Rakesh Kumar Garg vs State of Madhya Pradesh

Calling in question tenability of an order-dated 17.4.2012, passed by the writ Court in W.P. No. 5433/2012, in granting contract appointment to respondent No. 4 as an Executive Engineer in the National Rural Health Mission, this writ appeal has been filed.

Appellant is working as an Assistant Engineer in the office of Joint Director, Health Services and respondent Shri R.G. Agrawal was also working in the department. Shri R.G. Agrawal retired from service and after retirement as he has been granted contract appointment as an Executive Engineer in the National Rural Health Mission, appellant challenged the appointment mainly on the ground that Shri R.G. Agrawal does not fulfil the criteria laid down in accordance to the Policy - Annexure P/1 dated 3.9.2011, issued by the State Government for granting contract appointment to retired employees.

Taking us through the requirement of the Policy - Annexure P/1, it was tried to be emphasized that Shri R.G. Agrawal does not fulfil the conditions. That apart, the advertisement for appointment to the post - Annexure P/2 dated 25.1.2011, was referred to say that only a Graduate Engineer was entitled to seek appointment and as respondent Shri R.G. Agrawal was only a Diploma Engineer, his appointment contrary to the requirement of the advertisement was unsustainable.

Finally, referring to the bio-data and application submitted by Shri R.G. Agrawal, as contained in Annexure P/8, showing him to be only a Diploma Engineer in Civil Engineering, Shri T.S. Ruprah, learned Senior Advocate, argued that he is granted contract appointment in an illegal manner. Learned Senior Advocate took us through the material available on record, including the averments made in his rejoinder and the documents filed alongwith the rejoinder, to emphasize that in granting contract appointment to Shri R.G. Agrawal, all norms of the Rules and Policy have been violated and, therefore, the appointment be cancelled and as the writ Court has not adverted to consider all these questions, it is stated that there has been an error in the matter.

Shri Rahul Jain, learned Deputy Advocate General, invited our attention to the Policy - Annexure P/1 and argued that this Policy pertains to grant of contract appointment to retired employees of the State Government. It is stated that National Rural Health Mission is a Scheme formulated and financed by the Central Government and appointment to the post in the Scheme is not governed by this Policy - Annexure P/1 and, therefore, on violation of the Policy interference by this Court is not called for.

As far as the terms of the advertisement - Annexure P/2 and the qualification of Shri R.G. Agrawal is concerned, learned Deputy Advocate General invites our attention to the last pay certificate of respondent No. 4; the Circular of the Government of India - Annexure R/1, and argues that according to the Circular an Assistant Engineer who is retired from government service and who is drawing the Grade Pay of an Executive Engineer is deemed to be a Graduate Engineer and if applying that Policy respondent No. 4 is appointed on a contract post, in a scheme financed by the Central Government, there can be no error in the matter. Accordingly, Shri Rahul Jain seeks for dismissal of the writ appeal.

Shri Abhijeet Awasthy, learned counsel for respondent No. 4, adopted the arguments advanced by Shri Rahul Jain and further pointed out that in the writ petition the appellant/petitioner only challenged an order-dated 6.3.2012, which was a posting order and not the order of appointment. It is pointed out that the order of appointment was - Annexure P/9 dated 24.10.2011. This order was not challenged and even before Annexure P/9, the appointment was made in the year 2010, and as the appointment is in accordance to the Policy of the Central Government, which has sponsored the Scheme, it is stated that there is no error in the matter.

That apart, Shri Abhijeet Awasthy questions the locus standi of the appellant/petitioner in challenging the appointment. It is pointed out by him that to be eligible for appointment as an Executive Engineer, an employee should have atleast six years service as an Assistant Engineer, and as appellant herein - Rakesh Kumar Garg, does not fulfil this criteria, he cannot challenge the appointment. That apart, learned counsel points out that the appellant is claiming the post on the basis the Recruitment Rules formulated for appointment to the State Health Services. The said Recruitment Rule is not applicable for appointment on contract basis to a Scheme financed by the Central Government and, therefore, as the writ Court has considered all these aspects and has dismissed the petition, there is no error in the same.

We have considered the contentions advanced and we find no reason to interfere into the matter.

The main contention of the appellant is that appointment to respondent No. 4 is contrary to the Policy - Annexure P/1. If the Policy - Annexure P/1 is taken note of, it would be clear that this is a Policy pertaining to re-engagement or re-appointment of State Government employees on retirement, on contract basis. This Policy is for the purpose of appointment or reappointment of retired government employees and pertains to appointment on a Scheme or Service, which is fully financed by the Central Government. That being so, Shri T.S. Ruprah is unable to demonstrate before us as to how the Policy - Annexure P/1 will apply in an appointment to the National Rural Health Mission, and when the appointment is made on the basis of the guidelines issued by the Central Government and the Scheme formulated by the Central Government.

That apart, as far as the question of respondent No. 4 not being a Graduate Engineer and is not entitled for appointment is concerned, once the Policy of the Central Government and the requirement for re-engagement in Central Government service as per the Central PWD Works Manual - Annexure R/1 is concerned, it is clearly stipulated that an Assistant Engineer retiring from government service and holding a Diploma will be treated to be at par with a Graduate Engineer. That being so, when respondent No. 4 has worked as an Assistant Engineer while in government service and now he has retired, even though he is a Diploma Holder, the provisions of the Policy contemplate that he is deemed to be a Graduate Engineer and deeming so, and finding him to be drawing the Grade Pay of an Executive Engineer he is appointed, we see no error warranting reconsideration.

That apart, appellant is staking his claim to the post by contending that if the contract appointment is not granted to respondent No. 4, he would be entitled for the same. This contention of the appellant is also found to be wholly misconceived for the simple reason that the learned writ Court has gone into this question and has found that appellant''s promotion is governed by the MP Public Health and Family Welfare Gazetted Recruitment Rules, 2007, and the post in the cadre in question is to be filled up by 100% promotion by eligible candidates who have six years experience in the Feeder Cadre i.e... Assistant Engineer. It is found that the appellant/petitioner does not fulfil this criterion, and on this count also the writ Court has refused to interfere into the matter.

That apart, the original records of the Screening Committee which considered the case of respondent No. 4 for appointment is produced before us and on going through the original records, we find that each and every aspect as indicated herein has been considered and after satisfying that respondent No. 4 can be classified as a Graduate Engineer and that his Grade Pay is what is payable to an Executive Engineer, that his appointment has been approved. That being so, we cannot sit over the decision of the Screening Committee and exercise further appellate powers.

Taking note of the totality of the circumstances, we find that there is no error in the order passed by the learned writ Court warranting reconsideration.

The appeal is, therefore, dismissed.

Original records of the Screening Committee be returned back to Shri Rahul Jain, learned Deputy Advocate General.