High Court · 2012

Heard Mr. A.K.Hussain, learned Counsel for the petitioners. Also heard Ms. A.Verma, learned Standing Counsel, Health Department and Mr. K. Agarw al, learned Counsel for respondent the Tea Estates.

9. Learned Counsel for the petitioners submits that the petitioners were selected and appointed following a due selection process and there is no o bjection from any quarter regarding the merit of their selection. If there are a ny differences between the NRHM authorities and the Tea Estates, those should be sorted out by the two and the petitioners should not be made to suffer. Contend ing that there is no good ground in not allowing the petitioners to join in thei r respective places of posting, Learned Counsel for the petitioners therefore pr ays for necessary direction to the respondents to allow the petitioners to join.

10. Learned Standing Counsel for the Health Department while support ing the claim of the petitioners, has argued that the stand of the respondent Te a Estates is most unreasonable. According to her, the Tea Estates had taken the benefits under the MOUs including financial assistance and therefore they cannot now turn around and restrain the petitioners from joining their respective plac es of posting. Such action would be in violation of the MOUs, she submits. Mr. K. Agarwal, learned Counsel for the respondent Tea Estates r 11. eferring to the various clauses of the MOUs and the statements made in the count er affidavits filed by the respondent Tea Estates, submits that the NRHM authori ty cannot impose their appointees unilaterally on the Tea Estates. He also submi ts that the MOUs between the District Health Society and the Tea Estates no long er subsist and, therefore, there is now no contract between the District Health Society and the Tea Estates.

12. The submissions made have been considered.

13. Considering the subject matter of the writ petitions, an endeavo ur was made for amicable settlement of the matter. Considering the fact that the petitioners despite their selection could not join their respective assignments and also considering the fact that there was no objection from any quarter rega rding the merit of their selection, the Court by order dated 03-11-2011 directed the Mission Direction, NRHM to hold a meeting with the Tea Estate managers with in fifteen days and thereafter to apprise the Court about the outcome of such de liberation. Though the Court granted further time to resolve the impasse, nothin g fruitful emerged. Finally, the Court in the order dated 29-03-2012 observed th at there was no possibility of such settlement. After hearing the matter at some length, the Court sought for the following information from the learned Standin g Counsel, which was considered necessary for adjudication of the case:- (cid:28)(1) As to whether the MOUs signed between the District Health Society and th e respective Tea Estates still subsist or not ? (2) ? Whether any fresh MOU has been entered into between the said two parties (3) What is the present status of the contract between the District Health S ociety and the respective Tea Estates under the Public Private Partnership Schem e ? (4) isement in question dated 24-06-2010. The present status of all the selected candidates pursuant to the advert (5) Whether any Tea Estate other than the respondent Tea Estates are part of the Public Private Partnership Scheme and whether any appointment of Laboratory Technician has been made in such Tea Estate ? (6) fidence during the recruitment process ? (cid:29) Whether the management of the respective Tea Estates were taken into con In the course of the hearing, learned Standing Counsel, Health D 14. epartment informed the Court that the MOUs signed between the District Health So ciety and the respective Tea Estates had all expired and that no fresh MOUs have been signed between the two parties. It was informed that for the financial yea r 2011-2012 money had been released to the Tea Estate Hospitals under the PPP Sc heme. It was also informed that no Laboratory Technician had joined the concerne d Tea Estates under the PPP Scheme pursuant to the advertisement dated 24-06-201 0. Further information placed before the Court was that there are other Tea Esta tes under the PPP Scheme but appointment of Laboratory Technicians in those Tea Estates have been made by the management of the respective Tea Estates. It was h owever admitted that the management of the respondent Tea Estates were not invol ved in the recruitment process of Laboratory Technician.

15. ertisement dated 24-06-2010, which is quoted hereunder:- Before proceeding further, it will be useful to refer to the adv (cid:28) OFFICE OF THE DISTRICT HEALTH SOCIETY SONITPUR NATIONAL RURAL HEALTH MISSION, NEAR TEZPUR COLLEGE, TEZPUR, SONITPUR ASSAM-784001 Phone 03712-232086 mail-dpmu_sonitpur@sify.com> ADVERTISEMENT e-mail-dpmu_sonitpur@sify.com <mailto:e- Applications in the prescribed format are invited for engagement on cont ractual basis for the following posts to be placed in various places under Natio nal Rural Health Mission (NRHM). The applicants shall have no claims in future for absorption in any Govt. Jobs. The applicants are to appear for an interview for which no TA/DA shall be paid. The undersigned reserves the right to reject any or all application without assi gning any reasons thereof: 1. Name of the post : Medical Officer (MO) No. of Post: 20 (to be placed at TE Hospital and PHC). Eligibility and Qualification : Qualified MBBS registered practitioner, preferab ly with minimum 2 years experience is required for various hospitals under the D istrict of Sonitpur. Fixed remuneration: Rs.25,000/- pm for posting at PHC and Rs.28,000/- pm for Tea Garden Hospital.

