencies unknown to service law jurisprudence and contrary to the mandate of Article 14 and

16 of the Constitution of India. In the instant case at hand, the petitioners have been accorded appointment through placement agencies whose role is under cloud and the matter is under investigation with the ACB. Learned counsel appearing on behalf of the State- respondents undertakes to ensure expeditious investigation in the matter. (9 of 9) [CW-7621/2017] The Investigating Officer, who is entrusted with investigation involved herein, shall appear on the next date before this Court with the status of investigation and material collected in support of allegations so also as to foul played and fraud committed in the matter of public appointment/employment in NPPCF and National Mental Health Programmes/Schemes. In view of the fact that identical controversy has already been considered and adjudicated upon in the case of Anshu Chauhan (Supra); this Court is not inclined to grant any interim relief. Further, the interim relief prayed for is, in substance, of final in nature. Hence, the claim for interim relief merits rejection on that count as well. Matter be listed on 10th July, 2017. (VEERENDR SINGH SIRADHANA)J. pcg/137