2. Name of the post: Staff Nurse No. of Post: 20 (to be placed at TE Hospital) Eligibility and Qualification: B.Sc. Nursing / Midwifery General Nursing / Certi ficates (including senior & junior certificates) Diploma or Degree in Nursing is sued by Institution registered with Staff Nurse Registration Council under India n Council Act, 1947. Fixed remuneration : Rs.7,000/-pm

3. Name of the post: Ausiliary Nurse Midwifery (ANM) No. of Post: 10 (to be placed at TE Hospital) Eligibility and Qualification: Auxiliary Nurse Medwifery. Certificates (includin g senior & junior certificates) Diploma or Degree in Nursing issued by instituti on registered with Staff Nurse Registration Council under Indian Nursing Council Act, 1947. Fixed remuneration: Rs.5,000/- pm

4. Name of the post: Laboratory Technician No. of Post; 20 (to be placed at TE Hospital and PHC). Eligibility and Qualification: The candidate should have passed Laboratory Techn ician’s certificate course from Medical College for Assam or Govt. recognized in stitutions. Fixed remuneration: Rs.7,000/- pm

5. Name of the post: Pharmacist No. of post: 4 (to be placed at TE Hospital and PHC). Eligibility and Qualification: The candidate should have passed Diploma course f rom Medical College of Assam or equivalent and must have registered under Assam Pharmacy Council. Must have basic knowledge of computer (MS Office, Tally etc.) Fixed remuneration: Rs.7,000/- pm. District Health Society, Sonitpur will conduct a walk-in interview for the follo wing post under NRHM on contractual basis. Candidates are required to appear bef ore the Selection Committee on July 1st 2010 from 11AM onwards at the office of the Jt. Director Health Services, Sonitpur, with original testimonials and two p assport size photographs. (Persons already engaged under NRHM are not eligible. Retired ANM/GNMs are encou raged to apply). Deputy Commissioner cum Chairman, DHS, Sonitpur. (cid:29)

16. Thus from a close perusal of the advertisement, it is quite evid ent that there was no mention therein that the appointees would be posted at par ticular Tea Estate Hospitals. All that was stated was that the appointees agains t the twenty posts of Laboratory Technician would be placed at Tea Estate Hospit al and PHC. But in the appointment letters of the petitioners, it was indica 17. ted that their postings were at particular Tea Estate Hospital. The appointment letter of the petitioner No.1 in Writ Petition (C) No.259/2011 is extracted here under as a sample copy for ready reference:- (cid:28)OFFICE OF THE DISTRICT HEALTH SOCIETY SONITPUR CUM DISTRICT PROGRAMME MANAGEMENT UNIT, NATIONAL RURAL HEALTH MISSION, NEAR TEZPUR COLLEGE, TEZPUR, SONITPUR, ASSAM-784001 Phone-03712 232086 ail-dipmu_sonitpur@sify.com> No.DHS/NRHM/S/DHS/10-11/2130 email-dipmu_sonitpur@sify.com <mailto:em Date:- 29-09-2010 To, Jatin Baruah S/o- late Gopal Baruah Vill.- Kacharigaon, P.O.- Sootea Pin- 784175, Sonitpur. Sub:- Selection for the post of contractual Lab. Tech under NRHM, PPP, Assam. In pursuance of the interview held on 1st July 2010 you have been selected for t he post of contractual Lab. Tech under NRHM PPP at Diring Tea garden Hospital in Sonitpur District. Please report to the Joint Director of Health Services cum M ember Sec. District Health Society Sonitpur District for signing contractual agr eement and other formalities within 7 days. Yours faithfully Sd/- illegible District Programme Manager NRHM, Sonitpur Memo: DHS/NRHM/S/DHS/10-11/ Copy to :- Date:29-09-2010

2. 3. 4. 5. 6. 7. MD, NRHM, Assam. Deputy Commissioner, Sonitpur. Joint Director of Health Services, Sonitpur. Additional CM & HO, Sonitpur. SDM & HO B.Chariali Block PHC. Manager Diring T.E. Person concern ________________ District Programme Manager NRHM, Sonitpur (cid:29) 18. Under the PPP Scheme of the NRHM, MOUs were signed between the D istrict Health Society, Sonitpur district and the respondent Tea Estates. The pu rpose of the PPP Scheme is to strengthen the existing primary health care facili ties in the Tea Estate Hospitals as well as to extend the health care services t o non entitled cases from within the resident population of the Estate. These MO Us were signed in the year 2009 and 2010 and were valid for one year subject to renewal from time to time. Clause 6.9 of the agreements provided that the tea ga rden management would appoint contractual staff in the hospital as per mutually agreed terms and conditions. Clause 4 provided that in the event of dispute, the Deputy Commissioner would be the final arbitrator.

19. If the respondent Tea Estates do not acknowledge the selection a nd appointment of the petitioners on the ground that it was carried out by the D istrict Health Society unilaterally behind the back of the respondent Tea Estate s whereas the MOUs provide that such appointment should be made by the Estate ma nagement, it is an issue between the NRHM authorities and the respondent Tea Est ates, which can be resolved by way of negotiation or arbitration, the Deputy Com missioner being the final arbitrator. Or the NRHM authorities can take resort to such legal action they think appropriate against the respondent Tea Estates for alleged breach of contractual obligation. But in the process, the petitioners s hould not be made to suffer for no-fault of theirs. The petitioners had appeared in the interview pursuant to the advertisement whereafter they were selected an d appointed. As already noticed, there is no dispute as to the merit of their se lection. Further, the advertisement did not mention the names of the Tea Estates in respect of which the recruitment process was undertaken. All that it said wa s that there were twenty posts of Laboratory Technician and that the appointees would be placed at Tea Estate Hospitals and PHCs. Since the recruitment process was carried out by the District Health Society, Sonitpur district on behalf of N RHM, it is the duty and responsibility of the District Health Society to ensure that the petitioners who were selected in such recruitment process and appointed can join in other Tea Estates under the PPP scheme or in the PHCs under its jur isdiction. 20. Accordingly, in view of the discussions made above, it is hereby ordered that the NRHM authorities, including the District Health Society, Sonit pur district shall provide alternative places of posting as Laboratory Technicia n to the petitioners either in different Tea Estate Hospitals or in Public Healt h Centres (PHCs) within a period of one month from the date of receipt of a cert ified copy of this order. 21. 22. Both the writ petitions are accordingly disposed off. No cost.